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HAYS, Justice. This case is before us on a petition for review of the decision of the Court of Appeals in Santanello v. Cooper, 12 Ariz.App. 123, 468 P.2d 390 (1970). The decision of the Court of Appeals is vacated and the judgment of the trial court is affirmed. Plaintiff Anthony Andrew Santanello [hereinafter referred to as Santanello] sued defendants Floyd Ray Highfill and Vern Cooper [hereinafter referred to as Cooper] as joint and concurrent tortfeasors. Santanello alleged that defendant Highfill was negligent in causing his motor vehicle to collide with the rear of appellant’s vehicle. He also alleged that Cooper was negligent in allowing his dog to run at large in violation of Phoenix City Ordinance No. G-589. A jury verdict was returned against both defendants, jointly and separately, for the sum of $50,000. Cooper made a timely motion for new trial which was granted by the trial court. It is this order granting a new trial from which appellant has appealed. A brief review of the facts of this case is necessary. Santanello was driving east on East Camelback Road near the 4800 block when a dog crossed into the path of his vehicle causing him to stop quickly to avoid hitting the dog. While he was so stopped Santanello’s vehicle was struck from behind by a vehicle driven by defendant Highfill. It was established to the satisfaction of the jury that the dog was owned by Cooper; however, no evidence was presented as to the length of time the dog had been loose or the circumstances surrounding its being away from Cooper’s residence on the day of the accident. The issue before this Court is threefold: (1) is an appellate court’s review of an order granting a new trial limited to those grounds set forth in the order or may the appellate court consider all grounds set forth in the motion for new trial, (2) what procedure should be followed on appeal where the appellee seeks to support the order granting him a new trial upon grounds not relied upon by the trial judge but which were set forth in the motion for new trial, and (3) did the trial court, in the instant case, err in failing to instruct the jury that a violation of Phoenix City Ordinance No. G-589 is not negligence per se. Language has appeared in several decisions of this Court stating that an ap pellate court is limited in its review of an order granting a new trial to considering only those grounds specified in the order. Rogers v. Mountain States Telephone & Telegraph Co., 100 Ariz. 154, 412 P.2d 272 (1966); State ex rel. Morrison v. McMinn, 88 Ariz. 261, 355 P.2d 900 (1960); City of Phoenix v. Harlan, 75 Ariz. 290, 255 P.2d 609 (1953); Young Mines Co. v. Citizens’ State Bank, 37 Ariz. 521, 296 P. 247 (1931). In Young Mines we said: “When * * * the court specifies in its order [granting a new trial] the precise reasons it was granted, we are necessarily confined to those reasons in passing upon the order.” (Citations omitted) 37 Ariz. at page 524, 296 P. at page 249. In support of this statement the Court cited Millar v. Madison Car Co., 130 Mo. 517, 31 S.W. 574 (1895). A reading of the following statement from Millar clarifies the above statement pertaining to the scope of appellate review of an order granting a new trial: “And it was held in [Iron Mountain] Bank v. Armstrong, 92 Mo. 265, 4 S.W. 720, that if the motion was properly sustained upon any of the grounds assigned in the motion, the judgment of the lower court would be affirmed. * * * In the more recent case of E. O. Stanard Milling Co. v. White Line Cent. Transit Co., 122 Mo. 258, 26 S.W. 704, it was said: ‘Nothing can be considered by this court save and except the grounds set forth in the order of the court sustaining the motion as it appears of record and the grounds of the motion itself.’ These cases proceed largely upon the salutary presumption indulged in favor of the correctness of the rulings of the circuit court, and learned counsel for respondent ürge that the action of the trial court in granting a new trial will be presumed correct, and that unless appellant shows to the contrary the judgment must be affirmed. * * * Indulging the presumption * * * it is evident that we must hold that prima facie there is no ground for disturbing the verdict of the jury except those specified in the order granting the new trial, and if this conclusion is correct the burden is cast upon the appellant in the first instance of affirmatively showing the error of the court in holding it had committed error in certain particulars, and upon respondent to demonstrate that the court should have granted a new trial upon the grounds in his motion, and the judgment was right notwithstanding an erroneous reason may have been assigned for it. It seems to us that this is entirely logical and just. * * * ” (Emphasis supplied) 31 S.W. at pp. 575-576. We agree with this statement from Millar and believe it was the intent of this Court in Young Mines to adopt this position. Reading Young Mines, and subsequent cases relying upon Young Mines, with Millar in mind the following rule emerges: Where there is an appeal from an order granting a new trial the burden is upon the appellant to affirmatively establish that the reasons stated in the order for new trial do not justify a new trial, and if the appellee seeks to support the order for new trial upon other grounds raised in his motion but not relied upon by the court the burden is upon him to convince the appellate court. This rule is in accord with the reasoning of the Court in Yoo Thun Lim v. Crespin, 100 Ariz. 80, 411 P.2d 809, 811 (1966) where we held that where the trial court does not specif}' with particularity the grounds for its decision to grant a new trial “ * * * we will presume that the verdict of the jury was correct, placing the burden upon the appellee to convince us that the trial court did not err in ordering a new trial. * * * ” Next we must consider the closely related question of the procedure to be followed where the appellee seeks to support the order for new trial upon grounds set forth in the motion for new trial but not relied upon by the trial court in ordering a new trial. There are conflicting decisions of the Court of Appeals of this State on this issue. In Boudreaux v. Edwards, 7 Ariz.App. 178, 437 P.2d 430 (1968) it was held that the appellee must take a cross-appeal if he seeks to sustain the order granting a new trial on grounds other than those set forth in the order granting a new trial. Aegerter v. Duncan, 7 Ariz.App. 239, 437 P.2d 991 (1968), on the other hand, held that a cross-appeal would be improper and that the proper method was for the appellee to make a cross-assignment of error. Accord: Wagner v. Coronet Hotel, 10 Ariz.App. 296, 458 P.2d 390 (1969). Rule 5(b) 7 of the Rules of the Supreme Court, 17 A.R.S. no longer contains a reference to assignments of error but now speaks of “question presented.” We are therefore of the opinion that a cross-question is the most logical and just method for the appellee to raise matters in support of the order granting a new trial that do not appear in the order but which were set forth in the motion for new trial. This is m accord with Maricopa County v. Corporation Commission of Arizona, 79 Ariz. 307, 289 P.2d 183 (1955) where we held: “ * * * that if appellee in its brief seeks only to support or defend and uphold the judgments of the lower court from which the opposing party appeals, a cross-appeal is not necessary. * * * If, however, it is sought by such cross-assignments to attack said judgment with a view either or ‘enlarging his own rights thereunder or of lessening the rights of his adversary’ he must cross-appeal. * * * ” 289 P.2d at p. 185. It is our opinion that where an appellee seeks to uphold and defend a new trial order upon grounds set forth in his motion for new trial but not relied upon by the trial court that he is net attempting to enlarge his own rights or lessen those of his adversary. In this situation, therefore, a cross-appeal..is not necessary and a designation of cross-question presented is sufficient. Here Cooper, as appellee designated a cross-question. In the instant case, Santanello urges that the trial court was not justified in ordering a new trial for the reasons set forth in the order for new trial. Cooper, on the other hand, by cross-question urges that the order for new trial is justified by an additional ground set forth in the motion for new trial but which the trial judge did not rely upon in granting the new trial. In his motion for a new trial Cooper, in addition to the three grounds relied upon by the Court in granting a new trial, urged that the trial court erred in refusing to instruct the jury that a violation of Phoenix 'City Ordinance No. G-589 is not negligence per se but that a violation of the ordinance only gives rise to liability where the violation was intentional or negligent. The trial court refused to give appellee’s requested Instruction No. 26 which covered this point. In seeking to determine whether or not the ordinance in question provides for strict liability for its violation the following statement of Professor Prosser concerning strict liability for the violation of a statute is relevant: “These statutes are, however, the exception; and in the aggregate they make up only a very small percentage of the total safety legislation. Normally no such interpretation will be placed upon a statute, and such conclusion reached, unless the court finds that it was clearly the purpose of the legislature. In the ordinary case, all that is required is reasonable diligence to obey the statute * * (Emphasis supplied) W. Prosser, Law of Torts 199—200 (3 ed. 1964). In those instances where statutes attempt to deal with animals at large by providing “ * * * that the owner shall not ‘permit,’ ‘allow,’ or ‘suffer’ his animals to run at large, the courts have generally held, or recognized, that statutes of this type are not violated in the absence of at least negligence by the owner of the animals.” 34 A.L.R.2d 1285, 1289. See also: 4 Am.Jur. 2d § 116, Animals, pages 367-68. The ordinance in question provides in part: “(1) No person owning, keeping, possessing, harboring, or maintaining a dog shall allozv said dog to be at large * * (Emphasis supplied) Ordinance of the City of Phoenix No. G-589, Code of the City of Phoenix, Article III, Section 8-15. The word “allow” means to approve of, to sanction, to permit, to acknowledge. Webster’s 3rd International, unabridged (1961 ed.). So defined, “allow” requires some degree of knowledge, either actual or constructive, on the part of the dog owner that his dog is at large; therefore, its use in the ordinance negates any intention to create strict liability for violation of the ordinance. We hold that in order for there to be civil liability for violation of this ordinance it must be established that a person coming within the scope of the ordinance intentionally or negligently allowed a dog covered by the ordinance to run at large in violation of the ordinance. The trial court committed reversible error in instructing the jury that if they found that appellee had violated the ordinance he would be negligent as a matter of law and in failing to instruct the jury that civil liability for violation of the ordinance occurred only where the conduct was intentional or negligent. In view of our holding that the additional ground in appellee’s motion for new trial is sufficient to support the order granting a new trial it is unnecessary for us to consider appellant’s argument that the reasons stated in the order for new trial do not support such an order. The order of the trial court granting a new trial is affirmed. LOCKWOOD, C. J., and STRUCKMEYER, Vice C. J., and UDALL and McFARLAND, JJ., concur.

HAYS, Justice. Petitioner was convicted in the City Court of Phoenix of a misdemeanor traffic offense and fined $10.00. Petitioner appealed to the Superior Court of Arizona where a trial de novo was held and petitioner was again found guilty, this time being fined $20.00. Petitioner is before this Court by petition for special action alleging that the Superior Court violated the due process clause of the Fourteenth Amendment when it doubled the fine levied upon petitioner in the previous proceeding. We agree with this position. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) the United States Supreme Court held that even though there is no constitutional prohibition to the imposition of a more severe sentence on re-conviction after a successful appeal, the likelihood of vindictive attitudes entering into the sentencing procedure requires the sentencing judge to negate any such inference by stating his reasons on the record. In North Carolina v. Pearce, supra, the Court said: “Due process of law * * * requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge. In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” 89 S.Ct. at 2080-2081. Recently, the Supreme Court of Hawaii in State v. Shak, 466 P.2d 420 (1970), in a case similar to the one before this Court, held unconstitutional an increased fine after a trial de novo. In Shak the appellant was convicted of a traffic offense and fined $25. Appellant appealed to the circuit court where he was again convicted, this time being sentenced to pay a fine of $200. The Court in Shak, relying upon North Carolina v. Pearce, supra, held that the increased fine after the second trial was unconstitutional where there was no factual data in the record concerning identifiable conduct of appellant which occurred after the time of original sentencing which would justify the increased sentence. This Court is aware of the existence of several cases from other jurisdictions which have reached conclusions contrary to that of Shak while attempting to distinguish Pearce. See, e. g., Lemieux v. Robbins, 414 F.2d 353 (1st Cir. 1969); People v. Olary, 382 Mich. 559, 170 N.W.2d 842 (1969); State v. Sparrow, 7 N.C.App. 107, 171 S.E.2d 321 (1969); Evans v. City of Richmond, 210 Va. 403, 171 S.E.2d 247 (1969). We find, however, that the spirit and reasoning of Pearce require that a sentencing judge who increases the sentence of one who has been re-convicted in a trial de novo set forth his reasons in the record. In the instant case the trial judge did not set forth in the record reasons that would justify increasing petitioner’s sentence; therefore, the increased sentence is unconstitutional under North Carolina v. Pearce, supra. The portion of the judgment increasing the fine to $20. is reversed and the original fine of $10. is reinstated. Judgment as modified is affirmed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and McFARLAND, JJ., concur.

McFarland, Justice. David Joseph Andrews, hereinafter referred to as defendant Andrews, and Jean Ellen Hughes, hereinafter referred to as defendant Hughes, were each convicted of two counts of assault with a deadly weapon and were sentenced to serve not less than 25 or more than 30 years on each count to run concurrently. From the conviction and sentence of the court they appeal. Count I charged that the defendants committed assault with a deadly weapon against one V. E. Jones in violation of A.R.S. § 13-249, and Count II charged the defendants with assault with a deadly weapon against one Fred Grantham. On April 4, 1968, officer Fred Grantham of Tempe, Arizona, working “the graveyard shift”, at approximately 5:00 A.M. observed defendants standing by a brown Chevrolet parked at the rear of Ryan-Evans Drug Store at 10th and Mill in Tempe. Another patrol car was proceeding north down the street. They appeared to become very interested in that particular patrol unit and became still until the car passed. After the patrol car passed their vehicle was started, the lights came on and they proceeded north on Mill Avenue. Officer Grantham pulled behind them and stopped their vehicle about one-half block north for a routine check. There were four people in the car, the defendants, and Charlie and Harold Tobias who were minors riding with the defendants on their way to California. Defendant Hughes had been driving the car and officer Grantham requested her driver’s license and a vehicle registration. She looked through her purse, the glove compartment and the trunk but was unable to produce either. In the meantime officer Carpenter came into the area. Defendant Hughes had told Grantham that her name was Jean Powers. The officer checked it with the Motor Vehicle Division through the dispatcher and was informed that the license plates were for a different car. Upon the failure to produce a driver’s license or registration, the officers requested they follow them to the police station with the intention of having the driver “post bond for driver’s license, registration and fictitious license plates.” Defendant Hughes was instructed to follow Grant-ham’s unit and Sergeant Carpenter was to follow the defendants’ car. It was necessary they make a “U” turn on the divided highway. Officer Grantham made the “U” turn. Defendant Hughes, instead of following, turned into the northbound lane of the one-way road heading in the wrong direction. It was at this time that the chase started. Grantham observed two subjects leaning out of the right-hand side of the vehicle and was warned by his fellow officer by radio that they were shooting. He noted indications on the pavement from bullets and heard the reports of the weapons. The defendants’ car was a lane’s width from Grantham’s car and was at close range to it. He testified they were firing at him; that he was able to see who was firing and testified it was defendant Andrews and another subject, namely Harold Tobias; that they were both firing at the same time; that there was a total of 20 or 25 shots fired and two or three at that particular point. They were proceeding down Mill Avenue with defendants’ car against the traffic. Officer Grantham was in the southbound lane with a red light and siren on. When they arrived at 10th and Mill, Officer V. E. Jones confronted the defendants’ vehicle and when their vehicle approached Officer Jones, Officer Grant-ham noticed him ducking into the scat of his car. When they proceeded on around the curve onto Apache Boulevard they met a car and a couple of motor vehicles. The defendants’ car went between the two motor vehicles. They were then near the intersection of McAllister and Apache Boulevard. The vehicle then made a very sharp, speedy turn to head north on McAllister. Officer Grantham proceeded to follow north and followed the defendants’ car when they turned right at Orange where they abandoned their car. The defendants were followed and apprehended. The officers found two .22 caliber weapons in the front seat of the car. One was a larger gun than the other, one holding nine shells and the other seven. On the rear seat was a small caliber seven-shot hand gun, similar to the one on the front seat. The guns were identified and introduced into evidence. They also found a rifle in the trunk of the car. Sergeant Carpenter also described the manner in which the defendants’ car was turned in the highway. He observed the defendant Andrews, and one of the juveniles shooting at his car. His description of the maneuvering of the cars and the shooting was substantially the same as that of Officer Grantham. Officer V. E. Jones testified he was on duty on the morning of April 4, 1968 and heard the radio transmission of the chase. As he approached 10th Street he observed the car in the soutbound lane bearing down on him. He stopped the patrol unit and started the rotary red light on the top of the car. At this point the car was approximately 40 to 50 feet away from him. He testified “I observed the driver of the vehicle, Miss Hughes, stick her arm out the window with a gun in hand, take a rest on the outside rearview mirror, and at that point I thought that she would shoot at me, and I leaned over in the seat. Immediately I heard three reports and the — upon hearing the third report I heard something hit the car.” He also identified a picture of his patrol car and pointed out a bullet mark on it. He further testified as to the maneuvering and the driving of the cars, stating that the approximate speed was 60 or 65 m. p. h. Three witnesses were called by counsel for the defendants — the defendants Hughes and Andrews and Don Green, an officer at the jail where the defendants were incarcerated. Defendant Hughes testified that she had left Tucson for California; that she and Andrews were both “loaded” with drugs; that she had taken peyote and LSD, and Harold Tobias had taken some peyote, but she testified “I don’t think Charlie was loaded. Drugged up, I mean. But could have been, I don’t know.” She said that she was hallucinating; that she did not pull out a gun and shoot and based her argument largely upon the speed of her car, stating that she was never driving under 90 m. p. h. and did not take her hands off the wheel and that she had her foot all the way to the floor boards. In regard to the shooting she said: “I imagine, you know, this is just assumption, I imagine some of the people might have been, but I know I didn’t. There was one point, I guess there was shooting, I didn’t hear it, that Dave was beating on Larry’s arm trying to get the gun away from him. So I guess he was shooting, but I didn’t hear the shots. I wasn’t paying that much attention to it. The only thing I remember out of it, you know, from hearing about it, was that he was trying to get the gun away from Larry. That is all — Harold Tobias, we call him Larry.” She did not in any way directly implicate the defendant Andrews in the shooting. Her testimony in regard to remembering what happened was — “There is quite a bit of it I don’t. I don’t remember because of the hallucinations and there is quite a bit I don’t remember.” In answer to a question about the testimony of Officer Jones in regard to her shooting she stated: “It didn’t happen from me. I am positive. I couldn’t have shot. Cause I was driving and I had to have both hands on the wheel. Besides that he said, I believe, something about a bare arm or something, and I had a long sleeved blouse on.” Her counsel in his brief sums up her testimony as follows : “Hughes told the jury that she was twenty-two years old and that on the day in question she and the other three men in the car had driven to Tempe from Tucson. She recalled being pulled over by a police car. She admitted having no driver’s license or a registration certificate. Then she said that she had been told to follow Grantham to the police station. She remembered going down the wrong side of the road but her testimony soon degenerated into an almost incoherent account of the day in question. She seemed to remember very little between driving down the wrong side of the road and being captured in someone’s garden. She vaguely remembered a squad car coming at her. She denied shooting at anybody. Hughes explained that her memory of the foregoing events was sketchy because half the time that she was driving in this chase, she was hallucinating. The night before she had taken some peyote. She had also taken some LSD. She told the jury that she had been on drugs since she was nine years old. She denied again and again firing a gun.” The defendant Andrews testified that he and defendant Hughes had lived on a ranch in Tombstone for about two years. He corroborated the testimony of defendant Hughes about taking the drugs and being “loaded” and that he did not remember making' a trip from Tucson to Phoenix. He did not recall being arrested and only vaguely remembered being in jail in Phoenix. On cross-examination he testified in regard to the things he was charged with “I can’t deny them. I can’t say that I didn’t do them.” Counsel in his brief sums up his testimony as follows: “When David Joseph Andrews took the stand he testified that he was twenty-one years old and he generally denied remembering any of the events in question. Apparently, the last thing he remembered was arriving in Tucson. He did not remember coming from Tucson to Phoenix. His explanation for his inability to remember was that, like Hughes, he had been taking drugs, in his case since 1964. He had been taking peyote. He had been taking LSD for seven steady months. He had taken methedrine and benzedrine. He may even have taken Darvon. The next thing that Andrews remembered, after Tucson, was being in the Tempe jail.” Officer Don Green testified that he was a police officer employed by the City of Tempe in April of 1968 in the capacity of jailer; that he observed defendants Hughes and Andrews and that Andrews seemed to be having “withdrawals”. Also that defendant Hughes did not seem to be well at the time. Counsel contends that the evidence was not sufficient to carry the case to the jury. The answer depends on whether there was substantial evidence to support the verdicts. We have held in reviewing the sufficiency of evidence to support a verdict that it must be reviewed in a light most favorable to the state and all reasonable inferences must be resolved against the defendant, State v. Crawford, 106 Ariz. 322, 475 P.2d 936; State v. Reyes, 99 Ariz. 257, 408 P.2d 400, 14 A.L.R.3d 1262, and that it is only in the absence of probative facts to support the verdict that reversal is justified. State v. Crawford, supra. In the instant case the testimony was that the two defendants were riding in the car together; that they had started to jail between the two police cars when they attempted to escape. In the chase the shooting occurred. This is sufficient evidence from which a jury could find each of them guilty of the charge. Counsel states that Hughes could not be connected with assault on Grantham as the evidence does not support the charge. It is claimed that she could not be convicted as a principal under § 13-139 because it was not shown that she actually committed the crime; that it was necessary that she perform some positive act and cites State v. Bearden, 99 Ariz. 1, 405 P.2d 885. However, we cannot agree that State v. Bearden supports defendant’s contention. On the contrary it supports the principles we have here stated, holding that reversible error occurs only where there is a complete absence of probative facts supporting a verdict. In the instant case there is substantial evidence from which the jury could have found that the acts of each of the defendants were intentionally committed for the purpose of their escape. The testimony of officer Jones supported the charge that defendant Hughes shot at him and there was substantial evidence that Andrews shot at officer Grantham. The evidence was sufficient to support the finding of the jury that each was a principal on both counts. It is immaterial whether one or both of the defendants committed each of "the acts charged. § 13-139 A.R.S.; - State v. Bear- den, supra; Cline v. State, 21 Ariz. 554, 192 P. 1071. Counsel for the defendants contends that conflicts in the evidence supports his contention that the verdicts should be reversed. As we stated in State v. Crawford, supra, it is not the function of this court to retry conflicts in evidence. This is a question for the jury. State v. Owen, 101 Ariz. 156, 416 P.2d 589, cert. den. 388 U.S. 915, 87 S.Ct. 2128, 18 L.Ed.2d 1356; State v Bearden, supra. Counsel for the defendants contends under questions 1 and 4 that the defendants were forced to use the same court appointed attorney and that there was a conflict of interest and for this reason defendants were “denied equal protection of the law.” In order for assistance by counsel for an accused to be impaired by representation of the same attorney, actual conflict must in fact have existed or be inherent in the facts of the case from which a possibility of prejudice flows. State v. Collins, 104 Ariz. 449, 454 P.2d 991; State v. Kruchten, 101 Ariz. 186, 417 P.2d 510, cert. den. 385 U.S. 1043, 87 S.Ct. 784, 17 L.Ed. 2d 687. In the instant case no actual conflict of interest is shown nor are there any facts which show a possibility of a conflict of interest. The defense of both defendants was the same. They did not remember the facts. The testimony of neither in any way conflicted with that of the other. Defendant Andrews contends that his conviction amounted to double jeopardy in that he committed only one act which consisted of firing a series of shots at officer Grantham. He made a motion before the trial to quash the information upon the grounds that it constituted double jeopardy in that he had previously pleaded guilty to a violation of A.R.S. §§ 13-917 and 13-917.01 which makes it a misdemeanor to recklessly or carelessly handle a firearm, or discharge a firearm in such a manner as to endanger life or property. Both defendants were charged with the crime of assault with a deadly weapon. The essential element is an unlawful attempt coupled with present ability to commit violent injury upon another with a deadly weapon. The essential elements of §§ 13-917 and 13-917.01 is to recklessly or carelessly handle a firearm or discharging a firearm in such a manner as to endanger life or property or the mere act of firing a gun within the city limits. This does not require an intent to do bodily harm. According to the testimony there were 20 or 25 shots fired that morning which constituted assault with a deadly weapon. There were only a few made at Grantham and a few at Jones. There is nothing in the record to show that they were the same ones for which a plea of guilty was made under § 13-917.01, subsec. A. The shots which were directed at the police in this case constitute the two counts of the charges of assault with a deadly weapon against the police officers. The wild or reckless shots do not constitute a part of the act of assault with a deadly weapon against the officers. Defendant Andrews also contends that the evidence shows a single act within the meaning of State v. Ballez, 102 Ariz. 174, 427 P.2d 125. With this we cannot agree. Ballez was a case in which the defendant was charged with robbery and grand theft. We stated that the statute contemplated a situation in which a single act violated more than one statute and protected the offender against double punishment in such instances. But here it was not a single act. There was a series of acts so that Ballez is not applicable. The argument of the defendant under his question of double punishment falls short for the same reason. He relies on A.R.S. § 13-1641 which provides: “An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.” As we held in State v. Westbrook, 79 Ariz. 116, 285 P.2d 161, in interpreting § 43-6101, Ariz. Code Ann. (1939), which was identical to A.R.S. § 13-1641. “The circumstances that almost identical evidence was used in the prosecution of the two crimes involved in this appeal is not fatal. The act or omission to be proved in each case was patently different.” The second question involved in State v. Westbrook, supra, is the same as raised by counsel in the instant case in regard to double jeopardy. In this connection we said: “The problem is whether the conspiracy to commit burglary is an 'offense necessarily included’ within the crime of attempted burglary. The test to be applied is simple: Is the first offense one that cannot be committed without necessarily committing the second?” (cases cited) Counsel for the defendants makes the same argument in his contention that the court should have instructed as to a lesser offense as to both defendants on the grounds that neither could have committed the first without necessarily committing the second. We cannot agree with the argument on double punishment or his argument for an instruction on a lesser offense. In the commission of assault with a deadly weapon, when it is with a gun, it does not require the firing of the gun. The pointing of a loaded gun in a threatening manner within striking distance of another party has been held to support a conviction of assault with a deadly weapon, State v. Seymour, 101 Ariz. 498, 421 P.2d 517; Territory v. Gomez, 14 Ariz. 139, 125 P. 702. The defendant also contends that the flight instruction should not have been given. The evidence justified such an instruction. The defendants both fled from the car after the commission of the act. State v. Loftis, 89 Ariz. 403, 363 P.2d 585; State v. Guerrero, 58 Ariz. 421, 120 P.2d 798. As to the next contention that the sentences of each of the defendants was excessive, we have frequently held that the trial court has wide discretion in passing sentence and that we will uphold the sentence if it is within the statutory limits unless there is clear abuse of discretion. The sentences in the instant case are within the statutory limits and we find no abuse of the court’s discretion. State v. Davis, 105 Ariz. 498, 467 P.2d 743. Counsel for defendants also filed a supplemental brief in which he pointed out that since the filing of his other briefs we had handed down the decision in State v. Shaw, 106 Ariz. 103, 471 P.2d 715, holding that A.R.S. § 13-1621.01 as it related to bifurcated trials violated due process of law. Counsel states that our holding in State v. Shaw, supra, requires the judgment and sentence in the instant case be set aside and a new trial ordered. We would call attention to the fact that in the instant case the defendants were permitted to introduce evidence as to their mental capacity, both testifying they were “loaded” with drugs, using this as evidence to negative their ability to form an intent to commit the crime for which they were charged. They were not deprived of due process in the presentation of this evidence. However, all of the questions presented in their briefs were passed upon and settled in State ex rel. Berger v. Superior Court, 106 Ariz. 365, 476 P.2d 666, in which we held State v. Shaw, supra, was not retroactive. Judgment affirmed. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur.

PER CURIAM. Disciplinary proceedings were instituted by Jerome J. Raskin before the Local Administrative Committee of District 4-B of the Bar Association of the State of Arizona, charging that on December 4, 1968 he, Jerome J. Raskin; was assaulted by respondent, Marvin Johnson, a practicing attorney-at-law for twenty-four years. The Local Administrative Committee concluded after a hearing that respondent “committed a physical and verbal assault on the complainant, Raskin, for which there was no specific provocation or justification” and recommended a reprimand. The finding and recommendation of the Local Administrative Committee were affirmed by the Board of Governors of the State Bar. The disciplinary action is predicated upon Section 32-263, Arizona Revised Statutes, providing that the duties of an attorney-at-law are to abstain from all offensive personality, and upon Canon 18 of the Canons of Professional Ethics, providing that a lawyer should always treat adverse witnesses and suitors with fairness and consideration. A detailed résumé of the facts is unnecessary. It is sufficient to say that Raskin did not like respondent because of respondent’s representation of a client, a Mrs. Nancy Hogue, in which capacity it became necessary for respondent to discharge Raskin as vice-president and general manager of a corporation principally owned by Mrs. Hogue. Thereafter Raskin initiated a lawsuit against Mrs. Hogue and her corporation in the course of which notice was given to take Mrs. Hogue’s deposition at the office of Rod Wood, attorney for Raskin. Rod Wood was a former associate of respondent. Wood was not on friendly terms with respondent because his association with respondent had been dissolved under strained circumstances. Respondent, accompanied by Mrs. Iiogue, went to Wood’s office for Mrs. Hogue’s deposition on December 4, 1968. They were ushered into an office where Raskin was standing and a court reporter was waiting. At this point there is a vast discrepancy in the testimonies of the parties as to what occurred. Respondent testified that when he held his hand out to Raskin to shake hands, Raskin drew his right fist back and that he, respondent, thought Raskin was going to strike him so he hit Raskin with his left hand in which he was carrying his briefcase, and that he struck Raskin two or three times about the body and then stepped back. This testimony was corroborated by Mrs. Hogue. Raskin testified that respondent, without provocation struck him in the face, knocking him onto a couch, and then repeatedly struck him and continued striking him for a moment or two, and that he made no effort to strike back. The court reporter present testified that he did not see the start of the fracas but looked up in time to see Johnson strike Raskin two or three times. Raskin and Wood testified that after the altercation terminated Johnson said, “No son-of-a-bitch is going to refuse to shake my hand.” This was denied by Johnson and Mrs. Hogue, and the court reporter testified that he did not recall any such conversation. Raskin sustained a small bruise beneath his left eye. Immediately after the incident, Raskin and Wood called in a newspaper reporter and gave him their version of the incident and this was duly reported in the Phoenix papers. Raskin then filed a criminal complaint against the respondent in the City-Court, City of Phoenix, Arizona, to which charge respondent was adjudged not guilty after a trial. Raskin also filed this grievance with the State Bar of Arizona. Respondent challenges the sufficiency of evidence to support the Committee’s findings urging that the ill-will which both Raskin and Wood acknowledged they bore toward him destroyed the credibility of their testimony. When disciplinary action against an attorney is recommended, it is this Court’s duty to determine for itself the facts, In re Wilson, 106 Ariz. 34, 470 P.2d 441 (filed June 9, 1970). We do not, however, find it necessary to examine further into respondent’s position. Isolated, trivial incidents of this kind not involving a fixed pattern of misbehavior find ample redress in the criminal and civil law's. They have none of the elements of moral turpitude, arising more out of the infirmities of human nature. They are not the appropriate subject matter of a solemn reprimand by this Court. The proceedings are ordered dismissed.

McFarland, Justice. This case is before us on a petition for special action, in which the petitioner alleges that Respondent Lorin Gail Shelley — ■ hereinafter referred to as Shelley — the Real Party in Interest, was on November 26, 1969, judged guilty by the Justice of the Peace of Precinct No. 1, Santa Cruz County, of the offense of driving an automobile while under the influence of intoxicating liquor in violation of A.R.S. § 28-692, and was fined $220. This Court accepted jurisdiction in certiorari. On May 22, 1970, Shelley filed a motion in the justice court to vacate the judgment on the grounds that the recent enactment § 36-142, A.R.S., enlarged the possible fine to more than $300. This would exceed the jurisdiction of the justice court under § 22-301, A.R.S., as amended, which reads in part: “ARTICLE 1. JURISDICTION AND VENUE “§ 22-301. Jurisdiction of criminal actions ****** “4. Misdemeanors and criminal offenses punishable by a fine not exceeding three hundred dollars, or imprisonment in the county jail not to exceed six months, or by both such fine and imprisonment.” Section 36-142, A.R.S., as amended, provides for an additional ten per cent of the amount of a fine imposed in cases in violation of § 28-692.01 prohibiting the driving of an automobile while under the influence of alcoholic beverages, or drugs, and § 13-379 relating to drunk and disorderly conduct. Shelley appealed to the Superior Court from the order denying his motion to vacate the judgment, and the Superior Court entered an order as follows: “The Court having taken the Motion to Vacate Judgment under advisement and the Court now being satisfied that the Motion to Vacate Judgment is well taken under authority of the case of Frazier-vs-Terrill, 65 Arizona 131, [175 P.2d 438] and the Court being further of the opinion that the result of its determination of the question as aforesaid raises serious jurisdictional grounds in numerous similar actions, which will result in great congestion in the Superior Courts of the State of Arizona by reason of the Court’s disposition in this case; and no speedy remedy by appeal appearing available to the State except by application to the Supreme Court for a Special Writ; and good reason appearing therefore, It Is Ordered that a stay in the Court’s order vacating the judgment is necessary and proper, It is Ordered that unless this Court is otherwise enjoined or prohibited, it will enter judgment on July 1st, 1970, vacating the judgment of the Justice of the Peace Court, No. 1 precinct, adjudicating- the defendant guilty of the offense of driving while under the influence of an intoxicating liquor on the ground that said Justice Court lacked jurisdiction to enter such judgment.” The question involved is whether § 36-142 increases the maximum penalty for driving a car while under the influence of intoxicating liquor to more than three hundred dollars, thereby exceeding the jur isdiction of the justice court. § 36-142 reads as follows: “36-142. Imposing additional percentage of certain fines as part of fine; disbursement of proceeds “A. In addition to every fine imposed against a person for driving or being in actual physical control of a vehicle while he is under the influence of intoxicating liquor or drugs, in violation of section 28-692, or for being drunk and disorderly, in violation of section 13-379, an additional ten per cent of the amount of the fine imposed shall be imposed by the court as a part of the fine. “B. Notwithstanding any other provision of law to the contrary, the ten per cent added part of each such fine shall be transmitted by appropriate authorities to the state treasurer on or before the tenth day of each month, for deposit in the same account in which is deposited funds appropriated to the state department of health for use in administering the provisions of section 36-141. All monies deposited in such account under the provisions of this section are appropriated as a continuing appropriation to the State department of health, to be exempt from the provisions of section 35-173, relating to quarterly allotments, and shall be used by the department in administering the provisions of section 36-141.” In Frazier v. Terrill, 65 Ariz. 131, 175 P.2d 438, the question of the jurisdiction of the justice court was involved under § 57— 126, A.C.A., 1939, as amended by Chapter 52, Laws of 1945, which provided that: “Any person who takes, possesses, transports, buys, sells, or offers for sale, any deer, * * * shall be guilty of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars nor more than three hundred dollars, * *; and in addition thereto, is liable to an additional penalty of fifty dollars for each animal or part thereof, or fish, or bird, taken, destroyed, possessed, transported, * * * ” The maximum fine was provided as $300, and the penalty was in addition thereto. In determining that the justice court had jurisdiction, this Court held the additional sum was a penalty collected under civil procedure and no part of the fine. We cannot agree with the “penalty” theory advanced by the state in its memorandum in the instant case: “It is Petitioner’s position herein, however, that the additional 10% sum imposed upon persons convicted of violating A.R.S. § 28-692 is not a fine in the nature of a criminal punishment, but rather constitutes an assessment of a 'penalty’, and hence does not enlarge the criminal punishment which may be imposed under A.R.S. § 28-692.01.” The statute specifically provides under “A” that “an additional ten per cent of the amount of the fine imposed shall be imposed by the court as a part of the fine,” and under “B” that “the ten per cent added part of each such fine shall be * * *.” In both “A” and “B” the additional ten per cent of the amount is specifically made a part of the fine, while in Frazier v. Terrill, supra, it was held to be a penalty. We agree with the attorney general that the act is ambiguous, but the ambiguity lies in whether the legislature intended for the ten per cent to increase the fine beyond the $300. Sec. 28-692.01 provides for punishment on a first conviction for driving a car while under the influence of alcoholic liquor by “not less than ten days, nor more than six months, by a fine of not less than one hundred dollars nor more thán three hundred dollars, or both.” In a second or subsequent offense, the maximum fine is also $300. The question then is whether § 28-692.01 providing for a maximum of a $300 fine was amended by implication in the enactment of § 36-142. The same prin ciple would be applicable to a violation of § 13-379. Sec. 36-142 made no reference to the minimum or maximum of the fine that could be imposed. This involves a very basic rule of statutory construction. The general rule is that the court may look to prior and contemporaneous statutes in construing the meaning of a statute which is uncertain and on its face susceptible to more than one interpretation. If reasonably practical, a statute should be explained in conjunction with other statutes to the end that they may be harmonious and consistent. If the statutes relate to the same subject or have the same general purpose — that is, statutes which arc in pari materia — they should be read in connection with, or should be construed together with other related statutes, as though they constituted one law. As they must be construed as one system governed by one spirit and policy, the legislative intent therefor must be ascertained not alone from the literal meaning of the wording of the statutes but also from the view of the whole system of related statutes. This rule of construction applies even where the statutes were enacted at different times, and contain no reference one to the other, and it is immaterial that they are found in different chapters of the revised statutes. In construing the statute, endeavors should be made to trace the history and legislation on the subject in order to ascertain the consistent purpose of the legislation. In Estate of Stark, 52 Ariz. 416, 82 P.2d 894, this Court has clearly set forth this rule: “We have repeatedly held that the cardinal rule of statutory construction is that we must, if possible, ascertain the intent of the legislature. There are many things which we are permitted and, indeed, required to take into consideration in ascertaining this, such as the language used, its grammatical construction, other statutes in pari materia, the general policy of the state, and many other well known rules of construction. * * * ” In Peterson v. Flood, 84 Ariz. 256, 326 P.2d 845, in holding that the justice court had authority to suspend sentence, we said: “There is further reason for construing the procedure outlined in section 13-1657, supra, as being applicable to justice courts. Under the rule that statutes dealing with the same subject should read together and harmonized [sic] if at all possible, * * * [cases cited.]’’ In the later case of Desert Waters, Inc. v. Superior Court, 91 Ariz. 163, 370 P.2d 652, we re-affirmed this rule when we said: “Statutes that are in pari materia should be read together and harmonized if at all possible, Peterson v. Flood, 84 Ariz. 256, 326 P.2d 845 (1958). When statutes relate to .the same subject matter, the later enactment, in the absence of any express repeal or amendment therein, is held to have been enacted in accord with the legislative policy embodied in the earlier statute, Frazier v. Terrill, 65 Ariz. 131, 175 P.2d 438 (1947) : United States v. State of Arizona, 295 U.S. 174, 55 S.Ct. 666, 79 L.Ed. 1371 (1935). In so far as the provisions of a special statute are inconsistent with those of a general statute on the same subject, the special statute will control, Knape v. Brown, 86 Ariz. 158, 342 P.2d 195 (1959) ; Whitfield Trans., Inc. v. Brooks, 81 Ariz. 136, 302 P.2d 526 (1956). The general statute remains applicable, however, to all matters not dealt with in the specific statute, * * * ” In the case of City of Mesa v. Salt River Project Agr. Imp. & P. Dist., 92 Ariz. 91, 373 P.2d 722, we said: “ * * * While a statute may be repealed by implication as well as by direct language, such repeals are not favored and will not be indulged if there is any other reasonable construction. Southern Pac. Co. v. Gila County, 56 Ariz. 499, 109 P.2d 610. It is only when by no reasonable construction can two statutes be operative that the latter act repeals the former by implication. Burn side v. Douglas School Dist. No. 27, 33 Ariz. 1, 261 P. 629.” See also United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. 40; Ard v. State, 102 Ariz. 221, 427 P.2d 913; Frazier v. Terrill, supra; Ariz. Corp. Comm. v. Gem State Mut. Life Assn., 72 Ariz. 403, 236 P.2d 730; Isley v. School Dist. No. 2 Maricopa Co., 81 Ariz. 280, 305 P.2d 432; State v. McGriff, 7 Ariz.App. 498, 441 P.2d 264; cases cited in 82 C.J.S. Statutes § 366, at page 803 et seq. The 1927 act provided for a fine of not less than $200 nor more than $500, Laws 1927, Chap. 6. This section was carried forward in the Revised Statutes of 1928, Sec. 1688. In 1935, the legislature amended the punishment provisions by making imprisonment in jail the sole punishment. Laws of 1935, Chap. 33. In the Laws of 1950, 1st Session, Chap. 3, which were carried in Ariz.Rev. Statutes § 28-692 (1956), the punishment was changed to a fine of not less than $100 nor more than $300 on the first conviction, and on a second conviction not more than $1,000. This was amended in 1959 by decreasing the maximum fine from $1,000 to $300 upon a second conviction. In contrast, the provisions of the Revised Statutes of 1913, Sec. 1308, limiting the jurisdiction of the justice courts to fines not exceeding $300, have remained substantially the same. Section 22-301, A.R.S., Revised (1956). It is therefore evident that the legislature found that the public interest was better served by reducing the maximum fine so as to give the justice courts jurisdiction of such offenses. This reduced the congestion in the superior courts, and provided an expeditious method of handling these cases. This past history makes it clear that had the legislature intended to increase the maximum fine provided for in § 28-692, it would have done so directly, as was done in the reductions of the fines in the past. Section 36-141 grants authority to contract and pay for alcohol and drug-abuse services, and § 26-142 relates only to the means of financing the program. No reference is made to the maximum fine. There is nothing in the act to indicate in any way that the legislature gave any consideration to raising the maximum penalty. It is therefore evident that the legislature did not have any intention to change the maximum fine or thereby deprive the justice court of jurisdiction, but only intended to provide a means of raising money to carry out the program. This is made apparent by subsection B of § 36-142, where the legislature refers to this as “a continuing appropriation.” This is the only reasonable construction whereby all the statutes can be harmonized, and is in accord with the rule set forth in Desert Waters, Inv. v. Superior Court, supra, that the general statute remains applicable to all matters not dealt with in the specific statute. It is also consistent with the rule set forth in Frazier v. Terrill, supra: “The intent of the legislature when a statute is found to be ambiguous may be gathered from statutes relating to the same subject matter — statutes in pari materia. On the presumption that whenever the legislature enacts a provision it has in mind the previous statutes relating to the same subject matter, it is held that in the absence of any express repeal or amendment therein, the new provision was enacted in accord with the legislative policy embodied in those prior statutes, and they all should be construed together. * * * ” We accordingly hold the maximum fine under each of the statutes, including the additional ten per cent of the fine, may not exceed $300. The order of the Superior Court is vacated. LOCKWOOD, C. J., STRUCKMEYER, V. C. J., and UDALL and HAYS, JJ., concur.

OPINION THOMPSON, Judge. ¶ 1 Anthony Paul Newkirk (petitioner) challenges the denial of his request to allow a jury to find a prior conviction. Petitioner contends that Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005), resurrected the right to a jury trial on allegations of prior convictions. For the following reasons, we accept jurisdiction and deny relief. FACTUAL AND PROCEDURAL HISTORY ¶2 Petitioner was charged with driving under the influence. The state filed an allegation of a prior conviction. Petitioner requested a jury trial on the allegation of prior conviction. The trial court denied the request. Petitioner then filed this special action. JURISDICTION ¶ 3 The acceptance of jurisdiction in a special action is discretionary. King v. Superior Court, 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983) (citations omitted). We may accept special action jurisdiction when there is no other means of obtaining justice, id. (citing Nataros v. Superior Court of Maricopa County, 113 Ariz. 498, 557 P.2d 1055 (1976)), or where the issue is one of statewide importance, Citizens Clean Elections Comm’n v. Myers, 196 Ariz. 516, 517, 1 P.3d 706, 707 (2000). ¶4 Petitioner relies on Derendal to support his request for special action relief. The Arizona Supreme Court decided Derendal in January 2005. The issue is one of first impression that may have an impact on other cases. In addition, special action jurisdiction is appropriate to determine if there is a right to a jury trial. Campbell v. Superior Court, 186 Ariz. 526, 527, 924 P.2d 1045, 1046 (App.1996) (citing Mungarro v. Riley, 170 Ariz. 589, 590, 826 P.2d 1215, 1216 (App.1991)). We therefore accept jurisdiction. DISCUSSION ¶ 5 According to petitioner, defendants are entitled to jury trials on allegations of prior convictions. Arizona Revised Statutes (A.R.S.) § 13-604(P) (2004) provides that a prior conviction is to be found by the court. See also Ariz. R.Crim. P. 19.1(b)(2) (stating that trial court shall determine allegation or prior conviction). In State v. Quinonez, 194 Ariz. 18, 20, ¶ 12, 976 P.2d 267, 269 (App.1999), we upheld the constitutionality of A.R.S. § 13-604(P) and clarified that prior conviction trials were no longer jury eligible. ¶ 6 In Quinonez, the defendant requested a jury trial on an allegation of a historical prior felony conviction, and the trial court denied the request under A.R.S. § 13-604(P). Id. at 19, ¶ 3, 976 P.2d at 268. The defendant argued that A.R.S. § 13-604(P) violated his constitutional right to a jury trial under the Sixth Amendment to the United States Constitution as well as Article 2, Section 24 of the Arizona Constitution. Id. at ¶ 4 (citation omitted). The court noted that the defendant had tradition on his side because, from at least 1887 to the 1996 amendment to A.R.S. § 13-604(P), Arizona granted a jury trial on an allegation of prior convictions to criminal defendants. Id. at ¶ 5 (citing State v. Armstrong, 103 Ariz. 174, 179-81, 438 P.2d 411, 416-18 (1968) (Bernstein, J., dissenting), vacated on other grounds, 103 Ariz. 280, 440 P.2d 307 (1968), and Arizona Penal Code of 1887, § 1714). The court noted that the majority in Armstrong agreed that the state constitutional provision guaranteeing the right to a jury trial was violated where a trial judge refused a defendant’s request for a jury trial on an allegation of a prior conviction. Id. at ¶ 6 (citing Armstrong, 103 Ariz. at 177, 438 P.2d at 414). Although Armstrong’s reference to the constitution seemed to support the defendant’s argument, Quinonez noted that the reference is dictum because in Armstrong the defendant admitted the prior conviction. Id. ¶7 The Quinonez court noted that more recent cases dispelled any notion that a constitutional right to a jury trial exists on an allegation of a prior conviction. Id. at 19-20, ¶ 6, 976 P.2d at 268-69. For example, in State ex rel. Neely v. Sherrill, 168 Ariz. 469, 472 n. 2, 815 P.2d 396, 399 n. 2 (1991), the court stated that the use of a jury to determine a prior conviction is not constitutionally mandated but only required by statute in Arizona. Quinonez, 194 Ariz. at 20, ¶ 7, 976 P.2d at 269. In State v. Hurley, 154 Ariz. 124, 127, 741 P.2d 257, 260 (1987), the Arizona Supreme Court stated that its research did not reveal any constitutional basis for the requirement of a jury trial on prior convictions in Arizona. Quinonez, 194 Ariz. at 20, ¶ 7, 976 P.2d at 269. In addition, Quinonez noted that the Ninth Circuit “squarely holds that a defendant has no right to a jury trial on a sentence-enhancing allegation of prior conviction.” Id. at ¶ 8 (citing United States v. Kinsey, 843 F.2d 383, 391-92 (9th Cir.1988) (distinguishing between enhancement statutes and substantive crimes and concluding that enhancements do not create criminal charges that necessarily guarantee a right to a jury)). 118 After reviewing these cases, Quinonez determined that, because a sentencing allegation is not a “constituent element” of a crime, the constitutional right of a jury trial does not apply to it. Id. at ¶ 9. The court held that, “[although, prior to 1996, the Arizona legislature traditionally granted criminal defendants the right to a jury trial on an allegation of historical prior felony conviction, that right is not guaranteed by the constitution, and its revocation does not offend the constitution.” Id. at ¶ 12 (citation omitted). ¶ 9 Petitioner argues that Derendal resurrects the right to have a jury find prior convictions. In Derendal, the defendant was charged with misdemeanor drag racing, and the trial court denied his request for a jury trial. 209 Ariz. at 417, ¶ 2, 104 P.3d at 148. The Arizona Supreme Court accepted review to determine when the Arizona Constitution mandates that a criminal offense be eligible for a jury trial. Id. at ¶ 4. The court formulated a two-part test to determine whether misdemeanor offenses were jury eligible. Id. at 425, ¶ 36, 104 P.3d at 156. The first inquiry is whether a statutory offense has a common-law antecedent that guaranteed a jury trial at the time of Arizona statehood. Id. If so, the inquiry ends, and the defendant has established a right to a jury trial. Id. If not, the court must analyze the seriousness of the offense under Article 2, Section 24 of the Arizona Constitution. Id. at ¶ 37. Under Derendal, a finding that an act is of moral turpitude, as previously set forth in Rothweiler v. Superior Court, 100 Ariz. 37, 42, 410 P.2d 479, 483 (1966), and State v. Harrison, 164 Ariz. 316, 317, 792 P.2d 779, 780 (App.1990), is no longer enough to afford a jury trial for an offense. Id. at ¶¶ 36-37. Therefore, Derendal does not expand the right to trial by jury but rather restricts it by no longer requiring jury trials for offenses of moral turpitude. ¶ 10 Petitioner contends that the Arizona Constitution’s provision that “the right to trial by jury shall remain inviolate” mandates that anything entitled to a jury trial at the time of statehood, such as an allegation of a prior conviction, still retains that right today. Petitioner argues that “[n]o matter what we call the issue that is on trial, if it was tried to a jury during territorial days, it is tried to a jury today.” A prior conviction, however, is not a common-law offense but rather a sentencing enhancement. See Apprendi v. New Jersey, 530 U.S. 466, 485-87, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (quoting McMillan v. Pennsylvania, 477 U.S. 79, 87-88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)) (sentencing enhancement does not create a separate offense calling for a separate penalty). Petitioner’s attempt to liken an allegation of a prior conviction to a common-law offense that retains the right to a jury trial under Deren-dal — because it enjoyed the right to jury trial before Arizona’s statehood — fails. ¶ 11 According to petitioner, because Qui-nonez acknowledges that prior convictions were tried to juries from 1887 to 1996, 194 Ariz. at 19, ¶ 5, 976 P.2d at 268, and Deren-dal holds that a defendant is entitled to a jury if the crime was jury eligible at the time of statehood, 209 Ariz. at 425, ¶ 36, 104 P.3d at 156, defendants retain the right to a jury determination of prior convictions. Deren-dal, however, did not address sentencing enhancements or whether an allegation of prior conviction is jury eligible. Rather, it only directed trial courts in determining whether a misdemeanor offense is jury eligible. Id. at 425-26, ¶ 40, 104 P.3d at 156-57. ¶ 12 As Quinonez and the cases that court cites make clear, the right to a jury trial on an allegation of prior conviction was statutory under both the territorial penal code and Arizona Revised Statutes until 1996. Thus, an allegation of prior conviction has no common-law antecedent that would require a jury under Derendal. ¶ 13 In Blakely v. Washington, 542 U.S. 296, -, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403 (2004) (citing Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435), the United States Supreme Court reaffirmed that “the fact of a prior conviction” need not be found by a jury to satisfy the United States Constitution. Apprendi notes that, when the sentencing enhancement is the fact of prior conviction, “the certainty that procedural safeguards attached to any ‘fact’ of prior conviction ... mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” 530 U.S. at 488, 120 S.Ct. 2348 (citing Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)). ¶ 14 Petitioner has not established the right to a jury trial on an allegation of a prior conviction, and the trial court did not err in denying his request for a jury trial on that basis. CONCLUSION ¶ 15 For the foregoing reasons, we accept special action jurisdiction and deny relief. DONN KESSLER, Presiding Judge, and PATRICK IRVINE, Judge, concur.

OPINION LANKFORD, Judge. ¶ 1 Juvenile Daniel A. appeals the disposition committing him to the Arizona Department of Juvenile Corrections (“ADJC”) for a minimum of six months. Juvenile submits two contentions on appeal: (1) the disposition was unlawful and (2) the commitment violates his constitutional right to be free from cruel and unusual punishment. For the following reasons, we affirm the disposition. ¶2 We view the facts in the light most favorable to affirming the findings of the superior court. See Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994). The facts are as follows. In the past three years, Juvenile has had seven referrals to juvenile court. These referrals include theft of means of transportation, truancy, simple assault with intent to cause physical injury, and multiple counts of possession of drug paraphernalia, unlawful use of means of transportation, and theft. Juvenile was also charged with multiple probation violations. The violations alleged include using illegal substances on several occasions and failing to cooperate in drug testing and counseling, attend school, remain at home, and provide his address when moving. The court issued three warrants because of Juvenile’s failure to appear at hearings. ¶ 3 Juvenile admitted to attempted unlawful use of means of transportation, unlawful use of means of transportation, simple assault, and probation violations. The court ordered Juvenile committed to the ADJC. ¶4 Juvenile timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 8-235(A) (Supp. 2004) and 12-120.21(A)(1) (2003). ¶ 5 Juvenile argues that the disposition was unlawful because the court not only ordered commitment to the ADJC, but directed that Juvenile attend school and programs for substance abuse and anger management. Juvenile contends that the error requires vacating the entire disposition. ¶ 6 The juvenile court cannot direct the ADJC to provide specific services to a juvenile during commitment. However, this error does not invariably require that the commitment decision be vacated. ¶ 7 The juvenile court lacks authority to impose terms upon a commitment, according to H.M.L. v. State, 131 Ariz. 385, 641 P.2d 873 (App.1981). However, that decision rested on statutory language later amended by the Arizona Legislature. At the time, former A.R.S. § 8-241(A)(2)(e) (1988) allowed commitment “[t]o the department of [juvenile] corrections ... without further directions as to placement by that department.” H.M.L. interpreted the statute to prohibit any directions. 131 Ariz. at 388, 641 P.2d at 876. ¶ 8 We must determine whether later statutory amendments undercut the holding of H.M.L. In 1994, the statute was amended to expressly permit the court to impose a single term when committing a juvenile to the ADJC, a direction concerning the duration of secure care. That version authorized the court to commit a juvenile To the department of youth treatment and rehabilitation without further directions as to placement by that department. From and after September 30, 1995, the court may make further directions as to placement by the department concerning the child’s length of stay in secure care. A.R.S. § 8-241(A)(2)(e) (1994). This version retained the prohibition on other further directions as to placement. ¶ 9 The 1994 version was short-lived. In 1997, the Legislature again amended the provision, deleting specific references to “further directions as to placement” and stating simply that the court could commit a juvenile “[t]o the department of [juvenile] corree- tions.” A.R.S. § 8-241(A)(2)(e) (1997). This version, renumbered as A.R.S. § 8-341(A)(1)(e) (Supp.2004), is the current statute and applies in this case. If 10 The Legislature thus forbid the juvenile courts from directing placement for committed juveniles, then. authorized a direction only as to the length of stay in secure care, and finally deleted any reference to the matter. Legislative history provides no further guidance. We nevertheless must determine the meaning of the statute. In doing so, “[o]ur primary goal ... is to determine and give effect to legislative intent.” State v. Flynt, 199 Ariz. 92, 94, ¶ 5, 13 P.3d 1209, 1211 (App.2000). We hold that the latest version expresses legislative intent to award full custody and control to the ADJC after commitment, depriving the court of the authority to impose terms in the commitment. V11 The Legislature’s intent is illuminated by related statutes. “[Wjhenever possible we adopt a construction of a statute that reconciles it with other statutes and gives force to all statutes involved.” Achen-Gardner, Inc. v. Superior Court, 173 Ariz. 48, 54, 839 P.2d 1093, 1099 (1992). ¶ 12 Related statutes reveal that the juvenile court cannot direct the ADJC to provide Juvenile with specific services. When the court commits a juvenile to the ADJC, it awards custody of the juvenile to the ADJC. See A.R.S. § 8-341 (A)(1)(e) (“After receiving and considering the evidence on the proper disposition of the case, the court may ... award a delinquent juvenile ... [t]o the department of juvenile corrections.”). After the juvenile is committed to the ADJC, it has the right to control the juvenile. “From the time of commitment to the department of juvenile corrections, a juvenile shall be subject to the control of the department of juvenile corrections until the juvenile’s absolute discharge or until expiration of the commitment on the juvenile’s eighteenth birthday.” A.R.S. § 8-246(A) (Supp.2004). Moreover, the programs to be employed to assist the juvenile are determined by the ADJC and not the court. “The department shall develop for each committed youth an individual treatment plan based on a diagnostic psychological evaluation and educational assessment received from the court____” A.R.S. § 41-2815(A) (2004). The current statute defining the juvenile court’s power authorizes it only to commit and to order the minimum length of juvenile’s stay. A.R.S. § 8-341(L). These statutes indicate that only the ADJC can determine the services the juvenile receives during commitment. ¶ 13 We must now decide whether the juvenile court’s error in directing specific services without authority requires that we vacate the entire disposition, including the commitment to the ADJC, rather than vacating only the improper directions. Juvenile argues that H.M.L. requires that we vacate the order and remand for a new disposition. In H.M.L., the juvenile court ordered the juvenile committed to Adobe Mountain School for evaluation, and if necessary, care and treatment for up to 90 days. H.M.L., 131 Ariz. at 387, 641 P.2d at 875. In addition, “the commitment was not to commence until ‘immediately after the termination of ... the semester of school.’ ” Id. The Court of Appeals held that the juvenile court erred in the disposition. Id. at 388, 641 P.2d at 876. The result was a remand for the juvenile court to “have the opportunity to reconsider its disposition.” Id. ¶ 14 The H.M.L. court did not further explain why it remanded to reconsider the entire disposition. However, the juvenile had been adjudicated delinquent for simple assault and disturbing the peace in a single “episode of juvenile ‘gang fighting.’ ” Id. at 386, 641 P.2d at 874. The juvenile apparently had no prior charges or delinquency adjudications. ¶ 15 In contrast, Daniel A has a history of numerous prior referrals and probation violations. The court clearly stated that the only option for Daniel A was commitment, a determination supported by the record. Moreover, Juvenile does not contest his commitment to the ADJC. ¶ 16 We are not compelled to vacate the entire disposition merely because a part of it was improper. We may modify a disposition by deleting the unlawful provision and sustaining the remainder. See Maricopa County Juv. No. J-86509, 124 Ariz. 377, 604 P.2d 641 (1979) (vacating term of commitment extending confinement beyond juvenile’s eighteenth birthday and otherwise affirming disposition); Maricopa County Juv. Action No. J-87631, 125 Ariz. 532, 611 P.2d 119 (App.1980) (modifying an order of commitment until age 21 to limit commitment to age 18). The commitment of Daniel A. is infirm only insofar as it added directions to the ADJC. We therefore remedy that defect by deleting those directions, and we affirm the commitment order as modified. ¶ 17 Juvenile further asserts that his commitment constitutes cruel and unusual punishment and therefore should be vacated. Juvenile’s counsel has unsuccessfully made this argument in more than twenty prior appeals to this Court. ¶ 18 Whatever the merits of the contention that the conditions of juvenile confinement in Arizona are intolerable, a direct appeal from commitment is not the appropriate method of challenge. See State v. Schutte, 117 Ariz. 482, 487, 573 P.2d 882, 887 (App.1977) (“Conditions at the State Prison may be the subject of judicial inquiry under certain circumstances but not in a sentencing proceeding following conviction.”). Juvenile is contesting neither the fact that he was committed to the ADJC nor the length of his commitment. Juvenile only complains about the conditions of confinement. ¶ 19 Juvenile may have other remedies. He may bring a civil rights action under 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (“[A] § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.”). In fact, Juvenile cites a § 1983 case. Weatherford v. State, 206 Ariz. 529, 532 n. 2, ¶ 7, 81 P.3d 320, 323 n. 2 (2003). An action under § 1983 is a civil action that must be brought separately, and cannot be raised as part of a juvenile delinquency proceeding. ¶ 20 Nor has Juvenile filed a petition for a writ of habeas corpus. See H.M.L., 131 Ariz. at 387, 641 P.2d at 875 (“The superior court acting by a judge other than the juvenile court judge may grant habeas corpus relief to a juvenile who is unlawfully held in custody.”). ¶ 21 A direct appeal is an unsuitable vehicle for such a claim for reasons well-stated by the Illinois Court of Appeals. The court rejected a direct appeal from commitment based on the argument that the confinement conditions were unconstitutional because the juvenile would not obtain appropriate drug treatment. In re J.A.G., 113 Ill.App.3d 140, 68 Ill.Dec. 697, 446 N.E.2d 868, 869-70 (1983). The court noted that eases holding unconstitutional the conditions of confinement of adults or juveniles “have consistently originated as [§ 1983] suits against officials of the institutions where the affected individuals were confined.” Id. 68 Ill.Dec. 697, 446 N.E.2d at 869 (citations omitted). ¶22 In those circumstances in which a juvenile challenges the conditions of confinement at a particular facility, direct appeals are inappropriate because the sentencing judge does not elect which facility will detain a juvenile, and a juvenile will normally not have specific knowledge of the confinement he faces. Id. Moreover, the ordinary remedy is an injunction abating the conditions, not the “unconditional release of the ... juvenile offenders.” Id. (citations omitted); see also Alexander S. v. Boyd, 876 F.Supp. 773, 799-805 (D.S.C.1995) (declining to order release of juveniles for constitutional violations and instead ordering a detailed plan as a remedy). As we held elsewhere in this opinion, the juvenile court cannot control the conditions of confinement. That responsibility falls to the ADJC, which has custody of juveniles during their confinement. Neither an objection to the disposition in juvenile court nor a direct appeal from the disposition is a proper means to challenge the conditions of confinement. ¶23 Because the juvenile court erred in directing the ADJC to provide specific services to Juvenile, we modify the disposition by deleting those directions to the ADJC. We affirm the juvenile court’s disposition as modified. CONCURRING: MAURICE PORTLEY, Presiding Judge and PHILIP HALL, Judge. . The juvenile court stated: [Tjhe Court has already made its record that you were zero tolerance, you failed to appeal, you have two prior felonies and misdemeanor simple assault, two violations of probation. You have already been on juvenile intensive probation. You have already been on probation. Your TASC record is abysmal. Terrible. Terrible. You have tested 32 times; you have only been clean seven. And your staffing was, of course, for you to go to a treatment facility. But now, you know, your warrant status, you know, doesn't bode well for you to be in a facility that isn't a locked-up facility, because who is to say — it looks to me like, and I am not a fortuneteller, but it looks to me like you would just run ... The least restrictive and most effective alternative for you is to go the Department of Corrections for not less than six months' period of time. . The Juvenile relies on a letter from the United States Department of Justice to the Governor of Arizona. Juvenile attached a copy of this letter to his notice of appeal. However, this document was not presented to the juvenile court. Rule 89(D)(1) of the Rules of Procedure for the Juvenile Court provides that the record on appeal consists of a certified copy of the transcript, certified copies of all pleadings, orders and other documents filed with the clerk of the superior court, the originals of all exhibits introduced into evidence, and other documents added pursuant to the rule. "New exhibits cannot be introduced on appeal to secure reversal.” Roberts v. Spear, 173 Ariz. 565, 567, 845 P.2d 491, 493 (App.1992). Juvenile did not file a motion to correct the trial court record, and did not contend that the letter had been erroneously omitted. See ARCAP 11(e).

OPINION MeGREGOR, Chief Justice. ¶ 1 We granted review to consider whether a reviewing court should consider a claim based upon Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), under a harmless error or a fundamental error standard when the defendant failed to raise the issue at trial. We hold that such claims should be reviewed for fundamental error. I. ¶ 2 Robert Allen Henderson lived with his 73-year-old mother, Marian Pyle, at her house. During an argument, Henderson assaulted Pyle. The assault continued until Pyle forced Henderson from her bedroom. The next morning, Pyle’s daughter arrived and Pyle left her bedroom. When Pyle’s daughter left the house, Henderson attacked Pyle again. The attack continued until sher iffs deputies arrived and arrested Henderson. The deputies observed that Pyle had abrasions on her face and nose, a chipped tooth, and cuts and abrasions on her hands. Pyle also complained of back injuries. ¶ 3 Henderson was indicted on one count of kidnapping, Ariz.Rev.Stat. (A.R.S.) § 13-1304 (2001), one count of assault, A.R.S. § 13-1203 (2001), and one count of threatening or intimidating, A.R.S. § 13-1202 (2001). The jury convicted Henderson of assault and threatening or intimidating. The jury did not convict him of kidnapping, but did find him guilty of the lesser included offense of unlawful imprisonment, A.R.S. § 13-1303 (2001). ¶4 Pursuant to A.R.S. § 13-702.01.A (2001), the trial judge imposed a “super-aggravated” sentence for the unlawful imprisonment conviction. Unlawful imprisonment is a class 6 felony that carries a presumptive term of one year. A.R.S. § 13-701. C.5 (2001). Section 13-702.A (2001) permits a sentencing court to increase or reduce the presumptive sentence and mandates that any increase or decrease be based on the “aggravating and mitigating circumstances” contained within that same section. Id. The maximum term that a judge can impose under section 13-702.A for a class 6 felony is 1.5 years. Id. Section 13-702.01.A, however, provides that a judge can increase the sentence for a class 6 felony to two years, providing that the court “finds [ ] at least two substantial aggravating factors listed in § 13-702, subsection C.” ¶ 5 The trial court found three aggravating circumstances that fit within the list of statutory aggravators codified in A.R.S. § 13-702. C: infliction or threatened infliction of serious physical injury, § 13-702.C.1; physical and emotional harm caused to the victim, § 13-702.C.9; and that the victim was over the age of sixty-five, § 13-702.C.13. Henderson did not object either to the fact that the court, not a jury, found the aggrava-tors or to the court’s decision to impose a super-aggravated sentence. ¶ 6 On appeal, Henderson alleged that the trial judge erred by not giving him proper credit for his presentence incarceration and also raised claims related to his Fifth Amendment privilege against self-incrimination. He did not raise any Sixth Amendment claims. ¶ 7 After Henderson submitted the case to the court of appeals, the United States Supreme Court issued its opinion in Blakely v. Washington, holding that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 542 U.S. at -, 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Sua sponte, the court of appeals ordered the parties to file supplemental briefs on the issues of whether Blakely applied to Henderson’s sentencing and, if so, whether the court should consider any Blakely error under a harmless error analysis. ¶ 8 The court concluded that Blakely did apply to Henderson’s direct appeal, which was pending at the time Blakely was decided. State v. Henderson, 209 Ariz. 300, 303 ¶ 9, 100 P.3d 911, 914 (App.2004). The court also concluded that Blakely error constitutes trial error, rather than structural error. Id. at 311 ¶ 34, 100 P.3d at 922. The court correctly noted the distinction between the two types of trial error, stating that “trial error to which an objection is made at trial is subject to a harmless error analysis” while “trial error to which no objection is made at trial is subject to a review for fundamental error.” Id. at 304 ¶ 13, 100 P.3d at 915. The court then applied the harmless error standard from State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (Ring III), holding that “judicial fact-finding ... may constitute harmless error if we can conclude beyond a reasonable doubt that no reasonable jury would fail to find the aggravating circumstance.” Henderson, 209 Ariz. at 311 ¶ 35, 100 P.3d at 922 (citations omitted). ¶ 9 The State contends that the court erroneously applied the harmless error standard to Henderson’s Blakely claim, because Henderson had not preserved his objection at trial. Specifically, the State argues that, under the correct fundamental error standard, Henderson must establish not only that fundamental error occurred but also that the error caused prejudice. See State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). ¶ 10 We granted review to determine whether the court of appeals erred in applying a harmless error standard to Henderson’s Blakely claim. We exercise jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and Rule 31.19 of the Arizona Rules of Criminal Procedure. II. ¶ 11 The parties no longer dispute several issues considered at earlier stages of this proceeding. First, neither party disputes that the .holding of Blakely applies to this case. In addition, as the State candidly conceded at oral argument, Blakely error clearly occurred. A judge, not a jury, found facts that made Henderson eligible for an aggravated sentence and, in doing so, applied a lesser standard of proof than Blakely requires. Moreover, Henderson acknowledges that he made no trial objection that could be construed as raising any Blakely issue. ¶ 12 Finally, Henderson does not challenge the court of appeals’ conclusion that Blakely error constitutes trial, not structural, error, a conclusion with which we agree. As we held in Ring III, there are “relatively few instances in which we should regard error as structural.” 204 Ariz. at 552 ¶ 46, 65 P.3d at 933. Structural errors, as opposed to trial errors, are those which “deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for guilt or innocence.” Id. at ¶ 45 (quoting Neder v. United States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (internal quotations omitted)). Additionally, errors are considered structural rather than trial errors when they “affect the ‘entire conduct of the trial from beginning to end,’ ” and thus taint “ ‘the framework within which the trial proceeds.’ ” State v. Anderson, 197 Ariz. 314, 323 ¶ 22, 4 P.3d 369, 378 (2000) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). We previously have held that we will analyze Apprendi error as trial error, rather than as structural error. See State v. Sepahi, 206 Ariz. 321, 324 n. 3, ¶ 19, 78 P.3d 732, 735 n. 3 (2003); see also Ring III, 204 Ariz. at 555 ¶ 53, 65 P.3d at 936. In Ring III, we held that, in the capital context, “Arizona’s failure to submit [aggravating factors] to the jury does not constitute structural error.” Id. at 552 ¶ 44, 65 P.3d at 933. We have been asked to revisit this question on several occasions and have declined to do so. See, e.g., State v. Murdaugh, 209 Ariz. 19, 30 ¶ 50, 97 P.3d 844, 855 (2004); State v. Montaño, 206 Ariz. 296, 297 ¶ 3, 77 P.3d 1246, 1247 (2003); State v. Sansing, 206 Ariz. 232, 235 ¶ 5, 77 P.3d 30, 33 (2003). ¶ 13 Ring III however, considered only the Sixth Amendment violation caused by submitting factual questions legally essential to expose a defendant to a maximum sentence to the wrong factfinder. The aggravating facts used to enhance Henderson’s sentence were found by a judge instead of by a jury. As we held in Ring III, that procedure violated Henderson’s Sixth Amendment right to a jury trial. See 204 Ariz. at 545 ¶ 12, 65 P.3d at 926; see also Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In addition, however, the trial judge here applied a preponderance standard to find the aggravators, rather than the constitutionally required standard of beyond a reasonable doubt. This procedure violated the Fifth Amendment. See, e.g., In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (holding that Due Process Clause of the Fifth Amendment puts the burden on the prosecution to prove all elements of all charges beyond a reasonable doubt). ¶ 14 Before the court of appeals, Henderson relied primarily upon Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), in arguing that the failure to apply the proper standard of proof to the determination of aggravating factors legally essential to his punishment constitutes structural error requiring automatic reversal. In Sullivan, the United States Supreme Court held that submitting a case to a jury under a constitutionally deficient reasonable doubt instruction “vitiate[d] all the jury’s findings” because the jury had returned no verdict of guilty beyond a reasonable doubt. Id. at 281, 113 S.Ct. 2078. Because no actual jury verdict exists in such cases upon which the harmless-error scrutiny can operate, the Court concluded, the error “unquestionably qualifies as ‘structural error.’ ” Id. at 282, 113 S.Ct. 2078. ¶ 15 The defendant in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), sought to expand the Sullivan holding to a situation in which the judge failed to submit one element of the charged offense to the jury. Neder argued that the failure to submit an element to the jury “prevented] the jury from rendering a ‘complete verdict’ on every element of the offense” and that the error therefore could not be reviewed for harmless error under Federal Rule of Criminal Procedure 52(a). Id. at 11, 119 S.Ct. 1827. Recognizing that part of the analysis in Sullivan appeared to support Neder’s argument, the Court concluded that “this strand of the reasoning in Sullivan ... cannot be squared with our harmless-error cases.” Id. Citing numerous cases, the Court held that the absence of a “complete verdict” does not necessarily preclude application of the harmless-error analysis. See id. at 11-12, 119 S.Ct. 1827 (citing cases). Thus, because “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” id. at 9, 119 S.Ct. 1827, the Court applied a harmless error analysis. ¶ 16 Recently, in Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003), the Court reiterated the critical distinction between the errors considered in Neder and in Sullivan: The error in Sullivan invalidated all of the jury’s findings, while the error in Neder impacted only the finding of a single element. Id. at 16, 119 S.Ct. 1827. When, as occurred in Neder, a jury is “precluded from determining only one element of an offense, ... harmless-error review is feasible.” Id. ¶ 17 As the court of appeals correctly noted, the Blakely error in this case much more closely resembles the error in Neder than that found in Sullivan. Henderson, 209 Ariz. at 309 ¶ 29, 100 P.3d at 920. Because a factual finding that is legally essential to expose a defendant to a maximum sentence operates as the “functional equivalent of an element,” Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348, a judge’s failure to ask a jury to find aggravating factors beyond a reasonable doubt is equivalent to the failure to require a jury to find every element of an offense. Like the errors in Neder and Mitchell, Blakely error does not infect the entire trial process. Therefore, it does not constitute structural error and may be reviewed using a trial error analysis. The question remaining is whether a reviewing court should consider Blakely claims such as that involved here under a fundamental error or a harmless error standard. ¶ 18 Reviewing courts consider alleged trial error under the harmless error standard when a defendant objects at trial and thereby preserves an issue for appeal. See State v. Totress, 107 Ariz. 18, 20, 480 P.2d 668, 670 (1971) (holding that without claim of error at trial, claim is waived); see also State v. Hardwick, 183 Ariz. 649, 653, 905 P.2d 1384, 1388 (App.1995) (holding that because trial court incorrectly allowed inadmissible evidence over objection, review was for harmless error). 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. See State v. Bible, 175 Ariz. 549, 588, 858 P.2d, 1152, 1191 (1993). ¶ 19 Fundamental error review, in contrast, applies when a defendant fails to object to alleged trial error. Id. at 572, 858 P.2d at 1175 (holding that only fundamental error may be raised for the first time on appeal). The scope of review for fundamental error is limited. A defendant who fails to object at trial forfeits the right to obtain appellate relief except in those rare cases that involve “error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.” Hunter, 142 Ariz. at 90, 688 P.2d at 982; see also State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991) (holding that fundamental error is that which is “clear, egregious and curable only via a new trial”). In addition, we place the burden of persuasion in fundamental error review on the defendant. We impose this additional limitation upon obtaining relief for fundamental error 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.” State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313, 317-18 (1989). ¶ 20 To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice. See Gendron, 168 Ariz. at 155, 812 P.2d at 628; see also Hunter, 142 Ariz. at 90, 688 P.2d at 982 (holding that defendant must prove fundamental error exists, and is of such magnitude that he could not have received a fair trial); State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988) (holding that after determining that error occurred, a court must evaluate the prejudicial nature of the error). Our requirements for establishing a right to relief for fundamental error are not unique. Other jurisdictions that apply fundamental error review also have held that a defendant must establish prejudice to qualify for relief under that standard of review. See, e.g., Reed v. State, 837 So.2d 366, 370 (Fla.2002) (holding that for error to be fundamental it must follow that the error prejudiced the defendant); Corcoran v. State, 739 N.E.2d 649, 655 (Ind.2000) (holding that for fundamental error to exist, court “must find that [the error] so prejudiced the defendant’s rights as to make a fair trial impossible.”); In re Harris, 164 Vt. 628, 671 A.2d 1278, 1279 (1995) (holding that petitioner must establish fundamental error and that such error prejudiced him to prevail). ¶ 21 We note that prior appellate decisions have not consistently described the showing necessary to establish fundamental error. Compare King, 158 Ariz. at 424, 763 P.2d at 244 (holding that error is fundamental if it may have contributed to the verdict), with State v. Thomas, 130 Ariz. 432, 436, 636 P.2d 1214, 1218 (1981) (holding that error is not fundamental if it did not “contribute significantly” to the verdict). Our decision in Ring III also may have contributed to the confusion on this issue. In that decision, this Court and counsel agreed that we should address a number of issues, including whether we should review Ring II error as structural or harmless error. Ring III, 204 Ariz. at 544 ¶ 6, 552 ¶ 44, 65 P.3d at 925, 933. The parties did not brief, and this Court did not consider, whether we should apply the fundamental error standard rather than the harmless error standard. We granted review in this case in part to dispel any confusion created by prior decisions. To the extent that any prior decisions are inconsistent with today’s holding, we disapprove of them. ¶22 We review the Blakely error that occurred here under a fundamental error standard because Henderson did not object at trial. Hence, Henderson, not the State, bears the burden of establishing both that fundamental error occurred and that the error caused him prejudice. III. A. ¶ 23 To obtain relief under the fundamental error standard of review, Henderson must first prove error. As previously noted, the State concedes that Apprendi/Blakely error occurred. ¶ 24 Because the parties concede that error occurred, we next consider whether this error was fundamental. To establish fundamental error, Henderson must show that 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 have received a fair trial. Hunter, 142 Ariz. at 90, 688 P.2d at 982. ¶ 25 In this case, as previously noted, error exists on two levels. First, the aggravating facts used to enhance Henderson’s sentence were found by a judge instead of a jury, violating Henderson’s Sixth Amendment right to a jury trial. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In addition, the trial judge applied a preponderance standard, not the constitutionally required standard of beyond a reasonable doubt, violating Henderson’s Fifth Amendment rights. See Winship, 397 U.S. at 364, 90 S.Ct. 1068. We have found similar error to constitute fundamental error. See, e.g., Hunter, 142 Ariz. at 90, 688 P.2d at 982 (1984) (holding that improper burden shifting to a defendant constitutes fundamental error); State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992) (same). Indeed, it is difficult to conceive that use of a procedure that denied rights guaranteed both by the Fifth and by the Sixth Amendments to the United States Constitution could be other than fundamental error. Because the sentencing procedure followed denied Henderson the right to have certain facts decided by a jury beyond a reasonable doubt, we conclude that the procedure utilized went to the foundation of Henderson’s case. We therefore hold that fundamental error occurred. B. ¶ 26 Having shown that fundamental error occurred, Henderson must demonstrate that the error caused him prejudice. Fundamental error review involves a fact-intensive inquiry, and the showing required to establish prejudice therefore differs from case to case. Bible, 175 Ariz. at 572, 858 P.2d at 1175; see also State v. Allen, 157 Ariz. 165, 171-72, 755 P.2d 1153, 1159-60 (1988). The showing a defendant must make varies, depending upon the type of error that occurred and the facts of a particular case. See State v. Dann, 205 Ariz. 557, 572 ¶ 57, 74 P.3d 231, 246 (2003) (holding that defendant claiming error in being excluded from pretrial conferences must establish a right to attend those conferences and show his trial was prejudiced through his absence); Bible, 175 Ariz. at 572, 858 P.2d at 1175 (holding that in a case in which voir dire error is claimed, defendant must show how court should have conducted voir dire and how absence of such procedure prejudiced him); Hunter, 142 Ariz. at 90, 688 P.2d at 982 (holding that defendant must demonstrate how faulty jury instruction prejudiced him). ¶ 27 Because the nature of the error involved here deprived Henderson of the opportunity to require that a jury find facts sufficient to expose him to an aggravated sentence, Henderson must show that a reasonable jury, applying the appropriate standard of proof, could have reached a different result than did the trial judge. ¶ 28 Whether a defendant can make that showing depends upon the facts óf his particular case. In some cases, no Blakely error will have occurred because the factual finding or findings necessary to expose a defendant to an aggravated sentence will fall outside the Apprendi/Blakely analysis, will be implicit in the jury verdict, or will have been admitted by the defendant. In other cases, no Blakely error will occur because a jury, applying the beyond a reasonable doubt standard, will find those facts legally essential to expose a defendant to a defined sentencing range. The Sixth Amendment then allows a judge to find additional facts by a preponderance of the evidence, as long as the sentence imposed does not fall outside the statutorily prescribed sentencing range. State v. Martinez, 210 Ariz. 578 ¶¶ 26-27, 115 P.3d 618, 2005 WL 1594394 (2005). In this ease, some of the statutory aggravators legally essential to Henderson’s punishment were found by the trial court. We review for fundamental error to determine whether a reasonable jury, applying the correct standard of proof, could have failed to find the existence of each aggravator. If we find that a reasonable jury applying the correct standard of proof could have reached a different conclusion than did the trial judge as to any or all aggravators, we must then consider whether at least two aggravators not subject to such a conclusion remain to sustain the defendant’s super-aggravated sentence. See A.R.S. § 13-702.01 (requiring finding of two substantial aggravators for super-aggravated sentence). If not, the defendant has made an adequate showing of prejudice. ¶ 29 We consider the C.1 and C.9 aggravators together, as did the court of appeals. Henderson, 209 Ariz. at 311 ¶ 37, 100 P.3d at 922. Section C.1 requires infliction or threatened infliction of serious physical injury, and C.9 assumes physical and emotional harm caused to the victim. ¶ 30 The fact that the jury found Henderson not guilty of kidnapping under A.R.S. § 13-1304 strongly supports his argument that a jury could have reached a different conclusion as to these aggravators than did the judge. The difference between the kidnapping charge and unlawful imprisonment, A.R.S. § 13-1303, the lesser charge of which the jury convicted Henderson, is that the jury could have convicted Henderson of kidnapping only if it found, beyond a reasonable doubt, that Henderson intended to inflict serious injury upon his victim. See A.R.S. § 13-1304.A.3. Unlawful imprisonment, in contrast, does not include violence as an element. By convicting Henderson of unlawful imprisonment rather than kidnapping, the jury arguably distinguished between the crimes on the basis of violence, the only element the two crimes do not share. ¶ 31 In aggravating Henderson’s sentence for unlawful imprisonment, however, the trial judge found that the crime was of a violent nature and that the victim suffered trauma and injuries. Blakely involved a similar circumstance. There, the defendant pled guilty to second-degree kidnapping. 542 U.S. at -, 124 S.Ct. at 2534. The trial judge then found that the defendant had acted with deliberate cruelty and aggravated his sentence. Id. at -, 124 S.Ct. at 2535-36. The Supreme Court noted that the aggravating factor of deliberate cruelty was essentially the same as the element that separated second-degree kidnapping from first-degree kidnapping, the charge that the defendant pled guilty to avoid. Id. at -, 124 S.Ct. at 2539. Thus, Blakely was exposed to the sentence for which he would have been eligible had the jury actually convicted him of the greater crime. Id. ¶ 32 A similar situation occurred here. By finding the presence of the C.1 and C.9 aggravators, the trial judge made a finding at least arguably contrary to the facts found by the jury. Given the jury’s failure to convict Henderson of kidnapping, we conclude that a reasonable jury, applying the correct burden of proof of beyond a reasonable doubt, could have found differently than did the trial judge as to the C.1 and C.9 aggravators. ¶33 The trial judge also found the existence of a third aggravating factor listed in section 13-702, that Henderson’s victim was over the age of sixty-five. A.R.S. § 13-702.-C.13. This fact was not disputed; no reasonable jury could have failed to find the existence of this aggravator beyond a reasonable doubt. ¶34 Section 13-702.01, however, requires that a trial judge find the existence of at least two substantial aggravators under section 13-702.C. Because the victim’s age, by itself, could not expose Henderson to the super-aggravated sentence of section 13-702.01, Henderson has demonstrated that the fundamental error in his case caused him prejudice. ¶35 Normally, in such a situation, we would remand this case to the superior court for re-sentencing. Because Henderson has been released from prison and has finished his term of community supervision, however, remand is no longer appropriate. IV. ¶ 36 For the foregoing reasons, the opinion of the court of appeals is vacated in part and affirmed in part. The superior court conviction is affirmed. CONCURRING: REBECCA WHITE BERCH, Vice Chief Justice, MICHAEL D. RYAN, Justice, ANDREW D. HURWITZ, Justice, CHARLES E. JONES, Justice (Retired). . The court did not make explicit references to A.R.S. § 13-702.C when sentencing Henderson. Rather, the court made the following statement: Mr. Henderson, 1 was here at your trial. I heard the testimony. I observed the witnesses testify, and in aggravation I find that the violent nature of the facts of this case are aggravating. The trauma that you’ve caused Ms. Pyle and the injuries that you’ve caused her are aggravating. I find, in aggravation, Ms. Pyle’s age. I further find in aggravation that you have no remorse whatsoever for any of these offenses. I find in aggravation your statements that you made to me today. I don’t have to consider the allegations that would have been presented on acts that are unrelated to the crimes that you committed on March 15, 2003 to find that this crime here, all by itself, warrants a super aggravated sentence, and the most I can give you under this crime is two years, and so that’s what I’m going to do. . Henderson initially contended that this appeal is moot because he has been released from prison. The State conceded that the case is moot, but nonetheless urged us to take review. As a general rule, this Court will not examine moot questions unless they present issues of great public importance or they are likely to recur. See David G. v. Pollard ex rel. County of Pima, 207 Ariz. 308, 309 ¶ 6, 86 P.3d 364, 365 (2004). This case meets both criteria. . Every federal circuit court of appeals has also held that Apprendi error may be reviewed as trial error. E.g., United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir.2003) ("An Apprendi error is not a 'defect affecting the framework within which the trial proceeds,’ but, rather, ‘simply an error in the trial process itself.’ ”) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir.2002) (subjecting an alleged Apprendi error to harmless error review); United States v. Henry, 282 F.3d 242, 252 (3d Cir.2002) (same); United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.2001) (evaluating Apprendi claim under plain error doctrine); United States v. Matthews, 312 F.3d 652, 665 (5th Cir.2002) (holding that Apprendi error is susceptible to harmless error review); United States v. Stewart, 306 F.3d 295, 322-23 (6th Cir.2002) (same); United States v. Trennell, 290 F.3d 881, 890 (7th Cir.2002) (holding Apprendi error harmless); United States v. Frazier, 280 F.3d 835, 855-56 (8th Cir.2002) (evaluating Apprendi claim under plain error doctrine); United States v. Velasco-Heredia, 319 F.3d 1080, 1085-86 (9th Cir.2003) (applying harmless error analysis); United States v. Lott, 310 F.3d 1231, 1240 (10th Cir.2002) (applying plain error analysis to Apprendi claim); United States v. Suarez, 313 F.3d 1287, 1293 (11th Cir.2002) (holding Apprendi error harmless); United States v. Lafayette, 337 F.3d 1043, 1052 (D.C.Cir.2003) (same). . Justice Stevens’ dissent to United States v. Booker similarly recognizes that not all judicial factfinding related to sentencing violates constitutional guarantees: ”[J]udicial factfinding to support an offense level or an enhancement is only unconstitutional when that finding raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.” - U.S. -, -, 125 S.Ct. 738, 775, 160 L.Ed.2d 621 (2005) (Stevens, J., dissenting in part) (emphasis omitted).

OPINION SULT, Judge. ¶ 1 While' off-duty, Appellant Elizabeth Espinoza, a Phoenix firefighter and emergency medical technician, stopped to render assistance at the scene of an accident involving Appellees John and Debra Schulenburg and their daughter, Carrington. Espinoza was injured at the scene by another driver and later instituted this action, which included the Schulenburgs as defendants under the rescue doctrine. However, the trial court held that the fireman’s rule precluded Espinoza from attempting to impose liability on the Schulenburgs and dismissed them as defendants. ¶2 In this opinion, we reiterate and enforce the principle that in Arizona, the fireman’s rule as an exception to the rule of liability reflected in the rescue doctrine is to be applied narrowly. Because we find that the trial court’s application of the rule violates this principle, we reverse the trial court’s judgment. In so doing, we hold that the fireman’s rule will not bar an off-duty firefighter or law enforcement agent from seeking recovery for injuries sustained while undertaking a rescue or rendering aid, if the professional is acting truly as a volunteer and is not under an employment mandate to respond when off-duty. BACKGROUND ¶ 3 On February 10, 2002, Carrington Schulenburg was driving on State Route 101 with her parents, John and Debra Schulen-burg, as passengers when they were involved in an automobile collision. Espinoza, a Phoenix firefighter/EMT was driving home with her nine-year-old daughter when she came upon the scene. Espinoza’s normal duties as a firefighter/EMT included driving a fire truck, providing medical assistance at fires or accident scenes, and attaching fire hoses. Espinoza stopped and offered her assistance to a Department of Public Safety officer who was already present. At the direction of the officer, Espinoza attended to the Schulen-burgs. She inquired of the Schulenburgs if they were in need of medical attention and then instructed them to move away from their vehicle. ¶ 4 The Schulenburg vehicle had come to rest partly on the left side shoulder and partly in the left through lane. Espinoza leaned into the vehicle to activate its emergency flashers, and as she did so, a vehicle driven by Casey John Barnett struck the rear of the vehicle. Espinoza sustained a broken hip, broken wrist, torn knee ligaments, a broken finger, and other injuries. She applied for and received workers’ compensation benefits. ¶ 5 Espinoza filed suit against the Schulen-burgs, Barnett, and DPS for negligence. Espinoza alleged that Carrington Schulenburg’s negligence in causing the initial collision was a direct and proximate cause of her injuries because it resulted in Espinoza’s stopping at the scene to render assistance. John and Debra Schulenburg were included on a theory of negligent entrustment, Espinoza asserting that they permitted their daughter to drive knowing that she was not properly licensed. ¶ 6 The Schulenburgs moved for summary judgment arguing that the fireman’s rule precludes a firefighter or police officer who is injured while providing professional services from suing the person whose negligence made necessary the rendering of those services. Espinoza filed a cross-motion arguing that the rule should not apply to her because she was off-duty when she rendered assistance and encountered a greater risk of injury than she would have had she been on-duty. ¶ 7 The trial court found Espinoza’s claim barred by the fireman’s rule and dismissed all claims against the Schulenburgs. The court entered judgment accordingly, including appropriate finality language pursuant to Rule 54(b), Arizona Rules of Civil Procedure, and Espinoza timely appealed. ANALYSIS ¶ 8 The rescue doctrine holds that an injured rescuer may recover damages from the original tortfeasor who negligently caused the event that precipitated the rescue. Orth v. Cole, 191 Ariz. 291, 293, ¶ 9, 955 P.2d 47, 49 (App.1998). The doctrine recognizes the natural human impulse to aid others in distress and rewards this impulse by including its manifestation within the realm of the forseeable results of a negligent act. Wagner v. International Railway Co., 232 N.Y. 176, 133 N.E. 437, 437-38 (1921). Thus, when a rescuer is injured in the process of rendering aid, that injury is considered proximately caused by the negligence of the original tortfeasor notwithstanding that the immediate cause may be an intervening act of negligence by another. Krause v. United States Truck Co., 787 S.W.2d 708, 710-11 (Mo.1990); see 1 Dan B. Dobbs, The Law of Torts § 184, at 456 (2001). ¶ 9 The fireman’s rule arose from different conceptual origins than the rescue doctrine, being based originally on premises liability and concerned only with the legal question of duty. Heck v. Robey, 659 N.E.2d 498, 501 (Ind.1995); Dobbs, supra § 285, at 769. When the fireman’s rule intersects the rescue doctrine, the former operates essentially as an exception to the latter’s imposition of liability by removing a professional firefighter injured while performing firefighting duties from the class of rescuers protected by the doctrine. Orth, 191 Ariz. at 293, ¶ 9, 955 P.2d at 49. ¶ 10 The rule was first recognized in Arizona in Grable v. Varela, 115 Ariz. 222, 564 P.2d 911 (App.1977), where it was employed to “negate[ ] liability to a fireman by one whose negligence causes or contributes to the fire which in turn causes the death or injury of the fireman.” Id. at 223, 564 P.2d at 912. In concluding that the fireman’s rule barred the on-duty firefighter’s claim, the Grable court noted that the rule was based primarily on policy considerations and, quoting the New Jersey Supreme Court, stated: It is the fireman’s business to deal with that very hazard and hence ... he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said that there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences. Id. (quoting Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 131 (1960)). ¶ 11 The rule was conceptually extended to police officers injured in the line of duty in Garcia v. City of South Tucson, 131 Ariz. 315, 318, 640 P.2d 1117, 1120 (App.1981). However, even though Garcia acknowledged the rule covered police officers, the court determined the rule should be applied narrowly. Thus, in considering the claim of the injured on-duty police officer against a third person not the original tortfeasor, the court declined to apply the rule because the claim was based on the independent negligence of the third person, not on the negligence of the person who caused the officer to be on the scene. Id. at 319, 640 P.2d at 1121. ¶ 12 Orth emphasized the narrow scope of the fireman’s rule when it declined to apply the rule to bar recovery by a firefighter injured while conducting a routine, unannounced safety inspection. 191 Ariz. at 292, ¶ 5, 955 P.2d at 48. Notwithstanding that the firefighter was on duty at the time, the court commented that to apply the rule to routine inspections would expand it beyond the original purpose. Id. at 293, ¶ 8, 955 P.2d at 49. Rather, the rule should be limited to actual emergency situations where the professional has no choice but to encounter the imminent danger, and it should not be applied to non-emergency activities where the professional can choose not to proceed if the danger presented is unreasonable. Id. at ¶ 10 (citing Gray v. Russell, 853 S.W.2d 928, 930-31 (Mo.1993)). ¶ 13 Arizona has yet to determine whether the fireman’s rule should apply when the public safety professional is off-duty but voluntarily attempts a rescue or renders aid. Addressing this omission, we find that to the extent the fireman’s rule bars recovery because the firefighter or police officer expects to encounter hazards while on the job, Grable, 115 Ariz. at 223, 564 P.2d at 912, or that he renders aid not from a humanitarian impulse to help but because he is being paid, Heck, 659 N.E.2d at 502, these justifications cannot support extending the rule to an off-duty public safety professional who makes a voluntary effort to assist. This type of effort is precisely what the rescue doctrine was designed to protect, and we can conceive of no public policy that would be advanced by precluding such a volunteer from the benefit of the rescue doctrine. To the contrary, Arizona’s narrow construction that confines the fireman’s rule within the framework of its original justifications dictates that we should not apply it to off-duty public safety professionals when they voluntarily attempt a rescue or render aid. ¶ 14 Before pronouncing our holding, however, we acknowledge that some off-duty professionals may be under an employment mandate to render aid in emergency situations notwithstanding their off-duty status. Departmental policies or regulations may need to be consulted in order to make this determination. If such governing policies or regulations require an off-duty response to particular emergency situations, this may place the professional in a de facto on-duty status and strip his ensuing engagement of the voluntary characterization needed to forestall application of the fireman’s rule. ¶ 15 With this caveat in mind, we hold that if a public safety professional is under no employment obligation to attempt rescue or render aid, but may with legal and professional impunity choose not to engage, the fireman’s rule will not bar recovery if the professional nevertheless attempts rescue or renders aid and is injured while doing so. ¶ 16 Because our holding is premised upon the professional having the choice whether to act, we disagree with those courts that ignore the preliminary inquiry into the existence of an employment obligation and apply the fireman’s rule to off-duty public safety professionals merely because the professional when volunteering to aid in an emergency situation is doing the same thing he would do if he were on-duty. In effect, these courts hold that the off-duty professional who lends expertise in order to aid in an emergency situation sacrifices the protection of the rescue doctrine when he does so, notwithstanding that he was free to choose otherwise. ¶ 17 This broad application of the fireman’s rule is evident in Hodges v. Yarian, 53 Cal.App.4th 973, 62 Cal.Rptr.2d 130 (1997), where an off-duty deputy sheriff shot and arrested a suspected burglar in the deputy’s own garage and suffered wage loss and emotional distress as a consequence. He later sued the managers of his apartment building for failure to address certain security problems. Id. at 132. However, solely because he was performing off-duty the same activity he performed on-duty, the court applied the fireman’s rule to bar the deputy’s lawsuit with no inquiry into whether he was under any requirement to have responded at all. Id. at 134. ¶ 18 A variation of the Hodges approach that retains the basic conflation of the on-duty/off-duty roles but opens a narrow window for the professional to escape the stricture of the fireman’s rule is exemplified by Alessio v. Fire & Ice, Inc., 197 N.J.Super. 22, 484 A.2d 24 (Ct.App.Div.1984). There, an off-duty police officer patronizing a tavern was asked by a tavern employee, who knew he was a police officer, to assist in quelling a disturbance. Id. at 25-26. The officer was injured and sued the tavern for negligence in not properly supervising the premises and serving alcohol to intoxicated patrons. Id. at 26. ¶ 19 In deciding whether the fireman’s rule barred suit, the court determined that it was necessary to find whether the officer subjected himself to risks beyond what he would face in similar on-duty situations. If so, he was acting not as a police officer but as a volunteer, but on remand it would be the burden of the police officer to demonstrate this. Id. at 30. The Alessio court did not specifically inquire whether any applicable department regulations required the officer to respond to the request for assistance, merely noting from other cases that such regulations may “suggest” that an officer is always on-duty. Id. at 29. ¶ 20 Unlike Hodges or Alessio, our holding has the virtue of clearly placing the off-duty professional on the same legal footing as an ordinary civilian volunteer, assuming that the professional is under no employment obligation to stop and assist. This equating of civilian and professional volunteers is consistent with logic and fairness, and by declining to follow the Hodges/Alessio line of cases and penalize off-duty professionals by stripping them of tort law protection, our holding serves the significant policy objective of encouraging professionals otherwise under no obligation to provide their expertise where it may make a life-saving difference. Our holding also avoids Atessio-style case-by-case risk analysis with its inevitable inconsistent results as well as its consumption of judicial energy devoted to what essentially is a collateral matter. In short, our holding illustrates the wisdom of Arizona’s approach to the fireman’s rule that limits its application to only those on-duty situations where its underlying rational permits its application. ¶ 21 We turn now to the implementation of our holding. The Sehulenburgs argue in accordance with Hodges that Espinoza was doing what she was trained to do, thus her off-duty status was not relevant to the application of the fireman’s rule. Espinoza responds that she was a volunteer entitled to the benefit of the rescue doctrine because she was off-duty and traveling home after work with her daughter in her car. She adds that had she been in her official capacity when she stopped to assist at the accident scene, she would have had the protective environment of fire department vehicles with hazard lights and other department personnel to warn of impending danger. In effect, she makes an Afessio-style argument that by acting in a volunteer capacity, she exposed herself to greater risks than she would have encountered if acting in an official capacity. ¶ 22 As prelude to analyzing the parties’ arguments, we must assign the burden of proof. We have acknowledged that the fireman’s rule is in essence an exception to the rule of liability established by the rescue doctrine. As an exception, the party seeking the benefit of the fireman’s rule has the burden of showing that he comes within its ambit. See Smith v. Tully, 665 A.2d 1333, 1335 (R.I.1995). In this case, that party is the Sehulenburgs. ¶ 23 An issue of proof is present in the case because our holding precluding application of the fireman’s rale is contingent on there being no employment mandate that the professional must engage even though off-duty. We do not know whether such a mandate exists in this case. Neither party has cited, and our research has failed to disclose, any Arizona statute that imposes any obligation on off-duty public safety professionals to respond in an emergency situation. Nor has either party provided any information regarding the Phoenix Fire Department’s policies or regulations regarding off-duty personnel, including when they might be required to stop and render aid. Consistent with the foregoing assignment of burden, it was the Sehulenburgs who were required to prove such a mandate because that proof would be necessary to bring them within the ambit of the fireman’s rule. In the absence of any evidence,, then, we will assume there was no requirement placed upon Espinoza by her department to stop and render aid while off-duty. ¶ 24 This assumption that Espinoza in an off-duty status was under no legal or professional obligation to stop and render aid essentially decides this case and we need not engage in an extended discussion of the incident. The trial court erred in ruling as a matter of law that the fireman’s rule applied. To the contrary, on this record as a matter of law the fireman’s rule did not apply. ¶ 25 In reviewing a grant of summary judgment, if the facts are undisputed we may reverse the trial court and grant judgment to the opposing party if merited. Anderson v. Country Life Insurance Co., 180 Ariz. 625, 628, 886 P.2d 1381, 1384 (App.1994). Ordinarily, we would apply this rule and direct entry of judgment for Espinoza on the issue of the fireman’s rule. However, we recognize that prior to this decision, the law in Arizona regarding the applicability of the fireman’s rule to off-duty professionals was unsettled, including the question of assigning the burden of proof. In fairness, then, it is appropriate to remand to permit Schulenburgs to pursue further discovery to determine whether they can provide the necessary proof consistent with their burden. ¶ 26 The Sehulenburgs append an additional argument that essentially attempts to place Espinoza in an on-duty status at the time of this incident. The Sehulenburgs assert that Espinoza’s receipt of workers’ compensation benefits establishes that she was acting in the course and scope of her employment when she was injured. Espinoza responds that she received benefits solely because she was traveling from work and, by statute, off-duty firefighters injured traveling to and from work are eligible for compensation. Ariz.Rev.Stat. § 23-1021.01(A)(Supp.2004). Moreover, Espinoza notes, the statute specifically provides that its grant of employment status is “solely for the purposes of eligibility for workers’ compensation benefits.” Id. ¶ 27 As in Orth, we are not persuaded that the availability of workers’ compensation benefits requires application of the fireman’s rule. 191 Ariz. at 292, ¶ 7, 955 P.2d at 48. The statutory authorization for such benefits is based on entirely different policy considerations that do not inform our holding nor the application of that holding to the facts of this case. Moreover, that Espinoza happened to be traveling from work instead of being on purely personal time was entirely fortuitous and did not affect her volunteer motivation or status in any way. It would be illogical to draw a distinction on this basis and we decline to do so. In short, we reject the receipt of workers’ compensation as a relevant factor in our analysis. CONCLUSION ¶ 28 Judged by the record on appeal, Espinoza was a volunteer when she stopped to assist at the accident scene and, as such, was entitled to the benefit of the rescue doctrine. The trial court’s decision that she was not is reversed. The case is remanded, however, to permit further proceedings on the fireman’s rule issue consistent with this decision. CONCURRING: PATRICIA K. NORRIS and PATRICIA A. OROZCO, Judges.

OPINION KESSLER, Presiding Judge. ¶ 1 Marc Jung (“Marc”) appeals the superior court’s decision denying probate of a codicil to the will of his father, Bernard Jung (“Bernard”). The court ruled that it could not determine when Marc signed the codicil as a witness and that if he signed the document after the decedent’s death the codicil would not be a valid testamentary document. Because we determine that Arizona Revised Statutes (“A.R.S.”) section 14-2502 (1995) does not preclude a witness from signing a testamentary document after the testator has died, we reverse and remand. FACTS AND PROCEDURAL HISTORY ¶2 Bernard was the father of Marc and Ted Jung (“Ted”). Bernard executed his will on November 12, 1980. On August 6, 2002, Bernard met with Marc and Ted and discussed the disposition of some of his property. After the meeting, while still at Bernard’s house, Marc prepared a typewritten codicil purporting to effectuate his father’s wishes. Bernard signed the codicil in the presence of Marc and Alison Scott (“Scott”), Bernard’s caregiver. Scott signed the document as a witness at that time. Copies of the document faxed to Marc’s lawyer on August 7, 2002, shown to Ted on August 11, 2002, and given to Ted on August 14, 2002, bore only the signatures of Bernard and Scott. Bernard died on August 8, 2002. ¶ 3 On September 16, 2002, Mare filed an application for informal probate of the will and codicil and for his appointment as personal representative of Bernard’s estate. Attached to the application were the 1980 will and codicil. The will provided that certain real property be devised to Marc and Ted as joint tenants with right of survivorship, that Bernard’s personal property be divided among his surviving children in equal shares as to value, and that the residue of his estate be divided in equal shares among his children. The codicil provided that Marc was to receive the realty, an additional parcel of real estate, Bernard’s business and personal papers and books as well as his clothing, and half of his monetary assets. Ted was to receive a parcel of residential real property and half of Bernard’s monetary assets. The codicil submitted to probate bore the signatures of Bernard, Scott, and Marc; Marc’s signature was dated August 6, 2002. Also submitted with the application and testamentary documents were affidavits of the attesting witnesses. In his affidavit, Marc avowed that he “signed as witness in the presence and hearing of decedent.” ¶ 4 The will and codicil were admitted to informal probate, and Mare was appointed personal representative of the estate. On January 13, 2003, Ted filed a petition for formal probate of the will and appointment of a personal representative. Ted asserted that the codicil was not valid and argued that Marc was responsible for misdating the document and perpetrating a fraud on the court. Marc filed an objection to the petition for formal probate. The brothers agreed that the 1980 will was valid and should be admitted to probate. ¶ 5 By stipulation, at trial the parties provided the deposition testimony of Marc’s pri- or attorney and Scott. Marc’s former attorney testified that on August 7, 2002, he had told Mare that he did not believe the codicil was a competent testamentary instrument because it lacked a second witness’s signature and was not a holographic instrument because the material provisions were not in Bernard’s handwriting. Scott testified that Marc had showed her a typed document and that she had been present when Marc gave the document to Bernard. Only she, Marc, and Bernard were in the room. Bernard read the document and other items repeatedly for eight to ten minutes. Marc asked Bernard if he understood the document, and Bernard said he did. She watched Bernard sign the document and signed it herself. She did not see Mare sign the document. Scott identified the codicil as the document she signed. ¶ 6 Marc testified that Scott’s account of his father’s signing the codicil was essentially accurate. Mare testified that he had signed the codicil on August 7, 2002, at about 4:30 p.m. He explained that the document he faxed to his attorney on the afternoon of August 7, the document he showed to Ted on August 11, and the document he gave to Ted on August 14 did not contain his signature because they were copies made on August 7 before he signed the document. He admitted that at his deposition he had stated that he signed the codicil on August 6. He also testified that on August 6, he had not believed he needed more than one witness to his father’s signature, but he had signed it because he thought, “I was there, I might as well sign it.” He explained that he had dated his signature August 6 because that was the date he witnessed his father’s signature. ¶ 7 Ted argued that Marc likely signed the codicil sometime after August 14, and that if Marc signed the codicil after Bernard’s death on August 8, the codicil would be invalid under Arizona law. Marc argued that even if he had not signed the document until after Bernard’s death, the law on which Ted relied had changed and that witnesses to a testamentary instrument were now required to sign the document “within a reasonable time” after the testator executed the document. Marc asserted that even if he did not sign the codicil on August 7, he signed it within a reasonable time and the court should admit the codicil to probate to carry out Bernard’s wishes. ¶ 8 The superior court found that Marc and Scott were in the room when Bernard signed the codicil. The court ruled, however, that the codicil would not be a valid testamentary document if Marc signed it after Bernard’s death and further stated that Marc, as the personal representative, had the burden of establishing that the witnesses signed the codicil within a reasonable time but prior to Bernard’s death. The court ordered the codicil stricken and the 1980 will admitted to probate as the dispositive instrument. ¶ 9 Marc timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(J) (2003). DISCUSSION ¶ 10 Marc argues the superior court erred as a matter of law: (1) in interpreting A.R.S. § 14-2502 to require witnesses to a testamentary document to sign the document prior to the testator’s death; and (2) by not interpreting A.R.S. § 14-2502 in a manner to give effect to Bernard’s wishes as required by A.R.S. § 14-1102 (1995). Because we reverse on the first issue, we need not address the second. ¶ 11 We are bound by a trial court’s findings of fact unless they are clearly erroneous. Sabino Town & Country Estates Ass’n v. Carr, 186 Ariz. 146, 149, 920 P.2d 26, 29 (App.1996). However, we are not bound by the court’s conclusions of law. Id. Statutory interpretation is a question of law, which we review de novo. State Comp. Fund v. Super. Ct., 190 Ariz. 371, 374-75, 948 P.2d 499, 502-03 (App.1997). ¶ 12 The goal in interpreting a statute is to find and give effect to the intent of the Legislature. Mail Boxes, Etc. U.S.A. v. Indus. Comm’n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). We look first to the language of the statute. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994). If the statutory language is unambiguous, we must give effect to the language and do not use other rules of statutory construction. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). If the legislative intent is not clear from the statute, we consider other factors, such as the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose. Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991). ¶ 13 The right to create a will is statutory and the Legislature determines the requirements necessary to make a valid testamentary document. Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App.1993). A will that does not comply with statutory requirements is not valid, even if it accurately reflects the wishes of the testator. Id. ¶ 14 Marc argues that, whether he signed the codicil on August 7 as he testified, around August 15 as suggested by Ted’s counsel in closing argument, or at some later time before filing his application for informal probate on September 16, he signed the codicil as a witness within a reasonable time of Bernard’s execution of the codicil, as required by A.R.S. § 14-2502(A)(3) (1995). He contends that the superior court erred in deciding that the codicil would not be valid if Marc signed it after Bernard’s death. ¶ 15 Arizona Revised Statutes § 14-2502(A)(3) states that a will shall be “[s]igned by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will ... or the testator’s acknowledgment of that signature or acknowledgment of the will.” The superior court acknowledged the “reasonable time” requirement, but also determined that witnesses must sign the will prior to the testator’s death. ¶ 16 In deciding the statute required that Marc sign the codicil before his father’s death, the superior court appears to have relied on Gonzalez. In Gonzalez, a couple agreed to make joint and reciprocal wills. Id. at 95, 870 P.2d at 1191. After completing will forms received by mail, they took the forms to a bank and signed them in the presence of each other and a notary, who notarized their signatures. Id. No witnesses signed the forms. Id. After one of the parties died, his sister challenged the validity of the will on the grounds that it failed to comply with the formal requirements of A.R.S. § 14r-2502 that a will be signed by two witnesses. Id. The purported beneficiary of the disputed will argued that because she observed the testator sign the will, she also could sign the will as a witness even as late as during the litigation. Id. at 98, 870 P.2d at 1194. This Court disagreed and concluded that a person could not sign a will as a witness after the testator’s death. Id. at 99, 870 P.2d at 1195. ¶ 17 At the time, A.R.S. § 14-2502 (1975) provided: Except as provided for holographic wills, ... every will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will. Gonzalez, 178 Ariz. at 97, 870 P.2d at 1193. This Court noted that requiring signatures of attesting witnesses guarded against fraudulent wills and provided a means of proving authenticity. Id. at 97, 870 P.2d at 1193. We reasoned that allowing witnesses to sign a will after the testator’s death would undermine the safeguards against fraud and mistake intended by the statute and that while fraud or mistake may or may not be present in any particular case, the rule requiring witnesses to sign the will prior to the testator’s death “is prophylactic and requires uniform application.” Id. at 99, 870 P.2d at 1195. ¶ 18 Subsequent to the decision in Gonzalez, the Arizona Legislature repealed the then-existing version of the statute and enacted the current version, which is based on the corresponding provision, § 2-502, of the Uniform Probate Code (“UPC”). The current version of the statute requires that witnesses sign within a reasonable time of observing the testator’s signing or acknowledgment of his will; the statute is silent as to whether that reasonable time may or may not extend beyond the testator’s death. ¶ 19 The UPC, however, addresses the question of whether a witness may sign a will after the testator’s death. Although the UPC provision, like A.R.S. § 14-2502, does not expressly authorize a witness to sign after the testator’s death, the official comment to the UPC provision notes that the section does not require a witness to sign a will before the testator’s death. Specifically, the comment states: The witnesses must sign as witnesses, and must sign within a reasonable time after having witnessed the signing or acknowledgment. There is, however, no require ment that the witnesses sign before the testator’s death; in a given case, the reasonable-time requirement could be satisfied even if the witnesses sign after the testator’s death. Unif. Probate Code § 2-502 cmt. (a)(3) (revised 1990). Although the comment to the UPC is not binding on this Court, it does provide guidance in our statutory interpretation. Estate of Wood, 147 Ariz. 366, 368, 710 P.2d 476, 478 (App.1985). ¶ 20 Arizona adopted the revised version of UPC § 2-502 as the current A.R.S. § 14-2502. Minutes of a judiciary committee meeting considering the proposed revision reflect that the change to the then-existing Arizona statute was recommended by a committee of the State Bar of Arizona “in order to conform Arizona law with revisions made to the Uniform Probate Code in 1990.” Minutes of Committee on Judiciary, 41st Leg., 2d Reg. Sess. (Ariz. Mar. 15,1994). ¶ 21 Marc argues that in enacting the revised A.R.S. § 14-2502, the Legislature eliminated the bright line rule established by Gonzalez and relied on by the superior court requiring a witness to a will to sign the will before the testator dies. The statutoiy revision requires us to revisit the decision in Gonzalez. In Gonzalez, we interpreted a statute that had no provision for when a witness was required to sign a will. In the absence of any specific direction from the Legislature in the language of the statute, we considered the purpose of the statute, which was to prevent fraud or mistake. We determined that this purpose would be best achieved by adopting a rule, to be uniformly applied, that witnesses must sign a will prior to the death of the testator. Gonzalez, 178 Ariz. at 99, 870 P.2d at 1195. ¶ 22 The Legislature has now prescribed a time frame within which a witness must sign a will: within a reasonable time. The language of the statute does not limit that reasonable time to a time before the decedent’s death and the comment to the UPC provision on which it is based expressly notes that a witness signing after the testator’s death is not prohibited. In light of the legislative history and the comment to UPC § 2-502, we hold that the Legislature has superseded Gonzalez. ¶ 23 Ted asserts that the revision to A.R.S. § 14-2502 requiring that witnesses sign a will within a reasonable time was not a substantive change. He argues that a reasonable time requirement had already been read into statutes similar to the pre-amended version of A.R.S. § 14-2502 in other jurisdictions. In re Estate of Royal, 826 P.2d 1236 (Colo.1992); In re Estate of Mikeska, 140 Mich.App. 116, 362 N.W.2d 906 (1985); In re Estate of Flicker, 215 Neb. 495, 339 N.W.2d 914 (1983); Rogers v. Rogers, 71 Or.App. 133, 691 P.2d 114 (1984). These eases do not, however, address the circumstances presented here. As in Gonzalez, these cases interpreted statutes in which the respective legislatures were silent as to a time frame within which the witnesses were required to sign. Our current statute requires a witness to sign within a reasonable time without further limitation. Moreover, the statute is based on UPC § 2-502 and the corresponding comment states that the provision does not require signing before the testator has died. In fact, the court in one of the cases cited by Ted suggested that its decision would be different under a statute based on the amended version of UPC § 2-502. Royal, 826 P.2d at 1238 n. 3. ¶ 24 Ted also contends that the comment to UPC § 2-502 is inapplicable because Arizona did not adopt the UPC’s full meaning of § 2-502 when it rejected a separate section, § 2-503. We disagree. Arizona adopted all of the provisions of UPC § 2-502, although it moved one subsection concerning the validity of holographic wills to another statutory section. See A.R.S. § 14-2503. Ted is correct that the Legislature did not adopt UPC § 2-503, which provides that a document not executed in compliance with the requirements of § 2-502 could still be treated as being in compliance under certain circumstances. The UPC, however, contains separate comments for §§ 2-502 and 2-503. Ted fails to explain how the comment to § 2-502 is related to § 2-503 such that rejection of § 2-503 invalidates the comment to § 2-502. ¶25 Moreover, the Legislature’s rejection of § 2-503 demonstrates that it did not simply adopt the UPC provisions wholesale, but considered individual provisions and modified the UPC as it deemed appropriate for implementation in Arizona. This supports an interpretation that the Legislature accepted the construction of the reasonable time provision contained in the comment. Had the Legislature disapproved of the interpretation advanced in the comment, it easily could have inserted into the Arizona statute the requirement that witnesses sign within a reasonable time prior to the testator’s death. Consistent with UPC § 2-502, it required only that the signature be affixed within a reasonable time of witnessing the testator’s signature or acknowledgment of the will. ¶ 26 Further, the portion of the comment to § 2-502 pertinent to our analysis is included in a section of the comment specifically addressing § 2 — 502(a)(3), which is substantively identical to A.R.S. § 14-2502(A)(3). The language of the comment is relevant to the reasonable time requirement contained in both the UPC and the Arizona versions of the provision. The comment therefore applies to the language at issue. ¶ 27 Ted also argues that precluding witnesses from signing a will after the testator’s death represents good public policy and should be upheld. A will is a creature of statute and the Legislature determines the requirements necessary to execute one. Estate of Muder, 159 Ariz. 173, 174, 765 P.2d 997, 998 (1988). The Legislature has adopted the UPC view that witnesses may sign a will within a reasonable time, and has not otherwise modified that requirement. We recognize that the concerns expressed in Gonzalez regarding fraud or mistake when a witness signs after the testator dies remain valid. These concerns, however, do not support ignoring the effect of the legislative change to the statute. Nor are the protections against fraud and mistake significantly undermined by the statutory revision. The revised statute does not simply permit signing after the testator’s death, but imposes a requirement that witnesses sign within a reasonable time. Consequently, under the circumstances of any given case, the fact finder will determine whether any delay in signing the will was reasonable, affording the protection against fraud and mistake discussed in Gonzalez. ¶ 28 Although the superior court recognized the statutory requirement that a witness sign the will within a reasonable time, the court, as fact finder, appears to have focused on whether Mare signed the codicil prior to Bernard’s death. The court did not determine whether Marc signed the codicil within a reasonable time. Issues of reasonableness are generally questions of fact. Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 541, 48 P.3d 485, 491 (App.2002). Because the court did not make this factual determination, we remand to the superior court to determine whether Marc signed as a witness within a reasonable time. CONCLUSION V29 We hold that the requirement in A.R.S. § 14-2502 that a witness to a will sign the document within a reasonable time permits a witness to sign the will after the testator’s death, provided the signing occurs within a reasonable time after witnessing the testator’s signature or acknowledgment of the will. We therefore reverse the judgment and remand this case for the fact finder to determine whether Marc signed as a witness to the codicil within a reasonable time. CONCURRING: PATRICK IRVINE and JON W. THOMPSON, Judges.

OPINION FLÓREZ, Presiding Judge. ¶ 1 After a jury trial, Matthew Manzanedo was convicted of assault with intent to incite a riot or participation in a riot and criminal damage. The convictions stemmed from a prison riot at the Pinal County Detention Center in which two officers were assaulted and the prison sustained over $23,000 in damage. The trial court sentenced Manza-nedo to concurrent, enhanced, aggravated prison terms of ten and twenty-two years. We affirm his convictions and sentences. ¶2 On appeal, Manzanedo argues that there was insufficient evidence to sustain his conviction for criminal damage and that his conviction under A.R.S. § 13-1207 is the product of a duplicitous indictment and a jury instruction that did not separate the offenses charged. See State v. Axley, 132 Ariz. 383, 646 P.2d 268 (1982). Manzanedo also argues that the trial court imposed aggravated sentences based on improper aggravating factors and in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Criminal Damage ¶ 3 We view the evidence in the light most favorable to sustaining Manzanedo’s convictions and resolve all reasonable inferences against him. See State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997). “A person commits criminal damage by recklessly ... [djefacing or damaging [the] property of another.” A.R.S. § 13-1602. Manzanedo argues there was no substantial evidence to sustain his criminal damage conviction because of the conflicting evidence presented at trial. He concedes that one witness, Officer Glass, testified that Manzanedo had ripped a telephone out of a wall and had thrown a food tray during the riot, but asserts that “[n]one of the other officers testified that they [had] observed [him] cause any other damage.” “[Substantial evidence ... is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” State v. Edwards, 136 Ariz. 177, 186, 665 P.2d 59, 68 (1983). Officer Glass’s testimony was sufficient to prove that Manzanedo had damaged the property of another. That other witnesses testified they had not seen Manzanedo damage any property does not render Officer Glass’s testimony insubstantial, as Manzanedo suggests. The jury was entitled to believe whichever witnesses it found credible. See State v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App.2004) (“Although the record contains some conflicting evidence, it was for the jury to weigh the evidence and determine the credibility of the witnesses.”). ¶4 To the extent Manzanedo also asserts that Officer Glass’s testimony was insufficient to establish the amount of damage for a class four felony, see § 13-1602(B) (criminal damage is class four felony if damage is $10,000 or more), he fails to develop any argument on why the state could not rely on the total damages from the riot of $23,662.55, offering only the eonclusory statement that he “cannot be held accountable for the actions of others.” Because Manzanedo’s argument does not comply with Rule 31.13(c), Ariz. R.Crim. P., 17 A.R.S., we do not address it. Conviction under § 13-1207 ¶ 5 Manzanedo next asserts that § 13-1207 “criminalizes two separate of fenses in the same statute, to-wit: (1) assault with intent to incite a riot, and (2) participation in a riot.” Based on this assertion, he argues variously that the indictment was du-plieitious, that the court’s jury instruction failed to cure the effect of the duplicitious indictment, that the statute itself is duplicitous, and that the jury verdict was not unanimous. ¶ 6 We note first that Manzanedo did not raise these issues in the trial court. Although he objected to the instruction relating to § 13-1207, he asserted only that the statutory provisions were unclear. Therefore, he has waived the arguments on appeal absent fundamental error. See State v. Davis, 205 Ariz. 174, ¶ 32, 68 P.3d 127, 132 (App.2002) (“[Ajbsent fundamental error, failure to raise issue at trial waives it on appeal.”). Fundamental error is “ ‘clear, egregious, and curable only via a new trial,’ ” State v. Lamar, 205 Ariz. 431, ¶ 50, 72 P.3d 831, 841 (2003), quoting State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991), and is error that goes “to the foundation of the case,” that “takes from the defendant a right essential to [the] defense,” or that is “of such magnitude that the defendant could not possibly have received a fair trial.” State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). To the extent Manzanedo has requested that we review the issue for fundamental error, we find no such error. ¶ 7 We disagree with the premise common to all of Manzanedo’s arguments on this issue — that § 13-1207 creates two separate offenses. Section 13-1207, entitled “Prisoners who commit assault with intent to incite to riot or participate in riot,” states in pertinent part: “A person, while in the custody of the state department of corrections or a county or city jail, who commits assault upon another person with the intent to incite to riot or who participates in a riot is guilty of a class 2 felony.” We conclude that, rather than creating two separate offenses, § 13-1207 creates a single offense that can be committed in alternate ways. ¶ 8 “ “Various tests are applied in determining whether statutes are intended to create one or more offenses.’ ” People v. Hathaway, 27 Cal.App.3d 586, 103 Cal.Rptr. 638, 643 (1972), quoting Bealmear v. S. Cal. Edison Co., 22 Cal.2d 337, 139 P.2d 20, 23 (1943). In State v. Dixon, 127 Ariz. 554, 622 P.2d 501 (App.1981), we relied on the tests suggested by the Washington Supreme Court in State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976), and determined that Arizona’s theft statute, A.R.S. § 13-1802, created a single offense that could be committed in different ways. We considered (1) the title of the statute, (2) whether there was “a readily perceivable connection between the various acts” listed in the statute, (3) whether those acts were “consistent with and not repugnant to each other,” and (4) whether those acts might “inhere in the same transaction.” Dixon, 127 Ariz. at 561, 622 P.2d at 508. We may conduct that same analysis here, but ultimately, we must determine whether the legislature intended to create separate offenses in enacting the statute. See State v. Fell, 209 Ariz. 77, ¶ 33, 97 P.3d 902, 911 (App.2004) (“In interpreting a statute, we must attempt to give effect to the legislature’s intent.”). ¶ 9 We note initially that, had the legislature intended to create two separate offenses, it could easily have done so by enacting separate statutes or, at least, separate subsections. And, although § 13-1207 lists two conceivably separate acts — assault and participation — these acts are connected by the central subject of the statute — prison riots. The act of assaulting another with intent to incite a riot and the act of participating in a riot both further a prison riot, the conduct the legislature obviously intended to discourage by enacting § 13-1207. See Beal-mear (collecting eases and considering primary purpose in determining statute created single offense although listing multiple acts). Moreover, the listed acts are not repugnant to each other. “The varying ways by which a crime may be committed are not repugnant to each other unless the proof of one will disprove the other.” Arndt, 553 P.2d at 1333. Proving either assault with intent to incite a riot or participation in a riot does not disprove the other. ¶ 10 Additionally, we agree with the following reasoning by the Washington Supreme Court: Doubts in the construction of a penal statute -will be resolved in favor of lenity and against a construction that would produce extremely harsh or incongruous results or impose punishments totally disproportionate to the gravity of the offense; so in ease of ambiguity the construction will be against turning a single transaction into multiple offenses. Id. at 1334. It is difficult to conceive of a situation in which a prisoner could assault someone with the intent to incite a riot, but not also participate in any ensuing riot. Under Manzanedo’s construction of the statute, however, such behavior would constitute two separately punishable offenses. Given the wording of this statute, that is a result we are not confident the legislature intended. ¶ 11 Moreover, we find unpersuasive Man-zanedo’s reliance on State v. Lujan, 139 Ariz. 236, 677 P.2d 1344 (App.1984). There, we found an indictment duplicitous because the indictment had alleged in one count two actions expressly made separate offenses in the statute. That is not the ease here. Accordingly, we affirm Manzanedo’s convictions. Sentencing Issues ¶ 12 Manzanedo argues the trial court illegally aggravated his sentences based on its findings of the financial loss to the assaulted officers and the state and the presence of an accomplice. First, Manzanedo argues that, because he was not convicted of assault, “[t]he officers were not victims of the crimes for which [he] was convicted,” and therefore, financial loss to the officers was an improper aggravating factor. But it is uneontested that the officers were assaulted during the course of the riot Manzanedo incited or participated in; therefore, the trial court properly considered them victims not only of assault, but also of Manzanedo’s violation of § 13-1207. That section must be read in conjunction with A.R.S. § 13-2903, which creates the offense of riot. Section 13-2903 provides that “[a] person commits riot if, with two or more other persons acting together, such person recklessly uses force or violence or threatens to use force or violence, if such threat is accompanied by immediate power of execution, which disturbs the public peace.” In light of § 13-2903, it is clear that a violation of § 13-1207 is not a victimless crime. ¶ 13 In State v. Sorkhabi, 202 Ariz. 450, 46 P.3d 1071 (App.2002), Division One of this court held that resisting arrest is not a victimless crime based on aspects of the applicable statute that also exist in our riot statutes. The resisting arrest statute prohibits a person from “[u]sing or threatening to use physical force ... or ... any other means creating a substantial risk of causing physical injury to [a] peace officer or another.” A.R.S. § 13-2508. Similarly, to commit riot under § 13-2903, a person must use or threaten to use “force or violence ... if such threat is accompanied by immediate power of execution.” Like the resisting arrest statute, our riot statute can include a victim — a person against whom force is used or who is threatened with the use of force. Accordingly, the trial court properly found the victims’ financial loss was an aggravating factor. See A.R.S. § 13-702(C)(9). ¶ 14 Second, Manzanedo argues that the presence of accomplices and financial loss were essential elements of the crimes of assault with intent to incite to riot and criminal damage and that his “actions were not so egregious as to rise to a level beyond that which [was] merely necessary to establish” those elements. We disagree. The state presented evidence that the riot had been a large-scale one involving many prisoners and that the financial loss caused by the riot was more than twice the amount required for criminal damage to be a class four felony. Moreover, because the amount of financial damage and the presence of an accomplice are specifically enumerated aggravating factors, see § 13-702(0(3) and (4), the trial court was authorized to aggravate Manzane-do’s sentences based on those facts regardless of whether they were more egregious than necessary to establish an element of the crimes. See State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980); State v. Alvarez, 205 Ariz. 110, 67 P.3d 706 (App.2003). We find no error in the trial court’s imposition of aggravated sentences. ¶ 15 Next, Manzanedo contends his sentences violated the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and applied in Blakely. We disagree. Although the state argues Manzanedo waived this issue by failing to raise it below, in our discretion, we address it. See State v. Resendis-Felix, 209 Ariz. 292, 100 P.3d 457 (App.2004). ¶ 16 The trial court based Manzanedo’s sentences on its finding of five aggravating factors: (1) Manzanedo’s criminal history, (2) the presence of an accomplice, (3) the financial loss to the victims, (4) Manzanedo’s “failure to benefit from past lenient treatment,” and (5) the unprovoked and unreasoning nature of Manzanedo’s actions. At least one of those aggravating factors was Blakely compliant, and the trial court expressly found no mitigating factors. As we recently explained in State v. Alire, 209 Ariz. 517, 105 P.3d 163 (App.2005), when a trial court finds no mitigating factors and one Blakely-compli-ant or -exempt aggravating factor, the court may consider additional aggravating factors if supported by reasonable evidence and impose a sentence within the aggravated range. See also State v. Viramontes, 204 Ariz. 360, ¶ 14, 64 P.3d 188, 190 (2003) (“In non-capital cases, aggravators need only be supported by reasonable evidence.”). ¶ 17 The jury found financial loss in the verdict on criminal damage. As Manzanedo has conceded, this factor was an essential element of one of the crimes of which he was convicted. The verdict on the criminal damage charge included the jury’s specific finding that the “total amount of damage was ... [mjore than $10,000.00.” The trial court used this express finding by the jury to aggravate both of Manzanedo’s sentences. For the same reasons expressed in Alire, we find no Blakely error. ¶ 18 Affirmed. CONCURRING: JOHN PELANDER, Chief Judge. . Manzanedo was also charged with, but acquitted of, aggravated assault. . We note that Manzanedo’s criminal history included multiple prior convictions. In State v. Burdick, 209 Ariz. 452, 104 P.3d 183 (App.2005), the trial court aggravated a sentence based in part on the defendant’s criminal history. We found that "criminal history” was not necessarily equivalent to prior convictions, and therefore, the trial court's finding was not exempt from the rule in Blakely. We need not decide here whether Manzanedo’s criminal history is a Blakely-exempt aggravating factor, because, as explained below, Manzanedo's aggravated sentences are supported by another Blakely-compliant factor.

OPINION WEISBERG, J. ¶ 1 Debra Gravano (“Appellant”) appeals the grant of partial summary judgment enabling the State of Arizona’s civil forfeiture action, as well as an award of attorneys’ fees and costs in favor of the State. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Appellant is the business partner and former wife of Salvatore Gravano (collectively “the Grávanos”). Following their divorce, she moved to Arizona and bought a home in Tempe and a restaurant in Scottsdale. ¶ 3 By 2000, Appellant was functioning as the banker for the Grávanos’ family ecstacy enterprise, known as the Southwest Ecstacy Enterprise. The enterprise’s members included Salvatore; their son, Gerard; their daughter, Karen; and David Seabrook, the father of Karen’s baby. The enterprise and Grávanos’ lavish lifestyle both halted in February 2000 with the arrests of its members. ¶ 4 In June 2000, the State of Arizona filed an in personam and in rem civil forfeiture lawsuit against the Grávanos pursuant to the Arizona Racketeering Act, Arizona Revised Statutes (“A.R.S.”) § 13-2314, and the Arizona Forfeiture Reform Act, A.R.S. §§ 13-4301 to -4315 (1999), seeking approximately $933,750 of drug sale proceeds. The complaint alleged Appellant’s participation in the transfer of Gambino Organized Crime Family proceeds to Arizona for the acquisition of three enterprises: Uncle Sal’s Inc., doing business as Uncle Sal’s Italian Ristorante; Moran Investments, Inc.; and Marathon Development, L.L.C. (“Marathon”). It further alleged that the Grávanos acquired almost $1 million from ecstacy sales in Arizona. ¶ 5 While the State and the Grávanos were negotiating a possible civil settlement in late 2000, prosecutors were at work on a criminal plea agreement. The State’s most recent offer in the civil case had just expired when the Grávanos entered guilty pleas in the criminal action. Appellant pled guilty to one count of conducting a criminal enterprise in violation of A.R.S. § 13-2312(B), and received probation. No agreement was reached between Appellant and the State regarding this civil forfeiture action. ¶ 6 Following sentencing, the State moved for summary judgment in the civil forfeiture case. It asserted that Appellant’s guilty plea estopped her from denying the facts of her offense, and that the State was entitled to a judgment to be satisfied from the sale of her home and other property. Concentrating on the in personam forfeiture action, Appellant cross-moved for summary judgment on the grounds that the imposition of an in person-am forfeiture violated her double jeopardy rights under the United States and Arizona Constitutions, constituted an unconstitutionally excessive fine, violated her plea agreement, and violated the forfeiture of estate provision in Article 2, Section 16 of the Arizona Constitution. ¶7 The trial court granted partial summary judgment to the State, rejected Appellant’s challenge to the in personam forfeiture action, and entered a Rule 54(b) judgment. The court also ruled that the State was entitled to attorneys’ fees and costs, which Appellant had also opposed. We have consolidated Appellant’s appeals from those two rulings. DISCUSSION Federal Double Jeopardy ¶8 Appellant challenges the grant of summary judgment on the forfeiture claim. We determine de novo whether any genuine issues of material fact exist and whether the trial court erred in its application of the law. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App.1997). Summary judgment is appropriate “if the facts produced in support of the claim or defense have so little probative value ... that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). ¶ 9 The Double Jeopardy Clause of the United States Constitution provides that no person “shall ... be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; see generally Ferreira v. Superior Ct., 189 Ariz. 4, 7, 938 P.2d 53, 56 (App.1996)(Double Jeopardy Clause is enforceable against states through Fourteenth Amendment’s Due Process Clause). However, the United States Supreme Court has long recognized that this clause does not prohibit the imposition of additional sanctions that could, “in common parlance,” be described as punishment. United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (citation omitted). It protects only against multiple criminal punishments for the same offense in successive proceedings. Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (citations omitted). ¶ 10 Appellant contends that the civil judgment constitutes a second criminal punishment for her criminal offense and therefore violates the federal double jeopardy clause. We, however, disagree because this forfeiture is not a criminal punishment for double jeopardy purposes. ¶ 11 In United States v. Halper, the United States Supreme Court held that a civil sanction would constitute punishment for double jeopardy purposes if the sanction imposed were not, on its facts, rationally related to the goals of a civil action. 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). In 1997, however, in Hudson, the Supreme Court retreated from Halper, and directed a different approach. The Hudson Court first looked at the forfeiture statute at issue, and asked “whether the legislature, ‘in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other;’ ” that is, either civil or criminal. Hudson, 522 U.S. at 99, 118 S.Ct. 488. Answering that same question here, we determine that the Arizona racketeering statutes, which underpin this forfeiture action, constitute a civil sanction because they are designated as civil, carry a civil burden of proof, and are processed pursuant to the rules of civil procedure. ¶ 12 The next Hudson inquiry is whether the statutory scheme is “so punitive either in purpose or effect,” as to “trans-for[m] what was clearly intended as a civil remedy into a criminal penalty.” Id. This second question includes several factors, but prohibits the conclusion that a sanction constitutes a criminal penalty solely because of its onerous effect. The relevant factors are: • whether the sanction involves an affirmative disability or restraint; • whether it has historically been regarded as a punishment; • whether it comes into play only on a finding of scienter; • whether its operation will promote the traditional aims of punishment-retribution and deterrence; • whether the behavior to which it applies is already a crime; • whether an alternative purpose to which it may rationally be connected is assignable for it; and • whether it appears excessive in relation to the alternative purpose assigned. Id. at 99-100, 118 S.Ct. 488 (citations omitted). Furthermore, only the “clearest proof’ will suffice to override the legislative intent and turn a civil remedy into a criminal penalty. Id. at 100, 118 S.Ct. 488 (citation omitted). Answering this second question, we conclude that the civil forfeiture has not been transformed into a criminal penalty. ¶ 13 The Second Circuit reached a similar conclusion in SEC v. Palmisano, 135 F.3d 860, 864-65 (2d Cir.1998), cert. denied, 525 U.S. 1023, 119 S.Ct. 555, 142 L.Ed.2d 462 (1998), when it applied the Hudson analysis to a disgorgement sanction. After the defendant pled guilty to a fraudulent Ponzi-type scheme, the court granted the SEC summary judgment and ordered that the defendant disgorge $9.2 million and pay a civil penalty of $500,000, in addition to the previous $3.8 million criminal restitution order. Id. at 863. The court rejected the defendant’s double jeopardy challenge as “plainly meritless” in light of Hudson. Id. at 864. It found that, under Hudson’s seven factor test, the disgorgement and the civil monetary penalty were not so punitive in purpose or effect as to override the congressional intent to provide for civil penalties. Id. at 864-66. ¶ 14 The Palmisano court noted that disgorgement has not been historically viewed as punishment, but rather, that a disgorgement order has long been recognized as civil. Id. at 865-66. The court reasoned that remedies can have a clear and rational purpose apart from punishment; and disgorgement is designed in part to ensure that defendants do not profit from illegal acts; a nonpunitive goal. Id., 135 F.3d at 866. Likewise, here, the proceeds-based forfeiture serves that same non-punitive goal and does not constitute double jeopardy. See id.; accord State v. Geotis, 187 Ariz. 521, 523, 930 P.2d 1324, 1326 (App.1996)(holding that Arizona civil forfeiture proceedings are not criminal in nature for purposes of double jeopardy analysis). ¶ 15 In Appellant’s view, however, Hudson merely created a narrow exception to Hal-per, applicable only when “an in personam fine is levied in response to a violation in a regulated industry.” But Appellant ignores Hudson’s specific disavowal of Halper for all purposes because the Halper test for punitive sanctions had proved “unworkable.” Hudson, 522 U.S. at 102, 118 S.Ct. 488. Hudson recognized that all civil penalties have some deterrent effect, and if the test were whether a sanction is solely remedial, then no subsequent civil remedy would be beyond the prohibition of the Double Jeopardy Clause. Id. The Hudson court therefore rejected that approach, and, for the same reasons, we reject Appellant’s argument. Arizona’s Double Jeopardy ¶ 16 Appellant next argues that this forfeiture violates the Arizona Constitution’s double jeopardy prohibition, which provides: “No person shall ... be twice put in jeopardy for the same offense.” Ariz. Const. art. 2, § 10. She asserts that the Arizona provision requires a different interpretation from that applied to the United States Constitution. We, however, conclude that it does not. ¶ 17 Appellant suggests that Arizona ought to adopt the reasoning of State v. Nunez, in which the New Mexico Supreme Court recognized additional state-based double jeopardy rights. 129 N.M. 63, 2 P.3d 264 (1999). There, the State of New Mexico had filed forfeiture complaints against the vehicles of several defendants that allegedly were used to transport illegal drugs, as well as against allegedly illegal proceeds. Id. at 270-71. The forfeitures were found to violate the New Mexico Constitution, in part because, unlike Arizona, the New Mexico courts had “always regarded forfeiture as punitive.” Id. at 272. Moreover, the New Mexico double jeopardy provision differed on its face from the federal double jeopardy double jeopardy provision, providing a fundamental right of “acquiring, possessing and protecting property.” Id. at 282 (quoting N.M. Const. art. II, § 4). That additional right protected both the vehicles and the proceeds of drug dealing from forfeiture. ¶ 18 Our jurisprudence, however, is different. The language of our Constitution parallels the United States Constitution rather than the New Mexico Constitution. See Geo-tis, 187 Ariz. at 523, 930 P.2d at 1326 (recognizing that the double jeopardy prohibition of the Arizona Constitution is construed consistently with its federal counterpart). ¶ 19 In addition, the New Mexico forfeiture statutes differ markedly from our statutes. The New Mexico statutes evidence no legislative intent to obtain either reimbursement for the government’s costs or compensation for the societal costs of the underlying crime. Nunez, 2 P.3d at 282-83, 287-88 (citing N.M. Stat. Ann. §§ 30-31 — 35(E)(2), 30-31— 34(G)(1), (2) and (4)). In contrast, Arizona’s statutes specifically compensate for societal costs and reimburse the government for the expenses of investigation and prosecution. A.R.S. § 13-2314(D)(5); A.R.S. § 13-2318. We, therefore, decline to follow New Mexico’s path. Prohibition Against Excessive Fines ¶ 20 Appellant alternatively argues that her in personam sanction violates the federal constitutional clause prohibiting the imposition of excessive fines. U.S. Const. amend. VIII. We, however, conclude otherwise because: (1) the subject forfeiture is remedial, not punitive, and thus not a “fine” under the Excessive Fines Clause; and (2) even if the forfeiture were punitive, it is not grossly disproportionate to the societal damage and governmental expense caused by the criminal enterprise. We review constitutional issues de novo. Little v. All Phoenix S. Cmty. Mental Health Ctr., Inc., 186 Ariz. 97, 101, 919 P.2d 1368, 1372 (App.1995). ¶ 21 We first reject Appellant’s argument because the forfeiture here is a compensatory sanction reasonably proportionate to the subject damages, which makes it remedial in nature. This conclusion is consistent with the United States Supreme Court’s opinion in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). There, the government had sought the forfeiture of $357,144, which the defendant had attempted to take overseas without complying with the currency reporting requirement of 31 U.S.C. § 5316(a)(1)(A). Id. at 321, 118 S.Ct. 2028. The Court held that the forfeiture of the full amount would be an unconstitutionally excessive fine because (1) the case involved only a reporting offense unrelated to any illegal activity, and (2) the money was the proceeds of a legal activity and was to be used to repay a lawful debt. Id. at 337-38, 118 S.Ct. 2028. ¶ 22 Although holding that the subject forfeiture was unconstitutional, the Bajakajian Court favorably recognized an existing line of eases, embracing both in personam and in rem forfeitures, that traditionally have not been subject to the excessive fines prohibition because such forfeitures have not been regarded as punishment. Id. at 341-44, 118 S.Ct. 2028. Instead, they have been considered to be remedial when reasonably based upon compensation for the social harm done. Id. at 331, 342-44, 118 S.Ct. 2028. The court concluded that a proceeds-based forfeiture could not be considered a fine because it “provide[d] a reasonable form of liquidated damages,” id. at 343 n. 19, 118 S.Ct. 2028 (citation omitted), and was inherently linked to the harm caused. Id. at 339-41, 118 S.Ct. 2028. Applying this reasoning, the forfeiture of proceeds in the instant case does not constitute an excessive fine. ¶23 Appellant nonetheless argues that a contrary result is required by State v. Leyva, 195 Ariz. 13, 985 P.2d 498 (App.1998), cert. denied, 529 U.S. 1037, 120 S.Ct. 1531, 146 L.Ed.2d 345 (2000) (“Leyva II”). In Leyva II, we held a fine to be excessive when imposed on a drug smuggler’s wife who was not herself involved in the criminal enterprise. 195 Ariz. at 21-22, ¶ 37, 985 P.2d at 506-07. In contrast, here, Appellant was active in the ecstacy smuggling enterprise and served as its banker. Moreover, the Southwest Ecstasy Enterprise removed approximately $1 million from Arizona’s legitimate economy, damaged its clientele, and caused related losses in health, public safety, and welfare expenses. Even the Leyva II court agreed that the forfeiture of proceeds from an illegal enterprise would not be subject to an excessive fines analysis “[t]o the extent that the ‘proceeds’ at issue are the fruits or profits of the defendant’s own crime.” Id. at 19, ¶25, 985 P.2d at 504. Accordingly, Leyva II actually supports our conclusion that the subject forfeiture is not excessive because it forfeits only the amounts acquired by the criminal enterprise. ¶24 Although the Leyva II court admittedly stressed that its forfeiture’s in personam procedure was a punitive feature, id. at 18-19, ¶ 20, 985 P.2d at 503-04, it did not have the benefit of the subsequent guidance in Bajakajian, which emphasized the similarity between civil in personam and civil in rem forfeiture proceedings, holding that a proceeds-based forfeiture would not constitute an excessive fine. Bajakajian, 524 U.S. at 331 n. 6, 343 n. 19, 118 S.Ct. 2028. In addition, Leyva II incorrectly observed that “Arizona’s statutes appear to be unique in providing for civil in personam forfeitures, which is another indication of at least some punitive purpose.” Leyva II, 195 Ariz. at 19, ¶ 20, 985 P.2d at 504. We, however, note that twelve other states employ in personam civil forfeitures. Also, at least thirteen states allow for a civil judgment/fme tied directly to the amount obtained through racketeering or some multiple of it. Leyva II therefore does not shape the result here. ¶ 25 Moreover, even if this forfeiture were a fíne, we disagree with Appellant’s contention that it would be grossly disproportionate. The main factor in determining proportionality is whether the forfeiture bears some relationship to the gravity of the conduct it is designed to punish. Bajar kajian, 524 U.S. at 334-38, 118 S.Ct. 2028. Other relevant factors include whether the violation is related to any other illegal activities, id. at 337-38, 118 S.Ct. 2028, and the extent of the harm caused, id. at 339, 118 S.Ct. 2028. See also Leyva II, 195 Ariz. at 20, ¶ 30, 985 P.2d at 505 (requiring the trial court to consider both the harshness of the forfeiture and the culpability of the owner); United States v. 817 N.E. 29th Dr., Wilton Manors, 175 F.3d 1304, 1311 (11th Cir.1999)(interpreting Bajakajian and explaining that excessiveness is determined by comparing the amount of the forfeiture to the gravity of the offense, not to the amount of the owner’s assets). ¶26 Applying these factors, we conclude that, even if this forfeiture were a fine, it would not be grossly disproportionate in light of the weighty penalties imposed by our Legislature for the conduct of the criminal enterprise, which include a sentence of twenty-five years to life (A.R.S. § 13-3410); a fine of three times the value of the drugs involved (A.R.S. § 13-3407(0); and the forfeiture of all proceeds. ¶ 27 Nor does the joint and several nature of the forfeiture judgment make it excessive because the amounts received by the co-conspirators were reasonably foreseeable by Appellant. This conclusion is consistent with several federal court opinions. United States v. Bollin, 264 F.3d 391, 419 (4th Cir.2001); United States v. Corrado, 227 F.3d 543, 558 (6th Cir.2000); United States v. Candelaria-Silva, 166 F.3d 19, 44 (1st Cir.1999); United States v. Simmons, 154 F.3d 765, 769-70 (8th Cir.1998). ¶ 28 For example, in United States v. Saccoccia, 823 F.Supp. 994 (D.R.I.1993), aff’d sub nom. United States v. Hurley, 63 F.3d 1, 22 (1st Cir.1995), cert. denied, 517 U.S. 1105, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996), the district court upheld a $136,000,000 judgment against a claim of excessiveness for a conspiracy that laundered that amount in drug proceeds. The court reasoned that for purposes of 18 U.S.C. § 1963(a)(3), “a defendant should be deemed to have ‘obtained’ amounts ‘obtained’ by co-conspirators in furtherance of the conspiracy to the extent that receipt of those amounts was reasonably foreseeable.” Id. at 1004. To hold otherwise would allow those engaging in racketeering to retain the fruits of their illegal conduct, defeating the purpose of RICO forfeiture. Id. Furthermore, “[i]n most cases, it would be a practical impossibility to determine the precise amount of each conspirator’s share in the conspiracy’s criminal proceeds.” Id. In affirming, the First Circuit observed that it is largely fortuitous whether a particular individual conspirator happens to possess funds, and a contrary rule would allow a high-level conspirator to escape liability by requiring couriers to handle the money. Hurley, 63 F.3d at 22. ¶29 Here, the amounts received by the criminal enterprise were foreseeable to Appellant because of her role as banker. Because the amounts were reasonably foreseeable, Appellant cannot claim that the forfeiture is excessive. Therefore, even if the forfeiture were a fine, it would not have violated the Excessive Fines Clause. Civil Forfeiture Does Not Violate Appellant’s Plea Agreement ¶ 30 Appellant next claims that the State’s pursuit of a civil forfeiture action violates her plea agreement. We, however, disagree. ¶31 Appellant’s plea agreement provides that it does not “in any way compromise or abrogate any civil action, including actions pursuant to A.R.S. § 13-2301, et seq., or § 13-4301, et seq.” Appellant agreed at her change-of-plea proceeding that she had read the plea agreement, understood it, discussed it with her counsel, and initialed each paragraph. She, therefore, understood the plea agreement’s terms, which specifically allowed for the subsequent civil forfeiture action. Forfeiture of Estate ¶32 Appellant next contends that this forfeiture violates the “forfeiture of estate” provision of the Arizona Constitution, which states: “No conviction shall work corruption of blood, or forfeiture of estate.” Ariz. Const. art. 2, § 16. Applying de novo review, we again reject Appellant’s constitutional interpretation. ¶33 Forfeiture of estate dates back to feudal times, when all lands ultimately belonged to the king, and tenants had to render continuing services to satisfy their tenancies and demonstrate loyalty to their lord, king, and society. United States v. Grande, 620 F.2d 1026, 1038 (4th Cir.1980). The commission of a felony demonstrated disloyalty. In fact, English law defined “felony” as “an offence which occasions a total forfeiture of either lands or goods or both.” Id. (quoting 1 J. Bishop, Commentaries on the Criminal Law 382-83 (1956 ed.)). Thus, forfeiture of estate provided the legal basis for the reassignment of the felon’s property. ¶34 Arizona and other states adopting similar constitutional provisions can trace them back to the Act of April 30,1790, Ch. 9, § 24, 1 Stat. 112, 117, passed by the First Congress: “No conviction or judgment shall work corruption of blood, or any forfeiture of estate.” At the time of the Act’s enactment, England was still practicing forfeiture of estate. Although no feudal system existed in the United States, many states incorporated similar provisions into their constitutions. See Morrisey v. Ferguson, 156 Ariz. 536, 538, 753 P.2d 1192, 1194 (App.1988)(Arizona’s constitutional provision “was intended to prohibit the application in Arizona of the early English penal requirement whereby a person convicted of a crime forfeited” his land and personal property to the king). ¶ 35 Of course, while our state constitution prohibits forfeiture of estate, it does not prohibit a proceeds-based forfeiture authorized by statute. Also, forfeiture of estate was triggered by a criminal conviction of a felony offense, Grande, 620 F.2d at 1038-39, while a conviction is not an element of this forfeiture. Here, the forfeiture is triggered only by racketeering conduct as defined in A.R.S. § 13-2301(D)(4). ¶ 36 Finally, forfeiture of estate confiscated all of the vassal’s property because the king reasserted title following the vassal’s disloyalty. Grande, 620 F.2d at 1038. In contrast, forfeiture under the racketeering statutes is limited to the amount arising out of the racketeering conduct, and is designed to remove the financial incentives of crime and the financial ability to further engage in crime while compensating victims and reimbursing the State for expenses. State ex rel. Napolitano v. Gravano, 204 Ariz. 106, 113, ¶ 24, 60 P.3d 246, 253 (App.2002). We therefore conclude that this forfeiture of racketeering proceeds does not violate the forfeiture of estate provision of the Arizona Constitution. Awarding Attorneys’ Fees and Costs to State Not Abuse of Discretion ¶ 37 Appellant next claims that the trial court erred by awarding attorneys’ fees and costs to the State under A.R.S. § 13-2314(A). We review such awards under an abuse of discretion standard. Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10, 13, ¶ 12, 6 P.3d 315, 318 (App.2000). Nonetheless, we hesitate to second guess the trial court on this issue “in view of the [trial court’s] superior understanding of the litigation and the desirability of avoiding frequent appellate review of what are essentially factual matters.” Chase Bank of Ariz. v. Acosta, 179 Ariz. 563, 574, 880 P.2d 1109, 1120 (App.1994)(quoting Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985)). ¶ 38 The trial court awarded $805,713.41 in attorneys’ fees and costs as requested by the State. Appellant complains that the State’s supporting affidavits fail to meet the standard of Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App.1983). That ease put the initial burden on counsel to prepare an affidavit indicating the type of services performed, the date the service was performed, the attorney performing the service, and the amount of time spent. Id. at 188, 673 P.2d at 932. We conclude that the State has met its burden here. ¶ 39 Our conclusion tracks the recent opinion of Division Two of this court that upheld a similar affidavit. See Orfaly v. Tucson Symphony Society, 209 Ariz. 260, 99 P.3d 1030 (App.2004). In that case, the appellants had argued that the fee applications were inadequate under China Doll because they contained only broad “block summaries” of the work performed. Id., 266 at ¶22, 99 P.3d at 1036. The court rejected the challenge, however, because the China Doll requirements are meant to “enable the court to assess the reasonableness of the time incurred.” Id. 266 at ¶23, 99 P.3d at 1036. Because the applications contained enough information to support a reasonableness finding, the court did not find an abuse of discretion. Id. Similarly, here, although the State’s affidavit only included general descriptions of the work performed, we hold that the description was sufficient for the trial court to assess the reasonableness of the State’s request. ¶ 40 The detail in the State’s affidavit also compares favorably with the one submitted in Boltz & Odegaard v. Hohn, 148 Ariz. 361, 714 P.2d 854 (App.1985). The Boltz affidavit listed only general types of services without detailing time spent on individual tasks. Id. at 365, 714 P.2d at 858. The Boltz court nevertheless approved the application, pointing out that the China Doll affidavit was submitted in support of a request for fees on appeal, rather than at trial. Id. ¶41 We note that, although such detail might have assisted the trial court, it “has other alternatives available to it for acquiring such information such as through an evidentiary hearing.” Id. Therefore, Appellant’s argument also fails because she failed to seek a hearing or file an evidentiary-based opposition in the trial court. As explained in State ex rel. Corbin v. Tocco: “It is not enough for an opposing party simply to state, for example, that the hours claimed are excessive and the rates submitted too high.” 173 Ariz. 587, 594, 845 P.2d 513, 520 (App.1992)(finding no abuse of discretion in award to the State for all the attorneys’ fees requested for civil and criminal racketeering eases). We did not find an abuse of discretion in Tocco because the defendant had failed to pursue a specific complaint with factual evidence that the time entries were irrelevant. Id. Here, because the trial court was satisfied with the fee information, and Appellant failed to present any specific argument to it as to why the State’s request was inaccurate, we conclude that there was no abuse of discretion. Awarding Attorneys’ Fees and Costs Does Not Violate Eighth Amendment ¶ 42 Finally, Appellant contends that the award of attorneys’ fees and costs violates the Excessive Fines Clause of the Eighth Amendment. We disagree. ¶ 43 As previously stated, Bajakajian sets forth the factors necessary for an award to be deemed as punitive under the Excessive Fines Clause. 524 U.S. at 328-44, 118 S.Ct. 2028. We conclude that the award of attorneys’ fees and costs, based upon Appellant’s liability under the statute, derives from her participation in the enterprise, and not from her criminal culpability. See id.; see generally A.R.S. § 13-2301(D)(6)(setting the liability threshold at “actions in concert with racketeering”); Restatement (Second) of Torts § 876 (1979)(the civil liability of persons acting in concert does not require criminal intent). ¶ 44 Furthermore, as discussed above, Ba-jakajian expanded the exception to the Excessive Fines Clause to include civil sanctions serving remedial purposes and linked to the amount of the sanction. Id. at 342-43, 118 S.Ct. 2028. The Supreme Court, in Austin v. United States, considered these sanctions a form of “liquidated damages.” 509 U.S. 602, 621, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Both cases relied upon One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), signaling that sanctions based upon compensation for social harm will not be considered to be punishment for a criminal offense. See Baja-kajian, 524 U.S. at 343, 118 S.Ct. 2028; Austin, 509 U.S. at 621, 113 S.Ct. 2801. Because the award of attorneys’ fees and costs here was based upon the actual expenditure of government resources, it was proportional and cannot be considered to be punishment. See Bajakajian, 524 U.S. at 343, 118 S.Ct. 2028; see also United States v. Philip Morris USA, 310 F.Supp.2d 58 (D.D.C.2004)(holding that a $289 billion civil racketeering suit against cigarette manufacturers for disgorgement of sale proceeds does not implicate the Excessive Fines Clause). CONCLUSION ¶ 45 For all the foregoing reasons, we affirm the trial court’s judgment. WINTHROP, P.J. and KONGABLE, Judge Pro Tempore , concurring. . Appellant contends that she divorced Gravano in 1994. The State, on the other hand, asserts that they remained married. The court did not make a finding on the matter, and it does not affect our analysis in this appeal. . The in personam forfeiture was initiated by the State pursuant to A.R.S. §§ 13-4313(A), 13-2314(D)(7)and 13-2314(E). A.R.S. § 13-2314(D)(7) provides for forfeiture "of an amount equal to the gain that was acquired or maintained” through commission of the racketeering. Therefore, this appeal concerns only a proceeds-based forfeiture, which is premised upon the disgorgement of the proceeds of a criminal enterprise. . Following Halper, this court ruled in State v. Leyva that the subject $20,000,000 judgment might violate the Halper view of double jeopardy and therefore remanded the case to the trial court for findings. 184 Ariz. 439, 445-46, 909 P.2d 506, 512-13 (App.1995) (“Leyva I”). However, we did not hold that every civil forfeiture penalty was necessarily punitive. Id. at 446, 909 P.2d at 513. Moreover, the reasoning in Hudson has effectively rejected the logic of Leyva I. . See A.R.S. § 13-2314, entitled "Racketeering; civil remedies by this state; definitions”; see also § 13-2314(L) ("A civil action authorized by this section ... is remedial and not punitive ... ”); and § 13-2314(K)(“[t]he standard of proof in actions brought pursuant to this section is the preponderance of the evidence test."). . Because we conclude that the subject forfeiture is not criminal in nature, we do not consider the alternative argument that even if the forfeiture were a criminal sanction, it would not constitute double jeopardy because its underlying offense did not have the same elements as the underlying criminal offense. We also decline to consider whether the statements of Appellant’s attorney at the joint change-of-pleas proceeding constituted judicial estoppel that would prevent her from raising the double jeopardy issue on appeal. . Contrary to Appellant's view, In the Matter of a 1972 Chevrolet Corvette, 124 Ariz. 521, 606 P.2d 11 (1980), provides no independent state grounds for a double jeopardy violation. It was not founded upon double jeopardy, but rather upon the right to enforcement of a plea agreement. Id. at 523, 606 P.2d at 13. . The New Mexico Supreme Court later clarified that the Nunez analysis is a particular application of the provisions of the Controlled Substances Act. City of Albuquerque v. One (1) 1984 White Chevy UT, 132 N.M.187, 46 P.3d 94, 97 (2002). In that case, the court found that the applicable statute, which forfeited vehicles driven by persons whose licenses had been revoked for DWI offenses, was remedial under Hudson because it was designed to protect the public from drunk drivers. Id. at 97-99, 118 S.Ct. 488. It reached this conclusion notwithstanding that the statute came into operation only upon the owner’s personal commitment of a crime, because the subject statute evidenced a clear deterrent intent, and had an innocent owner protection provision. Id., see also State v. Kirby, 133 N.M. 782, 70 P.3d 772, 774, 782-83 (App.2003) (limiting Nunez by upholding an indictment after the assessment of a $75,000 civil securities fraud penalty for the same offense). . Our result further follows the reasoning of Ba-jakajian in that the forfeiture did not punish her for the offense of conducting a criminal enterprise, as Appellant forfeited only the amount that was acquired in exchange for illegal drugs. See Bajakajian, 524 U.S. at 331-32, 118 S.Ct. 2028. Moreover, the forfeiture did not depend upon Appellant’s criminal culpability. See id. at 328, 118 S.Ct. 2028. . Ark.Code Ann. §§ 5-64-505 to ~508(Michie 2003); Ga.Code Ann. § 16-13-49 to -50 (2003); Haw.Rev.Stat. Ann. §§ 712A-1 to — 20 (2002); Iowa Code Ann. § 809A.1 to A.25 (West 2003); Kan. Stat. Ann. §§ 60-4101 to -4125 (2002); La.Rev.Stat. Ann. §§ 40:2601 to:2622 (West 2002) ; Mo. Ann. Stat. §§ 513.600 to .653 (West 2003) ; N.J. Stat. Ann. 2C:35A-2(West 2003); N.Y. C.P.L.R. 1311 (McKinney 2003); N.C. Gen. Stat. §§ 75D-1 to D-14 (2003); Tenn.Code Ann. § 39-11-701 to -17 (2003); Utah Code Ann. § 58-37-13 (2003). . Colo.Rev.Stat. §§ 18-17-101 to -109 (2003) (three times greater of gross gain or gross loss caused); Del.Code Ann., tit. 11, §§ 1501 to 1511 (2003)(same); Fla. Stat. Ann. §§ 895.01 to .09 (West 2003)(same); Miss.Code Ann. §§ 97-43-1 to -9 (2003)(same); Nev.Rev.Stat. §§ 207.350 to .520 (2002)(same); NJ. Stat. Ann. §§ 2C-.41-1 to -6.2 (West 2003); Ohio Rev.Code Ann. §§ 2925.41 to .45 (West 2003) (not more than twice the gross profits or other proceeds); Okla. Stat. Ann. Tit. 22 §§ 1401 to 1419 (West 2002)(up to three times greater of gross gain or gross loss caused); Or.Rev.Stat. §§ 166.715 to .735(2001)(same); Tenn.Code Ann. §§ 39-12-201 to -210 (2003)(same); Utah Code Ann. §§ 76-10-1601 to -1609 (2003) (no more than twice the profits); Wash. Rev.Code §§ 9A.82.001 to .904 (2003)(amount of illegal gain); Wis. Stat. Ann. §§ 946.80 to .88 (West 2003)(up to two times greater of gross gain or gross loss caused). . We further reject Appellant’s argument that our decision in One Residence at 319 E. Fairgrounds Dr., 205 Ariz. 403, 71 P.3d 930 (App.2003), affects this case. There, we upheld the in rem forfeiture of a house used as an instrumentality of the underlying crime. Here, we follow a different line of cases when considering a proceeds-based forfeiture. . Our analysis is also consistent with the plurality opinion in Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Justice Kennedy derived four principles guiding an Eighth Amendment analysis, which include: • The punishment for specific crimes involves a substantive penological judgment "properly within the province of the legislatures, not courts” ’ • the Eighth Amendment does not mandate the adoption of any one penological theory, • sentencing codes inevitably vary state to state, • and any Eighth Amendment review of a sentence should encompass "objective factors to the maximum possible extent.” Id. at 998-1000, 111 S.Ct. 2680. In Harmelin, the defendant received a life imprisonment with no possibility of parole for possessing 672 grams of cocaine. The Court concluded that the Michigan Legislature could reasonably find that the goals of retribution and deterrence warranted this term in view of the threats of violence, crime, and social displacement. Id. at 1003, 111 S.Ct. 2680. Applying the Arizona statutes to the objective facts of this case, we conclude that Appellant’s involvement in the drug enterprise amply supports the sanctions imposed. . Appellant unavailingly relies upon In the Matter of a 1972 Chevrolet Corvette, 124 Ariz. 521, 606 P.2d 11. In that case, the court affirmed the dismissal of the forfeiture claim because the plea agreement did not list forfeiture as a possible punishment. Id. at 523, 606 P.2d at 13. Unlike the defendant in 1972 Chevrolet Corvette, Appellant’s plea agreement specified that it “in no way affects any forfeiture proceedings pursuant to A.R.S. § 13-4301 et seq., § 13-2314, or § 32-1993.” . We also reject Appellant’s argument that the trial court improperly awarded costs against Appellant that were unrelated to her. As in Tocco, the State affirmed in its affidavit that all attorneys’ fees and costs requested were connected with Appellant’s case, Tocco, 173 Ariz. at 595, 845 P.2d at 521, even though they included time directed towards co-defendants who were either witnesses against Appellant or her co-conspirators. Appellant did not submit below any evidence that the time entries were irrelevant to the claims against her, and we conclude, as did the trial court, that these listed hours were relevant to Appellant’s prosecution. . Appellant also reasserts her joint and several liability argument with respect to the award of attorneys’ fees and costs, and we reject it for the reasons previously stated.

OPINION EHRLICH, Judge. ¶ 1 The Office of the Phoenix City Prosecutor charged Richard Ottaway with interfering with a judicial proceeding. See Ariz.Rev. Stat. (“A.R.S.”) § 13-2810(A)(2) (2003). Ott-away asked that this charge be tried to a jury, a motion denied by the municipal court and special-action relief denied by the superi- or court. For reasons that follow, we affirm. BACKGROUND ¶ 2 According to its complaint, the Phoenix City Prosecutor charges that Ottaway “knowingly disobeyed or resisted the lawful order, process or mandate of [the Phoenix Municipal Court]” in violation of A.R.S. § 13-2810(A)(2). Section 13-2810, entitled “Interference with Judicial Proceedings,” proscribes six different forms of interference with judicial authority, including the one with which Ottaway was charged. See A.R.S. § lS^SlOtA). The statute classifies the commission of any of these forms of judicial interference as a class 1 misdemeanor. A.R.S. § 13-2810(B). ¶ 3 At common law, a defendant typically did not have the right to a jury trial for a “petty offense,” and neither the United States nor the Arizona Constitution provide a right to a jury trial but, instead, simply preserve a defendant’s common-law right to a trial by jury of “serious offenses.” See, e.g., Goldman v. Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975) (citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). Nonetheless, Ottaway asked the Phoenix Municipal Court to try this judicial-interference charge to a jury. The court denied this motion, and Ottaway sought special-action relief from the superior court. See, e.g., State ex rel. McDougall v. Strohson (Cantrell), 190 Ariz. 120, 121, 945 P.2d 1251, 1252 (1997) (“[T]he issue of entitlement to a jury trial is an issue properly brought via special action.”) (citing Spitz v. Phoenix Mun. Ct., 127 Ariz. 405, 406, 621 P.2d 911, 912 (1980)). ¶4 In reviewing Ottaway’s special-action petition, the superior court concluded that the charge of “judicial interference” is “not an offense involving moral turpitude,” that the penalties for the offense “are those of a class 1 misdemeanor” and that the charged offense presented “no grave or serious consequences flowing [from] a finding of guilt____” See, e.g., Benitez v. Dunevant, 198 Ariz. 90, 91-92 ¶¶ 4-5, 7 P.3d 99, 100-01 (2000) (citing State ex rel. Dean v. Doing, 161 Ariz. 297, 778 P.2d 1193 (1989), and Rothweiler v. Superior Court (City of Tucson), 100 Ariz. 37, 410 P.2d 479 (1966)). The court thus concluded that Ottaway was not entitled to have the judicial-interference charge tried by a jury and denied him relief. Ottaway then appealed to this court. ANALYSIS ¶ 5 If the superior court accepts jurisdiction and determines the merits of a special-action petition, we review whether the court abused its discretion by its grant or denial of relief. See, e.g., Files v. Bernal (State), 200 Ariz. 64, 65 ¶ 2, 22 P.3d 57, 58 (App.2001) (citing Hamilton v. Mesa Mun. Ct., 163 Ariz. 374, 788 P.2d 107 (App.1989)). Because eligibility for a jury trial is a question of law, however, we independently determine the merits of Ottaway’s request. See Urs v. Maricopa County Attorney’s Office, 201 Ariz. 71, 72 ¶ 2, 31 P.3d 845, 846 (App.2001). ¶ 6 To support his demand for a jury trial, Ottaway alleges disparate treatment due to the provisions of A.R.S. § 13-2810 compared with other legal provisions that apply to allegations of contempt of judicial authority. For example, he asserts that the conduct proscribed by § 13-2810(A)(2), “knowingly ... [d]isobey[ing] or resisting] the lawful order, process or other mandate of a court,” also meets the definition of “criminal contempt” found in A.R.S. § 12-861 (2003), and yet, unlike § 13-2810, § 12-863 permits a jury trial of such charges at the defendant’s request. See A.R.S. § 12-863(A) (2003). Ottaway further contends that the definition of criminal contempt in the Arizona Rules of Criminal Procedure applies to his alleged conduct. Like A.R.S. § 12-861, but, again, unlike Title 13, the Rules of Criminal Procedure require a jury trial of contempt charges in certain situations. See Ariz. R.Crim. P. 33.4(a). Because these provisions proscribe similar conduct but only § 13-2810 fails to provide for a jury trial under any circumstances, Ottaway insists that the denial of a jury trial of charges pursuant to § 13-2810(A)(2) is fundamentally unfair and violates principles of constitutional law. His reasoning is flawed, however, and, thus, we reject his constitutional arguments. ¶ 7 First, Ottaway’s claim that A.R.S. § 12-861 and § 13-2810 apply to the same conduct is patently incorrect. Although the conduct proscribed by § 13-2810(A)(2) and § 12-861 may appear similar, § 12-861 has an additional requirement not found in § 13-2810: In order for § 12-861 to apply, the allegedly contemptuous conduct not only must violate a court order, see Pace v. Pace, 128 Ariz. 455, 457, 626 P.2d 619, 621 (App.1981), the conduct also must constitute a crime in itself. See A.R.S. § 12-861 (“the act or thing done [must] constitutef ] a criminal offense ...”). Thus § 12-861 “is limited in scope to criminal contempts [that] are also crimes,” State v. Verdugo, 124 Ariz. 91, 94, 602 P.2d 472, 475 (1979), and, if the contemptuous conduct constitutes a crime, the State proceeds against the defendant pursuant to § 12-861 et seq. Vanguard Eng’g by Phelan v. Superior Court (Tharp), 166 Ariz. 405, 408 n. 2, 803 P.2d 126, 129 n. 2 (App.1990); see also State v. Cohen, 15 Ariz.App. 436, 439-41, 489 P.2d 283, 286-88 (App.1971) (construing contempt proceeding as one pursuant § 12-861 because contemptuous action was allegation of criminal activity). Cf. Riley v. Superior Court, 124 Ariz. 498, 499, 605 P.2d 900, 901 (App.1979) (“If a contempt is criminal, but not within the bounds of [A.R.S. § 12-861], i.e., the contemptuous act is not a criminal offense by itself, the provisions of ... [the] Arizona Rules of Criminal Procedure ... are applicable.”). ¶ 8 Second, although the language of A.R.S. § 13-2810 is much more consistent with that found in Arizona Rule of Criminal Procedure (“Rule”) 33 than in A.R.S. § 12-861, Rule 33 provides little basis to argue for disparate treatment. Rule 33 only requires a jury trial if the defendant’s potential punishment exceeds six months’ incarceration or a fine in excess of $300 or both. Given that a violation of § 13-2810 is a class 1 misdemeanor, see A.R.S. § 13-2810(B), and that the maximum sentence of incarceration for such an offense is six months, see A.R.S. § 13-707(A)(1) (2001), the only case in which a defendant has a greater opportunity to a jury trial pursuant to Rule 33 than pursuant to § 13-2810 is when the potential fine exceeds $300. ¶ 9 But, even if Rule 33 provides a greater right to a jury trial than does A.R.S. § 13-2810 for the same proscribed conduct, such an incongruity would not violate the Arizona Constitution. Assuming that Ottaway would have been entitled to a jury trial in a Rule 33 proceeding, his situation does not differ from a defendant whose class 6 felony is re-designated a class 1 misdemeanor. See A.R.S. § 13-702(G) (Supp.2003). In State v. Quin-tana, 195 Ariz. 325, 326 ¶¶ 2-3, 987 P.2d 811, 812 (App.1999), this court reviewed the propriety of the State’s re-designation of trespass allegations, following a mistrial, from a felony to a misdemeanor, which thereby deprived the defendant of a new jury trial on the trespass allegations. This court upheld the re-designation as a proper exercise of the State’s discretion, id. at 326 ¶ 7, 987 P.2d at 812, despite the fact that this action eliminated the defendant’s right to a second jury trial on the allegations. Id at 327 ¶¶ 9-10, 987 P.2d at 813 (citing A.R.S. § 13-702(G) (Supp.1999)). ¶ 10 Ottaway’s separation-of-powers argument is without merit, see, e.g., State v. Larson, 159 Ariz. 14, 17, 764 P.2d 749, 752 (App.1988) (rejecting separation-of-powers argument because of its failure to demonstrate how either “the legislature []or the executive has ... begun exercising powers ‘properly’ belonging to either of the other branches of government”), and his reference to Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), to support his claim that the right to jury trial is a “procedural” right is inapposite. As previously explained, the right to a jury trial for a particular charge existed substantively at common law. Goldman, 111 Ariz. at 432, 531 P.2d at 1139. Because of its substantive and common-law origins, the legislative and executive departments have powers that determine a defendant’s right to a jury trial: “The legislature has the exclusive power to declare what the law shall be,” which necessarily includes the power to “determine[ ] what is a crime and what punishment may be exacted for its breach,” and “the executive branch has the power to decide what criminal charges to file.” State v. Prentiss, 163 Ariz. 81, 85, 786 P.2d 932, 936 (1989). See also State v. Donald, 198 Ariz. 406, 416 ¶ 36, 10 P.3d 1193, 1203 (App.2000) (recognizing that “government necessarily entails some blending of powers and that ‘absolute independence of the branches of government and complete separation of powers is impracticable.’ ”) (quoting J.W. Hancock Enter. Inc. v. Ariz. Registrar of Contractors, 142 Ariz. 400, 405, 690 P.2d 119, 124 (App.1984)), cert. denied, 534 U.S. 825, 122 S.Ct. 63 (2001). ¶ 11 Likewise, Ottaway’s ‘Vagueness” argument fails because he lacks standing to present such a challenge. His alleged conduct of “knowingly disobey[ing] the lawful order, process or mandate” of a court is neither outside the statute’s clear scope, see, e.g., State v. Trachtman, 190 Ariz. 331, 334, 947 P.2d 905, 908 (App.1997); State v. Kaiser, 204 Ariz. 514, 517 ¶ 5, 65 P.3d 463, 466 (App.2003), cert. denied, 540 U.S. 1162, 124 S.Ct. 1174, 157 L.Ed.2d 1207 (2004), nor a type of expression protected by either the Arizona or the United States Constitution. See State v. Brown, 207 Ariz. 231, 237 ¶ 18, 85 P.3d 109, 115 (App.2004) (exception to standing for vagueness challenge possible if statute might cause others to refrain from constitutionally protected expression and statute’s deterrent effect on legitimate expression is both “real” and “substantial”). ¶ 12 Having rejected Ottaway’s constitutional arguments, we consider whether a person charged pursuant to A.R.S. § 13-2810(A)(2) is entitled to a trial by jury. The superior court clearly relied on the authority found in Rothweiler and Doing. See, e.g., Rothweiler, 100 Ariz. at 42, 410 P.2d at 483 (discussing “moral quality” as relevant factor to analysis of entitlement to jury trial); Dolny, 161 Ariz. at 300, 778 P.2d at 1196 (recognizing that misdemeanor offense with “grave” consequences might entitle defendant to trial by jury). However, after the court ruled, the Arizona Supreme Court issued its opinion in Derendal v. Griffith (Phoenix City Prosecutor’s Office), 209 Ariz. 416, 104 P.3d 147 (2005). Because the supreme court abandoned the “ ‘moral quality prong’ of Rothweiler ” in Derendal, id. at 424 ¶ 32, 104 P.3d at 155, we must evaluate the propriety of denying Ottaway a jury trial in light of the new analysis. ¶ 13 Pursuant to the Derendal analysis, determining whether a particular misdemeanor charge warrants a jury trial is a “two step process.” Id. at 425 ¶ 36, 104 P.3d at 156. We begin by assessing whether “the statutory offense has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood.” Id. We do so by considering whether any “common law offense and the offense charged” share “substantially similar elements.” Id. ¶ 14 Although the elements of A.R.S. § 13-2810(A)(2) describe the common-law antecedent of contempt, this common-law offense did not carry a right to a jury trial. In Ex parte Quan, the Arizona Supreme Court reviewed the procedures that attached to a charge of “constructive contempt, that is, one committed without the presence of the court.” 39 Ariz. 13, 15, 3 P.2d 522, 524 (1931). Following the predecessor to A.R.S. § 12-864 and other precedent, the court held that such a charge should “be punished in conformity to the practice and usage of the common law.” Id. at 16, 3 P.2d at 524 (quoting Ariz. Rev. Code § 4474 (1928), predecessor to A.R.S. § 12-864, and citing Ex parte Wright, 36 Ariz. 8, 281 P. 944 (1929), and Van Dyke v. Superior Court, 24 Ariz. 508, 211 P. 576 (1922)). With regard to the common-law procedures attendant to such a contempt charge, the court cited authority from other jurisdictions to support its conclusion that “[t]he common-law mode of proceeding in cases of contempt presents no question of fact to be tried by a jury,” id. at 18, 3 P.2d at 524 (quoting Hudson County Quarter Sessions v. Verdon, 90 N.J.L. 494, 102 A. 66, 68 (1917)), and noted that this proposition “was not, and cannot be, questioned.” Id. ¶ 15 Given the lack of a common-law requirement for a jury trial of charges similar to A.R.S. § 13-2810(A)(2), we proceed to Derendal’s “second step” and consider whether Article 2, Section 24 of the Arizona Constitution and the Sixth Amendment to the United States Constitution require a jury trial for judicial-interference charges due to the “seriousness of the offense.” 209 Ariz. at 425 ¶ 37, 104 P.3d at 156. Because judicial-interference is a class 1 misdemeanor, see A.R.S. § 13-2810(B), punishable by no more than six months’ incarceration, see A.R.S. § 13-707(A)(1), we must presume that violating § 13-2810(A)(2) “is not a jury-eligible offense.” 209 Ariz. at 425 ¶ 40, 104 P.3d at 156. See also id, at 421 ¶ 16, 104 P.3d at 152 (citing Blanton, 489 U.S. at 543, 109 S.Ct. 1289 as the basis for that presumption). “To overcome [this] presumption,” Ottaway “must demonstrate additional severe, direct, uniformly applied, statutory consequences of conviction for the offense.” Id. ¶ 16 Although Ottaway concedes in his opening brief that he cannot suggest “any ‘grave consequences’ arising from the offense that would entitle him to a jury,” this element of the Derendal analysis is concerned with only those consequences that would apply to all defendants based on the statute’s language. Id. at 423 ¶ 25, 104 P.3d at 154. Given that the plain language of A.R.S. § 13-2810(A)(2) does not suggest any “collateral consequences [that] ‘approximate in severity the loss of liberty that a prison term entails,’ ” id. at 423 ¶ 24, 104 P.3d at 154 (quoting Blanton, 489 U.S. at 542, 109 S.Ct. 1289), we conclude that neither the Arizona nor the United States Constitution entitles a defendant facing a charge of judicial interference to a trial of that charge by a jury. CONCLUSION ¶ 17 We affirm the municipal court’s denial of Ottaway’s request for a jury trial on the complaint against him and the superior court’s denial of special-action relief. This matter is remanded to the municipal court for proceedings consistent with this opinion. CONCURRING: DANIEL A. BARKER, Presiding Judge and MAURICE PORTLEY, Judge. . The other types of interference proscribed by this section are "[e]ngag[ing] in disorderly, disrespectful or insolent behavior during [a] session of a court that directly tends to interrupt its proceedings or impairs the respect due to its authority,” ”[r]efus[ing] to be sworn or affirmed as a witness in any court proceeding,” ”[p]ublish[ing] a false or grossly inaccurate report of a court proceeding,” ”[r]efus[ing] to serve as a juror unless exempted by law” and ‘‘[f]ail[ing] inexcusably to attend a trial at which he has been chosen to serve as a juror.” A.R.S. § 13-2810(A)(1), (A)(3)-(6). . "A person who wilfully disobeys a lawful writ, process, order or judgment of a superior court by doing an act or thing therein or thereby forbidden, if the act or thing done also constitutes a criminal offense, shall be proceeded against for contempt____” A.R.S. § 12-861. . “Any person who wilfully disobeys a lawful writ, process, order, or judgment of a court by doing or not doing an act or thing forbidden or required, or who engages in any other wilfully contumacious conduct [that] obstructs the administration of justice ... [or] lessens the dignity and authority of the court, may be held in contempt of court.” Ariz. R.Crim. P. 33.1. . We find no relevance in Ottaway’s contention that, given the likely surcharges that apply to even a modest fine, the fine imposed for a contemptuous action easily could exceed $300. “As a general rule, the penalties attendant to misdemeanor offenses in this state are, of themselves, not enough to secure a jury trial.” Benitez, 198 Ariz. at 94, ¶ 13, 7 P.3d at 103; see also A.R.S. § 13-802(A) (2003) (maximum fine for misdemeanor is $2500). The ceiling in federal jurisprudence, which is based on the United States Congress' definition of a petty offense, is even greater. See, e.g., United States v. LaValley, 957 F.2d 1309, 1312 (6th Cir.) (holding that offense with potential exposure of six months' incarceration, fine of $5000 and five-year term of supervised release was "petty” within meaning of Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989)), cert. denied, 506 U.S. 972, 113 S.Ct. 460 (1992). . The common law is not the only source for a potential right to a jury trial; however, the common-law right to a jury trial is the only right protected hy the United States and Arizona Constitutions. The Arizona Legislature may, however, extend the right to a juiy trial for certain offenses as a matter of grace. See, e.g., Rothweiler, 100 Ariz. at 44, 410 P.2d at 486 ("The right to a jury trial should be jealously guarded and preserved by the courts, whether granted by the constitution or statutes.”). Of course, also as a matter of grace, the Legislature can rescind that right without recourse for those later-affected litigants. See, e.g., Hoyle v. Superior Court (State), 161 Ariz. 224, 227, 778 P.2d 259, 262 (App.1989). . Ottaway’s citation to § 162 of the Arizona Territory’s 1901 Penal Code is inapposite. Although Ottaway cites this statute to support his claim that "contempt was a crime during territorial days,” this assertion does not satisfy the first test in Derendal, which focuses on the right to trial for the offense at common law. See 209 Ariz. at 425 ¶ 36, 104 P.3d at 156 ("Article 2, Section 23 requires that a court determine whether a statutory offense has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood.”). In any event, the 1901 Penal Code defined contempt of court as a misdemeanor. Whether pre-1910 versions of the Arizona Penal Code provided a right to a jury trial for misdemeanors, cf. Holder v. State, 31 Ariz. 357, 361, 253 P. 629, 630 (1927) (citing provisions of Penal Code of 1913), and whether early Arizona courts simply made a practice of providing jury trials to defendants charged with misdemeanors, see, e.g., Vaughn v. State, 36 Ariz. 32, 282 P. 277 (1929); Hampston v. State, 34 Ariz. 372, 271 P. 872 (1928), is irrelevant to our current jurisprudence on this subject. See State ex rel. De Concini v. Tucson City Ct. (Smith), 9 Ariz.App. 522, 523 & n. 3, 454 P.2d 192, 193 & n. 3 (1969) (citing State v. Shearer, 27 Ariz. 311, 232 P. 893 (1925), but following O'Neill v. Mangum (State), 103 Ariz. 484, 445 P.2d 843 (1968)). The only historical factor of current relevance is whether an analog to the offense existed at common law that afforded the defendant a right to trial. See Hoyle, 161 Ariz. at 229, 778 P.2d at 264 (“Even if there was a right to a jury trial in paternity actions under a territorial statute in effect in 1910, article II, section 23 would not have preserved that right."); see also Donahue v. Babbitt, 26 Ariz. 542, 549-50, 227 P. 995, 996-98 (1924) (rejecting as dicta proposition in Brown v. Greer, 16 Ariz. 215, 141 P. 841 (1914) that Arizona Constitution protects pre-statehood statutory right to jury trial in all law and equity cases).

OPINION McGREGOR, Chief Justice. ¶ 1 We granted review in this case to resolve a single issue: Does the Sixth Amendment guarantee of a right to jury trial, as applied to Arizona’s general felony sentencing scheme, require that a sentencing judge consider only those aggravating factors found by a jury beyond a reasonable doubt in determining whether to impose an aggravated sentence, or may the judge find and consider additional aggravating factors once a single aggravating factor has been found by the jury, is inherent in the jury’s verdict,-or has been admitted by the defendant? We exercise jurisdiction pursuant to Article 6, Section 5.3 of the Arizona Constitution and Rule 31.19 of the Arizona Rules of Criminal Procedure. I. ¶ 2 A jury convicted Pablo Areiniega Martinez of murder in the first degree, burglary, and theft of a means of transportation, all in connection with the brutal killing of Martinez’ 69-year-old landlord. The State sought the death penalty for the murder conviction, alleging two aggravators: Martinez committed the murder for pecuniary gain, Ariz.Rev.Stat. (A.R.S.) § 13-703.F.5 (Supp.2000), and committed the murder in an especially heinous, cruel or depraved manner, id. § 13-703.F.6. The jury found neither of these aggravators, and the trial judge imposed a sentence of natural life for the murder conviction. ¶3 In determining the sentences for the burglary and theft convictions, the trial judge, acting pursuant to A.R.S. § 13-702.C (Supp.2000), found by a preponderance of the evidence the following aggravating factors: (1) the presence of an accomplice; (2) the-use of a knife as a weapon; (3) the severe injuries and death of the victim; (4) the emotional and physical pain suffered by the victim; (5) the emotional and financial harm to the victim’s family; (6) the brutal nature of the crime; (7) pecuniary gain; and (8) the vie- tim’s age. The trial judge then imposed consecutive aggravated sentences of seven years each for the burglary and theft convictions. ¶ 4 Martinez timely appealed both his convictions and the imposition of aggravated sentences. In a supplemental brief to the court of appeals, Martinez argued for the first time that his aggravated sentences violate the United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the trial court improperly considered aggravating factors not found by the jury. Because Martinez failed to raise this issue at trial, the court of appeals concluded that he had waived the claim. Nevertheless, the court reviewed the sentencing procedure for fundamental error. State v. Martinez, 209 Ariz. 280, 283 ¶ 9, 100 P.3d 30, 33 (App.2004). Finding no fundamental error, the court affirmed Martinez’ sentences, holding that they comport with the Sixth Amendment as interpreted in Blakely. Id. at 281-82 ¶ 1, 100 P.3d at 31-32. ¶ 5 The court of appeals held that if a jury finds, or a defendant admits, at least one aggravating factor, the defendant becomes eligible to receive an aggravated sentence under A.R.S. § 13-702, and the trial judge may consider additional facts not found by the jury in determining the actual sentence to impose. Id. at 284 ¶ 16, 100 P.3d at 34. “[A] judge’s imposition of an aggravated sentence that falls within the range authorized by a jury’s verdict comports with Blakely; a jury need not find every aggravator upon which a sentencing judge relies.” Id. at 281-82 ¶ 1, 100 P.3d at 31-32. In Martinez’ case, the court concluded that the finding that Martinez caused the death of the victim, see A.R.S. § 13-702.C.1, was implicit in the jury’s guilty verdict on the first degree murder charge. Once the jury found this aggra-vator, Martinez became eligible for an aggravated sentence, and the trial judge could then consider other aggravating factors in determining what sentence to impose within the statutory range for an aggravated sentence. Martinez, 209 Ariz. at 284 ¶ 16, 100 P.3d at 34. ¶ 6 Martinez petitioned for review, asking this Court to consider whether the aggravated sentences for burglary and theft comply with Blakely. We granted review because this is an issue of first impression and a question of statewide importance. In addition, we granted review to resolve a split in authority within the court of appeals. Compare Martinez, 209 Ariz. at 281-82 ¶ 1, 100 P.3d at 31-32, and State v. Estrada, 210 Ariz. 111, 112 ¶ 1, 108 P.3d 261, 262 (App.2005), with State v. Munninger, 209 Ariz. 473, 480 ¶ 21, 104 P.3d 204, 211 (App.2005), and State v. Alire, 209 Ariz. 517, 520-21 ¶ 14, 105 P.3d 163, 166-67 (App.2005). II. ¶ 7 The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a trial by jury. Every criminal defendant has a right to “demand that a jury find him guilty of all the elements of the crime with which he is charged.” United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 748, 160 L.Ed.2d 621 (2005) (Stevens, J., for the Court (constitutional majority)) (internal quotations omitted). This right to jury trial is not confined to the determination of guilt or innocence, but continues throughout the sentencing process. Thus, the Sixth Amendment guaran tees to a defendant the right to demand that a jury find the existence of any specific fact that the law makes essential to his punishment. Id. at 749 (citing Blakely, 542 U.S. at -, 124 S.Ct. at 2536). It is equally true, however, that “judges in this country have long exercised discretion ... in imposing sentence within statutory limits in the individual case.” Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). ¶8 In a series of decisions interpreting modern criminal statutes and sentencing procedures in light of the Sixth Amendment, the United States Supreme Court has made clear that the Sixth Amendment jury trial requirement does not entirely remove from the purview of judges any consideration of aggravating factors. The Court has repeatedly distinguished between those facts that are legally essential to increase the punishment for a crime, and must therefore be found by a jury, and those facts that a sentencing judge may, in his or her discretion, consider in sentencing a defendant within the range prescribed by statute and authorized by the jury’s verdict. See Jones v. United States, 526 U.S. 227, 248, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Apprendi, 530 U.S. at 494, 120 S.Ct. 2348; Harris v. United States, 536 U.S. 545, 558, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002); Ring v. Arizona, 536 U.S. 584, 604-05, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II); Blakely, 542 U.S. at -, 124 S.Ct. at 2537; Booker, 125 S.Ct. at 750. A. ¶ 9 The Supreme Court first addressed the application of the Sixth Amendment jury trial requirement to the determination of aggravating factors in Jones. There, the Court expressed concern that “diminishment of the jury’s significance by removing control over facts determining a statutory sentencing range would resonate with the claims of earlier controversies, to raise a genuine Sixth Amendment issue not yet settled.” Jones, 526 U.S. at 248, 119 S.Ct. 1215. The Court noted that prior cases suggested the following constitutional principle: “[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n. 6, 119 S.Ct. 1215. Prior case law did not suggest, however, that the Sixth Amendment requires that a jury find every fact related to a sentencing decision; rather, the case law indicated that removing from the jury the consideration of facts that increase a sentencing range may run afoul of the Sixth Amendment. Id. at 248, 119 S.Ct. 1215. Janes did not decide whether the Sixth Amendment requires juries to decide facts related to sentencing, however, because the Court ultimately interpreted the statute before it so as to avoid this constitutional issue. Id. at 251-52, 119 S.Ct. 1215. ¶ 10 One year later, in Apprendi, the Court answered the question left open in Jones, by holding that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Once again, the Court explained that “nothing in [the history of the right to jury trial] suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.” Id. at 481, 120 S.Ct. 2348. Importantly, the Apprendi decision also noted that labeling a specific fact as an “element” or a “sentencing factor” is irrelevant to the Sixth Amendment analysis: “[T]he relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494, 120 S.Ct. 2348. If so, that fact is functionally an “element” for purposes of the Sixth Amendment jury right. A “sentencing factor,” by contrast, is “a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.” Id. at 494 n. 19, 120 S.Ct. 2348. Thus, Apprendi established that only those facts that expose a defendant to a penalty greater than the prescribed statutory maxi mum applicable by virtue of a guilty verdict are facts “legally essential” to the punishment. ¶ 11 The Court reinforced this conclusion two years later in Harris. In a plurality opinion authored by Justice Kennedy, the Court stated that while a jury must find those facts that establish the outer limits of a sentence, facts that limit a judge’s sentencing discretion within the prescribed statutory range, such as those that compel imposition of a mandatory minimum sentence, may be found by judges rather than juries. Harris, 536 U.S. at 567, 122 S.Ct. 2406. Thus, “[¡Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.” Id. at 558, 122 S.Ct. 2406. ¶ 12 In Blakely, the Supreme Court applied these principles to a Washington state sentencing scheme and further clarified the import of the term “statutory maximum.” “Our precedents make clear ... that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at -, 124 S.Ct. at 2537. In so holding, the Court continued to proclaim that the Sixth Amendment does not prohibit all judicial factfinding: Of course indeterminate [sentencing] schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. Id. at -, 124 S.Ct. at 2540. ¶ 13 Recently, the Supreme Court applied its Sixth Amendment jurisprudence to the Federal Sentencing Guidelines (the Guidelines). Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621. In Booker, the defendant was charged with possession with intent to distribute at least fifty grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (1999). 125 S.Ct. at 746 (Stevens, J., for the Court (constitutional majority)). The jury heard evidence that he possessed ninety-two and one-half grams and found him guilty. That determination established a minimum sentence of 120 months in prison and a maximum sentence of life in prison. Taking into account Booker’s criminal history and the quantity of drugs found by the jury, the Guidelines directed the district court judge to select a sentence of not less than 210 nor more than 262 months in prison. After holding a post-trial sentencing proceeding, the sentencing judge concluded by a preponderance of the evidence that Booker had possessed an additional 566 grams of crack and that he was guilty of obstructing justice. Under the Guidelines, those findings directed the judge to impose a sentence between 360 months and life imprisonment; the judge imposed the minimum sentence permitted by the Guidelines. Thus, rather than the sentence of 262 months that the judge could have imposed solely on the basis of the facts proved to the jury beyond a reasonable doubt, Booker received a 360 month sentence, based in part upon the additional aggravating facts found by the judge by a preponderance of the evidence. Id. ¶ 14 The Court, applying Apprendi and its progeny, held that mandatory Guidelines would violate the Sixth Amendment. Once again, the Court emphasized that its decision would not limit the discretion of a judge to determine a defendant’s sentence within a prescribed range permitted by a jury verdict: If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. ... For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant. Id. at 750 (emphasis added). ¶ 15 In a separate part of the opinion, authored by Justice Breyer, the Court struck only those provisions of the Guidelines that made them mandatory, thus permitting the Guidelines to remain in place as advisory. Id. at 756-57 (Breyer, J., for the Court (remedial majority)). Justice Stevens dissented from the Breyer majority’s remedial holding because he concluded that the Guidelines could continue to be applied constitutionally in the vast majority of cases. Id. at 771-72 (Stevens, J., dissenting in part). This is so, Justice Stevens asserted, because “the Guidelines as written possess the virtue of combining a mandatory determination of sentencing ranges and discretionary decisions within those ranges, ... allow[ing] ample latitude for judicial factfinding that does not even arguably raise any Sixth Amendment issue.” Id. at 772. Thus, Justice Stevens’ dissent also reinforces the conclusion that the Sixth Amendment permits judicial discretion in imposing a sentence within a statutory range authorized by the jury’s verdict. ¶ 16 The Supreme Court’s recent Sixth Amendment jurisprudence, from Jones through Booker, leads inexorably to the conclusion that the Sixth Amendment does not remove from a trial judge the traditional sentencing discretion afforded the judge, so long as the judge exercises that discretion within a sentencing range established by the fact of a prior conviction, facts found by a jury, or facts admitted by a defendant. Once a jury finds the facts legally essential to expose a defendant to a statutory sentencing range, the sentencing judge may consider additional factors in determining what sentence to impose, so long as the sentence falls within the established range. B. ¶ 17 We recently recognized that Blakely implicates Arizona’s general felony sentencing scheme as well. State v. Brown (McMul-len), 209 Ariz. 200, 203 ¶ 12, 99 P.3d 15, 18 (2004). In Brown (McMullen), we held that, under Arizona law, the statutory maximum sentence for Apprendi purposes in a case in which no aggravating factors have been proved to a jury beyond a reasonable doubt is the presumptive sentence established in A.R.S. § 13-701.C.1 (2004). Id. Because of the unique procedural posture of the Brown (McMullen) ease, however, we declined to address “the full implications of Apprendi and its progeny for the Arizona sentencing scheme.” Id. at ¶ 15. Instead, we opted to later address additional questions “in the context of a case in which [a] relevant issue is squarely presented, properly briefed, and addressed by the courts below.” Id. at 203-04 ¶ 15, 99 P.3d at 18-19. The present case provides an opportunity to address one such question. III. ¶ 18 Under Blakely, a jury must find beyond a reasonable doubt any fact that is “legally essential to the punishment.” 542 U.S. at -, 124 S.Ct. at 2543. This ease requires us to determine what facts are “legally essential” for an aggravated sentence to be imposed upon a defendant pursuant to A.R.S. § 13-702. ¶ 19 In Arizona, a defendant convicted of a felony faces a presumptive sentence pursuant to A.R.S. § 13-701 (Supp.2000). Under the statutes in force at the time of Martinez’ sentencing, a judge could increase or decrease a defendant’s presumptive sentence within a range established by A.R.S. § 13-702.A only if “the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge.” A.R.S. § 13-702.B. After listing the aggravating and mitigating factors that a court must consider, the statute further provides: In determining what sentence to impose, the court shall take into account the amount of aggravating circumstances and whether the amount of mitigating circumstances is sufficiently substantial to call for the lesser term. If the court finds aggravating circumstances and does not find any mitigating circumstances, the court shall impose an aggravated sentence. Id. § 13-702.D. ¶ 20 Martinez interprets this statutory scheme to mean that a defendant is not eligible for an aggravated sentence until all aggravating factors that will be relied upon in sentencing have been found beyond a reasonable doubt by the jury. This is so, avers Martinez, because the language in section 13-702.D requires a sentencing judge to balance all the aggravators and mitigators in determining what sentence to impose. According to Martinez, because the maximum sentence he could have received depended upon the quantity and quality of the aggrava-tors, each aggravator relied upon by a judge in sentencing is a fact that increases the penalty, and all such facts are legally essential to his punishment. Therefore, Martinez contends, each aggravating factor must be found by a jury beyond a reasonable doubt. ¶ 21 Martinez’ interpretation of the statutes conflates the concept of the maximum potential sentence to which a defendant is exposed with the actual sentence imposed. The Supreme Court has made clear that only those factors that increase the maximum potential sentence to which a defendant is exposed are “legally essential” for Sixth Amendment purposes. Under Arizona’s sentencing scheme, once a jury implicitly or explicitly finds one aggravating factor, a defendant is exposed to a sentencing range that extends to the maximum punishment available under section 13-702. See Brown (McMullen), 209 Ariz. at 202 ¶ 11, 99 P.3d at 17 (“Section 13-702(A) allows an increase of this presumptive sentence to a maximum [sentence] ... upon a finding of me or more of the aggravating circumstances set forth in § 13-702(C).”) (emphasis added). Under those circumstances, a trial judge has discretion to impose any sentence within the statutory sentencing range. Thus, a jury finding of a single aggravating factor establishes the facts legally essential to expose the defendant to the maximum sentence prescribed in section 13-702. IV. ¶ 22 We recognize that we rejected a similar argument proffered by the State in State v. Ring, 204 Ariz. 534, 561 ¶ 87, 65 P.3d 915, 942 (2003) (Ring III). There, the State argued that if it established any single aggravating factor under A.R.S. § 13-703 in conformity with the Sixth Amendment, the defendant became “death eligible,” and a trial judge could then find additional aggravating factors. In rejecting the State’s argument, we stated: A narrow reading of Ring II may permit a judge to decide the existence of additional aggravating factors in the circumstances described by the State. As the State contends, once the government establishes any aggravating factor, a defendant becomes “death eligible” in the strict sense, and establishing additional aggravating factors does not render a defendant “more” death eligible. In our view, however, Ring II should not be read that narrowly. Although the Court there considered a death sentence based upon the existence of a single aggravating factor, we conclude that Ring II requires a jury to consider all aggravating factors urged by the state and not either exempt from Ring II, implicit in the jury’s verdict, or otherwise established beyond a reasonable doubt. Id. at 561-62 ¶ 88, 65 P.3d at 942-43. ¶ 23 We regard our opinion in Ring III as distinguishable for two reasons. First, in Ring III, we sought to interpret the Supreme Court’s decision in Ring II and concluded that the Court intended to require that a jury decide all aggravating factors. Since our decision in Ring III, we have gained the benefit of additional United States Supreme Court opinions, and both Blakely and Booker clarify that, at least in the non-capital context, a jury need find only that fact or those facts that are “legally essential” to expose a defendant to a particular sentencing range. ¶24 Second, in Ring III, we considered the statutory scheme peculiar to capital sentencing in Arizona, rejecting the State’s “single aggravator” argument in part because the procedures urged by the State do not reflect any sentencing procedure ever adopted by our legislature. In both the superseded and current capital sentencing schemes, the legislature assigned to the same fact-finder responsibility for considering both aggravating and mitigating factors, as well as for determining whether the mitigating factors, when compared with the aggravators, call for leniency. Neither a judge, under the superseded statutes, nor the jury, under the new stat utes, can impose the death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency. The process involved in determining whether mitigating factors prohibit imposing the death penalty plays an important part in Arizona’s capital sentencing scheme. 204 Ariz. at 562 ¶ 89, 65 P.3d at 943 (citations omitted). In response to Ring II, the Arizona Legislature adopted a revised capital sentencing scheme designed to conform Arizona law to the Ring II mandate. See id. at 545 ¶ 13, 65 P.3d at 926. The legislature chose not to split between fact-finders the duties of finding aggravating and mitigating factors and balancing those factors to determine whether the death sentence is appropriate. Instead, the legislature left these duties in the hands of only one fact-finder in both the superseded and the revised statutes. ¶25 Arizona’s non-capital sentencing scheme stands in contrast to the capital sentencing scheme discussed in Ring III. As the court of appeals pointed out, “Arizona’s non-capital felony sentencing provisions have accommodated a scheme where some factual determinations which increase a defendant’s sentence are found by the jury while others are found by the judge, with the ultimate sentencing decision made by the latter.” Martinez, 209 Ariz. at 285 ¶ 19, 100 P.3d at 35. As of the time of Martinez’ sentencing, the Arizona Legislature had not revised A.R.S. § 13-702 in light of the Supreme Court’s Sixth Amendment holdings. Thus, unlike the capital sentencing provisions reviewed in Ring III, Arizona’s non-capital sentencing statutes provide no indication that the legislature intended to vest responsibility for finding all aggravating facts in a single factfinder. V. ¶ 26 The Sixth Amendment requires that a jury find beyond a reasonable doubt, or a defendant admit, any fact (other than a prior conviction) necessary to establish the range within which a judge may sentence the defendant. If, however, additional facts are relevant merely to the exercise of a judge’s discretion in determining the specific sentence to impose on a defendant within a given statutory sentencing range, the Sixth Amendment permits the judge to find those facts by a preponderance of the evidence. Under AR.S. § 13-702, the existence of a single aggravating factor exposes a defendant to an aggravated sentence. Therefore, once a jury finds or a defendant admits a single aggravating factor, the Sixth Amendment permits the sentencing judge to find and consider additional factors relevant to the imposition of a sentence up to the maximum prescribed in that statute. ¶27 In this case, the sentencing judge relied upon eight aggravating factors in imposing aggravated sentences for Martinez’ burglary and theft convictions. The jury implicitly found one of those aggravators, the severe injuries and death of the victim, when it convicted Martinez of first degree murder. Because at least one ag gravating factor was implicit in the jury’s verdict, the verdict exposed Martinez to a maximum sentence of seven years imprisonment each for the burglary and theft convictions. See A.R.S. § 13-702.A. The trial court’s consideration of additional aggravating factors in imposing a sentence within this range did not violate Blakely. VI. ¶ 28 For the foregoing reasons, we affirm that portion of the court of appeals opinion upholding the trial court’s judgment imposing aggravated sentences for Martinez’ theft and burglary convictions. REBECCA WHITE BERCH, Vice Chief Justice, MICHAEL D. RYAN, ANDREW D. HURWITZ, Justices and CHARLES E. JONES, Justice (Retired), concur. . The court of appeals affirmed Martinez’ convictions in a separate, unpublished memorandum decision. State v. Martinez, 209 Ariz. 280, 100 P.3d 30 (Ariz.App.2004) (mem.decision). Martinez did not seek review of that decision. . Defendants who fail to object to error at trial do not, strictly speaking, "waive” their claims. Rather, defendants who fail to object to an error below forfeit the right to obtain appellate relief unless they prove that fundamental error occurred. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607, 2005 WL 1594359 (2005). . The court of appeals also held that the trial court’s consideration of aggravating factors not found by a jury in imposing a natural life sentence for the murder conviction did not violate Blakely. Martinez, 209 Ariz. at 283 ¶ 12, 100 P.3d at 33; see also State v. Fell (Sanders), 210 Ariz. 554, 560 ¶ 19, 115 P.3d 594, 600, 2005 WL 1594326 (2005). Martinez does not challenge that holding. . Following oral argument in this case, the legislature amended A.R.S. §§ 13-702 and 13-702.01 to conform them to the Supreme Court’s recent Sixth Amendment jurisprudence. See 2005 Ariz. Sess. Laws, ch. 20, §§ 1-2. The amended statutes are consistent with the conclusion we reach today. The statutes bifurcate responsibility for finding aggravating factors between the jury, which must find at least one aggravating factor beyond a reasonable doubt, and the judge, who may then find additional aggravating factors by a preponderance of the evidence. See id. § 1. ("If the trier of fact finds at least one aggravating circumstance, the trial court may find by a preponderance of the evidence additional aggravating circumstances.”). . We also note that determining aggravating factors in a capital case serves a somewhat different purpose than that served by determining aggravating factors in non-capital cases. The Eighth Amendment to the United States Constitution requires that aggravating factors in capital cases must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). In non-capital sentencing, however, aggravating factors serve only to establish the range of sentence and do not involve Eighth Amendment issues. . A.R.S. § 13-702.C.1 includes, as an aggravating factor, the "[ijnfliction or threatened infliction of serious physical injury.” A.R.S. § 13-105.34 (2000) defines "serious physical injury” as including "physical injury which creates a reasonable risk of death.” No one in this case argues that injury that actually results in death falls outside this definition.

OPINION JONES, Judge: ¶ 1 In these consolidated special action proceedings, we again address what accommodations may be granted to minors who are alleged victims of sexual abuse when called upon to testify at trial. The State of Arizona and A.S. seek relief from the trial court’s order (1) denying a requested trial accommodation for J.D. and Z.S., and (2) granting a closed-circuit television accommodation pursuant to Arizona Revised Statutes (A.R.S.) section 13-4253 for Z.S. We have consoli dated the two separate petitions because Petitioners seek the same relief. We accept jurisdiction because Petitioners otherwise have no adequate remedy by appeal and the petitions present issues of statewide importance. See Ariz. R.P. Spec. Act. 1(a); State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶4, 35 P.3d 82, 84 (App.2001). Having accepted jurisdiction, we vacate the trial court’s order and remand the request for accommodation to the trial court for reconsideration consistent with this Opinion. PACTS AND PROCEDURAL HISTORY ¶2 The State charged Chris A. Simcox with three counts of sexual conduct with a minor, two counts of molestation of a child, and one count of furnishing obscene or harmful items to minors for conduct occurring in 2012 and 2013. The alleged victims are Simcox’s nine-year-old daughter, Z.S., and Z.S.’s eight-year-old friend, J.D. (collectively, the Children). ¶ 3 The trial court previously granted Simeox’s request to represent himself pro se and appointed advisory counsel to assist him. The State indicated it would call the Children as witnesses and requested the trial court prohibit Simcox from any direct contact with the Children at trial and require his advisory counsel to conduct any cross-examination of the Children. When the State declined to present evidence the Children would be traumatized by Simcox personally cross-examining them, the court denied the request, and the State petitioned for special action relief. This Court accepted jurisdiction and held: A trial court may exercise its discretion to restrict a self-represented defendant from personally cross-examining a child witness without violating a defendant’s constitutional rights to confrontation and self-representation. It can do so, however, only after considering evidence and making individualized findings that such a restriction is necessary to protect the witness from trauma. State ex rel. Montgomery v. Padilla, 237 Ariz. 263, 265, ¶ ¶ 1-2, 349 P.3d 1100, 1102 (App.2015). ¶4 The trial court held an evidentiary hearing wherein the parties presented evidence of trauma as required by Padilla. At the hearing, the court heard testimony from the Children’s mothers, an expert on trauma suffered by children who testify in court, and Z.S.’s psychologist. After taking the matter under advisement, the court denied the State’s request that Simcox’s cross-examination of the Children be conducted through advisory counsel. But, finding sufficient evidence that Z.S. would likely suffer trauma from face-to-face contact with her father and alleged perpetrator at trial, the court ordered Z.S.’s examination to proceed by closed-circuit television as provided in A.R.S. § 13-4253(A). These special action petitions followed. DISCUSSION I. Restricting Simcox’s Confrontation Rights ¶ 5 Petitioners first assert the trial court erred by holding that, as long as a self-represented defendant does not breach court rules and decoram, he may never be prohibited from personally cross-examining an alleged minor victim. “We review purely legal or constitutional issues de novo.” Padilla, 237 Ariz. at 266, ¶ 8, 349 P.3d at 1103 (citing State v. Booker, 212 Ariz. 502, 504, ¶ 10, 135 P.3d 57, 59 (App.2006)). ¶ 6 In its order, the trial court stated: This trial Court was unable to find any authority nor was any presented which would allow the trial court to make exceptions to the right to self-representation ■without violating both the State and Federal Constitutions. Therefore, this Court cannot grant the State’s request to have advisory counsel conduct the cross-examination of the victim witnesses. So long as Defendant exercises his right of self-representation and he complies with court rules and decorum, this Court must allow it, to do otherwise would be a violation of constitutional proportion and therefore reversible error. Contrary to the court’s statement, however, this Court specifically held in Padilla that the right of a self-represented defendant to personally conduct cross-examination is not absolute. Id. at 267, ¶ 10, 349 P.3d at 1104. ¶ 7 Although the Confrontation Clause of the U.S. Constitution provides a defendant the right to confront those who testify and to cross-examine witnesses who testify against him, “denying a face-to-face confrontation will not violate the Confrontation Clause when it is ‘necessary to further an important public policy’ and the reliability of the testimony is otherwise assured.” Id. (quoting Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990)). Consistent therewith, this Court stated: If the State believes that a defendant’s personal cross-examination of a witness would cause particular trauma to the witness, it can—consistent with the United States Constitution—present evidence that the trauma will occur and ask the trial court to make case-specific findings that will justify restricting the defendant from personally cross-examining the witness. Id. at 270, ¶ 24, 349 P.3d at 1107; see also Craig, 497 U.S. at 855, 110 S.Ct. 3157 (holding a state’s interest “in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some eases, a defendant’s right to face his or her accusers in court” and recognizing “the protection of minor victims of sex crimes from further trauma and embarrassment is a compelling one”) (quotation and citations omitted). ¶ 8 Because Simcox’s confrontation rights, even as a pro se defendant, are not absolute, the trial court erred in concluding any restriction of his right to personally cross-examine witnesses would be “a violation of constitutional proportion” and “reversible error.” Given the court’s inaccurate assessment of the law, we cannot conclude the court considered whether the evidence of the risk of trauma was sufficient to restrict Simeox’s right to personally cross-examine the Children. Therefore, we vacate the trial court’s order and remand for redetermination. In doing so, we reiterate this Court’s conclusion in Padilla that restricting a defendant’s confrontation rights is significant and, to justify the restriction, the State must make an individualized and case-specific showing that it is necessary to protect the physical or psychological well-being of an alleged minor victim. 237 Ariz. at 268-69, ¶ ¶ 15, 19, 349 P.3d at 1105-06. II. Burden of Proof ¶ 9 The State acknowledges it bears the burden of proving the necessity of its requested accommodation, but correctly notes the standard of proof it must meet in doing so has not been articulated in Arizona. We address this issue because it is likely to arise on remand. See State v. Lopez, 234 Ariz. 465, 466, ¶ 1, 323 P.3d 748, 749 (App.2014). Our review of relevant U.S. Supreme Court jurisprudence fails to illuminate any constitutionally mandated standard of proof. See Craig, 497 U.S. at 855, 110 S.Ct. 3157 (requiring the State to make “an adequate showing of necessity in an individual case” before an accommodation is granted); Coy v. Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (requiring the State show “something more than the type of generalized finding” of trauma to trigger a statutory accommodation for alleged minor victims that would implicate Confrontation Clause concerns) (citing Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). ¶ 10 Given the constitutional significance of limiting a defendant’s right to confront witnesses face-to-face and a pro se defendant’s right to personally cross-examine those witnesses, see Padilla, 237 Ariz. at 266-67, 269, ¶ ¶ 9, 19, 349 P.3d at 1103-04, 1106, we conclude the heightened standard of clear and convincing evidence must apply. This is consistent with at least ten other states whose statutorily crafted accommodations for minor victims of sexual crimes are similar to AR.S. § 13-4253 and require clear and convincing evidence of harm be proffered by the State to establish the necessity of an accommodation. See, e.g., Ark.Code Ann. § 16-43-1001(a)(l); Cal.Penal Code § 1347(b)(2) (West); Conn. Gen.Stat. § 54-86g(a); Idaho Code Ann. § 9-1805(l)(a)-(b) (West); Kan. Stat. Ann. § 22-3434(b) (West); Mont.Code Ann. § 46-16-229(1) (West); Nev.Rev.Stat. Ann. § 50.580(1) (West); N.Y.Crim. Proc. Law § 65.10(1) (McKinney); Okla. Stat. tit. 12, § 2611.7(A); W. Va.Code Ann. § 62-6B-3 (West). ¶ 11 Therefore, upon remand, the trial court must determine whether the State has presented clear and convincing evidence of an individualized and ease-specific need for an accommodation as to each minor victim witness. III. The Court’s Discretion to Impose a Closed-Circuit Accommodation ¶ 12 Finally, Petitioners argue the trial court abused its discretion by imposing the closed-circuit television accommodation when no party had requested it. Petitioners argue the language of A.R.S. § 13-4253 prohibits imposition of the statutory accommodation absent a motion specifically invoking the statute. We disagree. ¶ 13 While Petitioners are correct that the accommodations described in A.R.S. § 13-4253 are statutorily triggered “on motion of the prosecution,” a trial court has considerable discretion to determine what procedures are appropriate in a particular case, cf. State v. Ferrari, 112 Ariz. 324, 329, 541 P.2d 921, 926 (1975) (holding the trial court acted within its discretion in varying the order of proof) (citing United States v. Halpin, 374 F.2d 493, 495 (7th Cir.1967), and State v. Cassady, 67 Ariz. 48, 56-57, 190 P.2d 501 (1948)), even absent a specific invocation of the statute. Arizona Rule of Evidence 611(a) empowers the court to “exercise reasonable control over the mode and order of interrogating 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.” See also Pool v. Superior Court, 139 Ariz. 98, 104, 677 P.2d 261, 267 (1984) (holding Rule 611(a) “gives the court discretion to determine and control the method of interrogation”); Padilla, 237 Ariz. at 270, ¶ 24, 349 P.3d at 1107 (“If the State believes that a personal cross-examination of a witness is intimidating or harassing the witness, it may always ask the court to control the examination.”) (citing Ariz. R. Evid. 611(a)). The trial court is further mandated by statute to “provide appropriate safeguards to minimize the contact that occurs between the victim, the victim’s immediate family and the victim’s witnesses and the defendant” during court proceedings. A.R.S. § 13-4431. This discretion extends to the court’s consideration of how minor victim witnesses should be accommodated following a proper request and presentation of evidence. ¶ 14 Accordingly, so long as sufficient evidence is presented to support the ordered accommodation, see supra ¶ ¶ 8, 10, the trial court is not bound by the specific requests of the parties and may order any procedure necessary and appropriate under the specific circumstances presented, whether provided for by statute, proposed by the parties, or otherwise. CONCLUSION ¶ 15 The trial court erred in concluding it was per se unconstitutional to restrict Simcox from personally cross-examining the Children. Accordingly, we vacate the court’s order and remand for redetermination consistent with this opinion. On remand, the court must consider whether the State presented clear and convincing, individualized, and case-specific evidence that the Children will suffer trauma if the court does not restrict Simcox’s right to personally cross-examine them. If an accommodation is supported by clear and convincing evidence, the trial court has discretion to employ an accommodation it deems necessary to protect the Children from suffering trauma. We leave to the trial court’s discretion whether additional briefing, argument, or evidence is required in redetermining the accommodation request. . Absent material changes from the relevant date, we cite a statute’s current version. . The petition in cause number SA 16-0017 was filed by the State and joined by J.D.’s mother. M.A., and the petition in cause number SA 16-0027 was filed on behalf of Z.S. by her mother, A.S. See A.R.S. §§ 13-4403(C) ("If the victim is a minor ... the victim’s parent ... may exercise all of the victim’s rights on behalf of the victim.”), -4437(A) ("The victim has standing to ... bring a special action ... in an appellate proceeding seeking to enforce any right or to challenge an order denying any right guaranteed to victims under the victims’ bill of rights, article II, § 2.1, Constitution of Arizona, any implementing legislation or court rules.”); P.M. v. Gould, 212 Ariz. 541, 544-45, ¶13, 136 P.3d 223, 226-27 (App.2006) (holding the parent had standing to assert victim’s rights and seek special action relief on behalf of her minor daughter).

OPINION OROZCO, Judge: ¶ 1 Emilio Jean appeals his convictions and sentences for money laundering, conspiracy to commit money laundering and transportation of marijuana, transportation of marijuana for sale in an amount over two pounds and illegally conducting an enterprise. Jean argues the trial court erred when it: admitted evidence of other acts, denied his motion to suppress evidence based on lack of standing to challenge a warrantless global positioning system (GPS) device and denied his motion for mistrial. For the reasons that follow, we affirm Jean’s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 Arizona Department of Public Safety (DPS) officers placed a GPS tracking device on a commercial truck in 2010 because they suspected the truck and its attached trailer were involved in criminal activity. The officers did not, however, obtain a warrant before they placed the device on the truck. Two days later, at the request of investigators who were tracking the truck, a DPS officer stopped the truck as it traveled eastbound on Interstate 40. When the officer stopped the truck, the truck’s owner was in the driver’s seat and Jean was in the sleeper berth. Jean claimed he was simply a driver-in-training. A search of the trailer revealed ninety-five bales of marijuana weighing a total of 2140 pounds. ¶3 A jury found Jean guilty. The trial court sentenced him to concurrent terms of ten years’ imprisonment for conspiracy and transportation of marijuana for sale and placed him on five years’ probation for illegally conducting an enterprise and money laundering. Jean timely appealed. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (AR.S.) sections 12-120.21.A, 13-4031 and -4033.A (West 2016). DISCUSSION 1. Admission of Evidence of Other Acts ¶ 4 Jean argues the trial court erred when it granted the State’s motion to admit evidence pursuant to Arizona Rule of Evidence 404(b). Jean argues the State failed to prove by clear and convincing evidence that he committed the prior act, the prior act was too remote to the charged offenses to be relevant, and any probative value was substantially outweighed by the danger of unfair prejudice. We review admission of evidence pursuant to Rule 404(b) for abuse of discretion. State v. Van Adams, 194 Ariz. 408, 415, ¶ 20, 984 P.2d 16, 23 (1999). ¶ 5 The State filed a notice of its intent to offer evidence of other acts, to which Jean objected. At a pretrial hearing, the State introduced the testimony of a Missouri State Highway Patrol Officer who arrested Jean in Missouri in 1999. The officer testified that in 1999, he performed safety inspections of commercial trucks at a weigh station as part of his “criminal interdiction” assignment. During a routine inspection of a truck and the associated paperwork, the officer noted various factors that suggested drug smuggling, including irregularities with the drivers’ log books, air fresheners and multiple cell phones. The officer found three people in the truck with Jean in the sleeper berth. Another passenger claimed to be a driver-in-training, yet the log books showed he had done very little driving. The driver consented to a search after a drug detection dog alerted to the trailer. The search revealed 1774 pounds of bundled marijuana. The primary driver claimed Jean was the person who monitored the loading of the trailer. The officer arrested all three individuals, including Jean, but no one was prosecuted. ¶ 6 The trial court held it would admit the Missouri incident as evidence of other acts, stating the evidence was relevant to show Jean’s knowledge. The court also stated that the State proved by clear and convincing evidence both that the prior incident occurred and Jean was involved as a participant in the activity, not merely present. The trial court found the similarities between the two events “quite striking” and stated that “the Missouri incident really mirrors in almost every respect the incident in this ease.” Jean was in the sleeper berth during both stops. Both involved similarly large quantities of marijuana in the trailer of a large commercial truck. There were similar concerns with the drivers’ log books. Both stops involved trucks seemingly owned by small trucking companies that were having empty trucks drive long distances to pick up cargo, which made no economic sense. Additionally, the court found it “compelling” that there was evidence Jean supervised the loading of the trailer in the Missouri incident. The court acknowledged eleven years had passed since the Missouri incident, but held that went to the weight of the evidence and not its admissibility. The court also considered the evidence in the context of Rule 403, finding the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. The Missouri officer subsequently recounted the prior incident at trial. ¶ 7 Evidence of other crimes, wrongs or acts is admissible if relevant and admitted for a proper purpose, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ariz. R. Evid. 404(b). The trial court did not abuse its discretion when it held the State proved by clear and convincing evidence the Missouri incident occurred and Jean was involved, not merely present, and that the incident was relevant to prove Jean’s knowledge in the current case. See State v. Prion, 203 Ariz. 157, 163, ¶ 37, 52 P.3d 189 (2002) (“For other act evidence to be admissible, it must be shown by the clear and convincing standard that the act was committed and that the defendant committed it.”). Clear and convincing evidence is evidence that makes the proposition “highly probable.” State v. Renforth, 155 Ariz. 385, 388, 746 P.2d 1315, 1318 (App. 1987) (citation omitted). Clear and convincing evidence need not, however, “establish that it is certainly or unambiguously true.” State v. Vega, 228 Ariz. 24, 29 n. 4, ¶ 19, 262 P.3d 628, 633 n. 4 (App.2011). ¶ 8 The testimony of the Missouri officer, combined with other documentary evidence regarding the Missouri incident, was sufficient to permit the trial court to find it “highly probable” the Missouri incident occurred and that Jean was involved. The trial court did not abuse its discretion when it also determined the Missouri incident was not too remote in time. “Although remoteness between the two incidents affects the weight to be given the testimony by the jury, it generally does not determine its admissibility.” Van Adams, 194 Ariz. at 416, ¶ 24, 984 P.2d at 24. We have held that acts which occurred much more than eleven years prior to the charged offenses were not too remote. See State v. Weatherbee, 158 Ariz. 303, 304-05, 762 P.2d 590, 591-92 (App. 1988) (holding prior acts that occurred twenty-two years before trial were not too remote to be admitted at trial); State v. Salazar, 181 Ariz. 87, 92 n. 5, 887 P.2d 617, 622 n. 5 (App. 1995) (finding a prior act that occurred twenty years before the charged offense was relevant). The trial court did not abuse its discretion in finding that the eleven years that elapsed between the Missouri incident and the charged offenses did not render the Missouri incident too remote. • ¶ 9 Regarding the danger of unfair prejudice, there is no question but that evidence of the Missouri incident was prejudicial to Jean. However, not all harmful evidence is unfairly prejudicial. After all, evidence which is relevant and material will generally be adverse to the opponent. The use of the word “prejudicial” for this class of evidence, while common, is inexact. “Prejudice,” as used in this way, is not the basis for exclusion under Eule 403. State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (citations omitted). “[A]ll good relevant evidence” is “adversely probative.” Id. “Unfair prejudice” is prejudice that could cause a jury to render a decision on an improper basis, “such as emotion, sympathy or horror.” Id. ¶ 10 The trial court did not abuse its discretion when it determined the probative value of the evidence of the Missouri incident was not substantially outweighed by the danger of unfair prejudice. Moreover, the trial court gave an instruction that directed the jury to consider the Missouri incident only as it might show Jean’s motive, intent, preparation, plan, knowledge, absence of mistake or accident. We presume juries follow their instructions. State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996). II. Motion to Suppress ¶ 11 Jean next argues the trial court erred when it denied his motion to suppress. We review de novo the ultimate legal question of whether the search violated Jean’s constitutional rights. See Adams, 197 Ariz. at 572, ¶ 16, 5 P.3d at 906. ¶ 12 Jean does not directly challenge the constitutionality of the stop of the truck or the resulting search; instead, he argues the use of the GPS to monitor the track constituted an illegal search. Jean argues that absent the information authorities obtained by monitoring the truck through the GPS, there would have been no stop, so that the evidence obtained therefrom was fruit of the poisonous tree. Jean also argues that GPS tracking of the truck over several days violated his reasonable expectation of privacy. ¶ 13 Jean relies upon the decisions in United States v. Jones, — U.S.-, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), and State v. Mitchell, 234 Ariz. 410, 323 P.3d 69 (App. 2014), to argue that the warrantless placement of a GPS to monitor an individual’s movements is an unlawful search under the Fourth Amendment. Jones held for the first time that the installation of a GPS on a vehicle constituted a trespass and the use of the GPS to monitor the vehicle’s movements constituted a search under the Fourth Amendment. Jones, 132 S.Ct. at 949. We relied upon Jones in Mitchell, a case very similar to Jones. Mitchell, 234 Ariz. at 418, ¶ 26, 323 P.3d at 77. ¶ 14 The trial court found Jean did not own or have a possessory interest in the truck, and on that basis, held Jean had no standing to challenge the placement of the GPS because he had no “reasonable expectation of privacy in a vehicle that he was just a passenger in.” Jean argues on appeal, however, that as a co-driver, he had as much of a possessory interest in the truck as the defendants in Jones and Mitchell, neither of whom owned the vehicle they drove. ¶ 15 The defendant in Jones did not own the vehicle at issue; it belonged to his wife, but he was “the exclusive driver.” Jones, 132 S.Ct. at 946 and n. 2. The defendant, therefore, had the rights of a bailee and standing to challenge the GPS. Id. Likewise, the defendant in Mitchell did not own the vehicle at issue, but he had permission from the owner to use the vehicle, sufficient to confer standing as in Jones. Mitchell, 234 Ariz. at 412, 415, ¶¶ 3, 19, 323 P.3d at 71, 74. Just as in Jones, the defendant in Mitchell had the rights of a bailee. Id. at 415, ¶ 19, 323 P.3d at 74. In neither Jones nor Mitchell was the owner within the vehicle and in operational control of the vehicle at the time of the stop. ¶ 16 In Mitchell, we held that “lawful possession” of a vehicle when the GPS is installed “is sufficient to confer upon a defendant standing to challenge GPS tracking” under Jones. 234 Ariz. at 416, ¶ 17, 323 P.3d at 75. We explained that standard “is consistent with basic principles of tort law regarding trespasses.” Id. at ¶ 18. Under those principles, a bailor or a bailee of chattel could maintain a trespass; we concluded the same status confers standing to challenge a trespass and resulting search under Jones. Id. ¶ 17 The defendants’ rights as bailees in Jones and Mitchell gave them standing to challenge the warrantless placement of GPS devices on the vehicles. Jean, however, was not a bailee: To constitute a bailment there must be a delivery by the bailor and acceptance by the bailee of the subject matter of the bailment. It must be placed in the bailee’s possession, actual or constructive. There must be such a full transfer, actual or constructive, of the property to the bailee as to exclude the possession of the owner and all other persons and [gjive the bailee for the time being the sole custody and control thereof. Blair v. Saguaro Lake Dev. Co., 17 Ariz.App. 72, 74, 495 P.2d 512 (1972) (internal citations omitted) (quoting Freeman v. Myers Automobile Service, Co., 226 N.C. 736, 40 S.E.2d 365, 366 (1946)). ¶ 18 Here, there is no evidence the owner of the truck made a “full transfer” of the truck to Jean, nor is there any evidence of a delivery and acceptance. There is no evidence the owner placed the track in Jean’s actual or constructive possession so “as to exclude the possession of the owner and all other persons and give [Jean] for the time being the sole custody and control thereof.” Id. There is no evidence Jean ever had exclusive use of the truck nor evidence he ever had permission to drive the truck or actually drove the track without the owner present. There is no evidence Jean ever possessed the keys to the truck. In sum, even if Jean may have occasionally operated the truck as a co-driver while in the owner’s presence, there is no evidence the owner did not reserve his right to possess and control the truck at all times. Therefore, there is no evidence that Jean was a bailee of the truck. State v. Orendain, 185 Ariz. 348, 352, 916 P.2d 1064, 1068 (App. 1996) overruled on other grounds (holding that a defendant driving codefendant’s vehicle lacked standing to assert Fourth Amendment challenge to the search of the vehicle when he had neither possessory nor property interest in the vehicle). ¶ 19 “[A] necessary predicate to the application of the ‘fruits’ doctrine” is that the search violated the constitutional rights of the person who challenges the legality of the search. State v. Super. Ct. (Treadaway), 119 Ariz. 573, 581, 583 P.2d 229, 237 (1978). “A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas v. Ill., 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Because Jean did not own the truck and did not otherwise have a possessory interest in it, he had no standing to challenge the placement of the GPS device on the truck. ¶ 20 Finally, regarding Jean’s claim that use of the GPS violated his reasonable expectation of privacy, Jean had no reasonable expectation of privacy in his movements as a passenger or driver of the truck. It is well settled that a person travelling in a vehicle on public roads has no reasonable expectation of privacy in the person’s movements from one place to another. United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). This court has held from this principle that there is no reasonable expectation of privacy that is infringed by GPS monitoring of a device placed on a vehicle, and that “[t]his is true particularly where the government’s monitoring is short-term.” State v. Estrella, 230 Ariz. 401, 404, 286 P.3d 150, 153 (App. 2012). Given that authorities monitored the truck in which Jean was riding for only two days, we conclude he established no Fourth Amendment violation. III. The Motion for a Mistrial ¶ 21 Jean argues the trial court erred when it denied his motion for mistrial after the owner of the truck referred, during his testimony, to other trips made to transport marijuana that were not part of the charged offenses. Jean objected when the truck’s owner first referred to other trips in which he and Jean transported marijuana. The trial court sustained the objection, granted Jean’s motion to strike the testimony and instructed the jury accordingly. ¶22 The owner later testified “we” made “so many trips” from Atlanta and “we” usually stopped for fuel in Texas. Jean did not object, but he asked the court and the State to admonish the owner again to not mention unrelated trips. The State admonished the owner accordingly. Later in the owner’s testimony, when there was confusion as to whether he and Jean made two trips to Tucson in one day as part of the charged offenses, the owner testified, “[w]e usually often did.” He further testified that “[i]t was [sic] so many trips that same way that they all kind of blurred together.” ¶ 23 Jean again did not object, but stated that if this kept occurring he would move for a mistrial. The court again admonished the owner not to talk about anything outside the scope of the question. Later, when he explained the route he planned to take for the trip at issue, the owner testified that “we always used to take a cutoff and make a round—around the weigh station from Arizona and New Mexico.” Jean moved for a mistrial based on the owner’s references to unrelated trips and the inference that Jean participated in those trips. The court denied the motion but instructed the jury to disregard the testimony regarding how “we always used to take” a certain route. ¶ 24 The denial of a motion for mistrial is reviewed for abuse of discretion. State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995). We will reverse only if the court’s decision was both improper and clearly prejudicial. Id. The trial court is in the best position to determine whether an incident calls for a mistrial because the court is aware of the “atmosphere of the trial, the manner in which the objectionable statement was made, and its possible effect it had on the jury and the trial.” State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983); State v. Brown, 195 Ariz. 206, 209, ¶ 12, 986 P.2d 239, 242 (App. 1999). A mistrial is the most dramatic remedy, only appropriate when justice requires. State v. Lamar, 205 Ariz. 431, 439, ¶ 40, 72 P.3d 831, 839 (2003) (citation omitted). ¶ 25 The testimony at issue did not necessarily refer to other trips with Jean. The owner testified he had been involved in drug trafficking for several years and described his involvement in that trade before he met Jean. The owner also identified several other individuals he worked with when he transported marijuana by truck. The jury knew that over the course of several years, the owner had made a number of trips in which he transported marijuana by truck with individuals other than Jean. Finally, the court struck the references Jean expressly objected to and instructed the jury to disregard them. Again, we presume juries follow their instructions. Dunlap, 187 Ariz. at 461, 930 P.2d at 538. Under these circumstances, the trial court did not abuse its discretion when it denied Jean’s motion for mistrial. CONCLUSION ¶26 Finding no error, we affirm Jean’s convictions and sentences. .We review the facts in the light most favorable to sustaining the trial court’s ruling. State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996). We give deference to the trial court’s factual findings. State v. Adams, 197 Ariz. 569, 572, ¶ 16, 5 P.3d 903, 906 (App. 2000). . Absent a change material to our opinion, we cite to a statute’s most current version. . The trial court observed that cell phones were not as prevalent in 1999 as they are today. . Jones was decided after DPS officers placed the GPS on the truck in this case but before trial began. . Jones and Mitchell also found it significant that the defendants were the targets of the respective investigations. Jones, 132 S.Ct. at 947; Mitchell, 234 Ariz. at 411, ¶ 2, 323 P.3d at 70. As noted above, DPS officers here had no idea Jean was in the truck until they stopped it. . While Jean unquestionably “controlled" the truck when he drove it with the owner beside him, we do not equate that type of control with the type of "control,” coupled with a possessory interest, necessary to establish a bailment.

OPINION MILLER, Judge: ¶ 1 Kyle Stoll was convicted of aggravated driving under the influence with a blood alcohol concentration of .08 or more while his license was suspended, canceled, or revoked, and sentenced to four months’ imprisonment followed by five years of supervised probation. He argues the trial court erred in denying his motion to suppress evidence obtained during the traffic stop, which was initiated because the light illuminating the license plate emitted white light visible from the rear of the vehicle. We conclude the officer misinterpreted the relevant statutes and the mistake of law was not objectively reasonable; therefore, the stop was not based on reasonable suspicion and the motion to suppress should have been granted. We vacate the conviction and sentence, and we remand for further proceedings. Factual and Procedural Background ¶ 2 In reviewing a trial court’s ruling on a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the trial court’s ruling. See State v. Moreno, 236 Ariz. 347, ¶ 2, 340 P.3d 426, 428 (App. 2014). One evening in January 2013, two Cochise County sheriff’s deputies were in a convenience store when they smelled the odor of burnt marijuana in the proximity of two men, later identified as Stoll and his friend. When the two men left the store and began to drive away in an SUV, the deputies followed and stopped the SUV one or two blocks away. The deputies observed white light from the lamp illuminating the license plate. It was a standard lamp, properly functioning, and operated in the usual manner. Nothing in the record indicates Stoll was issued a traffic citation. At the suppression hearing, however, the deputies testified they believed white light visible from a vehicle moving forward violated A.R.S. § 28-93KC). ¶ 3 During the stop, the deputies detected the odor of alcohol, and observed that Stoll had bloodshot watery eyes and a flushed face. A horizontal gaze nystagmus test suggested the presence of alcohol in his system, and a breathalyzer test measured his alcohol concentration at .165. The deputies arrested him. ¶ 4 Stoll moved to suppress the evidence seized during the stop, arguing that the deputies’ belief about white light from a license plate light was not supported by any statute. The state contended the stop was supported by reasonable suspicion because the SUV’s license plate lamp, though functioning properly and apparently as designed, did not have an opaque casing entirely shrouding its back, and thus emitted some white light to the rear of the vehicle. After taking the matter under advisement, the trial court granted Stoll’s motion to suppress. Its ruling that the license plate light did not violate Title 28 was based on specific facts: There was no evidence that the [license plate] light created any public safety or community welfare concern. There was no evidence that the lamp obstructed the vision of other drivers or that other drivers might confuse the license lamp with a head light or backup light. The white lamp was simply “visible” from the rear of Defendant’s vehicle. ¶ 5 In December 2014, shortly after the United States Supreme Court issued its decision in Heien v. North Carolina, — U.S. -, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014), the state moved for reconsideration of the suppression ruling, arguing the deputies made a reasonable mistake of law in interpreting § 28-931(C) when they concluded Stoll’s license plate lamp violated state law. Stoll contended the statute clearly and unambiguously compels a conclusion that the lamp was not in violation, and the deputies’ interpretation of the statute was not objectively reasonable. At the hearing on the motion for reconsideration, a patrol commander from the sheriffs department testified that the department had trained deputies for years that any rear-facing white light on a vehicle other than a backup lamp violated § 28-931(C). The trial court granted the state’s motion to reconsider, vacating its earlier suppression order. The court found “the Officer was objectively reasonable in applying the laws [as] he believed [them] to be at the time, particularly given his training in the Department.” ¶ 6 Stoll filed a motion to reconsider the new ruling, which the trial court denied. A bench trial followed, and Stoll now appeals the resulting conviction and sentence. Our jurisdiction is pursuant to A.R.S. §§ 13-4031 and 13-4033(A). Whether the License Plate Light Violated Arizona Law ¶ 7 Although the trial court did not vary from its initial ruling that Stoll’s license plate lamp did not violate Title 28, we address that conclusion because if we determine an Arizona statute prohibits a license plate lamp from emitting any white light to the rear, then the officer had reasonable suspicion to investigate a violation of such statute in this case. See, e.g., State v. Teagle, 217 Ariz. 17, ¶ 25, 170 P.3d 266, 272-73 (App. 2007) (defining reasonable suspicion). We review issues of statutory interpretation de novo. Dobson v. McClennen, 238 Ariz. 389, ¶ 7, 361 P.3d 374, 376 (2015). When interpreting a statute, our chief duty is to determine and effectuate the legislature’s intent. See Glazer v. State, 237 Ariz. 160, ¶ 12, 347 P.3d 1141, 1144 (2015). “If the statute is subject to only one reasonable interpretation, we apply it without further analysis.” Id. However, if it is ambiguous, we may consider other factors such as “ ‘the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose.’” Id., quoting Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991). ¶ 8 Arizona law requires that a lamp, either separate or incorporated in the tail light, be placed on a vehicle “in a manner that illuminates with a white light the rear license plate and renders it clearly legible from a distance of fifty feet to the rear.” A.R.S. § 28-925(C). The Arizona Revised Statutes also provide: All lighting devices and reflectors mounted on the rear of any vehicle shall display or reflect a red color, except that: 1. The stoplight or other signal device may be red, amber, or yellow.... 2. The light illuminating the license plate or the light emitted by a backup lamp shall be white. § 28-931(0). Simply stated, § 28-931(0(2) requires only that the license plate lamp and backup lamp shall cast white light as opposed to red. ¶ 9 Our reading of § 28-931(C) is in accord with State v. Patterson, in which the Court of Appeals of Idaho examined a materially identical statute to determine legislative intent. 140 Idaho 612, 97 P.3d 479, 482 (Idaho Ct. App. 2004). The Idaho statute provided: All lighting devices and reflectors mounted on the rear of any vehicle shall display or reflect a red color, except the stoplight or other signal device, which may be red, amber, or yellow, and except that the light illuminating the license plate shall be white and the light emitted by a back-up lamp may be white, amber, or red. Id. quoting Idaho Code § 49-910. The Idaho court observed the statutory language was “plain and unambiguous” that the purpose of the section pertained to the color of rear-facing lamps. Id.; accord Williams v. State, 853 P.2d 537, 538 (Alaska Ct. App. 1993) (similar statute requires that taillights emit only red light). We recognize that in Patterson and Williams the drivers were stopped because broken taillights emitted white light as well as red, but the respective discussions do not provide any support for the state’s general contention that the purpose of such a statute is to regulate the direction of light as opposed to the color of lamps. ¶ 10 There is no dispute that the license plate lamp on Stoll’s SUV illuminated the license plate with a white light. Because this lamp fell within an express exception in § 28-931(0(2), there was no legally correct basis for the deputy to investigate a violation of § 28-931(0). The trial court correctly decided this issue in its original suppression order. ¶ 11 Having concluded Stoll’s license plate lamp did not violate § 28-931(0, we briefly consider whether it violated any related statute. We first note the factual findings the trial court made in its original suppression order—findings unaffected by the court’s later decision to reconsider the suppression order on unrelated legal grounds. The court found Stoll’s license plate lamp was functioning properly, and that it rendered the license plate visible from the rear of the vehicle as required by § 28-925(0. The court further found “[t]here was no evidence that the light created any public safety or community welfare concern,” “no evidence that the lamp obstructed the vision of other drivers,” and no evidence “that other drivers might confuse the license lamp with a head light or backup light.” We defer to these factual findings because they are supported by reasonable evidence and are not clearly erroneous. See State v. Moore, 222 Ariz. 1, ¶ 17, 213 P.3d 150, 156 (2009). ¶ 12 We emphasize, therefore, that this is not a case in which the license plate lamp was missing or was not operating. See, e.g., State v. Kjolsrud, Nos. 2 CA-CR 2015-0230, 2 CA-CR 2015-0231, ¶¶ 2,11 (consolidated), 239 Ariz. 319, 371 P.3d 647, 2016 WL 1085229 (Ariz. Ct. App. Mar. 18, 2016) (unilluminated license plate is proper basis for traffic stop under A.R.S. § 28-925(C)); see also State v. Womack, 174 Ariz. 108, 116, 847 P.2d 609, 617 (App. 1992) (Lankford, J., dissenting) (“Defendant does not contest that the officer was entitled to stop defendant’s vehicle because of the missing or inoperable tail light.”), citing § 28-925. This is not a case in which the light emitted by the license plate lamp caused a glare that made the license plate illegible. See § 28-925(C). Nor is it a case in which the lamp was operating in such a way as to “give[ ] rise to the risk of dangerous confusion with a backup lamp.” See Williams v. State, 28 N.E.3d 293, ¶ 8 (Ind. Ct. App. 2015) (“obvious safety issues” arose where one tail lamp displayed red light and other was broken and displayed mostly white light; it was difficult to tell if ear was in drive or reverse); see also A.R.S. § 28-940(3) (allowing vehicle to have “[n]ot more than two backup lamps,” which are “not [to] be lighted when the motor vehicle is in forward motion”); § 28-931(C)(2) (light emitted by backup lamp shall be white). And it is also not a case in which the defendant’s vehicle was generally “in an unsafe condition that endangers a person.” A.R.S. § 28-921(A)(1)(a); cf. United States v. Harris, No. 3:13CR17/MCR, 2013 WL 3339055, at *7 (N.D. Fla. July 2, 2013) (no reasonable suspicion of violation of unsafe-condition statute where no evidence suggested white light emitted from cracked taillight actually impaired officer’s vision or created safety hazard). In short, we agree with Stoll that his license plate lamp was in compliance with all relevant Arizona law. No Arizona statute prohibits a license plate lamp from emitting some white light to the rear of a vehicle, without more. Therefore, the deputy did not articulate a legally correct statutory basis to investigate Stoll’s vehicle. Whether the Deputies’ Mistake of Law Was Reasonable ¶ 13 The state maintains that even if Stoll’s license plate lamp did not violate § 28-931, the traffic stop nevertheless was constitutional because the deputies reasonably believed the lamp violated the statute. We review the trial court’s ruling on a motion to suppress, and on a motion for reconsideration, for an abuse of discretion. State v. King, 180 Ariz. 268, 279, 883 P.2d 1024, 1035 (1994) (motion for reconsideration); State v. Sanchez, 200 Ariz. 163, ¶ 5, 24 P.3d 610, 612 (App. 2001) (motion to suppress). An error of law is an abuse of discretion. See State v. Bernini, 222 Ariz. 607, ¶ 14, 218 P.3d 1064, 1069 (App.2009). ¶ 14 The Fourth Amendment forbids “unreasonable searches and seizures.” U.S. Const, amend. IV. The protection extends to a brief investigatory stop of a person or vehicle, which is constitutional at its inception only if supported by “an articulable, reasonable suspicion ... that the suspect is involved in criminal activity.” Teagle, 217 Ariz. 17, ¶ 20, 170 P.3d at 271-72. ¶ 15 In Heien v. North Carolina, the United States Supreme Court held reasonable suspicion supporting a traffic stop can rest upon a reasonable mistake of law. — U.S.-, 135 S.Ct. at 536. If a law enforcement officer makes a stop based on a reasonable mistake of law, “there [is] no violation of the Fourth Amendment in the first place.” Id. at-, 135 S.Ct. at 539. The Court emphasized, however, that “[t]he Fourth Amendment tolerates only reasonable mistakes” of law, and “those mistakes ... must be objectively reasonable.” Id.; accord Moreno, 236 Ariz. 347, ¶ 10, 340 P.3d at 430-31. Our inquiry is exclusively objective—the court will not examine “the subjective understanding of the particular officer involved.” Heien,- U.S. -, 135 S.Ct. at 539. If the statute the officer interpreted mistakenly “is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not.” Id. at -, 135 S.Ct. at 541 (Kagan, J., concurring). ¶ 16 The state argues a reasonable officer could have believed Stoll’s license plate lamp violated § 28-931(C) because its chrome housing did not cover the whole rear side of the translucent lens, thus allowing some direct white light to be visible at the rear of the vehicle. The state’s argument focuses on the different words the legislature used to describe the two white lights permitted on the rear of a vehicle: “[t]he light illuminating the license plate” and “the light emitted by a backup lamp.” § 28-931(C)(2) (emphasis added). The state urges that a reasonable reader could conclude the phrase “the light illuminating the license plate” refers to the visible light shining on the license plate from the license plate lamp, rather than the license plate lamp itself. Under this reading, any white light the license plate lamp “emit[s],” or sends out, that does anything other than “illuminat[e] the license plate,” is in violation of § 28-931(C)’s general rule that rear-mounted lighting devices shall display or reflect a red color. The implication is that white light shining from the license plate lamp directly to the rear is in violation, whereas white light reflected off of the license plate before shining to the rear is not. ¶ 17 The state’s interpretation distinguishing direct light from reflected light lacks a textual basis. In fact, by its terms, § 28-931(C) regulates the color of rear lamps without regard to whether their light is “displayed] or reflect[ed].” The statute only regulates the color of rear-facing lights and we decline the state’s implicit request to add words to it. See Arpaio v. Steinle, 201 Ariz. 353, ¶ 1, 35 P.3d 114, 115 (App. 2001). ¶ 18 In addition, the state offers no basis to distinguish white light illuminating the license plate from white light the lamp emits toward the front of the vehicle that does not happen to fall on the license plate itself. Under the state’s reading, unless a vehicle’s license plate lamp is shielded with such precision as to emit white light only onto the license plate itself and nowhere else—not even elsewhere on the rear of the vehicle— the lamp does not comply with § 28-931(C). The state provides no authority for this reading other than the deputies’ own interpretation. Furthermore, “that possibility proves too much.” United States v. Flores, 798 F.3d 645, 649-50 (7th Cir. 2015). It would follow that virtually every vehicle on our streets is in violation of § 28-931(C) and could be stopped any time it is dark outside. Cf. Flores, 798 F.3d at 649-50 (suspicion based on interpretation of license plate frame statute that “would justify stopping any of the vast number of cars driven lawfully but affixing plates with the ubiquitous frames like the one in this case” held not reasonable). We must avoid a construction of § 28-931(C) that leads to an absurd result. See State v. Estrada, 201 Ariz. 247, ¶ 16, 34 P.3d 356, 360 (2001) (“[W]e interpret and apply statutory language in a way that will avoid an untenable or irrational result.”). ¶ 19 The state further argues the deputies’ reading is reasonable because other drivers could confuse a license plate lamp emitting white light directly to the rear for an illuminated backup lamp, creating a risk that they might incorrectly conclude the vehicle is in reverse. See § 28-940(3) (“[A] backup lamp shall not be lighted when the motor vehicle is in forward motion.”); see also § 28-931(C)(2) (backup lamp and license plate light both white). This construction effectively prohibits any white light shining directly to rear while the vehicle is moving forward. However, § 28-931(C) is to the contrary because it exempts the license plate lamp from the general injunction that rear-mounted lighting devices shall be red. No alternative reading is reasonable. Cf. Harris, 2013 WL 3339055, at *2 (materially identical Florida statute “requires that all rear-mounted lights display or reflect a red color ... [not] that there be no emission of white light”). ¶ 20 We agree with the Seventh Circuit’s reasoning that “Heien does not support the proposition that a police officer acts in an objectively reasonable manner by misinterpreting an unambiguous statute.” United States v. Stanbridge, 813 F.3d 1032, 1037 (7th Cir. 2016); compare United States v. Alvarado-Zarza, 782 F.3d 246, 249-50 (5th Cir. 2015) (mistake of law not objectively reasonable where statute is “unambiguous” and “facially gives no support” to officer’s interpretation), with Heien, — U.S.-, 135 S.Ct. at 540 (mistake of law objectively reasonable where ambiguous statutory language, not yet interpreted by courts, fairly allowed two different readings). Nor does the testimony of the patrol commander at the hearing on the motion for reconsideration regarding officer training affect our analysis. As Justice Kagan noted in Heien, “an officer’s reliance on ‘an incorrect memo or training program from the police department’ makes no difference” for purposes of our strictly objective inquiry. — U.S.-, 135 S.Ct. at 541 (Kagan, J., concurring), quoting State v. Heien, 366 N.C. 271, 737 S.E.2d 351, 360 (2012) (Hudson, J., dissenting); accord id. at-, 135 S.Ct. at 539-40 (majority opinion). Put another way, the fact that the department had trained its officers in a way that permitted a misreading of § 28-931 does not make that misreading objectively reasonable. See Stanbridge, 813 F.3d at 1037; see also Heien, — U.S. -, 135 S.Ct. at 539-40 (“[A]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.”). Accordingly, we conclude the trial court erred in finding the officer’s interpretation of the statute objectively reasonable under Heien. Disposition ¶ 21 We vacate Stoll’s conviction and sentence, reverse the grant of the state’s motion for reconsideration, and remand for further proceedings consistent with this decision. . The state advanced two other possible grounds for reasonable suspicion at the suppression hearing, but they are not at issue here. First, the state noted that at the convenience store, the deputies had plainly smelled burnt marijuana in close proximity to the SUV's two occupants. However, the trial court rejected this as a basis for reasonable suspicion, finding "the odor of burnt marijuana emanating from the area where Defendant and another person were standing, prior to driving, did not justify the later stop of Defendant’s vehicle.” The state does not challenge this ruling on appeal. Second, the SUV had slightly oversized after-market rear tires, but no mud flaps; at the time of the stop the deputies believed this was a violation of A.R.S. § 28-958.01. However, at the suppression hearing, both deputies conceded there was in fact no mud flap violation because the vehicle was an SUV and not a lifted pickup truck. See § 28-958.01(C)(1). . The trial court never departed from its initial conclusion that § 28-931(C)(2) regulates lamp color rather than light direction. On reconsideration, however, the court stated that "one could say that the statute is ambiguous because there are two different terms used; one is illuminating, one is emitting.” The court reasoned that the ambiguity and the incorrect training meant that the deputies' mistake of law had been objectively reasonable under Heien. . Even assuming for the sake of argument that § 28-931 is ambiguous, as the state contends, the section’s title assists us in resolving the ambiguity. See Florez v. Sargeant, 185 Ariz. 521, 524, 917 P.2d 250, 253 (1996) (statutory section headings, though not law, can help resolve ambiguities). Section 28-931 is entitled "Lamp colors.” The statute regulates the color of lamps, not the trajectory of light emitted by particular lamps. See id. To the extent the statute is ambiguous, resolving the ambiguity does not require the sort of "hard interpretive work” that would suggest the deputies’ mistake was reasonable. Heien,U.S. -, 135 S.Ct. at 541 (Kagan, J., concurring); cf. id. at-, 135 S.Ct. at 540 (majority opinion) (noting both majority and dissenting opinions of state supreme court in Heien agreed statute at issue there could reasonably be read in two ways). . Because we agree with Stoll’s argument under the Fourth Amendment of the United States Constitution, we need not address his alternative argument invoking Article II, § 8 of the Arizona Constitution.

OPINION HOWE, Judge: ¶ 1 Petro Gnatkiv (“Gnatkiv”) appeals the trial court’s summary judgment in favor of Andriy Machkur (“Machkur”) and intervenor Ryder Transportation Systems (“Ryder”) for lack of subject matter jurisdiction under the doctrine of res judicata. Gnatkiv argues that the trial court had jurisdiction because the parties and claims in this case are different from his prior New Jersey ease and he did not benefit by virtue of receiving workers’ compensation benefits there. But under the principle of comity, the trial court could have accorded presumptive validity to Gnatkiv’s and Machkur’s New Jersey workers’ compensation settlement agreements and divested itself of jurisdiction in this case. Consequently, because we may affirm a judgment if the trial court was correct in its ruling for any reason, KCI Rest. Mgmt. LLC v. Holm Wñght Hyde & Hays PLC, 236 Ariz. 485, 488 ¶ 11 n. 2, 341 P.3d 1156, 1159 n. 2 (App. 2014), we affirm summary judgment in favor of Machkur and Ryder. FACTS AND PROCEDURAL HISTORY ¶2 Both Gnatkiv and Machkur provided transportation and driving services on behalf of Azstar Logistics, LLC (“Azstar”), a New Jersey corporation. In June 2010, Machkur was driving a semi-truck that went off the road and rolled over near Black Canyon City, Arizona. Gnatkiv was a passenger in the truck and was injured in the accident. ¶ 3 In September 2010, Gnatkiv applied for workers’ compensation benefits in New Jersey. In his petition, Gnatkiv alleged that he “sustained an injury by an accident arising out of and in the course of [his] employment with [Azstar], compensable under” New Jersey’s workers’ compensation laws. Azstar admitted that it employed Gnatkiv on the date of the accident, that the accident “arose out of and in the course of employment,” and that the employment was covered by New Jersey’s workers’ compensation laws. Gnatkiv and Azstar settled the matter, with Gnatkiv receiving nearly $78,000 in permanent disability payments. After finding that the terms of the settlement were “fair and just,” a “judge of compensation” for the New Jersey Division of Workers’ Compensation entered an order approving the settlement. Gnatkiv received workers’ compensation benefits as a result. ¶ 4 Machkur and Azstar also reached a settlement for Maehkur’s claim for benefits under the New Jersey workers’ compensation laws. In an affidavit supporting the settlement, Machkur stated that he “sustained injuries” due to a “work-related accident that occurred on June 28, 2010.” A judge of compensation for the New Jersey Division of Workers’ Compensation approved the settlement between Machkur and Azstar. ¶ 5 In June 2012, Gnatkiv filed this tort claim in Arizona against Machkur. Gnatkiv also sued Ryder Logistics & Transportation Solutions Worldwide, dba Ryder Transportation Services, but stipulated to dismiss that entity with prejudice. Because he was unable to locate Machkur, Gnatkiv served Machkur by publication. The trial court permitted Ryder, the insurance carrier for the semi-truck Machkur drove during the accident, to intervene on its own behalf in defense of Machkur. ¶ 6 Ryder then moved for summary judgment, arguing that the trial court lacked subject matter jurisdiction over Gnatkiv’s tort claim because, regardless whether Arizona or New Jersey law applied, workers’ compensation benefits were Gnatkiv’s exclusive remedy. Gnatkiv responded—contrary to the allegations in his New Jersey petition—that he was an independent contractor, which meant that the exclusive remedy provisions of workers’ compensation laws did not divest the Arizona trial court of subject matter jurisdiction over his tort claim against Machkur. Gnatkiv relied on an affidavit from the business director for ATL Group, of which Azstar was a subsidiary, stating that Gnatkiv was not an employee of Azstar, but an independent contractor. At the very least, Gnatkiv argued, whether he was an employee or an independent contractor was a jury question. ¶ 7 The trial court granted Ryder’s motion for summary judgment, finding that a “determination was made in New Jersey by the Worker’s Compensation entity” that both Gnatkiv and Machkur “were employees of Azstar at the time of the subject accident.” The court also found that “both received worker’s compensation benefits arising from the accident” and “under both New Jersey and Arizona law, only a person who is an employee is entitled to workers’ compensation.” Thus, the court concluded that “the prior determination in New Jersey that [Gnatkiv] was an employee of Azstar has res judicata effect, and is dispositive of this matter.” Gnatkiv timely appealed. DISCUSSION ¶ 8 Gnatkiv argues that the factual dispute about his employment status precludes summary judgment. But the trial court must first resolve “jurisdictional fact issues” where a question of jurisdiction exists and the “jurisdictional fact issues are not intertwined with fact issues raised by a plaintiffs claim on the merits.” See Swichtenberg v. Brimer, 171 Ariz. 77, 82, 828 P.2d 1218, 1223 (App. 1991). In resolving the jurisdiction issue, the trial court may consider affidavits, depositions, and exhibits. Bonner v. Minico, Inc., 159 Ariz. 246, 253-54, 766 P.2d 598, 605-06 (1988). If materials submitted to a trial court raised genuine issues of material fact concerning subject matter jurisdiction, the trial court may nonetheless determine them. Swichtenberg, 171 Ariz. at 82, 828 P.2d at 1223. ¶ 9 Here, the trial court properly resolved the jurisdictional fact issue because the question of Gnatkiv’s employment status is distinct from Gnatkiv’s tort-based allegations against Machkur. The trial court concluded that it lacked subject matter jurisdiction. Consequently, on appeal, we review de novo the court’s ultimate legal conclusion. Id.; see also Mitchell v. Gamble, 207 Ariz. 364, 367 ¶ 6, 86 P.3d 944, 947 (App. 2004) (reviewing de novo orders dismissing a ease for lack of subject matter jurisdiction). We view the evidence in the light most favorable to upholding the court’s ruling and may infer any necessary findings the evidence reasonably supports. Swichtenberg, 171 Ariz. at 82, 828 P.2d at 1223. The plaintiff bears the burden of demonstrating the trial court had subject matter jurisdiction, id. but here, as explained below, Gnatkiv has not met his burden. ¶ 10 In Arizona and New Jersey, workers’ compensation benefits are an employee’s exclusive remedy for injuries suffered on the job against a eoworker acting in the scope of employment. A.R.S. § 23-1022(A); Ortiz v. Clinton, 187 Ariz. 294, 296-97, 928 P.2d 718, 720-21 (App. 1996); N.J. Stat. Ann. § 34:15-8; McDaniel v. Man Wai Lee, 419 N.J.Super. 482, 17 A.3d 816, 820 (App. Div. 2011). Acceptance of workers’ compensation benefits waives a claim against a coworker for injuries suffered on the job if the coworker acted in the scope of employment. A.R.S. § 23-1024(A); AAA Cab Serv. v. Indus. Comm’n of Ariz., 213 Ariz. 342, 343-44 ¶ 5, 141 P.3d 822, 823-24 (App. 2006); N.J. Stat. Ann. § 34:15-8; Burns v. Vilardo, 26 N.J. Misc. 277, 60 A.2d 94, 96 (1948). Consequently, a trial court lacks subject matter jurisdiction over a tort claim by an employee against a coworker acting in the scope of employment. Smithey v. Hansberger, 189 Ariz. 103, 106, 938 P.2d 498, 501 (App. 1996). Subject matter jurisdiction can be raised at any stage of the proceedings. Swichtenberg, 171 Ariz. at 82, 828 P.2d at 1223. ¶ 11 Gnatkiv argues that the trial court had subject matter jurisdiction because the parties and claims in this case are different from the New Jersey ease and he did not benefit by virtue of receiving workers’ compensation benefits there. The trial court concluded that it lacked subject matter jurisdiction because the prior determination in New Jersey that Gnatkiv was an employee of Azstar had res judicata effect, divesting it of jurisdiction. But the doctrine of res judicata does not apply. The doctrine requires that the parties be the same, which is not the ease here: Gnatkiv and Maehkur were not parties to each other’s settlements and Ryder was not a party to either settlement. See Corbett v. ManorCare of Am., Inc., 213 Ariz. 618, 624 ¶ 13, 146 P.3d 1027, 1033 (App. 2006) (providing that under res judicata, “a final judgment on the merits bars further claims by [the same] parties or their privies based on the same cause of action”). However, we reach the same conclusion as the trial court that it lacked jurisdiction under the principle of comity. ¶ 12 The principle of comity is that the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or 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). As a matter of comity, Arizona trial courts may accord the laws and decisions of another state “presumptive validity, subject to rebuttal.” Fremont Indem. Co. v. Indus. Comm’n of Ariz., 144 Ariz. 339, 345, 697 P.2d 1089, 1095 (1985). The scope and applicability of comity rest within the court’s discretion. Id. In workers’ compensation cases, the compensation law is “construed liberally so as to effectuate its remedial purpose,” and consequently, “the rule that strangers to a judgment may not be bound thereby must yield in the [workers’] compensation area.” Id. In Fremont, our supreme court accorded “presumptive validity, subject to rebuttal” of a New Jersey determination that the claimant suffered an industrial injury in New Jersey. Id. ¶ 13 In the present case, we accord presumptive validity to Gnatkiv’s and Machkur’s New Jersey workers’ compensation benefits orders. Both Gnatkiv and Maehkur filed claims with the New Jersey’s Division of Workers’ Compensation alleging that they were employees in the course of their employment at the time of the accident. New Jersey law gives the Division of Workers’ Compensation “exclusive jurisdiction of all claims for workers’ compensation benefits.” N.J. Stat. Ann. § 34:15-49; Frappier v. E. Logistics, Inc., 400 N.J.Super. 410, 947 A.2d 693, 696 (App. Div. 2008). The Division’s jurisdiction extends only to claims by an “employee,” not an independent contractor. Frappier, 947 A.2d at 696. ¶ 14 The Division has authority to approve a settlement between an employee and employer for personal injuries arising in the course of employment. N.J. Stat. Ann. § 34:15-22, -58. The employer can contest the Division’s jurisdiction but nevertheless enter into a settlement with the employee while contesting jurisdiction. N.J. Stat. Ann. § 34:15-20. The Division’s approval of such a settlement has the effect of dismissing the claim petition. Id. In Gnatkiv’s and Machkur’s cases, the employer did not contest jurisdiction, but instead answered that Gnatkiv and Machkur were employees in the course of their employment. The Division thus entered orders approving their settlements, and their respective settlements were not pursuant to a disputed jurisdiction settlement. ¶ 15 Gnatkiv argues that he mistakenly received workers’ compensation benefits in New Jersey, however, because he was an independent contractor. The Division has inherent power to “reopen judgments for fraud, mistake, inadvertence, or other equitable ground.” Beese v. First Nat’l Stores, 52 N.J. 196, 244 A.2d 689, 691 (1968). If Gnatkiv improperly received benefits to which he is not entitled, “he is liable to repay that sum plus simple interest to the employer or the carrier.” N.J. Stat. Ann. § 34:15-57.4(e)(2). Yet Gnatkiv took no action to vacate the Division’s order that provided him benefits, took no action to withdraw from the settlement entered into that led to that order and, from the record provided, has taken no action to alter in any way the Division’s order. ¶ 16 On this record, no compelling reason exists not to defer to the New Jersey orders approving Gnatkiv’s and Machkur’s settlements. The record does not show that either settlements was reopened or appealed or that Gnatkiv has repaid the carrier the settlement monies he received. Accordingly, the trial court could have accorded presumptive validity to the New Jersey settlement orders. We find that Gnatkiv failed to rebut their presumptive validity. Moreover, by according the workers’ compensation settlements of New Jersey presumptive validity, subject to rebuttal, in this case, all competing interests are accommodated: (1) Ryder, the intervenor, a stranger to the prior proceeding, is given the opportunity to challenge the trial court’s actions therein, and (2) the broad remedial purpose of compensation law is effectuated. See supra at ¶12; see also Fremont, 144 Ariz. at 345, 697 P.2d at 1095. Because under the principle of comity, the trial court could have accorded presumptive validity to Gnatkiv’s and Machkur’s New Jersey workers’ compensation settlement agreements and divested itself of jurisdiction, we need not address whether the doctrine of judicial estoppel applies. See Freeport McMoran Corp. v. Langley Eden Farms, LLC, 228 Ariz. 474, 478 ¶ 15, 268 P.3d 1131, 1135 (App. 2011) (declining to decide unnecessary issues or issue advisory opinions). We may affirm a judgment if the trial court was correct in its ruling for any reason, KCI, 236 Ariz. at 488 ¶ 11 n. 2, 341 P.3d at 1159 n. 2, and accordingly, we affirm summary judgment in favor of Machkur and intervenor Ryder for lack of subject matter jurisdiction. ¶ 17 Ryder requests attorneys’ fees incurred on appeal pursuant to A.R.S. § 12-341.01. But because workers’ compensation cases do not arise out of contract for purposes of that statute, Pettinato v. Indus. Comm’n of Ariz., 144 Ariz. 501, 503, 698 P.2d 746, 748 (App. 1984), we deny its request. CONCLUSION ¶ 18 For the foregoing reasons, we affirm. . Because Arizona and New Jersey law are the same on the central issue of this case—the exclusive remedy effect of workers’ compensation law—we need not perform a choice of law analysis. See Lucero v. Valdez, 180 Ariz. 313, 321, 884 P.2d 199, 207 (App. 1994) (McGregor, J„ dissenting) (providing that this Court performs a choice of law analysis only when a true difference in the law of the two jurisdictions exists and no true conflict exists unless the laws of the two jurisdictions differ).

OPINION HOWARD, Presiding Judge: ¶ 1 In this petition for review, Darren Goldin challenges the trial court’s order denying his petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., after an evidentiary hearing, and finding his claim of ineffective assistance of counsel (IAC) precluded. Based on our supreme court’s decision in State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014), and the unique circumstances of this ease, we grant relief in part, remanding this matter to the trial court to detei’mine whether Goldin is entitled to relief pursuant to Rule 32.1(f) and, if so, to allow Goldin to present his IAC claim in a timely post-conviction proceeding. Procedural History ¶ 2 Goldin was charged by indictment with first-degree murder, committed in March 2000. Pursuant to a plea agreement, he pled guilty to second-degree murder. The plea agreement stipulated Goldin would be sentenced to a prison term of eleven years, to be served consecutively to another prison term he began serving in Maricopa County Superi- or Court No. CR-00-092448B in September 2005. During the change-of-plea hearing, when the trial court explained to Goldin the sentence was consecutive, trial counsel Thomas Hippert interjected that the sentence “goes back to the time of his arraignment,” and “it does run from I think May of 2010.” The court did not pursue the issue further. ¶ 3 At the sentencing hearing on January 31, 2013, the parties submitted an addendum to the plea agreement, which stated: “Pursuant to A.R.S. § 13—712(b) and ARCP Rule 26.10(4), the parties stipulate that the Court shall order that Defendant’s pretrial incarceration dating from his Arraignment on June 15, 2010 be credited against his sentence of imprisonment____” The trial court sentenced Goldin to the eleven-year prison term, and granted him 988 days of pi’esentence incarceration credit. In imposing that term, the court confirmed the sentence was consecutive to the sentence in the Maricopa County case, but added, “which, as the parties have indicated on the record today, by stipulation, that date is to start to commence from June 15, 2010. At this point, I understand that the presentence report author has calculated 988 days.” ¶ 4 A year later, on February 10, 2014, Goldin filed a pro se notice of post-conviction relief. On the form notice, he checked the space to reflect he was not asserting a claim of ineffective assistance of counsel. He also requested that Hippert and Raymond Panzarella, the second attorney who had represented him, be appointed in the post-conviction proceeding. In the paragraph pertaining to an untimely notice, however, the form required Goldin to specify whether he intended to raise a claim pursuant to Rule 32.1(d), (e), (f), (g) or (h); Goldin did not cheek the space indicating “yes” or “no.” The trial court dismissed the notice as untimely, noting Goldin had “failed to indicate in his Notice that an exception to a timely Notice applied. Ariz. R. Crim. P. 32.2(b).” See Ariz. R. Crim. P. 32.4(a) (notice of post-conviction relief must be filed within ninety days of sentencing). ¶ 5 On February 27, Goldin filed a form petition for post-conviction relief, in propria persona, in which he stated he wished to assert a claim pursuant to Rule 32.1(c). He also filed a motion to clarify his sentence. The state filed its response to the petition and motion on March 13. On March 19, the trial court entered an order stating it lacked “jurisdiction to address the Petition” and the accompanying memorandum because the untimely notice with which it was associated had been dismissed and no new notice of post-conviction relief had been filed. Goldin did not seek review of that ruling. ¶ 6 On April 16, 2014, Goldin filed a second pro se notice of post-conviction relief. In that notice he stated he was asserting a claim of IAC and requested the appointment of counsel. He also indicated that he was raising claims of newly discovered material facts and that failure to file a timely notice of post-conviction relief was without fault on his part. Goldin asserted in the notice that Hip-pert and Panzarella had told him his sentence would commence in 2010 but he had learned it commences in 2016. ¶ 7 The trial court appointed Paul Banales to represent Goldin. In a petition Banales filed in October 2014, Goldin asserted that, based on erroneous assurances from Hippert and Panzarella, he had believed his sentence “would start to run as of May of 2010.” Goldin relied, in part, on Hippert’s statements during the change-of-plea hearing and correspondence with Hippert, who confirmed he had understood the sentence would “start” in May or June of 2010. Goldin argued he recently had learned of a discrepancy between his understanding of when his sentence commenced and what the Arizona Department of Corrections (DOC) had told him, which was, according to Goldin, that the sentence “would not start to run until September of 2013.” ¶ 8 The state argued in its response to the petition that the IAC claim was precluded because Goldin had not raised it in the first post-conviction proceeding and, alternatively, the claim was untimely. See Ariz. R. Crim. P. 32.2(a)(3), 32.4(a). The state also argued that no claim had been or could be raised pursuant to Rule 32.1(e) or (f), refuting the merits of such claims had they been raised; the state argued, too, that Goldin had asserted no meritorious reason for failing to raise such claims in the initial proceeding or in a timely manner. See Ariz. R. Crim. P. 32.2(b) (requiring defendant attempting to raise claim under Rule 32.1(d), (e), (f), (g) and (h) in successive or untimely proceeding to es tablish meritorious reasons why not raised in timely or previous proceeding). ¶ 9 In his reply, Goldin again asserted he had misunderstood his sentence because of the ineffectiveness of his attorneys, and explained he had failed to raise the IAC claim in a timely or previous proceeding because he only recently had learned he had such a claim. He then argued he was entitled to relief based on newly discovered evidence pursuant to Rule 32.1(e) both as an independent claim and interrelated with the IAC claim. Goldin concluded in his reply, “Whether Defendant’s claim is based on IAC, or newly-discovered evidence, there are those exceptional eases which deserve post-conviction consideration, even if the defendant failed to raise IAC in his first Rule 32 Notice.” ¶ 10 Over the state’s objection, the trial court set the matter for an evidentiary hearing. A DOC employee in the Time Computation Unit testified at that hearing that Goldin’s Maricopa County sentence would be completed in June 2016, and the consecutive sentence in this case then would commence. He explained that to apply 988 days’ credit to the eleven-year sentence, the sentence-commencement date essentially is back-dated so that it would, for time-calculation purposes, begin January 31, 2013, and would be completed on September 17, 2024. ¶ 11 Hippert and Panzarella testified that although the plea agreement provided and the trial court had imposed a consecutive prison term, they had believed Goldin essentially would begin serving his sentence from the time of his arraignment in 2010 because of the nearly three years’ presentence incarceration credit. Both attorneys believed this was the import and intent of the addendum to the plea agreement. And, they testified, this is what they had told Goldin. ¶ 12 Goldin testified consistently with Hip-pert and Panzarella about what they had told him. He conceded he had stipulated to a consecutive prison term and neither the plea agreement nor the addendum stated he would begin serving his sentence in May or June of 2010, although he believed the sentence, in effect, would be partially concurrent because of the presentenee incarceration credit. He testified further that, had he known he would not begin serving the eleven-year term until June 2016, and would have to serve eight more years, not five, after receiving the three years’ credit, he would not have accepted the plea agreement. ¶ 13 Goldin also testified he did not recognize an issue with his sentence until he sought transfer to minimum security, which required a calculation of the amount of time remaining on both prison terms. When he wrote to Hippert telling him what DOC had told him, Hippert said he should “write a Rule 32” about DOC’s miscalculation of his sentence. Goldin explained that this advice caused him to file the first notice of post-conviction relief, followed by a petition and motion for clarification of the sentence. He testified that it was not until the state filed its response that he realized DOC had not miscalculated the sentence, but that his attorneys had given him incorrect information. At that time, he filed the second notice and petition raising the IAC claim. After taking the matter under advisement, the trial court denied Goldin’s petition. This petition for review followed. Discussion ¶ 14 In his petition for review, Goldin argues the trial court erred by finding pre eluded his IAC claim based on newly discovered evidence. But IAC claims fall under Rule 32.1(a). See, e.g., State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 637, 641 (App.2010); Ariz. R. Crim. P. 32.1(a) emt. (acknowledging ineffeetive-assistance-of-counsel claims fall under this subsection). As a claim that falls under Rule 32.1(a), Goldin’s IAC claim had to be raised in a timely notice, that is, within ninety days of sentencing; Goldin’s first notice, filed over a year after he was sentenced, clearly was untimely, unless excused. See Ariz. R. Crim. P. 32.4(a). Furthermore, IAC claims may not be raised in a successive proceeding. See State v. Swoopes, 216 Ariz. 390, ¶¶ 23-24, 166 P.3d 945, 952-53 (App.2007); see also State v. Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d 525, 526 (2002) (“Our basic rule is that where ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.”). ¶ 15 Neither the plain language of the rule nor case law interpreting it prior to Diaz supports Goldin’s suggestion that because of his attorneys’ ineffectiveness, his newly discovered IAC claim should be excepted from the preclusive effect of Rule 32.2 and 32.4. Based solely on the rule, the trial court did not abuse its discretion in finding the IAC claim precluded. See Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d at 948 (appellate court will not disturb ruling in post-conviction proceeding absent clear abuse of discretion). ¶ 16 Nevertheless, in its draft decision provided to the parties before oral argument, this court suggested the supreme court’s recent decision in Diaz could be applicable to Goldin’s case. In Diaz, the defendant’s first and second notices of post-conviction relief were dismissed after different appointed counsel in both proceedings failed to file a petition despite having been granted several extensions to do so. 236 Ariz. 361, ¶¶ 3-4, 340 P.3d at 1070. The trial court found the IAC claim Diaz raised in his third post-conviction proceeding had been waived and was precluded, based on the clear language of the rule and existing case law. We agreed on review. Id. ¶ 5. ¶ 17 Our supreme court accepted Diaz’s petition for review “to decide an important issue of law concerning waiver in Rule 32 proceedings.” Id. ¶ 6. The court noted that Diaz’s first Rule 32 notice was filed timely. Id. ¶ 11. It also acknowledged that a defendant is precluded from raising a claim waived by his failure to raise it in a previous post-conviction proceeding. Id. ¶ 1. But, the court concluded, “Under the unusual facts of this case, Daniel Diaz did not waive his ineffective assistance of trial counsel claim when, through no fault of Diaz’s, his counsel failed to file petitions in two prior post-conviction relief proceedings.” Id. ¶ 18 The supreme court reasoned that its “holding in this peculiar scenario does not frustrate Rule 32’s preclusion provisions[, which] ... ‘require a defendant to raise all known claims for relief in a single petition.’ ” Id. ¶ 12, quoting Petty, 225 Ariz. 369, ¶ 11, 238 P.3d at 641. The purpose of preclusion, the court observed, is to “ ‘prevent endless or nearly endless reviews of the same case in the same trial court.’ ” Id., quoting Stewart v. Smith, 202 Ariz. 446, ¶ 11, 46 P.3d 1067, 1071 (2002). The court concluded, “Permitting Diaz to file his first petition to assert an IAC claim under the circumstances here will not result in repeated review of the IAC claim; it would result in its first review.” Id. ¶ 19 The state contended during oral argument that the reasoning and holding in Diaz could completely undermine the rules of preclusion if not strictly confined to very unusual eases. However, the rule of law requires that “similarly situated litigants should be treated the same.” James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 540, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991); see also Am. Trucking Assns., Inc. v. Smith, 496 U.S. 167, 214, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990) (“The Court has no ... authority ... to disregard current law or treat similarly situated litigants differently.”); In re Fulton, 211 B.R. 247, 256 (Bankr.S.D.Ohio 1997) (“The very idea of law connotes the same treatment for similarly situated persons for indistinguishable factual situations.”); Gaines v. State, 116 Nev. 359, 998 P.2d 166, 173 (2000) (“The Equal Protection Clause of the Fourteenth Amendment mandates that all persons similarly situated receive like treatment under the law”). This principle of equality is a “fundamental component of stare decisis and the rule of law generally,” and prevents a court “from piek[ing] and ehoos[ing] among similarly situated defendants ... who alone will receive the benefit of a ‘new5 rule.” James B. Beam Distilling Co., 501 U.S. at 537-38, 111 S.Ct. 2439, quoting Desist v. United States, 394 U.S. 244, 258-59, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). Indeed, the “‘[different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment.’ ” Griffith v. Kentucky, 479 U.S. 314, 327, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), quoting Michigan v. Payne, 412 U.S. 47, 60, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973) (Marshall, J., dissenting). Therefore, we must determine whether Goldin’s situation is sufficiently similar to Diaz’s to merit applying Diaz’s reasoning to him. ¶ 20 The record establishes that both of Goldin’s attorneys misinformed him concerning the functional length of his sentence, rendering ineffective assistance. The prosecuting attorney also contributed to the confusion. And, because of the improper advice, the trial court’s colloquy at the change-of-plea hearing, which followed the standard outline, was inadequate to properly inform Goldin of the true effect of the sentencing provisions. See Ariz. R. Crim. P. 17.2(b). Accordingly, based on this record, he pled guilty without understanding the sentence being imposed. Ariz. R. Crim. P. 17.1(b) (plea must be made intelligently and voluntarily); see also State v. Cordova, 105 Ariz. 597, 598, 469 P.2d 82, 83 (1970) (“due process requires a plea of guilty to be made voluntarily and with understanding”); cf. State v. Lamas, 143 Ariz. 564, 567, 694 P.2d 1178, 1181 (1985) (plea could not be made voluntarily or intelligently where trial court failed to fully inform defendant of all conditions surrounding sentence). ¶ 21 Later, when Goldin told one of his attorneys that DOC was miscalculating his sentence, that attorney told him to file a Rule 32 notice. But a miscalculation by DOC, without more, would not be grounds for relief under Rule 32. See Ariz. R. Crim. P. 32.1(d) & cmt. (post-conviction relief for miscalculated sentence only available when petitioner would have been released already but for alleged error); see also State v. Davis, 148 Ariz. 62, 64, 712 P.2d 975, 977 (App.1985) (challenges to DOC time computation not cognizable under Rule 32 “unless they result in the defendant remaining in custody when he should otherwise be free”). And the attorney did not inform Goldin that he would have to justify his untimely filing under Rule 32.1(d)-(h). ¶ 22 When Goldin discovered that the problem was not a DOC error, he filed his second notice and petition, arguing he had received ineffective assistance. The trial court held an evidentiary hearing during which the true facts concerning Goldin’s attorneys’ inadequate advice were revealed for the first time. ¶ 23 Based on Diaz, we cannot conclude that any of Goldin’s actions or inaction could be construed as a waiver of his Rule 32 rights. Rather, just as in Diaz, Goldin was “blameless” and allowing his claim to move forward would result in a “first review,” not repeated review. 236 Ariz. 361, ¶¶ 11-12, 340 P.3d at 1071. ¶ 24 However, in Diaz, our supreme court noted the petitioner had filed his first notice in a timely manner, and the ensuing problems stemmed from his attorneys’ failures to file an initial petition. Id. ¶ 11. Here, Goldin had ninety days to file his first Rule 32 notice but did not file it until a year after he had been sentenced. See Ariz. R. Crim. P. 32.4(a). The state argues Goldin failed to file his notice in a timely fashion and that the time limits are jurisdictional under A.R.S. § 13-4234(G), which states that an untimely notice “shall be dismissed with prejudice.” ¶ 25 However, Rule 32.1(f) provides that a notice may be considered timely if “[t]he defendant’s failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant’s part” See also A.R.S. § 13-4231(6) (defendant may institute post-conviction proceeding if the “failure to appeal from the judgment or sentence, or both, within the prescribed time was without fault on his part.”); Osterkamp v. Browning, 226 Ariz. 485, ¶ 24, 250 P.3d 551, 557 (App.2011) (pleading defendant’s first Rule 32 proceeding equivalent of non-pleading defendant’s appeal); State v. Pruett, 185 Ariz. 128, 130-31, 912 P.2d 1357, 1359-60 (App.1995). But, as the state argued, the trial court was not asked to consider Rule 32.1(f) and did not do so. Therefore, we remand to the trial court for that determination. Disposition ¶ 26 As we observed in State v. Rosales, 205 Ariz. 86, ¶ 12, 66 P.3d 1263, 1267 (App.2003), “The preclusion rules exist to prevent multiple post-conviction reviews, not to prevent review entirely.” And, “Rule 32 ‘is designed to accommodate the unusual situation where justice ran its course and yet went awry.’ ” State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984), quoting State v. McFord, 132 Ariz. 132, 133, 644 P.2d 286, 287 (App.1982). Such a situation exists here. Based on the unusual circumstances of this case and given our supreme court’s decision in Diaz, we are compelled to grant Goldin’s petition for review and grant relief, in part. We remand this matter to the trial court so that it may determine whether Goldin’s initial post-conviction proceeding may be regarded as timely filed pursuant to Rule 32.1(f) and, if so, to permit him to present the IAC claim as though it had been raised in a timely commenced, of-right proceeding. The issues on the merits having been briefed and an evidentiary hearing having been conducted, the court may determine on the existing record whether the apparently deficient performance by Goldin’s attorneys was prejudicial, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or it may conduct any further proceedings necessary. . The actual date of Goldin’s arraignment was June 15, 2010. . Goldin also argued, as an independent claim, that the sentence was illegal because he was entitled to the credit by statute; he has since expressly abandoned that claim. . In this regard, Hippert testified, "So if I made a mistake, that’s what Mr. Goldin was told.” Panzarella testified he and Hippert told Goldin that even though he had agreed to the consecutive prison term, he would begin serving his prison term in this case in June 2010 because of the three years’ credit. .Goldin attached to his Rule 32 petition an undated letter from Hippert responding to Goldin’s inquiry about the sentence in light of DOC’s calculations. In that letter, Hippert stated the eleven-year sentence began in June 2010, that Goldin only had five more years to serve after the term on the other case ended, and the sentence in this case would end in 2021. Hippert directed Goldin to file a “rule 32 yourself back to the sentencing judge ... as to miscalculation of time served.” . Although Goldin did not raise Diaz below or here, that case was published after his second petition was filed. Diaz, 236 Ariz. 361, 340 P.3d 1069. And because the state received the draft decision prior to oral argument, it was given the opportunity, which it took, to argue and provide legal authority to support its proposition that Diaz is inapplicable to this case. See State v. Ortiz, 238 Ariz. 329, ¶71, 360 P.3d 125, 140-41 (App.2015) (addressing issue not briefed when opposing party had opportunity to address it at oral argument). . Notably, relief under Rule 32.1 (f) was not available to Diaz because he was a non-pleading defendant. State v. Diaz, 228 Ariz. 541, ¶ 2, 269 P.3d 717, 718 (App.2012); see Ariz. R. Crim. P. 32.1(f).

CHIEF JUSTICE BALES, opinion of the Court: ¶ 1 Here we consider whether the odor of marijuana suffices to establish probable cause for issuance of a search warrant, given the adoption of the Arizona Medical Marijuana Act (“AMMA”), A.R.S. §§ 36-2801 through 2819. We hold that it does, unless other facts would cause a reasonable person to believe the marijuana use or possession is authorized by AMMA, thereby dispelling the probable cause that otherwise would exist. I. ¶ 2 In March 2013, Tucson police officers responded to a tip that “a strong odor of fresh marijuana” was emanating from a storage warehouse at 18 West 35th Street. This address is for Unit 18 in a complex of four similar buildings. When the officers approached the complex in their patrol ear, they could smell an “overpowering odor of fresh marijuana.” After they walked on the sidewalk around the complex’s perimeter, the officers believed the odor was emanating from Unit 18. ¶ 3 Based on the odor of marijuana, the officers sought a telephonic warrant to search Unit 18. The magistrate issued the warrant, but when the officers searched this unit, they found it vacant. The police then applied for an amended warrant to search Unit 20, which was separated from Unit 18 by a wall and locked gate. The officers avowed that after entering Unit 18 they could better identify the source of the odor. The magistrate issued an amended warrant. When the officers entered Unit 20, they found it was being used as a residence and a marijuana growing operation. In the ensuing search, officers seized marijuana growing equipment, marijuana paraphernalia, and hundreds of marijuana plants. ¶ 4 As a result of the search, Ronald James Sisco II was identified as an occupant of Unit 20. He was charged with child abuse, possession of drug paraphernalia, possession of mai’ijuana for sale, and production of marijuana. Sisco moved to suppress evidence found in the search, arguing among other things that the odor of marijuana no longer suffices to establish probable cause in light of AMMA. After an evidentiary hearing the trial court denied the motion, finding that AMMA does not impact the probable cause determination. Sisco was convicted of all charges and the court imposed concurrent prison terms, the longest of which was three and one-half years. ¶ 5 The court of appeals, in a split decision, reversed the trial court’s ruling on Sisco’s suppression motion and vacated his convictions and sentences. State v. Sisco, 238 Ariz. 229, 246 ¶ 57, 359 P.3d 1, 18 (App. 2015). The majority held that after AMMA, the scent of marijuana, in itself, is insufficient evidence of criminal activity to supply probable cause, and there were no “additional, commonly evident facts or contextual information suggesting a marijuana-related offense.” Id. at 232 ¶ 2, 359 P.3d at 4. The dissent argued that the odor of marijuana still suffices to establish probable cause after AMMA and, even if it does not, the facts suggested the possession here was not in compliance with AMMA and thus supported the warrant. Id. at 249 ¶ 68, 359 P.3d at 21 (Espinosa, J., dissenting). ¶ 6 We granted review because whether AMMA affects the determination of probable cause based on the odor of marijuana is a recurring issue of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and AR.S. § 12-120.24. II. ¶ 7 Prohibiting “unreasonable searches and seizures,” the Fourth Amendment to the United States Constitution provides that “no warrants shall issue, but upon probable cause.” See also Ariz. Const. art. 2, § 8; A.R.S. § 13-3913. Whether a magistrate’s probable cause determination comports with the Fourth Amendment is a mixed question of law and fact that we review de novo. State v. Moore, 222 Ariz. 1, 7 ¶ 17, 213 P.3d 150, 156 (2009). ¶ 8 Probable cause exists when the facts known to a police officer “would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.” Florida v. Harris, — U.S.-, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013) (internal quotation marks and citations omitted). The facts need not show it is more likely than not that contraband or evidence of a crime will be found. “Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence ... have no place in the [probable-cause] decision.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Instead, all that is “required is the kind of ‘fair probability1 on which ‘reasonable and prudent [people,] not legal technicians, act.’ ” Id. (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317). This “practical and commonsense” standard depends on the totality of the circumstances. Id. A. ¶ 9 An officer can rely on his or her senses, including the sense of smell, to establish probable cause if doing so would lead a reasonable person to believe that contraband or evidence of a crime is present. E.g., State v. Decker, 119 Ariz. 195, 197, 580 P.2d 333, 335 (1978). Accordingly, Arizona decisions predating AMMA held that an officer detecting the odor of marijuana was itself sufficient to establish probable cause, as the possession or use of marijuana was per se illegal. See id. (holding that odor of burning marijuana emanating from hotel room afforded probable cause to believe crime had been or was being committed); see also State v. Harrison, 111 Ariz. 508, 509, 533 P.2d 1143, 1144 (1975) (holding that odor of marijuana afforded probable cause to believe automobile contained contraband); State v. Mahoney, 106 Ariz. 297, 301-02, 475 P.2d 479, 483-84 (1970) (holding that probable cause was established by odor of marijuana emanating from suitcase). ¶ 10 The parties have used the phrase “plain smell doctrine” to refer to the proposition that marijuana’s odor can alone provide probable cause. This terminology, however, is imprecise, partly reflecting that court opinions have used the phrase “plain smell” in different contexts. The phrase has sometimes been used to describe circumstances when no “search” has occurred because detecting an odor does not invade an expectation of privacy. See, e.g., State v. Morrow, 128 Ariz. 309, 312, 625 P.2d 898, 901 (1981) (holding that dog’s sniffing a bag at an airport is not a search and stating that “plain smell” doctrine is akin to “plain view” doctrine). Whether detecting an odor constitutes a search is, of course, a different issue than whether an odor affords probable cause. ¶ 11 Equating the “plain smell” or “plain view” doctrines with relying on one’s senses to establish probable cause is also potentially confusing because the United States Supreme Court has used the plain view doctrine to identify circumstances when a police officer may lawfully seize items without a warrant. See Horton v. California, 496 U.S. 128, 133-34, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The doctrine allows police to seize an object “if they are lawfully in a position to view it, if its incriminating character is immediately apparent, and if they have a lawful right of access to it.” Minnesota v. Dickerson, 508 U.S. 366, 374-75, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); see also Horton, 496 U.S. at 133-34, 110 S.Ct. 2301; Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); Mazen v. Seidel, 189 Ariz. 195, 197, 940 P.2d 923, 925 (1997). ¶ 12 By requiring that an object’s “incriminating character” be “immediately apparent” for purposes of the plain view doctrine, the United States Supreme Court has not adopted a standard more stringent than probable cause. Although the phrase “immediately apparent” might suggest “near certainty,” Texas v. Brown, 460 U.S. 730, 741, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the Court has rejected such “an unduly high degree of certainty as to the incriminatory character of evidence” for application of the plain view doctrine, id. clarifying that police need only have probable cause to associate the object with criminal activity. See Horton, 496 U.S. at 142, 110 S.Ct. 2301 (noting that police had probable cause to believe objects seized were incriminating evidence); Hicks, 480 U.S. at 326-27, 107 S.Ct. 1149 (recognizing plain view doctrine can apply when officer has probable cause to believe object is contraband); Brown, 460 U.S. at 741-42, 103 S.Ct. 1535; see also State v. Apelt, 176 Ariz. 349, 363, 861 P.2d 634, 648 (1993) (noting that plain view doctrine justified seizure if apparent evidentiary value of items established probable cause). ¶ 13 This case does not concern whether a search occurred when police detected the odor of marijuana or whether the plain view (or “plain smell”) doctrine authorized a warrantless seizure. Instead, we must decide whether, in light of AMMA, the officers’ detection of an “overpowering odor” of marijuana afforded probable cause; that is, whether a reasonable person would conclude there was a “fair probability” the storage unit contained contraband or evidence of a crime. B. ¶ 14 AMMA has made the use of marijuana lawful for medicinal purposes under the terms and conditions set forth in that Act. Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122-23 ¶¶ 7, 17, 347 P.3d 136, 139-40 (2015); State ex rel. Montgomery v. Harris, 234 Ariz. 343, 345 ¶ 16, 322 P.3d 160, 162 (2014). Thus, although marijuana possession or use remains illegal under federal law, the odor of marijuana no longer necessarily reflects criminal activity under Arizona law. ¶ 15 Probable cause, however, does not turn on the “innocence” or “guilt” of particular conduct, but instead on the “degree of suspicion that attaches to particular types of non-criminal acts.” Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317. “[Pjrobable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity____[Therefore, innocent behavior frequently will provide the basis for a showing of probable cause.” Id. ¶ 16 Notwithstanding AMMA, the odor of marijuana in most circumstances will warrant a reasonable person believing there is a fair probability that contraband or evidence of a crime is present. This conclusion reflects that AMMA did not decriminalize the possession or use of marijuana generally. AR.S. § 13-3405(A) (criminalizing marijuana possession and use in Arizona); AR.S. § 36-2802(E) (limiting immunity from civil, criminal, or other penalties for using marijuana to instances where “authorized under [AMMA]”). If AMMA had done so, or if Arizona eventually decriminalizes marijuana, our analysis and conclusion in this context might well be different. Cf. Commonwealth v. Cruz, 459 Mass. 459, 945 N.E.2d 899, 908-09 (2011) (no reasonable suspicion, let alone probable cause, of criminal activity based on “faint odor” of marijuana because possession of up to one ounce of marijuana is not criminal but rather a civil offense); State v. Crocker, 97 P.3d 93, 96-98 (Alaska Ct. App. 2004) (no probable cause to believe “strong odor” of marijuana coming from inside residence, without more, indicated unlawful activity where state constitution authorizes all citizens to grow marijuana for personal use, up to four ounces). ¶ 17 Instead, AMMA makes marijuana legal in only limited circumstances. Possession of any amount of marijuana by persons other than a registered qualifying patient, designated caregiver, or medical marijuana dispensary agent is still unlawful, and even those subject to AMMA must strictly comply with its provisions to trigger its protections and immunities. See AR.S. §§ 13-3405(A)(1), 36-2802(E). Thus, when an officer detects marijuana by sight or smell, the “degree of suspicion that attaches” remains high, notwithstanding AMMA See Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317. A reasonable officer is therefore justified in concluding that such sight or smell is indicative of criminal activity, and thus probable cause exists. See id. ¶ 18 This does not mean, however, that AMMA has no effect on an officer’s probable cause determination. Because probable cause is determined by the totality of the circumstances, Gates, 462 U.S. at 238, 103 S.Ct. 2317, and marijuana possession or use is lawful when pursuant to AMMA, Reed-Kaliher, 237 Ariz. at 122-23 ¶¶ 7, 17, 347 P.3d 136, 139-40, a reasonable officer cannot ignore indicia of AMMA-compliant marijuana possession or use that could dispel probable cause. See, e.g., State v. Buccini, 167 Ariz. 550, 556-58, 810 P.2d 178, 184-86 (1991) (holding probable cause absent when officer ignores information material to distinction between criminal and non-criminal activity). Moreover, we have consistently held that police must include exculpatory facts that are known to them and material to the probable cause determination in any affidavit in support of a search warrant. Id. at 554-55, 557-58, 810 P.2d at 182-83, 185-86 (noting that “omissions are material where there is a substantial possibility that the omitted facts would have altered a reasonable magistrate’s probable cause determination”) (internal quotation marks and citations omitted); see also State v. Carter, 145 Ariz. 101, 109-10, 700 P.2d 488, 496-97 (1985). We reaffirm those principles here, giving effect to the interplay between Arizona’s general proscription of marijuana and AMMA. ¶ 19 For instance, AMMA requires qualifying patients to register with the Arizona Department of Health Services (“DHS”) and apply for a registry identification card in order to lawfully possess and use medical marijuana. AR.S. § 36-2811(B) (limiting immunity from arrest, prosecution, or penalty for marijuana offenses to the medical use of marijuana for a “registered qualifying patient[ ]” (emphasis added)); AR.S. § 36-2801(9) (defining “medical use” of marijuana as “possession ... [or] use” of marijuana for treatment of a “registered qualifying patient’s debilitating medical condition”) (emphasis added). If the qualifying patient satisfies all statutory and regulatory requirements to possess and use medical marijuana, DHS issues the patient a registry identification card. AR.S. §§ 36-2804.05(A), -2804.04(A), -2804.03(A). ¶20 Presentation of a valid AMMA registry identification card, therefore, could indicate that marijuana is being lawfully possessed or used. Such information could effectively dispel the probable cause resulting from the officer’s detection of marijuana by sight or smell, unless of course other facts suggest the use or possession is not pursuant to AMMA See AR.S. § 36-2811(H) (providing that possession of registration card does not provide probable cause but also does not preclude existence of probable cause on other grounds). The ultimate inquiry, as in other probable cause determinations, turns on a “practical, common-sense” consideration of the totality of the circumstances. Harris, 133 S.Ct. at 1055. ¶ 21 Sisco argues that AMMA has elevated the standard of probable cause with respect to marijuana, either in general or at least with respect to registered qualifying patients. Under that view, no person in Arizona would be subject to search or seizure by state or local police officers based only on an officer seeing or smelling marijuana. Instead, officers would need something more to conclude criminal activity is occurring or has occurred—what might be termed an “odor (or sight) plus” standard. ¶ 22 We disagree. AMMA does not broadly alter the legal status of marijuana in Arizona but instead specifies particular rights, immunities, and obligations for qualifying patients and others, such as designated caregivers. See AR.S. §§ 36-2801(13) (defining “qualifying patient” as those diagnosed by a physician as having a debilitating medical condition); 36-2811(B) (limiting AMMA’s protections only to those qualifying patients registered with DHS and complying with AMMA’s limitations); 36-2802(E) (reiterating marijuana possession and use remains unlawful in Arizona “except as authorized under [AMMA]”). ¶23 Nor does AMMA’s broad immunity provision, § 36-2811(B), or its subsection relating to probable cause, § 36-2811(H), suggest that AMMA patients have greater protections from searches or increased expectations of privacy than those enjoyed by the general public. Subsection (B) affords immunities for specified conduct under AMMA; subsection (H) provides that pos session of a registry card does not itself constitute probable cause, but also does not preclude the existence of probable cause on other grounds. AMMA expressly does not prevent the imposition of criminal or other penalties for using marijuana except as permitted by the statute. § 36-2802(E). Taken together, these provisions suggest that registered qualifying patients, and others covered by the Act, are not generally afforded greater protections from searches than is the general public, but instead enjoy such protections as AMMA specifically provides. E.g., §§ 36—2811(E), (F) (affording certain protections against searches of registered nonprofit medical marijuana dispensaries and their agents). ¶ 24 Sisco also argues that allowing searches based merely on the odor of marijuana would deny registered patients their right to privacy protected by the Fourth Amendment and Article 2, Section 8 of the Arizona Constitution. Denying this right, Sis-co contends, would in turn violate AMMA’s provision stating that a registered qualifying patient is not “subject to ... denial of any right or privilege” for the patient’s medical use of marijuana. § 36-2811(B). But the right to privacy protected by the Fourth Amendment and Article 2, Section 8 is not a guarantee against all government searches and seizures, only unreasonable ones. U.S. Const. amend. IV; United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986). A search properly executed pursuant to a valid warrant supported by probable cause generally comports with that guarantee. See Gates, 462 U.S. at 262-63, 103 S.Ct. 2317 (White, J., concurring); see also Ault, 150 Ariz. at 463, 724 P.2d at 549. ¶ 25 Given Arizona’s general prohibition against marijuana possession and use, it is reasonable for officers to conclude that criminal activity is occurring when they see or smell marijuana, thereby satisfying probable cause. In this respect, registered qualifying patients are not denied Fourth Amendment rights or privileges based on their medical marijuana use; they are simply treated like the broader public. Moreover, as we have explained, probable cause can be dispelled by indicia of AMMA-eompliant marijuana possession and use. Under the standard we adopt, registered qualifying patients are not denied Fourth Amendment rights or privileges, nor are they “subject to arrest, prosecution or penalty in any manner,” for their medical use of marijuana. § 36—2811(B)(1). ¶ 26 We reject the “odor (or sight) plus” standard adopted by the court of appeals and urged by Sisco. Instead, the general proscription of marijuana in Arizona and AMMA’s limited exceptions thereto support finding probable cause based on the smell or sight of marijuana alone unless, under the totality of the circumstances, other facts would suggest to a reasonable person that the marijuana use or possession complies with AMMA. This “odor (or sight) unless” standard comports with the Fourth Amendment standard prescribed in Gates and gives effect to AMMA’s exceptions by precluding officers or magistrates from ignoring indicia of AMMA-eompliant marijuana use or possession when assessing probable cause. C. ¶ 27 Applying the “odor unless” standard, we hold that probable cause existed to support issuance of the search warrant in this case. The odor of marijuana suggested illegality, even if after AMMA it did not conclusively establish a crime was occurring. Nothing in the record suggests that the police, in seeking a warrant, disregarded any indicia that marijuana was being used or possessed in compliance with AMMA. Sisco is not a registered qualifying patient, nor is he otherwise authorized by AMMA to cultivate or possess marijuana. ¶ 28 Here the police detected an “overpowering odor” of marijuana emanating from a cinderblock warehouse complex. The mere fact that AMMA authorizes use, possession, or cultivation of marijuana in certain circumstances does not dispel the probable cause established by the odor. Under AMMA, registered qualifying patients are generally authorized to possess up to two and one-half ounces of useable marijuana, while those patients that live more than twenty-five miles from the nearest dispensary may be authorized to cultivate up to twelve marijuana plants. § 36—2801(1)(a); § 36-2804.02(A)(3)(f). A designated caregiver may also cultivate up to sixty plants, but only if the caregiver cares for five patients, all five patients are author ized to cultivate marijuana, and each patient designates the caregiver to cultivate on their behalf. §§ 36-2801(1)(b)(ii), (5); § 36-2804.02(A)(3)(f). AMMA also authorizes dispensary cultivation sites in certain locations. See AR.S. § 36-2804(B)(1)(b)(ii). Nothing suggests the police here had reason to believe they had detected marijuana authorized by any of these provisions. ¶ 29 In sum, under the totality of the circumstances presented here, the odor of marijuana established probable cause. We have no occasion to assess how, in other circumstances, probable cause might be dispelled by such facts as a person’s presentation of a valid registration card. III. ¶ 30 We affirm the trial court’s ruling denying the motion to suppress, vacate the court of appeals’ opinion, and remand to the court of appeals so it may consider Sisco’s argument that the evidence was insufficient to support his conviction for child abuse and any other issues he properly preserved in his appeal from his convictions and sentences.

OPINION OROZCO, Judge: ¶ 1 Kenneth Bobrow (Husband) seeks special action relief from family court orders requiring that he post a supersedeas bond for $1,303,414 pending his appeal of a decree of dissolution. For the following reasons, we accept jurisdiction, and deny relief. FACTS AND PROCEDURAL HISTORY ¶ 2 This special action arises from the June 2014 decree of dissolution (Decree) between Husband and Pam Case Bobrow (Wife). The Decree awarded Wife $1,174,072.90, plus interest for her marital interest in a house in Snowmass, Colorado (Snowmass Home), pursuant to the parties’ premarital agreement. The Decree ordered that Husband make a written election to either pay Wife the full amount in a lump sum or follow a ten-year payment plan. Under the payment plan, Husband would make an initial cash payment of $370,658.90 and execute a ten-year promissory note to Wife for the balance of the amount due, plus interest. The Decree also awarded Wife $129,341.10 as reimbursement for “ordinary and necessary” living expenses paid by Wife during the parties’ marriage. ¶ 3 Husband filed an appeal and subsequently a Motion to Set Amount of Supersedeas Bond. He requested that the bond be set in the amount to be reimbursed to Wife for living expenses, plus eighteen monthly payments under the payment plan option, including offsets, for a total of $541,792.40. ¶ 4 Wife filed a Cross-Motion for Clarification of the Decree regarding whether Husband timely elected the ten-year payment plan or the lump sum option. Unaware that this issue remained pending, the family court ruled on Husband’s Motion to Set Amount of Supersedeas Bond, stating: [T]he “total damages” which Rule 7(a),[]Ariz. R. Civ. App. Pro. [contemplates for purposes of setting a Supersede-as Bond is $1,303,414.00. In calculating this amount, the Court uses the total amount Husband would be required to pay under [the lump sum option for the Snow-mass Home] and does not determine whether Husband is entitled to any offsets for payments he made which are not addressed in the Decree. ¶ 5 Subsequently, the family court ruled on the still-pending Cross-Motion for Clarification of the Decree. The court imposed the ten-year payment plan and ordered Husband to pay Wife the initial cash payment of $370,658.90 and to execute a ten-year promissory note for the balance, including interest. In light of that order, Husband filed a Motion to Clarify and Correct Supersedeas Bond Amount. He proposed that the supersedeas bond should be in the amount of $585,125.78. The court denied Husband’s proposal, reaffirming the prior bond amount and stating: [Husband] proposes to bond the $370,658.90 [initial cash payment], and commence paying the monthly payments under the ten year payment plan. Contrary to [Husband’s] argument, the total amount of damages awarded is $1,174,072.90. The purpose of the bond is to protect [Wife] from a change in financial condition of [Husband] pending appeal, and to assure that the total amount of damages will be available if [Husband] does not prevail on appeal. The execution of a promissory note is not the same as providing bond. [Husband’s] promise to pay on a monthly basis is not assured by the execution of the note and is not the equivalent of a bond. IT IS ORDERED affirming the Court’s prior order setting the bond amount. This special action followed. SPECIAL ACTION JURISDICTION ¶ 6 Special action jurisdiction is appropriate because this is an issue of first impression, Husband does not have an equally plain, speedy, and adequate remedy by appeal and the issue is a challenge to a supersedeas bond. See Ariz. R.P. Spec. Act. 1(a); City Ctr. Exec. Plaza, LLC v. Jantzen, 237 Ariz. 37, 39, ¶ 2, 344 P.3d 339, 341 (App.2015). Therefore, we accept jurisdiction. DISCUSSION ¶ 7 “We review the interpretation of statutes and court rules de novo.” Cranmer v. State, 204 Ariz. 299, 301, ¶ 8, 63 P.3d 1036, 1038 (App.2003). We analyze procedural rules using principles of statutory construction, id., and read those rules in conjunction with related statutes and harmonize them whenever possible. Thielking v. Kirschner, 176 Ariz. 154, 159, 859 P.2d 777, 782 (App.1993). “[W]e look to the plain language of the statute or rule as the best indicator of [the drafters’] intent____If the language is clear and unambiguous, we give effect to that language and do not employ other methods of statutory construction.” Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7, 111 P.3d 1027, 1030 (App.2005). ¶ 8 Husband agrees that Arizona Revised Statutes (A.R.S.) section 12-2108.A.1 (West 2015) applies and that the statute requires a bond based on “the total amount of damages awarded.” However, Husband argues that the family court does not have jurisdiction to adjudicate damages in a dissolution decree; thus, amounts awarded under the Decree do not constitute damages and the statute does not set the amount of the supersedeas bond to be posted in an appeal of a dissolution decree. Instead, Husband contends that the statute only requires a bond for the amounts he currently owes under the Decree. ¶ 9 Under AR.S. § 12-2108 A.1, “[i]f 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 ... shall be set as ... [t]he total amount of damages awarded.” The legislative history explains that for purposes of A.R.S. § 12-2108, “[c]ivil cases can involve ... family law issues, such as divorce.” S.B. 1212 Fact Sheet, Ariz. 50th Leg., 1st Reg. Sess., at 1 (2011). Therefore, the statute applies in dissolution eases. ¶ 10 Both A.R.S. § 12-2108 A.1 and Arizona Rule of Civil Appellate Procedure 7(a)(4)(A) state that the bond must be the “total amount of damages awarded.” See A.R.S. § 12-2108 A.1 (the bond “shall be set as ... [t]he total amount of damages awarded”); ARCAP 7(a)(4)(A) (the bond “must be ... [t]he total amount of damages awarded”). Because the legislature used the word “damages,” we “construe that word according to its ‘peculiar and appropriate meaning in the law.’ ” City Ctr., 237 Ariz. at 41, ¶ 13, 344 P.3d at 341. ¶ 11 Damages are defined as compensation for actual injury. Id. at 42, ¶ 14, 344 P.3d at 342. “[Ajctual damages are such compensation for the injury as would follow from the nature and character of the act and which return the injured party to pre-injury position.” Havasu Heights Ranch and Dev. Corp. v. Desert Valley Wood Prods., Inc., 179 Ariz. 456, 459, 880 P.2d 676, 679 (1994) (citing United States Fid. & Guar. Co. v. Davis, 3 Ariz.App. 259, 263, 413 P.2d 590, 594 (App.1966)). ¶ 12 Even though awards in divorce proceedings are not typically referred to as “damages,” setting the bond in the amount of the full award under the Decree is appropriate for multiple reasons. First, the legislature clearly intended for A.R.S § 12-2108 A.1 to apply to divorce cases, and we “give effect to the legislature’s intent.” See In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 10, 200 P.3d 1043, 1045 (App.2008). ¶ 13 Second, the spirit and purpose of A.R.S. § 12-2108 A.1 and ARCAP 7(a)(4)(A) are served by setting the amount of the bond in the full amount of the award under the Decree. The purpose of a supersedeas bond is to preserve the status quo pending appeal. Porter v. Commercial Standard Ins. Co., 112 Ariz. 491, 493, 543 P.2d 1120, 1122 (1975). Setting the bond for the full amount of the award under the Decree protects Wife from “the risk that ... the funds will have been dissipated” during pendency of the appeal. See Freeman v. Wintroath Pumps-Div. of Worthington Corp., 13 Ariz.App. 182, 183, 475 P.2d 274 (App.1970). In addition, the bond “restraints] [Wife] and the [trial] court from taking affirmative action to enforce the judgment or decree.” Anderson v. Pickrell, 115 Ariz. 589, 590, 566 P.2d 1335, 1336 (1977). Therefore, a bond in the full amount of the award under the Decree protects the interests of both parties during the appeal. ¶ 14 Under A.R.S. § 12-2108 A.1, the trial court shall set the bond as the total amount of damages awarded, excluding punitive damages. Husband contends that if the term “damages” is strictly interpreted, then the bond amount would be zero. Citing Everson v. Everson, 24 Ariz.App. 239, 245, 537 P.2d 624 (App.1975), Husband argues “[Wife] should be entitled to a bond for payments she is actually not receiving as a result of the stay during the appeal” or stated differently, Wife is only entitled to the sums due during the pendency of the appeal. We disagree and hold that the appropriate bond amount is not so limited. The full amount of damages awarded to Wife in this case is the total amount of living expenses plus the total amount due to her for the Snowmass Property- ¶ 15 If Husband’s argument were correct and damages were never awarded in divorce proceedings, supersedeas bond amounts in family court proceedings would always be zero. Husband does not request that result here, and such a result would not comport with Arizona ease law. See e.g., Anderson, 115 Ariz. at 590, 566 P.2d at 1336 (wife in divorce proceeding required to post supersedeas bond to stay judgment execution pending appeal); Everson, 24 Ariz.App. at 245, 537 P.2d 624 (supersedeas bond posted in divorce proceedings not disturbed on appeal). ¶ 16 Husband also argues that, because the Decree requires that he make payments under a promissory note over ten years, the full amount of the award under the Decree is not immediately due and he should therefore only have to pay a bond for the “amounts actually due.” We disagree because the statute and rule are clear that the bond must be set as “[tjhe total amount of damages awarded.” A.R.S. § 12-2108 A.1 (emphasis added); ARCAP 7(a)(4)(A) (emphasis added); see also Fragoso, 210 Ariz. at 430, ¶ 7, 111 P.3d at 1030 (“If the [statutory] language is clear and unambiguous, we give effect to that language and do not employ other methods of statutory construction.”). ¶ 17 Finally, Husband argues that the supersedeas bond reverses the Decree, apparently reasoning that posting a supersedeas bond in the full amount of the award is akin to imposing a lump sum judgment rather than the ten-year payment plan under the Decree. As explained above, the purpose and effect of the supersedeas bond is to maintain the status quo for both parties pending appeal, and therefore the bond does not “substantively accelerate the entire [award].” Furthermore, if Husband is successful on appeal, the bond is returned, leaving him in the same position he was in when the appeal began. ¶ 18 Wife requests we award her attorney fees, but does not cite a rale or statute as a basis for the award. Therefore, we deny the request. Bank One, Arizona, N.A. v. Beauvais, 188 Ariz. 245, 251, 934 P.2d 809, 815 (App.1997). However, Wife is entitled to her costs, upon compliance with ARCAP 21. CONCLUSION ¶ 19 For the foregoing reasons, we accept jurisdiction but deny relief. . The Decree required Husband to make his written election within seven days. . The $1,303,414 supersedeas bond is the total value of the Snowmass Home ($1,174,072.90) plus the living expenses awarded to Wife ($129,-341.10). . This figure was the initial cash payment of $370,658.90, plus interest, and Wife’s $129,341.10 reimbursement for living expenses, plus interest. . We cite the current version of applicable statutes when no revisions material to this decision have since occurred. . Husband does not invoke the alternative bond amounts found at ARCAP 7(a)(4)(B) or (C), the exceptions found at ARCAP 7(a)(5) or the alternative amounts in A.R.S. § 12-2108 A.2 or 3. . Pursuant to A.R.S. § 12-2108.A, the amount of the bond "shall be set as the lesser of. ..[t]he total amount of damages awarded excluding punitive damages[,]... [fjifty per cent of the appellant's net worth [or] [t]wenty-five million dollars." In addition, A.R.S. §12-2108.B and C grant the trial court discretion to increase or decrease the amount of the bond upon a showing of clear and convincing evidence.

OPINION VÁSQUEZ, Presiding Judge: ¶ 1 In their consolidated appeals, Adrian E. and his minor children, L.E. and I.E., challenge the juvenile court’s termination of Adrian’s parental rights pursuant to A.R.S. § 8-533(B)(ll). They argue that subsection of the statute does not apply to a parent like Adrian, who was only granted the right to supervised visitation in the prior dependency and related family-court proceedings, whereas the children’s mother, from whose home the children were removed, had been granted primary physical custody and “[s]ole legal decision-making” authority. AR.S. § 25-401(6). Appellants also contend the court abused its discretion in finding termination of Adrian’s rights was in the children’s best interests. The Department of Child Safety (DCS) has conceded Adrian’s rights could not be terminated pursuant to § 8-533(B)(ll). We agree and therefore reverse the court’s order. Factual and Procedural Background ¶ 2 We view the evidence in the light most favorable to sustaining the juvenile court’s ruling. See Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, ¶ 2, 181 P.3d 1126, 1128 (App.2008). Adrian and Crystal W., the mother of L.E. and I.E., born in 2007 and 2009 respectively, were divorced in August 2010. Crystal was awarded sole custody of the children, subject to Adrian’s reasonable parenting time. But in October 2010, Crystal brought the children to Adrian at his place of employment and demanded that he take them. They were wearing nothing but diapers, had no ear seats, and I.E. had scratches on his face and back. The children remained with Adrian for about two months, but DCS removed them from his care in December 2010 and placed them in foster care after L.E. reported he had hit her with a belt on her stomach and back. ¶ 3 The children were adjudicated dependent as to Adrian in January 2011, after he admitted allegations in an amended dependency petition, and as to Crystal a few weeks later, after she failed to appear for the dependency hearing. The parents were provided a variety of services designed to reunify the family, and, in April 2012, the children were returned to Adrian’s care. But the children were removed again in May 2012 and placed in foster care after L.E. reported Adrian had pulled her ear and I.E. stated Adrian had hit L.E. on the leg. In October 2012, DCS filed a motion to terminate the parents’ rights on numerous grounds. On the last day of a five-day severance trial, the juvenile court denied the motion as to Crystal, and, then in a June 2013 under-advisement ruling, it denied the motion as to Adrian. ¶4 During the year that preceded the juvenile court’s denial of the motion to sever, Crystal complied with the case plan, and, in May 2013, the children were placed in her care. Indeed, in its June 2013 under-advisement ruling, the court noted that the children had been “returned to the physical custody of their mother” and found that, “[bjecause the children are permanently placed with their mother, ... [there is] no benefit to terminating Father’s parental rights.” The court consolidated the dependency proceeding with the family-court action so that Adrian and Crystal could participate in mediation. ¶ 5 The parents entered into an updated parenting agreement in October 2013, which the family court adopted in its order in the family-law proceeding. The agreement and, consequently, the court’s order utilized principles and language consistent with 2012 amendments to title 25 that eliminated the terms “legal custody” and “visitation” and replaced them with “legal decision-making,” § 25-401(3), and “parenting time,” § 25-401(5). See 2012 Ariz. Sess. Laws, ch. 309, §§ 4-5. Crystal was given “sole legal decision-making” authority over the children. The court granted Adrian parenting time as provided in the agreement, which gave him supervised parenting time at his expense and specified that the children were to live “primarily” with Crystal. Based on the parties’ agreement, the related order in the family-court matter, and Crystal’s compliance with the case plan, the court dismissed the dependency proceeding on October 28. ¶ 6 In June 2014, L.E. and I.E. were removed from Crystal’s care based on reports that she was neglecting and abusing them and that she was abusing alcohol and using drugs in front of them. DCS filed a dependency petition, alleging as to Adrian that he had failed to protect the children from abuse or neglect by Crystal. It further alleged Adrian had not exercised “his court-awarded supervised parenting time and was out of touch with the children,” having failed to see them in five or six months. Additionally, DCS alleged Adrian had a “life-long” history of mental-health issues. A few months later, in August 2014, DCS filed a petition to terminate Crystal’s and Adrian’s parental rights to the children on one ground: prior removal under § 8-533(B)(ll). The juvenile court consolidated the severance and dependency proceedings. ¶ 7 Following contested dependency hearings in September and October 2014, the juvenile court adjudicated the children dependent as to both parents. After contested severance hearings that began in November, the court granted DOS’s petition in March 2015 and terminated the parents’ rights pursuant to § 8-533(B)(ll). Adrian and the children separately appealed; we granted the request to consolidate the appeals. Discussion ¶ 8 This case raises issues regarding the interpretation and application of § 8-533(B)(11) and related statutes, which are questions of law that we review de novo. See In re John M., 201 Ariz. 424, ¶ 7, 36 P.3d 772, 774 (App.2001); see also Manuel M., 218 Ariz. 205, ¶ 18, 181 P.3d at 1131; Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, ¶ 9, 158 P.3d 225, 228 (App.2007). When interpreting statutes, this court must effectuate the legislature’s intent and, because the language in a statute is the best reflection of that intent, we apply the statute as written unless its terms are not clear. See Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, ¶ 8, 117 P.3d 795, 797 (App.2005). “When a statute is clear and unambiguous, we apply its plain language and need not engage in any other means of statutory interpretation.” Kent K. v. Bobby M., 210 Ariz. 279, ¶ 14, 110 P.3d 1013, 1017 (2005). ¶ 9 To the extent a statute’s language is ambiguous, “we attempt to determine the legislative intent by interpreting the statute as a whole, considering its place in the relevant statutory scheme, as well as the statute’s ‘subject matter, historical background, effects and consequences, and spirit and purpose.’ ” E.R. v. Dep’t of Child Safety, 237 Ariz. 56, ¶ 10, 344 P.3d 842, 845 (App.2015), quoting State ex rel. Montgomery v. Harris, 234 Ariz. 343, ¶ 13, 322 P.3d 160, 162 (2014). We give the words of a statute “ ‘their natural, obvious, and ordinary meaning.’ ” Simpson v. Owens, 207 Ariz. 261, ¶ 33, 85 P.3d 478, 489 (App.2004), quoting Arpaio v. Steinle, 201 Ariz. 353, ¶ 5, 35 P.3d 114, 116 (App.2001). “We also read ... statutes in conjunction with each other and harmonize them whenever possible.” Ruben M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, ¶ 20, 282 P.3d 437, 441 (App.2012). Finally, we will not interpret a statute in a manner that leads to an absurd result, even when the terms of the statute are clear and unambiguous. See E.R., 237 Ariz. 56, ¶ 10, 344 P.3d at 845. ¶ 10 Section 8-533(B)(ll) provides that the juvenile court may terminate parental rights when all of the following are true: (a) The child was cared for in an out-of-home placement pursuant to court order. (b) The agency responsible for the care of the child made diligent efforts to provide appropriate reunification services. (c) The child, pursuant to court order, was returned to the legal custody of the parent from whom the child had been removed. (d) Within eighteen months after the child was returned, pursuant to court order, the child was removed from that parent’s legal custody, the child is being cared for in an out-of-home placement under the supervision of the juvenile court, the division or a licensed child welfare agency and the parent is currently unable to discharge parental responsibilities. ¶ 11 Section 8-531(5), AR.S., defines the terms found in § 8-533 as follows: “Custody” or “legal custody” means a status embodying all of the following rights and responsibilities: (a) The right to have physical possession of the child. (b) The right and the duty to protect, train and discipline the child. (e) The responsibility to provide the child with adequate food, clothing, shelter, education and medical care, provided that such rights and responsibilities shall be exercised subject to the powers, rights, duties and responsibilities of the guardian of the person and subject to the residual parental rights and responsibilities if they have not been terminated by judicial decree. ¶ 12 In its order terminating Adrian’s parental rights, the juvenile court reviewed the history of the family’s involvement with DCS. The court found that DCS had “made diligent efforts to provide appropriate reunification services,” which it specified, and that, after the parties entered into an agreement, “the status of dependency no longer existed” and it “return[ed] legal and physical custody to [the] Mother.” The court further found that the children were “removed ... from [the] Mother eight months later.” The court terminated both parents’ rights based on these findings and the additional finding that termination of their rights was in the children’s best interests. ¶ 13 Adrian and the children argue the children were not returned to his legal custody for purposes of § 8-533(B)(ll) when the juvenile court dismissed the dependency in October 2013, nor were they therefore removed from Adrian’s custody eight months later. Adrian only had the right to supervised parenting time, which he was not exercising. Insisting the terms of § 8-533(B)(ll) are clear, appellants assert “sole legal decision-making” is “legal custody” for purposes of § 8-533(B)(ll) and only Crystal had legal custody. ¶ 14 DCS argued in its answering brief on appeal, however, that based on the definition in § 8-531(5), “legal custody” is not synonymous with “legal decision-making,” defined in § 25-401(3), and parenting time, defined in § 25^401(5). DCS asserted the legislature intended that “legal decision-making” in the family-law context and “legal custody” for purposes of dependency and severance proceedings have different meanings. DCS reasoned this intent can be inferred from the fact that when the legislature amended title 25, it did not alter the language in title 8. DCS argued this intent can also be inferred from the fact that the legislature did not include dependency and severance proceedings among the circumstances it specified in § 25-401(3) in which “legal decision-making” means “legal custody.” But in the notice of concession of error DCS subsequently filed, it conceded the definition of legal custody in § 8-531(5) is not broad enough to include a parent such as Adrian, who was only granted supervised parenting time. ¶ 15 We agree with DOS’s suggestion that § 8-533(B)(ll) and § 8-531(5) are reasonably susceptible to different interpretations, particularly when considered together with the 2012 changes to title 25 and the corresponding language the parties used in their mediated agreement. See § 25-401(3); 2012 Ariz. Sess. Laws, ch. 309, §§ 4-5; 1997 Ariz. Sess. Laws, ch. 222, § 49. Section 8-533(B)(11) and § 8-531(5) clearly were intended to apply to a parent like Crystal, who had full-time physical custody and sole decision-making authority, even assuming the terms “custody” or “legal custody” are not synonymous with the related terms under title 25. “‘Sole legal decision-making’ [authority] means one parent has the legal right and responsibility to make major decisions for a child.” § 25-401(6). Crystal also had “the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions.” § 25-401(3). ¶ 16 Additionally, Crystal’s right to physical possession of the children was unrestricted, subject only to Adrian’s highly restricted right to supervised parenting time for a total of four hours during the week, two hours, each on Mondays and Tuesdays, “or on weekends if a professional supervisor [could be] obtained.” Crystal clearly had the right to “physical possession of the children],” the right and the obligation to protect the children as well as to train and discipline them, and the responsibility to care for them by providing them with “adequate food, clothing, shelter, education and medical care.” § 8-531(5). ¶ 17 DCS concedes Adrian’s right to supervised parenting time cannot reasonably be construed to be the right to physical possession of his children for purposes of § 8-531(5). His right to “possession” was significantly restricted and existed only for the limited, designated hours, and when in the presence of a designated or otherwise accepted individual, at his expense. § 8-531(5)(a). Had Crystal and Adrian been given “[j]oint legal decision-making,” they would have shared in the decisions pertaining to the children and “neither parent’s rights or responsibilities” would have been “superior except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.” § 25—401(2). Perhaps then both could be viewed as having custody or legal custody as contemplated by § 8-533(B)(11). But the children were clearly placed with Crystal, and it would be unreasonable to interpret the statute to mean the children were also placed in Adrian’s custody under these circumstances. ¶ 18 We agree with appellants that, based on its language and structure, § 8-533(B)(ll) does not apply to Adrian. Rather, § 8-533(B)(11) was intended to serve as a basis for terminating the rights of the parent to whom a child had been returned during an initial dependency proceeding and from whom the child was again removed because of that parent’s conduct. By using the term “that parent” in § 8-533(B)(ll)(d), the legislature distinguished the parent whose rights may be terminated under the provision from another parent, one to whom the provision may not apply. The parent to whom a child previously was returned is therefore the same parent from whose “legal custody” the child has been removed a second time. Crystal is “that parent,” not Adrian. There may be circumstances in which parents are a single unit, such as when they are living together in one household with the children. But that is not this case. ¶ 19 In addition, the legislature’s use of the term “the parent” later in subsection (d) refers to “the parent for whom the ground exists.” “[T]hat parent” and “the parent” are references to the same parent, the one to whom the child was returned and from whom the child was again removed. Whether we view the language of the statute in this regard as plain and clear or whether we find it ambiguous, interpreting this subsection to permit a court to terminate the rights of a father like Adrian, who had limited access to his children, based solely on the conduct of the other parent is an “absurd result[].” E.R., 237 Ariz. 56, ¶ 10, 344 P.3d at 845. ¶ 20 Here, the juvenile court did not grant the severance petition as to Adrian based on findings related to him. Rather, it found Crystal had “obtained legal custody” in October 2013 and the children were “removed ... from [her] eight months later.” Removal of the children from Crystal’s custody could not, therefore, be viewed as removal from Adrian’s custody as well because as we previously concluded, he did not have “legal custody” for purposes of § 8-533(B)(ll). The court did not err in finding Crystal had “legal custody” for purposes of § 8—533(B)(11). It did err, however, in concluding the findings as to Crystal were a sufficient basis for terminating Adrian’s rights. ¶ 21 We recognize the public policy behind the 2010 and 2012 changes to title 25, which are reflected in the mediated agreement, was to encourage parents to work cooperatively, to share in the decision-making with respect to their children, and to spend “ ‘substantial, frequent, meaningful and continuing parenting time’ ” with both parents. Baker v. Meyer, 237 Ariz. 112, ¶ 12, 346 P.3d 998, 1003 (App.2015), quoting A.R.S. § 25—103(B); see also 2012 Ariz. Sess. Laws, ch. 309, §§ 5, 7-8; 2010 Ariz. Sess. Laws, ch. 221, § 1. We also acknowledge the legislature added § 8-533(B)(11) as part of its efforts to expedite termination proceedings so that children will “spend less time in foster care” and be placed in “permanent homes sooner.” Senate Fact Sheet, H.B. 2255, 43rd Leg., 1st Reg. Sess. (Ariz. May 15, 1997). But we do not believe the legislature intended to permit courts to terminate one parent’s rights on a ground that does not apply to that parent but instead applies to the other parent and relates to that other parent’s conduct. We therefore decline to interpret the severance statute to permit Adrian’s rights to be terminated based on Crystal’s status and her conduct. Such an interpretation would violate a parent’s due process rights. See Frank R. v. Mother Goose Adoptions, 239 Ariz. 184, 367 P.3d 88 (App.2016). It is our obligation to attempt to construe and apply statutes in a manner that would render them constitutional. Blake v. Schwartz, 202 Ariz. 120, ¶ 27, 42 P.3d 6, 12 (App.2002). We have done so here. Disposition ¶22 Because we conclude the juvenile court erred in terminating Adrian’s parental rights pursuant to § 8-533(B)(ll), we need not address appellants’ argument in their separate briefs that the court abused its discretion by finding termination of Adrian’s parental rights was in the children’s best interests. For the reasons stated, we reverse the court’s order. . Crystal also appealed the termination of her rights. However, after appointed counsel filed an affidavit in compliance with Rule 106(G), Ariz. R.P. Juv. Ct., this court dismissed the appeal. Crystal W. v. Dep’t of Child Safety, No. 2 CA-JV 2015-0072 (order filed July 23, 2015). . The children acknowledge in their opening brief that they did not make this argument before the juvenile court. But, as they point out, Adrian raised it, thereby preserving the argument for appellate review. . After defining "legal decision-making,” the statute states further: "For the purposes of interpreting or applying any international treaty, federal law, a uniform code or the statutes of other jurisdictions of the United States, legal decision-making means legal custody.” § 25-401(3). . Although Crystal is not a party to this appeal, we discuss the statutes as they apply to her because the discussion illustrates and supports our analysis regarding Adrian.

OPINION CATTANI, Judge: ¶ 1 In this case we address whether firing a bullet into a residence constitutes “entry” for purposes of establishing first-degree burglary. Given Arizona’s expansive statutory definition of entry, and in light of the property, possessory, and privacy interests that the offense of burglary is intended to protect, we conclude that a projectile intruding into a protected space satisfies the entry requirement for burglary. We further address and reject a claim regarding the superior court’s denial of Batson challenges to the State’s peremptory strikes of two potential jurors. Accordingly, and for reasons that follow, we affirm Curtis Dewayne Decker’s convictions of first-degree murder and burglary. FACTS AND PROCEDURAL BACKGROUND ¶ 2 The victim lived with his girlfriend and her mother, Judy, in Judy’s apartment. Decker was friends with Judy and visited her regularly. One day, Decker and the victim fought in Judy’s apartment. After pushing each other and wrestling, the victim drew a knife and cut Decker’s face. Decker told the victim to step outside to “finish this,” but the victim stayed inside and Decker rode away on a bicycle. ¶ 3 About 20 minutes later, Decker returned with two or three people in a car. They all got out of the car, and Decker walked to Judy’s front door. The apartment manager—looking on from her own apartment—saw Judy standing beside the open door as Decker stood in the doorway, drew a gun, and quickly fired three shots. Decker then laughed, put the gun in his pocket, and left in the car. The victim, who was inside Judy’s apartment, died from two close-range gunshot wounds to the chest. Judy later told the victim’s daughter that she had seen Decker “in the doorway” and that Decker had shot the victim. ¶ 4 After the apartment manager identified Decker from a photographic lineup, Decker was arrested and charged with first-degree murder and first-degree burglary. After an initial mistrial due to a hung jury, Decker was convicted as charged, with the jury unanimously finding both premeditated and felony murder. Decker was sentenced to concurrent terms of life in prison with the possibility of release after 25 years for the murder conviction and 10.5 years for the burglary conviction, and he timely appealed. We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-4033. DISCUSSION 1. Batson Challenges. ¶ 5 Decker argues that the superior court erred by denying his Batson challenges to the State’s peremptory strikes of prospec tive Juror 1 and Juror 76. We review the superior court’s denial of a Batson challenge for clear error, deferring to the court’s firsthand assessment of the prosecutor’s credibility. See State v. Garcia, 224 Ariz. 1, 10, ¶ 22, 226 P.3d 370 (2010). ¶ 6 The Equal Protection Clause of the Fourteenth Amendment prohibits use of a peremptory strike to exclude a potential juror on the basis of race. Batson, 476 U.S. at 89, 106 S.Ct. 1712. Batson challenges are assessed in three stages: “(1) the party challenging the strikes must make a prima facie showing of discrimination; (2) the striking party must provide a race-neutral reason for the strike; and (3) 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. Canez, 202 Ariz. 133, 146, ¶22, 42 P.3d 564 (2002). The opponent of the strike bears the burden of showing racial motivation. Garcia, 224 Ariz. at 10, ¶ 21, 226 P.3d 370. ¶ 7 Decker’s counsel first objected to the prosecutor’s peremptory strike of Juror 76, who was one of three African American potential jurors, noting that Decker is also African American, and arguing that Juror 76’s limited comments during voir dire did not indicate an inability to be fair and impartial. In response, the prosecutor offered two reasons for the strike: (1) he knew comparatively less about Juror 76 than others in the venue because Juror 76 had answered only the standard biographical questions asked of each potential juror but had not otherwise spoken during voir dire and (2) Juror 76 had failed to follow the court’s instruction to remain outside the courtroom during a break. The judge noted that she had observed Juror 76 entering the courtroom unaccompanied while the lawyers were speaking about the ease, despite having been instructed that jurors should not enter the courtroom unless escorted by the bailiff. The court found this to be a race-neutral reason for the strike, and thus denied Decker’s challenge. ¶ 8 Decker next objected to the State’s subsequent strike of Juror 1, an African American woman, alleging a pattern of discrimination based on the State’s strikes of two of the three African American potential jurors. The prosecutor again offered two reasons for the strike: (1) he knew very little about Juror 1 because she also had only answered the standard biographical questions at the end of voir dire and (2) Juror 1 appeared to have dozed off at times, and her demeanor—arms crossed, hand in pocket— made her seem uninterested in the proceedings. The prosecutor noted that he had also struck Juror 47, who was not African American, for lack of information because he had only answered the biographical questions at the end of voir dire. Although the judge did not observe Juror l’s demeanor because she was not in the judge’s line of sight, the court found lack of information and uninterested demeanor to be race-neutral reasons for the strike, and thus denied Decker’s Batson challenge. The court later noted that one African American (Juror 56) was selected to serve on the jury. ¶ 9 Relying on Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), Decker argues that the prosecutor’s “lack-of-information” explanation for the strikes was pretextual because the prosecutor could have questioned Jurors 1 and 76 to elicit additional information, but chose not to do so. In Miller-El, the prosecutor, apparently as an afterthought, offered the prior conviction of a potential juror’s brother as a reason for striking the juror. Id. at 246. The failure to ask additional questions after the prospective juror stated “I don’t really know too much about it”—along with other indicators of pretext—belied the importance the prosecutor later attributed to the family history. Id. Here, in contrast, there was no discrete issue about which the State had expressed a concern and which might have warranted follow-up questioning. ¶ 10 Although “lack of information” is generally an unpersuasive rationale for striking a prospective juror, Decker did not show that the strikes represented purposeful racial discrimination. See Cañez, 202 Ariz. at 146, ¶ 22, 42 P.3d 564. The prosecutor apparently struck a non-African American juror for the same lack-of-information reason, and the fact that an African American was impaneled, although not dispositive by itself, also sug geste that the two challenged strikes did not establish a pattern of racial discrimination. See State v. Roque, 213 Ariz. 193, 204, ¶ 15, 141 P.3d 368 (2006). ¶ 11 More importantly, the prosecutor offered an additional relevant and facially race-neutral reason for each strike. The judge confirmed the prosecutor’s observation of Juror 76 failing to follow the court’s instructions and implicitly found credible the prosecutor’s account of Juror l’s dozing and inattentiveness, and we defer to the superior court’s first-hand observations and credibility determinations. See State v. Newell, 212 Ariz. 389, 401, ¶ 54, 132 P.3d 833 (2006). Under the circumstances, and particularly in light of the additional reason offered for each strike, the superior court did not err by denying Decker’s Batson challenges. II. Projectile Theory of Entry for Purposes of Burglary. ¶ 12 Decker next argues that the evidence was insufficient to establish entry into the apartment as necessary to support his burglary conviction. ¶ 13 In closing argument, the prosecutor argued that a projectile fired into a residence—in this case, the bullets fired from the gun Decker used to shoot the victim—could establish the element of entry necessary to prove he committed burglary. Decker objected, arguing the prosecutor had misstated the law, but the court overruled Decker’s objection. Although the prosecutor posited in the alternative that Decker had physically entered the apartment, both the prosecutor’s and defense counsel’s arguments regarding this element of the offense focused predominantly on the projectile theory of entry. ¶ 14 We generally review the superior court’s rulings controlling closing argument for an abuse of discretion. State v. Lynch, 238 Ariz. 84, 97, ¶ 33, 357 P.3d 119 (2015). We consider de novo, however, the court’s construction of a statute, looking first to the provision’s plain language and considering the common meaning of any undefined terms. State ex rel. Montgomery v. Harris (Shilgevorkyan), 237 Ariz. 98, 100, ¶ 8, 346 P.3d 984 (2014); State v. Pena, 235 Ariz. 277, 279, ¶ 6, 331 P.3d 412 (2014); see also A.R.S. § 1-213 (stating that statutes should be construed based on the common meaning of words and phrases, unless subject to an established legal definition). We may consult dictionaries to determine the ordinary meaning of statutory terms. Pena, 235 Ariz. at 279, ¶ 6, 331 P.3d 412; State v. Gill, 235 Ariz. 418, 420 n. 1, ¶8, 333 P.3d 36 (App.2014). ¶ 15 As relevant here, an individual commits first-degree burglary by “entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein” while knowingly possessing a deadly weapon. AR.S. §§ 13-1508(A), -1507(A). The only element at issue here is the requirement of entry. ¶ 16 AR.S. § 13-1501(3) defines “entry” as “the intrusion of any part of any instrument or any part of a person’s body inside the external boundaries of a structure or unit of real property.” Thus, by its terms, the statute allows entry by an instrument alone, even if no part of the perpetrator’s body crosses the threshold. Id.; see also State v. Kindred, 232 Ariz. 611, 614, ¶ 9, 307 P.3d 1038 (App.2013) (concluding that insertion of a pry bar into a door jamb constituted entry). ¶ 17 Although the statute does not define “instrument,” the term is generally understood to mean “[a] tool or implement used to do or facilitate work.” American Heritage Dictionary 910 (5th ed.2011); see also Instrument Definition, Oxford English Dictionary Online (“OED”) (Oxford Univ. Press 2015) (defining an instrument as “a thing with or through which something is done or effected; ... a means” or as “[a] material thing designed or used for the accomplishment of some mechanical or other physical effect; a mechanical contrivance (usually one that is portable, of simple construction, and wielded or operated by the hand); a tool, implement, weapon”). ¶ 18 This common understanding is consistent with the statutory definition of a “dangerous instrument” (found in another section of the criminal code) as “anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.” AR.S. § 13-105(12). When considered without the “dangerous” limitation (“readily capable of causing death or serious physical injury”), that definition in effect acknowledges that an instrument is anything used for a purpose. See id. ¶ 19 The question thus becomes whether a projectile bullet can be characterized as a tool or implement used to do work that intrudes into the residence. Because a person firing a bullet, even if from outside a doorway, is using the projectile as a means to accomplish a task within the residence— here, murder—the bullet qualifies as an instrument that can “enter” a structure for purposes of burglary. ¶ 20 Decker acknowledges that the gun he was holding would be an instrument for these purposes, but he argues that the projectile bullet is not an instrument. First, Decker posits that the bullet on its own is not a tool; rather, the gun is a tool and the bullet just another object used in carrying out the gun’s purpose. But the use of a bullet is not substantively different than, for instance, a knife thrown from outside the doorway. That the perpetrator uses another instrument to accelerate the bullet does not change the fact that the bullet itself is an instrument that causes damage across the threshold. See OED (defining an instrument as “a thing with or through which something is done or effected; ... a means”). ¶ 21 Decker also suggests that an instrument for these purposes must be handheld so as to approximate personal entry by the perpetrator. But the current statutory definition does not restrict entry-by-instrument to only objects held by or physically connected to the perpetrator. A.R.S. § 13-1501(3) (“any part of any instrument or any part of a person’s body”) (emphasis added). Moreover, Arizona’s burglary statutes previously restricted entry-by-instrument to only “an instrument or weapon held in [the] hand,” A.R.S. § 13-301(1) (1956); the Legislature removed this “handheld” requirement when enacting the 1978 Criminal Code. See A.R.S. § 13-1501(2) (1978). This legislative change supports the conclusion that entry-by-instrument under the current statutory definition encompasses entry by a projectile. ¶ 22 Holding that intrusion by a projectile may constitute entry (when accompanied by the requisite felonious intent) is also consistent with the purposes underlying criminalizing burglary. At their core, burglary statutes are intended to “protect the security of the home, and the person within his home.” Kindred, 232 Ariz. at 614, ¶ 8, 307 P.3d 1038 (citation omitted); see also Arizona Criminal Code Commission, Arizona Revised Criminal Code 159 (1975) (“The essence of the offense of burglary is the unauthorized invasion of protected premises.”). The offense recognizes the “heightened expectation of privacy and possessory rights of individuals in structures and conveyances” and penalizes violation of the victim’s property, possessory, and privacy rights within his or her home. State v. Hinden, 224 Ariz. 508, 511, ¶ 13, 233 P.3d 621 (App.2010) (quoting 12A C.J.S. Burglary § 1, at 53 (2004)); see also Gill, 235 Ariz. at 421, ¶ 13, 333 P.3d 36; Minturn T. Wright, III, Note, Statutory Burglary—The Magic of Four Walls and A Roof, 100 U. Pa. L. Rev. 411, 427 (1951) (characterizing common law burglary as an “offense against the habitation”). ¶ 23 The victim’s interest in protecting his or her space does not vary depending on how the perpetrator invades that space. The intrusion of a bullet fired from just outside the open doorway no less disrupts the victim’s security in his or her home than one fired after the muzzle of the gun crosses the threshold. ¶ 24 Finally, we note that, even in jurisdictions that have not defined “entry” by statute, courts have similarly recognized, based on burglary’s common law underpinnings, that projectile instruments can accomplish an entry if used “to consummate a criminal objective.” See Commonwealth v. Cotto, 52 Mass.App.Ct. 225, 752 N.E.2d 768, 771 (2001) (holding that a bottle containing gasoline thrown through a window and used to start a fire inside an apartment constituted entry); State v. Williams, 127 Or.App. 574, 873 P.2d 471, 474 (1994) (holding that bullets fired into a house, intended to intimidate a witness, constituted entry); cf. Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000) (rejecting entry by bullet based on a state law requiring “entry by some part of the defendant’s body”). Our interpretation of “entry” is thus also consistent with the “conceptual broadening of [common law] burglary” as reflected in our burglary statutes. See Gill, 235 Ariz. at 421, ¶ 13, 333 P.3d 36. ¶ 25 Accordingly, we conclude that bullets fired into a structure, assuming all other elements of the offense are met, constitutes entry sufficient to support a burglary conviction. The prosecutor’s argument to that effect thus correctly stated Arizona law, the superior court did not err by denying Decker’s objection, and sufficient evidence supported Decker’s burglary conviction. CONCLUSION ¶ 26 For the foregoing reasons, we affirm Decker’s convictions and sentences. . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . Absent material revisions after the relevant date, we cite a statute’s current version. . Traditional common law treatises reflect no consensus view on entry-by-projectile. Compare 2 Edward Hyde East, A Treatise of the Pleas of the Crown § 7, at 490 (1803) (recognizing disagreement among authorities regarding whether a projectile bullet could constitute entry, but con-eluding there is no substantive distinction between an instrument “holden in the hand” and one “discharged from it”), 1 William Hawkins, A Treatise of the Pleas of the Crown, ch. 17, § 11 (8th ed., 1824) (positing entry by “discharge [of] a loaded gun into a house”), with 4 William Blackstone, Commentaries *227 (recognizing entry by "an instrument held in the hand”), 1 Matthew Hale, The History of the Pleas of the Crown, 554-55 (1st Am. ed. 1847) ("But if he shoots without the window, and the bullet comes in, this seems to be no entry to make burglary; quaere."). More modern treatises that address the issue, however, generally recognize entry-by-projectile. See 3 Wharton’s Criminal Law § 333 (14th ed.1980 Si supp. 1994) (recognizing "entry” "when the defendant, while standing outside, fires a bullet which pierces a window and lands inside, the gun having been discharged for the purpose of killing the occupant”), Nolan & Henry, Criminal Law § 403 (2d ed. 1988) ("If [a bullet is] fired to kill a person inside, probably an entering could be found.”).

OPINION SWANN, Judge: ¶ 1 Defendant Anthony Benard Primous appeals the superior court’s denial of his motion to suppress marijuana found when police frisked him for weapons. Although we reject frisks of lawfully detained individuals’ companions as a matter of course, we hold, based on the totality of the circumstances here, that the frisk was justified and the seizure of the marijuana was lawful. Accordingly, we affirm. FACTS AND PROCEDURAL HISTORY ¶ 2 On February 8, 2012, at approximately 10:15 a.m., five police officers, including Officers Ohland and Casillas, arrived at a Phoenix apartment complex in a neighborhood known for violent crimes. They were looking for an individual who had an outstanding felony arrest warrant, acting on infoimation that the individual frequented the area, carried weapons, and sold drugs and weapons. 113 Ohland and Casillas approached a group of four men gathered outside one of the apartments. The officers noticed surveillance cameras on the apartment. Two of the men were standing; two others were seated, including Defendant, who held a young child on his lap. The group appeared to be talking. Defendant did not match the description of the subject of the arrest warrant. ¶4 Ohland and Casillas identified themselves as police officers and Ohland, who was dressed in plainclothes with a badge on the outside of his shirt, asked the men how they were doing. Both officers noticed that one of the standing men appeared nervous. When that man noticed the other three officers approaching from a different direction, he ran and those officers gave chase. The remaining men did not move. Defendant remained seated with the child. He did not exhibit any nervous behavior or make any sudden moves, and he was not visibly armed. ¶ 5 Ohland immediately began patting down the remaining men for weapons. One of the men (not Defendant) either volunteered or was found to be carrying a small plastic bag of marijuana in his shorts pocket. Ohland then frisked Defendant and felt an object in his shorts pocket that had the same size and consistency as the just-recovered drugs. Ohland removed the object from Defendant’s pocket and confirmed that it was a baggie of marijuana. ¶ 6 The state prosecuted Defendant for misdemeanor possession of marijuana. Defendant moved to suppress the marijuana as the product of an unlawful search. After holding an evidentiary hearing that established the foregoing facts, the court denied Defendant’s motion. The court held that “[biased on the totality of the circumstances, [the] officers had a reasonable suspicion that criminal activity may be afoot,” and “[a]s a result 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, [the] officers appropriately decided to perform a pat down search for officer safety.” ¶ 7 The matter proceeded to a bench trial, at the conclusion of which the court found Defendant guilty and placed him on one year of unsupervised probation. Defendant appeals, challenging the denial of the motion to suppress. DISCUSSION ¶ 8 We review the superior court’s factual findings for abuse of discretion, but review de novo its legal determination that the search was lawful. State v. Gilstrap, 235 Ariz. 296, 297, ¶ 6, 332 P.3d 43 (2014). ¶ 9 The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const, amend. IV; see also Ariz. Const, art. II, § 8. A “stop and frisk” in an on-the-street encounter is permissible under the Fourth Amendment when two conditions are met. Arizona v. Johnson, 555 U.S. 323, 326, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). First, to support the stop, law enforcement must “reasonably suspect[] that the person apprehended is committing or has committed a criminal offense.” Id. Second, to support the fidsk, law enforcement must “reasonably suspect that the person stopped is armed and dangerous.” Id. at 326-27, 129 S.Ct. 781. “The 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 that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The standard is an objective one. Id. at 21-22, 88 S.Ct. 1868. “[D]ue weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. at 27, 88 S.Ct. 1868. ¶ 10 An individual’s presence in a dangerous neighborhood is not, by itself, sufficient to establish a reasonable, particularized suspicion that he is committing or has committed a crime. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). That was the situation when Ohland and Casillas first approached Defendant. Defendant was seated with a child in front of a residence, in daylight hours, engaged in conversation with a few others. He exhibited no evasive or aggressive behavior, was not visibly armed, and neither he nor, apparently, the others in the group matched the description of the dangerous person the officers sought. His mere presence outside of a camera-outfitted apartment in a high-crime neighborhood was insufficient to create a reasonable suspicion that he was committing or had committed a crime. ¶ 11 But then one of Defendant’s companions fled, and another was discovered to have a small baggie of marijuana in his pocket. Unprovoked flight “is not necessarily indicative of wrongdoing, but it is certainly suggestive of such,” and it may be considered in connection with the character of the neighborhood. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). And knowing possession of marijuana is often a crime. A.R.S. § 13-3405(A)(1). The question is 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. ¶ 12 In similar circumstances, some jurisdictions have permitted officers to frisk a lawfully detained person’s companions as a matter of course. See Perry v. State, 927 P.2d 1158, 1163-64 (Wyo.1996) (collecting cases). We previously expressed approval for such a rule in dictum in State v. Clevidence, 153 Ariz. 295, 298, 736 P.2d 379 (App. 1987). But we reject it now. Like the Sixth Circuit, “we do not believe that the Terry requirement of reasonable suspicion under the circumstances ... has been eroded to the point that an individual may be frisked based upon nothing more than an unfortunate choice of associates.” United States v. Bell, 762 F.2d 495, 499 (6th Cir.1985) (citation omitted). This approach is consistent with Ybarra v. Illinois, in which the Supreme Court invalidated the frisk of an apparently innocuous bar patron during the execution of a search warrant on the bartender and bar*, holding 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.” 444 U.S. 85, 88, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). ¶ 13 The absence of a per se rule authorizing frisks of a suspect’s companions does not, however, end the inquiry. We cannot say that the character or conduct of a person’s companions has no bearing on the question whether officers may frisk the person. Bell, 762 F.2d at 500 (“[T]he fact of companionship ... is not irrelevant to the mix that should be considered in determining whether the agent’s actions were justified.”). Companionship 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. See, e.g., Trice v. United States, 849 A.2d 1002, 1004, 1008-09 (D.C.App.2004) (upholding stop and frisk of person seen walking with stabbing suspect minutes after the crime); United States v. Flett, 806 F.2d 823, 827-28 (8th Cir.1986) (upholding stop and frisk of person wearing gang attire in home of known gang member charged with narcotic violation); see also 4 Search & Seizure § 9.6(a), Westlaw (database updated Oct. 2015) (“This raises the question of whether the frisk-of-eompanion rule should be viewed as only permitting a frisk when the companion himself could have been legitimately stopped for investigation. Most likely not, for this would not reach all cases in which the arresting officers would be under a reasonable apprehension. Even if the companion is not sufficiently suspected so that he could legitimately be seized for investigation, the circumstances may nonetheless indicate that the officer should take appropriate precautions.”). The focus of the inquiry becomes officer and public safety. See 4 Search & Seizure § 9.6(a). In Arizona v. Johnson, for example, the Supreme Court held that the driver and all passengers of a vehicle may be detained during a traffic stop, even absent cause to suspect their involvement in criminal activity, if the police “harbor reasonable suspicion that the person subjected to [a] frisk is armed and dangerous.” 555 U.S. at 327, 129 S.Ct. 781. In assessing potential dangerousness, the police may consider factors such as the nature of the person’s companionship with a suspected criminal, the environment, and the number of officers present. 4 Search & Seizure § 9.6(a). ¶ 14 Despite Defendant’s passivity and the absence of any objective evidence of criminal collusion with his companions, we cannot say that Ohland unreasonably suspected that Defendant might be armed and dangerous. Oh-land knew that he was in a dangerous neighborhood looking for a dangerous individual who dealt drugs and weapons. He knew that Defendant had just been talking with several men, one of whom had fled without provocation and another of whom possessed marijuana. He also knew that he was in view of cameras and that he and Casillas were outnumbered by Defendant and his group. On these facts, Ohland justifiably frisked Defen dant for weapons. And under the “plain feel” doctrine, he lawfully removed the baggie of marijuana from Defendant’s pocket. See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (“If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.”). The superior court did not err by denying Defendant’s motion to suppress the marijuana. CONCLUSION ¶ 15 For the reasons set forth above, we affirm. . In Clevidence, we cited United States v. Berryhill, 445 F.2d 1189 (9th Cir.1971), for the proposition that "[t]he right to a limited search extends to a suspected criminal’s companions at the time of arrest.” 153 Ariz. at 298, 736 P.2d 379. In United States v. Bell, 762 F.2d 495, 499 (6th Cir.1985), the Sixth Circuit specifically rejected Berryhill. Recently, the Ninth Circuit clarified that Berryhill does not extend to Terry stops, but rather is limited to searches incident to arrest. United States v. I.E.V., 705 F.3d 430, 437 n. 4 (9th Cir.2012).

OPINION JOHNSEN, Judge: ¶ 1 We reaffirm in this case the principle that in considering whether to terminate a parent’s rights due to incarceration, the superior court may but need not presume the parent will be released from prison before completing his or her full term. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Jeffrey P. (“Father”) is the parent of a child (“Child”) born in 2013. Child was born substance-exposed because of methamphetamine use by her mother. Within a month after Child’s birth, the Department of Child Safety (“DCS”) filed a dependency petition alleging her parents failed to participate in services and remain substance-free. Father stipulated to the dependency, acknowledging his need for services and for help in establishing a safe environment for Child, and the court returned Child to him in September 2013. ¶ 3 In November 2013, Father was arrested and charged with second-degree burglary, and DCS removed Child from Father’s custody. After Father was sentenced eight months later to a 2.5-year prison term, the court changed the case plan from reunification to severance and adoption. DCS then moved to terminate both parents’ parental rights, alleging, inter alia, that Father’s incarceration would deprive Child of a normal home for a period of years under Arizona Revised Statutes (“A.R.S.”) section 8-533(B)(4) (2016). Following trial on November 13, 2014, the superior court granted the motion to terminate both parents’ rights. ¶ 4 Father timely appealed the court’s termination order. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, A.R.S. §§ 8-235(A) (2016), 12-2101(A)(1) (2016) and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court. DISCUSSION ¶5 The right to custody of one’s child is fundamental, but it is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). The superior court may terminate a parent-child relationship upon clear and convincing evidence of at least one of the statutory grounds detailed in A.R.S. § 8-533(B). Id. at 249, ¶ 12, 995 P.2d at 685. Additionally, the court must find by a preponderance of the evidence that termination is in the child’s best interest. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). We review a termination order for an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App.2004). ¶ 6 As relevant here, § 8-533(B)(4) provides that a parent’s rights may be terminated if “the parent is deprived of civil liberties due to the conviction of a felony ... [and] the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years.” In Michael J., our supreme court set out a non-exclusive list of factors for courts to consider in determining if a parent’s prison sentence will deprive a child of “a normal home for a period of years”: (1) the length and strength of any parent-child relationship existing when incarceration begins, (2) the degree to which the parent-child relationship can be continued and nurtured during the incarceration, (3) the age of the child and the relationship between the child’s age and the likelihood that incarceration will deprive the child of a normal home, (4) the length of the sentence, (5) the availability of another parent to provide a normal home life, and (6) the effect of the deprivation of a parental presence on the child at issue. 196 Ariz. at 251-52, ¶ 29, 995 P.2d at 687-88. ¶ 7 Father argues the superior court erred by failing to consider the possibility he would be released early from prison. He was sentenced to 2.5 years in prison beginning on July 10, 2014, with presentence incarceration credit of 233 days, meaning that his term of incarceration was scheduled to end in May 2016. At trial, Father testified he might qualify for early release, which would allow him to be released on community supervision in October 2015. Contrary to Father’s contention, the superior court plainly considered that he might be released before May 2016: Its order noted that Father’s community supervision might begin as early as October 2015. ¶ 8 Father seems to argue the court erred by not finding that his early release was a certainty. In exercising its broad authority to determine each case on its facts, however, a court addressing the incarceration ground for severance must consider the designated length of the sentence and may consider the possibility of early release. See Michael J., 196 Ariz. at 251-52, ¶ 29, 995 P.2d at 687-88; cf. Ariz. Dep’t of Econ. Sec. v. Rocky J., 234 Ariz. 437, 441, ¶ 16, 323 P.3d 720, 724 (App.2014) (anticipated early release from incarceration “is a relevant factor” in considering severance based on incarceration); Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz. 547, 550-51, ¶ 15, 225 P.3d 604, 607-08 (App.2010) (“As long as the juvenile court considers the length of sentence, we find no error for it to also consider the anticipated release date.”). No authority requires the court to presume an early release. ¶ 9 Father also argues that if he were released in October 2015, he would have been incarcerated for only nine months from the date of the amended court order severing his parental rights. But the relevant period is the entire period of incarceration, not solely the time after entry of the termination order. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 8, 53 P.3d 203, 205 (App.2002). (“We conclude the legislature used the words ‘will be deprived’ in § 8-533(B)(4) to mean ‘will have been deprived’ in total, intending to encompass the entire period of the parent’s incarceration and absence from the home.”). ¶ 10 Father further argues that if released early, he would have been incarcerated for fewer than two years, which he argues is too short to amount to a “period of years” for purposes of § 8-533(B)(4). We need not address that issue, however, because, as stated, the superior court was not required to find Father would be released before the completion of his entire term. Moreover, as Father acknowledged in oral argument, Child would not necessarily have been returned to him immediately upon his release from prison. His conditions of release might affect his ability to interact with Child; beyond that, he still needed to complete parenting classes, counseling and other services. Accordingly, the superior court reasonably could conclude that more than two years would pass before Father could be reunited with Child. ¶ 11 Relying on Matthew L., Father argues that notwithstanding his incarceration, he has a strong relationship with Child. Like the parent in that case, Father maintained contact with Child by writing letters and sending a birthday card. See Matthew L., 223 Ariz. at 548, ¶4, 225 P.3d at 605. Father also requested visitation with Child, but DCS denied the request because it concluded the travel was not in Child’s best interest. ¶ 12 In Matthew L, we affirmed the superi- or court’s denial of a motion to terminate based on incarceration because reasonable evidence supported the court’s ruling. 223 Ariz. at 551, ¶ 19, 225 P.3d at 608. We viewed the evidence in that case in the light most favorable to sustaining the court’s ruling and emphasized the discretion vested in the superior court to consider and weigh all relevant factors. Here, the superior court granted DCS’s motion to terminate Father’s parental rights based on its review of the evidence, and this court will not reweigh the evidence on which that court based its ruling. See Rocky J., 234 Ariz. at 441, ¶ 15, 323 P.3d at 724 (superior court “reasonably concluded” insufficient evidence presented to support severance when parent had been incarcerated for much of 12-year-old child’s life but expected to be released on parole seven months after severance trial). ¶ 13 Father contends the superior court failed to recognize the relationship he had with Child for the first six months of her life. He testified he saw Child every day during the month after her birth and that she had been in his care for two months before his arrest. In deciding whether to sever a parent’s rights due to incarceration, however, the superior court must consider not only the parent-child relationship at the time the incarceration commences but also, how and whether that relationship may be maintained during the incarceration. See Michael J., 196 Ariz. at 251, ¶ 29, 995 P.2d at 687 (court must consider the “parent-child relationship existing when incarceration begins” and the “degree to which the parent-child relationship can be continued and nurtured during the incarceration”). A DCS supervisor testified it is difficult to nurture a parent-child relationship between a young child and an incarcerated parent: In the first few years of development, trust is the primary thing that we work on developing____When a child is not—doesn’t have that touch, doesn’t learn that a parent is going to come back and be there, that’s where a child doesn’t develop, and they develop sort of cognitive delays as a result of that. The record does not support Father’s contentions that the court failed to consider his historical relationship with Child or that the court failed to consider any of the relevant factors. The record reveals evidence both of Father’s historical relationship with Child and the difficulties of maintaining that relationship during Father’s incarceration. See Michael J., 196 Ariz. at 251, ¶ 29, 995 P.2d at 687 (the superior court has discretion to consider each ease on its particular facts and in making its determination, can consider all relevant factors). ¶ 14 Father also argues that to support severance based on incarceration, DCS was required to offer evidence that he would not be able to renew and continue his relationship with Child after his release. The inquiry under § 8-533(B)(4), however, focuses on the child’s needs during the incarceration and not solely on whether the parent would be able to continue the parent-child relationship after release. See A.R.S. § 8-533(B)(4) (severance ground established if parent’s sentence is “of such length that the child will be deprived of a normal home for a period of years”); see also Michael J., 196 Ariz. at 252, ¶ 29, 995 P.2d at 688 (relevant factors include “the availability of another parent to provide a normal home life” and “the effect of the deprivation of a parental presence on the child at issue”); Maricopa County Juv. Action No. JS-5609, 149 Ariz. 573, 575, 720 P.2d 548, 550 (App.1986) (“The ‘normal home’ referred to in the statute relates to respondent’s obligation to provide a normal home, a home in which the respondent natural father has a presence, and it does not refer to a ‘normal home’ environment created by [others].”). Because Child’s mother’s parental rights already had been terminated, the court found that due to Father’s incarceration, there was “no parent who can safely parent [Child] ... nor is there likely to be one in the near future.” As a result, the court noted, by the time of Father’s release and possible reunification with Child, “she will have been deprived of a normal home for a period of years (the vast majority of her life).” ¶ 15 Nothing in this Opinion should be taken to mean that a sentence of 2.5 years, as a matter of law, will suffice to support severance pursuant to § 8-533(B)(4). See Rocky J., 234 Ariz. at 441, ¶ 17, 323 P.3d at 724; Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 450, ¶ 15, 153 P.3d 1074, 1079 (App.2007) (“there is no threshold level under each individual factor in Michael J. that ei ther compels, or forbids, severance”). The factual findings the superior court must make before it orders severance of a parent’s rights based on incarceration are committed to the court’s sound discretion. CONCLUSION ¶ 16 The court in this case heard conflicting evidence. Although the evidence did not compel the court to grant the motion to terminate Father’s rights, sufficient evidence supported the exercise of discretion by the court to order severance. We therefore affirm. .Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz. 2014) (enacted), the Department of Child Safety is substituted for the Arizona Department of Economic Security in this matter. See ARCAP 27. . Absent material revision after the relevant date, we cite a statute's current version. . Child’s mother is not a party to this appeal. . We take judicial notice of the fact that Father was no longer incarcerated at the time of our oral argument on November 10, 2015. See Ariz. R. Evid. 201. . Father contends the court erred by relying on the supervisor’s testimony because the caseworker gave conflicting testimony. The superior court, however, is in the best position to “judge the credibility of the witnesses, and make appropriate findings.” Jesus M., 203 Ariz. at 280, ¶ 4, 53 P.3d at 205.

CHIEF JUSTICE BALES, opinion of the Court: ¶ 1 Consistent with Arizona’s common law, we hold that AR.S. § 13-206(A) affords a defense of entrapment only when the defendant affirmatively admits the substantial elements of the charged offense. A defendant cannot invoke this affirmative defense merely by declining to challenge the state’s evidence, even when it includes incriminating statements made by the defendant to an undercover officer. I. ¶2 In June 2013, an undercover police officer approached Maverick Gray at a bus stop and asked if Gray could help him get some “hard,” a slang term for crack cocaine. Gray agreed to obtain twenty dollars’ worth of cocaine for a ten-dollar fee. The officer drove with Gray to an apartment complex and gave him twenty dollars; Gray left the car and returned ten minutes later with the cocaine; the officer then gave him ten dollars for the fee. Gray was arrested and charged with sale of narcotics. ¶ 3 The officer secretly recorded his conversation with Gray, who made statements such as “I’m a good person” and “I don’t usually do this.” As part of its trial evidence, the State presented the audio recording over Gray’s objection that it was unreliable. Based on his recorded statements, Gray also asked the trial court to instruct the jury on the entrapment defense recognized in A.R.S. § 13-206. As a prerequisite for this defense, the statute requires a defendant to “admit by [his] testimony or other evidence the substantial elements of the offense charged.” Concluding that Gray had not admitted these elements, the trial court refused the requested instruction. The jury found Gray guilty and the trial court sentenced him to 9.25 years in prison. The court of appeals affirmed, ruling that Gray was not entitled to an entrapment instruction because he had not admitted the substantial elements of the crime. State v. Gray, 238 Ariz. 147, 150 ¶ 12, 357 P.3d 831, 834 (App.2015). ¶ 4 We granted review because the application of the statutory entrapment defense presents a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶5 We here consider whether § 13-206 requires a defendant who requests a jury instruction on the entrapment defense to affirmatively admit the substantial elements of the offense and, if so, what qualifies as “other evidence” for such an admission. We review these issues de novo. See State v. King, 225 Ariz. 87, 89 ¶ 5, 235 P.3d 240, 242 (2010) (reviewing issues of statutory interpretation de novo); State v. Miller, 234 Ariz. 31, 43 ¶ 41, 316 P.3d 1219, 1231 (2013) (noting that trial court’s refusal to give a jury instruction is reviewed for abuse of discretion, but legal adequacy of instructions is reviewed de novo). ¶ 6 When a statute’s language is clear, “it controls unless an absurdity or constitutional violation results. But if the text is ambiguous, we also consider the statute’s context; its subject matter, and historical background; its effects and consequences; and its spirit and purpose,” Metzler v. BCI Coca-Cola Bottling Co. of Los Angeles, Inc. 235 Ariz. 141, 144-45 ¶ 13, 329 P.3d 1043, 1046-47 (2014) (citations and internal quotations omitted). ¶ 7 By its terms, § 13-206 requires a defendant “to admit ... the substantial elements of the offense charged.” The statute does not expressly address whether a defendant can “admit” the elements merely by not challenging the state’s evidence. Gray argues that we should construe the statute as not requiring a defendant to affirmatively admit the elements. He notes that silence can, in some contexts, be deemed an admission, and he contends that we should deem his not offering evidence to contradict his recorded statements to be an “admission” for purposes of § 13-206. We find these arguments unconvincing in light of the background to the statute’s enactment. ¶ 8 Before 1997, Arizona’s entrapment defense was a creation of the common law. This Court addressed the defense in State v. McKinney, 108 Ariz. 436, 439, 501 P.2d 378, 381 (1972), holding that “[a] defendant who wishes to avail himself of a defense of entrapment must admit the substantial elements of the crime and one who denies knowledge of the crime may not raise the defense of entrapment.” McKinney further described the requirements for a valid entrapment claim: “there has to exist activity by the State in the nature of inducement to commit a crime which the accused would not have otherwise committed, although providing the mere opportunity to commit the offense is not sufficient.” Id. (citing State v. Duplain, 102 Ariz. 100, 101, 425 P.2d 570, 571 (1967)). ¶ 9 In 1983, we reaffirmed that a defendant, in order to invoke the entrapment de fense, must admit the elements of the offense. State v. Nilsen, 134 Ariz. 431, 432, 657 P.2d 419, 420 (1983). Nilsen also clarified that although a defendant “need not take the stand in order to assert the defense of entrapment,” a defendant cannot “passively admit” the elements. As alternatives to the defendant’s testifying, Nilsen noted that a defendant may stipulate to the admission or have it read into evidence. Id. ¶ 10 Five years after Nilsen, the United States Supreme Court took a different approach to the entrapment defense as a matter of federal law—holding that a defendant is not required to admit the offense’s elements in order to raise the defense. Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Thus, in federal court, defendants may contend both that they did not commit a charged offense and, alternatively, that their commission of the crime should be excused because they were entrapped. Id. States, however, are not required to follow Matheivs because the defense is not of “constitutional dimension.” Id. at 65, 108 S.Ct. 883, quoting United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). ¶ 11 Our Court rejected the Mathews approach in State v. Soule, 168 Ariz. 134, 137, 811 P.2d 1071, 1073 (1991). In reaffirming Nilsen by a 3-2 vote, this Court noted that “allowing] a defendant to testify as to two defenses that cannot both be true is equivalent to sanctioning a defendant’s perjury,” and “allowing inconsistent defenses may confuse the jury.” Id. at 136, 811 P.2d at 1073. Two justices vigorously disagreed, arguing in favor of the Mathews rule. Id. at 137-39, 811 P.2d at 1074-76 (Feldman, V.C.J., joined by Gordon, C.J.). The Court, however, reiterated that entrapment “is a relatively limited defense available only to defendants who have committed all the elements of a proscribed offense,” and that the defense is not available to defendants who do not testify or “otherwise present to the jury some evidence of [their] admission to the elements of the crime.” Id. Thus, our common law consistently required a defendant to affirmatively admit the elements of the crime in order to claim entrapment. ¶ 12 In 1997, the legislature codified the entrapment defense by enacting § 13-206, which provides that the defendant must “admit by testimony or other evidence the substantial elements of the offense charged.” Gray argues that the legislature, by referring to “other evidence,” intended to expand the circumstances in which a criminal defendant may “admit” the elements of a crime to include a defendant’s merely declining to challenge the state’s evidence. ¶ 13 Criminal statutes are interpreted in light of their common law antecedents, although Arizona has abolished common law crimes and defenses. See A.R.S. § 13-103(A); Engle v. State, 53 Ariz. 458, 465, 90 P.2d 988, 991 (1939). Section 13-206 does not itself reflect any intent to alter the common law requirement that a defendant affirmatively admit the elements of the offense. Moreover, the legislative fact sheet for the bill that became § 13-206 noted that “[t]he definition of entrapment is derived from the definition used in ease law,” Arizona State Senate, H.B. 2002 Fact Sheet at 1 (1997), and that the statute “requires that a defendant admit to committing the crime he or she is charged with in order to use the affirmative defense of entrapment.” Id. at 2. ¶ 14 We hold that the legislature in enacting § 13-206 generally codified the Nil-sen rule—in order to raise an entrapment defense, the accused must affirmatively admit, by testimony or other evidence, the substantial elements of the offense. (Nilsen and Soule referred interchangeably to “substantial elements” and “all elements” of the offense, and neither party here has argued that there is a difference.) Such an admission cannot be accomplished merely by the defendant passively declining to challenge the state’s evidence. But we also reject the State’s argument that, for purposes of § 13-206, “other evidence” refers only to a defendant stipulating at trial or having an admission read into evidence. In referencing these alternatives, Nilsen did not exhaustively identify the ways in which a defendant can admit the elements of a crime. ¶ 15 Nilsen contemplated an affirmative admission by a defendant’s testimony or “any other manner,” 134 Ariz. at 431, 657 P.2d at 419. “Other evidence” is not limited to a post-charge admission, but instead only requires evidence of a defendant’s affirmative admission of the elements. For example, a defendant who is given Miranda warnings and makes a statement to the police could rely on his admissions to satisfy § 13-206(A), as long as the defendant does not contest the validity of the confession or raise inconsistent defenses. ¶ 16 Gray also argues that requiring a defendant to affirmatively admit the elements of a crime before claiming entrapment conflicts with the Fifth Amendment’s guarantee that “no person shall be compelled in any criminal ease to be a witness against himself.” U.S. Const, amend. V. This argument founders because entrapment is an affirmative defense—it is not a denial of an element of the offense or criminal responsibility, but instead “attempts to excuse the criminal actions acthe accused.” A.R.S. § 13-103(B). See United States v. Braver, 450 F.2d 799, 803 (2d Cir.1971) (noting that defense “does not negative any essential elements” of the crime at issue). ¶ 17 Entrapment presupposes that the defendant has committed the criminal offense charged, but “the idea of committing the offense started with law enforcement officers or their agents rather than with the person” and “the law enforcement officers or their agents urged and induced the person to commit the offense.” A.R.S. § 13-206(B)(l)-(2). See also Paul Marcus, The Entrapment Defense, § 6.02D (4th ed. 2012) (noting that federal constitution does not preclude requiring defendant to prove entrapment as an affirmative defense); cf. Dixon v. United States, 548 U.S. 1, 5-8, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (recognizing that Constitution allows placing burden on defendant of proving affirmative defense of duress). ¶ 18 Requiring a defendant who chooses to assert an entrapment defense to admit the elements of the charged offense does not “compel” self-incrimination. See Bueno v. Hallaban, 988 F.2d 86, 88 (9th Cir.1993) (ruling that trial court did not violate due process by following Arizona law and requiring defendant to admit all elements of offense before instructing jury on entrapment). “That the defendant faces ... a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.” Williams v. Florida, 399 U.S. 78, 84, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (holding that privilege against self-incrimination is not violated by requiring defendant to give notice of alibi defense and to disclose alibi witnesses); see State v. Seliskar, 35 Ohio St.2d 95, 298 N.E.2d 582, 583 (1973) (requiring defendant to offer evidence to establish self-defense does not violate privilege against self-inerimination). ¶ 19 Limiting the entrapment defense to those who choose to admit the elements of the crime also does not implicate the “unconstitutional conditions” doctrine. See Corbitt v. New Jersey, 439 U.S. 212, 218, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978) (holding that Fifth Amendment privilege was not unconstitutionally burdened by a statute making first-degree murder defendants who pleaded no contest eligible for sentence of less than life imprisonment); cf. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 285-88, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (holding, irrespective of “unconstitutional conditions” doctrine, that Fifth Amendment privilege is not violated by state’s drawing adverse inference from defendant’s declining to testify at voluntary clemency hearing). If states can constitutionally “condition” eligibility for a reduced sentence on a defendant’s pleading guilty or no contest, which results in a conviction, there similarly is no constitutional bar to Arizona limiting the entrapment defense to defendants who admit the elements of a crime, but still retain the prospect of acquittal. ¶ 20 We turn to Gray’s argument that his recorded statements are “other evidence” sufficient to show that he affirmatively admitted the substantial elements of the charged offense. Even if we assume, without deciding, that a defendant’s recorded statements to an undercover officer could constitute “other evidence” for § 13-206(A) purposes, Gray’s argument is not convincing. He was charged with violating A.R.S. § 13- 3408(A)(7), which provides that “[a] person shall not knowingly ... transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.” Although Gray made incriminating statements in his recorded conversation, he did not affirmatively admit the substantial elements of this offense. There is a difference between a defendant admitting the commission of a crime and unwittingly inculpating himself. Moreover, although the officer asked Gray to help him obtain “some hard,” the recorded conversation alone does not prove that Gray in fact provided drugs to the officer. That Gray did not contest the officer’s testimony explaining the events captured in the audio recording does not amount to an affirmative admission. ¶ 21 Finally, we note that the dissenting opinion observes that Arizona has adopted a uniquely narrow—indeed, “draconian”—view of the entrapment defense, ¶ 25, and that Gray, unable to assert such a defense, “has been sentenced to over nine years in jail for accepting an undercover officer’s invitation to obtain twenty dollars’ worth of crack for a fee of ten dollars.” ¶ 56. As a matter of policy, we might well agree that the entrapment defense should be more widely available, but our legislature has adopted a different view in AR.S. § 13-206 by expressly limiting the defense to those who admit the elements of the crime. Gray’s sentence also reflects legislative policy judgments—he received the statutory presumptive sentence under AR.S. § 13-703(1) because he committed the offense at issue while on release after a prior conviction for a drug-related offense. Reconsidering these policy judgments is within the purview of the legislature rather than the courts. III. ¶ 22 Because Gray did not affirmatively admit to the substantial elements of the offense charged, the trial court did not abuse its discretion in denying his requested entrapment instruction. We affirm Gray’s conviction and sentence, and we vacate the opinion of the court of appeals.

OPINION HOWARD, Presiding Judge: ¶ 1 After a jury trial, Luis Peraza was convicted of aggravated driving under the influence (DUI) while his license was suspended or revoked and aggravated driving with an alcohol concentration (AC) of 0.08 or more while his license was suspended or revoked. On appeal, Peraza argues that the trial court erred both by denying his motion to suppress the results of a breathalyzer test because he was deprived of his right to counsel and by improperly instructing the jury. Because the trial court committed no reversible error, we affirm. Factual and Procedural Background ¶ 2 “We view the facts in the light most favorable to sustaining the verdicts.” State v. Nottingham, 231 Ariz. 21, ¶ 2, 289 P.3d 949, 951 (App.2012). A Tucson Police Department (TPD) officer stopped Peraza after observing him use a private parking lot to avoid a traffic signal. After approaching Peraza, the officer observed signs that Peraza was under the influence of alcohol and saw an open container of alcohol underneath the driver’s seat of the vehicle. Peraza admitted he had been drinking. He exhibited cues of impairment on field sobriety tests, and breathalyzer tests produced results of .153 and .152 AC. ¶ 3 The state charged Peraza and a jury found him guilty as noted above. The trial court sentenced him to presumptive, concurrent 4.5-year prison terms. We have jurisdiction over his appeal pursuant to AR.S. §§ 12-120.21 and 13-4033(A)(1). Adequacy of Access to Counsel ¶4 Peraza first argues the trial court erred by denying his motion to suppress the breathalyzer results, claiming the officer had deprived him of assistance of counsel by not providing adequate time for an attorney to return Peraza’s call before the officer conducted the test. We review de novo the denial of a motion to suppress based on an alleged deprivation of counsel. State v. Rumsey, 225 Ariz. 374, ¶ 4, 238 P.3d 642, 644-45 (App.2010). In reviewing the court’s ruling, “we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the ... ruling.” State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App.2014). ¶ 5 The TPD officer stopped Peraza’s car at 5:17 a.m., advised him of his Miranda rights at 5:35 a.m., and, at 5:45 a.m., formally arrested him for DUI. At 6:31 a.m., while at the station, Peraza invoked his right to counsel. The officer provided Peraza with a phone book and told him he could have ten minutes to choose an attorney. Within ten minutes, Peraza had twice attempted to reach the law firm he chose but was only able to leave messages for the attorney to call him back at the police station. ¶ 6 The officer waited until 6:52 a.m. for the attorney to return the calls, then at 6:56 a.m., conducted the first breathalyzer test. He conducted the second test at 7:02 a.m. The officer testified he had conducted the two AC tests before Peraza contacted an attorney because the statutory two-hour window for the collection of such evidence was expiring. ¶ 7 Section 28-1381(A)(2), A.R.S., establishes the statutory two-hour window by prohibiting a driver from operating a vehicle if that driver’s AC is over 0.08 within two hours of driving. If breath tests occur more than two hours after driving, the state is required to relate the results back to the relevant time for the results to be admissible. State v. Stanley, 217 Ariz. 253, ¶ 24, 172 P.3d 848, 853 (App.2007) (“If the sample is drawn after the two-hour mark, an expert must use retroactive extrapolation to determine the blood alcohol content.”). ¶ 8 Despite the two-hour window, a defendant is entitled to the advice of counsel when in custody, “and the state may not unreasonably restrict that right.” Kunzler v. Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987); see Ariz. R. Crim. P. 6.1(a). Accordingly, a defendant has the “right to speak to counsel before taking a breathalyzer test.” State v. Sanders, 194 Ariz. 156, ¶ 6, 978 P.2d 133, 134 (App.1998). That right, however, must give way when its exercise would “hinder an ongoing investigation.” Kunzler, 154 Ariz. at 569, 744 P.2d at 670. This arises most frequently in DUI cases because of their “unique evidentiary circumstances.” Montano v. Superior Court, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986). ¶ 9 “It is the state’s burden to demonstrate that allowing the suspect to consult with counsel when requested would have disrupted the police investigation.” Rumsey, 225 Ariz. 374, ¶ 8, 238 P.3d at 645. But the “defendant has no right to delay [an investigation] by demanding to consult with counsel____ If the lawyer cannot be reached by telephone ... the state may continue with its detention procedures.” McNutt v. Superior Court, 133 Ariz. 7, 10 n. 2, 648 P.2d 122, 125 n. 2 (1982). ¶ 10 Courts have found a deprivation of counsel when police either flatly prevented a defendant from speaking to an attorney or in some active way impeded access to counsel. See State v. Juarez, 161 Ariz. 76, 77-79, 81, 775 P.2d 1140, 1141-43, 1145 (1989) (police did not allow defendants to contact attorneys and read implied consent at end of twenty-minute waiting period); see also Kunzler, 154 Ariz. at 570, 744 P.2d at 671 (remanding for reasonableness determination where police prevented defendant from speaking to attorney during one-hour breathalyzer warmup period); McNutt, 133 Ariz. at 9-10, 648 P.2d at 124-25 (police prevented defendant from having attorney arrange independent blood test when attorney available by telephone); State v. Penney, 229 Ariz. 32, ¶ 13, 270 P.3d 859, 862-63 (App.2012) (police unreasonably deprived defendant of access to phone book); Rumsey, 225 Ariz. 374, ¶¶ 9-10, 238 P.3d at 645-46 (police prevented defendant from consulting with attorney present at station); State v. Rosengren, 199 Ariz. 112, ¶¶ 3-4, 10, 14 P.3d 303, 306-07 (App.2000) (police prevented defendant from calling father, an out-of-state attorney); State v. Keyonnie, 181 Ariz. 485, 485-86, 892 P.2d 205, 205-06 (App.1995) (police did not provide defendant any opportunity to contact attorney). ¶ 11 As noted above, this court concluded there had been a deprivation of counsel in Rumsey, although on grounds different than those cited by the trial court. 225 Ariz. 374, ¶ 10, 238 P.3d at 646. Following a motor vehicle accident, responding police officers noticed that Rumsey appeared to be intoxicated and arrested her. Id. ¶¶2-3. While still at the scene of the accident, Rumsey spoke with her attorney by telephone for approximately six minutes. Id. ¶ 5. The officers waited twenty minutes for the attorney to arrive before taking Rumsey to the substation. Id. The attorney arrived at the accident scene fifteen minutes later and agreed to follow an officer to the substation. Id. But the attorney made a wrong turn and arrived at the station roughly fifty-two minutes after Rumsey. Id. By that time, Rumsey had already consented to a blood draw, and an officer had obtained a warrant for three more blood draws. Id. ¶¶ 5-6. ¶ 12 This court concluded the trial court had erred in determining Rumsey was deprived of counsel based on an officer’s statement that she could “ ‘talk to [counsel] after the first blood draw.’ ” Id. ¶ 7 (alteration in original). We noted that officers “had honored [the defendant’s] request to speak with counsel at the accident scene” and that it had been proper to proceed with the investigation at the substation because the attorney did not follow the officers and none “of the officers at the substation knew where [the attorney] had gone [or] when ... he would arrive.” Id. ¶ 9. We instead determined officers had improperly deprived Rumsey of counsel later, once the attorney had arrived at the substation and had made contact with the police but was nevertheless prevented from speaking with the defendant before the blood draw. Id. ¶¶ 10-11. ¶ 13 In this case, however, Peraza’s right to counsel was honored. The officer notified Peraza of his right to counsel, permitted him to call an attorney, and gave Peraza adequate time to contact one before continuing his investigation. The officer could not know when or if an attorney would call back. He then conducted two breathalyzer tests at approximately twenty-five minutes and fourteen minutes before the end of the statutory two-hour window. See AR.S. § 28-1381(A)(2). ¶ 14 The officer reasonably delayed the tests while still avoiding the risk that they would occur after the two-hour window. Had any delays occurred, such as those due to a suspect burping or vomiting, the test results could have been inadmissible without extrapolation evidence. Stanley, 217 Ariz. 253, ¶ 24, 172 P.3d at 853 (“To avoid additional evidentiary hurdles, the police typically need to have the blood sample drawn within two hours of the arrest.”). Causing the tests to occur outside the two-hour window would have delayed or hindered the investigation. McNutt, 133 Ariz. at 10 n. 2, 648 P.2d at 125 n. 2. We conclude the officer did not interfere with Peraza’s access to counsel. ¶ 15 Peraza contends, however, that the law firm he called might have opened at about the time the officer conducted the test. But Peraza had no right to hinder the investigation. See id. And no evidence supports the speculation that the law firm Peraza had chosen was open at the time of the test and no phone call was received during the test or thereafter when the officer was still present. In this instance, the state met its burden to show that the police investigation would have been impeded by a further delay to allow Peraza to speak to an attorney. See Rumsey, 225 Ariz. 374, ¶ 8, 238 P.3d at 645. Refusal of Testing Instruction ¶ 16 Next, Peraza argues the trial court erred by instructing the jury on the refusal to submit to a sobriety test because no evidence supported it. We review the decision to give a jury instruction for an abuse of discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). ¶ 17 As a preliminary matter, the state argues Peraza failed to object below and has forfeited any review except fundamental, prejudicial error. See State v. Smith, 228 Ariz. 126, ¶ 10, 263 P.3d 675, 678 (App.2011). When discussing this instruction, defense counsel stated “I don’t really think we’re dealing with this because it wasn’t a refusal. He did perform the field sobriety tests. So I don’t think it’s really necessary. I think it could be deleted.” The prosecutor responded “I would just prefer it stay in. It’s an accurate representation of what the law is and the procedure that was followed in this ease.” The trial court gave the instruction. ¶ 18 Although Peraza’s counsel failed to use the word “object,” the specific word is not required to make an objection or to preserve an issue for appeal. See State v. Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d 50, 56 (2003) (‘“The purpose of an objection is to permit the trial court to rectify possible error, and to enable the opposition to obviate the objection if possible.’ ”), quoting State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 901 (1955). Here, Peraza’s counsel explained why the instruction should not be given, and the state was given an opportunity to respond. Thus, Peraza effectively objected to the instruction below, and we will review the merits of his claim accordingly. See State v. Henderson, 210 Ariz. 561, ¶ 39, 115 P.3d 601, 611 (2005) (where defendant objected below, burden is on state to prove harmless error). ¶ 19 “A party is entitled to an instruction on any theory reasonably supported by the evidence.” Bolton, 182 Ariz. at 309, 896 P.2d at 849. However, “it is improper to give an instruction which is not clearly supported by the evidence.” State v. Smith, 113 Ariz. 298, 300, 552 P.2d 1192, 1194 (1976). ¶ 20 The jury instruction in question read: Refusal to Perform Field Sobriety Tests A person who operates a motor vehicle within this state gives consent to a test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining alcohol concentration or drug content if arrested for any offense arising out of acts alleged to have been committed by a person who was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. A failure to expressly agree to the test or successfully complete the test is deemed a refusal. Although this instruction’s title refers to “field sobriety tests,” the instruction itself discusses blood, breath, and urine tests. ¶ 21 The undisputed evidence showed that Peraza successfully submitted to two breathalyzer tests. The state presented no evidence that he had refused the testing, and on the contrary, the officer testified that Peraza had consented to the breathalyzer. Thus, because no evidence supported the instruction, the trial court erred by giving it. See Smith, 113 Ariz. at 300, 552 P.2d at 1194. ¶ 22 When the trial court gives incorrect instructions, we apply a harmless error analysis. State v. Rodriguez, 192 Ariz. 58, ¶ 27, 961 P.2d 1006, 1011 (1998). “If the state can show beyond a reasonable doubt that the error did not affect the verdict, the error is harmless.” Nottingham, 231 Ariz. 21, ¶ 17, 289 P.3d at 956. ¶ 23 The jury here was instructed that, after determining the facts, it might find “that some instructions no longer apply.” And we presume the jury follows its instructions. See State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). The jury heard uncontested testimony that Peraza consented to and subsequently completed the tests. Neither attorney argued in closing that Peraza had refused the tests. Finally, the instruction did not describe any consequences for refusing the test. A reasonable jury would have disregarded the instruction. ¶ 24 Moreover, the instruction was not significantly related to an element of the offense and was unnecessary to convict Peraza. The state was required to prove that Peraza had an AC above .08 within two hours of driving a vehicle while his license was suspended or revoked. See § 28-1381(A)(2). At trial, the evidence demonstrated that Peraza was pulled over while driving a vehicle at 5:17 a.m. Within two hours, his AC levels were .153 and .152. Even had the trial court not given the complained-of instruction, a rational jury would have found Peraza guilty beyond a reasonable doubt under the facts of this case. Thus, because the jury would have found Peraza guilty, regardless of the instruction, the error was harmless. See Nottingham, 231 Ariz. 21, ¶ 17, 289 P.3d at 956. Breath-Testing Device Instruction ¶ 25 Finally, Peraza argues the trial court erred when it instructed the jury that records of periodic maintenance were prima facie evidence that the breathalyzer was working properly. Because Peraza failed to object to the instruction at trial, he has forfeited review for all but fundamental, prejudicial error. See Smith, 228 Ariz. 126, ¶ 10, 263 P.3d at 678; Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. To prevail on a fundamental error claim, Peraza must “prove error” and that the error was both fundamental and prejudicial. Henderson, 210 Ariz. 561, ¶¶ 20, 23, 26, 115 P.3d at 607-08. We review the decision to give a jury instruction for an abuse of discretion, but we review constitutional issues and whether the jurors were properly instructed de novo. State v. Dann, 220 Ariz. 351, ¶¶ 27, 51, 207 P.3d 604, 613, 616-17 (2009). ¶ 26 Peraza first argues the statute on which the jury instruction was based dealt with admissibility, not evidentiary presumptions. The instruction stated: The State has introduced evidence of periodic maintenance through records which show that the quantitative breath testing device was in proper operating condition at a time before and after the test. Such records are prima facie evidence that the device was in the proper condition at the time of the test. This jury instruction is based on AR.S. § 28-1323(A) which provides that the results of a breathalyzer test are admissible as evidence upon establishing five requirements. The fifth requirement, which is the source of the at-issue jury instruction, allows the results of a breathalyzer test to be admitted so long as the “device ... was in proper operating condition.” § 28-1323(A)(5). The statute further provides that “[r]ecords of periodic maintenance that show that the device was in proper operating condition are admissible in any proceeding as prima facie evidence that the device was in proper operating condition.” Id. ¶ 27 This court has already ruled that this instruction correctly states the law. State v. O’Haire, 149 Ariz. 518, 521, 720 P.2d 119, 122 (App.1986). Although § 28-1323(A)(5) does pertain to admissibility, prima facie evidence of a fact is a higher standard than required for admissibility. See Ariz. R. Evid. 402 (relevant evidence admissible). Based on the statute’s plain language, it allows admission of the evidence as prima facie evidence the equipment was functioning properly. ¶ 28 Peraza next contends the instruction created an evidentiary presumption for the jury, burdening the defense with proving the instrument was not working properly, which amounted to unconstitutional burden-shifting. “To determine the constitutionality of any given presumption, we must first determine whether the presumption is permissive or mandatory.” State v. Platt, 130 Ariz. 570, 574, 637 P.2d 1073, 1077 (1981). Mandatory presumptions represent an impermissible burden shift when “they relieve the State of the burden of persuasion on an element of an offense.” Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). “A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts.” Id. ¶ 29 In contrast, “[a] permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” Id. The permissive inference “allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant.” Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). In such eases “the basic fact may constitute prima facie evidence of the elemental fact.” Id. These permissive inferences do not rise to the level of unconstitutional burden shifting because they “leave[] the trier of fact free to credit or reject” them. Id. “A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” Francis, 471 U.S. at 314-15, 105 S.Ct. 1965. ¶ 30 Turner v. United States is instructive as an example. 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). There, the jury was instructed “ ‘the absence of appropriate tax-paid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.’ ” Id. at 402 n. 2, 90 S.Ct. 642, quoting 26 U.S.C. § 4704(a). The Court concluded the jury “was not required by the instructions to find [the defendant] guilty” but instead allowed to make an inference that “did not require the defendant to present evidence.” Id. at 406, 90 S.Ct. 642. The court determined the statutory presumption was constitutional. Id. at 417-18, 90 S.Ct. 642. And although the court in Turner did not use the phrase “permissive presumption,” the court in Ulster cited to Turner as an example of a constitutional permissive inference. Ulster, 442 U.S. at 157, 99 S.Ct. 2213. ¶ 31 Peraza relies on Norton v. Superior Court, to support his claim that the instruction in this case is unconstitutional. 171 Ariz. 155, 829 P.2d 345 (App.1992). In that case, this court considered former AR.S. § 12-2458(B), which provided: “Proof of the failure by such parent to furnish reasonable support for his or her child is prima facie evidence that such failure to furnish reasonable support is wilful and without lawful excuse.” Id. at 157, 829 P.2d at 347. The state conceded that the statute was unconstitutional. Id. at 158, 829 P.2d at 348. Based on that concession, we concluded that section created an unconstitutional mandatory presumption because, upon proof of a certain fact, it forced the jury to presume that a defendant “possesse[d] the requisite intent for the offense.” Id. at 157-58, 829 P.2d at 347-48. ¶ 32 Here, the state has argued the statute is constitutional and the issue is properly presented for decision. We agree the instruction in this ease is permissive under Ulster and Turner and distinguishable from Norton. The presumption that records of periodic breathalyzer maintenance are in fact evidence that the breathalyzer was working properly did not relieve the state of the burden of persuasion on any element of the offense. See Francis, 471 U.S. at 314, 105 S.Ct. 1965; see also § 28-1381(A)(2). The instruction only informed the jury that they should construe evidence of successful ongoing maintenance as prima facie evidence that the machine was working properly. Such an “evidentiary presumption ... does not detract from the ultimate question of whether” the results actually were accurate. State v. Laughter, 128 Ariz. 264, 267 n. 3, 625 P.2d 327, 330 n. 3 (App.1980). The instruction invited the jury to infer the existence of one kind of evidence from another kind of evidence. See Ulster, 442 U.S. at 157, 99 S.Ct. 2213; cf. Norton, 171 Ariz. at 157-58, 829 P.2d at 347-48. The jury was instructed further that the state bore the burden of proof of every element of the offense beyond a reasonable doubt and the defendant was not required to produce any evidence. ¶ 33 We also note that other state courts have found statutory presumptions permissive where they only establish prima facie evidence and therefore do not shift the burden of proof or otherwise violate the constitution. See, e.g., People v. Goldsmith, 59 Cal.4th 258, 172 Cal.Rptr.3d 637, 326 P.3d 239, 245, 247 (2014) (statute establishing prima facie admissibility on certain evidentiary showing constituted only permissive presumption and did not shift burden of proof); State v. Rolle, 560 So.2d 1154, 1154, 1157 (Fla.1990) (In DUI AC context, court “interpreted the language ‘shall be prima facie evidence’ ... as creating a[ permissive] inference.”); State v. Kriss, 232 Kan. 301, 654 P.2d 942, 946 (1982) (“ ‘A prima facie evidence provision is nothing more or less than a rule of evidence which governs the suffi cieney of the evidence to take the case to the jury.’ ”), quoting State v. Haremza, 213 Kan. 201, 515 P.2d 1217, 1222 (1973); State v. Lindsey, 491 So.2d 371, 375 (La.1986) (“terms such as ... ‘prima facie evidence’ in criminal cases have been interpreted to create only permissive inferences”); Brown v. State, 171 Md.App. 489, 910 A.2d 571, 584 (Md.Ct.Spec.App.2006) (statutory inference that AC created prima facie evidence of impairment only permissive inference); People v. Galindo, 23 N.Y.3d 719, 993 N.Y.S.2d 525, 17 N.E.3d 1121, 1123-24 (2014) (statutory inference establishing prima facie evidence of unlawful intent created only permissive inference); Commonwealth v. Murray, 749 A.2d 513, ¶¶ 4, 23-25 (Pa.Super.Ct.2000) (statutory inference that AC created prima facie evidence of impairment only permissive inference); State v. Raddeman, 238 Wis.2d 628, 618 N.W.2d 258, ¶¶ 6, 10 (Wis.Ct.App.2000) (statutory inference that AC created prima facie evidence of impairment only permissive inference). ¶34 The instruction at issue did not require the jury to reach any specific conclusions, and they were expressly charged that it is the purview of the jurors to “determine the importance to be given to the evidence.” Even after the state had presented evidence of periodic maintenance, the jury was still free, as defense counsel suggested at trial, to find that the state had not met its burden in proving that the machine was properly functioning. In sum, the instruction did not “shift[] the burden of persuasion to defendant on [a] crucial element” of the offense. Norton, 171 Ariz. at 158, 829 P.2d at 348. ¶ 35 Thus, the evidentiary presumption was permissive and constitutional so long as “there [was] a rational connection between the predicate and the presumed facts.” Platt, 130 Ariz. at 574, 637 P.2d at 1077. And, a rational jury could infer from records of periodic maintenance that the breathalyzer was operating properly, particularly without further evidence to the contrary. Therefore, this instruction did not violate Peraza’s due process rights and consequently was not error. ¶ 36 Peraza additionally argues that the instruction was erroneous because it “required the jury to find that the breath analyzer was operating properly when the state introduced the evidence, preventing independent evaluation of argument that it was not.” This requirement would, according to Peraza, violate the Arizona Constitution, which prohibits judges from “commenting on the evidence.” State v. Roque, 213 Ariz. 193, ¶ 66, 141 P.3d 368, 388 (2006); see also Ariz. Const. art. VI, § 27. Article VI, section 27 does indeed prevent judges from interfering with an independent evaluation of the evidence, Roque, 213 Ariz. 193, ¶ 66, 141 P.3d at 388, but also exhorts judges to “declare the law,” Ariz. Const. art. VI, § 27. The subject instruction does not fall under article VI, section 27’s prohibition, however, because it is a correct instruction on the law and not a judicial comment. See Roque, 213 Ariz. 193, ¶¶ 67-68, 141 P.3d at 388 (concluding judicial comment that testimony stricken for “not being reliable” not judicial interference); see also O’Haire, 149 Ariz. at 521, 720 P.2d at 122 (no error in giving questioned instruction “taken almost verbatim” from § 28-1323(A)(5)). ¶ 37 Further, even assuming arguendo that giving the instruction was fundamental error, Peraza would fail to establish any actual prejudice. See State v. Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d 263, 273 (App.2007). Peraza bears the burden to show he was prejudiced by the instruction, and because “[fjundamental error review involves a fact-intensive inquiry ... the showing required to establish prejudice ... differs from case to case.” Henderson, 210 Ariz. 561, ¶ 26, 115 P.3d at 608. Prejudice results only when, “but for the error, a reasonable fact-finder ‘could have reached a different result.’ ” Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d at 273, quoting Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609. ¶ 38 Even had the jury instruction not been given, a reasonable jury would still have found Peraza guilty on both counts. The officer testified Peraza exhibited four of eight cues of impairment during the field sobriety tests and admitted he had been drinking. The state presented two breathalyzer test results which showed Peraza was above the statutory AC limit. The state also presented evidence that the officer had conducted proper pre-test procedures to ensure accuracy, as well as evidence of successful calibration, and expei’t testimony that the machine was working properly at the time of Peraza’s AC test. No evidence indicated that the breathalyzer results were inaccurate or that the machine was malfunctioning. Instead Peraza only cross-examined the officer and the state’s expert, and speculated in closing arguments the machine could have been malfunctioning. Thus, in light of all the evidence, no reasonable jury could have found that the breathalyzer was malfunctioning, and Peraza has failed to show he was prejudiced by the instruction. See Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d at 273. Disposition ¶ 39 For the foregoing reasons, we affirm Peraza’s convictions and sentences. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . At oral argument, Peraza argued that this ten-minute window was arbitrary and insufficient under these facts. This theory differs markedly from the argument raised in his opening brief. Arguments raised for the first time at oral argument are untimely and therefore waived absent fundamental error. State v. Murdaugh, 209 Ariz. 19, ¶ 29, 97 P.3d 844, 851 (2004). . At oral argument, Peraza noted that the court in Brown cited Briscoe v. State, 60 Md.App. 42, 479 A.2d 1385 (Md.Ct.Spec.App.1984) as an example of an unconstitutional instruction even when the underlying statutory presumption is constitutional. The Briscoe court found the instruction-based presumption violated defendant’s rights not because the presumption itself was improper, but because the blood draw in that case was conducted by a medical professional as part of a medical procedure, and Maryland state law only provided a statutory presumption for law enforcement initiated blood draws, not medically initiated ones. Id. at 1386-87, 1386 n. 1. Thus, the instruction was unconstitutional because it created a presumption which was not supported by statute in the case, thereby violating the defendant's rights. Id. at 1387. . Although we find the instruction here was not erroneous, adding language specifically addressing the effect of the presumption would avoid any potential burden-shifting issues. . We note that closing arguments of the attorneys are not evidence. See State v. Gonzales, 105 Ariz. 434, 437, 466 P.2d 388, 391 (1970).

Justice TIMMER, opinion of the Court. ¶ 1 Under AR.S. § 13-3212, enhanced and consecutive sentencing provisions apply when a defendant is convicted of engaging in child prostitution knowing that the person is a minor aged fifteen, sixteen, or seventeen. We today hold that these provisions also apply when the “minor” is actually an undercover peace officer. I. BACKGROUND ¶ 2 The State indicted Francis Kraps on two counts of child prostitution in violation of A.R.S. § 13-3212(B)(2). During a pre-trial hearing, the superior court advised Kraps that if he was convicted, the court was required to impose an enhanced sentence between seven and twenty-one years’ imprisonment for each count without the possibility of early release, and that the sentences would be served consecutively. See AR.S. §§ 13-3212(D), (G). Kraps moved for reconsideration, asserting that because the “minors” involved were actually undercover police officers posing as sixteen-year-old gilds, these sentencing provisions did not apply. The court agreed, ruling that “engaging in any form of child prostitution is a Class 2 felony,” but that the enhanced sentencing and consecutive sentencing provisions apply only when actual minors are involved. At the State’s request, the court stayed the case to permit special action review. ¶ 3 The court of appeals reversed the trial court’s ruling, holding that the enhanced sentencing provisions in § 13-3212(G) apply when an undercover police officer poses as a minor aged fifteen, sixteen, or seventeen. State ex rel. Polk v. Campbell, 238 Ariz. 109, 110 ¶ 1, 357 P.3d 144, 145 (App.2015). The court did not address consecutive sentencing under § 13-3212(D). We granted Kraps’s petition for review because it presents a recurring legal question of statewide importance. We have jurisdiction pursuant to article 6, section 5 of the Arizona Constitution and A.R.S. § 12-120.24. II. DISCUSSION ¶ 4 Because the interpretation of § 13-3212 is an issue of law, we review the trial court’s ruling de novo. Cf. Ariz. Citizens Clean Elections Comm’n v. Brain, 234 Ariz. 322, 325 ¶ 11, 322 P.3d 139, 142 (2014). ¶ 5 Our objective in interpreting statutes is to give effect to the legislature’s intent. Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 383 ¶ 8, 296 P.3d 42, 46 (2013). If the statutory language is unambiguous, we apply it as written without further analysis. Cf. Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296 ¶ 8, 152 P.3d 490, 493 (2007). If, however, the statute is subject to more than one reasonable interpretation, we consider secondary principles of statutory interpretation, such as “the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose.” Ariz. Citizens Clean Elections Comm’n, 234 Ariz. at 325 ¶ 11, 322 P.3d at 142 (quoting Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991)). ¶ 6 A person commits child prostitution by causing or enabling a minor to engage in prostitution, § 13-3212(A), or by engaging in prostitution with a minor, § 13-3212(B). Kraps is charged with committing child prostitution in violation of § 13-3212(B)(2), which provides that “[a] person who is at least eighteen years of age commits child prostitution by knowingly ... [ejngaging in prostitution with a minor who the person knows is fifteen, sixteen or seventeen years of age.” Although the undercover police officers involved here were over age eighteen, “[i]t is not a defense to a prosecution” under subsection (B)(2) “that the other person is a peace officer posing as a minor or a person assisting a peace officer posing as a minor.” A.R.S. § 13-3212(C). Kraps does not contest that the State’s allegations support the charges under § 13-3212(B)(2). ¶ 7 The parties’ dispute instead concerns these sentencing provisions set forth in § 13-3212: D. Notwithstanding any other law, a sentence imposed on a person for a violation of subsection A or subsection B, paragraph 2 of this section involving a minor who is fifteen, sixteen or seventeen years of age shall be consecutive to any other sentence imposed on the person at any time. G. If the minor is fifteen, sixteen or seventeen years of age, child prostitution pursuant to subsection A and subsection B, paragraph 2 of this section is a class 2 felony, the person convicted shall be sentenced pursuant to this section and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by § 31-233, subsection A or B until the sentence imposed by the coui’t has been served or commuted____ [providing range of sentences for first-time and repeat offenders], ¶ 8 Both parties argue that the plain meaning of these provisions supports their views. Rraps asserts that “minor” commonly means a person under age eighteen, and subsections (D) and (G) therefore do not apply when an adult police officer poses as a minor. The State counters that because a defendant can be convicted under § 13—3212(B)(2) when the “minor” is actually an undercover peace officer, the term “minor” in subsections (D) and (G) means a person under age eighteen or a peace officer, or someone assisting a peace officer, posing as a minor. Both interpretations are reasonable, and we therefore consider secondary principles of interpretation as well as the statutory language to identify legislative intent. ¶ 9 Unless a statute’s context requires another definition, “minor” “means a person under the age of eighteen years.” AR.S. § 1-215(22). Considering § 13-3212’s history and reading the statute in its entirety convinces us that the legislature intended to use a different definition of “minor” in § 13-3212(D) and (G). ¶ 10 Before 2010, § 13-3212(A) provided that a person commits child prostitution, among other ways, by “[e]ngaging in prostitution with a minor,” and designated child prostitution a class 2 felony. AR.S. § 13-3212(A)(8), (D) (2010). In 2010, the legislature deleted the above-quoted language and substituted subsection (B), which delineates three ways a person engages in child prostitution: B. A person who is at least eighteen years of age commits child prostitution by knowingly: 1. Engaging in prostitution with a minor under fifteen years of age. 2. Engaging in prostitution with a minor who the person knows is fifteen, sixteen or seventeen years of age. 3. Engaging in prostitution with a minor who is fifteen, sixteen, or seventeen years of age. Id. (Supp.2010); 2010 Ariz. Sess. Laws, ch. 255, § 6 (2d Reg.Sess.). The legislature also enacted separate sentencing provisions, and specified different felony classifications, that depended on how the offender committed child prostitution and whether the minor involved was older or younger than fifteen. A.R.S. § 13-3212(D)-(G) (Supp.2010). It provided harsher sentences and more serious felony classifications for offenders convicted of violating subsections (A), (B)(1), and (B)(2) than for those persons convicted of violating subsection (B)(3). Id. Notably, the legislature simultaneously enacted subsection (C) to permit convictions under subsections (A), (B)(1), and (B)(2) when the “minor” involved was actually a peace officer posing as a minor or a person assisting a peace officer by posing as a minor. Id. (Supp.2010). In 2011, the legislature enacted subsection (D) to require consecutive sentences for convictions under subsections (A) and (B)(2) involving a minor aged fifteen, sixteen, or seventeen. Id. (Supp.2011). ¶ 11 The 2010 and 2011 amendments to § 13-3212 demonstrate that the legislature intended to punish most harshly offenders who engage in prostitution with a minor under age fifteen, regardless of the offender’s knowledge of the minor’s age, and those who engage in prostitution with a minor who the offender knows or believes is fifteen, sixteen, or seventeen years old. Because the legislature simultaneously provided that it is no defense to these offenses that the “minor” is a peace officer posing as a minor, and it did not separately provide a sentencing provision or a felony classification for a person convict ed of engaging in child prostitution with an undercover officer, it follows that the legislature intended that the sentencing provisions set forth in subsections (D) and (G) apply to such offenders. Indeed, the 2010 Arizona Bill Summary transmitted to the Governor applied what is now subsection (G) to the (B)(2) offense, without exception, by characterizing the offense as “a Class 2 felony punishable by a presumptive 10.5 year prison term for a first offense.” ¶ 12 In arguing that the sentencing enhancements should not apply in cases in which undercover officers have posed as minors, Kraps urges us to “apply the ordinary rules of grammar” to “shift the first dependent clause of subsection (G) to where it logically and grammatically belongs, and to insert the connector ‘and.’ ” So reconstructed, the statute would provide a class 2 felony designation for all (B)(2) offenses before requiring enhanced sentences for offenses involving minors aged fifteen, sixteen, or seventeen. This would cause the provision to read: “Child prostitution pursuant to subsection A and B, paragraph 2 of this section is a class 2 felony, and, if the minor is fifteen, sixteen or seventeen years of age, [the enhancements apply].” We decline to effectively, if not actually, rewrite § 13-3212(G), as that is the legislature’s prerogative, not ours. Cf. Lewis v. Debord, 238 Ariz. 28, 31 ¶ 11, 356 P.3d 314, 317 (2015) (“It is not the function of the courts to rewrite statutes.”). ¶ 13 The legislature’s intention to apply subsection (G) to offenders whose convictions arise from police “sting” operations is additionally evidenced by considering the consequences of not doing so. Subsection (G) provides that child prostitution committed pursuant to subsection (B)(2) is a class 2 felony and prescribes punishment. Section 13-3212 nowhere identifies a different sentence for violations of (B)(2) involving adult peace officers posing as minors. It is implausible to infer that the legislature intended to exclude such violations from (G) while not otherwise identifying their punishment, particularly when the legislature was careful to specify in § 13-3212 the penalties for child prostitution depending on the manner in which it was committed. Cf. AR.S. § 13-602(A)-(C) (stating that the legislature designates Title 13 offenses as either a felony, a misdemeanor, or a petty offense). ¶ 14 To further support his interpretation of subsection (G), Kraps asks us to follow the court of appeals’ decisions in State v. Regenold, 227 Ariz. 224, 255 P.3d 1028 (App.2011) and State v. Villegas, 227 Ariz. 344, 258 P.3d 162 (App.2011), which interpreted different versions of the sentencing provision in § 13-3554, the child luring statute. Under both versions, § 13-3554(C) provided that “[l]uring a minor for sexual exploitation is a class 3 felony, and if the minor is under fifteen years of age it is punishable” under the Dangerous Crimes Against Children Act (“DCACA”), which is now codified at § 13-705. Under the statute in effect in Regenold, it was not a defense that the other person was a peace officer posing as a minor. AR.S. § 13-3554(B) (Supp.2007). Under the version in effect in Villegas, it was not a defense that the other person was not actually a minor. AR.S. § 13-3554(B). Nevertheless, Regenold and Villegas held that the DCACA’s enhanced sentencing provisions do not apply unless the luring victim is a person who is actually under age fifteen. Regenold, 227 Ariz. at 225 ¶ 1, 255 P.3d at 1029; Villegas, 227 Ariz. at 345 ¶ 3, 258 P.3d at 163. ¶ 15 Even assuming Regenold and Villegas were correctly decided, we are not persuaded to reach a similar conclusion here because the luring and child prostitution statutes are materially different. First, unlike § 13-3212(G), § 13-3554(C) provides a felony classification for all luring offenses before requiring enhanced sentences for offenses committed against minors under fifteen. Thus, luring an undercover peace officer posing as a minor is not rendered an unclassified offense without punishment under the court of appeals’ interpretation. Second, the decisions relied on the meaning of “minor” in the DCACA, which is not triggered by § 13-3212(G). See Regenold, 227 Ariz. at 226 ¶¶ 5-6, 255 P.3d at 1030 (reasoning that the reference to the DCACA showed the legislature’s intent that the minor in the sentencing provision refers to an actual child); Villegas, 227 Ariz. at 345 ¶ 3, 258 P.3d at 163 (“[A] dangerous crime against a child is a crime against a child qua child”) (quoting State v. Williams, 175 Ariz. 98, 101, 854 P.2d 131, 134 (1993)). ¶ 16 Kraps also argues that the interpretation of § 13-3212(G) we adopt is absurd because a(B)(2) offender who engaged in prostitution with an officer posing as a fifteen, sixteen, or seventeen year old would receive a harsher sentence than a (B)(1) offender who engaged in prostitution with an officer posing as a minor under fifteen years of age. We disagree. Subsection (P) provides that a (B)(1) offense is a class 2 felony and is punishable under the DCACA, which provides harsher sentences than those in subsection (G). Compare AR.S. § 13-705(C) with § 13-3212(G). Rraps’s interpretation of subsection (P) as applying only when actual minors are involved depends on the analysis in Regenold and Villegas, which we find distinguishable. ¶ 17 We hold that “minor,” as used in AR.S. § 13-3212(D) and (G) means a person who is fifteen, sixteen, or seventeen years of age, a peace officer posing as a minor aged fifteen to seventeen years, or someone assisting a peace officer by posing as a minor aged fifteen to seventeen years. Given the importance of providing clear notice of the consequences for criminal conduct, we urge the legislature to be as explicit as possible in specifying criminal penalties. Cf AR.S. § 13-101(2)(deelaring the public policy of this state is “[t]o give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction.”). CONCLUSION ¶ 18 We vacate the court of appeals’ opinion and reverse the trial court’s order. . Unless otherwise noted, we cite the version of statutes in effect in April 2014, when Kraps allegedly committed the offenses.

OPINION JOHNSEN, Judge: ¶ 1 Lee Watkins argues the superior court erred by dismissing on limitations grounds his claims against Maricopa County Sheriff Joe Arpaio for intentional infliction of emotional distress and false-light invasion of privacy. He argues the torts were “continuing wrongs” that did not finally accrue until less than a year before he filed his complaint. We hold that, under the circumstances, the statutes governing accrual and limitations of a claim against a public employee preclude application of the “continuing wrong” doctrine to save either of Watkins’s claims. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Watkins is the founder and owner of Cactus Towing, which did business in Maricopa County for more than 15 years. Watkins supported a political opponent of Arpaio in the 2004 election and alleged that, under Arpaio’s direction, the Sheriffs Office sought to punish him and his company by launching a groundless “sweeping investigation” of them in March 2005. Deputies seized the company’s computers, business records, banking accounts, cash and trucks. At the same time, according to the complaint, the Sheriffs Office “orchestrated a media circus” to announce the false charges against him, triggering a “media festival [that] had no law enforcement purpose but was designed to cause injury to its victims without any due process.” According to the complaint, “For years Sheriff Arpaio continued to make statements that the investigation was ongoing,” until, in October 2010, the Maricopa County Attorney “finally concluded the investigation by declaring that there was nothing that could be prosecuted against Mr. Watkins.” ¶ 3 Watkins sued Arpaio and Maricopa County in September 2011, alleging abuse of process, intentional interference with contractual and economic relationships, intentional infliction of emotional distress, and false-light invasion of privacy, all premised on the alleged politically motivated investigation. The superior court dismissed all of the claims, finding them barred by the one-year statute of limitations in Arizona Revised Statutes (“A.R.S.”) section 12-821 (2016). ¶ 4 On appeal, this court affirmed the dismissal of the intentional-interference claim but reversed dismissal of the claims alleging false-light invasion of privacy and intentional infliction of emotional distress. We held those claims were not barred by the one-year limitations period because the complaint alleged Arpaio made public statements accusing Watkins of criminal wrongdoing after the county attorney announced in October 2010 that he was dropping the investigation. ¶ 5 On remand, Arpaio moved for summary judgment, arguing no evidence supported the allegation that he made any public statements about Watkins after the investigation was dropped. The superior court granted Watkins’s request for additional discovery pursuant to Arizona Rule of Civil Procedure 56(f). In due course, the court granted summary judgment in Arpaio’s favor, dismissing the two remaining claims. ¶ 6 Watkins timely appealed. We have jurisdiction pursuant to AR.S. §§ 12-120.21(A)(1) (2016) and -2101(A)(1) (2016). DISCUSSION A. Legal Principles. ¶ 7 We review a grant of summary judgment de novo. Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 199, ¶ 15, 165 P.3d 173, 177 (App.2007). Summary judgment is appropriate when 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). The moving party bears the burden of providing undisputed admissible evidence that would entitle it to judgment as a matter of law. Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 18, 292 P.3d 195, 199 (App.2012). “We view the facts and any inferences drawn from those facts in the light most favorable to the party against whom judgment was entered.” Tierra Ranchos, 216 Ariz. at 199, ¶ 15, 165 P.3d at 177. We review questions of law concerning statutes of limitations de novo. Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App.1996). B. Intentional Infliction of Emotional Distress. ¶ 8 A plaintiff suing for intentional infliction of emotional distress must prove the defendant caused severe emotional distress by extreme and outrageous conduct committed with the intent to cause emotional distress or with reckless disregard of the near-eertainty that such distress would result. Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987). In the prior appeal, we held Watkins’s complaint contained sufficient allegations to support a claim for intentional infliction of emotional distress. Watkins now urges us to hold that his intentional-infliction claim alleges a continuing wrong, such that the statute of limitations did not begin to run until 'the allegedly wrongful investigation concluded in October 2010. ¶ 9 Other courts have held that a tort claim based on a series of closely related wrongful acts may be treated as alleging a continuing wrong that accrues for limitations purposes not at the inception of the wrongdoing but upon its termination. See Kyle Graham, The Continuing Violations Doctrine, 43 Gonz. L. Rev. 271, 275 (2008) (doctrine “aggregates multiple allegedly wrongful acts, failures to act, or decisions such that the limitations period begins to ran on this collected malfeasance only when the defendant ceases its improper conduct”). ¶ 10 Although no Arizona appellate court has addressed the issue, courts in other jurisdictions have applied a “continuing wrong” theory to comparable claims for intentional infliction of emotional distress. For example, in Mears v. Gulfstream Aerospace Corp., 225 Ga.App. 636, 484 S.E.2d 659, 662 (1997), a woman alleged her work supervisor subjected her to “constant abuse, stress, and harassment” over a period of years. The court explained that the “continuing tort” theory is particularly suited to some claims for intentional infliction of emotional distress: Claimants bear a heavy burden in establishing the type of extreme and outrageous conduct necessary to sustain a claim for intentional infliction of emotional distress. In cases involving a series of acts allegedly producing emotional distress, one incident “might not, taken in isolation, rise to a level of conduct actionable under the law for emotional distress.” Viewed cumulatively, however, that incident in combination with a claimed pattern of conduct may support the cause of action. Id. at 664 (citations omitted). Under this reasoning, the limitations period on such a claim does not begin to ran until the alleged tortious acts have ceased. Id. Accord Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir.2001) (“continuing violation” allows “a plaintiff [to] reach back to its beginning even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant’s unlawful conduct”); Curtis v. Firth, 123 Idaho 598, 850 P.2d 749, 755 (1993) (limitations on intentional infliction claim based on a series of acts “is only held in abeyance until the tortious acts cease”); Feltmeier v. Feltmeier, 207 Ill.2d 263, 278 Ill.Dec. 228, 798 N.E.2d 75, 86-87 (2003); Bustamento v. Tucker, 607 So.2d 532, 538-39 (La.1992); McCorkle v. McCorkle, 811 So.2d 258, 263-64 (Miss.App.2001); Shannon v. MTA Metro-North R.R., 269 A.D.2d 218, 704 N.Y.S.2d 208, 209 (2000). Other courts have applied the “continuing wrong” doctrine to intentional-infliction claims that are based, as here, on alleged wrongful investigations. See Alexander v. United States, 721 F.3d 418 (7th Cir.2013); Llerando-Phipps v. City of New York, 390 F.Supp.2d 372 (S.D.N.Y.2005). ¶ 11 The reasoning of these eases from other jurisdictions, which allow delayed accrual of an intentional-infliction claim that is based on a long series of acts, is not without merit. Watkins alleged Arpaio commenced a politically motivated investigation of him and his company in 2005 with great public fanfare by seizing his assets and business records. Although Watkins plainly knew of the allegedly outrageous acts by Arpaio at the outset of the investigation, by the nature of the thing, he was for the most part unaware of how the investigation was proceeding thereafter. Nevertheless, Watkins alleged that the continuing existence of the investigation until its announced conclusion in October 2010 caused him emotional distress. ¶ 12 Watkins’s claim, however, is subject to Arizona statutes that expressly govern the accrual of “all actions” against a public entity or public employee. Under AR.S. § 12-821, “All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward.” In turn, AR.S. § 12-821.01(B) (2016) states, “For the purposes of this section, a cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage.” Under these two statutes, “[a] plaintiff need not know all the facts underlying a cause of action to trigger accrual. But the plaintiff must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury.” Thus, “[t]he relevant inquiry is when did a plaintiffs ‘knowledge, understanding, and acceptance in the aggregate provide [ ] sufficient facts to constitute a cause of action.’ ” Thompson v. Pima County, 226 Ariz. 42, 46, ¶ 12, 243 P.3d 1024, 1028 (App.2010) (citations omitted). ¶ 13 Arpaio argues Watkins knew or reasonably should have known years before he filed suit that the alleged unfounded investigation caused him emotional distress. Because Watkins failed to sue within a year of when he realized he had been damaged, Arpaio contends, the claim is time-barred. ¶ 14 There is no doubt that Watkins knew at the outset of the investigation in 2005 of the facts at the heart of his claim and also knew he had suffered a considerable amount of resulting emotional distress. Under the circumstances and pursuant to § 12-821.01(B), his claim against Arpaio for intentional infliction of emotional distress accrued at or shortly after the commencement of the investigation, and needed to be filed within one year thereafter. At that point, Watkins could have alleged Arpaio had intentionally inflicted great emotional distress upon him by commencing, with great public fanfare, an unfounded, politically motivated and malicious investigation, and that such investigation was continuing. ¶ 15 Watkins, however, argues that each day of Arpaio’s continuing investigation of him cumulatively caused him emotional distress. That is how some claims for intentional infliction of emotional distress are made out. See, e.g., Ford, 153 Ariz. at 39-41, 43, 734 P.2d at 581-83, 585 (intentional-infliction claim was supported by a series of acts spanning more than a year, during which defendant “dragg[ed] the matter out for months”). But Watkins’s intentional-infliction claim is unlike those in the cases he cites; in those cases, liability arose from a long series of cumulative acts, any one of which likely was insufficient by itself to support the claim. Here, we do not have a situation in which the initial acts in a series of alleged wrongdoing are not sufficient by themselves to support a claim. The facts Watkins alleged to support his contention that Arpaio’s investigation was groundless and politically motivated—as well as the public pubhe alleged and the seizures of books, records and trucks—all occurred at or shortly after the commencement of the investigation in 2005. ¶ 16 Moreover, although Watkins alleged the continuing existence of the allegedly wrongful investigation was tortious, he offered no evidence on summary judgment of any tortious acts the Sheriffs Office committed within the year before he filed the complaint that might give rise to a claim. The Sheriffs Office turned over the investigation to the Attorney General some 18 months after it began, and the Attorney General passed the case to the Maricopa County Attorney in 2007. Document discovery indicated that in July 2008, a Sheriffs Office detective reviewed the results of a witness interview deputies had conducted in June 2005. But that is the latest act by the Sheriffs Office revealed in the documents. ¶ 17 The discovery Watkins conducted pursuant to Rule 56(f) also failed to uncover any public statements by Sheriffs Office authorities about the investigation within a year before the complaint was filed. Although Watkins argues on appeal that the superior court should have allowed him to depose Sheriffs Office authorities, he sought that testimony to support his contention that the investigation was politically motivated, not to prove the Sheriffs Office committed any tortious acts within the limitations period. ¶ 18 Watkins suggests the victim of a groundless investigation that continues for more than a year would be hard pressed as a practical matter to file suit before the investigation concludes. The common-law “continuing wrong” doctrine would enable such a victim to wait to sue until after the investigation is finished. But the limitations rules that apply to Watkins’s claim against Arpaio are creatures of statute, not the common law, and those statutes do not allow one in Watkins’s situation to wait to bring suit until more than a year after acts sufficient to state a claim occur. Under AR.S. §§ 12-821 and -821.01(B), the victim of a tort by a public entity or employee in Arizona has but one year to sue after he or she knows of injury caused by the tortious act, and that applies regardless of the tort, whether it be intentional infliction of emotional distress, defamation, intentional interference with contract or invasion of privacy. ¶ 19 In the absence of any evidence that Arpaio or those working under his direction committed any act within a year of the 2011 complaint that would support Watkins’s claim for intentional infliction of emotional distress, the superior court correctly dismissed the claim as barred by limitations pursuant to AR.S. §§ 12-821 and -821.01(B). C. False-Light Invasion of Privacy. ¶ 20 As applicable here, a claim for false-light invasion of privacy requires proof that the defendant “gave publicity to information placing the plaintiff in a false light,” knowing of the falsity or with reckless disregard for the truth. Desert Palm Surgical Group, P.L.C. v. Petta, 236 Ariz. 568, 580, ¶ 29, 343 P.3d 438, 450 (App.2015). The superior court entered summary judgment in Arpaio’s favor on this claim because Watkins could not identify a public statement Arpaio made about him within a year of the filing of the complaint. ¶ 21 We are unaware of any authority compelling the conclusion that a false-light claim is subject to the “continuing wrong” doctrine, and we decline Watkins’s request to apply it here. Because Watkins did not cite any actionable statement Arpaio made concerning him within a year of filing his lawsuit, the superior court did not err in dismissing the claim for invasion of privacy by false light. CONCLUSION ¶ 22 For the foregoing reasons, we affirm the entry of judgment against Watkins. . Absent material revision after the relevant date, we cite a statute's current version. . Watkins did not appeal the dismissal of his claims against Maricopa County or the dismissal of his abuse-of-process claim against Arpaio. . In Floyd v. Donahue, 186 Ariz. 409, 923 P.2d 875 (App.1996), this court declined to apply a "continuing tort” theory to a woman’s claim that she was repeatedly sexually assaulted by her father. There was no suggestion in that case that the plaintiff alleged a claim for intentional infliction of emotional distress based on the series of alleged wrongful acts. . A handful of Arizona cases have applied a different variety of the "continuing wrong” doctrine, under which a plaintiff is allowed to sue based on a wrongful act that occurred long ago, but only may recover damages suffered during the limitations period immediately preceding filing of the complaint. See, e.g., City of Tucson v. Apache Motors, 74 Ariz. 98, 104-06, 245 P.2d 255 (1952) (discussing nuisance claim as a continuing wrong); Garcia v. Sumrall, 58 Ariz. 526, 533, 121 P.2d 640 (1942) (continuing trespass); cf. Mayer Unified Sch. Dist. v. Winkleman, 219 Ariz. 562, 567, 201 P.3d 523, 528 (2009) (state’s failure to demand compensation in exchange for easements did not constitute a continuing violation). By contrast, under the “continuing wrong” rule applied in the cases from other jurisdictions cited above, the plaintiff is allowed to recover damages incurred over the entire span of the wrongful acts. . A required element of a claim for malicious prosecution is that the prosecution "terminate in favor of the plaintiff.” Slade v. City of Phoenix, 112 Ariz. 298, 300, 541 P.2d 550, 552 (1975). The one-year limitations period on that claim would begin to run, therefore, upon termination of the prosecution. Watkins could not allege a claim for malicious prosecution because the investigation did not result in a prosecution.

OPINION JOHNSEN, Judge: ¶ 1 This appeal presents questions relating to the change of physical custody of a child in the legal custody of the State from a foster family that wanted to adopt her to the child’s great aunt and uncle, who also wanted to adopt her. We hold the superior court did not violate the foster family’s due-process rights and did not abuse its discretion by granting the change. FACTS AND PROCEDURAL BACKGROUND ¶ 2 The Department of Child Safety (“DCS”) filed a dependency petition in January 2013 alleging neglect by the parents of a one-year-old child (“Child”). At a permanency hearing in October 2014, the superior court changed the case plan to severance and adoption. On January 7, 2015, after two years in a different foster home, Child was placed with Jeff D. and Erika D. (“Foster Parents”) as a potential adoptive placement. ¶ 3 Five weeks later, Lane S. and Sherry S., Child’s great aunt and uncle (“Great Aunt and Uncle”), moved to intervene and sought physical custody of Child, saying they wanted to adopt her if her parents’ rights were terminated. Great Aunt and Uncle live in Wisconsin and filed a report pursuant to the Interstate Compact on the Placement of Children supporting their request for custody. Child’s mother and DCS supported placement with Great Aunt and Uncle, and DCS moved to have Child transferred to them. The court set oral argument on the motion to intervene and the motion to change custody. In the meantime, Foster Parents moved to intervene and filed an objection to DOS’s motion to change custody. Foster Parents also submitted reports for the court’s consideration and filed a list of witnesses and exhibits. ¶ 4 On April 10, 2015, the court heard argument from Child’s guardian ad litem, DCS, the birth parents, Great Aunt and Uncle and Foster Parents. The court granted both motions to intervene, then found that placement with Great Aunt and Uncle would be in Child’s best interests. The court first noted that it had considered all of the information presented, as well as Arizona Revised Statutes (“A.R.S.”) section 8-514(B) (2016), which establishes a statutory preference for “kinship” placements, including placement with “another member of the child’s extended family[.]” The court then found that although each proposed placement could provide Child a loving, safe and stable home, the statutory preference weighed in favor of placement with Great Aunt and Uncle: The Court finds that the statutory preferences are there for a reason, to give guidance to the Court in terms of placement preferences and in this case the Court finds that the placement preference would be with the biological relatives of the mother and that’s [Great Aunt and Uncle]. ¶ 5 Foster Parents timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, A.R.S. §§ 8-235(A) (2016), 12-2101(A)(1) (2016) and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court. DISCUSSION A. Foster Parents’ Due-Process Rights. ¶ 6 Foster Parents first argue the superior court violated their due-process rights when it did not allow them to present testimony at the hearing. Whether the superior court afforded Foster Parents due process is a question of law subject to de novo review. See Herman v. City of Tucson, 197 Ariz. 430, 432, ¶ 5, 4 P.3d 973, 975 (App.1999). ¶ 7 “The touchstone of due process under both the Arizona and federal constitutions is fundamental fairness.” State v. Melendez, 172 Ariz. 68, 71, 834 P.2d 154, 157 (1992). Due process requires the opportunity to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). It also is “flexible and calls for such procedural protections as the particular situ ation demands.” Id. at 334, 96 S.Ct. 893 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). ¶ 8 When the State seeks to remove children from the custody of birth parents, the parents’ fundamental liberty interest in raising their children requires certain procedural protections. See Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (“When the State moves to destroy weakened familial bonds, it must provide parents with fundamentally fair procedures.”); Maricopa County Juv. Action No. JS-7499, 163 Ariz. 153, 158, 786 P.2d 1004, 1009 (App.1989) (“It is well settled that the fundamental liberty interest in the care, custody, and control of one’s children may not be changed by the state without due process of law.”). But a challenge by foster parents to a dependent child’s placement does not implicate the same fundamental liberty interests. Even though Foster Parents were committed to adopting Child, no authority suggests that their due-pi’ocess rights were equivalent to those of birth parents whose rights are the subject of dependency or termination proceedings. ¶ 9 By statute, foster parents who intend to seek adoption of a child are entitled to notice and a hearing under circumstances such as those presented in this ease: If the court determines that termination of parental rights or permanent guardianship is clearly in the best interests of the child and the child has been placed in a prospective permanent placement ... any action that is inconsistent with the case plan of severance and adoption, including removal of the child from that placement, may occur only by court order____If a motion to change the case plan or for removal of a child is filed, a copy of the motion must be provided to the prospective permanent placement at least fifteen days before a hearing on the motion----The prospective permanent placement has the right to be heard in the proceeding. AR.S. § 8-862(H) (2016); see also Ariz. R. P. Juv. Ct. 37(B) (foster parents are “participants” in a severance or dependency, entitled to notification “of all applicable proceedings, as required by law” or court order). ¶ 10 Citing § 8-862(H), Foster Parents argue they had fewer than 15 days’ notice of the hearing on the DCS motion to transfer, but they did not raise this objection in the superior court and they do not explain on appeal how they might have been prejudiced by inadequate notice. If parties do not raise purported procedural errors in the superior court, they may forfeit the right to raise them on appeal. See In re Marriage of Dorman, 198 Ariz. 298, 302-03, ¶ 11, 9 P.3d 329, 333-34 (App.2000). Further, nothing in the record suggests Foster Parents did not have adequate time to prepare and present their case. See Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (“An elementary and fundamental requirement of due process in any proceeding ... is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”). ¶ 11 Foster Parents further argue the superior court violated their due-process rights when it set an evidentiary hearing but then would not allow them to present evidence and cross-examine witnesses. In fact, the court had not set the matter for an evidentiary hearing; its minute entry designated the proceeding as an “Oral Argument regarding the Motion to Intervene and possible change of physical custody[.]” Nevertheless, before the hearing, Foster Parents filed two bonding assessments, one by an adoption specialist and another by a psychologist, and a report by Child’s behavioral therapist. The authors of the reports were present at the hearing. ¶ 12 At the outset of the hearing, after granting both motions to intervene, the court solicited comments from Child’s guardian ad litem, who observed that Child had bonded with Foster Parents but declined to take a position about custody, saying both possible placements were “absolutely fantastic families that will take care of [Child] for the rest of her life[.]” Expressing concern that continued uncertainty was not in Child’s best interests, however, the guardian ad litem urged the court to decide the placement issue without delay. ¶ 13 The court then noted that Foster Parents wanted to present testimony by the authors of the reports they had submitted. Great Aunt and Uncle had not submitted any reports but brought photographs of them visiting with Child. They objected to allowing Foster Parents’ witnesses to testify, arguing the court had not let the parties know in advance that it would take evidence. The court acknowledged it had not set the matter for an evidentiary hearing, but stated that to avoid delay it would consider the photographs and Foster Parents’ “pleadings,” along with argument by both sides. Following argument, the court allowed a case worker from the foster adoption agency who worked with Foster Parents to speak. ¶ 14 On this record, and in the absence of any indication that Foster Parents’ witnesses would have provided additional relevant evidence beyond that contained in their reports, Foster Parents’ right to be heard pursuant to § 8-862(H) was satisfied. The superior court allowed Foster Parents to intervene on the placement issue and considered the written reports they submitted and argument by their counsel. ¶ 15 Citing Volk v. Brame, 235 Ariz. 462, 333 P.3d 789 (App.2014), however, Foster Parents argue due-process principles required the superior court to allow them to call the authors of the reports to testify about Child’s placement. The issue in Volk was the validity of financial statements the parties offered to decide child support. Id. at 464, ¶ 3, 465, ¶ 9, 333 P.3d at 791, 793. The court did not allow the father time to speak about the mother’s evidence and “repeatedly interrupted Father’s attempts to explain his view of the submitted exhibits[.]” Id. at 465, ¶ 9, 333 P.3d at 792. Under those circumstances, we held that if parties proffer testimony about a disputed issue that requires a credibility determination, the court may not rely solely on avowals of counsel and oral argument, but must allow testimony. Id. at 464, ¶ 1, 333 P.3d at 791. ¶ 16 Assuming for purposes of argument that Foster Parents may assert the due-process rights at issue in Volk, in contrast to that case, there is no indication in the record that the reports Foster Parents submitted and the court reviewed required clarification or explanation. There was no disagreement at the hearing that each family could offer Child an appropriate, warm and loving home. In deciding placement, the Court was not deciding disputed issues of fact about the respective families; instead, as the court explained, it weighed the statutory preference granted to family members against the possibility that Child might suffer emotionally if she were transferred again. B. Compliance with A.R.S. § 8-514(B). ¶ 17 Foster Parents also argue the superi- or court failed to comply with A.R.S. § 8-514(B) and abused its discretion in finding placement with Great Aunt and Uncle was in Child’s best interests. ¶ 18 The superior court has broad discretion in determining the placement of a dependent child; we review placement orders for an abuse of that discretion. Antonio P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 402, 404, ¶ 8, 187 P.3d 1115, 1117 (App.2008). In ruling on placement, the court’s primary consideration is the best interests of the child. Id. To the extent our review of an order involves the interpretation of a statute, we review the issue de novo. In re Sheree M., 197 Ariz. 524, 525, ¶ 4, 4 P.3d 1067, 1068 (App.2000). This court interprets a statute according to its plain meaning. Brunet v. Murphy, 212 Ariz. 534, 539, ¶20, 135 P.3d 714, 719 (App.2006). When statutory language is clear, we apply it without using other means of construction, but when it is ambiguous or unclear, “we attempt to determine legislative intent by interpreting the statutory scheme as a whole and consider the statute’s context, subject matter, historical background, effects and consequences, and spirit and purpose.” In re Marriage of Williams, 219 Ariz. 546, 549, ¶ 10, 200 P.3d 1043, 1046 (App.2008) (quoting Hughes v. Jorgenson, 203 Ariz. 71, 73, ¶ 11, 50 P.3d 821, 823 (2002)). ¶ 19 Pursuant to § 8-514(B), DCS “shall place a child in the least restrictive type of placement available, consistent with the needs of the child.” The statute lists seven categories of prospective placements in “order for placement preference!!.]” A.R.S. § 8-514(B). When a court is deciding between competing requests for placement, “[t]he statute requires only that the court include placement preference in its analysis of what is in the child’s best interest.” Antonio P., 218 Ariz. at 405, ¶ 12, 187 P.3d at 1118. ¶ 20 The first two placement preferences listed in the statute are with a parent and with a grandparent, respectively. A.R.S. § 8-514(B)(l), (2). The third placement preference is “[i]n kinship care with another member of the child’s extended family, including a person who has a significant relationship with the child.” A.R.S. § 8-514(B)(3). The statute does not define either “kinship care” or “extended family,” but Foster Parents contend the scope of those terms is limited by a statutory definition of another term, “relative.” Foster Parents contend the superior court erred by affording a preference to Great Aunt and Uncle under § 8-514(B)(3) because “relative,” as defined by § 8-501(A)(13) (2016), includes “aunt” and “uncle” but not “great aunt” and “great uncle.” We see no principled reason, however, to restrict the scope of the preference afforded in § 8-514(B)(3) in such a manner. ¶ 21 Examining first the text of § 8-514(B), the statute does not use the word “relative” to describe any of the preference categories it establishes. After identifying separate preferences for a “parent” and a “grandparent,” § 8-514(B)(l), (2), the statute then broadly categorizes all other forms of family placement (beyond placement with a parent or a grandparent) in subsection (3) as “[i]n kinship care with another member of the child’s extended family[.]” We therefore infer that by “another member of the child’s extended family,” the legislature meant the third placement preference to include any member “of the child’s extended family” other than a parent or a grandparent. ¶ 22 Section 8-501(A), on which Foster Parents’ argument is premised, sets out the definitions of several terms that apply “[i]n this article, unless the context otherwise requires!!.]” Subsection (A)(13) of § 8-501 defines “relative” as “a grandparent, great-grandparent, brother or sister of whole or half blood, aunt, uncle or first cousin.” Although § 8-514, the placement preference statute, falls within the same article as § 8-501, there is no reason to conclude that the legislature’s definition of “relative” in § 8-501(A) limits the meaning of the broader terms “kinship care” and “extended family” when the legislature decided to use those terms (rather than “relative”) in § 8-514(B). ¶ 23 In the first place, applying the definition of “relative” from § 8-501(A)(13) to the “extended family” preference in § 8-514(B)(3) would cause confusion because, as defined by the former statute, “relative” includes “grandparent.” But the legislature could not have intended to put a grandparent in the third preference category with other extended family; it expressly granted grandparents their own distinct preference category (one step above “extended family”), in § 8-514(B)(2). ¶ 24 More generally, rather than specifying certain family members (as it did in defining “relative” in § 8-501(A)), the legislature used broad, general language (“member of the child’s extended family”) to establish the scope of the third placement preference afforded by § 8-514(B). The legislature’s decision not to employ a narrower term or to add a definition that otherwise would restrict the scope of the term “extended family,” particularly given the precise manner in which the legislature defined “relative” in § 8-501(A), demonstrates the legislature intended that “extended family” in § 8-514(B)(3) would apply broadly, encompassing more than the handful of family members who fall within the defined term “relative.” ¶ 25 Moreover, nothing in the legislative history of the two provisions supports Foster Parents’ argument that the definition of “relative” in § 8-501(A)(13) controls the meaning of “kinship care with another member of the child’s extended family” in § 8-514(B)(3). The legislature added the definition of “relative” to § 8-501(A) in 1982 when it amended existing foster-care statutes to require the State to pay for medical and dental care for children in the legal custody of the State but placed with a relative. See 1982 Ariz. Sess. Laws, ch. 246, § 1 (2d. Reg. Sess.). The definition enacted then encompassed “a grandparent, brother or sister of whole or half blood, aunt, uncle or first cousin.” Id. ¶ 26 In 1982, when the legislature added the definition of “relative,” state law authorized the child welfare agency to place a child in the custody of the State with a “licensed foster home for care or for adoption.” AR.S. § 8-514(A) (1982); see also A.R.S. § 8-514 (1970) (same), A.R.S. § 8-514(A) (1971) (same), A.R.S. § 8-514(A) (1978) (same). In 1990, the legislature added § 8-514.02, which expressly allowed the agency to place such a child “with a parent or relative.” See 1990 Ariz. Sess. Laws, ch. 237, § 3 (2d. Reg. Sess.). At the same time, the legislature expanded the definition of “relative” in § 8-501(A) to include “great-grandparent.” See 1990 Ariz. Sess. Laws, ch. 237, § 1 (2d. Reg. Sess.) (redefining and renumbering). ¶ 27 The legislature did not establish the placement preferences set out in § 8-514(B) until 2006. See 2006 Ariz. Sess. Laws, eh. 247, § 1 (2d. Reg. Sess.). Its decision to craft the broader term “kinship care with another member of the child’s extended family” for use in the placement preference statute, rather than employ the term “relative,” which it had defined for other purposes more than a decade before, supports the conclusion that it intended a more expansive notion of family placement than the one defined by “relative” in § 8-501(A)(13). ¶ 28 Alternatively, Foster Parents argue the superior court misapplied § 8-514(B)(3) by failing to recognize that because they have a “significant relationship” with Child, they are entitled to the same preference the court afforded to Great Aunt and Uncle. See A.R.S. § 8-514(B)(3) (“In kinship care with another member of the child’s extended family, including a person who has a significant relationship with the child.”). The court ruled that because Child had been with Foster Parents for about four months, which it characterized as a “relatively short period of time,” Foster Parents would not be given a statutory placement preference over Great Aunt and Uncle. On the record presented, we will not disturb that finding by the court. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App.2002). ¶ 29 Finally, the record contains reasonable support for the court’s conclusion that placement with Great Aunt and Uncle was in Child’s best interest. As noted, Child’s guardian ad litem praised both prospective placements, and the Interstate Compact report stated that Great Aunt and Uncle were “[cjommitted to raising [Child] as their own and adopting” and “keeping [Child] connected to family.” Foster Parents argue the court did not consider Child’s best interests in applying the statutory preference in favor of Great Aunt and Uncle. But the court expressly found that both families would allow Child to “thrive, be successful and be loved very much.” CONCLUSION ¶ 30 Because the superior court did not violate Foster Parents’ due-process rights and did not abuse its discretion by applying the statutory preference or by deciding that placement with Great Aunt and Uncle would be in Child’s best interests, we affirm the placement order. . Pursuant to S.B. 1001, Section 157, 51st Leg., 2d Spec. Sess. (Ariz. 2014) (enacted), the Department of Child Safety is substituted for the Arizona Department of Economic Security in this matter. See ARCAP 27. . Absent material revision after the relevant date, we cite a statute's current version. . Foster Parents argue "very important facts were wrong [in the court’s order] and with just a little evidence that issue would have been clear." The only inaccuracies they cite, however, are the court’s references to "maternal uncle and aunt.” Under the authorities, however, that the other placement would have been Child’s great aunt and uncle rather than her aunt and uncle is not significant. See infra Section B. . Foster Parents do not argue that, as limited by the definition of "relative” in § 8-501(A), the only "relative" placements DCS is authorized to make under § 8-514.02 are with a “grandparent, great-grandparent, brother or sister of whole or half blood, aunt, uncle or first cousin.”

OPINION GOULD, Judge: ¶ 1 The Benevolent Order of the Elks (the “Elks”) appeals the superior court’s judgment affirming the decision by the Arizona Department of Liquor Licenses and Control (“Department”). In its decision, the Department fined the Elks $200 for conducting unlawful gambling activities in violation of Arizona Revised Statutes (“A.R.S.”) section 4-244(26). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶ 2 The Elks is an Arizona non-profit organization licensed to sell liquor by the Department. In 2010, the Elks entered into a contract with Patriots Land Group (“Patriots”) to run a “sweepstakes,” for the stated purpose of charitable fundraising. Pursuant to the contract, the Elks leased computer equipment, software, and furniture from Patriots to conduct the sweepstakes. The sweepstakes equipment consisted of a kiosk, which housed a file server connected to a game terminal; each game terminal had a video monitor, a mouse, and a magnetic card reader. In addition, Patriots agreed to provide operational support consisting of training, computer/equipment maintenance and repairs, and software updates. ¶ 3 In April 2010 the Elks started offering the sweepstakes to its members. The sweepstakes kiosks were housed in the Elks’ Lodge and were available for use during the Elks’ hours of operation. To participate in the sweepstakes, a member obtained a player card, provided by Patriots, from the Elks’ bar manager or bartender. Each card had a magnetic strip and a sweepstakes identification number on the back. ¶ 4 Once a member received a sweepstakes card, he participated in the sweepstakes by running the card through the kiosk’s card reader and placing money in the kiosk’s bill acceptor. Members paid one dollar for each play. ¶ 5 The software provided by Patriots generated “prize pools” consisting of cash prizes. The pools were funded by the money members paid to purchase plays. Each play included the chance to win cash prizes of up to $1,199. ¶ 6 If a member won, the software added the prize amount to his card. When a member wished to redeem his winnings, he would print out a redemption ticket from the kiosk, give the ticket to the bar manager or bartender, and receive a cash payout. The Elks maintained a daily bank of $500 to redeem winnings. ¶ 7 Members were not required to pay for all of their plays. Members could receive one free play a day. However, over the course of the Elks sweepstakes, only nine to ten percent of the sweepstakes plays were free plays. ¶ 8 Members could also obtain free plays by mailing a request, with a self-addressed stamped envelope, to Patriots. There was no limit on the number of mail-in requests that could be submitted by a member. Patriots, however, never received any mail-in requests for free plays. ¶ 9 For each play, members could learn if they won in two ways. The member could click the “reveal button” on the kiosk’s video monitor, which would instantly reveal if the member won a cash prize. In the alternative, a member could run his sweepstakes card through a game terminal’s card reader, and play a casino style computer game; at the end of the game, the monitor would reveal any winnings. However, whether the member used the reveal button or played the casino game, the method used had no bearing on the outcome, because the prize amount, if any, was assigned to each play as it was loaded onto the sweepstakes card. ¶ 10 Under the contract, Patriots received 55% of the revenue generated by the kiosks, paid every two weeks, and a one-time set-up fee of $1,250.00. Patriots required the Elks to connect its equipment to the internet to enable Patriots to monitor the money paid for sweepstakes plays, cash prizes, and free plays. ¶ 11 Patriots also provided the Elks with rules and regulations for conducting the sweepstakes. These rules were posted by all of Patriot’s kiosks, and stated that sweepstakes participants must be members of the Elks; the rules also stated how many free plays were allotted to each member. Finally, the contract required the Elks to assist Patriots with any litigation or lobbying efforts regarding the legality of the sweepstakes in Arizona. ¶ 12 In June 2012, the Department began investigating the Elks after receiving a complaint from another Elks Lodge. During the investigation, the Department discovered that between April 2011 and June 2012, a total of $234,408.00 was paid by members to participate in the sweepstakes. About 55%, or $128,834.25, was paid out to the members as prizes. The remaining 45% was split between Patriots and Elks; Patriots received 55%, or $58,065.56, and the Elks kept the remaining 45%, or $47,508.19. ¶ 13 After its investigation, the Department concluded the sweepstakes constituted unlawful gambling in violation of AR.S. § 4-244(26), which provides that “[i]t is unlawful ... [f]or a [liquor] licensee or employee to knowingly permit unlawful gambling on [its] premises.” The Department instructed the Elks to cease and desist operating the kiosks. The Elks immediately complied. ¶ 14 The Elks timely requested an evidentiary hearing with an Administrative Law Judge. After a two-day hearing, the ALJ determined the sweepstakes constituted illegal gambling. However, rather than suspend or revoke the Elks’ liquor license, the ALJ imposed a minimum fine of $200. See AR.S. § 4-210(A)(9) (stating the Department has the authority to suspend or revoke a liquor license for any violation of Title 4); AR.S. § 4-210.0KA) (fines for violations of Title 4 may range from a maximum fine of $3,000 to a minimum fine of $200). ¶ 15 The Elks unsuccessfully appealed the ALJ’s decision to both the Director of the Department and the Department. After exhausting its administrative remedies, the Elks appealed the Department’s decision to the superior court, which affirmed the Department’s decision. The Elks timely appealed the superior court’s judgment to this Court. DISCUSSION ¶ 16 “On appeal, we determine whether the record contains evidence to support the superior court’s judgment, and in so doing, we also reach the underlying question of whether” the Department “acted in contravention of the law, arbitrarily, capriciously, or in abuse of its discretion.” Comm. for Justice & Fairness v. Ariz. Sec’y of State’s Office, 235 Ariz. 347, 351, ¶ 17, 332 P.3d 94, 98 (App.2014). We view the evidence in the light most favorable to upholding the Department’s decision, and review questions of law de novo. Baca v. Ariz. Dep’t. of Econ. Sec., 191 Ariz. 43, 45-46, 951 P.2d 1235, 1237-38 (App.1998). I. Gambling ¶ 17 The Elks argue the sweepstakes do not constitute illegal gambling. Rather, the Elks contend the sweepstakes is a “marketing tool used to promote” charitable donations, and plays which are purchased are “given to members as tokens of appreciation for their donations.” We disagree. ¶ 18 Gambling is defined under A.R.S. § 13-3301(4) as “... risking or giving something of value for the opportunity to obtain a benefit from a game or contest of chance or skill or a future contingent event____” Thus, unlawful gambling consists of three elements: (1) the payment of consideration, (2) for the chance, (3) to win a prize or obtain some benefit. A.R.S. § 13-3301(4). ¶ 19 The Elks do not contest the fact the sweepstakes plays involve the chance to win a cash prize. Rather, they argue that because free plays are available to members, the sweepstakes lack the requisite element of consideration. In making this argument, the Elks seek to compare the sweepstakes to cases involving radio and TV promotional giveaways, grocery store giveaways, and sweepstakes entries included with the purchase of goods or services. See Fed. Commc’n Comm’n v. Am. Broad. Co., 347 U.S. 284, 296, 74 S.Ct. 593, 98 L.Ed. 699 (1954) (radio and television programs giving away prizes were not conducting an illegal lottery because contestants were not required to purchase anything or pay any consideration to enter the contest); Brice v. State, 156 Tex.Crim. 372, 242 S.W.2d 433, 435 (Tex.Crim.App.1951) (prize drawing was not an illegal lottery because there was no consideration; contestants paid nothing to enter the contest, were not required to purchase any goods or services, and were not required to be in attendance at the store at the time of the drawing); see also Miss. Gaming Comm’n v. Treasured Arts, Inc., 699 So.2d 936, 940-41 (Miss.1997) (business selling telephone calling cards, with purchases including a free sweepstakes entry, was not engaged in illegal gambling; contestants paid retail value for the calling cards, and no additional consideration was paid for sweepstakes entries). ¶ 20 The cases cited by the Elks are distinguishable. Here, 90% of the sweepstakes plays involved members paying money for a chance to win cash prizes. Additionally, the members received no goods or services in return for their purchases. ¶ 21 The Elks’ attempt to characterize the plays as “free,” or as charitable “donations” is also unavailing. Several courts have rejected similar arguments. For example, in Cleveland v. Thorne, 987 N.E.2d 731 (Ohio App.2013), a business attempted to implement a sweepstakes through the sale of internet time. For every dollar spent to purchase internet time, a customer received 100 sweepstakes points. Cleveland, 987 N.E.2d at 735, ¶ 2. Most customers, however, did not use the internet time, and were paying primarily for the sweepstakes entries. Id. at 743, ¶¶ 42-44. Under these circumstances, the court held the business attempted “to couch [its] illegal activities as [a] legitimate business enterprise” and although the customers were technically buying internet time, the jury was justified in finding the customers’ primary purpose was to participate in the sweepstakes. Id. at 744-45, ¶¶ 44, 48. ¶22 Similarly, in Commonwealth v. Wintel, Inc., 829 A.2d 753 (Pa.Comm.Ct.2003), a business offered a “Freespin Promotional Sweepstakes System,” consisting of video slot machines, for the alleged purpose of raising money for charitable purposes. Id. at 755. The business provided participants with two daily free plays and the opportunity to purchase additional plays. Id. Despite the existence of daily free plays and a charitable motive, the court determined that because participants paid money to play the machines, the machines were being used for illegal gambling. Id. at 758. See Barber v. Jefferson Cty. Racing Ass’n Inc., 960 So.2d 599, 610-11, 615 (Ala.2006) (the court rejected the argument that free plays negated the requisite element of consideration for gambling, stating that the devices in question were “slot machines as to those who pay to play them” and that “[gratuitous entries ... do not legitimize the [activity] any more than some opportunity for free plays could render innocuous a conventional slot machine.”). ¶ 23 The evidence in this case supports the Department’s determination that the Elks’ sweepstakes is gambling under A.R.S. § 13-3301(4). The amount of plays a member received directly correlated with the amount of money he “donated” to the Elks; for every dollar paid into the kiosk, the member received one play and a chance to win a cash prize. Moreover, free plays made up less than ten percent of the total plays; the other 90 per cent involved paying money for the chance to win cash. II. Raffle Exception ¶ 24 The Elks argue the sweepstakes is a lawful raffle under A.R.S. § 13-3302(B). Pursuant to AR.S. § 13-3302(B), a non-profit organization may lawfully conduct a raffle if it satisfies all of the following restrictions: 1. ... no member, director, officer, employee or agent of the nonprofit organization may receive any direct or indirect pecuniary benefit other than being able to participate in the raffle on a basis equal to all other participants. 2. The nonprofit organization has been in existence continuously in this state for a five year period immediately before conducting the raffle. 3. No person except a bona fide local member of the sponsoring organization may participate directly or indirectly in the management, sales or operation of the raffle. ¶ 25 There is no dispute the Elks’ sweepstakes satisfies the requirements of AR.S. §§ 13-3302(B)(1), (2). Moreover, we need not address whether the Elks’ sweepstakes is a raffle, because the dispositive issue on appeal is whether Patriots participated in the management or operation of the sweepstakes pursuant to AR.S. § 13-3302(B)(3). ¶ 26 In determining what constitutes direct or indirect participation in the management of a raffle under AR.S. § 13-3302(B)(3), the Arizona Attorney General has opined that the receipt of lease payments “based upon a percentage of sales or receipts from conduct of the games” constitutes “direct or indirect participation in sales or operation of the raffle.” 1990 Ariz. Op. Att’y Gen. 57 (1990). See Ruiz v. Hull, 191 Ariz. 441, 449, ¶ 28, 957 P.2d 984, 992 (1998) (stating that although attorney general opinions are advisory, they may be used as persuasive authority). ¶ 27 The record supports the Department’s conclusion Patriots indirectly participated in the management of the sweepstakes. Patriots monitored the revenue generated by members purchasing plays, the cash prize money paid to members, and the free plays used by members. Patriots provided the rules for the sweepstakes, and processed requests for free plays mailed to its office. Patriots also provided the Elks with extensive operational support for the sweepstakes, consisting of training, equipment maintenance, software updates, and computer and equipment repairs. In return for its management and operational support, Patriots received 55% of the net proceeds generated by the sweepstakes. ¶28 Therefore, we affirm the Department’s decision the Elks’ sweepstakes is not a lawful raffle under A.R.S. § 13-3302(B). III. Knowingly Requirement: A.R.S. § 4-244(26) ¶ 29 Finally, the Elks contend the Department erred in affirming the ALJ’s construction of AR.S. § 4-244(26). In determining the Elks violated AR.S. § 4-244(26), the ALJ concluded the term “knowingly” in the statute only requires proof the Elks knew the sweepstakes were being conducted on its premises; it does not require proof the Elks knew the sweepstakes were unlawful. The Elks assert this construction of the statute is erroneous, and that the statute requires proof the Elks: (1) knowingly permitted the sweepstakes to operate on its premises, and (2) knew the sweepstakes were unlawful. ¶ 30 When interpreting a statute, “we look to the plain language of the statute as the best indicator” of the legislature’s intent. State v. Pledger, 236 Ariz. 469, 471, ¶ 8, 341 P.3d 511, 513 (App.2015); see also Hoag v. French, 238 Ariz. 118, 121, ¶ 11, 357 P.3d 153, 156 (App.2015). “[UJnless the drafters provide special definitions or a special meaning is apparent from the text,” we give the words and phrases of the statute their commonly accepted meaning. Pledger, 236 Ariz. at 471, ¶ 8, 341 P.3d at 513; Hoag, 238 Ariz. at 121, ¶ 11, 357 P.3d at 156. “If the statute is clear and unambiguous, we apply the plain meaning of the statute” without resorting to other methods of statutory construction. Stein v. Sonus USA, Inc., 214 Ariz. 200, 201, ¶ 3, 150 P.3d 773, 774 (App.2007) (citation omitted). ¶ 31 Based on the plain meaning of “knowingly” as used in A.R.S. § 4-244(26), the Department was not required to prove the Elks knew the sweepstakes were unlawful. The word knowingly, when used in Arizona’s statutes, “[d]oes not require any knowledge of the unlawfulness of the act or omission.” A.R.S. § 1—215(17)(b); see A.R.S. § 13-105(10)(b) (stating that the term “knowingly,” when describing conduct constituting a criminal offense, “does not require any knowledge of the unlawfulness of the act or omission”). This construction is consistent with the well-settled principle that ignorance of the law is not a defense. A.R.S. § 13-204(B); State v. Morse, 127 Ariz. 25, 31, 617 P.2d 1141, 1147 (1980). ¶ 32 Accordingly, we conclude the ALJ correctly construed A.R.S. § 4-244(26). CONCLUSION ¶ 33 For the foregoing reasons, we affirm. Because the Elks is not the prevailing party on appeal, we deny its request for fees. . We refer to the current versions of all statutes unless stated otherwise.

OPINION HOWARD, Presiding Judge: ¶ 1 After a jury trial, Bryan Foshay was convicted of first-degree murder. On appeal, he argues the trial court erred first by allowing a toolmark expert, Rocky Edwards, to testify; second, by allowing Edwards’s report to be admitted in its entirety; third, by allowing Edwards to testify regarding another expert’s analysis; and finally, by precluding evidence that the victim had previously sold drugs and had methamphetamine in his system when he was killed. Because the trial court did not err, we affirm. Factual and Procedural Background ¶2 We view the facts in the light most favorable to sustaining Foshay’s conviction. State v. Ortiz, 238 Ariz. 329, ¶ 2, 360 P.3d 125, 129 (App.2015). The victim, B.B., was killed in his apartment by a gunshot wound to the head. During the ensuing investigation, police found that Foshay had exchanged electronic messages with B.B. the night of the murder. These messages suggested that Foshay and B.B. were involved in an illegal enterprise at one point and that B.B. was involved with law enforcement in some capacity, at the time of the text messages. In one message, Foshay asked B.B. to open the door to his apartment on the night of the murder. Based on these messages, police obtained a warrant to search Foshay’s home. They found a .40 caliber weapon and some “Winchester PDX” ammunition as a result of that search. ¶ 3 At trial, Edwards opined that the bullet which killed B.B. was shot from Foshay’s gun. Foshay mounted a third-party-culpability defense which centered on testimony that B.B. had been pressured into providing information and testimony for law enforcement. Foshay claimed that one of a number of other individuals who had been engaged in the drug trade with B.B. had killed him. ¶ 4 The jury rejected the defense’s theory of the ease and, as noted above, found Foshay guilty of first-degree murder. The trial court sentenced him to a life term with the possibility of release after twenty-five years. Foshay appealed from the judgment and sentence. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1). Daubert Analysis ¶ 5 Foshay first argues, on several related grounds, that the trial court erred by admitting Edwards’s testimony which was based in part on the use of three-dimensional (“3-D”) imaging software and “confoeal microscopic analysis.” “We review a trial court’s ruling to admit expert testimony for an abuse of discretion.” State v. Favela, 234 Ariz. 433, ¶ 4, 323 P.3d 716, 717 (App.2014). In reviewing a trial court’s ruling after a hearing on a motion to preclude expert testimony, we consider only that evidence presented at the hearing, viewing it in the light most favorable to upholding the order. Cf. State v. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370 (App.2011) (reviewing motion to suppress); see also State v. Huerstel, 206 Ariz. 93, ¶ 62, 75 P.3d 698, 712 (2003) (reviewing voluntariness of statement). ¶ 6 In order for expert witness testimony to be admissible, the party proposing the testimony must show, inter alia, that first, “the witness is qualified and [second, that] the expert’s ‘scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence.’ ” State v. Romero, 239 Ariz. 6, ¶ 12, 365 P.3d 358, 361 (2016), quoting Ariz. R. Evid. 702. The proponent must also demonstrate that “the testimony is based on sufficient facts or data; ... the testimony is the product of reliable principles and methods; ... and the expert has reliably applied the principles and methods to the facts of the case.” Ariz. R. Evid. 702. “Under Rule 702, a witness may be qualified based on ‘knowledge, skill, experience, training, or education.’ ” Romero, 239 Ariz. 6, ¶ 17, 365 P.3d at 362, quoting Ariz. R. Evid. 702. “For a witness to be qualified as an expert, he or she need only possess ‘skill and knowledge superior to that of [people] in general.’ ” Id., quoting State v. Girdler, 138 Ariz. 482, 490, 675 P.2d 1301, 1309 (1983) (alteration in Romero). ¶ 7 The following facts were adduced at the Daubert hearing. The Tucson Police Department (“TPD”) performed an initial analysis of the weapon and ammunition found in Foshay’s home. Using a standard comparison microscope and the six test-fired bullets, the TPD analysts could not determine whether the autopsy bullet recovered from B.B.’s body matched the weapon found in Foshay’s home. ¶ 8 Foshay’s gun, the autopsy bullet, and the TPD “test fires” were then sent to Rocky Edwards, a toolmark analysis expert at the Santa Ana Police Department. Edwards conducted additional test fires and obtained additional bullet samples. He also conducted an analysis aided by a “confoeal” microscope which utilizes 3-D imaging. Edwards concluded that Foshay’s gun had fired the autopsy bullet. Based on his analysis using both scopes, Edwards found “areas of agreement” between the autopsy bullet and the test fires he compared. But he emphasized that an identification ... has to be done with a comparison microscope. That’s the only standard that’s accepted in the United States, and that’s the standard [he] used in this case and in every case that [he had] ever done in 3-D. So [the confoeal microscope was] only used as a supplement, not used as the main scope. The report and presentation that Edwards prepared in this case “inelude[d] photographs both [from a] comparison microscope and [a] confoeal” microscope. ¶ 9 Foshay argues the trial court abused its discretion when it found that Edwards was qualified to employ the 3-D imaging software. As Foshay has conceded both at trial and on appeal, Edwards is a qualified toolmark analyst. The court found specifically that “using this 3-D confoeal microscopy is just a new tool to utilize the same principles.” And Edwards’s testimony showed a working knowledge of how this technology functioned, demonstrating he was qualified by knowledge and experience. Ariz. R. Evid. 702; Romero, 239 Ariz. 6, ¶ 17, 365 P.3d at 362. Thus, the court did not err when it found that Edwards was qualified to testify as to his analyses aided by the new technology. See Romero, 239 Ariz. 6, ¶ 17, 365 P.3d at 362. ¶ 10 Foshay further argues the trial court erred in admitting Edwards’s testimony because Edwards did not have personal knowledge about how the 3-D mapping software functioned and, thus, the state failed to present sufficient evidence to allow the court to find the new methodology reliable. Rule 702 requii’es that expert testimony be the product of reliable principles and methods and that the expert has reliably applied the principles. Ariz. R. Evid. 702(e), (d); see also State v. Romero, 236 Ariz. 451, ¶ 11, 341 P.3d 493, 497 (App.2014), vacated on other grounds, 239 Ariz. 6, ¶ 31, 365 P.3d at 364. Arizona courts recognize five non-exclusive factors for determining reliability: (1) whether the expert’s theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique or theory is generally accepted within the relevant scientific community; (4) the known or potential rate of error of the technique or theory when applied; and (5) the existence and maintenance of standards controlling application of the technique. State ex rel. Montgomery v. Miller, 234 Ariz. 289, ¶ 24, 321 P.3d 454, 464 (App.2014). ¶ 11 As noted above, Edwards testified he made the match with the traditional comparison microscope and that the eonfoeal microscope and 3-D imaging only allowed him to see a clearer image. Accordingly, specific details on how the eonfoeal microscope and 3-D imaging software functioned were not relevant to whether Edwards' had applied reliable principles and methods. ¶ 12 Additionally, although Edwards conceded he was unaware of how the software functioned and had only used this technology four times, he was able to testify in some detail regarding how the technology worked, its history, and a study about the effectiveness of toolmark analyses conducted with this technology. In this study, researchers attempted to validate the use of 3-D systems by having 623 participants in thirty-five countries analyze 600 rounds fired out of ten consecutively manufactured weapons. Only two of the examiners could not make identifications, and those examiners were relatively untrained. All other examiners were able to make valid identifications. ¶ 13 Thus, the trial court reasonably could have found that the 3-D imaging and confocal microscope methodology was testable, was subjected to peer review, was generally accepted in the field, and was studied sufficiently to establish known or potential rates of error. Montgomery, 234 Ariz. 289, ¶ 24, 321 P.3d at 464. Accordingly, the 3-D imaging and eonfoeal microscope methodology was capable of passing Rule 702’s reliability test. ¶ 14 In sum, Edwards testified the 3-D imaging and eonfoeal microscope merely enabled him to better see the marks which were the basis of his analysis. And no evidence indicated that the software and microscope somehow manipulated the image to allow a match between bullets where none existed. Any issues concerning the use of the 3-D imaging and eonfoeal microscope were proper subjects for cross-examination, but did not prevent admission of the evidence. See Romero, 239 Ariz. 6, ¶ 27, 365 P.3d at 364 (“ ‘Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ ”), quoting State v. Bernstein, 237 Ariz. 226, ¶ 22, 349 P.3d 200, 205 (2015); see also Ariz. R. Evid. 702 cmt. (2012). The trial court reasonably could have found that Edwards reliably applied the principles and methods of toolmark comparison under the facts of this case. Admission of Edwards’s Report ¶ 15 Foshay next argues the trial court erred by admitting Edwards’s written report and a corresponding “interactive CD” because these materials are hearsay and con tained Edwards’s statement concerning his certainty as to his conclusion. The state responds that Foshay failed to object adequately to the admission of the report below, thereby forfeiting this argument for all but fundamental error. ¶ 16 “A party must make a specific and timely objection at trial to the admission of certain evidence in order to preserve that issue for appeal.” State v. Hamilton, 177 Ariz. 403, 408, 868 P.2d 986, 991 (App.1993); Ariz. R. Evid. 103(a). “[A]n objection to the admission of evidence on one ground will not preserve issues relating to the admission of that evidence on other grounds.” Id. ¶ 17 In this case, when the state sought to admit the written report, Foshay timely objected on the ground the report was “cumulative.” When the state sought to admit the interactive CD, Foshay objected on the same ground he had raised at the Daubert hearing, which was relevance. ¶ 18 On appeal, Foshay has challenged the admission of the report and CD, asserting that a report “prepared out of court is generally inadmissible under [Rule 702]” and “is also hearsay,” and that the report contained statements about Edwards’s certainty. These arguments are based on different grounds from the objections at trial. Thus, Foshay did not make a timely and specific objection at the Daubert hearing or at trial on the same grounds as those argued on appeal and he has thus forfeited these arguments. See State v. Lopez, 217 Ariz. 433, ¶ 6, 175 P.3d 682, 684 (App.2008); Hamilton, 177 Ariz. at 408, 868 P.2d at 991; see also Ariz. R. Evid. 103(a). ¶ 19 Foshay responds, however, that this line of reasoning “ignores the particular objection made by defense counsel in his written motion to preclude.” “Generally, a defendant preserves for appeal any issues raised in a motion in limine and ruled upon without the need for further objection at trial.” State v. Duran, 233 Ariz. 310, ¶ 7, 312 P.3d 109, 110 (2013). ¶ 20 In his motion to preclude Edwards’s testimony and report, Foshay attempted to show that Edwards’s opinion was not compliant with Rule 702’s requirements. The section of the motion to which Foshay refers occurs before the “Argument” section and is titled “Federal district courts have carefully scrutinized and limited firearms identification evidence under the reliability criterion of Daubert due to its lack of scientific foundation.” He noted that federal courts had limited firearms identification evidence such that some experts can only state their opinions “without any characterization as to the degree of certainty.” United States v. Willock, 696 F.Supp.2d 536, 549 (D.Md.2010). ¶ 21 Foshay did not argue that the report and CD, as opposed to Edwards’s testimony, should be excluded on the basis that Edwards expressed an elevated level of certainty about his conclusions and he did not request that limitation in his request for relief. Further, Foshay did not argue in the motion to preclude, as he does in his opening brief, that the written report of an expert is generally inadmissible or that his report was hearsay. Thus, while Foshay did request that the trial court exclude the report and CD, he did so on different grounds. ¶ 22 Foshay’s objection did not “give[ ] the [trial] court an opportunity to correct any error and allow[ ] opposing counsel a chance to ‘obviate the objection.’” Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d at 683, quoting State v. Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d 50, 56 (2003). Consequently, Foshay has forfeited his arguments on appeal, and we review only for fundamental error. Hamilton, 177 Ariz. at 408, 868 P.2d at 991; State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). ¶23 To prevail under fundamental error review, “a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice.” Id. ¶ 20. Fundamental error review “involves a fact-intensive inquiry” and the “showing a defendant must make varies.” Id. ¶ 26. To establish prejudice, “a defendant must show that, but for the error, a reasonable fact-finder ‘could have reached a different result.’ ” See State v. Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d 263, 273 (App.2007), quoting Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609. ¶ 24 We need not determine whether the admission of the report constituted fundamental error because Foshay cannot show prejudice. He argues that admission of the report and CD prejudiced him because the written report “went much further” than Edwards’s oral testimony about his certainty that the bullets matched Foshay’s weapon. In the report, Edwards explained “the likelihood that another firearm could have produced these marks is so remote as to be considei’ed a practical impossibility.” At trial, Edwards testified “the autopsy bullet was fired by the Ruger pistol that was submitted for examination.” No evidence suggested it came from any other weapon. The difference between Edwards’s testimony at trial and his statement in the report would not have made a practical difference to the jury. ¶ 25 Foshay also claims admitting the written report reinforced Edwards’s testimony. But the report was largely repetitive of Edwards’s trial testimony and Foshay has not shown how he was prejudiced. Assuming admission of the reports was both error and fundamental, under either or both grounds argued here, the jury would have still found Foshay guilty in the absence of the reports. Foshay was not prejudiced. Testimony Regarding Ward’s Opinion ¶ 26 Foshay next argues the trial court violated his rights under the Confrontation Clause by admitting Edwards’s testimony regarding Troy Ward, a toolmark examiner who confirmed Edwards’s opinion. He also claims that Ward’s opinion should have been excluded as hearsay. Foshay further argues the trial court erred in denying his motion for a new trial on the same ground. ¶ 27 The state contends Foshay did not properly object to this portion of Edwards’s testimony, and thus Foshay’s argument is forfeited for all but fundamental error, pursuant to Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Although Foshay’s counsel failed to use the word “object” or the phrase “Confrontation Clause,” a specific word is not required to make an objection or to preserve an issue for appeal. See Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d at 56 (“ ‘The purpose of an objection is to permit the trial court to rectify possible error, and to enable the opposition to obviate the objection if possible.’ ”), quoting State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 901 (1955). ¶ 28 Here, Foshay objected to Edwards’s testimony regarding Ward’s analysis on the ground that his testimony was hearsay and also claiming that Foshay had “no way to confront that person at this point.” Thus, he effectively objected to the instruction below, and we will review the merits of his claim. See Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d at 607 (where defendant objected below, burden is on state to prove harmless error). ¶ 29 We review “ ‘challenges to admissibility based on the Confrontation Clause’” de novo. Ortiz, 238 Ariz. 329, ¶ 27, 360 P.3d at 133, quoting State v. Bennett, 216 Ariz. 15, ¶ 4, 162 P.3d 654, 656 (App.2007). “We review a trial court’s ruling on the admissibility of evidence for a clear abuse of discretion.” State v. King, 213 Ariz. 632, ¶ 7, 146 P.3d 1274, 1277 (App.2006). ¶ 30 The Sixth Amendment “ ‘prohibits the introduction of testimonial statements by a nontestifying witness.’ ” Ortiz, 238 Ariz. 329, ¶31, 360 P.3d at 133, quoting Ohio v. Clark, — U.S.-,-, 135 S.Ct. 2173, 2179, 192 L.Ed.2d 306 (2015). “Testimonial evidence is ‘ex parte in-court testimony or its functional equivalent ... such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used proseeutorially.’ ” Id., quoting State v. Medina, 232 Ariz. 391, ¶ 54, 306 P.3d 48, 62 (2013) (alteration in Ortiz). “Yet, testimony that is not admitted to prove its truth is not hearsay and does not violate the Confrontation Clause.” State v. Tucker, 215 Ariz. 298, ¶ 61, 160 P.3d 177, 194 (2007), Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“The [Confrontation] Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”); see also Williams v. Illinois, — U.S.-,-, 132 S.Ct. 2221, 2261, 183 L.Ed.2d 89 (2012) (Thomas, J. concurring) (identifying primary purpose test and solemnity test). ¶ 31 “A testifying expert may rely on the opinions of other experts if such reliance is ‘the kind of material on which experts in the field base their opinions.’ ” State v. Lundstrom, 161 Ariz. 141, 147, 776 P.2d 1067, 1073 (1989), quoting Lewis v. Rego, 757 F.2d 66, 74 (3d Cir.1985). That expert may then, in turn, “testify as to the substance of another expert’s opinion if the testifying expert reasonably relied on that other opinion in forming his own opinion.” Id. at 148, 776 P.2d at 1074. The other expert’s opinion can be admitted as non-hearsay because it is admissible for the limited purpose of showing the bases of the testifying expert’s opinion. Id. ¶ 32 Edwards testified that Ward, an examiner from the Long Beach Police Department, did a second examination and technical review of Edwards’s toolmark analysis. Edwards explained that toolmark analyses typically are subjected to “peer review by another qualified firearms examiner.” He further described how the normal procedure for his analysis required that, once he had found sufficient agreement between the autopsy bullet and the test fires, he would provide his report to another examiner who would perform a second examination. See also United States v. Monteiro, 407 F.Supp.2d 351, 368-69 (D.Mass.2006) (it is “the standard in the field to have a second examiner independently review the findings of the first examiner”). If the second expert came to the same conclusion as Edwards, it would allow Edwards to conclude his findings were accurate. ¶ 33 Thus, because peer review is part of the toolmark analysis process, Ward’s opinion was offered only as a basis for Edwards’s testimony and not to prove the truth of that opinion. See Lundstrom, 161 Ariz. at 147, 776 P.2d at 1073. And Ward’s opinion did not have the solemnity associated with trial testimony. Williams, — U.S. at-, 132 S.Ct. at 2260 (Thomas, J. concurring). Edwards’s statement about Ward’s opinion is therefore not hearsay, see Tucker, 215 Ariz. 298, ¶ 60, 160 P.3d at 194, and is not barred by the Confrontation Clause, see Williams, — U.S. at-, 132 S.Ct. at 2260 (Thomas, J. concurring); see also Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354. Accordingly, the trial court did not err when it admitted Edwards’s testimony regarding Ward’s opinion. Preclusion of Evidence of Victim’s Drug Use ¶ 34 Finally, Foshay argues the trial court erred by precluding evidence that victim B.B.’s autopsy toxicology report had indicated the presence of methamphetamine and that B.B. had been previously involved in a drug sale. He argues that admitting such evidence would “help establish the defense theory that someone other than [Foshay] had motive and opportunity to commit the offense.” As mentioned above, “[w]e review a trial court’s ruling on the admissibility of evidence for a clear abuse of discretion,” King, 213 Ariz. 632, ¶ 7, 146 P.3d at 1277, but, constitutional violations are reviewed de novo, Fragoso v. Fell, 210 Ariz. 427, ¶ 13, 111 P.3d 1027, 1032 (App.2005). ¶ 35 Irrelevant evidence is inadmissible. Ariz. R. Evid. 402. Relevant evidence is that which has “ ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence’ ” and “[t]he standard of relevance is not particularly high.” State v. Fish, 222 Ariz. 109, ¶ 48, 213 P.3d 258, 274 (App.2009), quoting Ariz. R. Evid. 401. Rel evant evidence can be inadmissible if “its probative value is substantially outweighed by a danger of ... unfair prejudice.” Ariz. R. Evid. 403. “Because the trial court is best situated to conduct the Rule 403 balance, we will reverse its ruling only for abuse of discretion.” State v. Cañez, 202 Ariz. 133, ¶ 61, 42 P.3d 564, 584 (2002). ¶ 36 Criminal defendants are constitutionally guaranteed “ ‘a meaningful opportunity to present a complete defense.’” State v. Machado, 224 Ariz. 343, ¶ 12, 230 P.3d 1158, 1166 (App.2010), quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986), abrogation on other grounds as recognized by State v. Nottingham, 231 Ariz. 21, 26 n. 4, 289 P.3d 949, 954 n. 4 (App.2012). A defendant’s defense “generally must comply” with the rules of evidence, but those rules “ ‘may not be applied mechanistically to defeat the ends of justice.’ ” Id. ¶ 13, quoting Chambers v. Mississippi 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The right to conduct a complete defense includes the right to cross-examine witnesses. State v. Abdi 226 Ariz. 361, ¶ 27, 248 P.3d 209, 216 (App.2011). That right, however, “must be kept within reasonable bounds” and the test for reasonableness is “whether the defendant has been denied the opportunity of presenting to the trier of fact information which bears either on the issues in the ease or on the credibility of the witness.” State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977). ¶ 37 Before trial, the state moved to preclude evidence that B.B. had been involved in a hand-to-hand drug sale, arguing it was irrelevant because it took place two years before B.B.’s murder and was not connected to the murder. The state also contended the evidence was more prejudicial than probative under Rule 403. Foshay, who did not file a written response, argued the drug sale was relevant because it explained why B.B. would be motivated to work as a confidential informant. The court did not admit the evidence of the prior drug sale although evidence that B.B. was an informant was admitted. ¶ 38 At trial, Foshay cross-examined David Winston, the medical examiner who conducted B.B.’s autopsy, and attempted to elicit testimony regarding the presence of methamphetamine in the autopsy results. The state’s attorney objected on relevance grounds. Foshay argued the evidence was relevant to a third-party-culpability defense, suggesting the victim’s drug use indicated other individuals might be willing to kill him. The trial court ruled the proposed testimony was both irrelevant and highly prejudicial. ¶ 39 The trial court was correct in concluding this evidence was irrelevant. As opposed to the fact that he had worked as an informant, B.B.’s motivation to do so did not make it more likely that someone other than Foshay had killed him. And Foshay has not shown any connection between B.B.’s use of methamphetamine before his death and anyone’s desire to kill him. As the court noted, the use of methamphetamine and the sale of drugs two years before his death do not tend to make it more likely that someone other than Foshay murdered B.B. See Ariz. R. Evid. 401. The court did not abuse its discretion in excluding this evidence. ¶ 40 The trial court also correctly found that the probative value of the victim’s personal drug use or remote participation in a drug sale did not outweigh the prejudicial effect. See Cañez, 202 Ariz. 133, ¶ 61, 42 P.3d at 584. Such evidence is not sufficiently probative of third-party culpability to outweigh the prejudice of portraying B.B. as a drag dealer and user. See Ariz. R. Evid. 403. ¶ 41 Finally, Foshay’s right to conduct a complete defense and cross-examination was not implicated by the exclusion of this evidence. In light of the evidence that was ruled admissible at trial, Foshay was not denied “the opportunity of presenting to the trier of fact information which bears either on the issues in the ease or on the credibility of the witness.” Fleming, 117 Ariz. at 125, 571 P.2d at 271. The exclusion of irrelevant and prejudicial evidence is not a mechanistic application of the rules of evidence. See Machado, 224 Ariz. 343, ¶ 13, 230 P.3d at 1166. Disposition ¶42 Based on the foregoing, we affirm Foshay’s conviction and sentence. . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). . Foshay also brought a general challenge to toolmark analysis, which was similar to that considered and rejected by this court in State v. Romero, 236 Ariz. 451, ¶20, 341 P.3d 493, 499 (App.2014), vacated on other grounds, 239 Ariz. 6, ¶ 31, 365 P.3d 358, 364 (2016). That case was recently considered by the Arizona Supreme Court, but it did not grant review on the general challenge to toolmark analysis, and Foshay has abandoned this argument in his reply brief. Romero, 239 Ariz. 6, ¶ 1, 365 P.3d at 360. Foshay further mentions his constitutional right to a fair trial under the Fourteenth Amendment to the United States Constitution but does not develop any separate argument concerning it. Therefore, any such argument is waived. See Ariz. R. Crim. P. 31.13(c)(1) ("The appellant’s brief shall include ... [a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.”); 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.’’). . Edwards specifically testified there were no proficiency testing standards for the 3-D analysis. But proficiency testing exists for toolmark examination. And, even if the fifth factor was not met, the trial court did not abuse its discretion by admitting this testimony. Montgomery, 234 Ariz. 289, ¶25, 321 P.3d at 464 ("No single Daubert factor is dispositive of the reliability of an expert’s testimony.”). . Foshay again mentions his right to a fair trial under the Sixth and Fourteenth Amendments without argument. This issue is waived. See Ariz. R. Crim. P. 31.13(c)(1); Bolton, 182 Ariz. at 298, 896 P.2d at 838. . Foshay again mentions his right to a fair trial under the Fourteenth Amendment without argument. This issue is waived. See Ariz. R. Crim. P. 31.13(c)(1); Bolton, 182 Ariz. at 298, 896 P.2d at 838. . Foshay also argues that this evidence would tend to show B.B. "was a risk taker, rebutting the State's theory that [B.B.] opened the door to Bryan Foshay" and that B.B. was “a risk taker who engaged in drug sales and thus may have opened the door to someone other than Bryan Foshay.” Because Foshay did not raise this risk-taker justification in his argument below, it is forfeited. See Hamilton, 177 Ariz. at 408, 868 P.2d at 991; Ariz. R. Evid. 103(a). . We note that significant other evidence was introduced at trial regarding B.B.’s involvement with the drug trade.

OPINION NORRIS, Judge: ¶ 1 The issue in this appeal is whether Arizona’s redemption statutes grant the holder of a homeowners’ association assessment lien the right to redeem residential real property following the mortgage foreclosure sale of that property. We hold they do. FACTS AND PROCEDURAL BACKGROUND ¶ 2 In 2005, a borrower executed a promissory note secured by a deed of trust (“deed of trust lien”) on residential real property in Maricopa County, Arizona. The real property was subject to a previously recorded Declaration of Covenants, Conditions and Restrictions. The Declaration created a homeowners association, Vista View Homeowners Association a/k/a Val Vista Views Homeowners Association (“Association”), required the owners of property subject to the Declaration to pay certain assessments “fixed” by the Association, and, as authorized by Arizona Revised Statutes (“A.R.S.”) section 33-1807 (Supp. 2015), de dared the assessments to be “a continuing lien upon [each parcel of property] against which each such Assessment is made” (“assessment lien”). ¶ 3 After the borrower defaulted on his obligations under the note and deed of trust, plaintiff/appellee, The Bank of New York Mellon Trust Company, National Association, sued the borrower for breach of contract and to foreclose the deed of trust lien and the borrower’s interest in the property. The Bank also sued the Association and alleged that any interest it claimed in the property was subordinate and inferior to the deed of trust lien. Subsequently, the Association stipulated that any lien it held on the property was junior to the Bank’s deed of trust lien. ¶ 4 The Bank obtained a default judgment against the borrower in the principal sum of $199,642.52. The judgment foreclosed the borrower’s interest in the property, foreclosed the Bank’s deed of trust lien, declared the Bank’s deed of trust lien valid and superior to all other liens, and directed the Maricopa County Sheriff to sell the property pursuant to a writ of special execution (“Sheriffs Sale”). The judgment also authorized the Bank to purchase the property at the Sheriffs Sale by applying “all of [sic] any portion of the indebtedness evidenced” by the judgment towards the purchase price (“credit bid”). ¶ 5 The Bank purchased the property at the Sheriffs Sale for a $22,000 credit bid. Approximately one month later, the Association assigned all rights it had to enforce a $2,000 assessment lien it held on the property to defendant/ appellant Arizona HOA Acceptance, LLC (“Arizona HOA”). Simultaneously, Arizona HOA recorded a “Notice of Intent to Redeem.” The notice stated, inter alia, that Arizona HOA intended to redeem the property by paying the amount of the credit bid, $22,000, plus any additional amounts required to effectuate the redemption as required by statute. See generally A.R.S. § 12-1284 (2003) (“subsequent lien-holder” who wishes to redeem shall “file” with county recorder notice stating he intends to redeem). ¶ 6 The Bank moved to stay Arizona HOA’s attempted redemption and requested the superior court to order the Sheriff to issue a deed to the property to it. As relevant here, the Bank argued the assessment lien did not entitle Arizona HOA to redeem because AR.S. § 12-1281(2) (2003) restricts redemption rights to a limited class of creditors, specifically only those “having a lien by judgment or mortgage on the property sold ... subsequent to that on which the property was sold.” Arizona HOA argued, however, that a different statute, AR.S. § 12-1283 (2003), entitled it to redeem. Subsection A of that statute establishes redemption periods in “sales upon foreclosure of mortgages or other liens,” and subsection B states that “[i]f no redemption is made by the mortgagor or his successor in interest, creditors having liens upon the premises sold or any part thereof subsequent to the lien so foreclosed may redeem within the times and in the order and manner specified in [AR.S.] § 12-1282.” The superior court rejected Arizona HOA’s argument and agreed with the Bank that Atizona HOA was not a “junior judgment creditor lien holder” entitled to a statutory right of redemption. Accordingly, it granted the Bank the relief it had requested in its motion. DISCUSSION ¶ 7 As it did in the superior court, Atizona HOA argues A.R.S. § 12-1283(B) identifies who may redeem property from a mortgage foreclosure sale—“creditors having liens” on the property sold “subsequent to the lien so foreclosed”—and asserts that because the statute does not restrict “creditors” and “liens” in any way, its assessment lien entitled it to redeem the property. Based on a decision by the Arizona Supreme Court that allowed a creditor holding a non-judgment lien to redeem under the predecessor version of A.R.S. § 12-1283(B) and the evolution of Arizona’s redemption statutes, we agree with Arizona HOA. ¶ 8 In Western Land & Cattle Co. v. Nat’l Bank of Ariz. at Phx., 28 Ariz. 270, 236 P. 725, reh’g denied, 29 Ariz. 51, 239 P. 299 (1925), the supreme court recognized that a creditor holding an attachment lien could redeem property from a mortgage foreclosure sale under § 1377 of the 1913 Arizona Civil Code (“1913 Code”), which, with a few minor changes over the years, is now A.R.S. § 12-1283. Section 1377 stated: In case of sale upon foreclosure of mortgage or other lien like periods of redemption shall be allowed. If no redemption shall be made by the mortgagor or owner of the property subject to the lien[,] his personal representatives or assigns, creditors having liens upon the premises sold or some part thereof subsequent to the mortgage or lien so foreclosed, may redeem within the times, and in the order specified in the preceding section. ¶ 9 In Western Land & Cattle, the owner of real property executed a first mortgage on the property in favor of one creditor (“first creditor”), and a second mortgage on the property in favor of a different creditor (“second creditor”). 28 Ariz. at 271, 236 P. at 725. The second creditor subsequently sued the property owner on an unrelated matter and attached the owner’s “residuary interest” in the property, thereby obtaining an attachment lien on the property (“attachment case”). Id. A few months later, the owner executed a third mortgage to another creditor (“third creditor”) that was subject to both the first and second mortgages and the attachment lien. Id. More than a year later, the second creditor obtained a judgment against the owner in the attachment case. Id. The owner appealed the judgment, 28 Ariz. at 271, 236 P. at 725, and the Arizona Supreme Court eventually affirmed it. McCulloch v. Western Land & Cattle Co., 27 Ariz. 154, 231 P. 618 (1924). ¶ 10 While the owner’s appeal in the attachment ease was pending, the first creditor sued to foreclose the first mortgage, and joined the second and third creditors as parties. 28 Ariz. at 272, 236 P. at 725. The second creditor acknowledged the priority of the first mortgage, and “set up” by cross-complaint its second mortgage and its attachment lien. Id. The third creditor did not challenge the first mortgage or the second mortgage, but did contest the attachment lien. Id. The superior court entered judgment in favor of the first and second creditors, foreclosed the first and second mortgages, declared them to be, respectively, first and second liens on the property, and ordered the property sold with the sale proceeds applied, first, to the judgment in favor of the first creditor, and second, to the judgment in favor of the second creditor. Id. at 272, 236 P. at 725-26. Because of the owner’s then pending appeal in the attachment case, the court did not make any findings addressing the second creditor’s attachment lien or the third creditor’s mortgage—a point we return to below. See infra ¶ 13. The Sheriff sold the property, but the sale proceeds satisfied only the judgment in favor of the first creditor. Id. at 273, 236 P. at 726. ¶ 11 Subsequently, the second creditor filed notices of intent to redeem the property, one pursuant to its second mortgage “as next in right” to the first mortgage, and one pursuant to its attachment lien “as next in right” to the second mortgage. Id. The third creditor also filed a notice of intent to redeem, and essentially argued the second creditor had no right to redeem under either the second mortgage or the attachment lien. Id. The superior court ruled in favor of the third creditor, and the second creditor appealed. Id. at 273-74, 236 P. at 726. ¶ 12 The supreme court analyzed the parties’ competing redemption claims under 1913 Code § 1377, explaining “the right of redemption under foreclosure of a mortgage or other lien inures to ‘creditors having liens upon the premises sold or some part thereof subsequent to the mortgage or lien so foreclosed.’ ” Id. at 275, 236 P. at 727. The court held the second mortgage no longer existed as a lien on the property because the second creditor had obtained a judgment foreclosing the second mortgage, and the property had been sold. Id. at 276, 236 P. at 727. Therefore, under § 1377, the second creditor could not redeem pursuant to the second mortgage. Id. ¶ 13 But, and this is the important part of the decision for purposes of this appeal, the supreme court nevertheless recognized the second creditor still held a lien—the attachment lien—and was entitled to redeem the property under that lien. Id. at 278, 236 P. at 727. Indeed, the third creditor agreed the second creditor held an attachment lien, as by then the supreme court had affirmed the judgment in the attachment case, thereby upholding the validity of the attachment lien. Id. at 274, 236 P. at 726. The supreme court explained: “[B]y virtue of that decision, holding the judgment in the attachment suit to be valid, [the second creditor] would certainly have a right to redeem thereunder and [the third creditor’s] rights would be junior thereto.” Id. ¶ 14 The supreme court in Western Land & Cattle did not explicitly discuss principles of statutory construction. Nonetheless, its recognition that the second creditor, as the holder of the attachment lien, could redeem under the virtually identical version of what is now A.R.S. § 12-1283, is consistent with the most fundamental rule of statutory construction: in interpreting a statute, a court must look first to the statute’s language to ascertain what it means. Lincoln v. Holt, 215 Ariz. 21, 24, ¶ 7, 156 P.3d 438, 441 (App.2007). The supreme court applied this fundamental rule of construction in Western Land & Cattle when it recognized that a creditor holding an attachment lien could redeem under the statutory language. Then, as now, a creditor is a person “who has a right to require the fulfillment of an obligation or contract” or a person “to whom any obligation is due.” Compare Bouvier’s Law Dictionary 726 (8th ed. 1914), with Creditor, Black’s Law Dictionary (10th ed. 2014) (creditor is person “to whom a debt is owed; one who gives credit for money or goods”). And, then as now, a lien is a “hold or claim which one person has upon the property of another as a security for some debt or charge.” Compare Bouvier’s Law Dictionary 1978 (8th ed. 1914), with Matlow v. Matlow, 89 Ariz. 293, 297-98, 361 P.2d 648, 651 (1961) (“The term ‘lien’, as generally used, is a charge or encumbrance upon property to secure the payment or performance of a debt, duty, or other obligation”) (citation omitted); Lien, Black’s Law Dictionary (10th ed. 2014) (lien is “[a] legal right or interest that a creditor has in another’s property, lasting [usually] until a debt or duty that it secures is satisfied”). Consistent with the plain meaning of these terms, the supreme court in Western Land & Cattle recognized that the second creditor was a creditor under the predecessor to A.R.S. § 12-1283. And, consistent with the plain meaning of these terms, the supreme court recognized the second creditor’s attachment lien was a lien under the predecessor to A.R.S. § 12-1283. Applying this same logic here, Arizona HOA is a creditor and holds a lien under A.R.S. § 12-1283 and was entitled to redeem the property. ¶ 15 The Bank nevertheless argues Western Land & Cattle is distinguishable because there the second creditor had also obtained a judgment affirming its attachment lien, 28 Ariz. at 271, 236 P. at 725 (citing McCulloch v. Western Land & Cattle Co., 27 Ariz. 154, 231 P. 618 (1924)), and thus the second creditor was actually a creditor “having a lien by judgment.” Although the second creditor had obtained a judgment upholding its attachment lien, it was the attachment lien, not the judgment upholding the lien, that made the second creditor a “creditor[] having [a] lien[] upon the premises” as the 1913 Code § 1377 required. Further, the Bank’s argument ignores that under the 1913 Code, an attachment lien was “ereate[d]” when the writ of attachment was executed, that is, levied on the defendant’s property, and continued until quashed or otherwise vacated. See 1913 Code § 1421; Wartman v. Pecka, 8 Ariz. 8, 11-12, 68 P. 534, 535 (1902) (construing provision in Rev. Stats. Ariz. § 67 (1887) identical to 1913 Code § 1421; holding execution of writ of attachment upon defendant’s property creates lien from the date of such execution and is not extinguished by defen dant’s death). And finally, that is why, as the supreme court explained in Western Land & Cattle, the third mortgage—which the owner executed after the second creditor had obtained the attachment lien on the owner’s property—was junior to the attachment lien. 28 Ariz. at 278, 236 P. at 727. ¶ 16 We recognize Arizona’s redemption statutes do not use consistent terminology in identifying the types of creditors who may redeem, as the competing arguments of the Bank and Arizona HOA demonstrate. See A.R.S. § 12-1282(C) (“senior creditor having a lien, legal or equitable, upon the premises sold, or any part thereof, subsequent to the judgment under which the sale was made, may redeem within” certain specified periods); A.R.S. § 12-1284 (“subsequent lien-holder”); A.R.S. § 12-1285(B) (2003) (“subsequent redemptioner”); A.R.S. § 12-1287(A) (2003) (“redeeming creditor”); AR.S. § 12-1288(A) (2003) (“creditor”). These different formulations have been part of our redemption statutes from their inception. Compare § 2576 of the 1901 Territorial Civil Code (“1901 Code”) (property may be redeemed by “creditor having a lien by judgment or mortgage on the property sold”); § 2577 (if judgment debtor fails to redeem, “all persons owning liens on the property may redeem” with the exception of owner of a mechanic’s lien), with 1913 Code § 1374 (“creditor having a lien by judgment or mortgage on the property sold”); § 1376 (“senior creditor having a lien, legal or equitable upon the premises sold, or some part thereof, subsequent to the judgment under which the sale was made”); and, as discussed, § 1377. And, the Legislature retained these different formulations in subsequent codifications of our state statutes. See 1928 Rev.Code Ariz. §§ 4227 through 4235; 1939 A’iz.Code §§ 24-301 through 24-309. ¶ 17 Even if Western Land & Cattle did not resolve the issue presented here, applying well established rules of statutory construction, we would still conclude Arizona HOA’s assessment lien entitled it to redeem the property under AR.S. § 12-1283. Both AR.S. § 12-1281 and AR.S. § 12-1283 relate to the same subject—redemption—but while A.R.S. § 12-1281 deals generally with redemption, AR.S. § 12-1283 deals with redemption following foreclosure of a mortgage or lien. It is, thus, a more specific statute than A.R.S. § 12-1281, as the history of both statutes reflect. ¶ 18 Before 1901, Arizona’s territorial statutes did not allow redemption. That changed with the adoption of the 1901 Code. What is now A.R.S. § 12-1281 began as § 2576 in the 1901 Code. The redemption statutes contained in the 1901 Code applied to all execution sales including sales under “order of court in foreclosure suits” unless the property sold at the sale was “less than a leasehold of two years’ unexpired time.” 1901 Code § 2575. Although the mortgage foreclosure statutes contained in the 1901 Code authorized redemption following judicial foreclosure of a mortgage, see § 3275 (when mortgage foreclosed, court shall render judgment for the entire amount found to be due, direct mortgaged property to be sold to satisfy the same; sale under execution “shall be subject to redemption as in cases of sale under execution”), that authorization contained little specificity and the redemption statutes did not make any specific references to redemption following a mortgage foreclosure sale. In 1913, Arizona’s First Legislature enacted a provision that required all mortgages to be foreclosed judicially. See 1913 Code § 4113. The foreclosure statutes contained in the 1913 Code also authorized redemption following foreclosure, but that authorization simply tracked the general language used in the 1901 Code. See id. § 4116. The First Legislature, however, also adopted § 1377, which dealt directly and specifically with redemption following the sale of property “upon foreclosure of mortgage or other lien,” and in that context, the Legislature not only identified who could redeem, but also the order and timing of redemption if multiple parties were entitled to redeem following the foreclosure of a mortgage or other lien. ¶ 19 Given this history, we agree with Arizona HOA that A.R.S. § 12-1283(B) governs redemption following the judicial foreclosure of a mortgage or other lien. See generally Fidelity Nat. Fin. Inc. v. Friedman, 225 Ariz. 307, 310, ¶ 15, 238 P.3d 118, 121 (2010) (legislative intent can be discovered by examining development of a particular statute); Webb v. Dixon, 104 Ariz. 473, 475, 455 P.2d 447, 449 (1969) (when two statutes are applicable to same subject, one general in scope and the other more limited, more specific statute controls). Accordingly, because A.R.S. § 12-1283(B) authorizes “creditors having liens upon the premises sold ... subsequent to the lien so foreclosed” to redeem, Arizona HOA was entitled to redeem the property. CONCLUSION ¶ 20 We vacate the superior court’s order in favor of the Bank and remand this matter to the court and instruct it to enter an order directing the Sheriff to issue Arizona HOA a Sheriffs Deed to the property upon payment of the redemption amount. As the prevailing party on appeal, we also award Arizona HOA its taxable costs on appeal, contingent upon its compliance with Arizona Rule of Civil Appellate Procedure 21. . Although the Arizona Legislature amended this statute after the superior court entered its judgment in this matter, the revisions are immaterial to our resolution of this appeal. Thus, we cite the current version of the statute. Except for a minor modification to one section of the redemp tion statutes in 2010, see A.R.S. § 12-1286 (Supp.2015), the Legislature has not amended any of the state redemption statutes since 1963. Thus, unless otherwise stated, we cite the current version of these statutes in this opinion. . Section 12-1281 also authorizes the "judgment debtor or his successor in interest in the whole or any part of the property” to redeem. . Section 12-1282 (2003) specifies timing requirements for redemption. . The issue presented here is one of law. Thus, our review is de novo. Ariz. Citizens Clean Elections Comm’n v. Brain, 234 Ariz. 322, 325, ¶ 11, 322 P.3d 139, 142 (2014). . Under current Arizona law an attachment lien begins when the writ of attachment is levied on the defendant’s property. A.R.S. § 12-1532(A) (2003). . At oral argument in this court, the Bank, through counsel, suggested the supreme court's discussion of the attachment lien and the right of the second creditor to redeem the property based on that lien was "dicta.” See generally Alejandro v. Harrison, 223 Ariz. 21, 25, ¶ 12, 219 P.3d 231, 235 (App.2009) ("Obitur dictum " is statement of general law made by a court that is not necessary to its decision, and thus, not precedential, but merely "persuasive”). We disagree. The dispute between the parties in Western Land & Cattle centered on their competing claims to redeem the property and the priority of their redemption rights. Thus, the supreme court’s conclusion that the second creditor possessed a statutory right to redeem superior to the redemption rights of the third creditor was necessary to the decision. . The only issue decided in this opinion is whether Arizona HOA was entitled to redeem the property under A.R.S. § 12—1283(B). We need not decide, as Arizona HOA also argues, whether A.R.S. § 12-1281 only applies to sales of property following execution of judgments.

OPINION NORRIS, Judge: ¶ 1 Donald Wayne Dalton appeals from his conviction and sentence for one count of burglary in the second degree, a class 3 felony. After searching the record on appeal and finding no arguable question of law that was not frivolous, Dalton’s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and asked this court to search the record for fundamental error. This court also granted counsel’s motion to allow Dalton to file a supplemental brief in propria persona. After reviewing both briefs and the record, we determined the record failed to demonstrate whether the superior court had complied with its obligation under Arizona Rule of Criminal Procedure 18.5(h) to instruct the jury it needed to begin its deliberations anew when it replaced a deliberating juror with the alternate. Accordingly, we requested counsel for the parties to brief whether the court committed fundamental, prejudicial error by apparently failing to comply with Rule 18.5(h). Having reviewed that briefing and given the State’s acknowledgment that the superior court did not instruct the jury to begin its deliberations anew when the alternate joined it, we agree with Dalton the court’s non-compliance with Rule 18.5(h) constituted fundamental, prejudicial error. Accordingly, we vacate Dalton’s conviction and sentence for burglary in the second degree and remand for a new trial. FACTS AND PROCEDURAL BACKGROUND ¶ 2 On May 2, 2013, police responded to a 911 caller who reported a man was removing a swamp cooler from the roof of a vacant house. The caller told dispatch he saw the man who had been on the roof along with a second man, who turned out to be Dalton, walking away from the house and down the alley. Dalton and the man who had been on the roof, Brian Day, matched the descriptions given by the caller. An officer arrived at the scene and saw that the swamp cooler had been removed from the roof. The officer detained the two men and questioned them. ¶ 3 In the questioning recorded by the police at the scene, Dalton first denied being inside the house. After further questioning, however, he admitted he had been inside. He denied any wrongdoing and told the officer that Day was acting “stupid,” and he was trying to “get Brian to leave the premises and [to] stop doing what he was doing because [he] didn’t want to see him being an idiot and getting in trouble.” Day did not tell the police Dalton was helping him with the swamp cooler. ¶ 4 On January 21, 2014, a grand jury indicted Dalton for burglary in the second degree and criminal damage. At trial, Dalton testified he had been “living homelessly,” and had occasionally slept in the house. He explained that on the day police arrested him, he had been inside the house sleeping when he heard a banging noise. He went outside through a back window and saw the swamp cooler hanging “over [his] head.” He saw Day, who appeared “not very coherent,” mumbling and talking to himself. Dalton testified he tried to get Day to leave the house with him so Day would not hurt himself, and he had first lied to police about being in the house because he did not want to get “wrapped up with Brian Day’s stupidity.” ¶ 5 After final instructions and closing argument, the court designated the alternate juror by lot and advised the jury the alternate could be called back if “something happens overnight.” The court then excused the alternate. The jurors retired to consider their verdicts at 2:15 p.m., and the court recessed. At 3:22 p.m., the court reconvened—with counsel present telephonically and Dalton’s presence waived—to consider a question from the jury. The court provided a written response to the question and recessed again at 3:23 p.m. At 4:21 p.m., the court reconvened with counsel present telephonically, and it advised counsel the jury had decided to “quit for the day,” but that one of the jurors had informed the bailiff she could not return the next day. The court told counsel its solution was to “bring the alternate back and have them start over at 11:00 tomorrow.” The court and counsel then agreed the court would telephone the alternate and inform her that she had to return the next day at 11:00 a.m. to begin deliberations with the other jurors. ¶ 6 At 11:00 a.m. the next day, the jury reconvened. Although the day before the court had told counsel it would have the jury “start over” when the alternate joined it, the record contains no indication—and the parties do not argue otherwise—that the court actually instructed the jury to “start over.” Neither Dalton nor the State brought the court’s failure to comply with Rule 18.5(h) to its attention. The jury returned to the courtroom to announce its verdict 43 minutes later, at 11:43 a.m. The trial transcript, however, reflects the jury actually deliberated less than 43 minutes as the court apologized for making the jury wait before it could return its verdicts. The jury found Dalton guilty of burglary in the second degree, but not guilty of criminal damage. The court polled the jury, and the individual members of the jury confirmed the verdicts. DISCUSSION I. Non-Compliance with Rule 18.5(h) ¶ 7 In his supplemental brief filed at our request, Dalton argues the court failed to comply with its obligation under Rule 18.5(h) and, therefore, committed fundamental, prejudicial error entitling him to a new trial. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-21, 115 P.3d 601, 607-08 (2005). We agree. ¶ 8 In State v. Guytan, 192 Ariz. 514, 968 P.2d 587 (App.1998), this court explained the inherent problems when a new juror joins deliberations that have already begun: Where an alternate juror is inserted into a deliberative process in which some jurors may have formed opinions regarding the defendant’s guilt or innocence, there is a real danger that the new juror will not have a realistic opportunity to express his views and to persuade others. Moreover, the new juror will not have been part of the dynamics of the prior deliberations, including the interplay of influences among and between jurors, that advanced the other jurors along their paths to a decision. Nor will the new juror have had the benefit of the unavailable juror’s views. Finally, a lone juror who cannot in good conscience vote for conviction might be under great pressure to feign illness in order to place the burden of decision on an alternate. Id. at 518, ¶ 11, 968 P.2d at 591 (quoting People v. Burnette, 775 P.2d 583, 588 (Colo.1989)). The requirement that the jury begin deliberations anew guards against these problems. If deliberations have begun, some issues already may have been decided as a practical matter. In that case, there is an inherent risk that the resulting verdict as to those issues will reflect only the views of the original jurors, thereby depriving the defendant of his right to unanimity from the requisite number of jurors. Id. at 521, ¶ 22, 968 P.2d at 594 (emphasis added). Article 2, Section 23, of the Arizona Constitution guarantees a defendant the right to a unanimous jury verdict in a criminal ease. The right to a unanimous jury verdict is not met, however, unless the jurors reach them consensus through deliberations which are the common experience of all of them. It is not enough that [the jurors] reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other [jurors]. Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member’s viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint____[A] defendant may not be convicted except by [jurors] who have heard all the evidence and argument and who together have deliberated to unanimity. People v. Collins, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742, 746 (1976) (emphasis added). For these reasons, the error here was fundamental. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. Thus, the issue becomes whether the error was also prejudicial. ¶ 9 Not every failure by a trial court to instruct the jury that it must begin deliberations anew when it replaces a juror will constitute reversible error. Guytan, 192 Ariz. at 521, ¶ 23, 968 P.2d at 594. Whether such a failure is reversible depends on whether it is prejudicial—an inquiry that overlaps ovfundamental error review under Henderson. Prejudice under fundamental error review “is a fact-intensive inquiry, the outcome of which will ‘depend [] upon the type of error that occurred and the facts of a particular case.’ ” State v. Dickinson, 233 Ariz. 527, 531, ¶ 13, 314 P.3d 1282, 1286 (App.2013). To show prejudice, Dalton bears the burden of showing that a reasonable jury “could have reached a different result” had it been properly instructed under Rule 18.5(h). See Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609. Guytan—and other courts that have considered whether a defendant was prejudiced when a trial court failed to instruct a jury init must begin deliberations anew when it replaces a juror —recognized a court should take into account the following factors to determine prejudice: first, whether other instructions given by whethcourt to the jury ameliorated the failure to instruct the jury to begin deliberations anew; second, the length of time the jury deliberated before and after the substitution; and third, the strength of the evidence against the defendant. Applying these factors here, defenerror was prejudicial. See Guytan, 192 Ariz. at 518-19, ¶¶ 12-13, 968 P.2d at 591-92. ¶ 10 First, none of the court’s other instructions to the jury ameliorated the failure to instruct the jury it was required to begin its deliberations anew when the alternate joined it. Although we recognize—as the State argues in its supplemental brief—that in its preliminary instructions, the court instructed the jurors they should form their final opinions only after they have had “an opportunity to discuss the case with each other in the jury room at the end of the trial,” and in its final instructions told the jury, “[d]o not deliberate unless all of you are present,” and, “[d]o not take a vote until you’ve discussed all the evidence in the case,” neither those instructions nor the other instructions noted by the dissent can be understood as instructing the jurors that when the alternate joined them, they were to start over again from the proverbial square one. ¶ 11 In Guytan, other instructions given to the jury by the court after the alternate joined the jury ameliorated the risk of confusion. Those instructions—unlike the instructions here—specifically required all of the jurors, including the alternate, to “actively participate” and to return a verdict “that would represent individual thinking expressed collectively.” Id. at 518, ¶ 6, 968 P.2d at 591. Thus, although the court in Guytan failed to comply with Rule 18.5(h), its instructions—given to the jurors after the jury had been reconstituted—focused the jurors’ attention on what they were individually and collectively required to do after the alternate joined them. That did not happen here. The court’s general instructions to the jurors—instructions that generally explained what they needed to do as jurors and given before the court replaced the deliberating juror with the alternate—were not comparable to or even a reliable substitute for an instruction that explicitly informed the reconstituted jury that it had to start over again. ¶ 12 Second, the jury deliberated for approximately two hours before the alternate joined it, but for less than 43 minutes after-wards. See supra ¶ 6. Thus, unlike the situation in Guytan, the bulk of the jury’s deliberations here occurred before the alternate joined the panel. Given this, the record provides no reasonable assurances that the reconstituted jury began deliberations anew, with each juror fully participating. ¶ 13 Third, the State’s case against Dalton was not overwhelming, and a jury could have reached a different result had it been instructed pursuant to Rule 18.5(h). Dalton consistently denied he had been on the roof, and indeed, the 911 caller never reported to dispatch or the police he had seen Dalton on the roof, or even acting as a lookout. And, although Dalton initially misled police about being inside the house, see supra ¶3, he consistently denied he had assisted Day in attempting to remove the swamp cooler. This is an important point. Contrary to the State’s argument in its supplemental brief, Dalton never “essentially admitted he was Day’s accomplice ... when he told [the police] that it was ‘stupid to help’ Day because ‘he could have gotten [him] self in so much trouble.’ ” Instead, as the police recording at the scene makes clear, Dalton actually told the police he had only been trying to “get Brian to leave the premises and [to] stop doing what he was doing because [he] didn’t want to see him being an idiot and getting in trouble” and he “was scared because [he] just realized how stupid it is to help somebody and [he] could have gotten [him] self into so much trouble over it.” ¶ 14 Under the circumstances presented here, we cannot say beyond a reasonable doubt that the jury would have reached the same result had the superior court properly instructed it to begin deliberations anew when the alternate joined it. Cf. State v. Ruiz, 236 Ariz. 317, 323, ¶ 18, 340 P.3d 396, 402 (App.2014) (applying fundamental error review; error in instructing jury was prejudicial when appellate court could not “say beyond a reasonable doubt that the jury would have convicted” defendant without erroneous jury instruction). The error was, thus, prejudicial. Accordingly, we vacate Dalton’s conviction for burglary in the second degree and remand for a new trial. II. Other Matters ¶ 15 In his in propria persona supplemental brief, Dalton also argues we should vacate his conviction and sentence for two other reasons. ¶ 16 First, Dalton argues the prosecutor “used threats and coercion to try to make” him accept a plea in this ease. Dalton has not explained when and under what circumstances the prosecutor allegedly used threats and coercion, and in any event, the record does not support this argument. Moreover, even if we were to assume the prosecutor used threats and coercion, the alleged threats and coercion had no impact on Dalton as he did not plead guilty. ¶ 17 Second, Dalton argues the State violated his speedy trial rights, asserting the prosecutor’s reasons for requesting continuances did not constitute extraordinary circumstances. We reject this argument. ¶ 18 As noted above, a grand jury indicted Dalton on January 21, 2014. Before he was indicted in January 2014, a prior grand jury had indicted Dalton for criminal trespass in the first degree. On the State’s motion, on March 13, 2014, the superior court dismissed the criminal trespass prosecution without prejudice, and the State proceeded with the charges against Dalton returned by the grand jury in the January 2014 indictment. ¶ 19 When the State elects to refile charges against a defendant, Rule 8 time limits “commence! ] to run from the date” of the second arraignment. See State v. Johnson, 113 Ariz. 506, 510, 557 P.2d 1063, 1067 (1976). Dalton’s Rule 8 time limits thus began to run on January 21, 2014. On May 5, 2014, defense counsel moved to continue the trial to the week of June 9, 2014. The State did not object to counsel’s motion, and the court granted the motion and excluded time between May 28 and June 9, 2014. Dalton’s new last day became July 10, 2014. ¶ 20 On June 2, 2014, the State moved to continue the trial because Dalton had an older, unrelated pending case. Defense counsel objected to the continuance, but the superior court granted the continuance, excluded time between June 9 and July 28, 2014, and set Dalton’s last day as August 28, 2014. ¶ 21 On July 7, 2014, the State moved to continue the trial because the prosecutor in Dalton’s older case was in trial on another matter and the State’s forensic interviewer in Dalton’s older ease was on maternity leave. Over defense counsel’s objection, the superi- or court found extraordinary circumstances, continued the trial, excluded time between July 28 and August 18, 2014, and set Dalton’s last day as September 18, 2014. Then, on August 12, 2014, defense counsel moved to continue the trial because of a scheduling conflict. Dalton, waived time and the court excluded time between August 18 and October 28, 2014, and set Dalton’s last day as December 4, 2014. ¶22 “Continuances are, to a great extent, discretionary with the trial court, and an appellate tribunal will not review its action in this respect unless it clearly appears that the discretion has been abused.” State v. Miller, 111 Ariz. 321, 322, 529 P.2d 220, 221 (1974) (citation omitted) (internal quotation marks omitted). Here, the superior court did not abuse its discretion in granting the State’s motions to continue given the pendency of Dalton’s older ease, the prosecutor’s trial conflict, and the unavailability of the State’s forensic interviewer. ¶ 23 Even if we assume, however, the superior court abused its discretion in granting one or both of the State’s motions to continue, Dalton has not demonstrated any prejudice. See State v. Vasko, 193 Ariz. 142, 143, ¶ 3, 971 P.2d 189, 190 (App.1998) (“[I]n the absence of a showing of prejudice, a speedy trial violation raised as error on appeal after conviction does not warrant reversal of that conviction.”). Although he argues Day was no longer available to testify on his behalf because of the continuances, he has not explained how Day’s absence prejudiced him. See State v. Rose, 24 Ariz.App. 25, 27, 535 P.2d 617, 619 (1975) (defendant’s allegation of prejudice resulting from unavailable witness insufficient when no evidence presented “which would indicate that any specific unavailable witness’s testimony would have been beneficial”). Accordingly, on the record before us, Dalton has not shown prejudice. ¶ 24 Dalton also argues the superior court was not entitled to sentence him as a category two repetitive offender. Because we are remanding for a new trial, we briefly address whether the superior court could sentence Dalton as a category two repetitive offender if convicted on remand. ¶ 25 Under the sentencing statutes in effect on the date of the alleged burglary offense—May 2, 2013—the superior court could sentence Dalton as a category two repetitive offender if it finds he has been convicted of “three or more felony offenses that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions.” Ariz. Rev. Stat. (“A.R.S.”) § 13-703(B)(1) (Supp. 2012). Before trial, the State alleged Dalton had been convicted of eight prior felonies from the State of Washington. Dalton could be sentenced as a category two repetitive offender if he is convicted on remand and the State properly proves that at least two of these Washington felonies meet the requirements of A.R.S. § 13-703(B)(1). See State v. Smith, 228 Ariz. 126, 129-31, ¶¶ 12-18, 263 P.3d 675, 678-80 (App.2011) (prior conviction counted with current conviction to determine whether defendant qualifies as a category one repetitive offender under the 2008 version of A.R.S. § 13-703(A) that, inter alia, required defendant to be convicted of two felony offenses not committed on the same occasion). ¶ 26 Alternatively, the court could sentence Dalton as a category two repetitive offender if it finds he was “at least eighteen years of age or has been tried as an adult and stands convicted of a felony and has one historical prior felony conviction.” A.R.S. § 13-703(B)(2) (Supp. 2012). The State alleged that one of the eight prior Washington felonies included a conviction for “controlled substance possession.” At the time of Dalton’s alleged burglary offense, A.R.S. § 13-105(22)(e) (Supp. 2012) defined a historical prior felony conviction as including “[a]ny offense committed outside the jurisdiction of this state that was punishable by that jurisdiction as a felony” and which was “committed within the five years immediately preceding the date of the present offense.” Although the record reflects Dalton committed the Washington controlled substance possession felony in either March or June 2007, the record contains evidence that reflects he was subsequently incarcerated for various periods of time for other offenses. Time spent incarcerated is excluded from the five-year calculation. Id. (“Any time spent ... incarcerated is excluded in calculating if the offense was committed within the preceding five years.”); see State v. Rodriguez, 227 Ariz. 58, 60-61, ¶¶ 8-11, 251 P.3d 1045, 1047-48 (App.2010) (statute excluding time spent incarcerated from calculation of statutory period for a historical felony not limited to time spent as a result of a conviction of a crime, but also includes time spent in jail before sentencing); State v. Derello, 199 Ariz. 435, 439, ¶ 22, 18 P.3d 1234, 1238 (App.2001) (plain meaning of phrase “any time spent incarcerated” indicates Legislature intended to exclude “all time that a defendant spent in prison, regardless of whether that incarceration was for the particular prior conviction at issue or for some other crime”). Accordingly, if the State properly proves Dalton committed this particular Washington offense within five years of the alleged burglary, excluding time spent incarcerated, then the superior court could sentence him as a category two repetitive offender under A.R.S. § 13-703(B)(2). CONCLUSION ¶ 27 For the foregoing reasons, we vacate Dalton’s conviction and sentence for burglary in the second degree and remand for a new trial. . Rule 18.5(h) states, in relevant part, "If an alternate joins the deliberations, the jury shall be instructed to begin deliberations anew.” . We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Dalton. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). . In State v. Tucker, a capital case, the Arizona Supreme Court held the superior court was not required to instruct under Rule 18.5(i) when an alternate juror joined the jury after it had completed the aggravation phase of the case, but before it had begun the penalty phase. 215 Ariz. 298, 319, ¶ 83, 160 P.3d 177, 198 (2007). Citing Tucker, the dissent asserts it stands for the proposition that a "substitute juror can properly reach a verdict without having participated in every discussion relevant to the ultimate issue as long as the substitute juror fully deliberates and reaches an independent verdict.” See infra ¶ 39. First, the supreme court did not say this. Second, as noted, Tucker is a capital case, and thus the aggravation phase is separate from the penalty phase, see A.R.S. § 13-752 (2015), and the alternate joined the penalty phase deliberations before they had begun. Accordingly, the supreme court held the superior court “was not required to instruct the jury to begin deliberations anew because such an instruction is required only where a substitution is made after deliberations have begun.” Tucker, 215 Ariz. at 319, ¶ 83, 160 P.3d at 198. . See People v. Collins, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742 (1976); State v. Gomez, 138 Idaho 31, 56 P.3d 1281 (Idaho App.2002); David B. Sweet, Annotation, Propriety, under state statute or court rule, of substituting state trial juror with the alternate after case has been submitted to jury, 88 A.L.R.4th 711 (2015); cf. State v. Martinez, 198 Ariz. 5, 6 P.3d 310 (App.2000). . The dissent argues that because, when polled, each of the jurors, including the alternate, confirmed the guilty verdict was his or her true verdict, the jurors must have discussed all of the evidence in the case before they voted. See infra ¶¶ 33, 41. Not only is this suggestion speculative, but as explained in Guytan, a juror who joins the deliberations mid-stream may not have a realistic opportunity to express his or her views and to persuade others. And, to put the point plainly, a juror who joins in mid-stream may well be pressured by the other jurors to "go along" with what they have already discussed or even decided. . The dissent argues "there is no evidence—or even suggestion—that the jurors decided 'some issues' relating to Dalton’s conviction before the substitute juror joined in deliberations.” See infra ¶ 35. The dissent essentially rests this argument on the assertion that this was an easy case and the jurors were presented with only one question—-whether they believed Dalton’s testimony he did not intend to assist Day in removing the swamp cooler. See infra ¶¶ 35-37. To answer this question, the jury had to decide whether Dalton acted as an accomplice—an inquiry that is not as simple as the dissent portrays—or whether he was merely present at the crime scene—an inquiry that requires the finder of fact to consider multiple issues. . Although the State alleged Dalton committed this offense on June 10, 2007, the criminal history portion of the pre-sentence report reported that he had committed the offense on March 10, 2007.

Justice TIMMER, opinion of the Court: ¶ 1 Although the Fourth Amendment generally prohibits warrantless searches, they are permitted if there is free and voluntary consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Butler, 232 Ariz. 84, 87 ¶ 13, 302 P.3d 609, 612 (2013). Consent cannot be given “freely and voluntarily” if the subject of a search merely acquiesces to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). ¶ 2 Arizona’s implied consent law for watercraft operators provides that “[a]ny person who operates a motorized watercraft that is underway within this state gives con sent ... to a test or tests of the person’s blood, breath, urine or other bodily substance” if arrested for operating a motorized watercraft while under the influence of alcohol or drugs (“OUI”). A.R.S. § 5-395.03(A). Nevertheless, the statute requires that an arrestee “unequivocally manifest assent to the testing by words or conduct” before officers can conduct warrantless testing. Cf. Carrillo v. Houser, 224 Ariz. 463, 467 ¶ 19, 232 P.3d 1245, 1249 (2010) (interpreting the implied consent law for motorists). The issue here is whether, for Fourth Amendment purposes, an operator arrested for OUI voluntarily consented to giving samples of his blood after a deputy sheriff advised him that “Arizona law requires you to submit” to breath, blood, or other bodily substance tests chosen by law enforcement. ¶ 3 In a concurrently issued opinion, we hold that showing only that consent was given by a drunk-driving arrestee in response to an almost identical admonition fails to prove that an arrestee’s consent was freely and voluntarily given. State v. Valenzuela, CR-15-0222-PR, slip op. at 2 ¶ 2, 239 Ariz. 299, 301, 371 P.3d 627, 629, 2016 WL 1637656 (Ariz. Apr. 26, 2016). We adopt the reasoning in Valenzuela and reach the same conclusion here. I. BACKGROUND ¶ 4 In reviewing the denial of a defendant’s motion to suppress, we consider only “evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court’s ruling.” State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614 (2012). ¶ 5 In June 2013, Jason Brown was operating a boat on Apache Lake when a uniformed deputy sheriff stopped him for illegally towing a water skier after sundown. The deputy smelled alcohol and Brown admitted he had been drinking. After conducting field sobriety tests, the deputy arrested Brown for OUI and transported him to an aid station used by the sheriffs office. ¶ 6 At that station, the deputy directed Brown to a phlebotomist chair and read to him from an “OUI Admonishment” form, which provided: Arizona [l]aw requires you to submit and successfully complete a test of breath, blood or other bodily substance as chosen by the law enforcement officer to determine alcohol concentration or drug content. A law enforcement officer may require you to submit to one or more test[s]. You are required to successfully complete each of the tests. Will you submit to the specified tests? Brown did not ask any questions about the admonition and agreed to submit to a blood draw, which the deputy performed. Brown also signed a form that stated, “I have verbally and expressly granted permission for breath, blood or other bodily substances to be taken.” After subsequent testing showed that Brown had an alcohol concentration (“AC”) of .199, the State charged him with two counts of OUI and one count of extreme OUI. See A.R.S. §§ 5-395(A), -397(A). ¶ 7 Brown moved to suppress the test results. He argued he did not voluntarily consent to the test, and the warrantless search therefore violated his Fourth Amendment rights. He also challenged the constitutionality of § 5-395(L), which provides that a person commits a misdemeanor by refusing an officer’s request for a sample of blood, urine, or other bodily substance already collected from an OUI suspect. ¶ 8 The justice court conducted a suppression hearing, at which the deputy and Brown testified. The deputy testified that he neither informed Brown that he had the right to withhold consent nor told him that the deputy would seek a search warrant if Brown refused consent. According to Brown, after the deputy read the admonition, Brown thought he “didn’t have a choice” and “had to give blood.” He was “never told any other option except [that] the [s]tate [l]aw required [him] to give blood at that point.” The record does not reflect whether the deputy told Brown about the administrative consequences for refusing consent. The court denied Brown’s motion to suppress, reasoning that his consent was voluntary because the admonition provided a choice whether to submit to testing, and nothing showed that his will was overborne. The court also ruled that § 5-395(L) was constitutional. A jury subsequently found Brown guilty on all charges, and the court imposed sentences. ¶ 9 The superior court, acting in its appellate capacity, affirmed. The court of appeals declined to accept jurisdiction of Brown’s petition for special action review. We granted his petition for review because it presents a recurring legal question of statewide importance. We have jurisdiction pursuant to article 6, section 5, of the Arizona Constitution and A.R.S. § 12-120.24. II. DISCUSSION ¶ 10 We review the denial of a motion to suppress evidence for abuse of discretion, considering the facts in the light most favorable to sustaining the ruling. State v. Wilson, 237 Ariz. 296, 298 ¶ 7, 350 P.3d 800, 802 (2015). “An error of law committed in reaching a discretionary conclusion may, however, constitute an abuse of discretion.” Busso-Estopellan v. Mroz, 238 Ariz. 553, 554 ¶ 5, 364 P.3d 472, 473 (2015) (citation omitted). A. Fourth Amendment violation ¶ 11 Brown argues that, under Bumper, his consent to providing a blood sample must be deemed involuntary because he consented only after the deputy said that Arizona law required him to submit to testing, prompting him to acquiesce to an assertion of lawful authority. The State responds that Bumper is distinguishable because the admonition here correctly stated Arizona law, and Brown could have chosen to revoke the consent supplied by the implied consent law. It also argues we should defer to the justice court’s ruling that the totality of the circumstances demonstrated that Brown freely and voluntarily gave consent. ¶ 12 We addressed similar arguments in Valenzuela, which concerned a nearly identical admonition given to an arrestee suspected of driving under the influence of alcohol or drugs (“DUI”). See Valenzuela, CR-15-0222-PR, slip op. at 3 ¶ 5, 239 Ariz. at 301, 371 P.3d at 629-30. For the reasons explained there, we hold that the State failed to prove by a preponderance of the evidence that Brown’s consent was voluntary. By telling Brown that Arizona law required him to submit to and complete testing, an admonition that does not mirror the implied consent statute, the deputy invoked lawful authority and effectively proclaimed that Brown had no right to resist the search. See id. at 4-12 ¶¶ 10-24, 239 Ariz. at 302-07, 371 P.3d at 630-35. At the time of the admonition, Brown had been arrested, taken to an aid station, and seated in a phlebotomy chair. Nothing in the record suggests that the deputy retracted the assertion of lawful authority to conduct a warrantless search or that other circumstances existed to dispel the eoerciveness of the admonition before Brown granted consent. Consequently, Brown’s “consent,” like the arrestee’s consent in Valenzuela, was involuntary, and the justice court erred by finding otherwise and then denying the motion to suppress the test results on that basis. See id. at 10-11 ¶ 22, 239 Ariz. at 306, 3714 P.3d at 634; Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2423, 180 L.Ed.2d 285 (2011) (stating that the exclusionary rule “bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation”). B. Application of the exclusionary rule ¶ 13 The State alternatively argues, as it did in the justice court, that the trial court properly denied the motion to suppress because the inevitable discovery exception to the exclusionary rule applies here. Cf. State v. Roseberry, 237 Ariz. 507, 508 ¶ 7, 353 P.3d 847, 848 (2015) (“We will affirm a trial court’s decision if it is legally correct for any reason.”). Under that exception, a court can admit illegally obtained physical evidence in appropriate circumstances if the state proves by a preponderance of the evidence that the disputed evidence inevitably would have been seized by lawful means. State v. Ault, 150 Ariz. 459, 465, 724 P.2d 545, 551 (1986). But see id. (“We choose not to allow the inevitable discovery doctrine to reach into homes of citizens in the factual situation before us.”). The State contends that the exception applies because if Brown had refused consent, the deputy would have obtained a search warrant and legally drawn Brown’s blood. ¶ 14 The State’s view of the inevitable discovery exception would swallow the rule. The exception does not turn on wheth er the evidence would have been discovered had the deputy acted lawfully in the first place. See State v. Davolt, 207 Ariz. 191, 204 ¶ 37, 84 P.3d 456, 469 (2004) (“The State cannot claim inevitable discovery and thereupon be excused from all constitutional requirements. Such a claim amounts to the unacceptable assertion that police would have done it right had they not done it wrong.”); see also United States v. Echegoyen, 799 F.2d 1271, 1280 n. 7 (9th Cir.1986) (rejecting application of the inevitable discovery exception because “to excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a warrant would completely obviate the warrant requirement of the fourth amendment”). Rather, the exception applies if the evidence would have been lawfully discovered despite the unlawful behavior and independent of it. See, e.g., Nix v. Williams, 467 U.S. 431, 449-50, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (applying exception after an unlawful confession led police to victim’s body because “volunteer search teams would have resumed the search had [defendant] not earlier led the police to the body and the body inevitably would have been found”); State v. Jones, 185 Ariz. 471, 481, 917 P.2d 200, 210 (1996) (holding that despite warrant-less search of a car, police inevitably would have found contents during subsequent inventory search); State v. Lamb, 116 Ariz. 134, 138, 568 P.2d 1032, 1036 (1977) (concluding that evidence obtained in illegal pat-down search was admissible because defendant would have been arrested on grounds independent of the search and the evidence would have inevitably been discovered during a lawful search incident to arrest). ¶ 15 The sheriffs office would not have inevitably obtained Brown’s blood sample by lawful, independent means. It could only have done so by means of a search warrant. But because the inevitable discovery exception cannot excuse the failure to secure a warrant in the first place, the exclusionary rule applies. Consequently, we cannot uphold the trial court’s ruling under the inevitable discovery exception to the exclusionary rule. ¶ 16 The State also argues that we should apply the good-faith exception to the exclusionary rale to uphold the trial court’s ruling. See Davis, 564 U.S. 229, 131 S.Ct. at 2429 (“An officer who conducts a search in reliance on binding appellate precedent does no more than ‘ac[t] as a reasonable officer would and should act’ under the circumstances____The deterrent effect of exclusion in such a case can only be to discourage the officer from ‘do[ing] his duty.’”) (internal quotation marks and citations omitted). We applied the good-faith exception in Valenzuela to hold that suppression of blood and breath test results there was unwarranted. Valenzuela, CR-15-0222-PR, slip op. at 15 ¶ 32, 239 Ariz. at 309, 371 P.3d at 637. But unlike the situation in Valenzuela, the State here waived this argument by failing to raise it until oral argument before this Court. See State v. Glassel, 211 Ariz. 33, 57 ¶ 101 n. 17, 116 P.3d 1193, 1217 n. 17 (2005) (holding that defendant waived issues by not raising them before trial or appellate courts). ¶ 17 In sum, the State has not demonstrated that an exception to the exclusionary rale applies here to justify the trial court’s denial of Brown’s motion to suppress. We therefore reverse Brown’s convictions and sentences for committing OUI under §§ 5— 395(A)(2) and -397(A), which required proof of Brown’s AC. Brown’s conviction for committing OUI under § 5-395(A)(l) does not depend on the AC evidence. Because we do not have the trial record before us, we remand to the justice court to determine whether admission of the AC evidence was harmless error as to that conviction. See Davolt, 207 Ariz. at 205 ¶ 39, 84 P.3d at 470 (applying harmless error review to an erroneous denial of a motion to suppress). C. Constitutionality of A.R.S. § 5-395(L) ¶ 18 Brown argues that § 5-395(L) violates the Fourth Amendment and is unconstitutionally vague and overbroad. The statute provides that if a law enforcement officer has probable cause to believe that a person committed OUI and a sample of blood, urine, or other bodily substance has been taken from that person for any reason, a sample must be provided to the officer upon request. “A person who fails to comply with this subsection is guilty of a class 1 misdemeanor.” A.R.S. § 5-395(L). This provision is known as the “medical purposes exception” and mirrors A.R.S. § 28—1388(E), which is applicable to DUIs. See Carrillo, 224 Ariz. at 466 ¶ 17, 232 P.3d at 1248. ¶ 19 Generally, only a person injured by a statute can challenge its constitutionality. State v. Powers, 117 Ariz. 220, 225, 571 P.2d 1016, 1021 (1977). The State did not charge Brown under § 5-395(L), and the deputy did not invoke this statute to induce Brown’s consent or obtain the blood sample. Nor does Brown argue that § 5-395(L), or any other law, makes it a crime for an operator to refuse consent under the implied consent law. Because § 5-395(L) is inapplicable and Brown lacks standing to challenge it, we do not address his arguments. III. CONCLUSION ¶ 20 We reverse Brown’s convictions and resulting sentences for committing OUI under §§ 5-395(A)(2) and -397(A). We remand to the justice court to determine if admission of AC evidence was harmless error concerning Brown’s conviction for OUI under § 5-395(A)(1). Finally, we vacate the superior court’s judgment. . The Supreme Court is currently considering whether, in the absence of a warrant, a state may criminalize a person's refusal to submit to a test to detect a person's AC. See Bernard v. Minnesota, — U.S.-, 136 S.Ct. 615, 193 L.Ed.2d 495 (2015); Birchfield v. North Dakota, — U.S.-, 136 S.Ct. 614, 193 L.Ed.2d 494 (2015).

OPINION SWANN, Judge: ¶ 1 A.R.S. § 38-711(7) defines the “compensation” on which employee and employer contributions to the Arizona State Retirement System (“Retirement System” or “ASRS”) are calculated. The Retirement System interprets that statute to exclude from “compensation” the City of Chandler’s payment of contributions to an eligible deferred compensation plan, and the superior court upheld that interpretation. We disagree. We hold that § 38-711(7) defines “compensation” to include money paid by an employer to a deferred compensation plan, even if the employee could not elect to immediately receive the deferred compensation as eash-in-hand. FACTS AND PROCEDURAL HISTORY ¶ 2 The Retirement System is a defined benefit plan, as described in 26 U.S.C. § 414(j), that provides retirement benefits to eligible employees of the State of Arizona and participating political subdivisions and subdivision entities. AR.S. §§ 38-711(3), (13) and (23), -712. The City of Chandler (“the City”) participates in the Retirement System. The City also operates an eligible deferred compensation plan, as described in 26 U.S.C. § 457(b) (“Deferred Compensation Plan”). ¶ 3 Marla Paddock is a City employee, as was Mary Wade until she retired; both are members of the Retirement System and the Deferred Compensation Plan. Their annual written employment contracts provided that they were entitled to receive (among other things): a “[sjalary” set at an “annual base” amount; and “annual deferred compensation,” expressed in some years’ contracts as a dollar amount and in other years’ contracts as a percentage of the “base salary.” The City deposited the “annual deferred compensation” into the Deferred Compensation Plan in equal bi-weekly payments. ¶ 4 Historically, the City included the “annual deferred compensation” in its calcula tion of the employees’ annual “compensation” to determine employer and employee contributions to the Retirement System under A.R.S. §§ 38-736(A) and -737(A). In 2011, however, the City ceased this practice based on the advice of a Retirement System employee. Wade and Paddock disputed the changed calculation upon discovering it in late 2012. The City then requested a “more formal opinion” from the Retirement System, and the Retirement System responded by letter that “an employer should not report employer contributions to supplemental defined conti'ibution plans on behalf of its contract employees as compensation for ASRS purposes.” ¶ 5 Wade and Paddock served a notice of claim on the Retirement System, and then filed a special action class-action complaint against the Retirement System, its Board, and the City, seeking mandamus, declaratory and injunctive relief. The Retirement System moved to dismiss, arguing that the plaintiffs had failed to exhaust their administrative remedies. The parties also filed cross-motions for summary judgment on the issue of whether the City’s payments to the Deferred Compensation Plan qualified as “compensation” under A.R.S. § 38-711(7) for purposes of Retirement System calculations. ¶ 6 The court granted the Retirement System’s motion to dismiss with respect to Wade, and granted the Retirement System’s motion for summary judgment with respect to Paddock. The court held that the definition of “compensation” set forth in § 38-711(7) “is ambiguous, and there are good arguments for both sides’ interpretations [, b]ut ASRS’s interpretation is the more plausible.” The court held that “compensation” under § 38-711(7) includes “salary or wages from which an employee might make deferred compensation payments,” but does not include employer contributions made “on top of’ the employee’s “gross pay.” ¶ 7 The court entered judgment on its rulings under Ariz. R. Civ. P. 54(b), and stayed further proceedings pending appellate review. Wade and Paddock timely filed a notice of appeal. DISCUSSION ¶ 8 This appeal is limited to two issues: (1) whether summary judgment was properly entered against Paddock based on the conclusion that “compensation” under A.R.S. § 38-711(7) excludes the City’s contributions to the Deferred Compensation Plan; and (2) whether Wade was properly dismissed for failure to exhaust administrative remedies. We answer both questions in the negative. I. SUMMARY JUDGMENT AGAINST PADDOCK WAS IMPROPER BECAUSE “COMPENSATION” UNDER A.R.S. § 38-711(7) INCLUDES THE CITY’S CONTRIBUTIONS TO THE DEFERRED COMPENSATION PLAN. ¶ 9 We review statutory-interpretation questions de novo. Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11, 130 P.3d 978 (2006). Our primary goal is to determine and give effect to the legislature’s intent. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500 (1994). A statute’s own words provide the best and most reliable indicator of the legislature’s intent; accordingly, we generally follow the text as written when it is plain and unambiguous. Id. “We give words their usual and commonly understood meaning unless the legislature clearly intended a different meaning.” State v. Korzep, 165 Ariz. 490, 493, 799 P.2d 831 (1990). Whenever possible, we must interpret a statute so that “no clause, sentence, or word is rendered superfluous, void, contradictory or insignificant.” State v. Superior Court (Kerr-McGee Corp.), 113 Ariz. 248, 249, 550 P.2d 626 (1976). When the language of a statute is ambiguous, we may determine the legislature’s intent by looking to other statutes in pari materia. Pendergast v. Ariz. State Retirement Sys., 234 Ariz. 535, 541, ¶ 18, 323 P.3d 1186 (App.2014). We construe publie-retirement-system statutes to promote a “robust contractual theory of public retirement system benefits.” Id. at ¶ 19. ¶ 10 A.R.S. § 38-711(7) provides: “Compensation” means the gross amount paid to a member by an employer as salary or wages, including amounts that are subject to deferred compensation or tax shelter agreements, for services rendered to or for an employer, or that would have been paid to the member except for the member’s election or a legal requirement that all or part of the gross amount be used for other purposes, but does not include amounts paid in excess of compensation limits established in § 38-746. (Emphasis added.) ¶ 11 Our analysis begins with the plain language crafted by the legislature, which specifically includes “amounts subject to deferred compensation” within the meaning of “compensation.” Because the payments in dispute were contractually required payments contributed to a deferred compensation plan, they must be treated as compensation unless other language in the statute provides a basis for their exclusion. ¶ 12 The statute limits “compensation” to the gross amount paid “as salary or wages.” The Retirement System reads “salary” as meaning only the deferred compensation that “is already included in an employee’s salary or wages.” By this, we understand the Retirement System to argue that “salary” includes only amounts that an employee receives or could elect to immediately receive as eash-in-hand. But the statute does not define the term “salary,” and no other language supplies the limitation on which the Retirement System relies. Indeed, the remaining language is consistent with an interpretation that all deferred compensation payments are “compensation.” For example, if the phrase “amounts that are subject to deferred compensation or tax shelter agreements” were read to mean only “amounts that the employee could otherwise immediately receive in cash,” then the statute’s express inclusion of amounts “that would have been paid to the member except for the member’s election or a legal requirement” would be inconsistent with that definition. ¶ 13 Moreover, the term “salary,” as commonly understood, is not necessarily limited to cash-in-hand payments. See Black’s Law Dictionary 1364 (8th ed.2004) (defining “salary” as “[a]n agreed compensation for services—esp. professional or semiprofessional services—usu. paid at regular intervals on a yearly basis, as distinguished from an hourly basis”); http://www.merriam-webster.com/ dictionary/salary (last accessed January 4, 2016) (defining “salary” as a “fixed compensation paid regularly for services”). ¶ 14 The statute also enumerates multiple types of payments that are excluded from “compensation”—lump-sum termination payments, grievance or claim payments, payments in lieu of fringe benefits, merit awards and performance bonuses, and salary or wages for which the employer has not paid Retirement System contributions. A.R.S. § 38-711(7)(a)-(e), (14). The exclusion of these various forms of remuneration (which do not include deferred compensation) implies that the term “salary” is to be read according to its ordinary meaning, and that payments not excluded are to be included. ¶ 15 The Retirement System contends that because most of the exclusions describe exceptional and irregular types of payments, “salary” must be limited to “the income that the employee normally receives or controls.” We have no quarrel with the notion that “salary” generally means a predetermined, regularly paid sum. Indeed, the deferred compensation payments at issue were both predetermined and regular. But the fact that the statute excludes only certain specific exceptional payments demonstrates that the legislature intended to limit the term “salary” only as expressly stated. See Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281 (1982) (“A well established rule of statutory construction provides that the expression of one or more items of a class indicates an intent to exclude all items of the same class which are not expressed.”). ¶ 16 We reject the Retirement System’s contention that the statute’s reference to amounts “paid to a member” must exclude employer contributions because they are paid directly to the Deferred Compensation Plan. Were we to accept this argument, we would necessarily have to hold that employee contributions are also excluded—a result that would render meaningless the statute’s inclusion of amounts subject to deferred compensation agreements. We also reject the Retirement System’s contention that including employer-contributed deferred compensation in “compensation” means that employer contributions to the Retirement System itself must be included in “compensation.” Such an interpretation would be absurd, yielding compound contribution requirements that would be all but unlimited. There is nothing so sinister in the legislature’s express inclusion of deferred compensation payments within the definition of compensation. ¶ 17 The Retirement System next contends that legislative history supports exclusion of employer contributions. It argues that in 1984, Title 38 was revised to exclude irregular payments from the definition of “compensation” but retain a requirement that “compensation” be limited to salary actually and presently received by the member. The Retirement System’s argument is inconsistent with the legislative history on which it relies. In addition to enumerating exclusions, the amendment altered the base definition of “compensation” from “the amounts actually received by the participant for remuneration for employment from an employer on an hourly or salaried basis” to “the gross amount paid to a participant by an employer as salary or wages, including amounts which are subject to deferred compensation or tax shelter agreements, for services rendered to or for an employer, or which would have been paid to the participant except for the participant’s election or a legal requirement that all or part of the gross amount be used for other purposes.” See 1984 Ariz. Sess. Laws, ch. 293, § 1 (1st Reg. Sess.). The Retirement System’s contention that the pre-1984 requirement of “actual[ ] receipt]” remained by virtue of the use of the term “paid to” in the post-1984 statute ignores the balance of the amendment to the base definition. ¶ 18 We hold, based on the plain language of § 38-711(7), that the term “salary” includes the City’s regular contributions to the Deferred Compensation Plan. This construction is consistent with statutes in pari materia. Elsewhere in Title 38, in § 38-769(0)(4)(a), the legislature specifically excepted “[ejmployer contributions to a plan of deferred compensation” from a limited-application definition of “compensation.” The absence of a similar exception in § 38-711(7) supports the conclusion that § 38-711(7) includes employer contributions. Our interpretation of the term “salary” is also consistent with the concept of compensation used in 26 U.S.C. § 457. Under that statute, all deferred compensation below the maximum amount—regardless of origin—receives the same beneficial treatment. See 26 U.S.C. § 457(a)(1); 26 C.F.R. § 1.457-4(c), Exs. 2 & 3. And all deferred compensation, including employer contributions, is treated the same with respect to Federal Insurance Contributions Act (“FICA”) taxes. See 26 U.S.C. §§ 3101(a), 3121(a)(5)(E), (v)(3)(A); cf. Univ. of Chicago v. United States, 547 F.3d 773, 782 (7th Cir.2008) (holding that FICA exception for payments made under or to a § 403(b) annuity contract includes mandatory salary reduction agreements). II. WADE WAS IMPROPERLY DISMISSED. ¶ 19 The superior court dismissed Wade’s claims against the Retirement System on the theory that because she had retired before the complaint was filed and was therefore receiving benefits under the Retirement Sys tem, she had failed to exhaust administrative remedies designed to allow benefit adjustments. ¶ 20 A.A.C. § R2-8-401 to -405 establish an administrative procedure for challenging “appealable agency actions” taken by the Retirement System. But Wade’s challenge to the statutory interpretation that the Retirement System provided to the City is not an “appealable agency action.” Under A.R.S. § 41-1092(3), an “appealable agency action” is “an action that determines the legal rights, duties or privileges of a party and that is not a contested case.” The definition excludes “interim orders by self-supporting regulatory boards, rules, orders, standards or statements of policy of general application issued by an administrative agency to implement, interpret or make specific the legislation enforced or administered by it or clarifications of interpretation.” Id. The Retirement System’s interpretation, and Wade’s pursuit of declaratory relief with respect to that interpretation, falls within the statutory exclusion. ¶ 21 The Retirement System also argues that Wade could have applied under AR.S. § 38-738(B) to have it issue an invoice to the City to pay any additional amounts due. We disagree. The only applicable provision in that statute for an employee to seek relief deals with underpaid employer contributions. The Deferred Compensation Plan does not distinguish between employer and employee contributions. Moreover, because the Retirement System had advised the City that the Deferred Compensation Plan contributions were not part of compensation for purposes of Retirement System calculations, any such request for recalculation would have been bound to fail. Accordingly, § 38-738(B) does not provide an administrative hurdle which Wade had to surmount before seeking judicial relief. CONCLUSION ¶ 22 For the reasons set forth above, we reverse the superior court’s dismissal of Wade and its entry of summary judgment against Paddock, and remand for proceedings consistent with this decision. ¶ 23 The appellants request attorney’s fees on appeal under A.R.S. §§ 12-2030, -348(A)(2), and -341.01. The first two statutes do not apply. First, § 12-2030(A) authorizes a fee award when a party prevails in an action to compel a state officer to perform a duty imposed by law. Though the appellants characterize the appeal as one seeking mandamus relief, their dispute with the Retirement System is that it misinstructed the City to omit its deferred compensation contributions from its reports—not that the Retirement System refused to calculate retirement contributions or pay benefits based on reports that included the City’s deferred-compensation payments. The appeal is therefore not actually in the nature of mandamus, see Fields v. Elected Officials’ Retirement Plan, 234 Ariz. 214, 222, ¶ 40, 320 P.3d 1160 (2014), and, accordingly, § 12-2030(A) does not apply. Second, § 12-348(A)(2) does not apply. That statute governs fee awards in appeals from administrative decisions, and this is not such an appeal. ¶ 24 A.R.S. § 12-341.01, however, applies to this case. That statute authorizes fee awards in actions “arising out of a contract.” Though the legal issue in this case turns on the interpretation of a statute, the statute in question defines terms of the appellants’ contractual rights to benefits incident to their employment. Article 29, Section 1(C) of the Arizona Constitution provides: “Membership in a public retire ment system is a contractual relationship that is subject to article II, § 25, and public retirement system benefits shall not be diminished or impaired.” When a statute defines terms of a contract, our supreme court has held that A.R.S. § 12-341.01 applies to disputes over the interpretation of the statute. A.H. v. Ariz. Prop. & Cas. Ins. Guar. Fund, 190 Ariz. 526, 529-30, 950 P.2d 1147 (1997). An award under § 12-341.01 is appropriate here. See Pendergast v. Arizona State Ret. Sys., 234 Ariz. 535, 542, ¶ 23, 323 P.3d 1186 (App.2014). ¶ 25 We therefore award the appellants their reasonable attorney’s fees subject to compliance with ARCAP 21. The appellants are also entitled to an award of costs under AR.S. § 12-341 upon compliance with AR-CAP 21. . This is an appeal from a judgment entered under Ariz. R. Civ. P. 54(b). Our caption, which should be used in all future filings in this matter, identifies only the parties participating in the appeal. . We decide this case as a matter of law, assuming without deciding that the City’s payments are employer contributions that the employees could not elect to receive in cash. . Cf. Ventura Cnty. Deputy Sheriff's Ass’n v. Bd. of Retirement of Ventura Cnty. Employees' Retirement Ass’n, 16 Cal.4th 483, 490-91, 494, 66 Cal.Rptr.2d 304, 940 P.2d 891 (1997) (construing California statute, which defined “compensation" for retirement-plan purposes as "remuneration paid in cash ... plus any amount deducted from a member’s wages,” to exclude employer contributions to a deferred compensation plan). . To be sure, federal tax regulations acknowledge that deferred compensation may take the form of a "salary reduction” or a "nonelective employer contribution” for which the employee could not choose to receive cash—and in this context, the term "salary” has a more narrow meaning than "compensation.” 26 C.F.R. § 1.457—2(b)(1), (i). But the distinction is relevant only to the calculation of the maximum amount of deferred compensation for which the employee may receive deferred income-tax treatment under federal law. See 26 U.S.C. § 457(b)(2), (c), (e)(5); 26 C.F.R. § 1.457-4(c), Exs. 2 & 3. . The superior court denied the Retirement System’s motion to dismiss Paddock. The Retirement System disagrees with that ruling. But it declined to seek appellate relief (available only by way of special action, N. Propane Gas Co. v. Kipps, 127 Ariz. 522, 525, 622 P.2d 469 (1980)), and it states on appeal that it will apply this court’s ruling on the statutory-interpretation issue to any claim that Wade makes in administrative proceedings. . The appellants cite the superior court’s determination that "a mandamus action is the appropriate vehicle.” But that conclusion was expressly limited to Paddock’s claims against the City only. The City is responsible for managing contribution payments. A.R.S. § 38-735; see also A.R.S. § 38-716(2). There is nothing in the record to suggest that Paddock ever sought correction of underpayments under § 38-738(B).

OPINION JONES, Judge: ¶ 1 Shelia H. (Mother) appeals the juvenile court’s order adjudicating J.R.H., G.R.H., AD.H.H., AH., and I.H. (the Children) dependent. We hold the juvenile court must consider the circumstances as they exist at the time of the dependency adjudication hearing in determining whether a child is a dependent child. Because the record contains reasonable evidence to support the court’s order finding the Children were dependent as to Mother on the ground of domestic violence at the time of the dependency adjudication hearing, we affirm. FACTS AND PROCEDURAL HISTORY ¶ 2 In January 2015, Mother left the Children, ages eleven, ten, seven, two, and six months, unsupervised in a hotel room where they were living, while she was passed out in the bathroom after vomiting blood on the floor and sink. When the Children found Mother unresponsive, they contacted a maternal aunt who called emergency services. Mother was admitted to the hospital; subsequent testing revealed her blood alcohol concentration was 0.24. Because the Children were unattended and their father (Father) was incarcerated in California at the time, the Department of Child Safety (DCS) assumed temporary custody of the Children and placed them in licensed foster homes. ¶ 3 Subsequent investigation revealed a significant history of domestic violence between Mother and Father. In fact, Father’s recent incarceration resulted from an arrest in December 2014 after he choked Mother, punched her in the face four times, and “held her hostage” in the presence of the Children. When admitted at the hospital in January 2015, Mother reported she suffered several broken ribs from the altercation and moved to Arizona to “escape” the abusive relationship. On the same day the Children discovered their Mother unconscious in a pool of blood and vomit, Father pled guilty to five counts of child endangerment and was sentenced to probation for two years plus time served. Upon his release, Father immediately attempted to reestablish contact with Mother and the Children. ¶ 4 Mother told a DCS caseworker that the “domestic violence relationship” with Father had lasted for fifteen years. As a result, both parents had been arrested and both had obtained orders of protection against the other. The three oldest children confirmed regular physical arguments between their parents which had sometimes resulted in physical injury to the Children as well. They also reported Father hit them with belts and other objects and slapped them across the face. ¶ 5 DCS was further concerned about the effect of the family’s transient lifestyle on the Children. The parents reported moving every few days from hotels, the family vehicle, and “the woods.” At the adjudication hearing, Mother was unable to provide a physical address for any prior residence. Aside from J.R.H. attending kindergarten for a short time, the Children had never attended school; neither had they received any regular medical care for at least the past six years. The two youngest children, along with a deceased son, were born in hotels. Additionally, Mother had a long history of alcohol abuse, and Father reported using marijuana on a regular’ basis. ¶ 6 DCS filed a petition alleging the Children were dependent as to Mother as a result of substance abuse, domestic violence, and neglect. At the dependency adjudication hearing held in March 2015, DCS called Mother as its first witness. ¶ 7 Mother testified the Children were removed while she was in the hospital because she was “sick” and throwing up blood but denied her ill health resulted from alcohol consumption. When questioned regarding the domestic violence with Father, Mother stated she “would agree that yes, there’s been arguing,” but it rose to the level of physical violence on only a single occasion, in December 2014. She also denied sustaining any injury or seeking medical treatment after the incident, maintaining Father “was not convicted of that,” and his child endangerment convictions “w[ere] for yelling in front of them.” Mother testified she did obtain an order of protection against Father, but only because she was advised by DCS to do so, and said she had no concern, at any time, for her safety or that of the Children. She further denied making any of the contrary comments that were reflected in reports from medical personnel and the DCS case manager. ¶ 8 On cross-examination, Mother’s counsel focused her presentation upon evidence suggesting out-of-home care was no longer necessary. Mother provided significant evidence and testimony describing her compliance with random urinalysis testing demonstrating she was substance free and her participation in parent aide services, substance abuse treatment, Alcoholics Anonymous meetings, domestic violence counseling, couples counseling, parenting classes, and visitation. Her counsel argued DCS could, and should, continue to provide services while the Children remained in her care and implement a safety plan to address the domestic violence. Mother further argued DCS failed to present any evidence the Children were actually harmed by her religious-based objections to traditional schooling and medical care. ¶ 9 At the conclusion of DCS’s presentation, Mother’s counsel called the current DCS case manager to testify. Counsel for DCS questioned the relevance of testimony from an individual who did not receive the case until “well over a month after removal,” and the juvenile court judge agreed, stating evidence regarding Mother’s efforts to remedy “would come after a dependency finding.” The judge allowed the testimony, but advised she would only give that evidence the weight she believed it deserved, explicitly noting her understanding that DCS’s burden was “to prove the allegations as they existed at the time the dependency was filed ... not whether or not Mother has remedied those.” The judge further advised she would not “expand this beyond a dependency adjudication” and cautioned she “may well sustain an objection to going beyond the scope of necessary evidence for the dependency adjudication.” ¶ 10 The current DCS case manager confirmed DCS had requested Mother participate in urinalysis testing, substance abuse treatment, and parent aide services, that these services were initiated quickly after the Children were removed, and Mother had not tested positive for any substances since the removal. ¶ 11 After taking the matter under advisement, the juvenile court issued a ruling finding DCS had proven by a preponderance of the evidence the Children were dependent as to Mother on all three grounds alleged. Mother timely appealed. We have jurisdiction pui’suant to Arizona Revised Statutes (A.R.S.) sections 8-235(A), 12-120.21(A)(1), and -2101(A)(1) and Arizona Rules of Procedure for the Juvenile Court 103(A). See Yavapai Cnty. Juv. Action No. J-8545, 140 Ariz. 10, 14, 680 P.2d 146 (1984) (holding “orders declaring children dependent ... are final orders subject to appeal by aggrieved parties”). DISCUSSION ¶ 12 Mother argues the juvenile court erred by focusing on whether the Children were dependent at the time they were removed, rather than whether the Children remained dependent at the time of the adjudication. DCS concedes on appeal that the court must determine whether a child is dependent based upon the circumstances existing at the time of the adjudication hearing. See A.R.S. § 8-201(14)(a)(i) (defining a dependent child in the present tense as one who “has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control”) (emphasis added), (iii) (defining a dependent child in the present tense as one whose “home is unfit by reason of abuse, neglect, cruelty or depravity by a parent”) (emphasis added); see also A.R.S. § 8-844(B) (requiring the court to consider present circumstances that would “eliminate the need for removal of the child”), (C)(1) (directing the court to determine “that the allegations contained in the petition are true”) (emphasis added). DCS argues, however, the court’s order adjudicating the Children dependent is supported by reasonable evidence establishing Mother remained unable or unwilling to parent at the time of the adjudication hearing as a result of domestic violence, and therefore, we should affirm. ¶ 13 A finding of dependency requires proof by a preponderance of the evidence. A.R.S. § 8-844(0(1). We review an order adjudicating a child dependent for an abuse of discretion, deferring to the juvenile court’s ability to weigh and analyze the evidence. Louis C. v. Dep’t of Child Safety, 237 Ariz. 484, 488, ¶ 12, 353 P.3d 364 (App.2015). We will only disturb a dependency adjudication if no reasonable evidence supports it. Id. (citing Willie G., 211 Ariz. at 235, ¶ 21, 119 P.3d 1034). ¶ 14 A child may be dependent when the parent is unwilling or unable to protect the child from abuse. See Pima Cnty. Juv. Action No. J—77188, 139 Ariz. 389, 392, 678 P.2d 970 (App.1983) (“Effective parental care clearly implies prevention of sexual as well as other physical abuse.”); see also Pima Cnty. Juv. Dependency Action No. 96290, 162 Ariz. 601, 605, 785 P.2d 121 (App.1990) (“A finding of dependency may be predicated on one parent’s failure to prevent abuse by another parent.”) (citing Pima Cnty. Juv. Dependency Action No. 97247, 158 Ariz. 55, 57, 760 P.2d 1104 (App.1988)). In adjudicating the Children dependent as to Mother on the ground of domestic violence, the juvenile court made the following findings: • Mother admitted she and Father had been in a violent relationship for fifteen years and also identified two instances, one in 2012 and one in 2014, where either Mother or Father had been arrested for domestic violence. • The Children witnessed Mother and Father engaging in violent altercations many times, which included watching Father choke Mother, and reported that Father is scary during these events. • A.D.H.H. suffered a broken wrist on one occasion when he attempted to intervene on Mother’s behalf during an altercation. • Mother voluntarily released the order of protection she obtained against Father following the December 2014 altercation after only one day. ¶ 15 Importantly, the juvenile court made a specific finding that “during her own testimony, [M] other attempted to minimize the length, scope, and nature of domestic violence history between [Mjother and [F]ather.” We will not second-guess the court’s assessment of Mother’s credibility as a witness. See Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628 (App.2011) (“The juvenile court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings.”) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203 (App.2002)). Moreover, this finding contradicts Mother’s contention that, had she been granted greater opportunity at the adjudication hearing to elicit information, she would have been able to demonstrate that the circumstances giving rise to the removal on the basis of domestic violence had been eliminated. Mother testified first, before any discussion regarding the applicable standard; she had an opportunity to discuss, at length, her sobriety, her housing situation, and her participation in services including domestic violence counseling. Yet, when given the opportunity to establish that the Children would be safe in her care, she chose instead to test the court’s tolerance with implausible testimony. ¶ 16 And, contrary to Mother’s assertion, domestic violence need not be continuous or actively occurring at the time of the adjudication hearing to support a finding of dependency on these grounds; the substantiated and unresolved threat is sufficient. See 96290, 162 Ariz. at 604, 785 P.2d 121 (rejecting argument that juvenile court erred in adjudicating a child dependent when he was born after events giving rise to a finding of dependency for his older siblings, and noting instead that “[ajssuming that the state can prove the conditions creating the dependency as to the older children, and that those conditions pose an imminent risk of harm to the newborn, the statute does not preclude the state from acting to protect the newborn until a specific injury has been inflicted upon him”). This is particularly true where, as here, the parent denies the alleged conduct. As we have previously held: [This Court] will not hesitate to affirm a finding of dependency as to parents who presently deny that they are responsible for past abuse and neglect for the obvious reason that such denial of responsibility supports a finding that their children do not have parents presently willing to or capable of exercising proper and effective parental care and control. To hold otherwise would permit an abusive or neglectful parent to defeat an allegation of dependency by the mere passage of time. Id. ¶ 17 Although the juvenile court articulated the wrong moment in time when the dependency must be found to have existed, in its discussions with counsel during the adjudication hearing it ultimately concluded “[M]other is unable to provide for her children due to domestic violence.” (Emphasis added). Viewing the evidence in the light most favorable to upholding the court’s ruling, we conclude substantial evidence exists to support a finding that domestic violence regularly occurred between Mother and Father, in the presence of the Children and sometimes causing serious physical injury to both Mother and the Children, and at the time of the hearing, Father had been released from jail to serve a term of probation and remained a present and viable threat to the well-being of the Children. Substantial evidence also supports a determination that Mother failed to even acknowledge, let alone address, these concerns through her denial of the issue. This assessment provides an additional basis to find she is presently unable or unwilling to parent and protect the Children. Thus, the court’s specific findings are supported by the record and are objectively sufficient to show DCS proved, by a preponderance of the evidence, that the Children were dependent as to Mother on the ground of domestic violence at the time of the adjudication hearing. CONCLUSION ¶ 18 The order of the juvenile court finding the Children dependent as to Mother is affirmed. . "On review of an adjudication of dependency, we view the evidence in the light most favorable to sustaining the juvenile court’s findings.” Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21, 119 P.3d 1034 (App.2005). . The Children were adjudicated dependent as to Father on February 12, 2015 on the grounds of neglect, mental health issues, domestic violence, and substance abuse. He did not challenge this determination and is not a party to this appeal. .Mother initially testified her sister picked the Children up from school on this day, where they were later removed by DCS, suggesting the Children were never at the hotel with her. This statement is contrary to her later testimony that her children had not attended school since her now-sixth grader went to kindergarten. . Again, Mother testified inconsistently, first asserting she lived in Portland for the past eleven years, and then stating she moved to Arizona when her now seven-year-old son was born. . This position is inconsistent with prior documented arrests and reports to child protective service agencies in other states, as well as Mother's initial request that Father not participate in the team decision-making meeting. . Absent material revisions from the relevant date, we cite a statute's current version. . DCS does not argue on appeal that the order adjudicating the Children dependent should be upheld on the grounds of substance abuse or neglect. . The court sustained only one of DCS’s objections to the relevance of the testimony sought to be elicited by Mother’s attorney, determining that whether DCS asked Mother to complete domestic violence counseling was not relevant to the dependency adjudication. Mother has not and cannot establish prejudice from preclusion of that information where she had already presented testimony and evidence that she had self-referred and was actively engaged in domestic violence counseling.

Justice BRUTINEL, opinion of the Court. ¶ 1 Travis Wade Amaral, then seventeen years old, pleaded guilty to first-degree murder and other charges and was sentenced to life in prison. We consider whether advances in juvenile psychology and neurology in the intervening twenty-two years support a “colorable claim” of newly discovered evidence requiring an evidentiary hearing on Amaral’s petition for post-conviction relief. Because the sentencing court considered the distinctive attributes of Amaral’s youth, we hold that Amaral did not present a colorable claim. I. BACKGROUND ¶ 2 In 1993, Amaral pleaded guilty to two counts of first-degree murder and one count of attempted armed robbery for crimes committed when he was sixteen years old. Amaral was sentenced to a term of life imprisonment with the possibility of parole after twenty-five years for each of the murder convictions and to 7.5 years’ imprisonment for attempted armed robbery. The sentences were ordered to ran consecutively. Amaral must serve a minimum of 57.5 years before he is parole eligible. ¶ 3 Amaral claimed he committed the crimes at the direction of Greg Dickens, who served as a counselor at a placement center for violent juveniles where Amaral had previously lived. The crimes were committed while he was staying with Dickens. According to Amaral, Dickens suggested the robbery, gave him a loaded revolver, and told him to leave “no witnesses.” Dr. Judith Becker, a clinical psychologist who interviewed Amaral before sentencing, opined that Dickens was a pedophile who was sexually abusing Amaral. ¶ 4 At Amaral’s mitigation hearing, the defense presented testimony from his parents and Dr. Becker as to Amaral’s mental health and maturity at the time of the murders and sentencing. The testimony highlighted Amaral’s mental health issues, his immaturity, and Dickens’ influence over him. Amaral’s father testified that even though Amaral was seventeen years old at the time of sentencing, he had the maturity level of a fourteen or fifteen year old. Dr. Becker opined that Amaral’s maturity level was more like that of a thirteen or fourteen year old at that time. Further, she testified that Amaral suffered from attention deficit disorder and displayed intermittent explosive disorder, bipolar disorder, and conduct disorder. According to Dr. Becker, individuals with attention deficit disorder are impulsive and have difficulty controlling their behavior in certain circumstances. She also testified that this effect is more pronounced if, like Amaral, that individual is agitated and has a conduct disorder. Dr. Becker attributed Amaral’s immaturity to his attention deficit disorder, the time he spent in institutions, the custody war waged by his parents, and Dickens’ pedophilic relationship with him. ¶ 5 The trial judge considered this testimony during sentencing and determined that the sentences should run consecutively, stating: It should be noted, consecutive sentences have been imposed, not only because the statute in Arizona mandated consecutive sentences unless there are reasons for imposing concurrent sentences, but because I could find no reasons in mitigation, apart from your age, that would justify my imposing concurrent sentences, Mr. Amaral, in light of the circumstances surrounding these offenses, your very deliberate actions in them. ¶ 6 In 2012, Amaral filed a petition for post-conviction relief under Arizona Rule of Criminal Procedure 32. He claimed that recent scientific findings concerning juvenile psychology and neurology, which the United States Supreme Court had cited in holding that the Eighth Amendment bars certain sentences for juvenile offenders, were newly discovered material facts that warranted post-conviction relief under Rule 32.1(e). The trial court dismissed the petition, finding that Amaral had failed to present a material issue of fact that would entitle him to relief. ¶ 7 In denying relief on Amaral’s ensuing petition for review, the court of appeals noted that “One of the requirements for a claim of newly discovered evidence is that ‘the evidence must appear on its face to have existed at the time of trial but be discovered after trial.’ ” State v. Amaral, No. 1 CA-CR 13-0502, 2015 WL 631459, at *2 ¶ 8 (Ariz.App. Feb. 12, 2015) (mem. decision) (quoting State v. Bilke, 162 Ariz. 51, 52, 781 P.2d 28, 29 (1989)). The court held that Amaral did not present a colorable claim because the scientific advancements in juvenile psychology and neurology did not exist at the time of sentencing. Id. ¶ 8 We consider whether these advances in juvenile psychology and neurology constitute newly discovered evidence that, if known at the time of Amaral’s 1993 sentencing, probably would have changed his sentence. We have jurisdiction pursuant to article 6, section 5(3), of the Arizona Constitution. II. DISCUSSION ¶ 9 We review a denial of a Rule 32 petition based on lack of a colorable claim for an abuse of discretion. E.g., State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19, 278 P.3d 1276, 1280 (2012); State v. Bennett, 213 Ariz. 562, 566 ¶ 17, 146 P.3d 63, 67 (2006). Rule 32.1(e) sets forth the requirements for obtaining post-conviction relief based on newly discovered evidence: e. Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly discovered material facts exist if: (1) The newly discovered material facts were discovered after the trial. (2) The defendant exercised due diligence in securing the newly discovered material facts. (3) The newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence. A defendant is entitled to an evidentiary hearing regarding a claim of newly discovered evidence if he or she presents a “colorable claim.” State v. Bilke, 162 Ariz. at 52, 781 P.2d at 29. There are five requirements for presenting a colorable claim of newly discovered evidence: (1) the evidence must appear on its face to have existed at the time of trial but be discovered after trial; (2) the motion must allege facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to the court’s attention; (3) the evidence must not simply be cumulative or impeaching; (4) the evidence must be relevant to the case; (5) the evidence must be such that it would likely have altered the verdict, finding, or sentence if known at the time of trial. Id. at 52-53, 781 P.2d at 29-30. The dispositive issue here is whether Amaral’s petition alleged a “newly discovered material faet[ ]” that “probably would have changed” his sentence. Ariz. R.Crim. P. 32.1(e). ¶ 10 As a preliminary matter, we clarify the standard for entitlement to a Rule 32.8(a) evidentiary hearing on claims made under Rule 32.1(e). A defendant is entitled to relief if “newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence.” Ariz. R.Crim. P. 32.1(e). Some of our case law, however, has suggested that a defendant presents a colorable claim, and thus is entitled to an evidentiary hearing, if the alleged facts “might” have changed the outcome. For example, with regard to a claim of ineffective assistance of counsel, we have stated that “[a] defendant is entitled to an evidentiary hearing when he presents a colorable claim [—] that is[,] a claim which, if defendant’s allegations are true, might have changed the outcome.” State v. Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990) (citing State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986)) (emphasis added). The use of “might” originated in Schrock as a misstatement of the standard described in a previous case. Schrock, 149 Ariz. at 441, 719 P.2d at 1057 (citing State v. Jeffers, 135 Ariz. 404, 427, 661 P.2d 1105, 1128 (1983) (stating a colorable claim is one that, if the defendant’s allegations are trae, would change the verdict)). ¶ 11 A standard based on what “might” have changed the sentence or verdict is inconsistent with Rule 32 and most of the case law. E.g., Gutierrez, 229 Ariz. at 579 ¶ 31, 278 P.3d at 1282; State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995); Jeffers, 135 Ariz. at 427, 661 P.2d at 1128. The relevant inquiry for determining whether the petitioner is entitled to an evidentiary hearing is whether he has alleged facts which, if true, would probably have changed the verdict or sentence. If the alleged facts would not have probably changed the verdict or sentence, then the claim is subject to summary dismissal. Ariz. R.Crim. P. 32.6(c). ¶ 12 This comports with the purpose of an evidentiary hearing in the post-conviction context. A Rule 32 evidentiary hearing allows “the court to receive evidence, make factual determinations, and resolve material issues of fact.” Gutierrez, 229 Ariz. at 579 ¶ 31, 278 P.3d at 1282. Such an evidentiary hearing is useful only to the extent relief would be available under Rule 32—that is, the defendant presents a colorable claim. If the alleged facts, assumed to be true, would not provide grounds for relief, the court need not conduct an evidentiary hearing because those facts would not have changed the outcome. See Jeffers, 135 Ariz. at 427, 661 P.2d at 1128; see also Gutierrez, 229 Ariz. at 579 ¶ 32, 278 P.3d at 1282; Ariz. R.Crim. P. 32.6(c) (recognizing summary dismissal might be appropriate when “no remaining claim presents a material issue of fact or law”). Likewise, “when there are no material facts in dispute and the only issue is the legal consequence of undisputed material facts, the superior court need not hold an evidentiary hearing.” Gutierrez, 229 Ariz. at 579 ¶32, 278 P.3d at 1282. It may simply determine whether the undisputed facts probably would have changed the verdict or sentence. See Jeffers, 135 Ariz. at 427, 661 P.2d at 1128; State v. Richmond, 114 Ariz. 186, 194, 560 P.2d 41, 49 (1976) (no evidentiary hearing required on defendant’s claim of newly discovered evidence when his allegations, taken as true, would not have changed the verdict), abrogated on other grounds by State v. Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992). ¶ 13 We turn to the Bilke requirements for a colorable claim under Rule 32.1(e). The first is that “the evidence must appear on its face to have existed at the time of trial but be discovered after trial.” Bilke, 162 Ariz. at 52, 781 P.2d at 29 (emphasis added). Although this requirement is not explicit in the rule’s text, we have long recognized that “Rule 32.1(e) has not expanded the law to relieve appellant from the consequences of a sentence because of facts arising after the judgment of conviction and sentencing.” State v. Guthrie, 111 Ariz. 471, 473, 532 P.2d 862, 864 (1975). This Court has held that evidence arising from events occurring after the trial are not newly discovered material facts. E.g., id. (holding that rehabilitation efforts pending appeal were not newly discovered material facts because they arose after the conviction and sentencing). ¶ 14 Amaral argues that this ease is analogous to Bilke in that both concern a new understanding of conditions that existed at the time of trial. But Bilke differs from this case. Bilke was convicted of armed robbery, armed rape, armed kidnapping, and lewd and lascivious acts. Bilke, 162 Ariz. at 51, 781 P.2d at 28. Thirteen years after his conviction, he petitioned for post-conviction relief, claiming as newly discovered evidence that he had been recently diagnosed with post-traumatic stress disorder (“PTSD”) from his prior military service. Id. at 51-52, 781 P.2d at 28-29. He claimed that although he had only been recently diagnosed, he had suffered from the disorder when he committed the ci’imes. Id. at 52, 781 P.2d at 29. Analyzing the five requirements, this Court held that Bilke had presented a colorable claim that newly discovered evidence existed. Id. at 53, 781 P.2d at 30. Bilke’s PTSD was a newly discovered condition that existed at the time of trial but, through no fault of the defendant, was not diagnosed because it “was not a recognized mental condition at the time of his trial.” Id. ¶ 15 Applying Bilke, we conclude that Amaral failed to present a colorable claim. Amaral contends that the scientific findings concerning juvenile psychology and neurology underlying three United States Supreme Court decisions are newly discovered material facts. See Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding mandatory life imprisonment without parole for juvenile offenders violates the Eighth Amendment prohibition on cruel and unusual punishment); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding mandatory life imprisonment without parole for juvenile offenders who did not commit homicide violates the Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding the death penalty cannot be imposed on juvenile offenders because it violates the Eighth Amendment). Those opinions note scientific research describing behaviors commonly exhibited by juveniles and the reasons for those behaviors. Relying on this research and the decisions in Roper and Graham, Miller concludes that “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” Miller, 132 S.Ct. at 2465. Further, in holding that Miller applies retroactively, the Court recently reiterated that “children are constitutionally different from adults in their level of culpability!)]” Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 736, 193 L.Ed.2d 599 (2016). ¶ 16 For the purpose of our analysis, we assume the facts alleged by Amaral are true. Thus, we assume that the advances in juvenile psychology and neurology described in the Supreme Court cases demonstrate that compared to adults, juveniles (1) act more impulsively, (2) overemphasize rewards and underemphasize consequences, (3) are more susceptible to negative influences, (4) have less fixed personalities, and (5) are more likely to grow out of their risk taking behavior. ¶ 17 Even so, Amaral has failed to identify newly discovered material facts that probably would have altered his sentence. The advances in juvenile psychology and neurology offered by Amaral merely supplement then-existing knowledge of juvenile behavior that was considered at the time of sentencing. As noted by the United States Supreme Court in Roper, these scientific and sociological studies simply confirmed what was already known. 543 U.S. at 569, 125 S.Ct. 1183 (noting that the “scientific and sociological studies respondent and his amici cite” simply confirm existing understandings of juvenile behavior). Although the research itself was conducted after Amaral’s sentencing, the results of the research cannot constitute newly discovered material facts because juvenile behavioral tendencies and characteristics were generally known in 1993, and the trial judge contemplated Amaral’s youth and attendant characteristics when he considered Amaral’s age, immaturity, and personal idiosyncrasies at the sentencing hearing. ¶ 18 Unlike Amaral, Bilke suffered from a condition that existed at the time of the trial but was not yet recognized by mental health professionals and, consequently, could not have been diagnosed until years after the trial. Thus, at the time of sentencing, it would have been impossible for the trial judge in Bilke to have assessed the petitioner’s actions in light of his disorder. In contrast, Amaral’s juvenile status and impulsivity were known at the time of sentencing and were explicitly considered by the trial judge. Hence, his condition was not newly discovered. Therefore, and because the alleged facts would not have probably changed the result, the trial court did not abuse its discretion by denying Amaral’s request for an evidentiary hearing. ¶ 19 The court of appeals correctly found that Amaral did not present a color- able claim, but it focused its decision on the fact that the scientific advances in juvenile psychology and neurology did not exist at the time of Amaral’s sentencing. State v. Amaral, No. 1 CA-CR 13-0502, at *2 ¶ 8. The court of appeals is correct that the scientific advancements had yet to be discovered. But it is the condition, not the scientific understanding of the condition, that needs to exist at the time of sentencing. See Bilke, 162 Ariz. at 53, 781 P.2d at 30. Bilke’s PTSD qualified as newly discovered evidence because the advancement of knowledge permitted the diagnosis of a previously existing— but unrecognized—condition. Like Bilke’s PTSD, Amaral’s juvenile status existed at the time of sentencing. But the behavioral implications of Amaral’s condition, in contrast to Bilke’s, were recognized at the time of his sentencing; that our understanding of juvenile mental development has since increased does not mean that the behavioral implications of Amaral’s juvenile status are newly discovered. III. CONCLUSION ¶ 20 We hold that Amaral did not present a colorable claim; consequently, he was not entitled to an evidentiary hearing. We vacate the decision of the court of appeals and affirm the trial court’s order dismissing the petition for post-conviction relief.

OPINION VÁSQUEZ, Presiding Judge. ¶ 1 Frank R. appeals from the juvenile court’s order terminating his parental rights to E.E. pursuant to A.R.S. § 8-533(B)(6), for failing to file a notice of paternity in compliance with A.R.S. § 8-106.01, Arizona’s putative fathers registry. Frank contends application of the registry to him was unconstitutional because he and E.E.’s mother are California residents and, as a result of her deceptive acts and false statements in an affidavit and to appellee Mother Goose Adoptions, he did not know she had given birth to E.E. in Arizona and had consented to the child’s adoption. He also challenges the court’s finding that termination of his rights was in E.E.’s best interest. We affirm. Background ¶ 2 We view the evidence in the light most favorable to upholding the juvenile court’s ruling. Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, ¶ 2, 181 P.3d 1126, 1128 (App.2008). In the summer of 2013, eighteen-year-old Rachel E. and twenty-one-year-old Frank, both California residents, developed an intimate relationship and in early August learned Rachel was pregnant. Rachel and Frank lived near each other with their respective parents in California, but Rachel intermittently lived with Frank in his parents’ home until she moved out permanently in November. ¶ 3 In December, Rachel contacted the Adoption Networks Law Center (the Center), an adoption law firm in California, to explore placing the expected child for adoption. Frank and his mother asked Frank’s cousin, Alex Joaquin Saenz, a licensed patent attorney in California, to help him assert his parental rights to the child. Saenz testified at the severance hearing that he had contacted the Center in February 2014 and asked to speak to the caseworker on Frank’s behalf, conveying that Frank “wanted to claim his right with respect to [Rachel’s unborn child].” No one from the Center called him back, all of which Saenz confirmed in a letter to the Center. ¶ 4 Wendy McGreevy, an attorney with the Center, testified at the severance hearing that Rachel had contacted the Center in December 2013. A colleague subsequently asked McGreevy to contact Frank, the person Rachel had identified as the father. When MeGreevy spoke to Frank on February 26, 2014, he told her that if the child was his, he would “100% take the baby and raise it.” MeGreevy therefore recommended that the Center decline working with Rachel because the father of the child was opposed to an adoption. ¶ 5 In Mai’ch 2014, unbeknownst to Frank, Rachel and her mother called Mother Goose in Arizona and spoke to Deborah O’Kane, the Executive Director. They discussed placing the child for adoption and Rachel completed the requisite paperwork to begin the process. Both verbally and in forms she submitted, Rachel informed Mother Goose she had no idea who the father of the child was, claiming she had sexual relations with numerous men during the relevant period. ' She did not tell Mother Goose about having contacted the Center in California, leaving blank a related question in the forms she submitted. Around this time, Rachel and her mother drove to Arizona and met with Mother Goose personnel as well as a physician. ¶ 6 Mother Goose sent Rachel profiles of potential adoptive parents and in April, when Rachel and her mother traveled to Arizona a second time, they met with a Mother Goose counselor and chose the specific adoptive parents she wanted to adopt her child. Mother Goose arranged and paid for accommodations for Rachel and her mother at a hotel in Phoenix while they waited for the birth of the child. Rachel signed an affidavit in which she stated that no man had acknowledged or claimed paternity of the child or had provided or promised to provide her support during the pregnancy, she did not intend to name any man on the birth certificate as the father, and there was no person she had reason to believe had an interest in the child. ¶ 7 On May 5, Rachel gave birth to E.E. The adoptive mother attended the birth and her husband arrived the following day. The adoptive parents are from Tennessee and had adopted another child through Mother Goose four years earlier. On May 8, three days after the birth of E.E., Rachel executed a Relinquishment of Parental Rights for Adoption, which provided that she relinquished her rights to Mother Goose and consented to its placement of E.E. for adoption. The following day, Frank asked Rachel about the baby through Facebook. Rachel responded that the child was African American and was not his. That same day Frank again asked about the baby, asked Rachel where she had been, and said he was concerned about whether the baby was healthy and whether Rachel was taking care of the child. He also said, “And if it’s mine, I’m gonna support the baby.” Rachel did not tell him the baby had been born in Arizona. ¶ 8 Rachel and her mother returned to California on May 10. Mother Goose filed a petition for termination of parent-child relationship and appointment of guardian for the child on May 14 in Pima County Superior Court. The petition was verified by its counsel and included various exhibits, including an affidavit from Rachel avowing she did not know the identity of the father and no man had come forward expressing an interest in the child. At oral argument before this court, Mother Goose’s counsel, whose firm also represented Mother Goose below, conceded there was no basis under A.R.S. § 12-401 for believing Pima County was an appropriate venue for filing the petition when the child was born in Maricopa County. ¶ 9 O’Kane testified at the severance hearing that she knew Rachel was a California resident who had traveled to Arizona for the sole purpose of placing her child for adoption and had returned to California at the time Mother Goose filed the petition. Nevertheless, Mother Goose alleged in the severance petition that Rachel resided in Arizona and listed her address as that of the hotel where Mother Goose had arranged for Rachel and her mother to stay while in Phoenix. Mother Goose further alleged it had custody of E.E. and that Rachel had relinquished her parental rights to the child and consented to his adoption by the adoptive parents. See A.R.S. § 8—533(B)(7) (providing as ground for termination of parental rights parents’ relinquishment of rights to agency or consent to adoption). Mother Goose alleged further that the identity of the child’s father was unknown and sought to terminate Rachel’s rights pursuant to § 8-533(B)(7) and the rights of any potential father pursuant to § 8-533(B)(5) on the ground that no person claiming to be the father had filed and served Rachel with a paternity action within thirty days of service of a notice to potential father pursuant to A.R.S. § 8-106(G). That notice, which is required in an adoption under § 8-106, was served by publication in Maricopa County, the final of three notices appearing on May 30, 2014. Mother Goose requested that the court appoint the prospective adoptive parents as guardians of the child, and vest legal custody in Mother Goose, pursuant to A.R.S. § 8-538(B)(2). ¶ 10 Mother Goose also initiated a referral pursuant to the Interstate Compact on the Placement of Children (ICPC), see AR.S. § 8-548, requesting that the adoptive parents be permitted to leave Arizona with E.E. James O’Donnell, Arizona’s ICPC administrator, processed that referral and sent O’Kane an email on May 13, stating it appeared from the information he had received from her that Rachel was a California resident and determination of which state had jurisdiction should begin there. O’Kane immediately responded that Rachel’s father lived in California and falsely stated that her mother lived in Arizona and Rachel had come to Arizona to live with her mother and would “continue to split time between both parents.” O’Donnell approved the ICPC request on May 13, and the adoptive parents left Arizona the next day with E.E. and returned to Tennessee. On July 30, 2014, the juvenile court terminated the parental rights of “John Doe” and relinquished jurisdiction to Tennessee pursuant to AR.S. § 25-1032(A)(2), a provision of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See A.R.S. §§ 25-1001 through 25-1067. ¶ 11 In the meantime, Frank had seen a photograph of E.E. on Facebook and believed the child looked like him. In Los Angeles Superior Court, he filed a Petition to Establish Parental Rights (the California petition) in early July 2014, and the court set a hearing on the petition for August 28. Rachel was served with the California petition at the end of July. Rachel’s mother called O’Kane on July 30, told her about the paternity action, and sent a copy of the petition. When questioned about Rachel’s actions at the severance hearing, O’Kane testified that Rachel had not told the truth when she claimed she had no idea who the father of the child was and when she signed the affidavit to that effect, committing perjury. O’Kane also admitted that by not completing a portion of Mother Goose’s application that required Rachel to state whether she had sought the assistance of another adoption agency in her home state or another state, she essentially had “falsified” its records and failed to provide information. ¶ 12 On August 25, Mother Goose filed a motion in the juvenile court pursuant to Rule 60(c)(2), Ariz. R. Civ. P., requesting that the court set aside the July 30 order relinquishing jurisdiction. It disclosed it had relied on a statement Rachel had provided in a sworn affidavit suggesting she did not know the identity of the father but that it had learned Frank was claiming an interest in E.E. Mother Goose asserted Tennessee could not proceed with an adoption until Frank’s parental rights were terminated. It stated counsel for the adoptive parents had opined that, notwithstanding Arizona’s initial relinquishment of its continuing jurisdiction for purposes of the adoption, Tennessee did not have jurisdiction to terminate Frank’s parental rights. Accordingly, Mother Goose asked the court to reassert jurisdiction to permit it to file an amended petition to terminate Frank’s rights. The court granted the motion that day. ¶ 13 On August 27, Mother Goose filed its first-amended petition, seeking to terminate Frank’s parental rights under § 8—533(B)(6) on the ground he had failed to file a notice of claim of paternity within thirty days of E.E.’s birth, as required by § 8-106.01. Mother Goose failed to state in the amended petition that Frank had filed the California petition to establish his paternity; rather, it falsely avowed there were no other related proceedings in any jurisdiction and again alleged as Rachel’s address the address of the hotel where she and her mother had stayed in Arizona. ¶ 14 On August 28, when Frank appeared for the initial hearing on the California petition, he was served with a motion filed by Rachel through counsel, requesting an order quashing the California proceeding based on the allegation that Arizona was E.E.’s “home state” for purposes of the UCCJEA See Cal. Fam.Code §§ 3421 (setting forth when California has jurisdiction to make initial custody determination), 3422 (identifying when court loses jurisdiction); see generally Cal. Fam.Code §§ 3400 through 3465. It was then that Frank first learned E.E. was born in Arizona and that Mother Goose had filed a petition to terminate his parental rights in Arizona the day before. On September 26, Mother Goose filed a motion in the juvenile court in Arizona, asking the court to confer with the California court and retain jurisdiction under the UCCJEA. It argued Arizona had been E.E.’s home state when the proceedings began, see § 25-1031, it had made a custody determination, and Mother Goose, the agency with legal custody of E.E., retained strong connections to Arizona, see § 25-1032. The court set the motion for hearing on October 8. ¶ 15 Frank called the juvenile court in Arizona on September 15 and, when court staff returned the call on September 18, he learned attorney Scott Myers represented Mother Goose. That day Frank’s mother spoke with Myers, who confirmed Mother Goose had filed a petition to terminate Frank’s parental rights. Also on September 18, Frank was served with the first-amended petition to terminate parental rights and to appoint a guardian that Mother Goose had filed on August 27. ¶ 16 On October 2, Frank received from Myers a copy of Mother Goose’s jurisdiction motion and a notice that the motion would be heard on October 8. Frank traveled to Arizona and filed a pro se response to the first-amended petition on October 6 and attended the hearing on October 8. At that hearing, the juvenile court appointed counsel to represent Frank and ordered genetic testing to determine paternity, which Frank had requested in his response. The court granted the motion to retain jurisdiction and agreed to confer with the California court. On November 4, the court held the UCCJEA hearing, during which the two judges conferred telephonically. The California court set a hearing for December 10, after which it deferred jurisdiction to Arizona and dismissed the California petition. The juvenile court conducted the initial severance hearing on December 11. ¶ 17 On February 6, 2015, Mother Goose filed a second-amended petition, which added abandonment as a ground for terminating Frank’s rights. And, with respect to its pri- or allegation that Frank had failed to file a notice of paternity within thirty days of the child’s birth, the second-amended petition added, “or within 30 days after it became possible for him to file,” stating in its motion to amend the petition that it was clarifying the previously alleged ground. Once again Mother Goose listed the Arizona hotel address as Rachel’s address. Mother Goose also alleged falsely that the identity of the father was unknown and that Frank “may be the father of the child,” even though deoxyribonucleic acid (DNA) test results contained in a report dated October 28, 2014, established Frank was E.E.’s father. ¶ 18 The severance hearing took place over six days between February 27 and April 28. On March 24, about a month before the last day of the hearing, Frank filed an ex parte motion in the severance proceeding seeking to establish paternity and incorporating A.R.S. § 25-814(A)(2) (paternity presumed where “[g]enetic testing affirms at least a ninety-five per cent probability of paternity”). He also apparently filed a separate special paternity action under title 25. During the fourth day of the severance hearing, the court consolidated the two actions “for hearing purposes.” The juvenile court also entered an order finding Frank was E.E.’s father. ¶ 19 In June 2015, the juvenile court terminated Frank’s parental rights. In its thirty-five-page under-advisement ruling, the court found Mother Goose had not sustained its burden of establishing Frank had abandoned E.E. The court found Rachel’s conduct was deceitful and designed to prevent Frank from asserting his parental rights and found O’Kane’s statements regarding the ICPC referral had been “false and misleading.” Nevertheless, the court terminated Frank’s parental rights pursuant to § 8—533(B)(6), finding Frank had not filed a notice of claim of paternity at all, much less within thirty days of when it had become possible for him to do so, which was, at the earliest on September 27, thirty days after he first learned on August 28 that E.E. was born in Arizona, and at the latest, on November 7, thirty days after the court appointed counsel to represent him on October 8. The court concluded termination of Frank’s rights was in E.E.’s best interest. Frank’s appeal and Mother Goose’s cross-appeal, which it has withdrawn, followed. Discussion ¶ 20 Frank begins his opening brief on appeal by asserting that the juvenile court failed to decide the central question in this matter, which the court itself framed as “the application of the Arizona Putative Father[s] Registry in termination proceedings to an unwed, California father” who did not know the mother had traveled to Arizona, falsely stated she did not know who the father was, gave birth to the child, and consented to the adoption by the Tennessee couple. Frank maintains “the central issues on appeal are whether Arizona law is applicable to the father at all, whether our Arizona statutes were intended to apply to an out-of-state father who had no reasonable expectation of being haled into court in Arizona, and whether the fraud perpetrated by the mother and furthered by Mother Goose Adoptions undermines the constitutionality of the statutes themselves and that of their application herein.” ¶ 21 We review the juvenile court’s order terminating a parent’s rights for an abuse of discretion. Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, ¶ 8, 83 P.3d 43, 47 (App.2004). “[W]e will accept the juvenile court’s findings of fact unless no reasonable evidence supports those findings, and we will affirm a severance order unless it is clearly erroneous.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, ¶ 4, 53 P.3d 203, 205 (App.2002). Unless we can say, “ ‘as a matter of law that no one could reasonably find the evidence [supporting statutory grounds for termination] to be clear and convincing,’ ” we will not disturb the court’s ruling. Denise R. v. Ariz. Dep’t of Econ. Sec., 221 Ariz. 92, ¶ 10, 210 P.3d 1263, 1266 (App.2009), quoting Murillo v. Hernandez, 79 Ariz. 1, 9, 281 P.2d 786, 791 (1955) (alteration in Denise R.). A court must apply the law correctly in order to exercise its discretion soundly. See Allen v. Chon-Lopez, 214 Ariz. 361, ¶ 9, 153 P.3d 382, 385 (App.2007). The Statutes ¶22 This case involves the interpretation and application of § 8-533(B)(6), Arizona’s parental severance statute, and, necessarily, the putative fathers registry, § 8-106.01, questions of law, which we review de novo. See In re John M., 201 Ariz. 424, ¶ 7, 36 P.3d 772, 774 (App.2001); see also Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, ¶ 18, 181 P.3d 1126, 1131 (App.2008); Adrian E. v. Ariz. Dep’t of Econ. Sec., 215 Ariz. 96, ¶ 9, 158 P.3d 225, 228 (App.2007). In interpreting statutes, we strive to effectuate the intent of our legislature and, because the language in the statute is the best reflection of that intent, we apply the statute as written unless the terms are not clear. See Linda V. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 76, ¶ 8, 117 P.3d 795, 797 (App.2005). Consequently, “[w]hen a statute is clear and unambiguous, we apply its plain language and need not engage in any other means of statutory interpretation.” Kent K. v. Bobby M., 210 Ariz. 279, ¶ 14, 110 P.3d 1013, 1017 (2005). In addition, when it is possible, we “‘construe statutes to uphold their constitutionality.’” Lisa K. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 173, ¶ 9, 281 P.3d 1041, 1045 (App.2012), quoting State v. Hargrave, 225 Ariz. 1, ¶ 42, 234 P.3d 569, 581 (2010). “ ‘We presume a statute to be constitutional and will not declare an act of the legislature unconstitutional unless convinced beyond a reasonable doubt that it conflicts with the federal or state constitutions.’ ” Id., quoting Graville v. Dodge, 195 Ariz. 119, ¶ 17, 985 P.2d 604, 608 (App.1999). The party challenging a statute has the burden of establishing it is unconstitutional. Id. ¶ 9. ¶ 23 The legislature enacted this state’s putative fathers registry in 1994. 1994 Ariz. Sess. Laws, eh. 116, § 2. Our supreme court surmised in In re Pima County Juvenile Action No. S-114487, 179 Ariz. 86, 90 n. 2, 876 P.2d 1121, 1125 n. 2 (1994), that the legislature did so in response to the situation that arose in that case and cases like it, in which the putative father’s rights were severed on the ground of abandonment in order to facilitate the adoption of the child after the mother, but not the putative father, relinquished her parental rights. When initially enacted, the registry was expressly implicated only in adoption proceedings pursuant to § 8-106. 1994 Ariz. Sess. Laws, eh. 116, §§ 1, 2. The two statutes were designed to work in tandem to permit the adoption of a child without the consent of a putative father who failed to assert his parental rights by filing a notice of paternity in accordance with the registry and by filing and serving a paternity action within the specified period. ¶ 24 But in 2002, when the legislature amended portions of § 8-106, it amended the severance statute as well, adding § 8-533(B)(6) as an additional ground for terminating a father’s parental rights. 2002 Ariz. Sess. Laws, eh. 173, §§ 1, 4. It made a putative father’s failure “to file a notice of claim of paternity as prescribed in section 8-106.01” an independent basis for termination under § 8-533(B)(6). This process is distinct from the de facto severance that may be effectuated through the adoption process. Although the ultimate goal of terminating a putative father’s rights under this provision may be the facilitation of an adoption, as it is in this case, it is a separate, independent proceeding. The instant appeal arises out of a severance under § 8-533(B)(6), not an adoption, therefore we consider § 8-106.01 only in the context of the circumstances before us. ¶ 25 The requirements of § 8-106.01 are clear. Subsection (A) states that [a] person who is seeking paternity, who wants to receive notice of adoption proceedings and who is the father or claims to be the father of a child shall file notice of a claim of paternity and of his willingness and intent to support the child to the best of his ability with the state registrar of vital statistics in the department of health services. Subsection (B) of the statute provides that the putative father may file the notice of claim of paternity before a child is born but shall file within thirty days of the child’s birth. However, subsection (E) provides that a father who does not file a notice of claim of paternity as provided in subsection (B): ... waives his right to be notified of any judicial hearing regarding the child’s adoption and his consent to the adoption is not required, unless he proves, by clear and convincing evidence, both of the following: 1. It was not possible for him to file a notice of a claim of paternity within the period of time specified.... 2. He filed a notice of a claim of paternity within thirty days after it became possible for him to file. ¶ 26 In addressing the constitutionality of § 8—533(B)(6) and § 8-106.01, we are mindful that a parent’s right to custody of his or her child is “fundamental,” but not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, ¶¶ 11-12, 995 P.2d 682, 684 (2000). Thus, a court may sever parental rights under certain circumstances, so long as the procedures are fundamentally fair and satisfy due process requirements. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A putative father’s parental rights, however, are inchoate and do not attain fundamental constitutional status unless he takes significant steps to create a parental relationship. Pima Cty. No. S-114487, 179 Ariz. at 93-94, 876 P.2d at 1128-29; see also Caban v. Mohammed, 441 U.S. 380, 392, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). The registry provides putative fathers with a means of asserting their parental rights by creating a specified, public repository, maintained by an agency of the state, wherein the putative father may acknowledge his paternity, whether potential or established, declare his interest in his child, and state his willingness to support his child. See § 8-106.01(A). ¶ 27 In Lehr v. Robertson, 463 U.S. 248, 264-65, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), the Supreme Court held that putative fathers registries are constitutional. The Court observed that “the mere existence of a biological link does not merit equivalent constitutional protection” to a developed parent-child relationship. Id. at 261,103 S.Ct. 2985. The Court reasoned, “[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘eom[ing] forward to participate in the rearing of his child,’ his interest in personal contact with his child acquires substantial protection under the due process clause.” Id., quoting Caban, 441 U.S. at 392, 99 S.Ct. 1760 (second alteration in Lehr) (citation omitted). The Court concluded New York’s paternity registry accommodated and protected the putative father’s interest in establishing that relationship. Id. at 262-65, 103 S.Ct. 2985; see also Rebeca Aizpuru, Note, “Protecting the Unwed Father’s Opportunity to Parent: A Survey of Paternity Registry Statutes,” 18 Rev. Litig. 703, 727 (1999) (putative father registries serve dual purpose of “protecting the rights of responsible fathers and facilitating speedy adoptions of children whose fathers do not wish to assume parental responsibility”). ¶ 28 In Marco C. v. Sean C., this court determined § 8-106.01(B) “clearly and unambiguously sets a time limit that can be excused only under the limited circumstances prescribed in § 8-106.01(E).” 218 Ariz. 216, ¶ 9, 181 P.3d 1137, 1140 (App.2008). Based on the statute’s clear language, we held it must be strictly applied. Id. ¶¶ 9-10. We noted that, in enacting the statute, the legislature had “balanced the policy considerations involved and concluded that the theoretical ten-month period between a child’s conception and thirty days after the child’s birth gives the father an adequate opportunity to file his notice.” Id. ¶ 9. We acknowledged “the result may be harsh when a father misses this deadline,” but added that it is not for the judiciary to “second-guess the legislature’s policy decision.” Id. Thus, we concluded, because the putative father in that case had filed his notice of paternity on the thirty-first day after the child’s birth, the juvenile court did not err in finding the father had failed to comply with the statute, his consent to adoption was not required, and the adoption could proceed over his objection. Id. ¶¶ 3, 18. ¶ 29 As Frank points out, Marco C., on which the juvenile court in this case relied, involved an Arizona putative father who, based on his having engaged in sexual relations with a woman in this state, had reason to believe and in fact knew the issue of his paternity would arise in this state. In Marco C, however, this court cited Beltran v. Allan, 926 P.2d 892, 895-96, 898 (Utah Ct.App.1996), on which the juvenile court in this case also relied, and eases from other jurisdictions, see, e.g., Heidbreder v. Carton, 645 N.W.2d 355, 369-70 (Minn.2002), Hylland v. Doe, 126 Or.App. 86, 867 P.2d 551, 553, 556-57 (1994), and In re Adoption of B.B.D., 984 P.2d 967, ¶¶ 2-6, 12 (Utah 1999), in which courts applied their state’s putative fathers registries strictly to out-of-state putative fathers. 218 Ariz. 216, ¶ 10, 181 P.3d at 1140-41. However, we did not address the application of Arizona’s registry to an out-of-state father in Marco C. Nor did § 8-533(B)(6) come into play in Marco C., the appeal having arisen out of an adoption proceeding, not a severance. ¶ 30 Here, contrary to Frank’s argument, the juvenile court implicitly, if not expressly, determined that as a general proposition, Arizona’s putative fathers registry applies to out-of-state putative fathers. The court ruled that the statute was “designed to avoid protracted legal disputes between unwed fathers and potential adoptive parents” and “was also designed for resolving disputes between Arizona and non-Arizona residents who give birth to children in Arizona.” As we noted above, Beltran and other courts have applied them putative father registries to out-of-state putative fathers. See, e.g., Heidbreder, 645 N.W.2d at 360, 375; Hylland, 867 P.2d at 553, 556-57; Adoption of B.B.D., 984 P.2d 967, ¶¶ 31-33; In re Adoption of W., 904 P.2d 1113, 1115, 1121 (Utah Ct.App.1995). The juvenile court therefore did not err in finding, whether implicitly or expressly, that, as a general principle, a putative fathers registry can apply to an out-of-state putative father. Due Process and Jurisdiction ¶31 We now turn to Frank’s argument that the application of § 8-106.01 to the circumstances of this case violated his due process rights. This argument is intertwined with his assertions that the juvenile court lacked “jurisdiction” to apply Arizona’s registry to him and to sever his rights based on his failure to register. Frank argues it was unconstitutional to deny him “the protection of California law” and apply § 8-106.01 to him at all, given Rachel’s deceitful conduct and misrepresentations to the court, which was “furthered by Mother Goose Adoptions’ obfuscation in its pleadings and intentional lack of candor to the court.” He argues he was deprived of notice and an opportunity to be heard and that, even conceding, “for the sake of argument only, that the court had jurisdiction” over him, such jurisdiction did not determine the “choice of law” and he could not “lawfully be denied the protection of California law on the basis that the mother traveled to Arizona and committed perjury that was furthered by Mother Goose Adoptions in order to deny him access to and custody of his child.” Blending issues of personal and subject-matter jurisdiction with issues of due process and choice of law, he argues in his briefs on appeal that because of the lack of notice and an opportunity to be heard, the juvenile court had “no jurisdiction to adjudicate such personal rights.” ¶32 At oral argument before this court, Frank abandoned his personal-jurisdiction challenge. He conceded the record shows he submitted himself to the jurisdiction of the juvenile court, waiving this claim. We therefore do not address it further. Frank persisted at argument in this court, however, that the court lacked subject-matter jurisdiction. Although some of his arguments were, in actuality, continued challenges to the court's personal jurisdiction over him, he seemed to argue that Arizona did not have jurisdiction under the UCCJEA, because the court’s assertion of jurisdiction had been based on Rachel’s and Mother Goose’s misrepresentation of the true facts, particularly those related to jurisdiction. ¶ 33 Frank asserted in his pro se response to the severance petition that California had jurisdiction to decide matters related to his parental rights and to hear any termination petition. But in his pretrial statement, Frank listed among the uncontested issues, “[t]he Pima County Juvenile Court has primary jurisdiction to hear this matter.” Because neither party ordered a transcript of the UCCJEA hearing in November 2014, we are unable to determine what arguments Frank may have made in opposing Arizona’s jurisdiction of the severance proceeding under the UCCJEA. But, during closing argument in the severance hearing, when Frank’s counsel seemed to be challenging the court’s jurisdiction under the UCCJEA, the juvenile court asked counsel whether she was requesting that the court “reconsider” its decision to retain jurisdiction based on Rachel’s fraudulent and deceptive conduct and Mother Goose’s misrepresentations and give the case to the California court. Counsel responded, “I don’t think that’s appropriate,” urging the court to consider that behavior in connection with the severance and “rectify the wrongs that have been perpetrated on my client.” Counsel conceded Arizona was the “home state” for purposes of the UCCJEA and that the court should continue to retain jurisdiction. ¶ 34 Nor does it appear Frank challenged the California court’s order quashing the hearing on his paternity action, deferring jurisdiction to Arizona, and dismissing his California petition. Nevertheless, the issue of a court’s subject-matter jurisdiction may be raised at any time, Health For Life Brands, Inc. v. Powley, 203 Ariz. 536, ¶¶ 11-12, 57 P.3d 726, 728 (App.2002), and parties cannot confer jurisdiction on a court if it is lacking, Sw. Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, n. 5, 36 P.3d 1208, 1215 n. 5 (App.2001). In addition, “[t]his court has an independent obligation to evaluate subject matter jurisdiction.” See Angel B. v. Vanessa J., 234 Ariz. 69, ¶ 5, 316 P.3d 1257, 1259 (App.2014). Thus, to the extent Frank is truly challenging the court’s subject-matter jurisdiction, we address the argument. Whether the juvenile court had subject-matter jurisdiction of the severance proceeding is a question of law, which we review de novo. Id. ¶ 6. ¶ 35 E.E. was in this state when the severance proceeding commenced on May 14, 2014, and, based on Rachel’s having relinquished her parental rights to Mother Goose, a licensed adoption agency, for purposes of adoption, E.E. was under Mother Goose’s legal control and it was authorized to place him in an approved home. See AR.S. §§ 8-101(3) (defining agency placement adoption); 8-106(A)(5) (acknowledging consent to adopt may be given to adoption agency, which may then place child for adoption); 8-107(D) (providing consent to adopt shall designate an adoption agency or the department of child safety as party authorized to place child for adoption, or a specific person to adopt); 8-126 (authorizing licensing and oversight of adoption agency); 8-130(A) (providing licensed adoption agency may arrange direct placement of child following consent to adoption granted to agency); see also Ariz. Admin. Code R6-5-7002, R6-5-7003 (licensing of adoption agency). Arizona had subject-matter jurisdiction of the severance petition. See A.R.S. § 8-532 (court has jurisdiction to decide severance petition when child in state). That was not altered by the fact that E.E. left the state immediately following the ICPC placement approval, the same day the petition was filed. In addition, under the UCCJEA, which applies to proceedings to terminate parental rights, see A.R.S. § 25-1002(4)(a), Arizona had jurisdiction to make the initial custody determination regarding E.E. because he was born in Arizona and it was his “home state” on the date the severance proceeding commenced. See §§ 25-1002(7); 25-1031(A)(l); see also § 25-1002(8) (initial custody determination is “the first child custody determination concerning a particular child”). Once a court with original jurisdiction issues an initial child custody order, the UCCJEA gives that court exclusive, continuing jurisdiction over all future custody determinations, subject to statutory exceptions. § 251032(A); see also Angel B., 234 Ariz. 69, ¶ 8, 316 P.3d at 1260. ¶ 36 Here, unlike in Angel B., 234 Ariz. 69, ¶ 20, 316 P.3d at 1262-63, a court of this state entered the initial custody order and the two courts conferred to determine whether Arizona had and should retain continuing jurisdiction under § 25-1031 and § 25-1032. To the extent Frank argues the juvenile court erred in electing to retain jurisdiction rather than relinquishing to California in light of Rachel’s and Mother Goose’s conduct, that is not truly a subject-matter jurisdiction question. Rather, “even if a court may exercise jurisdiction under the UCCJEA, the decision [to] do so is” for a trial court to make in the exercise of its discretion. Cheesman v. Williams, 311 Mich.App. 147, 874 N.W.2d 385, 387 (2015); see also Wagner v. Wagner, 887 A.2d 282, ¶ 12 (Pa.Super.Ct.2005) (“ ‘A court’s decision to exercise or decline jurisdiction [under the UCCJEA] is subject to an abuse of discretion standard of review____’”), quoting Lucas v. Lucas, 882 A.2d 523, ¶4 (Pa.Super.Ct.2005). Consequently, this is not a question of the court’s subject-matter jurisdiction and the challenge was waived. ¶ 37 Despite Rachel’s misrepresentations and Mother Goose’s false statements in connection with the ICPC placement of E.E. in Tennessee and in its pleadings, all of which are deeply troubling, the juvenile court did not lack subject-matter jurisdiction of the severance proceeding. Cf. Hylland, 867 P.2d at 553-54 (finding that although father had lived in California and child was conceived in that state, Oregon had jurisdiction under UCCJEA to hear adoption proceeding because child was born there and had been living there with adoptive parents, who had colorable claim to custody because they had been appointed as child’s guardians and mother had consented to adoption). Due Process ¶38 We now turn to Frank’s due process arguments and his claim that application of the statute deprived him of an important personal right without adequate notice and an opportunity to be heard. Rejecting these and similar claims, the juvenile court relied, in part, on Beltran, in which the Utah Court of Appeals strictly applied Utah’s paternity registry to an out-of-state putative father. 926 P.2d at 895, 897-98. On appeal from summary judgment in favor of the adoption agency, the father in Beltran argued he should have been excused from filing an acknowledgment of paternity under a pro vision of the statute that permitted a father to show it had not been possible for him to comply with the registry during the requisite period of time. Id. at 895-96, citing former Utah Code § 78-30-4.8(3)(a) through (e), repealed by 1995 Utah Laws, ch. 168, § 15. The court rejected the California father’s argument that he should not have been required to comply with Utah’s registry because, like Frank, he had made clear to the mother and the adoption agency he opposed the adoption and because he had filed a paternity action in California and one in Utah. Id. at 896. Requiring strict compliance with the statute, not substantial compliance, the court in Beltran also rejected the father’s argument that the statute was unconstitutional as applied to him because the mother consistently told him she intended to relinquish her rights and consent to the child’s adoption. Id. at 897. ¶39 Frank suggests the juvenile court’s reliance on Beltran was misplaced because the father in that ease knew the mother intended to travel to Utah and place the child there for adoption and chose not to comply with Utah’s paternity registry. He argues the Utah Supreme Court’s recent decision in Nevares v. M.L.S., 345 P.3d 719, ¶¶ 15, 23-25 (Utah 2015), is far more instructive here. He relies on it for the proposition that to satisfy the requirements of due process, the juvenile court was required to apply California’s paternity law to him, not Arizona’s statutes. And, Frank insists, he adequately asserted his parental rights in California by filing and serving Rachel with the California petition in July 2014. ¶ 40 Mother Goose attempts to distinguish Nevares on the basis that there the court did not address the constitutionality of Utah’s putative fathers registry. But that is not the most significant distinction. Rather, the result in Nevares was determined by Utah’s impossibility exception, which differs in material respects from § 8-106.01(E). 345 P.3d 719, ¶ 13. Under the Utah statute an out-of-state putative father is excused from complying with Utah’s putative fathers registry if he did not know and could not reasonably have known the child would be placed for adoption in Utah. Utah Code § 78B-6-122(l)(c)(i). Under those circumstances, the father’s consent to an adoption is required if he has “fully complied with the requirements to establish parental rights in the child, and to preserve the right to notice of’ an adoption “imposed by ... the last state where the unmarried biological father knew, or through the exercise of reasonable diligence should have known, that the mother resided in before the mother executed the consent to adoption.” Utah Code § 78B-6-122(l)(c)(i)(B). ¶ 41 This portion of Utah’s statute essentially is a choice-of-law provision, which does not exist in § 8-533(B)(6) or § 8-106.01. The Utah Supreme Court reasoned in Nevares that the statute was intended to incorporate another state’s law, in that case Colorado law, under which a father’s rights are presumptively preserved unless and until terminated by court order in a proceeding of which the known father must be given notice and an opportunity to be heard. 345 P.3d 719, ¶¶ 17-18. Although Colorado offered other options to a father for asserting and preserving paternal rights, it required nothing more to do so; therefore, the Utah court concluded the father was entitled to notice and an opportunity to be heard in the Utah adoption proceeding. Id. ¶ 20. The court concluded further that the father’s due process rights would be violated if the statute were to be construed to require him to fulfill requirements Colorado did not impose, “holding him to a legal regime to which he could not reasonably have expected to be bound.” Id. ¶ 25; see also In re Adoption of B.Y., 356 P.3d 1215, ¶ 33 (Utah 2015) (citing Nevares as example of case in which “a father’s due process right to be heard is infringed where his rights are foreclosed for failure to comply with the Adoption Act” because he could not have known his child would be born in Utah and placed for adoption). ¶ 42 Mother Goose relies on Heidbreder, a case factually similar to this one. In Heidbreder, the Minnesota Supreme Court affirmed the lower court’s strict application of that state’s putative fathers registry to an out-of-state father who was deceived by the mother and did not know she had left their home state of Iowa and had gone to Minnesota, where she had given birth to the child and consented to the child’s adoption. 645 N.W.2d at 360-62, 369. On the thirty-first day after the child was born, the father learned the mother had given birth in Minnesota, and he mailed the required forms to the Minnesota Fathers’ Adoption Registry, which he found on the internet. Id. But his registration was one day late; he was required to register no later than thirty days after the child’s birth. Id. at 365. The court rejected the father’s argument that the mother’s conduct amounted to fraud that excused his compliance with the Minnesota statute, and even rejected his argument that it had been impossible for him to have timely registered under a provision in the Minnesota statute that is similar to § 8-106.01(E). Id. at 365-69. ¶ 43 The court in Heidbreder also rejected the father’s argument that application of the Minnesota statute to him violated his due process rights, specifically his right to establish his inchoate parental rights. See id. at 372-76. The court concluded the father did not have an established relationship with the child; therefore, “the only due process issue is whether the state ‘has adequately protected his opportunity to form such a relationship.’ ” Id. at 373, quoting Lehr, 463 U.S. at 262-63, 103 S.Ct. 2985. It based its conclusion that the father’s limited due process rights had not been violated in part on the fact that under Minnesota’s statute, a putative father who failed to timely register but commenced a still-pending paternity action within thirty days of the child’s birth, was not prohibited from bringing or maintaining an action to assert his interest in the child while an adoption remained pending. Id. at 374-75. The court reasoned that, because the statute did not require such an action to be filed in Minnesota, application of the Minnesota statute to him did not deprive him of the opportunity to assert his parental rights. Id. The court stated that the father could have commenced a paternity action in his home state of Iowa or any other state, or filed with the paternity registry in another state, to establish his commitment to the child before the mother consented to the adoption. Id. at 375. Notably, the court reached this conclusion in the context of adoption proceedings, applying a statute that provided alternative means for a putative father to assert his rights. ¶ 44 But here, in the context of a severance action, pursuant to § 8—533(B)(6), our legislature has plainly established that a putative father’s failure to file a notice of paternity with Arizona’s registry alone is a ground for terminating his rights. Section 8-533(B)(6) provides no exception or alternative means for a putative father to assert his rights and avoid the plain effect of failing to register, nor does it link termination under the statute to adoption proceedings under § 8-106. The legislature enacted § 8—533(B)(6) eight years after it created the registry, and its intent was made plain by the clear, straightforward language. See 2002 Ariz. Sess. Laws, ch. 173, § 4; 1994 Ariz. Sess. Laws, ch. 116, § 2. Frank’s reliance on the procedures in the adoption context under § 8-106 is therefore unavailing. The question remains, then, whether the requirements of Arizona’s registry could, consistent with due process, be applied to Frank, given that the earliest he learned about E.E.’s May birth in Arizona was August 28, well beyond the thirty-day period prescribed in § 8-106.01(B). ¶ 45 The juvenile court found and the record shows that until August 28, when Frank appeared for the hearing on his California paternity petition and was served with Mother Goose’s request for an order quashing the California proceeding on the ground that Arizona was E.E.’s “home state,” Frank had no notice that E.E. had been born in Arizona or that proceedings relating to E.E. were being conducted in this state. Rachel knew Frank likely was the father, knew he opposed adoption, and, as the court found, she went to Arizona for the purpose of eluding Frank and thwarting any effort by him to block an adoption. By the time Frank did learn E.E. had been born in Arizona, E.E. was close to four months old. Frank is therefore correct that Rachel, and to some degree Mother Goose, created the very situation that formed the basis for the first-amended severance petition. This court has held in the analogous situation where abandonment is the ground for terminating a parent’s rights, a parent’s lack of contact and a relationship with a child cannot be the basis for a finding of abandonment for purposes of § 8—533(B)(1), when the petitioner created the circumstances that resulted in a parent’s lack of contact. Calvin B. v. Brittany B., 232 Ariz. 292, ¶ 1, 304 P.3d 1115, 1116 (App.2013) (“[A] parent who has persistently and substantially restricted the other parent’s interaction with their child may not prove abandonment based on evidence that the other has had only limited involvement with the child.”); see also Michael J., 196 Ariz. 246, ¶ 25, 995 P.2d at 687 (Department of Child Safety “ ‘may not unduly interfere with’ ” parent-child relationship and argue parent’s rights should be terminated based on abandonment), quoting Pima Cty. No. S-114487, 179 Ariz. at 94, 876 P.2d at 1129. ¶ 46 But we find unpersuasive Frank’s contention that he should be exempt from the requirements of the statute under a theory of common law fraud based on Rachel’s deception and Mother Goose’s false representations in this proceeding. We note, too, as the court suggested in Heidbreder, 645 N.W.2d at 366-68, if the legislature had wanted the mother’s deception and concealment of facts related to the child’s birth, including the place of birth, to excuse a putative father from strictly complying with the statute, it would have created an exception for that kind of conduct. See In re Casey G., 223 Ariz. 519, ¶ 7, 224 P.3d 1016, 1018 (App.2010). Nevertheless, even in the face of the deceptive conduct here, we think Arizona’s impossibility provision, although different from Minnesota’s or Utah’s, affords an out-of-state father adequate protection and the manner in which the juvenile court applied that provision did not violate Frank’s substantive or procedural due process rights. See § 8-106.01(E). ¶ 47 Significantly, the juvenile court did not terminate Frank’s parental rights because he had failed to register within thirty days of E.E.’s birth, a result that could fairly be characterized as absurd and a violation of due process under the circumstances of this case. Had the court reached that conclusion, we would have agreed with our dissenting colleague and would have reversed the court’s ruling. Rather, the court implicitly found that it had not been possible for Frank to register within that period and, based on the impossibility exception under § 8-106.01(E), found the time period commenced at the earliest on August 28, 2014, the date on which Frank admitted he first learned E.E. was born in Arizona, requiring him to register by September 27. The court found, at the latest “the time limit began to run [on] October 8, 2014[,] when he was appointed Arizona counsel.” Therefore, the court concluded, Frank was “required to register no later than November 7, 2014.” That interpretation and application of the statute avoided the absurdity of requiring Frank to comply with the statute of a state where neither he nor the child’s mother lived or had a relationship, and where he did not know and had no reason to know the child would be or had been born. ¶ 48 But Frank did not file a notice of paternity with the registry at any point, much less within thirty days after he had actual notice of the child’s birth in Arizona. Despite their improper conduct, neither Rachel nor Mother Goose prevented Frank from filing a notice of paternity within thirty days after August 28, that is, by September 27 at the earliest or within thirty days of October 8, which was November 7, at the latest; that was Frank’s decision. The primary deception had already occurred by the time the thirty-day-period commenced for purposes of the impossibility exception. As the juvenile court correctly found, “[t]he deceitful acts of the mother do not void the duty of the unwed father to strictly comply with registration____ The father had the ability to register notwithstanding the mother’s fraudulent practices and chose not to do so.” ¶49 Frank suggests that in light of the important right here and the actions he took to assert and preserve his rights—filing and serving the California petition and coming to Arizona to litigate the severance petition and filing a response—the juvenile court should not have required him to register at all. Frank essentially is asking this court to find that substantial or substitute compliance with the statute should have been sufficient under the circumstances of this ease. There is facial appeal to his argument that he had already put Rachel, Mother Goose, and the adoptive parents on notice of his opposition to the adoption and desire for custody of E.E., and our dissenting colleague would reverse on that basis. But neither the statute nor case law supports this argument. ¶ 50 This court has already held that the putative fathers registry statute must be strictly applied; substantial eompli anee is insufficient. Marco C., 218 Ariz. 216, ¶¶ 9, 10, 181 P.3d at 1140-41; see also Heidbreder, 645 N.W.2d at 369 (declining to “carve out a substantial compliance exception” and finding legislature’s inclusion of impossibility exception reflects it did not intend to excuse compliance based on substantial compliance). Nor is substitute compliance sufficient. As stated above, had the legislature wanted to, it could have provided alternative grounds for terminating a putative father’s parental rights and not made failure to comply with § 8-106.01 alone an independent, discrete basis for termination. It could have carved out exceptions to its application for putative fathers who have otherwise sought to develop their inchoate rights, such as a fraud exception or a circumstance in which substantial or substitute compliance would have sufficed. But it did not do so. Rather, it seems to have made a policy decision to draw a bright-line rule with respect to putative fathers’ assertion of their rights. While we agree with the dissent that the result may be harsh in this case in light of egregiously deceptive conduct, creating a fact-based excuse for compliance with the statute takes us down a potentially slippery slope, where other putative fathers may argue their acts gave the relevant parties notice of their assertion of their rights and rendered compliance superfluous. But it is not for the courts to “rewrite statutes to effectuate a meaning different than the one the legislature intended.” Parker v. City of Tucson, 233 Ariz. 422, ¶ 20, 314 P.3d 100, 108 (App.2013). Unless the application of a clear, unambiguous statute according to its plain terms results in consequences that are impossible or absurd, we will not infer terms that do not exist because the language our legislature used is generally conclusive evidence of its intent. Reeves v. Barlow, 227 Ariz. 38, ¶ 12, 251 P.3d 417, 420 (App.2011); see also In re Nicholas S., 226 Ariz. 182, ¶ 18, 245 P.3d 446, 450 (2011) (“[Cjourts cannot salvage statutes by rewriting them because doing so would invade the legislature’s domain.”); City of Phoenix v. Butler, 110 Ariz. 160, 162, 515 P.2d 1180, 1182 (1973) (courts do not “rewrite statutes,” rather it is for legislature to determine “the appropriate wording” of a statute and “the court may not substitute its judgment for that of the Legislature”). ¶ 51 In any event, Frank did not file a paternity action in Arizona until March 24, 2015, nearly seven months after he first learned E.E. had been born in Arizona. To the extent Frank is arguing that because he is an out-of-state father, the California petition should be regarded as sufficient compliance with the registry, we disagree with that argument as well. The clear language of the statute does not support that interpretation. ¶ 52 The decision by another division of this court in David C., on which Frank relies in his reply brief, does not persuade us we must reach a different conclusion here. That case, unlike this one, involved an appeal from the juvenile court’s grant of the putative father’s motion to set aside an adoption. 238 Ariz. 174, ¶ 1, 358 P.3d at 596. The juvenile court in that case had granted the putative father’s motion because although the father had not filed a notice of claim of paternity under § 8-106.01, he had filed and served the mother with a paternity action under title 25 within thirty days of the § 8-106(G) notice, which was served by publication. Id. ¶¶ 9, 10. The court concluded “the putative fathers registry supplements and does not supplant a father’s right to pursue a paternity action.” Id. ¶ 16. The court distinguished Marco C. based on the fact that in that case, the father had not timely served the mother with the paternity action and, therefore, the outcome in that case would have been the same without regard to the waiver provision of § 8-106.01(E). Id. ¶ 21. The court added, in any event, “we respectfully disagree with the reasoning of Marco C. insofar as it holds that filing with the putative fathers registry is a necessary precondition in all cases in which a father asserts his parental rights.” Id. ¶ 21. ¶ 53 Similarly, in an earlier decision, another department of this court seemed to suggest that, but for the fact that the mother had not been served with the father’s initial or amended Texas paternity complaint within thirty days of service on the father of the notice under § 8-106(G), the Texas action might have satisfied the requirement of § 8-106(G)(3) and (4), requiring the filing of a paternity action under title 25. Jared P. v. Glade T., 221 Ariz. 21, ¶¶ 15-16, 209 P.3d 157, 160 (App.2009). ¶ 54 We need not resolve the possible conflict between the decisions by two departments of this court. Neither ease involved termination of the putative father’s rights pursuant to § 8-533(B)(6) and the requirements of § 8-106.01 in the context of a severance proceeding. Indeed, in Jared P., the court noted the distinction between an action to terminate a father’s rights pursuant to § 8-533(B)(5), failure to file a paternity action “as prescribed in § 8-106, subsection G,” and notice and consent requirements in § 8-106. 221 Ariz. 21, ¶ 30, 209 P.3d at 163. As we previously stated, nothing in § 8-533(B)(6) states or even suggests that filing a paternity action, whether in Arizona or another state, takes the place of the putative father’s obligation to file a notice under the putative fathers registry. ¶ 55 As part of his due process arguments, Frank appears to assert a choice-of-law issue, suggesting California law should have been applied. We have addressed the application of California law in this matter in various regards above, but Frank did not raise a true choice-of-law argument below. The gravamen of his argument was that because of the fraud perpetrated by Rachel and Mother Goose, the proceedings were unfair, he was deprived of notice, and his due process rights were violated. He argued he was not required to comply with Arizona law “because he had already asserted his interest in this child [and] ... had given notice to the world that he was” a putative father seeking “orders to find him to be the legal father.” And, he argued, he protected his rights with the pro se response to the severance petition that he filed in October. His attorney asserted, “[W]hat would his filing [with the putative fathers registry] have accomplished that had already not been accomplished[?]” But Frank did not argue below that he was entitled to application of California law, only that under the present facts, no purpose would be served by registering. The issue is therefore waived and having already addressed these arguments in the context of Frank’s due process claims, we do not address them further. See Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, n. 3, 178 P.3d 511, 516 n. 3 (App.2008) (parent waives claims raised for first time on appeal). ¶ 56 Frank also failed to adequately preserve any argument that his rights under the Fifth and Fourteenth Amendments to the Constitution were violated because Mother Goose is a state-licensed agency and, therefore, its deception was “state action” that deprived him of his fundamental right to parent and develop a bond with his child. Accordingly, we do not address it further. See id. (parent waives claims, including constitutional claims, raised for first time on appeal). In any event, this argument overlapped with his due process arguments, which we have addressed. Child’s Best Interest ¶ 57 Frank also challenges the juvenile court’s finding that termination of his parental rights is in the child’s best interest. He contends that, because he has a fundamental constitutional right to the care, custody, and control of his child, it was inappropriate for the court to compare his circumstances with those of the adoptive parents. He argues that when the interest is “between a fit parent, the father, and a private third party, Mother Goose Adoptions, both parties do not begin on equal footing.” To the extent Frank is suggesting Mother Goose was required to prove him unfit, he is mistaken. ¶ 58 A court may not terminate a parent’s rights unless the court finds clear and convincing evidence establishes one of the statutory grounds set forth in § 8-533(B), Michael J., 196 Ariz. 246, ¶ 12, 995 P.2d at 685, and a preponderance of the evidence establishes severance is in the child’s best interests, Kent K., 210 Ariz. 279, ¶ 22, 110 P.3d at 1018. We do not reweigh the evidence on appeal because “[t]he juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings.” Jesus M., 203 Ariz. 278, ¶ 4, 53 P.3d at 205. Thus, we view the evidence in the light most favorable to upholding the order. Manuel M., 218 Ariz. 205, ¶2, 181 P.3d at 1128. ¶ 59 As Frank acknowledged at oral argument before this court, the best-interest determination in this case, as in any severance proceeding, is a highly discretionary determination for the juvenile court to make, and we give great deference to its decision. Cf. Black v. Black, 114 Ariz. 282, 284, 560 P.2d 800, 802 (1977) (finding, in marital dissolution and custody action, that trial judge is in the best position to determine the issues and “is given wide discretion in deciding what will be in the best interests of the child”). We will not disturb the court’s order unless the factual findings upon which it is based “are clearly erroneous, that is, unless there is no reasonable evidence to support them.” Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, ¶ 2, 982 P.2d 1290, 1291 (App.1998). ¶ 60 The juvenile court’s order reflects that it considered and weighed the evidence relevant to E.E.’s best interest. See Demetrius L. v. Joshlynn F., No. CV-15-0274-PR, 239 Ariz. 1, ¶¶ 1, 15-17, 365 P.3d 353, 354, 356-57, 2016 WL 116104 (Ariz. Jan. 12, 2016) (reviewing criteria for best-interest determination in severance and finding same factors applicable in private severance, including prospect of adoption, as in proceeding initiated by the state). The court considered Frank’s conduct before E.E. was born, the fact that Frank’s paternity has been established, and his wish to establish a relationship with the child. The court stated it gave “special, presumptive weight to the father’s natural desire to raise his own child,” finding that desire to be “genuine and heartfelt.” The court considered the benefit and detriment to the child of granting and denying the severance petition but concluded, “Staying in the same home, environment and surroundings that he has known since birth will benefit the minor and not cause trauma to the child. Childhood stability is an important but not a controlling factor in determining the best interest of the minor.” The court concluded “that given all the circumstances, it is in the best interests of the child to sever the parental rights of the father.” ¶ 61 The juvenile court carefully weighed the evidence before it and did not consider inappropriate factors. The evidence supports the court’s findings that relate to E.E.’s best interest and therefore supports its conclusion that ultimately termination of Frank’s parental rights is in E.E.’s best interest. We have no basis for disturbing that ruling. Sanctions ¶ 62 This case raises serious concerns about the conduct of Mother Goose and its counsel throughout these proceedings. In addition to blatant misrepresentations by Mother Goose’s Executive Director in connection with the ICPC referral, the pleadings were filed in the Pima County Juvenile Court without regard to this state’s venue statute and repeatedly contained materially inaccurate allegations. We do not believe, however, that our authority to impose sanctions under Rule 25, Ariz. R. Civ.App. P., which applies to juvenile appeals, see Ariz. R.P. Juv. Ct. 103(G), authorizes this court to impose sanctions for conduct that occurred in the juvenile court. Moreover, there may be factual and other questions relating to this conduct that are for the juvenile court to assess and resolve, not this court. However, we can, and do, impose sanctions against Mother Goose and its attorneys for its frivolous cross-appeal. ¶ 63 “[A] frivolous appeal is one brought for an improper purpose or based on issues which are unsupported by any reasonable legal theory.” Johnson v. Brimlow, 164 Ariz. 218, 222, 791 P.2d 1101, 1105 (App.1990). Because there is a fine line between a frivolous appeal and one that simply lacks merit, we use sparingly the power to sanction attorneys or litigants for prosecuting frivolous appeals. Price v. Price, 134 Ariz. 112, 114, 654 P.2d 46, 48 (App.1982). Based on the record before us, and overwhelming evidence that Rachel and Mother Goose created the circumstances that were the primary basis for Prank’s purported abandonment of E.E., we find it frivolous for Mother Goose to have challenged the juvenile court’s finding that Mother Goose did not sustain its burden of proving Frank abandoned E.E. ¶ 64 We commend Mother Goose’s counsel for withdrawing the cross-appeal at oral argument. But by that point, Frank’s counsel had been compelled to answer Mother Goose’s opening brief and prepare for argument, and this court was required to review the issue as well. It is entirely appropriate for this court sua sponte to impose sanctions on parties or their attorneys for burdening this court with a meritless appeal. Id. We therefore award Frank reasonable attorney fees against Mother Goose and its counsel as a sanction under Rule 25, upon compliance with Rule 21, Ariz. R. Civ.App. P. Disposition ¶ 65 By affirming the termination of Frank’s parental rights, we do not in any respeet condone Rachel’s conduct or that of Mother Goose and possibly its counsel. And we agree with our dissenting colleague that Rachel’s dishonesty and Mother Goose’s “self-serving ‘oversights’” have resulted in litigation that “can have only an unsettling outcome,” particularly at this juncture. We also share the juvenile court’s concern that our decision “may on its face encourage mothers to seek interstate adoptions in Arizona without notice to a likely and known father.” But, as that court observed, “[sjuch an outcome would be rare when the father registers with the putative father registry within thirty days of prompt discovery of the Arizona birth,” which would eliminate § 8-533(B)(6) as a ground for termination of a father’s rights. The record and the court’s ruling reflect that it correctly applied the law and carefully considered and weighed the evidence before it. Therefore, although we do so reluctantly, as the dissent notes, we affirm the juvenile court’s order terminating Frank’s parental rights pursuant to § 8-533(B)(6). . Mother Goose filed a cross-appeal, challenging the juvenile court’s finding that it had not presented sufficient evidence to terminate Frank’s rights based on the additional ground of abandonment pursuant to § 8—533(B)(1). Mother Goose withdrew its cross-appeal at oral argument in this court. . At oral argument before this court. Mother Goose’s counsel claimed the incomplete and in correct information was the result of "an oversight by [her] office." . During oral argument before this court, Frank’s counsel seemed to suggest that Frank was not represented by counsel at the UCCJEA hearing. Although neither party requested a transcript of that hearing, the minute entry establishes Frank attended telephonically and was represented by the attorney who had been appointed on October 8. . Although Frank stated in his response to the severance petition that he believed California has jurisdiction over any petition to establish or terminate his parental rights because that is where he and Rachel reside, he did not expressly state he was objecting to the Arizona proceeding for lack of personal jurisdiction. Additionally, he asked the juvenile court for affirmative relief, including DNA testing and an order denying the petition on the merits, awarding him legal and physical custody of the child, thereby agreeing the severance proceeding could be litigated in Arizona. See Davis v. Davis, 230 Ariz. 333, ¶ 25, 284 P.3d 23, 28 (App.2012) ("By making an appearance, requesting affirmative relief from the court and taking these other actions before raising any personal jurisdiction issue, Husband consented to Arizona’s jurisdiction.”); State ex rel. Ariz. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, ¶ 8, 66 P.3d 70, 72 (App.2003) (Arizona court may exercise personal jurisdiction over non-resident if person "submits to the court’s jurisdiction by consent, enters a general appearance, or files a responsive document having the effect of waiving a contest to personal jurisdiction"). . Nor do we address Frank’s related choice-of-law argument, except to the extent it is intertwined with his due process arguments. He did not assert this as a distinct claim in the juvenile court nor has he developed it as such sufficiently on appeal. See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App.2008) (appellate court will not address issues or arguments waived by failure to adequately develop them in briefs). . As part of his blended subject-matter and personal jurisdiction arguments in his appellate brief, Frank complains he was harmed by not receiving "notice and by his being forced to give up the Petition he filed in California.” He further asserts the California court did not appoint counsel for him and he was "blind-sided” by the motion to quash that proceeding. But these are complaints he should have made in the California court. They do not relate to the juvenile court’s subject-matter jurisdiction, but are actually part of his fairness and due process arguments, which are addressed below. . Rachel having relinquished her parental rights to Mother Goose on May 8, for purposes of § 25-1002(7), which defines "home state,” Mother Goose was the "person acting as a parent” when the severance proceeding commenced. See § 25—1031 (A)(1). . This court observed in Angel B. that the juvenile court’s exclusive original jurisdiction to decide termination petitions relating to a child in this state, see § 8-532, can be harmonized with the provision of the UCCJEA that requires Arizona to “ ‘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.’ ’’ 234 Ariz. 69, ¶ 12, 316 P.3d at 1261, quoting § 251053(A); see also § 25-1002(4)(a) (UCCJEA applies to proceedings to terminate parental rights). Because an initial custody order had been entered in California in that case and nothing in the record showed the Arizona and California courts had conferred in compliance with the UCCJEA before the Arizona court severed the father’s parental rights, this court remanded the case to address the jurisdictional issues. Angel B., 234 Ariz. 69, ¶¶ 19-21, 316 P.3d at 1262-63. .We recognize that under A.R.S. § 25—1038(A), a court of this state "shall decline to exercise its jurisdiction” if the court has jurisdiction "because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct,” unless certain circumstances specified in the statute exist. However, at the time Mother Goose invoked the court’s jurisdiction by filing the initial severance petition, it was not aware Rachel had made false statements and it had not, therefore, engaged in “unjustifiable conduct.” The court likewise did not exercise jurisdiction because of such conduct. See Duwyenie v. Moran, 220 Ariz. 501, ¶ 14, 207 P.3d 754, 758 (App.2009). Moreover, at least one of the exceptions specified in the statute existed here: California relinquished jurisdiction to Arizona. See§ 25-1038(A)(2). . The court in Beltran relied on its earlier decisions in In re Adoption of W., 904 P.2d at 1115, 1120-21, in which the court had required strict compliance with the statute despite the fact that the mother had deceived the putative father and he did not know she had given birth in Las Vegas and relinquished the child to adoptive parents in Utah, and Sanchez v. L.D.S. Soc. Servs., 680 P.2d 753, 755 (Utah 1984), in which the Utah Supreme Court rejected the putative father’s argument that he had substantially complied with the statute by establishing his parental rights through methods alternative to the putative fathers registry. Beltran, 926 P.2d at 896. The Utah Supreme Court recently reaffirmed its decision in Sanchez, rejecting a putative father’s arguments on appeal from the district court's denial of his motion to intervene in an adoption proceeding that strict application of the registry to him in light of the mother’s deceitful conduct violated his procedural and substantive due process rights. In re Adoption of B.Y., 356 P.3d 1215, 1221-22, 1227 (Utah 2015). . In Ellis v. Social Services Department of the Church of Jesus Christ of Latter-Day Saints, 615 P.2d 1250, 1255-56 (Utah 1980), the Utah Supreme Court found strong due process considerations in applying Utah's registry to an out-of-state father who could not have known the child had been placed for adoption in that state. The court found "due process requires that he be permitted to show that he was not afforded a reasonable opportunity to comply with the statute.” Id. at 1256. Thus, the court did not hold that application of Utah’s registry to the out-of-state father was, per se, a violation of due process; rather, the due process violation occurred because he was deprived of the opportunity to establish he fell within the impossibility exception. . Unlike Minnesota's statute, Arizona’s statutes in the context of an adoption under § 8-106 provide no such alternative means for a putative father to assert his rights. In adoption proceedings, a putative father must not only register under § 8-106.01, he must file a paternity action in Arizona pursuant to title 25 of Arizona’s statutes and serve the mother in order to assert his rights, assure that he receive notice of an adoption, and require his consent before an adoption may be completed. See Marco C., 218 Ariz. 216, ¶ 18, 181 P.3d at 1142 (suggesting father’s failure to timely register alone sufficient ground for proceeding with adoption without his consent and refusing to address issue related to untimely service of paternity action). But see David C. v. Alexis S., 238 Ariz. 174, ¶¶ 16, 19, 358 P.3d 595, 599 (App.2015), review granted (Ariz. Jan. 5, 2016) (finding “putative fathers registry supplements and does not supplant a father’s right to pursue a paternity action” and finding timely service of paternity action required father’s no tice of adoption and consent of father who failed to timely register). But, even if we were to agree with the court in David C, its reasoning does not apply in the context of a severance under § 8-533(B)(6). . In contrast, § 8-533(B)(5), enacted just a year after § 8-106.01, see 1995 Ariz. Sess. Laws, ch. 221, § 5, provides a father’s rights may be terminated if he fails to file a paternity action under title 25 within thirty days of service of the notice of impending adoption pursuant to § 8-106(G), which requires a mother to serve on any potential father named by the mother or any putative father who has filed a notice of paternity under § 8-106.01. Section 8—533(B)(5) is therefore expressly linked to adoption proceedings under § 8-106. Had the legislature wanted to, it could have made the severance statutes less onerous by providing narrower grounds for termination: failure to file a notice of paternity under § 8-106.01 or another state’s registry, a paternity action under title 25 within the specified time limit, or a paternity action in another jurisdiction. See In re Casey G., 223 Ariz. 519, ¶ 7, 224 P.3d 1016, 1018 (App.2010). . It is clear that Rachel’s fraudulent representations to Mother Goose resulted in service of the § 8-106(G) notice by publication in Arizona. We agree with Frank this could not fairly be regarded as adequate notice to him of the impending adoption. But as we stated above, the notice required under that statute is not implicated in a severance proceeding under § 8-533(B)(6). In contrast, § 8—533(B)(5) provides that a father’s parental rights may be terminated based on his failure to file a paternity action within thirty days of completion of service of the notice under § 8-106(G). . We reject as absurd Mother Goose’s assertion at oral argument before this court that until a national putative fathers registry is created, a putative father can only be certain that his rights are protected if he registers with every registry in every state when he knows he has or might have impregnated a woman. . Although we reject Frank’s apparent argument that by filing his California petition he adequately asserted his rights and that the petition, together with his response to the severance petition, should be viewed as compliance with § 8-106.01, we are not certain in any event that he adequately established his rights under California law. Frank asserts his petition was timely under California law, citing Cal. Fam.Code § 7630, but the validity of that assertion is unclear in light of testimony during the severance hearing, particularly that of Ted Youmans, a California attorney with expertise in the area of adoptions and guardianships, who litigated two of California’s primary cases regarding unwed fathers. Youmans explained that although there is no paternity registry in California, alleged fathers must come forward during the mother’s pregnancy and demonstrate full commitment to a child and must file a petition, which can be filed during pregnancy, to establish himself as a father and attain what is referred to as "presumed father” status, entitling him to notice of all proceedings and requiring his consent for an adoption. He did not believe Frank had risen to the level of a presumed father whose consent would be necessary. Although he testified there is no fixed deadline for filing the petition, Wendy McGreevy, the attorney from the Center, testified that under Cal. Fam.Code § 7630 as well as §§ 7664 through 7666, Frank had thirty days from either the child’s birth or notice of alleged paternity, whichever comes first, to file the petition. Based on her testimony, Frank, who testified he knew Rachel’s due date was May 5, 2014, does not appear to have filed a timely petition under California law. . Similarly, this decision should not be construed as expressing any opinion about non-custodial causes of action Frank may assert for the misconduct.

Vice Chief Justice PELANDER, opinion of the Court. ¶ 1 We hold that in a private proceeding to sever parental rights, just as in state-initiated proceedings, a juvenile court may conclude that a proposed adoption benefits the child and supports a finding that severance is in the child’s best interests. I. ¶ 2 Joshlynn F. (“Mother”) filed this action to terminate the parental rights of the biological father, Demetrius L. (“Father”), to their now 9-year old child, D.L. We view the facts, which here are largely undisputed, in a light most favorable to sustaining the juvenile court’s findings. In re Appeal in Maricopa Cty., Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994). ¶ 3 Mother and Father never married but lived together for about three years after D.L.’s birth in September 2006. Their relationship ended in 2009, and Father moved to California while Mother and D.L. remained in Arizona. Thereafter, the parties had an informal visitation schedule for Father’s in-person contact with D.L., but Father’s visits ended in August 2010, after Father threatened Mother. ¶ 4 Over the next several years, Father had no contact with D.L. other than an unpleasant encounter in Nevada in November 2013, when Father’s family members punched Mother in D.L.’s presence. After August 2010, Father provided no child support and, except for one gift delivered by a family member, sent no gifts, cards, or letters to D.L. ¶ 5 Mother married in 2011, and D.L. and Mother’s four other children live with Mother and her husband (“Stepfather”). Stepfather has known D.L. for about six years, has a close and loving relationship with D.L., and wants to adopt him. Stepfather views and treats D.L. as his son and would “love for him to have a father.” According to Mother, D.L. is terrified of Father’s family and also is afraid of Father. ¶ 6 Mother petitioned to sever Father’s rights on the ground of abandonment. After a contested severance hearing in December 2014, the juvenile court found by clear and convincing evidence that Father had abandoned D.L., A.R.S. §§ 8-531(1), -533(B)(1), and found by a preponderance of the evidence that severance was in D.L.’s best interests, A.R.S. § 8-533(B). The court noted that D.L. “is adoptable” and may achieve “stability and permanence” in his Mother’s and Stepfather’s household. The court therefore granted Mother’s petition. ¶ 7 The court of appeals reversed the severance order based solely on its conclusion that “[the] record does not establish by a preponderance of evidence that terminating Father’s parental rights is in [D.L.’s] best interests.” Demetrius L. v. Joshlynn F., 1 CA-JV 15-0034, 2015 WL 4575956, at *1 ¶ 1 (Ariz.App. July 30, 2015) (mem. decision). Relying on Jose M. v. Eleanor J., 234 Ariz. 13, 316 P.3d 602 (App.2014), the court concluded that Stepfather’s plan to adopt D.L. did not permit a best-interests finding because D.L. was already living with Mother and Stepfather. Demetrius L., 1 CA-JV 15-0034, 2015 WL 4575956 at *2 ¶ 11. The court reasoned that whether Father’s parental rights are terminated will have no effect on the stability and permanency of Child’s current situation. Unlike situations in which adoption obviously benefits a child by ending the need for foster care, the adoptive plan in this case does not establish an increase in stability and permanency that necessitates terminating Father’s parental rights. Id. The court of appeals did not address Father’s challenge to the juvenile court’s finding of abandonment. ¶ 8 We granted review to address whether the court of appeals erred in relying on Jose M. to overturn the juvenile court’s finding of best interests. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶ 9 Because the juvenile court is in the best position to weigh evidence and assess witness credibility, we accept the juvenile court’s findings of fact if reasonable evidence and inferences support them, and will affirm a severance order unless it is clearly erroneous. Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 250 ¶ 20, 995 P.2d 682, 686 (2000); JS-8490, 179 Ariz. at 107, 876 P.2d at 1142. Here, sufficient evidence supports the juvenile court’s finding that termination of Father’s parental rights is in D.L.’s best interests, and the court of appeals erred in concluding otherwise based on Jose M. ¶ 10 Like this ease, Jose M. involved a private severance action in which the mother successfully petitioned to terminate the father’s parental rights to their child, S.M., on the ground of abandonment. 234 Ariz. at 14-15 ¶¶ 1-3, 316 P.3d at 603-04. The court of appeals vacated the juvenile court’s finding of abandonment and remanded “for a redetermination of that issue.” Id. at 17 ¶ 19, 316 P.3d at 606. Though stating that its resolution of the abandonment issue “renders moot whether the juvenile court erred by finding that severance is in the best interests of the child[,]” id. at ¶ 20, the court of appeals nonetheless addressed that issue and overturned the best-interests finding. Id. at 17-18 ¶ 23, 316 P.3d at 606-07. ¶ 11 In Jose M., S.M. resided with the mother and her fiancé, who “apparently would like to adopt” the child. Id. at 15 ¶ 8, 316 P.3d at 604. Distinguishing state-initiated severance actions in which a child is in foster care, the court of appeals observed that S.M.’s current “living arrangement already offers stability and permanence,” and “there is no suggestion that any day-to-day aspect” of that arrangement would change if the father’s rights were severed. Id. at 18 ¶ 23, 316 P.3d at 607. Under those circumstances, the court concluded that the mother’s “stated intent to marry fiancé on some undetermined future date, and fiancé’s interest in adopting S.M., without more, do not establish an increase in stability and permanency for S.M. to the degree necessary to demonstrate a benefit warranting severance of Father’s parental rights.” Id. ¶ 12 Arizona case law involving state-initiated severance actions indicates that “[t]he best interest requirement may be met if ... the petitioner proves that a current adoptive plan exists for the child, or even that the child is adoptable.” Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50 ¶ 19, 83 P.3d 43, 50 (App.2004) (citations omitted); see also Audra T. v. Ariz. Dep’t of Econ. Sec., 194 Ariz. 376, 377 ¶ 5, 982 P.2d 1290, 1291 (App.1998) (in determining best interests, a court “may properly consider in favor of severance” factors that include “the immediate availability of an adoptive placement” and “whether an existing placement is meeting the needs of the child”). When a current placement meets the child’s needs and the child’s prospective adoption is otherwise legally possible and likely, a juvenile court may find that termination of parental rights, so as to permit adoption, is in the child’s best interests. Mary Lou C., 207 Ariz. at 50-51 ¶¶ 19-21, 83 P.3d at 50-51; Audra T., 194 Ariz. at 378 ¶ 6, 982 P.2d at 1292. ¶ 13 In both Jose M. and this case, the court of appeals applied a more onerous standard for establishing best interests in a private severance proceeding than that applied in a state-initiated proceeding. But we find no principled reason for creating an additional hurdle in private severance actions, particularly when the governing statute does not support that distinction or require the unspecified something “more” that Jose M. apparently calls for. 234 Ariz. at 18 ¶ 23, 316 P.3d at 607; see A.R.S. § 8-533(A), (B) (permitting “[a]ny person or agency that has a legitimate interest in the welfare of a child” to petition for severance and requiring the court to “consider the best interests of the child,” without distinguishing between state-initiated and private termination proceedings). There is no legal basis for placing more or less weight on the benefits from adoption depending on the identity of the petitioning party. Rather, juvenile courts must assess the relevant facts in determining on a case-by-case basis whether a preponderance of the evidence supports a best-interests finding. ¶ 14 Of course, a court need not automatically conclude that severance is in a child’s best interests just because the child is adoptable; there may be other circumstances indicating that severance is not the best option. Lawrence R. v. Ariz. Dep’t of Econ. Sec., 217 Ariz. 585, 587 ¶ 8, 588 ¶ 11, 177 P.3d 327, 329, 330 (App.2008). Nor can we “assume that a child will benefit from a termination simply because he has been abandoned.” In re Appeal in Maricopa Cty. Juv. Action No. JS-500274 167 Ariz. 1, 5-6, 804 P.2d 730, 734-35 (1990). ¶ 15 “In a best interests inquiry, however, we can presume that the interests of the parent and child diverge because the court has already found the existence of one of the statutory grounds for termination by clear and convincing evidence.” Kent K. v. Bobby M., 210 Ariz. 279, 286 ¶ 35, 110 P.3d 1013, 1020 (2005); see also In re Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz. 556, 559, 748 P.2d 785, 788 (App.1988) (“In most cases, the presence of a statutory ground will have a negative effect on the children!,]” which supports a best-interests finding.). Once a juvenile court finds that a parent is unfit, the focus shifts to the child’s interests. Kent K., 210 Ariz. at 285 ¶ 31, 287 ¶ 37, 110 P.3d at 1019, 1021. Thus, in considering best interests, the court must balance the unfit parent’s “diluted” interest “against the independent and often adverse interests of the child in a safe and stable home life.” Id. at 286 ¶35, 110 P.3d at 1020. Of foremost concern in that regard is “protecting] a child’s interest in stability and security.” Id. at ¶ 34 (citing Pima Cty. Juv. Severance Action No. S-114487, 179 Ariz. 86, 101, 876 P.2d 1121, 1136 (1994)). ¶ 16 As the court in Jose M. correctly recognized, “[t]ermination of the parent-child relationship is in the child’s best interests if the child would be harmed if the relationship continued or would benefit from the termination.” 234 Ariz. at 17 ¶ 21, 316 P.3d at 606. Framed in the disjunctive, this standard permits a finding of best interests based on either a benefit to the child from severance or some harm to the child if severance is denied. Mary Lou C., 207 Ariz. at 50 ¶ 19, 83 P.3d at 50; see also James S. v. Ariz. Dep’t. of Econ. Sec., 193 Ariz. 351, 356 ¶ 18, 972 P.2d 684, 689 (App.1998). It is well established in state-initiated cases that the child’s prospective adoption is a benefit that can support a best-interests finding. See Raymond F. v. Ariz. Dep’t of Econ. Sec., 224 Ariz. 373, 379 ¶ 30, 231 P.3d 377, 383 (App.2010) (listing factors to consider regarding best interests as (1) immediate availability of adoption placement; (2) whether the existing placement meets the child’s needs; and (3) whether the child is adoptable) (citations omitted). A child may likewise reap benefits from adoption, warranting a best-interests finding primarily on that basis, even in a private severance action and when the child is not a ward of the state. ¶ 17 Adoption obligates the adopting parent legally and financially to the child. See A.R.S. § 8-117(A) (“On entry of the decree of adoption, the relationship of parent and child and all the legal rights, privileges, duties, obligations and other legal consequences of the natural relationship of child and parent thereafter exist between the adopted child and the adoptive parent as though the child were born to the adoptive parent in lawful wedlock.”). Adoption also solidifies the adopting parent’s right to exercise custody and control of the child in the future, serving to advance the child’s wellbeing. See In re Pima Cty. Juv. Action No. B-9385, 138 Ariz. 291, 293, 674 P.2d 845, 847 (1983). An adopted child also stands to inherit from the legal, adopting parent, without losing his or her rights to inherit from the other natural parent whose rights are severed. See A.R.S. §§ 14-1201(6), (12); - 2103(1); -2114(B); In re Estate of Ryan, 187 Ariz. 311, 314, 928 P.2d 735, 738 (App.1996). In sum, depending on the circumstances, adoption can provide sufficient benefits to support a best-interests finding in private and state severance actions alike. III. ¶ 18 Here, the court of appeals applied Jose M. to require Mother to present more evidence than Stepfather’s immediate plan to adopt D.L. to prove that severance is in D.L.’s best interests. See Demetrius L., 1 CA-JV 150034 at *2 ¶ 10; see also Jose M., 234 Ariz. at 17-18 ¶¶ 20-23, 316 P.3d at 606-07. We need not decide whether the best-interests determination in Jose M. was correct based on its particular facts. But we disavow Jose M. ’s reasoning with respect to (1) its distinguishing the significance of adoption in private versus state-initiated severance cases, and (2) its assessing the benefits of adoption solely in terms of whether the child’s “day-to-day” living arrangement will change. The court of appeals in Jose M. and in this case thus erred in suggesting that a different standard applies in private severance actions and by viewing too narrowly the prospects and prospective benefits of adoption (that is, by focusing solely on whether adoption would change the child’s living arrangement). ¶ 19 In addition, Jose M. is distinguishable. The alleged benefit that the child in Jose M. might have gained from severance arguably was uncertain because the prospective adoption was tentative. Cf. Jose M., 234 Ariz. at 18 ¶ 23, 316 P.3d at 607 (noting the various uncertain contingencies in the parties’ relationships). Here, in contrast, D.L. already lives in a stable household not only with a custodial parent, but also with a close, loving stepparent who is prepared and willing to adopt him. Stepfather has been married to Mother for several years, and his adoption of D.L. is much more certain than a mere possibility. Cf. JS-500274 167 Ariz. at 7, 804 P.2d at 736 (finding “too speculative” to support best-interests finding mother’s testimony that possible “future husband” might “wish[ ] to adopt” the child). On this record, the juvenile court could readily find that severance would increase D.L.’s stability and legally fortify Stepfather’s relationship to him. That severance would not necessarily change “any day-to-day aspect of the current living arrangement,” Jose M., 234 Ariz. at 18 ¶23, 316 P.3d at 607, does not preclude a best-interests finding in these circumstances. ¶ 20 The juvenile court heard testimony that Father and D.L. have had virtually no contact for several years, and D.L. has been frightened by their few interactions. As the court observed, making D.L. adoptable would affirmatively improve his life in that it would add permanency and stability to the de-facto father-son relationship that Stepfather and D.L. already have. Undisputed testimony established this positive relationship. Severance would not merely position D.L. as a possible adoptee waiting and hoping for a better, willing provider to come along: Stepfather is married to Mother, has financially provided for D.L. for about half of D.L.’s life, and fulfills the psychological role of a parent. ¶ 21 In addition, adoption would formalize Stepfather’s obligations to D.L. If Mother becomes incapacitated or dies, Stepfather would be legally and financially responsible for D.L., whose continued custody with Stepfather would be assured. Moreover, terminating Father’s parental rights would avoid possible negative and psychologically harmful interactions with D.L., who has expressed fear of both Father and Father’s family members. Cf. JS-500274, 167 Ariz. at 8, 804 P.2d at 737 (reversing best-interests finding when no evidence suggested that child feared his father, had “become emotionally attached to another parental figure,” or would “gain” anything from severance). These are real benefits to D.L. that the court of appeals incorrectly discounted solely because D.L. already resides in a stable home with Mother and Stepfather and because, in the court’s view, no evidence showed that Father “was harming [D.L.], incapable of parenting, or that adoption actually would provide further stability for the child.” Demetrius L., 1 CA-JV 15-0034, at *2 ¶ 10. ¶ 22 Viewed in a light most favorable to upholding the juvenile court’s findings, the record contains reasonable evidence, including D.L.’s prospective adoption by Stepfather, to support the court’s finding that severance would be in D.L.’s best interests. The court of appeals thus erred in reversing that finding. IV. ¶ 23 We reverse the court of appeals’ decision and affirm the juvenile court’s finding that termination of Father’s parental rights is in D.L.’s best interests. Because the court of appeals did not address Father’s challenge to the juvenile court’s finding of abandonment, we remand the case to the court of appeals for resolution of that issue.

OPINION HOWE, Judge: ¶ 1 In this petition for special action arising from a capital murder case, Sammantha and John Allen challenge the trial court’s refusal to independently determine whether probable cause exists for child abuse offenses that the State has alleged are aggravating circumstances for sentencing purposes. We accept jurisdiction because the Allens have no adequate remedy by appeal, Ariz. R. P. Spec. Act. 1(a), and the issue is a purely legal question of first impression and statewide importance, Azore, LLC v. Bassett, 236 Ariz. 424, 426 ¶ 2, 341 P.3d 466, 468 (App. 2014). ¶ 2 The Allens argue that under the Arizona Supreme Court’s decision in Sanchez v. Ainley, 234 Ariz. 250, 321 P.3d 415 (2014), the trial court should have independently determined probable cause on the alleged aggravating circumstances related to the concurrently alleged child abuse offenses, rather than giving “conclusive effect” to the grand jury’s probable cause determination on the child abuse offenses on which the circumstances are based. Because Sanchez requires the trial court to make its own independent probable cause determination on the alleged aggravating circumstances, we accept jurisdiction and grant relief. FACTS AND PROCEDURAL HISTORY ¶ 3 In July 2011, Sammantha called 911 and reported that A.D., her 10-year-old niece, was dead. Investigators were initially told that A.D. had locked herself up in a box while playing hide-and-seek, but evidence indicated that A.D. had been purposely locked in the box. A grand jury indicted, as relevant here, Sammantha and John for first-degree murder, Sammantha for two counts of child abuse for allegedly placing AD. in the box on one occasion and placing A.D. in the box and throwing it around on another occasion, and John for one count of child abuse for allegedly placing A.D. in the box and throwing the box on another occasion. ¶ 4 The State filed notices of intent to seek the death penalty for both Sammantha and John, alleging several aggravating circumstances. The State alleged that the counts of child abuse filed separately against Sammantha and John constituted aggravating circumstances under A.R.S. § 13—751(F)(2). That statute provides, as relevant here, that convictions for serious offenses not committed on the same occasion as a homicide but consolidated for trial with the homicide constitute aggravating circumstances for determining whether the death penalty should be imposed as punishment for the homicide. Id. A conviction for child abuse, a dangerous crime against children, A.R.S. § 13-3623(A)(1), is by definition a “serious offense,” A.R.S. § 13-751(J)(6). ¶ 5 Pursuant to Chronis v. Steinle, 220 Ariz. 559, 208 P.3d 210 (2009), the trial court conducted a hearing to determine whether probable cause supported the alleged aggravating circumstances. At the hearing, the Allens objected to the trial court’s using the grand jury’s finding of probable cause for the child abuse offenses to satisfy the probable cause determination for the aggravating circumstances. The Allens relied upon Sanchez, in which the Arizona Supreme Court held that the trial court must grant a defendant’s request for a Chronis hearing even if the grand jury has made a previous probable cause determination on the State’s alleged aggravating circumstances. 234 Ariz. at 254 ¶¶ 13-14, 321 P.3d at 419. The trial court distinguished Sanchez, however, concluding that the grand jury’s finding of probable cause on the child abuse offenses was sufficient to establish probable cause regarding those charges. Therefore, the court reasoned, because the offenses were “serious offenses” under A.R.S. § 13—751(J), probable cause existed to proceed on the aggravating circumstances of previous convictions for serious offenses. Sammantha petitioned for special action review; John has joined. DISCUSSION ¶ 6 The Allens argue that the trial court erred in not independently determining whether probable cause supported the child abuse offenses as alleged aggravating circumstances rather than giving conclusive effect to the grand jury’s probable cause determination regarding the child abuse offenses of the indictment. We review de novo the interpretation of court rules, applying principles of statutory construction. State v. Whitman, 234 Ariz. 565, 566 ¶ 5, 324 P.3d 851, 852 (2014). Here, as Sanchez requires, the trial court must independently determine whether probable cause supported the child abuse offenses as aggravating circumstances alleged in this capital murder case for sentencing purposes. ¶ 7 In Chronis, the Arizona Supreme Court held that “Arizona Rule of Criminal Procedure 13.5(c) permits a defendant in a capital murder ease to request a determination of probable cause as to alleged aggravating circumstances.” 220 Ariz. at 560 ¶ 1, 208 P.3d at 211. In Sanchez, the Court expanded on Chronis and held that “the trial court must grant a defendant’s timely request for a hearing under Rule 13.5(c), even if the grand jury has previously made a probable-cause determination as to those alleged aggravating circumstances.” 234 Ariz. at 252 ¶ 1, 321 P.3d at 417. The Court stated that no statute or rule authorized a grand jury to determine whether probable cause supported aggravating circumstances alleged in capital cases. Id. at 253-54 ¶ 13, 321 P.3d at 418-19. The Court reasoned that grand jurors are authorized to inquire into offenses and return indictments for public offenses, but “ ‘aggravating circumstances’ do[ ] not fall within this definition because they merely guide sentencing determinations and do not proscribe conduct that is punishable by a term of imprisonment or fine.” Id. at 253 ¶ 8, 321 P.3d at 418. However, the Court emphasized that “even if the grand jury were authorized to determine that probable cause supports alleged aggravators, [a defendant] would be entitled to a Chronis hearing” because a capital defendant’s right “to challenge the legal sufficiency of an aggravator is neither conditioned on whether a grand jury has addressed the aggravator nor affected by the grand jury’s findings.” Id. at 254 ¶ 14, 321 P.3d at 419. ¶8 Because grand jury findings do not affect a capital defendant’s right to challenge the legal sufficiency of evidence supporting the allegation of aggravating circumstances, the trial court must make an independent probable cause determination on aggravating circumstances. The trial court here did not do so and instead accepted the grand jury’s probable cause determination on the child abuse offenses as a probable cause determination on the “serious offense” aggravating circumstances. This contradicts the supreme court’s holding in Sanchez. ¶ 9 We recognize that this may be procedurally burdensome and inefficient for the State. The State will often present to the trial court the same evidence to support probable cause for the aggravating circumstance that it presented to the grand jury to support probable cause for the underlying offense. Nevertheless, Sanchez requires this procedure, “reflecting th[e Arizona Supreme] Court’s objective to afford greater procedural rights to a defendant facing the death penalty,” 234 Ariz. at 254 ¶ 15, 321 P.3d at 419, and it must be followed. Following the Sanchez-mandated procedure gives a capital defendant the opportunity to review the evidence the State presents to support probable cause on the aggravating circumstances, to cross-examine witnesses, and to present rebuttal evidence—an opportunity not available in grand jury proceedings. Id. This opportunity means nothing, however, if the trial court does not then independently determine probable cause. Consequently, the trial court denied the Allens the benefit of a Chronis hearing on the “serious offense” aggravating circumstances. ¶ 10 The trial court attempted to distinguish Sanchez on grounds that (1) Sammantha and John were afforded a Chronis hearing; (2) the grand jury here did not previously find probable cause on the child abuse offenses as alleged aggravating circumstances; and (3) Sanchez does not allow a defendant to have the trial court redetermine a grand jury’s probable cause determination on public offenses. The trial court’s distinctions, however, do not alter Sanchez's specifically articulated holding that grand jury determinations of probable cause do not satisfy a capital defendant’s right to have the trial court independently determine probable cause on aggravating circumstances. First, simply providing the Allens a Chronis hearing does not satisfy Sanchez if the trial court does not independently determine probable cause on aggravating circumstances. Second, although the grand jury determined probable cause on the child abuse offenses as public offenses and not as aggravating circumstances, this does not alter the trial court’s duty under Sanchez to independently determine whether probable cause supported the offenses as aggravating circumstances. Third, although the grand jury found probable cause on the alleged public offenses of child abuse, the Allens are not seeking the redetermination of the grand jury’s findings, but the trial court’s determination in the first instance— as Sanchez requires—whether probable cause supports the aggravating circumstances. A capital defendant has the right to require the trial court to determine probable cause on aggravating circumstances in a Chronis hearing, even if the circumstances also constitute public offenses that have been subject to a grand jury’s probable cause determination. ¶ 11 The State counters that the trial court had sufficient evidence to find probable cause for the child abuse offenses as alleged aggravating circumstances and that the court properly did so. But this argument fails because the trial court’s ruling explicitly stated that the court was accepting the grand jury’s probable cause determination. Specifically, the court stated the “grand jury’s finding of probable cause respecting [the child abuse offenses] of the Indictment is sufficient to establish probable cause respecting those charges and because they are ‘serious offenses’ under the statute, the Court finds there is probable cause to proceed on the aggravating factor of a ‘prior serious offense.’ ” Consequently, because the trial court gave conclusive effect to the grand jury’s probable cause determination for the child abuse offenses, instead of independently determining whether probable cause supported the child abuse offenses as aggravating circumstances for sentencing purposes in this capital case, the trial court erred. ¶ 12 Our dissenting colleague contends that the trial court committed no error in declining to apply Sanchez to this case and in not independently determining probable cause on the “serious offense” aggravating circumstances. Our colleague distinguishes Sanchez in two ways. He argues first that unlike the facts of Sanchez, the grand jury here acted within its proper role, determining probable cause for the public offenses of child abuse, not probable cause for capital aggravating circumstances. See infra at ¶ 21. He argues second that unlike the trial court in Sanchez, the trial court here did not simply rely upon the grand jury’s probable cause determination of child abuse to find that the child abuse offenses were “serious offense” aggravating circumstances, it also independently determined that the child abuse offenses were “serious offenses” under AR.S. § 13-751(J). See infra at ¶22. These distinctions, however, do not take this case outside Sanchez's ambit. ¶ 13 The similarity between Sanchez and this ease is not based upon what the respective grand juries found probable cause on, but upon what the respective trial courts did with those findings once the grand juries made them. In Sanchez, the trial court found that the grand jury’s probable cause determination on the alleged aggravating circumstances relieved it of its independent duty under Chronis to determine probable cause on the aggravating circumstances. Sanchez, 234 Ariz. at 252 ¶ 4, 321 P.3d at 417. In this case, the trial court found that the grand jury’s probable cause determination on the child abuse offenses relieved it of its independent duty under Chronis to determine probable cause on the aggravating circumstances for being previously convicted of “serious offenses.” But the Arizona Supreme Court ruled in Sanchez that the trial court’s refusal to independently determine probable cause on the aggravating circumstances denied the capital defendant due process under Chronis. Sanchez, 234 Ariz. at 254 ¶ 14, 321 P.3d at 419 (“A capital defendant’s right under Rule 13.5(c) to challenge the legal sufficiency of an aggravator is neither conditioned on whether a grand jury has addressed the aggravator nor affected by the grand jury’s findings.”). Accordingly, just as in Sanchez, the trial court’s refusal here to independently determine whether probable cause supported the “serious offense” aggravating circumstances denied the Allens due process. ¶ 14 The trial court’s “finding” (as our colleague characterizes it, see infra at ¶25) that the child abuse convictions were “serious offenses” does not take this ease away from Sanchez because the trial court made no independent finding. Section 13—751(J) lists the offenses that qualify as “serious of fenses,” and “any dangerous crime against children”—which includes child abuse, A.R.S. § 13-3623(A)(1)—is on that list. AR.S. § 13-751(J)(6). A child abuse offense by legislative definition is a “serious offense,” and the trial court exercised no independent factual or legal judgment in recognizing that the child abuse offenses were “serious offense” aggravating circumstances under AR.S. § 13-751(F)(2). Our colleague’s view, thus, does not change the conclusion that the trial court denied the Allens due process by failing to independently determine whether probable cause supported those aggravating circumstances. CONCLUSION ¶ 15 For the foregoing reasons, we accept jurisdiction and grant relief. We also lift this Court’s previously ordered stay. . The State has opposed John’s joinder, arguing that no rule under the Arizona Rules of Procedure for Special Actions allows him to join in the action. But Rule 2 grants the court discretion in determining the parties in a special action, and Rule 2(b) specifically allows the court to "order [other persons’] joinder as parties.” Ariz. R. P. Spec. Act. 2. Consequently, we grant John’s request to join and deny the State's motion to strike. Moreover, we have amended the caption to reflect that John is a party in this action.

OPINION OROZCO, Judge: ¶ 1 Reggie Gable James appeals his convictions and resulting sentences for six counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs (aggravated DUI), all class 4 felonies. James asserts he cannot be convicted of aggravated driving while impaired under both Arizona Revised Statutes (A.R.S.) section 28-1383 A1 (driving intoxicated while license is restricted) and § 28-1381 A 4 (driving intoxicated when an Ignition Interlock Device (IID) is required) because an order requiring an IID under § 28-1383 A 4 is a “restriction” on his license under § 28-1383 A 1. For the following reasons, we vacate the judgment in part and affirm the judgment in part, as modified. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Scottsdale Police arrested James for aggravated driving under the influence. At the time of the arrest, James’s driver’s license and privileges had been suspended and revoked. In connection with a prior proceeding, the Arizona Motor Vehicle Division (MVD) had also ordered James to have an IID installed either before reinstatement of his license or the MVD receiving a copy of his conviction, whichever occurred last. ¶ 3 James was charged with six counts of aggravated DUI: 1) aggravated DUI while the license or privilege to drive is suspended, cancelled, revoked, refused, or restricted; 2) aggravated DUI with a BAC of .08 or more while the license or privilege to drive is suspended, cancelled, revoked, refused, or restricted; 3) aggravated DUI while subject to an IID; 4) aggravated DUI with a BAC of .08 or more while subject to an IID; 5) aggravated DUI while under the influence of intoxicating liquor with two prior convictions within eighty-four months; and 6) aggravated DUI with a BAC of .08 or more with two prior convictions within eighty-four months. ¶ 4 James was convicted of all counts. The trial court sentenced James to concurrent prison sentences, the longest of which was four and a half years. James timely appealed and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21 A 1, 13-4031 and - 4033 A 1 (West 2016). DISCUSSION 1. Ignition Interlock Device Convictions ¶ 5 James argues Counts 1 and 2 and Counts 3 and 4 were multiplicitous and that “convictions for both pairs ... violate his protection against double jeopardy.” We have previously held a defendant may be convicted of both A.R.S. § 28-1381 A 1 (impaired to the slightest degree) and § 28-1381 A 2 (BAC of .08 or more) without “offending the principles of double jeopardy.” State v. Nereim, 234 Ariz. 105, ¶ 112, ¶ 24, 317 P.3d 646 (App.2014); see also Anderjeski v. City Court, 135 Ariz. 549, 550-51, 663 P.2d 233 (1983) (interpreting the statutory predecessor to A.R.S. § 28-1381). James, however, asserts a defendant may not be convicted of aggravated driving while impaired under both AR.S. § 28-1383 A 1 (driving intoxicated while license is restricted) and § 28-1381.-A.4 (driving intoxicated when an IID is required). The premise of his argument is that an order requiring an IID under AR.S. § 28-1383 A.4 is the same as a “restriction” on his license under § 28-1383 A 1. He argues, therefore, that “[ejither Counts 1 and 2, or Counts 3 and 4 must be vacated.” Thus, the question James’s appeal presents is whether the convictions of Counts 1 and 3 and Counts 2 and 4, respectively, violated his double jeopardy rights. ¶ 6 At the time James was stopped, his license had been suspended and revoked. The MVD order issued in the prior proceeding required him to have an IID “installed on any motor vehicle that you operate for 12 [mjonths from the date that your driving privilege is reinstated or from the date we receive the report of conviction, whichever occurs later.” Therefore, by its own terms, the IID order had not become effective because his license had not yet been reinstated. Because James’s license had not been reinstated, there was not yet a requirement that he install an IID on any vehicle he operated. Consequently, while he could be charged with aggravated DUI for driving while his license was suspended and revoked pursuant to A.R.S. § 28-1383 A 1, James could not also be charged with, nor convicted of, a requirement that he had failed to obtain and operate his vehicle with an IID for a year under AR.S. § 28-1383 A 4. When police arrested James in the current proceeding, his driving privilege had not been restored, so the IID provision was not yet in effect. We therefore vacate the convictions for Counts 3 and 4. II. Corrected Sentencing Minute Entry ¶ 7 Both James and the State request this court amend the sentencing minute entry to reflect the sentence actually imposed at the sentencing hearing. When there is a discrepancy between the trial court’s oral statements at a sentencing hearing and its written minute entry, the oral statements control. State v. Ovante, 231 Ariz. 180, 188, ¶ 38, 291 P.3d 974 (2013). ¶ 8 The trial court initially sentenced James to 4.5 years’ imprisonment for all six counts. However, during the same sentencing hearing, the court amended the sentence to 2.5 years’ imprisonment for Counts 5 and 6 because James’s prior convictions were elements of the crimes and could not be used to enhance the sentences beyond the presump tive term. Notwithstanding that James stipulated to two prior felony convictions during sentencing, the trial court’s December 5, 2014 sentencing minute entry listed James as a non-repetitive offender on all counts. ¶ 9 The trial court issued a minute entry on January 8, 2015 amending its December 5 minute entry to correct James’s sentences for Counts 5 and 6 to 2.5 years’ imprisonment. We have vacated the convictions for Counts 3 and 4. We further modify the December 5 minute entry to reflect that James is a repetitive offender as to Counts 1 and 2. See State v. Jonas, 164 Ariz. 242, 245 n. 1, 792 P.2d 705 (1990); see also State v. Contreras, 180 Ariz. 450, 453 n. 2, 885 P.2d 138 (App.1994) (“When we are able to ascertain the trial court’s intention by reference to the record, remand for clarification is unnecessary.”). CONCLUSION ¶ 10 For the foregoing reasons, we vacate James’s convictions on Counts 3 and 4, affirm the convictions and sentences for Counts 1, 2, and 5, and modify the trial court’s December 5 minute entry consistent with this opinion. . James’s blood test, taken after his arrest, showed his blood alcohol content (BAC) was .105. . We cite the current version of applicable statutes when no revisions material to this opinion have since occurred.

OPINION DOWNIE, Judge: ¶ 1 Michael Russo appeals the dismissal of his civil claims against Steven Barger, Carol Barger, Alan Mishkin, and Carol Mishkin (collectively, “Appellees”) based on a forum selection clause that designates Mexico as the appropriate venue for litigation. Because we conclude that Appellees waived reliance on the forum selection clause by actively participating in the state court litigation for more than three years before moving to dismiss on that basis, we vacate the superior court’s judgment and remand for further appropriate proceedings. FACTS AND PROCEDURAL HISTORY ¶ 2 Russo spoke with a representative of Abigail Properties, LLC, and Las Palomas Resort, S.A. de C.V. about purchasing a condominium in Puerto Peñasco, Mexico. Russo was advised that the ongoing construction project was being supervised, managed, and developed by American citizens Alan Mishkin and Steve Barger. ¶ 3 On April 15, 2006, Russo entered into an agreement with The Worldwide Group, S.A de C.V. (“Worldwide”) to purchase a unit at the Las Palomas Seaside Golf Community (“the Condo”). Russo paid deposits totaling $136,150 and signed a purchase contract that included a forum selection clause stating: In case of any conflict or controversy that may arise as regards the interpretation or compliance hereof, the parties irrevocably subject themselves to the applicable laws and the jurisdiction of the competent courts of the city of Hermosillo, Sonora, United Mexican States expressly waiving any present or future jurisdiction or venue that could correspond to them due to their domiciles or any other cause. ¶ 4 The purchase contract stated that the Condo would be completed and delivered to Russo by March 31, 2008. When that did not occur, Russo demanded rescission of the purchase contract and a refund of his deposits. He received neither. ¶ 5 Alan Mishkin wrote to Russo on October 13, 2008, calling himself the “spokesperson” for Worldwide, and stating, in pertinent part: Because of the continuing deterioration of the lending market in the United States, and the significant slow-down in funding for the project, [Worldwide] applied to the civil courts in the State of Sonora, Mexico, and submitted a Motion for Declaratory Ruling requesting relief on the basis of force majeure. The concept oí force majeure is an equitable legal principle pursuant to which a party to a contract whose performance has been made physically and/or economically impossible (or at least impracticable) due to circumstances totally beyond his control, can be given certain types of relief. On March 13, 2008, the civil judge in Sonora, Mexico entered a Declaratory Ruling (Judgment) in favor of [Worldwide] based on this legal concept. The result of the Mexican Court’s force majeure ruling is to extend the time deadline for [Worldwide] to finish construction and effect delivery of your unit in the Project to a date later than that required in your purchase contract. Stated another way, the practical effect of this ruling is that a court of law has now determined, due to circumstances beyond [Worldwide]’s control, that [Worldwide] is not in breach of its agreement with you for failing to provide delivery of your unit in accordance with the terms set forth in your Purchase Contract. What this means in plain terms is that when [Worldwide] has your unit completed and presents it to you, you will be obligated to close on the purchase of the unit at that point in time, or suffer the complete forfeiture and loss of your earnest money deposit. ¶ 6 Russo retained an attorney in Mexico who advised that no such ruling had issued. A translation of the purported force majeure ruling revealed that the Mexican court had simply granted a motion Worldwide had filed “to submit expert testimonial information whereby the proposed witnesses issue statements regarding the economic (mortgage) crisis affecting the United States of America, as noted in the international financial and economic media outlets, and its impact in Mexico.” ¶ 7 In June 2009, Russo filed an eight-count complaint in the Maricopa County Superior Court naming Appellees, Worldwide, Abigail Properties, and Las Palomas Resort as defendants. The defendants filed a joint answer in July 2009 and enumerated several affirmative defenses, including a lack of jurisdiction based on “constitutional due process deficiencies, procedural due process deficiencies, the forum selection clause set forth in the contract which Plaintiff executed with one or more of the Defendants in this matter, and/or on other grounds as well[.]” ¶8 Russo filed a motion for partial summary judgment against Worldwide in March 2010. Worldwide responded in opposition, and all of the defendants—Appellees included—cross-moved for summary judgment on various grounds not including the forum selection clause. The superior court denied all of the summary judgment requests. ¶ 9 With leave of court, Russo filed an amended complaint in October 2011. After Appellees successfully moved to set aside default judgments that issued when they failed to timely answer the amended complaint, the Bargers moved to dismiss Russo’s claims based on the forum selection clause, and the Mishkins joined in that motion. The superior court granted the motion, concluding the forum selection clause was enforceable and had not been waived. The court awarded Appellees attorneys’ fees pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-341.01 and taxable costs. ¶ 10 Russo timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), -2101(A)(1). DISCUSSION ¶ 11 The question before us is not whether the forum selection clause in the purchase contract is substantively valid. See, e.g., Societe Jean Nicolas et Fils v. Mousseux, 123 Ariz. 59, 61, 597 P.2d 541, 543 (1979) (“[A] forum selection clause that is fairly bargained for and not the result of fraud will be enforced so long as to do so is reasonable at the time of litigation.”). Rather, we are asked to decide whether Appellees waived reliance on that clause by their conduct in the litigation. Because the facts relevant to this inquiry are undisputed, we review the superior court’s waiver determination de novo. See Grosvenor Holdings L.C. v. City of Peoria, 195 Ariz. 137, 139, ¶ 6, 985 P.2d 622, 624 (App.1999) (appellate court reviews legal rulings based on undisputed facts de novo); cf. Bennett v. Appaloosa Horse Club, 201 Ariz. 372, 375, ¶ 11, 35 P.3d 426, 429 (App.2001) (enforceability of forum selection clause is reviewed de novo). ¶ 12 “It is, of course, true that one party may waive any provision of a contract made for his benefit.” Concannon v. Yewell, 16 Ariz.App. 320, 321, 493 P.2d 122 (1972). “Waiver is either the express, voluntary, intentional relinquishment of a known right or such conduct as warrants an inference of such an intentional relinquishment.” Am. Continental Life Ins. Co. v. Ranier Constr. Co., 125 Ariz. 53, 55, 607 P.2d 372, 374 (1980). Russo does not contend Appellees expressly waived the forum selection clause. He argues instead that waiver “can be inferred by a pattern of conduct.” A litigant asserting waiver by conduct must establish acts by the opposing party that are clearly inconsistent with an intention to assert the right in question. See id. ¶ 13 In ruling on waiver, the superior court noted that Appellees had “preserved the issue of lack of jurisdiction” in their answer. We agree that they did so, but the inquiry does not end there. As Appellees concede, notwithstanding the preservation of an affirmative defense in an answer, a defendant “may waive that defense by its subsequent conduct in the litigation.” City of Phoenix v. Fields, 219 Ariz. 568, 574, ¶ 29, 201 P.3d 529, 535 (2009). ¶ 14 The notion that an otherwise-enforceable forum selection clause may be waived by litigation-related activity is consistent with appellate jurisprudence in analogous contexts. In Fields, for example, the Arizona Supreme Court held that a defendant who preserved a notice-of-claim defense in its answer nonetheless waived reliance on that defense through subsequent conduct. Id. at 575, ¶ 33, 201 P.3d at 536. Waiver, the court held, should be found when the defendant “has taken substantial action to litigate the merits of the claim that would not have been necessary had the entity promptly raised the defense.” ' Id. at ¶ 30. ¶ 15 Cases addressing arbitration clauses also offer guidance because “[a]n agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974). In Arizona, it is “widely recognized that even when a dispute is subject to arbitration, that right may be waived by a party who participates substantially in litigation without promptly seeking an order from the court compelling arbitration.” Fields, 219 Ariz. at 575 n. 4, ¶ 30, 201 P.3d at 536 n. 4; see also Bolo Corp. v. Homes & Son Constr. Co., 105 Ariz. 343, 347, 464 P.2d 788, 792 (1970) (plaintiff who “sought redress through the courts, in lieu of the ai'bitration tribunal, and asked the court for exactly the same type of relief ... which an arbitrator is empowered to grant” waived right to enforce arbitration clause); EFC Dev. Corp. v. F.F. Baugh Plumbing & Heating, Inc., 24 Ariz.App. 566, 569, 540 P.2d 185, 188 (1975) (finding waiver of arbitration clause by “conduct inconsistent with utilization of the arbitration remedy”). ¶ 16 We hold that, as with arbitration clauses and notice-of-elaim defenses, a party may waive reliance on an otherwise-enforceable forum selection clause by participating substantially in litigation without promptly seeking to enforce the clause. In this case, between the July 2009 answer and the August 2012 motion to dismiss based on the forum selection clause, Appellees: • Filed a joint pretrial memorandum in October 2009. • Filed a stipulated scheduling order setting deadlines for disclosing witnesses, conducting written discovery, taking depositions, filing dispositive motions and motions to amend, and participating in mediation. • Participated in an October 2009 status conference. • Participated in a March 2010 status conference. • Stipulated to a revised scheduling order. • Stipulated to placing the case on the active calendar and entry of a revised scheduling order that set deadlines for disclosures, discovery, and pretrial motions. • Moved for summary judgment on counts 1, 2, and 5 of the original complaint based on: (1) the statute of limitations; (2) inapplicability of statutes upon which Russo relied; and (3) lack of reliance. • Participated in a September 2010 status conference. • Stipulated to a revised scheduling order, stating that the parties “have dutifully pressed the claims and defenses in this case, as vast amounts of disclosure and discovery has already taken place, including written discovery requests and responses and multiple depositions.” (Emphasis added). • Participated in a January 2011 status conference. • Presented oral argument in opposition to Russo’s motion for partial summary judgment and in support of their own cross-motion for summary judgment. • Filed supplemental briefing regarding whether the statute of limitations had been tolled. • Stipulated to entry of a revised scheduling order in September 2011. • Participated in a pretrial conference on September 27, 2011, at which time the court set new disclosure, discovery, and mediation deadlines. • Filed a pretrial conference memorandum in January 2012. That memorandum advised the court that “many depositions have already been taken” and that the parties had “exchanged multiple disclosure statements and supplements.” Russo also certified his readiness for trial and requested a trial date. • Participated in a pretrial conference on January 26, 2012. • Participated in depositions, including those of Alan Mishkin and Michael Russo. ¶ 17 In fact, Appellees did not seek to enforce the forum selection clause until after the case had been set for trial. And by that time, they had lost on the merits of their statute of limitations defense. In rejecting Appellees’ limitations defense, the superior court ruled: This Court does find that there exist sufficient facts to invoke the operation of the principle of equitable tolling to this 3 year statute of limitation. The facts support an equitable tolling of this applicable statute of limitation from the dates of June 19, 2008 through and including November 19, 2008 a period of 153 days. That is from the issuance of the Amended Public Report through the date Plaintiff discovered the non-existence of the “Force Majeure.” ¶ 18 Appellees’ reliance on Taylor v. Fireman’s Fund Ins. Co. of Canada, 161 Ariz. 432, 778 P.2d 1328 (App.1989), is unavailing. Taylor implicitly recognized that a forum selection clause is subject to waiver, though we concluded in that case that the act of opposing a motion to amend on the basis that there was a pending motion to dismiss premised on a forum selection clause did not “rise to the level of a general appearance requesting affirmative relief thereby waiving an objection to the assertion of personal jurisdiction.” Id. at 437, 778 P.2d at 1333. ¶ 19 Had Appellees timely sought dismissal based on the forum selection clause, years of litigation and expense could have been avoided, as well as the expenditure of significant judicial resources. See Fields, 219 Ariz. at 575, ¶ 33, 201 P.3d at 537 (noting that if defendants had “promptly sought judicial resolution of their [notice-of-claim] defense, the plaintiffs would have been spared considerable expense and the judicial system a significant expenditure of its resources”). Instead, Appellees waited more than three years to assert a defense they were well aware of from the outset of the litigation. ¶ 20 Although waiver is typically a question of fact, id. at ¶ 32, as in Fields, we have no difficulty concluding here that “waiver by conduct is apparent from the extensive litigation record below.” Id.; see also Jones v. Cochise Cty., 218 Ariz. 372, 380, ¶28, 187 P.3d 97, 105 (App.2008) (although waiver is typically a question of fact, “the facts relating to waiver are uneontested, occurred after litigation began, and are wholly unrelated to the underlying facts of the [notice of] claim,” making the decision a question of law for the trial court). We reject Appellees’ attempt to disassociate themselves from the other named defendants. During the more than three-year period in question, all of the defendants were jointly represented. And with a few exceptions not relied on for our waiver analysis, the record does not support drawing distinctions between actions taken by Appellees and conduct by other defendants. In fact, the record compels the opposite conclusion because it reveals that the relevant filings were made on behalf of all defendants. ¶ 21 Finally, Appellees assert in cursory fashion that because Russo filed an amended complaint in October 2011, they timely sought to enforce the forum selection clause in August 2012. We disagree. The amended pleading gave rise to no new or different affirmative defenses. It merely added allegations to the existing statutory rescission count against Worldwide and included a new statutory reference in the injunctive relief count. CONCLUSION ¶ 22 As a matter of law, Appellees waived reliance on the forum selection clause by their conduct in the underlying litigation. We therefore vacate the judgment of dismissal, as well as the award of attorneys’ fees and costs to Appellees. We remand to the superior court for further proceedings consistent with this opinion. ¶ 23 We deny Appellees’ request for attorneys’ fees and costs incurred on appeal because they have not prevailed. In the exercise of our discretion, we award Russo his taxable costs on appeal, as well as a reasonable sum of attorneys’ fees pursuant to A.R.S. § 12-341.01, upon his compliance with Arizona Rule of Civil Appellate Procedure 21. . Only the claims against the Bargers and Mishkins are at issue in this appeal. Count 1 sought statutory rescission as to Worldwide; count 2 requested declaratory relief against Worldwide and Abigail Properties; count 3 sought equitable rescission as to Worldwide; count 4 alleged consumer fraud against all defendants; count 5 alleged negligent misrepresentation against Appellees and Abigail Properties; count 6 alleged unlawful acts under Arizona Revised Statutes ("A.R.S.”) section 13-2301 et seq., against all defendants; count 7 alleged negligence against Barger and Abigail Properties; and count 8 requested injunctive relief against all defendants. . Appellees filed a separate motion to dismiss the amended complaint based on Arizona Rule of Civil Procedure 12(b)(6). Russo moved to convert that motion into one for summary judgment. The superior court concluded that its dismissal order premised on the forum selection clause made it unnecessary to resolve these motions. On remand, those motions may be litigated if appropriate. . One of these counts (count 5) named Appellees as defendants. In seeking summary judgment, Appellees argued, inter alia, that they never marketed the Condo nor solicited Russo and that Russo had not relied on Alan Mishkin’s representations about a substantive force majeure ruling. . In addition to the enumerated activities, Russo retained an expert who filed a preliminary expert opinion affidavit pursuant to A.R.S. § 12-2602.

OPINION BROWN, Judge: ¶ 1 Dobson Bay Club II DD, LLC, et al. (“Dobson Bay”) appeals the trial court’s entry of partial summary judgment in favor of La Sonrisa De Siena, LLC (“La Sonrisa”) on Dobson Bay’s claim for declaratory relief concerning the enforceability of a late fee provision in a promissory note. The sole issue before us is whether the court erred in concluding La Sonrisa is entitled to recover a $1.4 million late fee on Dobson Bay’s delinquent balloon payment as liquidated damages. For the following reasons, we hold that the late fee constitutes a penalty and is therefore unenforceable. BACKGROUND ¶2 In 2006, Dobson Bay entered into a loan agreement with Canadian Imperial Bank of Commerce (“Canadian Imperial”). As set forth in the agreement, Canadian Imperial loaned Dobson Bay $28.6 million, with a maturity date of September 8, 2009. The loan funded Dobson Bay’s acquisition of four commercial properties located in Mari copa County and was secured by a deed of trust, assignment of leases and security agreement. As outlined in Article II of the promissory note, Dobson Bay was permitted to tender interest-only installment payments, with the “entire outstanding principal amount” due on the maturity date. Article IV of the promissory note included a late-fee provision, which stated: 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 (without regard to any applicable cure and/or notice period), 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, and such amount shall be secured by the Loan Documents. The promissory note also provided that in the event of default, Dobson Bay would pay default interest plus costs of collection including reasonable attorneys’ fees. The deed of trust further stated that if a foreclosure proceeding were initiated, Dobson Bay would pay attorneys’ fees, trustee’s fees, and costs related to the foreclosure. ¶ 3 In 2009, Dobson Bay and Canadian Imperial negotiated an extension of the loan, with a new maturity date of September 8, 2012. During the summer of 2012, Dobson Bay and Canadian Imperial began to negotiate another loan extension, but failed to reach an agreement. On October 22, Canadian Imperial sent Dobson Bay a notice of default. On November 28, Canadian Imperial informed Dobson Bay it had assigned the promissory note and deed of trust to La Sonrisa. La Sonrisa then commenced a foreclosure proceeding by recording a notice of trustee’s sale. La Sonrisa provided Dobson Bay a loan payoff statement reflecting a principal balance due of $27,778,698.07, plus regular interest, default interest, a late fee of $1,392,784.90 (5% of the balloon payment), and legal fees of $9,284. La Sonrisa later requested payment of approximately $60,000 in additional attorneys’ fees and $140,000 in trustee’s fees. ¶ 4 Dobson Bay subsequently obtained new financing and paid La Sonrisa the outstanding loan balance. Dobson Bay disputed, however, the loan payoff amount, including La Sonrisa’s entitlement to the late fee. La Sonrisa therefore declined to release the deed of trust. Litigation followed, with Dob-son Bay seeking, among other things, a declaratory judgment that it was entitled to a release of the deed of trust and that La Sonrisa was not entitled to recover the late fee. The parties cross-moved for partial summary judgment regarding enforceability of the late fee. The trial court granted partial summary judgment in favor of La Sonrisa under Arizona Rule of Civil Procedure 54(b), finding that the late fee was enforceable as liquidated damages because it reasonably forecasted the harm caused by default and the harm was otherwise difficult to accurately estimate. Dobson Bay timely appealed. DISCUSSION ¶ 5 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). We review a superior court’s grant of summary judgment de novo. Link v. Pima Cty., 193 Ariz. 336, 340, ¶ 12, 972 P.2d 669, 673 (App.1998). If we reverse a grant of summary judgment, we may direct entry of judgment in favor of a party filing a cross-motion for summary judgment with identical legal issues that can be decided as a matter of law. See Roosevelt Sav. Bank of City of N.Y. v. State Farm Fire & Cas. Co., 27 Ariz.App. 522, 526, 556 P.2d 823 (1976). A. Enforceability of Liquidated Damages Provisions ¶ 6 Dobson Bay contends the $1.4 million late fee is unreasonable as a matter of law. In addition to being “vastly disproportionate” to La Sonrisa’s actual damages, Dobson Bay asserts that enforcement of the late fee would create a windfall because La Sonrisa has “already been compensated” for its damages under the separate default interest, attorneys’ fees, and trustee’s fees provisions of the note and deed of trust. La Sonrisa counters that the late fee should be upheld as an enforceable liquidated damages provision, negotiated as part of an arms-length business transaction. Citing the sole expert opinion presented to the trial court, La Sonrisa also contends the fee is reasonable. ¶ 7 Dobson Bay does not dispute that it breached a material term of the promissory note by failing to timely pay the balance of the loan. Thus, according to Article IV of the note, Dobson Bay was obligated to pay the noteholder “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[.]” Because La Sonrisa has made no claim or argument that it is entitled to actual damages under subpart (b) of the late-fee provision, we consider only whether it is entitled to recover 5% of the final balloon payment under Arizona law governing liquidated damages. ¶ 8 The principal reason parties include liquidated damages provisions within contracts is to avoid proof and other calculation issues involved in litigating what a reasonable damage award would be in the event a breach occurs, especially when the amount in controversy is small. See Roscoe-Gill v. Newman, 188 Ariz. 483, 485, 937 P.2d 673, 675 (App.1996); see also Mech. Air Eng’g Co. v. Totem Constr. Co., 166 Ariz. 191, 193, 801 P.2d 426, 428 (App.1989) (explaining that a “liquidated damage clause promotes enterprise by increasing certainty and by decreasing risk-exposure, proof problems, and litigation costs”); Restatement (Second) of Contracts § 356(1) (1981) (“Restatement”). Whether a liquidated damages provision is enforceable depends upon the particular circumstances of each case. See Pima Sav. and Loan Ass’n v. Rampello, 168 Ariz. 297, 300, 812 P.2d 1115, 1118 (App.1991). ¶ 9 Arizona courts have generally followed the test described in the Restatement of Contracts to determine whether a contractual provision that establishes an amount of damages in advance is reasonable, and therefore enforceable. As explained in Larson-Hegstrom & Associates v. Jeffries, an agreement setting the amount of damages in advance of a breach is an unenforceable penalty unless (1) the amount fixed is a reasonable forecast of just compensation for harm caused by the breach, and (2) the harm caused is “incapable or very difficult of accurate estimation.” 145 Ariz. 329, 333, 701 P.2d 587, 591 (App.1985) (citing Restatement (First) of Contracts § 339 (1932)). In 1981, the test was reframed as follows: Damages for breach by either party may be liquidated in the agreement 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. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty. Restatement § 356(1). ¶ 10 The Restatement’s revised framing of the inquiry is consistent with the “compensatory, not punitive” objective of contract remedies. See Restatement § 356 cmt. a. A contractual provision “fixing unreasonably large liquidated damages,” which clearly exceed compensatory damages, “is unenforceable on grounds of public policy as a penalty.” Restatement § 356(1). Thus, the touchstone of a liquidated damages clause is reasonableness. See Wasserman’s Inc. v. Twp. of Middletown, 137 N.J. 238, 645 A.2d 100, 107 (1994) (“Two of the most au thoritative statements concerning liquidated damages are contained in the Uniform Commercial Code and the Restatement (Second) of Contracts, both of which emphasize reasonableness as the touchstone.”). ¶ 11 La Sonrisa argues that the liquidated damages fee at issue should be enforced because two sophisticated parties, both represented by counsel, specifically agreed to the 5% late fee. Refusing to enforce late fees, according to La Sonrisa, would take away the benefits of liquidated damages, infringe on the right to contract, and inject uncertainty into legal proceedings. ¶ 12 “When liquidated damages are specified in a contract, the terms of the contract generally control.” Roscoe-Gill, 188 Ariz. at 485, 937 P.2d at 675. However, Arizona law plainly provides that a contract provision establishing an “unreasonably large sum of liquidated damages ... is unenforceable because it is deemed to be a penalty.” Id. Thus, regardless of the sophistication of the parties, the mere act of agreeing to a liquidated damages clause does not mean the clause is necessarily enforceable as a matter of law. See Restatement § 356 cmt. a (“The parties to a contract may effectively provide in advance the damages that are to be payable in the event of breach as long as the provision does not disregard the principle of compensation.”). Instead, whether a fixed damages amount is so unreasonable as to constitute a penalty involves the consideration of two factors—(1) the anticipated or actual loss caused by the breach, and (2) the difficulties of proof of loss. Id. at cmt. b. B. Anticipated or Actual Loss ¶ 13 “[T]he amount fixed is reasonable to the extent that it approximates the loss anticipated at the time of the making of the contract, even though it may not approximate the actual loss.” Id. Likewise the inverse is true: “The amount fixed is reasonable to the extent that it approximates the actual loss that has resulted from the particular breach, even though it may not approximate the loss that might have been anticipated under other possible breaches.” Id. (emphasis added). But, if there is no actual loss, or if the actual loss is both easily quantified and not commensurate with the liquidated damages, then the prescribed fixed damages amount will be deemed a penalty. See id. ¶ 14 La Sonrisa presented evidence of the reasonableness of the late fee through the declaration of its financing expert, Mitchel Medigovich, who opined generally that a borrower’s failure to timely pay “diminishe[s] if not damage[s]” the economic interests of the lender. To minimize this damage, “a predetermined late fee subsidizes the expense of hiring and training loan counselors assigned to call the borrower, of making a field visit to the borrower or engaging in other activities necessary to get the borrower to pay the debt.” Medigovich also explained that other secondary costs may be incurred. For example, a lender may be deprived of the ability to reinvest expected cash payments and may also be placed at “great risk” of defaulting on its own financial obligations when the funding for those obligations is contingent on timely payment from the borrower. Medigovich explained further that the lender may suffer reputational harm from an increase in non-performing loans such that depositors may mistrust the institution and seek to withdraw their deposits. The Federal Reserve Board requires that depository institutions maintain minimum capital reserves, and a borrower’s failure to timely pay a substantial balloon payment on a large commercial loan may cause the lender’s capital reserves to fall below the regulatory requirements. In consideration of these various risks to the lender, Medigovich ultimately opined that a late fee included as part of a loan is not a penalty, but reimbursement “for expenses and lost opportunities that are impossible to quantify at loan inception[.]” ¶ 15 Distilled, Medigovieh’s opinion testimony presupposes that a lender sustains a myriad of incalculable harms whenever a borrower defaults, and thus a 5% late-fee is reasonable as a matter of law. But conventional, fixed-interest rate loans do not expose the lender to the uncertain losses that liquidated damages clauses are intended to address, particularly with regard to a delinquent balloon payment. When a lender makes a conventional loan, the parties ne gotiate the interest rate, default interest, foreclosure of the collateral, late fees on installment payments, and numerous other conditions and obligations that address what payments will be required to ensure the lender is compensated for any losses associated with a default. Thus, the parties decide upon the “compensatory” damages the lender may recover. Under most circumstances, the imposition of an additional 5% fixed late-fee on a balloon payment as a part of such a loan is strictly punitive in nature. ¶ 16 Equally important, Medigovieh’s opinion about the reasonableness of the late fee is simply irrelevant to this transaction. It is undisputed that La Sonrisa purchased the promissory note from Canadian Imperial after Dobson Bay had defaulted. Thus, at the time of La Sonrisa’s acquisition, no damage was speculative or difficult to calculate. La Sonrisa purchased the known debt repayment obligation of Dobson Bay: a distressed product whose value was, by the time of La Sonrisa’s purchase, fixed. As a result, nothing in the record suggests La Sonrisa was exposed to any risks of reputational harm, regulatory noncompliance, the inability to fulfill its own financial obligations, or any of the other possible harms Medigovich referenced that could be caused by a borrower’s breach, because by the time La Sonrisa entered the picture, Dobson Bay was already in default and all losses, whether incurred by Canadian Imperial or La Sonrisa, were calculable to a degree of reasonable certainty. Therefore, with respect to both Canadian Imperial and La Sonrisa, we conclude as a matter of law that neither the anticipated nor actual losses reasonably approximate the $1.4 million late fee. See Restatement § 356(1) (stating that liquidated damages may be agreed upon “but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach”). ¶ 17 Relying on prior decisions from this court, La Sonrisa nonetheless argues that when “parties have agreed in advance to the amount of liquidated damages, no showing of actual damages is required.” See Rampello, 168 Ariz. at 300, 812 P.2d at 1118; Mech. Air, 166 Ariz. at 192, 801 P.2d at 427. Without question, those two cases specifically support the proposition that a party seeking enforcement of a liquidated damages clause does not have to show actual damages were sustained. However, neither case analyzed the liquidated damages provisions under Restatement § 356. And, in Rampello, the court specifically noted that “the amount retained upon a contract’s breach will be considered a penalty if it is unreasonable,” thereby confirming that a liquidated damages clause cannot be evaluated in a vacuum. 168 Ariz. at 300, 812 P.2d at 1118 (citing Marshall v. Patzman, 81 Ariz. 367, 306 P.2d 287 (1957)). The circumstances here are substantially different than Rampello, 168 Ariz. at 299, 812 P.2d at 1117, which involved the forfeiture of an earnest money deposit, and Mechanical Air, 166 Ariz. at 192, 801 P.2d at 427, which involved predetermined damages for construction delays. ¶ 18 Moreover, accepting La Sonrisa’s argument would mean a court could never compare anticipated and actual losses, which would be contrary to Restatement § 356’s express language, comments, and illustrations, as well as pertinent ease law. See Restatement § 356 cmt. b (“If, to take an extreme ease, it is clear that no loss at all has occurred, a provision fixing a substantial sum as damages is unenforceable.”); id. at illustration 4 (showing that when delay in a project’s completion date caused no losses, a promise to pay liquidated damages is unenforceable); see also, e.g., Marshall, 81 Ariz. at 370, 306 P.2d at 290 (holding that liquidated damages were “unconscionable” when there was no showing of losses as a result of breach of contract). Likewise, a blanket prohibition against evaluating actual losses would run counter to the purposes of liquidated damages clauses—to provide compensation when damages are difficult to foresee and calculate and to avoid punishing the defaulting party. See Restatement § 356 emt. a. (“Punishment of a promisor 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.”). Thus, as contemplated by Restatement § 356, when the actual losses are easily quantified, we must consider the extent to which the late fee approximates the actual loss in order to properly evaluate its reasonableness. C. Difficulty of Proof of Loss ¶ 19 Similar to our analysis of anticipated or actual loss, nothing in the record reflects that La Sonrisa actually incurred any of the “immeasurable” damages referenced by Medigovich. Without addressing its actual losses, La Sonrisa notes that courts in Arizona and other jurisdictions have enforced liquidated damages provisions in similar or even greater amounts than the 5% at issue here. The circumstances in this ease, however, are far different from the cases La Sonrisa relies upon. La Sonrisa acquired the note post-default and immediately initiated foreclosure proceedings knowing it would incur readily calculable damages such as attorneys’ fees, trustee’s fees, interest, and default interest on the note. Rather than suffering broad institutional losses, which may be difficult to fully ascertain and calculate, La Sonrisa’s losses are easily quantified to a degree of near certainty. See LaSalle Bank Nat. Ass’n v. Shepherd Mall Partners, 140 P.3d 559, 562, ¶ 15 (Okla.Civ.App.2005) (“[W]hen the actual loss is susceptible of calculation and the liquidated damage clause requires payment of an amount that is plainly disproportionate to the loss, the clause will not be enforced.”); In re Mkt. Ctr. E. Retail Prop., Inc., 433 B.R. 335, 364, 367 (Bankr.D.N.M.2010) (concluding that damages incurred through foreclosure proceedings (consisting of interest, attorneys’ fees, and minimal administrative costs) were not difficult to calculate on a breach for failure to pay a final balloon payment and, because “there would be little or no more administrative expenses in handling and processing delinquent payments,” the 5% late fee provided for in the contract constituted an unenforceable penalty). D. Combination of Factors ¶ 20 Deciding whether the fixed 5% late fee is a penalty turns upon the combination of the two factors discussed above. “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.” Restatement § 356 cmt. b. ¶ 21 Both factors cut sharply against La Sonrisa. First, La Sonrisa has presented no evidence that the $1.4 million late fee reasonably approximated the anticipated losses that would have resulted from Dobson Bay’s failure to make the balloon payment in a timely manner generally, much less the actual losses suffered by La Sonrisa. Second, the difficulty of proving loss is not great. As a result of Dobson Bay’s breach, La Sonrisa is entitled to compensation for the losses it incurred, which, according to the promissory note and deed of trust, consist of default interest, attorneys’ fees and related costs, and trustee’s fees. Dobson Bay has challenged whether, on legal grounds, La Sonrisa is entitled to recover all those losses, but that dispute does not alter that the losses are easy to calculate. Applying the factors set forth in Restatement § 356 to these specific circumstances, enforcement of the late-fee provision would serve only punitive purposes rather than compensatory. Therefore, the trial court erred in entering partial summary in favor of La Sonrisa and denying Dobson Bay’s motion for partial summary judgment. CONCLUSION ¶ 22 We hold, 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, and that Medigovich’s declaration is insufficient to generate a triable issue of fact as to the reasonableness of the 5% late-fee. We therefore vacate the trial court’s entry of partial summary judgment in favor of La Sonrisa, and remand for further proceedings, including entry of partial summary judgment in favor of Dobson Bay on its claim for declaratory relief on liquidated damages. Both parties request awards of attorneys’ fees pursuant to Arizona Revised Statutes section 12-341.01. In our discretion, we award reasonable attorneys’ fees and costs on appeal to Dobson Bay subject to its compliance with Arizona Rule of Civil Appellate Procedure 21(c). . Relative to the issues that remain pending in the trial court, and consistent with the court's order dated March 5, 2013, Dobson Bay deposited a "disputed amount” of $2,067,762.33 with the court, representing the late fee, default interest, attorneys' fees, six months' contractual interest, and a statutory trustee’s fee. Dobson Bay acknowledges it owes attorneys’ fees in connection with the default, but contests La Sonrisa’s entitlement to the late fee, a portion of the default interest based on a waiver defense, and the trustee’s fee. . Section 356, which is based in part on former §§ 339 and 579, was "redrafted” to harmonize it with Uniform Commercial Code § 2-718(1). See Restatement § 356, Reporter’s Note. . Certain contractual arrangements fall within the liquidated damages rubric much better than the instant case because the types of losses that occur in those situations tend to be uncertain and difficult to calculate. See, e.g., Rampello, 168 Ariz. at 299, 812 P.2d at 1117 (noting the loss of the opportunity to sell the property, effect of a failed sale on market value, effect of depreciation until the property is sold, and potential hazards of ownership not covered by insurance); Mech. Air, 166 Ariz. at 194, 801 P.2d at 429 (noting the burdens of maintaining personnel at job site to supervise the work and continued administration of the job contracts). We express no opinion on whether parties may negotiate a severe liquidated damages clause for a delinquent balloon payment in an unusual loan transaction in which the parties reasonably anticipate default may threaten the lender’s viability. . According to Corbin on Contracts: The probable injury that the parties had reason to foresee is a fact that largely determines the question whether they made a genuine preestimate of that injury, but the justice and equity of enforcement depend also upon the amount of injury that has actually occurred____It is to be observed that hindsight is frequently better than foresight, and that, in passing judgment upon the honesty and genuineness of the pre-estimate made by the parties, the court cannot help but be influenced by its knowledge of subsequent events. 11 Joseph M. Perillo, Corbin on Contracts § 58.11, at 457-58 (rev. ed.2005). . As support for its argument, La Sonrisa also cites MetLife Capital Financial Corp. v. Washington Avenue Associates, 159 N.J. 484, 732 A.2d 493, 495-96, 499, 502 (1999), which concluded that a 5% late fee imposed on 40 delinquent installment payments plus a balloon payment was "a valid measure of liquidated damages.” MetLife, the banking entity seeking payment of the late fee, presented evidence of institutional harms, such as a department designed to handle collection and reporting of delinquent payments. Id. at 496-97. The New Jersey Supreme Court concluded these factors supported the conclusion that the 5% fee was reasonable as "simply part of the cost of doing business.” Id. at 502. In addition to the lack of factual similarity, the MetLife court focused on the overall reasonableness of the clause, as opposed to the two-pronged Restatement standard we have applied here. See id. at 499 (stating " 'reasonableness' emerges as the standard for deciding the validity of stipulated damages clauses”).

VICE CHIEF JUSTICE PELANDER, opinion of the Court: ¶ 1 This case presents the question of how to calculate damages under a lender’s title insurance policy that failed to disclose encumbrances substantially affecting the value of the property and thwarting its intended use. Because the policy itself does not specify a valuation date, we are asked to determine the appropriate date from which to measure the insured lender’s loss. We hold that when an undisclosed title defect prevents the known, intended use of the property and causes the borrower to default on the loan, the lender’s diminution-in-value loss should be calculated as of the date the title policy was issued rather than as of the date of foreclosure. Because the record does not establish that the title defect caused the borrowers’ default and the ensuing foreclosure, we remand for further proceedings on that issue. I. ¶ 2 In 2005 and 2006, First American Title Insurance Company issued two title insurance policies to Johnson Bank for two properties that secured the bank’s loans in the total amount of $2,050,000. The policies failed to list certain covenants, conditions, and restrictions (“CC&R’s”) that allegedly prohibit ed commercial development on either parcel. The property owners defaulted on their loan obligations to Johnson Bank, allegedly because they had intended to develop the properties and were prevented from doing so by the CC&R’s. Based on the undisclosed CC&R’s, the owners successfully sued First American to recover damages under their owners’ title insurance policies. ¶ 3 In 2010, the properties were sold at a trustee’s sale. Johnson Bank purchased the two parcels with a credit bid of $102,000. In 2011, Johnson Bank notified First American of claims under its lender’s title insurance policies, asserting that the CC&R’s prevented both properties from being developed for commercial purposes, and that the CC&R’s were not listed exceptions to coverage under the policies. ¶ 4 The parties agreed to arbitrate the damage claims but could not agree on the date for calculating the alleged diminution in value of the subject parcels. Johnson Bank argued that the date of the loans should be used to calculate damages. First American argued that damages should be based on the value of the properties at the time of foreclosure, after the real estate market had precipitously declined. ¶ 5 Both parties sought declaratory relief in superior court. On the parties’ cross-motions for summary judgment, the court granted judgment in favor of First American, ruling that the parcels should be valued as of the foreclosure date. ¶ 6 The court of appeals reversed, holding that “in the absence of a specified date of comparative valuation identified in the policies, ... the date to measure any diminution in property value is the date of the loan.” First Am. Title Ins. Co. v. Johnson Bank, 237 Ariz. 490, 494 ¶ 18, 353 P.3d 370, 374 (App. 2015). The court reasoned that because First American failed to discover and timely disclose the CC&R’s, the policy was breached when the loans were made. Id. at ¶ 17. Accordingly, the court remanded the case for entry of judgment in favor of Johnson Bank on the valuation-date issue. Id. at ¶ 18. ¶ 7 We granted review because the case presents an issue of first impression in Arizona and of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶ 8 We review a summary judgment de novo, viewing the facts in the light most favorable to the party against whom judgment was entered. See Ariz. R. Civ. P. 56(a); BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC, 236 Ariz. 363, 365 ¶ 7, 340 P.3d 1071, 1073 (2015). “We review de novo the interpretation of insurance contracts,” First Am. Title Ins. Co. v. Action Acquisitions, LLC, 218 Ariz. 394, 397 ¶ 8, 187 P.3d 1107, 1110 (2008), and construe provisions in such contracts according to their plain and ordinary meaning. Sparks v. Republic Nat. Life Ins. Co., 132 Ariz. 529, 534, 647 P.2d 1127, 1132 (1982). We also interpret contracts so as to fulfill the parties’ intent. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 152, 854 P.2d 1134, 1138 (1993). A. ¶ 9 The title insurance policies at issue here are standard form American Land Title Association (“ALTA”) loan policies. The amounts insured corresponded to the total amount of Johnson Bank’s loans ($2,050,000). Subject to various exclusions, exceptions, and conditions, the policies insure “against loss or damage ... sustained or incurred by the Insured by reason of ... [a]ny defect in or lien or encumbrance on the title.” The policies do not define the term “loss or damage,” but require the insured claimant to timely notify the insurer and provide proof of any claimed loss or damage, including the basis of the claim and the “basis of calculating the amount of the loss or damage.” ¶ 10 The policies do not specify the date to be used in calculating loss or damage. In pertinent part, the policies provide: 7. DETERMINATION AND EXTENT OF LIABILITY This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (a) The liability of the Company under this policy shall not exceed the least of: (iii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against this policy. ¶ 11 Both parties argue that this policy language is unambiguous and supports their respective view. Johnson Bank asserts that the phrase “as insured” in § 7(a)(iii) refers to “when the property is to be valued” and means that, for damage-calculation purposes, “the property should be valued as of the date that the insurance policy issued.” ¶ 12 First American counters that the phrase “as insured,” used throughout the policy, refers only to how the property interest is insured, i.e., the policy’s conditions and exceptions. The policy is not ambiguous, First American argues, merely because it does not specify a date for calculating the loss. See First Tenn. Bank, Nat. Ass’n v. Lawyers Title Ins. Corp., 282 F.R.D. 423, 427 (N.D. Ill. 2012) (stating that the absence of explicit text establishing a valuation date “does not necessarily mean that the provision is ambiguous”). According to First American, the policy implicitly establishes the date of foreclosure as the applicable valuation date because the policy indemnifies a loss from an undisclosed title defect only after the lender forecloses on the property, and thus the insured lender incurs no loss until then. ¶ 13 The court of appeals found the policy language in § 7(a)(iii) ambiguous because it does not identify “the date the loss is to be calculated.” First Am. Title, 237 Ariz. at 493 ¶ 12, 353 P.3d at 373. Under the facts of this particular case, we agree. Because the relevant provision is reasonably susceptible to differing interpretations, and because no other evidence establishes any particular meaning mutually intended by the contracting parties, the policy’s language alone does not resolve the valuation-date issue before us today. See State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 251, 258, 782 P.2d 727, 734 (1989) (stating that ambiguity exists when a policy “presents conflicting reasonable interpretations”); cf. Taylor, 175 Ariz. at 153-54, 854 P.2d at 1139-40 (discussing ambiguity determinations, parol evidence rule, and court’s “primary objective—to enforce the contract as intended by the parties”). ¶ 14 First American nonetheless argues that because the lender must foreclose on the property to incur and claim a loss, the date of foreclosure is the only reasonable valuation date. See, e.g., Marble Bank v. Commonwealth Land Title Ins. Co., 914 F.Supp. 1252, 1254 (E.D.N.C. 1996) (“In the court’s view, [the insured lender] did not suffer a loss until it foreclosed on the project. Since a lender suffers loss only if the note is not repaid, the discovery of an insured-against lien does not trigger recognition of that loss.”). First American’s argument, however, conflates two concepts. Although the insured lender’s exact loss might not be calculable until foreclosure occurs, that calculation can be made using the property’s value, with and without the defect, as of the policy date to determine the actual loss on the date of foreclosure. ¶ 15 In addition, the policy contains several contractual prerequisites that do not directly bear on damage valuation. For instance, the lender must submit a written claim and proof of loss to the title company after discovering a title defect, and the title insurance company must decide whether it will exercise its rights under the policy to remove or cure the title defect instead of paying money damages. Such policy prerequisites, however, do not dictate the valuation date. Cf. Swanson v. Safeco Title Ins. Co., 186 Ariz. 637, 641-42, 925 P.2d 1354, 1358-59 (App. 1995) (concluding that the damage-valuation date under an owner’s title insurance policy was the date the title defect was discovered). ¶ 16 We recognize that other courts have found the same or similar policy clause (ALTA Loan Policy § 7(a)(iii)) unambiguous in circumstances different from those presented here. See, e.g., First Am. Bank v. First Am. Transp. Title Ins. Co., 759 F.3d 427, 430-33 (5th Cir. 2014) (noting that the title defect was a maritime improvement lien); Associated Bank, N.A. v. Stewart Title Guar. Co., 881 F.Supp.2d 1058, 1062-63 (D. Minn. 2012) (noting that the title defect was an undisclosed senior lien); First Tenn. Bank, 282 F.R.D. at 427 (same); Marble Bank, 914 F.Supp. at 1254 (same). Unlike this case, those cases involved undisclosed senior liens in which courts found that the policy unambiguously requires using the date of foreclosure as the valuation date. ¶ 17 When the title defect is an undisclosed lien, the foreclosure date might well be the appropriate valuation date because the lender’s damage results from not having priority in the foreclosure proceeds. See First Tenn. Bank, 282 F.R.D. at 427; see generally Christopher B. Frantze, Equity Income Partners LP v. Chicago Title Insurance Co. and Recovery Under A Lender’s Title Insurance Policy in A Falling Real Estate Market, 48 Real Prop. Tr. & Est. L.J. 391, 392 (2013) (surveying cases). But to the extent the foregoing cases suggest that, regardless of circumstances, lenders’ title insurance policies like that at issue here clearly establish the date of foreclosure as the only damage-valuation date because the existence and extent of any loss is unknown before then, we find them unpersuasive. ¶ 18 In any event, the title defect in this case is not an undisclosed lien, but is instead undisclosed CC&R’s that allegedly prevented the borrowers/owners from developing the property, which in turn allegedly caused them to default on their loans. The policy does not clearly identify the appropriate valuation date for calculating the lender’s loss in these circumstances, and thus the court of appeals did not err in finding the policy ambiguous on that issue. See Leo Eisenberg & Co., Inc. v. Payson, 162 Ariz. 529, 532, 785 P.2d 49, 52 (1989) (noting that a contract is ambiguous when it “can be reasonably construed in more than one manner”). B. ¶ 19 “If a clause appears ambiguous, we interpret it by looking to legislative goals, social policy, and the transaction as a whole. If an ambiguity remains after considering these factors, we construe it against the insurer.” Action Acquisitions, 218 Ariz. at 397 ¶ 8, 187 P.3d at 1110 (citation omitted). 1. ¶ 20 Turning first to any pertinent legislative goals, like the court of appeals, we find “no statute or other binding legal precedent in Arizona that determines the starting date of comparative valuation of property for calculating covered losses under a lender’s title insurance policy.” First Am. Title, 237 Ariz. at 492 ¶ 10, 353 P.3d at 372. Under the relevant statute, “[t]itle insurance” means: insuring, guaranteeing or indemnifying owners of real property or others interested therein against loss or damage suffered by reason of liens, encumbrances upon, defects in or the unmarketability of the title to such property, guaranteeing, warranting or otherwise insuring the correctness of searches relating to the title to real property, or doing any business in substance equivalent to any of the foregoing. AR.S. § 20-1562(8); see also § 20-1562(11) (“‘Title insurance policy’ means a written statement or contract by means of which title insurance liability is accepted.”). A title “commitment” is defined as: [A] report that is furnished in connection with an application for title insurance and that offers to issue a title insurance policy subject to the stated exceptions set forth in the report or incorporated by reference. The reports are not abstracts of title and the rights, duties and responsibilities relating to the preparation and issuance of an abstract of title do not apply to the issuance of a report. The report is not a representation as to the condition of title to real property but does constitute a statement of the terms and conditions on which the issuer is willing to issue its title insurance policy if the offer is accepted. A.R.S. § 20-1562(5). ¶ 21 Under this statutory scheme, a party cannot reasonably rely on a title commitment as a representation on the condition of title to the property. Cf. Centennial Dev. Grp., LLC v. Lawyer’s Title Ins. Corp., 233 Ariz. 147, 149-50 ¶¶ 8-9, 310 P.3d 23, 25-26 (App. 2013) (stating that § 20-1562 “effectively bar[s] a common-law claim against an insurer whose title commitment fails to identify a cloud on title,” and that a title commit ment issued in connection with the title company’s policy “was not a representation of the condition of the title to the property” and could not support a negligent misrepresentation claim). A party desiring to rely on a representation on the quality of title must obtain an abstract of title. See A.R.S. § 20-1562(1) (defining “abstract of title” as “a written representation that is provided pursuant to a written or oral contract that is intended to be relied on by the person who has contracted for the receipt of the representation”). ¶ 22 First American asserts that the court of appeals erred by establishing the date of the loans as the valuation date because only title commitments had been issued when Johnson Bank made the loans, and the bank could not have reasonably relied on title commitments as a representation of the title. But Johnson Bank’s claim is not based on any alleged misrepresentation, title commitment, or abstract of title; nor is the bank seeking or entitled to reliance damages. Rather, Johnson Bank has alleged only a breach of the title insurance policy, a contract claim for which proof of reliance is not required. See Graham v. Asbury, 112 Ariz. 184, 185, 540 P.2d 656, 657 (1975) (identifying the elements of a breach-of-eontract claim as: (1) the existence of a contract; (2) breach; and (3) resulting damages). In short, no identifiable legislative goals affect or resolve the issue before us. 2. ¶ 23 We next consider any pertinent social policies and the parties’ transaction as a whole. See Action Acquisitions, 218 Ariz. at 397 ¶8, 187 P.3d at 1110. Because these topics implicate overlapping considerations, we consider them together. ¶ 24 In this ease, social policies and fundamental aspects of the parties’ transaction support using the date of the policy as the valuation date. The insurer has complete control of the title defects against which it insures; it is in the best position to avoid such risks and prevent resulting loss by conducting thorough and accurate title searches. Here, First American’s deficient title search resulted in its failure to discover and disclose the adverse CC&R’s that had been recorded against the property in 1985. That encumbrance prevented the borrowers/owners’ intended use of the property and consequently deprived Johnson Bank of the benefit of not only its bargain with the borrowers to whom it loaned substantial sums, but also its bargain with First American. ¶25 Significantly, the insurance premium First American charged was based on the amount insured, which was the same amount as Johnson Bank’s loans and corresponding security interest in the properties. And, under its policies, First American agreed to pay up to that amount for any “loss or damage ... sustained or incurred by [Johnson Bank] by reason of ... [a]ny defect in or lien or encumbrance on the title.” Using the foreclosure date as the damage-valuation date would allow the insurer to profit from a depreciating market even when the title defect caused the borrower to default. See Barlow Burke, Law of Title Insurance § 7.04 (3d ed. Aspen Publishers 2004) (noting that if an insurer collects a premium based on the loan’s face amount and then, when title fails in a falling market, argues the decrease resulted from market conditions and thus “seeks to pay less than the amount of the insurance purchased and the loss of capital sunk in the purchase price,” “the insurer is in a ‘tails I win, heads you lose’ position”). ¶ 26 In addition, by using the date of the policies as the valuation date in circumstances such as these, a title insurance company can accurately evaluate if it should exercise its rights under the policy to cure the title defect or pay money damages. Finally, using the foreclosure date when the title defect caused the borrower to default would unfairly allow the title company to avoid the insured’s actual, resulting consequential damages. Id. (“The choice of a date for measuring damages should not provide the insurer with an opportunity to shield its eyes from the insured’s actual, economic, and consequential losses.”). ¶ 27 In evaluating relevant social policy and the transaction as a whole, we also must consider the assessment and allocation of risk under circumstances which, as here, include a downturn in the real estate market. First American argues that the court of appeals improperly allocated the risks of a declining market and a borrower’s default. Under the policies, First American did not expressly agree to indemnify or otherwise insure against the risk of a drop in the real estate market. But the policies also do not exclude coverage for loss resulting partly from such risk, nor do we hold that a title company, as a general commercial matter, bears that risk. ¶ 28 When an undisclosed, material title defect completely frustrates the borrowers/owners’ intended use of the property and directly causes their default and the subsequent foreclosure, an insured lender’s recoverable damages may include loss resulting from a declining real estate market. We acknowledge that, for purposes of § 7(a)(iii) of the policy, measuring the difference in value at the time of policy issuance for a loss that does not occur until foreclosure in a down market may effectively shift to the title insurer part of the loss attributable to the market downturn (which could occur irrespective of any title defect or error in the title search). Under these particular circumstances, however, that consequence offends neither the policy language nor the relevant, identified social policies. As a leading treatise has explained, reasons that support using the policy date to measure the lender’s loss in a falling market include: “the purpose of the policy from the standpoint of the insured is future indemnification;” and “the policy date is consistent with fully compensating the insured for his or her ‘actual losses’ under the policy.” Id. ¶ 29 Banks, of course, are in the business of assessing the risk that their loans will not be repaid, including the risk of market declines. But that risk assessment occurs when banks enter into a loan contract, not when a default and foreclosure occur sometime later. Likewise, although a lender bears some inherent risk of a possible market downturn, the value of the lender’s security interest— again, taken at the time a loan is made—is the lender’s hedge against that risk. Moreover, and importantly, owners are less likely to default on the loan, even in a declining market, if them property can be developed as contemplated. This too is a consideration for lenders at the time a loan is made. Thus, in determining damages caused by First American’s incomplete title search under the facts presented here, social policy does not preclude using the date the policies were issued as the valuation date. ¶ 30 Finally, the lack of a specific valuation date in title insurance policies allows a case-by-case approach to value the insured’s loss. Joyce Palomar, 1 Title Ins. Law § 10:16 (2015 ed.) (“Because ALTA policies have not specified the date the value of the property is to be assessed to measure an insured’s loss, courts need to determine the insured’s actual loss in the particular circumstances.”). If the foreclosure date were the universal valuation date to be used regardless of circumstances, then courts and the parties could not evaluate the insured’s actual loss in a particular case. And if title insurers desire to avoid all uncertainty by establishing the foreclosure date or specifying some other damage-valuation measure to uniformly apply in all situations, they can modify their policies accordingly. In sum, neither social policy nor the transaction as a whole militates against using the date of policy issuance as the date for measuring damages under § 7(a)(iii). ¶ 31 Contrary to First American’s assertion, this reasoning and conclusion do not convert its indemnification policy into a mortgage insurance policy or a guarantee of title. “Title insurance does not guarantee perfect title; instead, it pays damages, if any, caused by any defects to title that the title company should have discovered but did not.” Swanson, 186 Ariz. at 641, 925 P.2d at 1358; see Falmouth Nat. Bank v. Ticor Title Ins. Co., 920 F.2d 1058, 1063 (1st Cir. 1990) (“[W]hat is insured is the loss resulting from a defect in the security.”). Consequently, the mere existence of a title defect is not a breach. See In re W. Feliciana Acquisition, L.L.C., 744 F.3d 352, 359 (5th Cir. 2014). ¶ 32 Indisputably, First American’s policy only agrees to indemnify against actual monetary loss or damage; it is not “guarantee of title.” See First Am. Bank, 759 F.3d at 433 (noting that title insurance does not “guarantee either that the mortgaged premises are worth the amount of the mortgage or that the mortgage debt will be paid”) (internal citation omitted); Guarantee of Title, Black’s Law Dictionary (10th ed. 2014) (“A warranty that the title to á piece of real property is vested in a particular person, given by a title company or abstract company, and based on a title searcher’s opinion of the status of the property’s title.”). ¶ 33 Using the date of the policy does not convert the indemnification policy into a guarantee of title. First, the insurer will be liable only if the loss results due to a discoverable defect or encumbrance on the title. Swanson, 186 Ariz. at 641, 925 P.2d at 1358. Absent such a defect in title, there would be no insured loss. Second, under the policy, the lender must demonstrate an actual loss. See generally Eric M. Larsson, 46 Causes of Action 2d 605, §§ 3-4 (originally published in 2010) (discussing the differences between a claim under a title insurance policy and related causes of actions). Third, the title insurance policy applies only if a title defect caused the insured’s loss. Cf. Feliciana Acquisition, 744 F.3d at 359 (noting that the title defect must cause the loss). As Johnson Bank acknowledges, “the insurer would have no liability if the borrower defaulted because of personal circumstances wholly unrelated to a defect in title or if the real estate market fell resulting in a default by the borrower when there was no defect in title.” Using the date of policy issuance as the valuation date under the circumstances here does not change the nature or scope of the policy’s coverage. 3. ¶ 34 In support of its holding, the court of appeals relied largely on Equity Income Partners v. Chicago Title Insurance Co., 2012 WL 3871505 (D. Ariz. Sept. 6, 2012), an unpublished federal district court decision, which in turn embraced the reasoning of Citicorp Savings of Illinois v. Stewart Title Guaranty Co., 840 F.2d 526 (7th Cir. 1988). See First Am. Title, 237 Ariz. at 493-94 ¶¶ 13-14, 353 P.3d at 373-74. First American argues that the court of appeals erred in adopting that “minority view” and should have instead followed the “majority view” of eases such as First American Bank, 759 F.3d at 432 (noting that “a majority of courts from other jurisdictions have held that, in the absence of specific policy language, a title insurer’s liability to a mortgagee should be measured using the foreclosure date”). ¶ 35 The “majority view” identified by First American largely involved situations where the title defect was an undisclosed senior lien. See, e.g., First Am. Bank, 759 F.3d at 433 (mentioning that the title defect was a maritime improvement lien); Associated Bank, 881 F.Supp.2d at 1063 (noting that the title defect was an undisclosed senior lien); First Tenn. Bank, 282 F.R.D. at 427 (same); Marble Bank, 914 F.Supp. at 1254 (same). As noted above, this case does not involve an undisclosed senior lien, and therefore those cases are not persuasive or particularly helpful. ¶ 36 The “minority view,” as characterized by First American, involved situations where, as here, a total failure of title occurred and courts used the loan date to measure damages. See, e.g., Citicorp, 840 F.2d at 529-30 (discussing that the insured’s lien was unenforceable ab initio); In re Evans, 460 B.R. 848, 895-99 (Bankr. S.D. Miss. 2011) (discussing that the lender had no right in the property). The Citicorp court reasoned that the policy was breached when the lender made the loan. 840 F.2d at 530. The district court in Equity Income Partners used that same rationale when the title defect rendered the property essentially worthless because it lacked ingress and egress. See 2012 WL 3871505 at *4 (using the date of the loan for damage-valuation purposes, noting that “because the policy was breached at the time of the loan, the title insurer should bear any risk of market value decline in the property at that time”) (internal citation and punctuation omitted). Thus, those cases that First American characterizes as representing the “minority view” actually involve different reasoning anchored in a different species of breach—the very species which, Johnson Bank maintains, occurred here. In sum, the case law from other jurisdictions does not influence the relevant social policies for determining the appropriate valuation date in this case. 4. ¶ 37 “In interpreting an insurance policy, we apply ‘a rule of common sense’ thus, ‘when a question of interpretation arises, we are not compelled in every case of apparent ambiguity to blindly follow the interpretation least favorable to the insurer.’ ” Employers Mut. Cas. Co. v. DGG & CAR, Inc., 218 Ariz. 262, 264 ¶ 9, 183 P.3d 513, 515 (2008) (quoting Wilson, 162 Ariz. at 257, 782 P.2d at 733). Rather, “[t]he ‘ambiguity’ rule applies only after the court is unable to determine how the language of the policy applies to the specific facts of the case.” DGG & CAR, 218 Ariz. at 264 ¶ 9, 183 P.3d at 515 (quoting Preferred Risk Mut. Ins. Co. v. Lewallen, 146 Ariz. 83, 85, 703 P.2d 1232, 1234 (App. 1985)). Our evaluation of legislative goals, social policies, and the transaction as a whole does not eliminate the policy’s ambiguity or resolve the question before us. Accordingly, we will construe the policy, and particularly § 7(a)(iii), against First American. See Action Acquisitions, 218 Ariz. at 397 ¶ 8, 187 P.3d at 1110. So construed, the policy implicitly permits using the policy-issuance date as the date for calculating damages under § 7(a)(iii), if the title defect caused the borrowers/owners to default on Johnson Bank’s loans. C. ¶ 38 The dissent advocates using the foreclosure date to measure Johnson Bank’s loss. Infra ¶¶ 50, 58. We are unpersuaded because the dissent rests on incorrect premises, uncontested but inapplicable legal principles, and inapposite out-of-state cases. According to the dissent, using the policy-issuance date to measure the bank’s loss “does not comport with the expressed intent of the parties.” Infra ¶ 61. But how is the parties’ intent on the sole relevant issue here knowable or discernible when, as the dissent acknowledges, the policy is “facially ambiguous” regarding the proper damage-valuation date to use in this case? Infra ¶ 50. And the record does not reflect, nor does the dissent cite, any extrinsic parol evidence “to explain what the parties truly may have intended” on that issue. Taylor, 175 Ariz. at 154, 854 P.2d at 1140. ¶39 The dissent also mistakenly asserts that we “impute[ ] duties to the title insurer that are inconsistent with the policy itself and Arizona’s statutory framework.” Infra ¶ 52. In its ALTA form policy, however, First American broadly agreed to indemnify “against loss or damage ... sustained or incurred by the Insured by reason of ... [a]ny defect in or lien or encumbrance on the title.” And again, as the dissent concedes, the policy does not clearly identify a valuation date for calculating the insured’s loss. Our analysis and conclusion do not conflict with any of the policy’s provisions. ¶40 Contrary to the dissent’s assertion, neither Johnson Bank’s contract claim nor our analysis and determination of the appropriate loss-valuation date contravene Arizona’s statutory framework. Infra ¶¶ 52, 55. As noted above, supra ¶ 22, the contract claim at issue here is based solely on the title insurance policy, not on an “abstract of title,” misrepresentation, or any other tort theory. ¶41 Although it acknowledges that First American’s policy is ambiguous, the dissent does not convincingly analyze the relevant social policies and the parties’ transaction as a whole, as we must do given the policy’s ambiguity. Action Acquisitions, 218 Ariz. at 397 ¶ 8, 187 P.3d at 1110. Instead, the dissent incorrectly asserts that we impose common law and statutory duties on First American that indisputably do not exist here. ¶ 42 In support of its position, the dissent relies on cases (not cited by First American) that involve misrepresentation or other tort claims that are neither asserted nor applicable here. See, e.g., Barstad v. Stewart Title Guar. Co., Inc., 145 Wash.2d 528, 39 P.3d 984, 985-87 (Wash. 2002) (noting that lenders who brought claims for negligent misrepresentation, violations of the Consumer Protection Act, and civil conspiracy only received a preliminary title commitment but did not purchase title insurance); Siegel v. Fid. Nat. Title Ins. Co., 46 Cal.App.4th 1181, 54 Cal.Rptr.2d 84, 85-88 (1996) (rejecting owners’ negligence and contract claims against an insurer that sold a title insurance policy to the lender because the insurer did not have a fiduciary or contractual relationship with the owners, who failed to purchase title insurance); Hulse v. First Am. Title Co. of Crook Cty., 33 P.3d 122, 126, 134, 138 n. 8 (Wyo. 2001) (rejecting insured’s negligence claim against insurer because issuance of title commitment and title insurance policy did not give rise to an implied tort duty to search for and disclose title defects, and rejecting insured’s contract claim when access to property still existed). And in the only Arizona ease the dissent cites, the court rejected the owner’s claims for negligent misrepresentation based on the title commitment, but remanded for a determination on the owner’s breach of contract claim based on the insurance policy. Centennial Dev. Grp., 233 Ariz. at 148 ¶¶ 1-3, 310 P.3d at 24. ¶ 43 The dissent is puzzling for another reason as well. It asserts that our analysis incorrectly “presumes” that First American “had any duty to discover and disclose the title defects.” Infra ¶ 59. The dissent’s “no duty” argument (an argument First American does not make and with which we do not disagree) would make sense if Johnson Bank were alleging a tort or claiming that the insurer breached the policy by not discovering and disclosing the encumbrance. But because Johnson Bank makes no such claim, the “no duty” argument is illogical and inapplicable. In accordance with the policy’s language, the bank merely seeks “indemnity against actual monetary loss or damage” it allegedly sustained “by reason of’ the title defect. That contract claim does not hinge on any extra-contractual duty owed or breached, and the “no duty” proposition has no bearing on how damages should be calculated under the indemnification policy’s ambiguous § 7(a)(iii). First American concedes that it “is responsible for the diminution in value of the collateral as a result of the title defect.” Thus, the dissent’s “no duty” argument is not only off point but also inconsistent with First American’s position. ¶ 44 In any event, we do not find or impose on First American any extra-contractual tort or other common law duties. But in resolving the ambiguity in First American’s policy by evaluating relevant social policies and the parties’ transaction as a whole, we quite properly consider that First American was in the best position to timely discover and disclose the title defect, and to thereby avoid the risk of loss in a depreciating real estate market, but failed to do so. See supra ¶ 24. Because evaluation of relevant social policies and the parties’ transaction as a whole does not resolve the policy’s ambiguity, and because we must then construe the policy against the insurer, First American should bear that risk. That conclusion is not based on inapplicable tort law or statutes, but rather on the analytical framework this Court has adopted. Action Acquisitions, 218 Ariz. at 397 ¶ 8, 187 P.3d at 1110. The dissent is unpersuasive in arguing otherwise. D. ¶ 45 First American argues that the court of appeals erred by assuming, without any evidentiary support in the record, that the title defect caused the borrowers’ default and Johnson Bank’s subsequent foreclosure. First Am. Title, 237 Ariz. at 493 ¶ 14, 494 ¶ 17, 353 P.3d at 373, 374. We agree. ¶46 There is no evidence demonstrating that the undisclosed title defect caused the borrowers’ default. Although Johnson Bank points to the unpublished court of appeals’ decision that affirmed judgment in favor of the borrowers/owners in their action against First American, that case does not establish as a matter of fact or law that the title defect caused the borrowers’ default. See Troon H Pad, L.L.C. v. First Am. Title Ins. Co., No. 1 CA-CV 11-0491, 2013 WL 440609, at *5 ¶ 24 (Ariz. App. Feb. 5, 2013) (mem. decision) (noting some trial testimony that the owner “had lost an investor because the title defect affected the ability of the parcels to be developed”). Nor can we take judicial notice of that necessary causal link. Cf. Ariz. R. Evid. 201. Accordingly, the court of appeals erred by directing entry of summary judgment in favor of Johnson Bank. First Am. Title, 237 Ariz. at 494 ¶ 18, 353 P.3d at 374. ¶ 47 On remand, Johnson Bank will have to prove that the title defect caused the borrowers’ default and subsequent foreclosure to justify using the date of the policies as the valuation date. If Johnson Bank fails to satisfy this burden, then the proper valuation date is the foreclosure date. III. ¶ 48 For the foregoing reasons, we vacate the court of appeals’ opinion, reverse the judgment in favor of First American, and remand the case to the superior court for further proceedings. ¶ 49 Johnson Bank requests attorney fees under A.R.S. § 12-341.01, which permits an attorney fee award in contract actions. In our discretion, we deny the request, without prejudice to Johnson Bank seeking in the superi- or court any fees incurred in this Court, should Johnson Bank eventually prevail on remand.

Justice BOLICK, opinion of the Court: ¶ 1 This ease presents the question of whether the Arizona Medical Marijuana Act (“AMMA” or “the Act”) immunizes a physician against prosecution for falsely attesting that he reviewed a patient’s medical records from the previous twelve months before providing a written certification authorizing medical marijuana use. We hold that AMMA does not grant such immunity. I. BACKGROUND A. Arizona Medical Marijuana Act ¶ 2 Arizona voters enacted AMMA, A.R.S. § 36-2801 et seq., by ballot initiative in 2010 (Proposition 203). The Act provides that a “qualifying patient” diagnosed with a “debilitating medical condition” may obtain a registry card from the Arizona Department of Health Services (“DHS”), and thereby obtain immunity from prosecution for the acquisition, possession, and use of medical marijuana under the statutory conditions. See A.R.S. §§ 36-2801(3), (13), -2804.02, - 2811(B). ¶ 3 To register with DHS, a qualified patient must first obtain a physician’s “written certification,” which AMMA defines as: a document dated and signed by a physician, stating that in the physician’s professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition. The physician must: (a) Specify the qualifying patient’s debilitating medical condition in the written certification. (b) Sign and date the written certification only in the course of a physician-patient relationship after the physician has completed a full assessment of the qualifying patient’s medical history. A.R.S. § 36-2801(18). AMMA does not define “physician-patient relationship” or “full assessment of the qualifying patient’s medical history.” ¶ 4 Physicians are immunized from prosecution for providing written certifications under AMMA At issue here is § 36-2811(0), which provides: A physician shall not be subject to arrest, prosecution or penalty in any manner or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Arizona board of medical examiners or by any other business, occupational or professional licensing board or bureau, based solely on providing written certifications or for otherwise stating that, in the physician’s professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, but nothing in this chapter prevents a professional licensing board from sanctioning a physician for failing to properly evaluate a patient’s medical condition or otherwise violating the standard of care for evaluating medical conditions. AR.S. § 36-2811(0). ¶ 5 In addition to immunizing certain individuals against prosecution or punishment in the medical marijuana context, “the electorate ‘required’ [DHS] ‘to adopt and enforce a regulatory system for the distribution of marijuana for medical use.’” State v. Matlock, 237 Ariz. 331, 336 ¶ 20, 350 P.3d 835, 840 (App.2015) (quoting Proposition 203 ballot pamphlet). Section 36-2803 gives DHS certain rulemaking authority, including the power under § 36-2803(A)(2) of “[establishing the form and content of registration and renewal applications submitted under this chapter.” By regulation, DHS specified what is required to perform a “full assessment of the qualifying patient’s medical history,” including reviewing the patient’s “medical records from other treating physicians from the previous 12 months.” Ariz. Admin. Code R9-17-202(F)(5)(i)(i). The regulation also requires the physician to attest to the truth and accuracy of the information set forth in the written certification. Id. at R917-202(F)(5)(m). B. Facts and Procedural History ¶ 6 On September 1, 2012, a Navajo County drug task force confidential informant (“C.I.”), in connection with an undercover investigation of an alleged illicit medical marijuana cooperative, visited Dr. Robert Gear to obtain a written certification for medical marijuana. The C.I. completed a questionnaire and medical records statement. On the latter form, she indicated that she had visited other physicians within the past twelve months but did not “have a complete set of medical records with [her].” The C.I. agreed to furnish the records to Dr. Gear no later than her next visit. ¶ 7 Following a medical examination, Dr. Gear certified the C.I. for medical marijuana use. Despite never reviewing her medical records from the preceding twelve months, he indicated on the written certification that he had done so. He also attested that “the information provided in the written certification is true and correct.” ¶ 8 A grand jury indicted Dr. Gear on one count of forgery under A.R.S. § 13-2002 and one count of fraudulent schemes and artifices under § 13-2310. The trial court dismissed the indictment, ruling that § 36-2811(C) immunizes Dr. Gear against prosecution on those charges. The court of appeals affirmed. State v. Gear, 236 Ariz. 289, 339 P.3d 1034 (App.2014). ¶ 9 We granted review because the scope of AMMA’s physician immunity under § 36-2811(C) presents a recurring issue 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 begin by noting two issues that are not before us. First, the parties have not addressed whether the DHS requirement that a physician review twelve months of prior physician records before certifying a patient for medical marijuana falls within the prescribed scope of the agency’s regulatory authority under AMMA. Second, we do not address the propriety of the undercover investigation that resulted in Dr. Gear’s indictment. ¶ 11 Rather, the sole question before this Court is whether AMMA immunizes the alleged false statements Dr. Gear made in his certification. We review questions of statutory interpretation de novo and construe ballot measures to effect the voters’ intent. Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122 ¶ 6, 347 P.3d 136, 139 (2015). AMMA’s “purpose ... is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana.” Prop. 203, § 2(G), Ariz. Sec’y of State, 2010 Publicity Pamphlet 83, available at http:// apps.azsos.gov/election/2010/Info/Pub Pamphlet/English/Prop203.htm. ¶ 12 Both the State and Dr. Gear urge constructions that do not find support in the Act’s language or intent. The State argues that physician immunity extends only to “providing” written certifications, and not “preparing” them. The State’s constricted reading of the word “providing,” however, would render the immunity almost meaningless, as a physician could be prosecuted for each step short of delivering the certification to the patient. ¶ 13 Dr. Gear argues that physician immunity extends to any conduct “related to certification.” Such a sweeping application of immunity could lead to troublesome outcomes that would be difficult to square with the intent or language of the Act. For instance, would immunity extend to theft or sexual assault committed in the course of a physical examination conducted during the certification process? Dr. Gear’s interpretation is foreclosed by the Act’s language, which in relevant part provides immunity from prosecution “based solely on providing written certifications.” A.R.S. § 36-2811(C). ¶ 14 Dr. Gear does not point to any language or voter intent indicating that AMMA is meant to immunize individuals against prosecution for other crimes they may commit that are related to or arise from the protected activity. As discussed below, the use of the word “solely” expresses the intent to shield from criminal prosecution only the provision of medical marijuana certifications and professional opinions, not other conduct that might expose the physician to adverse consequences, even if that conduct is related to providing a written certification or expressing a professional opinion. ¶ 15 In interpreting § 36-2811(0, the court of appeals did not consider the qualifier “solely,” but instead noted that the statute grants immunity for “providing written certification or for otherwise stating that, in the physician’s professional opinion, a patient is likely to receive” benefit from medical marijuana. Gear, 236 Ariz. at 292 ¶ 11, 339 P.3d at 1037 (quoting A.R.S. § 36-2811(0). This language immunizes two different though related types of actions: “providing written certification” and “otherwise stating” the physician’s medical judgment. By applying the term “solely,” the immunity is limited to those two actions and excludes from immunity any act that goes beyond those actions, even if it is related to them. Here the prosecution is not directed toward immunized conduct but is instead based on Dr. Gear falsely attesting that he inspected medical records that he did not, in fact, review. ¶ 16 If, as here, the criminal charges are not based “solely” on protected conduct— where they are directed not toward the medical judgment or the certification itself but to an act of dishonesty—then they are not shielded from prosecution or punishment by the Act’s plain language. “Solely,” both in ordinary usage and as a legal term of art, is a highly restrictive term that consistently has been interpreted, including in the context of medical marijuana decisions, to strictly limit the scope of the legal protection or proscription that follows. ¶ 17 In Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374 (2015), this Court affirmed the conviction of a defendant charged with driving with an impermissible drug or metabolite in her body. The defendant argued that AMMA immunized her as a medical marijuana cardholder from prosecution for driving under the influence (DUI). The Court recognized that “AMMA broadly immunizes [cardholders] from prosecution for using medical marijuana consistent with the Act.” Id. at 390 ¶ 1, 361 P.3d at 375. At the same time, Arizona criminal statutes prohibit, among other things, driving while there is any specified drug, including cannabis or its metabolite, in the person’s body. Id. at ¶ 2, 361 P.3d at 375. As here, the case presented the interplay between criminal statutes and medical marijuana immunity. ¶ 18 Dobson is not a perfect analogy because AMMA specifically provides that the state is not prohibited from prosecuting individuals for operating a motor vehicle while under the influence of marijuana. See A.R.S. § 36-2802(D). But central to the Court’s analysis in Dobson was the language of the statutory immunity, which provides that “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” 238 Ariz. at 391 ¶ 9, 361 P.3d at 376 (emphasis added) (quoting A.R.S. § 36-2802(D)). The Court found unconvincing the argument that such language, qualified by the term “solely,” provides absolute immunity against DUI charges. Id. at 392 ¶ 15, 361 P.3d at 377. Rather, the Court held, “When read together, the statutory provisions suggest that the AMMA gives qualifying patients a limited defense rather than a general immunity” in the context of DUI prosecutions, id. at ¶ 17, 361 P.3d at 377, allowing defendants to demonstrate that the concentrations of marijuana were insufficient to cause impairment. Id. at 393 ¶ 21, 361 P.3d at 378 (“The risk of uncertainty in this regard should fall upon the patients, who generally know or should know if they are impaired and can control when they drive, rather than on the members of the public whom they encounter on our streets.”). ¶ 19 Similar reasoning applies here. Dr. Gear is not being prosecuted for providing a written certification but for lying about compliance with rules issued by DHS, whose authority Dr. Gear does not contest. Given the restrictive effect of the term “solely,” we do not impute intent on the part of the voters to immunize physicians against crimes such as forgery or fraudulent schemes. Holding otherwise would expose Arizonans, including medical marijuana cardholders themselves, to harmful conduct that we should not lightly infer that the voters sought to immunize. “When two statutes conflict, we adopt a construction that reconciles them whenever possible, giving force and meaning to each.” State v. Jones, 235 Ariz. 501, 502 ¶ 6, 334 P.3d 191, 192 (2014). Our interpretation here preserves both AMMA’s broad physician immunity and the criminal statutes under which Dr. Gear was charged. ¶ 20 Courts in California, whose medical marijuana laws predate Arizona’s, likewise have nai’rowly construed immunity from prosecution when limited by the statutory adjective “sole.” In People v. Mentch, 45 Cal.4th 274, 85 Cal.Rptr.3d 480, 195 P.3d 1061 (2008), the California Supreme Court construed an immunity provided to primary caregivers in the medical marijuana context. One of the questions before the court was whether a provision that immunized such individuals against prosecution for assisting in administering, advising, or counseling in the administration or cultivation of medical marijuana “on that sole basis” would preclude prosecution of such individuals for marijuana cultivation or possession. Id., 85 Cal. Rptr.3d 480, 195 P.3d at 1072. The court held that the words “on that sole basis” did not mean that the defendant “could not be charged with cultivation or possession for sale on any basis; to the extent that he went beyond the immunized range of conduct, i.e., administration, advice, and counseling, he would, once again, subject himself to the full force of the criminal law.” Id., 85 Cal.Rptr.3d 480, 195 P.3d at 1073. Other California decisions also have narrowly construed the scope of the state’s medical marijuana laws when qualified by the term “sole basis” in the public nuisance context. See City of Riverside v. Inland Empire Patients Health & Wellness Ctr., Inc., 56 Cal.4th 729, 156 Cal.Rptr.3d 409, 300 P.3d 494 (2013) (rejecting the argument that medical marijuana laws preempt local ban on dispensaries); Kirby v. Cty. of Fresno, 242 Cal.App.4th 940, 195 Cal.Rptr.3d 815 (2015) (concluding that the medical marijuana laws did not preempt city’s ability to regulate the cultivation of marijuana). Here, too, Dr. Gear “went beyond the immunized range of conduct”—providing written certifications or expressing professional opinions—to falsely avow that he had reviewed certain medical records. As a result, he subjected himself to the full force of criminal prosecution—not for his professional medical opinions, which are protected, but for his false misrepresentation of fact, which is not. ¶ 21 We are not convinced by Dr. Gear’s argument that affording immunity here is supported by § 36-2811(C)’s statement that “nothing in this chapter prevents a professional licensing board from sanctioning a physician for failing to properly evaluate a patient’s medical condition or otherwise violating the standard of care for evaluating medical conditions.” That a physician may be professionally disciplined for malpractice in connection with certifying a patient for medical marijuana use does not, either by the statutory terms or logically, suggest that such discipline is the only sanction for making false statements in a certification. ¶ 22 Nor are we persuaded that allowing the prosecution to proceed “would have a chilling effect on the voluntary participation of physicians, and, thereby, hinder qualifying patients’ efforts to obtain competent medical advice regarding medical marijuana, its medical risks, and its alleged therapeutic and palliative benefits.” Gear, 236 Ariz. at 294 ¶ 21, 339 P.3d at 1039. Nothing in our opinion should be read to limit or threaten such protected activities. Cf. Reed-Kaliher, 237 Ariz. at 122 ¶ 7, 347 P.3d at 139 (protecting the AMMA rights of probationers). Physicians are trained and relied upon to be scrupulous. The import of a false attestation is obvious. The boundaries between law enforcement and protected physician activities were fixed when the voters forbade prosecution and punishment based “solely” upon the specified protected activities. ¶ 23 In sum, AMMA immunizes physicians from prosecution or penalties based solely on their providing the statutorily au thorized certifications or otherwise stating a professional opinion regarding the therapeutic and palliative benefits of medical marijuana use. It does not immunize other conduct, such as making a false statement in a written certification. III. CONCLUSION ¶ 24 For the foregoing reasons, we vacate the opinion of the court of appeals, we reverse the trial court’s order of dismissal, and remand the case to the trial court for further proceedings consistent with this decision. . Solely is defined as “singly” or "alone.” See Webster's Third New International Dictionary 2168 (2002).

Justice BRUTINEL, opinion of the Court. ¶ 1 During jury deliberations after a lengthy trial, a juror asked the bailiff how long deliberations usually lasted. Without consulting anyone, the bailiff answered, “an hour or two should be plenty.” We hold that the trial court did not err by denying the plaintiffs motion for a new trial based on the bailiffs statement without first holding an evidentiary hearing. Although the statement was plainly improper, it was not objectively prejudicial and there was no significant fact question about what occurred. I. BACKGROUND ¶ 2 In 2005 American Power Products, Inc. (“American”) sued CSK Auto, Inc. (“CSK”) for breach of contract, and CSK counterclaimed. The eventual trial lasted twelve trial days and included twenty-four witnesses and 164 exhibits, one of which was more than 4000 pages long. ¶3 Closing arguments were heard on a Friday before a three-day weekend. Although American sought more than $5 million in damages, its counsel attempted to simplify the case and focus the jury’s attention on a small number of exhibits. For example, at one point he said, “I am not encouraging you to look at every single exhibit, but this is an important one.” Later, in rebuttal, he encouraged the jurors to “just look at Exhibit No. 412. Tab two. That’s all I want you to look at.” ¶ 4 Counsel for CSK argued that the jury should award more than $1.6 million on its counterclaims. In the alternative, however, he suggested that the jury might simply reject all the claims and counterclaims and award American the $10,733 that CSK conceded it owed and that the parties had agreed would be the “starting point” for computing damages. After deliberating for one to two horns, the jurors returned a 6-2 verdict awarding American $10,733. ¶ 5 Subsequently, American hired a private investigator who obtained affidavits from two jurors about their deliberations. The affidavit from juror H.T. described a communication between the bailiff and the jury that qualified as possible “extraneous prejudicial information” under Arizona Rule of Evidence 606(b)(2). Juror H.T.’s affidavit stated that “[at] one point the bailiff ... came into the room. Someone asked her how long deliberations typically lasted. She told us an hour or two should be plenty.” ¶ 6 Relying on the affidavits, American moved for a new trial. American argued that, “at a minimum [the affidavits] create a ground for further inquiry whether deliberations were improperly curtailed both by improper jury conduct and the bailiffs statement that one or two hours of deliberations were enough.” CSK argued that Evidence Rule 606 precluded admission of all statements in the affidavits except juror H.T.’s description of the communication between the bailiff and the jury. CSK did not dispute that the bailiff communication occurred as alleged. Rather, CSK argued that, although improper, the communication was insubstantial and did not raise an inference of actual prejudice. ¶ 7 At oral argument on the motion, the court indicated that it agreed with CSK that only the statement about the bailiff communication would be admissible under Evidence Rule 606 and that the bailiff communication was not prejudicial. The court characterized the communication as a “throwaway question” that was “not directed to this case, not to the substance of this case at all.” In addition, when counsel for American contended that the jury’s rapid verdict was “so aberrational that it’s kind of stunning,” the court responded that it “[didn’t] think it was stunning at all.” The court also implied that the quick verdict might have resulted from the attorneys’ failure to heed the court’s admonition to simplify the case, which, the court pointed out, featured a confusing combination of detailed contract provisions, numerous acronyms, and technical jargon. The trial court denied the motion for a new trial without holding an evidentiary hearing. ¶ 8 A divided court of appeals reversed and remanded. Am. Power Prods., Inc. v. CSK Auto, Inc., 235 Ariz. 509, 517 ¶ 25, 334 P.3d 199, 207 (App.2014). The majority found that the trial court could not determine from the record how the jury might have interpreted the bailiffs comment. This uncertainty meant that prejudice should be presumed, and therefore the trial court erred by denying the new trial motion without holding an evidentiary hearing. The dissent concluded that the trial court acted within its discretion in determining, on the basis of H.T.’s uncontested affidavit alone, that the communication was not prejudicial. ¶ 9 We granted review because this case raises an issue of statewide importance. We have jurisdiction under article 6, section 5(3) of Arizona’s Constitution and AR.S. § 12-120.24. II. DISCUSSION ¶ 10 We review the trial court’s denials of a motion for a new trial and a requested evidentiary hearing for abuse of discretion. See State v. Miller, 178 Ariz. 555, 556, 875 P.2d 788, 789 (1994); Adroit Supply Co. v. Elec. Mut. Liab. Ins. Co., 112 Ariz. 385, 389, 542 P.2d 810, 814 (1975). ¶ 11 Bailiffs are prohibited from communicating ex parte with the jury, other than about mere administrative details. Ariz. R. Civ. P. 39(e), (g); see Perez ex rel. Perez v. Cmty. Hosp. of Chandler, Inc., 187 Ariz. 355, 359, 929 P.2d 1303, 1307 (1997) (noting that improper ex parte communications may come from a bailiff or a judge and “there is far more potential for improper advice from a bailiff than from a judge on substantive legal and important procedural matters”). If an ex parte communication prejudices jury deliberations, the verdict must be vacated and a new trial ordered. Perez, 187 Ariz. at 362, 929 P.2d at 1310. But we do not presume prejudice from the mere occurrence of an ex parte communication. Id. at 361, 929 P.2d at 1309. Instead, courts examine ex parte communications on a “case-by-case basis, applying a two-prong inquiry: (1) Was there an improper communication? and (2) Was the communication prejudicial or merely harmless?” Id. at 358, 929 P.2d at 1306. Because we agree with the parties and the court of appeals that the bailiffs statement was improper, we focus on whether it was prejudicial. A. Lack of Factual Dispute ¶ 12 If there is no significant factual question, the trial court may grant or deny a motion for a new trial without holding an evidentiary hearing. See State v. Spears, 184 Ariz. 277, 289, 908 P.2d 1062, 1074 (1996) (concluding that the trial court did not abuse its discretion in denying defendant a new trial without first holding an evidentiary hearing when a juror’s post-verdict affidavit stated that jurors had considered notes from an alternate juror but did not indicate that the notes contained extraneous information that was damaging or prejudicial). If there is a significant question as to what occurred or whether the affiant is credible and whether the alleged facts, if true, would establish a basis for granting the motion, the court must hold an evidentiary hearing before ruling on a motion for new trial. See, e.g., Perez, 187 Ariz. at 357 n. 3, 929 P.2d at 1305 n. 3 (finding that the trial court erred in limiting evidentiary hearing to one of three alleged improper communications when details of the communications were not fully known); Miller, 178 Ariz. at 557, 875 P.2d at 790 (finding that the trial court erred in denying motion for a new trial without first holding an evidentiary hearing when the only information about the improper communication came second-hand from the prosecutor). ¶ 13 Here the trial court was not required to hold an evidentiary hearing before ruling on the motion for new trial because there was no dispute as to what occurred. Both parties agreed that the bailiff said that “one or two hours should be plenty.” In finding that the trial court erred, the court of appeals reasoned that the jury could have understood the bailiffs statement as either (1) an innocuous estimate of the typical duration of jury deliberations or (2) an “indirect comment on the relative complexity of the evidence and the applicable law.” CSK, 235 Ariz. at 514 ¶ 15, 334 P.3d at 204. Because it concluded that the trial court did not have the facts necessary to determine which of the two interpretations the jury adopted, it found an evidentiary hearing necessary to address questions “regarding the context of the communication itself,” including the specific content of the communication, “whether the jurors asked follow-up questions in response to the bailiffs response, or the amount of time that elapsed between the communication and the jury’s verdict.” Id. at 515 ¶ 16, 334 P.3d at 205. ¶ 14 But even if we assume that such questions would have been proper under Evidence Rule 606, we conclude that the mere existence of potential “context” questions does not compel the trial court to hold an evidentiary hearing. As the dissent recognized, “neither party disputed whether the bailiff made the statement at issue, and the parties did not point to any factual dispute relating to the bailiffs statement that would need to be resolved through an evidentiary hearing.” Id. at 517 ¶ 28, 334 P.3d at 207 (Cattani, J., dissenting). Accordingly, the trial court reasonably could have concluded that the affidavit accurately set forth the bailiffs answer, all jurors heard that answer, and if there had been more to the ex parte communication either the affiant or American would have raised it. B. Absence of Prejudice ¶ 15 Although we have previously addressed ex parte communications with jurors, our articulation of the standard for determining prejudice in such situations “has not ... been entirely uniform.” Perez, 187 Ariz. at 360, 929 P.2d at 1308. We have found that an improper communication did not necessitate a new trial absent an “affirmatively probable” showing of prejudice. S. Pac. R.R. Co. v. Mitchell, 80 Ariz. 50, 65, 292 P.2d 827, 837 (1956). Similarly, we have noted that “a communication between judge and jury outside the presence of defendant and counsel [may be] harmless error." State v. Rich, 184 Ariz. 179, 180, 907 P.2d 1382, 1383 (1995) (quoting State v. Mata, 125 Ariz. 233, 241, 609 P.2d 48, 56 (1980)). But we have also rejected a harmless error analysis when we found that the judge’s legally erroneous jury instruction—that only jurors who had voted in favor of liability should participate in the calculation of damages—deprived the defendants of the fundamental right to trial by the full jury. Perkins v. Komarnyckyj, 172 Ariz. 115, 120, 834 P.2d 1260, 1265 (1992) (“Given the nature of the substantive error made in the ex parte communication in the present case, however, Defendants were deprived of a fundamental right, and a harmless error analysis is therefore inappropriate.”). We reasoned in Perkins that “we cannot require a litigant to show the extent of prejudice resulting from an error when, as a practical matter, the nature of the error renders it impossible to prove the extent of any prejudice.” Id. at 119, 834 P.2d at 1264. In other words, because we could not know or assume what result the full jury might have reached had a correct instruction been given, the “nature of the error” required us to “presume[ ]” prejudice. Id. Finally, while maintaining Perkins’s “nature of the error” language in Perez, 187 Ariz. at 362, 929 P.2d at 1310, we clarified and narrowed this standard, declining “to adopt a strict rule of presumed prejudice” and affirming that improper ex parte communications are subject to harmless error analysis. Perez, 187 Ariz. at 358, 929 P.2d at 1306. ¶ 16 That the nature of an error may render it impossible to prove the extent of any prejudice does not warrant a presumption of prejudice and ordering a new trial in all eases. Rather, it recognizes the practical reality that, in certain circumstances, it is “impossible to prove the extent of prejudice,” and that a judge should not require a party to bear that impossible burden in order to secure a new trial. See Perkins, 172 Ariz. at 119, 834 P.2d at 1264; Perez, 187 Ariz. at 360, 929 P.2d at 1308. Because Evidence Rule 606 bars jurors from testifying about whether any given occurrence affected their decisions or those of fellow jurors, the nature of an ex parte communication with the jury may “render[ ] it impossible to prove the extent of prejudice.” Perkins, 172 Ariz. at 119, 834 P.2d at 1264; Perez, 187 Ariz. at 360, 929 P.2d at 1308; see Ariz. R. Evid. 606(b)(1). A trial court can never determine with certainty what might or might not have swayed a juror’s decision because direct testimony on that matter is prohibited. Ariz. R. Evid. 606(b)(1). ¶ 17 Even so, our rules charge the trial judge with deciding, based on the available evidence, whether the error likely “affeet[ed] the substantial rights of the parties” such that refusing to order a new trial would be “inconsistent with substantial justice.” Ariz. R. Civ. P. 61; see also Ariz. Const. art. 6, § 27 (“No cause shall be reversed for technical error in ... proceedings when upon the whole case it shall appear that substan tial justice has been done.”). In cases like Perkins, where the improper communication creates a structural defect in the trial that deprives a litigant of an essential right, the trial judge must conclusively presume prejudice. Perkins, 172 Ariz. at 119-20, 834 P.2d at 1264-65. Such error cannot be harmless. See id. In all other cases, because the court cannot inquire into the effect of the communication on individual jurors, the court must determine whether the communication would likely prejudice a hypothetical average juror. See United States v. Boylan, 898 F.2d 230, 262 (1st Cir.1990); United States v. Calbas, 821 F.2d 887, 896 n. 9 (2d Cir.1987) (noting that “post-verdict determination of extra-record prejudice must be an objective one, measured by reference to its probable effect on ‘a hypothetical average juror’”); accord Kilgore v. Fuji Heavy Indus. Ltd., 148 N.M. 561, 240 P.3d 648, 655 (2010) (citing 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 606.05[2][b] (2d ed.2010)). In other words, the moving party is not required to prove actual prejudice, but is required to demonstrate the objective likelihood of prejudice. See Mitchell, 80 Ariz. at 65, 292 P.2d at 837; Kilgore, 240 P.3d at 656 (“[T]he burden remains on the moving party throughout the proceedings to prove the ultimate fact in issue, i.e., that there is a reasonable probability that the extraneous material affected the verdict or a typical juror.”). ¶ 18 Having determined that the trial court in this case was not required to hold an evidentiary hearing, we consider whether the court abused its discretion in denying American’s motion for new trial. In deciding if a communication would have prejudiced a hypothetical average juror, we consider factors such as whether the communication related to the evidence presented, the applicable law, or the ultimate issue in the ease, or whether it clearly interfered with the jury’s decision-making process. See Perez, 187 Ariz. at 358-61, 929 P.2d at 1306-09; infra ¶ 20. ¶ 19 Here the trial court reasonably determined that the bailiffs statement had no bearing on the issues. The statement did not relate to any specific or disputed fact or the strength of the evidence presented by either side; nor did it involve any legal issue in the case. While the trial was lengthy and complex, in closing arguments, both parties attempted to simplify the case and focus the jury’s attention on a few key pieces of evidence. Both parties discouraged the jurors from leafing through hundreds of trial exhibits. Thus, unlike the eases in which we have found prejudice, the bailiffs comment did not favor one party over the other or clearly interfere with the jury’s deliberations or decision-making process. See infra ¶ 20. The court characterized the communication as a response to a “throwaway question” that was not directed “to the substance of this case at all” and noted that the rapid verdict was “[not] stunning at all.” We defer to the findings of the trial court that considered the juror’s affidavit after having observed the entire trial. ¶ 20 American cites several cases in which we determined that a trial court abused its discretion in not finding prejudice and ordering a new trial. All these cases, however, involved ex parte communications more serious and substantive—that is, more objectively prejudicial—than that at issue here. See, e.g., Perez, 187 Ariz. at 357, 929 P.2d at 1305 (finding prejudice in a medical malpractice action where the bailiff, without informing the judge or the parties of the jurors’ questions, (1) erroneously told the jurors they would not be permitted to receive copies of the trial transcript or re-hear portions of the testimony, (2) erroneously informed the jurors of the procedure in the event of a deadlock, and (3) discouraged jurors from asking the judge a question about the effect of a defense verdict on a specific doctor’s liability); Miller, 178 Ariz. at 557, 875 P.2d at 790 (finding prejudice in a criminal trial where an alternate juror, after being dismissed at the close of evidence, placed a note on a remaining juror’s car stating either “My vote is guilty” or “He’s guilty”); Perkins, 172 Ariz. at 116-17, 834 P.2d at 1261-62 (finding prejudice in a medical malpractice action where the trial judge erroneously instructed that jurors who had voted against liability should not participate in the calculation of damages). In each of these cases, the communication at issue was likely to prejudice jurors. III. CONCLUSION ¶ 21 We reverse the court of appeals’ opinion and affirm the trial court’s denial of American’s motion for new trial. We remand the case to the court of appeals for consideration of issues raised but not decided on appeal, including the parties’ claims for attorneys’ fees, court costs, and other expenses. . Arizona Rule of Evidence 606(b)(1) states, "During an inquiry into the validity of a verdict in a civil case, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror’s mental processes concerning the verdict or indictment.” . Our cases reflect that, although the standard of proof differs, see Rich, 184 Ariz. at 181, 907 P.2d at 1384 (requiring in a criminal case that the state prove an ex parte communication harmless beyond a reasonable doubt), the same analysis applies to both civil and criminal cases. Id. (citing Perkins, 172 Ariz. at 118, 834 P.2d at 1263); Perez, 187 Ariz. at 360, 929 P.2d at 1308 (citing Rich, 184 Ariz. at 180, 907 P.2d at 1383).

OPINION KESSLER, Judge: ¶ 1 The Estate of Yafit Butwin (“Yafit’s Estate”) and Yafit’s mother and sole heir, Asha Zrihan (collectively, “Appellants”), appeal the probate court’s denial of a motion for summary judgment brought by Yafit’s Estate and joined by Zrihan. The court’s order effectively denied Appellants’ request for the establishment of a constructive trust over the assets of James Butwin’s estate (“James’ Estate”) based on his murder of Yafit Butwin and their children. For the following reasons, we affirm the court’s ruling. FACTUAL AND PROCEDURAL HISTORY ¶ 2 In June 2012, James Butwin was found dead along with his wife, Yafit Butwin, and their three children in an apparent murder-suicide. Probate proceedings were initiated to administer Yafit’s Estate and James’ Estate, and the eases were consolidated in October 2012. ¶ 3 After the Butwins’ deaths, Appellees C & C Acquisitions, LLC; Hatten Real Estate of Scottsdale, LLC; Hatten Real Estate of Mesa, LLC; 2500 South Power, LLC; and 2626 East University, LLC (collectively, the “Creditors”) discovered James Butwin had embezzled nearly one million dollars from the Creditors in his capacity as the Creditors’ property manager. They asserted claims against James’ Estate and obtained judgments in January 2014 in the amounts stolen, $965,000 in total. ¶ 4 In August 2012, Zrihan filed a separate complaint for wrongful death against James’ Estate. Zrihan was awarded damages of $1,090,000 in the wrongful death action in late 2014. The assets in James’ Estate are insufficient to satisfy both the Creditors’ and Zrihan’s judgments. ¶ 5 Zrihan filed a petition for a constructive trust on James’ Estate. In May 2013, Zrihan moved for partial summary judgment as to James Butwin’s criminal accountability for killing Yafit Butwin. The motion asserted that “[sjuch a finding entitle[d] Mrs. Zrihan to a constructive trust on all property in [James’ Estate] as a matter of law” pursuant to Aizona Revised Statutes (“AR.S.”) section 14-2803(F) (“Subsection F”) and (K) (“Subsection K”) (Supp. 2015), and clarified that Zrihan sought the trust to “secure any judgment arising from the wrongful death action.” The probate court partially granted the motion, finding by a preponderance of the evidence that “James Butwin was ‘criminally accountable’ for the felonious and intentional killing of’ Yafit Butwin pursuant to Subsection F. However, the court “declined] to consider whether there should be a constructive trust pursuant to [Subsection K] on all property in [James’ Estate] to secure any judgment arising from the wrongful death action.” ¶ 6 Yafit’s Estate also petitioned for a constructive trust on James’ Estate to secure payment of the wrongful death judgment. In May 2014, Yafit’s Estate moved for summary judgment, arguing that (1) AR.S. § 14-2803 allows a decedent’s estate to peti tion the court to impose a constructive trust, and (2) such a constructive trust would have priority over any claims made or judgments obtained after the time of the killer’s act because the trust attaches at “the time of the killer’s act that caused the death,” AR.S. § 14-2803(K). Zrihan joined in the motion. ¶ 7 The probate court denied the motion, stating that imposition of a constructive trust pursuant to Subsection K required the “killer [to] have suffered a ‘criminal conviction.’ ” The court concluded that “[b]eeause no ‘criminal conviction’ of James Butwin occurred,” Subsection K was inapplicable. Alternatively, the court held that even if the statute did apply, Appellants still would not receive the scope of relief sought because the statute did not affect priority of claims by estate creditors. Because no triable issues of fact existed, the court entered the ruling as a final judgment. ¶ 8 Appellants timely filed a notice of appeal. We have jurisdiction pursuant to AR.S. § 12-2101(A)(9) (Supp.2015). DISCUSSION ¶ 9 When reviewing a motion for summary judgment, “we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law.” Rand v. Porsche Fin. Servs., 216 Ariz. 424, 429, ¶ 15, 167 P.3d 111 (App.2007). The facts in this case are not in dispute, and all arguments on appeal address issues of statutory construction, which we review de novo. Short v. Dewald, 226 Ariz. 88, 93, ¶26, 244 P.3d 92 (App.2010). ¶ 10 When interpreting a statute, we first look to the plain language of the statute as the best indicator of legislative intent. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 52, ¶ 14, 213 P.3d 197 (App.2009). “When statutory language is clear and unambiguous, we give effect to it and do not use other methods of statutory interpretation.” Id. (internal quotation marks and citation omitted). We must, if reasonably possible, give effect to each word in a statute. Williams v. Thude, 188 Ariz. 257, 259, 934 P.2d 1349 (1997). ¶ 11 Section 14-2803, Arizona’s “slayer statute,” Castro, 222 Ariz. at 50, ¶ 1, 213 P.3d 197, prevents a person who feloniously and intentionally kills another from receiving any benefits or property belonging to his victim, id. at 53, ¶ 16, 213 P.3d 197. See also A.R.S. § 14-2803(A) (“A person who feloniously and intentionally kills the decedent forfeits all benefits under this chapter with respect to the decedent’s estate.... ”). Arizona added Subsection K in 2012. See Ariz. Sess. Laws, ch. 277, § 1 (2d Reg. Sess.). Section 14-2803 provides, in relevant part, that: F. After all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent conclusively establishes the convicted person as the decedent’s killer for purposes of this section. In the absence of a conviction, the court, on the petition of an interested person, shall determine whether, under the preponderance of evidence standard, the person would be found criminally accountable for the felonious and intentional killing of the decedent. If the court determines under that standard that the person would be found criminally accountable for the felonious and intentional killing of the decedent, the determination conclusively establishes that person as the decedent’s killer for purposes of this section. K. The decedent’s estate may petition the court to establish a constructive trust on the property or the estate of the killer, effective from the time of the killer’s act that caused the death, in order to secure the payment of all damages and judgments from conduct that, pursuant to subsection F of this section, resulted in criminal conviction of either spouse in which the other spouse or a child was the victim. ¶ 12 Appellants argue that because Subsection F refers to “this section,” the discretion afforded to the court in Subsection F to identify the killer under a preponderance of the evidence standard also applies to Subsection K and a criminal conviction is not required to apply Subsection K. We disagree. ¶ 13 Appellants correctly note that a criminal conviction is not necessary for A.R.S. § 14-2803’s application as a whole, that is, barring a person found to be the killer of the decedent from rights to the decedent’s estate. See A.R.S. § 14-2803(F) (“In the absence of a conviction____the [court’s] determination [whether a person would be found criminally accountable] conclusively establishes that person as the decedent’s killer for purposes of this section.”). However, the plain language of Subsection K contains a specific limitation to Subsection K’s application: the killer’s conduct must have “resulted in criminal conviction of either spouse in which the other spouse or a child was the victim.” (Emphasis added). Thus, even if the rest of A.R.S. § 14-2803 does not require a criminal conviction, Subsection K expressly does. We cannot read Subsection F as controlling Subsection K without rendering the “criminal conviction” language superfluous. See Guzman v. Guzman, 175 Ariz. 183, 187, 854 P.2d 1169 (App.1993) (“A statute is to be given such an effect that no clause, sentence or word is rendered superfluous, void, contradictory or insignificant.”). The preponderance-based finding in Subsection F has the effect of establishing an individual’s status as the “killer.” Subsection K concerns the estates of persons who are “killers” under Subsection F—it then provides special consequences for those who have been convicted. Harmonizing the two subsections to give effect to all statutory language indicates that the preponderance-based standard applies to all the other subsections of the statute and bars the killer from benefitting from the decedent’s estate. However, a criminal conviction is required to invoke the possibility of a constructive trust over the killer’s assets under Subsection K. ¶ 14 Appellants provide several arguments in support of their interpretation, all of which are unavailing. They first argue Subsection K incorporates the standard set forth in Subsection F by reference. See A.R.S. § 14-2803(K) (“all damages and judgments from conduct that, pursuant to subsection F of this section, resulted in criminal conviction” (emphasis added)). This argument ignores the language in Subsection K requiring a criminal conviction. Subsection K’s cross-reference to Subsection F indicates that if the conduct described in Subsection F—the “felonious and intentional killing of the decedent”—results in a criminal conviction, then a constructive trust can be sought. ¶ 15 Next, Appellants argue the probate court’s interpretation renders Subsection K’s reference to the killer’s “estate” meaningless. We disagree. As the Creditors note, a killer could be convicted of a crime and then pass away. ¶ 16 Finally, Appellants argue the probate court’s interpretation would produce absurd results, allowing individuals who escape custody, die before final conviction, or commit suicide “to receive less sanction than the act of one who ... [is] convicted.” This argument also fails. We will not construe statutes “in a way that produces absurd results,” City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 186, ¶ 47, 181 P.3d 219 (App.2008), but this is not an absurd result. The Legislature could have decided that although a person who is found accountable for the death of the decedent under a preponderance of the evidence standard should be barred from any benefits in the decedent’s estate, a criminal conviction beyond a reasonable doubt should apply before the decedent’s estate can petition for a constructive trust on the perpetrator’s assets. If the Legislature wishes to allow a decedent’s estate to obtain a constructive trust on the perpetrator’s assets short of a criminal conviction, it can amend the statute. ¶ 17 Because we conclude that A.R.S. § 14-2803 is inapplicable to the facts in this case, we do not reach Appellants’ arguments regarding Subsection K’s potential effects on creditor priority. CONCLUSION ¶ 18 For the foregoing reasons, we affirm. We will award the Creditors’ taxable costs on appeal upon timely compliance with ARCAP 21. . We cite the current version of applicable statutes when no revisions material to this decision have since occurred. Although A.R.S. § 14-2803(K) took effect on August 2, 2012, it "applies to crimes committed before the effective date of [the] act." See 2012 Ariz. Sess. Laws, ch. 277, § 2 (2d Reg. Sess.). . Although a denial of a motion for summary judgment is not typically an appealable order, "this [Cjourt may review such an order when the denial is based strictly on a point of law." Hauskins v. McGillicuddy, 175 Ariz. 42, 49, 852 P.2d 1226 (App.1992). The parties stipulated and the probate court properly found that there were no disputed issues of fact, and the court’s ruling was based solely on the issue of Subsection K’s effect. Additionally, Arizona probate law "permits appeal of the final disposition of each formal proceeding instituted in an unsupervised administration.” In re Estate of McGathy, 226 Ariz. 277, 280, ¶ 17, 246 P.3d 628 (2010). We hold that the judgment is appealable because it finally resolved the only claim left in the probate matter: the competing claims of the Creditors and the Appellants to James’ Estate.

OPINION MILLER, Judge: ¶ 1 After a jury trial, Angel Ruiz was convicted of multiple counts arising out of the armed robbery and attempted armed robbery of two witnesses to a large marijuana theft. He was sentenced to a combination of consecutive and concurrent sentences totaling 47.25 years. On appeal, Ruiz contends the detective who stopped him lacked reason able suspicion, his constitutional right against double jeopardy was violated by the trial court’s apparent grant and then denial of his motion for judgment of acquittal, and there was insufficient evidence for the jury to convict him of attempted aggravated robbery and attempted armed robbery as to one of the two victims. We affirm in part and vacate in part. Factual and Procedural Background ¶2 We view the facts in the light most favorable to sustaining the jury’s verdicts. State v. Abdi, 236 Ariz. 609, n. 1, 343 P.3d 921, 922 n. 1 (App.2015). In November 2013, a homeland security agent, AC., was conducting undercover surveillance at a track stop, tracking a load of marijuana in a specific tractor-trailer. While AC. watched, a sport utility vehicle (SUV) and a sedan circled the parking lot, stopping near the target tractor-trailer. Six to eight men got out of the vehicles, opened the trailer, and moved bales of marijuana from the trailer to the sedan. AC. called for backup, but the vehicles sped away before it arrived. ¶ 3 A civilian, L.H., approached A.C. to share that he had just witnessed the incident. L.H. and AC. were standing at the back of the open trailer when the SUV returned. Three people jumped out of the SUV, pointed guns at L.H. and A.C., and ordered them to get on the ground. One man, later identified as Anthony Ybave, pointed a gun at the back of L.H.’s head, patted him down, and removed an envelope containing about $380 from his pocket. Ybave then pointed his gun at AC.’s head and patted him down. The men moved more marijuana to the SUV until sirens could be heard in the distance and AC. told the suspects the police were coming. ¶ 4 Two of the men left in the SUV, but crashed a short distance away and fled on foot into the desert. While the search for suspects was ongoing, a track driver told a detective that a man had approached him in the track stop and asked for a ride. The detective entered the truck stop and found Ruiz, who matched the description given by the truck driver. Ruiz was breathing heavily, his hands were shaky, and he looked disheveled. The detective took him outside for a one-person “show-up,” and L.H. immediately identified Ruiz as one of the three men from the SUV. Ruiz’s DNA was found on a cellular telephone near the crash site; the telephone also contained photographs of Ruiz and text messages addressed to him. ¶ 5 Ruiz was charged with two counts each of aggravated robbery, armed robbery, kidnapping, and aggravated assault, and one count each of burglary and possession of marijuana for sale. During trial, one of the aggravated robbery counts was amended to attempted aggravated robbery and one of the armed robbery counts amended to attempted armed robbery. Ruiz was convicted on all counts and sentenced as described above. This timely appeal followed. Motion to Suppress Stop ¶ 6 Ruiz argues the trial court erred by denying his motion to suppress evidence obtained by the detective during his initial questioning and the resulting show-up. He contends the interaction was a Terry , stop that was unsupported by reasonable suspicion. “Whether there is a sufficient legal basis to justify a stop ... is a mixed question of fact and law. We review the trial court’s factual findings on the motion to suppress for an abuse of discretion, but we review its ultimate legal determination de novo.” State v. Evans, 237 Ariz. 231, ¶ 6, 349 P.3d 205, 207 (2015) (citation omitted). ¶ 7 The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Pursuant to that amendment, in appropriate circumstances and in an appropriate manner, a law enforcement officer may “approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, 392 U.S. 1, 22-23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A Terry stop is a seizure under the Fourth Amendment where the officer “restrains [the person’s] freedom to walk away.” Id. at 16, 88 S.Ct. 1868; see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (person seized if, under totality of circumstances, reasonable person would have believed he was not free to leave). Such a stop is constitutional at its inception “ ‘if supported by reasonable suspicion’ that criminal activity is afoot.” State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996), quoting Ornelas v. United States, 517 U.S. 690, 693, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); see also State v. Winegar, 147 Ariz. 440, 446, 711 P.2d 579, 585 (1985) (“‘[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.’ ”), quoting United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). ¶ 8 “ ‘Reasonable suspicion is something short of probable cause,’ ” State v. Teagle, 217 Ariz. 17, ¶25, 170 P.3d 266, 272 (App.2007), quoting State v. O’Meara, 198 Ariz. 294, ¶ 10, 9 P.3d 325, 327 (2000), but more than a mere “inchoate ‘hunch,’ ” id. In assessing whether reasonable suspicion exists to justify a stop, officers may rely on their training and experience “to make inferences from and deductions about the cumulative information available to them.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The officer’s assessment, like that of a reviewing court, is based on “ ‘the totality of the circumstances—the whole picture’ of what occurred at the scene.” Evans, 237 Ariz. 231, ¶ 8, 349 P.3d at 208, quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Furthermore, “[t]here is a gestalt gesthe totality of the circumstances test”—although each individual factor may have a potentially innocent explanation standing alone, collectively they can amount to reasonable suspicion. O’Meara, 198 Ariz. 294, ¶ 10, 9 P.3d at 327; accord Teagle, 217 Ariz. 17, ¶ 29, 170 P.3d at 274. ¶ 9 When reviewing a trial court’s ruling on a motion to suppress, we view only the evidence presented at the suppression healing in the light most favorable to sustaining the court’s ruling. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App.2007). In this case, an armed robbery had recently occurred outside the truck stop, and the robbers’ getaway vehicle had crashed just behind the parking lot. Detective Hernandez got a tip from a truck driver that a man wearing a gray shirt and glasses had asked him for a ride. Although asking someone for a ride has a potentially innocent explanation, under the totality of the circumstances, Hernandez reasonably could have inferred that a robber whose getaway vehicle had just crashed nearby, moments before law enforcement arrived, would have an urgent reason to look for a ride. See Arvizu, 534 U.S. at 273, 122 S.Ct. 744. Hernandez saw Ruiz inside the truck stop wearing identical clothes and glasses to those described by the witness. When Hernandez approached him, he appeared nervous and his voice was shaking. ¶ 10 Under the totality of the circumstances, at that point Hernandez had a reasonable and articulable suspicion that Ruiz had been involved in the recent armed robbery just outside the truck stop. Accordingly, Hernandez did not violate Ruiz’s rights under the Fourth Amendment by stopping him long enough to complete a one-man show-up with one of the victims still present at the scene. See Winegar, 147 Ariz. at 446, 711 P.2d at 585. The trial court did not abuse its discretion in denying the motion to suppress the identification of Ruiz obtained during the show-up. Double Jeopardy ¶ 11 Ruiz contends the trial court violated the constitutional prohibition against double jeopardy when it initially indicated it would grant his motion for judgment of acquittal on two counts during final, but then permitted a response from the state before concluding the motion should be denied. He did not object below, therefore we review for fundamental, prejudicial error. State v. Musgrove, 223 Ariz. 164, ¶ 10, 221 P.3d 43, 46 (App.2009). A double jeopardy violation constitutes fundamental error. Id. We review de novo whether a double jeopardy violation occurred. State v. Nereim, 234 Ariz. 105, ¶ 22, 317 P.3d 646, 652-53 (App.2014). ¶ 12 The Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of an acquittal even when granted by a judge before a jury verdict. Smith v. Massachusetts, 543 U.S. 462, 466-67, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). “[Subjecting the defendant to postacquittal fact-finding proceedings going to guilt or innocence violates the Double Jeopardy Clause.” Smalis v. Pennsylvania, 476 U.S. 140, 145, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). Ruiz moved for a judgment of acquittal during trial, and the counts were later submitted to the jury; therefore, after the court’s ruling, Ruiz was subjected to further “‘factfinding proceedings going to guilt or innocence.’ ” See Smith, 543 U.S. at 467, 125 S.Ct. 1129, quoting Smalis, 476 U.S. at 145, 106 S.Ct. 1745. The question, then, is whether the judge’s initial statements regarding the motion constituted a judgment of acquittal. Id. ¶ 13 Three Arizona eases provide guidance for this fact-intensive inquiry: State v. Newfield, 161 Ariz. 470, 778 P.2d 1366 (App.1989), State v. Millanes, 180 Ariz. 418, 885 P.2d 106 (App.1994), and State v. Musgrove, 223 Ariz. 164, 221 P.3d 43 (App.2009). In Newfield, on which the state relies, the trial court initially stated, “To the extent that your judgement of acquittal under Rule 20 requests an acquittal on a Class 4 felony, that will be granted,” and then reversed its ruling after a brief discussion with counsel. 161 Ariz. at 471, 778 P.2d at 1367. On appeal, we concluded there had been no double jeopardy violation because of the “continuing discussion between the court, the prosecutor, and defense counsel,” and the ultimate denial of the motion, also reflected in the minute entry. Id. at 472, 778 P.2d at 1368. In Millanes, the trial court granted an acquittal, the state twice sought reconsideration, and the court ultimately reversed its ruling. 180 Ariz. at 419, 885 P.2d at 107. On appeal, we reversed, relying on the trial court's restatement of its dismissal in response to the state’s first motion for reeonsideration and the fact that the minute entry reflected both the dismissal and the reversal after a recess. Id. at 422, 885 P.2d at 110. Finally, in Musgrove, the defendant moved for a judgment of acquittal, and the state submitted the issue on the evidence without argument. 223 Ariz. 164, ¶ 11, 221 P.3d at 46. The court granted the Rule 20 motion as to the conspiracy charge, and when the state indicated confusion, the court stated, “T DVd the conspiracy.’ ” Id. ¶ 11. The state asked to argue its position and the court stated it would not change its mind; after argument, however, the court reversed its ruling. Id. The minute entry reflected the acquittal. Id. We distinguished Newfield because the motion in that case had only been considered but not decided before denial. Id. ¶ 14. We vacated the conviction, holding that double jeopardy attaches immediately, and no break in proceedings is required. Id. ¶ 14 In this case, the trial court suggested it would dismiss counts two and four, the robbery counts related to A.C., because Ybave had not taken anything “from [AC.’s] person or immediate presence” as required by the aggravated and armed robbery statutes. See A.R.S. §§ 13-1902(A), 13-1903(A), 13-1904(A). Agreeing with the court’s initial observations, Ruiz moved for judgment of acquittal pursuant to Rule 20(a), Ariz. R. Crim. P. After the state argued that L.H.’s money had been taken from AC.’s immediate presence, the court stated, “I am going to dismiss Counts Two and Four. Those are the armed robbery and aggravated robbery [counts] pertaining as to [AC.].” The state then sought rebuttal, arguing the pat-down of A.C. constituted attempt, and requesting that the counts be amended accordingly. The trial court allowed the amendment and denied the Rule 20 motion. The minute entry reflects the initial dismissal, but three lines below the dismissal it reads, “IT IS ORDERED State’s motion for amendment of Counts 2 and 4 is GRANTED; therefore, the Court reverses its prior ruling, thereby not dismissing Counts 2 and 4.” ¶ 15 Here, the trial court’s statement that it is “going to dismiss” is ambiguous. Generally, “going to,” as used here, “[e]xpress[es] a plan or intention that something will happen (usually soon), or mak[es] a prediction that something will happen, based on present events or circumstances.” Go, Oxford English Dictionary Online (Oxford Univ. Press 2015). The statement may be a prediction of an action in the future, or, as Ruiz notes, the speaker’s decision may already be made and action may be immediate. Moreover, the remainder of the transcript does not clarify whether the court merely predicted dismissal or intended immediate dismissal. ¶ 16 But as in Millanes and Mus-grove, the minute entry unambiguously states that it granted the motion, which is then followed by an equally clear statement that the court reversed its prior ruling. Musgrove, 223 Ariz. 164, ¶ 11, 221 P.3d at 46; Millanes, 180 Ariz. at 419, 424, 885 P.2d at 107, 112. This clarifies that the trial court actually did dismiss counts two and four before reconsidering the ruling. Because we find Millanes and Musgrove controlling, we hold the trial court’s reversal of its ruling and amendment of counts two and four violated Ruiz’s right against double jeopardy. Disposition ¶ 17 We vacate Ruiz’s convictions and sentences for attempted aggravated robbery and attempted armed robbery, and affirm his remaining convictions and sentences. . Deoxyribonucleic acid. . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . The state argued Ruiz was liable as an accomplice. . A discrepancy between a transcript and a minute entry may be resolved by reference to the transcript. See, e.g., State v. Ovante, 231 Ariz. 180, ¶ 38, 291 P.3d 974, 982 (2013) (when discrepancy can be clearly resolved by reference to record, oral pronouncement of sentence controls over minute entry). Here, the transcript was ambiguous rather than in conflict with the minute entry; therefore, the minute entry clarifies the oral statement. . We observe that our supreme court has not definitively addressed this issue. The United States Supreme Court has stated that double jeopardy principles do not prevent the prosecution from "seek[ingj to persuade the court to correct its legal error before it rules, or at least before the proceedings move forward." Smith, 543 U.S. at 474, 125 S.Ct. 1129 (emphasis added). Federal circuit courts have relied on that statement to find no double jeopardy violation even where significant amounts of time have passed but trial has not proceeded. See, e.g., United States v. Hill, 643 F.3d 807, 867 (11th Cir.2011) (95 pages of transcript between acquittal and reversal contained only arguments on various motions); United States v. Lucas, 516 F.3d 316, 337-38 (5th Cir.2008) (acquittal reversed after weekend recess but before trial progressed). Nonetheless, we are generally bound by our previous decisions and, although they are very strict, we cannot say they were incorrectly decided. See State v. Dungan, 149 Ariz. 357, 361, 718 P.2d 1010, 1014 (App.1985) (previous decisions highly persuasive and binding unless court is convinced prior decision is clearly erroneous or conditions have changed). . Because we vacate Ruiz’s convictions and sentences on counts two and four, we need not address his alternative argument that there was insufficient evidence supporting those convictions.

OPINION SWANN, Judge: ¶ 1 The State of Arizona appeals the trial court’s suppression of contraband discovered in an inventory search of a rental truck. First, the state argues that Douglas Christian Wasbotten had no standing to challenge a search of a rented vehicle when he was not an authorized driver under the rental agreement. Second, the state argues that the rental truck was properly impounded under AR.S. § 28-3511, and the search was a valid inventory search. We hold that a driver of a rental vehicle, driving with the renter’s permission but not authorized by the rental agreement, is not per se without standing to challenge a search of the vehicle. But we also hold that AR.S. § 28-3511, which requires impoundment of a vehicle driven by a person with a suspended or revoked license, does not require that the person be driving at the moment the vehicle is stopped. Shortly before the rental track in this case was stopped, a renter with an invalid license was observed driving it. The impound and inventory search here were therefore lawful. We reverse the suppression order. FACTS AND PROCEDURAL HISTORY ¶ 2 The facts are not in dispute. On July 31, 2014, Wasbotten was the passenger in a rented truck that Jennifer Daniels was driving. She pulled the truck into a gas station, and they switched places. Wasbotten then drove the track out of the gas station. After Wasbotten rolled through a stop sign, an officer, who had also observed them pull into the gas station and switch places, pulled them over. The officer discovered that Daniels had rented the truck, but she had a suspended license. And while Wasbotten had a valid license, he was not authorized to drive by the rental agreement. The officer arrested Daniels, impounded the track, and performed an inventory search. ¶ 3 In the course of the search, the officer found a baggie containing what he believed to be methamphetamine and a syringe filled with a clear liquid. Wasbotten was then arrested. The officer testified that in an interview after his arrest, Wasbotten admitted the methamphetamine and syringe belonged to him. He was charged with possession of methamphetamine and possession of drag paraphernalia. ¶ 4 Wasbotten moved to suppress the methamphetamine and paraphernalia found in the truck. He argued that because A.R.S. § 28-3511 states that law enforcement may impound the vehicle if “[a] person is driving” with driver’s license suspended or revoked, the unlicensed driver must be driving at the time of the stop. (Emphasis added.) Because Wasbotten—not Daniels—was driving with a valid license at the time of the stop, he contends that the officer could not legally have impounded the vehicle. If the impound was not legal, he reasons, the inventory search would not have been legal, and any evidence obtained from the search should be suppressed. The state contested Wasbotten’s standing to challenge the search, on the ground that Wasbotten had no possessory interest in the truck and therefore had no reasonable expectation of privacy. ¶ 5 The court, following the Ninth Circuit’s decision in United States v. Thomas, 447 F.3d 1191 (9th Cir.2006), ruled that Wasbotten had standing to challenge the search because he had “permission [to drive the vehicle] granted by the authorized renter.” The court also concluded that the impoundment was illegal because A.R.S. § 28-3511 requires that law enforcement stop a driver with the suspended or revoked license while she is driving as a precondition to impounding her vehicle. The court granted Wasbotten’s motion to suppress and the state successfully moved to dismiss the case. DISCUSSION I. WASBOTTEN HAS STANDING TO CHALLENGE THE SEARCH OF THE RENTAL VEHICLE. ¶ 6 The Fourth Amendment entitles “people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A person’s Fourth Amendment rights do not depend solely on property rights but rather on a “legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Because Wasbotten was not authorized by the rental agreement to drive the track, the question is whether he had a legitimate expectation of privacy as he drove it. ¶ 7 The state urges us to adopt the “bright line” rale from the Third, Fourth, Fifth, and Tenth Circuits that a driver who is unauthorized by the rental agreement has no reasonable expectation of privacy and no standing to challenge a search of the vehicle. See United States v. Kennedy, 638 F.3d 159, 165 (3d Cir.2011); United States v. Wellons, 32 F.3d 117, 119 (4th Cir.1994); United States v. Seeley, 331 F.3d 471, 472 (5th Cir.2003); United States v. Roper, 918 F.2d 885, 887-88 (10th Cir.1990). We reject the notion that a driver’s constitutional expectation of privacy hinges on a contractual relationship with a rental car company; we instead follow the approach of the Eighth and Ninth Circuits. See United States v. Muhammed, 58 F.3d 353, 355 (8th Cir.1995); Thomas, 447 F.3d at 1198-99. ¶ 8 In Thomas, the Ninth Circuit held that “it cannot be said that a defendant’s privacy interest is dependent simply upon whether the defendant is in violation of the terms of [a] lease agreement____ Rather, an unauthorized driver who received permission to use a rental car and has joint authority over the car may challenge the search to the same extent as the authorized renter.” 447 F.3d at 1198-99; see also Muhammad, 58 F.3d at 355 (standing requires permission from the renter, but not the rental car company). The state contends that Wasbotten, as a “brief and transitory” driver and a passenger of the authorized user, had less of a connection to the vehicle than the defendant in Thomas. We disagree. In Thomas, the defendant’s standing to challenge a search depended not on how long he had driven the vehicle or whether others accompanied him but whether he had permission to drive the vehicle. Thomas failed to prove that he had such permission. Id. at 1199. But in this case there is no dispute that Daniels gave Wasbotten permission to drive the vehicle. Wasbotten had at least joint control of the vehicle, and he therefore had standing to challenge the search under Thomas. II. LAW ENFORCEMENT PROPERLY IMPOUNDED THE RENTAL VEHICLE. ¶ 9 The state also contends that even if Wasbotten has standing to challenge the search, the inventory search following impound of the vehicle was proper. On this point, the state is correct. The impound statute reads: “A peace officer shall cause the removal and either immobilization or impoundment of a vehicle if the peace officer determines that: [ ] A person is driving the vehicle while any of the following applies: ... the person’s driving privilege is suspended or revoked for any reason.” A.R.S. § 28-3511(A)(1)(a). We review questions of statutory interpretation de novo. State v. Givens, 206 Ariz. 186, 188, ¶4, 76 P.3d 457 (App.2003). “In construing a legislative enactment, we apply a practical and commonsensical construction,” State v. Alawy, 198 Ariz. 363, 365, ¶ 8, 9 P.3d 1102 (App.2000), and look first to the plain meaning of the words as the best indicator of the statute’s meaning, Givens, 206 Ariz. at 188, ¶ 5, 76 P.3d 457. We seek to give effect to the legislature’s intent in drafting it. Id. ¶ 10 The trial court ruled the impoundment was unlawful because “[t]he person with a suspended license was not driving the vehicle at the time the officers had cause to stop the vehicle. Although the officers had previously observed [Daniels] driving, ‘is’ does not mean ‘was.’ ” This is too restrictive a reading of the statute’s plain language. The statute’s use of the present progressive phrase “is driving” requires that the driving occur while her license is suspended or revoked. A.R.S. § 28-3511(A)(1)(a). It does not require driving at the moment of the actual stop by the peace officer. The opposite construction would lead to absurd results—un der Defendant’s interpretation, an individual with a suspended license could avoid impoundment simply by pulling onto a side street and exiting the vehicle before law enforcement initiated contact. We find no support in the statutory language for such an outcome. CONCLUSION ¶ 11 For the foregoing reasons, we reverse the suppression order. . The state characterizes the Ninth Circuit's approach as the minority approach. But our canvass reveals no true majority rule in the federal circuits. The Eighth and Ninth Circuits both decided that an unauthorized person who has permission to use the rental vehicle has standing. United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998); Thomas, 447 F.3d at 1198. The Sixth Circuit uses a totality of the circumstances approach. United States v. Smith, 263 F.3d 571, 586 (6th Cir.2001) ("[W]e refuse to adopt a bright line test ... based solely on whether the driver of a rental vehicle is listed on the rental agreement. ... [W]e must determine whether Smith had a legitimate expectation of privacy which was reasonable in light of all the surrounding circumstances.”). The Eleventh Circuit distinguishes between drivers unauthorized because the rental agreement has expired and drivers unauthorized because they were not listed on the rental agreement. United States v. Cooper, 133 F.3d 1394, 1399-1400 (11th Cir.1998). And the Seventh Circuit has not taken a position. United States v. Sanford, 806 F.3d 954, 958-59 (7th Cir.2015). Even the Third Circuit's “bright line” approach recognizes that an unauthorized driver might have a reasonable expectation of privacy in "extraordinary circumstances.” United States v. Kennedy, 638 F.3d 159, 165 (3d Cir.2011).

Justice BRUTINEL, opinion of the Court. ¶ 1 Petitioners are health care providers (“Hospitals”) who treated patients (“Patients”) injured by third parties. The Hospitals were paid by the Patients’ insurer, the Arizona Health Care Cost Containment System (“AHCCCS”), which had negotiated reduced rates with the Hospitals. The Hospitals then recorded liens against the Patients pursuant to AR.S. § 33-931 and AR.S. § 36-2903.01(G) for the difference between the amount typically charged for their treatment and the reduced amount paid by AHCCCS. In order to receive their personal injury settlements with the third parties, Patients settled with the Hospitals by paying negotiated amounts to release the liens. ¶ 2 We assume, without deciding, that—as Plaintiffs argue—Arizona’s lien statutes are preempted by federal law. But, because there was a bona fide dispute about the enforceability of these liens when the Patients and Hospitals entered into settlement agreements to achieve lien releases (“accord and satisfaction agreements” or “agreements”), the agreements were supported by adequate consideration and addressed a proper subject matter. Consequently, the accord and satisfaction agreements are valid. I. BACKGROUND ¶ 3 The Patients, along with other patients who did not settle with the Hospitals, sued to set aside the accord and satisfaction agreements and to recover the amounts paid to release the liens. The Hospitals moved to dismiss the complaint against the settling Patients pursuant to Arizona Rule of Civil Procedure 12(b)(6) for failing to state a claim because the parties had reached an accord and satisfaction. The Patients responded that the accord and satisfaction agreements were unenforceable because they lacked a proper subject matter and consideration. They argued that 42 U.S.C. § 1396a(a)(25)(C) preempted AR.S. §§ 33-931 and 36-2903.01, which authorized the Hospitals’ liens. Because the accord and satisfaction agreements were based on invalid liens, the Patients asserted, the agreements violated public policy, had an improper purpose, and lacked consideration. The Patients also claimed that Provider Participation Agreements between the Hospitals and AHCCCS required the Hospitals to “comply with all federal, State and local laws, regulations, standards, and executive orders governing performance of duties under this Agreement” and thus also prohibited the liens as “balance billing”—the practice of billing a patient for the difference between the providers’ customary charges and what AHCCCS pays for services. ¶ 4 The trial court dismissed the Patients’ complaint stating, “it is irrelevant whether federal law preempts Arizona law and prohibits hospitals from enforcing statutory liens on AHCCCS accounts ... [because] [a]ccord and satisfaction does not turn on whether Plaintiffs would have prevailed on the merits of the dispute that was settled.” The court concluded that the accord and satisfaction agreements were “final and binding regardless of the validity of the underlying claims.” ¶ 5 The court of appeals reversed. Abbott v. Banner Health Network, 236 Ariz. 436, 448 ¶ 37, 341 P.3d 478, 490 (App.2014). Reasoning that the accord and satisfaction agreements were void because federal law preempts the Arizona laws allowing the liens, id. at 438 ¶ 1, 341 P.3d at 480, the court held that there was not a “good faith dispute about the enforceability of the lien[s],” and therefore the accord and satisfaction agreements lacked both proper subject matter and consideration. Id. at 446-47 ¶¶ 30-33, 341 P.3d at 478, 489 (stating that an agreement lacks proper subject matter if it is illegal or against public policy). The court concluded that “[i]f the underlying agreement is prohibited and unenforceable, an accord and satisfaction based on that agreement is also unenforceable.” Id. at 443 ¶ 20, 341 P.3d at 485. ¶ 6 We granted review to determine whether the accord and satisfaction agreements between the Patients and the Hospitals are valid, which is an issue 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. DISCUSSION ¶ 7 We review de novo an order granting a motion to dismiss for failure to state a claim. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7, 284 P.3d 863, 866 (2012). ¶ 8 The Hospitals’ liens are authorized by AR.S. §§ 33-93KA) and 36-2903.01(0(4). A.R.S. § 33-931 is the general medical lien statute. It provides hospitals an “entitle[ment] to a lien for the care and treatment or transportation of an injured person” that extends to all claims of liability or indemnity, except health insurance and underinsured and uninsured motorist coverage as defined in § 20-259.01, for damages accruing to the person to whom the services are rendered, or to that person’s legal representative, on account of the injuries that gave rise to the claims and that required the services. A.R.S. § 33-931(A). According to § 36-2903.01(G)(4), “A hospital may collect any unpaid portion of its bill from other third-party payors or in situations covered by title 33, chapter 7, article 3.” These Arizona statutes allow a hospital that accepts payments from AHCCCS to file liens to collect any unpaid portion of its bill from third-party payors for its “customary charges.” A.R.S. § 33-931(0. ¶ 9 On the other hand, federal Medicaid law explicitly prohibits balance billing. Specifically, 42 U.S.C. § 1396a(a)(25)(C) provides that when a person receives Medicaid assistance for which a third party is liable, the provider may not seek to collect from the individual (or any financially responsible relative or representative of that individual) payment of an amount for that service (i) if the total of the amount of the liabilities of third parties for that service is at least equal to the amount payable for that service under the plan.... And pursuant to 42 C.F.R. § 447.15: A State plan must provide that the Medicaid agency must limit participation in the Medicaid program to providers who accept, as payment in full, the amounts paid by the agency plus any deductible, coinsurance or copayment required by the plan to be paid by the individual. Together, these federal laws prohibit a medical care provider from collecting from the individual receiving care the difference in the amount paid by Medicaid, or a state plan like AHCCCS, and the amount typically charged. ¶ 10 The court of appeals concluded that Arizona law conflicts with applicable fed eral law and is thus preempted under article VI, section 2, of the United States Constitution. But courts should not unnecessarily decide constitutional questions. Petolicchio v. Santa Cruz Cty. Fair and Rodeo Ass’n, Inc., 177 Ariz. 256, 259, 866 P.2d 1342, 1345 (1994). Deciding whether the Arizona hospital lien statutes are preempted is unnecessary in determining whether the trial court properly considered and granted Petitioners’ motion to dismiss. ¶ 11 Assuming, as noted above, that federal law preempts the Arizona lien statutes, we turn to the validity of the accord and satisfaction agreements. An “accord and satisfaction discharges a contractual obligation or cause of action when the parties agree to exchange something of value in resolution of a claim or demand and then perform on that agreement, the accord being the agreement, and the satisfaction its execution or performance.” Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 510 ¶ 24, 269 P.3d 678, 686 (App.2011) (quoting Vance v. Hammer, 105 Ariz. 317, 319, 464 P.2d 340, 342 (1970)) (internal quotation marks omitted). The four elements of an accord and satisfaction are (1) proper subject matter, (2) competent parties, (3) assent or meeting of the minds of the parties, and (4) consideration. Vance, 105 Ariz. at 320, 464 P.2d at 343. The Patients contend that the first and fourth elements are lacking here. ¶ 12 The settlement of a bona fide dispute provides consideration if it is made fairly and in good faith. Brecht v. Hammons, 35 Ariz. 383, 389, 278 P. 381, 383 (1929), disapproved on other grounds, Ariz. Pub. Serv. Co. v. S. Union Gas Co., 76 Ariz. 373, 382, 265 P.2d 435, 441 (1954). As this Court stated in Brecht: The settlement of a controversy is valid and binding, not because it is the settlement of a valid claim, but because it is the settlement of a controversy. And when such settlement is characterized by good faith, the court will not look into the question of law or fact in dispute between the parties, and determine what is right. All that it needs to know is, that there was a controversy between the parties, each claiming in good faith rights in himself against the other and that such controversy has been settled. Id. On the other hand, “the surrender of a claim which is known to be entirely without foundation either in law or at equity does not afford a sufficient consideration for a compromise.” Id. at 390, 278 P. at 383. If the matter in controversy was fairly considered by the parties to be unsettled at the time of the agreements, the settlement will not be unwound, even if the statutory provision creating the controversy is later determined to be invalid. Id. at 390-91, 278 P. at 383 (citing Bofinger v. Tuyes, 120 U.S. 198, 7 S.Ct. 529, 30 L.Ed. 649 (1887)). These principles align with the general proposition that settlements of disputed matters are favored by the law and will be upheld if fairly made. E.g., Brecht, 35 Ariz. at 390, 278 P. at 383; Phillips v. Musgrave, 23 Ariz. 591, 594-95, 206 P. 164, 165 (1922). ¶ 13 Brecht is instructive here. At the time of the bank failure underlying that ease, the Arizona Constitution imposed personal liability on stockholders of insolvent banks. Brecht, 35 Ariz. at 385-86, 278 P. at 382. The state sued the bank’s stockholders and obtained a judgment against them. Id. The stockholders then settled with the state to satisfy the judgment. Id. After the settlement was finalized, this Court determined that the provision imposing personal liability on stockholders was preempted by federal law. Hammons v. Watkins, 33 Ariz. 76, 87, 262 P. 616, 620 (1927); see Brecht, 35 Ariz. at 386, 278 P. at 382. In the stockholders’ subsequent suit to unwind the settlement, we found that there was a good faith controversy between the parties at the time of the settlement and held that the settlement was therefore binding. Brecht, 35 Ariz. at 391, 278 P. at 383-84. ¶ 14 The Patients argue that the Hospitals’ liens asserted under Arizona law are illegal under federal Medicaid law, 42 C.F.R. § 447.15 and 42 U.S.C. § 1396a(a)(25)(C). Further, because they are illegal they cannot constitute a proper subject for an accord and satisfaction, and thus the agreements lack consideration. Under Brecht, however, the pertinent question is whether the legality of the liens (that is, whether federal Medicaid law preempts the Arizona laws authorizing the liens) was “settled” at the time of the agreement. The Hospitals argue that since 1984, A.R.S. § 36-2903.01(G)(4) has allowed hospitals to enforce provider-liens under A.R.S. § 33-931 after accepting payment from AHCCCS, and this statute is presumptively valid and constitutional. ¶ 15 Liens such as these have been authorized by Arizona statute for more than thirty years without an Arizona appellate court suggesting that enforcement of such liens is preempted by federal law. Indeed, our courts have found such liens valid and enforceable. See Blankenbaker v. Jonovich, 205 Ariz. 383, 388 ¶ 22, 71 P.3d 910, 915 (2003) (noting that “the lien statutes extend to health care providers ... the ability to enforce a lien against those liable to the patient for damages in order to secure the providers’ customary charges for care and treatment of an injured person”); LaBombard v. Samaritan Health Sys., 195 Ariz. 543, 551 ¶ 31, 991 P.2d 246, 254 (App.1998) (holding that liens against the tort recovery of AHCCCS patients are enforceable despite there being “no right to recover directly” from the patient). ¶ 16 In addition, the federal statute and regulation, 42 U.S.C. § 1396a(a)(25)(C) and 42 C.F.R. § 447.15, do not specifically address the collection of money owed to the patient by third-party tortfeasors. Several courts, however, have concluded that settlement proceeds belong to the patient and the federal prohibitions on balance billing apply. See, e.g., Spectrum Health Continuing Care Grp. v. Anna Marie Bowling Irrevocable Tr. Dated June 27, 2002, 410 F.3d 304, 315 (6th Cir.2005) (holding “the enforcement of [the medical provider’s] lien on the proceeds of the malpractice settlement to recover the balance of its customary fee is prohibited by federal and state law” and “[h]aving chosen to accept payment from Medicaid ... [the medical provide!’] abandoned all rights to further recovery of its customary fee from the lien”); Evanston Hosp. v. Hauck, 1 F.3d 540, 543-44 (7th Cir.1993) (holding a hospital was not permitted to return a Medicaid payment and sue the patient for its customary fee, and finding that allowing the hospital to recover the additional sum would make Medicaid “an insurance program for hospitals rather than for indigent patients”). The United States District Court for the District of Arizona has reached the same conclusion. Lizer v. Eagle Air Med. Corp., 308 F.Supp.2d 1006, 1009 (D.Ariz.2004) (“Congress passed the balance billing prohibition in order to protect eligible patients from having to pay additional sums for services already compensated by Medicaid. The accompanying regulation was passed in order to ensure that this purpose was carried out by preventing providers from intercepting funds on the way to a patient.”). ¶ 17 But these cases are not binding on Arizona state courts, and at the time of the accord and satisfaction agreements here, no Arizona appellate court had addressed the enforceability of Arizona’s medical lien statutes against third-party settlements obtained by Medicaid patients. Thus, while federal law may preempt state law in situations like these, the issue was not settled in Arizona when these agreements were entered into. The stated public policy in Arizona, as reflected by our statutes, was that such liens were valid. ¶ 18 An accord and satisfaction has proper subject matter unless it is founded on a contract that violates statutes or is contrary to public policy. See 1800 Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 202 ¶ 7, 196 P.3d 222, 224 (2008) (“Contract provisions are unenforceable if they violate legislation or other identifiable public policy.”). Here, Arizona law specifically authorized the liens that were settled. Because the statutory policy of Arizona is to allow such liens, they are a proper subject matter for the accord and satisfaction until such time as the Arizona laws authorizing the liens are clearly determined to be preempted by federal law. Thus, the accord and satisfaction agreements had a proper subject matter. Likewise, the settlement of the bona fide dispute served as consideration to support the accord and satisfaction. ¶ 19 The Patients also suggest that A.R.S. §§ 36-2903.01(G)(4) and 33-931(A) are preempted because the Provider Participation Agreements required the Hospitals to follow federal law. This argument begs the question. If it was not settled that such liens were preempted as prohibited balance billing under federal law, it was no more settled in an agreement incorporating that same federal law. The terms of the Provider Participation Agreement do not change the fact that the accord and satisfaction agreements resolved bona fide disputes. III. CONCLUSION ¶ 20 Based on the bona fide dispute about the enforceability of the liens when the Patients and Hospitals entered into the accord and satisfaction agreements, these agreements were supported by adequate consideration and had a proper subject matter. Consequently, the agreements are valid, and the trial court appropriately granted Hospitals’ motion to dismiss. We reverse the court of appeals’ opinion and affirm the trial court’s dismissal of the complaint and entry of judgment in favor of the Hospitals. . While this case was pending in the court of appeals, the superior court granted summary judgment in favor of other plaintiffs—patients against whom hospital liens were asserted but who had not entered into accord and satisfaction agreements with hospitals—determining that the state statutes are preempted by federal law.

JUSTICE BOLICK, opinion of the Court: ¶ 1 We granted review to determine whether multiple convictions under Arizona’s resisting arrest statute, A.R.S. § 13-508, that arise from a single, uninterrupted course of conduct constitute multiple convictions for the same offense in violation of the Double Jeopardy Clause. We hold that, regardless of the number of officers involved, § 13-2508 only permits one conviction when a defen dant resists an arrest in the course of a single, continuous event. I.FACTUAL AND PROCEDURAL HISTORY ¶ 2 In September 2012, Samkeita Jahveh Jurden walked into a department store shirtless, shoeless, and with an unleashed dog. The store’s security guard contacted the police after Jurden refused to leave. Jurden remained even after two officers arrived and also asked him to leave. When the officers attempted to arrest Jurden, he resisted by biting and kicking one officer and flailing and pulling his arms away from the other. The officers struggled with Jurden for nearly four minutes before subduing and handcuffing him. The resistance and arrest formed one, uninterrupted course of conduct. ¶ 3 A grand jury indicted Jurden on two counts of aggravated assault, one count of criminal trespass, and two counts of resisting arrest under A.R.S. § 13-2508(A)(1)—one for each officer resisted. A jury found Jurden guilty on all charges except one aggravated assault count. ¶4 The trial court sentenced Jurden to concurrent rather than consecutive terms of imprisonment. In accordance with AR.S. § 13-711(A), the trial judge explained his reasoning: [A]ll the more when I watch the video in this ease, it’s all one incident and it starts and it just continues. ... Perhaps, if there were some lengthy delay between one event and another, there might be a better justification of the idea of consecutive sentences. But this all starts and ends in just one big melee, really, and so the idea of consecutive sentences here doesn’t seem appropriate to me, under the circumstances. ¶ 5 On appeal, Jurden argued that his two convictions under § 13-2508 for resisting arrest arose from a single offense and, therefore, his second conviction arose from the same offense and violated the Double Jeopardy Clause. In a split decision, the court of appeals agreed and vacated one of the convictions. State v. Jurden, 237 Ariz. 423, 429 ¶ 21, 352 P.3d 455, 461 (App. 2015). ¶ 6 We granted review because whether § 13-2508 authorizes multiple convictions and punishments for resisting arrest in one, uninteiTupted course of conduct that involves more than one officer presents a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and AR.S. § 12-120.24. II. DISCUSSION ¶ 7 This case presents an issue of statutory interpretation, which we review de novo. Lubin v. Thomas, 213 Ariz. 496, 498 ¶ 13, 144 P.3d 510, 512 (2006). However, it also implicates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Because Jurden failed to raise the double jeopardy objection in the trial court, we review only for fundamental error. See State v. Miller, 234 Ariz. 31, 36 ¶ 7, 316 P.3d 1219, 1224 (2013); State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830, 837 (1995). A conviction or sentence that violates the Double Jeopardy Clause constitutes fundamental error. State v. McGill, 213 Ariz. 147, 153 ¶ 21, 140 P.3d 930, 936 (2006). ¶ 8 The parties disagree whether a defendant may be convicted under § 13-2508 of multiple counts of resisting arrest resulting from a single, continuous act of resistance involving multiple officers. Section 13-2508 states: A A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer’s official authority, from effecting an arrest by: 1. Using or threatening to use physical force against the peace officer or another. 2. Using any other means creating a substantial risk of causing physical injury to the peace officer or another. 3. Engaging in passive resistance. B. Resisting arrest pursuant to subsection A, paragraph 1 or 2 of this section is a class 6 felony. Resisting arrest pursuant to subsection A, paragraph 3 of this section is a class 1 misdemeanor. C. For the purposes of this section, “passive resistance” means a nonviolent physi cal act or failure to act that is intended to impede, hinder or delay the effecting of an arrest. ¶ 9 The State argues that § 13-2508(A)(1) is victim-directed, meaning a separate offense is committed for each peace officer against whom physical force is directed. Jurden argues that the statute is event-directed, so that the single, continuous act of resisting arrest constitutes one offense, regardless of how many officers were resisted. If Jurden is correct, then subjecting him to conviction and punishment for two counts of resisting arrest violates the prohibition against double jeopardy. ¶ 10 The Double Jeopardy Clause protects against multiple punishments for the same offense. State v. Eagle, 196 Ariz. 188, 190 16, 994 P.2d 395, 397 (2000); see also Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The protection against double jeopardy may be triggered in two contexts. First, if the same conduct is held to constitute a violation of two different criminal statutes, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); accord United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); see also Eagle, 196 Ariz. at 190 ¶ 6, 994 P.2d at 397; cf. A.R.S. § 13-116 (requiring concurrent sentences for a single “act or omission which is made punishable in different ways by different sections of the laws”). 111Second, if multiple violations of the same statute are based on the same conduct, there can be only one conviction if there is a single offense. See, e.g., State v. Powers, 200 Ariz. 123, 125 15, 23 P.3d 668, 670 (App.2001), approved, 200 Ariz. 363, 26 P.3d 1134 (2001). In such cases, the statutory definition of the crime determines the scope of conduct for which a discrete charge can be brought, which the United States Supreme Court has referred to as the “allowable unit of proseeution.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952). Because our decisions have not definitively addressed the analysis pertaining to “unit of prosecution” cases, we endeavor to do so here. 112 The seminal United States Supreme Court case is Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), in which the Court reviewed a consecutive sentence on a second assault charge where the defendant discharged his weapon once but wounded two officers. Examining the federal assault statute, the Court asked: “Did Congress mean that the single discharge of a shotgun would constitute one assault, and thus only one offense, regardless of the number of officers affected, or did Congress define a separate offense for each federal officer affected by the doing of the act?” Id. at 173, 79 S.Ct. 209. The Court examined the statutory language, history, and purpose, which it found inconclusive. Id. at 173-77, 79 S.Ct. 209. The Court reasoned, “[A]n interpretation that there are as many assaults committed as there are officers affected would produce incongruous results.” Id. at 177, 79 S.Ct. 209. Under such a reading, a defendant who seriously injured an officer would receive a maximum sentence of ten years, “but if he points a gun at five officers, putting all of them in apprehension of harm, he would commit five offenses punishable by 50 years’ imprisonment, even though he does not fire the gun and no officer actually suffers injury.” Id. Finally, the Court applied the “policy of lenity,” in which the Court “will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Id. at 178, 79 S.Ct. 209. These factors caused the Court to conclude that the discharge of the shotgun constituted only one assault. Id. 113 Other state supreme courts have applied these criteria in “unit of prosecution” cases. In Commonwealth v. Rabb, the Massachusetts Supreme Judicial Court instructed: The appropriate inquiry in a ease like this ... asks what “unit of prosecution” was intended by the Legislature as the punishable act. ... The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant’s favor. 431 Mass. 123, 725 N.E.2d 1036, 1041 (2000); accord State v. Schoonover, 281 Kan. 453, 133 P.3d 48, 65 (2006) (“[I]n unit of prosecution cases the Court applies a rule of lenity.”). ¶ 14 The Arizona cases cited by the State are not helpful in determining the unit of prosecution because they neither address double jeopardy nor discuss the unit of prosecution in § 13-2508. See State v. Mitchell, 204 Ariz. 216, 62 P.3d 616 (App. 2003) (determining the meaning of “effecting an arrest”); State v. Sorkhabi, 202 Ariz. 450, 452 ¶ 9, 46 P.3d 1071, 1073 (App. 2002) (finding that resisting arrest is not a victimless crime, but rather a crime against a person where a “[djefendant must use or threaten to use physical force or any other means that creates a substantial risk of causing physical injury to the peace officer”); State v. Womack, 174 Ariz. 108, 111, 847 P.2d 609, 612 (App. 1992) (finding that the statute did not apply to a defendant who led officers on a high speed chase because the statute prohibits threats or assaultive behavior directed toward an arresting officer, whereas the chase was meant to put as much distance as possible between the defendant and the officers). ¶ 15 Our objective in interpreting statutes is to give effect to the legislature’s intent. See Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 383 ¶ 8, 296 P.3d 42, 46 (2013). If the statutory language is unambiguous, we apply it as written without further analysis. Id. If, however, the statute is subject to more than one reasonable interpretation, we consider secondary principles of statutory interpretation, such as the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose. Id. ¶ 16 We find § 13-2508 is ambiguous because it may be reasonably read to designate either an event-directed or victim-directed unit of prosecution. We agree with the court of appeals that § 13-2508(A) may be reasonably read as defining the offense as intentionally preventing or attempting to prevent an arrest, with subsections (1), (2), and (3) describing the various ways to resist a single arrest. Jurden, 237 Ariz. at 426 ¶ 10, 352 P.3d at 458. But § 13-2508(A) may also be reasonably read as defining the offense as intentionally preventing or attempting to prevent a peace officer from effecting an arrest, where the unit of prosecution focuses on each officer resisted. ¶ 17 Because the language of § 13-2508(A) is reasonably susceptible to two differing interpretations, we must turn to secondary statutory construction methods to ascertain the unit of prosecution. Utilizing those methods, we hold that § 13-2508 describes an event-directed unit of prosecution that prohibits multiple convictions and punishments for resisting arrest when, as here, the counts stem from one, uninterrupted event. ¶ 18 The legislative history of the statute is not particularly helpful. Before 1977, Arizona’s resisting arrest statute provided that a person illegally arrested could resist the arrest, using whatever force necessary, short of killing the arresting officer. Dugan v. State, 54 Ariz. 247, 250, 94 P.2d 873, 874 (1939). In 1977, the Arizona Legislature enacted a new criminal code that included § 13-2508, which prohibited a person from resisting any arrest, legal or not. 1977 Ariz. Sess. Laws, ch. 142, § 86 (1st Reg. Sess.). In 2012, the legislature amended the statute to include passive resistance as a means to resist arrest. 2012 Ariz. Sess. Laws, ch. 265, § 1 (2d Reg. Sess.); § 13-2508(A)(3). However, neither party nor this Court has found in this history any indication that the legislature intended the statute to describe an event-directed or instead a victim-directed offense. ¶ 19 Turning to the statute’s purpose, we find that § 13-2508 addresses mul tiple objectives. There is no question that § 13-2508 seeks to protect peace officers. See Mitchell, 204 Ariz. at 219 ¶ 16, 62 P.3d at 619 (“The purpose of the resisting arrest statute is to protect peace officers and citizens from substantial risk of physical injury.”). But the statute also seeks to protect the authority of the state. That goal is reflected in the statutory language, which requires that the resistance be directed against a person “acting under color of ... official authority.” A.R.S. § 13-2508(A). As the court of appeals found, this serves to “criminalize a person’s conduct that presents a risk of harm in a particular context—when the actor is interfering with the peace officer’s efforts to exercise state authority.” Jurden, 237 Ariz. at 428 ¶ 18, 352 P.3d at 460. ¶ 20 Focusing on the event also finds support in the common law, which recognized that the crime of resisting arrest is “an offense against the State and not personally against the officers.” Purnell v. State, 375 Md. 678, 827 A.2d 68, 80 (2003), cited with approval in State v. Le Noble, 216 Ariz. 180, 182-83 ¶ 12, 164 P.3d 686, 688-89 (App.2007). Insofar as resisting arrest is an offense against the state’s authority, the unit of prosecution would not depend on the number of officers resisted, but rather on each arrest resisted in defiance of state authority. ¶ 21 An event-directed unit of prosecution satisfies both purposes of the statute. The purpose of protecting officers is advanced with an event-directed offense because whether a person resists one or several officers in a continuous event, he may be charged with and convicted of resisting arrest. A single charge of resisting arrest in each uninterrupted course of conduct satisfies the purpose of mandating submission to the state. ¶ 22 The statute’s context, structure, and effects also support our conclusion that § 13-2508 is an event-directed offense. In 2012, the legislature added passive resistance to the offenses covered by the statute. 2012 Ariz. Sess. Laws, ch. 265, § 1; § 13-2508(A)(3). Passive resistance is defined as “a nonviolent physical act or failure to act that is intended to impede, hinder or delay the effecting of an arrest.” AR.S. § 13-2508(C). This subsection does not require action directed against an officer, but serves to punish anyone who impedes the arrest, which is a function of the state’s authority. This language describes a unit of prosecution grounded in the event of the arrest, not the officers. ¶ 23 The legislature’s addition of passive resistance also makes it clear that a victim-directed reading of § 13-2508 could potentially lead to unintended outcomes. For example, a person who simply does not open the door when officers attempt to arrest him commits passive resistance under § 13-2508(C). Many officers may break open the door, find the suspect, and “effect” the arrest under § 13-2508(A). Although the arrest could have been made by a single officer, the arrestee would nonetheless be subject to a resisting-arrest charge for each officer who took part in the arrest. Multiple convictions would not further the statute’s purposes. ¶ 24 Section 13-2508’s placement within the overall criminal statutory scheme also demonstrates a legislative intent to deter and punish those who interfere with state authority rather than those who attack individual officers. See Grant v. Bd. of Regents of Univs. and State Colls. of Ariz., 133 Ariz. 527, 529, 652 P.2d 1374, 1376 (1982). Section 13-2508 is placed in the “Escape and Related Offenses” section of Arizona’s criminal code. A.R.S. tit. 13, ch. 25. Resisting arrest is placed in the same chapter as escape, A.R.S. §§ 13-2502-2504; promoting prison contraband, A.R.S. § 13-2505; failure to appear, AR.S. §§ 13-2506-2507; resisting an order directing, regulating or controlling a motor vehicle, AR.S. § 13-2509; hindering prosecution, A.R.S. §§ 13-2510-2512; failure to discharge duties, AR.S. § 13-2513; and promoting secure care facility contraband, AR.S. § 13-2514. These statutes focus on violations of state authority rather than concentrating on the individual state actors who may be involved in the crime. Although not disposi tive, the placement of § 13-2508 within a chapter that otherwise only deals with offenses against the state supports an inference of legislative intent to create an event-directed unit of prosecution that focuses on punishing those who interfere with state authority. ¶ 25 We find further support for our decision that § 13-2508 describes an event-directed offense in complementary Arizona statutes. Each individual officer is protected under Arizona’s assault statutes, AR.S. §§ 13-1203-1204, which are notably placed in a separate chapter of the code from the resisting arrest statute. These statutes separately and properly criminalize victim-directed offenses when a person resists officers attempting to effect an arrest. Therefore, the goal of protecting individual officers does not require interpreting § 13-2508 as a victim-focused offense because a criminal sanction already exists under §§ 13-1203-1204 for injuries or threat of injuries to officers. Indeed, Jurden was charged with two counts of assault and convicted of one count of aggravated assault under these two statutes. Moreover, a simple assault under § 13-1203 becomes a more serious aggravated assault if the assailant knows or should know that the victim is a peace officer engaged in executing his official duties. A.R.S. § 13—1204(A)(8). ¶ 26 In sum, we conclude that § 13-2508 yields two reasonable interpretations. It can be read as either containing an event-directed or victim-directed unit of prosecution. The statute serves both to punish resistance to state authority and to protect officers. But its primary purpose is the first, and allowing multiple criminal convictions could produce unintended and unfair results. This reading does not work any hardship upon law enforcement, given that one count of resisting arrest can be coupled in appropriate circumstances with assault charges, as was the ease here. For all the reasons set forth above, we conclude the legislature did not intend, and the Double Jeopardy Clause does not allow, multiple convictions and punishments under § 13-2508 for a single, continuous act of resisting arrest. III. CONCLUSION ¶ 27 For the foregoing reasons, we vacate the opinion of the court of appeals, vacate Jurden’s second conviction for resisting arrest, and affirm the remaining convictions and sentences. . On appeal, Jurden raised article 2, section 10 of the Arizona Constitution, which also protects against double jeopardy, but did not separately argue that provision. This Court has previously indicated that the provision is coextensive with the Fifth Amendment’s Double Jeopardy Clause, see Eagle, 196 Ariz. at 190 ¶ 5, 994 P.2d at 397, a holding that we are not called upon to reconsider here. . The issue of what "effecting an arrest” means was explicitly analyzed in Mitchell, 204 Ariz. at 218-19 ¶¶ 11-18, 62 P.3d at 618-19. The court determined that effecting an arrest under § 13-2508 "connotes successful, effective restraint or submission of the person,” which is to be determined on a case-by-case basis. Id. at 219 ¶ 15, 62 P.3d at 619.

OPINION JOHNSEN, Judge. ¶ 1 Although a traditional civil battery claim requires proof the defendant intended to commit harm or offensive contact, a plaintiff suing for medical battery need not prove the defendant acted with such intent. In this case, a patient alleged a physician committed medical battery by disregarding her conditional consent to a medical procedure. A patient who brings such a claim must prove the defendant willfully disregarded the scope of the patient’s consent. Because the superi- or court in this case instructed the jury based on traditional common-law battery rather than on medical battery, we reverse the defense judgment and remand for a new trial. FACTS AND PROCEDURAL BACKGROUND ¶ 2 After a fall, Christina Carter met with Dr. David Towns of The Pain Center of Arizona, who recommended a sacrococcygeal ligament injection for her pain. When Carter expressed anxiety about the injection, Towns offered to sedate her for the procedure. In the notes he made after the appointment, Towns confirmed that he would do the procedure with sedation. Twelve days later, Carter returned for the injection. Before undergoing the procedure, Carter signed a consent form stating: I,Christina Carter ... hereby authorize and consent to the treatment as ordered by Dr. David Towns, and any other physician or medical personnel who may be directly involved in the course of my treatment. I hereby authorize and consent to the following procedure described to be performed: Sacrococcygeal Ligament Injection under Fluoroscopy with IV Sedation. Towns then proceeded to administer the injection without first sedating Carter. ¶ 3 Some time later, Carter sued Pain Center and Towns, alleging battery and false imprisonment based on the defendants’ failure to sedate her prior to the injection. Before trial, Carter requested the following jury instruction: Christina Carter claims that Dr. David K. Towns committed a battery against her. On this claim, Christina Carter must prove: 1. Christina Carter’s consent to the sacrococcygeal ligament injection was conditioned upon receipt of IV sedation; and 2. Dr. David K. Towns performed the sacrococcygeal ligament injection in willful disregard of the conditional consent given by Christina Carter; and 3. Christina Carter’s damages. ¶4 Defendants objected to Carter’s proposed instruction and asked the superior court to give the following traditional civil battery instruction found in the Revised Arizona Jury Instructions (“RAJI”) as Intentional Torts 2: Christina Carter claims that The Pain Center of Arizona, PC and Dr. David K. Towns committed a battery against her. On this claim, Christina Carter must prove: 1. The Pain Center of Arizona, P.C., and Dr. David K. Towns intended: a. To cause harm or offensive contact with Christina Carter. 2. The Pain Center of Arizona, P.C., and Dr. David K. Towns caused harmful or offensive contact with Christina Carter. 3. Christina Carter’s damages. A contact is offensive if it would offend a reasonable person. Carter objected to the defendants’ proposed RAJI instruction, arguing her proposed instruction more accurately identified the elements of a medical battery. The court overruled her objection and gave the RAJI battery instruction proposed by the defendants. ¶ 5 Following a five-day trial, the jury returned a defense verdict. Carter unsuccessfully moved for a new trial, arguing the court erred by refusing to give her requested jury instruction. Carter timely appeals. We have jurisdiction pursuant to Arizona Revised Statutes section 12-2101(A)(1), (5)(a) (2016). DISCUSSION ¶ 6 Carter argues the court erred by giving the RAJI battery instruction because, as applied, that instruction turned on whether the defendants intended to harm her or cause an “offensive contact.” She contends the issue in a medical battery, instead, is whether the defendant willfully performed an uneonsented-to procedure. Whether a jury instruction correctly states the law is a matter of law that we review de novo. A Tumbling-T Ranches v. Flood Control Dist. of Maricopa County, 222 Ariz. 515, 533, ¶ 50, 217 P.3d 1220, 1238 (App.2009). We review jury instructions as a whole to determine whether the jury was properly guided in its deliberations. Pima County v. Gonzalez, 193 Ariz. 18, 20, ¶ 7, 969 P.2d 183, 185 (App.1998). We will reverse only if an erroneous instruction prejudiced the appellant’s rights. Am. Pepper Supply Co. v. Fed. Ins. Co., 208 Ariz. 307, 309, ¶ 7, 93 P.3d 507, 509 (2004). ¶ 7 A medical battery occurs when a physician performs a procedure without the patient’s consent. See, e.g., Duncan v. Scottsdale Medical Imaging, Ltd., 205 Ariz. 306, 309, ¶ 9, 70 P.3d 435, 438 (2003) (“The law is well established that a health care provider commits a common law battery on a patient if a medical procedure is performed without the patient’s consent.”); Saxena v. Goffney, 159 Cal.App.4th 316, 71 Cal.Rptr.3d 469, 475 (App.2008); Devitre v. Orthopedic Ctr. of St. Louis, L.L.C., 349 S.W.3d 327, 334 (Mo.2011); Howard v. Univ. of Med. & Dentistry of New Jersey, 172 N. J. 537, 800 A.2d 73, 80 (2002) (medical battery “is reserved for those instances where either the patient consents to one type of operation but the physician performs a substantially different one from that for which authorization was obtained, or where no consent is obtained”); Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn.1998). ¶ 8 Likewise, medical battery also occurs when a physician performs a procedure in willful disregard of a patient’s limited or conditional consent. See Duncan, 205 Ariz. at 310-11, ¶¶ 15-18, 70 P.3d at 439-40. The patient in Duncan alleged she had consented to be sedated with certain drugs but not others, and that doctors had injected her with a drug to which she had not consented. Id. at 310-11, ¶ 15, 70 P.3d at 439-40. The court explained that a medical battery claim is based on the “doctor’s failure to operate within the limits of the patient’s consent.” Id. at 310, ¶ 13, 70 P.3d at 439. Citing Restatement (Second) of Torts (1965), Duncan explained the significance of consent in such a claim: The Restatement requires that consent, to be effective, must be “to the particular conduct, or substantially the same conduct.” Restatement § 892A(2)(b). The terns and reasonable implications of the consent given determine the scope of the particular conduct covered. Restatement § 892A cmt. d. The “scope” of consent is an issue for the trier of fact to determine. Id. at 311, ¶ 16, 70 P.3d at 440. The court then concluded: “We hold that when a patient gives limited or conditional consent, a health care provider has committed a battery if the evidence shows the provider acted with willful disregard of the consent given.” Id. at ¶ 18. ¶ 9 Defendants in this case argue the RAJI battery instruction is appropriate when a medical battery is based on a total lack of consent, and contend Carter waived the issue by failing to make clear to the superior court that her claim was based on conditional consent. The RAJI instruction the court gave, however, required Carter to prove that the defendants “intended ... [t]o cause [Carter] harm or offensive contact.” Contrary to defendants’ assertion, a patient who alleges medical battery based on a total lack of consent (for example, the patient consented to one procedure and another was performed) need not prove that the physician intended to cause harm or offensive contact. Under Duncan and related eases, such a patient need only prove she was damaged when the physician wilfully performed a procedure to which she did not consent. Id. at 309, ¶ 9, 70 P.3d at 438; Hales v. Pittman, 118 Ariz. 305, 310, 576 P.2d 493, 498 (1978). The instruction Carter proposed was true to the holding of Duncan; it would have required her to prove that her consent to the pain treatment was conditioned upon receiving sedation and that Towns administered the treatment “in willful disregard of the conditional consent.” See Duncan, 205 Ariz. at 311, ¶ 18, 70 P.3d at 440. ¶ 10 Citing Hales, defendants argue that even though the instruction the court gave did not address consent, it was Carter’s obligation, not the court’s, to explain to the jury in closing how consent applied to her claim. But consent is not, as defendants contend, a mere “refinement” to the required intent to harm or offensive contact in the RAJI instruction. As Duncan made clear, consent is the fulcrum on which a medical battery claim such as Carter’s turns. 205 Ariz. at 311, ¶ 18, 70 P.3d at 440. Indeed, Hales held that the jury instructions given there were proper because they adequately addressed whether the procedure was performed “without the patient’s consent.” 118 Ariz. at 310-11, 576 P.2d at 498-99; see also Cathemer v. Hunter, 27 Ariz.App. 780, 785, 558 P.2d 975 (1976) (jury may determine whether medical procedure fell within scope of patient’s consent). ¶ 11 Defendants also argue Carter’s counsel cured any error when he explained to the jury in closing argument how the instruction the court gave might be construed to impose liability in the absence of intent to harm. Defendants’ contention is belied by their own counsel’s vigorous closing argument to the contrary: “[Battery] requires that Dr. Towns had an intent to harm. That is what your jury instruction says, and don’t let any argument from any attorney allow you to change what the jury instruction actually says. It’s intent to harm.” Defendants’ counsel reiterated the “intent to harm” refrain several more times during closing. This plainly is not a situation in which counsel’s closing argument cured instructional error. Moreover, closing arguments “generally carry less weight with a jury than do instructions from the court.” Boyde v. California, 494 U.S. 370, 384, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). This is particularly true when, as here, the parties’ lawyers argued conflicting versions of the law and, rather than properly instruct the jury on which was correct, the court instead gave an instruction that permitted the incorrect argument. ¶ 12 Defendants further argue that even if the battery instruction was error, Carter cannot show prejudice. See Am. Pepper Supply, 208 Ariz. at 309, ¶ 7, 93 P.3d at 509 (“To warrant reversal, the jury instruction must have been not only erroneous, but ‘prejudicial to the substantial rights of the appealing party.’ ”) (citations omitted). De fendants assert the jury could have found in their favor because it concluded Carter consented to the injection without sedation or that she did not prove damages. We will not engage in such speculation. Carter objected to the insti’uction given and, on this record, if the jury had been properly instructed, it could have found that Carter’s consent to the injection was conditioned on her receiving sedation and that defendants willfully disregarded the limited scope of her consent. See Melancon v. USAA Cas. Ins. Co., 174 Ariz. 344, 347, 849 P.2d 1374, 1377 (App.1992) (“A jury verdict cannot stand if the instructions given create substantial doubt as to whether or not the jury was properly guided in its deliberations.”). ¶ 13 Defendants also contend Carter had a duty to request jury interrogatories from which, in the event of a defense verdict, it might be ascertained whether the jury found against her based on liability or on damages. Not so. When a party has requested a jury instruction that is supported by the facts and correctly states the law, but the court declines to give the instruction and instead gives an erroneous instruction, there is no requirement that the aggrieved party request special interrogatories to prove prejudice. CONCLUSION ¶ 14 For the reasons stated above, we reverse the defense judgment on Carter’s claim for medical battery and remand for a new trial. . Absent material revision after the relevant date. we cite a statute's current version. . Further, contrary to defendants’ assertion, Carter's complaint and her proposed jury instruction both made clear that her claim was that the consent she gave to the injection was conditioned on her receiving sedation. . Carter does not argue on appeal that the defense verdict on her claim for false imprisonment should be reversed.

OPINION ESPINOSA, Judge: ¶ 1 In this medical malpractice action, appellants Karyn Rasor and her husband, Donald Miller, (hereafter referred to as the Rasors) appeal the trial court’s grant of summary judgment in favor of appellee Northwest Medical Center (NWMC or “the hospital”) and its rulings on certain discovery and the denial of leave to secure additional experts. NWMC cross-appeals, asserting the court abused its discretion by ordering it to produce certain patient records. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings. Factual and Procedural Background ¶ 2 In reviewing a grant of summary judgment, we view the evidence and all legitimate inferences therefrom in the light most favorable to the nonmoving party. See Gorney v. Meaney, 214 Ariz. 226, ¶2, 150 P.3d 799, 801 (App.2007). From July 7 to July 29, 2011, Rasor, then fifty-one years old, was a patient at NWMC, with “a long and complicated past medical history.” Rasor was diagnosed with a faulty mitral valve, coronary artery disease, and congestive heart failure. On July 18, she underwent open-heart surgery lasting over seven hours during which she lay supine. Shortly after the procedure and while in transit to her hospital bed, Rasor suffered a cardiac arrest requiring CPR followed by the insertion of an intraaortic balloon pump (IABP). The IABP was threaded through the femoral artery in Rasor’s leg to her aorta, requiring that her leg be immobilized. ¶ 3 Rasor, while connected to an external pacemaker, the balloon pump console, various intra-venous lines, and a ventilator, was transported to the intensive care unit (ICU) where she was the sole patient of Nurse Michael Farrand, RN. At his deposition, Farrand testified, “[ajnything that deviates the patient’s position can theoretically cause ... the actual balloon on the end of the pump, to go out of place” and “you have to be just extremely careful when you move the patient that the lines don’t get kinked, that nothing gets pulled.” ¶4 The IABP was removed on July 21. Farrand described how, during its removal, the patient’s catheterized leg must be clamped to the bed so tightly that for the first five minutes the patient’s foot turns blue, with the clamp slowly released over the course of an hour to allow the blood to clot. Thereafter, the patient must lie flat for eight hours so as not to dislodge the clot. On July 22, another ICU nurse noted a discoloration to Rasor’s coccyx which she described as a suspected deep-tissue injury, a category of pressure ulcer. On July 26, Rasor underwent a cardiac catheterization lasting over an hour and after which she was required to keep her leg straight for six hours. On July 27, the nursing staff requested a consult by NWMC’s wound-care department and a wound-care nurse provided Rasor with a spe cialty mattress. Rasor’s pressure ulcer ultimately reached “stage IV,” eventually requiring thirty-one debridement procedures and resulting in pain and symptoms alleged to be permanent. ¶ 5 In July 2013, the Rasors brought a medical malpractice action against NWMC, alleging that during Rasor’s hospitalization NWMC had “breached its professional duties ..., proximately causing the development of a decubitus ulcer” by failing to “appropriately off-load[ ] ... Rasor” and “negligently fail[ing] to timely discover” the ulcer. The Rasors retained one expert, a board-certified, wound-care nurse, Julie Ho, R.N., and filed a preemptive motion seeking to introduce Ho’s expert opinion testimony concerning standard of care, causation, and prognosis. They also filed a motion for partial summary judgment alleging the hospital’s failure to treat the pressure ulcer for five days after its discovery had violated the standard of care. NWMC then filed its motion for summary judgment, asserting that the Rasors’ “standard of eare/causation expert does not qualify under Arizona Rule of Evidence, Rule 702, AR.S. § 12-2603, and AR.S. § 12-2604 to render standard of care or causation opinions in this matter” and consequently the Rasors “are unable to establish that [the hospital] breached the applicable standard of care and [the] Complaint should be dismissed.” ¶ 6 In December 2014, the trial court ruled that the Rasors were permitted to introduce Ho’s “expert opinion ... regarding wound care,” but deferred the remaining issues until the hearing on NWMC’s motion for summary judgment. In January 2015, the court denied the Rasors’ motion for partial summary judgment, granted NWMC’s motion for summary judgment and denied the Rasors’ request to secure a new expert. A formal judgment bearing Ariz. R. Civ. P. 54(c) language was entered, dismissing the Rasors’ complaint with prejudice, and both parties appealed. This court has jurisdiction over the Rasors’ appeal and NWMC’s cross-appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1). Summary Judgment Ruling ¶ 7 Summary judgment is appropriate when “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). We review de novo a trial court’s grant of summary judgment and view the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion. Felipe v. Theme Tech Corp., 235 Ariz. 520, ¶ 31, 334 P.3d 210, 218 (App.2014); see also Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). ¶8 To establish medical malpractice, a plaintiff must prove negligence by showing that the health care provider fell below the standard of care and that such deviation from the standard of care proximately caused the claimed injury. Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, ¶ 23, 262 P.3d 863, 869-70 (App.2011). Section 12-563, AR.S., provides the following as the necessary elements of proof: (1) The health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances. (2) Such failure was a proximate cause of the injury. Id.; see also Seisinger v. Siebel, 220 Ariz. 85, ¶ 32, 203 P.3d 483, 492 (2009). Typically, the standard of care must be established by expert medical testimony. Ryan, 228 Ariz. 42, ¶ 23, 262 P.3d at 869-70; see also Boyce v. Brown, 51 Ariz. 416, 421, 77 P.2d 455, 457 (1938) (noting established law that “negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony” unless negligence grossly apparent). Expert medical testimony is also generally required to establish proximate cause unless a causal relationship is readily apparent to the trier of fact. Gregg v. Nat'l Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App.1985). Qualification of Expert Witness ¶ 9 The first issue on appeal is whether the Rasors’ expert witness, Nurse Ho, was qualified to testify as a standard of care expert pursuant to A.R.S. § 12-2604. The Rasors’ medical negligence claim centered on the care provided by NWMC’s ICU nurses between July 19 and July 22. Ho opined that NWMC had failed to reposition Rasor during her recovery, proximately causing the pressure ulcer to develop, and failed to order a wound-care consultation and specialty mattress after discovering the pressure ulcer, causing it to worsen. Ho was the Rasors’ sole expert as to standard of care, causation, and prognosis. NWMC contends, as it did below in its motion for summary judgment, that while Ho may be an expert on wound care, she is not an ICU nurse and such a nurse is a specialist under § 12-2604. The Rasors respond that Ho’s opinions, together with testimony by the ICU nurses, provided sufficient evidence of the standard of care. “Apart from issues of statutory interpretation, which we review de novo, we review trial court determinations on expert qualifications for an abuse of discretion.” Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, ¶ 30, 296 P.3d 42, 50 (2013). This standard of review applies to admissibility questions in summary judgment proceedings. Id. ¶ 10 In a medical malpractice action, a health professional may provide expert testimony on the appropriate standard of practice or care only if he or she is licensed and meets the following criteria, in relevant part: 1.If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty. 2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person’s professional time to ... the following: (a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty. 3. If the defendant is a general practitioner, the witness has devoted a majority of the witness’s professional time in the year preceding the occurrence giving rise to the lawsuit to ... the following: (a) Active clinical practice as a general practitioner. § 12-2604(A). When the testimony is offered against a health care professional employed by the defendant health care institution, subsection A applies “as if the health professional were the party or defendant against whom or on whose behalf the testimony is offered.” § 12-2604(B). ¶ 11 Section 12-2604(A) applies to medical malpractice cases involving nursing care. Cornerstone Hosp. of Se. Ariz., L.L.C. v. Marner, 231 Ariz. 67, ¶ 41, 290 P.3d 460, 472 (App.2012). In Mamer, we held that nursing qualifies as a “health profession” for purposes of § 12-2604(A)(2). Id. A “‘specialty1 ” pursuant to § 12-2604(A)(2) includes specialties and subspecialties. Baker, 231 Ariz. 379, ¶ 24, 296 P.3d at 49. The goal of § 12-2604 is to “ensur[e] that experts have qualifications and experience comparable to the [medical professional] whose conduct is at issue.” Id. As the statute indicates, there must be symmetry as delineated in § 12-2604(A) between the pertinent qualifications and experience of the defendant health care provider and the expert who testifies to the standard of care regarding the care and treatment at issue. See Baker, 231 Ariz. 379, ¶ 12, 296 P.3d at 47. Here, Ho is a certified wound-care nurse with specialized education in wound care and ostomy, and worked in that specialty the year before Rasor’s injury. ¶ 12 NWMC argues that Ho is not qualified to testify as to the standard of care for ICU nurses under § 12-2604 because such nurses fall under their own specialty. The Rasors disagree, asserting that NWMC’s ICU nurses had no “additional education or certificate beyond their general RN licenses.” They acknowledge however, Ho’s contrary opinion that ICU nurses are, in fact, specialists. In any event, we need not decide the issue of specialization under § 12-2604(A)(1) because Ho does not meet the criteria of § 12-2604(A)(2) or (3). If the ICU nurses are considered specialists, Ho was not practicing as an ICU nurse for the year prior to Rasor’s injury for purposes of § 12-2604(A)(2). And if ICU nurses are instead viewed as generalists, Ho did not work as a generalist the year before Rasor’s injury for purposes of § 12-2604(A)(3), but rather as a wound-care specialist. Because Ho was neither an ICU nurse nor a practicing generalist in the year before Rasor’s injury, she is not qualified to testify as a standard of care expert for ICU nurses pursuant to § 12-2604(A). See Preston v. Amadei, 238 Ariz. 124, ¶¶ 13-14, 357 P.3d 159, 165 (App.2015) (internist with cardiology practice not qualified to testify to standard of care for internist without such specialty in treating cardiac episode); see also Woodard v. Custer, 476 Mich. 545, 719 N.W.2d 842, 860 (2006) (internal medicine physician with infectious disease practice not qualified to testify regarding standard of care of defendant physician who practiced “general internal medicine”). ¶ 13 The Rasors also assert that “the care at issue concerned the prevention of bed sores, which applied universally to all NW[MC] nurses in all departments; and all restricted in-patients____ [and f]or this reason, the specialty requirements set forth in A.R.S. § 12-2604 d[o] not apply.” NWMC responds that “it is in the judgment of the ICU nurse in determining how much or how frequently a critically ill patient can be moved and needs to be prioritized if the patient is unstable or repositioning could be detrimental to the patient.” And Ho acknowledged that what interventions may be taken depend on the condition of the patient. We therefore reject the Rasors’ claim that the hospital’s general repositioning policy was the applicable standard of care for the intensive care department. ¶ 14 The Rasors further contend that “Medicare views the deep tissue injury suffered by [Rasor] as something that should not have occurred with proper nursing eare[,] ... establishing] a basis for the jury to conclude that below standard nursing care proximately caused the condition.” In support of this proposition, the Rasors provide one record citation, to one of their own filings, which does not include any supporting citation; they provide no legal authority and no argument beyond that quoted above. We therefore deem the issue waived. See Ariz. R. Civ. P. 13(a)(7); Melissa W. v. Dep’t of Child Safety, 238 Ariz. 115, ¶ 9, 357 P.3d 150, 152-53 (2015) (failure to develop argument or cite to relevant authority waives argument on appeal). ¶ 15 A trial court may properly grant summary judgment on a claim of medical negligence when, as here, the plaintiff fails to produce the required expert testimony concerning the “degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.” § 12-563(1); see Seisinger, 220 Ariz. 85, ¶ 33, 203 P.3d at 492 (except when it is a matter of common knowledge, “the standard of care normally must be established by expert medical testimony” and failure to produce the required expert testimony mandates judgment for defendant). Thus, to the extent the trial court found the Rasors’ standard of care expert unqualified, it correctly granted NWMC’s motion for summary judgment. However, we conclude the court erred by failing to allow the Rasors to secure a new expert, as discussed next. Request to Secure New Expert ¶ 16 The Rasors contend that even if the trial court correctly found Ho unqualified to provide standard of care testimony, the court abused its discretion by denying their request for additional time to secure a new expert. We defer to a trial court’s rulings on discovery and related procedural matters absent an abuse of discretion. See Preston, 238 Ariz. 124, ¶ 15, 357 P.3d at 165. ¶ 17 When they filed their complaint in July 2013, the Rasors also filed a notice certifying that the action involved a breach of professional duty and “aeknowledg[ing] the establishment of standard of care and breach requires expert testimony.” The deadline to disclose expert opinions was June 27, 2014. In November 2013, the Rasors disclosed Nurse Ho’s preliminary affidavit, providing her expertise as a wound-care specialist and opinion that the NWMC intensive care staff had failed to comply with the applicable standard of care in preventing the wound by “offloading” Rasor, and in caring for the wound by “pressure prevention and treatment.” On June 27, they supplemented their disclosure statement as to Ho’s expected testimony at trial. Ho was deposed on October 17, 2014 and on October 28, the Rasors filed a motion seeking leave to introduce Ho’s testimony “concerning standard of care, causation and prognosis pursuant to evidence Rule 703 and A.R.S. § 12-2604.” In November and December 2014, and again in January 2015, the Rasors requested leave to “supplement with additional expert testimony for any areas of deficiency determined by the Court.” Simultaneous with its summary judgment ruling, the court, without explanation, denied the Rasors’ request for additional time to secure a new expert. ¶ 18 Recently, in Preston, a ease with similar procedural facts, this court concluded the trial court had erred by denying plaintiffs additional time to substitute another standard of care expert. 238 Ariz. 124, ¶¶ 2-7, 19, 357 P.3d at 163-64, 167. We observed that § 12-2603 sets out the requirements for preliminary disclosures of expert opinions in medical malpractice cases and provides “ ‘[u]pon any allegation of insufficiency of the affidavit, the court shall allow any party a reasonable time to cure any affidavit, if necessary.’ ” Id. ¶ 17, quoting § 12-2603(F) (alteration in Preston). We noted that although the plaintiffs in Preston had disclosed their expert’s affidavit “well within the discovery period,” the defendant “did not raise any direct challenge to the sufficiency of the affidavit, even upon conducting [plaintiffs’ expert’s] deposition, and instead filed a motion for summary judgment after the disclosure deadline had expired.” Id. ¶ 19. Likewise, in this ease, NWMC did not challenge the sufficiency of the affidavit but, nearly a year after the Rasors filed it and after the disclosure deadline had expired, deposed the expert and filed its motion for summary judgment. ¶ 19 As noted above, the trial court had granted the Rasors’ motion to admit Ho’s expert opinion, stating “how that operates within the context of wound care for a person in the ICU, that will come out at trial and the jury will evaluate whether or not her wound care expertise is fully responsive to the issues here.” The court additionally said, “I am telling you that I’m going to let you go with a wound care witness rather than an ICU nurse. You can take that to the bank____” Thus, the trial court strongly indicated Ho’s opinions would be admitted at trial and it would be left to the jury to assess the credibility and weight to give them. See Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, ¶ 24, 322 P.3d 168, 176 (App.2014) (noting well-established rule that jury determines credibility and weight afforded to reliable expert testimony). Accordingly, after subsequently granting NWMC’s motion for summary judgment, the trial court erred in denying the Rasors additional time to obtain qualifying expert testimony, and we therefore reverse its order so doing. Motion for Protective Order ¶ 20 The Rasors next contend the trial court abused its discretion by preventing them from conducting a Rule 30(b)(6), Ariz. R. Civ. P. deposition “to investigate the cause of ... Rasor’s deep tissue injury.” In September 2013, the Rasors served a notice of Rule 30(b)(6) deposition requesting that NWMC produce its representative most knowledgeable about, inter alia, the cause of Rasor’s pressure ulcer and, in October 2013, served an amended notice to the same effect. After corresponding with the Rasors regarding the categories listed in their notices, NWMC filed a motion for protective order. ¶ 21 In January 2014, the trial court heard argument by the parties and issued the, requested protective order, finding the “request for the deposition is premature” given the early stage of the case and lack of any scheduling order. The following April, the Rasors filed another Rule 30(b)(6) deposition notice seeking information about (1) the first observation of the ulcer, (2) steps taken by NWMC to prevent the development of ulcers, (3) steps taken by NWMC to prevent the worsening of Rasor’s ulcer, and (4) staff compliance with record-keeping policies. The court permitted the Rasors to question the representatives to the extent of “policies, procedures and training of the nurses and if the representatives were personally involved in any aspect of [Rasor’s] care, that aspect of her care.” In May, the Rasors filed yet another Rule 30(b)(6) notice listing seven categories of information, including “[t]he cause of [Rasor]’s decubitus ulcer.” The hospital objected to the notice, and the court granted a protective order stating “[t]he [n]otice is outside the areas that have been permitted in this deposition. So [the Rasors] need to provide a notice for a 30(b)(6) deposition that comports to the areas that I indicated were appropriate.” ¶ 22 “A trial court has broad discretion in ruling on discovery issues, and we will not disturb its ruling absent a clear abuse of discretion.” Tritschler v. Allstate Ins. Co., 213 Ariz. 505, ¶ 41, 144 P.3d 519, 532 (App.2006). An abuse of discretion occurs if the court commits legal error in reaching a dis cretionary conclusion, or if the record lacks substantial evidence to support its ruling. Id. ¶ 23 Rule 30(b)(6) provides for the deposition of an organization when “a party desiring discovery does not know what individual in the responding organization should be called.” Ariz. R. Civ. P. 30(b)(6) bar committee note to 1970 Amendment. When noticed, the named organization “designated] one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf’ and “[t]he persons so designated ... testify as to matters known or reasonably available to the organization.” Ariz. R. Civ. P. 30(b)(6). At the time of the hearing on the protective order, no scheduling order was in place and discovery was just commencing. The trial court stated: I’m going to find that the request for the deposition is premature, and let’s get this established so that we have timelines and schedules and there has been some appropriate setting of those limits____[A]t this stage ... it would not be an effective discovery tool because ... the defendants [must] be able to determine the necessary people to have available for you and to ensure that they can provide those people who ... will respond to ... the level of your inquiry. As to the grant of the protective order, we cannot say the trial court abused its broad discretion in discovery matters by deeming the Rasors’ request for a Rule 30(b)(6) deposition premature when discovery had not yet begun in the case. See Marquez v. Ortega, 231 Ariz. 437, ¶ 14, 296 P.3d 100, 104 (App.2013) (“We do not substitute our discretion for that of the trial court.”). ¶ 24 As for the Rasors’ noticed April 2014 Rule 30(b)(6) deposition, they do not present any argument on the matter nor do they provide a reference to any responsive motion by NWMC or an accurate record cite to any related ruling by the trial court. The issue is therefore waived. See State Farm Mut. Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (App.1990) (declining to consider matters insufficiently argued and without citation to authority or record). Further, the May 2014 notice exceeded the scope established by the court for the Rule 30(b)(6) deposition, and the Rasors do not appear to have raised the issue of the cause of the ulcer with the court at the hearing or elsewhere. We cannot say the trial court abused its discretion in granting NWMC’s motion for protective order relating to the Rasors’ May 2014 notice of deposition. Cross Appeal ¶ 25 In its cross appeal, NWMC contends the trial court abused its discretion in ordering it to produce patient records of all ICU patients who had developed pressure ulcers in the four years preceding Rasor’s admission. As part of their October 2013 Rule 30(b)(6) notice of deposition, the Rasors had requested that NWMC produce the representative most knowledgeable about “[o]ther incidents of patients developing decubitus ulcer conditions while hospitalized at [NWMC’s] facilities,” “[r]ecords identifying other incidents of the development of pressure sore ulcer conditions during hospitalization at [NWMC’s] facilities from 2001 through 2011[,]” and “[a]ny assessments, evaluations or reports discussing the incidence of pressure sore ulcer conditions in [NWMC’s] facilities and/or any discussion concerning reducing the incidence of the conditions.” ¶ 26 In November 2013, NWMC filed its motion for a protective order con tending the Rasors’ request for information about other patients who had developed pressure ulcers was “overly broad, unduly burdensome, irrelevant, not reasonably calculated to lead to the discovery of any admissible evidence, and would violate peer review/quality assurance processes—not to mention federal HIPAA[ ] rules and regulations.” In their response, the Rasors asserted “[t]h[e] discovery is calculated to lead to evidence of habit or routine,” citing Gasiorowski v. Hose, 182 Ariz. 376, 897 P.2d 678 (App.1994), and that it may lead to discovery of recognition by [NWMC] of certain policies, practices and prevention procedures affecting the assessment of standard of care. Practices and procedures designed for compliance with standard of care may depend on [NWMCJ’s responses to previous claims or incidents of the condition. Additionally, the positions advanced by [NWMC] in response to decubitus ulcer condition claims may lead to admissible evidence about claims advanced in this ease. After a hearing on the motion for protective order, the trial court implicitly denied the motion but narrowed the permitted discovery, ruling that “[the Rasors] are entitled to discovery of prior similar incidents of patients developing decubitus ulcers while in intensive care” and ordered NWMC to produce all such records “for the four years preceding [Rasor]’s admission to Northwest Medical Center on July 7, 2011.” It later denied NWMC’s motion for reconsideration. In its cross-appeal, the hospital argues the trial court’s order constituted an abuse of discretion because: 1) even with confidential information redacted, the order required disclosure of privileged information; 2) the information was not relevant to the subject matter of the Rasors’ lawsuit; and 3) the burden in responding to the order “was extreme.” We address these claims in turn. ¶27 Pursuant to Rule 26(b)(1)(A), Ariz. R. Civ. P., unless otherwise limited, “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” A trial court has broad discretion over discovery matters, and we will not disturb that discretion absent a showing of abuse. Blazek v. Superior Court, 177 Ariz. 535, 537, 869 P.2d 509, 511 (App.1994). Such abuse occurs when the court misapplies the law or predicates its decision upon irrational bases. Id. The existence and scope of an evidentiary privilege is a question of law we review de novo. See Adv. Cardiac Specialists, Chartered v. Tri-City Cardiology Consultants, P.C., 222 Ariz. 383, ¶ 6, 214 P.3d 1024 (App.2009). ¶ 28 NWMC first argues the trial court abused its discretion because producing the patient records would require the disclosure of privileged information. Medical records are confidential and receive statutory protection from discovery. See A.R.S. §§ 12-2235, 12-2294.01. Notwithstanding these protections, redacted non-party medical records may still be subject to discovery if the records are relevant and certain precautions are taken to protect patient identities. See Ziegler v. Superior Court, 134 Ariz. 390, 394-95, 656 P.2d 1251, 1255-56 (App.1982). ¶ 29 The Rasors sought evidence of past occurrences of decubitus ulcer conditions, in part, to discover whether there had been “other incidents indicating] a failure of compliance by staff with known repositioning requirements” or “evidence of knowledge on the part of [NWMC] of the need to implement changes.” If such incidents had occurred, we cannot say they would be irrelevant to the Rasors’ claims, as more fully discussed below. Cf. Ariz. R. Evid. 406 (evidence of habit of person or routine practice of organization relevant to prove conduct of that person or organization was in conformity with habit or routine practice on a particular’ occasion); Gasiorowski, 182 Ariz. at 379, 897 P.2d at 681 (other similar incidents relevant to show defendant physician had habit or routine practice of threading epidural catheters to excessive depth); Ziegler, 134 Ariz. at 394, 656 P.2d at 1255 (disclosure of non-party medical records relevant to plaintiffs negligent-supervision claim against hospital to show it had notice of other incidents of physician performing unnecessary procedure). And the trial court ensured sufficient privacy safeguards by ordering NWMC to “redact any confidential patient information from the records produced.” See id. at 394-95, 656 P.2d at 1255-56. Accordingly, its order did not violate Arizona’s statutory physician-patient privilege. ¶ 30 NWMC contends, however, that its non-party patient records are further privileged under the federal Patient Safety and Quality Improvement Act (hereafter patient safety act), 42 U.S.C. § 299b-21-299b-26. That act protects documents, communications, and other information that qualifies as “patient safety work product,” 42 U.S.C. § 299b-22, including “any data, reports, records, memoranda, analyses ... or ... statements ... assembled or developed by a provider for reporting to a patient safety organization and are reported to a patient safety organization[,] or ... developed by a patient safety organization for the conduct of patient safety activities.” 42 U.S.C. § 299b-21(7)(A). Such information is not subject to discovery in legal proceedings. See § 299b-22(a)(2). A “patient safety organization” (PSO) is one certified by the Secretary of the Department of Health and Human Services whose “mission and primary activity ... [is] to conduct activities ... to improve patient safety and the quality of health care delivery.” 42 U.S.C. §§ 299-21(4), 299-24(a), (b)(1)(A). ¶ 31 NWMC acknowledges, however, that “medical record[s] ... or any other original patient or provider record[s]” are expressly excluded from patient safety work product. § 299b-21(7)(B). It nonetheless contends the privilege applies because “identify[ing] specific patients whose records were to be produced” would require the work product “to be accessed.” We find this argument unpersuasive. ¶ 32 The act expressly notes that patient safety work product “does not include information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.” § 299b-21(7)(B)(ii). It further elaborates that “[s]ueh separate information or a copy thereof reported to a [PSO] shall not by reason of its reporting be considered patient safety work product.” Id. Clearly, the non-party medical records at issue here were not specifically created for safety or quality control purposes; instead, they were created to diagnose, treat, and/or evaluate a medical condition. Thus, even if identifying the “specific patients whose records were to be produced” requires accessing patient safety work product through the PSO, doing so would not violate the act because the information sought is exempt from protection. Id.; see also § 299b-22(c)(2)(B) (exempting “nonidentifiable” patient safety work product from confidentiality requirements). And even if the medical records could be regarded as safety work product, the hospital has not met its burden of establishing the medical records were reported to its PSO as required by the Act. See § 299b-21(7)(A) (for record “assembled or developed” by a provider to a PSO to qualify as patient safety work product, it must actually be reported to the PSO). Although NWMC provided the name of its PSO and claims it duly submitted the patient records at issue, it offered no proof to support the latter assertion. We conclude the patient safety act is inapplicable. ¶ 33 NWMC next argues the medical records were not relevant and the trial court’s reliance on Purcell v. Zimbelman, 18 Ariz.App. 75, 500 P.2d 335 (1972) was “misplaced” because “knowledge of a danger was not an issue in the case.” In its ruling ordering NWMC to produce the medical records, the trial court quoted Purcell, stating: In a negligence ease, where knowledge of a danger is an issue, “evidence of the occurrence of other accidents or injuries from the doing of a particular act or the employment of a particular method on occasions prior to the one in question is admissible to show that the person charged knew or should have known of the danger therein, provided it is shown that the conditions of the previous occurrences were the same or substantially similar to those of the one in question.” 18 Ariz.App. at 83, 500 P.2d at 343. NWMC apparently interprets the “danger” in the court’s ruling to mean the potential danger that a patient may develop pressure ulcers, as well as the harm they can cause. And it correctly notes that the hospital has never claimed to have been unaware of the potential danger of pressure ulcers and that the Rasors acknowledge NWMC “recognized th[e] risk [of pressure ulcers]” and had procedures in place to prevent them. ¶34 To the extent the trial court’s ruling on NWMC’s motion for a protective order was predicated on the mistaken assumption that “knowledge of a danger” was in dispute, it erred in allowing discovery of prior similar incidents on that basis. The Rasors, however, as previously noted, argued that the requested discovery would be relevant to proving NWMC’s staff had a habit or routine of not following the hospital’s repositioning procedures. See Ariz. R. Evid. 406. We will affirm a trial court’s decision if legally correct for any reason. See Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9, 130 P.3d 538, 540 (App.2006). ¶35 Evidence of a person’s habit or the routine practice of an organization may be admitted to prove that the person or organization on a particular occasion “acted in accordance” with the habit or routine practice. Ariz. R. Evid. 406. Habit is a regular response to a repeated specific situation. See Gasiorowski 182 Ariz. at 379, 897 P.2d at 681. In Gasiorowski, this court held that the trial court erred in excluding evidence of other similar incidents to prove the defendant physician’s alleged habit or “general pattern” of failing to observe the standard of care, noting that “[e]vidence is relevant and probative if it has any tendency to make any fact of consequence more or less probable.” Id. at 380, 897 P.2d at 682. We reasoned that “Q]ust as Rule 406 supported [defendant’s] introduction of routine practice evidence to attempt to establish his habitual compliance with the standard of care, it also supported plaintiffs attempt to establish through the observations of delivery room nurses that [defendant] had a routine practice of threading epidural catheters to excessive depth.” Id. ¶ 36 We emphasize that the issue here, unlike in Gasiorowski is not relevance for admissibility at trial, but whether the standard for pretrial discovery of the medical records is met. See Catrone v. Miles, 215 Ariz. 446, ¶25, 160 P.3d 1204, 1212 (App.2007). Thus, we assess the relevancy requirement more broadly than we would when evaluating admissibility. Brown v. Superior Court, 137 Ariz. 327, 332, 670 P.2d 725, 730 (1983) (relevancy requirement at discovery stage “more loosely construed than that required at trial” and need only be “reasonably calculated to lead to the discovery of admissible evidence”). In so doing, we conclude the medical records the Rasors sought were reasonably calculated to lead to the discovery of admissible evidence that the ICU nurses who had treated Rasor had a habit or routine practice of failing to follow ICU repositioning requirements. See Ariz. R. Civ. P. 26(b)(1); Catrone, 215 Ariz. 446, ¶ 25, 160 P.3d at 1213-14. Accordingly, we will not disturb the trial court’s discovery ruling on this basis. ¶37 Finally, NWMC contends the trial court’s order was “overly broad and unduly burdensome” because it would require the hospital to review four years of “voluminous” patient records “to identify patients in the ICU.” NWMC presented this argument below, and the court afforded it the opportunity to submit an affidavit providing specific reasons as to why it “[w]ouldn’t be able to generate that [information].” NWMC failed to supply such an affidavit. In light of this, it has not demonstrated the request was unduly burdensome. See Ariz. R. Civ. P. 26(b)(1)(B) (party seeking non-disclosure because of “undue burden or expense” must first show information not reasonably accessible). Disposition ¶ 38 For the foregoing reasons, the trial court’s January 2014 ruling on the Rasors’ Rule 30(b)(6) deposition and its May 2014 lading permitting the Rasors discovery regarding other NWMC ICU patients are affirmed, but its denial of the Rasors’ request for additional time to secure a new expert witness is reversed, its judgment in favor of NWMC is vacated, and the case is remanded for further proceedings consistent with this decision. . Cardiopulmonary resuscitation. . Farrand testified at his deposition that he had "not take[n] another patient” “for [his] entire shift” because "as long as a patient is unstable, [he would] not take a second one.” He noted, "[i]f a patient had a difficult surgery with unexpected complications, we generally will not pair them until we get rid of some of the extra equipment we were not expecting.” .A reference provided by the Rasors below describes a pressure ulcer as a "localized injury to the skin and/or underlying tissue usually over a bony prominence, as a result of pressure, or pressure in combination with shear.” European Pressure Ulcer Advisory Panel & National Pressure Ulcer Advisory Panel, Prevention of Pressure Ulcers: Quick Reference Guide, at 7 (2009). . According to medical literature provided by the Rasors, to "off-load[]” is to minimize pressure. Institute for Clinical Systems Improvement, Pressure Ulcer Prevention and Treatment Protocol, at 20 (3d ed. Jan. 2012). . The Rasors contend Mamer supports their position that critical-care nursing is not a specialty, asserting the court "declined to distinguish the classifications of RN, LPN and CNA under § 12-2604 ... [and] primarily relied on the Arizona Administrative Code [ (AAC) ].” In Mamer, however, we relied on the AAC chiefly to determine that "the RN is the most qualified of the three [nursing licensures] in terms of education and experience required for certification,” in support of our holding that "[i]t would be absurd to conclude that an RN is not qualified to provide expert opinion on the standard of care for professions that require more limited skills than are required of a registered nurse on the ground the RN is overqualified.” 231 Ariz. 67, ¶¶ 39-41, 290 P.3d at 471-72. Specialization among RNs, however, was not addressed. . We note that our supreme court has held that the term “specialty” as used in § 12-2604(A)(2) includes practice areas certified as specialties or subspecialties by medical boards or other certifying bodies, as well as those that are eligible for certification. Baker, 231 Ariz. 379, ¶¶21, 22, 24, 296 P.3d at 49 (determining lower court too narrowly read " 'specialty’ as embracing only the twenty-four [American Board of Medical Specialties] member boards, thereby excluding a broad range of practice areas certified by these boards as subspecialties or by other certifying bodies”). The Rasors provide no support for their contention that ICU nursing does not qualify as a specialty under § 12-2604 other than asserting NWMC’s ICU nurses had no "additional education or certificate,” but they do not allege that ICU nurses are ineligible for certification. We take judicial notice that ICU nurses can indeed obtain critical care certification through the American Association of Critical-Care Nurses. See http://www.aacn.org/. . Since July 2004, Ho has worked at a long-term, acute-care facility performing admission assessments, re-assessments, and care planning, and the Rasors have not denied her status as a specialist. . Because NWMC’s motion for summary judgment was correctly granted, it is unnecessary to address whether Ho was qualified as an expert under Rule 702, Ariz. R. Evid., and whether she was competent to testify to medical causation or prognosis. And, for the same reason, we need not consider the Rasors’ argument that causation is "readily apparent to a jury, even without expert testimony.” See Ryan, 228 Ariz. 42, ¶ 23, 262 P.3d at 869-70 (medical malpractice plaintiff must prove negligence by showing health care provider fell below standard of care and such deviation from standard of care proximately caused claimed injury). . At a hearing on the motion, the trial court noted it had yet to consider the summary judgment motions that had been filed, but stated: I am going to grant the motion to introduce [Ho’s] expert opinion ... regarding wound care. And then as it’s applied to how that operates within the context of wound care for a person in the ICU, that will come out at trial and the jury will evaluate whether or not her wound care expertise is fully responsive to the issues here.... [W]ound care is a critical issue of this case. Whether or not it’s dispositive of the care that ... Rasor received will be a question for the jury to determine. .The Rasors included a one sentence request to this effect at the end of their November 2014 reply to NWMC’s opposition to introduce Ho’s testimony and at the end of their opposition to NWMC’s motion for summary judgment. They repeated the request at oral argument on the two summary judgment motions. . In its answering brief, NWMC points out that at an April 2014 scheduling conference, its counsel requested the Rasors specify the expert or experts they intended to call to establish standard of care and causation. NWMC did not, however, challenge Ho's qualifications and foundation to testify as an expert witness until its response to the Rasors' motion to introduce Ho’s expert testimony in November 2014. NWMC does not address this court's ruling in Preston although that decision was filed before NWMC submitted its answering brief and involved the same law firm as represents NWMC in this case. . In its answering brief, NWMC points out: [a]s of the date of the filing of the motion [for protective order], the Rasors had not submitted a preliminary expert opinion affidavit required by A.R.S. § 12-2603 demonstrating that the case ha[d] any merit, had not requested a Rule 16(c)[, Ariz. R. Civ. P.,] pretrial conference, no discovery or pretrial deadlines had been established, and fact witness depositions ... had not been requested. . The Rasors’ argument focuses on their inability to question NWMC regarding the cause of the ulcer, a topic not listed in the April 2014 notice of deposition. Although their May 2014 notice of deposition included as a topic, ”[t]he cause of [Rasor]’s decubitus ulcer,” the court had previously established the boundaries of the deposition. .In their briefs, the Rasors provide no record citation to the May 2014 notice or any other related records. . Health Insurance Portability and Accountability Act. NWMC has not meaningfully re-urged this specific argument on appeal.

OPINION GEMMILL, Judge: ¶ 1 Plaintiff Ethan Newman brought this action for injuries he sustained while in the care of defendants Select Specialty Hospital-Arizona, Inc., dba Select Specialty Hospital Arizona (Scottsdale Campus) and Select Medical Corporation (collectively, “the Hospital”). Newman appeals the superior court’s ruling granting judgment as a matter of law for the Hospital on the issue of punitive damages and its award of costs and attorney fees. The Hospital also appeals the award of attorney fees. Because the issue of punitive damages should have been presented to the jury, we reverse the superior court’s ruling and remand for further proceedings regarding punitive damages. We affirm the court’s rulings on costs and attorney fees. BACKGROUND ¶ 2 We state the facts in the light most favorable to Newman, the prevailing party at trial. Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 13, 961 P.2d 449 (1998). In December 2008, a motor vehicle accident rendered eighteen-year-old Newman a quadriplegic. After seventeen days of treatment at a local hospital, Newman was transferred to the Hospital for ongoing care. Newman had a wound on his sacrum when he was admitted to the Hospital. During his stay at the Hospital, the wound progressed to a Stage III pressure sore. In January 2009, Newman was transferred from the Hospital, but despite proper treatment at another facility, the wound did not heal for approximately six months. The wound area remains painful and re-opens easily, requiring Newman to return to bed from his wheelchair every 4-6 hours to relieve pressure. ¶ 3 In December 2010, Newman filed this action alleging the Hospital’s care violated Arizona’s Adult Protective Services Act (“APSA”) and Arizona Revised Statutes (“A.R.S.”) sections 46-451 through -459, and seeking compensatory and punitive damages. After the close of Newman’s evidence at trial, the court granted the Hospital’s motion for a directed verdict on punitive damages, ruling Newman had not offered sufficient evidence to clearly and convincingly establish that the Hospital acted with an evil mind. The jury found in favor of Newman and awarded him $250,000 in compensatory damages. The court denied Newman’s motion for a new trial on the punitive damages issue. ¶4 Although, at the time of the verdict, AR.S. § 46-455(H)(4) did not provide for an award of attorney fees to a prevailing claimant, Newman applied for an award of attorney fees under a prior version of the statute, arguing his right to fees accrued when his claim accrued. The Hospital opposed the request, arguing that any right to attorney fees did not accrue until the jury rendered its verdict, and the statute in effect at that time did not allow the court to award attorney fees to a successful claimant. The court ruled that the version of the statute in effect when Newman’s claim accrued in January 2009 applied, but found the $388,400 in attorney fees he requested was not reasonable. The court ultimately awarded Newman $112,500 in attorney fees. ¶ 5 Newman also asked the court to award him “costs of suit,” totaling $48,544.06, pursuant to A.R.S. § 46-455(H)(4). The Hospital opposed many of the claimed costs on the ground that they were not “taxable costs” under A.R.S. § 12-332. Newman maintained that § 46-455(H)(4) allows the court to award not just the “taxable costs” available under § 12-332, but all reasonable costs that Newman incurred to successfully obtain a verdict. The court rejected Newman’s argument and awarded him only the costs he incurred that would be recoverable under § 12-332. ¶ 6 The Hospital and Newman both timely appealed the judgment. Newman argues the superior court erred by: (1) granting the Hospital’s motion for judgment as a matter of law on his claim for punitive damages; (2) finding that he did not establish a prima facie case that the amount of his requested attorney fees was reasonable; and (3) limiting his recovery of costs under § 46-455(H)(4) to the taxable costs recoverable under § 12-332. The Hospital contends the superior court erred by awarding attorney fees to Newman because, at the time of the verdict, § 46-455(H)(4) did not allow a claimant to recover attorney fees. ANALYSIS I. Jurisdictional Challenge to Hospital’s Appeal ¶7 We initially address Newman’s claim that this court does not have jurisdiction to hear the Hospital’s appeal. Newman contends the Hospital’s notice of appeal was premature and, therefore, a nullity. See Craig v. Craig, 227 Ariz. 105, 107, ¶ 13, 253 P.3d 624 (2011). Before trial, the superior court granted the Hospital’s motion to dismiss all claims against Sharon Anthony, the Hospital’s Chief Executive Officer, in an unsigned minute entry. Thereafter, on September 10, 2013, the court entered a judgment on the jury verdict and disposed of Newman’s applications for attorney fees and costs. Both parties appealed the judgment. The superior court later signed Newman’s proposed form of order dismissing all claims against Anthony, and Newman filed an amended notice of appeal. Because Anthony had not been formally dismissed and the September 10 judgment did not contain an express determination pursuant to Arizona Rule of Civil Procedure 54(b), Newman argues this court lacks jurisdiction over the Hospital’s appeal. Newman asserts the Hospital was required, and failed, to file an amended notice of appeal once the court signed the Anthony order. ¶ 8 Although we agree that the Hospital’s notice of appeal was premature, we reject Newman’s argument because the Barassi exception applies to these facts. See Barassi v. Matison, 130 Ariz. 418, 421-22, 636 P.2d 1200 (1981). Under Barassi, a premature notice of appeal is nevertheless effective if it is filed after the superior court has made a final decision, the decision is not likely to change, and the only tasks remaining are ministerial. Craig, 227 Ariz. at 107, ¶ 13, 253 P.3d 624; Baker v. Bradley, 231 Ariz. 475, 481, ¶ 19, 296 P.3d 1011 (App.2013). When the Hospital filed its notice of appeal, all issues remaining in the ease had been adjudicated. The signed order formally dismissed Anthony “as set forth in the Court’s unsigned minute entry dated August 31, 2012 and filed on September 4, 2012,” and did not purport to change or modify that minute entry. Because the order was fully consistent with the court’s previous ruling, its entry was essentially a ministerial act. See Baker, 231 Ariz. at 482, ¶ 26, 296 P.3d 1011 (“[T]he June 10 judgment is consistent with the April 22 minute entry, and entry of the judgment appears to have been a ministerial act.”). Finally, Newman is not prejudiced by either the Hospital’s premature appeal or our exercise of appellate jurisdiction. Accordingly, the Barassi exception applies, and this court has jurisdiction over the Hospital’s appeal (as well as Newman’s appeal) under AR.S. § 12-2101(A)(1). II. Judgment as a Matter of Law Regarding Punitive Damages ¶ 9 Newman argues that because he offered evidence from which a reasonable jury could conclude that the Hospital consciously disregarded a substantial risk of harm, the superior court erred by granting the Hospital’s motion for a directed verdict on the issue of punitive damages. We review de novo the court’s grant of judgment as a matter of law. Nardelli v. Metro. Grp. Prop. & Cas. Ins. Co., 230 Ariz. 592, 604-605, ¶ 62, 277 P.3d 789 (App.2012); Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, 486, ¶37, 212 P.3d 810 (App.2009). ¶ 10 To support an award of punitive damages, the plaintiff need not present direct evidence; punitive damages may be awarded based on circumstantial evidence and the reasonable inferences drawn therefrom. Quintero v. Rodgers, 221 Ariz. 536, 541, ¶¶ 17-18, 212 P.3d 874 (App.2009) (a jury may “consider a punitive damages award if sufficient circumstantial evidence exists” (internal quotation omitted)). When considering whether the issue of punitive damages was properly withdrawn from the jury, we must construe “the evidence and all reasonable inferences that may be drawn from the evidence” in a light most favorable to party seeking such damages. See Thompson v. Better-Bilt Aluminum Prods. Co., Inc., 171 Ariz. 550, 558, 832 P.2d 203 (1992). ¶ 11 APSA authorizes a court or jury to award punitive damages under generally applicable common law principles. A.R.S. § 46-455(H)(4). Under Arizona common law, more than the “mere commission of a tort” is required to warrant recovery of punitive damages. Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565 (1986) (quoting Keeton et al., Prosser and Keeton on Torts § 2, at 9-10 (5th ed.1984)). A plaintiff must also establish that the defendant’s wrongful conduct was coupled with an “evil mind.” Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 332, 723 P.2d 675 (1986); see also Rawlings, 151 Ariz. at 162, 726 P.2d 565. ¶ 12 As applicable here, a defendant acts with an evil mind when it either intends to injure the plaintiff or “consciously pursue[s] a course of conduct knowing that it create[s] a substantial risk of significant harm to others.” Rawlings, 151 Ariz. at 162, 726 P.2d 565. When the wrongdoer is conscious of the harm posed by its tortious conduct, but continues to “act in the same manner in deliberate contravention to the rights of the victim,” punitive damages are appropriate in order to both punish the wrongdoer and deter others from acting in the same manner. Linthicum, 150 Ariz. at 330, 723 P.2d 675. ¶ 13 Newman contends the Hospital’s nurses and employees had been ordered to reposition Newman, clean his wound, and administer medication, and they understood the importance of these precautions and the risk of improper care of pressure sores, and yet they failed to follow these orders. Accordingly, Newman asserts the evidence was sufficient to present a jury issue regarding whether the Hospital acted with the requisite evil mind. The Hospital argues that although such omissions certainly may have formed the basis for the jury’s finding that the Hospital was liable for abuse of a vulnerable adult, they do not, by themselves, rise to the level of conduct warranting punitive damages. ¶ 14 Newman presented evidence that the Hospital’s nurses were aware of Newman’s pressure sore and of the required courses of treatment for that wound. The Hospital’s policies and procedures manual required that Newman be assessed, repositioned, and cleaned several times each day. Newman’s physician also prescribed a topical medication to be administered to Newman’s pressure sore twice each day. Moreover, Hospital staff testified that they were aware of the required treatment for Newman’s sore and were aware that failure to uphold the treatment standards risked severely exacerbating Newman’s condition. ¶ 15 The circumstantial evidence presented at trial was sufficient to support inferences that the Hospital failed to treat Newman and, in so doing, disregarded a known risk of substantial harm. For twelve days, Newman’s chart contains no records that the Hospital staff performed the required assessments of the wound. Similarly, for eight days, there are no records indicating the Hospital applied the topical medication prescribed to treat Newman’s existing wound. A member of the nursing staff testified that such gaps in charting should have prompted further investigation into Newman’s treatment in order to determine whether he was receiving adequate care. Eventually, the harm posed by a failure to timely assess and treat the wound actually occurred: Newman’s pressure sore became much worse and continues to require frequent treatment. ¶ 16 On the facts presented at trial, a reasonable jury could find, by clear and convincing evidence, that the hospital consciously disregarded a known risk of substantial harm in direct violation of Newman’s rights. See Linthicum, 150 Ariz. at 330, 723 P.2d 675. Accordingly, the jury should have been allowed to determine whether the Hospital acted with an “evil mind.” The superior court erred by granting judgment as a matter of law on this issue, and we remand for a new trial to determine whether the evidence supports an award of punitive damages. III. Attorney Fees ¶ 17 Both Newman and the Hospital challenge the superior court’s award of attorney fees. The Hospital contends the court erred by l’uling Newman was entitled to an award of fees pursuant to a statute in effect at the time Newman’s claim accrued. Newman argues the court erred by not awarding him the full amount of his claimed attorney fees. We review the court’s award for an abuse of discretion but examine issues of law de novo. Geller v. Lesk, 230 Ariz. 624, 627, ¶ 8, 285 P.3d 972 (App.2012), as amended (Sept. 26, 2012). A. Attorney Fees Under A.R.S. § 46-455(H)(4) ¶ 18 At the time of Newman’s stay at the Hospital, APSA provided that after a determination of liability, the superior court could order the payment of reasonable attorney fees not exceeding “two times the total amount of compensatory damages that are awarded in the action,” plus additional attorney fees in its discretion. AR.S. § 46-455(H)(4) (2005) (“the 2005 Version”). When Newman filed this action, however, the statute had been amended to allow the court to order the payment of reasonable attorney fees that did not exceed “the total amount of compensatory damages that are awarded in the action,” plus additional attorney fees in the court’s discretion. A.R.S. § 46-455(H)(4) (2010) (“the 2010 Version”). At the time of the verdict, the statute had once again been amended and the provisions allowing an award of attorney fees were removed entirely. A.R.S. § 46-455(H)(4) (2012) (“the 2012 Version”). ¶ 19 The superior court ruled Newman was entitled to attorney fees under the 2005 Version because it was in place at the time of the events that gave rise to his statutory claim. On appeal, the Hospital argues that because the 2012 Version took effect before Newman’s claim for attorney fees had vested, the superior court erred when it did not apply that version. Newman argues that were the court to follow the 2012 Version, it would constitute a retroactive application of the statute in violation of his vested substantive rights. ¶ 20 The right to an award of attorney fees is a substantive right. See Bouldin v. Turek, 125 Ariz. 77, 78, 607 P.2d 954 (1979) (declaring that a “statute providing for an award of attorney fees is similar in effect to one changing the measure of damages ... [and] such a provision is substantive and not procedural.”). Under Arizona law, a statute may not apply retroactively to impair a substantive right unless it contains an express statement of retroactive application. A.R.S. § 1-244; see also Allen v. Fisher, 118 Ariz. 95, 96, 574 P.2d 1314 (App.1977) (“It is well established that a statute will have prospective operation only unless it appears that it was intended to have retroactive effect.”); see also Aranda v. Indus. Comm’n, 198 Ariz. 467, 470, ¶ 11, 11 P.3d 1006 (2000) (“Enactments that are procedural only, and do not alter or affect earlier established substantive rights may be applied retroactively.”). Once a substantive right vests, it may not be impaired. Hall v. A.N.R. Freight System, Inc., 149 Ariz. 130, 139-40, 717 P.2d 434 (1986). ¶21 A right vests “when it is actually assertable as a legal cause of action.” Hall, 149 Ariz. at 140, 717 P.2d 434. Applying the Supreme Court’s reasoning in Hall, this court in Brunet v. Murphy, 212 Ariz. 534, 135 P.3d 714 (App.2006), held that a claimant’s rights under APSA vest at the time an APSA claim is filed. Brunet explained that “the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest” when the holder of that right “chooses to assert it” in the form of a claim or lawsuit. 212 Ariz. at 537-38, ¶ 13, 135 P.3d 714 (quoting Hall, 149 Ariz. at 140, 717 P.2d 434); see also Steinfeld v. Nielsen, 15 Ariz. 424, 465, 139 P. 879 (1913). Therefore, the date on which an APSA claimant “file[s] an action in superior court” under AR.S. § 46-455 determines the time at which a right vests under that APSA claim. Brunet, 212 Ariz. at 538, ¶ 15, 135 P.3d 714. ¶22 The Hospital contends that because Newman was not entitled to fees until the jury returned a verdict in his favor, his right thereto did not vest until he filed an application for attorney fees. The Hospital relies on three cases, Chaffin v. Commissioner of Arizona Department of Real Estate, 164 Ariz. 474, 793 P.2d 1141 (App.1990), Wilson v. Arizona Registrar of Contractors, 161 Ariz. 617, 780 P.2d 450 (App.1989), and Harrison v. Ellis, 146 Ariz. 222, 704 P.2d 1367 (App.1985), in which this court ruled that the plaintiffs’ claims for attorney fees did not vest until a judgment was entered and an application for an award was filed. Those three cases, however, dealt with a plaintiff’s right to recover attorney fees from a secondary recovery fund. Harrison, 146 Ariz. at 225, 704 P.2d 1367; Wilson, 161 Ariz. at 619, 780 P.2d 450; Chaffin, 164 Ariz. at 479, 793 P.2d 1141. Because entry of a judgment was a prerequisite for obtaining relief from the fund in each case, the court found that the right to attorney fees vested when such a judgment was entered. Id. ¶ 23 In contrast, whether attorney fees were available as part of the measure of damages for this APSA claim is determined by statute, which, at the relevant time, granted a successful plaintiff a right to damages and attorney fees. Wilson, Harrison, and Chaffin are therefore inapplicable because the right to attorney fees under APSA exists before entry of judgment on the APSA claim, and, accordingly, vests when a litigant files an APSA claim. Brunet, 212 Ariz. at 538, ¶¶ 15-16, 135 P.3d 714 (App.2006) (explaining that a litigant’s statutory rights under APSA vested when a claim was filed); see also Abrams v. Horizon Corporation, 137 Ariz. 73, 80, 669 P.2d 51 (1983). ¶ 24 We therefore reject the Hospital’s argument that Newman’s right to attorney fees did not vest until after the jury returned the verdict. We hold instead that Newman’s right to attorney fees vested when he filed the lawsuit and requested an award of attorney fees. Therefore, the 2010 Version controls. Because the 2012 Version of AR.S. § 46-455 does not state that it is to be applied retroactively, his right to recover attorney fees was not impaired by the subsequent amendment of the statute. Furthermore, as discussed below, the court permissibly limited Newman’s attorney fees to $112,500, an amount within the lower limit imposed by the 2010 Version. Athough it erred in applying the 2005 Version of the statute, the superior court had the authority to award attorney fees under the applicable 2010 Version. B. Amount of Attorney Fees ¶ 25 The superior court awarded Newman $112,500 in attorney fees, the amount owed to his attorneys under their contingency fee agreement. Newman, however, sought fees based on the actual time counsel spent litigating his claim. Newman argues the superior court abused its discretion by finding he had not made a showing of reasonableness for his request of $388,400 in attorney fees. ¶26 “When dealing with a contingency agreement, the prevailing way to show reasonableness is through contemporaneous logs and not an offhand approximation of hours worked.” Geller, 230 Ariz. at 629, ¶ 14, 285 P.3d 972. Nonetheless, contemporaneous time logs are not required in all circumstances and the court may award attorney fees based on “partially reconstructed” time records so long as the fees requested are reasonably supported. See Assyia v. State Farm Mut. Auto. Ins. Co., 229 Ariz. 216, 222, ¶¶ 22-24, 273 P.3d 668 (App.2012). ¶ 27 Here, the court determined that Newman’s counsel did not consistently complete contemporaneous descriptions of their work and recreated some time entries based upon their own recollections and references to various sources. It ruled that “[i]n light of this inconsistent procedure, the Court cannot find that the submitted time records, as a whole, are reasonably contemporaneous or trustworthy.” The court found that Newman’s retainer agreement with his counsel, which provided for attorney fees of 45 percent of all sums recovered, was a reasonable determination of attorney fees for the case and awarded him $112,500 (45 percent of $250,000). ¶ 28 Newman contends he met his obligation to show that the requested fees were reasonable and derived from contemporaneous time logs, citing his itemized fee application and the supporting affidavits of his counsel. However, counsel’s responses to the court’s questioning show the time records were not kept contemporaneously and were, in many eases, estimated. Further, counsel could not explain how she knew the entries were correct nor describe the time necessary to perform a particular task, undermining her claim that her familiarity with APSA eases allowed her to accurately reconstruct her records several years after the tasks were reportedly performed. ¶ 29 Newman argues that the court erred because the Hospital did not object to any particular time approximations, and the court did not make any effort to determine which entries were contemporaneous and which were later approximated. It was Newman, however, who bore the burden to establish a reasonable basis for a fee award. Nolan v. Starlight Pines Homeowners Ass’n, 216 Ariz. 482, 490-91, ¶¶ 37-38, 167 P.3d 1277 (App.2007) (application for fees must comply with requirements of Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 188, 673 P.2d 927 (App.1983), before burden shifts to party opposing fees to show amount requested is unreasonable). The award and amount of attorney fees is a matter “peculiarly within the discretion of [the] trial court.” Roberts v. City of Phoenix, 225 Ariz. 112, 124, ¶ 47, 235 P.3d 265 (App.2010) (quoting Harris v. Reserve Life Ins. Co., 158 Ariz. 380, 384, 762 P.2d 1334 (App.1988)). We find no abuse of discretion here. Once the court determined that Newman’s counsel did not consistently complete contemporaneous descriptions of their work and had recreated some time entries, it was within the court’s discretion to reject his entire application. ¶30 Finally, Newman contends the court erred by rejecting the hourly billing rates claimed by his counsel in the fee application. In a contingency fee context, the amount of the fee sought by a litigant must be reasonable. See Ariz. R. Sup.Ct. 42, ER 1.5, cmt. 3; In re Swartz, 141 Ariz. 266, 272, 686 P.2d 1236 (1984). ¶ 31 In the application, Newman’s counsel claimed $300 per hour for associates and $400 per hour for the partner assigned to the case. Newman argues he supported these rates with affidavits in which two local attorneys with experience in personal injury eases averred such rates were reasonable. The court, however, was not persuaded by what it termed “generic” affidavits and ruled that neither the complexity of the case nor the experience of the particular attorneys supported the claimed hourly rates. Furthermore, the attorneys themselves opined that $250-275 per hour was reasonable for associates. On this record, Newman has not shown the court’s assessment was an abuse of discretion. ¶ 32 We find no abuse of discretion, and affirm the superior court’s award of $112,500 in attorney fees. IV. Costs Available Under A.R.S. § 12-332 ¶ 33 At all times relevant to this suit, A.R.S. § 46-455(H)(4) authorized the superi- or court to order payment of “costs of suit” to any person injured by the conduct APSA prohibits. In considering Newman’s request for an award of costs, the court referred to In re Nelson, 207 Ariz. 318, 86 P.3d 374 (2004). In that case, the Arizona Supreme Court noted “[t]he costs that may be imposed in superior court for civil actions are limited to taxable costs and jury fees.” Nelson, 207 Ariz. at 323, ¶ 20, 86 P.3d 374. The superior court here determined § 46-455(H)(4)’s provision authorizing “costs of suit” included only those costs available under § 12-332. Accordingly, it awarded Newman $16,620 of the $48,544 in costs he sought. ¶ 34 Newman contends § 46-455(H)(4) allows the court to award all charges a plaintiff incurred in maintaining APSA litigation. He argues the superior court erred by limiting its award of costs to those expenses that qualify as “taxable costs” under § 12-332. This is an issue of statutory interpretation that we review de novo. Roddy v. Cnty. of Maricopa, 184 Ariz. 625, 626, 911 P.2d 631 (App.1996). ¶ 35 Our goal when interpreting a statute is to give effect to the intent of the legislature by applying the statutory language the legislature used. Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, 325, ¶ 8, 266 P.3d 349 (2011). 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. Id. ¶ 36 Section 46-455(H)(4) does not define “costs of suit,” but the term “costs” is a term of art that has a defined meaning under Arizona law. Schritter v. State Farm Mut. Auto. Ins. Co., 197 Ariz. 411, 413 n. 3, ¶ 7, 4 P.3d 466 (App.2000) (“It is well recognized that ‘costs’ and ‘expenses’ are not the same, and that ‘costs’ is a term of art referring only to recoverable expenses.”), vacated on other grounds, 201 Ariz. 391, 36 P.3d 739 (2001). Costs do not include “everything that a party spends to achieve victory.” Nelson, 207 Ariz. at 322-23, ¶¶ 18-19, 86 P.3d 374 (quoting 20 Am. Jur. 2d Costs § 1 (1995)). Further, “costs” is defined in A.R.S. § 12-332, which governs civil proceedings. We therefore look to that statute for guidance because Newman’s claim for statutory reimbursement of his litigation expenses arises in a civil action. See A.R.S. §§ 12-331 to -333 (Title 12 “Courts and Civil Proceedings,” Article 4 “Costs Defined”); Nelson, 207 Ariz. at 322-23, ¶ 19, 86 P.3d 374 (examining the civil cost statutes for guidance concerning the recover-ability of costs claimed in a judicial conduct proceeding). ¶ 37 In AR.S. § 12-332(A), the legislature defined taxable costs in the superior court as follows: 1. Fees of officers and witnesses. 2. Cost of taking depositions. 3. Compensation of referees. 4. Cost of certified copies of papers or records. 5. Sums paid a surety company for executing any bond or other obligation therein, not exceeding, however, one per cent on the amount of the liability on the bond or other obligation during each year it was in force. 6. Other disbursements that are made or incurred pursuant to an order or agreement of the parties. ¶ 38 Newman argues that APSA is an exception to the general rale set forth in Nelson that costs in civil actions are limited to taxable costs under § 12-332. He bases this claim on the legislature’s intent that § 46-455(H)(4) authorize a broader cost recovery than § 12-233 in order to increase the remedies available to vulnerable adults who are victims of abuse and neglect. See In re Estate of Winn, 214 Ariz. 149, 151, ¶ 9, 150 P.3d 236 (2007) (noting the policy underlying APSA is to protect some of society’s most vulnerable persons from abuse, neglect, and exploitation); Denton v. Maricopa Cnty. Super. Ct., 190 Ariz. 152, 156, 945 P.2d 1283 (1997) (noting the legislature’s intent and the policy behind APSA are clear and holding damages for pain and suffering are recovera ble under the statute). Newman argues that allowing the same costs in APSA eases as in other civil suits would undermine that result. ¶ 39 Although the Arizona Supreme Court has recognized that APSA warrants a broad construction as a remedial statute, it has also warned that a “liberal construction is not synonymous with a generous interpretation.” Estate of Braden, 228 Ariz. at 325, ¶ 9, 266 P.3d 349 (quoting Nicholson v. Indus. Comm’n, 76 Ariz. 105, 109, 259 P.2d 547 (1953)). We find nothing in the language of § 46-455(H)(4) to indicate that the legislature expanded the meaning of “costs” in that statute. See Foster v. Weir, 212 Ariz. 193, 196, ¶10, 129 P.3d 482 (App.2006) (noting that when the legislature has intended to permit recovery of certain costs, it has done so in explicit terms). 1140 Further, we are not persuaded that the legislature imparted such meaning by its use of the phrase “costs of suit,” rather than “costs.” Reading the statute in context, it appears the legislature used the phrase to distinguish between an award of costs in a civil suit brought by those persons injured by the defendant’s conduct, § 46-455(H)(4), and one in a civil or criminal proceeding initiated by the state or a county, A.R.S. § 45-455(H)(5). And in contrast to “costs of suit” in § 46-455(H)(4), § 46-455(H)(5) authorizes the recovery of all “costs and expenses” incurred by the state or a county to investigate or prosecute conduct described in the statute. We therefore decline to interpret § 46^155(H)(4) in the manner Newman suggests. ¶41 Further, interpreting § 46-455(H)(4) to allow an award of only taxable costs does not impose a limitation on Newman’s remedies in violation of A.R.S. § 46-455(0). Section 12-332 does not take away or limit any right or specific remedies provided by APSA See Estate of Winn, 214 Ariz. at 152, ¶ 14, 150 P.3d 236 (“[T]he legislature intended through subsections (O) and (P) to remove probate code or other limitations on the personal representative’s ability to seek a remedy on behalf of a deceased elder abuse victim’s estate.”). ¶ 42 Newman sought to recover $6,932.75 for faxes, copies and postage; $24,462.44 for expert witness fees and travel expenses; $617.91 for copies of medical records; $28.14 for legal research charges; and other amounts for miscellaneous expenses (such as his counsel’s parking and lunch during trial). These are not allowed as taxable costs under § 12-332. Accordingly, the superior court correctly refused to award these expenses as “costs of suit” pursuant to § 46-455(H)(4). CONCLUSION ¶ 43 For the foregoing reasons, we reverse the superior court’s ruling on punitive damages and remand for further proceedings consistent with this opinion. We affirm the court’s awards of attorney fees and costs. ¶44 Newman requests an award of attorney fees on appeal under A.R.S. § 46-455(H)(4). In the exercise of our discretion, we will award Newman an amount of reasonable attorney fees on appeal plus his taxable costs, contingent upon his compliance with Arizona Rule of Civil Appellate Procedure 21. . We reject Newman’s argument that the court’s award was incorrect pursuant to the retainer agreement, which states his counsel’s fee will be "45% of all sums received from any and all sources,” because 45 percent of $362,500 ($250,-000 plus $112,500) equals $163,125. This is circular reasoning, because if the court had awarded $163,125 in attorney fees, under Newman’s analysis his counsel would then be entitled to $185,906 in fees (45 percent of $250,000 plus $163,125). . For the same reason, and because the court rejected the hourly rates claimed by Newman's counsel, we find unpersuasive Newman’s argument that the court should have, at minimum, awarded him $183,375 for the 605.5 hours his counsel recorded from October 18, 2012 until the end of trial. . Similarly, the costs awardable under A.R.S. § 12-341 are also limited to "taxable costs” under § 12-332 even though § 12-341 references "all costs expended or incurred." See Ahwatukee Custom Estates Mgmt. Assoc., Inc. v. Bach, 193 Ariz. 401, 402, ¶ 6, 973 P.2d 106 (1999). . Our interpretation of the statute does not render it redundant or superfluous by suggesting that the legislature enacted § 46-455(H)(4) to allow APSA claimants to recover the same costs they were already entitled to recover under § 12-332. Section 12-332 does not authorize an award of costs, but simply defines what comprises "costs” in the superior court. A.R.S. § 12-332(A). .Section 46-455(0) provides: "A civil action authorized by this section is remedial and not punitive and does not limit and is not limited by any other civil remedy or criminal action or any other provision of law. Civil remedies provided under this title are supplemental and not mutually exclusive."

OPINION WINTHROP, Judge: ¶ 1 In this special action, the State of Arizona challenges an order denying the State’s request for an alleged sexual assault victim (“E.P.”) to testify via two-way video conferencing during the trial of her alleged assailant, Real Party in Interest Darren Cortiz Davis. ¶ 2 E.P. is an adult who currently lives in Montana and suffers from numerous mental and physical difficulties, including post-traumatie stress disorder (“PTSD”) and non-epileptic seizures. These difficulties are well-documented—so much so that a Montana trial court refused to compel E.P. to testify in Arizona, finding she would suffer psychological harm if required to be in the same room with Davis. E.P. has, however, indicated a willingness to testify before the jury and Davis from Montana, utilizing two-way video conferencing technology. Under the State’s requested trial accommodation, E.P. and Davis would hear each other and see each other, face-to-face, via two-way video, but would not be in the same room during E.P.’s testimony. Relying on the principles set forth in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), and its progeny, we accept jurisdiction and grant the relief sought by the State. FACTS AND PROCEDURAL HISTORY ¶3 A grand jury indicted Davis on two counts of sexual assault involving E.P., each a class 2 felony, in violation of Arizona Revised Statutes (“AR.S.”) section 13-1406 (2010). The State alleges that, on January 2, 2003, Davis kidnapped then-twenty-year-old E.P., threatened to harm her and her family if she did not cooperate, physically assaulted her, and forced her to engage in two nonconsensual sexual acts. ¶4 Sometime after the alleged assault, E.P. moved to Montana, where she is currently under the care of a psychiatrist and another medical doctor. E.P. suffers extreme mental and physical distress, and at some point in time, the prosecutor in Arizona became aware that, due to the trauma and resultant illnesses, stress, and anxiety, E.P. likely would not voluntarily testify against Davis in Arizona. ¶ 5 According to E.P.’s psychiatrist—who has treated E.P. since she was in high school—E.P. was in a fragile mental state before the alleged assaults, receiving psychiatric treatment for Major Depressive Disorder with psychotic features. In a letter to the prosecutor, the psychiatrist opined that, subsequent to her rape in Arizona, [E.P. suffers from] a Post-Traumatic Stress Disorder that exacerbated the primary diagnosis. In addition, [E.P.] has a diagnosis of non-epileptic seizures and several other medical problems that are more likely than not related to her psychiatric disorders. Since her sexual assault, [E.P.] has been in and out of hospitals several times. She has made several attempts on her life. What could have been a reasonably promising prognosis from her depression has been altered by the assault. For years she was barely able to function. In the past year or two, fortunately, she has started going back to school, is making healthy friendships and living somewhat independently. In my professional opinion, returning to Arizona to testify against her assailant would almost certainly set her back several years in her recovery. My recommendation is that she not travel and not testify in front of her perpetrator. ¶ 6 According to E.P.’s medical doctor for the past six years, E.P. presently experiences non-epileptic seizures and severe abdominal/pelvic pains as a result of her anxiety associated with testifying in court. The doctor has confirmed that E.P. “has a history of complex partial seizures related to an assault in her past where she was beat about her head.” E.P. therefore experiences both real and pseudoseizures. E.P. also experiences severe migraines and has intractable emesis (repeated bouts of vomiting resistant to medical treatment) when her anxiety level is too high, and in the doctor’s opinion, E.P.’s severe anxiety issues and chronic pelvic pain are “a direct result of this past assault.” Moreover, E.P.’s chronic pelvic pain has resulted in other serious medical complications. In the doctor’s opinion, E.P. will likely experience severe stress, anxiety, and resultant pseudoseizures if she testifies in court in Davis’s presence. ¶ 7 The State filed a petition to secure E.P.’s appearance at trial by moving for the trial court to issue a certificate asking the State of Montana to issue a subpoena to compel E.P.’s attendance under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See A.R.S. §§ 13-4091 to -4096 (2010); MCA 46-15-112 to 46-15-120 (2015). A certificate to secure the attendance of E.P. was filed in the Montana trial court, which ordered E.P. to show cause why an order should not be issued compelling her to attend the criminal prosecution of Davis. ¶ 8 After a three-day evidentiary hearing—at which E.P. and her mother testified, and the court received the medical doctor’s most-recent written opinion—the Montana court ultimately found E.P. is a material and necessary witness in the State’s case against Davis, but that E.P. would experience undue hardship in the form of physical and psychological harm by being forced to testify in the same room with Davis. As a result, the court quashed the out-of-state subpoena and declined to order E.P. to attend any proceedings in Arizona. ¶ 9 In Arizona, the State moved to take E.P.’s deposition in Montana (with counsel physically present or with defense counsel and Davis participating electronically) and asked the court to find E.P. unavailable and allow her video deposition to be admitted at trial in lieu of her live testimony. Davis objected to the taking of E.P.’s deposition and argued that if the court should allow E.P. to be deposed, he had the right under the Confrontation Clause of the Sixth Amendment to be physically present at the deposition. ¶ 10 The trial court ruled that E.P. was an unavailable witness under Arizona Rule of Evidence 804(a)(5). The court further found that the State had made a good faith effort to produce E.P.; however, because Davis refused to waive his right to be present at the deposition, see Ariz. R. Crim. P. 15.3(e), the court ruled that the State could introduce E.P.’s testimony via video deposition only if the deposition was recorded in Davis’s physical presence. The State claims the trial court’s order requiring the State to transport Davis to Montana if the State deposed E.P. was unworkable because it ran counter to the Montana court’s conclusion that E.P.’s unavailability was based on the harm she would experience if forced to be in the same room as Davis. ¶ 11 The State then filed a request for E.P. to testify via two-way video conferencing during trial, a means of testifying the State avows E.P. is amenable to accepting. The trial court denied the request. The State then filed this petition for special action. JURISDICTION ¶ 12 Special action jurisdiction is proper when an issue is one of first impression, involves a purely legal question, is of statewide importance, or is likely to arise again. State v. Bernini, 230 Ariz. 223, 225, ¶ 5, 282 P.3d 424, 426 (App.2012); State ex rel. Romley v. Martin, 203 Ariz. 46, 47, ¶ 4, 49 P.3d 1142, 1143 (App.2002); Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App.1992). The State asks us to resolve an issue of first impression in Arizona—the constitutionality of utilizing two-way video testimony at trial under the Confrontation Clause—that is a legal issue of statewide importance and likely to recur. Moreover, the State has no equally plain, speedy, or adequate remedy by appeal. See Ariz. R.P. Spec. Act. 1(a); Lindsay R. v. Cohen, 236 Ariz. 565, 566-67, ¶ 5, 343 P.3d 435, 436-37 (App.2015). Accordingly, we accept special action jurisdiction. ANALYSIS ¶ 13 The State argues the trial court erred as a matter of law by not applying the Maryland v. Craig standard to the State’s requested accommodation for E.P. to testify via two-way video during trial. See 497 U.S. at 849, 110 S.Ct. 3157 (recognizing that the Confrontation Clause’s preference for face-to-face confrontation at trial “must occasionally give way to considerations of public policy and the necessities of the case” (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895))). ¶ 14 In general, we review a trial court’s orders in managing proceedings for an abuse of discretion. Gamboa v. Metzler, 223 Ariz. 399, 402, ¶ 13, 224 P.3d 215, 218 (App.2010). We review de novo, however, issues involving the Confrontation Clause. See State v. Bronson, 204 Ariz. 321, 324, ¶ 14, 63 P.3d 1058, 1061 (App.2003). ¶ 15 The Sixth Amendment to the United States Constitution guarantees that, in all criminal prosecutions, the accused has the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause has been construed as “guarantee[ing] the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Its central concern “is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding.” Craig, 497 U.S. at 845, 110 S.Ct. 3157. Face-to-face in-court testimony serves several purposes: (1) it “ensures the reliability of the evidence by allowing the trier of fact to observe the demeanor, nervousness, expressions, and other body language of the witness”; (2) it “impresses upon the witness the seriousness of the matter and ensures that statements are given under oath”; and (3) it “helps assure the identity of the witness, that the witness is not being coached or influenced during testimony, and that the witness is not improperly referring to documents.” United States v. Hamilton, 107 F.3d 499, 503 (7th Cir.1997). The United States Supreme Court has emphasized the fundamental role face-to-face confrontation plays in judicial proceedings, noting “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’ ” Coy, 487 U.S. at 1017, 108 S.Ct. 2798 (quoting Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). ¶ 16 While recognizing the Constitution’s preference for face-to-face confrontation, however, the Supreme Court has clarified that the right to face-to-face confrontation is not absolute. Craig set forth a test for abridging the preference for face-to-face confrontation with video testimony: the State must show that (1) the denial of face-to-face confrontation is necessary to further an important public policy; (2) the reliability of the testimony is otherwise assured; and (3) there is a case-specific showing of necessity for the accommodation. Id. at 850, 110 S.Ct. 3157. Although Davis notes that Craig involved one-way closed circuit television and child witnesses, including the alleged victim, who could not see or hear the defendant, nothing in its holding suggests its application is limited to such cases. See People v. Wrotten, 14 N.Y.3d 33, 896 N.Y.S.2d 711, 923 N.E.2d 1099, 1103 (2009) (“Nowhere does Craig suggest that it is limited to child witnesses or that a ‘public policy’ basis for finding necessity must be codified. Indeed, federal courts have permitted live video testimony in a variety of circumstances, including instances where public policy is implicated by a key witness too ill to appear in court____” (citing Horn v. Quarterman, 508 F.3d 306, 317-18 (5th Cir.2007); United States v. Benson, 79 Fed.Appx. 813, 820-21 (6th Cir.2003); United States v. Gigante, 166 F.3d 75, 79 (2d Cir.1999))). ¶ 17 Since deciding Craig, the Supreme Court has not further examined the constitutionality of remote video testimony or considered new types of technology available to facilitate remote testimony, such as the two-way video conferencing the State seeks to use in this case that would allow E.P. and Davis to hear and see one another simultaneously. See State v. Rogerson, 855 N.W.2d 495, 499-500 (Iowa 2014); see also Wrotten v. New York, 560 U.S. 959, 959, 130 S.Ct. 2520, 177 L.Ed.2d 316 (2010) (Sotomayor, J., respecting denial of petition for writ of certiorari) (noting that the question of and standards for the use of two-way video testimony in a petitioner’s trial “is not obviously answered by Maryland v. Craig ”). Moreover, no Arizona opinion has addressed the question of allowing adult witnesses to testify using two-way video technology. ¶ 18 Numerous federal and state courts have extended Craig to the use of two-way video testimony for adult witnesses. See, e.g., United States v. Yates, 438 F.3d 1307, 1313 (11th Cir.2006) (acknowledging Craig as the proper test for the admissibility of two-way video conference testimony and noting agreement with the Sixth, Eighth, Ninth, and Tenth Circuits); Rogerson, 855 N.W.2d at 506-07 (Iowa Supreme Court approving the use of two-way video testimony for adult witnesses, provided the Craig factors are met); White v. State, 223 Md.App. 353, 116 A.3d 520, 540-49 (Md.Ct.Spec.App.2015) (applying Craig to allow a witness in a cold case to testify by two-way video because it would be “cruel and unnecessary to require her to fly” given her health concerns); People v. Buie, 285 Mich.App. 401, 775 N.W.2d 817, 825 (2009) (applying Craig to two-way video testimony, “[l]ike the majority of federal courts that have examined this issue”); City of Missoula v. Duane, 380 Mont. 290, 355 P.3d 729, 734 (2015) (applying Craig to allow the two-way video testimony of a doctor whose testimony in three trials would cause a prohibitive expense to the city and place a significant burden on the doctor); Commonwealth v. Atkinson, 987 A.2d 743, 750-51, ¶¶ 16-17 (Pa.Super.Ct.2009) (applying Craig and concluding that the defendant’s right to confrontation had been violated because expediting disposition of the case was an insufficient reason for allowing the use of two-way video testimony); Bush v. State, 193 P.3d 203, 215-16, ¶¶ 52-53 (Wyo.2008) (applying Craig to allow a witness’s testimony via two-way video “to further the important public policy of preventing further harm to his already serious medical condition”). ¶ 19 Assuming that two-way video testimony is not the equivalent of face-to-face confrontation, we adopt the Craig standard for the use of two-way video testimony and apply the Craig factors to the State’s requested accommodation. The use of two-way video conferencing can satisfy a defendant’s right to face-to-face confrontation in certain limited circumstances like those present here. ¶ 20 Applying Craig, we conclude that the strong preference for face-to-face confrontation must give way in the special circumstances of this ease to considerations of public policy and the necessities of the case. The State’s requested accommodation is necessary to further two important public policies: protecting the rights of a vulnerable alleged sexual assault victim who has been ruled to be outside Arizona’s subpoena power and preserving society’s interest in prosecuting accused sexual offenders. See Michigan v. Lucas, 500 U.S. 145, 149-50, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (recognizing Michigan’s rape shield law furthers the legitimate state interests of protecting a sexual assault victim from surprise, harassment, and unnecessary invasions of privacy); United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (recognizing the government has a demonstrated interest in apprehending criminal law violators, thereby protecting potential victims). Moreover, consistent with Craig, protecting a victim-witness’s physical and mental health is a legitimate public policy. See, e.g., Kramer v. State, 277 P.3d 88, 93-94, ¶ 19 (Wyo.2012); see also Ariz. Const. art. 2, § 2.1(A)(1) (providing that crime victims have the constitutional right “to be free from intimidation, harassment, or abuse, throughout the criminal justice process”). ¶ 21 In this ease, Arizona and Montana trial courts have already found E.P. is a material and necessary witness, and realistically, without E.P.’s testimony, there will be no trial. The Montana court has already found after hearing evidence that requiring E.P. to testify with Davis present in the same room will cause E.P. to suffer severe emotional and mental trauma with resultant seizures, and it appears that, at this point, no one questions that E.P. will suffer grave harm if required to testify in person. Thus, without the accommodation for E.P. to testify via two-way video during trial, the State will be forced to choose between protecting E.P.’s mental and physical health and constitutional rights, and preserving Arizona’s interest in prosecuting and punishing persons who have allegedly committed sexual offenses. Because an alternative reliable means of protecting Davis’s confrontation rights exists in this ease, the State should not be forced to choose. The State’s requested accommodation clearly furthers important public policy concerns. ¶ 22 The requested two-way video conferencing at issue here should also ensure reliable testimony. Under the State’s requested accommodation, the video will present a “real time” image of E.P. to Davis and the jury, giving an impression of E.P.’s physical presence and demeanor at trial. The two-way video will also allow the trial court to rule on objections as they arise during E.P.’s testimony, allow E.P. to answer any jury questions, and allow Davis to communicate with defense counsel during the cross-examination of E.P., just as he would be able to do if E.P. were physically present. The State can arrange for E.P. to be placed under oath in Montana and ensure E.P.’s testimony is broadcast in a way that would make it impossible for her to improperly refer to documents during her testimony. Most importantly, E.P. will be able to see Davis when she testifies, and Davis will be able to see her. We conclude in these limited circumstances that allowing E.P. to testify via simultaneous two-way video conferencing will not alter the reliability of her testimony or offend Davis’s right to confrontation. ¶ 23 Finally, the State has adequately demonstrated case-specific necessity for the requested accommodation. See Smith, 308 P.3d at 138-39 (requiring an adequate showing of necessity and stating that mere inconvenience to a witness is insufficient under Craig to supplant face-to-face testimony); see also State ex rel. Montgomery v. Padilla, 239 Ariz. 314, 317, ¶¶ 9-11, 371 P.3d 642, 645, 1 CA-SA16-0017, 1 CA-SA 16-0027, 2016 WL 1063284, at *3, ¶¶ 9-11 (Ariz.App. Mar. 17, 2016) (concluding the heightened standard of clear and convincing evidence of an individualized and case-specific need for an accommodation applied to minor victim witnesses under A.R.S. § 13-4253 (2010)); cf. Rogerson, 855 N.W.2d at 506-07 (recognizing that most courts “seem to require some impediment to testifying beyond mere unwillingness to travel,” and noting that a general consensus exists “that mere convenience, efficiency, and cost-saving are not sufficiently important”). In this case, E.P. is beyond the State’s subpoena power, and forcing her to testify in Davis’s physical presence—whether in a deposition in Montana or at trial in Arizona—would result in severe mental and physical trauma to E.P. Two medical professionals have opined that E.P. will suffer a myriad of physical ailments related to her PTSD—including seizures, severe abdominal/pelvic pains, severe migraines, and intractable emesis—if she is required to testify in Davis’s physical presence, and the Montana trial court has found that forcing E.P. to testify in Davis’s presence will cause her to suffer undue hardship due to the gravity of the ailments related to the PTSD and the associated stress, anxiety, and severe psychological harm. This case presents extraordinary circumstances, and a compelling case-specific necessity that justifies the State’s requested accommodation. CONCLUSION ¶ 24 We adopt the Craig test, and applying it to this case, conclude that Davis’s confrontation rights can be satisfied through the use of two-way video testimony. Accordingly, we accept jurisdiction of the petition for special action and grant relief. The trial court’s order is reversed and the matter is remanded with directions to allow the State’s requested trial accommodation. . See State v. Smith, 308 P.3d 135, 137 (N.M.Ct.App.2013) (citing Harrell v. State, 709 So.2d 1364, 1368-69 (Fla.1998) (declining to find live satellite testimony to be equivalent to live, face-to-face testimony)). Bat see Gigante, 166 F.3d at 81 (holding that when a trial court used a two-way video system, face-to-face confrontation was preserved and it was therefore unnecessary to enforce the Craig standard); United States v. Gigante, 971 F.Supp. 755, 759 (E.D.N.Y.1997) (“[T]he [two-way closed circuit television procedure] proposed by the government in this case satisffies] fully the requirements of the Constitution. ...”). . Moreover, as the State notes, automatic denial of such a requested trial accommodation may send the message that if a perpetrator of sexual assault causes extreme emotional, mental, and physical harm to his or her victim, the perpetrator is less likely to be prosecuted and convicted. . Arizona Rule of Criminal Procedure 18.6(e) provides for the submission of juror questions to the court or witnesses during trials.

Chief Justice BALES, opinion of the Court. ¶ 1 The State’s evidence supporting the conviction of Joseph Javier Romero included testimony by a firearms examiner, based on a toolmark comparison, that a certain pistol had fired six shell casings found at the murder scene. We consider whether the trial court abused its discretion by precluding Romero from offering expert testimony that firearms examiners use subjective rather than scientifically rigorous methods in drawing conclusions from indentations on shell casings. Because Romero’s expert witness was qualified and his testimony would have been helpful to the jury in understanding the evidence, the trial court erred in excluding the testimony. I. ¶ 2 In June 2000, a man was killed by two gunshots. Although witnesses did not see the shooting, they heard gunshots and saw two or three men flee in a dark Ford Ranger or Mazda pickup truck. Police found six spent .40-ealiber shell casings and bullet fragments at the murder scene. A cell phone was also found next to the victim’s body. ¶ 3 Nearly one month later, police officers stopped Romero for reasons unrelated to the murder. He possessed the magazine for a .40-caliber Glock pistol. The officers subsequently found a .40-caliber Glock pistol without its magazine along the path Romero had traveled just before encountering them. Police retained the pistol and the magazine. ¶ 4 Seven years later, a “cold case’ ” investigative unit inspected the cell phone and traced it to Robert E. and, through him, to Romero. Robert E. told police that, while a college student in 2000, he had known a person named “Joe” who supplied him drugs and sometimes borrowed Robert E.’s black Ford Ranger. Robert E. recalled that he had loaned his pickup truck to Joe in the summer of 2000, possibly June, and Joe had kept it longer than expected. ¶ 5 Frank Powell, a police firearms expert, examined the six .40-caliber shell casings found at the murder scene and concluded that they were all fired from the same gun. Later, Powell test-fired the Glock pistol recovered when the police stopped Romero in July 2000. Comparing indentations on the shell casings, Powell concluded that this pistol had fired the casings found at the murder scene. ¶ 6 Romero was indicted for first degree murder. The jury hung on the charge, resulting in a mistrial. Before his retrial, Romero moved to preclude Powell from testifying, arguing that the firearm examiner’s conclusions lacked the reliability required by Arizona Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). At a hearing on this motion, the trial court reviewed a transcript of Powell’s testimony at Romero’s first trial and also considered testimony by Dr. Ralph Haber, a defense expert. Dr. Haber was not offered to testify whether Powell had correctly analyzed the toolmarks on the shell casings. Instead, Dr. Haber, based on his expertise in the broader field of experimental design, criticized the scientific reliability of drawing conclusions by comparing toolmarks. ¶ 7 The court denied Romero’s motion, finding that Powell was qualified as an expert in the field of firearms examination and that his opinions resulted from reliable principles and methods. It also granted the State’s motion to preclude Dr. Haber from testifying as a defense expert at the second trial, reasoning that Dr. Haber was not qualified as an expert in firearms identification and, alternatively, that his testimony would impermissibly invite the jury to revisit Daubert issues decided by the judge with regard to Powell’s testimony. ¶ 8 At Romero’s second trial, Powell testified that the shell casings from the murder scene “matehe[d] very well” with the casings from test-firing the Glock pistol. He therefore concluded that the casings from the murder scene were fired from the Glock that the police found when they stopped Romero in July 2000. The jury acquitted Romero of first degree murder but convicted him of the lesser-included offense of second degree murder. The trial court sentenced Romero to a presumptive term of sixteen years’ imprisonment. ¶ 9 In affirming Romero’s conviction and sentence, a divided panel of the court of appeals held that the trial court had not abused its discretion in admitting Powell’s testimony or in precluding Dr. Haber from testifying. State v. Romero, 236 Ariz. 451, 457-60 ¶¶ 18-32, 341 P.3d 493, 499-502 (App.2014). Specially concurring, one judge concluded that the trial court had erred by precluding Dr. Haber’s testimony, but that the error was harmless. Id. at 469 ¶ 69, 341 P.3d at 511 (Eckerstrom, J., concurring). ¶ 10 We granted Romero’s petition for review solely with regard to the preclusion of Dr. Haber’s testimony because Rule 702’s standard for admitting expert testimony is a recurring issue of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶ 11 We review a trial court’s exclusion of evidence for an abuse of discretion, and we review de novo the interpretation of the Rules of Evidence. A court abuses its discretion by committing an error of law. State v. Bernstein, 237 Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015). As the proponent of Dr. Haber’s expert testimony, Romero bears the burden of establishing its admissibility by a preponderance of the evidence. Id. A. ¶ 12 Arizona Rule of Evidence 702 allows an expert witness to testify if, among other things, the witness is qualified and the expert’s “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence____” Trial courts serve as the “gatekeepers” of admissibility for expert testimony, with the aim of ensuring such testimony is reliable and helpful to the jury. Id. cmt. (2012). ¶ 13 The trial court here concluded that Dr. Haber was not qualified to testify as an expert in firearms identification. In affirming, the court of appeals noted that Dr. Haber, although having reviewed the literature on firearms identification, had not previously been retained as an expert on firearms identification, conducted a toolmark analysis, attempted to identify different firearms, or conducted research on firearms identification. 236 Ariz. at 458 ¶¶ 23-25, 341 P.3d at 500. ¶ 14 The issue, however, is not whether Dr. Haber was qualified as an expert in firearms identification, but instead whether he was qualified in the area of his proffered testimony—experimental design. Here, the trial court determined that Powell was qualified to offer an expert opinion that the shell casings were all fired from the same Glock. But Romero did not offer Dr. Haber as an expert in firearms identification to challenge whether Powell had correctly performed his analysis or formed his opinions. Instead, Dr. Haber’s testimony was proffered to help the jury understand how the methods used by firearms examiners in performing toolmark analysis differ from the scientific methods generally employed in designing experiments. ¶ 15 Under Rule 702, when one party offers an expert in a particular field (here, the State’s presentation of Powell as an expert in firearms identification) the opposing party is not restricted to challenging that expert by offering an expert from the same field or with the same qualifications. The trial court should not assess whether the opposing party’s expert is as qualified as—or more convincing than—the other expert. Instead, the court Inconsider whether the proffered expert is qualified and will offer reliable testimony that is helpful to the jury. Cf. Bernstein, 237 Ariz. at 230 ¶ 18, 349 P.3d at 204 (noting that when the reliability of an expert’s opinion is a close question, the court should allow the jury to exercise its fact-finding function in fact-the weight and credibility of the evidence). ¶ 16 The gist of Dr. Haber’s proffered testimony was that the methods generally used in conventional toolmark analysis fall short of scientific standards for experimental design. Dr. Haber’s testimony was therefore directed at the scientific weight that should be placed on the results of Powell’s tests. Such questions of weight are emphatically the province of the jury to determine. E.g., State v. Lehr, 201 Ariz. 509, 517 ¶¶ 24-29, 38 P.3d 1172, 1180 (2002). The trial court erred by focusing on whether Dr. Haber was qualified as an expert in firearm identification rather than considering the proper scope of his proffered testimony—experimental design. B. ¶ 17 We turn to whether Dr. Haber was qualified to opine on the experimental design of toolmark analysis generally, and how it contrasts with other experimental designs rooted in the scientific method. Under Rule 702, a witness may be qualified based on “knowledge, skill, experience, training, or education.” For a witness to be qualified as an expert, he or she need only possess “skill and knowledge superior to that of [people] in general.” State v. Girdler, 138 Ariz. 482, 490, 675 P.2d 1301, 1309 (1983) (quoting State v. Watson, 114 Ariz. 1, 12, 559 P.2d 121, 132 (1976)). Careful study may suffice to qualify an expert if it affords greater knowledge on a relevant issue than the jury possesses. State v. Macumber, 112 Ariz. 569, 570, 544 P.2d 1084, 1085 (1976). ¶ 18 Dr. Haber has a Ph.D. in experimental psychology from Stanford, which in turn qualified him to teach experimental design at Yale, the University of Illinois, and the University of Rochester for some twenty-one years. Based on his education and experience, he founded his own consulting business, through which he analyzes forensic science methods and makes himself available to testify about their consistency with accepted methods of scientific experimentation. He routinely conducts peer review for academic journals in many scientific or forensic fields—including firearm and toolmark analysis—regarding the experimental designs used to support the conclusions reached. He has authored a paper for the California Bar Association regarding “evidence in the criminal courts on firearms and handgun identification.” Although he has been retained only once to testify about the methods used in toolmark analysis, Dr. Haber has studied and evaluated this issue for four years and “thoroughly familiarized” himself with the research, publications, and methodology for toolmark identification, including all publications from the Association for Toolmark and Firearm Examiners. ¶ 19 With respect to experimental design, and a comparison of the methods generally used by firearms examiners to the scientific method, Dr. Haber is qualified as an expert. C. ¶ 20 Apart from Dr. Haber’s qualifications, his testimony would not have been admissible unless it would have been helpful to the jury in understanding the evidence. Ariz. R. Evid. 702(a). The State presented Powell’s testimony that the indentations on shell casings demonstrated that the dock had fired all the shells, including those at the murder scene, and the State argued that the toolmark comparisons demonstrated a match to “a reasonable degree of scientific certainty.” Dr. Haber’s testimony would have been helpful to the jury in understanding how the toolmark analysis differed from general scientific methods and in evaluating the accuracy of Powell’s conclusions regarding “scientific certainty.” ¶ 21 The thrust of Dr. Haber’s testimony was that the methods underlying toolmark analysis (here comparing indentations and other marks on shell casings) are not based on the scientific method, but instead reflect subjective determinations by the examiner conducting the analysis. Haber would have explained that unlike experts who use other forms of forensic analysis rooted in the scientific method, firearms examiners do not follow an accepted sequential method for evaluating characteristics of fired shell casings and comparing them to control subjects. By describing the methods used by toolmark examiners, Dr. Haber’s testimony could have helped the jury assess how much weight to place on Powell’s “scientific” conclusion that the shell casings at the murder scene could only have been fired from the Glock found by the police when they stopped Romero. ¶ 22 In affirming the exclusion of Dr. Haber’s testimony, the court of appeals observed that Dr. Haber “could not describe the methods or protocols of a toolmark analysis.” 236 Ariz. at 458 ¶ 25, 341 P.3d at 500. This misconstrues the point of Dr. Haber’s testimony. One of his critiques of the methodology used by firearms examiners is that they do not employ identifiable; standardized protocols. Excluding testimony about the lack of such protocols because the proffered expert witness cannot identify them would transform a procedure’s weaknesses into a shield from criticism. Such reasoning would undermine—rather than promote—Rule 702’s purpose of helping the jury understand the evidence. ¶ 23 Moreover, the testimony would have been helpful even though Dr. Haber had not himself performed a toolmark analysis and would not have opined on the particular analysis performed by Powell. Expert witnesses may helpfully educate the fact-finder about general principles without considering the facts of a particular case. State v. Salazar-Mercado, 234 Ariz. 590, 593 ¶ 10, 325 P.3d 996, 999 (2014) (holding that “cold” expert testimony may be admitted under Rule 702). Dr. Haber’s lack of experience in performing toolmark analyses and firearm identification experiments might have affected the weight a juror would give his testimony, but it did not bar its admission. ¶ 24 Dr. Haber’s testimony was intended to highlight that the conclusions drawn by firearms examiners from toolmarks do not result from the application of articulable standards and lack typical safeguards of the scientific method such as independent verification by other examiners. Thus, Dr. Haber’s testimony could have helped the jury to understand any deficiencies in the experimental design of toolmark analysis and to assess any suggestion that such analysis was “scientific.” Cf. Salazar-Mercado, 234 Ariz. at 594 ¶ 15, 325 P.3d at 1000 (affirming admission of expert testimony about general behavior patterns of child sexual abuse victims because it “might have helped the jury to understand possible reasons for the delayed and inconsistent reporting in this case”). D. ¶ 25 As an alternative grounds for excluding Dr. Haber’s testimony, the trial court ruled that it would impermissibly amount to a second Daubert hearing before the jury. Romero, 236 Ariz. at 457 ¶ 19, 341 P.3d at 499. Because the court of appeals affirmed the preclusion of Dr. Haber’s testimony based on his lack of qualifications as a firearms examiner, it did not address this alternative grounds. Id. at n. 4. ¶ 26 The trial court reasoned that because it found Powell’s methodology and conclusions sufficiently reliable to be admissible, the defense could not present expert testimony at trial to challenge the prior evidentiary ruling. We have rejected similar reasoning in interpreting Arizona’s previous version of Rule 702. In Lehr, we held that a trial court, after ruling based on a pretrial hearing that testimony by the State’s DNA experts was admissible, erred by precluding cross-examination of the experts at trial about protocols they had followed. 201 Ariz. at 517 ¶¶ 25-29, 38 P.3d at 1180. Although the trial court had considered the testimony to be elicited on cross-examination before ruling the State’s expert testimony admissible, the defense was entitled to offer the same evidence at trial through cross-examination to challenge that testimony. Id. The trial court’s contrary reasoning, we noted, “fail[ed] to recognize that very often the same proof used to establish admissibility also impacts weight and credibility.” Id. ¶ 25. Consequently, blanket preclusion at trial of evidence presented at a pretrial hearing “infringe[s] upon the role of the jury and improperly insulate[s] the state’s evidence from critique.” Id. ¶ 29. ¶ 27 Our post-Daubert amendments to Rule 702 do not alter this aspect of Lehr. Instead, we have recognized that a trial court’s admission of disputed expert testimony leaves to the fact-finder the role of assessing its weight and credibility. “Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Bernstein, 237 Ariz. at 231 ¶ 22, 349 P.3d at 205 (quoting Ariz. R. Evid. 702 cmt. (2012)). ¶ 28 Here, the trial court’s alternative ground for preclusion was an error of law. Assuming that Powell’s methods and conclusions regarding the purported “match” between the Glock and the shell casings at the crime scene were sufficiently reliable to be admitted into evidence (we declined review on this issue), it does not follow that the weight and credibility of this evidence, once admitted, may not be challenged. See Lehr, 201 Ariz. at 517 ¶ 29, 38 P.3d at 1180 (noting jury’s province to determine weight and credibility of expert testimony). ¶ 29 Our opinion, of course, does not suggest that a jury would necessarily credit Dr. Haber’s testimony if it had been admitted. The State could have challenged that testimony before the jury, including by noting some of the points mentioned by the court of appeals, such as Dr. Haber’s lack of experience in actually performing toolmark examinations or by questioning whether standards for experimental design in other forensic areas should apply to toolmarks. Such arguments, however, go to the weight rather than the admissibility of Dr. Haber’s testimony. ¶ 30 The court’s exclusion of Dr. Haber’s testimony will not require reversal of Romero’s conviction if the State can establish the error was harmless beyond a reasonable doubt. The specially concurring opinion concluded the error was harmless, 236 Ariz. at 469 ¶ 69, 341 P.3d at 511 (Eckerstrom, J., concurring), but the majority did not address this issue. We accordingly remand to the court of appeals so that court may consider in the first instance whether excluding Dr. Haber’s testimony was harmless. III. ¶ 31 We vacate paragraphs 19 through 32 of the opinion of the court of appeals and remand to that court to determine if the error in excluding Dr. Haber’s testimony was harmless.

OPINION NORRIS, Judge: ¶ 1 Arizona Revised Statutes (“AR.S.”) section 12-2108 (Supp. 2015) and the provisions of Arizona Rule of Civil Appellate Procedure 7 (“Rule 7”) that track this statute limit the amount of a bond a party must furnish to stay the enforcement of, or execution on, a judgment. The dispositive issue in this special action is whether the statute and the matching provisions in Rule 7 bar a superior court from taking other steps to preserve the status quo or the effectiveness of a judgment it has stayed pending appeal. We hold they do not. FACTUAL AND PROCEDURAL BACKGROUND ¶ 2 Between 1994 and 2000, real party in interest Robert G. Hoag established three irrevocable charitable remainder unitrusts and appointed himself trustee for each trust. Each trust obligated the trustee to pay Hoag, during his life, a percentage of the “net fair market value” of the trust assets as of a specified date during each taxable year. Each trust also contained a “spendthrift” provision that prohibited trust assets from becoming liable for the debts of a trust beneficiary (including Hoag), prevented trust assets from being seized by any creditor of a beneficiary, and barred any beneficiary from assigning, transferring, or encumbering his or her interest in the trust estate or income produced by the trust estate. ¶ 3 In November 2012, Petitioner Wells Fargo Bank, N.A. obtained a default judgment in the principal sum of $2,533,169 against Hoag and a revocable living trust he had established in 1992 (collectively, “Hoag”). Hoag did not appeal the default judgment. Subsequently, Wells Fargo attempted to enforce the default judgment and served third parties with post-judgment subpoenas for the production of documents concerning the trusts and distributions made by the trusts. Hoag objected to the subpoenas, arguing the spendthrift provisions protected the trust assets and, accordingly, Wells Fargo was not entitled to the documents it had subpoenaed. ¶ 4 On February 4, 2014, Hoag resigned as trustee, and appointed a corporation organized under the laws and operating out of the Bahamas as successor trustee. The successor trustee also objected to Wells Fargo’s post-judgment discovery efforts, asserting the spendthrift provisions prohibited Wells Fargo from holding the trusts liable for Hoag’s debts. Accordingly, the successor trustee continued to make distributions to or for the benefit of Hoag. Thus, for example, in April 2014, the successor trustee distributed $30,000 to or for the benefit of Hoag ($9,000 to Hoag’s former wife for spousal maintenance, $9,000 to pay property taxes and insurance on a home Hoag owned, and $14,000 directly to Hoag). ¶ 5 In June 2014, Wells Fargo sued Hoag, the successor trustee, and the trusts and alleged Hoag had fraudulently concealed his assets by transferring them to the trusts. Additionally, Wells Fargo petitioned for declaratory relief and requested the superior court to hold the spendthrift provisions invalid. The superior court granted Wells Fargo partial summary judgment and declared the spendthrift provisions “invalid and ineffective” as to Wells Fargo’s claims against Hoag. It also declared Wells Fargo was entitled “to garnish, attach, and otherwise receive income and all present and future distributions [from the trusts] to or for the benefit of Hoag.” Additionally, it enjoined Hoag and anyone acting for or on his behalf with notice or knowledge of the judgment from preventing Wells Fargo from garnishing, attaching, executing on or otherwise receiving income from the trusts. ¶ 6 Hoag appealed the judgment, which the superior court had certified under Arizona Rule of Civil Procedure 54(b). After Wells Fargo petitioned for an order directing Hoag to deliver to it all non-exempt property in his possession, including the distributions he was receiving from the trusts, Hoag moved to stay the judgment without having to provide a supersedeas bond. In requesting a stay without bond, Hoag relied on Rule 7(a)(4), a procedural rule that governs supersedeas bonds, and which tracks the provisions of A.R.S. § 12-2108. That statute—which applies to civil judgments “under any legal theory”—limits the amount of the bond “necessary” to stay the enforcement of a judgment (subject to certain exceptions) to the “lesser of’ the total amount of damages awarded (excluding punitive damages), 50% of the appellant’s net worth, or $25 million (“the bond formula”). Hoag argued that because the judgment did not award any damages, the amount of the bond required to stay the judgment under the bond formula was zero and thus he was entitled to have the judgment stayed without bond pending his appeal. ¶ 7 Although Wells Fargo did not object to Hoag’s request for a stay, it objected to his request for a stay without bond, arguing that the bond formula set out in the statute and in Rule 7(a)(4) (collectively, “the statute/rule”) applied only to money judgments and not judgments awarding declaratory or injunctive relief. Because the successor trustee was continuing to make distributions to Hoag, Wells Fargo asked the superior court to condition any stay on Hoag posting a $360,000 bond ($30,000 per month x 12; see supra ¶ 4). Alternatively, it asked the superior court to require Hoag to place all distributions from the trusts into an escrow account pending resolution of his appeal. ¶ 8 The superior court rejected Wells Fargo’s argument that the bond formula applied only to money judgments. Accordingly, it stayed the judgment without bond. SPECIAL ACTION JURISDICTION AND THE DISPOSITIVE ISSUE PRESENTED ¶ 9 In its original petition for special action relief, Wells Fargo principally argued, as it did in the superior court, that the bond formula in the statute/rule applies only to money judgments, and therefore, the superior court should have required Hoag to post a supersedeas bond “in an appropriate amount” to stay the judgment pending his appeal. Because Wells Fargo also argued the statute/rule did not bar a superior court from entering other orders to maintain the status quo or to secure its rights under the judgment, we asked the parties to file supplemental briefing addressing whether the statute/rule applied to the alternative escrow arrangement Wells Fargo had proposed. ¶ 10 Having reviewed the parties’ briefing, and in the exercise of our discretion, we accept special action jurisdiction. The dispute between the parties regarding the scope of the statute/rule’s bond formula presents an issue of law of statewide importance. Chartone, Inc. v. Bernini, 207 Ariz. 162, 166, ¶ 9, 83 P.3d 1103, 1107 (App.2004). Whether the statute/rule’s bond formula applies only to money judgments is not, however, an issue we must decide in this special action. Instead, the narrower and dispositive issue before us is whether the statute/rule’s bond formula prevents a superior court from entering orders to preserve the status quo or the effectiveness of a judgment it has stayed pending appeal as authorized by Rule 7(a)(2). Answering that question, we hold the statute/rule’s bond formula does not prevent the superior court from entering orders to preserve the status quo or the effectiveness of its judgment when staying a judgment pending appeal. Accordingly, we vacate the superior court’s decision that A.R.S. § 12-2108 applies to all judgments and direct it to consider whether the escrow arrangement proposed by Wells Fargo or some other arrangement would be appropriate to preserve the status quo or the effectiveness of the judgment it has stayed pending Hoag’s appeal. DISCUSSION ¶ 11 In 2011, the Legislature passed AR.S. § 12-2108, and thereafter, the Arizona Supreme Court amended Rule 7 (effective January 1, 2012) to track the statute’s bond formula. As we pointed out in City Center Executive Plaza, LLC v. Jantzen, 237 Ariz. 37, 41, ¶ 10, 344 P.3d 339, 343 (App.2015), A.R.S. § 12-2108 and the tracking language in Rule 7 “changed the standards” for determining the amount of a supersedeas bond. The bond formula adopted in the statute/rule marked a significant departure from the pri- or standards that had governed supersedeas bonds. Id. at ¶ 9; see also Salt River Sand & Rock Co. v. Dunevant, 222 Ariz. 102, 213 P.3d 251 (App.2009). Section 12-2108 does not, however, address other matters concerning stays pending appeal. ¶ 12 Although the supreme court amended Rule 7 to track the statute’s bond formula, it left in place the provision in Rule 7 that authorized a superior court to make further orders to preserve the status quo or the effectiveness of its judgment. That provision—which the supreme court included in Rule 7(a)(1) when it first promulgated the Arizona Rules of Civil Appellate Procedure in November 1977 (effective January 1, 1978)— read as follows: “The court may make any further order, other than or in addition to the bond, appropriate to preserve the status quo or the effectiveness of the judgment.” And although the supreme court amended Rule 7 in 2014 (effective January 1, 2015), it made only stylistic changes to this provision. The current version of this provision—now contained in Rule 7(a)(2)—states, “The superior court may enter any further order, in lieu of or in addition to the bond, which may be appropriate to preserve the status quo or the effectiveness of the judgment.” ¶ 13 Although Arizona superior courts have been authorized to enter orders to preserve the status quo or the effectiveness of them judgments pending appeal for almost 40 years, the parties have not cited nor have we found any reported Arizona ease discussing this grant of authority. But, trial as well as appellate courts in other jurisdictions operating under similar rules have exercised that authority when they have stayed a judgment and the stay would have the effect of depriving the appellee of the benefits of the judgment, or would actually upset the status quo. From these eases we draw a common thread—that a court may appropriately exercise its authority to preserve the status quo, that is, the situation that exists by virtue of the judgment rendered against the appellant, see generally Gotthelf v. Fickett, 37 Ariz. 322, 294 P. 837 (1930) (supersedeas stays future proceedings and does not undo what has already been done; it has no retroactive operation so as to deprive the judgment of its force and authority), or the effectiveness of the judgment when not to do so would effectively and practically deprive the appellee of the benefits it received by virtue of the judgment in its favor. ¶ 14 For example, in Monarch Construction Co. v. Ohio School Facilities Commission, 118 Ohio Misc.2d 296, 771 N.E.2d 941 (Ohio Misc.2002), the trial court acted to preserve the status quo even though it had stayed its judgment pending appeal because if it had not done so, the prevailing plaintiff would have lost the benefits of the judgment in its favor pending the appeal. There, the plaintiff, a construction company, sued the defendants and asked the court to preliminarily enjoin them from using a different contractor to complete a school construction project. The trial court granted the preliminary injunction, and the defendants appealed. As required under the controlling procedural rules, the trial court stayed its judgment without bond pending the appeal. The defendants then argued that because of the stay, they were entitled to continue the construction project using the other contractor. The court rejected that argument, explaining that “the effect of a nondiscretionary stay pending appeal ... should not be to undo the trial court’s injunction before it can be determined by a higher court whether it was issued wrongfully.” Id. at 944. To preserve the status quo, the court barred the defendants from going forward with the construction project pending the appeal, while precluding the plaintiff from taking any action to force the defendants to rebid the project. Id. ¶ 15 Several federal courts have imposed protective conditions to balance the hardships on the appellee when the stay pending appeal barred the appellee from attempting to enforce the judgment. See e.g., Cooks v. Fowler, 459 F.2d 1269, 1272-73 (D.C.Cir.1971) (affirming condition of stay requiring tenant appealing judgment to deposit funds in court registry pending appeal); Ctr. for Int’l Envtl. Law v. Office of the U.S. Trade Rep., 240 F.Supp.2d 21, 23 (D.D.C.2003) (conditioning stay pending appeal on appellant seeking expedited appeal). See also Tribal Vill. of Akutan v. Hodel, 859 F.2d 662, 663 (9th Cir.1988) (noting that Fed. R. Civ. P. 62(g), which preserves power of appellate court to “suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered,” along with Rule 62(e), which allows district court to “suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights” in an appeal in an injunction case together “ ‘codif[y] the inherent power of courts to make whatever order is deemed necessary to preserve the status quo and to ensure the effectiveness of the eventual judgment.’ ” (internal citations omitted)). ¶ 16 In short, when a superior court stays its judgment pending appeal, it nevertheless is entitled to take appropriate action to preserve the status quo or the effectiveness of its judgment. In a practical sense, what this means is a superior court may ensure that, pending the appeal of the stayed judgment, the appellee will not lose the benefits of its judgment and thereby suffer real, not hypothetical or speculative, harm. ¶ 17 Here, the judgment invalidated the spendthrift provisions of the trusts and enjoined Hoag and others acting for him and with notice of the judgment from preventing Wells Fargo from receiving distributions from the trusts. The superior court stayed the judgment and Wells Fargo has alleged that, as a consequence of the stay, Hoag has continued to receive distributions from the successor trustee. Assuming this to be the case, the stay has enabled Hoag to prevent Wells Fargo from pm-suing these distributions even though the judgment authorized Wells Fargo to receive them. Not only has the stay upended the status quo that existed by virtue of the judgment, but it has jeopardized the effectiveness of the judgment if Wells Fargo and not Hoag prevails in the pending appeal. Under these circumstances and pursuant to Rule 7(a)(2), the superior court was entitled to consider whether the escrow arrangement proposed by Wells Fargo or some other arrangement would be appropriate “to preserve the status quo or the effectiveness of the judgment.” CONCLUSION ¶ 18 We vacate the superior court’s decision that AR.S. § 12-2108 applies to all judgments and direct it to consider whether, under the circumstances presented here, the escrow arrangement proposed by Wells Fargo or some other arrangement would be appropriate to preserve the status quo or the effectiveness of the judgment stayed pending appeal. . Rule 7(a)(2), and the similar authority granted to appellate courts by Rule 7(c), stems from the Arizona Constitution and state statute. Ariz. Const, art. 6, § 5 (supreme court "shall have” power to issue injunctions "and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction”); A.R.S. § 12-123 (superior court "shall have all powers and may issue all writs necessary to the complete exercise of its jurisdiction”); A.R.S. § 12-120.21 (court of appeals shall have jurisdiction "to issue injunctions and other writs and orders necessary and proper to the complete exercise of its appellate jurisdiction”); see also Ariz. Podiatry Ass'n v. Dir. of Ins., 101 Ariz. 544, 548-49, 422 P.2d 108, 112-13 (1966) (with certain exceptions, jurisdiction of Arizona Court of Appeals is concurrent with that of Arizona Supreme Court).

OPINION MILLER, Judge: ¶ 1 Rosa Becerra was convicted after a jury trial of possession of drug paraphernalia and methamphetamine for sale and sentenced to a combined prison term of five years. On appeal, she contends the trial court erred in denying her motion to suppress the methamphetamine when it concluded that her written and oral consent to search her car included inspection by a drug-detection dog (K-9). For the reasons that follow, we affirm. Factual and Procedural Background ¶ 2 In reviewing a trial court’s ruling on a motion to suppress, the appellate court considers only the evidence presented at the suppression hearing. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). In addition, we “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). Only the officer who conducted the search testified at the suppression hearing. ¶ 3 In 2011, a Department of Public Safety officer stopped Becerra’s car for speeding and a cracked windshield. After issuing a written warning for the traffic violation and a repair warning for the windshield, the officer asked Becerra if he could search the vehicle, to which she said yes. The officer then gave her a consent-to-seareh form, which stated in both English and Spanish: I, [name], give consent to search my vehicle and any of its contents under my control. I understand that: (1) I can refuse to allow my vehicle to be searched. (2) I can withdraw my consent to search at any time. (3) Any evidence found during this search can be used against me in court. (4) This consent does not include property of any individual adult passengers. Separate consent must be obtained from those individuals. After confirming that Becerra could read Spanish, the officer asked her to read through the form and sign it if she agreed, and added that if she had any questions she could ask him. She signed the Spanish portion of the form. He asked her if she understood the form, and she said yes. Their conversation was in English. ¶4 The officer directed Becerra and her passengers to exit the car and stand on a sidewalk about twenty feet from the ear. He went to his patrol car, which was parked behind Becerra’s car, and retrieved his K-9. The officer testified that his patrol car was visible from the sidewalk and Becerra was able to see him take the K-9 out of the patrol car. Becerra was standing close enough that the officer “[m]ost definitely” could have heard her if she had said something to him, but she did not. He testified that throughout the investigation, he never saw or heard her do or say anything to indicate that she withdrew her consent to search the ear. ¶ 5 The officer had the K-9 conduct an exterior sniff of Becerra’s car by walking all the way around it. The K-9 did not alert to the exterior of the car. The officer next directed the K-9 to sniff the interior of the ear. The K-9 alerted to a purse placed on the driver’s seat. The officer returned the K-9 to his vehicle and then searched the purse, finding the methamphetamine inside. ¶ 6 In her motion to suppress Becerra argued the seizure of the methamphetamine violated the Fourth Amendment because the use of a K-9 to sniff the interior of the car exceeded the scope of her consent. The trial court denied the motion, finding Becerra freely and intelligently consented to a search and the actual search remained within the bounds of her consent. A jury found her guilty of the charge and after she was convicted and sentenced as described above, she appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). Consent to Search Vehicle With K-9 ¶ 7 A warrantless search of a ear without the driver’s consent or probable cause to believe it contains contraband or other evidence of a crime violates the Fourth Amendment. See U.S. Const. amend. IV; California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (automobile exception to warrant requirement justified by lessened expectation of privacy in vehicle); see also Ariz. Const. art. II, § 8; State v. Reyna, 205 Ariz. 374, 375, ¶ 5, 71 P.3d 366, 367 (App.2003). Because the state did not assert the officer had probable cause to search her car, Becerra’s consent was the only issue addressed at the suppression hearing. We review the trial court’s ruling on a motion to suppress for an abuse of discretion. State v. Butler, 232 Ariz. 84, ¶ 8, 302 P.3d 609, 612 (2013). ¶ 8 Determining the validity of a law enforcement officer’s search based on consent generally involves two factors: (1) whether the consent was voluntarily given and (2) whether the search was within the scope of the consent. See State v. Paredes, 167 Ariz. 609, 612-13, 810 P.2d 607, 610-11 (App.1991). Becerra acknowledges that her oral and written consent was voluntary. Her single contention on appeal, as she argued below, was that the scope of her consent did not reasonably extend to a search of the inside of her ear by the officer’s K-9. ¶ 9 A general consent to search is unqualified, absent any announcement of the object of the search or other express limitation, subject only to the bounds of reasonableness. See United States v. McWeeney, 454 F.3d 1030, 1034-35 (9th Cir.2006). Even after a person initially consents to a search, she nevertheless remains free to withdraw or narrow the scope of her consent at any time. Id. at 1034. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). ¶ 10 Becerra argues “no reasonable person would believe that a dog was going to be placed into the interior of their vehicle” when consenting to a search. She reasons that absent an explicit question by the officer, such as “whether he and his dog could search,” the officer should assume consent does not include the assistance of a K-9. She supports her reasonable person argument with examples of why some people do not want dogs around them or their property: the presence of hair, claws, saliva, and indiscriminately wagging tails. Although it is undoubtedly true that some people prefer to avoid dogs for those reasons, the issue of objective reasonableness to determine the scope of a consent to search does not turn on the personal likes or dislikes of the defendant, or even the preferences of a group of people. See, e.g., United States v. Marshall, 348 F.3d 281, 287 (1st Cir.2003) (consenting party’s subjective belief irrelevant). Instead, it depends on the rational beliefs and knowledge of a reasonable person. For instance, in Jimeno, the defendant argued and the Florida appellate court agreed that consent to search a vehicle would not reasonably include the closed containers within it. 500 U.S. at 250, 111 S.Ct. 1801. The Supreme Court rejected this per se rule, however, because a “reasonable person may be expected to know that narcotics are generally carried in some sort of container.” Id. at 251, 111 S.Ct. 1801 (emphasis added). Here, the issue is whether a person who has generally consented to a search of her vehicle may expect that a law enforcement officer could use a K-9 to assist in the search. ¶ 11 K-9s have assisted law enforcement officers conducting searches for more than a century because of their superior olfactory abilities. See, e.g., Hodge v. State, 98 Ala. 10, 13 So. 385, 385 (1893) (search capabilities of K-9s “common knowledge” by 1893); see also Charles F. Sloane, Dogs in War, Police Work and on Patrol, 46 J. Crim. L. & Criminology 385, 388 (1955) (noting dogs have been used to track criminals since at least fifteenth-century England). They have been used to detect drug contraband for more than forty years. See, e.g., United States v. Fulero, 498 F.2d 748, 749 (D.C.Cir.1974) (per curiam) (marijuana-sniffing K-9 “had been working at the port of entry at San Luis, Arizona regularly for at least two years” by time of trial). In fact, K-9s are a ubiquitous part of modern law enforcement. See, e.g., United States v. Howard, 448 F.Supp.2d 889, 891 (E.D.Tenn.2006) (noting the “great number of criminal eases” involving drug detection K-9s); see also Charles L.W. Helm, Note, A Huff and a Puff Is No Longer Enough: How the Supreme Court Built a House of Bricks With Its Decision In Florida v. Jardines, 9 Liberty U.L. Rev. 1, 12 (2014) (noting that in addition to drug investigations, K-9s are used “to find missing persons, sweep for explosives, find remains of murder victims, locate discarded pieces of evidence, or even assist fire investigators in determining if an accelerant might have been used”). ¶ 12 Knowledge about the role of K-9s in law enforcement is not limited to criminal justice circles. Many patrol vehicles display prominent signs that the officer is accompanied by a K-9. See, e.g., People v. Bell, 43 Cal.App.4th 754, 51 Cal.Rptr.2d 115, 117 (1996) (noting “patrol car was marked ‘K-9’ ”), abrogated on other grounds by People v. Brendlin, 38 Cal.4th 1107, 45 Cal.Rptr.3d 50, 136 P.3d 845 (2006), vacated, Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). In fact, placing K-9 markings on a private car may be particularly important in determining whether a person is attempting to impersonate a police officer. See State v. Beaubrun, 36 So.3d 897, 900 (Fla.Dist.Ct.App.2010). ¶ 13 The training and work of K-9s is recognized in widely viewed documentaries, such as ones produced by National Geographic and Animal Planet. See Alpha Dogs, National Geographic, http://channel.national geographic.com/wild/alpha-dogs/ (last visited Jan. 8, 2016); K-9 Cops Videos, Animal Planet, http://www.animalplanet.com/tv-shows/ other/videos/k9-eops/ (last visited Jan. 8, 2016). K-9s even have a place in popular culture as demonstrated by their leading roles in movies and television. See, e.g., K-9 (Universal Pictures 1989); Rin Tin Tin: K-9 Cop (The Family Channel 1988-93). The reasonable person in the United States would not be surprised or find any novelty in a law enforcement officer’s use of a K-9, just as he or she might use a flashlight, to search a vehicle for di’ug contraband. Therefore, we cannot accept Becerra’s contention that the constitution mandates a per se rule excluding K-9s from the scope of a general consent and requiring officers to explicitly ask for permission to search with a K-9. ¶ 14 Rejection of Becerra’s proposed bright-line rule does not mean adoption of the opposite rule—i. e., everyone must assume a K-9 will be used in all searches. Instead, trial courts must look to the totality of the circumstances in the exchange between the officer and person to determine whether a consensual search remained within the bounds of the consent actually given, and appellate courts will affirm the trial court’s judgment absent clear error. State v. Swanson, 172 Ariz. 579, 583, 838 P.2d 1340, 1344 (App.1992). Arizona precedent and persuasive federal ease law guide our consideration of the suppression ruling. ¶ 15 In State v. Paredes, this court held the trial court erred in concluding that the use of a K-9 in a vehicle search exceeded the scope of a general consent. 167 Ariz. at 613, 810 P.2d at 611. In that ease the officer had asked if he “could look through the vehicle,” Paredes consented, and then the officer retrieved his K-9 from the patrol vehicle. Id. at 610, 810 P.2d at 608. In rejecting Paredes’s argument, we observed that when he consented, the K-9 was on the scene and “the defendant did not revoke his consent when the dog was brought to the vehicle.” Id. at 613, 810 P.2d at 611. Finding instructive the Fifth Circuit’s reasoning in United States v. Gonzalez-Basulto, 898 F.2d 1011 (5th Cir.1990) (per curiam), we found the presence of the K-9 and the absence of an objection by the defendant or revocation of his consent crucial to our determination that the trial court had erred by granting the motion to suppress. 167 Ariz. at 613, 810 P.2d at 611. ¶ 16 In Gonzalez-Basulto, border patrol agents at an immigration checkpoint asked the defendant if he would “mind opening the trailer for an inspection,” to which he replied, “ ‘No problem.’ ” 898 F.2d at 1012. Unlike the officer here, the border patrol agents did not inform Gonzalez-Basulto of his right to refuse or to withdraw consent to search. Id. at 1013. Nonetheless, the court held that because the defendant could observe K-9s at the checkpoint before he gave his consent and he stood by silently as the K-9 entered the trailer, the district court properly concluded search with a K-9 did not exceed the scope of consent. Id. Becerra provides no authority rejecting the reasoning in Gonzalez-Basulto, and our own research discloses general acceptance of it. See, e.g., Bell, 51 Cal.Rptr.2d at 126 (defendant who knew officer was accompanied by K-9 should expect it would assist search); Castro v. State, 755 So.2d 657, 659 (Fla.Dist.Ct.App.1999) (no objection when K-9 began search). ¶ 17 Both parties cite United States v. Woods, 445 F.Supp.2d 1328 (M.D.Ala.2006), as additional persuasive authority. In that case a police officer stopped the defendant’s car based on reasonable suspicion that the defendant was involved in drug activity. Id. at 1330. The defendant denied having contraband in the car. Id. “ ‘So, you don’t mind if I search it?’” the officer asked, and the defendant replied, ‘“[N]o.’” Id. The officer began to search inside the vehicle. Id. About ten minutes into the stop, a K-9 team arrived. Id. The handler spoke to the defendant for a few minutes. Id. The K-9 subsequently alerted to drugs hidden in the center console. Id. at 1330-31. In denying the defendant’s motion to suppress the drugs, the court reasoned that “before the canine search began, [the defendant] had been fully aware for some time of the dog’s presence and its purpose; that a canine search ensued as part of [his] consent came as no surprise to anyone present.” Id. at 1332. The defendant “‘had ample opportunity to limit the scope of the search, or request that it be discontinued’ ” after realizing a K-9 would be used, but he did not do so. Id., quoting United States v. Harris, 928 F.2d 1113, 1117-18 (11th Cir.1991). On these facts, the court concluded that the defendant’s general consent to a search of the ear reasonably included the use of a drug-sniffing K-9 in the interior of the car where narcotics might reasonably be hidden. Id. at 1332-33. ¶ 18 Becerra attempts to distinguish Paredes, Gonzalez-Basulto, and Woods on the basis that in each case “it was abundantly clear to the defendant that dogs were being utilized for the vehicle searches prior to obtaining the consent or conducting the search.” She essentially argues the facts in those cases are more compelling, but by this argument also implicitly contends the trial court committed clear error in finding that the search with the K-9 “was within the bounds of consent.” We disagree. There was sufficient evidence that Becerra, like the defendant in Woods, was “fully aware ... of the dog’s presence and its purpose” before the K-9 entered the vehicle. 445 F.Supp.2d at 1332. Moreover, as in Paredes, GonzalezBasulto, and Woods, the trial court had before it uncontested evidence that Becerra did not object when presented with unambiguous indications that the officer would use a K-9 to assist in the search. On this record, we cannot conclude the trial court committed clear error in its factual finding regarding the scope of consent. ¶ 19 Becerra also relies on Dominguez v. State, 616 So.2d 506 (Fla.Dist.Ct.App.1993), to distinguish Woods. There, the defendant consented to a warrantless search of his apartment for narcotics. Id. at 506. Fifteen minutes later, a K-9 was brought to the scene. Id. at 506-07. After the K-9 alerted to a sink in the apartment, the officers opened the wall behind the sink to find narcotics hidden there. Id. at 507 & n. 1. The court found the use of the K-9 exceeded the reasonable scope of the defendant’s consent. Id. at 507. But Dominguez is distinguishable for two reasons. First, the court was careful to note that its holding rested on the absence of any “circumstances from which consent to the use of the drug detection dog could be reasonably implied.” Id. For instance, it distinguished Gonzalez-Basulto because the K-9s were “openly used and were visible to [the] defendant.” Id. (emphasis added). Likewise, the K-9 was visible to Becerra. Second, the court emphasized that the search in question was an invasive search of a private home, where one’s reasonable expectation of privacy under the Fourth Amendment is at its apex. Id. The court thus scrutinized defendant’s consent “‘with special care.’ ” Id., quoting Gonzalez v. State, 578 So.2d 729, 734 (Fla.Dist.Ct.App.1991). Courts have long recognized that one has a lesser expectation of privacy in a vehicle than in a private home. See, e.g., Carney, 471 U.S. at 390-91, 105 S.Ct. 2066; Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Similarly, cases involving a K-9 brought onto the curtilage of a home are inapposite. See Florida v. Jardines, — U.S. -, -, 133 S.Ct. 1409, 1415-16, 185 L.Ed.2d 495 (2013); State v. Foncette, 238 Ariz. 42, ¶¶ 15-16, 356 P.3d 328, 331-32 (App.2015) (K-9 sniff of hotel hallway did not invade constitutionally protected area even though in close proximity to one). K-9 Exterior Vehicle Search Affecting Consent to Interior Search ¶ 20 The dissent seemingly would adopt Becerra’s proposed per se rule, or at least concludes the Fourth Amendment requires the state to show something more than the fact that the defendant had given a general consent to search and had been able to see the K-9 with the officer as the officer approached the vehicle to conduct the search. We will not repeat the discussion of Becerra’s arguments our colleague finds persuasive, but separately consider his additional reasoning that a K-9 exterior sniff eliminates a person’s ability to withdraw her consent. ¶ 21 The dissent reasons that because law enforcement officers are not required to obtain consent for a K-9 sniff of the exterior of a car under Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), a person would never know the officer’s inten tions until the moment the K-9 was in the car. This rationale places too much weight on Caballes. First, even assuming a person knows she has no basis for objecting to an exterior sniff, it does not inhibit a reasonable person from asking whether the officer will direct the K-9 to enter the vehicle. For instance, Becerra was close by and easily could have made that inquiry but did not do so. Second, there was no evidence before the trial court establishing or even suggesting Becerra was surprised or concerned when the K-9 was directed to the driver’s seat. Had Becerra indicated that she only expected the K-9 to conduct an exterior sniff, the trial court could have considered that fact as part of the totality of the circumstances. See, e.g., State v. Ontiveros-Loya, 237 Ariz. 472, ¶ 24, 352 P.3d 941, 948 (App.2015) (scope of consent is question of fact to be determined from totality of circumstances). Finally, the argument contradicts the reasoning in Paredes, Gonzalez-Basulto, and Woods. The presence of the K-9 is the impetus for the person to make additional inquiries or to withdraw consent. In this respect, Paredes is directly on point because consent to search was given before the K-9 left the officer’s patrol car. 167 Ariz. at 610, 613, 810 P.2d at 608, 611. Additionally, Caballes does not negate the reasoning in those cases because the defendant declined to give consent; therefore, the holding and the Court’s reasoning does not apply here. 543 U.S. at 410, 125 S.Ct. 834 (K-9 exterior sniff during lawful traffic stop does not violate Fourth Amendment because it only reveals location of contraband person has no right to possess). ¶ 22 In sum, contrary to our dissenting colleague’s characterization, we do not “contend that only an unreasonable person would be uncomfortable with a strange animal entering her private space.” Rather, we conclude that when a person has consented to a search of her vehicle after having been unequivocally informed the consent could be withdrawn at any time, a reasonable person would do so if she felt the use of a K-9 in conducting the search was objectionable or unacceptable for any reason. This conclusion is consistent with our jurisprudence and the protections of the Fourth Amendment. Disposition ¶ 23 For the reasons stated, the trial court did not abuse its discretion in denying Becerra’s motion to suppress. We therefore affirm the convictions and the sentences imposed. . After the opening brief was filed in this appeal, the United States Supreme Court issued its opinion in Rodriguez v. United States, -U.S.-, -, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015), holding that police may not prolong an otherwise-completed traffic stop to conduct a dog sniff absent reasonable suspicion of criminal activity. Because the parties disagreed as to what effect Rodriguez might have on the present case, we solicited supplemental briefing. We conclude the record does not permit us to address the issue and express no opinion about its application here. . Becerra conceded in her motion that the purse belonged to her. . In its expanded statement of the issue, the Court actually asks whether the officer's beliefs about the consent exchange were "objectively reasonable.” Jimeno, 500 U.S. at 249, 251, 111 S.Ct. 1801. An officer's beliefs, to be objectively reasonable, must be based on what a reasonable lay person in those circumstances would have believed. For instance, in State v. Ahumada, which relied on Jimeno, the court discussed circumstances from which the officer might have concluded the scope of consent included a search of the pockets, but based its holding on what "reasonable persons” would have understood. 225 Ariz. 544, 546, ¶¶7, 14, 241 P.3d 908, 910, 912 (App.2010). . Becerra contends this language is dicta because the K-9 in Paredes also alerted to the trunk, but we conclude the holding cannot be limited to an exterior search, especially in light of the court's reliance on United States v. Gonzalez-Basulto, 898 F.2d 1011 (5th Cir.1990) (per curiam). . It is not clear from the record that the K-9 actually entered the car; instead, it could have alerted to the purse as soon as the car door was opened. Nonetheless, we assume the K-9 entered the vehicle.

OPINION ESPINOSA, Judge: ¶ 1 In this insurance agent malpractice action, appellants Jessyka Murray and her parents Robert and Marcia Murray (the Murrays) seek the reversal of the trial court’s order granting a new trial on all issues and the remand of the matter for a new trial on damages only. They also petition this court to reverse certain partial summary judgments entered by the court and its ruling on their motion made pursuant to Rule 49(c), Ariz. R. Civ. P. The Murrays lastly request reversal of the trial court’s interpretation of their umbrella policy. Appellees Randy Jones, the Randy Jones Insurance Agency, Farmers Insurance Company of Arizona (Farmers) and Foremost Insurance Company (Foremost) cross-appeal, contending Jones’s compliance with the requirements of Arizona’s Uninsured/Underinsured Motorist Act precludes the Murrays’ claims. For the following reasons, we affirm in part and reverse in part. Factual and Procedural Background ¶ 2 “We view the facts in the light most favorable to upholding the trial court’s ruling.” Hammoudeh v. Jada, 222 Ariz. 570, ¶ 2, 218 P.3d 1027, 1028 (App.2009). Jones and the Randy Jones Insurance Agency were authorized by Farmers to offer and sell insurance coverage to Jones’s clients through Farmers. For twenty years, Robert and Marcia purchased their automobile and homeowners insurance from Jones. Before he became them agent, the Murrays had purchased only minimum liability limits and matching minimum uninsured motorist (UM) and underinsured motorist (UIM) coverage. With Jones as their agent, over the years the Murrays added a one-million-dollar personal umbrella, increased each auto policy’s liability limits to 250/500K and added a Foremost insurance policy for their off-road vehicle with liability limits of 250/500K. Jones, however, did not recommend that they increase their UM/UIM coverage above the minimum limits of 30/60K for their auto policy or 25/50K for them off-road vehicle, or that they buy UM/UIM in limits corresponding to their liability coverage. ¶ 3 Robert and Marcia testified that when they discussed UM/UIM coverage with Jones, he advised them they did not need increased UM/UIM limits because their family had health insurance through Robert’s employer. Jones, however, denied telling the Murrays “that if they had health insurance they d[id]n’t need to buy any UM/UIM or as much UM/UIM insurance.” ¶ 4 In November 2010, Jessyka, then seventeen, was a passenger in a two-vehicle accident that involved both an uninsured motorist and an underinsured motorist. She sustained a traumatic brain injury that permanently incapacitated her, and Robert and Marcia were appointed her guardians. ¶ 5 In August 2012, Robert and Marcia, individually, and as guardians of Jessyka, filed a complaint against Jones, the Randy Jones Insurance Agency, Farmers, and Foremost alleging professional negligence, consumer fraud under A.R.S. § 44-1522 and insurance fraud under A.R.S. § 20-443. Farmers and Foremost were included as defendants based on vicarious liability for Jones. ¶ 6 In July 2013, Jones moved for summary judgment on all claims, pointing out that the Murrays had signed UM/UIM Selection Forms for each of their policies and arguing their selection was “valid for all insureds” under A.R.S. § 20-259.01. The trial court denied Jones’s motion, finding that his compliance with the statute did not insulate him from liability. ¶ 7 After a four-day trial, the jury returned a seven to one verdict of $180,000 in favor of the Murrays. Before the jury was discharged, the Murrays orally moved to have the jury deliberate further on grounds the verdict was non-responsive to the submitted issues, citing Rule 49(c), Ariz. R. Civ. P. After briefing and argument, the trial court concluded that Rule 49(c) did not apply, accepted the verdict and discharged the jury. ¶ 8 The Murrays later filed a motion for additur or new trial on damages that the trial court denied. It ultimately, however, vacated the judgment and ordered a new trial on all issues. The Murrays appealed and Jones cross-appealed from the denial of his motion for summary judgment. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A) and 12-2101(A)(1), (5)(a). Rule 49(c), Ariz. R. Civ. P. ¶ 9 The Murrays first argue the trial court abused its discretion by denying their motion filed pursuant to Rule 49(c). That rule provides that if a “verdict is not responsive to the issue submitted to the jury, the court shall call the jurors’ attention thereto, and send them back for further deliberation.” We review the application of court rules de novo. Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶ 22, 189 P.3d 1114, 1122 (App.2008). ¶ 10 A party who believes a jury verdict is inconsistent, defective, or nonresponsive, must move, before the jury is excused, for resubmission of the case to the jury pursuant to Rule 49(c). See Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, ¶ 39, 48 P.3d 485, 493 (App.2002). An objection based on Rule 49(c) provides an opportunity to correct error with “minimal effort and expense.” Id. ¶ 40. A court will resubmit a case to the jury where its verdict is clearly inconsistent, defective, or nonresponsive. See, e.g., Gray v. Gardiner, 92 Ariz. 208, 210, 375 P.2d 562, 563 (1962) (“patent inconsistency” where “impossible” to find issues in favor of either plaintiffs or defendant and not make award in some amount); Fornara v. Wolpe, 26 Ariz. 383, 389-91, 226 P. 203, 204-05 (1924) (defective verdict where recovery amount less than instructed); Piper v. Bear Med. Sys., Inc., 180 Ariz. 170, 179, 883 P.2d 407, 416 (App.1993) (verdict awarding punitive damages but zero compensatory damages rendered it unresponsive), superseded by statute, Uniform Contribution Among Tortfeasors Act, 1984 Ariz. Sess. Laws, ch. 237, as recognized in Watts v. Medicis Pharm. Corp., 236 Ariz. 511, ¶¶ 31, 38, 41, 342 P.3d 847, 854-56 (App.2015); Farmers Ins. Co. v. Tallsalt, 191 Ariz. 177, 180, 953 P.2d 921, 924 (App.1997) (verdict nonresponsive where counterclaim not addressed), vacated in part on other grounds, 192 Ariz. 129, 962 P.2d 203 (1998); cf. Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, ¶ 14, n. 1, 273 P.3d 645, 649, 650 n. 1 (2012) (verdict neither defective nor unresponsive where award of zero damages was not impermissible as matter of law). ¶ 11 Here, the trial court had instructed the jury that if it found Jones was at fault, it “must then determine how much additional UM/UIM coverage the Murrays would have purchased up to $1,890,000.” Evidence at trial showed that the Murrays had the option of purchasing UM/UIM coverage in limits of 50/100K, 100/300K or 250/500K. The jury’s verdict of $180,000, however, did not reflect any option available to the Murrays and, as they assert and Farmers does not contest, the verdict “cannot be mathematically reconciled with any UM/UIM limit that [they] could have bought under the undisputed evidence.” ¶ 12 After the Murrays requested that the jury deliberate further pursuant to Rule 49(c), the trial court noted that the parties had agreed to “le[ave] the verdict form open” as to the amount of additional UM/UIM coverage that might have been purchased. It posed the question of how it would instruct the jury post-verdict, noting the difficulty of resubmitting the instruction without telling the jury, in essence, “pay attention to the evidence and redeeide the case.” The court concluded that a verdict could be “flawed” but responsive, and was in this case. It further noted that it “e[ould]n’t imagine ... an instruction that wouldn’t, to some degree or another, comment on the evidence and direct [the jury’s] decision.” Finally, it agreed with Jones that Rule 49(c) involved “more of a ... failure to follow the legal issues in the case than the evidentiary decision making.” ¶ 13 The jury’s verdict was within the instructed range, the error was not one of law, and we agree with the trial court’s assessment that any attempt to direct the jury to correct its verdict to conform to the available policy limits would have constituted a comment on the evidence. We therefore cannot say the court erred by refusing to require the jury to further deliberate pursuant to Rule 49(c). See Walsh, 229 Ariz. 193, ¶ 14, n. 1, 273 P.3d at 649, 650 n. 1; see also Ariz. Const. art. VI, § 27 (“Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.”). Order for New Trial on All Issues ¶ 14 The Murrays next contend the trial court abused its discretion when, after denying their motion for a new trial on damages, it ordered a new trial on all issues, rather than only damages. The court ordered the new trial after finding: (1) The jury’s verdict is likely a result of sympathy, and/or prejudice, and/or a compromised verdict between liability and damages. (2) The damages number was not supported by reasonable evidence that was submitted. (3) This Court does not believe that granting a new trial, simply on the damages with liability already established, will present the next jury with a ease in which the issues can be fully understood, because they are, in this Court’s opinion, inextricably interwoven. ¶ 15 “The tidal court’s right to order a new trial ... is completely discretionary.” Martinez v. Schneider Enters., Inc., 178 Ariz. 346, 349, 873 P.2d 684, 687 (App.1994). The decision to grant a new trial on all issues is likewise discretionary and routinely upheld. See Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 18, 13 P.3d 763, 770 (App.2000) (noting absence of Arizona cases holding trial court had abused discretion by ordering new trial on all issues). “We review an order granting a new trial under a more liberal standard than an order denying one, and we will not overturn the order absent a clear abuse of discretion.” State Farm Fire & Cas. Co. v. Brown, 183 Ariz. 518, 521, 905 P.2d 527, 530 (App.1995); see also Englert, 199 Ariz. 21, ¶ 14, 13 P.3d at 769 (abuse of discretion is “ ‘discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons’”), quoting Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App.1982). ¶ 16 The Murrays do not contest the trial court’s grant of a new trial, but contend it should be limited to damages only. Pursuant to Rule 59(h), Ariz. R. Civ. P.: A new trial, if granted, shall be only a new trial of the question or questions with respect to which the verdict or decision is found erroneous, if separable. If a new trial is ordered because the damages are excessive or inadequate and granted solely for that reason, the verdict shall be set aside only in respect of the damages, and shall stand in all other respects. But, “[p]artial new trials are not recommended because they create much opportunity for confusion and injustice.” Styles v. Ceranski, 185 Ariz. 448, 451, 916 P.2d 1164, 1167 (App. 1996). “A partial trial should be granted when the issues are not inextricably intertwined and can be separated without prejudice to the parties.” Englert, 199 Ariz. 21, ¶ 15, 13 P.3d at 769; see also Tovrea Equip. Co. v. Gobby, 72 Ariz. 38, 43, 230 P.2d 512, 516 (1951) (“ ‘It is only when the reason for setting aside the verdict relates solely to damages disassociated from every other contributing, related or vitiating cause that the new trial shall be limited to the question of the amount of damages alone.’ ”), quoting S. Pac. Co. v. Gastelum, 36 Ariz. 106, 126, 283 P. 719, 726 (1929). The court should resolve any doubt in favor of a new trial on all issues. Styles, 185 Ariz. at 451, 916 P.2d at 1167. Compromise Verdict ¶ 17 As its findings made clear, the trial court determined the jury’s verdict on damages had been affected by the jury’s findings on liability. The court found, first, that the verdict was a compromise verdict, that is, a verdict in which “some of the jurors have conceded liability against their judgment, and some have reduced their estimate of the damages in order to secure an agreement of liability with their fellow jurors[.]’ ” State v. Watson, 7 Ariz.App. 81, 88, 436 P.2d 175, 182 (1967), quoting Gastelum, 36 Ariz. at 125, 283 P. at 725. In such cases, a new trial confined to the single issue of damages would be a serious injustice to the defendant; “[h]e has never had the issue of liability determined by the conscientious conviction of all of the jury [as] he is entitled to have.” Gastelum, 36 Ariz. at 125, 283 P. at 725. Our supreme court has held that where liability was “vigorously contested” and the jury’s verdict was “so inadequate as to constitute error,” these facts permit the inference that “certain jurors believed there was no liability at all but consented to a smaller verdict than those jurors convinced of liability desired to return, in order that a verdict might be reached[;] it follows that the issues of liability and the amount of damages are not separable.” Id. at 124-25, 283 P. at 725. ¶ 18 Here, liability was contested and the verdict was approximately ten percent of the amount of damages sought by the Murrays, with no plausible rationale for the amount of the award. Cf. Saide v. Stanton, 135 Ariz. 76, 80, 659 P.2d 35, 39 (1983) (new trial limited to damages where liability contested but verdict not disproportionate to proven damages, and court unable to say verdict represented compromise or result of passion and prejudice); Tovrea Equip. Co., 72 Ariz. at 41-42, 230 P.2d at 514-15 (where verdict grossly in excess of damages established by evidence, jury likely either confused or motivated by prejudice and new trial must be on all issues). On these facts, we are unable to say the trial court erred in finding the jury rendered a compromise verdict. See Saide, 135 Ariz. at 80, 659 P.2d at 39. Verdict as a Result of Sympathy or Prejudice ¶ 19 The trial court alternatively found the verdict was a result of sympathy or prejudice. When the Murrays disputed that finding, the court stated: I disagree with you. I don’t think your liability testimony was particularly strong____The liability portion of the case while I have already acknowledged made a lot of common sense, from the “expert” point of view, it was not a strong liability case____[The Murrays] are lovely people who are committed to their daughter, who have worked hard all their lives and didn’t deserve to have this thing happen to them and are about as most sympathetic a set of plaintiffs as I have had in my courtroom in my 14 years. Usually, a sympathetic verdict is one that goes over the top and gives too much money[,] ... it can also be one in which a reasonable jury could say ... you were fully informed, you signed off on how many forms you signed off on, but sympathy says we should give you something. The court concluded, “[s]o I am having a hard time explaining the verdict. Everybody [i]s. So I will give everybody the opportunity to go get a new verdict.” ¶20 On appeal, the Murrays dispute the trial court’s finding that the verdict was the result of passion and prejudice. They note that Jessyka was only allowed to be present at trial during voir dire and that the court excluded her medical records and expenses, pre-accident photographs, and evidence of her on-going therapy requirements. They also point out the parties had stipulated that Jessyka’s accident-related damages exceeded the maximum UM/UIM coverage her parents could have purchased, two million dollars, and they had presented evidence, though lim- ited, showing their health insurance was insufficient to meet Jessyka’s post-accident needs. And yet, as they note, the jury awarded them only $180,000. ¶ 21 The Murrays assert they “did nothing to evoke sympathy” and insist the new trial should be limited to damages, citing Saide, 135 Ariz. at 79, 659 P.2d at 38. There, our supreme court ordered a new trial limited to the issue of damages, reasoning that “the verdict was not disproportionate to the proven damages, and we cannot say that the verdict represented a compromise or was the result of passion or prejudice.” Id. at 80, 659 P.2d at 39. But the Murrays have identified no factual parallel between the jury’s verdict in Saide and the verdict here. And unlike in Saide, the trial court specifically found the verdict was “likely the result of sympathy, and/or prejudice,” stating that the Murrays did not present a strong liability ease “from the ‘expert’ point of view,” but that they were “about [the] most sympathetic a set of plaintiffs as [it] ha[s] had in [its] courtroom in [its] 14 years.” ¶ 22 As we have observed, the trial court is in the best position to evaluate the effect of the evidence on the jury. See Englert, 199 Ariz. 21, ¶ 18, 13 P.3d at 770; cf. Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377, ¶92, 276 P.3d 11, 39 (App.2012) (trial judge has “unique opportunity to hear the testimony and argument, observe its effect on the jury, and determine through his observations that the trial had been unfairly compromised; in contrast, we have only a cold record, which does not convey voice emphasis or inflection, or allow us to observe the jury and its reactions”). Given the trial court’s stated observations and the jury’s inexplicable verdict, we are unable to rule out a verdict based on sympathy. Consequently, we cannot say the court abused its discretion by refusing to limit the new trial to the amount of damages. Cf. Gastelum, 36 Ariz. at 125-26, 283 P. at 725-26; see also Styles, 185 Ariz. at 451, 916 P.2d at 1167; Englert, 199 Ariz. 21, ¶ 14, 13 P.3d at 770 (trial court abuses its discretion when “ ‘discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons’”), quoting Torres, 135 Ariz. at 40, 658 P.2d at 840. ¶ 23 The Murrays have cited as supplemental authority, Tarron v. Bowen Mach. & Fabricating, Inc., 225 Ariz. 147, 235 P.3d 1030 (2010) and State v. Fischer, 238 Ariz. 309, 360 P.3d 105 (App.2015), to support their contention that the trial court erred by refusing to limit the scope of the new trial to damages only. These cases, however, do not change our analysis. In Tarron, our supreme court remanded for a limited new trial, leaving the jury’s award of damages to the plaintiff and certain fault allocations undisturbed. However, the posture of that case does not resemble the one before us— the fault allocations excluded from the new trial were not contested and, like the jury’s award of damages, were unrelated to the issue to be resolved at the new trial. ¶ 24 Fischer, in contrast, is a criminal case in which the state appealed the trial court’s grant of the defendant’s motion for new trial based on the weight of the evidence. 238 Ariz. 309, ¶¶ 1, 6, 360 P.3d at 107-08. This court pointed out “[a] judge may not set aside a verdict ‘merely because, if he had acted as trier of fact, he would have reached a different result,’ nor may he substitute his own judgment for that of the jury” and concluded the trial court had made factual findings not supported by the record and failed to consider all the evidence in reaching its conclusions. Id. ¶¶ 19, 29, quoting Cano v. Neill, 12 Ariz.App. 562, 569, 473 P.2d 487, 493 (1970). ¶ 25 Neither Tarrcm nor Fischer address the situation here, where the trial court made a supported finding that the jury’s verdict intertwined issues of liability and damages and the court consequently ordered a new trial on all issues. The court’s ruling did not “exceed[ ] the bounds of reason” in any respect. Englert, 199 Ariz. 21, ¶ 14, 13 P.3d at 769 (we will affirm trial court’s decision if it did not “ ‘exceed[ ] the bounds of reason by performing the challenged act’ ”), quoting Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App.1997) (alteration in Englert). Summary Judgment Rulings ¶26 Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(a). We review de novo a trial court’s grant of summary judgment and view the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion. Felipe v. Theme Tech Corp., 235 Ariz. 520, ¶ 31, 334 P.3d 210, 218 (App.2014). Emotional Distress Damages Claim ¶ 27 The Murrays contend the trial court erred in granting summary judgment on their claims for emotional distress damages. They assert that “Jones’ conduct deprived [them] of UM/UIM benefits that would have allowed them to meet many of Jessyka’s post-accident needs,” including extending her hospitalization, increasing her number of therapies, allowing the family residence to be remodeled to better accommodate her needs, and providing her with a device to allow her to communicate. ¶ 28 In its ruling, the trial court “aeknowledge[d] the real emotional distress of the plaintiffs in this case” but found “under current Arizona case law, [Jones’s] negligence did not directly affect or burden a personal right or interest of [the Murrays],” citing Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272 (App.2009). It noted that the Kaufman coui't had reviewed Arizona case law on emotional distress damages and that such damages were allowed only where the tortious act directly harmed a plaintiff and burdened a personal, as opposed to an economic interest. The trial court further cited Reed v. Mitchell & Timbanard, P.C., 183 Ariz. 313, 903 P.2d 621 (App.1995), for the proposition that “consequential damages for emotional distress are not recoverable when the plaintiffs direct damages are pecuniary.” The trial court concluded: Here, the direct damages from the Defendant’s negligence is pecuniary (loss of larger UM/UIM insurance coverage). The case law is clear and this Court is bound to follow and apply that law in the ruling here. Plaintiffs claim that as a consequence of the loss of larger coverage, they have suffered emotional distress. No doubt this is true. It may also be true that the law is ‘evolving’ in the area of emotional damages. However, the law in Arizona has not (yet) evolved so as to allow emotional distress damages as a consequence of pecuniary damages. A trial court is bound by established and clear ease law. While the facts of this case may support further evolution (and less restriction) on limits of emotional distress damages, this Court must apply Reed and Kaufman and Grant the Defendant’s Motion for Partial Summary Judgment [on the Murrays’] emotional distress damages. ¶ 29 As the trial court correctly observed, in Arizona, “a party may recover damages for emotional distress arising out of the tortious loss of property” where “the tortious act directly harmed the plaintiff and affected or burdened a personal, as opposed to an economic or other interest belonging to the plaintiff.” Kaufman, 223 Ariz. 249, ¶ 15, 222 P.3d at 276. Examples of personal damages are the loss of liberty or damage to a family relationship. Reed, 183 Ariz. at 318-19, 903 P.2d at 626-27. In applying this principle, we have held that plaintiffs could seek emotional damages for the destruction of their fertilized human eggs, see Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, ¶¶ 73-75, 121 P.3d 1256, 1273 (App.2005), and for suffering, as a tenant, the annoyance and discomfort of living in inadequate housing, see Thomas v. Goudreault, 163 Ariz. 159, 167, 786 P.2d 1010, 1018 (App.1989). ¶30 In contrast, we have precluded the recovery of emotional distress damages where the plaintiffs interest was determined to be “purely economic.” Reed, 183 Ariz. at 319, 903 P.2d at 627. There, in a legal malpractice action, the plaintiff alleged her attorneys had failed to adequately secure a promissory note given to her by her former husband in connection with their divorce, which put her financial security at risk and consequently caused her emotional distress. Id. at 315-16, 903 P.2d at 623-24. We held that “because the direct result of the alleged malpractice is purely economic, the exception allowing recovery for emotional distress when the interest affected is a personal one is not applicable.” Id. at 319, 903 P.2d at 627. Likewise, we held that a pet owner could not recover emotional distress damages after the death of his pet due to a veterinarian’s alleged malpractice because Arizona law classifies animals as personal property and the veterinarian’s negligence “did not directly harm [the plaintiff] in that it did not affect or burden a personal right or interest belonging to him.” Kaufman, 223 Ariz. 249, ¶¶ 10, 17, 19, 222 P.3d at 275-76. ¶ 31 The Murrays contend that the negligent failure to sell uninsured and under-insured coverage implicates the insured’s well-being and is particularly likely to cause serious emotional harm. Albeit in another context, our supreme court has recognized that an insured’s relationship with an insurer is not a strictly financial one. See Taylor v. State Farm Mut. Auto. Ins. Co., 185 Ariz. 174, 176, 913 P.2d 1092, 1094 (1996). The court noted, “[t]he insured receives intangible benefits from the relationship, such as peace of mind.” Id. And in Rawlings v. Apodaca, the court “recognize[d] that in buying insurance an insured usually does not seek to realize a commercial advantage but, instead, seeks protection and security from economic catastrophe.” 151 Ariz. 149, 154, 726 P.2d 565, 570 (1986). The insured, the court concluded, “seeks peace of mind from the fears that accompany such exposure.” Id. We accept therefore for our analysis that an insurer-insured relationship is not merely a financial one but includes an expectation of security and protection before and at the time of a catastrophe. ¶ 32 In their complaint, the Murrays stated they had “relied on and trusted Jones in determining what insurance coverage to obtain and what limits would provide them complete protection.” Marcia Murray averred there were “many other examples where Jessyka, [Robert] and I have suffered mental distress because Jessyka did not have access to UM/UIM benefits that were equal to our auto liability limits, and as a result she has not been able to secure needed care, therapies and equipment.” And at trial, after being asked what he had wanted when meeting with Jones about the Murrays’ insurance coverage prior to the accident, Robert Murray responded that he had wanted coverage, noting: “I mean, I have a family that you have to take care of. That’s my job. And so you want the best to cover your family.” He also testified that after the accident he “ha[d] to go to the community to try and raise funds to provide some of the services that [he] couldn’t pay for because [he] didn’t have UM and UIM coverage.” ¶ 33 As noted above, our review of the trial court’s ruling is de novo and we view the evidence and all reasonable inferences in the light most favorable to the Murrays. Felipe, 235 Ariz. 520, ¶ 31, 334 P.3d at 218. From the evidence provided and reasonable inferences therefrom, a factfinder could conclude the Murrays suffered direct emotional distress from Jones’s negligence that was non-economic, that is, the loss of their reasonable expectations and peace of mind that they and their children were insured against economic catastrophe. We therefore conclude this is the appropriate case for the “evolution” of the law contemplated by the trial court. Accordingly, we reverse the court’s ruling and remand this issue for further proceedings on the Murrays’ emotional distress damages claims. Fraud Claims under A.R.S. §§ 20-443, 20-443.01, and 44-1522 ¶ 34 The Murrays next contend the trial court erred in granting summary judgment on Jessyka’s claims under Arizona’s Consumer Fraud Act (CFA), AR.S. § 44-1522, and the insurance fraud statute, AR.S. §§ 20-443 and 443.01, because “as a resident of the Murray household, Jessyka was both an insured and an express third-party beneficiary of the Murrays’ motor vehicle and um brella insurance policies.” At a pretrial hearing, the trial court determined that Jessyka lacked standing to bring a claim under the consumer fraud statute, stating: The Arizona statute requires that the act be with the intent that others rely and that there was, in fact, reliance. Whether it was reasonable or not, it still requires reliance. And Jessyka was not one who was made to, [sic] nor the person who the reliance was made on. The court distinguished case law from other states cited by the Murrays where third-party beneficiaries were found to have standing to assert consumer fraud claims, noting differences between Arizona’s consumer fraud statute and those of the other states, and concluded that Jessyka could not bring her claim under the statute. ¶ 35 Arizona’s Consumer Fraud Act (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. § 44-1522(A). “The purpose of the [CFA] is to provide injured consumers with a remedy to counteract the disproportionate bargaining power often present in consumer transactions.” Waste Mfg. & Leasing Corp. v. Hambicki, 183 Ariz. 84, 88, 900 P.2d 1220, 1224 (App.1995). Our supreme court has recognized an implied private cause of action under the act. See Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 576, 521 P.2d 1119, 1122 (1974). ¶ 36 “It is well-settled that a person or entity need not intend to deceive to violate the statute.” Powers v. Guar. RV, Inc., 229 Ariz. 555, ¶ 17, 278 P.3d 333, 338 (App.2012). Nor does the statute require that the defendant know that the misrepresentations are false. Id. “To succeed on a claim of consumer fraud, a plaintiff must show a false promise or misrepresentation made in connection with the sale or advertisement of merchandise and consequent and proximate injury resulting from the promise.” Kuehn v. Stanley, 208 Ariz. 124, ¶ 16, 91 P.3d 346, 351 (App.2004). ¶ 37 Jones asserts that “a viable consumer fraud claim requires that the claimant be a party to the sale in which the misrepresentation took place.” In support he cites Sullivan v. Pulte Home Corp., 231 Ariz. 53, 290 P.3d 446 (App.2012), which held that subsequent homeowners did not have a viable private cause of action under the CFA against the homebuilder “[b]eeause a subsequent purchaser is not a party to the original transaction and therefore would not encounter ... ‘disproportionate bargaining power.’ ” Id. ¶38 (noting plaintiff homeowners had no transaction with homebuilder), vacated in part on other grounds, 232 Ariz. 344, 306 P.3d 1 (2013). Sullivan, however, did not involve a third-party beneficiary of the transaction. ¶ 38 Because there is no published Arizona precedent involving a claim under the CFA by a third-party beneficiary, we examine the language of the statute. If the language is clear and unambiguous, we apply it without resorting to other methods of statutory interpretation. Haag v. Steinle, 227 Ariz. 212, ¶ 9, 255 P.3d 1016, 1018 (App.2011). But if multiple plausible interpretations exist, we then consider the statute’s context, language, subject matter and historical background and its effects, consequences, and spirit and purpose. Id. ¶ 39 We have noted that “[t]he terms of th[e] [CFA] are obviously quite broad and are not subject to restrictive interpretation because the Act is generally to be considered remedial in nature.” People ex rel. Babbitt v. Green Acres Trust, 127 Ariz. 160, 164, 618 P.2d 1086, 1090 (App.1980), superseded by statute on other grounds, 1981 Ariz. Sess. Laws, ch. 295, § 5, as recognized in State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 667 P.2d 1304 (1983). We have further observed that, although not limitless, the CFA’s definitions are “expansive,” Hambicki, 183 Ariz. at 87, 900 P.2d at 1223, and that the CFA, while applying to “consumers” through its title, provides no definition of that term. See Flower World of Am., Inc. v. Wenzel, 122 Ariz. 319, 321, 594 P.2d 1015, 1017 (App.1978); Sullivan, 231 Ariz. 53, ¶ 38, 290 P.3d at 454 (subsequent purchaser not within “class of consumers” protected by implied private cause of action under CFA); see also State v. Barnett, 142 Ariz. 592, 597, 691 P.2d 683, 688 (1984) (statutory title may aid in interpreting statute). ¶ 40 Although Jones would have us limit a private CFA cause of action to the parties to the transaction involving the misrepresentation, the broad language of the act would appeal’ only to require that a consumer have a relationship to the transaction. See § 44-1522(A) (statute pertains to misrepresentations or deceptive acts made “in connection with the sale or advertisement” of good or service). The CFA requires that a misrepresentation or deceptive act be made with intent that “others” rely on it, without specifying the relationship of those “others” to the transaction. Id. Further, the language “whether or not any person has in fact been misled, deceived or damaged thereby,” suggests that third parties are not excluded. Id. ¶ 41 The Murrays cite cases from Washington, the District of Columbia Circuit, and Texas to support their argument that as a third-party beneficiary Jessyka should be afforded standing under Arizona’s CFA. See Escalante v. Sentry Ins. Co., 49 Wash.App. 375, 743 P.2d 832, 834, 839-40 (1987) (vehicle passenger had standing under Washington’s CFA because she was “an insured and a third party beneficiary [of the driver’s UIM coverage] by virtue of the policy coverage for passengers”); Athridge v. Aetna Cas. & Sur. Co., 351 F.3d 1166, 1176 (D.C.Cir.2003) (child of insureds and “person potentially insured by” policy is a consumer under act “even if he was not the party who purchased the insurance”); Mendoza v. Am. Nat. Ins. Co., 932 S.W.2d 605, 608-09 (Tex.App.1996) (beneficiary of life insurance policy has standing under consumer fraud act). Although Jones points out that Washington’s consumer fraud act is more broadly worded than Arizona’s, see Wash. Rev. Code § 19.86.010(2) (act applies to “the sale of assets and services, and any commerce directly or indirectly affecting the people of the state of Washington”), he differentiates the D.C. Circuit and Texas cases because they expressly include as a “consumer” a recipient or beneficiary of a good or service. See D.C. Code § 28-3901 (2013) (defining “consumer” as person who “would purchase ... or receive consumer goods or services”); Bohls v. Oakes, 75 S.W.3d 473, 479 (Tex.App.2002) (“A third party beneficiary may qualify as a consumer of goods or services, as long as the transaction was specifically required by or intended to benefit the third party and the good or service was rendered to benefit the third party.”). Because “consumers” are the named subject of the Act, and because the plain meaning of that term accords with viewing a consumer as a recipient of goods or services, see Merriam-Webster Online Dictionary, 2015, http://www.merriam-webster. eom/dietionary/consumer (10 Dec. 2015), (“one that consumes” or that “utilizes economic goods”), we do not disregard the precedent cited by the Murrays. ¶ 42 The Murrays further point out, pursuant to Ariz. R. Sup. Ct. 111(e), (d), a recent unpublished decision by the Arizona Federal District Court denying an insurance company’s motion to dismiss a life insurance beneficiary’s CFA claim. In Moreno v. Minn. Life Ins. Co., No. CV 14-2022-TUC-FRZ, 2015 WL 1457419, *6 (D.Ariz. Mar. 30, 2015), the court found that the plaintiff was “specifically intended ... to receive the benefit of the transaction.” The court stated: [n]o language in either the Consumer Fraud Act or the Unfair Insurance Practices Act suggest[s] that the beneficiary of a life insurance policy would not also have a cause of action in place of the insured under similar circumstances. Nor is there any “logical basis upon which to distinguish [the beneficiary] from the insured ...” on the facts of this case. Plaintiff also points out that at the time the insurer is obligated to perform under a life insurance policy, the insured has ceased to exist and, therefore, consumer fraud protection would be meaningless unless it extended to the third-party beneficiary____In light of the broad remedial purposes of the Consumer Fraud Act, Plaintiffs argument is well taken in context of a life insurance policy. Significantly, both the insured and insurer specifically intended Plaintiff to receive the benefit of the transaction. Id. at *7 (citations omitted), quoting Gould v. Mutual Life Ins. Co. of N.Y., 37 Wash.App. 756, 683 P.2d 207, 208 (1984) (first alteration added, second alteration in Moreno). Although the decision is neither published nor an appellate opinion, it is well-reasoned under its facts and has persuasive value. See Ariz. R. Sup. Ct. 111(c), (d). ¶ 43 In view of the broad language and remedial purpose of the CFA, Jessyka’s status as a third-party beneficiary to the transaction, and the persuasive reasoning of other courts that have addressed this or similar issues, we conclude she has standing to bring a claim under the statute. See Athridge, 351 F.3d at 1176 (third-party beneficiary could properly bring CFA claim). We therefore reverse the trial court’s grant of summary judgment and remand this issue for further proceedings. Interpretation of Umbrella Policy ¶44 The Murrays next argue the trial court erred when it ruled that their $1,000,000 umbrella policy would have provided $1,000,000 of combined UM/UIM coverage rather than $2,000,000 ($1,000,000 for each type of coverage), but for Jones’s negligence. They point out that § 20-259.01(H) provides: “Uninsured and underinsured motorist coverages are separate and distinct and apply to different accident situations,” and argue that the court’s ruling that the “umbrella policy contained a combined $1,000,000 of UM and UIM coverage completely undercuts A.R.S. § 20-259.01(H).” ¶ 45 Jones responds that the $1,000,000 maximum combined UM/UIM benefit was clearly stated in the policy endorsement and lawful under the statute. He notes that had the Murrays purchased UM/UIM coverage on their umbrella policy, the terms would have been stated in policy endorsement Form E011 3d. ed., which provides in relevant part: For the additional premium paid, it is agreed that this policy will provide Uninsured and/or Underinsured Motorist Coverage(s) payable to you and any other insured under this policy, to the extent that either or both coverages are a part of the underlying insurance. The limit of liability for Uninsured/Under-insured Motorist Coverage is equal to the coverage limits shown in the Limits of Liability section of the policy Declarations Page. The Uninsured/Underinsured Motorist Coverage limit applicable in the event of an occurrence is not increased regardless of the number of covered autos, insureds, claims made or vehicles involved in the accident. Jones maintains that under the endorsement, “the Murrays would have been limited to a single limit of $1,000,000, ‘regardless of the number of autos ... claims made or vehicles involved in the accident’ ” and consequently “[t]he policy limits are the same regardless of the number of claims made or the vehicles involved.” This court reviews the interpretation of statutes and contracts de novo. See Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, ¶¶ 9, 11, 218 P.3d 1045, 1050-51 (App.2009). ¶ 46 Pursuant to § 20-259.01, when an insured purchases a primary automobile policy, the insurer must offer both UM and UIM motorist coverage in limits “not less than the liability limits for bodily injury,” and the coverages “are separate and distinct and apply to different accident situations.” As the Murrays note, courts have invalidated limit-of-liability provisions designed to reduce or eliminate UM/UIM coverage by setoffs or reductions when the insured has not been fully compensated. The Murrays argue that the same standards apply to umbrella policies. ¶ 47 Our supreme court “h[as] long held that exceptions to coverage not permitted by the [UMA] are void.” Taylor v. Travelers Indem. Co. of Am., 198 Ariz. 310, 315, 9 P.3d 1049, 1054 (2000). The statute, however, expressly exempts insurers from offering UM or UIM coverage under an umbrella policy. See § 20-259.01(L). Subsection L specifies: “An insurer is not required to offer, provide or make available coverage conforming to this section [UM and UIM coverage] in connection with any ... umbrella policy____” Umbrella policies therefore are expressly excluded from the requirements of § 20-259.01 and the Murrays have not provided any authority indicating that principles derived from primary auto policy cases regarding UM/UIM setoffs or reductions apply equally to umbrella policies. ¶ 48 In their opening brief, the Murrays make a passing assertion that, even if permitted by statute, the umbrella policy endorsement did not include “an unambiguous offset provision,” “expressly reducing the limits of one coverage by the amount paid under the second coverage.” Only in their reply brief do they develop that argument, and at oral argument raised an additional one selectively focusing on wording in the endorsement that the umbrella policy would provide UM “and/or” UIM “coverage(s).” They contend that “[viewing UM and UIM as separate coverages,” the language of the endorsement providing “coverage limits are not increased ‘regardless of the number of covered autos, insureds, claims made or vehicles involved’ ” is to “prevent duplication of a single coverage.” This interpretation, however, is not readily supported by the plain language of the endorsement and context in which the selected words appear, see Emp’rs Mut. Cas. Co. v. DGG & CAR, Inc., 218 Ariz. 262, ¶ 24, 183 P.3d 513, 518 (2008) (where contract provisions plain and unambiguous, they must be applied as written, and court will not expand language “or add something to the contract which the parties have not put there”). Nor is such an interpretation required by the statute, because, as noted above, Arizona insurers are not required to provide any UM or UIM coverage as part of an umbrella policy. ¶ 49 The Murrays further assert that, as insureds, they could collect the limits of separate UM/UIM coverages “[a]bsent a valid limiting provision,” and contend that “Farmers’ endorsement does not limit collection of the entire limits of different coverages.” But they do not cite any authority requiring or inferring such a result and the cases they cite for an insured’s recovery “under both coverages” do not involve umbrella policies. See Am. Family Mut. Ins. Co. v. Sharp, 229 Ariz. 487, ¶ 17, 277 P.3d 192, 197 (2012); GEICO Gen. Ins. Co. v. Tucker, 71 F.Supp.3d 985, 988 (D.Ariz.2014). In view of the plain language of the umbrella policy endorsement and the dearth of support for the Murrays’ position, we conclude the trial court correctly ruled that had the Murrays purchased UM/UIM coverage under their umbrella policy, they would have been limited to a combined total of $1,000,000 for both UM and UIM. Cross-Appeal ¶ 50 Jones argues on cross-appeal that the trial court erred by denying him summary judgment on all claims, based on his compliance with Arizona’s UM/UIM Act, § 20-259.01. In his summary judgment motion, Jones pointed out that the Murrays had repeatedly declined to increase their UM/ UIM limits to match their liability limits and did so on forms approved by the DOI, as required by § 20-259.01. He noted that the forms explained the purpose of the coverage and provided the insureds the option to purchase UM/UIM coverage up to their liability limits. He identified one such form, a 1998 form initialed by Marcia Murray, describing UM/UIM coverage, in part, as follows: It’s your choice whether to buy uninsured motorist or underinsured motorist coverages. Uninsured motorist coverage pays for medical expenses, lost wages, and pain and suffering caused by an uninsured driver, a hit-and-run driver or a miss-and-run driver. Underinsured motorist coverage increases your coverage for medical expenses, lost wages, and pain and suffering caused by a driver who doesn’t have enough insurance to pay for these damages. Based on his compliance with § 20-259.01, Jones argued he had met his duty to the Murrays as a matter of law. The trial court denied Jones’s motion, finding that the protection afforded to insurers under § 20-259.01 does not insulate an agent “giving ... bad advice.” After the conclusion of the Murrays’ case and again following the verdict, Jones moved for judgment as a matter of law on the same grounds, but both motions were denied. ¶ 51 Although an order denying summary judgment is generally not appealable, to avoid piecemeal litigation we may consider the merits of the motion and direct entry of summary judgment in Jones’s favor if he is “entitled to that as a matter of law and there are no genuine issues of material fact precluding it.” Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 7, 965 P.2d 47, 50 (App.1998); see also State Farm Mut. Auto. Ins. Co. v. Peaton, 168 Ariz. 184, 194, 812 P.2d 1002, 1012 (App.1990). Further, Jones preserved the issue for appeal by reasserting it in a motion for judgment as a matter of law. See John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208 Ariz. 532, ¶ 19, 96 P.3d 530, 537 (App.2004) (party seeking to preserve summary-judgment issue for appeal, “with a possible exception for a purely legal issue, must do so by reasserting it in a Rule 50 motion for judgment as a matter of law or other post-trial motion”). ¶ 52 The UMA requires insurers to offer UM and UIM coverage to their insureds and “creates a ‘safe harbor’ if the insured signs a [Department of Insurance (DOI) ]-approved form rejecting UM or UIM coverage.” Wilks v. Manobianco, 237 Ariz. 443, ¶ 7, 352 P.3d 912, 914 (2015). As to UM coverage, that act provides: Every insurer writing automobile liability or motor vehicle liability policies shall ... make available to the named insured thereunder and by written notice offer the insured and at the request of the insured shall include within the policy uninsured motorist coverage which extends to and covers all persons insured under the policy, in limits not less than the liability limits for bodily injury or death contained within the policy. The selection of limits or rejection of coverage by a named insured or applicant on a form approved by the [DOI] director is valid for all insureds under the policy. § 20-259.01(A). By providing that selection of limits or rejection of coverage on a DOI-approved form shall be “valid for all insureds under the policy,” the legislature sought to eliminate fact-intensive inquiries regarding whether the insurer had offered UM/UIM coverage. Ballesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz. 345, ¶ 20, 248 P.3d 193, 197 (2011). Insureds are bound by the DOI- approved form regardless of their subjective understanding of the form. See id. ¶¶ 14-17 (notice not required to be in Spanish). ¶ 53 In Wilks, our supreme court held that an insurance company’s compliance with the statute, by having its insured sign a DOI-approved form, does not bar a claim against the insurance agent for negligently failing to procure UIM coverage requested by the insured. 237 Ariz. 443, ¶¶ 10-11, 352 P.3d at 915-16. Jones argues that Wilks is distinguishable from the case at hand, noting that in that case, the plaintiff alleged the insurance agent failed to procure the UIM insurance she requested, while here the Murrays contend that Jones misled them as to the nature and importance of the UM/UIM coverage. He points out that the Wilks court emphasized “[a]n agent’s common law duty to its clients to procure requested UIM coverage ... remains distinct from the duties prescribed in § 20-259.01,” id. ¶ 11, and asserts “[ujnlike Wilks, allowing [the Murrays] to pursue a common law negligence claim against Jones runs directly contrary to the language and purpose of AR.S. § 20-259.01, which is intended to protect the insurer from after-the-fact inquiries concerning whether UM/UIM coverage was sufficiently offered by the insurer.” He further notes that in Wilks, the insurance company was dismissed from the action and consequently could not be held vicariously liable for the agent’s alleged negligence, unlike in this case. ¶ 54 The Wilks court observed that “completing the DOI-approved form eliminates fact questions concerning ‘whether UM/UIM coverage was sufficiently offered’ by the insurer and “whether the terms of the offer were understood.’ ” Id. ¶ 10, quoting Ballesteros, 226 Ariz. 345, ¶ 22, 248 P.3d at 198. Noting that the legislature had intended to “ ‘protect insurers from after-the-fact inquiries regarding the offer of coverage’” the court stated that while the act bars inquiries related to the insurer’s offer of UM and UIM coverage, “[fjactual inquiries related to other types of alleged negligence or wrongdoing are neither expressly nor implicitly barred.” Id., quoting Ballesteros, 226 Ariz. 345, ¶ 22, 248 P.3d at 198 (emphasis omitted). Here there is no dispute that the Murrays were offered UM and UIM coverage on a DOI-approved form, which they signed; the issue is whether they were affirmatively misled into signing it. The statute would work an inequity if the DOI-approved form could shield an agent from liability for having misled an insured to sign it, assuming arguendo that the statute applies to agents under the facts here. Because the issue is not whether the offer of UM and UIM insurance was made and sufficiently so, but whether Jones violated the applicable standard of care by providing the Murrays with misleading information about the coverage, which induced them to reject a higher level of UM and UIM coverage, we conclude the trial court did not err in denying Jones summary judgment on the Murrays claims based on § 20-259.01. Disposition ¶ 55 For the foregoing reasons, the trial court’s rulings are affirmed except with respect to the Murrays’ claims for emotional distress damages and statutory fraud, which rulings are reversed. . For clarity and convenience, we will use the Murrays’ first names when referring to them individually. . Auto policy limits are expressed as two numbers, e.g., 250/500K. The first number is the maximum amount the policy’s coverage will pay per person in an accident and the second number is the maximum the policy will pay per accident. . For convenience, we will refer to appellees Jones, the Randy Jones Insurance Agency, Farmers and Foremost collectively as "Jones.” . This is the maximum amount of UM/UIM benefits the Murrays could have purchased under their Farmers’ policies: UM Claimed UIM Claimed Total Claimed Farmers $250,000 $250,000 $ 500,000 Foremost $250,000 $250,000 $ 500,000 Farmers Umbrella $1,000,000 combined $1,000,000 Total Claimed $2,000,000 Total Received ($110,000) Potential Damages 1,890,000 . The Murrays requested the court reinstruct the jury by directing them to find for the defendants or for the Murrays "in the amount of [$]890[,000] or [$] 1,890,000,” amounts that would correspond to the evidence and argument presented at trial. Jones responded that if the court told the jury "you have to go back and reach a verdict that’s based on one of these numbers, it’s purely a comment on the evidence.” . At oral argument, the Murrays questioned the relevance of Gastelum, pointing out it was decided before the Arizona Rules of Civil Procedure were promulgated in 1956. We note however that in Gastelum, our supreme court applied paragraph 597 of the 1913 Civil Code, whose pertinent language is nearly identical to Rule 59(h), quoted above. 36 Ariz. at 124-25, 283 P. at 725. We are therefore unconvinced by the Murrays’ argument that Gastelum is outdated and lacks relevance following the promulgation of Rule 59(h). . The Murrays point out that Rule 59(h) provides ”[i]f a new trial is ordered because the damages are excessive or inadequate and granted solely for that reason, the verdict shall be set aside only in respect of the damages, and shall stand in all other respects.” As our supreme court noted in Gastelum, however, this provision "does not authorize the court in the exercise of its discretion to grant a new trial of the issue of damages alone when it is clear that a retrial of that issue disassociated from that of liability will not be fair to the defendant.” 36 Ariz. at 125, 283 P. at 725. .As discussed later, the Murrays contend their maximum UM/UIM benefit under their policies was actually three million dollars. . While we acknowledge the Murrays’ arguments regarding judicial economy and fairness—in that they were not responsible for necessitating the new trial—again, given the irrational verdict and the trial court’s observations, we cannot simply assume, as the Murrays suggest, that the verdict was the result of the jury’s misunderstanding the evidence or miscalculating the award. As noted above, any doubts as to whether prejudice would result from a limited trial should be resolved in favor of a new trial on all the issues. See Styles, 185 Ariz. at 451, 916 P.2d at 1167. . Before trial, the Murrays conceded the statute of limitation had run on Robert and Marcia’s statutory fraud claims. . As the parties do not argue there is any appreciable difference between the insurance fraud statute and the consumer fraud statute in the current context and rely solely on case law involving the consumer fraud statute, we evaluate that statute exclusively. . Although § 44-1522 does not use the term "consumer,” the section is within article 7, titled "Consumer Fraud,” and the term has previously been read into the section by this court. See Flower World of Am., Inc. v. Wenzel, 122 Ariz. 319, 321, 594 P.2d 1015, 1017 (App.1978); Sullivan, 231 Ariz. 53, ¶38, 290 P.3d at 454; Hambicki, 183 Ariz. at 88, 900 P.2d at 1224. . Umbrella coverage " 'applies when the same insured has purchased underlying coverage for the same risk' ” and " 'provides, for a modest premium, coverage against catastrophic losses that exceed the limits of the underlying coverage.’ " Johnson v. Cont’l Ins. Co., 198 Ariz. 160, ¶ 13, 7 P.3d 966, 968 (App.2000) (emphasis omitted), quoting St. Paul Fire & Marine Ins. Co. v. Gilmore, 168 Ariz. 159, 162, 812 P.2d 977, 980 (1991). Benefits under the policy are paid only after the primary coverage limits of the same insured have been exhausted. Id. . As stipulated by the parties in their joint pretrial statement. . See Cundiff v. State Farm Mut. Auto. Ins. Co., 217 Ariz. 358, ¶ 11, 15-16, 174 P.3d 270, 273-74 (2008); Taylor v. Travelers Indem. Co. of Am., 198 Ariz. 310, ¶ 16, 9 P.3d 1049, 1055 (2000); Spain v. Valley Forge Ins. Co., 152 Ariz. 189, 193-94, 731 P.2d 84, 88-89 (1986); Calvert v. Farmers Ins. Co. of Ariz., 144 Ariz. 291, 297, 697 P.2d 684, 690 (1985). . We generally do not address arguments made for the first time in a reply brief or at oral argument but, in our discretion, do so here. See, e.g., State v. Shipman, 208 Ariz. 474, n. 2, 94 P.3d 1169, 1171 n. 2 (App.2004); Mitchell v. Gamble, 207 Ariz. 364, ¶ 16, 86 P.3d 944, 949 (App.2004). . Section (B) imposes the same requirements for UIM coverage. See § 20-259.01(B). . Jones concedes that "the Wilks Court ... addressed the fact that A.R.S. § 20-259.01 does not mention 'agents’ and, therefore, should not be interpreted to protect them to the same extent as the insurer,” but asserts that because Wilks "did not rest its decision solely on the absence of the word ‘agent’ in the statute, in a case like the present one, the Court may extend protection to an agent who complies with the statutory requirement of obtaining the insured’s signature on a DOI-approved UM/UIM selection form.” He asserts, "[t]his is particularly true, when, as here, the plaintiff seeks to hold the insurance company vicariously liable for the agent's actions.” Under the circumstances of this case, however, we find it unnecessary to address Jones’s argument that compliance with § 20-259.01 could shield agents, and not only insurance companies, from liability.

OPINION JOHNSEN, Judge: ¶ 1 John Alden Turner appeals the revocation of his probation, arguing a statute that allows the court to extend probation when a defendant has failed to pay restitution does not allow the court to extend conditions of probation unrelated to restitution. Because Turner misconstrues the statute and because he had proper notice of the extension, we affirm the revocation. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Turner pled guilty to attempted fraudulent schemes and artifices, a Class 3 felony. The superior court suspended his sentence and placed him on supervised probation for five years. Before Turner’s probation expired, his probation officer filed a petition to extend probation, alleging Turner had failed to pay $65,988 in restitution. Pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-902(C) (2016), the court found Turner still owed restitution and extended his probation for five years. Two years later, Turner’s probation officer filed a petition to revoke probation, alleging Turner had failed to comply with probation conditions unrelated to restitution. After Turner admitted one of the violations, the court continued him on supervised probation for 54 months. ¶ 3 About six months later, Turner’s probation officer filed another petition to revoke, alleging Turner had violated several conditions of probation, including his restitution obligation. Following a hearing, the court found the State had failed to prove Turner had violated the restitution-related condition, but had proven other violations. The court then revoked Turner’s probation and sentenced him to two years in prison. ¶ 4 Turner timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12- 120.21(A)(1) (2016), 13-4031 (2016) and -4033 (2016). DISCUSSION A. Section 13-902(C). ¶ 5 Turner argues that when the court exercises its power to extend probation under A.R.S. § 13-902(C), it may extend only the condition requiring payment of restitution, not the other conditions of probation. He argues that, having extended his probation under § 13-902(C), the court lacked subject-matter jurisdiction to revoke his probation for a violation of a condition unrelated to restitution. ¶ 6 As Turner contends, once probation has expired, the court lacks jurisdiction to revoke probation. State v. Chacon, 221 Ariz. 523, 526, ¶ 6, 212 P.3d 861, 864 (App.2009). A question about subject-matter jurisdiction may be raised at any time. Id. at 525-26, ¶ 5, 212 P.3d at 863-64. We review issues of statutory interpretation de novo. State v. Barnett, 209 Ariz. 352, 354, ¶ 7, 101 P.3d 646, 648 (App.2004). “The primary principle of statutory interpretation is to determine and give effect to legislative intent.” Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 874 (1991). We first look to the language of the statute to determine the legislature’s intent. United Dairymen of Ariz. v. Rawlings, 217 Ariz. 592, 596, ¶ 12, 177 P.3d 334, 338 (App.2008). “If the language of a statute is clear and unambiguous, we must give it effect without resorting to any rules of statutory construction.” State v. Johnson, 171 Ariz. 39, 41, 827 P.2d 1134, 1136 (App.1992); see also Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991) (“[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.”). If a statute is ambiguous, we consider the statute’s “context, subject matter, historical background, effects and consequences, and spirit and purpose.” State v. Ross, 214 Ariz. 280, 283, ¶ 22, 151 P.3d 1261, 1264 (App.2007) (quoting Hughes v. Jorgenson, 203 Ariz. 71, 73, ¶ 11, 50 P.3d 821, 823 (2002)). ¶ 7 Section 13-902(C) states: When the court has required, as a condition of probation, that the defendant make restitution for any economic loss related to the defendant’s offense and that condition has not been satisfied, the court at any time before the termination or expiration of probation may extend the period within the following limits: 1. For a felony, not more than five years. 2. For a misdemeanor, not more than two years. By its plain language, § 13-902(C) thus authorizes the court to extend the “period” of probation when a defendant has failed to make restitution and limits the length of any such extension. ¶ 8 Turner does not dispute that because he had failed to pay restitution, the superior court was authorized to extend the period of his probation. Nor does he argue that, by extending his obligation to pay restitution by five years, the court exceeded its statutory authority. Instead, Turner argues that when a defendant fails to pay restitution, § 13-902(C) allows the court to extend the “period” of probation only with respect to the restitution condition. Turner contends that if the legislature intended to authorize the court to extend the other conditions of probation solely because a defendant has failed to pay restitution, “it could have, and would have, so stated.” ¶ 9 Contrary to Turner’s contention, the statute’s language, context and purpose make clear that the legislature intended § 13-902(C) to allow the court to extend all of the conditions of probation for the designated period. ¶ 10 Chapter 9 of Title 13 generally governs probation for eligible defendants. Section 13-901, the first statute within Chapter 9, begins: If a person who has been convicted of an offense is eligible for probation, the court may suspend the imposition or execution of sentence and, if so, shall without delay place the person on ... probation ... on such terms and conditions as the law requires and the court deems appropriate[.] A.R.S. § 13-901 (A). Under this provision, the legislature has given the court broad power to impose on a defendant “such terms and conditions as the law requires and the coui’t deems appropriate[.]” Further, sub-part (C) of § 13-901 provides that after imposing probation, “[t]he court, in its discretion, may issue a warrant for the rearrest of the defendant and may modify or add to the conditions” of the probation. See State v. Quintana, 195 Ariz. 325, 328, 987 P.2d 811, 814 (App.1999) (“Upon a finding that Defendant has violated his probation, the court may ‘modify or add to’ the conditions of probation.”); Burton v. Superior Court, 27 Ariz.App. 797, 800, 558 P.2d 992, 995 (1977) (court may “modify or revoke the term of probation”). As for the length of the period of probation a court may impose, as applicable here, subpart (B) of § 13-901 states that “[t]he period of probation shall be determined according to section 13—902[.]” ¶ 11 Turning to that separate provision, § 13-902 is entitled “Periods of probation; monitoring; fees.” See Minjares v. State, 223 Ariz. 54, 62, ¶34, 219 P.3d 264, 272 (App.2009) (“We also may consider a title to aid in interpretation.”). Nowhere in § 13-902 did the legislature refer to the power of the court to impose or modify any condition of probation; the statute instead pertains entirely to the length of time—the “period”— of probation the court otherwise is authorized to impose. The respective subparts of § 13-902 define the maximum period of probation a court may impose on a person convicted of various crimes or classes of crimes. See, e.g., § 13-902(A), (B), (E)-(G). Subpart (C), at issue here, authorizes the court to extend the “period” of probation when a probationer has failed to pay restitution. ¶ 12 We find no support in the language or context of the respective statutes for Turner’s argument that when the legislature authorized the court to extend the period of probation for a defendant’s failure to pay restitution in § 13-902(C), it impliedly limited the broad discretion it granted the court in § 13-901(A) and (C) to determine the appropriate conditions of probation. See State v. Sweet, 143 Ariz. 266, 270, 693 P.2d 921, 925 (1985) (under “accepted rule of statutory construction” of in pari materia, court may consider other relevant statutes). Instead, by authorizing the court to extend the “period” of probation, the legislature intended in § 13-902(C) to permit the court to extend the duration of all of the conditions of a defendant’s probation, not only the condition requiring restitution. B. Alleged Due-Process Violation. ¶ 13 Relying on State v. Korzuch, 186 Ariz. 190, 920 P.2d 312 (1996), Turner next argues the superior court unconstitutionally revoked his probation because he had no notice that when his probation was extended, all the original conditions remained in place, including those unrelated to restitution. Because Turner raises this issue for the first time on appeal, we review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005). To warrant reversal, Turner must show fundamental error occurred and caused him prejudice. Id. at 567, ¶ 20, 115 P.3d at 607. ¶ 14 Due process requires notice to a defendant before his probation period is extended. Korzuch, 186 Ariz. at 193, 920 P.2d at 315. Turner contends that the order extending his probation did not give him notice that the extension applied to the non-restitution conditions. The order extending Turner’s probation stated: Turis ordered, pursuant to A.R.S. § 13-902(C), that the defendant’s probation term is extended for five years, to expire October 10, 2014. The defendant has received notice, been advised, and waives his right to an attorney, right to a hearing, and is in agreement with the extension of the probation term. IT IS FURTHER ORDERED, that the outstanding balance of $65,988.00 be paid in monthly installments of $1,000.00 commencing October 1, 2009, until paid in full. ¶ 15 The language of the order does not support Turner’s interpretation. The order first states that Turner’s “probation term is extended for five years.” Depending on the context, a probation “term” might mean ei ther a condition of probation (i.e., a “term of probation”) or the period (duration) of probation. Here, however, the words “extended” (“probation term is extended for five years”) and “extension” (“extension of the probation term”) make clear that the court meant “term” to refer to a period of time, i.e., the duration of probation, rather than any condition of probation. See Random House Webster’s Unabridged Dictionary 1958 (2001) (defining “term” as “the time or period through which something lasts” and “a period of time to which limits have been set”; “terms” means “conditions or stipulations limiting what is proposed to be granted or done”). ¶ 16 Finally, Turner’s actions following the extension demonstrate he understood that all the conditions of his probation had been extended. As noted above, two years after the court extended Turner’s probation pursuant to § 13-902(C), Turner admitted he had failed to comply with a condition of his probation requiring him to submit to drug and alcohol testing, an admission reflecting that he knew that he remained subject to conditions of probation other than the obligation to pay restitution. Additionally, following that violation hearing, Turner signed a document titled Uniform Conditions of Supervised Probation, which listed all of his various probation conditions, a document titled Special Conditions of Probation, and two Implementation of Conditions of Probation, all of which explained Turner’s obligation to comply with specified probation conditions other than restitution. Thus, the record reveals that, contrary to his current contention, he knew that all the prior conditions of probation remained in effect. CONCLUSION ¶ 17 For the foregoing reasons, we affirm the superior court’s judgment revoking Turner’s probation and imposing a sentence of incarceration. . On review, we view the facts in the light most favorable to sustaining the judgment and resolve all inferences against Turner. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). . Absent material revision after the date of an alleged offense, we cite a statute's current version. . To the extent Turner argues the court did not adequately explain the probation extension orally to him during the hearing, he has failed to provide a transcript of that hearing to support his argument. See State v. Kerr, 142 Ariz. 426, 430, 690 P.2d 145, 149 (App.1984) (“It is the responsibility of defense counsel to ensure that any document necessary to defendant's argument is in the record on appeal.”).

OPINION JONES, Judge: ¶ 1 Theodore Panos challenges the superi- or court’s imposition of a monthly probation service fee as a condition of his unsupervised probation. Panos argues Arizona Revised Statutes (AR.S.) section ÍS^OIJA), which requires the fee, is unconstitutional under both the U.S. and Arizona Constitutions. For the reasons that follow, we find the statute to be constitutional and affirm the imposition of the fee. FACTS AND PROCEDURAL HISTORY ¶ 2 The State initially charged Panos in the superior court with two class six felonies: possession or use of marijuana in violation of AR.S. § 13-3405(A)(1) and possession of drug paraphernalia in violation of AR.S. § 13-3415(A). The State later moved to designate both counts as class one misdemeanors. The court granted the motion and, following a bench trial, found Panos guilty as to each count. The court sentenced Panos to two concurrent terms of nine months’ unsupervised probation and, as a condition of probation, ordered Panos to pay a monthly probation service fee of sixty-five dollars pursuant to A.R.S. § 13-901(A). Panos timely appealed. We have jurisdiction pursuant to AR.S. §§ 12-120.21(A)(1), -2101(A)(1), 13-4031, and -4033(A)(4). DISCUSSION ¶ 3 The probation statute provides in relevant part: “When granting probation to an adult the court, as a condition of probation, shall assess a monthly fee of not less than sixty-five dollars.” A.R.S. § 13-901(A). For probation imposed in the superior court, AR.S. § 13-901(A) makes no distinction between supervised and unsupervised probation. For probation imposed in a justice or municipal court, however, “the fee shall only be assessed when the person is placed on supervised probation.” Id. ¶4 All such probation service fees paid into the superior, justice, and municipal courts are ultimately deposited into the “adult probation services fund” and “used to supplement monies used for the salaries of adult probation and surveillance officers and for support of programs and services of the superior court adult probation departments.” Id.; see also Ariz. Code of Jud. Admin. § 6-206(C) (“The probation fees account within the adult probation services fund is to be used to pay probation employee salaries and employee-related benefits and to otherwise improve, maintain, or expand adult probation services within the county.”). ¶ 5 Panos argues AR.S. § 13-901(A) violates (1) the equal protection guarantees found in the Fourteenth Amendment to the U.S. Constitution, and Article 2, Section 13, of the Arizona Constitution; and (2) Article 4, Part 2, Section 19(7), of the Arizona Constitution, which prohibits “special laws” for “[pjunishment of crimes and misdemeanors.” Interpretation of a statute is a question of law, which we review de novo. See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227 (1996) (citing Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500 (1994)). “[W]e have an obligation to interpret statutes so as to uphold their constitutionality, where possible,” State v. Getz, 189 Ariz. 561, 565, 944 P.2d 503 (1997) (citing Business Realty of Ariz., Inc. v. Maricopa Cnty., 181 Ariz. 551, 559, 892 P.2d 1340 (1995)), and we strongly presume a statute to be constitutional, State v. Tocco, 156 Ariz. 116, 119, 750 P.2d 874 (1988) (citing State v. Ramos, 133 Ariz. 4, 6, 648 P.2d 119 (1982)). The challenger of a statute’s constitutionality bears the burden to prove it is unconstitutional. Tocco, 156 Ariz. at 119, 750 P.2d 874 (citing Eastin v. Broomfield, 116 Ariz. 576, 580, 570 P.2d 744 (1977)). I. Equal Protection ¶ 6 Panos argues A.R.S. § 13-901 (A) violates state and federal guarantees of equal protection because it requires unsupervised probationers convicted in superior court to pay a monthly probation service fee, yet exempts unsupervised probationers convicted in justice or municipal courts. Panos argues that all unsupervised probationers are “similarly situated,” regardless of the court of conviction, and that the statute discriminates against unsupervised probationers convicted in the superior court. He asserts that any distinction made regarding the courts of conviction is arbitrary, capricious, and discriminatory. ¶ 7 The effects of the federal and state equal protection guarantees “are essentially the same,” State v. Lowery, 230 Ariz. 536, 541, ¶ 13, 287 P.3d 830 (App.2012) (quoting State v. Bonnewell, 196 Ariz. 592, 596, ¶ 15, 2 P.3d 682 (App.1999)), each generally requiring the law treat all similarly situated persons alike, Vong v. Aune, 235 Ariz. 116, 123, ¶ 32, 328 P.3d 1057 (App.2014) (quoting Wigglesworth v. Mauldin, 195 Ariz. 432, 438, ¶ 19, 990 P.2d 26 (App.1999)). These guarantees do not prohibit all classification of persons, however, but only those which are “unreasonable.” Lowery, 230 Ariz. at 541, ¶ 13, 287 P.3d 830 (citing Schecter v. Killingsworth, 93 Ariz. 273, 281, 380 P.2d 136 (1963)). ¶8 Because Panos concedes he is not a member of a suspect class and there is no fundamental right at issue, we will uphold the statute so long as it is “rationally related to a legitimate government purpose.” Id. (quoting State v. Navarro, 201 Ariz. 292, 298, ¶ 25, 34 P.3d 971 (App.2001), and citing Governale v. Lieberman, 226 Ariz. 443, 448, ¶ 13, 250 P.3d 220 (App.2011)). The rational basis test does not require the legislature to choose “the least intrusive, nor most effective, means of achieving its goals.” State v. Hammonds, 192 Ariz. 528, 532, ¶ 15, 968 P.2d 601 (App.1998) (citing Ohio Bureau of Emp’t Servs. v. Hodory, 431 U.S. 471, 491, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977)). Nor does it require “[ajbsolute equality and complete conformity of legislative classifications.” City of Tucson v. Grezaffi, 200 Ariz. 130, 137, ¶ 18, 23 P.3d 675 (App.2001) (quoting Rossie v. State, 133 Wis.2d 341, 395 N.W.2d 801, 807 (App.1986)). Thus, “[e]ven if the classification results in some inequality, it is not unconstitutional if it rests on some reasonable basis.” Fisher v. Edgerton, 236 Ariz. 71, 80, ¶ 28, 336 P.3d 167 (App.2014) (quoting Church v. Rawson Drug & Sundry Co., 173 Ariz. 342, 351, 842 P.2d 1355 (App.1992)). ¶ 9 In sum, the challenger of a statute’s constitutionality may overcome a presumption that the statute is rational “only by a clear showing of arbitrariness or irrationality.” Hammonds, 192 Ariz. at 531, ¶ 9, 968 P.2d 601 (citing Lerma v. Keck, 186 Ariz. 228, 233, 921 P.2d 28 (App.1996)). Only if a statute is “ ‘wholly irrelevant’ to the achievement of a legitimate governmental objective” will it violate equal protection. Id. at 532, ¶ 15, 968 P.2d 601 (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)); see also Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 557, 637 P.2d 1053 (1981) (noting statutes with a “conceivable rational basis” that further a legitimate governmental interest will be upheld); Church, 173 Ariz. at 350, 842 P.2d 1355 (noting courts may “consider ‘either the actual basis on which the legislature acted or any hypothetical basis on which it might have acted’”) (quoting Carr v. Beech Aircraft Corp., 758 F.Supp. 1330, 1334 (D.Ariz.1991)). ¶ 10 Applying these standards, we conclude the statute to be constitutional. Arizona law requires that the presiding judge of each county’s superior court appoint a chief adult probation officer who, “with the approval of the presiding judge of the superi- or court, shall appoint deputy adult probation officers and support staff as ... necessary.” AR.S. § 12-251(A). The officers and other staff have extensive duties including the provision of services to and supervision of those convicted and placed on probation. See AR.S. §§ 12-251(A), -253. The purpose of the fee is to help pay for the services probation officers and staff provide and to maintain, expand, and improve those services. AR.S. § 13—901(A); Ariz. Code Jud. Admin. § 6-209. Further, the fees deposited into the probation fund strengthen “the criminal justice system’s ability to finance its probation services” and benefit a defendant’s rehabilitation. State v. Mears, 134 Ariz. 95, 98, 654 P.2d 29 (App.1982). We therefore conclude the probation service fee requirements and exemptions contained in A.R.S. § 13-901(A) are rationally related to, and help achieve, a legitimate governmental objective. ¶ 11 That the term of probation imposed by the superior court on a defendant may be “unsupervised” is irrelevant. Conditions of Panos’ probation require him to report to the adult probation department at specified times and continue to report as directed, advise the department when he completes various conditions of probation, notify the department of various changes in his status, participate in a drug education program or provide community service, and undergo any other substance abuse treatment or counseling the department orders. He thus requires services and monitoring—costs incurred by the county’s probation department which he may rationally be required to reimburse. ¶ 12 Additionally, there is a rational explanation for unsupervised probationers from justice and municipal courts not being assessed the fee: these courts are not statutorily required to pay for separate probation services. Rather, these courts may contract for such services to be provided to supervised probationers by the superior court’s probation department. See AR.S. § 12-251(A) (permitting probation services to “be provided by a county probation office to a municipal court through an intergovernmen tal agreement entered into by the respective county and municipality”); Ariz. Code Jud. Admin. § 6-209(D) (same), (E) (requiring a written agreement between limited jurisdiction courts and probation departments outlining the specific services the probation department will provide and the cost of those services). In the absence of such an agreement, justice or municipal courts may provide their own form of probation services. Under this circumstance, the superior court probation department provides no services nor otherwise incurs expense as a result of a justice or municipal court’s order of unsupervised probation, and it is reasonable for the legislature to exempt those probationers from the payment of a fee expressly designed to help reimburse and support the superior court's probation department. ¶ 13 These distinctions likewise dictate that Panos has failed to establish unsupervised probationers convicted in the superior, justice, or municipal courts are all similarly situated; unsupervised probationers whose convictions cause a superior court probation department to provide services and incur expenses are not similarly situated with unsupervised probationers whose convictions do not. ¶ 14 Although the direction provided within AR.S. § 13-901(A) may not result in absolute equality or complete conformity of legislative classifications, as noted above, neither is required under the equal protection guarantees of our constitutions. The probation service fees and fee exemptions in AR.S. § 13-901 (A) are rationally related to a legitimate governmental objective. Accordingly, imposing the monthly probation service fee upon an unsupervised probationer does not violate equal protection. II. Special Laws ¶ 15 Panos next argues AR.S. § 13-901(A) violates Article 4, Part 2, Section 19(7), of the Arizona Constitution because it constitutes a “special law” for “[p]unishment of crimes and misdemeanors.” Special laws favor one person or group over others by “granting them a special or exclusive immunity, privilege, or franchise.” Ariz. Downs, 130 Ariz. at 557, 637 P.2d 1053; see Gallardo v. State, 236 Ariz. 84, 88, ¶ 10, 336 P.3d 717 (2014) (citing Republic Inv. Fund I v. Town of Surprise, 166 Ariz. 143, 148-49, 800 P.2d 1251 (1990)). Panos argues AR.S. § 13-901(A) grants such privilege or immunity to unsupervised probationers convicted in justice and municipal courts by exempting them from the monthly probation service fee. ¶ 16 A law is permissible, if it meets the following criteria: (1) [T]he law must have “a rational relationship to a legitimate legislative objective,” (2) the classification the law makes must be legitimate, encompassing all members that are similarly situated, and (3) the classification must be elastic, allowing “other individuals or entities to come within” and move out of the class. Gallardo, 236 Ariz. at 88, ¶ 11, 336 P.3d 717 (quoting Republic Inv., 166 Ariz. at 149, 800 P.2d 1251). In applying these criteria, we conclude AR.S. § 13-901(A) does not unconstitutionally favor unsupervised probationers convicted in justice or municipal courts. ¶ 17 The first two criteria are met for the reasons discussed in Part I. The probation service fees and exemptions in AR.S. § 13-901(A) have a rational relationship to a legitimate governmental objective: providing and financing probation services. See supra ¶¶ 10-12. And, A.R.S. § 13-901(A) legitimately distinguishes between unsupervised probationers convicted in superior courts and unsupervised probationers convicted in justice or municipal courts. As noted above, unsupervised probationers convicted in the superior court still require the services of the superior court’s probation department and thereby generate associated expenses for those services. Unsupervised probationers in justice and municipal courts without agreements for adult probation services do not. See supra ¶ 13. ¶ 18 Finally, the classification contained in A.R.S. § 13-901(A) is elastic. Elasticity is established “when the statute looks to broader application in the future, no matter how imminent the application might be, and allows ‘persons, places, or things attaining the requisite characteristics’ to enter and those that ‘no longer have those eharacteris ties’ to leave the class.” Gallardo, 236 Ariz. at 93, ¶ 35, 336 P.3d 717 (quoting Republic Inv., 166 Ariz. at 150, 800 P.2d 1251, and citing Luhrs v. City of Phx., 52 Ariz. 438, 451, 83 P.2d 283 (1938), and Long v. Napolitano, 203 Ariz. 247, 258, ¶ 38, 53 P.3d 172 (App.2002)). As relevant here, any person may enter the class required to pay a monthly probation service fee under A.R.S. § 13-901(A) by becoming a probationer convicted in an Arizona court where a defendant’s conviction requires utilization of the county’s probation services department, and every person in the class of those paying a monthly probation service fee may leave the class by no longer being a probationer. See id. at ¶ 36 (finding elasticity requirement was met where counties can join the class by attaining a population size set forth in the statute and leave the class when the population falls below the stated size). That the crime one commits to gain entry into the class may also allow entry into another class, depending upon the nature of the court where probation is imposed, is irrelevant. The statute is “facially and functionally elastic,” id., and nothing about the law otherwise inhibits the entry into or exit from the class of persons required to pay a monthly probation service fee. CONCLUSION ¶ 19 Because A.R.S. § 13-901(A) does not violate equal protection and is not a special law, we conclude it is constitutional under both the U.S. and Arizona Constitutions and affirm the superior court’s imposition of the monthly probation service fee. . Absent material changes from the relevant date, we cite a statute's current version. . The superior court may impose a lesser fee if it determines the probationer is unable to pay the full amount, a circumstance Panos does not claim applies here. A.R.S. § 13-901(A).

OPINION OROZCO, Judge: ¶ 1 Pawn 1st, LLC (Pawn) appeals from the superior court’s judgment dismissing its complaint for special action review of a decision by the Board of Adjustment of the City of Phoenix (City) and its members (collectively, the Board) granting a variance to real party in interest William Jachimek, doing business as Central Pawn (Jachimek). Because we conclude that Jaehimek’s application for a variance to operate a pawn shop within 500 feet of a residential district does not meet the necessary requirements established by statute and ordinance, we reverse the ruling and remand. FACTS AND PROCEDURAL BACKGROUND ¶ 2 The underlying facts and procedural history of this case were stated in Pawn 1st, L.L.C. v. City of Phoenix, 231 Ariz. 309, 294 P.3d 147 (App.2013) (Pawn I). Briefly, Jaehimek entered into a lease with an option to purchase commercial property (the Property) zoned C-3 on the southwestern corner of McDowell Road and 32nd Street, intending to operate a pawn shop. Id. at 310, ¶ 2, 294 P.3d 147. The City of Phoenix Zoning Ordinance (Zoning Ordinance) requires that the exterior walls of a pawn shop business in a C-3 district be located at least 500 feet from a residential district. Phx., Ariz., Zoning Ordinance § 623.D.132.b (2016). The City’s Zoning Administrator denied Jachimek’s request for a variance from the 500-foot distance requirement, but on appeal, the Board approved the variance. Pawn I, 231 Ariz. at 310, ¶¶ 4-5, 294 P.3d 147. Pawn, a competing pawn shop business, filed a complaint in superior court for special action review of the Board’s decision. Id. at 310, ¶ 7, 294 P.3d 147. ¶ 3 In Pawn I, we reversed the superior court’s determination that Pawn lacked standing to bring a statutory special action challenging the Board’s grant of a variance to Jaehimek and we remanded for consideration of the special action. Id. at 313, ¶ 25, 294 P.3d 147. On remand, the superior court denied Pawn’s requested relief, finding that: the variance granted to Jaehimek was an area variance and not a use variance. The variance at issue was a deviation from the zoning ordinance that imposed a dimensional requirement for pawn shops, i.e. that the exterior walls of the building in which the pawn shop is located shall be at least five hundred (500) feet from a residential street. Section 623(D)(132) of the Phoenix Zoning Ordinance. This zoning ordinance did not prohibit pawn shops; for that reason, granting a variance was not a “use variance.” Because the Board of Adjustment is authorized to consider area variances, its decision to grant the area variance to Jaehimek was not ultra vires. For reasons fully stated in the written and oral arguments of Defendant City of Phoenix and Real Party in Interest Jaehimek, the Court finds that there is evidence to support the Board’s decision to grant the area variance. ¶ 4 The superior court affirmed the Board’s decision and entered judgment dismissing Pawn’s complaint with prejudice. Pawn appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (AR.S.) sections 12-120.21.Al and -2101.A.1 (West 2016). DISCUSSION I. Standard of Review ¶ 5 We review de novo issues involving the interpretation of a statute or a city ordinance. See Whiteco Outdoor Advert. v. City of Tucson, 193 Ariz. 314, 316-17, ¶ 7, 972 P.2d 647 (App.1998). We generally defer to the Board’s decision and presume it to be correct unless it is “not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.” A.R.S. § 12-910 E; see also Whiteco, at 317, ¶ 7, 972 P.2d 647. If the record contains credible evidence to support the Board’s decision, it must be affirmed. See Austin Shea (Ariz.) 7th St. and Van Buren, L.L.C. v. City of Phoenix, 213 Ariz. 385, 392, ¶ 29, 142 P.3d 693 (App.2006); Murphy v. Town of Chino Valley, 163 Ariz. 571, 574, 789 P.2d 1072 (App.1989). ¶ 6 However, as to issues of statutory interpretation, we are free to draw our own conclusions as to whether the Board properly applied the law. See Murphy, 163 Ariz. at 574, 789 P.2d 1072. Further, we may “substitute [our] judgment for the Board’s assessment of the legal effect of the underlying facts.” Whiteco, 193 Ariz. at 317, ¶ 7, 972 P.2d 647. “[We] may substitute our opinion for that of the superior court since we are reviewing the same record.” Arkules v. Bd. of Adjustment of Town of Paradise Valley, 151 Ariz. 438, 441, 728 P.2d 657 (App.1986). II. In Granting the Variance, the Board Did Not Make a Change in Permitted Usage ¶ 7 The Board or its Zoning Administrator “may not [m]ake any changes in the uses permitted in any zoning classification or zoning district.” A.R.S. § 9-462.06 H 1; Phx., Ariz., Zoning Ordinances §§ 303.B.2.a, 307.A.10.a. Pawn argues that Jachimek’s request for a variance is not an “area” variance as found by the superior court, but an unauthorized “use” variance because it allows the Property to be developed for an impermissible use; namely, the operation of a pawn shop within 500 feet of a parcel zoned residential. In contrast, the City, the Board and Jaehimek argue the variance is a permissible “area” variance. ¶8 All parties cite out-of-state cases in support of their respective arguments about whether a distance separation limitation, such as the 500-foot requirement here, constitutes a “use” or “area” variance. Although the terms “use variance” and “area variance” are not embodied in the statutes or ordinances, we find those terms helpful in exploring and explaining the relevant distinctions. ¶ 9 The distinctions between “area” and “use” variances stem from Ivancovich v. City of Tucson Bd. of Adjustment, in which this court addressed the propriety of a 1968 variance request and discussed the distinction at length. 22 Ariz.App. 530, 531-32, 529 P.2d 242 (1974). In Ivancovich, we stated: A ‘use’ variance is one which permits a use of land other than that allowed by the zoning ordinance. Thus, a variance which permits a commercial use in a residential district is a ‘use’ variance. ‘Area’ variances involve such matters as setback line, frontage requirements, height limitations, lot size restrictions, density regulations and yard requirements. Id. at 536, 529 P.2d 242 (internal citation omitted). ¶ 10 Even though A.R.S. § 9-462.06 H 1 went into effect on January 1, 1974, it was not addressed in Ivancovich. The issue in this case is whether, in approving the variance requested by Jaehimek, the Board made a change in the use permitted in the zoning. ¶ 11 Here, the Property is zoned as a C-3 commercial district, and the Zoning Ordinance allows all uses permitted in a C-2 commercial district in a C-3 commercial district. Phx., Ariz., Zoning Ordinance § 624.D; see also Desruisseau v. Isley, 27 Ariz.App. 257, 261, 553 P.2d 1242 (1976) (stating that “it is true that a C-3 district allows all uses permitted in a C-2 district”) (disapproved of on other grounds by Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1, 9, 712 P.2d 914 (1985)). Permitted uses in a C-2 commercial district include: “Pawn Shop. Subject to the following limitations ... [t]he exterior walls of the building in which the use is located shall be at least five hundred (500) feet from a residential district.” Phx., Ariz., Zoning Ordinance § 623.D.132.b. Under the plain language of the Zoning Ordinance, operation of a pawn shop is a permitted use in a C-2 commercial district, subject only to a distance limitation. Id. The Board’s decision to grant the variance to operate a pawn shop within 500 feet of a residential district in a C-3 commercial district did not allow a use not permitted in the zoning classification. ¶ 12 Pawn also argues that an area variance only deals with intra-property issues or intra-property dimensional requirements. Specifically, “the variance at issue does not seek to modify set-back lines, frontage requirements, height limitations, lot-size restrictions, density regulations, or yard requirement.” Thus, the distance separation setback in this ease cannot be an area variance. However, as the City contends, the setback under Phx., Ariz., Zoning Ordinance § 623.D.132: is measured from the walls of the pawn shop ... to another parcel. [Tjhis 500 foot distance separation is not materially different than the setback requiring a house to be 35 feet from the property line of the neighboring parcel: each sets a particular distance between the exterior walls of a lawful use within the parcel to the property line of another lawful use. We agree with the City that, “either the property owner’s intended use is allowed within the zoning district where the property is found, or it is prohibited within the zoning district. There are no degrees of prohibition on the uses.” Therefore, we reject Pawn’s argument that the requested variance is a “use variance” because a pawn shop is an allowed use within a C-3 zoning district, irrespective of the 500-foot distance requirement. III. The Board Improperly Granted the Variance ¶ 13 Pawn also argues the Board exceeded its jurisdiction and authority in failing to find the necessary criteria required by statute and ordinance before approving the variance. We agree. ¶ 14 The Board “has no powers except those granted by the statutes creating it” and “its power is restricted to that granted by the zoning ordinance in accordance with the statute.” Arkules, 151 Ariz. at 440, 728 P.2d 657. The Board has no jurisdiction to act contrary to law. Id. If the Board’s decision exceeds the scope of its powers, it is “ultra vires and void.” Id. (quoting Applestein v. Osborne, 156 Md. 40, 42, 143 A. 666 (App.1928)). ¶ 15 Pursuant to AR.S. § 9-462.06, which created the Board: G. A board of adjustment shall: 2. Hear and decide appeals for variances from the terms of the zoning ordinance only if, because of special circumstances applicable to the property, including its size, shape, topography, location, or surroundings, the strict application of the zoning ordinance will deprive the property of privileges enjoyed by other property of the same classification in the same zoning district. Any variance granted is subject to conditions as will assure that the adjustment authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which the property is located. H. A board of adjustment may not: 2. Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner. See also Phx., Ariz., Zoning Ordinances §§ 303.B.2,307.A.10.b. ¶ 16 Further, the Zoning Ordinance provides that a Zoning Administrator shall: 9. Authorize upon application and hearing such variance from the terms of this ordinance as will not be contrary to the public interest, when owing to special conditions, a literal enforcement of any provisions of the ordinance would result in unnecessary property hardship. A variance shall not be authorized unless the Zoning Administrator shall find upon sufficient evidence: a.That there are special circumstances or conditions applying to the land, building, or use referred to in the application and which do not apply to other properties in the district; and b. That such special circumstances were not created by the owner or applicant; and c. That the authorizing of the variance is necessary for the preservation and enjoyment of substantial property rights; and d. That the authorizing of the application will not be materially detrimental to persons residing or working in the vicinity, to adjacent property, to the neighborhood, or to the public welfare in general. Id. § 307.A.9. The word “shall” as used in the ordinance “is mandatory and not permissive.” Id. § 201. ¶ 17 The Board’s “power and authority to grant a variance is to be exercised sparingly and under exceptional circumstances, if the integrity of the zoning code is to be maintained. To permit any other course would render naught and useless the legislative purpose in enacting the zoning code.” Ivancovich, 22 Ariz.App. at 535, 529 P.2d 242. ¶ 18 At the public hearing on Jachimek’s variance application, Jachimek’s representative told the Board that the Property had been used for many years as a strip club, a non-conforming use, and that the owners of the Property wanted to “get rid of this nonconforming use.” Jaehimek’s representative also told the Board that because of “eminent domain proceedings on this particular property, the corner has been reduced to 12,000 square feet, they have lost significant parking and access, and the property will have no setbacks, all of which create a significant deleterious affect [sic] to this property and occur by virtue of this condemnation.” Jaehimek’s representative told the Board that a survey “of twelve surrounding intersections” showed that “[n]one of the C-3 corner parcels was less than 12,000 square feet. The size of the parcel severely limited the types of uses they can locate on the property.” ¶ 19 Further, Jachimek’s representative stated that [e]minent domain took away a substantial portion of the property along McDowell Road and 32nd Street resulting in that building having zero setbacks directly abutting the public sidewalk---- The proximity of those sidewalks creates esthetic [sic] drawbacks as well as security risks and no other C-3 of the ones that I’m showing you [referring to the survey] had that kind of situation. Jachimek’s representative urged that the discontinuation of the nonconforming use and the effects of the eminent domain action constituted “special circumstances” warranting a variance from the distance limitation applicable to pawn shops. ¶ 20 A representative from the City advised the Board that there were no special circumstances in this case because Jachimek chose this location on which to operate a pawn shop, despite the ordinance distance limitation, and, therefore, recommended the Board deny the variance. ¶21 After hearing from the parties and members of the public, the Board’s chairman moved to overturn the Zoning Administrator’s ruling and approve the variance, finding that: [T]here are special circumstances that apply to the land, namely unique nature of the discontinuance of the non-conforming use on the property, the fact that it is substantially impacted by prior eminent domain activities in a manner that is dissimilar to other properties in a reasonably close radius including set back and the fact that there’s less than 12,000 total feet available, there are restrictive parking requirements; that these special circumstances were not created by the owner/applicant and were rather in part created by growth in the city itself; that it is necessary for the preservation and enjoyment of substantial property rights given the restrictions of the property and the current dormancy of any other business on the site, this particular place on the site, that authorizing it will not be materially detrimental to persons residing or working in the vicinity to adjacent property, neighborhood, or public welfare in general. The Board approved the motion. ¶ 22 Pawn argues the Board could not grant the variance unless special circumstances or hardships applying to the Property (1) “prevent reasonable use of the property in the absence of a variance,” (2) the “zoning ordinance precluded] the use of the property in question for any purpose for which it is reasonably adapted,” and (3) the “situation or condition of the property in question[] is extraordinary and exceptional and application of the zoning requirement would cause peculiar and exceptional practical difficulties or exceptional and undue hardship.” ¶ 23 To grant a variance, the Board must find that “because of special circumstances applicable to the property, including its size, shape, topography, location, or surroundings, the strict application of the zoning ordinance will deprive the property of privileges enjoyed by other property of the same classification in the same zoning district.” A.R.S. § £M62.06 G 2; see also Haynes v. City of Tucson, 162 Ariz. 509, 510, 784 P.2d 715 (App.1989) (stating, “we are required to find that strict application of the zoning ordinance would deprive the property of privileges enjoyed by other property of the same class in the same district”). Under the Zoning Ordinance, a variance is not authorized unless “there are special circumstances or conditions applying to the land, building, or use referred to in the application and which do not apply to other properties in the district.” Phx., Ariz., Zoning Ordinance § 307.A.9.a. Neither A.R.S. § 9-462.06 G 2 nor § 307.-A.9.a of the Zoning Ordinance defines “special circumstances,” but Arizona case law notes that the “term ‘special circumstances’ as used in the zoning ordinance is the functional equivalent of the word ‘hardship.’ ” Burns v. SPA Auto., Ltd., 156 Ariz. 503, 505, 753 P.2d 193 (App.1988). ¶ 24 The eminent domain proceedings that reduced the Property’s size, parking, and setback did “deprive the property of privileges enjoyed by other property of the same classification in the same zoning district ” as required by A.R.S. § 9-462.06 G 2 and “do not apply to other properties in the district ” as required by § 307.A.9.a of the Zoning Ordinance. The Board considered statements by Jachimek’s representative that the eminent domain proceedings affected the Property in a manner dissimilar to the “twelve surrounding intersections ” and the Board’s Chairman found that the property had been “substantially impacted by prior eminent domain activities in a manner that is dissimilar to other properties in a reasonably close radius.” The Board’s comparison of the Property to other C-3 properties at twelve surrounding intersections was an appropriate comparison. Thus, the variance application satisfied the threshold comparison required by statute and ordinance to other property within the same district. See A.R.S. § 9-462.06 G 2; Phx., Ariz., Zoning Ordinance § 307.A9.a. ¶ 25 Jachimek argues that “the discontinuance of a non-conforming use through the approval of a use permit and variance for a pawn shop has previously been recognized by the City of Phoenix as a special circumstance that satisfies this element of the variance test.” Discontinuation of a non-conforming use, however, is not a special circumstance that would “deprive the property of the same privileges as any other property of the same classification in the same zoning district” or that does “not apply to other properties in the district.” A.R.S. § 9-462.06 G 2; Phx., Ariz., Zoning Ordinance § 307.A.9.a. Rather, the discontinuation merely brings property rights and privileges in line with other properties in the same district. Phx., Ariz., Zoning Ordinance § 903.A (upon abandonment of non-conforming use, “any subsequent use of the parcel of land or structure shall conform to the regulations of the zoning district in which it is located”). Moreover, it is immaterial if other properties received variances due to the discontinuation of nonconforming use. Haynes, 162 Ariz. at 511, 784 P.2d 715 (“That some other such properties may have received variances is immaterial else each grant of a variance would effect a city-wide zoning change.”). ¶ 26 Additionally, the statute and the Zoning Ordinance require that the special circumstances cannot be created by the owner or applicant, but rather must relate to the property, the land, building or use, as opposed to any personal hardship suffered by the owner or applicant. See AR.S. § 9-462.06 H 2; Phx., Ariz., Zoning Ordinances §§ 303.B.2.b, 307.A9.b, 10.b; see also Arkules, 151 Ariz. at 441, 728 P.2d 657 (stating that the board has “no authority to grant a variance to allow [applicant’s] personal preference for a color which would enhance the design he chose for his house”); Burns, 156 Ariz. at 505, 753 P.2d 193 (holding that variance applicant’s decision to be a three-car dealership necessitating sign large enough to meaningfully display three manufacturers’ logos in excess of sign size permitted by city ordinance was a special circumstance or hardship that was self-inflicted); Rivera v. City of Phoenix, 186 Ariz. 600, 603, 925 P.2d 741 (App.1996) (finding that variance applicant “created his own problem” by providing city with erroneous size plan); Minney v. City of Azusa, 164 Cal.App.2d 12, 31-32, 330 P.2d 255 (1958) (“One who purchases property in anticipation of procuring a variance to enable him to use it for a purpose forbidden at the time of sale cannot complain of hardship ensuing from a denial of the desired variance.”). ¶ 27 Any special circumstances here were created by Jachimek and/or the Property owner by selecting this particular property to use as a pawn shop, in violation of the prohibition against self-imposition. Thus, the Board exceeded its statutory jurisdiction and authority in granting the application for a variance that did not meet the criteria set forth in A.R.S. §§ 9-462.06 G 2, H.2, and Phx., Ariz., Zoning Ordinances §§ 303.B.2.b, 307.A.9.a-b, and lO.b. Therefore, the Board’s decision to grant Jachimek a variance was “ultra vires and void.” See Arkules, 151 Ariz. at 440, 728 P.2d 657. CONCLUSION ¶28 The Board proceeded without legal authority and, therefore, we reverse the judgment of the superior court and remand with instructions to enter judgment declaring the variance invalid. We award Pawn its costs pursuant to AR.S. § 12-342 and attorney fees pursuant to A.R.S. §§ 12-348 A 2 and -348 I 1 upon compliance with Rule 21, Arizona Rules of Civil Appellate Procedure. . We cite the current version of applicable statutes and ordinances when no revisions material to this decision have since occurred. . We ordered supplemental briefing addressing the "district” the Board was required to consider in evaluating the variance application and whether the Board focused on the appropriate property comparisons. We find the City's brief persuasive that the “district” here encompassed other C-3 properties that do not suffer a hardship.

Chief Justice BALES, opinion of the Court. ¶ 1 We affirm the trial court’s summary dismissal of claims for post-conviction relief asserting that defense counsel was ineffective and juror misconduct occurred when the judge, without objection, replaced a juror who said she could not judge anybody’s guilt or innocence. I. ¶ 2 A jury in 2010 found Knute Kolmann guilty on ten counts of sexual exploitation of a minor and one count of conspiracy to commit sexual exploitation of a minor. On the sixth day of trial, after the jury had deliberated for several hours, the jury foreperson sent the trial judge a note stating that juror L.M. wanted to discuss a personal matter. The judge, in the presence of counsel, called L.M. back into the courtroom and asked, “What is your concern?” L.M. replied, “did you say [earlier] there were some things we could not talk to you about?” After cautioning L.M. not to discuss “what is going on in the jury room or anything having to do with the deliberations,” the judge asked if she had some other personal matter concerning the jury’s reconvening the next week. L.M. responded that she did not feel qualified to be a juror, stating “I feel like I can’t judge anybody” and that she “was wrong” in not saying so earlier. ¶ 3 Counsel declined to question L.M. further. The judge asked L.M. if there was “anything more that [she] wanted to say on this issue” and if it was “just a matter of not feeling like [she] can make a judgment in this particular case.” She reaffirmed that she could not make a judgment for personal reasons but said nothing else. Without objection by counsel, the judge excused L.M. from the jury and replaced her with an alternate juror. ¶ 4 After excusing L.M., the judge instructed the remaining eleven jurors that when they were joined by the alternate juror, who had not “had the benefit of the discussions” that had occurred “already within the jury room,” they “to some extent ... are going to have to start over again and involve her in discussions with regard to any individual and all of the counts, generally.” When the jury reconvened five days later with the alternate juror, it deliberated about seventy minutes and returned a verdict finding Kolmann guilty on all counts. The trial court imposed consecutive sentences of imprisonment totaling 155 years, and the court of appeals affirmed the convictions and sentences on appeal. State v. Kolmann, No. 1 CA-CR 10-0378, at *1 ¶ 1, 2012 WL 988582 (Ariz.App. March 22, 2012) (mem. decision). ¶ 5 In 2013, Kolmann filed a Rule 32 petition for post-conviction relief based on a 2013 affidavit by L.M., who stated she had asked to be dismissed in 2010 by telling the judge she “did not feel competent to be a juror or to judge anyone.” Noting that this was true, L.M. added that she especially did not want to stay on the jury because she was the only one not convinced of Kolmann’s guilt, did not want to cause a hung jury, and was overwhelmed by the grave task of determining someone’s guilt. L.M. said that one reason she did not feel competent was that she did not “understand the law well enough” and another reason was that while she was not convinced the defendant was innocent, she also was not convinced he was guilty. She noted that when she asked to be dismissed, she would have voted “not guilty” if the jury had taken a vote then. L.M. also recounted that another juror had told her that if she wanted the judge to “let her go,” she should tell the court that she did not feel competent to judge another person rather than saying she disagreed with her fellow jurors. ¶ 6 Kolmann raised three claims in his petition for post-conviction relief related to L.M.’s dismissal from the jury: ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and juror misconduct. The trial court summarily dismissed the petition for failure to state a colorable claim. The court of appeals granted review but denied relief. ¶ 7 We granted review because the standard for summary dismissal of Rule 32 petitions alleging juror misconduct is an issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶ 8 Summary dismissal of a petition for post-conviction relief is appropriate “[i]f the court ... determines that no ... claim presents a material issue of fact or law which would entitle the defendant to relief under this rule and that no purpose would be served by any further proceedings.” Ariz. R.Crim. P. 32.6(c). Stated differently, a petition that fails to state a colorable claim may be dismissed without an evidentiary hearing. As we recently explained, “[t]he relevant inquiry for determining whether the [defendant] is entitled to an evidentiary hearing is whether he has alleged facts which, if true, would probably have changed the verdict or sentence. If the alleged facts would not have probably changed the verdict or sentence, then the claim is subject to summary dismissal.” State v. Amaral, 239 Ariz. 217, 220 ¶ 11, 368 P.3d 925, 928, 2016 WL 423761 (2016). We review the trial court’s summary dismissal of a Rule 32 petition for an abuse of discretion. See id. at 219 ¶ 9, 368 P.3d at 927; see also State v. Bennett, 213 Ariz. 562, 566 ¶ 17, 146 P.3d 63, 67 (2006). A. ¶ 9 First, we address Kolmann’s claims of ineffective assistance of counsel. To state a colorable claim, a petitioner must show “both that counsel’s performance fell below objectively reasonable standards and that this deficiency prejudiced [him].” Bennett, 213 Ariz. at 567 ¶ 21, 146 P.3d at 68 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see also Hinton v. Alabama, — U.S. -, 134 S.Ct. 1081, 1088-90, 188 L.Ed.2d 1 (2014) (discussing constitutional deficiency and prejudice prongs of the Strickland test). To establish deficient performance, a defendant must show that his counsel’s assistance was not reasonable under prevailing professional norms, “considering all the circumstances.” Hinton, 134 S.Ct. at 1088 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To establish prejudice, a defendant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 1089 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id., quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052. ¶ 10 In reviewing claims of ineffective assistance, courts “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. A defendant can overcome this presumption by showing that counsel’s decisions were not tactical or strategic in nature, but were instead the result of “ineptitude, inexperience, or lack of preparation.” State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984). ¶ 11 Kolmann argues that he is entitled to an evidentiary hearing on his ineffective assistance claims. He contends his trial counsel was ineffective by: (1) waiving Kolmann’s right to be present during the juror substitution proceedings; (2) failing to question L.M. about her reasons for requesting dismissal from the jury and not objecting to her dismissal; and (3) failing to ask the trial court to instruct the reconstituted jury to begin deliberations anew pursuant to Arizona Rule of Criminal Procedure 18.5(h). He also argues that his appellate counsel was ineffective by not raising the trial court’s compliance with Rule 18.5(h) as an issue on direct appeal. ¶ 12 Kolmann argues that his trial counsel erroneously waived his presence during the juror substitution proceedings. Defendants have the right, rooted in the Sixth Amendment, to be present at every stage of the trial. Ariz. R.Crim. P. 19.2 (A defendant “has the right to be present at every stage of the trial, including the impaneling of the jury [and] the giving of additional instructions ...”); State v. Dann, 205 Ariz. 557, 571 ¶ 53, 74 P.3d 231, 245 (2003). But that right is not absolute and it may be waived by defendants or their counsel. See State v. Rose, 231 Ariz. 500, 504 ¶ 9, 297 P.3d 906, 910 (2013) (explaining that “a trial court may rely on counsel’s waiver of a defendant’s right to be present in certain circumstances; personal waiver by the defendant is not required”) (internal citations omitted). ¶ 13 Kolmann has failed to state a colorable claim with regard to counsel’s waiving his presence. Even if we assume, without deciding, that counsel fell below professional standards in this respect, Kolmann has not attempted to show how his absence prejudiced him. Cf. State v. Guytan, 192 Ariz. 514, 520 ¶17 & n. 4, 968 P.2d 587, 593 (App.1998) (noting that “[i]t is not good practice” for trial counsel to waive defendant’s presence without consulting defendant “when issues of substance are before the court,” but harmless-error analysis applies to defendant’s absence during juror substitution). ¶ 14 Kolmann also argues that trial counsel rendered ineffective assistance by not questioning L.M. when she asked to be excused from the jury. This failure, Kolmann maintains, cannot be characterized as a strategic decision because it resulted from his counsel’s acknowledged inexperience with the particular situation. Kolmann argues that if defense counsel had further questioned L.M., she would have revealed that she was seeking dismissal to avoid being the lone holdout—an improper reason for dismissal. He posits that if L.M. had remained on the panel, there is a reasonable probability that the trial would have ended with a hung jury. ¶ 15 Kolmann has not overcome the presumption that his lawyer acted within the range of reasonable professional assistance in not asking L.M. any questions. The judge properly cautioned L.M. not to discuss the jury’s deliberations, which preserved the confidentiality of the deliberations and avoided the danger of coercing a verdict. Cf. State v. Huerstel, 206 Ariz. 93, 100 ¶¶ 19-20, 75 P.3d 698, 705 (2003) (noting that a court’s jury instructions and knowledge of jury split are factors in assessing whether a verdict was coerced); State v. Sabala, 189 Ariz. 416, 419, 943 P.2d 776, 779 (App.1997) (noting that when a judge learns of jury impasse the, “better practice ... is for the court to instruct jurors to refrain from revealing the numerical split and whether they are inclined to acquit or convict”). “As a general rule, no one—including the judge presiding at a trial—has a ‘right to know* how a jury, or any individual juror, has deliberated or how a decision was reached by a jury or juror. The secrecy of deliberations is the cornerstone of [the] jury system.” United States v. Thomas, 116 F.3d 606, 618 (2d Cir.1997). ¶ 16 Given the judge’s direction to L.M. not to reveal the jury’s deliberations and her reaffirmation, after the judge asked if she had anything more to say, that “it was just a matter” of her not being able to judge anyone, the record does not suggest Kolmann’s counsel acted unreasonably by not independently questioning L.M. Defense counsel, the prosecutor, and the judge discussed whether to ask L.M. any additional questions and none chose to do so. That defense counsel had no experience with a similar situation does not itself suggest a failure to meet reasonable professional standards. The trial judge noted his own unfamiliarity with a juror belatedly revealing that she was incapable of “judging anybody,” and Kolmann has not identified any facts or legal authority suggesting that defense counsel here was acting outside “the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. ¶ 17 Nor has Kolmann stated a colorable claim that counsel was ineffective for failing to object to the trial court’s dismissal of L.M. Under Arizona Rule of Criminal Procedure 18.5(h), trial judges have broad discretion to excuse a deliberating juror “due to inability or disqualification to perform required duties,” and to substitute an alternate juror. Once L.M. disclosed she could not judge anybody for personal reasons, the judge was authorized to replace her with an alternate. Defense counsel did not act incompetently by failing to object to what Rule 18.5(h) expressly allowed. ¶ 18 Kolmann argues that his trial counsel was also ineffective by failing to ask the judge to instruct the reconstituted jury “to begin deliberations anew” as required by Rule 18.5(h). After dismissing L.M., the judge instructed the remaining eleven jurors that “[e]ssentially, [the alternate juror] hasn’t had the benefit of the discussions with you of what has taken place already within the jury room. So to some extent you are going to have to start over again and involve her in discussions with regard to any individual and all of the counts, generally.” Before excusing the eleven jurors for the weekend, he told them that, when they reassembled the following week with the alternate juror, “Don’t start deliberating until all 12 are present. Don’t even discuss the case. Just talk about sports or the weather or whatever else you want to talk about until everybody is there, because everybody is entitled to each other’s full discuss [sic] of the situation.” The alternate juror was not present when the trial court gave these instructions, the instructions were not submitted in writing, and counsel did not request that they be repeated to the reconstituted panel. ¶ 19 After the alternate juror joined the deliberations, the trial court should have instructed the entire jury to begin deliberations anew. See Ariz. R.Crim. P. 18.5(h). The rule mandates such an instruction “[i]f an alternate joins the deliberations.” Id. Counsel’s failure to ask for such an instruction, however, does not constitute ineffective assistance under Strickland because Kolmann cannot show prejudice. Although instructing jurors to “begin deliberations anew after a substitution guards against the potential problems that substitution poses,” Guytan, 192 Ariz. at 521, 968 P.2d at 594, the omission of such an instruction does not always require reversal of a conviction. Id.; see also Claudio v. Snyder, 68 F.3d 1573, 1577 (3d Cir.1995) (“The fact that the ... trial court did not specifically instruct the jury to begin its deliberations anew is not dispositive.”). ¶ 20 Here, all the jurors except the alternate were instructed that, to some extent, they “were going to have to start over” by involving the alternate in discussions about each of the counts. Although the court did not strictly follow Rule 18.5(h) by saying “to some extent,” it expressed the need to start deliberations anew by involving the alternate in discussing all of the counts, and we presume the original eleven jurors followed this instruction. State v. Martinez, 230 Ariz. 208, 216 ¶ 40, 282 P.3d 409, 417 (2012). The alternate only first began deliberating when she joined the jury; if the others followed the court’s instructions to “start over” once she joined them, the entire jury began deliberating anew. That the reconstituted jury reached its verdict after about seventy minutes does not overcome the presumption, as that time span does not itself suggest a failure by the jury to deliberate anew. Given the presumption, Kolmann has not identified how the failure to give the instruction to the alternate juror resulted in prejudice. ¶ 21 Kolmann also makes no colorable claim of ineffective assistance of appellate counsel regarding the Rule 18.5(h) instruction. Appellate counsel did not raise this issue on direct appeal. Because trial counsel failed to object, appellate counsel would have had to argue that the trial court’s failure to instruct the entire jury to begin anew constituted fundamental error that prejudiced Kolmann. State v. Valverde, 220 Ariz. 582, 584 ¶ 12, 208 P.3d 233, 235 (2009). Given Kolmann’s inability to show prejudice, see supra ¶ 20, appellate counsel did not fall below professional standards by not raising the Rule 18.5(h) issue on appeal. B. ¶ 22 Kolmann also claims that his right to a unanimous and impartial jury was violated by juror misconduct due to L.M.’s lack of candor about why she wanted to be excused and the second juror’s advice to L.M. about what to tell the court to improve her chances of dismissal. This claim fails for several reasons. ¶ 23 Juror misconduct may warrant a new trial when, among other things, a juror “[pjerjures himself or herself or willfully fail[s] to respond fully to a direct question posed during the voir dire examination.” Ariz. R.Crim. P. 24.1 (c)(3)(iii). This rule, however, does not avail Kolmann. In her 2013 affidavit, L.M. stated that she truthfully told the judge that she wanted to be dismissed because she did not feel competent to be a juror or to judge anyone. Given the judge’s initial directive to L.M. not to reveal discussions within the jury room or anything related to deliberations, the record does not suggest that L.M. perjured herself or willfully failed to respond fully to a direct question when she discussed her reasons for seeking to be excused. ¶24 Although Rule 24.1(e)(3) does not by its terms encompass the second juror’s alleged misconduct, we agree that a juror commits misconduct by offering another juror strategic advice on how to seek removal from the jury. Conceivably, such improper communications could be grounds for a new trial under Rule 24.1(c)(5) if “the defendant has not received a fair and impartial trial.” Although Rule 24.1(d) prohibits inquiry into the “subjective motives or mental processes which led a juror to assent or dissent from the verdict,” see State v. Walker, 181 Ariz. 475, 483, 891 P.2d 942, 950 (1995), we assume for present purposes that this rule would not apply to either L.M.’s communications, since she did not participate in the verdict, or the second juror’s advice to L.M., insofar as it did not pertain to any reasons for that juror’s assent to the eventual verdict. ¶ 25 Because claims of juror misconduct can be raised on post-trial motion under Rule 24, Kolmann generally is precluded from raising them in a petition for post-conviction relief. Ariz. R.Crim. P. 32.2(a)(1). Kolmann has not identified any applicable exception to the preclusion rale, and thus the alleged juror misconduct does not constitute a colorable claim for relief. ¶ 26 Whether or not precluded, the claim of juror misconduct would only entitle Kolmann to a new trial if he could show prejudice, either actual or presumed. See State v. Miller, 178 Ariz. 555, 558, 875 P.2d 788, 791 (1994). He cannot do so. L.M. consistently said she was incapable of making a decision, and that fact would have warranted excusing her from the jury irrespective of her tentative inclination to vote not guilty or the other juror’s advice to her. Cf. United States v. Spruill, 808 F.3d 585, 595 (2d Cir.2015) (dismissal of juror with bias was proper, even though at time she was the lone holdout in deliberations). L.M.’s affidavit does not show that she was encouraged or coerced by the second juror or anyone else to seek to be excused. Instead, the affidavit states that when L.M. “felt overwhelmed by the task of judging someone’s guilt,” she “decided to see if she could be replaced” by the alternate, and the second juror “gave her advice.” Kolmann’s speculation that the second juror wanted to replace L.M. as a holdout juror does not alter the fact that the court properly dismissed her based on her expressed inability to decide anybody’s guilt or innocence. ¶ 27 Finally, Kolmann was entitled to an impartial jury, not a particular jury. State v. Morris, 215 Ariz. 324, 334 ¶ 40, 160 P.3d 203, 213 (2007). Kolmann does not contend that the reconstituted jury was biased, and the record reflects that the alternate juror was chosen along with the regular jurors, heard all the evidence, and was instructed on the applicable law. Ultimately, Kolmann was convicted by an impartial, unanimous twelve-person jury. Thus, even if he properly raised his juror misconduct claim, he has not shown he was denied a fair trial and thereby prejudiced. III. ¶ 28 The trial court did not abuse its discretion in summarily dismissing Kolmann’s Rule 32 petition for post-conviction relief. We affirm the decisions of the trial court and the court of appeals.

OPINION MILLER, Judge: ¶ 1 After a jury trial, appellant Arthur Wright was convicted of two counts of possession of a narcotic drug for sale and one count of possession of drug paraphernalia, and sentenced to concurrent prison terms of 10.5 years for the first two charges and 2.25 years for the paraphernalia offense. Wright argues the trial court erred by admitting into evidence a redacted audio recording made by police officers during the undercover operation leading to his arrest. Finding no abuse of discretion, we affirm. Factual and Procedural Background ¶2 We view the facts in the light most favorable to sustaining the jury’s verdicts. State v. Nelson, 214 Ariz. 196, ¶ 2, 150 P.3d 769, 769 (App.2007). In June 2013, Tucson Police Officer J.D. was working undercover as part of a drag interdiction team that focused on street sales of narcotics. He approached a man near a convenience store who was later identified as Wright’s eo-defendant, Richard Davis. J.D. asked if Davis could help him buy methamphetamine and Davis said he could. Davis climbed into J.D.’s unmarked track. The track had a one-way radio transmitter and digital audio recorder hidden inside it. Other police officers were listening to everything that was happening in the truck through the one-way radio and were prepared to move in if they believed J.D. was in danger. ¶ 3 J.D. gave Davis two $20 bills—one as his payment and the other to use to buy the methamphetamine. He testified they also talked about “possibly partying that night,” and stated he had offered Davis a hotel room for the evening. Davis made a telephone call using J.D.’s cell phone and then directed J.D. to an apartment, but when they arrived Davis was unable to obtain methamphetamine. ¶ 4 Davis then directed J.D. to drive to a particular gas station. Davis got out of the truck and went into the gas station’s convenience store. Shortly thereafter, a car pulled into the parking space immediately adjacent to J.D.’s truck. A man later identified as Wright was in the passenger seat of that car. The driver of the car called J.D. on his cell phone. J.D. explained to the driver of the car that Davis was inside the store and would be out shortly. Davis came out of the store and got into the driver’s-side rear seat of the ear. J.D. saw Wright reach down under his seat, and then “do[ ] something back and forth” with Davis. ¶ 5 Davis got back in J.D.’s truck, showed him a baggie that contained what appeared to be methamphetamine, and said, “See, I got it.” When J.D. realized Davis planned to hold onto the baggie until J.D. had booked the hotel room they had talked about, he made a prearranged arrest signal so other officers would stop the car. They did so and arrested Davis. ¶ 6 Another Tucson Police officer stopped the car in which Wright was riding as a passenger. As the officer approached the car, he saw Wright trying to conceal something between the center console and the seat. It turned out to be a digital scale. As the officer removed Wright from the car, the officer saw six small baggies on the passenger seat where Wright had been sitting. Two of the baggies contained crack cocaine; the other four contained heroin. ¶ 7 At trial, a redacted version of the audio recording from J.D.’s track was admitted into evidence over Wright’s objection as Exhibit 49. Wright was convicted and sentenced as described above and now appeals. We have jurisdiction under A.R.S. §§ 13-4031 and 13-4033(A)(1). Analysis ¶ 8 Wright argues the trial court prejudicially erred by admitting Exhibit 49 over his objection. We review the trial court’s evidentiary rulings for an abuse of discretion. State v. Johnson, 212 Ariz. 425, ¶ 25, 133 P.3d 735, 743 (2006). ¶ 9 The portion of Exhibit 49 to which Wright objected covered the moment Davis got out of J.D.’s track and went into the convenience store, until the moment he got back into the truck. It consists of the following statements: Two-Five,[ ] he’s getting out and he’s, uh, looks like going in the store. He’s got the twenty in his right hand. And again, he’s got whatever it is. He hasn’t moved it. It’s still in his left shoe.[ ] Inside the store I think he’s buying a beer or something. Got a, no, that’s probably just some U of A people. Next to us. Just in case you guys can’t see, I’m parked, uh, just in front of the store, facing south, kind of over towards the car wash and in front. He’s still at the counter right now. And thex’e’s a car pulling up. Looks like it’s a Ford or something. This might be our delivei'y x-ight here. It’s a Fox’d Taui’us, it looks like, uh, gi’ay. There’s a number three and a number five in the car. [ ] A number three male passenger, and a number five female dx’iver. [phone rings] She’s calling me x*ight now. It’s the car next to us. Hello? Hey, uh, he’s, uh, he’s in the store x’ight now, uh, just getting a di’ink. He should be coming out here in a sec. Oh, is that you? Hey, hey, I’ll wait ‘til he comes out and you guys can talk to him or whatevei’. Cool. Latex*. Bye. Yeah, she was on the phone. Looks like he’s coming out now. Looks like he just bought a beer or something. And he’s walking over to her. He’s getting in the left rear*. Looks like the number thx*ee male front x*ight, he’s got a gx*ay cap and like a black cut-off jersey kind of thing on. He’s reaching up kind of under the seat. Looks like he’s messing with something. Maybe he’s got product with him. The dx’iver’s on the phone again. Our guy’s getting out, it looks like. He’s gonna get back in with me. ¶ 10 Wright ax’gues Exhibit 49 essentially was a police report and inadmissible under the genex*al rule precluding the admission of heax’say. See Ariz. R. Evid. 801(c) (defining heax’say); State v. Smith, 215 Ariz. 221, ¶ 28, 159 P.3d 531, 539 (2007) (police report inadmissible unless hearsay exception applies). Heax’say generally is inadmissible if no exception applies. Ax’iz. R. Evid. 802. The state ax-gues hex*e, as it did below, that the x’ecording was admissible as a present sense impression—“[a] statement descx*ibing or explaining an event or condition, made while or immediately after the declarant perceived it,” Ariz. R. Evid. 803(1). ¶ 11 The px’esent-sense-impression exception to the heax*say rale “is based on the notion that ‘substantial contempox*aneity of event and statement’ negates the likelihood of fabi’ieation or misrepx*esentation.” State v. Damper, 223 Ariz. 572, ¶ 16, 225 P.3d 1148, 1152 (App.2010), quoting State v. Tucker, 205 Ariz. 157, ¶42, 68 P.3d 110, 118 (2003). “We assume, as a general matter, that when the declarant has had little time to reflect on the event she has pex’ceived, her statement will be spontaneous and therefore reliable.” Tucker, 205 Ariz. 157, ¶ 42, 68 P.3d at 119. Accox*dingly, to qualify as an admissible px*esent sense impx*ession, a statement “x*equire[s] ... immediacy.” State v. Thompson, 146 Ariz. 552, 557, 707 P.2d 956, 961 (App.1985). For example, a witness’s statement, “There goes your Fast and Furious movie,” compai’ing her observation about two cai’s racing past her to scenes in a movie about sti’eet racing, was admissible as a px*esent sense impx*ession. State v. Sucharew, 205 Ariz. 16, ¶¶ 24-26, 66 P.3d 59, 67 (App.2003). In the same vein, a x*ecox*ding of a 9-1-1 call in which the caller descx’ibed the appeax*ance of two burglars and their actions as she watched them load her neighbor’s propex’ty into their tnxck, was a pi'oper present sense impression. State v. Rendon, 148 Ariz. 524, 526, 528, 715 P.2d 777, 779, 781 (App.1986). ¶ 12 Wi’ight admits that “[a]t fii’st glance,” Exhibit 49 “seems to fall within” the px*esentsense-impx’ession exception. See Ariz. R. Evid. 803(1). We agx*ee that Exhibit 49 falls within the plain language of Rule 803(1). The exhibit consists of desexdptions of events (such as the suspects’ activities and movements) and conditions (such as desci’iptions of people and vehicles and their relative locations) made as the declax*ant was obsexving those events and conditions or immediately thereafter. Id.; accord Sucharew, 205 Ariz. 16, ¶¶ 24-26, 66 P.3d at 67; Rendon, 148 Ariz. at 528, 715 P.2d at 781. Wi’ight nevextheless contends the heai’say exception must be disx*egax*ded here because J.D. “was mak ing the recording for the specific purpose of creating evidence to be used at trial,” and had a motive and an opportunity to reflect or fabricate. As a result, he argues, the statements in Exhibit 49 lack the assurances of reliability that justify admission of the typical present sense impressions of disinterested bystanders like the declarants in Sucharew and Rendon. In his reply brief, Wright suggests Fischer v. State, 252 S.W.3d 375 (Tex.Crim.App.2008) is “a ease much more on point.” ¶ 13 In Fischer, a state trooper turned on his dashboard-mounted video camera and body microphone, and then announced his intention to pull a vehicle over because the driver was not wearing a seatbelt. Id. at 376-77. After stopping Fischer’s truck, the officer asked him whether he had any alcohol in the truck, adding, “I smell alcohol.” Id. at 377. The officer proceeded with an investigation for driving while under the influence of alcohol. See id. At four different points during the course of the investigation, he returned to his patrol car to record his findings on camera. Id. at 377, 385. He dictated to the camera that the “‘subject [had given] several clues’” during a heel-to-toe test, such as starting the test too soon, losing his balance, “‘stepping] off the line two times,’” making an “‘improper turn,’” and using his hands to balance. Id. at 377. He added that Fischer had “ ‘indicated the same clues’ ” during a one-leg stand test, even though the officer noted he had given the defendant “ ‘a second chance to do it.’ ” Id. He dictated the following observations after conducting a horizontal gaze nystagmus test: “‘Subject has equal pupil size, equal tracking, has a lack of smooth pursuit in both eyes, and has distinct nystagmus at maximum deviation in both eyes. Subject also has onset of nystagmus prior to forty-five degrees in both eyes.’ ” Id. He also noted for the recording that Fischer’s eyes were glassy and bloodshot, his speech was slurred, his breath smelled strongly of alcohol, and he had a wine opener in his vehicle. Id. Ultimately, the officer dictated to the camera, “ ‘Subject is going to be placed under arrest for DWI,’ ” and then he arrested Fischer, telling him “ T believe you are drunk.’ ” Id. ¶ 14 Fischer filed a motion to suppress the videotape of the traffic stop, but the trial court denied the motion, reasoning the tape constituted a present sense impression. Id. at 377-78; see also Tex. R. Evid. 803(1) (textually identical to Ariz. R. Evid. 803(1)). The Texas Court of Criminal Appeals affirmed the court of appeals, reversing the trial court. Fischer, 252 S.W.3d at 387. The court reasoned that “reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious ‘thinking-it-through’ statements” are not proper present sense impressions, because “ ‘[t]hinking about it’ destroys the unrefleetive nature required of a present sense impression.” Id. at 381; accord Thompson, 146 Ariz. at 557, 707 P.2d at 961 (present sense impression requires immediacy). The court concluded the officer’s statements to the camera amounted to “a speaking offense report.” Fischer, 252 S.W.3d at 385. ¶ 15 Fischer is distinguishable from the present case. Unlike the officer’s “reflective narratives” memorialized for the camera in Fischer, 252 S.W.3d at 381, J.D.’s real-time descriptions of the suspects’ appearance, vehicle, and movements were not primarily designed to chronicle earlier investigative findings. Rather, the statements described the events of a crime as it unfolded, and provided law enforcement officers with information they could use to disrupt that crime and successfully apprehend the perpetrators. In that respect, Exhibit 49 closely parallels the recording of the 9-1-1 call the court found admissible as a present sense impression in Rendon, in which the caller provided descriptions of burglary suspects, their vehicle, and their activities in real time as she watched the crime unfold. 148 Ariz. at 526, 528, 715 P.2d at 779, 781. As in Rendon, the statements were virtually contemporaneous with the ongoing crime they described. Id. ¶ 16 The fact that the declarant in the present ease was a law enforcement officer, unlike the caller in Rendon, does not change the analysis. See Ariz. R. Evid. 803(1); Tucker, 205 Ariz. 157, ¶ 42, 68 P.3d at 119 (contemporaneity of statement and event ensures reliability of present sense impression). The problem with the statements the trial court erroneously admitted in Fischer was not that they were made by a law enforcement officer, but that they were made reflectively, “with an eye toward future litigation.” See 252 S.W.3d at 383-85. In contrast, the totality of the circumstances reveals that J.D.’s primary reason for making the statements was to ensure his own safety during a potentially dangerous undercover operation. See Tucker, 205 Ariz. 157, ¶45, 68 P.3d at 119 (admissibility of statement as present sense impression determined in view of totality of circumstances). J.D. testified other officers were listening to him over the one-way radio “[djuring this entire time ... so that if I ... give signals that I’m in danger, they can move in.” “I’m constantly watching for people, you know, pulling knives on me, pulling guns on me,” he continued. By providing details about the situation as it unfolded, such as the positions of relevant vehicles, physical descriptions of suspects and their car, and a description of Wright reaching under the seat where a weapon could have been stored, J.D. sought to ensure the other officers listening to him would be prepared to intervene quickly and effectively if the situation deteriorated. Accord United States v. Campbell, 782 F.Supp. 1258, 1261-62 (N.D.Ill.1991) (recording of officer’s statements over radio to dispatcher describing suspect’s movements and actions as officer chased him on foot admissible as present sense impression under Fed. R. Evid. 803(1)); Flythe v. District of Columbia, 4 F.Supp.3d 222, 233-34 (D.D.C.2014) (officer’s statements over radio to dispatcher (1) identifying his location, (2) immediately thereafter saying “ ‘[djrop the knife,’ ” and (3) immediately thereafter saying defendant “ ‘[tjried to stab me, ma’am. My gun jammed. Get official on this location,’ ” admissible as present sense impressions under Fed. R. Evid. 803(1)); see also Fed. R. Evid. 803(1) (textually identical to Ariz. R. Evid. 803(1)). With his own safety at risk, J.D. had a strong incentive to report his real-time observations accurately. ¶ 17 In sum, the trial court did not abuse its discretion in determining Exhibit 49 was admissible as a present sense impression. Ariz. R. Evid. 803(1); see, e.g., Rendon, 148 Ariz. at 526, 528, 715 P.2d at 779, 781; Campbell, 782 F.Supp. at 1261-62. Accordingly, we need not address the state’s alternative argument that it was also admissible under the residual hearsay exception of Rule 807(a), Ariz. R. Evid. Disposition ¶ 18 For the foregoing reasons, we affirm Wright’s convictions and sentences. . Davis pled guilty to solicitation to offer to transfer a dangerous drug (methamphetamine) and testified at Wright’s trial. . J.D.’s radio call sign that night was "Bravo 25.” .J.D. had seen Davis return from the apartment with a baggie, which he had placed in his shoe or sock. Davis admitted at Wright’s trial that he had purchased a small baggie of crack cocaine for himself at the apartment. A possession of crack cocaine charge against Davis was dropped as part of his plea agreement. . J.D. testified his team used numbers as shorthand for racial identification. "[N]umber three” means African-American and "number five” means Caucasian or white. . Indeed, police officers subsequently found a handgun in the glove compartment.

OPINION VÁSQUEZ, Presiding Judge: ¶ 1 After a jury trial, Derek Ramos was convicted of attempted possession of a dangerous drug by fraud, forgery, and taking the identity of another. The trial court sentenced him to concurrent prison terms of six years for each count. On appeal, Ramos argues the court erred by precluding an alibi witness that he failed to timely disclose. He also argues the court erred by denying his request for a continuance “based on retention of new counsel.” For the following reasons, we affirm. Factual and Procedural Background ¶ 2 We view the evidence in the light most favorable to sustaining the convictions. State v. Wright, 214 Ariz. 540, ¶ 2, 155 P.3d 1064, 1065 (App.2007). In September 2013, Ramos visited a pharmacy in Apache Junction and presented a prescription for alprazolam, commonly known as Xanax. The pharmacy technician asked for his identification and made a copy for their records. The technician thought Ramos acted “[ojverly friendly” during the exchange, which she viewed as a “red flag[ ],” and informed the pharmacist of her concern. The pharmacist believed the prescription resembled another forged prescription recently presented at another pharmacy: its format did not match the doctor’s “prescriptions in the past,” the doctor’s address was not complete, and the signature “didn’t look consistent” "with that doctor’s usual signature. The pharmacist informed Ramos that she would need to “contact the doctor to verify the prescription, and [because] it was after hours, it would have to be the next day.” Ramos “started to get anxious” and asked if he could have the prescription back, but the pharmacist declined, and Ramos left the pharmacy. ¶ 3 Less than thirty minutes later, Ramos called the pharmacy and, speaking with an Indian accent, claimed to be the prescribing doctor who was calling to verify the prescription. He then returned to the pharmacy, was turned down again, and escorted out. The next morning, the pharmacist confirmed with the doctor listed on the prescription that it had been falsified and contacted the police. ¶ 4 In October 2013, Ramos was charged with attempted possession of a dangerous drug, forgery, and taking the identity of another person. The trial court set a jury trial date for August 5, 2014. On July 22, 2014, Ramos filed a notice of defenses and witnesses, which, for the first time, identified Ramos’s father as a potential witness, and provided the prosecutor with a telephone number to contact his father. The father apparently would be called to testify that he and Ramos had been coaching a softball team at the time of the offense. During a hearing on July 28, the state objected to this witness “based on the timeliness” and later filed a motion in limine to preclude the witness on the same ground, which the court granted. ¶ 5 Also during the July 28 hearing, Ramos submitted a stipulation to substitute his public defender with private counsel, Rachelle Ferraro, and requested a continuance because Ferraro would not “be ready to proceed to trial on August 5th.” The trial court denied the motion to continue, but stated Ferraro could “opt in” as counsel if she could be ready by the trial date. ¶ 6 At trial, Ferraro participated as Knapp counsel. The jury found Ramos guilty as charged, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to AR.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). Untimely Disclosure ¶ 7 Ramos argues the trial court erred by precluding the testimony of his father because of his late disclosure. We review a court’s sanction for an untimely disclosure for an abuse of discretion. State v. Moody, 208 Ariz. 424, ¶ 114, 94 P.3d 1119, 1149 (2004). ¶ 8 Rule 15.2(b), Ariz. R. Crim. P., directs that a defendant “shall provide a written notice to the prosecutor specifying all defenses as to which the defendant intends to introduce evidence at trial, including ... alibi.” And, “[simultaneously” with that notice, the defendant must provide the state with “[t]he names and addresses of all persons, other than that of the defendant, whom the defendant intends to call as witnesses at trial, together with their relevant written or recorded statements.” Ariz. R. Crim. P. 15.2(c)(1). This disclosure must occur within the earlier of forty days after arraignment or ten days after the state’s disclosure. Ariz. R. Crim. P. 15.2(d)(1). ¶ 9 When an untimely disclosure occurs, the opposing party may move for sanctions, in which case the trial court “shall impose any sanction it finds appropriate.” Ariz. R. Crim. P. 15.7(a). In doing so, courts should consider “the vitality of the evidence to the proponent’s ease; the degree to which the evidence or the sanctionable conduct has been prejudicial to the opposing party; whether the sanctionable conduct was willful or motivated by bad faith; and whether a less stringent sanction would suffice.” State v. Meza, 203 Ariz. 50, ¶ 32, 50 P.3d 407, 414 (App.2002); see Ariz. R. Crim. P. 15.7(a). The sanction “should be proportionate to the harm caused” and “cure that harm to the maximum practicable extent.” State v. Krone, 182 Ariz. 319, 322, 897 P.2d 621, 624 (1995). Thus, if “a party engages in ‘willful misconduct, such as an unexplained failure to do what the rules require,’ ” preclusion may be an appropriate remedy. State v. Naranjo, 234 Ariz. 233, ¶ 34, 321 P.3d 398, 407 (2014), quoting State v. Killean, 185 Ariz. 270, 271, 915 P.2d 1225, 1226 (1996); see also State v. Thompson, 190 Ariz. 555, 558, 950 P.2d 1176, 1179 (App.1997) (precluding sole witness supporting defense theory due to unexeused, untimely disclosure). ¶ 10 We find Killean instructive here. In that case, the defendant was arrested at an airport with a suitcase containing several pounds of marijuana. 185 Ariz. at 270, 915 P.2d at 1225. The defendant disclosed his defense—that he had transported the suit-ease for a friend—“for the first time at trial” and testified consistent with that defense. Id. However, the trial court denied the admission of “corroborative documentary evidence as a sanction for [the] defendant’s violation of discovery rules by failing to reveal the existence of the evidence until trial.” Id. ¶ 11 Our supreme court affirmed the defendant’s convictions, noting the “unexplained failure to do what the rules require” supported the sanction of preclusion, even if the trial court had determined there was no bad faith on the part of defense counsel. Id. at 271, 915 P.2d at 1226. Other remedies, such as declaring a mistrial or continuing the trial, “would defeat the important interest in efficient judicial administration.” Id. And, preclusion was proportionate to the harm caused by the violation: “The violation prevented the prosecution from locating ... a rebuttal witness ____ The loss of rebuttal was balanced by the loss of corroboration.” Id. ¶ 12 In this case, it is undisputed that the testimony of Ramos’s father was significant to his defense. And, there is no evidence that defense counsel acted in bad faith: He filed the late disclosure the same day Ramos informed him that his father could testify in support of an alibi defense. However, Ramos’s failure to assert a possible alibi defense from the time he was charged in October 2013 until his disclosure in July 2014, despite his close relation to the alibi witness, belies his argument that “[t]here is no evidence in the record that the late disclosure ... was willful.” See Naranjo, 234 Ariz. 233, ¶ 35, 321 P.3d at 408 (willfulness implied by “pervasive lack of diligence”). ¶ 13 Moreover, the record indicates the trial court considered “the impact” of the late disclosure on the state and the sanction on Ramos’s defense. The late disclosure not only surprised the state with a new witness; it introduced an entirely new defense theory. And, although the prosecutor managed to interview the father after the disclosure, the state did not have an opportunity to search for rebuttal witnesses—a task made difficult by the father’s inability to provide the names of others alleged to be on the softball team. During a pretrial hearing, the prosecutor stated that his office had “tried to find out whether or not there [was] a roster anywhere ... if there was a city league or whatnot,” but was unsuccessful. Thus, the late disclosure caused a significant disadvantage to the state, and preclusion was an appropriate remedy within the court’s discretion. See Killean, 185 Ariz. at 271, 915 P.2d at 1226; Krone, 182 Ariz. at 322, 897 P.2d at 624. ¶ 14 Ramos nevertheless argues that his ease is “analogous” to State v. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984). There, our supreme court reversed the trial court’s order excluding a defendant’s second alibi witness on late-disclosure grounds. Id. at 358-59, 681 P.2d at 1377-78. But Smith is distinguishable. The late disclosure in that case was not due to a lack of diligence and the state was not prejudiced. Id. at 359, 681 P.2d at 1378. Smith had timely disclosed his alibi defense, and the state had already interviewed his first alibi witness and was aware of the existence of the second one. Id. Ramos’s reliance on Smith is unavailing. Accordingly, the trial court did not err by precluding the witness’s testimony as a sanction for the disclosure violation. See Moody, 208 Ariz. 424, ¶ 114, 94 P.3d at 1149. Motion to Continue ¶ 15 Ramos argues the trial court erred by denying his request for a continuance “based on retention of new counsel.” He maintains that this error “served to deny ... his right to counsel of choice.” Generally. “[w]e review a trial court’s denial of a motion to continue for an abuse of discretion.” State v. Forde, 233 Ariz. 543, ¶ 18, 315 P.3d 1200, 1212 (2014). However, we review de novo Sixth Amendment claims regarding a defendant’s right to counsel. State v. Rasul, 216 Ariz. 491, ¶ 4, 167 P.3d 1286, 1288 (App.2007). ¶ 16 “ ‘[A]n indigent criminal defendant possesses rights under the Sixth Amendment [of the United States Constitution] and Article 2, Section 24 [of the Arizona Constitution], to choose representation by non-publicly funded private counsel----’” State v. Aragon, 221 Ariz. 88, ¶ 4, 210 P.3d 1259, 1261 (App.2009), quoting Robinson v. Hotham, 211 Ariz. 165, ¶ 16, 118 P.3d 1129, 1133 (App.2005) (alterations in Aragon). Nevertheless, this right “is not absolute, but is subject to the requirements of sound judicial administration.” State v. Hein, 138 Ariz. 360, 369, 674 P.2d 1358, 1367 (1983). “A trial court has “wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.’ ” Aragon, 221 Ariz. 88, ¶ 5, 210 P.3d at 1261, quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). In weighing these competing interests, courts must consider whether other continuances were granted; whether the defendant had other competent counsel prepared to try the ease; the convenience or inconvenience to the litigants, counsel, witnesses, and the court; the length of the requested delay; the complexity of the case; and whether the requested delay was for legitimate reasons or was merely dilatory. Hein, 138 Ariz. at 369, 674 P.2d at 1367. ¶ 17 As an initial matter, Ramos relies on United States v. Brown, 785 F.3d 1337, 1349 (9th Cir.2015), for the proposition that “any denial of the defendant’s motion because of ‘the demands of [the court’s] calendar’ would not ‘suffice as an administration-of-justiee basis for denial of the constitutional right to discharge ... counsel.’ ” This language, however, is taken out of context. See Robinson, 211 Ariz. 165, ¶ 14, 118 P.3d at 1133 (“[A] defendant may be denied counsel of his or her choice if that attorney[’s] ... appointment would cause an unreasonable delay in the proceedings to allow adequate preparation.”); see also United States v. Rivera-Corona, 618 F.3d 976, 979 (9th Cir.2010) (same). The district court in Brown “never said that concern for its calendar was its reason for denying the motion” and, in fact, “repeatedly offered to continue the case” in lieu of appointing new counsel. Brown, 785 F.3d at 1347-49. ¶ 18 Ramos also argues his circumstances were “[s]imilar[ ]” to those in Aragon, in which this court reversed the trial court’s denial of a motion to continue for newly retained private counsel to prepare for trial. 221 Ariz. 88, ¶¶ 1-2, 6, 210 P.3d at 1260-62. We disagree. In that case, we determined that the majority of the factors laid out in Hein, 138 Ariz. at 369, 674 P.2d at 1367, were absent: The defendant had not “sought nor been granted any prior continuances,” the state did not assert that a continuance would be inconvenient for witnesses, there was no “victim anxious for a resolution,” and “although appointed counsel was apparently competent and prepared to try the case, th[at] alone could not justify the court’s denial of [the defendant’s] request for a continuance.” Aragon, 221 Ariz. 88, ¶ 6, 210 P.3d at 1261-62. Moreover, the state did not dispute “that [the defendant] had legitimate reasons for his request.” Id. ¶ 6. The defendant in Aragon had “identified ‘a communication issue’ with appointed counsel and explained that, although he had been in touch with [private counsel] since his arrest, he had not asked for [counsel] to be substituted earlier because he ‘didn’t have funds to hire him.’ ” Id. ¶ 3. Thus, we concluded the “court’s denial of a continuance ... constituted an ‘unreasoning and arbitrary’ adherence to its schedule without due regard for Aragon’s legitimate request.” Id. ¶ 9, quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). ¶ 19 In contrast, the trial court here was focused principally on the dilatory nature of Ramos’s “last-minute substitution of counsel” and the impact the delay would have on the state’s case. Ramos had stated he wanted “to look into retaining private counsel” as early as November 2013, when he requested a continuance of a pretrial matter. But Ferraro made an appearance eight months later, and only eight days before trial. Ramos was not in custody during this time and, unlike in Aragon, offered no explanation for the delay. The court also noted it had “just denied [another] motion to continue trial” earlier that month and suggested Ramos’s new motion merely was an extension of the first: I set these ... hearings with a purpose. It’s not just to show up and entertain motions to continue. [These] hearings are substantive motion hearings. There should be motions in limine filed already; there should be any pretrial motions that need to be filed. We’re here today to discuss what [it is] going to take to get this thing ready for trial on Tuesday. It’s not the time for a last-minute substitution of counsel and motion to continue when I’ve already denied it. Accordingly, although no prior continuance of the trial date had been granted, the record supports the court’s implicit finding that Ramos’s motion was for the purpose of delay. Moreover, the state suggested during the hearing that it had already arranged for four of its five witnesses to testify. And, although Ferraro suggested more investigation and preparation was necessary to present Ramos’s ease, nothing in the record suggests his court-appointed defense counsel was not prepared or that this case was particularly complex. ¶ 20 Most importantly, the trial court’s ruling did not prohibit Ferraro from representing Ramos. We therefore reject Ramos’s suggestion that the court’s ruling denied his right to representation by retained counsel. Notwithstanding the court’s denial of the motion to continue, Ferraro in fact did represent Ramos prior to and at trial. Ferraro participated significantly during a pretrial hearing; made objections and conducted cross-examination during the trial; participated at the priors hearing; and argued on Ramos’s behalf during sentencing. See State v. Burns, 237 Ariz. 1, ¶ 13, 344 P.3d 303, 314 (2015) (“Although denying counsel adequate time to prepare a ease for trial may deny the defendant a substantial right, time constraints by themselves do not create prejudice.”) (internal citation omitted). Accordingly, the court did not abuse its discretion by denying the motion to continue, see Forde, 233 Ariz. 543, ¶ 18, 315 P.3d at 1212, and Ramos was not denied his Sixth Amendment right to counsel of choice, see Rasul, 216 Ariz. 491, ¶ 4, 167 P.3d at 1288. Disposition ¶ 21 For the foregoing reasons, we affirm Ramos’s convictions and sentences. . Knapp v. Hardy, 111 Ariz. 107, 111, 523 P.2d 1308, 1312 (1974) (counsel privately retained by relative or friend may associate with public defender in representing criminal defendant). . The state conceded in its motion in limine below that the testimony would be "vital” to the defense. We discount the state’s arguments on appeal to the extent they contradict this previous position. Cf. State v. Towery, 186 Ariz. 168, 182, 920 P.2d 290, 304 (1996) (party may not "assent] one position at trial and another on appeal”). . The fifth witness, the doctor, had been out of the country until the start of trial and only appeared after the trial court compelled him to do so.

CHIEF JUSTICE BALES, opinion of the Court: ¶ 1 We here consider the admissibility of an excerpt from a cellphone video recorded by a witness to a stabbing. Because the trial court erred in excluding this evidence on the grounds the court identified, we vacate the lower courts’ rulings but remand to allow the trial court to consider, in the first instance, whether the excerpt should be excluded under Arizona Rule of Evidence 403. I. ¶ 2 A house party ended with a street fight. Witnesses said that Alejandra Moran and L.U. fought verbally and physically for several minutes before L.U. was stabbed. Another guest at the party, Hector Ponce, used his cell phone to record an approximately five-minute video of the fight, culminating with the stabbing. Ponce edited the video by cropping the first four and one-half minutes, sent the remaining thirty-one second excerpt to his friend Bassam Mahfouz, and then deleted the video from his cell phone. The video excerpt purportedly shows Moran stabbing L.U. in the chest. ¶ 3 L.U. died from the stab wounds, and the State charged Moran with first-degree murder. Detectives seized Mahfouz’s phone to preserve the video evidence. They also unsuccessfully attempted to recover the full-length version of the video from Ponce’s phone. Moran moved to exclude the video excerpt on the grounds that it was inadmissible under Arizona Rules of Evidence 106, 1002, 801, and 901. The trial court granted Moran’s motion. ¶ 4 The State sought special action relief, arguing in the court of appeals that the trial court had erred in excluding the excerpt because the State was not responsible for the absence of the complete video recording. Relying on Evidence Rules 106 and 403, a divided panel of the court of appeals affirmed the trial court’s ruling. State v. Steinle (Moran), 237 Ariz. 531, 534 ¶ 14, 354 P.3d 408, 411 (App.2015). ¶ 5 We granted review to determine if the trial court erred by excluding the video excerpt, as the admissibility of such evidence presents a recurring legal issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and AR.S. § 12-120.24. II. ¶ 6 We review a trial court’s evidentiary rulings for an abuse of discretion. State v. Leteve, 237 Ariz. 516, 523 ¶ 18, 354 P.3d 393, 400 (2015). But we review de novo the interpretation of the Arizona Rules of Evidence. State v. Payne, 233 Ariz. 484, 502 ¶ 49, 314 P.3d 1239, 1257 (2013). Our interpretation is guided, but not determined, by federal court decisions when our evidence rules mirror the federal rules. See State v. Bernstein, 237 Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015). A. ¶ 7 Relevant evidence is generally admissible unless it is otherwise precluded by court rules, statutes, or constitutional provisions. Ariz. R. Evid. 402. A video excerpt depicting a fatal stabbing is plainly relevant in a related criminal prosecution. The issue here is whether any of the rules of evidence identified by Moran preclude admission of the excerpt. We first consider the rules relied upon by the court of appeals—Rules 106 and 403. ¶ 8 Rule 106, the rule of completeness, provides “if a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.” A “recorded statement” may include electronic recordings of conduct, such as the cell-phone video here. See United States v. Yevakpor, 419 F.Supp.2d 242, 252 (N.D.N.Y.2006) (applying Federal Rule 106 to video recordings by a government agency); see also Brewer v. Jeep Corp., 724 F.2d 653, 657 (8th Cir.1983) (applying Federal Rule 106 to a film commissioned by the defendant). ¶ 9 In ruling that Rule 106 supports excluding the excerpt from Ponce’s video, the court of appeals reasoned that “the deleted portion of the video is ‘necessary to qualify, explain or place into context the portion already introduced.’ ” 237 Ariz. at 534 ¶ 12, 354 P.3d at 411 (quoting State v. Prasertphong, 210 Ariz. 496, 499 ¶ 15, 114 P.3d 828, 831 (2005)). The court of appeals also relied on Yevakpor, a district court decision that precluded the government from introducing three one-minute video segments from a longer recording of a border stop and search. 237 Ariz. at 533 ¶ 9, 354 P.3d at 410. The court in Yevakpor noted that the segments portrayed “a small clip of the entire time the defendant was recorded,” and did not show events before the defendant was stopped or the results of the search. 419 F.Supp.2d at 244. ¶ 10 Rule 106, however, is a rule of inclusion rather than exclusion. The rule provides that if one party introduces part of a recorded statement, an adverse party may require the concurrent introduction of other parts when fairness demands, thereby “seeur[ing] for the tribunal a complete understanding of the total tenor and effect of the utterance.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). Rule 106 does not by its teims address situations when all that remains is a fragment of a once longer statement (for example, if only a few pages have survived an author’s unsuccessful attempt to completely destroy a diary); nor does it direct the exclusion of evidence in any circumstance. ¶ 11 Yevakpor is also inapposite. That case did not turn on Rule 106. The district court instead precluded the video segments as a sanction for government misconduct. 419 F.Supp.2d at 251. In Yevakpor, the government agency recorded a video, selected portions it deemed relevant (or incriminating), and then deleted or recorded over nearly 90 percent of the rest of the recording. Id. at 245-47. Such action was inappropriate, the district coui’t found, because the agents knew the selected footage would be used in prosecuting the case, and the defendant was potentially harmed by the destruction of the rest of the video. Id. at 246-47. ¶ 12 In contrast to Yevakpor, here the State was not involved in recording or editing Ponce’s video. Indeed, the State had no control over what Ponce did with the video after he recorded it on his cell phone. The State sought to introduce the complete version of the only video it ever possessed—the thirty-one second recording recovered from Mahfouz’s cell phone. Because Ponce destroyed the longer version he initially recorded, there are no additional portions to admit. Neither Rule 106 nor Yevakpor provides a basis for excluding the video segment at issue here. ¶ 13 The court of appeals also based its analysis on Rule 403, which allows the exclusion of relevant evidence if its probative value is substantially outweighed by the danger, among other things, of unfair prejudice. Steinle, 237 Ariz. at 534 ¶ 13, 354 P.3d at 411. Rule 403 might warrant excluding evidence of a remnant of a longer recorded statement, but the court of appeals erred by addressing this issue in the current procedural posture of this ease. Although Moran briefly argued to the trial court that admitting the video would prejudice her because it omitted events leading to the altercation, she did not raise Rule 403 in her motion to preclude the video’s admission. Nor did the trial court identify Rule 403 in granting Moran’s motion. ¶ 14 Appellate courts generally should not decide Rule 403 issues in the first instance because such rulings are highly contextual—they necessarily depend on assessments assessnot only the evidence in question, but also the other evidence in the ease. See Crackel v. Allstate Ins. Co., 208 Ariz. 252, 266 ¶ 53, 92 P.3d 882, 896 (App.2004) (“The balancing balfactors under Rule 403 is peculiarly a function of trial courts, not appellate courts.”); see also State v. Cooperman, 232 Ariz. 347, 351-52 ¶¶ 17-19, 306 P.3d 4, 8-9 (2013); Readenour v. Marion Power Shovel, 149 Ariz. 442, 449-50, 719 P.2d 1058, 1065-66 (1986). ¶ 15 These observations apply to video evidence. Such evidence, while perhaps highly probative, may also potentially be unfairly prejudicial or misleading, whether or not the video has been cropped or otherwise edited. See, e.g., 2 McCormick on Evidence § 216 (7th ed. 2013) (“[Cjameras do not record everything, and do record only from the perspective of where they are situated. Enhancing and editing add a human element of subjectivity which should also be examined and understood by the jury.”); see also Snead v. Am. Exp.-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150 (E.D.Pa.1973) (Noting that “[t]he editing and splicing of films may change the chronology of events____ Thus, that which purports to be a means to reach the truth may be distorted, misleading, and false.”). Such dangers, however, might be mitigated by testimony that explains the circumstances in which the video was made or by cautionary instructions. Here, for example, the State argues that Moran will not be unfairly prejudiced by admitting the video segment because Ponce will be available to testify about its preparation, and he and other witnesses can describe surrounding events that are not depicted on the video. ¶ 16 In these circumstances, the court of appeals erred by addressing the Rule 403 issue in the first instance. Instead, the trial court should have the first opportunity to consider, in light of other evidence in the case, whether the probative value of the video excerpt is substantially outweighed by the danger of unfair prejudice to Moran. B. ¶ 17 Moran also argues that the trial court’s ruling is supported by other evidence rules cited in the ruling and identified in her motion to preclude. We consider these arguments as alternative grounds for affirming the decision below. See State v. Romero, 239 Ariz. 6, 11-12 ¶¶ 25-28, 365 P.3d 358, 363-64 (2016) (addressing alternative grounds relied on by trial court to exclude evidence). ¶ 18 First, Moran argues that Rule 1002, the “best evidence rule,” requires introduction of the entire five-minute video as originally recorded by Ponce. But this contention misunderstands Rule 1002, which provides that “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or an applicable statute provides otherwise.” Rule 1002 applies when a witness seeks to testify about the contents of a writing, recording, or photograph without producing the item itself. See 6 Weinstein’s Federal Evidence § 1002.05[1] (2d ed. 2016). ¶ 19 Rule 1002 does not require an original writing, recording, or photograph to prove an event that existed independently of its description in such items. Whether the rule applies depends on whether the content of the original is at issue. As the Advisory Committee Notes to Federal Rule 1002 explain: The usual course is for a witness on the stand to identify the photograph or motion picture as a correct representation of events which he saw or of a scene with which he is familiar [and] ... he adopts the picture as his testimony, or ... uses the picture to illustrate his testimony. Under these circumstances, no effort is made to prove the contents of the picture, and the rule is inapplicable. ¶ 20 Here, the State intends to call Ponce, and other witnesses, to identify the video as a representation of the altercation that unfolded between Moran and L.U. Thus, the video excerpt will illustrate the witnesses’ testimony rather than prove the contents of the original video. Because the best evidence rule is inapplicable here, the trial court erred by excluding the video on Rule 1002 grounds. ¶ 21 Rule 801, the hearsay rule, likewise is not a basis for precluding the video. Hearsay is defined by Rule 801(c)(1) and (2) as a statement “the declarant does not make while testifying at the current trial or hearing” that is offered “in evidence to prove the truth of the matter asserted.” See State v. Forde, 233 Ariz. 543, 564 ¶ 78, 315 P.3d 1200, 1221 (2014). Moran argues that the cellphone video contains multiple levels of hearsay because Ponce and his companion can be heard making statements in response to the stabbing and because Mahfouz “retold” the hearsay he learned from Ponce when he gave the video to the police. ¶ 22 A “statement” for purposes of the hearsay rule includes not only verbal but also nonverbal conduct, provided the latter is intended to be an assertion. See Ariz. R. Evid. 801(a). Conduct can only be deemed an assertion if there is specific evidence or circumstances indicating the actor intended the conduct to be an assertion of the fact sought to be proved. See State v. Ellison, 213 Ariz. 116, 132 ¶ 56, 140 P.3d 899, 915 (2006); see also Fed. R. Evid. 801 advisory committee note to subdivision (a) (“[t]he effect of the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion”). The conduct captured by Ponce’s video—the altercation and subsequent subsenot conduct intended as an assertion of any fact; thus, the video is not hearsay and should not have been precluded as such. ¶ 23 In addition to depicting non-assertive conduct, the video also recorded some verbal statements by Ponce or other witnesses. These statements, however, qualify as “excited utterances” or “present sense impressions” and thus are not precluded by the hearsay rule. See Ariz. R. Evid. 803(1), (2). (As the State acknowledged before this Court, any hearsay issue regarding the verbal statements could also be obviated by muting the sound on the video excerpt.) An excited utterance is a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Rule 803(2); see State v. Whitney, 159 Ariz. 476, 482-84, 768 P.2d 638, 644-46 (1989). For a statement to qualify as a present sense impression, the statement “must describe or explain an event or condition while the viewer is perceiving it or immediately thereaftei’.” State v. Payne, 233 Ariz. 484, 503 ¶ 50, 314 P.3d 1239, 1258 (2013) (internal quotations and citations omitted). Ponce and his companion’s recorded statements are either a witness’s shocked reactions upon seeing a stabbing or descriptions made by witnesses while observing events as they occurred. ¶ 24 Moran also identifies Rule 901 as a basis for excluding the video. That rule requires the proponent to authenticate or identify an item of evidence by producing “evidence sufficient to support a finding that the item is what the proponent claims it is.” Ariz. R. Evid. 901(a); State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). Such a foundation may be laid by evidence either identifying the item or establishing chain of custody. State v. Amaya-Ruiz, 166 Ariz. 152, 169, 800 P.2d 1260, 1277 (1990); State v. Ashelman, 137 Ariz. 460, 465, 671 P.2d 901, 906 (1983). ¶ 25 Moran argues that the State cannot satisfy Rule 901 because it cannot show continuity of possession and, thus, a proper chain of custody. See State v. Hurles, 185 Ariz. 199, 206, 914 P.2d 1291, 1298 (1996) (“an exhibit may be admitted when there is evidence that strongly suggests the exact whereabouts of the exhibit at all times and which suggests no possibility of substitution or tampering”) (internal quotations and citations omitted). This argument founders because Rule 901 does not invariably require chain of custody testimony, but instead may be satisfied if the proponent produces “evidence sufficient to support a finding that the item is what the proponent claims it is.” See Ariz. R. Evid. 901(a); see also State v. Emery, 141 Ariz. 549, 551, 688 P.2d 175, 177 (1984) (reasoning that a party can lay sufficient foundation for evidence by having a “witness ... testify that the item is what it is claimed to be”). ¶ 26 Generally, “the requirements for admission of a video recording should be the same as for a photo, that it fairly and accurately depicts that which it purports to show.” State v. Haight-Gyuro, 218 Ariz. 356, 358 ¶ 7, 186 P.3d 33, 35 (App.2008). Thus, even if the State cannot establish chain of custody, Ponce or other witnesses present when the video was made can lay a sufficient foundation by testifying that it fairly and accurately depicts events perceived by the witness. Accordingly, Rule 901 does not preclude admission of the video excerpt into evidence. III. ¶27 The trial court erred by precluding the video excerpt based on Evidence Rules 106, 1002, 801, and 901. We therefore vacate its suppression order, vacate the opinion of the court of appeals, and remand the case to the trial court so it may consider, in the first instance, whether this evidence should be precluded under Rule 403.

OPINION VÁSQUEZ, Presiding Judge: ¶ 1 Appellees Loni Kambitsch and Nicholas Kjolsrud were charged with multiple drug-related offenses based on drugs and drug paraphernalia seized from their vehicle after a traffic stop. Relying, in part, on Rodriguez v. United States, — U.S. -, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), the trial court granted Kambitsch and Kjolsrud’s motion to suppress the drug evidence, finding continued detention by a sheriffs deputy to conduct a drug-detection-dog investigation after the completed traffic stop was not based on reasonable suspicion. The state dismissed the eases and filed these appeals pursuant to A.R.S. § 13-4032(6). The state argues the court erred when it concluded the deputy conducting the stop lacked reasonable suspicion to expand the scope of the detention. The state also contends the good-faith exception to the exclusionary rule applies because the deputy relied on previously binding precedent when conducting the search. For the following reasons, we affirm. Factual and Procedural Background ¶ 2 We view the evidence in the light most favorable to upholding the trial court’s suppression order. State v. Vera, 196 Ariz. 342, ¶ 3, 996 P.2d 1246, 1247 (App.1999). On an early morning in September 2014, Cochise County Sheriffs Deputy Adam Werkheiser stopped the ear being driven by Kambitsch because its license plate was not illuminated. Werkheiser approached the passenger-side window and asked Kambitsch for her driver license, vehicle registration, and proof of insurance. He asked Kjolsrud, the sole passenger, for his identification. Kambitsch and Kjolsrud gave Werkheiser the requested items. Werkheiser then asked if there were any weapons in the vehicle and “specifically ... if there was anything illegal within the passenger compartment.” Kjolsrud said they had a rifle in the trunk, but both occupants stated there was nothing illegal in the car. ¶ 3 Werkheiser returned to his patrol vehicle and performed a records check, which revealed no issues with Kambitsch’s driver license, but both Kambitsch and Kjolsrud had outstanding, “non-extraditable” warrants. He also remembered Kjolsrud “had been involved in a [prior] drug offense case.” By that time, Deputy Michael McGeoghegan arrived at the scene as “a back-up officer.” Although Werkheiser testified he “could have concluded the stop at that time” because he “knew the warrants were non-extraditable” he nevertheless asked Kambitsch to step out of the car and brought her near “the passenger fender of [his] vehicle.” ¶4 Werkheiser testified Kambitsch made no eye contact as they walked to his patrol vehicle, and, without prompting, she quickly stated that she was aware of the warrant and “[t]he police were always harassing her” about it. Kambitsch also emptied her pockets and stated, “See, I don’t have anything on me” and “I’m clean.” Werkheiser “thought it was odd because [he] hadn’t asked her” a question yet and Kambitsch seemed rushed. ¶ 5 Werkheiser then asked for consent to search her vehicle. Kambitsch replied: “I know my rights. I don’t have to let you search. I know what my fiancé is going to say. He’s going to say, No, and also if you want to search you can get a dog.” Werkheiser testified he did not interpret this statement as giving consent. He then radioed for Deputy Robert Watkins to bring his drug-detection dog to the scene. The dog alerted to the vehicle, and during a subsequent search, deputies found ninety-four grams of methamphetamine, as well as tinfoil and a spoon covered in a “black gooey substance.” ¶ 6 A grand jury indicted both Kambitsch and Kjolsrud for conspiracy to commit possession of a dangerous drug for sale, transportation of a dangerous drug for sale, possession of a dangerous drug for sale, and two counts of possession of drug paraphernalia. Kambitsch filed a motion to suppress, which Kjolsrud joined, arguing that although the initial stop was justified, Werkheiser lacked reasonable suspicion to prolong the stop. A little more than a month before the suppression hearing, the United States Supreme Court issued its decision in Rodriguez, — U.S. at-, 135 S.Ct. at 1614-16, holding that law enforcement officers may not “extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.” Kambitsch and Kjolsrud informed the trial court of Rodriguez on the day of the suppression hearing, and the state filed a response the following day arguing that, even if a constitutional violation had occurred, the good-faith exception to the exclusionary rule applied and, therefore, the evidence should not be suppressed at trial. ¶ 7 After an evidentiary hearing, the trial court granted the motion to suppress, “concluding] that by detaining Kambitsch and Kjolsrud after conducting a records check and warrants check, Werkheiser prolonged the traffic stop beyond the time reasonably required to complete his task, i.e., issue the eitation/repair order” and, “[m]oreover, the prolongation was not supported by independent reasonable suspicion.” The state then moved to dismiss the charges without prejudice and initiated these appeals, which we consolidated. We have jurisdiction pursuant to A.R.S. §§ 12—120.21(A)(1), 13-4031, and 13-4032(6). Illegal Search and Seizure ¶ 8 The state argues Werkheiser did not extend the traffic stop impermissibly and had developed reasonable suspicion during the stop to conduct a further investigation. When reviewing an order granting a motion to suppress, this court considers only the evidence presented during the suppression hearing, State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App.2007), and defers to the trial court’s factual findings, State v. Barnes, 215 Ariz. 279, ¶ 2, 159 P.3d 589, 590 (App.2007). We review mixed questions of fact and law—including the court’s ultimate conclusion as to whether reasonable suspicion existed—de novo. State v. Wyman, 197 Ariz. 10, ¶5, 3 P.3d 392, 395 (App.2000); Vera, 196 Ariz. 342, ¶4, 996 P.2d at 1247. ¶ 9 The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const, amend. IV; see State v. Gilstrap, 235 Ariz. 296, ¶ 7, 332 P.3d 43, 44 (2014). “ ‘An investigatory stop of a motor vehicle constitutes a seizure,’ ” but is less intrusive than an arrest, and for that reason officers “need only possess a reasonable suspicion that the driver has committed an offense” to conduct a stop. State v. Livingston, 206 Ariz. 145, ¶ 9, 75 P.3d 1103, 1105 (App.2003), quoting State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). Thus, an officer who has witnessed a traffic violation may initiate a stop. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Vera, 196 Ariz. 342, ¶ 5, 996 P.2d at 1247. ¶ 10 That justification, however, does not give an officer authority to conduct the stop indefinitely. See State v. Sweeney, 224 Ariz. 107, ¶ 17, 227 P.3d 868, 873 (App.2010) (traffic stop “ ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop’ ”), quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). “[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns.” Rodriguez, — U.S. at -, 135 S.Ct. at 1614, quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). In other words, “[a]uthority for the seizure ... ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. Once the time needed to complete this mission has passed, an officer “must allow a driver to continue on his way unless (1) the encounter between the driver and the officer becomes consensual, or (2) during the en counter, the officer develops a reasonable and articulable suspicion that criminal activity is afoot.” Sweeney, 224 Ariz. 107, ¶ 17, 227 P.3d at 873; see also State v. Teagle, 217 Ariz. 17, ¶ 22, 170 P.3d 266, 272 (App.2007). ¶ 11 The parties do not dispute that the initial traffic stop was reasonable. Werkheiser properly conducted the stop after viewing a traffic violation. See A.R.S. § 28-925(C); Vera, 196 Ariz. 342, ¶ 5, 996 P.2d at 1247. And, it was reasonable for Werkheiser to make contact with Kambitsch and Kjolsrud, collect their documents, and perform a records cheek. See Rodriguez, — U.S. at -, 135 S.Ct. at 1615 (“ ‘ordinary inquiries incident to’ ” traffic stops include “cheeking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance”), quoting Caballes, 543 U.S. at 408, 125 S.Ct. 834. ¶ 12 Werkheiser testified that after he completed these tasks, he “could have concluded the stop at that time ... because [he] knew the warrants were non-extraditable.” Although his original “intent was just to give the driver a warning for equipment violation,” he decided to wait to “start th[at] process ... after [he] radioed Deputy Wat[kins].” When the trial court asked “[w]hat prevented [him] from writing the warning and repair order prior to questioning ... Kambitsch,” Werkheiser responded, “I guess myself.” Thus, when he asked Kambitsch to step out of the car and walk back to his vehicle, under Rodriguez, this further delay amounted to an additional seizure requiring independent reasonable suspicion. See Rodriguez, — U.S. at-, 135 S.Ct. at 1614-15. ¶ 13 The state nevertheless argues “[officers are permitted to ask motorists questions, even unrelated to traffic stops, so long as the police do not unreasonably prolong the stop” and “are allowed to order occupants out of a car, ... especially when reasonably necessary for safety concerns.” Law enforcement officers are permitted to remove occupants from a vehicle as a safety precaution. See Pennsylvania v. Mimms, 434 U.S. 106, 117 n. 6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). But in Rodriguez, the United States Supreme Court clarified this general rule: “Unlike a general interest in criminal enforcement, ... the government’s officer safety interest stems from the mission of the stop itself____On-scene investigation into other crimes, however, detours from that mission____So too do safety precautions taken in order to facilitate such detours.” Rodriguez, — U.S. at-, 135 S.Ct. at 1616. ¶ 14 Nothing in the record suggests Werkheiser had safety concerns when he returned to the car after the records check was completed. He conceded he had no reason to question that the rifle “was secured in the trunk” of the vehicle and it did not “eause[ him] any concern for [his] own personal safety.” Werkheiser testified: Based on [the warrants] I wanted to determine if there was any criminal activity going on. In most of my criminal investigations I thought it was good to talk to people away from other people to get their stories correct or to see if them stories are different or the same. Thus, removing the driver from the car to undertake further questioning falls into the category of a “detour” from the mission of the underlying traffic stop as described in Rodriguez. And, because Werkheiser conceded that, instead of taking this detour, he could have completed the traffic stop at that time, his detour amounts to an additional seizure under the Fourth Amendment. ¶ 15 Consequently, we must determine whether the deputy had reasonable suspicion to extend the detention beyond the traffic stop. Reasonable suspicion exists if, under the totality of the circumstances, an officer developed “ ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Evans, 237 Ariz. 231, ¶ 8, 349 P.3d 205, 208 (2015), quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). “ ‘[I]n determining whether [an] officer acted reasonably ..., due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.’ ” State v. Johnson, 220 Ariz. 551, ¶ 6, 207 P.3d 804, 808 (App.2009), quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (first alteration in Johnson); see also State v. Fornof, 218 Ariz. 74, ¶¶ 5-6, 179 P.3d 954, 956 (App.2008). ¶ 16 Werkheiser testified that he “suspected there was criminal activity going on after [he] received the information from the cheeks.” Kambitsch’s warrant “was for a drug offense,” but Werkheiser could not “recall the nature” of Kjolsrud’s warrant. He also “looked up [Kjolsrud’s] involvements within [the] department’s database” because he remembered Kjolsrud “had been involved in a drug offense ease” before. But Werkheiser never testified about what, if anything, he had discovered or how Kjolsrud had been involved in the prior case. ¶ 17 Criminal history alone cannot support a finding of reasonable suspicion. State v. Woods, 236 Ariz. 527, ¶ 12, 342 P.3d 863, 866 (App.2015). And, although an outstanding warrant could ‘“cast a suspicious light on ... seemingly innocent behavior,’ ” id., quoting United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir.2010) (alteration in Woods), in this ease we agree with the trial court—Werkheiser did not identify any other circumstances that established reasonable suspicion. He stated the location of the stop was not “a high-crime area,” “[t]here was nothing inconsistent or implausible about [their] ... mode of travel that night,” he did not observe anything in particular when he made contact with Kambitsch and Kjolsrud, and he had not “formed any opinions or anything” before returning to his vehicle for the records cheek. See Fornof, 218 Ariz. 74, ¶ 5, 179 P.3d at 956 (appellate court must “ ‘give due weight to inferences drawn from [the] facts by ... local law enforcement officers’”), quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Thus, it appears Werkheiser’s decision to conduct a separate criminal investigation was based solely on the warrants and Kjolsrud’s involvement in a former case. Considering the totality of the circumstances, the deputy lacked reasonable suspicion to delay the traffic stop, and that delay amounted to an unreasonable search and seizure. See Wyman, 197 Ariz. 10, ¶ 5, 3 P.3d at 395; Vera, 196 Ariz. 342, ¶4, 996 P.2d at 1247. Exclusionary Rule ¶ 18 The state argues that, even if the delay resulted in an unlawful search and seizure, the trial court should not have suppressed the evidence obtained from that search. It asserts “Werkheiser acted in good faith on existing case law in conducting the traffic stop” and therefore the good-faith exception to the exclusionary rule applies. We review the court’s application of exclusionary principles de novo. State v. Rosengren, 199 Ariz. 112, ¶9, 14 P.3d 303, 307 (App.2000). The state bears the burden of showing the exception applies. State v. Crowley, 202 Ariz. 80, ¶ 32, 41 P.3d 618, 629 (App.2002). ¶ 19 “[T]he sole purpose of the exclusionary rule [is] to deter Fourth Amendment violations,” State v. Driscoll, 238 Ariz. 432, ¶ 11, 361 P.3d 961, 963 (App.2015), in particular when “ ‘the police have engaged in willful, or at the very least negligent, conduct,’ ” State v. Hyde, 186 Ariz. 252, 275, 921 P.2d 655, 678 (1996), quoting Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). But the threat of suppression has little effect when officers act with the reasonable, good-faith belief that their conduct falls within the permissible bounds of the Fourth Amendment. See State v. Killian, 158 Ariz. 585, 588, 764 P.2d 346, 349 (App.1988). Thus, “[e]videnee obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.” Davis v. United States, 564 U.S. 229, 241, 131 S.Ct. 2419, 2429, 180 L.Ed.2d 285 (2011). ¶ 20 For our purposes, binding precedent is “Arizona or Supreme Court authority [that] explicitly authorized” the conduct in question. State v. Mitchell, 234 Ariz. 410, ¶ 31, 323 P.3d 69, 78 (App.2014); see State v. Reyes, 238 Ariz. 575, ¶¶ 11-12, 364 P.3d 1134, 1136 (App.2015). If the law is, “at the very least, unsettled,” then “application of the exclusionary rule would provide meaningful deterrence because ... it incentivizes law enforcement to err on the side of constitutional behavior.” Mitchell, 234 Ariz. 410, ¶ 31, 323 P.3d at 78. In other words, although law enforcement agencies are not “expected to anticipate new developments in the law,” they should be aware of “reasonable” interpretations of existing case law. Id. ¶21 The issue at hand, then, is whether Werkheiser’s conduct was authorized by binding Arizona precedent prior to Rodriguez. Two cases are instructive on this point: Sweeney and State v. Box, 205 Ariz. 492, 73 P.3d 623 (App.2003), abrogated in part by Driscoll, 238 Ariz. 432, ¶¶ 12-13, 17, 361 P.3d at 964-65. In each ease, this court considered whether an officer’s delay in order to conduct a dog sniff after a completed traffic stop amounted to an additional detention requiring independent reasonable suspicion. Sweeney, 224 Ariz. 107, ¶¶ 13-15, 227 P.3d at 872; Box, 205 Ariz. 492, ¶¶ 13-20, 73 P.3d at 627-29. In Box, the officer “was traveling with a trained narcotics detection dog” and the delay needed to conduct the dog sniff was “less than a minute.” Box, 205 Ariz. 492, ¶¶ 5, 24, 73 P.3d at 625, 630. This court therefore concluded the delay was “de minimis and not unreasonable under the Fourth amendment.” Id. ¶¶ 18, 24; see also United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir.1999) (two-minute delay for dog sniff a de minimis intrusion on defendant’s liberty), abrogated by Rodriguez, — U.S. at -, 135 S.Ct. at 1615-16. In Sweeney, by contrast, the officer “waited until the arrival of a second officer (whose presence he had not requested until after [the defendant] declined to consent to a search) before conducting the sniff.” 224 Ariz. 107, ¶ 15, 227 P.3d at 872. Thus, we concluded that delay “was an additional seizure under the Fourth Amendment,” requiring reasonable suspicion independent of the traffic violation. Id. ¶ 20. ¶ 22 The state maintains that Box—along with its de minimis intrusion rule—was binding precedent and that Rodriguez “broke new ground in concluding that a dog sniff conducted after a completed traffic stop unconstitutionally extended the stop.” See Driscoll, 238 Ariz. 432, ¶ 17, 361 P.3d at 965 (relying on Box as binding precedent). It suggests “the trial court did not consider the reasonableness of the officers’ conduct in light of the then-applicable law” and instead improperly focused solely on Rodriguez, which the state characterized as a “knee jerk reaction” during oral argument before this court. We disagree. ¶ 23 Even if made before Rodriguez, the trial court’s ruling would have been correct. Like the officer in Sweeney, Werkheiser called for another deputy to come to the scene before the dog sniff occurred. This delay—approximately ten minutes—was not “a de minimis intrusion on the defendant’s liberty,” Sweeney, 224 Ariz. 107, ¶ 14, 227 P.3d at 872, as described in Box. Significantly, the court in Box considered the delay for a drug-detection dog to arrive at the scene to be “[a] noteworthy factual distinction.” Box, 205 Ariz. 492, ¶ 18, 73 P.3d at 628 (noting distinction between Box and United States v. Wood, 106 F.3d 942 (10th Cir.1997), in which the Tenth Circuit ordered drugs suppressed, “is that, in Wood, the officer making the traffic stop did not have a narcotics dog in his patrol car”). Under these circumstances, the good-faith exception does not apply. See Mitchell, 234 Ariz. 410, ¶ 31, 323 P.3d at 78. ¶ 24 Although the holding in Rodriguez was significant in Arizona to the extent it abrogated Box, its holding did not “overrule prior Supreme Court precedent or announce a new legal standard.” Id. Rather, Rodriguez applied a general rule that the Court had announced as early as 1983 in Royer, 460 U.S. at 500, 103 S.Ct. 1319, and again in 2005 in Caballes, 543 U.S. at 407, 125 S.Ct. 834. See Rodriguez, — U.S. at-, -, 135 S.Ct. at 1612, 1614 (relying on Royer and Caballes for the proposition that “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ ”); see also Sweeney, 224 Ariz. 107, ¶ 17, 227 P.3d at 873 (relying on Royer). “A seizure that is justified solely by the interest in issuing a ... ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Caballes, 543 U.S. at 407, 125 S.Ct. 834. ¶ 25 The state has not shown that the good-faith exception applies in this case. See Crowley, 202 Ariz. 80, ¶ 32, 41 P.3d at 629. Therefore, the trial court did not err when it suppressed the evidence. See Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d at 307. Disposition ¶ 26 For the foregoing reasons, we affirm the trial court’s orders granting Kambitsch and Kjolsrud’s motion to suppress. . The state asserts Werkheiser “observed that the vehicle contained a lot of personal property” and "that there was a blue butane torch on the passenger floorboard at [Kjolsrud’s] feet.” To the extent the state suggests these facts added to Werkheiser’s reasonable suspicion, we disagree. First, the timing of when the deputies noticed the torch was disputed at the hearing. Second, Werkheiser only stated that the personal property inside the vehicle added to his reasonable suspicion (1) at the end of his testimony, (2) at the prompting of the prosecutor, and (3) after having omitted this fact several times earlier when listing what factors had contributed to his suspicion. The trial court excluded these facts from its findings and, therefore, implicitly rejected the officer’s assertions. See State v. Pike, 113 Ariz. 511, 514, 557 P.2d 1068, 1071 (1976) (“The credibility of witnesses is a question for the trier of fact whose determination will not usually be disturbed on appeal.”). . The state raised its good-faith argument in a supplemental brief filed the day after the suppression hearing, and the trial court did not address the argument in its order. Nonetheless, we address this issue in the first instance because it is a mixed question of fact and law, the trial court provided ample findings of fact relevant to this issue, and all that remains to resolve is the application of the law to those facts. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 11, 288 P.3d 111, 114 (App.2012).

OPINION VÁSQUEZ, Presiding Judge: ¶ 1 In this special action, fifteen-year-old Emily McGuire contends the respondent judge erred by denying her motion to dismiss the underlying armed robbery prosecution and to transfer the matter to the juvenile court. She contends that, because a simulated weapon was used during the alleged robbery, it is not a violent offense and she is not, therefore, subject to mandatory prosecution as an adult pursuant to article IV, pt. 2, § 22 of the Arizona Constitution and A.R.S. § 13-501(A). Although we accept jurisdiction of this special action, we deny relief because the respondent did not abuse his discretion in concluding the plain language of § 13-501 and A.R.S. § 13-1904, the armed robbery statute, require that McGuire be prosecuted as an adult. Factual and Procedural Background ¶ 2 The following facts are either undisputed or are established by the record before us, including the grand jury testimony of a sheriffs detective. A male with a hood over his head and his face covered approached the victim, who was in her car in the parking lot of a Tucson restaurant, pointed a gun at her, and demanded that she give him her purse. The victim complied, and the perpetrator ran from the scene with another person, whose head and face were also covered. Pima County Sheriffs Deputies apprehended fourteen-year-old J.M. He initially stated his sister, McGuire, was the robber and he had been the lookout, but he later admitted he had approached the victim with a toy gun and demanded her purse. Sheriffs deputies then found McGuire, who told them that she had been the lookout and that J.M. had robbed the victim. J.M. also told deputies they had left the purse in the yard of a house. Deputies found the purse and the toy gun the next day in a yard near the area where they had found J.M. and McGuire. ¶ 3 A sheriffs deputy initially took J.M. and McGuire to the Pima County Juvenile Detention Center. Because of McGuire’s age and the type of offense involved, however, the deputy then transported her to the Pima County Adult Detention Center. About two weeks later, in early 2016, McGuire was charged by indictment with armed robbery and aggravated robbery. She filed a Motion to Dismiss, or in the Alternative, to Transfer to Juvenile Court, arguing she was not subject to mandatory prosecution as an adult. She maintained that because the “plain language” of § 13-501 “reveals two reasonably plausible interpretations, it is ambiguous.” She contended that based on all subsections of the statute, read together, as well as the intent behind article IV, pt. 2, § 22 of the Arizona Constitution, a juvenile who commits armed robbery with a simulated weapon, a toy gun in this case, has not committed a violent offense and is not subject to mandatory prosecution as an adult. ¶ 4 The respondent judge disagreed with McGuire. Based on the language of § 13-501 and the armed robbery statute, § 13-1904, he concluded McGuire must be prosecuted as an adult and denied her motion. This special action followed. Special-Action Jurisdiction ¶ 5 The order McGuire challenges is interlocutory in nature and may not be appealed directly. See State v. Lee, 236 Ariz. 377, ¶ 9, 340 P.3d 1085, 1088-89 (App.2014). In addition, the issues raised involve pure questions of law regarding the interpretation and application of statutes and an amendment to our constitution. Id. And, the question of whether a juvenile who is fifteen years of age or older and has been charged with armed robbery involving the use of a simulated weapon must be charged as an adult is a question of first impression and statewide importance. State v. Bernini, 230 Ariz. 223, ¶ 5, 282 P.3d 424, 426 (App.2012). For these reasons, in the exercise of our discretion, we accept jurisdiction of this special action. Discussion ¶ 6 We may grant special-action relief only when a respondent judge has, inter alia, abused his discretion. See Ariz. R. P. Spec. Actions 3(e). An abuse of discretion includes an error in interpreting or applying the law. Sierra Tucson, Inc. v. Lee, 230 Ariz. 255, ¶ 22, 282 P.3d 1275, 1281 (App.2012). The interpretation and application of statutes and the constitution are questions of law, which we review de novo. See Lee, 236 Ariz. 377, ¶ 9, 340 P.3d at 1089 (statutes); Univ. Med. Ctr. Corp. v. Dep’t of Revenue, 201 Ariz. 447, ¶ 14, 36 P.3d 1217, 1220 (App.2001) (statutes and constitution). ¶ 7 In 1996, the electorate of the State of Arizona amended the constitution, adding article IV, pt. 2, § 22 by passing the Juvenile Justice Initiative, also known as Proposition 102. See State v. Davolt, 207 Ariz. 191, ¶ 100, 84 P.3d 456, 479 (2004). The express intent of the amendment was “to preserve and protect the right of the people to justice and public safety, and to ensure fairness and accountability when juveniles engage in unlawful conduct....” Ariz. Const, art. IV, pt. 2, § 22. It was designed “to make possible more effective and more severe responses to juvenile crime.” Davolt, 207 Ariz. 191, ¶ 100, 84 P.3d at 479. “[Accordingly, it required the state to prosecute juveniles as adults in specified circumstances.” Lee, 236 Ariz. 377, ¶ 15, 340 P.3d at 1090. The amendment created two categories of juveniles who must be prosecuted as adults: juveniles fifteen years of age or older who are “accused of murder, forcible sexual assault, armed robbery or other violent felony offenses as defined by” the legislature, and chronic felony offenders, also as defined by the legislature. Ariz. Const. art. IV, pt. 2, § 22(1). It left to the discretion of prosecutors the decision whether to prosecute as adults certain juveniles who are not chronic felony offenders and who commit non-violent offenses. Ariz. Const. art. IV, pt. 2, § 22(2). ¶ 8 The legislature enacted § 13-501 in 1997 “in order to effectuate and implement” the constitutional amendment. Lee, 236 Ariz. 377, ¶ 15, 340 P.3d at 1090. The statute provides, in relevant part, as follows: A The county attorney shall bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is fifteen, sixteen or seventeen years of age at the time the alleged offense is committed and the juvenile is accused of any of the following offenses: 1. First degree murder in violation of § 13-1105. 2. Second degree murder in violation of § 13-1104. 3. Forcible sexual assault in violation of § 13-1406. 4. Armed robbery in violation of § 13-1904. 5. Any other violent felony offense. 6. Any felony offense committed by a chronic felony offender. 7. Any offense that is properly joined to an offense listed in this subsection. § 13-501. ¶ 9 Section 13-1904, referred to in § 13-501(A)(4), provides that “[a] person commits armed robbery if, in the course of committing robbery” under A.R.S. § 13-1902, the “person or an accomplice: 1. Is armed with a deadly weapon or a simulated deadly weapon; or 2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon.” In addition to offenses specified in § 13-501(A)(1) through (A)(4), pursuant to § 13-501(A)(5) the legislature added the following “other violent felony offense[s]” in § 13-501 (H)(4): aggravated assault (serious physical injury), aggravated assault (use of a deadly weapon or dangerous instrument), drive-by shooting, and discharge of a firearm at a structure. ¶ 10 “ ‘Our primary task in interpreting statutes is to give effect to the intent of the legislature.’ ” Lee, 236 Ariz. 377, ¶ 16, 340 P.3d at 1090, quoting In re Estate of Winn, 214 Ariz. 149, ¶ 8, 150 P.3d 236, 238 (2007). Similarly, “[w]hen a court interprets the scope and meaning of an amendment to Arizona’s Constitution, its primary purpose is to achieve the intent of the electorate that adopted the amendment.” In re Cameron T., 190 Ariz. 456, 460, 949 P.2d 545, 549 (App.1997); see also Fields v. Elected Officials’ Ret. Plan, 234 Ariz. 214, ¶ 19, 320 P.3d 1160, 1165 (2014). The plain language of a statute or constitutional amendment is the best indicator of the intent of the legislature in enacting the statute, Lee, 236 Ariz. 377, ¶ 16, 340 P.3d at 1090-91, and the intent of the electorate in amending the constitution, Soto v. Superior Court, 190 Ariz. 450, 454-55, 949 P.2d 539, 543-44 (App.1997). “ ‘If the language is clear and unambiguous, we generally must follow the text of the provision as written.’ ” Id., quoting Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). When the terms are clear, we do not “employ principles of statutory construction to determine the legislature’s intent.” Lee, 236 Ariz. 377, ¶ 16, 340 P.3d at 1091. Rather, we give words their plain meaning unless the statute provides a specific definition for its terms “ ‘or the context clearly indicates that a special meaning was intended.’” Id., quoting State v. Jones, 222 Ariz. 555, ¶ 14, 218 P.3d 1012, 1016 (App.2009). ¶ 11 McGuire argues that “[a]t best, the statute’s plain language, when interpreted in context with the Arizona Constitutional provisions, is ambiguous.” She contends the stated purpose and language of article IV, pt. 2, § 22(1) establish it was intended to only require adult prosecution of a child fifteen years of age or older who has committed a violent offense. As support for this assertion, she points to the fact that after listing the specific offenses, the constitutional provision adds, “or other violent offenses as defined by statute,” thereby implying that the preceding portion refers to violent offenses. McGuire argues this interpretation is further supported by article IV, pt. 2, § 22(2), which distinguishes the violent offenses listed in § 22(1) from other, non-violent offenses, for which a juvenile may be prosecuted as an adult in the prosecutor’s discretion. McGuire asserts the statute is ambiguous because, although armed robbery is specifically listed, that offense is not necessarily a violent offense when, as here, the person or an accomplice is armed with, uses, or threatens to use a simulated deadly weapon. Under those circumstances, she insists, the juvenile is not subject to mandatory prosecution as an adult. ¶ 12 Article IV, pt. 2, § 22 and § 13-501(A) plainly and unambiguously list armed robbery among the felony offenses that require mandatory adult prosecution. In codifying the constitutional amendment, the legislature included in the subsections of § 13-501(A) the statutes that correspond to each of the specified offenses. Thus, § 13-501(A)(4) refers to § 13-1904, the armed robbery statute. Consistent with the constitutional provision, the legislature did not limit the application of § 13-1904 in § 13-501(A)(4) to robbery committed while the person or an accomplice is armed with a deadly weapon or uses or threatens to use a deadly weapon or dangerous instrument. ¶ 13 McGuire asserts the limitation on armed robbery is implicit in the statute based on the intent behind the constitutional provision, the statute’s language, and context in which armed robbery is listed as an offense. She suggests this interpretation is further supported by the legislature’s addition of aggravated assault as another “violent felony offense” pursuant to § 13-501(A)(5). The legislature only added aggravated assault resulting in “serious physical injury,” AR.S. § 13-1204(A)(1), and aggravated assault involving the use of “a deadly weapon or dangerous instrument,” § 13-1204(A)(2). See § 13-501 (H)(4). McGuire insists this reflects the legislature’s intent that an actual weapon must be involved in order for an offense to be violent for purposes of § 13-501(A). ¶ 14 With respect to the list of offenses that require a juvenile to be prosecuted as an adult, we have found the constitutional provision clear. Soto, 190 Ariz. at 455, 949 P.2d at 544 (finding “‘forcible sexual assault’ no more vague than murder or armed robbery”). As we previously stated, the language of § 13-501(A) is equally clear. We presume that, when the legislature enacted § 13-501, it was aware that under § 13-1904, armed robbery may be based on the use or threatened use of a simulated deadly weapon. See Lee, 236 Ariz. 377, 1123, 340 P.3d at 1092 (presuming legislature “was aware of [A.R.S.] § 13-604 or its precursor ... when it enacted” § 13-501). Had the legislature intended to restrict armed robbery for purposes of § 13-501(A) to situations in which an actual deadly weapon or dangerous instrument was involved, “presumably [it] would have ... done so” in § 13-501(A)(4). Id.; cf. Luchanski v. Congrove, 193 Ariz. 176, ¶ 14, 971 P.2d 636, 639 (App.1998) (“When the legislature has specifically included a term in some places within a statute and excluded it in other places, courts will not read that term into the sections from which it was excluded.”). It could have included a limitation in § 13-501(A)(4) similar to the limitation it placed on aggravated assault but it chose not to do so. ¶ 15 But even assuming McGuire is correct that the intent of both § 13-501(A) and article IV, pt. 2, § 22(1) is to require mandatory adult prosecution of juveniles only for violent offenses, we are not persuaded that armed robbery committed with a simulated deadly weapon is not a violent offense. McGuire relies on A.R.S. § 13-901.03 and this court’s decision in State v. Joyner, 215 Ariz. 134, 158 P.3d 263 (App.2007), for that proposition. Such reliance, however, is misplaced. ¶ 16 Section 13-901.03 is part of the chapter of title 13 pertaining to probation. It specifically relates to AR.S. § 13-901.01, which codified the voter initiative entitled, “Drug Medicalization, Prevention, and Control Act of 1996,” also known as Proposition 200. 1997 Ariz. Sess. Laws, Proposition 200, §§ 1, 10. The initiative and the enabling legislation were designed to reduce the legal consequences for individuals convicted of a first or second nonviolent drug offense by requiring courts to place such individuals on probation instead of incarcerate them. See State v. Rodriguez, 200 Ariz. 105, ¶ 2, 23 P.3d 100, 101 (App.2001). Mandatory probation, however, is not available to individuals who have “been convicted of or indicted for a violent crime as defined in § 13-901.03.” § 13-901.01(B). This section, formerly numbered as A.R.S. § 13-604.04, see 2008 Ariz. Sess. Laws, ch. 301, § 19, and enacted together with other Proposition-200-enabling legislation, see 1997 Ariz. Sess. Laws, ch. 6, § 1, provides that, “[f]or the purpose of this section, ‘violent crime’ includes any criminal act that results in death or physical injury or any criminal use of a deadly weapon or dangerous instrument.” That definition by its own terms only applies in the context of probation under § 13-901.01; it does not apply here. ¶ 17 Similarly, in Joyner, we were asked to decide whether former § 13-604.04 rendered the defendant ineligible for mandatory probation because previously he had been convicted of attempted armed robbery and armed robbery. 215 Ariz. 134, ¶ 8, 158 P.3d at 266-67. We concluded the defendant’s “prior conviction for armed robbery, as defined in § 13-1904, does not necessarily establish he used a deadly weapon or dangerous instrument because armed robbery may be committed with a simulated deadly weapon—and a ‘simulated deadly weapon’ may be neither deadly nor dangerous.” Id. ¶ 10. But as we pointed out, we were “constrained by the plain language of §§ 13-604.04 and 13-1904.” Id. n. 4. We observed that, based on other definitions in other contexts, armed robbery is a “ ‘erime[ ] of violence.’ ” Id., quoting State v. Lee, 185 Ariz. 549, 557, 917 P.2d 692, 700 (1996). ¶ 18 Section 13-706, A.R.S., is an example of another context in which armed robbery is considered a violent offense, regardless of how it was committed. In that sentencing provision for “[sjerious, violent or aggravated offenders,” the legislature defined “violent or aggravated felony” by listing a number of offenses, including, but not limited to, first-degree murder, second-degree murder, aggravated assault resulting in serious physical injury or involving the ■ discharge, use, or threatening exhibition of a deadly weapon or dangerous instrument, and armed robbery. § 13-706(F)(2)(a)-(e), (q). Again, armed robbery is not restricted to robbery committed with the use of a deadly weapon or dangerous instrument. Although not applicable in this context, § 13-706 illustrates that the legislature has regarded armed robbery as a violent offense in certain contexts, without regard to how it was committed. ¶ 19 The history of § 13-1904 also demonstrates that the legislature generally views armed robbery as a violent offense even if based on a simulated weapon. Our supreme court reviewed that history in State v. Garza Rodriguez, 164 Ariz. 107, 109-12, 791 P.2d 633, 635-38 (1990), in which it held that a simulated weapon may be the basis for an armed robbery conviction but the simulated weapon must be present, not just suggested. The court observed that when initially adopted in 1977, the robbery statutes contained gradations of the offense in terms of its seriousness, which were reflected in varying degrees of punishment, depending on whether a real weapon was actually present. Id. at 109-10, 791 P.2d at 635-36; see also 1977 Ariz. Sess. Laws, ch. 142, § 73. The court noted that the former statutes were premised on the policy view that the person who commits a robbery with a “ ‘toy gun’ ... is not nice ... but he is not the dangerous type for whom the greater penalty is reserved.’ ” Garza Rodriguez, 164 Ariz. at 110, 791 P.2d at 636, quoting State v. Franklin, 130 Ariz. 291, 293, 635 P.2d 1213, 1215 (1981). ¶ 20 When the armed robbery statute was amended in 1983, adding “or simulated deadly weapon,” the legislature eliminated the distinction between an item fashioned as or appearing to be a deadly weapon and an actual one. Id.; see also 1983 Ariz. Sess. Laws, ch. 129, § 1. As the court in Garza Rodriguez observed, “Both elements reflect the policy that the greater punishment is reserved to deter the dangerous person actually capable of inflicting death or serious bodily harm or intending to create a life endangering environment by carrying a deadly or simulated deadly weapon.” 164 Ariz. at 111, 791 P.2d at 637. Whether a simulated or real weapon is present, a perpetrator has forced a victim to give up his or her property by threatening violence that the perpetrator appears to be capable of carrying out. Thus, the legislature intended no distinction between armed robbery committed with an actual deadly weapon or a simulated deadly weapon. Id. Disposition ¶ 21 The respondent judge con’ectly concluded that McGuire must be prosecuted as an adult on the charge of armed robbery based on the plain language of §§ 13-501 and 13-1904. The respondent did not, therefore, abuse his discretion by denying the motion to dismiss the charge or, alternatively, to transfer the matter to the juvenile court. Ariz. R. P. Spec. Actions 3(c). Accordingly, we accept special-action jurisdiction but deny relief. . Given that the constitutional amendment did not limit the circumstances in which armed robbery subjects a juvenile to mandatory prosecution as an adult, we question whether the legislature would have the authority to limit it, even if the legislature had intended that result.

OPINION SWANN, Judge: ¶ 1 In 2013, the legislature amended A.R.S. § 25-409 to require that a court give “special weight” to a parent’s decision to oppose visitation between a child and a nonparent. We hold that a parent opposing visitation does not bear the burden of proof under this statute, and that “special weight” means the party seeking visitation must prove that a fit parent’s decision to deny visitation would substantially impair the child’s best interests. ¶ 2 In this ease, the court ordered visitation under AR.S. § 25-409 in favor of the former girlfriend of a fit mother. Though the court endeavored to apply the “special weight” requirement, we conclude that it misinterpreted the statutory language. The court overrode the mother’s opinion because it found that her testimony explaining her reasons for denying visitation was not “credible.” While credibility determinations lie within the unique province of the trial court, the credibility of the mother’s motivations was not the proper legal focus of the inquiry. By focusing on the mother’s personal motivations, the court effectively imposed a burden on her to justify her decision, when the burden should have been on the nonparent to demonstrate why visitation was necessary to protect the child’s interests. On this record, the adverse credibility determination should not have resulted in the automatic rejection of the mother’s decision to deny visitation. We therefore reverse and remand. FACTS AND PROCEDURAL HISTORY ¶ 3 Tashina Forsen (“Mother”) gave birth to a daughter (“Child”), out of wedlock, in April 2005. Mother never married Child’s father, and his parental rights were eventually severed. ¶ 4 Mother began dating Nicole Goodman in mid-2006, and the couple moved in together in November 2006. With the exception of one or more brief separations, Mother and Goodman lived together with Child for the next five years. The couple permanently separated in October 2011. For two years after the separation, Mother allowed Goodman to spend time with Child on a regular basis—initially four days a week after school and later, every weekend when Mother’s work schedule changed. But in September or October 2013, several months after Mother married her current wife, Mother unilaterally discontinued Goodman’s visits with Child. Goodman promptly petitioned for visitation, and the superior court set an evidentiary hearing. ¶ 5 Mother opposed visitation, explaining to a court-appointed parenting-conference provider that Goodman fought with her current girlfriend in front of Child, and the fights upset Child. According to Mother, she and Goodman had mutually engaged in domestic violence during their relationship, and Mother did not want Child to be exposed to similar interactions between Goodman and her girlfriend. The parties agreed that Mother had struck Goodman during a 2008 altercation but disputed whether Goodman had ever struck Mother. Goodman acknowledged that she and her current girlfriend had argued in front of Child, and she stated that she had yelled and slammed a door. Child spontaneously informed the parenting-conference provider that Goodman and her girlfriend “keep fighting over and over again,” and reported that Goodman was “really mean” to the girlfriend, “throw[ing] stuff, yell[ing] at her, and slam[ming] stuff.” Child told the provider that she would like to visit Goodman if she and Mother did not fight. ¶ 6 Mother also took issue with Goodman’s manner of disciplining Child. Though Mother and Goodman had agreed at the outset of their relationship that Goodman would not discipline Child, this changed as their relationship progressed. Goodman acknowledged that she had spanked Child as a form of discipline. According to Mother, she had asked Goodman not to spank Child, and she felt that Goodman spanked Child too hard. Mother further testified that Goodman had pinched Child’s arm and struck her face. ¶ 7 The court concluded that Goodman was entitled to visitation under A.R.S. § 25-409(C)(2) and (E). In determining that visitation was in Child’s best interests, the court examined the factors enumerated in § 25-409(E), and made extensive findings. The court found, inter alia, that Goodman had an in loco parentis relationship with Child and that Goodman was seeking visitation because she loved Child and Child loved her. We do not question these findings. The court also found that Mother’s testimony regarding domestic violence and physical discipline was not a credible basis for opposing visitation, and that Mother’s true motivation in opposing visitation was her desire to replace Goodman in Child’s life with her wife. The court stated that though it had given “special weight” to Mother’s opinion as to whether visitation with Goodman would serve Child’s best interests as required by § 25-409(E), Goodman’s evidence was more credible than Mother’s, and Goodman had rebutted a “presumption” that visitation was not in Child’s best interests. The court awarded visitation starting at five hours each month and gradually increasing to one day and night each month. The court ordered that Goodman’s girlfriend could not be present during the visits. ¶ 8 Mother timely appeals. DISCUSSION ¶ 9 A.R.S. § 25-409(C)(2) provides that the court may award visitation to any “person other than a legal parent” if “[t]he child was born out of wedlock and the child’s legal parents are not married to each other at the time the petition is filed.” Since January 2013, § 25-409(E) has required that the court consider relevant best-interests factors and give “special weight” to legal parents’ visitation decisions: In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents’ opinion of what serves their child’s best interests and consider all relevant factors including: 1. The historical relationship, if any, between the child and the person seeking visitation. 2. The motivation of the requesting party seeking visitation. 3. The motivation of the person objecting to visitation. 4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities. 5. If one or both of the child’s parents are deceased, the benefit in maintaining an extended family relationship. A.R.S. § 25-409(E) (emphasis added); compare 2003 Ariz. Sess. Laws, eh. 89, § 1 (1st Reg. Sess.) with 2012 Ariz. Sess. Laws, ch. 309, §§ 19, 20 (2d Reg. Sess.). We agree with the court that Goodman was eligible for nonparent visitation with Child under § 25-409(C)(2). But we agree with Mother that the court misapplied the law in determining Child’s best interests under the standard prescribed by § 25-409(E). ¶ 10 In Troxel v. Granville, a plurality of the Supreme Court held that a court “must accord at least some special weight to the parent’s own determination” of whether the parent’s child would benefit from visitation with a grandparent. 530 U.S. 57, 70, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). The plurality explained that “there is a presumption that fit parents act in the best interests of their children,” in accord with parents’ “fundamental constitutional right to make decisions concerning the rearing of [then.’] own [children].” Id. at 68, 70, 120 S.Ct. 2054 (plurality opinion). The plurality held that a court cannot interfere with a fit parent’s visitation decisions based on “mere disagreement” with those decisions. See id. at 68, 120 S.Ct. 2054 (plurality opinion). To serve this purpose and “alleviate[ ] any constitutional concerns in applying [A.R.S. § 25-409],” this court, in McGovern v. McGovern, superimposed Troxel’s evidentiary principles on the pre-2013 version of the statute. 201 Ariz. 172, 177-178, ¶¶ 17-20, 33 P.3d 506 (App.2011). ¶ 11 “Special weight” was not defined in Troxel, see 530 U.S. at 68, 70, 120 S.Ct. 2054, or in McGovern, see 201 Ariz. at 178, ¶ 18, 33 P.3d 506; nor did the legislature define “special weight” when it amended the statute to add the term, see A.R.S. § 25-409. When McGovern interpreted Troxel, it held that the term was subject to “development on a case-by-case basis.” 201 Ariz. at 178, ¶ 18, 33 P.3d 506 (citation omitted). In the wake of Troxel, courts in other jurisdictions have held that “special weight” requires the court to accord substantial deference to fit parents’ views. For example, the Ohio Court of Appeals has interpreted “special weight” to mean “extreme deference” that “will be overcome only by some compelling governmental interest and overwhelmingly clear circumstances supporting that governmental interest.” Oliver v. Feldner, 149 Ohio App.3d 114, 776 N.E.2d 499, 508, ¶ 59 (2002). Similarly, the Colorado Court of Appeals has described a “presumption [that] could only be rebutted by clear and convincing evidence that the parent is unfit to make the visitation decision or the parent’s visitation decision is not in the child’s best interests.” In re C.T.G., 179 P.3d 213, 223 (Colo.App.2007). ¶ 12 Though we agree with the overall thrust of these holdings, we decline to adopt their language. In our view, Oliver’s “extreme” deference standard is an overstatement of the meaning of the term “special weight.” We disagree with Oliver’s holding that constitutional strict scrutiny applies to the visitation decision—that standard was not adopted by the Troxel plurality. And the C.T.G. standard creates a formal presumption and burden of proof under Colorado law that our legislature has not enacted. Though we do not adopt the C.T.G. formulation literally, however, it is based on the same considerations that guide our decision in this case. ¶ 13 Our interpretation of A.R.S. § 25-409(E) recognizes that the “special weight” requirement demands robust deference to fit parents’ opinions concerning their children’s best interests. “Consistent with the constitutional right to parent, the legislature has provided nonparents with fewer rights than parents.” Egan v. Fridlund-Horne, 221 Ariz. 229, 238, ¶ 31, 211 P.3d 1213 (App.2009). Assuming parental fitness, the analysis required under § 25-409 is not a typical balancing test in which the court’s own determination of best interests is controlling—we interpret “special weight” to mean that the parents’ determination is controlling unless a parental decision clearly and substantially impairs a child’s best interests. Even if arbitrary, the parents’ determination is the primary factor in the analysis, and the burden is on the person seeking visitation to demonstrate that denial of visitation would clearly and substantially impair the child’s interests. ¶ 14 That is not to say that a fit parent’s decision must always be upheld. See McGovern, 201 Ariz. at 178, ¶ 19, 33 P.3d 506 (holding that the evidentiary principles announced by the Troxel plurality “affect but do not necessarily control a trial court’s determinations of ‘best interests of the child’ ”) (citation omitted) (emphasis added); see also In re K.H., 235 W.Va. 254, 773 S.E.2d 20, 31 (2015) (“[T]he pronouncements of Troxel do not predispose every case to an ultimate determination favoring the natural parent in a complete and conclusive manner. An assessment of the specific circumstances of each case is still required ... ”); Williams v. Williams, 132 N.M. 445, 50 P.3d 194, 199 (App.2002) (“[W]e do not read Troxel as giving parents the ultimate veto on visitation in every instance. Troxel may have altered, but it did not eradicate, the kind of balancing process that normally occurs in visitation decisions.”). For example, in some circumstances an order authorizing visitation may be needed to protect the child from incurring harm, including emotional harm caused by isolation from a de facto parent. Oliver, 776 N.E.2d at 508, ¶¶ 60-62. But a nonparent who seeks visitation carnes a substantial burden to prove that the parent’s decision is harmful. It is not enough merely to show that the nonparent stands in loco parentis to the child. See Egan, 221 Ariz. at 238, ¶ 32, 211 P.3d 1213. Nor is it enough merely to show that a reasonable person could disagree with the parent’s decision to deny visitation. See Troxel, 530 U.S. at 68, 120 S.Ct. 2054 (plurality opinion). The court’s role is not to engineer what it perceives to be the optimal situation for the child, but to determine whether compelling circumstances warrant state interference with a fit parent’s decisions. The nonparent must prove that the child’s best interests will be substantially harmed absent judicial intervention. ¶ 15 Here, the court made extensive findings regarding Child’s best interests. But on this record, the court’s rejection of Mother’s opinion, where Mother was undisputedly a fit parent, demonstrates that it placed a burden on Mother that the statute does not allow. ¶ 16 The court explained its view of the burden of proof twice, first informing the parties that it “expect[ed] [Mother’s counsel] to present evidence as to why it would be contrary to Child’s best interests to have some kind of visitation with Ms. Goodman.” The court then reformulated the burden: “I didn’t mean to say it exactly like that.... I’m not putting the burden on [Mother]. I’m just saying you’ll need to explain to me. I don’t think it’s enough for a parent to say, ‘It’s not in my child’s best interests not to have visitation.’ I need to have some explanation of that. That’s all I meant is I don’t want a conclusory statement. I want to understand the basis for [M]other’s opinion.” Neither of these formulations was consistent with the meaning of “special weight” under the statute. ¶ 17 Moreover, notwithstanding the court’s credibility determination, Mother’s concerns were not plainly contrary to the undisputed evidence. Undisputed evidence established that even if Mother’s descriptions of Goodman’s comportment were exaggerated, Goodman had, at a minimum, spanked Child over Mother’s objection and exposed Child to Goodman’s interpersonal conflicts. Courts should be especially reluctant to expose children to the risk of physical discipline by third parties over a parent’s objection. Mother’s concerns about Goodman’s tendency to expose Child to fighting were consistent with Child’s own report that she would like to visit Goodman only if Goodman and Mother could refrain from fighting. Further, while we defer to the court’s determination that Mother’s true motivation was to replace Goodman with Mother’s new wife, such a motivation does not warrant judicial interference with Mother’s child-rearing decisions. ¶ 18 Though the court carefully considered many appropriate factors, it erred by dis counting Mother’s opinion. We therefore reverse, and remand to permit the court to reweigh the evidence under the test articulated above. Because we reverse the court’s visitation order as a misapplication of A.R.S. § 25-409(E), we do not address the merits of Mother’s contention that the visitation award included unconstitutional prior restraints. CONCLUSION ¶ 19 We reverse and remand for proceedings consistent with this decision. We deny both parties’ requests for attorney’s fees on appeal under A.R.S. § 25-324. Mother is entitled to an award of costs upon compliance with ARCAP 21. . Consistent with the evidence regarding Goodman’s conflicts with her girlfriend, the court ordered that the girlfriend could not be present during Goodman's visits with Child. . In its visitation order, the court imposed a number of restrictions on Mother’s communication with Child concerning the case and Goodman. We agree with Mother that any order restraining speech is constitutionally suspect, but note that we have recognized that the court may regulate disparaging comments by a parent to a child. Nash v. Nash, 232 Ariz. 473, 482, ¶ 33, 307 P.3d 40 (App.2013). Mother relies heavily on Graville v. Dodge, 195 Ariz. 119, 128, ¶¶ 40-42, 985 P.2d 604 (App.1999), for the proposition that the court’s speech-oriented orders constitute prior restraints. We point out simply that Graville struck certain orders as undue impingements on the constitutional right to parent, and its holding was not premised on the First Amendment.

OPINION ECKERSTROM, Chief Judge: ¶ 1 Appellant Pauline Sotomayor-Mufioz (Muñoz) appeals from the trial court’s judgment and denial of her motion to set aside the judgment in this eviction action. Because we conclude this court lacks jurisdiction, we dismiss the appeal. Factual and Procedural Background ¶ 2 In March 2015, Mary Anna Sotomayor, Muñoz’s mother, filed an eviction complaint, contending Muñoz wrongfully occupied her real property and had “fraudulently appropriated” more than $200,000 in property. Muñoz filed a motion to dismiss, arguing that her mother had initiated multiple eviction actions against her when the case was in fact an ownership dispute that should be resolved through a quiet title action. The trial court denied the motion to dismiss and after a hearing on the forcible detainer, found Sotomayor owned the property and ordered Muñoz to vacate the premises. The court entered a formal judgment in the eviction action on April 9, 2015. ¶ 3 The same day, Muñoz filed a “Rule 15(a) Motion to Set Aside Judgment,” citing Rule 15(e), Ariz. R. P. Eviction Actions. She asserted that for various reasons the trial court lacked jurisdiction to proceed in a forcible detainer action, including that there was no lease or landlord-tenant relationship and that she had raised a claim of ownership over the property. The court stayed the writ of execution in the matter, but denied the motion to set aside the judgment in an under-advisement ruling issued June 29, 2015 and an amended order issued June 30, 2015. On July 1, 2015, Muñoz filed a notice of appeal, stating she appealed from the April judgment and the June denial of her motion to set aside the judgment. ¶ 4 Sotomayor objected to Muñoz’s notice of appeal and filed a motion to dismiss in this court, arguing her appeal was untimely. We denied the motion to dismiss as well as Muñoz’s subsequent motion “for vacatur of the judgment,” in which she alleged Sotomayor had rendered the matter moot by conveying the property to a third party. We further ordered additional briefing on the question of sanctions. Discussion ¶ 5 “The court of appeals, as a court of limited jurisdiction, has only the jurisdiction conferred on it by statute.” McDougall v. Superior Court, 170 Ariz. 474, 475, 826 P.2d 337, 338 (App.1991). And, “ ‘[i]t is settled in Arizona that the perfecting of an appeal within the time prescribed is jurisdictional; and, hence, where the appeal is not timely filed, the appellate court acquires no jurisdiction other than to dismiss the attempted appeal’ ” James v. Arizona, 215 Ariz. 182, ¶ 11, 158 P.3d 905, 908 (App.2007), quoting Edwards v. Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971). Based on authority not discussed by the parties in their motions, we now conclude we lack jurisdiction and must dismiss the appeal. See McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4, 202 P.3d 536, 539 (App.2009) (“this court has an independent duty to determine whether it has jurisdiction over an appeal”). ¶ 6 As Sotomayor pointed out in her motion to dismiss the appeal, Muñoz’s notice of appeal was filed nearly three months after the trial court entered the final judgment. Rule 9, Ariz. R. Civ. App. P., requires that a notice be filed within thirty days of the entry of judgment. Thus, as Sotomayor correctly argued, this court lacks jurisdiction to consider an appeal of the underlying judgment. See James, 215 Ariz. 182, ¶ 11, 158 P.3d at 908. ¶ 7 Muñoz’s notice of appeal was, however, filed the day after the trial court entered its order denying her Rule 15 motion. In her motion to dismiss, Sotomayor merely asserted that the provisions of Rule 9 relating to post-judgment motions were “not applicable in this case.” Muñoz, in contrast, contended her Rule 15 motion was “[effectively ... a motion for a new trial” and its filing therefore extended the time for appeal under Rule 9(a). Neither party’s position correctly addresses the questions of jurisdiction presented here. ¶ 8 Rule 9 provides that the time for filing a notice of appeal is extended if “a party timely and properly files” certain motions in the lower court. These motions are enumerated in Rule 9(e), and the list does not include Rule 15, Ariz. R. P. Eviction Actions. And contrary to Muñoz’s suggestion, her motion cannot be deemed one pursuant to Rule 59, Ariz. R. Civ. P., because the rules of civil procedure do not apply in eviction actions unless specifically incorporated by reference. Ariz. R. P. Eviction Actions 1. Thus, because the notice of appeal in this matter was filed more than thirty days after the judgment and because Rule 15 is not the basis for a time-extending motion, the notice is untimely as to the judgment. See Ariz. R. Civ. App. P. 9(a), (e). ¶ 9 Under A.R.S. § 12-2101, however, we have jurisdiction to hear an appeal from a final judgment or “[f|rom any special order made after final judgment.” Certain post-judgment motions have been specifically determined to be separately appealable. Section 12-2101(A)(5)(a) specifically provides that an order granting or refusing a new trial under Rule 59 is appealable, and a ruling on a Rule 60(e) motion has been deemed appeal-able as a special order made after final judgment pursuant to § 12—2101(A)(2). M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App.1990). Whether a ruling on a motion made pursuant to Rule 15, Ariz. R. P. Eviction Actions, may be appealed under § 12-2101, however, is a question of first impression. ¶ 10 Rule 15 allows a party to request relief from judgment based on various grounds, including those relevant here, that the court lacked jurisdiction and that the judgment is contrary to the law. The grounds provided in Rule 15 overlap Rules 59 and 60, Ariz. R. Civ. P., but they are not directly analogous. And Rule 15 is not addressed in § 12-2101. ¶ 11 To determine whether a ruling on a motion under Rule 15 is appealable as a special order after judgment we must consider 1) whether the issues raised by the appeal from the order are different from those that would arise from an appeal, and 2) whether the order affects the judgment or relates to its execution. Arvizu v. Fernandez, 183 Ariz. 224, 226-27, 902 P.2d 830, 832-33 (App.1995). Rule 15 provides a wide variety of grounds for relief, so whether Rule 15 motions, like Rule 60(c) motions, should be deemed generally appealable is unclear. But, because we determine the motion at issue here does not meet the test, we need not resolve that question. ¶ 12 Mufioz’s motion, although couched in part as a question of jurisdiction, essentially challenged the merits of the judgment. In it Muñoz argued there was no evidence of a landlord-tenant relationship and no lease and that a dispute as to ownership of the property existed. These claims were the bases for Mufioz’s defense at the hearing below. The balance of the argument is a direct challenge to the judgment. We therefore conclude that the order at issue here fails the first part of the test for determining whether an order qualifies as an appealable, special order made after final judgment. See id. at 227, 902 P.2d at 833. To allow Muñoz to separately appeal from the denial of her Rule 15 motion under the circumstances presented would allow her “a delayed appeal from the judgment.” Id. Thus, the trial court’s ruling on Mufioz’s Rule 15 motion was not appeal-able, and this court lacks jurisdiction to consider her appeal of that ruling. ¶ 13 Because we conclude we lack jurisdiction to consider an appeal from the final judgment or from the order denying the Rule 15 motion, we do not address the issues presented in the parties’ additional briefing, except Sotomayor’s request for sanctions. Sotomayor cites no statutory basis for her request. Cf. Roubos v. Miller, 214 Ariz. 416, ¶21, 153 P.3d 1045, 1049 (2007) (party must state statutory or contractual basis for fee award); Grand Canyon Pipelines, Inc. v. City of Tempe, 168 Ariz. 590, 594, 816 P.2d 247, 251 (App.1991) (exercising discretion to decline fee request unsupported by argument or citation to authority). She merely complains that Muñoz has “propagate[d] vexatious litigation,” citing her appeal in this matter, motions therein, and a separate complaint filed during the pendency of the appeal. Sotomayor has not explained, however, how Mufioz’s arguments were frivolous, and we cannot say she has established that sanctions under Rule 25, Ariz. R. Civ. App. P., would be appropriate. See Hoffman v. Greenberg, 159 Ariz. 377, 380, 767 P.2d 725, 728 (App.1988) (“The line between an appeal which has no merit and one which is frivolous is very fine, and we exercise our power to punish sparingly.”). Disposition ¶ 14 For the reasons above, we dismiss Mufioz’s appeal from the judgment in favor of Sotomayor and the denial of the Rule 15 motion for lack of jurisdiction. . On July 14, 2015, Muñoz also filed a motion for new trial, citing Rules 59(a)(1) and (a)(8), Ariz. R. Civ. P., but it does not appear the trial court ruled on that motion. In any event, such a motion is not available in an eviction proceeding, Ariz. R. P. Eviction Actions 1, and the motion was untimely, see Ariz. R. Civ. P. 59(d) (requiring motion for new trial to be filed within fifteen days of entry of judgment).

Justice TIMMER, opinion of the Court: ¶ 1 Although the Fourth Amendment generally prohibits warrantless searches, they are permitted if there is free and voluntary consent to search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Butler, 232 Ariz. 84, 87 ¶ 13, 302 P.3d 609, 612 (2013). Consent cannot be deemed to be given “freely and voluntarily” if the subject of a search merely acquiesces to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). ¶ 2 Arizona’s implied consent law provides that “[a] person who operates a motor vehicle in this state gives consent ... to a test or tests of the person’s blood, breath, urine or other bodily substance” if the person is arrested for driving under the influence of alcohol or drugs (“DUI”). A.R.S. § 28-1321(A). Nevertheless, “the statute generally does not authorize law enforcement officers to administer the test without a warrant unless the [operator] expressly agrees to the test.” Carrillo v. Houser, 224 Ariz. 463, 463 ¶ 1, 232 P.3d 1245, 1245 (2010). The issue here is whether, for Fourth Amendment purposes, a driver arrested for DUI voluntarily consented to give samples of his blood and breath after a police officer advised him that “Arizona law requires you to submit” to breath, blood or other bodily substance tests chosen by law enforcement. We hold that showing only that consent was given in response to this admonition fails to prove that an arrestee’s consent was freely and voluntarily given. Because the admonition in this case was given in good faith reliance on precedent, however, exclusion of the test results is neither appropriate nor required. I. BACKGROUND ¶ 3 In reviewing the denial of a defendant’s motion to suppress, we consider only “evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court’s ruling.” State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614 (2012). ¶ 4 In August 2012, a Department of Public Safety (“DPS”) officer found Francisco Valenzuela asleep in the driver’s seat of his stopped truck with the engine running and the vehicle in gear. After spotting an open container of alcohol, detecting a strong odor of alcohol, and observing signs that Valenzuela was impaired, the officer arrested Valenzuela on suspicion of DUI. ¶ 5 After taking Valenzuela to a police station, the officer read Valenzuela an “admin per se” form, which provided, in part, that “Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by a law enforcement officer to determine alcohol concentration or drug content.” The officer stressed this “requirement” three additional times and warned that refusal would result in a one-year suspension of Valenzuela’s driver’s license. (Although the officer read from part of the form while testifying at the suppression hearing, the form itself is not in the record.) Valenzuela cooperated and, in response to the officer’s questions, stated he understood the admonition and had no questions. He then submitted to breath and blood tests. After the tests revealed that Valenzuela had an alcohol concentration (“AC”) in excess of 0.20, the State charged him with five counts of aggravated DUI. ¶ 6 Valenzuela moved to suppress the test results. He argued that he did not voluntarily consent to the tests, and the warrantless search therefore violated his Fourth Amendment rights. After conducting a suppression hearing at which only the DPS officer testified, the trial court denied the motion, reasoning that the totality of the circumstances showed that Valenzuela had voluntarily consented to the search. Based on the parties’ stipulated facts, the court subsequently dismissed three counts, convicted Valenzuela on the remaining counts, and imposed prison sentences. ¶ 7 In a divided decision, the court of appeals affirmed. State v. Valenzuela, 237 Ariz. 307, 316 ¶ 35, 350 P.3d 811, 820 (App.2015). The majority examined the totality of the circumstances and concluded that the trial court did not err in finding Valenzuela’s consent voluntary. Id. at 315 ¶ 31, 350 P.3d at 819. The dissenting judge recognized the need to generally examine the totality of the circumstances to determine the voluntariness of consent. Id. at 317 ¶ 39, 350 P.3d at 821 (Eckerstrom, C.J., dissenting). Relying on Bumper, he nevertheless reasoned that when the evidence shows that police asserted lawful authority to search, “a court’s analysis has reached its end; voluntary consent cannot be found as a matter of law.” Id. Because, in his view, the admonition asserts a claim of lawful authority, the dissenting judge concluded as a matter of law that Valenzuela could not have voluntarily consented to testing. Id. at 318 ¶ 45, 350 P.3d at 822. ¶ 8 We granted Valenzuela’s petition for review because it presents a recurring legal question of statewide importance. We have jurisdiction pursuant to article 6, section 5, of the Arizona Constitution and A.R.S. § 12-120.24. II. DISCUSSION ¶ 9 We review the denial of a motion to suppress evidence for abuse of discretion, considering the facts in the light most favorable to sustaining the ruling. State v. Wilson, 237 Ariz. 296, 298 ¶ 7, 350 P.3d 800, 802 (2015). “An error of law committed in reaching a discretionary conclusion may, however, constitute an abuse of discretion.” Busso-Estopellan v. Mroz, 238 Ariz. 553, 554 ¶ 5, 364 P.3d 472, 473 (2015) (citation omitted). A. Fourth Amendment principles ¶ 10 The Fourth Amendment to the United States Constitution protects individuals against “unreasonable searches and seizures,” and any evidence collected in violation of this provision is generally inadmissible in a subsequent criminal trial. Mapp v. Ohio, 367 U.S. 643, 654, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (internal quotation marks and citation omitted). A compelled blood draw or breath test administered pursuant to § 28-1321 is a search subject to the Fourth Amendment’s restrictions. See Butler, 232 Ariz. at 87 ¶ 10, 302 P.3d at 612 (citing Missouri v. McNeely, — U.S.-, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013)). A warrantless search is per se unreasonable under the Fourth Amendment unless one of a few well-established exceptions applies. Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). ¶ 11 One exception to the warrant requirement is a search conducted with consent. See Schneckloth, 412 U.S. at 219, 93 S.Ct. 2041. When the state relies on consent to justify a warrantless search, as it does here, it “has the burden of proving that the consent was, in fact, freely and voluntarily given.” Id. at 222, 93 S.Ct. 2041 (citation omitted). Whether consent is voluntary or “the product of duress or coercion, express or implied,” is a factual issue resolved by reviewing the totality of circumstances, including any “subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 227, 229, 93 S.Ct. 2041; see also Butler, 232 Ariz. at 87 ¶ 13, 88 ¶ 19, 302 P.3d at 612, 613. The state must prove voluntary consent by a preponderance of the evidence. Ariz.R.Crim. P. 16.2(b). B. Application of admonishment given pursuant to § 28-1321, Arizona’s implied consent law ¶ 12 Valenzuela argues that, under Bumper, his consent to providing blood and breath samples must be deemed involuntary because he consented only after the officer advised that Arizona law required him. to submit to testing. The State responds, and the court of appeals majority agreed, that Bumper is distinguishable, and the totality of the circumstances evidences Valenzuela’s voluntary consent to the search. Valenzuela, 237 Ariz. at 311 ¶¶ 12-13, 315 ¶ 31, 350 P.3d at 815, 819. ¶ 13 In Bumper, law enforcement officers went to a home where a suspect lived with his grandmother. 391 U.S. at 546, 88 S.Ct. 1788. After the grandmother opened the door, an officer announced he had a warrant to search her home, she said, “Go ahead,” and the search unearthed evidence against the grandson. Id. In a subsequent suppression hearing in the grandson’s criminal case, the prosecutor did not produce a warrant but relied solely on the grandmother’s consent to justify the lawfulness of the search. Id. The grandmother testified that “[the officer] said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word.” Id. at 547, 88 S.Ct. 1788. After quoting this testimony, the Court relied on a line of older cases to hold that the prosecution failed in its burden to show that the grandmother freely and voluntarily consented because the record demonstrated only her “acquiescence to a claim of lawful authority.” Id. at 548-49, 549 n. 13, 88 S.Ct. 1788 (citing Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921)). It reasoned that “[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Id. at 550, 88 S.Ct. 1788; see also Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (noting that the Fourth Amendment is not implicated when police request and obtain consent to search “as long as the police do not convey a message that compliance with their requests is required”). ¶ 14 Valenzuela, the court of appeals dissent, and our dissenting colleague read Bumper as holding that consent is necessarily involuntary whenever police have asserted lawful authority to search, regardless of other circumstances. See Valenzuela, 237 Ariz. at 317 ¶ 39, 350 P.3d at 821 (Eckerstrom, C.J., dissenting); infra ¶ 41. Although Bumper did not directly address whether other circumstances should be examined or a per se rule applied in deciding whether a consent was freely given or in acquiescence to an assertion of lawful authority, it arguably rejected the former approach by not crediting the grandmother’s additional testimony that “I let them search, and it was all my own free will. Nobody forced me at all.” See Bumper, 391 U.S. at 556, 88 S.Ct. 1788 (Black, J., dissenting); see also Schneckloth, 412 U.S. at 234, 93 S.Ct. 2041 (noting that Bumper did not focus on the grandmother’s subjective mindset). But another explanation is that the Court simply examined the circumstances surrounding the consent objectively, as it has done in subsequently decided Fourth Amendment decisions, see Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (scope of consensual search); Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (third party consent); United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (seizure), and concluded that the grandmother acquiesced to an assertion of lawful authority even though she had no objection to the officers executing on the warrant. ¶ 15 Schneckloth indicates that Bumper did not establish a per se rule. The issue in Schneckloth concerned what the prosecution must show to demonstrate that a consent to seai’ch was given voluntarily. 412 U.S. at 223, 93 S.Ct. 2041. The Court held that “whether a consent to a search was in fact ‘voluntary5 or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Id. at 227, 93 S.Ct. 2041. Referring to its prior decisions to demonstrate the need for a “careful sifting of the unique facts and circumstances of each case,” the Court stated that “if under all the circumstances it has appeared that the consent was not given voluntarily—that it was coerced by threats or force, or granted only in submission to a claim of lawful authority—then we have found the consent invalid and the search unreasonable.” Id. at 233, 93 S.Ct. 2041 (emphasis added). Significantly, the Court cited Bumper, Johnson, and Amos for this principle, removing any doubt that it intended that courts make the totality-of-circumstances inquiry in cases involving an assertion of lawful authority to search. See id. Indeed, Justice Marshall acknowledged this intent in his dissent by criticizing the majority for including Bumper-like scenarios within the totality-of-circumstanees inquiry. See id. at 283, 93 S.Ct. 2041 (Marshall, J., dissenting) (“We did not [in Bumper ] inquire into all the circumstances, but focused on a single fact, the claim of authority, even though the grandmother testified that no threats were made____ It may be that, on the facts of that case, her consent was under all the circumstances involuntary, but it is plain that we did not apply the test adopted by the Court today.”). ¶ 16 The Schneckloth Court’s discussion of Johnson, which Bumper relied on, further supports our view. In Johnson, federal narcotics agents smelled burning opium outside a hotel room and gained entry after one agent knocked on the door, identified himself as a lieutenant, and then stated, “I want to talk to you a little bit.” 333 U.S. at 12, 68 S.Ct. 367. The defendant opened the door, “stepped back acquiescently and admitted [the agents].” Id. The Court held that a subsequent search of the room violated the Fourth Amendment because “[e]ntry to defendant’s living quarters ... was demanded under color of office. It was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” Id. at 13, 68 S.Ct. 367. In Schneckloth, after characterizing Johnson ’s use of the term “waiver” as a synonym for “consent search,” the Court stated that the Johnson Court “arrived at the conclusion that there had been no ‘waiver’ from an analysis of the totality of the objective circumstances—not from the absence of any express indication of Johnson’s knowledge of a right to refuse or the lack of explicit warnings.” 412 U.S. at 243 n. 31, 93 S.Ct. 2041 (emphasis added). ¶ 17 Our dissenting colleague suggests that we are misreading Schneckloth as displacing the Court’s holdings in Bumper, Johnson, and Amos. See infra ¶ 39. That is incorrect. We merely reject the notion that whenever a law enforcement officer has asserted a claim of lawful authority to search, “a court’s analysis has reached its end” and consent must be deemed involuntary as a matter of law. See Valenzuela, 237 Ariz. at 317 ¶ 39, 350 P.3d at 821 (Eckerstrom, C.J., dissenting). The Bumper line of cases survives to invalidate any consent given only in acquiescence to an assertion of a lawful authority to search. See, e.g., Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion) (citing Schneckloth and Bumper to note that the burden to prove consent is not satisfied by showing a mere submission to a claim of lawful authority); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979) (relying on Bumper to hold that “ ‘consent’ given in the face of ‘eolorably lawful coercion’” was invalid). We read Schneckloth and Bumper harmoniously as requiring a court to examine the circumstances surrounding an assertion of lawful authority to search to determine whether the consent was sufficiently independent of the assertion to remove its taint. If not, the consent was not freely and voluntarily given. ¶ 18 Although it might be difficult to prove that consent given after an assertion of lawful authority to search was nevertheless freely given, we should not preclude the possibility that it could happen. For example, consent conceivably could be voluntary if, after an officer asserts lawful authority to search, the officer retracts that assertion or an attorney advises that the search is not lawfully required before the subject of the search consents. See Kunzler v. Pima Cty. Superior Court, 154 Ariz. 568, 570, 744 P.2d 669, 671 (1987) (holding that a person arrested for DUI has the right to consult an attorney before taking a breath test when such consultation would not delay or interfere with the investigation or test taking); State v. Brooks, 838 N.W.2d 563, 571 (Minn.2013) (“The fact that [defendant] consulted with counsel before agreeing to take each [AC] test reinforces the conclusion that his consent was not illegally coerced” as “an attorney functions as an objective advisor who could explain the alternative choices to the driver”) (internal quotation marks and citation omitted). In such cases, a court might find that any subsequently granted consent was not compelled by the original assertion of authority. ¶ 19 Our dissenting colleague’s position is not far removed from ours. He rejects an examination of other circumstances only when consent to a search “is immediately preceded by an assertion of lawful authority.” See infra ¶ 47. It is unlikely, but not impossible, that the state could meet its burden to prove that consent is voluntary if given immediately after an assertion of lawful authority to search. Cf. Hoover v. Beto, 467 F.2d 516, 521 (5th Cir.1972) (deciding Bumper did not invalidate consent given immediately after officer said he had a warrant to search a home when the defendant, a criminal practice attorney, told officer that “his warrant was not necessary and to come on into his home and search wherever he wanted”); Earls v. State, 496 S.W.2d 464, 466, 468 (Tenn.1973) (rejecting argument that Bumper provides “a blanket prohibition” and concluding that consent provided after presentation of warrant was voluntary when the defendant threw it to the ground and stated, “You needn’t to have brought a search warrant. You gentlemen are welcome to search anywhere on my premises you want to search and take anything you find.”). Regardless, the Schneckloth Court rejected the type of per se rule the dissent proposes. See 412 U.S. at 229, 93 S.Ct. 2041 (“The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone.”); see also United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (noting that “there are no per se rules” in deciding whether consent was voluntary). ¶ 20 Since Schneckloth, the Court’s declarations in other cases involving voluntary consent to search bolster the view that a court must examine the totality of the circumstances even when officers assert a lawful authority to search. See Drayton, 536 U.S. at 207, 122 S.Ct. 2105 (“[T]he Court has repeated that the totality of the circumstances must control” in deciding consent); Mendenhall, 446 U.S. at 558-59, 100 S.Ct. 1870 (examining circumstances surrounding consent to decide whether the district court properly found consent voluntary rather than coerced). Other courts have also supported this view. See, e.g., United States v. Juarez, 573 F.2d 267, 273-74 (5th Cir.1978) (noting Bumper and Schneckloth, then examining the totality of circumstances to conclude that defendant gave voluntary consent by saying, “[t]hat’s fine” after officer said “Well, I am going to have to search you”); Byars v. State, 259 Ark. 158, 533 S.W.2d 175, 180 (1976) (“[W]e do not take Bumper to mean that an accused can never be deemed to have consented to a search, if a search warrant had been obtained and the accused was aware of that fact. Rather, we consider that this question is determined by the particular facts present when the consent is purportedly given.”). This Court has likewise focused on the totality of the circumstances, including but not limited to an officer’s reading of an admin per se form, in determining whether a DUI suspect’s consent to search was freely and voluntarily given. See Butler, 232 Ariz. at 88-89, ¶¶ 19-20, 302 P.3d at 613-14. ¶ 21 For these reasons, we hold that a trial court should examine the totality of the cir cumstances to decide whether consent was voluntary, even when given after a law enforcement officer’s assertion of lawful authority to search. We neither decide whether the court should apply an objective or subjective standard to resolve this issue nor identify whose perspective—the search subject’s, the officer’s, or a hypothetical third party’s— from which to view the voluntariness of consent. The parties did not brief these issues, and the Supreme Court’s Fourth Amendment jurisprudence after Schneckloth has cast doubt on pinpointing the correct approach. Cf. Megan Annitto, Consent Searches of Minors, 38 N.Y.U. Rev. L. & Soc. Change 1, 8-9 (2014) (describing shift in the Supreme Court from examining subjective factors to instead considering whether an officer reasonably believed that consent was voluntary); Blanca L. Hernández, Incapacity to Refuse Consent: Fourth Amendment Offenses in Consensual Searches of Individuals with Mental Illness, 23 S. Cal. Rev. L. & Soc. Just. 387, 399-400 (Spring 2014) (noting that the Drayton Court strayed from Schneckloth’s assessment of the consenter’s personal perspective and mental state in favor of examining the conduct of law enforcement); Nancy Leong & Kira Suyeishi, Consent Forms and Consent Formalism, 2013 Wis. L. Rev. 751, 760-61 (2013) (“Following Mendenhall, the Supreme Court suggested in a number of cases that the court should determine whether an officer’s actions were reasonable from an objective standpoint, rather than a subjective one.... The Court has not, however, explicitly overruled Schneckloth, leaving doubt regarding the extent to which consent searches should take subjective factors into account.”). In any event, we would reach the same conclusion here regardless of which approach is followed. ¶ 22 Based on our review of the suppression hearing evidence, we conclude that the State failed to prove by a preponderance of the evidence that Valenzuela’s consent was voluntary. Bumper and Johnson direct this outcome. By telling Valenzuela multiple times that Arizona law required him to submit to and complete testing to determine AC or drug content, the officer invoked lawful authority and effectively proclaimed that Valenzuela had no right to resist the search. See Bumper, 391 U.S. at 549, 88 S.Ct. 1788; Johnson, 333 U.S. at 13-15, 68 S.Ct. 367. At the time of these repeated admonitions, Valenzuela had been arrested and taken to a police station. Nothing in the record suggests that the officer retracted the assertion of lawful authority to conduct a warrantless search or that other circumstances existed to dispel the coerciveness of the admonitions before Valenzuela granted consent. ¶ 23 Our society expects, and unquestionably demands, that people follow directives issued by law enforcement officers. Cf. Bumper, 391 U.S. at 549 n. 14, 88 S.Ct. 1788 (noting that acquiescence to a warrant demonstrates “an intention to abide by the law” and “show[s] a regard for the supremacy of the law”); see also Tom R. Tyler & John M. Darley, Building a Law-Abiding Society: Taking Public Views About Morality and the Legitimacy of Legal Authorities into Account When Formulating Substantive Law, 28 Hofstra L. Rev. 707, 716 (2000) (“Citizens regard it as appropriate for police officers to direct citizen behavior, and they follow these directives without requiring explanation or justification.”). That is what Valenzuela did here. Consequently, Valenzuela’s “consent,” like the grandmother’s consent in Bumper, was merely an acquiescence to a claim of lawful authority. ¶ 24 The State argues that Bumper is distinguishable because the officer there effectively told the grandmother she had no right to resist the search by claiming to have a warrant, while the DPS officer here correctly informed Valenzuela that Arizona law required him to submit to testing or his license would be suspended. The implied consent law, however, nowhere “requires” a DUI arrestee to submit to testing, and the DPS officer’s admonition therefore did not mirror the statute. See A.R.S. § 28-1321(A), (B) (stating that although a DUI arrestee “gives consent” to testing of blood, breath, or other bodily substance, he “shall be requested to submit to and successfully complete” any such test) (emphasis added). But even assuming that the officer accurately paraphrased the law, this distinction is immaterial. The Bumper Court’s ruling turned on the grandmother’s acquiescence to the officer’s assertion of lawful authority to search regardless of the truthfulness of the officer’s claim to possess a warrant. See Bumper, 391 U.S. at 548-49, 88 S.Ct. 1788 (holding that the prosecutor’s burden to prove that consent was voluntarily given “cannot be discharged by showing no more than acquiescence to a claim of lawful authority”). The officer’s claim of authority to search was “instinct with coercion” whether or not he actually possessed a valid warrant. See. id. at 549, 88 S.Ct. 1788 (“A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.”); see also Lo-Ji Sales, 442 U.S. at 329, 99 S.Ct. 2319 (citing Bumper and holding that after a business’s agent was arrested and made aware of “the presumed authority” of a search warrant, his compliance with officers’ requests could not be considered free and voluntary consent to a search); State v. Medicine, 865 N.W.2d 492, 498 ¶ 13 (S.D.2015) (holding that Bumper applies whether an officer honestly represents authority or fabricates it). Consequently, whether the officer here correctly recited Arizona’s implied consent law is immaterial. ¶ 25 The State also argues that Bumper is inapplicable because, regardless of the DPS officer’s admonitions in this case, Valenzuela consented to the search pursuant to § 28-1321(A) by operating a vehicle within the state. Although § 28-1321 validly provides an arrestee’s consent to civil penalties for refusing or failing to complete requested tests, we have rejected the contention that the implied consent law operates to prospectively provide consent to a search for Fourth Amendment purposes. See Butler, 232 Ariz. at 88 ¶ 18, 302 P.3d at 613 (“[Ijndependent of § 28-1321, the Fourth Amendment requires an arrestee’s consent to be voluntary to justify a warrantless blood draw.”); Carrillo, 224 Ariz. at 463 ¶ 1, 232 P.3d at 1245 (interpreting § 28-1321 to require either an arrestee’s express consent or a warrant before an officer can administer a test). According to the State, however, the United States Supreme Court suggested in McNeely that implied consent laws validly require arrestees to submit to blood draws and are sufficient to satisfy the consent exception to the warrant requirement, unless the arrestee withdraws consent. ¶26 The State misreads McNeely. The issue there was whether the dissipation rate of alcohol in the bloodstream constitutes an exigency that justifies warrantless searches in all drunk-driving cases. 133 S.Ct. at 1556. The Court rejected a per se exigency exception and held that “[wjhether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by ease based on the totality of the circumstances.” Id. at 1563. In responding to Missouri’s argument that requiring a warrant to draw blood would undermine efforts to combat drunk-driving, the Court pointed out that states “have a broad range of legal tools to ... secure [AC] evidence without undertaking warrantless nonconsensual blood draws.” Id. at 1566 (plurality opinion). As one example, the Court noted that all states “have adopted implied consent laws that require motorists ... to consent to [AC] testing if they are arrested,” and such laws impose significant consequences, such as license suspension, when an arrestee withdraws consent. Id. The Court did not suggest, however, that implied consent laws supply an arrestee’s constitutionally valid consent to a warrantless search. From the context of the discussion, we read the Court’s reference to implied consent laws as meaning that these laws likely convince many drivers to give consent rather than suffer the statutory consequences for not doing so, thereby sparing law enforcement the need to secure a warrant. See id. ¶ 27 The court of appeals majority distinguished Bumper because, unlike the grandmother there, Valenzuela supposedly knew he could refuse consent. Valenzuela, 237 Ariz. at 311 ¶ 13, 350 P.3d at 815. It reasoned that § 28-1321 permits a driver to refuse a warrantless search, and the DPS officer here gave Valenzuela that choice by informing him that a refusal would result in a civil penalty and prompt the officer to seek a warrant to compel testing. Id. We disagree. The officer’s testimony is unclear whether he provided this information to Valenzuela. But even if he did so, he effectively asked Valen zuela to either follow Arizona law (submit to testing) or violate Arizona law (refuse to submit to testing). That Valenzuela might have been informed of the consequences for refusal does not alter the fact that the officer coerced Valenzuela’s consent by repeatedly telling him that Arizona law “required” him to submit to testing, implying that he had no legal right to refuse. ¶ 28 We do not hold today that § 28-1321 violates the Fourth Amendment or that officers must cease advising arrestees about the law’s requirements and the civil consequences for refusal. See Campbell v. Superior Court, 106 Ariz. 542, 554, 479 P.2d 685, 697 (1971) (finding “no merit” to the argument that Arizona’s implied consent law violates the Fourth Amendment). But officers must inform arrestees in a way that does not coerce consent by stating or implying that officers have lawful authority, without a warrant, to compel samples of blood, breath, or other bodily substances. ¶ 29 A law enforcement officer can invoke the implied consent law without infringing on an arrestee’s Fourth Amendment rights by following the procedure set forth in § 28-1321(B). After making a DUI arrest, the officer should ask whether the arrestee will consent to provide samples of blood, breath, or other bodily substances for testing. If the arrestee expressly agrees and successfully completes testing, the officer need not advise the arrestee of the statutory consequences for refusing consent. The officer must, however, advise the arrestee before testing that the outcome of the tests may result in the penalties set forth in § 28—1321(B)(1) and (2). If the arrestee refuses to consent to testing or fails to successfully complete the tests, the officer should advise the arrestee of the consequences for refusal or incomplete testing as provided in § 28-1321(B), and then ask again whether the arrestee will consent to testing. Although this choice “will not be an easy or pleasant one for a suspect to make,” this difficulty does not make the decision coerced. South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (considering Fifth Amendment challenge to admission in evidence of refusal given in response to implied consent admonition). If the arrestee again refuses to agree to testing or fails to successfully complete testing, a test must not be given unless the officer secures a search warrant, except that the officer may validly obtain a sample of blood or other bodily substances taken for medical purposes, AR.S. §§ 28-1321(D)(1), -1388(E). Alternatively, the state might revise its implied consent admin per se form to mirror one used in South Dakota, which provides the arrestee with a clear choice whether to submit to testing or refuse consent. See Neville, 459 U.S. at 555 n. 2, 103 S.Ct. 916. ¶ 30 In sum, we hold that the State failed to carry its burden to show by a preponderance of the evidence that Valenzuela freely and voluntarily consented to providing samples of his blood and breath. By advising Valenzuela after he was arrested and detained that Arizona law required him to submit to testing, the officer invoked lawful authority to compel consent. Because nothing in the suppression hearing record dispels the coercive implication of the officer’s repeated admonition, the trial court erred by finding that Valenzuela had voluntarily consented to the search and then denying the motion to suppress the test results on that basis. Cf. Medicine, 865 N.W.2d at 500 ¶ 17 (holding consent to blood draw involuntary when, among other circumstances, it was given after officer informed arrestee that South Dakota law provides that drivers automatically consent to blood draws). C. Good-faith exception to the exclusionary rule ¶31 The State alternatively argues, as it did at the suppression hearing, that the good-faith exception to the exclusionary rule applies, and the trial court therefore properly denied the motion to suppress. The exclusionary rule, which allows suppression of evidence obtained in violation of the Fourth Amendment, is a prudential doctrine invoked to deter future violations. Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011). “Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury1 occasioned by an unconstitutional search.” Id. (citation omitted). Therefore, when law enforcement officers “act with an objectively reasonable good-faith belief that their conduct is lawful,” deterrence is unnecessary and the exclusionary rule does not apply. Id. at 2427-28 (internal quotation marks and citation omitted); see also A.R.S. § 13-3925 (codifying good-faith exception to the exclusionary rale). ¶ 32 The good-faith exception applies here. Well before the DPS officer advised Valenzuela from the admin per se form, this Court characterized Arizona’s implied consent law as “requiring] a person to submit to a chemical test of his blood, [breath] or urine if arrested for [DUI] or face a ... suspension of his driver’s license.” Campbell, 106 Ariz. at 546, 479 P.2d at 689. In State v. Brito, 183 Ariz. 535, 538-39, 905 P.2d 544, 547-48 (App.1995), the court of appeals rejected an argument that the same admin per se form read to Valenzuela incorrectly advised that Arizona law requires submission to testing before asking for consent. The court concluded that the admonition’s language conformed to our decision in Campbell and “does not misstate the law,” and that “a licensed driver does not have an unfettered right to refuse to take a blood alcohol test or breath test upon the request of a law enforcement officer”). See also Jefferson Lankford, Arizona DUI: A Manual for Police, Lawyers, and Judges 66, 133 (2001-2002 ed.) (stating that “[t]he driver has the power but not the right to refuse testing under the implied consent law” and including an “admin per se” form with language identical to that used by the DPS officer here). Pursuant to a then-existing statutory mandate, the court in Brito also reviewed the record for fundamental error, which would have encompassed the court’s complete case review for any prejudicial Fourth Amendment violations resulting from use of the admonition, but found none. 183 Ariz. at 539, 905 P.2d at 548. ¶ 33 We today hold that consent given solely in acquiescence to the admonition used here and in Brito is not free and voluntary under the Fourth Amendment and cannot excuse the failure to secure a warrant. But at the time of events here, the DPS officer followed binding precedent that had sanctioned use of the admonition read to Valenzuela, and the good-faith exception therefore applies. Cf. Davis, 131 S.Ct. at 2429 (“An officer who conducts a search in reliance on binding appellate precedent does no more than ‘ac[t] as a reasonable officer would and should act’ under the circumstances____The deterrent effect of exclusion in such a case can only be to discourage the officer from ‘do[ing] his duty.’ ”) (internal quotation marks and citations omitted). ¶ 34 The dissent contends that use of the admin per se form reflects “recurring or systemic negligence” by law enforcement because this Court in Carrillo “expressly rejected] Brito’s assertion that Arizona’s implied consent statute requires suspects to submit to testing.” See infra ¶ 57. But Carrillo did not address whether the implied consent statute “requires” submission to testing as stated in Campbell and Brito. Instead, Carrillo held that, as a matter of statutory interpretation, the implied consent statute requires that an arrestee “unequivocally manifest assent to the testing by words or conduct” before officers can conduct warrantless testing. 224 Ariz. at 466 ¶ 19, 232 P.3d at 1249. We neither suggested that the admonition used here to obtain that assent misstated the law or was coercive, nor has this Court ever questioned or overruled Campbell or Brito. Indeed, because the officer in Carrillo had not advised the defendant of the implied consent law, the lawfulness of an admonition was not at issue. See 224 Ariz. at 463 ¶¶ 3-4, 232 P.3d at 1245. The dissent faults law enforcement for failing to anticipate that we would disapprove the admin per se form in the wake of Carrillo, but we are hard-pressed to do so when Carrillo is not dispositive of the issue raised here, and our courts have continued to approve the admonition. See State v. Oliver, No. 2 CA-CR 2014-0359 ¶¶ 23-25, 2015 WL 4924747 (Ariz.App. Aug. 18, 2015) (mem.) (following Brito to reject defendant’s argument that the given admonitions, which mirrored ones given to Valenzuela, misstated the implied consent statute); Valenzuela, 237 Ariz. at 313 ¶ 24, 350 P.3d at 817 (“[I]t is not a per se violation of the Fourth Amendment if the officer phrases the admonition as a requirement”). ¶ 35 In short, the DPS officer here did not “deliberately, recklessly, or with gross negligence” conduct the search in violation of the Fourth Amendment, but instead acted with “an objectively reasonable good-faith belief’ that the admonition was lawful. Davis, 131 S.Ct. at 2427-28 (internal quotation marks omitted). Suppression of Valenzuela’s test results would not serve the exclusionary rule’s purposes. Cf. Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (“To trigger the exclusionary rale, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”). For these reasons, the good-faith exception to the exclusionary rule applies. The trial court therefore properly denied the motion to suppress, albeit for a different reason. Cf. State v. Roseberry, 237 Ariz. 507, 508 ¶7, 353 P.3d 847, 848 (2015) (“We will affirm a trial court’s decision if it is legally correct for any reason.”). III. CONCLUSION ¶ 36 We vacate the court of appeals’ opinion and affirm Valenzuela’s convictions and resulting sentences. . In State v. Cañez, this Court mistakenly stated that the state must prove voluntary consent "by clear and positive evidence in unequivocal words or conduct expressing consent.” 202 Ariz. 133, 151 ¶ 53, 42 P.3d 564, 582 (2002) (quoting State v. Kananen, 97 Ariz. 233, 235, 399 P.2d 426, 427 (1965)). After Kananen was decided, however, this Court promulgated Rule 16.2(b), which replaced the clear-and-positive-evidence standard. . The Supreme Court is currently considering whether, in the absence of a warrant, a state may criminalize a person’s refusal to submit to a test to detect a person’s AC. See Bernard v. Minnesota,-U.S.-, 136 S.Ct. 615, 193 L.Ed.2d 495 (2015); Birchfield v. North Dakota, -U.S.-, 136 S.Ct. 614, 193 L.Ed.2d 494 (2015).

OPINION DOWNIE, Judge: ¶ 1 S & S Paving and Construction, Inc. (“S & S”) appeals the dismissal of its bad faith claim against Berkley Regional Insurance Company (“Berkley”). We hold that a surety on a payment bond issued under Arizona’s “Little Miller Act” may not be sued for bad faith and therefore affirm the judgment of the superior court. FACTS AND PROCEDURAL HISTORY ¶ 2 The City of Prescott retained Spire Engineering, LLC (“Spire”) to act as general contractor for the Demerse Avenue Overlay Project (“the Project”). Berkley issued a payment bond for the Project. See Ariz. Rev. Stat. (“A.R.S.”) § 34-222(A)(2) (requiring payment bonds for public projects). ¶ 3 In October 2011, S & S’s attorney sent a demand letter to Berkley, stating that S & S had performed paving work for the Project pursuant to its subcontract with Spire and had not been paid $23,763. Berkley acknowledged the claim, requested additional information, and advised that its review of S & S’s demand “does not toll the running of any statute of limitations or other time period.” ¶ 4 S & S provided Berkley with the requested information, which included a proof of claim. Berkley acknowledged receipt of the documentation in December 2011 and stated that it needed to ascertain Spire’s position regarding S & S’s claim, after which it would communicate further. Berkley reiterated that its investigation of the claim “in no way waives or alters any rights, interests or defenses that we may have under our bond or applicable law.” No further communication occurred between the parties until May 2013, when counsel for S & S sent another demand letter, and Berkley responded that S & S’s claim was untimely. ¶ 5 In November 2013, S & S sued Berkley for breach of contract and bad faith. Berkley moved for summary judgment on both claims. The superior court ruled that the breach of contract claim was barred by the statute of limitations. See A.R.S. § 34-223(B) (one-year statute of limitations for public work payment bonds). The court also dismissed S & S’s bad faith claim, concluding there was no “contractual relationship or special relationship for the claim to survive.” The court denied S & S’s motion for reconsideration and awarded Berkley attorneys’ fees. ¶ 6 S & S timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1). DISCUSSION ¶ 7 We review a grant of summary judgment de novo. Chalpin v. Snyder, 220 Ariz. 413, 418, ¶ 17, 207 P.3d 666, 671 (App.2008). 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). We will affirm the judgment if it is correct for any reason. Ariz. Bd. of Regents v. State ex rel. Ariz. Pub. Safety Ret. Fund Manager, 160 Ariz. 150, 154, 771 P.2d 880, 884 (App.1989). ¶ 8 In 1969, Arizona adopted the Little Miller Act, A.R.S. §§ 34-221, et seq. (“the Act”). See SCA Constr. Supply v. Aetna Cas. & Sur. Co., 157 Ariz. 64, 65-66, 754 P.2d 1339, 1340-41 (1988). Modeled after the federal Miller Act, 40 U.S.C. § 270a, et seq., the Act requires contractors on public works projects to furnish payment bonds “for the protection of claimants supplying labor or materials to the contractor or his subcontractors.” A.R.S. § 34-222(A)(2). A claimant who is not paid in full for labor or materials “shall have the right to sue on such payment bond.” A.R.S. § 34-223(A). “The purpose behind both of the Miller Acts is to provide security for those who supply materials or labor in the construction of public projects.” SCA Constr., 157 Ariz. at 66, 754 P.2d at 1341. Such statutory protection is necessary because no lien rights exist on public projects. See F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 122, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974) (liens “cannot attach to Government property,” so the Miller Act is intended “to provide an alternative remedy to protect” suppliers on public works projects). ¶ 9 S & S does not challenge the dismissal of its breach of contract claim on statute of limitations grounds. See AR.S. § 34-223(B) (No 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 ... suit.”). It instead contends the superior court erred by dismissing its bad faith claim because sureties issuing payment bonds under the Act have a duty to “undertake an investigation adequate to determine whether a claimant’s claim is tenable or valid.” According to S & S, sureties owe the same duty of good faith to claimants under the Act as insurance companies owe to insureds. ¶ 10 S & S asks us to graft a common law remedy onto a statutory scheme that includes within its ambit both the availability of complete relief and specific conditions precedent to recovery. But “where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 62 L.Ed.2d 146 (1988); see also State ex rel. Horne v. AutoZone, Inc., 229 Ariz. 358, 362-63, 275 P.3d 1278, 1282-83 (2012) (declining to read disgorgement remedy into statutory scheme “unless and until” the Arizona Legislature makes such a determination). ¶ 11 The Arizona Legislature has defined the breadth of liability under the Act. Section 34-222(F) dictates the terms that payment bonds must include—one of which is the statement that “all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations of title 34, chapter 2, article 2, Arizona Revised Statutes, to the same extent as if they were copied at length in this agreement.” (Emphasis added.) “All liabilities” is a broad term. Recognizing a common law bad faith remedy would be inconsistent with the legislature’s defined liability for Act sureties. And this Court has long-recognized that “[w]hen a corporate surety undertakes an obligation on a bond pursuant to a specific statutory requirement, its liabilities are measured by the terms of that statute.” Brown Wholesale Elec. Co. v. Merchs. Mut. Bonding Co., 148 Ariz. 90, 95, 713 P.2d 291, 296 (App.1984); see also Norquip Rental Corp. v. Sky Steel Erectors, Inc., 175 Ariz. 199, 202, 854 P.2d 1185, 1188 (App.1993) (“The liability of a surety on a statutory bond, including who can make a claim on the bond and the required procedure for making such a claim, is measured by the terms of the statute requiring the bond.”). ¶ 12 In addition to defining a surety’s liability, the Act dictates the procedures that claimants must follow in order to recover against payment bonds. See R.E. Monks Constr. Co. v. Aetna Cas. & Sur. Co., 189 Ariz. 575, 579, 944 P.2d 517, 521 (App.1997) (“To recover against the payment bond, a claimant must comply with statutory procedures.”). When a statutory scheme “creates a right and also provides a' complete and valid remedy for the right created, the remedy thereby given is exclusive.” Blankenbaker v. Jonovich, 205 Ariz. 383, 387, ¶ 18, 71 P.3d 910, 914 (2003). ¶ 13 But for its failure to timely file suit, S & S had a “complete and valid remedy” under the Act. See id. Because a payment bond is “sufficient to pay all claims, and is the sole source from which laborers and materialmen are to be paid, it necessarily follows that laborers and materialmen who do not timely avail themselves of this remedy fall into the category of general creditors of the contractor.” Gen. Acrylics v. U.S. Fid. & Guar. Co., 128 Ariz. 50, 55, 623 P.2d 839, 844 (App.1980). Concluding that S & S is relegated to the status of general creditor and may not assert a bad faith claim against Berkley is consistent with the treatment of private project claimants under Arizona’s mechanics’ lien statutes. Cf. Trio Forest Prod., Inc. v. FNF Constr., Inc., 182 Ariz. 1, 2, 893 P.2d 1, 2 (App.1994) (The Act is intended to “provide protection comparable to that afforded by state mechanic’s lien laws on private contracts.”). Mechanics’ lien claimants are required to strictly comply with various statutory requirements, or lien-based recovery is barred. See, e.g., Scottsdale Mem’l Health Sys. v. Clark, 157 Ariz. 461, 470, 759 P.2d 607, 616 (1988) (claim barred if no action initiated within six months of recording); MLM Constr. Co. v. Pace Corp., 172 Ariz. 226, 232, 836 P.2d 439, 445 (App.1992) (failure to prove service of preliminary notice bars recovery); James Weller, Inc. v. Hansen, 21 Ariz.App. 217, 223, 517 P.2d 1110 (1973) (requiring strict compliance with “statutory time elements in the recording of notices and claims”). ¶ 14 S & S relies heavily on Dodge v. Fidelity & Deposit Co. of Maryland, 161 Ariz. 344, 778 P.2d 1240 (1989)—a case we find distinguishable. In Dodge, the plaintiff-homeowners contracted with a residential contractor for the construction of a home. Their contract required a performance bond, which the defendant-surety provided. After the contractor failed to complete the project, the homeowners filed suit. As relevant here, they alleged bad faith against the surety. The surety prevailed in the superior court and on appeal to this Court. The Arizona Supreme Court reversed, however, holding that the bad faith claim could proceed, and stating: The purpose of the construction performance bond required by plaintiffs’ contract with [the contractor] was not for plaintiffs’ commercial advantage, but to protect plaintiffs from calamity—[the contractor’s] default on the contract. A contractor’s default has the potential for creating great financial and personal hardship to a homeowner. Surety insurance is obtained with the hope of avoiding such hardships. Imposing tort damages on a surety who in bad faith refuses to pay a valid claim will deter such conduct. Id. at 346, 778 P.2d at 1242. ¶ 15 The most fundamental distinction between Dodge and this ease is that the former did not involve a statute, let alone a carefully crafted statutory scheme that seeks to balance the competing interests inherent in public works projects. And unlike Dodge, where the court found that the surety lacked incentive to address the homeowners’ claim, a surety under the Act has a strong pecuniary motive to pay valid claims without litigation. Not only is a successful litigant under the Act entitled to recover “sums justly due,” but an award of attorneys’ fees is mandatory. See A.R.S. §§ 34-222(F), -223(A). Interest under the Prompt Pay Acts is also due prevailing claimants. See A.R.S. §§ 32-1129.02(H), 34-22(J). ¶ 16 Finally, S & S alleged that Berkley had a legal duty to “undertake an investigation adequate to determine” whether its claim was valid. But the Act neither imposes nor appears to contemplate any pre-litigation investigative or processing duties by sureties. Cf. O’Connor v. Star Ins. Co., 83 P.3d 1, 6 (Alaska 2003) (“The statute nowhere states or implies that licensing bond sureties have a duty to independently investigate claims made against bonded contractors. The statutory language only requires that licensing bonds be conditioned on a promise to pay amounts adjudged against the contractor.”). Indeed, the Act makes no mention of prelitigation claims at all. An unpaid subcontractor’s right is “to sue on such payment bond for the amount ... unpaid at the time of institution of such suit and to prosecute such action to final judgment____” A.R.S. § 34-223(A). ¶ 17 Although the Act is “a remedial statute that must be liberally construed to protect subcontractors providing labor and materials for a public construction project,” courts may not disregard established limitations on liability and recovery. See R.E. Monks, 189 Ariz. at 576-77, 944 P.2d at 518-19. Should the Arizona Legislature deem it appropriate to permit bad faith claims against Act sureties in addition to existing statutory remedies, it is free to enact legislation that effectuates that policy determination. Cf. B.J. Cecil Trucking, Inc. v. Tiffany Constr. Co., 123 Ariz. 31, 34, 597 P.2d 184, 187 (App.1979) (“[Limitations on liability under contractors’ bonds have historically been governed by practical considerations relating to the nature of the business and the ability of the contractor to control his costs.”). CONCLUSION ¶ 18 We affirm the judgment of the superi- or court. We deny S & S’s request for an award of attorneys’ fees on appeal because it has not prevailed. We will award Berkley a reasonable sum of attorneys’ fees incurred on appeal pursuant to AR.S. § 34-222(B), (F), as well as taxable costs, upon compliance with Arizona Rule of Civil Appellate Procedure 21. . S & S also sued Spire for breach of contract, but the judgment at issue on appeal relates only to Berkley and includes a Rule 54(b) certification.

OPINION VÁSQUEZ, Presiding Judge: ¶ 1 Aristeo Escareno, as personal representative of the Estate of Maria Escareno and on behalf of the decedent’s statutory beneficiaries, appeals from the trial court’s order compelling arbitration of his claim brought under the Adult Protective Services Act (APSA) against Kindred Nursing Centers West, L.L.C., Kindred Healthcare Operating, Inc., Kindred Healthcare, Inc., Joseph Chesney, and Patrick Kinney (collectively, Kindred). On appeal, Aristeo argues the arbitration agreement relied on by Kindred was unenforceable against Maria’s estate because it was not signed by Maria and he was not authorized to sign the agreement on her behalf as her agent. For the reasons set forth below, we reverse the court’s order and remand for further proceedings. Factual and Procedural Background ¶2 We view the facts in the light most favorable to upholding the trial court’s order compelling arbitration. Estate of Decamacho ex rel. Guthrie v. La Solana Care and Rehab, Inc., 234 Ariz. 18, n. 1, 316 P.3d 607, 608 n. 1 (App.2014). Maria Escareno moved from Oklahoma to Arizona with her adult son, Aristeo, in 2006 or 2007. While in Arizona, Maria suffered a stroke and began to develop cognitive disabilities. Aristeo then assumed some of her responsibilities, paying her bills and signing medical documents on her behalf. However, Maria’s ca-pacify to live independently continued to deteriorate, and she ultimately was diagnosed with encephalopathy, cognitive deficits, and “a severe case of dementia.” At the height of her disability, Maria was coherent at times but had difficulty remembering who Aristeo was, could not “participate in a conversation,” and was “childlike.” ¶ 3 In May 2009, Arizona Adult Protective Services (APS) opened a case regarding Maria’s care because she had little assistance or supervision while Aristeo worked during the day. APS “gave [Aristeo] an ultimatum: Either [he] put her in a home ... to take care of her or [he] could also face ... jail time.” He then had Maria admitted to three different assisted-living facilities between October 2009 and April 2010, ultimately choosing Kindred because “there was no other facilities around that would be able to take her because of her dementia.” At each facility, Aristeo signed the admission documents on behalf of Maria. And, at Kindred, he also signed the alternative dispute resolution (ADR) agreement at issue in this ease. It states, in relevant part: Any and all claims or controversies arising out of or in any way relating to this Agreement or the Resident’s stay at the Facility including disputes regarding the interpretation of this Agreement, whether arising out of State or Federal law, whether existing or arising in the future, whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of statutory duties ..., irrespective of the basis for the duty or of the legal theories upon which the Claim is asserted, shall be submitted to alternative dispute resolution as described in this Agreement. ¶4 Maria died in April 2011, and, the following year, Aristeo filed the underlying civil action alleging wrongful-death and APSA claims against Kindred. Kindred filed a motion to dismiss and to compel arbitration pursuant to the ADR agreement signed by A'isteo. In his response, Aristeo argued inter alia that he lacked authority to sign the agreement for Maria and that the wrongful-death claim was brought on behalf of Maria’s beneficiaries, none of whom had signed the ADR agreement in their own capacity. In response to his agency argument, Kindred countered that “Aristeo’s custom of acting on [Maria’s] behalf [was] enough to prove agency as a matter of law.” ¶ 5 The parties submitted a stipulated set of exhibits, and, after hearing oral argument, the trial court denied the motion as to the wrongful-death claim, but ordered that the parties submit the APSA claim to arbitration and stayed the action pending that claim’s resolution. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1). See S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, ¶¶ 16-20, 977 P.2d 769, 774-75 (1999). Discussion ¶ 6 Aristeo argues the trial court erred by compelling arbitration of the APSA claim because he “had no authority to sign the ADR agreement” on behalf of Maria. “Generally, whether agency exists is a question of fact, but when the material facts are not in dispute, the existence of such a relationship is a question of law for the court to decide.” Goodman v. Physical Res. Eng’g, Inc., 229 Ariz. 25, ¶ 12, 270 P.3d 852, 856 (App.2011); see Salvation Army v. Bryson, 229 Ariz. 204, ¶ 23, 273 P.3d 656, 663 (App.2012). In this case, the parties do not dispute the material facts found in their stipulated set of exhibits, but rather, they dispute the legal significance of those facts. Our review therefore is de novo. See Decamacho, 234 Ariz. 18, ¶ 8, 316 P.3d at 609. ¶ 7 “ ‘[T]he fundamental prerequisite to arbitration is the existence of an actual agreement or contract to arbitrate.’” Id. ¶ 10, quoting Schoneberger v. Oelze, 208 Ariz. 591, ¶ 17, 96 P.3d 1078, 1082 (App.2004); see AR.S. § 12-1501 (arbitration agreement “valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract”). Thus, a defendant seeking to compel arbitration must show that the plaintiff accepted the arbitration agreement. See Nationwide Res. Corp. v. Massabni, 134 Ariz. 557, 562, 658 P.2d 210, 215 (App.1982); see also Decamacho, 234 Ariz. 18, ¶ 11, 316 P.3d at 610 (“A valid contract is formed when there is an offer, an acceptance, [and] consideration____”). Similarly, if the defendant asserts that an agent of the plaintiff signed the agreement, the defendant bears the burden to show the person in fact was the plaintiffs agent and, thus, had authority to do so. See Goodman, 229 Ariz. 25, ¶ 11, 270 P.3d at 856; see also Restatement (Third) of Agency § 6.01 (2006) (describing agency relationship). ¶ 8 An agent may have authority to act on behalf of a principal through either actual or apparent authority. Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, ¶ 26, 269 P.3d 678, 686-87 (App.2011). “Actual authority ‘may be proved by direct evidence of express contract of agency between the principal and agent or by proof of facts implying such contract or the ratification thereof.’ ” Ruesga v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, ¶29, 161 P.3d 1253, 1261 (App.2007), quoting Corral v. Fid. Bankers Life Ins. Co., 129 Ariz. 323, 326, 630 P.2d 1055, 1058 (App.1981). Apparent authority, in contrast, arises when “the principal has intentionally or inadvertently induced third persons to believe that such a person was his agent although no actual or express authority was conferred on him as agent.” Reed v. Gershweir, 160 Ariz. 203, 205, 772 P.2d 26, 28 (App.1989). In this case, Kindred conceded below that, when Maria arrived at its nursing facility, she did not have the capacity to “intentionally or inadvertently induee[ ]” the staff into believing Aristeo was her agent. Id. Thus, apparent authority cannot apply here. See Ruesga, 215 Ariz. 589, ¶ 30, 161 P.3d at 1261-62. Instead, the parties focus their arguments on whether Maria had granted Aristeo actual authority prior to her admission at the Kindred facility. ¶ 9 Kindred relies exclusively on Ruesga, 215 Ariz. 589, ¶¶ 29-36, 161 P.3d at 1261-63, to support its position. In Ruesga, the plaintiff admitted her husband, who was incapacitated at the time, to an assisted-living facility and signed an ADR agreement on his behalf. Id. ¶¶ 2-5. The plaintiff later filed multiple claims against the facility on behalf of her husband’s estate, and the facility moved to dismiss and compel arbitration. Id. ¶ 6. The trial court initially denied the motion, “concluding that ‘[t]he arbitration agreement [wa]s not a valid contract because it [had not been] signed by Mr. Ruesga or his authorized agent.’ ” Id. (alterations in Ruesga). However, later discovery revealed several medical records indicating “a history of [the plaintiff] acting and making decisions on [her husband’s] behalf.” Id. ¶¶ 7, 35. Based on these documents, the court granted the facility relief from the previous ruling and ordered the parties to resolve the claims through arbitration. Id. ¶ 7. ¶ 10 On special-action review, this court affirmed. Id. ¶¶ 36, 40. As an initial matter, we noted “‘the degree of proof required to establish and define the agency relationship’ ” between spouses is lower than with non-spouses. Id. ¶ 33, quoting State Farm Mut. Auto. Ins. Co. v. Long, 16 Ariz.App. 222, 225, 492 P.2d 718, 721 (1972). We then determined that the newly discovered medical records “not only constituted circumstantial evidence of an agency relationship, but arguably contained an express authorization” from the husband to the wife. Id. ¶ 35. Both the husband and wife had signed one document, and the husband had “failed to contest [the wife’s] signature as [his] ‘Agent or Legally Authorized Representative.’ ” Id. ¶¶ 19, 35; see Restatement § 1.03 cmt. b (“Silence may constitute a manifestation when, in light of all the circumstances, a reasonable person would express dissent to the inference that other persons will draw from silence.”). In addition, the husband had signed a health insurance document that authorized the disclosure of health information to the wife and for her “to make, inter alia, a ‘primary care physician change,’ or a ‘change in network.’ ” Id. ¶ 19; see Restatement § 3.01 (“Actual authority ... is created by a principal’s manifestation to an agent that, as reasonably understood by the agent, expresses the principal’s assent that the agent take action on the principal’s behalf.”). The facility also submitted medical records “that indicated [the wife] had controlled [the husband’s] care even when he was conscious and able to ‘follow some simple commands.’ ” Id. ¶¶ 19, 35. Accordingly, this court concluded “‘there were sufficient facts to show that both [the husband’s] actions and his wife’s long history of making decisions on his behalf gave rise to an agency relationship such that [the wife] could bind her husband to the ADR Agreement.’ ” Id. ¶ 36. ¶ 11 We find Ruesga distinguishable. Unlike the spousal relationship in that case, Aristeo is Maria’s son, and therefore Kindred’s burden to establish the existence of an agency is higher than in Ruesga. See id. ¶ 33. More importantly, though, the record contains no evidence of a manifestation by Maria granting authority to her son or any “ ‘facts implying such contract or the ratification thereof.’ ” Id. ¶ 29, quoting Corral, 129 Ariz. at 326, 630 P.2d at 1058. Although Aristeo testified during his deposition that he had signed documents in other circumstances on Maria’s behalf before her admission to Kindred’s facility, “[i]t is well settled that the declarations of an agent are insufficient to establish the fact or extent of his authority.” Jolly v. Kent Realty, Inc., 151 Ariz. 506, 512, 729 P.2d 310, 316 (App.1986). ¶ 12 For example, Aristeo testified that Maria had not handled her own financial matters since 2007. But, during his deposition, Aristeo stated he was not “on her [bank] account,” and, when asked how he acted on her behalf, he explained: Well, everybody [at the bank] knew us, because I would bring her to the bank, take her here or there. And I guess just—you know, I would take mom with me when I would go get that set up. Then when I realized that mom couldn’t do much for herself, I asked—we talked to the banker, and they set it up to where if I had to go and pay her rent or stuff, I could get it out of her account and put it towards that. He also clarified that, “[o]ut of her money, [he] would only pay for her rent,” and that he was “providing all [other] financial support for [Maria].” This testimony does not amount to a manifestation by Maria showing that she had “failed to contest” Aristeo’s acts on her behalf. Ruesga, 215 Ariz. 589, ¶ 35, 161 P.3d at 1263. Moreover, because Aristeo’s assistance apparently increased as Maria’s capacity to handle these matters decreased, it is questionable whether she even had the capacity to grant authority to her son. Cf. Golleher v. Horton, 148 Ariz. 537, 540-41, 715 P.2d 1225, 1228-29 (App.1985) (discussing capacity to grant power of attorney). ¶ 13 Notably, in its answering brief, Kindred does not dispute evidence in the record that shows Maria experienced cognitive impairment between the time she suffered a stroke after arriving in Arizona and when she was actually diagnosed with “a severe ease of dementia” in 2009. And, in any event, even when we presume Maria was capable of creating an agency relationship, see Golleher, 148 Ariz. at 541, 715 P.2d at 1229 (describing presumption of competence), Aristeo’s testimony that he transferred money from her bank to pay her bills, by itself, does not amount to circumstantial evidence that Maria actually created such a relationship, see State Farm, 16 Ariz.App. at 225, 492 P.2d at 721 (actual agency created by ‘“spoken words or other conduct of the principal’ ”), quoting Restatement (Second) of Agency § 26 (1958). Moreover, even if his testimony was sufficient evidence of an actual, implied agency, its scope does not suggest a broad agency relationship but, rather, appears limited to the transfer of money for the purpose of paying bills. See Restatement § 2.02 (“Scope of Actual Authority”); Restatement § 3.11 cmt. c (not reasonable to assume agent has lingering authority when “agent’s authority was limited ... to a specific undertaking”); cf. Higgins v. Assmann Elecs., Inc., 217 Ariz. 289, ¶ 29, 173 P.3d 453, 461 (App.2007) (discussing factors to apply when considering scope of agency). ¶ 14 Kindred also asserts Aristeo “would bring [Maria] to medical appointments and execute all the documents for his mother when she was mentally capable of handling her own affairs.” The entire testimony on which it relies, is as follows: Q. ... When you went to the doctor’s office with your mother, did you fill out whatever paperwork was presented by the doctor’s office? A Yes, I would fill them out, because she—you know, her eyesight wasn’t so great. I would just do it because a lot of times when she had to go in to the doctor, if it was like real bad where she couldn’t sign for herself, I’d ask if I could sign for her, because I was her—I let them know that I was the only person there to take care of her. And if she didn’t get the treatment, then, you know.... Q. ... So you told her doctor’s office that you were taking responsibility for her? A. Yes. Later in his testimony, Aristeo also explained: Q. ... The time came when your mom was no longer capable of handling her own affairs. That ... time came here in Arizona, correct? A Yes. Q. It was sometime around that period when a health care provider told you that your mom had severe dementia, correct? A. Yes. Q. Was it around that time that you began signing for your mom at health care providers’ offices? A. Yes. ¶ 15 Like Aristeo’s testimony regarding Maria’s financial affairs, we cannot say this testimony establishes a manifestation of assent by Maria, even if we presume she was competent at that time. See Ruesga, 215 Ariz. 589, ¶¶ 19, 35, 161 P.3d at 1259, 1263; Golleher, 148 Ariz. at 541, 715 P.2d at 1229; Restatement §§ 1.03, 3.01. Nor can we treat Aristeo’s initiative in taking care of his mother’s health needs as circumstantial evidence of an agency relationship. As we explained in Ruesga, although signing medical documents could “arguably lend support to the determination that [Maria] had intended [Aristeo] to act as [her] agent, [he] had statutory authority ‘to make health care decisions’ ” to the extent she was “ ‘unable to make or communicate’ such decisions, even absent any agency authority.” Ruesga, 215 Ariz. 589, n. 7, 161 P.3d at 1263 n. 7, quoting A.R.S. § 36-3231(A). Thus, we cannot “rely on those documents to determine an agency relationship.” Id. ¶ 16 We recognize, as a general matter, that the elderly very well may rely on others to meet their needs as their health deteriorates. But a pattern of care-giving alone is insufficient to create an agency relationship, particularly in the absence of any evidence showing a manifestation of assent on the part of the elderly person. Accordingly, the record here does not show that A’isteo had authority to sign the ADR agreement on behalf of Maria when she was admitted to Kindred, see Goodman, 229 Ariz. 25, ¶ 11, 270 P.3d at 856, and, in turn, Maria’s estate is not bound by that agreement, see Nationwide Res. Corp., 134 Ariz. at 562, 658 P.2d at 215. Therefore, the trial court abused its discretion in finding facts sufficient to establish an agency relationship and thus granting Kindred’s motion to dismiss and compel arbitration of the APSA claim. See Decamacho, 234 Ariz. 18, ¶ 8, 316 P.3d at 609. Disposition ¶ 17 For the foregoing reasons, we reverse the trial court’s order compelling arbitration and remand for further proceedings. . Aristeo also argues the agreement was unconscionable and a contract of adhesion. Although we have serious concerns about the alternative dispute resolution agreement, because the agency issue is dispositive, we do not address these arguments. . Neither party requested, and the trial court did not provide, written findings of facts or specific conclusions of law in this case. "In the absence of express findings of fact, we must presume the court found every controverted issue of fact necessary to sustain the judgment, providing there was evidence in the record to support the same.” Helfenbein v. Barae Inv. Co., 19 Ariz.App. 436, 440, 508 P.2d 101, 105 (1973). .When Aristeo had Maria admitted at Kindred, the facility operated under a different name, Hacienda Rehabilitation and Care Center. . See Decamacho, 234 Ariz. 18, ¶ 27, 316 P.3d at 614 ("[A]n APSA claim is derivative of the decedent’s rights, whereas a wrongful death claim is independently held by the decedent’s statutory beneficiaries. Therefore, the APSA claim is brought on behalf of [the decedent’s] estate by [the] personal representative....”). . Initially, Aristeo filed a petition for special action requesting review of the trial court’s order, which this court declined. Then, at the request of Aristeo, the trial court amended its order, clarifying that ”[t]here [was] no just reason for delay in the entry of final judgment on [Kindred’s] Motion to Dismiss and Compel Arbitration,” thereby making its order appealable pursuant to Rule 54(b), Ariz. R. Civ. P. See S. Cal. Edison Co. v. Peabody W. Coal Co., 194 Ariz. 47, ¶¶ 16-20, 977 P.2d 769, 774-75 (1999). . Although our legislature has adopted the Revised Uniform Arbitration Act, see A.R.S. §§ 12-3001 through 12-3029, we cite to the statutes governing arbitration agreements at the time of the contract formation in this case, see § 12-3003(A)(1). . Arizona generally applies the Restatement of Agency unless it is contrary to prior precedent. Fid. & Deposit Co. of Maryland v. Bondwriter Sw., Inc., 228 Ariz. 84, ¶ 30, 263 P.3d 633, 639 (App.2011); Cannon v. Dunn, 145 Ariz. 115, 116, 700 P.2d 502, 503 (App.1985). . The record does not include any document from Maria's bank showing that Aristeo signed on Maria’s behalf or that Maria added Aristeo to the account. See Ruesga, 215 Ariz. 589, ¶ 19, 161 P.3d at 1259. . Similarly, Aristeo argues in his reply brief that, even if Maria "had created an agency before she became incapacitated ..., it would have terminated as a matter of law after she became incapacitated.” However, this argument was not presented to the trial court, or in the opening brief, and we therefore will not address it here. See Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 6 & n. 3, 119 P.3d 467, 470-71 & n. 3 (App.2005) (issues raised for first time on appeal waived). . Section 36-3231(A) provides that, "[i]f an adult patient is unable to make or communicate health care treatment decisions,” a health care provider must consult a surrogate. Subsection (A)(2) of the statute specifies that the surrogate may be an adult child, and "[i]f the patient has more than one adult child, the health care provider shall seek the consent of a majority of the adult children who are reasonably available for consultation.” In this case, Maria’s adult children had ”consent[ed] and agreefd] that [Aristeo] should be her financial and medical decision-maker.” See § 36-3231(A)(2).

OPINION OROZCO, Judge: ¶ 1 Robert James Neese appeals from his convictions and resulting sentences for seven counts of burglary in the second degree, one count of burglary in the first degree, and seven counts of theft. Neese argues the trial court erred in denying his motion to dismiss based on the running of the statute of limitations. The State contends that the use of a DNA profile to commence a prosecution of an unnamed defendant tolled the statute of limitations. For the following reasons, we affirm Neese’s convictions and sentences. Additionally, we amend a typographical error in the sentencing minute entry. FACTS AND PROCEDURAL HISTORY ¶ 2 Beginning in 1999, Scottsdale police investigated a number of residential burglaries and related thefts. Although unable to identify a possible suspect, police obtained DNA evidence from the crime scenes, and the evidence was forensically tested. DNA analysts subsequently found that the multiple samples of DNA shared the same genetic markers and a unique DNA profile was created (DNA Profile) from that evidence. A federal databank of DNA profiles did not produce a match for an individual whose genetic markers matched those of the DNA Profile. ¶ 3 On March 15, 2005, an indictment (Indictment) was filed charging “John Doe, I” with seven counts of burglary in the second degree, class 3 felonies; three counts of theft, class 5 felonies; one count of burglary in the first degree, a class 3 felony; three counts of theft, class 3 felonies; and one count of theft, a class 2 felony. The Indictment identified John Doe I as an “Unknown Male with Matching Deoxyribonucleic Acid ... Profile at Genetic Locations” followed by a string of the genetic markers found at thirteen locations that collectively characterize the DNA Profile. The alleged offenses occurred between 1999 and 2004. ¶ 4 In May, 2011, a DNA sample was obtained from Neese that matched the DNA Profile. An amended indictment (Amended Indictment) was filed substituting the John Doe I designation and DNA Profile identification with Neese’s name as the defendant. The court issued a second warrant based on the Amended Indictment that identified Neese by his full name, date of birth, and other physical characteristics. Neese was arrested and entered a not guilty plea at his arraignment. ¶ 5 Neese subsequently moved to dismiss the twelve counts relating to offenses occurring before May 2004, arguing that the applicable seven-year statute of limitations had expired before the State amended the Indictment naming him as the defendant. Neese argued that the DNA Profile in the Indictment did “not serve to identify someone,” and, because a “John Doe” could not be convicted, the Indictment did not toll the statute of limitations. ¶ 6 The court denied the motion, and Neese unsuccessfully sought special action relief. A jury subsequently found Neese guilty as charged, and he was sentenced to prison for 22.75 years. Neese appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21 A 1, 13-4031 and -4033 A1 (West 2015). DISCUSSION 1. Motion to Dismiss: Statute of Limitations ¶ 7 The applicable statute of limitations for the 1999 offenses was seven years, and it began to expire at the end of June 2006. See AR.S. § 13-107 B 1. Although the Indictment was filed on March 15, 2005, well within the limitations period, the Attended Indictment naming Neese was filed in 2011, years after the statutory limitations period expired. See A.R.S. § 13-107 C (filing of indictment commences prosecution). A a result, Neese argues the court erred by denying his motion to dismiss because the DNA Profile used in the Indictment did not sufficiently identify him to toll the statute of limitations beyond the seven year limitation period. Analogizing the DNA Profile to fingerprints, Neese contends that the DNA Profile was merely evidence; thus, the Indictment was not issued against a “known person.” He implies, as a result, that the Indictment improperly failed to give him notice of the charges. Neese further argues that based on A.R.S. § 13-107 E, the legislature did not contemplate DNA profiles being used as “identification mechanism[s,]” and he warns of the “practical fallout” of issuing warrants to a DNA profile. ¶ 8 We interpret statutes and rules of procedure de novo. Taylor v. Cruikshank, 214 Ariz. 40, 43, ¶ 10, 148 P.3d 84 (App.2006). Similarly, we “independently review any questions of law relating to the statute of limitations defense.” State v. Aguilar, 218 Ariz. 25, 30, ¶ 15, 178 P.3d 497 (App.2008) (quoting Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281 (App.1996)). ¶ 9 A indictment charging an unknown defendant must contain “any name or description by which he can be identified with reasonable certainty.” Ariz. R. Crim. P. 13.2, cmt. The propriety of using a DNA profile for identification purposes to commence prosecution of an unnamed defendant is an issue of first impression in Arizona. ¶ 10 Courts in other jurisdictions, however, have addressed the issue and concluded that a unique DNA profile in a “John Doe” indictment (or other prosecution-commencing event) identifies the defendant (or suspect) with “reasonable certainty” or other similar standai’d of particularity. See, e.g., State v. Danley, 138 Ohio Misc.2d 1, 853 N.E.2d 1224, 1226-28, ¶¶ 7-12 (Ohio Ct. Comm. Pleas 2006) (holding statute of limitations tolled when John Doe DNA warrant was served on defendant); People v. Martinez, 52 A.D.3d 68, 70-71, 855 N.Y.S.2d 522 (N.Y.App.Div.2008) (rejecting argument that John Doe DNA indictment was defective because it did not name or adequately describe defendant); People v. Robinson, 47 Cal.4th 1104, 104 Cal.Rptr.3d 727, 224 P.3d 55, 75 (2010) (holding that an arrest warrant describing a defendant by a DNA profile identifies the defendant with “sufficient particularity”); State v. Burdick, 395 S.W.3d 120, 128 (Tenn.2012) (holding that a “DNA profile exclusively identifies an accused with nearly irrefutable precision”); State v. Younge, 321 P.3d 1127, 1131-33, ¶¶ 12-14 (Utah 2013) (holding that the requirement that a charging document “charge a person” was satisfied by identifying an unknown John Doe defendant with a DNA profile); State v. Carlson, 845 N.W.2d 827, 831-32 (Minn.Ct.App.2014) (holding that a DNA profile meets and exceeds particularity requirements); see also Daniel Gaudet, Waiting for John Doe: The Practical and Constitutional Implications of DNA Indictments, 18 Suffolk J. Trial & App. Advoc. 106, 107 (2013) (noting that “courts have found overwhelmingly in favor of the constitutionality of [John Doe DNA] indictments.”). ¶ 11 The issue first arose in State v. Dabney, 264 Wis.2d 843, 663 N.W.2d 366 (App.2003), and the Tennessee Supreme Court, in agreeing with the Dabney decision, described the Wisconsin court’s reasoning as follows: In State v. Dabney, ..., under circumstances almost identical to those in the case before us, the complaint and arrest warrant initially identified the suspect as “John Doe,” charged him with certain sexual assault offenses, and set forth a unique DNA profile obtained from evidence recovered from the victim. [Dabney ] at 369. Similar to the statutory requirements in Tennessee, Wisconsin law required an arrest warrant to “[s]tate the name of the person to be arrested, if known, or if not known, designate the person to be arrested by any description by which the person to be arrested can be identified with reasonable certainty.” Id. at 371 (citing Wis. Stat. § 968.04(3)(a)(4)). Because “the particularity or reasonable certainty requirements [of the statute did] not absolutely require that a person’s name appear in the complaint or warrant,” id. at 371, the Wisconsin court concluded “that for purposes of identifying ‘a particular person’ ..., a DNA profile is arguably the most discrete, exclusive means of personal identification” and, therefore, satisfied the “reasonable certainty” requirements of an arrest warrant, id. at 372 (citing [Meredith A Bieber, Comment, Meeting the Statute or Beating It: Using “John Doe" Indictments Based on DNA to Meet the Statute of Limitations, 150 U. Pa. L.Rev. 1079, 1085 (2002) ] (“A genetic code describes a person with far greater precision than a physical description or a name.”)). Burdick, 395 S.W.3d at 127. ¶ 12 We agree with the reasoning of Dabney, Burdick, and similar rulings in other jurisdictions. We do so because Arizona law does not require an indictment to name a defendant; rather, if the person’s name is unknown, the indictment need only provide a description that identifies the defendant “with reasonable certainty.” Ariz. R. Crim. P. 13.2, cmt. The DNA Profile in the Indictment satisfied the “reasonable certainty” requirement. Aso, nothing in A.R.S. § 13-107 E implies a legislative intent to require a suspect’s name for identification purposes. Furthermore, the impracticality of using a DNA profile to serve an arrest warrant on a physically unrecognizable person, as Neese argues, is not dispositive. Such a warrant will only be served after law enforcement discovers a name connected to a DNA profile. “This extra step, however, is not unique to a warrant based on DNA. No matter how well a warrant describes the individual, extrinsic information is commonly needed to execute it. If a name is given, information to link the name to the physical person must be acquired.” Dabney, 663 N.W.2d at 372, ¶ 17. ¶ 13 We thus hold that for limitation purposes, a criminal prosecution commences upon the filing of a “John Doe” indictment that identifies a defendant with a unique DNA profile. Our holding is limited to the facts and procedural history of this case. There may be instances where a “John Doe” indictment containing a less comprehensive recitation of genetic markers may not sufficiently describe the defendant with reasonable certainty. Because the Indictment was filed before the seven-year time limit expired, Neese’s prosecution was timely. Neese’s reliance on Taylor, 214 Ariz. 40, 148 P.3d 84, is misplaced. In Taylor, the applicable statute of limitations had expired before the State filed a John Doe DNA indictment. Id. at 41-42, 47, ¶¶ 3, 5-6, 29, 148 P.3d 84. ¶ 14 We also reject Neese’s argument that the Indictment’s DNA Profile failed to notify him of the charges, and therefore, the State’s amendment of the Indictment after the statute of limitations expired violated his due process rights. Criminal statutes of limitation such as A.R.S. § 13-107 are “not based on [a] fundamental, constitutional right.” State v. Jackson, 208 Ariz. 56, 63, ¶ 25, 90 P.3d 793 (App.2004) (citing State v. Timoteo, 87 Hawai'i 108, 952 P.2d 865, 870 (1997)). Rather, statutes of limitation reflect “legislative assessments.” United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Accordingly, the Amended Indictment did not violate Neese’s due process rights. Furthermore, Neese does not argue that he lacked notice of the charges when he was arraigned. Because he knew what the charges were at the time of his arraignment, he has demonstrated no prejudice. See State v. Rosario, 195 Ariz. 264, 267, ¶ 15, 987 P.2d 226 (App.1999). II. Evidentiary Hearing ¶ 15 Neese also argues the trial court erred in not conducting an evidentiary hearing before ruling on his motion to dismiss. Although Neese requested oral argument on the motion, he did not request an evidentiary hearing; thus, we review the issue for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601 (2005) (failure to object to alleged trial error results in fundamental error review). To obtain relief under fundamental error review, Neese has the burden to show that error occurred, the error was fundamental and that he was prejudiced thereby. See id. at 567-68, ¶¶ 20-22, 115 P.3d 601. ¶ 16 We review the court’s failure to sua sponte hold an evidentiary hearing for an abuse of discretion. State v. Wassenaar, 215 Ariz. 565, 576, ¶ 48, 161 P.3d 608 (App.2007). We find none here. ¶ 17 The issue to be decided by Neese’s motion was a legal, not factual, one. Neese does not point to any factual dispute that needed to be resolved before the court ruled on his motion to dismiss. Accordingly, Neese has failed to establish error, let alone fundamental error, in the trial court’s failure to sua sponte order an evidentiary hearing. For the foregoing reasons, we find the superior court acted within its discretion in denying Neese’s motion to dismiss. III. Right to a Speedy Trial ¶ 18 Neese argues the trial court should have dismissed the Indictment because the State failed to timely prosecute him from March 2005, the date of the Indictment, to May 2011, the date of the Amended Indictment. ¶ 19 As Neese concedes, we review for fundamental error because he did not assert his speedy trial rights in superior court. As noted, it is Neese’s burden under fundamental error review to establish prejudice. We will not presume prejudice where none appears affirmatively in the record. See State v. Trostle, 191 Ariz. 4, 13, 951 P.2d 869 (1997). ¶ 20 Neese does not explain how the six-year delay between the filing of the Indictment and the Amended Indictment prejudiced him. The only issues to be determined by the jury were whether Neese was impermissibly in the victims’ homes intending to commit a felony, and whether he stole the victims’ personal property. Neese has not shown how the six-year delay prevented him from obtaining any exculpatory evidence. He was not incarcerated on the charges until he was arrested in 2011. Similarly, Neese points to nothing in the record indicating the State intentionally (or negligently) caused the delay or otherwise acted in bad faith. Because Neese’s right to a speedy trial was not violated, no fundamental error occurred. IV. State’s Closing Argument ¶ 21 Neese also argues he was prejudiced by the prosecutor’s reference to the length of time it took to prosecute this case in closing argument: And the other thing to keep in mind, it would be one thing if the first burglary in 1999, the next day, went to his house, there is the property. And/or the next burglary, the day after, they went to the house or they caught him on the street next to house (sic), what happened to the property? The, well, then there will be a question, where is all the property? We are talking [seven] years from the last burglary until when they got his DNA in 2011, [seven] years. We are talking [twelve] years from the 1999 burglaries to when they obtained his DNA. And do you think he can get rid of property in [seven] years, or [eight] years or ten years or [twelve] years without it turning up? Absolutely. The prosecutor’s comments were made to rebut defense counsel’s closing argument regarding the lack of evidence connecting Neese to the burglaries. Defense counsel explained to the jury: Well, if the evidence was acquired as to DNA in 2011, that they believed tied him to these matters in 1999 through 2004, where are the items? Where is the evidence he ever had them? Where is all the money? Where did it go? There were no witnesses that he had anything, how does that go unnoticed? ¶ 22 In light of defense counsel’s argument we find no misconduct. In addition, we find no prejudice in view of the DNA evidence linking Neese to the crime scenes. Accordingly, Neese fails to satisfy his burden of establishing prejudice. See State v. Diaz, 223 Ariz. 358, 361, ¶ 13, 224 P.3d 174 (2010) (“We will not reverse a conviction based on speculation or unsupported inference.”). V. Sentencing Minute Entry ¶ 23 The Indictment incorrectly referred to a nonresidential structure in the first degree burglary count (Count 5), and, therefore, noted it was a class 3 felony. Because Count 5 alleged Neese or an accomplice knowingly possessed a handgun while committing the burglary, the State, without objection, orally amended Count 5 to reflect its proper class 2 felony designation as a burglary of a residential structure. See A.R.S. § 13-1508 B. ¶ 24 The evidence at trial revealed that the victim’s home (i.e., residential structure) had been burglarized. Before deliberations commenced, the court instructed the jury on the amended count. The court sentenced Neese on Count 5 to 9.25 years’ incarceration, the presumptive term for a class 2 felony conviction as a subsequent offense to a second felony offense under then-applicable A.R.S. § 13-702.02 B 4 (2000). However, the sentencing minute entry incorrectly refers to Count 5 as a class 3 felony. Pursuant to our authority under A.R.S. § 13-4037 A, we amend the sentencing minute entry filed August 12, 2013, to correctly reflect Count 5 as a class 2 felony. See State v. Contreras, 180 Ariz. 450, 453 n. 2, 885 P.2d 138 (App.1994) (“When we are able to ascertain the trial court’s intention by reference to the record, remand for clarification is unnecessary.”). CONCLUSION ¶ 25 For the foregoing reasons, we affirm Neese’s convictions and the resulting sentences, but amend the sentencing minute en try to reflect the correct nature of Count 5 as a class 2 felony. . Although the first degree burglary offense allegedly occurred before 2004, Neese did not seek dismissal of that count ostensibly because the applicable statute of limitations had not expired on that serious offense when the State amended the indictment. See Arizona Revised Statutes (A.R.S.) section 13-107 E (period of limitation does not run for a serious offense as defined in A.R.S. § 13-706 during any time when the identity of the person who commits the offense or offenses is unknown). . We cite the current version of applicable statutes when no revisions material to this decision have since occurred. . "The period of limitation does not run for a serious offense as defined in § 13-706 during any time when the identity of the person who commits the offense or offenses is unknown.” A.R.S.§ 13-107 E. . See also Ariz. R. Crim. P. 3.2(a) ("[An arrest] warrant shall ... contain the name of the defendant or, if the defendant’s name is unknown, any name or description by which the defendant can be identified with reasonable certainty.”). . In what apparently is the only reported decision concluding otherwise, the Kansas Supreme Court, while agreeing with the reasoning in Dabney and Robinson, held that John Doe DNA arrest warrants insufficiently identified perpetrators of crimes because the DNA profiles in that case referred only to DNA loci that are common to all humans. State v. Belt, 285 Kan. 949, 179 P.3d 443, 449-51 (2008). . Neese does not expressly argue that the DNA Profile in the Indictment could have identified another person. To the extent he implicitly does so, we disagree. See, e.g., Com. v. Dixon, 458 Mass. 446, 938 N.E.2d 878, 885 (2010) ("A DNA profile is not merely a word 'of description,’ it is ... metaphorically, an indelible 'bar code’ that labels an individual’s identity with nearly irrefutable precision.”) (internal citation omitted); see also Dabney, 663 N.W.2d at 372. . Although, the delay between the Indictment and Amended Indictment was undeniably lengthy, the reason for the delay is clear: the State had no named suspect until it accessed Neese’s DNA. And once it did possess Neese's DNA, the State acted promptly in amending the Indictment and arresting Neese. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (establishing four-factor balancing test to evaluate speedy trial claims: ”[I]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant”).

OPINION MILLER, Presiding Judge: ¶ 1 In this appeal from a superior court special action to compel disclosure of public records withheld by the City of Tucson, we address whether the best interests of the state support the court’s decision denying all relief. In concluding that disclosure of some redacted records does not harm the government or its people, we reverse in part and direct the court to address ancillary matters on remand. Facts and Procedural Background ¶ 2 In October 2013, Hodai requested TPD public records related to cell phone tracking equipment called “Stingray.” The city describes Stingray as a surveillance technology device that could “assist in abduction/kidnapping investigations,” but was used in only a few criminal investigations before the city discontinued its use. ¶ 3 The records request specified: (1) TPD records and “work product” using or related to Stingray; (2) communications about the purchase, use, and maintenance of Stingray equipment; and, (3) all communications with Stingray’s manufacturer, Harris Corporation. Hodai identified the equipment as having been purchased by the city several years earlier with a specific federal grant. TPD initially provided four redacted documents in response. The twenty pages consisted of contract information and an email exchange concerning redactions requested by Harris. No information regarding Stingray’s use or cases in which it was employed was disclosed. Hodai filed two additional related records requests in November and December, but no further documents were produced. Hodai included in each records request that the city inform him if records were withheld and the reasons for the non-disclosure. See AR.S. § 39-121.01(D)(2). The complaint alleged a TPD sergeant informed him after his second request that it would be too time-consuming to locate search warrants and other responsive documents. ¶ 4 In March 2014, Hodai filed a statutory special action requesting an order directing the city to provide responsive records and awarding Hodai attorney fees and costs. The city filed an answer in which it generally denied it had failed to comply with the public records law. It also averred that in “its efforts to prepare for this lawsuit,” it found TPD training materials, an operational manual, and forms for Stingray use. It declined, however, to disclose these materials based on a review by the Federal Bureau of Investigation (FBI) that opined disclosure would not be in the best interests of the state. The city did, however, offer them for the trial court’s in camera review. Additionally, it stated it was aware of four closed and one open criminal investigations in which Stingray had been used. It also offered for in camera inspection the “full case files” of the completed investigations. Finally, the city attached two affidavits to its answer: (1) an FBI agent’s explanation of how law enforcement uses Stingray and the detrimental effect if technical information about it were released; and, (2) a TPD lieutenant’s testimony about the responsive documents, as well as TPD’s use and maintenance of Stingray. ¶ 5 The city subsequently filed several hundred pages under seal accompanied by a motion requesting the trial court inspect documents in camera. The documents included law enforcement training materials, a form used for officers to request Stingray monitoring, a “data dump” of raw data received from the equipment during an investigation, and five police reports from ongoing and closed criminal cases. The city did not wait for a court ruling to disclose the closed ease reports, however; the records were produced soon after Hodai requested them by their specific ease numbers. At oral argument on the motion to inspect, the court ordered the city to provide a list of documents withheld and reasons why, additionally ordering the parties to file briefs. The court also concluded at the hearing that the records of the ongoing case should be withheld because the investigation was sensitive and “release of records from that would jeopardize” it. ¶ 6 After briefing by the parties, but without further hearings, the trial court concluded in an unsigned ruling that all documents produced in camera were properly withheld and it denied all other requests for documents. Hodai appealed and we suspended jurisdiction for the trial court to enter a final judgment. See A’iz. R. Civ. App. P. 3(b), 9(c). The court having done so, we have jurisdiction over the appeal pursuant to A.R.S. §§ 12-2101(A)(1) and 12-120.21. See A’iz. R. P. Spec. Actions 8(a). Discussion ¶ 7 A’izona’s public records law mandates “[public records] shall be open to inspection by any person at all times during office hours.” A.R.S. § 39-121. A person need not demonstrate a particular purpose to justify disclosure. Bolm v. Custodian of Records of Tucson Police Dep’t, 193 Ariz. 35, ¶ 10, 969 P.2d 200, 204 (App.1998) (“A person’s right to public records under [§ 39-121] is not conditioned on his or her showing, or a court finding, that the documents are relevant to anything.”). The fact that the public record exists is sufficient to create a presumption requiring disclosure. See Griffis v. Pinal Cty., 215 Ariz. 1, ¶ 8, 156 P.3d 418, 421 (2007). Nonetheless, a public officer may refuse release or inspection of a public record if such disclosure “might lead to substantial and irreparable private or public harm.” Carlson v. Pima Cty., 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984). Discretionary refusal to disclose based on the best interests of the state is subject to judicial scrutiny. Id. “Th[e] ‘best interests of the state’ standard is not confined to the narrow interest of either the official who holds the records or the agency he or she serves. It includes the overall interests of the government and the people.” Phx. Newspapers, Inc. v. Keegan, 201 Ariz. 344, ¶ 18, 35 P.3d 105, 109-10 (App.2001). The government has the burden of specifically demonstrating how production of documents would be detrimental to the best interests of the state. Cox Ariz. Publ’ns, Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 1194, 1198 (1993). ¶ 8 Upon a determination that the documents at issue are clearly public records within the meaning of the statute, the court determines whether the government’s proffered explanation of public harm outweighs the policy in favor of disclosure. Carlson, 141 Ariz. at 491, 687 P.2d at 1246; Judicial Watch, Inc. v. City of Phx., 228 Ariz. 393, ¶¶ 10, 17-18, 267 P.3d 1185, 1187, 1189 (App.2011). The parties do not dispute, and we agree, that the Stingray documents are public records. Additionally, the trial court appropriately undertook the balancing test pursuant to Carlson. We defer to the trial court’s factual findings unless clearly erroneous, but review de novo whether its denial of access was improper. Keegan, 201 Ariz. 344, ¶ 11, 35 P.3d at 108-09. We are not bound by the trial court’s findings if clearly erroneous. City of Tucson v. Morgan, 13 Ariz.App. 193, 195, 475 P.2d 285, 287 (1970). Quick Reference Sheets and Training Materials ¶ 9 Hodai argues the trial court erred by finding the city properly withheld three “quick reference” sheets, an equipment authorization form, and a PowerPoint presentation. Hodai articulated several reasons in the form of questions to support disclosure: (1) whether TPD officers sought warrants before using the technology, (2) whether use of the technology forces all cell phones in the area to register their identity and location, (3) whether data belonging to third parties is protected, and (4) whether the government is candid with the courts about the capabilities of the technology. The trial court recognized these rationales to be “legitimate and important public purposes,” but irrelevant in this context because all of the records simply showed how to use the equipment. ¶ 10 To support its argument that nondisclosure of the training materials served the best interests of the state, the city relied on the affidavit of a special agent with the FBI. The agent stated that disclosure of information about cell site simulators would “provide adversaries with critical information about the capabilities, limitations, and circumstances of their use ... [and] provide them the information necessary to develop defensive technology, modify their behaviors, and otherwise take countermeasures designed to thwart the use of this technology.” He also stated that even minor details “may reveal more information than their apparent insignificance suggests because, much like a jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.” Hodai provided no evidence to the trial court to dispute the validity of the FBI affidavit, which authorized the trial court to accept the factual statements as uncontested. Cf. GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App.1990) (in summary judgment context, opposing party’s failure to provide competent evidence controverting moving party’s affidavits, facts alleged may be considered tme). ¶ 11 Because neither Hodai nor his attorney had access to documents submitted under seal, he could not address the trial court’s conclusion that the public records only “show how to use the equipment.” He instead argues, as he did below, that the injury detailed by the FBI agent was speculative and not specific. Further, he argues the agent’s testimony did not outweigh the presumption favoring disclosure, citing Star Publishing Co. v. Pima County Attorney’s Office, 181 Ariz. 432, 434, 891 P.2d 899, 901 (App.1994). But in Star Publishing, the county attorney had not reviewed the documents in question and refused to produce them because they “might be protected” by privilege, might be immune from disclosure, or might impede a pending criminal investigation. Id. at 433-34, 891 P.2d at 900-01. ¶ 12 In contrast, the potential injury here is sufficiently specific. An FBI agent experienced with the technology stated that knowledge of how the equipment works “could easily lead to development and employment of countermeasures.” That a person experienced with the technology believes it could be “easily” thwarted if the information was released is not merely a possible harm based on a hypothetical situation, but one rooted in experience. See Ariz. Bd. of Regents v. Phx. Newspapers, Inc., 167 Ariz. 254, 258, 806 P.2d 348, 352 (1991) (evidence that in “some cases” publicity regarding university presidency candidates resulted in “lesser qualified, but thicker skinned” candidates satisfied best interests of state exception). ¶ 13 Hodai also argues the agent’s affidavit was speculative because it did not address each item being withheld, again relying on Star Publishing. There, however, no one had reviewed the records. 181 Ariz. at 434, 891 P.2d at 901. Here, the city stated in its answer that the FBI had reviewed the documents. And even if the FBI agent who drafted the affidavit did not review all the documents himself, he averred that information about how the specific technology at issue here worked should not be released and provided reasons. The city withheld documents to which those statements applied. Star Publishing does not require the factual justification and review of documents to occur in a single step. Therefore, for documents that provide information regarding how the equipment works, we conclude the trial court could properly find the best interests of the state outweigh the presumption that disclosure is required. ¶ 14 Next, we must determine whether the documents viewed in camera meet this requirement. The quick reference sheets and the authorization form contain details about how the equipment works as well as how to operate it. The PowerPoint presentation, however, contains general information as well as some technical details about the equipment. It also provides guidance to law enforcement about how use of the equipment fits within the broader context of the rules of criminal procedure, such as obtaining a search warrant. Thus, the trial court’s conclusion that all information in the training documents “show[s] how to use the equipment” was clearly erroneous. See Merryweather v. Pendleton, 91 Ariz. 334, 338, 372 P.2d 335, 338 (1962) (finding is clearly erroneous where “ ‘reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed’ ”), quoting United States v. U.S. Gypsum, Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Castro v. Ballesteros-Suarez, 222 Ariz. 48, ¶ 11, 213 P.3d 197, 200-01 (App.2009) (finding of fact clearly erroneous if unsupported by such substantial evidence as would allow “‘a reasonable person to reach the trial court’s result’ ”), quoting Davis v. Zlatos, 211 Ariz. 519, ¶ 18, 123 P.3d 1156, 1161 (App.2005); cf. Morgan, 13 Ariz.App. at 195, 475 P.2d at 287 (finding supported by “no evidence” clearly erroneous). ¶ 15 The trial court’s broad finding prevented it from addressing Hodai’s alternative argument that responsive documents containing both sensitive and non-sensitive information must be redacted and released. Phx. Newspapers, Inc. v. Ellis, 215 Ariz. 268, ¶¶ 22-23, 159 P.3d 578, 583-84 (App.2007) (noting portions of document may be released if confidential information redacted). The ruling did not address the possibility of redacting documents to protect the interest of the state. Moreover, apparently unbeknownst to Hodai, the city provided for in camera inspection a version of the PowerPoint with proposed redactions. In our review of the records submitted under seal, we conclude that the city’s proposed redactions removed information about how Stingray works in particular instances while disclosing other important information, such as its use in the justice system. The unredaeted information addresses the specific public policy rationales that the court found legitimate and important, but does not compromise the ability of the government to keep secret the technical information about Stingray. Therefore, we reverse the trial court’s ruling withholding the training PowerPoint and remand so the court may order disclosure of the city’s redacted version of the PowerPoint. Hodai’s Additional Arguments Regarding Training Materials ¶ 16 Hodai raises three more arguments with regard to the information sheets and training materials. First, he contends the trial court erred when it found as an alternative basis to withhold documents that they “are subject to a qualified privilege to not disclose sensitive law enforcement investigative techniques.” The court relied on United States v. Van Horn, 789 F.2d 1492, 1507-08 (11th Cir.1986), a criminal disclosure case regarding the government’s refusal to reveal the location and type of listening devices. The court determined the government had a qualified privilege not to disclose information that would allow criminals to thwart surveillance technology. See id. The privilege was an extension of the state’s privilege to withhold the identity of confidential informants to promote effective law enforcement, subject to the right of a defendant to present a full defense. See Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); accord Ariz. R. Crim. P. 15.4(b)(2) (disclosure of informant information not required under specified conditions). ¶ 17 This qualified investigative technique privilege has been recognized by other federal courts, e.g., United States v. Cintolo, 818 F.2d 980, 1002 & n. 13 (1st Cir.1987), but it has not been adopted in Arizona. Generally, the privilege has been applied in criminal cases to protect the public interest in effective law enforcement by safeguarding information that if revealed would threaten the future value of a surveillance technique. See Van Horn, 789 F.2d at 1507-08; United States v. Rigmaiden, 844 F.Supp.2d 982, 987 (D.Ariz.2012). It requires the court to balance the needs of the government with the rights of the defendant. See Van Horn, 789 F.2d at 1508; Rigmaiden, 844 F.Supp.2d at 988-89. This balancing is the functional equivalent of the “best interests of the state” analysis required when the government asks the court to preclude disclosure of public records to protect the state’s interest in effective law enforcement. Griffis, 215 Ariz. 1, ¶ 13, 156 P.3d at 422. Because the balancing test in the privilege parallels the best-interests analysis already conducted, we need not consider whether such a privilege exists in Arizona or should be applied in the context of a public records request. ¶ 18 Hodai also argues the trial court should have allowed his counsel to view the documents under seal, and that the information about how the surveillance technology works is already publicly known, and therefore is not protected. Neither of these arguments was preserved below, and we do not consider them for the first time on appeal. See Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 17, 160 P.3d 223, 228 (App.2007). Open Case Report and Data Dump Exemplar ¶ 19 Hodai contends the trial court erred by withholding the report from an open TPD investigation and an exemplar of a “data dump” from the use of the equipment during the investigation. As with the training documents, the city argued to the trial court that these documents should not be released due to the best interests of the state. The city does not directly respond to Hodai’s arguments on appeal. ¶20 “[Rjeports of ongoing police investigations are not generally exempt from our public records law.” Collins, 175 Ariz. at 14, 852 P.2d at 1198. Therefore, the burden was on the city to show the release of all or part of the file would be detrimental to the best interests of the state. Id. As above, this required a showing of specific, material harm. Ellis, 215 Ariz. 268, ¶ 22, 159 P.3d at 583. ¶ 21 The city relied on the affidavit of TPD Lieutenant Hall, who stated that, in his “opinion and belief ... the release of any information about this case, including the ease name, would be detrimental to and would interfere with the further investigation of that case.” The trial court found that the ongoing investigation was “sensitive” and that “any release of records from that would jeopardize the investigation.” Hodai does not contest the veracity of Hall’s affidavit and the averments within it are not unusual; therefore, the court’s findings are not clearly erroneous. Moreover, unlike in Collins, the harm here is specific—even providing the name or minor details of the investigation would link it to the use of the equipment, revealing a sensitive investigative technique in an ongoing case. Cf. 175 Ariz. at 14, 852 P.2d at 1198 (vague assertions of possible harm insufficient to overcome legal presumption favoring disclosure). ¶ 22 Similarly, although the city argued the data dump exemplar should be withheld because it is unintelligible without technical viewing software and has “no independent evidentiary value,” we agree with the trial court’s conclusion that the data is sensitive. Even in its raw form, many lines of output contain date and address information that can be linked to details of the ongoing investigation. The trial court did not err by withholding the data dump exemplar because in this context, release of any details of the open case would result in specific, material harm. Redactions in Original Production ¶ 23 Hodai contends the trial court erred by allowing the city to redact the “names of private business partners” involved in equipment purchases. Hodai did not raise this argument before the trial court. We do not consider an argument not adequately preserved below. Harris, 215 Ariz. 344, ¶ 17, 160 P.3d at 228. FBI-Related Documents ¶24 Hodai argues the trial court erred by not ordering the city to furnish “any and all records of communications (i.e., email, email attachments, faxes, memos, letters) (generated from January 1, 2013 to December 9, 2013) in the possession of any TPD personnel that pertain in any way to the Federal Bureau of Investigation (FBI).” Hodai generally contends we should reject the court’s findings that his search request was overly broad and burdensome. ¶ 25 The trial court, relying on out-of-state authority such as Capitol Information Association v. Ann Arbor Police, 138 Mich.App. 655, 360 N.W.2d 262, 263-64 (1984), and Bader v. Bove, 273 A.D.2d 466, 710 N.Y.S.2d 379, 379 (N.Y.App.Div.2000), found that Hodai had failed to identify the records sought with reasonable specificity, and thus denied the request as improper. The court obseived that Hodai’s request for all FBI-related communications would require the city “to search every record in its possession” that included relevant keywords. The court also found that “[t]he [c]ity has asked Plaintiff to narrow his requests but he has refused.” ¶ 26 Hodai characterizes the trial court’s ruling as denying his request simply because it was broad and argues that Arizona law “rejects attempts to automatically limit the public’s ability to inspect and copy public records based on volume,” citing Star Publishing, 181 Ariz. at 434, 891 P.2d at 901. He also relies on Congress Elementary School District No. 17 of Yavapai County v. Warren, 227 Ariz. 16, ¶¶ 12, 14, 251 P.3d 395, 398 (App.2011), for the proposition that a records request may not be denied simply because compliance would impose a significant administrative burden on the agency. “ ‘Burden’ is not a recognized exception to the Arizona public records laws,” he maintains. ¶ 27 Our public records statutes “evince a clear policy favoring disclosure,” Carlson, 141 Ariz. at 490, 687 P.2d at 1245, and the burden of proving that “redaction would be so unduly burdensome ... that inspection is not warranted” rests with the party opposing inspection, Judicial Watch, 228 Ariz. 393, ¶ 17, 267 P.3d at 1189. To the extent Hodai maintains that unreasonable administrative burden can never be a sufficient reason to deny a public records request under Arizona law, he is mistaken. As our supreme court has recognized, “sometimes the benefits of public disclosure must yield to the burden imposed on ... the government itself by disclosure.” London v. Broderick, 206 Ariz. 490, ¶ 9, 80 P.3d 769, 772 (2003); accord Judicial Watch, 228 Ariz. 393, ¶ 17, 267 P.3d at 1189 (“the burden of producing public records can outweigh the public’s interest in inspecting those records”); Arpaio v. Davis, 221 Ariz. 116, ¶¶ 21-22, 210 P.3d 1287, 1292 (App.2009) (denial of “ ‘all-inclusive, blanket’ ” records request which would have required “ ‘unreasonable expenditure of resources and time’ ” to fulfill was not abuse of discretion); cf. Ariz. R. Sup. Ct. 123(c)(1), (f)(4)(A)(i) (regarding judicial-branch records requests). In determining whether production poses an unreasonable administrative burden, a court considers whether the general presumption of disclosure is overcome by: (1) the resources and time it will take to locate, compile, and redact the requested materials; (2) the volume of materials requested; and, (3) the extent to which compliance with the request will disrupt the agency’s ability to perform its core functions. See London, 206 Ariz. 490, ¶ 9, 80 P.3d at 772; Judicial Watch, 228 Ariz. 393, ¶ 18, 267 P.3d at 1189; Arpaio, 221 Ariz. 116, ¶ 20-22, 210 P.3d at 1292; accord Ariz. R. Sup. Ct. 123(f)(4)(A). The analysis is, at its core, an inquiry into whether “the best interests of the state in carrying out its legitimate activities outweigh the general policy of open access.” Carlson, 141 Ariz. at 491, 687 P.2d at 1246. ¶ 28 Here, the city presented evidence to the trial court that fulfilling Hodai’s FBI-related communications request would be unreasonably burdensome, requiring “a search of nearly 1400 email accounts, and review and redaction of law enforcement sensitive information” for any FBI-related emails or email attachments therein. Hodai also specifically requested any FBI-related “faxes” and “letters.” Faxes and letters are ordinarily in hard copy form, rendering an electronic keyword search impossible; thus, the court did not err in suggesting that Hodai’s request would require the city to perform a time-intensive and costly manual search of all paper records TPD produced or received during the relevant time period to locate the requested records. Cf. Bader, 710 N.Y.S.2d at 379 (manual search of decades’ worth of paper documents unreasonably burdensome). The court did not err in finding the city met its burden of proving that inspection is not warranted because identifying and redacting all FBI-related communications would be unreasonably burdensome. See, e.g., Judicial Watch, 228 Ariz. 393, ¶ 17, 267 P.3d at 1189; accord Capitol Info. Ass’n, 360 N.W.2d at 264 (request for all correspondence between city police and FBI or other federal law enforcement or investigative agencies during particular time period was “absurdly over-broad” and would impose “intolerable administrative burden[ ]”). ¶ 29 Hodai’s additional reliance on Star Publishing is unavailing. The records requested in that case—“the computer backup backof [the Pima County Assessor’s Office] containing all documents for 1993”— were not unreasonably burdensome to locate or compile. 181 Ariz. at 433, 891 P.2d at 900. Although they contained voluminous electronic electhe backup tapes themselves were readily at hand, such that the adminis trative cost of actual production would have been low. See id. (tapes already compiled and transferred to agency before request show compilation and transfer not unreasonably burdensome). Where requested records are readily identifiable, as were the backup tapes, the agency may not deny the request merely because the records contain a large quantity of information. See id. at 432, 891 P.2d at 901. But that is not the issue before us. Here, the trial court found that the requested FBI-related communications were not readily identifiable to begin with, and its ruling was not erroneous. Adequacy of Search ¶ 30 Hodai argues the trial court erred by finding the defendants had performed an adequate search for the requested documents. The city has the initial burden to show it adequately searched for responsive records. Phx. New Times, L.L.C. v. Arpaio, 217 Ariz. 533, ¶ 16, 177 P.3d 275, 281 (App.2008). ‘“In discharging this burden, the agency may rely on affidavits or declarations that provide reasonable detail of the scope of the search.’ ” Id., quoting Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 547 (6th Cir. 2001). ¶31 The city relied on averments in its answer, which was verified by TPD Lieutenant Hall, and his affidavit that provides foundation for his knowledge of the facts in question. Hall’s affidavit states he was primarily responsible for use and maintenance of the equipment, he had attended Hams training, and he “was responsible for determining when and under what conditions the equipment would be utilized.” The court adopted as true the uncontested statements of Hall, which were made directly in his affidavit or indirectly by verification of the answer: The City says that it has searched for and produced all records responsive to [Hodai’s] requests for records concerning Harris Corporation and its use of the Harris Corporation technology. Lieutenant Hall, who is knowledgeable about the City’s use of this technology, stated in his affidavit that he has thoroughly searched for the records and identified those that exist. ¶ 32 Relying principally on Phoenix New Times, Hodai posits that Hall was required to show the design of his search and to demonstrate that the design was adequate to locate all responsive records. His reliance is misplaced. Phoenix New Times concerned the promptness of the agency’s response rather than the adequacy of its search. 217 Ariz. 533, ¶ 13, 177 P.3d at 280. But to the extent the court considered the adequacy of the agency search as a factor in assessing the promptness of the response, it did not adopt the strict showing Hodai contends we should recognize. Id. ¶¶ 23-25. Rather, the agency must demonstrate its search was “‘reasonably calculated to uncover all relevant documents.’ ” Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 986 (9th Cir.2009), quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir.1985). ¶ 33 Here, the record requests involved a single piece of equipment, infrequently used, that was maintained and monitored by one TPD officer. The trial court could reasonably conclude that the statements in the affidavit combined with the verification of additional statements in the answer were sufficient to meet the city’s burden to show the search was adequate. Unlike record requests that involve many employees, multiple agencies, or massive investigations, see, e.g., Phx. New Times, 217 Ariz. 533, ¶¶ 18, 23, 177 P.3d at 281, 282; Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1479-80, 1483 (D.C.Cir.1984) (60,000 pages concerning assassination of Dr. Martin Luther King, Jr.), a simple search by one person with knowledge may be sufficient. Additionally, as the court correctly noted, Hodai had the opportunity to contest Hall’s statements but did not do so. ¶ 34 Hodai also argues that because he obtained from the county attorney documents related to the closed criminal cases that were not in the files disclosed by the city, its search must have been inadequate. But Lieutenant Hall’s affidavit refers to documents in the closed cases as “reports,” intimating there are full case files that were not produced. Moreover, assuming functionally equivalent record requests to the separate agencies, “ ‘the failure of an agency to turn up one specific document in its search does not alone render a search inadequate.’ ” Lahr, 569 F.3d at 987, quoting Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C.Cir.2003). Hodai’s alternative argument does not vitiate the court’s conclusion that substantial evidence supports the adequacy of the city search. Promptness of Response in Disclosing Closed Case Reports ¶ 35 Hodai argues on appeal, as he did below, that the four closed case files produced after he filed suit were not “promptly furnish[ed]” as required by § 39-121.01(D)(1), constituting wrongful denial of the records under § 39-121.01 (E). The trial court did not specifically rule on the promptness of the response, but generally denied all additional relief to Hodai. However, the court did not consider whether the case files released to Hodai eight to ten months after the first document request were sufficiently prompt. Whether a response to a public records request was prompt is an issue we review de novo, assessing promptness in the context of the circumstances of the request. McKee v. Peoria Unified Sch. Dist., 236 Ariz. 254, ¶¶ 14-15, 338 P.3d 994, 998 (App.2014). ¶ 36 The city does not respond to the argument on appeal. Failure to respond may be considered a confession of error. In re 1996 Nissan Sentra, 201 Ariz. 114, ¶ 7, 32 P.3d 39, 42 (App.2001). In our discretion, however, we address the city’s argument as presented to the trial court. See Savord v. Morton, 235 Ariz. 256, ¶ 9, 330 P.3d 1013, 1016 (App.2014). ¶ 37 The city contended that until Hodai requested particular criminal case files after he learned in litigation that Stingray had been used in the investigations, there was no duty to provide them as “work product” documents showing Stingray’s use. It relied on Hall’s affidavit in which he opined that because the case files do not contain “any reference to the technology,” they “are not public records that respond to the Plaintiffs requests.” ¶ 38 First, we reject the proposition that unless Stingray was referenced in a particular investigation, the case file would be shielded from a public records request. Cf. Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 889-90 (D.C.Cir.1995) (narrow search of agency index insufficient where responsive documents not in index also existed). We note that officers were instructed to “not mention [Stingray] in any supplement or report”—or even to discuss it with county or state prosecutors. This instruction would have shielded disclosure of a public record without the assertion of a recognized exception. ¶ 39 Further, there is no indication in the record that it would have been difficult for TPD to promptly locate and disclose the records. As Hall acknowledged, he was the person “primarily responsible for the use and maintenance” of Stingray, and in that capacity could identify based on personal knowledge those investigations in which it had been used. Even if we assume that Hodai’s records request for “all records____that pertain in any way to ‘Stingray’ or ‘Stingray II’ cell phone tracking equipment” was ambiguous, at a minimum TPD should have clarified whether criminal investigations relying on Stingray were among the requested documents. See Jarvik v. CIA, 741 F.Supp.2d 106, 115 (D.D.C.2010) (“An agency can ask a [records] requestor to clarify or narrow an overly broad request.”). Without explanation from the city regarding the facts of the delay, such as time needed to redact or difficulty in locating the documents, eight to ten months is not prompt. See Phx. New Times, 217 Ariz. 533, ¶¶ 20-25, 177 P.3d at 282 (143 days not prompt where agency assumed it had transferred responsive documents); cf. McKee, 236 Ariz. 254, ¶¶ 20-21, 338 P.3d at 999 (disclosure within twenty-four days prompt where many documents were re quested and agency needed to gather from different departments). The trial court therefore erred in its implicit finding that the four case files were promptly produced. Attorney Fees ¶ 40 Hodai contends the trial court abused its discretion by failing to award attorney fees under A.R.S. § 39-121.02. Although Hodai requested attorney fees in both his complaint and his final motion before the trial court, the court did not explicitly rule on the issue. When we suspended the appeal to allow entry of a signed written order, both parties agreed final judgment should be entered and the court returned a judgment containing language of finality and citation to Ariz. R. Civ. P. 54(c). On appeal, both parties treat the attorney fee request as denied. We do the same. ¶ 41 Under § 39-121.02(B), “[t]he court may award attorney fees and other legal costs that are reasonably incurred in any action under this article if the person seeking public records has substantially prevailed.” Both the determination that the petitioner substantially prevailed and the award of fees after making such a finding are at the discretion of the trial court. Democratic Party of Pima Cty. v. Ford, 228 Ariz. 545, ¶¶ 8-10, 269 P.3d 721, 723-24 (App.2012). Because we reverse the trial court’s rulings denying disclosure of the redacted PowerPoint and concluding that the city acted promptly in disclosing the closed files, we remand to allow the court to determine in the first instance whether Hodai substantially prevailed and whether to award attorney fees. ¶ 42 Hodai asks us to grant attorney fees and costs on appeal under § 39-121.02(B). We deny attorney fees without prejudice for Hodai to request in the trial court his fees incurred in this appeal. We award costs on appeal pursuant to A.R.S. § 12-341 upon compliance with Rule 21, Ariz. R. Civ. App. P. Disposition ¶ 43 For the foregoing reasons, we affirm in part and reverse in part. We remand to allow the trial court to order disclosure of the redacted version of the PowerPoint and to determine whether to award attorney fees in light of the disclosure of new materials, as well as the promptness of the city’s response. . The records request was made to the City of Tucson and its police department (TPD), which we jointly refer to as the city unless the context requires differentiation. . The parties refer to “Stingray” and "Stingray II.” For the purposes of this appeal, there is no difference between the versions. Generally, this type of device is known as a cell site simulator, which mimics a cell tower so that responding cell phones provide to it data typically used for the functioning of the cellular network and individual phone administration. Brian L. Owsley, Triggerfish, Stingrays, and Fourth Amendment Fishing Expeditions, 66 Hastings L.J. 183, 191— 92 (2014). Interception of such information has been used in criminal investigations for a number of years. Id. .The city's answering brief indicated that the device had left its possession, but at oral argument and in a notice of errata counsel clarified that the city had stopped using the device around the time of the litigation, but retains it pending resolution of other issues. . The agent also noted the FBI considered information about the equipment exempt from the federal Freedom of Information Act, citing 5 U.S.C. § 552(b)(7)(E). That subparagraph. which prevents disclosure of law enforcement techniques or procedures, has no equivalent in Arizona's public records law. See A.R.S. §§ 39-121 through 39-121.03. . The city’s description of the documents filed did not mention these redactions, nor did any of its arguments before the court. . Hodai is correct that some technical information regarding the Stingray is already public. See, e.g., Owsley, supra, at 191-94; Stephanie K. Pell & Christopher Soghoian, Your Secret Stingray’s No Secret Anymore: The Vanishing Government Monopoly Over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy, 28 Harv. J.L. & Tech. 1, 8-13 (2014). However, Hodai did not raise this argument nor introduce any facts below to support it; moreover, public availability of a record does mean disclosure is automatically required. See Scottsdale Unified Sch. Dist. No. 48 of Maricopa Cty. v. KPNX Broad. Co., 191 Ariz. 297, ¶¶ 3-7, 10-12, 955 P.2d 534, 536-38 (1998) (availability of teacher birth dates from other sources did not require disclosure by school district). . Hodai contends the trial court failed to apply the Carlson test regarding the open investigation, but the context of the court's ruling indicates it used the correct test. . Hodai also argues that the trial court's reliance on out-of-state cases was improper. Although he is correct that Arizona courts are not bound by precedent from other states, see State v. Solis, 236 Ariz. 242, ¶ 14, 338 P.3d 982, 987 (App. 2014), our courts may look to cases from other jurisdictions as persuasive authority. See, e.g., Baseline Fin. Servs. v. Madison, 229 Ariz. 543, ¶ 13, 278 P.3d 321, 323 (App.2012). Any error by the trial court in discussing out-of-state cases despite the presence of on-point Arizona authority was harmless, because the out-of-state cases cited provide the same rule as the Arizona precedents, as discussed below. . Hodai contends that even if Arizona law does recognize unreasonable administrative burden as falling within the “best interests of the state” exception, the public's strong interests in privacy and Fourth Amendment protections regarding the use of the equipment, as well as public oversight and transparency, outweigh the burden in this case. While there are important interests at stake, a request for all documents referencing the FBI is not reasonably focused on protecting those interests. . Additionally, the defendant in Star Publishing failed to point to or provide evidence of any specific risks that would result from the disclosure of any specific files on the backup tapes, and thus forfeited any argument about the administrative burden of redacting the voluminous records on the tapes. See 181 Ariz. at 433-34, 891 P.2d at 900-01. . Record requests that do not directly involve Stingray, such as for FBI communications, are discussed in other sections. . Hodai also appears to argue the other documents the city lodged for review in camera were not promptly produced and were therefore wrongly denied. We need not decide whether the release of any of these documents was “prompt,” because they have not been released at all. . Hodai also requests fees pursuant to other statutes but he never raised these arguments below. We therefore do not address them on appeal. See Harris, 215 Ariz. 344, ¶ 17, 160 P.3d at 228.

PHELPS, Justice. On June 4, 1936, petitioner Ed Foutz,, while employed by the Phelps Dodge Corporation, hereinafter called the company* was injured by an accident arising out of and in the course of his employment. Thereafter petitioner filed a claim for compensation with the Industrial Commission, hereinafter called the commission, and on May 27, 1938, an award was made by the commission in which it found that petitioner had suffered a permanent partial disability equal to 40% loss of function of the right leg entitling him to compensation in the sum of $73.36 per month for a period of 20 months. The findings of the commission in the instant proceeding are to the effect that medical evidence, adduced prior to the award of May 27, 1938, indicated the advisability of surgery to reduce the functional impairment of petitioner’s right leg, but that peti tioner did not wish to submit to the surgery-recommended but wished rather to accept, in lieu thereof, a permanent partial disability rating. The evidence of medical witnesses is that such operation would have reduced the functional impairment of the right leg 15% to 20% and that such operation is considered to be a minor surgical operation. Petitioner returned to work with the company and continued in such employment, working intermittently, until December 1947. The records of the company show that he remained away from his job from December 27, 1947, to March 1, 1948, without leave and that during that period he did not consult a doctor. This conduct according to the evidence, constituted a violation of a company rule for which petitioner was discharged. On September 27, 1949, petitioner filed an application with the commission for a reopening of his case upon the ground of a newly developed condition of his foot which he claimed flowed from the injury sustained in 1936 as a result of which he had been unable to do any work since December, 1947. Thereafter on January 5, 1950, the commission reopened petitioner’s case on the basis of new, additional and previously undiscovered disability and awarded petitioner .accident benefits and compensation, if indicated, for temporary disability suffered from and after date of filing his application. The company filed a petition for reheating on January 24, 1950, setting forth a number of grounds therefor- which are here immaterial. On June 6, 1950, after hearing evidence in the case, the commission rescinded its order of January 5th and reaffirmed its findings and award of May 27, 1938. The case comes to us on certiorari for review. Petitioner claims that the findings and award of the commission of June 6,1950, are contrary to the law and the evidence. On the other hand the company takes the position that petitioner’s disability which he claims has. developed subsequent to the award made in 1938 is not compensable (1) because it was included in the original rating for the reason that it resulted from petitioner’s unreasonable refusal to follow recommended medical'treatment; (2) because the statute of limitations has run against it. We cannot agree with the position of the company that the limitation statute, section 56-967, A.C.A.1939, has any application to the instant case. Zagar v. Industrial Commission, 40 Ariz. 479, 14 P.2d 472, 474, and Doby v. Miami Trust Co., 40 Ariz. 490, 14 P.2d 476, has settled this question. The same question was at issue in those cases and the court said in the Zagar case: “ * * It results therefore that, if the applicant files his petition for compensation within a year after his injury, it confers jurisdiction on the commission to hear and determine his right to compensation, and, upon the prop er application and proof, power to increase or rearrange the compensation or death benefits.” The court further stated that: “ * * * The original award was not final * * * the commission not only had the right, but it was its legal duty to retain jurisdiction of the case for further action and award if the facts should so warrant. * * * ” In the case of Hartford Accident & Indemnity Co. v. Industrial Commission, 43 Ariz. 50, 29 P.2d 142, the court pointed out that it had this very question under consideration in the Zagar and Doby cases, supra. The portion of section 56-967, supra, upon which the company and the commission rely in support of their petition that the statute of limitation has run against petitioner’s claim for readjustment is as follows : “ * * * No application shall be valid or claim thereunder enforceable unless filed within one (1) year after the day upon which the injury occurred or the right thereto accrued.” This portion of the statute was interpreted in Hartford Accident and Indemnity Company v. Industrial Commission, supra, to mean that where an injury occurs, arising out of and in the course of employment, if the injury is slight or trivial at the time and noncompensable and later develops unexpected results for which the employee could not have been expected to make claim and receive compensation, then the statute runs, not from the date of the accident but from the date the results of the injury become manifest and compensable. Otherwise the statute, of course, begins to run from the date of injury. In the instant case, the injury was serious and compensable at the time the accident occurred, therefore the injury and the accrued right to claim compensation therefor occurred at the same moment. It is not, and could not now be contended that the original claim for compensation was not filed in due time. It is clear to us that the one-year limitation in the above statute has no application to a petition for reopening a case for after-developed disabilities where the commission has already assumed jurisdiction and still retains it to take care of such contingencies. The next question is: Are the findings and award of the commission contrary to the law and the evidence? We think not. Section 56-958, A.C.A.1939; provides that: “No compensation shall be payable for the * * * disability of an employee * * * insofar as his disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable surgical treatment or medical aid.” The evidence is indisputable that surgical treatment was recommended to petitioner designed to reduce the functional impairment of his right leg and that he declined to submit to such surgery preferring to accept compensation upon the basis of a 35% to 40% permanent partial disability of the right leg. Compensation was awarded on the basis of the higher percentage of disability. The commission, in denying petitioner’s application to reopen the case and reaffirming its original findings and award, must be conclusively presumed to have found that the recommendations for medical treatment were reasonable and that petitioner’s refusal or neglect to submit to the surgery recommended was unreasonable. It expressly found that he accepted a disability rating based on a 40% loss of function of the right leg in lieu of the benefit of a corrective operation and that his condition was therefore not new, additional or previously undiscovered. We are bound by the findings of the commission if supported by reasonable evidence or where there is a conflict in the evidence. There is but slight conflict in the evidence relating to the reasonableness of the recommended surgery and the evidence reasonably supports the findings and award of the commission. Award Affirmed. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concur.

DE CONCINI, Justice. Georgia Morris, plaintiff-appellee, was injured while riding as a passenger in a taxicab driven by Albert McManis and -owned by Arthur Curlee doing business as the Yellow Cab Company, both defendants-appellant. While traveling westward on Jefferson Street in Phoenix, Arizona, the cab was struck by an automobile traveling eastward on that street driven by one Simproso Rafal. Rafal was thereupon arrested and later convicted' of reckless driving. Plaintiff brought an action alleging negligence against McManis, Curlee, and Rafal. McManis and Curlee answered and cross-claimed against Rafal who failed to answer either plaintiff’s complaint or defendants’ cross-claim. Rafal failed to appear at the trial and the court entered a default against him as to both the complaint and the cross-claim. At the close of the argument the court directed a verdict against Rafal in favor of appellants on their cross-complaint. The jury returned a verdict in favor of the plaintiff against the three defendants ; appellants filed a motion for judgment notwithstanding the verdict, or in the alternative a motion for a new trial. From a denial of those motions appellants bring this appeal. Appellants’ assignments of error can all be relegated to the question of the sufficiency of the evidence to permit the case to go to the jury and to sustain a verdict in favor -of the plaintiff. Upon a review of the record it is patent that, at least quantitatively, the evidence favors the defendants. McManis and several police officers testified that Rafal had driven his car over to the left side of the road north of the center line and into the path of the on-coming cab, and that Mc-Manis swerved to the left immediately before the impact in an attempt to avoid a head-on collision. The trial court pointed out, “That there may be some evidence there that justified submission to the jury, but it is very thin. * * *” The evidence to which the court was undoubtedly referring was the testimony of Mr. C. F. Love, a fellow passenger of the plaintiff in the cab. Love testified that McManis was traveling at a speed of from 40 to 45 miles per hour, that Rafal was not driving completely on the left side of the road, and that McManis turned the cab to the left directly in the path of the approaching car driven by Rafal. As “thin” as this evidence may be, the trial court evidently felt that reasonable men could differ in their conclusions and that they might find negligence on the part of McManis therefrom. With that in view the trial court refused to grant defendants’ motion for a directed verdict or judgment n. o. v. In reviewing the evidence, and we must take it in the light most favorable to the plaintiff, we believe that there was sufficient evidence to sustain the verdict; therefore the-trial court did not err in submitting the .case to the jury. In deciding the question of the sufficiency of the evidence to sustain the verdict this court said in the case of Haas v. Morrow, 54 Ariz. 455, 97 P.2d 204, “* * * In order to determine this, it is necessary that we should review the evidence briefly, so far as it is necessary, and then apply to it the rules of law which we have so often reiterated govern an appeal on this ground. They are that we will not weigh the credibility of the witnesses nor a Conflict in the testimony, and if there is any substantial evidence from which a reasonable man could have found the ultimate facts to be such as to sustain the verdict, we will affirm the judgment. We have held this so often that it is unnecessary to give any citations supporting it.”' Counsel for appellants contend that by directing a verdict in their favor against defendant Rafal, the trial court impliedly found that Rafal was guilty of gross and wanton negligence. Their contention is based on the argument that since plaintiff’s, complaint alleges negligence on the part of McManis, if Rafal were guilty of simple negligence only, then the question of contributory negligence would arise between Rafal and McManis; and, under our constitution, would of necessity require a jury-determination. In that event, it is argued, the court could not direct a verdict against Rafal in favor of appellants; since the trial court did direct such verdict, and since the fact that Rafal was negligent to some degree is obvious, the court must have found him to be grossly and wantonly negligent; and in that event contributory negligence on the part of McManis would not be' a defense to Rafal against appellants on their cross-claim. Conceding appellants’ argument, we fail to see how it aids their cause. The fact that defendant Rafal was guilty of gross and wanton negligence does not re lieve appellants of liability to the plaintiff if McManis was negligent, and the jury so found he was, and if such negligence contributed to the accident. The rule governing this particular problem is laid down in 5 Am.Jur., Automobiles, Sec. 345, to wit: “* * * It is, of course, essential to the joint liability that both operators are negligent. But the parties may be sued jointly, although the degree of care which each owed the person injured was different. They may be sued jointly, notwithstanding there may exist a difference in the degree of liability or the quantum of evidence necessary to establish such liability. So too, the fact that one was wanton and reckless and the other simply manifested want of ordinary caution does not prevent joint liability.” (Emphasis supplied.) In a case strikingly similar to the one at bar, Blackwell v. American Film Co., 48 Cal.App. 681, 192 P. 189, 190, and from which the above rule appears to have been gleaned, the California court pointed out: “* * * When the question arises between two parties, who are jointly charged with negligence, it is only necessary to show that both contributed to the injury, notwithstanding the fact that one may have been wanton and reckless and that the other simply manifested want of ordinary caution. * * *” See also Smith v. Schwartz, 14 Cal.App.2d 160, 57 P.2d 1386. Judgment affirmed. UDALL, C. J, and STANFORD, PHELPS and LA PRADE, JJ., concurring.

UDALL, Chief Justice. There are two sound reasons, neither of them suggested by the appellee, why this court upon its own motion should dismiss this appeal. The first ground is a jurisdictional one. It is fundamental that the right of appeal exists only by force of the statutes, and where no appeal is afforded, the Supreme Court has no jurisdiction to pass upon the merits of a controversy. State v. Phelps, 67 Ariz. 215, 193 P.2d 921; Duncan v. Superior Court of Pinal County, 65 Ariz. 193, 177 P.2d 374. In the instant case the notice of appeal is from an order of the superior court granting a motion to dismiss plaintiff’s complaint for failure to state a claim upon which relief may be granted. No judgment was entered. We have painstakingly examined our statutes relative to appeals and find that “an order granting a motion to dismiss” is not enumerated under section 21-1702, A.C. A. 1939, as one of the “judgments and orders reviewable”. In the unreported case of Sheridan v. Kleeman, (No. 5538) this court by a minute order dated September 25, 1951, held that an order granting a motion to dismiss was not an appealable order. We now formally adhere to this ruling and upon our own motion held that in the instant case the appeal was prematurely taken for the following reasons: With the adoption of the Federal Kuies, 28 U.S.C.A., demurrers were expressly abolished, section 21-403, A.C.A. 1939, Rule 7(c), and motions to dismiss for failure to state a claim, section 21-429, A.C.A. 1939, Rule 12(b), as amended, effective April 1, 1950, now serve a similar purpose. In an unbroken line of decisions from Aiton v. Board of Medical Examiners, 1910, 13 Ariz. 74, 108 P. 221, to Miller v. Arizona Bank, 1935, 45 Ariz. 297, 43 P.2d 518, we have held that an order sustaining a demurrer is not an appealable order. During this entire period the appeal statute, in so far as is here material, has remained the same as it is today. Decisions from other jurisdictions are not very helpful on account of dissimilar statutory provisions governing appeals. However it is interesting to note that in the federal appellate courts where review is limited to “final decisions”, 28 U.S.C.A. § 1291, it is normally held that in the absence of a judgment of dismissal, no appeal will lie from an order granting a motion to dismiss. Wright v. Gibson, 9 Cir., 128 F.2d 865; Cashion v. Bunn, 9 Cir., 149 F.2d 969. A judgment dismissing an action is a final decision and hence is appealable; But the granting of a motion to dismiss a complaint is merely an unappealable preliminary or interlocutory order. See Ingalls v. Neidlinger, 70 Ariz. 40, 216 P.2d 387. The other ground for dismissing this appeal is the failure on the part of the appellant to comply with Rule X of this court which governs assignments of error. The sole assignment reads: “The Honorable Court erred in granting the motion of the defendant to dismiss the plaintiff’s complaint.” This assignment is patently defective as it wholly fails to point out in what respect and for what reason the ruling was erroneous. After the repeated and pointed reminders we have given to the bar in this matter, it would seem that by now it should be known by all its members that a compliance with the rules is mandatory. See Tidwell v. Riggs, 1950, 70 Ariz. 417, 222 P.2d 795, where the previous cases on this point are collected. Since the rendition of that opinion we have refused to consider defective assignments in the following cases, viz.: Campbell v. King, 71 Ariz. 1, 222 P.2d 980; Bragg v. Industrial Commission, 71 Ariz. 37, 223 P.2d 180; Armstrong v. Armstrong, 71 Ariz. 275, 226 P.2d 168; Cecil v. Gila County, 71 Ariz. 320, 227 P.2d 217; and Bassett v. Ryan, Ariz., 236 P.2d 458 (not yet reported [in state report]). Upon the grounds heretofore stated this, appeal is ordered dismissed. STANFORD, PHELPS, DE CONCINI and LA PRADE, JJ., concur.

STANFORD, Justice. On motion for rehearing appellants have called our attention to portions of the original opinion which we believe should be clarified. The opinion must be interpreted in the light of the record before the court. We had before us only the evidence presented by the plaintiffs, which for the purpose of testing the correctness of the ruling of the trial court at the close of plaintiffs’ case, must be considered as true. We said in that opinion that there were two issues presented to us on the appeal: (1) Was Bland guilty of actionable negligence? and (2) If so, are the appellees or either of them liable for such negligence? Perhaps it would have been more accurate to state that there was presented to us but one issue, to wit: Did the trial court err in instructing a verdict for defendants at the close of plaintiffs’ case? In determining this issue we necessarily had to consider the question of whether the evidence presented was sufficient to take the case to the jury on the question of negligence and who was responsible therefor. What we intended to say in that opinion was that the evidence submitted by plaintiff relative to the negligence of Bland, which at that stage of the trial must be considered as true, was in the opinion of the court adequate to establish actionable negligence and that the trial court erred in taking the case from the jury. It was not our intention to foreclose the issue of negligence or any other issue properly raised by the pleadings on a retrial of the case. We held that the admission of the contract between General Petroleum Corporation and Simpson carried with it the manual as an integral part thereof and that the contract, when considered in its entirety, created the relation of principal and agent between the contracting parties. It was not only the right but the duty of the court on the record before it to interpret the written contract in order to determine the relation between Bland and Simpson and between Bland and General Petroleum Corporation and their respective liabilities to the plaintiff Barker. We did not undertake to determine, and in fact were without jurisdiction under the pleadings to determine, the rights and liabilities of General Petroleum Corporation and Simpson to each other under their contract. Having held that Simpson was the agent of General Petroleum Corporation under the contract in evidence, and that Bland was a sub-agent engaged at the time in question in delivering petroleum products to plaintiff for General Petroleum Corporation, and there being no pleadings before the court alleging that Simpson was guilty of negligence either in the selection of Bland or in retaining him after learning of his negligence in the performance of his work, we properly reversed the order and judgment of the trial court as to the General Petroleum Corporation and affirmed it as to Simpson. We reaffirm the original opinion except as herein modified and remand the cause for a new trial in accordance with the views herein expressed. UDALL, C. J., and PHELPS, DE CONCINI and LA PB.ADE, JJ., concur.

LA PRADE, Justice. Judgment, in the sum of $8,210.98, was rendered in this case in favor of appellee Dorothy J. Lawson Ridgeway, as administratrix of the estate of Bessie Brainard Lawson, and against Kathryn Wright Lawson as executrix of the estate of John W. Lawson. In addition to the money judgment it was adjudged that each of these estates owned an undivided one-half interest in Lots 1, 2, 3, and 12, in Block S of Mitman addition to the township of Oracle, Pinal county, Arizona, and provided that these lots should be partitioned according to law between the two estates. The appellee Dorothy Lawson Ridgeway, plaintiff below, is the sole surviving heir of her mother, Bessie Brainard Lawson, who was the first wife of the deceased John W. Lawson. The appellant Kathryn Wright Lawson, defendant below, is the surviving widow and second wife of Lawson. Bessie Lawson died, a resident of Pinal county, September 1, 1929. No attempt was made to probate her estate until December 2, 1946, when proceedings were instituted in Pinal county. On January 23, 1932, John Lawson, then a widower, married Kathryn. John Lawson died on October 22, 1946, a resident of Pima county, Arizona, and thereafter, on November 25, 1946, appropriate proceedings were instituted to probate his estate in Pima county. The daughter Dorothy, in her capacity as administratrix of the estate of her deceased mother, instituted the action resulting in the judgment from which this appeal originates, claiming that the separate estate of her father was indebted to the estate of her mother in the sum of $9,300 on account of community funds of Bessie and John that had been used by the husband to improve his separate property during the existence of the marriage. The facts as found by the trial court, and we believe amply supported by the evidence, disclose: 1. That John married Bessie on June 14, 1913; that at this time he was a resident of the small and isolated community of Oracle. 2. That shortly before this marriage he had acquired Blocks 13, 14, 15, 16, and 17, all in Oracle townsite and all of which was unimproved except for a small store building and a frame residence. 3. That during the sixteen years that this marriage continued Mr. Lawson constructed, on some of his separate property, (a) a residence for himself and wife; (b) two 5-room rental houses; (c) three 3-room rental houses, and (d), provided a water system through the use of wells, windmills, etc. 4. That the cost of these improvements was $16,422 and that the value of these improvements at the time of the trial exceeded the cost. 5. That during thirteen years of this marriage, Lawson and one Leslie C. Terry were actively engaged in the operation of a general merchandise store as partners; that each of them took an active part in its operation and management, and Lawson, in addition to waiting on customers making purchases, served as bookkeeper. 6. That the partners each drew out of the partnership approximately $150 per month for living expenses and that over the 13-year period from 1913 to 1926, in addition to their regular monthly withdrawals, divided profits of approximately $100,000— $50,000 to each. 7. That Mr. Lawson deposited all of his profit withdrawals from the partnership in divided profits of approximately $100,000— a joint bank account maintained by himself and wife at Tucson; that the profits drawn by Lawson from the partnership “were moneys attributable to his personal efforts and business acumen and were not due to a natural increase in the capital investment.” 8. That the building program conducted upon the separate property of Lawson was financed through the partnership and charged to the account of Lawson. When the distributable profits due Lawson were insufficient to pay his indebtedness to the partnership, the deficiency was made up by checks in favor of the partnership drawn by Lawson on the joint bank account of himself and wife. 8. That the building program conducted upon the separate property of Lawson was financed through the partnership and charged to the account of Lawson. When the distributable profits due Lawson were insufficient to pay his indebtedness to the partnership, the deficiency was made up by checks in favor of the partnership drawn by Lawson -on the joint bank account of himself and wife. 9. That no effort was made by Lawson to keep separate the transactions pertaining to his separate property and transactions pertaining to the community property of himself and wife Bessie; and that as a result of the failure to keep separate the transactions of these two estates there was such a commingling of the property of himself and his wife that it was impossible to determine what portion of the improvements upon the separate property of Lawson was paid for out of money of his separate estate and what portion was paid for out of community funds. Upon these findings of fact the court concluded that Mr. Lawson’s share of the income derived from the partnership of Terry & Lawson was community income of himself and wife Bessie, and that this income supplied the finances for the improvements which were constructed on the separate real property of the husband; that the estate of the deceased wife was entitled to reimbursement to the extent of one-half of the increased value, to be -secured by a lien, and it was so ordered. With reference to the second part of the judgment, the court found that the community of John and Bessie owned Lots 1, 2, 3, and 12, in Block 5 of Mitman addition to the town of Oracle, having been acquired during coverture, and ordered a partition thereof. More detailed explanation as to this part of the judgment will be made later on. . By way of illumination of the above facts as found by the court, it should be disclosed that sometime prior to 1911 Mr. Lawson individually operated the country store referred to. In 1911 he took in as a partner one Leslie C. Terry. This partnership had for its objective the continuation and operation of the general merchandise store which Lawson had previously operated, and continued until the fall of 1926. Lawson’s capital contribution to the partnership was $2,400, The partnership paid rent to Lawson for the use of the store building. Not being able to discover the population of Oracle in 1913 at the time of the marriage, we do take judicial notice of the fact that the'official census for 1930 fixed the population at 386. It is also a matter of common knowledge that in 1913 Oracle was no more than a “wide spot” on a dirt road leading through mountainous country, where in the back hills there were some miners and cattlemen. We believe that this background, coupled with all of the other evidence in the case, amply justified the trial court in finding that whatever profits Mr. Lawson made were attributable to his personal efforts rather than to any earned increment referable to his capital investment. For all of his industry, using the small capital that he had to start with, his monthly earnings, including drawing account and distributive share from the partnership, during the thirteen years that the marriage continued, amounted to approximately $475 per month. The assignments of error of which we will take notice and which really raise the essential errors complained of, are that the court erred: (1) in finding that the profits from the partnership of Terry & Lawson were community property; (2) in finding that there was such a commingling of the separate property of John Lawson with the community property of himself and Bessie that the whole thereof became community property; (3) in failing to appoint a master to investigate financial dealings of John Lawson and the community; and (4) in ordering a partition of the community real estate for the reason that the court, sitting as a court of law, had no jurisdiction to order partition of real estate already under t-he jurisdiction of the same court sitting in probate. Defendant below (administratrix of estate,of John) by way of counterclaim, sought judgment against the estate of Bessie, represented by plaintiff, for the funeral expenses arising out of the burial of Bessie Lawson, claiming that these expenses had been paid by the survivor of the community, John Lawson, and that under the statute it is contemplated that such funeral expenses shall be paid out of the estate funds of the deceased. Being denied judgment on this count, error is assigned thereon. There was no showing whatsoever as to whose funds were used to pay the funeral expenses of Bessie Lawson. The burden was upon counterclaimant to prove that these expenditures were paid for by John Lawson out of his separate estate. There is no presumption, as contended by appellant, that these expenses were paid out of the separate estate of John Lawson. For want of proof the counterclaim was correctly determined and this assignment is without merit. In support of the foregoing assignment No. 1, appellant offers this proposition: “All property owned by spouses at time of marriage, and the rents, issues and profits thereof, are their separate property, and where the spouse is the owner of a partnership interest and devotes time and energy to the partnership business, for which time and energy the spouse receives a monthly stipend or salary, that salary, in absence of evidence of the value of the services, is deemed to be the true worth of the services and the profits from the business are the issues and profits from separate property and remain separate property of the spouse.” The assignment and this proposition of law are without merit for the reason that it is the rule in this jurisdiction that all profits from a business operating on the separate capital of a spouse are cast into the community or the separate estates depending upon whether the profits "are the result of the individual toil and application of the spouse, or the inherent qualities of the business itself.” Rundle v. Winters, 38 Ariz. 239, 298 P. 929, 931. To the same effect see Estate of Torrey, 54 Ariz. 369, 95 P.2d 990; Anderson v. Anderson, 65 Ariz. 184, 177 P.2d 227; and Porter v. Porter, 67 Ariz. 273, 195 P.2d 132. It is appellant’s contention that, since Lawson had a partner in the partnership business, it cannot be said that Lawson’s profit arising from his efforts devoted to the promotion of the partnership affairs resulted from his individual toil and application. Under the factual situation here we believe that this asserted distinction is most tenuous. The monthly drawing account of Mr. Lawson from the partnership was in no manner indicative of the worth of his efforts in promoting the partnership affairs and was no true measure of the value of the services performed by him. Lawson’s situation was entirely different from that of Porter in the case of Porter v. Porter, supra, where Porter as a young man inherited his father’s interest in an extremely large, long-established and wealthy mercantile and manufacturing establishment, where he was employed with a hundred or more other employees and paid a salary commensurate with his services as an employee of the partnership. In that case it was readily discernible that the profits that were distributed to him, in addition to his salary, were the result of large capital under the guidance and management of older partners and skilled management personnel for which he was only nominally responsible. The suggestion that the drawing or salary account of a partner is in every instance the extent of the contribution of the community of which he is a member to the partnership business, in the absence of proof to the contrary, is to suggest that such drawings or salaries from a partnership are usually set by the partners with the thought that the amount drawn fairly represents the value of the personal services rendered. We believe it to be a matter of common knowledge that such drawing accounts are normally determined by other factors such as the amount that can be drawn out of the business regularly without financially embarrassing the business and by the criterion of how much is needed for normal and regular living expenses of the partners. It would certainly be a rare case when such drawing accounts were determined upon the basis of the value of the personal services rendered with the thought that anything over and above that would be a return from capital investment. Lawson’s average yearly division of profits of $3,900 would have constituted approximately 160% per annum on his capital investment of $2,400, which is preposterous to conceive of as a financial attribute of his capital investment in the wayside country store. See In re Buchanan's Estate, 89 Wash. 172, 154 P. 129. These observations, we think, lead to the conclusion that Lawson’s share of the gains and profits from the partnership were produced by his personal efforts, though aided in a measure by his original investment, and became community property. It is the rule in this jurisdiction that “When separate and community funds are mingled, the commingled funds are presumed to be community, and the burden is upon the one claiming them or any portion thereof to be separate to prove such fact and the amount, by clear and satisfactory evidence.” Bundle v. Winters, supra. The defendant in this instance was not able to sustain this burden. The record before us, which is most voluminous, discloses as found by the trial court that there was a thorough confusing and commingling of the separate and community property. It is very apparent that Mr. Lawson and his wife treated the income from his partnership as the proceeds of community endeavor, and in a situation of this kind the character of the income changes in accordance with the intention of the parties. Rundle v. Winters, supra, citing cases. It being the law that property takes its character as community or separate estate at the time of its acquisition, Pendleton v. Brown, 25 Ariz. 604, 221 P. 213; Horton v. Horton, 35 Ariz. 378, 278 P. 370; and Lovin v. Woodward, 45 Ariz. 105, 40 P.2d 102, these vacant lots that belonged to Mr. Lawson and which were improved with community funds retained their character as his separate property, Brown v. Brown, 58 Ariz. 333, 119 P.2d 938, and thus plaintiff had no course to pursue other than the one she did in pressing the claim of the estate of her deceased mother against the estate of her deceasd father for reimbursement. We believe that the applicable rule of law is set forth in 11 Am.Jur., Community Property, section 40, wherein it is said: “Reimbursement of Expenditures.—As a general rule, the separate estate of a member of the community must reimburse the community for any proper improvements made in good faith upon'the separate estate with community funds. * * *. Where, however, a husband uses community funds to improve his own separate property, reimbursement is granted to the wife upon the theory that to permit him to appropriate the community property under his management to his own separate use' would operate as a fraud upon her. * * ” We believe that the following cases furnish sufficient authority and good reason for the application of this rule. See Legg v. Legg, 34 Wash. 132, 75 P. 130; Horton v. Horton, supra; Rothman v. Rumbeck, 54 Ariz. 443, 96 P.2d 755; Conley v. Moe, 7 Wash.2d 355, 110 P.2d 172, 133 A.L.R. 1089; Jones v. Davis, 15 Wash.2d 567, 131 P.2d 433; Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786, 791. The appellant directs our attention to the following statement in the case of Blaine v. Blaine, supra, which reads: " * * * Furthermore, there is a presumption that where separate and community funds are commingled in one account, payments out of that account for charges against separate property or for separate uses are deemed to be paid out of the separate funds. In re Woodburn's Estate, 190 Wash. 141, 66 P.2d 1138; Guye v. Guye, 63 Wash. 340, 115 P. 731, 37 L.R.A.,N.S., 186; White v. White, 26 Cal.App.2d 524, 79 P.2d 759.” We do not believe that the statement of law just quoted was intended tó be taken in as broad a sense as appellant is attempting to have it construed. The ultimate holding in the Blaine case was opposite to such an interpretation, in that payments made out of commingled funds to pay premiums on insurance policy standing in the name of the husband was held to entitle the community to reimbursement and a lien on the policy. In any event, there is no occasion here to resort to any presumption as to the character of the funds used to improve the husband’s separate property for we have made it clear that this record establi'shes that community funds only were used to improve his separate property. The measure of the lien or right to reimbursement in such a case as this is the increase in value to the property and not the amount spent. See 41 C.J.S., Husband and Wife, § 510—(5), Claims Arising from Improvements on Separate Property. This is the rule that is enunciated in the following cases, Provost v. Provost, 102 Cal.App. 775, 283 P. 842; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; and In re Carmack's Estate, 133 Wash. 374, 233 P. 942. The judgment should have been for one-half of the sum of the present value of the improvements, which as established by uncontradicted expert testimony, was $16,-519, the one-half being $8,259.50, which slightly exceeds the amount fixed by the court. The error, if any, was in appellant’s favor. It is in connection with this portion of the judgment that the appellant complains of a failure of the court, at her request, to appoint a master to investigate the financial dealings of John Lawson with the community. Since we have determined that all of the income was community property there was no occasion to have an audit made to determine its particular source or disbursement. The community was in existence in excess of sixteen years. The control records, being the ledger sheets from the partnership account, were available for approximately ten years only. What ledger sheets were available were admitted in evidence and conclusively established the costs of the improvements to the property of Mr. Lawson. If the plaintiff had been asserting a claim for a further and additional accounting other than the improvements on the separate realty, it would have been her burden to produce the records and prove any additional claims she had. This she did not do, being content with claiming the one-half of the increased value in- the improvements. In connection with this assignment of error complaining of the court’s failure to appoint a master and secure an audit of the dealings of John Lawson with the community, appellant has also complained of the ruling of the court in failing to admit into evidence the personal books, memoranda, records, writings, deposit slips, efc. of John Lawson. We have examined these and for the most part they indicate that Mr. Lawson was a methodical man who meticulously recorded his financial transactions from day to day, but having determined that all of the income of Mr. and Mrs. Lawson, including the rentals, was community property, there was no occasion to admit these miscellaneous records. The income all being community, there was nothing to segregate. The particular source and disposition of each dollar of income was not in is^sue once the court had, determined that all of the income was community. The last proposition for consideration is the contention that the superior court of Pima county, sitting in probate,, having taken jurisdiction of the estate of John Lawson, deceased, retains jurisdiction with full power to make partition of the land without interference from the same court sitting as a law court though having concurrent jurisdiction. The action for partition was instituted by Dorothy Lawsom Ridgeway in her individual capacity and as administratrix of the estate of her deceased mother. In plaintiff’s amended complaint she alleged that she was the owner in fee simple of an undivided one-half interest in and to the lots that had been theretofore owned by her father and mother as community property; that her father at the time of his death was the owner of an undivided one-half interest therein; that the defendant Kathryn, under the will of John Lawson, was the devisee of the father’s interest, and prayed that the court decree that she was the owner in her sole and separate right of an undivided one-half interest in said property; that the court determine the interest of Kathryn under the will, and all questions of law or equity affecting the title, and grant plaintiff such relief in respect thereto to which she was entitled. By its findings the court found that these lots had been acquired during coverture and were community property; that Bessie Lawson died September 1, 1929, dissolving the community, and that plaintiff was the only child of the deceased Bessie and John, and that there were no outstanding claims against the community estate of John and Bessie. It then concluded that the interest of Bessie in said lots was not subject to probate as being part of her estate, and that since all of the parties were before it that the proceedings presented a proper situation for a partition. Then, for some reason not appearing of record, the judgment fails to follow the findings of fact and conclusions of law in that (1) it adjudged that an undivided one-half interest in the lots vested in plaintiff “as administratrix of the estate of Bessie Brainard Lawson, deceased”, subject to probate and final distribution of said estate; (2) that an undivided one-half interest vested in defendant as executrix of John’s estate subject to probate and final distribution in that estate; and (3), that the property be partitioned according to law between the two estates. The law on the subject of devolution of community property, in existence at the time of the death of Bessie Lawson, is contained in section 985, R.C.A.1928, and now appearing as section 39-109, A.C.A. 1939. The section reads: “Descent of community property.—Upon the death of a husband or wife one-half of the community property shall go to the survivor, and the other half is subject to the testamentary disposition of the decedent, and in the absence of such disposition goes to his or her descendants, equally, if such descendants are of the same degree of kindred to the decedent, otherwise according to the right of representation; and in the absence of both such disposition and such descendants, goes to the survivor. The community estate passes charged with the debts against it.” The antecedent of this section appeared as paragraph 2124 of the Revised Statutes of 1901, though not in the identical language. Construing this latter section in the case of Estate of Wilson, 19 Ariz. 205, 168 P. 503, it was held, in the absence of a showing of community debts, that upon the dissolution of the community by the death of the wife the decedent’s interest in the real estate did not become a part of her estate but immediately vested in the surviving husband and daughter, one-half to each as tenants in common, Roberson v. Teel, 35 Ariz. 166, 171, 275 P. 2, and that there was no right to administer the community. See Home Ins. Co. v. Latimer, 33 Ariz. 288, 264 P. 103; Roberson v. Teel, supra; Nowland v. Vinyard, 43 Ariz. 27, 31, 29 P.2d 139; Johnson v. Jones, 55 Ariz. 49, 97 P.2d 933; In re Monaghan's Estate, 65 Ariz. 9, 13, 173 P.2d 107; and Hallas v. Evans, 69 Ariz. 14, 18, 207 P.2d 985. Applying these principles of law to the present situation, we find that after the death of Bessie Lawson the plaintiff-daughter and her father owned the lots as tenants in common; likewise, upon the death of her father, plaintiff and defendant (as devisee of John Lawson) are tenants in common. There being no debts there was no purpose to administer the entire community estate of Bessie and John. It is only when there are debts that the -executor or administrator of the estate of a decedent has the right to posses sion, not only of the decedent’s estate but of the community interest of the survivor. Roberson v. Teel, supra. The probate court, administering the estate of John Lawson, is and was without jurisdiction to administer the plaintiff’s interest as a tenant in common in the lots. The court sitting in probate, not having jurisdiction of the entire ownership interests in the lots, is and was without jurisdiction to order any partition thereof. Its sole jurisdiction, as far as the interest of John Lawson is concerned, is to subject his interest to the payment of debts and determine upon whom it shall devolve. The right of partition is an incident of common ownership, and specifically authorized by statute. Sec. 27-1301, A.C.A. 1939. Bledsoe v. Hood, 44 Ariz. 292, 36 P.2d 564, 95 A.L.R. 1327. Plaintiff’s remedy was as an individual against the defendant in her representátive capacity. Roberson v. Teel, supra. By virtue of the authority vested in this court to render such judgment on appeal as the court below should have rendered, Sec. 21-1832, A.C.A.1939, it is hereby ordered that that portion of the judgment decreeing an undivided one-half interest in the lots “vested in plaintiff Dorothy J. Lawson Ridgeway, as Administratrix of the Estate of Bessie Brainard Lawson, deceased, subject to the probate and final distribution of said estate”, is modified to read as follows: “An undivided one-half interest in said lots is vested in plaintiff Dorothy J. Lawson Ridgeway in her individual capacity.” In all other respects the judgment is affirmed. UDALL, C. J., and STANFORD, PHELPS and DE CONCINI, JJ., concur.

STANFORD, Justice. Action was brought in May, 1948, by which it was claimed by the appellants (plaintiffs therein) that appellant Tom Younis and appellee Joe Griego entered into a partnership at Flagstaff, Arizona, in November, 1934, in the conduct of a small grocery business. Younis left Flagstaff in August, 1935, and went to Taos, New Mexico, where he remained until the spring of 1942. He then returned to Flagstaff and went to work with the Navajo Ordinance Depot, at Bellemont. Younis and Griego were reared together, the latter having gone to live, at the Younis home when he was about nine years of age. He was taken to Gallup, New Mexico, by the Younis family and was there placed in school, attending school under the name of Younis. Later, Griego and Younis married sisters who joined in this suit. Joe Griego and Emelia Griego, his wife, were divorced on December 7, 1946, but when this action was brought by Tom Younis and his wife to dissolve the alleged partnership, Emelia Griego joined her former husband in their answer to the action. Prior to entering into the grocery business, appellee Joe Griego worked for Babbitt Brothers at Flagstaff as a delivery man. In September, 1934, Younis, being on his way to New Mexico, stopped over with Griego who had been hurt in an accident, and Younis stayed over to help him. They discussed a business for Griego to go into and finally the two of them went to Phoenix and interviewed officials with a view of entering into the wholesale liquor-business. Neither of them had much means and they were advised not to attempt the wholesale liquor business but to first get a retail liquor license. They returned to Flagstaff and Griego found a small grocery business for sale which was purchased on very easy terms. Later on, a retail license for the sale of liquor was applied for and received in the name of Griego. The lease of the premises containing a stock of goods, however, was drawn up and signed by both Griego and Younis. In the action brought by appellants, they asked for dissolution of the partnership, for an accounting, and for the court to impress a trust on the properties derived from the partnership and declare them to be one-half owners of the same. At the close of appellants’ case, a motion for judgment was made by the appellees on the following grounds: “1. That the evidence is wholly insufficient to establish the existence of a partnership between the parties; “2. That assuming that a prima facie case of partnership is established by the evidence, it is at best a partnership at will, terminable at any time by either party by acts, words, or conduct inconsistent with the theory of a partnership relation; “3. That where, as in this case, all profits and assets which are sought to be made subject to the claim of a party derive from the operation of a liquor license, a person not complying with the law relating to liquor licenses cannot be heard to make a claim to such profits or assets; and “4. That it appears from the evidence and the pleadings that the plaintiffs have been guilty of laches, or unreasonable delay, in prosecuting their action; and that their action is barred by the operation of the statute of limitations, Section 29-204, sub-paragraph 2, Arizona Code Annotated, 1939.” Thereafter the court, from the bench rendered the following judgment: “As far as the liquor business is concerned, the Legislature has prescribed that no person not a resident for the statutory time in the State of Arizona shall be a member of any partnership to sell liquor, or hold a license to engage in the liquor business. As I said before, suppose we do assume that there was’ a partnership in the grocery business, the moment that liquor business was opened up, by operation of law Mr. Younis was prohibited from going into that business. How could a partnership continue then, when they had set up a grocery business? “That is one point I am concerned with. Of course, there are other points involved here. I think you have the Reports here of any Arizona cases you want; if you want a little time to do research on that, I would be glad to give you a little time.” ****** “Well, I am of the same opinion I was before the recess, as stated from the bench. “The motion of the defendants is granted. “The complaint is dismissed.” From the court’s judgment and order dismissing the complaint and from the court’s order denying a motion for new trial, appellants take their appeal. They submit nine assignments of error but we feel that we can dispose of the case by assignments 4 and 5, reading as follows: “4. That the court erred in dismissing plaintiffs’ complaint for the reason that the evidence disclosed that there was no laches or unreasonable delay in bringing the action of plaintiffs for an accounting. “5. That the court erred in dismissing plaintiffs’ complaint for the reason that under the law of partnership the statute of limitations would not begin to run until a demand for an accounting had been made or, there is a denial of the partnership relations between the parties thereto.” The testimony shows that appellant Younis did enter into a partnership with appellee Griego in December, 1934, in the conduct of a small grocery business which was purchased for a very little down and the balance on monthly payments. Under the partnership, the business was conducted by both of them. Later, within a few months, a package license was procured to sell liquor and shortly thereafter a retail liquor license was procured. In the summer of 1935, some seven or eight months after the partnership was entered into, Younis left Flagstaff and went to Taos, New Mexico for a heart condition, claiming that the elevation at Flagstaff was too high. However the testimony shows that Taos was a few feet higher. He stayed in Taos until 1942 and then returned to Flagstaff and worked at Bellemont, which is a few miles away from Flagstaff. He was there approximately one year. Younis engaged in many different occupations after he left Griego in 1935. In 1941, as the testimony shows, Griego purchased a ranch near Phoenix. This ranch was occupied by Younis for a while, Younis claiming that he was doing it at the request of Griego and Griego claiming that it was a favor to Younis that he was there. In 1944 Younis conducted a service station in Phoenix in partnership with a man named Wimberly. The testimony shows that during the absence of Younis from Flagstaff, Griego had constructed and conducted business at two other places, one called El Rancho Grande and the other called Griego’s Place. Appellee Griego moved to El Rancho Grande in 1939 and the latter place was constructed in 1941. The testimony further shows that Griego borrowed $7000 from the Bank of Arizona at Flagstaff for the erection of El Rancho Grande,'and later borrowed the sums of $5000 and $3000 from Riordan, Inc., of Flagstaff. It is our understanding from the testimony that to the $15,000 borrowed by Griego he added $10,000 of his own money in the construction of the new places. On none of the obligations made by Griego was Younis a signer nor in any way liable. The testimony also disclosed that after the time appellant Younis left Flag staff in 1935, during which time he claimed 3 partnership with appellee Griego, he had worked at sixteen different positions. There can be no doubt, as we have stated, but that there was a partnership when the grocery business was started in 1934, but there has long since been a complete abandonment on the part of the appellant Tom Younis of any interest that might have accrued to him. The statute of limitations applicable, and we refer to section 29-204, A.C.A.1939, reads as follows: “There shall be commenced and prosecuted within four (4) years after the cause of action shall have accrued, and not afterward, the following actions: ****** “2. By one partner against his co-partner for a settlement of the partnership account, * * From 68 C.J.S., Partnership, § 414, we quote: “The right to maintain a suit for a partnership accounting may be lost through laches, especially where, by reason of plaintiff’s long delay, evidence has been lost, or defendant has been placed in a disadvantageous position, or it has become impossible for the court to do full justice to both parties. Whether or not plaintiff is chargeable with laches is a matter to be determined according to the circumstances, of the particular case, .* * * » Applicable to assignment No. 4, we quote from 40 Am.Jur., Partnership, .section 334, as follows: “The mere lapse of time, apart from the statute of limitations, may give rise to a presumption that the accounts have been adjusted and settled, and therefore, unreasonable delay or laches is sufficient to destroy the right to an accounting. * * * ” Also, applying to assignment No. 5, we quote from 40 Am. Jur., Partnership, section 333, as follows: “The right of a partner to have an accounting of the partnership affairs may be lost by the operation of the statute of limitations when made applicable to actions therefor, or by delay amounting to laches. No hard and fast rule can be laid down as to the time from which the statute of limitations runs on the right of a partner to have an accounting. The time when the right of action to sue for the settlement of partnership affairs accrues, so as to set the statute of limitations in motion, depends upon the circumstances of each particular case. * * * ” Since the time appellant Tom Younis left Flagstaff in 1935, there has been little or no interest shown by him in the activities of appellee Joe Griego, and he has exercised no control over any portion of the businesses he now asserts were part of the partnership. To allow the appellants to come to court now and claim an interest in a business which has prospered for a number of years, would in our opinion seriously subvert all principles of equity and justice. For the foregoing reasons, the judgment of the trial court is affirmed. UDALL, C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concur.

STANFORD, Justice. Action was brought in the superior court by plaintiffs, Harold A. Knox and Gladys Fay Knox, his wife, appellees herein, who were assignees of a lease; alleging a breach of the lease on the part of the defendant-lessors, Lemons-Dunbar, et al. Property described in the above mentioned lease included the lunch counter, a dining room, and kitchen facilities of the Palace Cafe, located in the Palace Hotel Building in the city of Prescott, Arizona. The lease permitted the lessees to assign the lease or sublet the premises, “provided said assignee or sub-lettee (was) satisfactory to the lessors”. Plaintiffs, as assignees, entered into possession of the premises and operated the cafe, including both the dining room and the lunch counter, until September 1, 1946. At that time, they entered into a written agreement with W. D. Woods and Lucinda Woods, his wife, hereinafter referred to as Woods. The essential provisions of this agreement were as follows: “The parties of the first part are the holders, by assignment of a lease to the Palace Restaurant dated September 15, 1945, wherein P. C. Lemons and Mildred M. Lemons, his wife, and H. S. Dunbar and Harriet Dunbar, his wife, are the Lessors and Ed M. Romley, Jr., and Doris G. Romley, his wife, are Lessees, and assigned on April 25, 1946, to H. A. Knox and Gladys Fay Knox. “That the parties of the first part by this agreement, constitute and appoint as of September 1st, 1946, W. D. Woods and Lucinda Woods, his wife as their-managers and representatives, to manage and operate the said restaurant just the same as they themselves would, were they in charge. “Said parties of the second part are to operate the Restaurant during the term of the present lease and in compliance with all the terms of the assigned lease so as to protect at all times the interest of the parties of the first part hereto. “That the parties of the second part are to have complete charge of all buying and are to pay and keep paid all bills, including all taxes, as they become due and to pay all help and the said parties of the first part are not to be held responsible for any bills or wages or taxes contracted by the said second parties. “From the moneys taken in, the said second parties are to pay to the parties of the first part on or before the first day of each month One Hundred Fifty Dollars ($150.00) so long as he manages the Restaurant; the balance of the money taken in to be retained by said second parties to take care, of all expenses, except hereinafter stated, and as compensation for himself. Parties of the first part hereby agree to keep the said lease paid as it becomes due. The returns from the slot machines are to be divided 50-50. “The inventory as of September 1, 1946, is to be taken over by parties of the second part and are to be paid for as to be agreed upon by the parties hereto. “In case the Restaurant is sold, then and in that event the party of the second part is to paid 5% of the sale price.” Terms of the agreement were in effect and carried out until February 1, 1947, at which time Woods apparently decided to discontinue operation of the cafe. Woods advised the defendants that he couldn’t make a go of it and surrendered possession and delivered up the keys. Plaintiffs, by their complaint, alleged injury as a result of defendants’ breach of the lease in that they, the plaintiffs, were prevented from enjoying the occupancy of the premises, in question, alleging also damages for defendants’ conversion of certain equipment which was locked in the cafe, and for exemplary damages. Plaintiffs’ contention at the trial was that the defendants refused them access to the premises after Woods left and in fact replaced the locks on all the doors and even refused to admit prospective sub-lettees when they were brought to view the cafe and fixtures, thereby breaching the lease. Defendants filed a counterclaim alleging that the Knox-Woods agreement, though called a managerial contract, in fact constituted an assignment of the lease, which, without the consent of the lessors, amounted to a breach of the lease, and at the close of the evidence, moved for a directed verdict, which was denied as to the alleged breach of contract but granted as to plaintiffs’ allegation of conversion. The jury returned a verdict in favor of the plaintiffs in the sum of $1,970.00, on the original complaint, and also in their favor as cross-defendants on the defendants’ counterclaim, and judgment was entered in accordance therewith. This is an appeal from that judgment and from the order of the court denying defendants’ motion for a new trial. In bringing this appeal, defendants do not argue against the plaintiffs’ contention that they, defendants, have treated the lease as being at an end and have exercised complete control over the premises. Defendants however advance two theories on which to base their argument. The first is that there was a complete assignment of the lease, to Woods, who then surrendered possession of the premises to defendants, thereby forfeiting the lease and giving them (defendants) right of immediate possession. The second is that the assignment was done without the consent of defendants and therefore constituted a breach of the lease by plaintiffs and gave defendants the right to declare the lease at an end and take possession of the premises. There is presented here only one assignment of error which is based upon the lower court’s denial of the motion for a directed verdict: “The trial court erred in its failure, at the close of the evidence on the trial of the cause, to direct the jury to return a verdict in favor of appellants, for the reason that under the undisputed evidence as a matter of law, appellees wholly failed to show a wrongful termination of the lease by appellants, which showing was required in order to entitle appellees to recover damages from appellants.” Defendants contend that the legal effect of the above-mentioned agreement was an assignment of the leasehold by the plaintiffs to Woods and wife for the balance of the term of the original lease. Plaintiffs contend, on the other hand, that it is a contract of employment. In this connection, •defendants were not aware of the existence of this agreement until some time after the alleged wrongful termination •of the lease on or about February 2, 1947. A reading of this agreement discloses there are words used, which, if standing alone, would make the legal effect that of a contract of employment. But from the entire content of the agreement, it is readily apparent that the legal effect is, as defendants contend, an assignment of the leasehold, subject only to the right of the assignor to terminate the lease by a sale of It to a third party. It is observed that Woods was to operate the restaurant or cafe during the term of the original lease and in compliance with its terms. He was to do all buying, and to pay all bills, including the hiring and paying of help. His only obligations to plaintiffs were the payment of the monthly sum of $150.00 and the accounting to the plaintiffs of one-half of the returns from slot machines. Woods took over the inventory on hand as of the date of taking possession of the lease, and was to pay the Knoxes therefor. The use of the words in the agreement of constituting and appointing Woods manager and representative of plaintiffs would indicate, if standing alone, that it was the intent of the parties that the relationship of employer and employee was to ensue. However, a reading of the entire contract, which should be done in order to obtain the real intent of the parties, makes the mentioned words inapt expressions or dry words. The rule that the intent of the parties as ascertained from the contract must control does not apply to the use of such expressions or dry words. From 12 Am.Jur., Contracts, Sec. 229, we quote: “Although the intent of the parties, when manifest, or when ascertained from the contract, must control without regard to inapt expressions or the dry words of the contract, this rule does not apply where such intent is directly contrary to the plain sense of the words of the agreement. * * *. Where it is plain that a strict and literal construction of a contract does not convey the real meaning of the parties, such construction must not be entertained.” And, from the same volume, Sec. 236: “The letter of the contract is to be controlled by its spirit and purpose. The terms employed are servants, and not mas ters, of an intent; they are to be interpreted so as to subserve and not subvert such intent.” “It is true that the intention of the parties to a contract cannot prevail if directly contrary to the plain sense of the words employed; but when the intention is sufficiently apparent, effect should be given to that intent though some violence is thereby done to the words.” 6 R.C.L. page 842. As to the construction put upon the contract by the parties, it will be seen from the evidence that Woods was not manager for Knox, but a tenant. Mr. Knox lived in Phoenix during the period Woods was in possession, being from September, 1946, until the time Woods left in the latter part of January, 1947. During that period, Mr. Knox’ only contact with Woods and the Palace Cafe or Restaurant was his visits to Prescott on October 1, November 1, December 1, 1946, and on January 1, 1947, each time to collect his monthly rental of $150.00 from Woods and his share of the slot machine take, and pay for one waitress which the landlords had agreed to reimburse for services rendered to the landlords in the operation of their bar. As the leasehold involved in litigation was terminated by the voluntary act of the lessees, assigning or subletting without consent, no cause of action could -vest in plaintiffs for its termination, and the trial court erred in failing to instruct the jury to bring a verdict in favor of defendants. The judgment is reversed and the cause remanded with instructions to dismiss the complaint and enter judgment for defendants. UDALL, C. J., and PHELPS, DE CONCINI and LaPRADE, JJ., concurring.

DE CONCINI, Justice. Appellants D. R. Wood, et ux, were on' October 14, 1947, the owners of a certain-lot in the Town of Avondale abutting on: U. S. Highway 80. On said date appelleesTown of Avondale through its common council adopted Ordinance No. 16 with the-emergency clause attached, by which it: prescribed a limit of ten feet from the: front property line abutting said highway on which' property owners could not build, but would have to construct their improvements thereon in accordance with that ten-foot setback line. Subsequent thereto appellants improved', their property with a business establishment without regard to the ten-foot setback as prescribed by said ordinance, all with notice that the ordinance was in existence at the time. Appellees brought action seeking a mandatory injunction requiring appellants to* remove their structure from the prohibited, zone. A hearing was had on an application for a temporary injunction on an< agreed statement of facts, which was denied. Counsel then stipulated to additional facts, both parties moved for summary judgment and the matter submitted on briefs. The trial court found in favor of appellees and ordered that the injunction against appellants be made permanent. Appellants are here on several assignments of error. There is only one question presented by this appeal and that is whether Ordinance 16 is constitutional. The ordinance was adopted under the powers purportedly granted by section 16-207, sub. 3, A.C.A.1939, which provided as follows: “3. To exercise exclusive control over the streets, alleys, avenues and sidewalks of the town and to give and change the names thereof; to prevent and punish for the encumbering thereof, and to abate and remove all encumbrances and obstructions thereon; to widen, extend, straighten, regulate, grade, clean or otherwise improve the same; to open, lay out and improve new streets, avenues and alleys; to vacate any street, avenue, alley or sidewalk in such town and to abolish the same; and to protect the same from encroachment and injury; * * Appellants concede that the ordinance which requires a setback, was passed without regard to article 14, A.C.A.1939, entitled Zoning Districts. Section 16-1401 provides in part: “Grant of Power.—For the purpose of promoting the health, safety, morals, or the general welfare of the community, the legislative body of incorporated cities and towns may regulate and restrict the height, * * * and may establish setback lines; * * *.” Section 16-1402, Method of procedure by Ordinance, provides for notice of public hearing published in a newspaper, action by common council on protest of 20% of the property owners involved; creation of a zoning commission to study and recommend to council and council shall not take action until it has received final report from commission. Section 16-1403 provides for a board of adjustment. Appellees cite Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228; Village of Euclid, Ohio, v. Amber Realty, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Thille v. Board of Public Works, 82 Cal.App. 187, 255 P. 294; Weiss v. Guión, D.C., 17 F.2d 202; City of Tucson v. Arizona Mortuary, 34 Ariz. 495, 272 P. 923. These cases uphold “zoning ordinances” that are deemed reasonable and help promote the general welfare of the public. Had appellees adopted a zoning ordinance in accordance with sections 16-1401-02-03 those cases would support their contention. Section 16-207, supra, upon which they rely grants appellees the right to control streets, alleys and' sidewalks but doesn’t grant any control over the private property of its citizens except to prevent, abate and remove encumbrances upon its streets and alleys and to provide a penalty for a violation thereof. Property owners are entitled to notice before the passage of a zoning ordinance which would limit the use of their property. Berrata v. Sales, 82 Cal.App. 324, 255 P. 538; Makrauer v. Board of Adjustment of Tulsa, 200 Okl. 285, 193 P.2d 291. The revocation of a permit to drill an oil well within the city limits, under a zoning ordinance, without notice, is violative of the 14th Amendment of the U.S. Constitution. Trans-Oceanic Oil Corp. v. City of Santa Barbara, 85 Cal.App.2d 776, 194 P.2d 148. It is clear that the action of appellees in enacting Ordinance 16 without regard to article 14, A.C.A.1939 (zoning), was illegal and the same is without force and effect and is unconstitutional in that it deprives appellants of their property without due process of law. Judgment reversed with directions .to dissolve the permanent injunction and dismiss the complaint. UDALL, C. J., and STANFORD and LA PRADE; JJ., concur. PHELPS, J., did not participate in the determination of this case.

LA PRADE, Justice. This appeal is taken from a judgment denying appellant’s motion to quash’ the alternative writ of mandamus theretofore issued by the Superior Court of Maricopa County and adjudging that the alternative writ be made permanent, and from the peremptory writ of mandamus issued by the court pursuant to judgment. The effect of the judgment, in substance, was that a foreign benefit insurance company could qualify to do business in Arizona. Appellee is a foreign benefit insurance corporation incorporated under the laws of Idaho, not for profit, to provide personal health and accident insurance. Prior to doing any insurance business in this state, appellee made application to the commission (appellant) for a certificate of authority to transact a business of benefit insurance in the State of Arizona as required 'by section 61-1004, A.C.A.1939, as amended by chapter 95, Laws 1943. The commission refused to issue such a certificate of authority upon the stated ground that the company (appellee) had not complied with the law of Arizona in that it had not qualified as a domestic benefit insurance corporation under section 61-1003(a), as amended id. It is appellee’s contention that being a foreign benefit insurance company, it is not required to comply with the provisions of section 61-1003(a), supra, and section 61-1012(id.), concerning domestic incorporation of benefit insurance companies. The issue is resolved into the following question: Is the formation of a domestic benefit insurance corporation under the provisions of section 61-1003 (a) and whose directors must be residents of the state as required by section 61-1012, a condition precedent to the admission of a foreign benefit insurance corporation to transact a benefit insurance business in Arizona? The judgment recites that it was stipulated that if the foregoing statutes do not apply to foreign benefit insurance corporations seeking to do business in: this state, plaintiff has- complied with thé laws imposing conditions precedent to entitle it to transact such business in Arizona. A reading of the statutes in question discloses that section 61-1003 provides the procedure for the formation of a benefit insurance corporation by residents of this state, which would be a domestic corporation. Paragraph (c) of said section reads as follows: “Benefit corporations, organized in this state or admitted from another state after the effective date of this act, shall be granted a certificate of authority to transact a benefit insurance business upon presenting evidence to the commission that it has deposited with the state treasurer, five thousand dollars ($5,000) in cash or approved securities for the protection of its certificate holders.” (Emp. sup.) We observe the alternative expressed by use of the word “or” thus indicating the legislative intent to distinguish between benefit insurance «corporations organized in this state and those admitted from another state. Section 61-1004 prescribes the steps to be taken before a certificate of authority may be issued by the corporation commission. No express language is employed in the act requiring foreign benefit insurance companies to become domesticated. To so construe the meaning of section 61-1003(a) would result in nullifying the purpose of admitting benefit corporations from other states by requiring them to become “domesticated”, and would thereby exclude foreign benefit corporations from doing business within the state of Arizona. It follows that the provisions of section 61-1012 relating to residence of directors in the state was not intended to apply to foreign benefit companies for to so require would necessitate formation of a domestic corporation. Reference is made to “foreign” corporations in section 61-1024 (id.), providing for examination of financial condition, that portion reading as follows: ‘‘(a) Whenever the commission shall determine it to be prudent for the protection of members or policyholders of any corporation doing business under this act, and at least once each year, it shall appoint a competent person or persons to visit the home office of the corporation applying for a license to transact business, or which may be transacting business in this state, whether domestic or foreign, to ascertain its true financial condition, * * *.” (Emphasis supplied.) In order to ascertain the legislative intent, all the statutes must be considered which will give it effect. Necessary implications and intendments from the language employed in a statute may be resorted to to ascertain the legislative intent where the statute is not explicit. Coggins v. Ely, 23 Ariz. 155, 202 P. 391; 59 C.J. Statutes, sec. 575. In construing an act, we should give effect to all portions thereof that are pertinent. Wise v. First National Bank, 49 Ariz. 146, 65 P.2d 1154; Kelly v. Bastedo, 70 Ariz. 371, 220 P.2d 1069. So construing the act relating to benefit insurance companies, we conclude there was a legislative intent to admit foreign corporations to do a benefit insurance business in Arizona along with domestic corporations. To require foreign companies to comply with the provisions of sections 61-1003(a) and 61-1012 would result in domesticating such corporations contrary to the legislative intent, thereby making it impossible for foreign corporations to qualify to do business in Arizona. It is our opinion the' legislature intended to admit foreign benefit insurance companies to do business after complying with specified requirements but did not mean that such companies must be subject to the aforesaid statutes enacted for organization of domestic benefit insurance corporations. Compliance therewith not being a condition precedent to the admission of a foreign benefit insurance corporation, and since appellant has complied with the laws imposing conditions precedent, it is entitled to transact a benefit insurance business in Arizona, and to have a certificate of authority from the corporation commission. Consequently, appellant’s motion to quash the alternative writ of mandamus was properly denied, the peremptory writ was rightly issued, and the judgment is affirmed. UDALL, C. J., and STANFORD, PHELPS and DE CONCINI, JJ., concur.

PHELPS, Justice. This is an appeal from an order of the trial court directing a verdict in favor of defendant and the judgment entered thereon, and from an order denying plaintiff’s motion for a new trial. The parties will be hereinafter designated as plaintiffs and defendant. The facts are that defendant is a corporate charitable institution engaged in the business of operating a general hospital in the city of Tucson. The plaintiff Essie Ray on January 24, 1948, entered the defendant’s hospital for care and treatment of a torn sciatic nerve from which she was suffering. By February 29th she had almost completely recovered and on that date was being conveyed from her room for a physiotherapy treatment. The' physiotherapy department where these treatments were administered plaintiff was located in a building forming a part of the defendant’s hospital some distance from the building in which plaintiff’s room was located. Plaintiff had been conveyed each day from her room to this building for such treatment by means of a regular hospital 4-wheel stretcher. The stretcher is described as a metal vehicle shaped like a narrow bed, approximately 4 feet high with 4 revolving wheels which we understand to mean that all 4 wheels operate on pivots. Arrangements had been made for plaintiff’s discharge upon that date and she was on her way to the physiotherapy department to take her last treatment when the accident occurred resulting in the injury of which she complains. There was employed at the hospital at that time a nurse’s aide by the name of Ella Mae Leverette who' was instructed on this particular day to convey plaintiff Essie Ray upon the stretcher to the physiotherapy department for her treatment. This was the first time she had been assigned to this task and consequently the first time plaintiff had seen her. Leading from the door of the building in which plaintiff’s room was located was a ramp down which the wheel stretcher had to pass on its way to the other building. The nurse’s aide sought to procure aid to get the plaintiff down the ramp but being unable to get assistance, undertook the task alone. She lost control of the stretcher on the ramp. It rolled around several times and finally turned over, throwing plaintiff -upon the ground causing severe fright and shock. Plaintiff claims that soon thereafter she began to suffer and ever since has continued to suffer great pain in her upper back, shoulders and neck. It is claimed that the accident and injury occurred as a result of the negligent handling of the stretcher by Ella Mae Leverette and that defendant had failed to exercise due care in employing her as a nurse’s aide. Plaintiffs have presented three questions for our consideration: 1. Did the trial court err in instructing a verdict for defendant? In other words was the evidence of such character as to justify the court in instructing a verdict for defendant? 2. Is defendant as a charitable institution liable for the negligence of its employees ? 3. Upon whom did the burden of proof rest to establish due care on the part of defendant in hiring and retaining Ella Mae Leverette of whose negligence plaintiff complains ? We are definitely of the opinion that the question of whether or not defendant exercised due care in the employment of Ella Mae Leverette as a nurse's aide should have been submitted to the jury. While it is true there is no conflict in the evidence as to what investigation defendant made before employing Ella Mae Leverette as a nurse's aide, we are of the view that the evidence, taken as a whole, is of such a character as to cause reasonable men to reach entirely different conclusions as to whether defendant did or did not exercise due care in employing her. Under such circumstances the case should have gone to the jury. Bowers v. J.D. Halstead Lumber Co., 28 Ariz. 122, 236 P. 124. Negligence only becomes a question of law for the court's determination when rational minds may not draw different conclusions from the undisputed evidence. Tom Reed Gold Mines Co. v. Morrison, 26 Ariz. 281, 224 P. 822. Therefore in withdrawing the question of negligence from the jury the court committed reversible error. For this reason alone the judgment of the trial court must be reversed and remanded for a new trial. Counsel for appellant however urges us to reconsider the question of the liability of charitable institutions for torts committed by their employees. This court declared it to be the law in this state in the two cases of Southern Methodist Hospital and Sanatorium v. Wilson reported in 45 Ariz. 507, 46 P.2d 118 and in Id., 51 Ariz. 424, 77 P.2d 458, that charitable institutions were not liable for the torts of a servant where due care had been exercised in her selection. These decisions were bottomed upon the ground of public policy. Realizing that public policy is, in its very nature, always fluctuating, varying with customs growing out of changing social, political and economic conditions and recognizing the radical changes that have taken place in each of these fields of activity during the past two decades., we believe it not only proper but necessary that we reconsider the rule laid down in those cases. Except in those jurisdictions where the trust fund theory was originally adopted, and before so many exceptions were incorporated into it, a study of the decisions of the various courts of the United States upon the subject strongly suggest the conclusion that the wishes of the individual members of the courts, rather than logical reasoning, have fathered .the concept that corporate charitable institutions occupy a legal status so different from that of other corporate entities that they should be immune from liability for the torts of their servants. In an effort to. distinguish them from other corporations the courts have resorted to subtle refinements and sophistry. They have invoked legal fictions and en-grafted restrictions upon principles of law so well established and so fundamentally just that their soundness can no longer be questioned. The confused results of these decisions reached by reasons more confusing, lead us to exclaim with Pascal “How ludicrous is reason, blown with a breath in every direction!” For a collation of cases reflecting the various views of the courts see section 402, pages 102 to 108 inclusive of the 1951 supplement, Volume 3 of Scott on Trusts. Once having established the rule most courts have been reluctant to reconsider the principle involved and overrule their previous decisions. In the case of President and Directors, of Georgetown College v. Hughes, 76 U.S. App.D.C. 123, 130 F.2d 810, 812, decided in-1942, in which a Federal court appears to-have made a most exhaustive study of the subject Justice Rutledge in appraising the results of the decisions of the courts said: “Paradoxes of principle, fictional assumptions of fact and consequence, and confused results characterize judicial disposition of these claims. From full immunity, through, varied but inconsistent qualifications to general responsibility is the gamut of decision.. The cases are almost riotous with dissent.. Reasons are even more varied than results.. These are earmarks of law in flux. They indicate something wrong at the beginning- or that something has become wrong since then. They also show that correction,, though in process, is incomplete.” There are four reasons assigned by the-different courts for denying liability o f corporate charitable institutions - for the torts, of their employees: 1. The “trust fund” theory, i. e., that' the funds and property of these institutions', are held in trust and cannot be diverted to purposes other than that designated in the trust. 2. That the doctrine of “respondeat superior” cannot be extended so as to apply to charitable institutions because such institutions are not operated for profit. 3. The “implied waiver” theory, i. e., 'that: when one enters a hospital for treatment, he by accepting the services rendered him, waives all right to claim damages for injuries suffered as a result of the negligence of the hospital or its employees. In other words he assumes the risk of negli.gence. 4. “Public policy,” i. e., that to allow recovery would be against public policy. When boiled down to its final analysis the rule of nonliability of these institutions •as declared by all of the courts so holding, has been based upon the ground of “public policy”, assigning as reasons therefor either (1) because it wrongfully diverts trust funds from the purposes for which the trust was created and if permitted would stifle charity by discouraging donations for charitable purposes by those who are charitably inclined or that (2) it wrongfully extends the doctrine of “respondeat superior” to embrace corporations engaged in business not operated for profit; or (3) that by accepting the treatment received the patient assumes the risk of negligence and impliedly agrees to waive liability on the part of the institution for torts committed by it or its employees. While the latter is based upon the theory of an implied contract, it is upon the ground of public policy that the implied contract is claimed to arise. In the decisions based upon the implied waiver theory the Good Samaritan, first introduced into the law of these cases in Powers v. Massachusetts Homoeopathic Hospital, 1 Cir., 109 F. 294, is brought to the rostrum by the courts and made to protest against a rule of law that would hold him liable in damages for the torts of his servant while he is engaged in a charitable enterprise. Yet that is exactly, what the law has always done in such cases except where the Good Samaritan happens to have been a corporate charitable institution or conducting the business of charity under a trust created for that purpose. The assumption By the court that the Good Samaritan was not liable while doing an act of charity was based upon sentiment, not law. Charity has never been a defense to such actions. Regardless of the theory adapted upon which the rule of nonliability for these institutions rests, few courts have applied any one of the theories with consistency. It is therefore impossible to discover any common thread of logic in the decided cases which can be depended upon to lead us out of the existing confusion. Justice Rutledge in the Georgetown College case, supra, further analyzing the result of these decisions, said: “It is doubtful that the so-called ‘rule’ of full immunity ever represented the prevailing state of decision in this country! * * * Nevertheless judicial discussion has set in the pattern that immunity is the rule, much of it without explicit recognition that the ‘rule’ itself is an exception to general principles of liability. “Notwithstanding the pattern, the ‘rule’ has not held in the tests of time and deci sion. Judged by results, it has been devoured in ‘exceptions.’ Debate has gone on constantly, not so much as to whether, but concerning how far it should be ‘modified,’ with ever widening modification. “It is perhaps impossible, if it were worth while, to make an exact summary of the present state of American decision or to determine with accuracy what is the ‘prevailing rule.’ An effort to do this made later discloses a tangled skein from which it is difficult to draw a thread of dominant strength, even on a numerical basis. This much, however, is sure. The immunity, so far as it ever existed, has disappeared largely as to all persons and classes of claimants save one. This includes only so-called beneficiaries of the trust or charity. That class now is disintegrating, and the rights of the beneficiary, who needs the protection most, also are securing recognition. If we look at results, therefore, rather than words or forms of statement in opinions, for the test of what is ‘the law’ or ‘the prevailing rule,’ immunity is not ‘the rule’ and liability ‘the exception.’ The rule has become merely a relict in the multitude of departures. “Notwithstanding this, the habit of statement remains long after results have contradicted it. Opinions continue to speak in the set pattern, often .when holding only to the last remnant of irresponsibility and occasionally, as is noted later, when repudiating all grounds for retaining that. The judicial debate continues around the ‘modifications’ which should he made. Nearly everywhere the question is, not whether the immunity is total, but whether (1) the plaintiff is one entitled to hold the corporation-to payment; or (2) whether it should be-charged for the act of a particular agent, servant, employee or other representative-Liability also turns here and there, apparently, on where the act occurs or its nature, such as driving an ambulance or a truck on the streets in contrast to running an elevator or pushing a cart in the corridors of the hospital. In some jurisdictions, strangers (that is, persons not beneficiaries of the charity) may recover; in others, paying beneficiaries also, but not nonpaying, may do so. In both there is much debate-as to who is stranger and who is beneficiary. * * * “Similarly, some states impose liability for the negligence of managing officials, but not for that of less authoritative employees or agents. Others apply, in this, respect, substantially the rule applied generally to business corporations, namely, without attempting to- state it precisely, that the corporation will be liable for all negligence inflicted by employees or -other representatives whose function it is or reasonably appears to be to perform the act, in'the course of doing which the negligence- and the injury occur. * * * “From this welter of conflict, the following general, but none too sure conclusions, may be made. Five states appear to- have-no decisions on the subject. Eleven apparently adhere to full immunity, with ex ceptional liabilities which have been noted. Three certainly, and apparently a fourth, have imposed unqualified liability. New York has done so after tortuous efforts to find a satisfactory intermediate stopping place. England, Canada, and New Zealand have adhered to> this position since Mersey Docks Trustees v. Gibbs, supra. In seven states strangers and paying beneficiaries may recover, but the question has been reserved as to nonpaying ones, with strong indications in some instances that they too-will be accorded protection. Colorado and Tennessee impose liability if the charity is protected by insurance, and the latter, with Georgia and some other states, applies it to the extent of property owned by the corporation and used not directly in carrying on the charitable enterprise, but for business purposes to produce income for its support. The trend in the ten states last referred to seems clearly toward unqualified responsibility. When its weight is added to that of the jurisdictions which impose full liability, the apparent preponderance of authority supporting immunity disappears. “In thirteen of the remaining states, apparently, strangers are allowed to recover, but beneficiaries are denied relief. This constitutes, numerically, perhaps the slightly largest group. But in such a kaleidoscope of result and reasoning it hardly can be said there is a preponderant 'weight of authority.’ The plurality, if any, is highly unstable, and this is accentuated by- the conflict, already noted, concerning who is beneficiary, who stranger.” Since the above decision was handed down in 1942, some of the state courts have receded from their former positions of non-liability of these institutions for the torts of their servants. In the case of Haynes v. Presbyterian Hospital Ass’n, Iowa, 45 N.W.2d 151, 154, the Iowa Supreme Court expressly overruled two former decisions in which it had held charitable institutions immune from liability for such torts. In the above case the court criticizes the trust fund theory, the nonapplicability of the respondeat superior maxim and the implied waiver theory, stating that these doctrines which have been advocated in support of the immunity of charitable institutions have little of inherent or real merit to recommend them. It further says in substance that the public policy theory while it may at the outset have been sound, under changing conditions the reason for its further existence no longer obtains. The court concludes by saying: “It is our considered judgment that incorporated charities should respond as do private individuals, business corporations, and others, when it does good in the wrong way. This pronouncement being, as it is, contrary to the rule announced in the Mikota and Servison cases, supra, they must be and are hereby overruled. * sn *» If the rule imposing liability upon charitable institutions in favor of strangers and paying patients is predicated upon the trust fund theory, the denial of recovery to a charity patient for whose benefit the trust was primarily created is so inconsistent with that theory that it will not bear the searchlight of reason. It is a complete answer to say that it constitutes a diversion of trust funds to satisfy the judgment of a stranger or a paying patient for injuries sustained to the same extent as it does to .satisfy the judgment of a nonpaying patient, If based upon the theory that the doctrine of respondeat superior does not apply because the defendant is a nonprofit institution, then it can make no difference whatever whether the patient pays or does not pay or whether the claimant is or is not a .stranger. Its character as a nonprofit organization is not changed or affected by the fact that an injured patient pays or does not pay for the care he receives nor by the fact that the injured person is a stranger. It reduces itself to an absurdity to say that the doctrine does apply to strangers and paying patients but does not apply to nonpaying patients. This doctrine is a development of the common law and as applied by the courts of England has never been limited to cases where the master was engaged in business for profit. It was said an Mersey Docks v. Gibbs, L.R. 1 H.L. 93 (11 H.L. 686): “Upon the principle that qui facit per alium per se, the master is responsible for the acts of his servant; and that person is undoubtedly liable who stood in relation of master to the wrongdoer, he who had selected him as his servant from the knowledge or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey.” And in Gilbert v. Trinity House, 17 Ca.Q.B.D. 795, the court said: “The law is plain that whosoever undertakes the performance of, or is bound to perform, duties—whether they are duties imposed by reason of the possession of property, or by the assumption of an office, or however they may arise—is liable for injuries caused by his negligent discharge of those duties. It matters not whether he makes money or a profit by means of discharging the duties, or whether it be a corporation or an individual who has undertaken' to discharge them. It is also immaterial whether the person is guilty of negligence by himself or by his servant, if he elects to perform the duties of his servant. If in the nature of things he is obligated to perform the duties by employing servants, he is responsible for their acts in the same way that he is responsible for his own.” (Emphasis supplied.) The courts of the United States who rejected the trust fund theory and the implied waiver theory, being hard put to exempt charitable institutions from liability for the torts of their servants, engrafted on to the English rule of respondeat superior the condition that the master must be engaged in a business for profit before the doctrine is applicable. The declaration of these courts that the doctrine cannot be extended to áp ply to charitable institutions is a misstatement of fact. The doctrine requires no extension for this purpose. Refusing to permit it to apply in such cases is not an extension of the doctrine but is clearly a restriction upon the common law concept of the doctrine by engrafting onto it a condition which is not and never has been the common law rule. If the holding that such institutions are liable to strangers and paying patients and not liable to nonpaying patients is grounded upon the theory of “implied waiver”, it might be argued by superficial reasoning that the implied waiver agreement was supported by a valuable consideration as between the hospital and the nonpaying patient. The consideration for the waiver may be said to be the acceptance of treatment from the institution without charge while in the case of a stranger or paying patient there would be no consideration to support a waiver. The theory of implied waiver however is so thoroughly illogical that it is difficult to understand how it has gained the approval of any court. It not only denies the very individuals for whom the charity was intended, the benefit of the charity but it makes it compulsory upon him, if injured by the negligence of an employee, to donate to charity the amount he would otherwise be entitled to recover for his injuries. This saving to the institution may in turn be used by it to satisfy the judgment of a stranger for injuries which he may have sustained as a result of the same act of negligence. This theory has been severely criticized by many courts. For example in the case of Gamble v. Vanderbilt University, 138 Tenn. 616, 200 S.W. 510, 512, L.R.A. 1918C, 875, the -court said: “ * * * There are cases from time to time occurring, and not altogether infrequent, to which it is, as it seems to us, impossible to apply it—patients-conveyed to hospitals in a demented condition, persons temporarily unconscious- from injuries and who require immediate surgical and other attention, those who are so debilitated by disease as to have no power of understanding the terms of a contract, children too young to- understand the meaning of a contract, or to make or be bound by one in any form, or even to understand the nature of the work to be done for them. How can such persons be held to waive a right of action which the law gives them? How can they be held to have agreed to an exemption ? Manifestly the only sound theory is that of an exemption based on public policy. * * * ” In the 1921 Mich.L.Rev., Vol. 19, pp. 395 to 412, Carl Zollman in an article on Damage Liability of Charitable Institutions said: “The'objection to this, theory is that it does violence to the facts, ‘A patient entirely unskilled in legal principles, his body racked with pain, his mind distorted with fever, is held to know, by intuition, the principle of law that the courts after years of travail have, at last produced.’ ” It was said in the case of Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807, 809, that: “The beneficiaries of charitable institutions are the poor, who have very little opportunity for selection, and it is the purpose of the founders to give to them skillful and humane treatment. If they are permitted to employ those who are incompetent and unskilled, funds bestowed for beneficence are diverted from their true purpose, and, under the form of a charity, they become a menance to those for whose benefit they are established.” This court has had occasion to define a waiver in several decisions. In Guarantee Title & Trust Co. v. Babbitt Bros. Trading Co., 47 Ariz. 47, 53 P.2d 734, 736, we defined a waiver as: “ * * * a voluntary and intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right * * * ‘waiver must be intentional and upon a consideration, or the act relied op must be such as to constitute an estoppel.’ * * * ” See also Waugh v. Lennard, 69 Ariz. 214, 211 P.2d 806. Under this definition of a waiver certainly patients who may be unconscious or demented at the time of entry or infants may not be held to the theory of “implied waiver”. The great majority of the courts which hold that a charitable institution is not liable for the negligence of its employees hold it liable for negligence in selecting such employees. This court aligned itself with that group in the Wilson cases, supra, yet as pointed out above there can be no sound reason given for such distinction upon either of the theories assigned for the rule. Nor is it logical upon any of the theories employed by the courts to distinguish between negligence of the manager of the corporation and the negligence of a nurse, or a janitor, as a basis for allowing or denying recovery. A corporation can only act through its employees and the fact that the injury is due to the negligence of one who is charged with the management of the institution does not change the fact that he too is an employee. The distinction is based solely upon a legal fiction. It is a distinction without a difference. If the doctrine of respondeat superior does not apply to charitable institutions that ends it. No refinements of logic can make it apply so that liability can attach for tort in any case. When the Wilson case, supra, was first presented to this court, the question of nonliability of corporate charitable institutions was one of first impression in this jurisdiction, and after a discussion of the decisions of a number of courts on the subject, the court concluded that the case of Hearns v. Waterbury Hospital, 66 Conn. 98, 33 A. 595, 602, 31 L.R.A. 224, offered the best reasoning for its views of any of the cases considered. It followed the rule laid down in that case and quoted at length therefrom; A study of the decision of the Connecticut court indicates that its reason for holding that the imposition of liability upon such institutions for their torts “would be carrying the doctrine of respondeat superior to an unreasonable and dangerous length.” The court then continued by saying: “That doctrine is at best, as I once before observed, a hard rule.” It then en-grafted onto the doctrine the rule that it did not apply because “ * * * It derives no benefit from what its servant does, in the sense of that personal and private gain which was the real reason for the rule. * * * ” As pointed out above, gain or profit has no reasonable relation to' the doctrine of respondeat superior. It rests upon the employment of the servant by the master and the master’s right to exercise direction and control over his work in the conduct of his business. Following the reasoning in the Hearns case, supra, the court said: “We hold, therefore, that, under the law of Arizona, the application of the doctrine of respondeat superior to charitable institutions is limited, for reasons of public policy and so far as the beneficiaries of such institutions are concerned, to cases where the institution has not used due care in the selection of the employees and agents who have actually been guilty of the acts of negligence which have caused damages to such beneficiary. * * * ” [45 Ariz. 507, 46 P.2d 125.] (Emphasis supplied.) It will be observed from the above quotation that this court fell into the error of inconsistency by saying in effect that (1) if due care is exercised in the selection of an employee who has actually been guilty of negligence causing damage to the so-called beneficiary, the doctrine of respondeat superior does not apply and no liability attaches as a result of the wrongful injury; (2) if due care has not been exercised in the selection of the employee whose negligence causes damage to such beneficiary the doctrine of respondeat superior does apply and liability attaches for such act. The court expressly limited the application of the doctrine or rule to so-called beneficiaries. It thereby left the door open to add another inconsistency to it by following the lead of nearly all of the courts in holding that a stranger may recover for the torts of an employee of the institution. Notwithstanding this fact the court said later in the opinion: “ * * * The test of the application of the rule (meaning respondeat superior) is the general nature of the institution and whether it is maintained for the purpose of profit or for that of service, * * The question of whether the doctrine of respondeat superior applies in any given case depends upon whether the relation of master and servant exists at the time the tort was committed, not upon the relation of the injured person to the master. This being true, if a stranger may invoke the doctrine of respondeat superior it irresistibly follows that a so-called beneficiary, whether he be a paying or nonpaying patient, may likewise invoke it. It is pointed out by Justice Rutledge in the Georgetown College case, supra, that scholarly treatments outside the court are almost uniform to the effect that full liability should attach to such institutions in these cases. Lester W. Feezer, now a professor of the law department of the University of Arizona in an able discussion of this subject in an article appearing in Vol. 77, U. of Pa.L.Rev. 191 (1928) in taking the position that charities whether they be corporations, trusts or other form of legal entity should be liable to the same extent as other employers to pay damages for torts committed through the negligence of their employees, asked the question: “ * * * Is it more just today that a patient, an inmate, or any other beneficiary of a charitable institution, whether supported by the endowment of one wealthy philanthropist or by the gifts of many persons, should be allowed to recover damages against the intending benefactor, or that the loss or suffering to> the individual should rest where it falls? * * * “Here then is a question of justice between the two parties most directly affected. But the claims of both upon the favor of justice are subject to the rights and welfare of society, and 'also subservient to the interests of that government in whose name and by whose machinery justice must be determined and administered. What does this mean, but that the question must be settled by reference'to social policy and in no other way? The law has its rules and its principles of legal policy, and will answer the questions put to it in terms of the policy of the law. Now what makes the .policy of the law what it happens to be, in this or any other case, rather than just the contrary? Legal policy is but a reflection of a detail from the total ensemble of social policy. However, the law does not reflect social policy instantaneously as a mirror reflects the image of an object placed before it. Only after the waves or emanations from a particular manifestation of social conduct have shown upon the film of the law for some time does it absorb enough of the rays to produce a visible image. In other words, there must be a time exposure before the image of changed social phenomena and correspondingly changed social requirements become fixed in the law, just as is required by a photographic film which -is exposed in a dimly lighted place. It would therefore seem that when society is sure enough of what it wants, and when that certainty has persisted for a sufficiently long time, the thing will ultimately come to pass. “Why is it just, at the present day, to hold charities liable in the type of situation here under discussion? It is submitted that the imposition of liability in such cases is justice now, even if it were not always so. This is so now because it has at this point in our social progress become evident that social policy, to be consistent with its development as a whole, must be interpreted as calling for the imposition of liability in. such cases. The charity of times gone by, to the extent that it then existed, was a very different thing from the modern charity. Charity has become organized. Formerly, except as it was a part and creature of the Church, it was not organized at all, and depended upon the humane instincts of individuals or small informal groups. Some of the decisions, evidently influenced in part at least by this conception, have said that the Good Samaritan must not be discouraged by being mulcted in damages; yet as a private individual he would be held liable. The volunteer who does a job negligently is everywhere held liable.” Prosser on Torts, published in 1941, p. 1084, in pointing out that the extent of the immunity covered varies according to the particular justification adopted, concludes that only a few courts adhere to the English rule “ * * * which seems to be the only really logical or desirable one, that even as to recipients the charity is as fully liable for the torts of its employees as any private corporation.” To the same effect is Scott on Trusts, Vol. 3, p. 2150, Sec. 402, which reads as follows: “If this principle (disallowing a recovery out of trust funds) is accepted, a charitable institution is under no liability either to a recipient of benefits, or to an employee or to a stranger; and it is immaterial whether the injury was due to the fault of an employee or to the fault of the trustees or other managers of the institution. The injured person has no remedy except against the individual whose fault caused the injury. Such a sweeping exemption from liability of charitable institutions seems to be clearly against public policy. The institution should be just before it is generous.” Discussions of this subject supporting the same view are found in 1936 publication of American Bar Ass'n J. Vol. 22, p. 48; 34 Yale L.J. 316 (1925); 14 Boston U.L.Rev. 477 (1934); 22 Va.L.Rev. 58 (1935); 48 Yale L.J. 81 (1938). Some of them point out that liability insurance is now available to these institutions and that it may be reasonably contemplated by trustors creating charitable trusts that the expense of carrying such insurance would as necessarily be involved in the operation of its business as any other legitimate expense. The writers of these articles occupy a position with respect to the advancement of the judicial body of the law similar to that of the corps of engineers to an advancing army. Unfettered by precedent and stare decisis these gentlemen are always in the vanguard of the progressive march of the body of the law, constructing bridges, as it were, and clearing the way for advanced positions which may be safely contained when surrounded by new and changing social, political and economic conditions. They are quick to recognize the development of a social policy and are instrumental in crystallizing it into a fixed concept which the legislature arid the courts denominate “public policy.” The declaration of “public policy” is primarily a legislative function. The courts unquestionably have authority to declare a public policy which already exists and to base its decisions upon that ground. But in the absence of a legislative declaration of what that public policy is, before courts are justified in declaring its existence such public policy should be so thoroughly established as a state of public mind, so united and so definite and fixed that its existence is not subject to any substantial doubt. Sheehan v. North Country Community Hospital, 273 N.Y. 163, 7 N.E.2d 28, 29, 109 A.L.R. 1197. It is equally true that when the reason for the existence of a declared public policy no longer obtains that the courts should without hesitation declare that such public policy no longer exists. During the past two decades both the Federal Congress and the legislatures of pratically all of the states have in various forms declared a public policy to exist in this country that is diametrically opposed to that invoked in these cases to sustain the immunity of charitable institutions from liability for damages for the torts of their servants. As examples practically every state in the Union has enacted a workmen’s compensation law; occupational disease disability laws making employers liable to workmen if the injury or illness arises out of and in the course of their employment regardless of any question of negligence; employment security acts designed to take care of individuals during periods of enforced idleness, and even in cases of voluntary strikes under certain circumstances thus relieving the unfortunates of the burdens of misfortune and shifting such burdens to the shoulders of the public at large. In addition to these laws Federal legislation has encompassed the entire field of welfare and social security. We believe that these legislative declarations of public policy which relieves the individual from the burden of his misfortunes and makes the general public bear the load levying taxes directly or indirectly to carry out such policy, completely repudiate the rule of nonliability of charitable institutions for the torts -of their servants based on public policy. For the above reasons we are of the opinion that if public policy ever required that charitable institutions should be immune from liability for the torts of their servants, that public policy no longer exists. We therefore expressly overrule the holding in the Wilson cases, supra, and now hold that charitable institutions are liable for the torts of their servants from which injury proximately results to a third person, whether stranger or patient and whether the patient is a paying or nonpaying patient. In this view of the case the question of the burden of proof becomes immaterial. Judgment reversed and remanded for a new trial in accordance with the views hereinabove expressed. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concur.

PHELPS, Justice. This is an appeal from an order of the superior court of Pinal County denying the discharge of appellant James P. Paxton on a writ of habeas corpus and remanding him to the custody of the warden of the state prison at Florence. The facts are that on November 24th, 1950, appellant entered a plea of guilty in the superior court of Yavapai County to a purported charge of perjury and was thereupon sentenced by said court to serve a term of not less than one nor more than three years therefor in the state penitentiary. Appellant was not represented by counsel either before the committing magistrate or the superior court and according to the records before us it appears that not more than 30 minutes elapsed between the time of filing the complaint in the justice court and the pronouncement of judgment and sentence upon appellant in the superior court. Thereafter on March 10, 1951, an application was made to this court on behalf of appellant for a writ of habeas corpus upon the ground that the information in the case did not state a public offense and that the superior court of Yavapai County was therefore without jurisdiction to pronounce judgment and sentence upon appellant and that such judgment and sentence was null and void. The writ was issued on the 20th day of March, 1951, and made returnable before the Honorable W. C. Truman, Judge of the Superior Court of Pinal County who on April 5, 1951, quashed said writ and remanded appellant to custody. Appellant has presented three separate assignments of error all of which are directed to the insufficiency of the information to state an offense against the State. We will therefore consider them together. It will be necessary to examine the information in the light of our statutes relating to pleading in criminal cases and the decisions of the courts relative thereto in order to reach a conclusion as to the soundness of appellant’s contentions. Section 44-702, A.C.A.1939, provides that: “Every felony and every misdemean- or over which the superior court has original jurisdiction, must be prosecuted by indictment or information, * * * Section 44—706 provides in so far as here- pertinent that the information must contain: - “ * * * a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable'a person-of common understanding to know what is intended, * Section 44—709 provides that the “information is sufficient, if it can be understood therefrom: * * *. “That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language;, and in such manner as to enable a person of common understanding to know what is intended, and as to enable the court to-pronounce judgment upon a conviction,, according to the right of the case.” Section 44-710 thereof provides that the “* * * information must be direct and. certain as to the party charged, the offense charged, and the particular circumstances of the offense when they are necessary to constitute a complete offense.” Section 44—711 thereof provides: “(1) The indictment or information may-charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one or more o£ the following ways: “(a) By using the name given to the’ offense by the common law or by a statute. “(b) By stating so much of the definition of the offense, either in terms of the-common law or of the statute defining the offense or in terms of substantially the-same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged. “(2) The indictment or information may refer to a section or subsection of any •statute creating the offense charged therein, and in determining the validity or sufficiency of such indictment or information regard shall be had to such reference.” Section 43-4201 defines perjury in so far as material here as follows: “Any person who, having taken an oath that he will testify, declare, depose or certify truly before any competent tribunal, officer, or person, in any case in which an oath may by law be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false; * * * is guilty of perjury, * * *." Section 44-742 provides: “No indictment or information for perjury, or for subornation of, solicitation of, conspiracy or attempt to commit perjury shall be invalid or insufficient for the reason that it does not set forth any part of the records or proceedings with which the oath was connected, or the commission or authority •of the court or other official before whom the perjury was committed or was to have heen committed, or the form of the oath or affirmation, or the manner of administering the same.” Section 44-753 of the Code provides: '“The following forms may be used in the cases in which they are applicable:” among which are perjury. The following form is prescribed: “A. B. committed perjury by testifying as follows (set forth the .testimony)”: The charging part of the information in the instant case reads as follows: “In the Superior Court of the County of Yavapai, State of Arizona, on the 24th day of November 1950, the County Attorney of Yavapai County, State of Arizona, accuses James P. Paxton of Felony, to-wit: Perjury, and charges that at Yavapai County, Arizona, on or about the 17th day of October, 1950, and prior to the filing of this Information, the said James P. Paxton did then and there wilfully, wrongfully, unlawfully, feloniously, and contrary to an oath that he would testify truly before the Superior Court of Yavapai County, Arizona, in a proper case in which an oath could by law be administered, state as true a material matter which he knew to be false.” It will be observed that there is no attempt made by the State to inform the defendant as to what particular statement or statements in his testimony before the court and relied upon by the State, are in fact false. There is nothing appearing from the face of the information which tends to inform the defendant in ordinary and concise language what portion of his testimony is claimed to be false in such manner as to enable a person of common understanding to know what is intended. We are of the view that the statutes above quoted must be construed together. And when so construed irresistibly lead to the conclusion that an information charging perjury must set forth the per jurous words relied upon as constituting the perjury. It is only when this is done that a defendant is apprised in ordinary and concise language of the specific portion of his testimony that the State claims to be perjured and can know what is intended to be charged. If this were not required defendant might be again prosecuted for the same offense and thus be deprived of pleading former jeopardy. Or let us assume a situation where a defendant testifying in a case testifies falsely concerning two separate matters, only one of which is material to the issues involved in the case on trial. Under an information like the one in the instant case he may enter a plea of guilty, intending to admit having made the false statement (material to the issues in the case on trial) and subsequently, after he has served his term in the penitentiary, find, from the statement of facts, that he had entered a plea of guilty to the other false statement which was not, in fact, material to the issues and therefore did not constitute perjury. Under such circumstances defendant could not interpose the plea of former jeopardy upon a second prosecution. We therefore hold that an information for perjury must set forth either the substance of the words or the actual words used by the witness alleged by the State to be false. It must also allege the materiality of such statement, knowledge of its falsity, and by appropriate language make it clear that the person before whom the oath was made was authorized to administer it. State v. Broshears, 18 Ariz. 356, 161 P. 873. We further hold that the information in the instant case, failing to do either, does not state an offense against the State of Arizona. If the information stated no offense it follows that it is a nullity, conferred no jurisdiction upon the court, and necessarily formed no basis for a plea of guilty and for the pronouncement of judgment and sentence thereon by the court. The judgment and sentence rendered therefore are wholly null and void. Loomis v. State, 25 Ariz. 506, 219 P. 592, State v. Smith, 66 Ariz. 376, 189 P.2d 205. The latter case clearly states, and gives a splendid resume of the rulings of this court on the necessity of meeting the statutory requirements in drawing an information. The court in that case also cautioned against too great haste in the administration of the criminal law, pointing out that it sometimes led to injustice. That habeas corpus will lie in a case where a person is incarcerated under a void judgment and sentence, is too well settled to require extended comment by this court even if the question were properly raised. Having reached the conclusion that thccourt was without jurisdiction to pronounce judgment and sentence in this case and the same is therefore null and void and that habeas corpus will lie in such a .case, it becomes unnecessary to consider the remaining questions raised. For future guidance we feel constrained to state that in our opinion it is extremely doubtful if the language appearing in the statement of facts as constituting the perjurous testimony, is at all material to the issues involved in a divorce matter. It appearing that the appellant is illegally restrained and deprived of his liberty, the order of the superior court of Pinal County is set aside and the respondent Warden of the State Prison is ordered to forthwith discharge him. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concurring.

LA PRADE, Judge. Review by certiorari challenging the award of the Industrial Commission denying claims of widow and minor children for benefits under the Workmen’s Compensation Act, A.C.A.1939, § 56-901 et seq., on account of the death of Elmer Leslie Gardner, husband and father, respectively, of claimants. Deceased was employed by the town of Holbrook, Arizona, as town clerk at the time of his death on February 11, 1950. Benefits under the Act were denied upon the ground that the death by accident did not arise out of and in the course of the employment. Briefly, the facts disclose that Mr. Gardner’s death grew out of .an airplane accident at a time when he was returning from Yuma, Arizona, to Holbrook. No question is made of the fact that he was traveling by the most direct route and that travel by aircraft is an accepted means of travel. At the time of, and for some years prior to, his death Mr. Gardner occupied the office of town clerk, chief administrative and public relations officer of the town. As chief administrative officer of the town, he was in charge of the town’s proprietary businesses, to-wit: electric light and power system, water and sewerage systems. The evidence discloses that a large proportion of the taxable real estate in said town is supported by tourist trade and that a considerable portion of the revenue from its proprietary enterprises is directly due to the tourist business within the town. It is also worthy of noting that the various municipalities of the state receive a distributive share (10%) of all privilege taxes (sales taxes) collected under the Excise Revenue Act of 1935 in proportion to their population. See Section 73-1322, A.C.A.1939 Cum.Supp., as amended by Initiative Measure Sec. 1, 1942. It is a matter of common knowledge, of which this court takes judicial notice, that the economy of all the towns in northern Arizona along U. S. Highway 66 is geared into and largely dependent upon tourist business. America is a nation on wheels. A town’s hotels, motor inns, restaurants, gasoline filling stations, garages, allied industries and services are an integral part of and essentially necessary in making it possible for the traveling public to cross the nation with the ease and facility that the American public demands. To meet the demands placed upon it, the common council and chamber of commerce of the town were very attentive and sensitive to its obligation and the opportunities afforded. The deceased, in addition to his duties as chief administrator of the town’s proprietary functions, was also its public relations officer. It was in connection with forwarding these activities of the town that Mr. Gardner attended a convention of the Secretaries of Chambers of Commerce of the towns and cities of Arizona, which was held at Yuma. In connection with attending this meeting, Mr. Gardner went in the company of Mr. Arthur E. Austin, who was Secretary of the Chamber of Commerce of Holbrook and who piloted the airplane in which they were traveling at the time of the fatal accident. Prior to leaving on the trip, Mr. Gardner had secured the individual consent of the mayor and members of the common council. The evidence shows definitely that the mayor had been given (prior to the authorization to Mr. Gardner to make the trip to Yuma) full authority by the common council to authorize any and all action on behalf of the town in which large expenditures were not involved. Subsequent to the death of the deceased, the town council passed a formal resolution ratifying the trip of Mr. Gardner and authorizing payment of the expenses incurred by him, and his salary to and including the date of his death. It is the contention of the respondent, Industrial Commission, that the town council was without jurisdiction under the law to ratify the oral authorization of the mayor in order to bring the claims in question within the requirements of the compensation law. In this behalf, respondent calls attention to the fact that at a regular meeting of the town council held on February 8th (two days prior to the departure of Mr. Gardner), no formal action or authorization was taken authorizing the trip. This deficiency in the record was explained by the fact that at this regular meeting on February 8th, and shortly after it began, the mayor was called from the meeting due to a death in his family, and that as a result thereof, there was some confusion and lack of attention to details. The position of the Industrial Commission is bottomed solely upon the proposition that there was no formal authorization by resolution made and adopted prior to the time that the trip was undertaken. It is conceded by the commission that the interests of the town and the Holbrook Chamber of Commerce are identical in many respects but it insists the town is a governmental agency and that the powers of municipalities and their officers are statutory and there being no specific provision authorizing ratification of a trip as here, there is no basis for holding that the death by accident arose out of and in the course of the employment. The town of Holbrook is a municipal corporation duly incorporated under Article 2, Chapter 16, A.C.A. 1939, and its corporate powers are vested in a common council as provided by Section 16-203, and having the powers enumerated in Section 16-207, as amended by chapter 111, Laws of 1949, see Cum.Supp., and the additional general powers enumerated in Article 6, Chapter 16, Sections 16-601 to 16-614. Under its general powers, the town was authorized to engage in the proprietary functions above referred to, both as owner and operator. By the provisions of Section 16-607 the town was authorized to appropriate and spend moneys for the purpose of encouraging new industries and investments in the town “and to print and distribute books, pamphlets and maps advertising the advantages of said city or town, and the common council may pay said sum to the chamber of commerce, board of trade, or other commercial organization of said city or town to be expended for the purposes herein enumerated.” For an interpretation of this section, see City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 164 P.2d 598. See, also, City of Glendale v. White, 67 Ariz. 231, 194 P.2d 435. We are of the opinion that the action of the common council in ratifying the trip and the expenses involved was clearly within the power of the council and furnishes the formal legal foundation to constitute the business activity in which the deceased was engaged at the time of his death as being in the course of his employment. It is inconceivable that any municipality could operate and maintain its business enterprises with the necessary business dispatch required if its administrative officers first had to secure formal approval of the town council before taking any affirmative action in routine or emergency situations. The mayor, as the chief executive officer of the city, had the implied authority to authorize deceased, the town’s chief administrative arid public relations officer to attend the meeting of the Secretaries of Chambers of Commerce and the express authority to authorize the payment of expenses therefor. In this activ ity, the deceased was promoting the best interest of the town. This is especially true, in view of the fact that the town’s revenues were chiefly derived from the operation of its utilities largely dedicated to the business activities of the community which had their roots in the tourist business. The following statement is applicable : “When given authority to do so a governmental entity is expected to perform a proprietary function under like rules and regulations as those pursued by private individuals. No one would contend that a private or a public service corporation would be barred from entering into an exclusive contract like that involved here if the necessities of its business required. When county commissioners are clothed with a proprietary function wherein they are responsible to the public for prompt and efficient service, it necessarily follows that they must be clothed with power to enable them to meet such requirements and we think the act in question does this.. “When a governmental entity is authorized to exercise a power purely proprietary, the law leans to the theory that it has full power to perform it in the same-efficient manner as a private person would do.” (Emp. sup.) Miami Beach Airline Service v. Crandon, 159 Fla. 504, 32 So.2d 153, 155, 172 A.L.R. 1425. We do not believe that a private utility, reasonably operated with the idea of making money and rendering service, would thwart its aims and hamstring its administrative officers by requiring such a trip as. here undertaken to first have the approval of the board of directors formally assembled and recorded. In any event, when such activity had received the ratification of such a board of directors, the book would be closed. With the concepts expressed in the excerpt from the Florida case, supra, we are in accord. When a municipality is clothed with proprietary functions wherein it is responsible to the' public for prompt and efficient service, it necessarily follows that it and its officers must be and are clothed with power to enable them to meet such requirements as the business at hand requires. Nowhere by express statutory requirement nor -by reasonable implication is a meeting of the town council and a formal vote or authorization made an indispensable predicate for the exercise of the power that is vested in the mayor as chief executive officer of the town in authorizing its chief administrative officer to attend the meeting in question in the promotion and administering of the town’s business enterprises. See Bentley v. Industrial Commission, 71 Ariz. 181, 225 P.2d 43; on rehearing 71 Ariz. 330, 227 P.2d 224; Voswinkel v. Industrial Commission, 229 Wis. 589, 282 N.W. 62; Town of Fair Haven v. Stannard, 111 Vt. 49, 10 A.2d 214; Mann v. Board of Education of City of Detroit, 266 Mich. 271, 253 N.W. 294; Sexton v. Waseca County, Minn., 1 N.W.2d 394. For the reasons herein set forth, we are •of the opinion that the Commission erred in determining that the deceased at the time of his death was not killed by accident arising out of and in the course of his employment. Accordingly, the award is set aside. UDALL, C. J., and STANFORD and PHELPS, JJ., concurring.

DE CONCINI, Justice. Appellee Alan G. Gobby, doing business as Gobby Manufacturing Company, hereinafter referred to as plaintiff, brought suit against the Tovrea Equipment Company, defendant-appellant, on a contract under the terms of which the plaintiff was to manufacture and sell to the defendant a quantity of hay rakes. Defendant counterclaimed with an assertion that plaintiff had breached certain warranties concerning said rakes. In theTower court the jury returned a verdict in favor of plaintiff on his complaint and in favor of plaintiff on defendant’s, counterclaim; judgment was entered thereon. Defendant moved for a new trial on the grounds that the damages awarded to plaintiff were excessive and that the verdict and judgment were not justified by the evidence and were contrary to law. The court granted defendant’s motion for a new trial, on the issue of damages only. Defendant appeals to this court from that part of the order which limits the retrial to the issue of damages. The facts, taken in the light most favorable to plaintiff, are: In the year 1947, defendant purchased several Morrill side delivery hay rakes manufactured by plaintiff. In the fall of that year plaintiff and defendant entered into negotiations concerning the manufacture of a modified Morrill rake of lighter construction similar to those being manufactured by a California concern. The parties entered into a contract in December, 1947: plaintiff to manufacture and sell to defendant thirty such modified rakes to be delivered the following spring haying season. Defendant contends that during the above negotiations plaintiff made certain warranties concerning the quality of the rakes. After further modification in the manufacture of these rakes plaintiff delivered eleven of them to the defendant in March, 1948, for which defendant paid. Defendant contends that all of the eleven rakes were defective when delivered. Plaintiff then proceeded to make certain changes and adjustments on the rakes to satisfy the defendant and those customers who ¡had purchased same. On June 24, 1948, defendant, by letter informed plaintiff that because the rakes were unsatisfactory, it would neither accept nor pay for the remaining nineteen. At that time defendant offered to return seven of the rakes delivered by the plaintiff which defendant had not resold. Plaintiff refused to accept the defendant’s repudiation of the contract and brought suit thereon in the lower court. From the judgment entered therein, defendant appeals. Defendant, in its assignment of error, urges two propositions. The first is that where it appears from the evidence that the verdict as to the issue of liability is not justified by the evidence or is contrary to law, a new trial must be granted as to such issue. The second is that where the damages awarded by a verdict of the jury are so excessive as to warrant the conclusion that it was the result of passion or prejudice, or where there is a substantial dispute as to the question of liability, or where the issue as to damages and the issue as to liability are inseparable, or where the trial of the issue of damages disassociated from that of liability will not be fair to defendant, the court must, upon showing that the damages awarded are not supported by the evidence, grant a new trial as to all the issues of the case. We need only consider the second proposition. Plaintiff alleged as a basis for his actual damages the difference between the amount paid for the eleven rakes delivered to defendant and the amount due under the contract. Defendant alleged a modification of the contract price to that which was actually paid. By the court’s instructions the issue as to defendant’s liability to plaintiff for the difference between the original contract price of the rakes purchased and the price paid was eliminated. The court’s ruling was based on the decision of this court in Perry v. Farmer, 1936, 47 Ariz. 185, 54 P.2d 999, to the effect that where a contract has been modified, the modification will be given effect to the extent that it has been executed, even though the modification is lacking in consideration. The court further instructed the jury as follows: “ * * * Now, if you find from the evidence that the defendant wrongfully refused to accept and pay for the rakes which had not been delivered under the contract between the plaintiff and the defendant, and if you find that there was a valuable market for said rakes, then the plaintiff would be entitled to recover damages, if there be any, and the measure would be of the plaintiff’s damages, in that event, the difference between the contract price $448.80, and the market or current price at the tme or times when the rakes ought to have been accepted.” This instruction was based on section 52-753, A.C.A.1939. The contract price for the rakes was $448.80 each. The only evidence in the record as to the market or current price of the goods at the time of the repudi ation was the testimony of the plaintiff corroborated by that of one of defendant’s witnesses that at such time the rakes were worth $425 each. If it be conceded that defendant was guilty of breach of contract the jury should not have found that plaintiff was damaged in an amount greater than $23.80 per rake or $452.20 for the nineteen rakes not accepted. In the lower court the jury returned a verdict for $6,000. Such a verdict was not in accord with the court’s instruction as to the measure of damages and is grossly in excess of the damages which were established by the evidence. In the face of the evidence, it appears that the jury either was confused as to the issues in the case or was motivated by prejudice against the defendant. In Rio Grande Oil Co. v. Pankey, 1937, 50 Ariz. 529, 73 P.2d 707, 711, this court ordered a new trial upon the ground of excessive damages. The court held: “The last proposition of law is that, where it appears from the record that damages have been awarded which are grossly in excess of the amount shown * * * by any reasonable theory of the evidence, it will be presumed that the verdict of the jury was actuated by passion and prejudice, and a new trial will be granted. The proposition of law as just stated is undoubtedly correct. Spain v. Griffith, 42 Ariz. 304, 25 P.2d 551.” From the holding in the Pan-key case, this defendant was entitled to a new trial on the ground that the verdict was grossly in excess of plaintiff’s damages as disclosed by the evidence, and the trial court so ordered. The sole question here is whether the defendant is entitled to a new trial on all the issues raised by the pleadings or on the issue of damages alone. The problem of the propriety of granting a new trial on the issue of damages alone is not a new one, and various solutions have been advanced. At the outset our pertinent statute, sec. 21-1310, A.C.A.1939, must be considered to wit: "New trial grantdd only as to error in judgment— Damages.—When a new trial is granted it shall only be a new trial of the question in respect to which the verdict or decision is found to be erroneous if separable; because the damages are excessive or inadequate, and for no- other reason, the verdict shall be set aside only in respect of damages, and shall stand in all other respects.” This court has considered this question on eight previous occasions. In four cases it deemed the issues separable and granted a new trial on the issue of damages only. In the other four cases it held that a trial on the issue of damages only would be prejudicial to one of the parties because the issues were not separable, and therefore remanded the cases to be tried de novo on all issues. The first two cases were Durazo v. Ayers, 1920, 21 Ariz. 373, 188 P. 868; and Atchison T. & S.F. Ry. Co. v. Gutierrez, 1926, 30 Ariz. 491, 249 P. 66, in which the court granted a new trial on the issue of dam ages alone because it believed the issues were separable. The next four cases were Southern Pacific Co. v. Gastelum, 1929, 36 Ariz. 106, 283 P. 719; L.C. James Motor Co. v. Wetmore, 1930, 36 Ariz. 382, 286 P. 180, 181; Davis v. Whitmore, 1937, 43 Ariz. 454, 32 P.2d 340; and Reay v. Beasley, 1937, 49 Ariz. 362, 66 P.2d 1043, in which the court refused to grant a new trial on the issue of damages alone. In three of the last mentioned cases the verdicts were grossly inadequate and the court reasoned that they may have been compromise verdicts. Taking that view, the court believed that the issue of liability had not been properly resolved and therefore ordered a new trial on all issues; holding in effect that the issues were inseparable. In the L. C. James Motor Co. v. Wetmore case, supra, the defendant made a motion for a new trial which was granted “as to the issues of damages only.” While the court did not say so, apparently the damages were excessive. A new trial was ordered on all issues on the ground that liability. was vigorously contested and the issues were inseparable. The last two cases on this point were Palmer v. Kelly, 1938, 52 Ariz. 98, 79 P.2d 344; and Kovacovich v. Phelps Dodge Co., 1945, 62 Ariz. 193, 156 P.2d 240, in which the court ordered a new trial on the issue of damages alone. In the Palmer case the plaintiff proved liability, but did not adequately prove his damages. In the Kovacovich case the defendant admitted its liability. While the decisions are somewhat in conflict the cases may be reconciled on the grounds that a new trial on the question of damages only will be granted when liability is not contested or has been clearly proved by the plaintiff so that the issues may be deemed separable; on the other hand when liability is contested and the issues are so inextricably entwined that a fair trial could not be given one of the parties on the issue of damages alone then a new trial will be ordered on all issues. In the instant case, under the court’s instruction the jury could not have found that the defendant was damaged in a sum greater than $425. The jury’s returning a verdict for thirteen times that amount, to wit $6,000, necessarily implies that they either were confused as to the true issues of the case or were motivated by passion against the defendant. We believe the correct rule to follow, under the facts of this case, to be the one laid down in Southern Pacific Co. v. Gastelum, supra, wherein this court said: “When liability is conceded or the evidence relative thereto undisputed, it is, of course, clear that the question of damages is separable and can be determined alone without injustice to the other party. The rule which should govern the granting of a retrial of the issue of damages alone is as well stated in Waucantuck Mills v. Magee Carpet Co., 225 Mass. 31, 113 N.E. 573, 574, as any we have found. There the court says: ‘It is only when the reason for setting aside the verdict relates solely to damages disassociated from every other contributing, related or vitiating cause that “the new trial shall be limited to the question of the amount of damages alone.” ” [36 Ariz. 106, 283 P. 725.] Here we hold the granting of a new trial on the issue of damages alone was error, as such a limited retrial would be prejudicial to the disfavor of the defendant. Judgment reversed and cause remanded for a new trial on all issues. UDALL, C. J., and STANFORD, PHELPS and LA PRADE, JJ., concur.

PHELPS, Justice. This, is an appeal from a judgment of the superior court of Maricopa County in favor of plaintiff-appellee and against defendants-appellants, from an order denying defendants’ motion for judgment notwithstanding the verdict and from an order denying defendants’ motion for a new trial. The parties will hereinafter be referred to as plaintiff and defendants. The facts are that on October 31, 1948, at about 6:15 p. 'm. plaintiff boarded a westbound bus at 15th Avenue and West Van Burén Street operated by defendant City of Phoenix and driven by defendant C. J. Clark. The bus was loaded to the extent that a number of passengers, including plaintiff, were compelled to stand in the aisle. After plaintiff paid his fare he took a position in the aisle immediately back of the driver holding on to an upright metal bar with his right hand. West Van Burén Street is a four-lane highway until it reaches 23rd Avenue. At that point the paved portion of the road is narrowed to a three-lane pavement which constitutes the traveled portion of the road. As the bus approached 23rd Avenue it was traveling on the lane just north of the center of the road and by going approximately straight ahead would travel upon the north lane of the three-lane pavement west of 23rd Avenue. Just as the bus crossed 23rd Avenue the driver observed that a car which had been traveling west on the north lane of the four-lane highway ran on to the unpaved portion of the road which just west of 23rd Avenue was full of holes. Upon observing the situation the bus immediately pulled over to the center or passing lane of traffic so that the car to his right could get on the north lane of traffic which it did. The car proceeded along the north lane 20 to 30 feet ahead of the bus as it continued on the center or passing lane. Ahead of the car to whom the bus driver had surrendered the right to the north lane there was another car also using the north lane. 24th Avenue runs south from Van Burén Street but does not extend north thereof. As the bus and the two cars on the north traffic lane approached 24th Avenue and West Van Burén Street the driver of the bus saw the leading car on the north lane suddenly and without warning turn on to the center lane of traffic and stop at a point where 24th Avenue intersects on the south with West Van Burén Street. When stopped this car was headed in a southwesterly direction completely blocking the center lane and a portion of the north lane. It was evident that the driver of the car intended to go south on 24th Avenue. The bus was 80 to 90 feet báck of the car when he saw the driver turn over on to the center lane of traffic and stop. The bus driver testified that eastbound traffic was heavy but it appeared to him that the car would be able to cross over on to South 24th Avenue without interference from the approaching eastbound traffic. It developed, however, that the driver of the car did not undertake to immediately cross to 24th Avenue. The bus driver further testified that as soon as he saw the car pull over on to his lane of traffic he took his foot off of the accelerator and began to fill the brakelines with air; that, at this time, he was traveling not over 25 nor less than 20 miles per hour; that he traveled 25 to 30 feet while he was filling the brakelines with air and drove 10 to 12 feet after the bralcelines were' filled before he actually applied the brakes; that he brought the bus to a stop 3 or 4 feet back of the car blocking his lane of traffic and that he probably swerved slightly to the left in bringing the bus to a stop because of the. closeness of the second car in the north lane of traffic. The second car had been compelled to stop, or did stop, because of the partial blocking of the north lane of traffic by the car which had attempted to turn south into 24th Avenue. The evidence disclosed that a motor vehicle driven at 25 miles per hour may be stopped within a distance of from 40 to 46 feet after application of the brakes and that it will travel approximately 27 feet during the reaction period of the average driver, that is the time elapsing between the will to act and the act itself. Thus a motor vehicle traveling 25 miles per hour may be brought to a stop approximately 65 to 73 feet from the point where the driver first decides to bring the vehicle to a stop. There is a slight conflict in the testimony offered by the plaintiff and the defendant relative to the distance within which such stop may be made but the variation is slight ranging from 6 to 10 feet. According to all the evidence the bus stopped suddenly with a slight jerk; that it was different from the ordinary stop of a bus; that it threw plaintiff around (either to the right or left) and against the coin box or against a bar or metal railing back of the driver. Either plaintiff’s hip or his back came in contact with one of these metal objects. Plaintiff claims his head also struck a metal bar back of the driver when he fell. A witness in front of whom he was standing stated positively, however, that his head did not strike anything. Other witnesses said they didn’t see it strike anything. Whether it did or not was a question of fact for the jury and is in nowise material to a disposition of this case. After the accident the bus driver had plaintiff placed on a bus coming into Phoenix, with instructions that he be taken to the supervisor’s office. Upon arriving at that office he was conveyed to St. Monica’s Hospital where he remained for 11 days, during a part of which period he was considered by physicians in attendance to be in a critical condition. Defendants have presented 12 assignments of error for our consideration. Assignment of error No. 1 is based primarily upon the court’s refusal to instruct a verdict for the defendant. We are of the opinion that the court correctly denied defendant’s motion for an instructed verdict and for judgment notwithstanding the verdict for the reason that the evidence, taken in whatever light it may be viewed, is of such character that reasonable men may draw different inferences from it and reach different conclusions as to whether or not the bus driver exercised that degree of care the law required of him under the circumstances. The question of negligence was therefore properly submitted to the jury. Assignment of error No. 2 is directed at the refusal of the court to permit the witness James W. Salmon to answer the following question: “Did the bus driver do anything unnecessary under the circumstances then and there existing, in the manner in which he stopped the bus, as you saw it when you looked out the windshield?” The substance of the question asked was whether or not defendant Clark was negligent in bringing the bus to a stop at the time and place of the accident. This testimony was offered as opinion evidence based upon his expert knowledge as an experienced truck and bus driver. Even if it were conceded that expert testimony might be admissible under certain circumstances, in this case, however, the witness was not sufficiently qualified by counsel to testify as an expert. The sum total ■of his testimony was that he had driven a bus for the Navy and for a small bus company at McAllister. Whether he was employed for a day, a week or a year does not appear. It appears that he had also driven a truck but the extent of this experience is still more indefinite. The ruling of the court excluding his testimony was therefore correct. For convenience and brevity we will consider assignments of error Nos. 3, 4, 5 and 8 together. These, assignments are directed at the ruling of the court in admitting evidence over the objections of defendants. Upon the theory that it tended to show plaintiff’s earning capacity the trial court admitted in evidence the testimony of plaintiff giving a rather complete history of his life, beginning with his royal birth 51 years ago; his exile from India at the age of 13; his later migration to America; his representation of Mahatma Gandhi at some time during the life of the latter; his organization of the Indian Welfare League in the United States; his continuous occupancy of the office of president of that League since its organization, part of the time against .his personal- wishes; his comparison in importance with the Prince of Wales; his acquaintance with at least two presidents of the United States and his interviews with them; his acquaintance with United States Senators and other high officials and his appearance before Congressional committees on behalf of his native country in an effort to secure the repeal of the Indian Exclusion Act; its successful achievement; his efforts in behalf of allied powers during World War II in which he claims to have been responsible for getting 40,000 Indian soldiers on the Burma Road practically over night; and numerous other incidents and events of like character. The related experiences of plaintiff are, to say the least, most interesting but until they are, by competent evidence, translated into some measure of monetary value they can hardly form a predicate for the recovery of damages for loss of earning capacity proximately resulting from personal injury suffered -by him. The measure of damages for loss of earning capacity is the difference between what an injured person was capable of earning before the accident and injury and what he is capable of earning after the injury. Kirk v. Seattle Electric Co., 58 Wash, 283, 108 P. 604, 31 L.R.A.,N.S., 991. No evidence was offered by plaintiff to show either of the above predicates, upon which to base a. judgment for damages. True, it is not necessary to show that the injured person had been engaged in gainful employment before the accident. For instance a housewife when injured by the negligence of another may recover damages for loss of earning capacity although she had never received any compensation for household work, but the value of such services is capable of being ascertained and the court in the case of Wilcox v. Sway, 69 Cal.App.2d 560, 160 P.2d 154, 160, cited by appellee said "* * evidence of what persons in a similar vocation commonly earn is admissible * *." Such evidence, however, is only one of the factors to be considered by the jury in ascertaining the loss of earning capacity as hereinafter pointed out in Shaw v. Pacific Supply Co-Operative, 166 Or. 508, 113 P.2d 627. It is also true that earning capacity and past earnings are not always synonymous. A person highly trained in some field of activity such as a civil, mining or electrical engineer may not be able to procure employment and forced to accept work as an ordinary laborer. In such cases his earnings as a laborer would not be the measure of his earning capacity. Neither is the amount earned by an injured person prior to the injury to be treated as the sole measure of his earning capacity although it is a proper matter to be considered. Other elements must be taken into consideration in determining the future earning capacity of such person. The cases cited by appellee do not support his claim that the evidence above related furnishes a basis for the recovery of damages. In the case of Shaw v. Pacific Supply Co-Operative, supra, the court properly made a distinction between what one has earned in the past and his capacity to earn in the future but the court said his past earnings were a proper consideration for the jury in arriving at his earning capacity but that the jury must also consider his age, his experience, his expectancy of life and his habits of industry. The court further said the cost of hiring some one to do his work after the injury was also a proper matter to consider in determining his future earning capacity. The plaintiff in that case was a farmer and the evidence showed that his annual net income was approximately $3000 a year. Neither does Dowd v. Morris, 133 Wash. 215, 233 P. 320, support plaintiff's claim. In that case the plaintiff had been more or less steadily employed up to within two years of the injury (although he was suffering from a former injury which had brought on epilepsy); that within the two years immediately preceding the accident he had done odd jobs for which he was compensated. At the time of his injury he was on his way to take employment. Thus again a monetary basis is furnished the court upon which to predicate a judgment for damages for loss of earning capacity. In the case of Ostertag v. Bethelehem Shipbuilding Corporation, 65 Cal.App.2d 795, 151 P.2d 647 (cited by plaintiff), the plaintiff in that case was an apprentice electrician earning $3.75 per day at the time of his injury and $6.00 per day at the date of trial. The court pointed out that in war periods durjng labor shortages plaintiff might be able to procure employment temporarily, at hijjh wages when in fact he was suffering from a handicap that would materially diminish his- earning power in normal times, apd that it was his ability to earn that furnished the basis for a finding of earning capacity. There plaintiff’s ability had been translated into a monetary value. He had actually been earning wages; he was an apprentice electrician and naturally had the prospect of advancing to the classification of a journeyman which would in itself enhance his earning power. There is no evidence in the record in the instant case which tends to show the value of plaintiff’s service in the past or to show his training in any field of endeavor, industrial, professional or otherwise, which could form the basis for establishing earning capacity. In personal injury actions unless there is shown to be a diminished earning capacity measured in terms of dollars and cents flowing from such injuries there can be no recovery based upon this particular element of damages. Such damages are compensatory in nature. Compensation is presumed to be commensurate withthe loss sustained. If no loss of earning capacity is shown no compensation can be awarded for it. The testimony of the witness Machell to the effect that he was writing a biography of the life of plaintiff which he proposed to publish and sell, and in' the event it was published plaintiff was to share in the profits of the venture, falls in the category of speculation. In the first place the book that is being written by the witness may never be published. In the second place if it should be published it is wholly speculative whether it will ever produce a profit. There is a further reason why this latter evidence was inadmissible as pointed out by appellant. The complaint contains no allegation upon which such special damages could be predicated. We therefore hold that the court committed reversible error in admitting the above testimony in evidence and permitting it to remain without further evidence tending to show its bearing on plaintiff’s -past or future earning capacity. Of course plaintiff would be entitled to recover for any pain or suffering shown to have resulted from his injuries. We are simply holding that the evidence admitted did not prove loss of earning capacity and that it was error to admit it for the consideration of the jury without making some showing of its bearing on his ability to earn. Assignment of error No. 7 is based upon the alleged misconduct of the plaintiff while on the witness stand in attempting to exhibit a scrap book containing immaterial matter, to the jury. In assignment No. 9 it is claimed that counsel for plaintiff was guilty of misconduct in cross-examining defendant Clark by dis closing to the jury the nature of a discussion of questions of law in chambers and in the absence of the jury. We believe either occurrence would have warranted the court in granting a mistrial. On the other hand we do not believe that either occurrence tended to prejudice defendants’ case and therefore hold that it was not an abuse of discretion for the court to deny a mistrial. Consequently it was not reversible error. In the first instance the witness simply offered to present to the jury for their examination something not in evidence and which could under no circumstances have been admitted in evidence. The jury had no opportunity to examine it and therefore gained no information from it. In the second place counsel’s reference in his question to “time reaction” of a driver of a motor vehicle in the operation of bringing it to a stop was of minor significance. Evidence was later received in open court concerning the matter. Assignment of error No. 10 is directed at the instruction of the court giving a rescript of sections 66-101 and 66-109, A.C.A.1939, relating, respectively, to the speed of motor vehicles upon public highways and the requirement that such motor vehicles upon following another upon a public highway must not be closer than is reasonable and prudent having due regard to the speed of such vehicle and traffic upon, and condition of, the highway. As pointed out above the specific act of negligence alleged and relied upon by plaintiff was that the driver of the bus “ * * * negligently and suddenly and violently stopped the bus with a jerk; that the jerking and stopping of the bus threw plaintiff off his balance and caused other passengers on said bus to fall against him, and that as a result thereof plaintiff struck his head, neck and back against various parts of the interior of the bus and particularly a metal bar and the coin box in the bus, with a great force and violence.” We think the giving of these instructions constituted reversible error., There was no allegation in the complaint either that the bus was going at an excessive rate of speed under the circumstances or that it followed another vehicle too closely which proximately resulted in an injury to plaintiff. Neither was there any evidence of excessive speed by the bus nor was there any reliance upon any testimony that the bus followed another car too closely. The whole case is predicated upon the proposition that the sudden stopping of the bus was negligent, in that it was unnecessary for the reason, it is claimed, the bus driver saw the car that blocked the center lane in which he was driving in sufficient time to have stopped the bus in the usual manner without any jerk or danger to his passengers. The issue was clear cut as formed by the pleadings, therefore the question of excessive speed or following another car too closely were not issues in the case and in nowise related to the specific issue to be determined by the jury. The plaintiff is bound by his pleading. The court must limit its instructions to the issues therein presented. It is universally held that instructions upon the law of a case must have some application to the facts. In City of Phoenix v. Green, 49 Ariz. 376, 66 P.2d 1041, 1042, the plaintiff had relied upon four specific grounds of negligence for recovery, as follows: (a) running the traction car at a negligently rapid rate of speed, (b) without stopping it at the street crossing, (c) omitting to give any warning of the approach of the car, and (d) failing to give the plaintiff the right of way. The court in so far as it is here material instructed the jury as follows: "`It was the duty of the motorman in charge of the south bound car in the testimony referred to, to operate said car at a reasonable rate of speed, to keep a reasonable careful lookout for persons upon the track in front of him or so near the track as to be in danger of being struck by the said street car and to have his car under reasonable control and as he approached the intersection, to bring the street car to a full stop and to exercise ordinary care as he approached and crossed over the intersection, and to so operate his street car as to avoid colliding with persons lawfully using or vehicles lawfully upon the highway or within the intersection involved herein. * * *'" The court held that by incorporating in the instruction “to keep a reasonable careful lookout for persons upon the track in front of him or so near the track as to be in danger of being struck by the said street car’’ constituted reversible error for the reason that it was without the issues as made by the pleadings. The court further said: “In this case, plaintiff chose to rely on four specific acts of negligence as being proximate causes of the collision. He could not, therefore, recover upon the proof of some other act of negligence not included in the four which he pleaded. He did not plead that the motorman failed to keep a reasonably careful lookout or to keep his car under reasonable control. * * “ * * * The instruction was not only unwarranted by the pleadings but was necessarily prejudicial, for the jury might have reached the conclusion from the evidence on behalf of defendant’s witnesses that the motorman was -not guilty of any of the specific acts of negligence set up in plaintiff’s complaint, but have inferred from other evidence in the case that he failed to keep a proper lookout, or to keep his car under reasonable control. * * *» In the case of Butane Corporation v. Kirby, 66 Ariz. 272, 187 P.2d 325, 331, in which the court instructed upon abstract questions of law not within the pleadings, the court said: “An instruction not based upon the evidence in the case is misleading and calculated to induce the jury to suppose that such a state of facts, in the opinion of the court, is possible and may be considered by them.” And again: “ ‘The scope of an instruction in a particular case, whether civil or criminal, is to be determined not alone by the pleadings therein, but also by the evidence in support of the issues; and even though an issue is raised by the pleadings, it is not proper to give an instruction thereon where there is no basis for it in the evidence. An instruction not based on the evidence is erroneous in that it introduces before the jury facts not presented thereby, and is well calculated to induce them to suppose that such state of facts in the opinion of the court is possible under the evidence and may be considered by them. * * * ’ ” the latter being a quotation from 53 Am.Jur., Trial, Sec. 579. The rules covering instructions on negligence, laid down in the cases cited above should be carefully observed by the court in a retrial of this case. It is unnecessary to discuss the remaining assignments of error. The case must be reversed and remanded for a new trial and it is so ordered. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concurring.

FRED C. STRUCKMEYER, Superior Court Judge. This is an appeal from an order of the Superior Court of Maricopa County dismissing appellant’s complaint, wherein he sought a declaratory judgment to adjudge that the price-fixing provisions of the Barber Act, Art. 1, ch. 67, A.C.A.1939, were unconstitutional. As incidental to the main cause of action, plaintiff also asked for an injunction restraining the enforcement of these price-fixing provisions. In his com plaint appellant alleged that he has been for many years a barber duly licensed under the laws of the state of Arizona; that by authority of certain acts of the legislature hereinafter referred to-, the State Board of Barber Examiners established within the city of Douglas, Arizona, a minimum price for haircuts of one dollar; that the city of Douglas is adjacent to the Republic of Mexico, wherein prices of less than one dollar for haircuts prevail; that many residents of Douglas patronize the barber shops in Mexico- by reason of the price differential; and that appellant’s business has decreased and his means of livelihood is threatened. Additional allegations were to the effect that not to accede to the price-fixing regulations subjected him to certain penalties including criminal prosecution and loss of license. Appellant attacked those statutes and portions of statutes dealing with price-fixing as being .unconstitutional and void. The principal section of the Act involved is 67-121, A.C.A.1939, providing as follows: “67-121. Unfair trade practices.—(a) The board shall have power to- establish minimum prices to be charged for bartering, subject to the conditions hereinafter prescribed. “(b) Upon receipt of an application and agreement signed by not less than seventy-five (75) per cent of the registered barbers in any district, to establish minimum prices for bartering therein, the board shall set a hearing. Notice of the date and place of such hearing shall be given by the secretary, by registered mail, to every registered barber in such district not less than ten (10) days prior thereto. The board shall, prior to the hearing, investigate the conditions in such district. At the hearing, any barber or other person affected by the proposed agreement may testify or present arguments. After the hearing and investigation, the board may approve or disapprove the agreement as submitted or recommend such changes therein as it may deem proper, including a change of the boundaries of the district, and shall issue an appropriate order. Thereafter, no barber, hair cutter, or apprentice in the district shall charge or collect any price less than that ordered by the board for any bartering work. “(c) The board, upon its own initiative or upon application of seventy-five (75) per cent of the registered barbers affected, may o-rder a new investigation and hearing regarding the minimum prices theretofore established for any district. Such heaifing, and any order issued pursuant thereto, shall be subject to the provisions of this section. “(d) In establishing minimum prices for any district, the board shall consider only: 1. reasonableness of the proposed prices; 2. local conditions affecting the relation of the bartering profession to public health and safety; 3. minimum prices required to provide sanitary services and appliances, necessary to minimize danger to public health, and, 4. costs necessarily incurred in such district in maintaining a barber shop in a healthful and. sanitary condition. “(e) In this act, unless the context otherwise requires, ‘district’ .means any city, town, or village, or any clearly defined, contiguous portion thereof or territory in addition thereto, in which two (2) or more barber shops are located.” Appellant has submitted six propositions of law in support of the contention of unconstitutionality ; the first and, in our opinion, the crucial one being that the fixing of minimum prices for barbering services has no reasonable or substantial relation to public health, safety, or the general welfare, and hence, the acts of the legislature providing for such price-fixing violate Article 2, Section 4, of the Arizona Constitution, and Article 14 of the Constitution of the United States. Article 2 of the Constitution of the state of Arizona is what is commonly known in state constitutions as a “Declaration of Rights”. Section 4 thereof provides, “No person shall be deprived of life, liberty, or property without due process of law.” This, of course, is the corollary to that portion of the Fourteenth Amendment to the Constitution of the United States, providing, “* * * nor shall any State deprive any person of life, liberty, or property, without due process of law; * * It should be immediately stated that there can be no question as to the right of the state to invoke the police power to regulate the fixing of minimum wages for personal services under certain conditions. This was finally and conclusively adjudicated in a case upholding the validity of a statute of the state of Washington establishing minimum wages for women. West Coast Hotel Co. v. Parrish, 1937, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330. However, it does not suggest that the right of a state to impose limitations on the power to contract is unrestricted or that the constitutional safeguards protecting the individual have otherwise been abandoned. We conceive, therefore, the precise question for determination is: Under what circumstances may a state or its agencies fix minimum wages or prices for personal services? The answer to this requires an examination of the extent of the constitutional exercise of the police power by a state. Of necessity it is incapable of exact definition, as demonstrated by the following statements wherein the attempt is made to demonstrate the concept: ' “The police (power) of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others.” II Cooley’s Constitutional Limitations, (8th ed.), 1223. “ * * * The measure of police power must square with the measure of public necessity. * * * ” Leonard v. State, 100 Ohio St. 456, 127 N.E. 464, 465. Broad as this power may be, there is at least one limitation which this court has repeatedly recognized and simply stated to be: “A law enacted in the exercise of the police power must, in fact, be a police law.” American Federation of Labor v. American S. & D. Co., 67 Ariz. 20, 189 P.2d 912, 918, affirmed 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222; State v. Borah, 51 Ariz. 318, 76 P.2d 757, 115 A.L.R. 254; State v. Childs, 32 Ariz. 222, 257 P. 366, 54 A.L.R. 736. Other courts have stated the rationale thereby supplying the limitation. We quote: “The police power is founded in public necessity, and only public necessity can justify its exercise. The result of its operation is naturally, in most instances, the abridgement of private rights. Private rights are never to be sacrificed to a greater extent than necessary. Therefore, the return for their sacrifice through the exercise of the police power should be the attainment of some public object of sufficient necessity and importance to justly warrant the exertion of the power.” Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 515. and, “ ‘.The fundamental rule, as shown above, is that police regulations must be reasonable. It is generally stated that the means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation. The benefits to society, reasonably to be expected, must not be out of proportion to the restraint imposed and the detriment inflicted on citizens by such restraint. In determining the constitutionality of a statute as measured by the police power, an essential inquiry is whether it is reasonably designed to accomplish a purpose falling within the scope of the police power. * * * ’ ” Myers v. City of Defiance, 67 Ohio App. 159, 36 N.E.2d 162, 167. In order to sustain legislative interference with the liberties of the individual, there must be an obvious and real connection between the actual provisions of a police regulation and its avowed purpose. This principle is accepted by all the courts. Atchison, T. & S.F. Ry. Co. v. State, 33 Ariz. 440, 265 P. 602, 58 A.L.R. 563. From the foregoing it is apparent that a statute establishing or authorizing the establishment of minimum prices or wages can only be sustained on the theory that it tends in some reasonable manner to secure the public health, safety, or general welfare. With this principle the appellees are in accord but they urge that: “ * * * where an enactment bears any reasonable relationship to the end sought the courts may not substitute their judgment for the judgment of the legislature.” And again stating antithetically: “Hence the rule which is of universal acceptance that the courts will acquiesce in the legislative determination of all matters of fact unless it is clearly erroneous, arbitrary and wholly unwarranted.” With these statements of the law we are in accord. Our difficulty is in finding “any reasonable relationship to the end sought,” that is, the relationship between the minimum price for barbering services and sanitation in the barbering profession. Appellees have failed to indicate-—to establish any logical relationship whatsoever—the basis for their assumption that the acts in question are not “arbitrary and wholly unwarranted,” nor have they pointed out any possible facts which if assumed to be true would place them within the purview of the operation of this rule, nor have we been able to discover any from the reported cases or otherwise conceive of any. That these statutes cannot be upheld on the basis of “general welfare” has been amply demonstrated. “We may thus fairly conclude that the term 'general welfare’ means just what it literally implies, namely, that legislation to be justified and supported by that term must at least promote the welfare of the general public as contrasted with that of a small percentage or insignificant numerical proportion of the citizenry. This conclusion is supported by every case on that subject which we have cited and many others we have read.” Ex parte Kazas, 22 Cal.App.2d 161, 70 P.2d 962, 968. As indicated, we are unable to find any relationship, either in logic or common sense, between the public health and safety and price-fixing in the barbering profession. In this conclusion we are supported by other courts: “ * * * The amount of his [barber’s] gross or net income is unrelated to sanitation. Cleanliness and antisepsis are inexpensive. Limited amounts of forty percent formaldehyde, two percent carbolic acid solution and soap are the only disinfectants that need be purchased under the Board’s present rules. Laundry and the labor of scrubbing seem to be the only other necessary elements of cleanliness. It is within the means of any barber to have a sanitary shop and, it might be suggested, he is not likely to have much business if it is unsanitary. Moreover, under the Act of 1933 the Board has adequate authority to enforce cleanliness in barber shops and to prevent diseased barbers from plying their trade. They are also subject to all reasonable regulations of state and local boards of health. The Act of 1941 therefore was unnecessary to- conserve the health of the general public. The declarations in Section 1, with respect to public health and sanitation, seem to us to have no substantial basis in fact and may have been inserted in an effort to lend color of constitutionality to a law that could not otherwise be sustained.” State Board of Barber Examiners v. Cloud, 220 Ind. 552, 44 N.E.2d 972, 977. Also see Revne v. Trade Commission, Utah, 192 P.2d 563, 3 A.L.R.2d 169. In State Board of Barber Examiners v. Cloud, supra, the decided cases on this subject have been collated. Distinctions have been drawn between the various statutes with which we have no concern in this decision. In most instances where statutes have been upheld validating the right to fix minimum prices for barbering services, there have been vigorous dissenting opinions bottomed primarily on the principle we have enunciated here. We are satisfied to rest this opinion on the proposition that individual liberties can be sacrificed only upon a clear showing of a benefit to the public commensurate with the loss of individual rights. “If the Act in question is valid, then the Legislature can directly, or through a board, fix the fees that physicians and dentists may charge for their services; the prices that hotels, restaurants and lunch counters may charge for food; the prices of meats, packing house and canning factory products; and so on ad infinitum until the liberty of the individual and the right to contract is destroyed. As stated by the Supreme Court of the United States in Lochner v. New York, supra [198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, 3 Ann.Cas. 1133]: “ Tt must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no- dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a .mere pretext,—become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint.’ ” State v. Greeson, 174 Tenn. 178, 124 S.W.2d 253, 258. We, therefore, hold that Section 67-121 and all other provisions of the Code relating to price-fixing for barbers are unconstitutional and in violation of Article 2, Section 4, of the state Constitution, and the regulation and order establishing minimum prices for barbering is void. Without regard to the other questions presented we are of the opinion that the orders of the trial court granting the motion to dismiss and dismissing appellant’s complaint must be reversed. The judgment is reversed, and the - cause remanded, with directions that the order of dismissal be vacated and the motion to dismiss- overruled, and that further proceedings be had not in conflict with this opinion. PHELPS, DE CONCINI and LAPRADE, JJ., and W. C. TRUMAN, Superior Court Judge, concur. Chief Justice LEVI S. UDALL and Justice R. C. STANFORD,-being disqualified, the Honorable FRED C. STRUCKMEYER, Jr., Judge of Superior Court of Maricopa County, and the Honorable W. C. TRUMAN, Judge of the Superior Court of Pinal County, were called to. sit in their stead.

STANFORD, Justice. This is an appeal from a judgment entered on a directed verdict of the superior court against appellants, and from the court’s order denying appellants’ motion to set aside the judgment and motion -for a new trial. Appellants, plaintiffs in the action, owned and conducted a service station at Camp Verde, Arizona, and used products of the General Petroleum Corporation delivered to them by its agent, appellee W. F. Simpson, who had a wholesale agent’s contract with the appellee corporation to deliver and distribute its products in that territory. In the latter part of 1947, Simpson had a young man working for him by the name of Robert Bland. For the purpose of selling to appellants, one of the products of the appellee corporation known as stove gas, Simpson installed in the back, or store room of the service station, a certain container. The container belonged to the appellee corporation. In the said store room, at a point about 18 feet from the stove gas container, was an automatic Butane hot water heater with a pilot light which burned continuously. The container of stove gas was filled by appellee Simpson or his employee Bland, by driving the truck near the door of the store room, then filling a 5 gallon can at the truck and carrying it into the store room and pouring the contents into the container through a square funnel capable of holding several gallons. The funnel was supported by being placed in the bunghole of the container. Not only had appellant Barker complained to Simpson, but he had often warned Bland of the danger of overflowing the stove gas and letting it run out upon the floor because of the fire that might be ignited by the pilot light in the hot water heater. On the morning of June 3, 1948, Bland made delivery of gasoline and stove gas to the service station of these appellants between the hours of 9:30 and 10:00. He filled the storage tanks in front of the station with gasoline, then drove his truck near the stove gas container and proceeded to fill it. Appellant Barker, who was serving customers at the front of his station, went' •into the store room for some oil, and found •a quantity of stove gas on the floor and Bland was attempting to drain some of the •excess out of the barrel. Barker severely criticized Bland and while he was returning to the front of the station, there was a flash and a fire had commenced, in consequence of which the storeroom and station were wholly consumed by fire. Appellants also suffered damages by the 'loss of their grocery store, the stock therein, the equipment and fixtures, their gasoline pumps and stock and equipment in their service station, a trailer court and other things. Action was brought against the corporation and Simpson, alleging negligence, on the theory that they were principal and agent. After appellants had introduced their evidence in the cause and rested their case, counsel for the appellees moved for an instructed verdict. Motion was made for the corporation on the ground that there was no evidence showing any relationship between the corporation and Bland which would hold the corporation responsible for the actions of Bland, and likewise that there was shown to be no relationship between the corporation and Simpson which would render the corporation responsible for any negligence on his part, and on the further grounds that there was shown to be no negligence on the part of the corporation. The motion was made in behalf of Simpson on the ground that there was no negligence shown on the part of any person; neither the appellee Simpson nor any one for whom he was responsible. From an order of the court granting the motions, a verdict rendered accordingly and judgment entered thereon, this appeal is taken. The appellants have submitted the following four assignments of error: (1) “The court erred in directing a verdict for the defendants, in denying plaintiffs’ motion to set aside directed verdict and judgment, and in failing to grant a new trial for the reason that the evidence disclosed that plaintiffs’ losses resulted from negligence of their servant and agent while acting in the due course of his employment. (2) “The court erred in failing to submit as a question of fact to the jury the issue of negligence since the inferences and conclusions to be drawn from the facts were for the jury and not for the court. (3) “The court erred in rendering a judgment in favor of defendants and against plaintiffs, and the judgment is clearly contrary to the facts and the law. (4) “If, as a matter of law, it should be held that the allegation of the first cause of action of the amended complaint does not sufficiently set out the act of negligence from which the fire resulted, causing damage to plaintiffs, then the court erred in striking the third cause of action of said amended complaint, which specifically refers to the spilling of the gasoline product.” The appellee- corporation has submitted the following cross assignment of error': “The court erred in admitting in evidence a copy of the written contract between defendants General Petroleum and Simpson with paragraphs 5 and 8 deleted and without also requiring plaintiffs to offer in evidence ‘Company’s Wholesale Agent’s Manual No. M-3’, incorporated into the contract by reference, for the reason that the relationship created by the contract between the parties, their respective rights, obligations and liabilities thereunder each to the other and to strangers could be determined only by reading the instrument and the one incorporated as a part of it • by reference together as a whole.” Paragraphs 5 and 8 were deleted because they referred to indemnity insurance, something which could not be submitted to the jury as part of plaintiffs’ case, but which was before the court. There are two issues presented by this appeal: (1) was B'land guilty of actionable negligence, and (2) if so, are the appellees, or either of them liable for such negligence ? The testimony in this case shows that on June 3, 1948, there existed between the two appellees a contract known as a Wholesale Agent’s Contract, by the terms, of which Simpson was appointed a wholesale agent for the appellee corporation “for the distribution and sale of only those of Company’s products distributed and sold under its brands” for the Verde-Valley territory including Camp Verde.. As we proceed with a discussion of the issues herein, we shall take it for granted that, under this court’s opinions, motions made by these appellees are, regarded “ * * * as admitting the truth of whatever competent evidence the opposing party had introduced including the reasonable inferences to be drawn therefrom, and it is only where the evidence is insufficient to support a verdict, or where it is so weak that upon a motion for a new trial after verdict the court would feel constrained to set it aside, that the court is justified in directing a verdict. Arizona Binghampton Copper Co. v. Dickson, 22 Ariz. 163, 195 P. 538, 44 A.L.R. 881; Dieterle v. Yellow Cab Co., 34 Cal.App.2d 97, 93 P.2d 171.” Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201, 204. As shown in the above quoted cross assignment, it is the position of the appellee corporation that this contract was erroneously admitted without the Wholesale Agent’s Manual being attached there-to. With this contention we concur. Provision No. 3 of the contract, specifically provided that the manual was made a part of the contract, which was offered in evidence for the purpose of showing the relationship that existed between the corporation and Simpson, and without considering the provisions of the manual with the contract, a full picture of that relationship is impossible. Objection was made by the corporation at the time the contract was offered, to its admission without the inclusion of the manual. We hold however that under the provisions of section 3, the admission of the contract into evidence had the effect of carrying with it the manual as an integral part thereof. Our first consideration will be - directed toward the relationship between Simpson and the corporation to determine the responsibility of the corporation and Simpson for the alleged acts of negligence on the part of Bland. Without considering the material in the contract, the uncontradicted testimony in the trial court shows that Simpson was a wholesale agent of the corporation and that he made deliveries of products of the corporation, which products remained the property of the corporation until delivered and title was passed to the purchasers, that the purchasers were billed for such deliveries by the corporation and that they made payment either directly to the corporation or to Simpson who then remitted the entire amount to the corporation without making deduction, the corporation then paying Simpson’s commission to him for the transaction. Additional evidence of record shows that appellant Barker was one of many dealers receiving deliveries from Simpson. These dealers purchased the products delivered by Simpson, pursuant to a contract between them and the corporation. There is no evidence that Simpson was ever a party to one of these contracts, and in fact his name appears no where on the contract between Barker and the corporation, either as agent or otherwise. Testimony also clearly shows that Simpson often received oral instructions from members of the corporation staff pertaining to the sale and delivery of the corporation’s products, which was his duty exclusively, as well as to plant operations and all phases of the business in general. Without further discussion, we think it clear that Simpson’s position was not that of an independent contractor, as argued by the corporation, but he was clearly an agent of the corporation, performing duties outlined by the corporation. We quote from our case of Swansea Lease, Inc. v. Molloy, 20 Ariz. 531, 183 P. 740, 743: “The true test of a contractor would seem to be that he renders service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. The one indispensable element to his char acter as an independent contractor is that he must have contracted to do a specified work, and have the right to control the mode and manner of doing it. (Citing cases) “An independent contractor is not in any legal sense a servant of his employer, but is one exercising an independent employment under a contract to do certain work by his own method, without the suggestion or the control of his employer, except as to the product or result of the work. (Citing cases.)” As pointed out, the trial court erred in failing to admit the manual as part of the contract. In view of the provision of the contract admitted into evidence, which made the manual a part of the contract, we shall consider the material in the manual as admitted in and a part of the evidence, and briefly discuss some of the provisions thereof as well as the contract. In addition to incorporating the provisions of the manual, the contract also reserved the right in the corporation to supplement, change, or modify the provisions of the said manual upon .giving Simpson ten days’ notice, after which he would be bound by any such additions. The contract also provided that Simpson should furnish the corporation with a complete list of all men employed by him, and should carry compensation insurance on all such employees with a company which was satisfactory to the corporation. In máking such provisions, the corporation clearly recognized the necessity for Simpson’s hiring men to assist in his work,, and made allowances for such employment. The manual provided that Simpson should make all deliveries on a cash basis unless specifically otherwise authorized by the corporation, and that all deliveries were to be made to customers who were parties to one of the above mentioned dealers contracts with the corporation, and that the corporation was to accept or reject such Contracts as it saw fit. Very closely associated with the facts in the present case is the case of Gulf Refining Co. v. Brown, 4 Cir., 93 F.2d 870, 873, 116 A.L.R. 449, in which the defendant Refining Co. was held liable for the death of the plaintiff’s husband, which resulted from the negligence of one of the sub-agents, employed by defendant’s distributor-agent, one Ford, in selling to the deceased, as kerosene, a mixture of gasoline and kerosene. In that case, as here, the defendant Refining Co. contended that Ford was an independent contractor and that the subagent was an employee of such independent contractor. The contract between Ford and the defendant Refining Co. was very similar to the one herein, between appellee Simpson and the appellee corporation. In analyzing the relationship between the defendant and Ford, the court in the Gulf case above said: “When all of the facts are considered, it is seen that Ford’s control over the business was limited indeed and that it was well-nigh within the power of the company as a practical matter to dictate his every action. The company owned the goods, fixed the price, limited him to cash sales or credit terms which it imposed, owned and controlled the disposition of the proceeds of sales, and required the use of signs indicating that the station, the goods, and the trucks (contrary to' fact) were its own. It was a consignment business so arranged as to leave little or no discretion to the consignee in'the sale of the goods. His province was merely to find customers, make- deliveries, and collect the money. There was some leeway in the choice and management of employees and in the amount of their salaries which the distributor was required to pay out of his commissions. But even here the company was the dominant figure. It stipulated that the distributor carry workman’s compensation insurance and exacted an agreement of indemnity from the distributor as to the delicts of his employees, promises quite unnecessary if it had no responsibility for. their acts. Finally it forbade the assignment of the contract and reserved the right to terminate it at will at any time on ten days’ notice and thus completely put an end to the distributor’s opportunity to profit by the connection. “Some conflict of authority has arisen as to whether the distributor, under such a contract, is an employee of the oil company, or an independent contractor for whose delicts the company has no responsibility. Some courts have thought that the oil company has no right to supervise deliveries, select the number and character of the vehicles, choose the employees engaged in delivery, fix their wages, or control the manner in which delivery should be made; and hence have concluded that the relationship of independent contractor was created. (Citing cases.) But the decided weight of authority is to the contrary. Facts like those pointed out above as indicating a very complete control by the company of its products during the process of sale and delivery have been found determinative, and it has been decided that the oil company has not only held out the distributor as its employee, but has controlled and directed him in important particulars and in practical effect has retained power to subject him in the course of the business to its will and direction in any respect in which it might choose to do so. (Citing cases.)” And further, regarding the liability of the defendant Refining Co. for the negligence of the subagent, employed by the distributor Ford in the conduct of the business: “It is suggested, however, in accordance with a few of the decisions, that even if the distributor in this case were an agent or employee of the oil company, it does not follow that the company was responsible for the negligence of the helpers and employees whom he was expressly au thorized under the contract to appoint to assist in the delivery of the goods and to manage and control at his own risk. “It is clear that a principal may not escape liability to third persons for the torts of a subagent, appointed by his agent with his consent, merely by entering into a contract with his agent under which the latter assumes sole responsibility for the subagent’s conduct. The responsibility of the principal to third persons imposed by law may not be so lightly disposed of. The important question in every case is whether the agent is in truth an independent contractor or the servant of the principal. If the latter relationship is found to exist and the acts to be performed are in the course of the business upon which the servant is employed, the liability of the principal is the same whether they are performed by the servant, or by an assistant duly appointed. Any other conclusion would effectually nullify the responsibility of the principal for many of the tortious acts that are committed under conditions of modern life. In the cited cases in which the relationship of independent contractor was thought to exist, the oil company was held responsible not only for the conduct of the distributor, but also for the conduct of his assistants or servants. (Citing cases.)” To reiterate, we are of the opinion that the evidence is clear and unequivocal to the effect that Simpson was nothing more than an agent of the corporation, and was in no sense an independent contractor. We next take up the discussion of the actions of Bland in connection with the damage sustained by appellant Barker, and the liability therefor. Appellees contend that there was no actionable negligence shown on the part of Bland, and that if such were the case, there was no-proximate cause shown between such negligence and the resulting damage. The testimony clearly shows that Bland had been many times warned of the danger of overflowing the container used for stove gas and it is our view that plaintiff has definitely shown actionable negligence in the case. We quote from Hughes v. Shanafelt, Okl.Sup., 218 P.2d 350, 352: "The elements of actionable negligence have been pointed out numerous times. Negligence may consist of the failure to use reasonable care, and what is or is not negligence is a question for the jury, especially where the standard or such duty is not fixed but variable. City of Stilwell v. Bone, 195 Okl. 325, 157 P.2d 459; A & A Cab Operating Co. v. Drake, 200 Okl. 229, 192 P.2d 1004." Appellees’ next contention is that no act on the part of the truck driver Bland could be considered the proximate cause of plaintiffs’ damage. We quote from Chapman v. Salazar, 40 Ariz. 215, 11 P.2d 613, 615: “* * * the proximate cause of an injury is that which, in a natural and continuous sequence, un broken by any new cause, produces an injury, and without which the injury would not have occurred.” While several cases have been submitted on this subject by the appellant we think it unnecessary to dwell on them. It is our opinion that while this is a case where more than one cause concurred to produce the injury, such would not have resulted had it not been for the negligence of Bland, after repeated requests over a period of six months as the record shows, to be .careful and not allow the stove gas to overflow. Under the circumstances we hold that the negligence of Bland was the proximate cause of the damage. See also Beltran v. Stroud, 63 Ariz. 249, 160 P.2d 765; Nichols v. City of Phoenix, supra. Our last question for determination is the liability of Simpson and the corporation for the negligence of Bland, who, being employed by Simpson, became a subagent of the corporation. The case of Donn v. Kunz, 52 Ariz. 219, 79 P.2d 965, 967, expresses the law on this matter, and we quote: "* * * an agent is not liable to third persons for the misfeasance of a sub-agent in the service of his principal, unless he is guilty of fraud or gross negligence in the choice of the sub-agent or improperly cooperates in the latter's acts. Hilton v. Oliver, 204 Cal. 535, 269 P. 425, 61 A.L.R. 297; Smith v. Rutledge, 332 Ill. 150, 163 N.E. 544, 61 A.L.R. 273.” Likewise in 2 Am.Jur., Agency, section 203, we find the following: “With respect to the relation between the agent and the third person as concerning the appointment of a subagent, the general rule is that an agent is not liable to third persons for the malfeasance or misfeasance of subagents employed by him in the service of his principal unless he is guilty of fraud or gross negligence in their appointment, or unless he improperly co-operates in the acts or omissions of the subagent.” Accordingly we hold that Simpson is not liable for any of the acts of Bland in question herein, and direct that the judgment of the trial court be affirmed as to the appellee Simpson. As to the appellee corporation, we hold that the trial court was in error in directing the jury to return a verdict in its favor and we hereby direct that the judgment be reversed and the cause remanded for further proceedings not inconsistent with this opinion. UDALL, C. J., and PHELPS, DE CONCINI and LA PRADE, JJ., concurring.

PHELPS, Justice. This is an original proceeding in mandamus brought by petitioner Kenneth D. Lockwood, Post Auditor, against Jewel W. Jordan,' State Auditor, respondent, to compel her to issue to him a warrant in payment of his salary as post auditor of the state of Arizona from March 16 to March 31, 1951. The action is based upon the provisions of House Bill 74, Chapter 28, Session Laws of the 19th Legislature of the state of Arizona, First Special Session. The Act creates the office of post.auditor, prescribes his qualifications, duties, the manner of his appointment, term of office, his salary, and makes appropriation for the expenses of administration of the office including necessary salaries. The bill was approved by the Governor March 18, 1950. Section 5 of the Act providing for the appointment of post auditor reads as follows: “The post auditor shall be appointed by the president of the senate and the speaker of the house of representatives with the advice and consent of a majority of the senate and of the house of representatives. In the event of a vacancy in the office of post auditor while the legislature is not in session, or if in session fails to act, such vacancy shall be filled by a person named by a majority vote of the following: the Governor, the president of the senate and the speaker of the house of representatives. Such appointment to be confirmed at the next subsequent regular or special session of the legislature by the majority vote of the senate and of the house of representatives.” Section 6 provides that: “The term of office to which the first post auditor is appointed shall commence on the first day of July, 1950, and shall expire on the 30th day of June, 1955, and therefore the term shall be for four (4) years.” Salary was fixed at the sum of $7,200 per annum. On October 1, 1950, the post auditor was appointed by the Governor, the president of the senate and the speaker of the house of representatives under the provisions of section 5 above quoted. Thereafter on the second Monday in January, 1951, the first regular session of the 20th Legislature convened and adjourned March 18, 1951. During such session petitioner’s name was not presented to it for confirmation as the Act provided. However, on March 18, 1951, following the adjournment of the first regular session of the 20th Legislature petitioner was again appointed to such position in the same manner as before. It will be observed that the reappointment of petitioner was made on the same day the legislature adjourned. Petitioner’s salary was paid from the date of his appointment until 'March 16, 1951. On March 31 following, respondent refused to honor petitioner’s payroll including his salary from March 16 to March 31. On April 2, 1951, petitioner filed an application with this court for the issuance' of a writ of mandamus to compel respondent to issue her warrant in payment of his salary as hereinabove stated. Respondent has set up in substance in her answer the following defenses. First, that chapter 28, supra, is illegal and void for the reason that it violates article 3 and article 5, sections 1 and 9, of the'Arizona Constitution and therefore that petitioner was not in fact an officer of the state of Arizona during the period for which the claim for salary is filed; secondly, that if the Act is held to be constitutional the appointment of petitioner on October 1, 1950, and the failure of the legislature at its regularly convened session beginning the second Monday in January,. 1951, to confirm his appointment had the legal effect of vacating said office and that the subsequent attempt to again appoint him was also illegal and void and that petitioner was not a public officer during the period and therefore not entitled to< be paid out of the funds appropriated for the payment of the salary of post auditor. Article 3 of the constitution reads as follows: “The powers of the government of the state of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.” Section 1, article 5 of the constitution provides in so far as here material: “The executive department of the state shall consist of governor, secretary of state, state auditor, state treasurer, attorney-general, and superintendent of public, instruction each of whom shall hold his office for two years beginning on the first Monday of January next after his election, except that the terms of office of those elected at the election provided for in the Enabling Act approved June 20, 1910, shall begin when the state shall he admitted into the Union, and shall end on the first Monday in January, A. D. 1913, or when their successors are elected and qualified. 'k H* “The officers of the executive department during their terms of office shall reside at the seat of government, where they shall keep their offices and the public records, books, and papers. They shall perform such duties as are prescribed by this constitution and as may be provided by law.” Section 9 of article 5 provides: “The powers and duties of secretary of state, state treasurer, state auditor, attorney-general, and superintendent of public instruction shall be as prescribed by law.” We cannot agree with respondent’s contention that chapter 28 violates either article 3 or article 5, sections 1 and 9, of the Arizona Constitution. Adverting first to the contention that the Act under consideration violates article 5, sections 1 and 9 of the state constitution, the precise question was presented to this court in the case of Shute v. Frohmiller, 53 Ariz. 483, 90 P.2d 998, 1001. There the petitioner had been employed by the Colorado River Commission as its counsel under authority granted the commission in the act creating it. After entering upon his duties and after a portion of his monthly salary had accrued he presented his claim to the state auditor for audit andi allowance. The auditor denied such claim upon the ground that the act creating the commission was unconstitutional and void in so far as it authorized the appointment by the commission of special counsel to represent it. The reason given was that the constitution of the state, by creating the office of attorney general in Arizona, had engrafted upon him all the powers and duties of the attorney general as the same was known at common law. This court in that case observed that if the constitution had created the office of attorney general without referring to its powers and duties it might have been true under the authorities cited that the term “attorney general” had been used in its common law acceptation since Arizona is a state in which the common law prevails; but that when the constitution provided in the same article in which it created the office of attorney general that he should perform such duties as were prescribed by the constitution and as may be provided by law and that his duties “shall be ‘as prescribed by law’ ” it could not be said that the constitution was silent as to' his powers and duties; that while it was true the constitution did not enumerate his duties but in stating that they shall be as “prescribed by law” it referred to them and clearly made it the duty of the legislature to say what they should be. The court asserted that the expressions, “as provided by law” and “as prescribed by law” are susceptible of no other construction. It then concluded that the attorney general was not a common law officer, upon whom “the duties and powers of the attorney general as the same was known at common law” had been engrafted but was one whose powers and duties could be ascertained only by resort to the statutes. The court further said: “Notwithstanding the holding in these cases, (cases cited by respondent) we are clearly of the view that the mere naming of the attorney general in the constitution of this state does not amount to an implied restriction on the authority of the legislature in prescribing his duties.. It is true in this state, as in others, that the office of attorney general, together with the other executive offices created by the constitution, is imbedded in that instrument, but it is equally true that the authority of the legislature to prescribe what the duties and powers of those occupying these offices shall be is imbedded there also, and, this being true, no common-law powers or duties can attach to that office but only those prescribed by statute. This statement, we think, completely answers the contention of counsel for respondent that ‘the framers of the constitution in providing for the election of the attorney general by the people thereby reserved unto the people the right to have the well known functions of the attorney general discharged only by a person elected attorney general, and that the naming of this officer in the constitution amounts to an implied restriction upon legislative authority to create other and appointive officers for the discharge of such functions.’ “As just stated, the provision that the attorney general’s powers and duties ‘shall be as prescribed by law’ is as much a part of the constitution as that portion of it creating the office itself and fully as binding, but it is a useless provision if it be true that the mere naming of the office in that instrument limits the legislature in prescribing the functions the person filling it must perform. Naturally the framers of the constitution intended, when they created the office of attorney general and made it elective, that its duties would be discharged by the person elected to it, but in view of the fact that they provided also at the same time and in the same instrument that his powers and duties should be 'as prescribed by law,’ meaning by legislative act, the intention was that he would perform the duties assigned him by the legislature. And in saying what these shall be no express restriction is placed on that body’s power, and none is implied other than that forbidding the imposition of duties that would interfere with the maintenances and preservation of the independence of the three branches of government. Any act of the legislature imposing upon an executive officer duties properly belonging to one of the other two branches would necessarily be invalid, even if enacted pursuant to the constitutional provision empowering it to prescribe what the functions of that office should be. With this exception the legislature’s power to add to or take from these duties from time to time is full and complete under the provision stating that his duties ‘shall be as prescribed by law,’ as well as under section 2, article XXII of the constitution which provides that the laws of the Territory of Arizona, and this includes those prescribing the duties of the attorney general, ‘shall remain in force as laws of the State of Arizona until they expire by their own limitations or are altered or repealed by law.’ Clearly, the framers of the constitution did not intend to authorize the legislature to alter or repeal the territorial statutes that prescribed his duties and remained in force as laws of the state and at the same time withhold from it the power to take similar action as to any common-law duties he may have had. People v. Santa Clara Lumber Co., supra.” [55 Misc. 507, 106 N.Y.S. 624], This constitutes a complete answer to the claim of respondent that the legislature is without authority to enact Chapter 28, supra. The powers and duties of the auditor under the provisions of section 9 of article 5 shall be such as are “prescribed by law”. No express restrictions are imposed upon the legislature by the constitution with respect to the powers and duties which shall be exercised by the state auditor. We have so often held that in the absence of such restrictions the legislature possesses plenary powers to enact such laws as its judgment may dictate that it is unnecessary to cite authorities to sustain it. Shute v. Frohmiller, supra, has been reaffirmed or at least cited with approval in a number of cases including Industrial Commission v. School District No. 48 of Maricopa County, 56 Ariz. 476, 108 P.2d 1004; State ex rel. Frohmiller, State Auditor, v. Hendrix, 59 Ariz. 184, 124 P.2d 768, and Westover v. State, 66 Ariz. 145, 185 P.2d 315. Notwithstanding the fact that cases cited by respondent from the states of Idaho, Washington, Oregon and others are persuasive, we are committed to the opposite view and do not feel disposed to overrule our former opinions which we deem conclusive in this case. It is next claimed by respondent that the duties of the state auditor are by the constitution, executive in nature and that the provisions of chapter 28, supra, placing appointive power of the post auditor with the president of the senate and the speaker of the house of representatives has the ultimate effect of changing its character from that of an executive.office to one of a legislative character; that at least it places it under the control of the legislative branch of government which is violative of article 3 of the Arizona Constitution providing that the legislative, executive and judicial branches of government shall be kept separate and distinct and that no one of such departments shall exercise the powers properly belonging to either of the others. This question has also been considered by this court and a contrary view to that entertained hy the respondent has been reached. In the case of Dunbar v. Cronin, 18 Ariz. 583, 164 P. 447, 454, the court had under consideration a law enacted by the legislature providing for the establishment of a state library with a law and legislative reference bureau providing for the appointment of a board of curators and librarian, defining their duties and making an appropriation therefor. The law provided, among other things, that: “Until otherwise provided by law Con P. Cronin is appointed legislative reference librarian, and shall serve until his successor Is appointed. Any vacancy shall be filled by the board of curators.” The act provided that one of the duties of the librarian was to maintain a legislative information bureau for the use and reference of the members of the legislature, the heads of the several departments of •state government and such citizens of the state as may desire to consult the same. The act further provided that the board' •of curators should not exercise their power of appointment of the librarian during the incumbency of the librarian appointed by the provisions of the act. The board did later undertake to exercise its powers and appointed Dunbar. This appointment was made while Cronin' was still serving under his appointment by virtue of the terms of the act itself. Quo warranto proceedings were instituted by appellant Dunbar against the appellee to determine title to the office. The appellant in that case based his contention upon the proposition that the legislature was without power to appoint a librarian as violative of article 3 of the constitution to which reference is above made. He claimed that the appointment to office is an executive function and belongs to the executive department, thus challenging the right of the legislature to appoint the appellee as librarian. The court in discussing the matter said: “All powers of government primarily are lodged in the people. That is true with reference to the selection of their officers. * * * “The people have reserved to themselves the right to choose all precinct, county, and state officers provided for in the Constitution, except three members of the state board of education (article 11, § 3), regents of the University and the governing boards, of other state educational institutions (article 11, § 5),-and a state examiner (article 22, •§ 18). Indeed they were so jealous of this power and right to select their own officers that they provided for an advisory vote of the people for United States Senator (article 7, § 9) quite a while before the federal Constitution was amended providing for the election of United States Senators by popular vote. “The only instances under the Constitution in which the power of appointment is made exclusively executive are the specific ones above enumerated, and such others as may occur when an office becomes vacant and the law or the Constitution has provided no mode for filling such vacancy. Jjc >jc % i> Legislators may not only provide •a mode for filling a vacancy in office, hut it may create offices when not prohibited by the constitution and provide for the election of the officers by the people, allow for their appointment by a board or commission of their creation, or by the executive, or may itself make the appointment. “We think it is quite apparent that the framers of our Constitution and the people who adopted it treated and considered the right to select and choose their officers as a political question, and surrendered that right to the different departments of state only in so far as the inherent necessities and proprieties seemed to require it. Where the people have not provided for the manner of filling offices newly created, or vacancies in office, they have left to the Legislature, as their representatives, such duties.” [164. P.2d 450.] Citing Riley v. State, 43 Okl. 65, 141 P. 264. The court in that case referred to decisions of other states in which it was held that if the office was an executive office the appointment should be made by the executive department. If legislative, it should be made by the legislative department, etc. But it expressly declined to concede that such was the law in this state. We therefore hold that since there is no restriction in the constitution against the exercise of such powers by the legislature that it was acting fully within the scope of its legislative authority in providing for appointment of post auditor to be made as in the Act provided. We do not think the Act has the far-reaching result claimed by respondent. Section 3 thereof provides that many of the duties to be discharged by the post auditor are “for the primary purpose of informing the legislature for its guidance in formulating legislative policies concerning legislation and appropriation.” If and when legislation is passed imposing duties' upon an officer of one of the coordinate branches of government which properly belong to either of the coordinate branches, article 3 of the Arizona Constitution may be invoked to preserve their independence. The next question presented is, assuming the Act to be constitutional, did the failure of the legislature to confirm the appointment of the post auditor at its next session after his appointment have the effect of creating a vacancy in the office? It is the contention of the petitioner that it did not and of the respondent that it did have the effect of creating a vacancy. It will be necessary to' consider the language of pertinent statutes to reach a proper solution of the question. Let us observe .that section 6 of the Act quoted above provides that the term of the first post auditor shall commence on July 1, 1950, and expire on June 30, 1955. The record before us contains no document evidencing the official appointment of petitioner as post auditor but whatever else it may contain we must conclusively presume that such appointment was for a period ending June 30, 1955, for the reason that the agency empowered to make the appointment was without authority to do otherwise. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696. By the express language of the statute an ad interim appointment to fill a vacancy in the office may be made by the Governor, the president of the senate and the speaker of the house of representatives. The power to appoint thus granted to these officers is in conjunction with the majority of the members of the house of representatives and of the senate who must concur. Such appointment is not complete until confirmed by the members of the legislature as in the Act provided. By authorizing an ad interim appointment, however, the Act impliedly grants to the appointee the right to take charge of such office and enter upon the discharge of his official duties. State ex inf. Major, ex rel. Sikes v. Williams, 222 Mo. 268, 121 S.W. 64, 67 C.J.S., Officers, .§ 32. An appointment made when the legislature is not in session is lawful until and unless the majority of the senate and the house of representatives act in disapproval thereof. McCall- v. Cull, supra. No action was taken by the legislature with reference to petitioner’s ad interim appointment during its session next subsequent to his appointment. Therefore petititioner is entitled to continue in possession of such office, discharge the duties, and enjoy the emoluments thereof until June 30, 1955, unless by disapproval of the legislature his tenure of office is otherwise terminated in the manner provided in the Act. His right to continue in office does, not flow from either the constitutional or statutory provision making it the duty of a public officer to continue to discharge the duties of his office after his term 'of office has expired and until his successor is elected or appointed and qualifies. This is true because petitioner’s term of office has not expired. Those provisions apply only after the term of office has expired. Article 22, section 13, Arizona Constitution; section 12-104, A.C.A.1939; Sweeney v. State, 23 Ariz. 435, 204 P. 1025. Petitioner’s right to remain in office arises out of the provisions of the Act creating the office. As above stated, having been lawfully appointed he is entitled to continue in office under his defeasible title until the end of the term to which he is appointed unless by affirmative action by the legislature his appointment is disapproved, or theretofore revoked by the appointive power. We therefore hold the Act creating the office of post auditor violates no provision of the Arizona Constitution and that petitioner is lawfully in possession of such office under his appointment of October 1, 1950, and entitled to all of the emoluments thereof. The alternative writ of mandamus heretofore issued is made permanent. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concur.

UDALL, Chief Justice. By motion for rehearing the apellants, though not now questioning the original opinion, call our attention to the fact that we failed to express the views of the court on one of the issues raised by the appeal, i. e., whether, under the Act, naturopaths in their practice may use nutritional food substances without running afoul of the law defining naturopathy. It is asserted that one of their members now faces a felony charge for advising a patient to use apple juice. As a supplement to the original opinion and to resolve, if possible, such difficulties, we now hold, as a matter of common sense, that members of the naturopathic profession in their practice of the healing art are not barred, by the definition appearing in section 67-1205, A.C.A.1939, from prescribing for their patients foods commonly used for nutritional purposes, as distinguished from drugs. STANFORD, PHELPS and DE CONCINI, JJ., concurring.

PHELPS, Justice. This is an appeal from the judgment of the trial court and from an order denying appellant’s motion for a new trial. The cause was tried to the court without a jury upon a complaint to quiet title which must be construed under the evidence presented by plaintiff-appellee as being intended to state a claim of title by adverse possession against defendants-appellants to a strip of land three feet wide lying north of the north boundary line of Lot 10, Norma Place in Phoenix. The parties will be hereinafter referred to as plaintiff and defendants as they appeared in the trial court. The pleadings are a bit confusing, in that, they allege that plaintiff is the owner in-fee simple of Lot 10, Norma Place, according to the map or plat thereof, etc., and that the north boundary line of Lot 10 is three feet north of what defendants now claim is the north boundary line thereof along which they constructed the fence in question. Plaintiff alleges that up to September 25, 1948, she and her predecessors in interest had been in actual, open, exclusive and notorious possession of Lot 10 under a claim of right as against defendants (owners of Lot 12) and all the world during that period, exercising dominion over it and enjoying and using the same. (Incidentally the evidence shows plaintiff has owned and been in possession of Lot 10 since 1925 or 1926). She further alleges defendants claim some interest in this three-foot strip of land and that such claim is without right or foundation and they have no estate, right, title or interest therein. In her first cause of action she asked that defendants and each of them be barred and forever estopped from having or claiming any right or title to said strip of land. In her second cause of action she reincorporates the above allegations therein and further alleges that defendants, without her consent and over her protest, wrongfully and unlawfully entered and trespassed upon the three-foot strip of land on the north side of her premises and built a fence thereon which obstructs the ingress and egress of her tenants to her apartments located along the north boundary line of Lot 10. She asked damages therefor and for the removal of the fence and ¡restoration of said land to her. Defendants denied all of the above allegations except that they claim title to the three-foot strip of land in question. At the close of all of the evidence the court took the matter under advisement and thereafter entered judgment in favor of plaintiff and against defendants and each of them, finding that plaintiff is the owner of Lot 10, the north line of which is es tablished by the survey of Lot 12 on September 2, 1948, by F. N. Holmquist, acting for defendants Etz. This survey established the boundary line between Lots 10 and 12 to be along the line upon which defendants constructed the fence here involved and which approximately coincides with the original survey as shown by the map or plat of Norma Place. The judgment further found defendants to be the owners of Lot 12. It then found that plaintiff and her predecessors in interest had used a part of Lot 12, Norma Place, three feet wide lying north of the entire boundary line of Lot 10 for a period of more than 20 years and concluded as a matter of law that plaintiff had acquired an easement for the use of said strip of land. The court thereupon entered its order and decree establishing an easement in favor of plaintiff for the use of the three-foot strip of land on Lot 12 of Norma Place lying north of the north boundary line of Lot 10 extending along the entire length of said lots. On her second cause of action judgment was entered against defendants ordering and directing them to remove the fence now encroaching upon said easement and for her costs. No request was made to the court by plaintiff to amend her pleadings to conform to the evidence and as hereinafter pointed out, there is nothing in the record to indicate that the case was tried on any other theory than that of attempting to acquire title to the strip of land in question by adverse possession. Defendants have presented five assignments of error for our consideration, all of which are directly or indirectly based upon the ground that the judgment rendered by the court was not within the issues raised by the pleading and is foreign to the theory upon which the case was tried. We agree with this contention. As above stated the pleadings, if literally construed, would indicate that plaintiff was merely seeking to establish the true boundary line between Lots 10 and 12, Norma Place, according to the map or plat thereof to be three feet north of the line along which the newly constructed fence was located and to prevent defendants from further trespassing upon Lot 10 as fixed by the map or plat of Norma Place. This interpretation of the pleadings, however, was refuted by counsel for plaintiff during the trial. The court asked counsel for plaintiff the following question: “Is there any dispute about what the true survey is, is there a dispute about what the true survey will show?” After some discussion Mr. Daines said: “We have no survey to introduce in evidence which will show the north boundary of our lot to be three feet north of the line claimed by Mr. Etz. The fact is the recent surveys made show, the probabilities are, the line which Mr. Etz claims is es tablished by the survey of Mr. Holmquist and also by Mr. Jones.” (Mr. Jones made the survey for plaintiff). Mr. Daines then said: “ * * * The probabilities are the best survey that can be made will show the line not far from where Mr. Etz claims it is.” By this statement to the court counsel made it clear that so far as the evidence was concerned it would show that the fence was approximately on the true boundary line between Lots 10 and 12 as indicated by the map or plat of Norma Place. Plaintiff, knowing that the three-foot strip of land was in fact on Lot 12, and having alleged that she had been in peaceable, open, notorious, exclusive and continuous possession of said strip of land under a claim of right against defendants and all of the world, exercising dominion and using and enjoying the same, makes the conclusion inescapable that she was seeking to establish not an easement upon, but title to the three-foot strip of land involved by adverse possession. An allegation of exclusive possession is wholly inconsistent with the theory of establishing an easement. The right to possess, to use and to enjoy land upon which an easement is claimed remains in the owner of the fee except in so far as the exercise of such right is inconsistent with the purpose and character of the easement. Pinkerton v. Pritchard, 71 Ariz. 117, 223 P.2d 933; Langazo v. San Joaquin Light & Power Corp., 32 Cal.App.2d 678, 90 P.2d 825. An easement is a right which one person has to use the land of another for a specific purpose. Callan v. Walters, Tex.Civ.App., 190 S.W. 829. It is the right to use the land of another for a special purpose not inconsistent with a general property in the owner. It is distinguished from the occupation and enjoyment of the land itself. Wessels v. Colebank, 174 Ill. 618, 51 N.E. 639. It is only the use of the land which must be shown to be open, notorious and adverse in order to establish an easement thereon. Thus it will be seen that an action to establish an easement does not involve possession or occupation of the land. It does not involve the enjoyment of the premises except to the extent of the use claimed under the easement. It does not disturb the legal title of the premises except as it is limited by the character of the easement. It does not involve dominion over the premises except that which is necessary for the enjoyment of the use. Defendants in their cross examination of plaintiff limited their inquiry to whether or not plaintiff had ever made any demand upon defendants to, stay off the three-foot pathway. This was designed to show by plaintiff’s own statement that she had never asserted her claim that she was in open, notorious, exclusive, and hostile possession of the premises. This was a proper question under the theory that plaintiff was claiming title to the strip in question by adverse possession but it was not' a proper question if plaintiff was seeking only to establish an easement to use it for ingress and egress to her apartments. As pointed out by defendants in their 'brief, had they been advised that plaintiff was seeking only to establish an easement to use the three-foot strip of land they would have been required to go into the question of whether plaintiff had ever asserted to defendants a lawful right to use such pathway adverse to defendants’ use or ownership, or if she had indicated in any way that her use thereof was hostile to defendants’ use and ownership. The evidence is in conflict as to whether there ever was a fence running along the line between Lots 10 and 12. Under all of the evidence, however, there has been no fence between these lots since 1935 which is far in excess of the prescriptive period. At no time has plaintiff stated to defendants that her use of the .pathway was hostile or adverse to defendants under claim of right or otherwise. We said in LaRue v. Kosich, 66 Ariz. 299, 187 P.2d 642, 646, that: "It is a- recognized rule of law that where the use of a private way by a neighbor is by the express or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right. (Citing cases.) The law raises no presumption that the use is under a claim of right, (Citing cases.)” In 17 Am.Jur., Easements, Sec. 71, p. 980, it is stated: “The prevailing principle seems to be that while a way may be acquired by user or prescription by one person over the unenclosed land of another, mere use of the way for the required time is not, as a general rule, sufficient to give rise to the presumption of a grant. Hence, generally some circumstance or act in addition to, or in connection with, the use of the way, tending to indicate that the use of the way was not merely permissive is required to establish a right by prescription. * * * ” There is evidence in the record that- in 1930 plaintiff placed- concrete slabs along the pathway in the three-foot area some of which were 14 x 24 inches in size, to be used by her tenants in going to and from their apartments and the evidence further shows that the foot of the steps leading from the apartments in question are approximately on the boundary line between Lot 10 and 12 and that their enjoyment as such is, for all practical purposes destroyed by the construction of the fence on the true boundary line. These would be proper matters for consideration by the court under pleadings designed to establish an easement upon the strip in question. But whether these facts, standing alone, would be sufficient to establish such easement we express no opinion. We cannot agree with counsel for appellee that the proof would' be the same in the establishment of an easement as in the establishment of title. We are fully aware of our statement in the. case of LaRue v. Kosfch, supra, in which we stated: “The burden is upon the party who claims title by prescription to clearly prove by competent evidence all the elements essential to such title. The user must have been adverse to the true owner, and hostile to his title. It must have been actual, continued, open, and under a claim of right. It must have all the elements necessary to acquire title by adverse possession.” But as pointed out above it is only the use to which the premises are put which must he shown to be adverse, open and notorious. To the extent that the use is established, it, of course, is hostile to the title of the servient estate. We again reiterate what we said in Collison v. International Ins. Co., 58 Ariz. 156, 118 P.2d 445, 447, as follows: “* * * We think, however, that when the pleadings present affirmatively certain issues or limitations of issues, in order that we should hold the case was tried on any other theory, there must be some affirmative showing in the record that such was the fact, and that in the absence of such a showing the presumption is that the case was tried on the issues set forth in the pleadings only. * * *" It is true that in the case last above cited the facts are entirely different from the facts in the instant case but the principle involved is identical. The record does not justify a judgment establishing an easement in this case. Judgment reversed with directions to enter judgment in favor of defendants. UDALL, C. J., and STANFORD, DE CONCINI and LA PRADE, JJ., concur.

OPINION THOMPSON, Judge: ¶ 1 Steve W. Boswell (Boswell) appeals from the dismissal with prejudice of his medical malpractice action based on his failure to serve a preliminary expert opinion affidavit. For the following reasons, we affirm the judgment as modified to reflect that the dismissal is without prejudice. FACTUAL AND PROCEDURAL BACKGROUND ¶ 2 In July 2014, Boswell filed a complaint in superior court alleging medical malpractice against Robert Fintelmann, M.D., Robert Pinkert, O.D., Thomas R. Wolf, Barnet Dulaney Surgery Center, LLC, Barnet Dula-ney Perldns Eye Center, PLLC and others (appellees). Boswell certified pursuant to Arizona Revised Statutes (A.R.S.) section 12- 2603 (2016) that medical expert testimony was necessary to prove his claims. If a claimant certifies that expert opinion is necessary, AR.S. § 12-2603(B) (2016) requires a claimant to serve a preliminary expert opinion affidavit at the same time as initial disclosures. ¶ 3 Boswell did not provide an initial disclosure statement and a preliminary expert opinion affidavit, and appellees moved for an order compelling him to do so. The superior court granted appellees’ motion and ordered Boswell to serve his initial disclosure statement within twenty days and his preliminary expert opinion affidavit within thirty days. ¶ 4 Boswell did not comply with the court order, and appellees moved for dismissal. Boswell cross-moved for a ruling that A.R.S. § 12-2603 is unconstitutional, The superior court granted appellees’ motion to dismiss, denied Boswell’s cross-motion, and dismissed Boswell’s claim with prejudice. We have jurisdiction over Boswell’s timely appeal pursuant to AR.S. § 12-2101(A)(1) (2016). DISCUSSION ¶ 6 We review de novo a dismissal for failure to serve a preliminary expert opinion affidavit required by A.R.S. § 12-2603, Romero v. Hasan, 241 Ariz. 385, 388 P.3d 22, 23 (App. 2017) (citing Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284 P.3d 863, 866-67 (2012)), because a claimant’s failure to properly certify the non-frivolous nature of the complaint pursuant to A.R.S. § 12-2603 is a pleading failure. Dismissal for failure to serve the expert affidavit is not tantamount to dismissal for failure to prosecute, which operates as an adjudication on the merits. See Ariz. R. Civ. P. 41(b). Nor is it a dismissal as a sanction for a discovery violation, because the affidavit requirement is “meant to certify that the action ... is not meritless,” and it is not required “that the expert giving the preliminary affidavit serve as the expert at trial.” Jilly v. Rayes, 221 Ariz. 40, 42-43, ¶ 6, 209 P.3d 176, 178-79 (App. 2009) (citation omitted). See also Gorney v. Meaney, 214 Ariz. 226, 228, ¶ 4, 150 P.3d 799, 801 (App. 2007) (court of appeals reviewed de novo trial court’s grant of summary judgment to defendant on the basis that plaintiffs expert opinion affidavit did not conform with A.R.S. § 12-2603(B)). ¶ 6 Athough Boswell argues the superior court erred by dismissing his complaint because the court erroneously concluded that he failed to serve his initial disclosure statement, we reject this argument because the court properly dismissed based on Boswell’s failure to serve the preliminary expert affidavit required by AR.S. § 12-2603. ¶7 Section 12-2603(F) requires the superior court to dismiss without prejudice a claim when the claimant fails to file and serve a preliminary expert opinion affidavit after certifying an affidavit is necessary or the court has ordered compliance. Because Boswell failed to comply with the order to serve the affidavit, the court appropriately dismissed his claim. ¶ 8 However, the statute does not authorize dismissals with prejudice. Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323-24, ¶¶ 20, 22, 25, 183 P.3d 1285, 1291-92 (App. 2008). Athough appellees correctly assert that the superior court referred to Arizona Rule of Civil Procedure 37(b)(2) in its ruling dismissing Boswell’s claim, that rule also does not authorize dismissals with prejudice for the failure to comply with A.R.S. § 12-2603. Thus, the court erred by dismissing Boswell’s claim with prejudice. CONCLUSION ¶ 9 For the foregoing reasons, we affirm the judgment as modified to reflect that dismissal is without prejudice. . We cite the current versions of the applicable statutes and rules unless revisions material to this opinion have occurred since the events in question. . Appellees acknowledged in their motion to dismiss that Boswell had provided his initial disclosure statement prior to the deadline ordered by the court. . Because Boswell fails to develop and support his conclusory arguments that A.R.S. § 12-2603 and related statutes are unconstitutional and that the superior court improperly sealed an "investigative report,” he waives them. See ARCAP 13(a)(7); Polanco v. Indus. Comm'n of Ariz., 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007). Additionally, to the extent Boswell argues he cannot afford to hire an expert to make an affidavit, he offers no evidence that any qualified expert would have provided the information required by A.R.S. § 12-2603. See Romero, 241 Ariz. 385, 388 P.3d at 23 n.4. .Rule 37(b)(2)(A)(v) provides that if a party fails to obey an order to provide or permit discovery, the court may dismiss the action.

OPINION CATTANI, Judge: ¶ 1 Residents of Yarnell and surrounding areas (the “Residents”) appeal from the superior court’s ruling dismissing their negligence claims against the State of Arizona and the Arizona State Forestry Division (collectively, “State”) arising from damage caused by the Yarnell Hill Fire. Because the superi- or court correctly concluded that the State did not owe a duty to protect the Residents’ property against naturally caused wildfires, we affirm. FACTS AND PROCEDURAL BACKGROUND 112 On the afternoon of June 30, 2013, the Yarnell Hill Fire burned out of control, killing 19 local firefighters and destroying structures and property throughout Yarnell. Lightning had sparked the wildfire two days earlier in mountainous wildlands near Yar-nell, and the State, acting through the Forestry Division, was in charge of the firefighting efforts for the first three days, including when it hit Yarnell. This case arises only from the property damage caused by the fire; the tragic loss of life is not at issue here. ¶3 The Residents asserted civil claims against the State, alleging that the State had negligently managed the firefighting efforts, negligently failed to protect Yarnell from the fire, and negligently failed to provide a timely evacuation notice, all leading to the destruction of their property. On the State’s motion, the superior court dismissed the complaints on the basis that the State did not owe the Residents a duty as required to state a cause of action for negligence. The Residents appealed, and we now affirm. ¶4 We hold that the State did not owe the Residents a legal duty in connection with its efforts to combat a wildland fire resulting from a natural occurrence on public land in natural condition. To hold otherwise would effectively require the State to act as an insurer against naturally-occurring calamities affecting private property throughout the state. And imposing such a duty (with its corresponding potential for liability) based on the State’s undertaking to coordinate wild-land firefighting would create a self-defeating incentive not to engage in such important efforts. Thus, the Residents’ claims fail as a matter of law. DISCUSSION 115 Dismissal under Arizona Rule of Civil Procedure 12(b)(6) for failure to state a claim is proper “only if ‘as a matter of law [ ] plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.’ ” Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8, 284 P.3d 863 (2012) (citation omitted and alteration in original). We consider only the pleading itself, and we “assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient.” Id. at ¶ 9. We review de novo the superior court’s dismissal for failure to state a claim on which relief can be granted. Id. at 355, ¶ 7, 284 P.3d 863. ¶ 6 A negligence claim requires proof of four elements: “(1) a duty requiring the defendant to conform to a certain standard of care,” (2) breach of that standard of care, (3) causation, and (4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228 (2007). The existence of a duty is a threshold question; “absent some duty, an action for negligence cannot be maintained.” Id. at ¶ 11. This threshold question of whether a duty exists is a question of law for the court, which we consider de novo. Guerra v. State, 237 Ariz. 183, 185, ¶ 7, 348 P.3d 423 (2015). ¶ 7 A duty is an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364 (1985). A duty may arise from a variety of sources, including a special relationship between the parties—whether contractual, familial, or based on “conduct undertaken by the defendant”—or as an expression of public policy. Gipson, 214 Ariz. at 145, ¶¶ 18, 22-23, 150 P.3d 228. I. Public Policy. ¶ 8 The Residents argue that “sound public policy imposed a duty of care on the State to protect Yamell and its people.” We recognize that public policy considerations may support recognition of a duty. Id. at ¶ 23. But public policy may also militate against recognition of a tort duty, Guerra, 237 Ariz. at 187, ¶ 20, 348 P.3d 423, and it does so here. ¶ 9 The duty the Residents seek to impose—protecting private property against a natural occurrence on public land maintained in natural condition—is unworkably broad. And the limitation the Residents propose— that the State only assumed a duty by in fact attempting to suppress the fire—would lead to perverse incentives. See Gipson, 214 Ariz. at 146, ¶ 29, 150 P.3d 228 (noting that “no-duty” rules are generally based on concerns that imposing liability would have adverse effects). The parties agree that prevention or suppression of wildfires—like the emergency response to any natural disaster—is a fundamental public safety obligation, and that public policy should encourage a prompt and efficacious response from the State. But imposing a tort duty based on the State’s undertaking to provide an emergency response could instead encourage inaction: the State could shield itself from liability by simply doing nothing. Such a result is contrary to the overriding needs of the public. ¶ 10 Moreover, the duty advanced by the Residents would prioritize nearby private property interests at the expense of consideration of broader state interests. And here, the governing statute expressly guides the state forester’s discretion to provide wildfire suppression services, absent a governing cooperative agreement, by reference to “the best interests of this state” and whether such services “are immediately necessary to protect state lands.” Ariz. Rev. Stat. (“A.R.S.”) § 37-1303(A) (formerly A.R.S. § 37-623(A)) (emphasis added); see also Monroe v. Basis Sch., Inc., 234 Ariz. 155, 160, ¶ 17, 318 P.3d 871 (App. 2014) (noting that a public-poliey-based duty of care is generally grounded in statute or the common law, and [i]n many instances, the legislature reflects public policy by codifying certain duties and obligations”). Imposing a duty of care beyond the legislative directive would impermissibly replace the State’s discretion to consider the complex mix of risks and considerations presented by a wildfire with a mandate to prioritize the interests of individuals whose property might immediately be threatened. ¶ 11 The Residents urge us to adopt the Alaska Supreme Court’s now-abrogated holding that “when the State or a subdivision of the State chooses to conduct firefighting operations, it owes a duty of care to those whose lives and property are threatened by the fire to conduct those operations non-negligently.” Angnabooguk v. State, 26 P.3d 447, 452 (Alaska 2001). The Alaska legislature, however, thereafter adopted legislation overriding the Angnabooguk holding except as to “intentional misconduct within the course and scope of employment or agency and with complete disregard for the safety and property of others.” Brewer v. State, 341 P.3d 1107, 1119 (Alaska 2014) (quoting Alaska Stat. Ann. 41.15.045(a)). And the Alaska legislature’s statements in doing so are apropos: “[decisions regarding forest management related to fire control and suppression should be prompted by sound forestry and firefighting principles, rather than concerns regarding possible tort liability.” Id. (alteration in original) (quoting the transmittal letter and sponsor statement for H.B. 245, 23rd Leg., 1st Sess. (Alaska 2003), as found in 2003 House Journal 782-83). ¶ 12 This is not to suggest that the state forester should ignore the fire’s potential impact on nearby properties and communities as part of the statutorily-directed assessment of what wildfire suppression services are in the best interests of the state. See AR.S. § 37-1303(A). Certainly there was a hoped-for benefit to the Residents here as the result of the State’s work to contain the fire. But a hoped-for benefit that may arise incidental to broader public-safety concerns and the best interests of the state does not establish a duty. See Vasquez v. State, 220 Ariz. 304, 315, ¶ 35, 206 P.3d 753 (App. 2008) (holding that, because primary purpose of identifying human remains was public safety, incidental benefit to family and friends did not establish a duty to identify); Morton v. Maricopa County, 111 Ariz. 147, 151, 865 P.2d 808 (App. 1993) (same). II. Possessor of Land. ¶ 13 Our conclusion that public policy supports a no-duty rule for the State’s control of a natural occurrence on public land maintained in natural condition is consistent with Arizona law regarding the parallel issue of duties owed by a possessor of land. The Residents assert that, as the owner or occupier of the land on which the fire started, the State owed a common law duty to prevent the fire’s spread. But the Residents cite no Arizona authority, and we have found none, recognizing an owner/occupier’s duty to prevent the spread of a wildfire regardless of the cause of the fire or the natural (as opposed to developed or artificial) condition of the land. ¶ 14 Instead, Arizona has adopted the Restatement (Second) of Torts (“Restatement”) § 363 (1965), which provides that a possessor of land is not liable “for physical harm caused to others outside of the land by a natural condition of the land.” See Beals v. State, 150 Am, 27, 30-31, 721 P.2d 1154 (App. 1986) (applying Restatement § 363 to affirm summary judgment for the State on the basis of no liability for damage to neighboring landowners caused by water diverted from public lands due to natural growth of salt cedars); compare Restatement § 364 (1965) (stating that, with some limitations, a possessor of land is liable for physical harm outside of the land caused by an artificial condition created by human action). “Natural condition” is broadly defined “to indicate that the condition of land has not been changed by any act of a human being.” Restatement § 363 cmt. b. Although the cause of the Yarnell Hill Fire—a lightning strike—perhaps does not constitute a “condition” of the land, the state trust land apparently remained in natural condition, and the lightning was not an “act of a human being,” ¶ 16 The distinction between natural and artificial conditions and between natural and human causes is consistent with the early English cases cited by the Residents and with a substantial group of the American authorities as well, The English cases, Beaulieu v. Finglam, Y.B. 2 Hen. IV, fol. 18, pi. 5 (1401) and Turberville v. Stampe, 1 Ld. Raym. 264, 91 Eng. Rep. 1072 (1697), both involved liability for the spread of a fire set by the defendant in his house or on his land, respectively. See also St. Louis & S.F.R. Co. v. Mathews, 165 U.S. 1, 6, 17 S.Ct. 243, 41 L.Ed. 611 (1897). Cases from other American jurisdictions would impose a duty for harm to a neighbor resulting from the defendant’s use of an intentionally set fire, see, e.g., McNally v. Colwell, 91 Mich. 527, 52 N.W. 70 (1892); Koos v. Roth, 293 Or. 670, 652 P.2d 1255, 1263-65 (1982), or even if the fire was caused by another, see, e.g., Amhold v. United States, 284 F.2d 326, 328-29 (9th Cir. 1960) (holding the United States liable for damage caused by a fire started by a railroad using a right of way through U.S. land, for which the government had entered into a cooperative agreement to “take ‘immediate vigorous action’ to control all fires breaking out” in the area). Because the Yarnell Hill Fire arose from a natural cause on land that remained unused and in natural condition, these authorities do not support imposition of a duty in this case. ¶ 16 As the Residents note, other American jurisdictions recognize a land possessor’s duty to control the spread of a fire without regard to its cause. See, e.g., Farrell v. Mirmeapolis & R. R. Ry. Co., 121 Minn. 357, 141 N.W. 491, 492 (1913) (recognizing a land owner’s duty to prevent the spread of a known fire started on the owner’s land even if “from any cause for which the landowner is not responsible”); Sandberg v. Cavanaugh Timber Co., 95 Wash. 556, 164 P. 200, 202 (1917) (recognizing a land owner’s duty to “use reasonable effort to prevent the spread of a fire occurring upon his premises, apart from his own act or neglect attending the starting of the fire”). But this concept of duty would contravene the distinction between liability for natural as opposed to artificial conditions recognized under Arizona law applying the Restatement. See Restatement §§ 363-64. And in the case of state trust lands, it would, as described above, undermine the public policy evidenced by the discretion vested in the state forester under A.R.S. § 37-1303(A), Accordingly, we decline to recognize a common law duty to protect the Residents by preventing the spread of a naturally caused fire started on State land maintained in natural condition. III. Voluntary Undertaking. ¶ 17 The Residents argue that the State assumed a duty of care by undertaking to protect Yarnell from the fire and to provide an evacuation notice if necessary. A defendant may assume a duty of care by undertaking (with or without a formal relationship) to perform services for the plaintiff. See Gipson, 214 Ariz. at 146, ¶ 18, 150 P.3d 228; Stanley v. McCarver, 208 Ariz. 219, 221, 223-24, ¶¶ 7, 15, 92 P.3d 849 (2004). Arizona follows Restatement § 323 in addressing this theory of duty: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking. See Stanley, 208 Ariz. at 223-24, ¶ 15, 92 P.3d 849; Barnum v. Rural Fire Protection Co., 24 Ariz.App. 233, 237, 537 P.2d 618 (App. 1975). ¶ 18 By its terms, Restatement § 323 applies to an undertaking “to render services to another.” And here, the Residents’ factual allegations do not show an undertaking to provide fire protection services directed to the Residents, The factual allegations include that the State acted to “contain” the Yarnell Hill Fire, providing “some point protection” around the Yarnell area as well as structure protection group orders for some clearing for a potential burnout and firebreak “on the outskirts of the Yarnell area” and some aerial retardant drops. But these actions are consistent with the state forester’s discretionary authority to provide wildfire suppression services in the interest of the state and in the interest of protecting state lands as directed by A.R.S. § 37~1303(A), rather than an undertaking directed to the benefit and protection of the Residents’ property. Although we need not foreclose the possibility that the State could assume such a duty by an affirmative undertaking, the actions alleged are consistent with the public-policy-based no-duty rule described above. ¶ 19 The Residents’ allegation that the State undertook to provide an evacuation notice is also unavailing, The only allegation arguably supporting an undertaking to provide an evacuation notice is the assertion that the State “placed,” “requested,” or “radioed” for evacuation of Yarnell. But the Residents’ allegation was that the State waited too long to do so; that is, that the State waited too long to assume this duty. Because the alleged breach of duty necessarily occurred before the State was bound by any assumed duty, the Residents’ claim based on an undertaking to provide an evacuation notice fails. IV. Abnormally Dangerous Activity. ¶ 20 Finally, the Residents argue that the State should be held liable for their losses because fighting wildfires is an abnormally dangerous activity. Arizona recognizes strict liability for harm resulting from an abnormally dangerous activity. Restatement §§ 519, 620 (1977) (adopted in Arizona by Correa v. Curbey, 124 Ariz. 480, 481, 605 P.2d 458 (App. 1979)). Strict liability extends only to “the kind of harm, the possibility of which makes the activity abnormally dangerous.” Restatement § 519(2); see also id. at cmt. e (strict liability “applies only to harm that is within the scope of the abnormal risk that is the basis of the liability”). ¶ 21 We need not decide whether fighting wildfires is an abnormally dangerous activity, however, because the damages alleged resulted from the uncontrolled fire itself, not from the firefighting. The Residents’ complaints do not allege that the State’s firefighting efforts created the risk, but rather that the State failed to protect them from the risk posed by the existing fire. Even if the State’s approach to the firefighting efforts delayed measures that could have mitigated the damage to private property, no affirmative acts by the State are alleged to have caused the damage. Accordingly, the abnormally dangerous activity doctrine does not apply. V. Duty Based on Precluding Local Firefighter Action. ¶ 22 The Residents allege that “[i]n the exercise of its practical and legal authority, the Arizona State Forestry Division ordered some of the local firefighting assets not to do anything to combat the Yarnell Hill Fire without its specific authorization, permission, and direction.” This allegation arguably supports an inference, see Coleman, 230 Ariz. at 356, ¶ 9, 284 P.3d 863, that the State’s assumption of control prevented the Residents and local firefighters from performing activities on non-state lands that might have reduced the Residents’ damages. But a directive not to do anything to “combat the Yarnell Hill Fire” is not the same as a directive not to use local efforts to protect property within Yarnell. CONCLUSION ¶ 23 We affirm the dismissal of the Residents’ complaints. , This case involves two related complaints. The first complaint named as plaintiffs 162 individuals and entities from the Yarnell area who sustained property damage in the fire. Two of these plaintiffs later filed a class action complaint asserting essentially the same claims on behalf of all residents of Yarnell and surrounding areas who suffered damage in the fire. We use the term "Residents” to refer to all plaintiffs in both cases, except where otherwise specified. . The State also moved to dismiss the claims against the Forestry Division on the basis that it is a non-jural entity and moved to dismiss the Overmyer class action complaint as duplicative of the Acri complaint. Because we affirm dismissal based on lack of duty, we need not address these alternative bases for partial dismissal. . As relevant here, A.R.S. § 37-1303 provides that: determines that suppression services are in the best interests of this state and are immediately necessary to protect state lands. A. The state forester shall have authority to prevent and suppress any wildfires on state and private lands located outside incorporated municipalities and, if subject to cooperative agreements, on other lands located in this state or in other states, Mexico or Canada. If there is no cooperative agreement, the state forester may furnish wildfire suppression services on any lands in this state if the state forester C. The state forester shall have responsibility to prevent and suppress wildfires only on lands covered by cooperative fire agreements. The Residents have not alleged that the fire suppression effort around Yamell was governed by a cooperative agreement.

OPINION MeMURDIE, Judge: ¶ 1 Michele Gutierrez (“Mother”) seeks special action relief, challenging the superior court’s temporary orders awarding joint legal decision-making authority to both parents, and parenting time with Robert Kivlighn II (“Father”) to occur in Arizona. Mother argues the temporary orders are invalid because (1) Arizona is not the minor child’s home state, (2) the superior court did not make statutory findings pursuant to Arizona Revised Statutes (“A.R.S.”) section 25-403, and (3) as Father had not established paternity by the time she moved, she did not have to obtain Father’s consent to move with the child to Wisconsin. ¶ 2 We previously issued an order accepting jurisdiction, denying relief, and stating a written decision would follow. This is that decision. We hold that (1) under AR.S. § 25-1002(7)(b) when a child of six months of age or younger has lived in Arizona “from birth with a parent,” and the proceeding is commenced by a parent still living in Arizona within six months of the child leaving Arizona, Arizona remains the home state of the child; (2) statutory findings under AR.S. § 25^403 are not mandatory when determining temporary orders under A.R.S § 25-404; and (3) a voluntary acknowledgement of paternity has the same effect as a judgment, thereby requiring Mother to obtain Father’s consent or a court order to permanently move the child out of Arizona. FACTS AND PROCEDURAL BACKGROUND ¶ 3 M.K. was born outside of marriage in Aizona on July 21, 2016. M.K.’s birth was registered with the Arizona Department of Health Services (“Department”) on July 31, 2016, and the Department issued a “certifí-cate of live birth” on December 5, 2016. The certificate lists Kivlighn as the father. A-though Mother and Father have never married, they and M.K. lived in Arizona together until September 29, 2016, when Mother left Arizona with M.K. after a disagreement with Father. Mother arrived in Wisconsin on October 2, 2016. ¶4 Father initially believed Mother and M.K. had left Arizona to visit Mother’s family in Wisconsin and would return to Arizona. However, Father received a text message from Mother on November 23, 2016, informing him that she had decided to permanently relocate to Wisconsin with M.K. Father traveled to Wisconsin to try to convince Mother to return to Arizona, but was unsuccessful. ¶ 5 Immediately after he retened from Wisconsin, on November 28, 2016, Father petitioned to establish his paternity, legal decision-making, parenting time and child support (“the petition”), and moved for temporary orders. M.K. was four months and nine days old when Father filed the petition. ¶ 6 On December 2, 2016, Mother filed a petition to establish paternity, legal decision-making (custody) and parenting time in Wisconsin, and verified under oath that Father was M.K.’s biological father. The Arizona and Wisconsin courts conferred and agreed the Arizona court would decide which state had jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). After the parties briefed the jurisdictional issue in December 2016, the superior court issued an order in which it determined Arizona had “exclusive home state jurisdiction to make the initial child custody order,” and that Arizona was “not an inconvenient forum” pursuant to A.R.S. § 25-1037(B) (“the jurisdictional order”). ¶7 On February 10, 2017, the superior court conducted an evidentiary hearing on Father’s motion for temporary orders regarding legal decision-making, parenting time, and child support. Father testified he cared for M.K., held and nurtured him as much as he could, utilizing the parenting skills he had learned as the oldest of seven siblings. Father sought to establish an equal parenting plan, as he wanted to actively participate in M.K.’s up-bringing, feed him from a bottle, change his diapers, and teach him as he had with his six younger siblings. ¶8 During the hearing, Father denied Mother’s allegation that he had a substance abuse problem, although he admitted that he previously legally used alcohol and marijuana with Mother in Colorado. Father provided the court with drug test results, showing negative results for alcohol and a variety of drugs and other substances. Father further denied he had any criminal history, and stated that he had never been cited for driving under the influence. Father testified he had not experienced any employment problems or been terminated from a job because of drug use. Father denied suffering from suicidal tendencies or mental health problems. Father also denied all of Mother’s allegations of physical abuse, although he admitted to having “called her names” and being aggressive and angry at times. Father’s sister testified and opined Mother restricted Father’s access to M.K. before she left for Wisconsin. ¶ 9 Mother testified Father had a substance abuse problem because he drank daily and smoked marijuana. Mother asserted Father was rarely involved in caring for M.K. Mother further testified she has extensive family support in Wisconsin, where she grew up, and asserted that neither Father nor his family had helped with M.K. in any significant way. She denied having restricted Father’s access to M.K., noting she had provided Father with photos, told Father he could “FaceTime” with M.K., and “never told him he could not see his child.” Mother admitted, however, she would not allow Father to be with M.K. for an extended amount of time, and confirmed she did not consider Father a primary caregiver. ¶ 10 At the conclusion of the temporary orders hearing on February 10, 2017, the superior court entered an interim order requiring Father to submit to a hair follicle test. The court declined to require supervised parenting time. The court granted Father daily parenting time of two three-hour increments until February 15, at which point Mother could return to Wisconsin with M.K. ¶ 11 On February 15, 2017, the superior court filed temporary orders, which included a section titled “Best Interest Findings: A.R.S. § 25-403.” In its order, the court found Father’s paternity “sufficiently established,” awarded Father parenting time to take place in Arizona, and awarded Father and Mother joint legal decision-making authority. Mother then filed this special action seeking review of the superior court’s temporary orders. SPECIAL ACTION JURISDICTION ¶ 12 Special action jurisdiction is discretionary, but appropriate when no “equally plain, speedy, and adequate remedy by appeal” exists. Ariz. R.P. Spec. Act. 1(a). Because temporary orders under A.R.S. § 25-404 are “merely preparatory to a later proceeding” that might affect the judgment or its enforcement, they are not appealable; leaving a party with no adequate remedy by appeal. Villares v. Pineda, 217 Ariz. 623, 624-25, ¶ 10-11, 177 P.3d 1195 (App. 2008); see Ariz. R.P. Spec. Act. 1(a). But cf. A.R.S. § 25-1064 (an appeal may be taken from a final order in a proceeding enforcing the UCCJEA). We therefore have discretion to accept special action jurisdiction over temporary orders. Villares, 217 Ariz. at 625, ¶ 11, 177 P.3d 1195; see DePasquale v. Super. Ct. In and For County of Maricopa, 181 Ariz. 333, 336-37, 890 P.2d 628 (App. 1995) (the proper challenge to a temporary order is by special action). ¶ 13 We also have discretion to accept special action jurisdiction “when statutes or procedural rules require immediate interpretation,” and a petition “presents a purely legal issue of first impression that is of statewide importance.” Escalanti v. Super. Ct. In and For County of Maricopa, 165 Ariz. 385, 386, 799 P.2d 5 (App. 1990); 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). ¶ 14 The petition for special action in this case raises an issue of first impression regarding the application of jurisdiction of A.R.S. § 25-1031(A)(l) for a child under six months of age as defined in A.R.S. § 25-1002(7)(b). Also, there is no controlling authority whether the superior court must make statutory findings of fact pursuant to A.R.S. § 25-403 from a § 25-404 temporary order hearing in which parenting time and decision-making authority are contested. Finally, whether establishment of paternity by a voluntary acknowledgement pursuant to A.R.S. § 25-812(D) has the same effect as a judgment, is an issue which requires our immediate interpretation. ¶ 16 Thus, in the exercise of our discretion, we accept special action jurisdiction pursuant to A.R.S. § 12-120.21(A)(4) and Arizona Rule of Procedure for Special Action 1(a). DISCUSSION A. Arizona has “Home State” Jurisdiction of the Child. ¶ 16 Mother contends the superior court’s temporary orders are invalid because Arizona is not M.K.’s “home state” pursuant to the UCCJEA, and therefore the superior court did not have jurisdiction to enter them. Mother argues a minor child less than six months old, who has not lived exclusively in one state, has no “home state” pursuant to UCCJEA. Consequently, Mother argues the superior court erred by finding M.K. had a more substantial connection to Atizona than to Wisconsin. ¶ 17 Arizona and Wisconsin have adopted nearly identical versions of the UC-CJEA. See A.R.S. §§ 25-1001 to -1067; Wis. Stat. § 822.01-.47. We review de novo whether a court has subject matter jurisdiction under the UCCJEA. Mangan v. Mangan, 227 Ariz. 346, 350, ¶ 16, 258 P.3d 164 (App. 2011); see Willie G. v. ADES, 211 Ariz. 231, 233, ¶ 8, 119 P.3d 1034 (App. 2005) (this Court reviews de novo matters of statutory interpretation and mixed questions of fact and law). ¶ 18 Under the UCCJEA, a state with home state jurisdiction has a jurisdictional priority. See A.R.S. § 25-1031(A)(l-4) (paragraphs 2, 3, or 4 apply only if a court of another state does not have jurisdiction under paragraph 1, which defines parameters of home state jurisdiction, or if a home state court abdicates its jurisdiction to a more appropriate state). ‘‘[W]hen there is a statutory conflict in the application of home state jurisdiction, the conflict should be resolved to strengthen (rather than dilute) the certainty of home state jurisdiction.” Welch-Doden v. Roberts, 202 Ariz. 201, 208, ¶ 82, 42 P.3d 1166 (App. 2002). The UCCJEA revised the original Uniform Child Custody Jurisdiction Act, which was adopted in Arizona in 1978 to establish “uniformity and the need to avoid disputes between competing jurisdictions,” but produced inconsistencies in interpretation among state courts. Id. at ¶¶ 24, 29. The UCCJEA prioritized home state jurisdiction over other bases for jurisdiction and “completely eliminate!® a determination of ‘best interests’ of a child from the jurisdictional inquiry.” Id. at ¶¶ 30-31. But cf. In re Ramirez v. Barnet, 241 Ariz. 145, 147-48, 162, ¶¶ 13, 27, 384 P.3d 828 (App. 2016) (if a child has no home state, the alternative ground for jurisdiction will apply, and the Parental Kidnapping Prevention Act, unlike the UC-CJEA, will require the best interests of the child be determined to give full faith and credit to custody orders between states). ¶ 19 In Arizona, the superior court has jurisdiction to make an initial child custody determination if “[Arizona] ... was the home state of the child imthin six months before the commencement of the proceeding and the child is absent from [Arizona] but a parent or person acting as a parent continues to live in [Arizona].” A.R.S. § 26-1031(A)(l) (emphasis added). For a child under the age of six months, “home state” is “the state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state.” A.R.S. § 25-1002(7)(b) (emphasis added). After an initial legal decision-making and parenting time determination has been made, continuing jurisdiction is governed by “a separate (but intertwined) statutory scheme” under A.R.S. § 25-1032(A). Welch-Doden, 202 Ariz. at 204, ¶ 14, 42 P.3d 1166. ¶ 20 The court in Welch-Doden reconciled a conflict between § 25-1031(A)(l) and the definition of “home state” under § 25-1002(7)(a) (limits home state jurisdiction only to states where a child lived for at least six consecutive months immediately before the proceeding was initiated) by extending the six-consecutive-months long requirement of § 25-1002(7)(a) to any time “within six months before the commencement of the [child custody] proceeding.” Welch-Doden, 202 Ariz. at 208-09, ¶ 33, 42 P.3d 1166 (quoting A.R.S. § 25-1031(A)(l)). The court reasoned that “[g]iven the fundamental purpose of the UCCJEA to establish the certainty of home state jurisdiction, it is clear to us that § 25-1031(A)(l) acts to enlarge and modify the definition of home state under § 25-1002(7)(a).” Id. (emphasis added). The drafters intended for home state jurisdiction to have priority and this extended home state jurisdiction promotes that intent. Id. ¶ 21 No Arizona precedent has applied the home state jurisdiction of § 25-1031(A)(1) to the definition of home state of a child six months or younger under § 25-1002(7)(b). Although this court reconciled the extended home state jurisdiction with § 25-1002(7)(a), “there is no indication the legislature intended ‘the home state ,.. within six months,’ to apply only to children six months of age or older.” In re Burk, 252 S.W.3d 736, 741 (Tex. App. 2008). Like the Texas Court of Appeals, we have found nothing in the UCCJEA or Arizona legislative history indicating any contrary legislative intent and find the interpretation from Texas persuasive. This interpretation is consistent with other UCCJEA jurisdictions. See, e.g., Meyeres v. Meyeres, 196 P.3d 604, 607 (Utah Ct. App. 2008) (determining Utah was home state of a child who was born in Utah but moved to Kansas at six weeks of age); Baker v. Tunney, 201 So.3d 1235, 1236-39 (Fla. Dist. Ct. App. 2016) (Florida was the home state, pursuant to “the plain language of the statute,” because a child born in Florida lived in Florida with both parents "until the mother relocated to New York when the child was less than two weeks old”); Fleckles v. Diamond, 393 Ill.Dec. 784, 35 N.E.3d 176, 188, ¶52 (2015) (Colorado, not Illinois, was the child’s home state upon birth, because the UCCJEA’s “home state” is the birth state for a child less than six months old); Gray v. Gray, 139 So.3d 802, 806 (Ala. Civ. App. 2013) (Alabama had jurisdiction regarding the divorce but not custody issues as Michigan, not Alabama, was child’s “home state” because child was born in Michigan and had never lived in Alabama.). ¶ 22 Here, the facts closely resemble the facts in the Texas case and the other cited cases. M.K. was born in Arizona. M.K. lived in Arizona after his birth for approximately two months. Then, Mother moved M.K. to Wisconsin, where she and M.K. lived for approximately two months before Father filed the petition in Arizona. Father lived in Arizona when M.K. was born and has continued to live in Arizona. ¶23 Section 25-1031(A)(l) provides that Arizona has jurisdiction to make an initial child custody determination if it was the home state within six months before commencement of the proceeding, and the child is absent from Arizona but a parent continues to live in Arizona. Father filed the Arizona proceeding on November 28, 2016. M.K. had lived in Arizona from birth to September 29, 2016, when Mother moved with him to Wisconsin. September 29, 2016, falls within the six months preceding the filing on November 28, 2016. Accordingly, Arizona was the home state within six months before the Arizona proceeding commenced, and Arizona has jurisdiction under A.R.S. § 25-1031(A)(1). Mother’s argument that M.K. did not live solely in the state of birth, and thus has no home state, fails. ¶ 24 Mother further argues the superior court erred by finding M.K. had a more substantial connection to Arizona than to Wisconsin; she contends the court should have declined to exercise jurisdiction as an inconvenient forum pursuant to A.R.S. § 25-1037(A) and (B). ¶ 25 Under the UCCJEA, once the superi- or court determines it has jurisdiction, it may nevertheless decline to exercise its jurisdiction at any time if it determines that “it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” A.R.S. § 25-1037(A). Here, the superior court provided detailed analysis of why Arizona is not an inconvenient forum, analyzing all the § 25-1037(B)(l-8) factors. Upon review of the record de novo, we find substantial evidence supporting the superior court’s analysis and conclusion. Welch-Doden, 202 Ariz. at 210-11, ¶¶ 43-44, 42 P.3d 1166. ¶ 26 The superior court did not err by finding Arizona is M.K.’s home state and that it has exclusive jurisdiction in compliance with §§ 25-1031(A)(l), (B), and -1037(B). B. Statutory Findings Under A.R.S. § 25-403 Are Not Mandatory When Determining Temporary Orders Under A.R.S. § 25-404. ¶ 27 Mother argues the superior court’s temporary orders are invalid because the court failed to make specific findings pursuant to A.R.S. § 25-403(B). Mother contends the plain language of subsection (B) extends the specific findings requirement to all contested custody orders, given the best interests of the child is the primary consideration in awarding legal decision-making and parenting time. See Hays v. Gama, 205 Ariz. 99, 102, ¶ 18, 67 P.3d 695 (2003); A.R.S. § 25-403(A). ¶ 28 We review the superior court’s interpretation of statutes and procedural rules de novo. Mara M. v. ADES, 201 Ariz. 503, 505, ¶ 15, 38 P.3d 41 (App. 2002). We start by giving effect to the intent of the legislature. See Pima County v. Pima Coun ty Law Enf't Merit Sys. Council, 211 Ariz. 224, 227, ¶ 13, 119 P.3d 1027 (2005). “[W]e interpret court rules according to the principles of statutory construction.” Potter v. Vanderpool, 225 Ariz. 495, 498, ¶ 8, 240 P.3d 1257 (App. 2010). If the language of a statute or rule is unambiguous, “we apply it as written.” Roberto F. v. DCS, 237 Ariz. 440, 441, ¶ 6, 352 P.3d 909 (2015). Only if the language is unclear do “we apply secondary principles of construction, such as examining the rule’s context, its relationship to related rules, its background, and the consequences of differing interpretations.” Id. “We seek to harmonize and attain consistency among related statutory provisions in the context of the overall statutory scheme.” Andrew R. v. ADES, 223 Ariz. 453, 458, ¶ 16, 224 P.3d 950 (App. 2010). ¶29 The Arizona Constitution vests our supreme court with the “[p]ower to make rules relative to all procedural matters in any court.” Ariz. Const. art. 6, § 5(5); Seisinger v. Siebel, 220 Ariz. 85, 88, ¶ 7, 203 P.3d 483 (2009). The Rules of Family Law Procedure “govern the procedure in the Superior Court of Arizona in all family law cases, including paternity, and all other matters arising out of Title 25, Arizona Revised Statutes (A.R.S.).” Ariz. R. Fam. Law P. 1. ¶ 30 Rule 82 of the Arizona Rule of Family Law Procedure reads that “[fjindings of fact and conclusions of law are unnecessary on decisions of motions under Rules 32 and 79 or any other motion, except as provided in paragraph C.” Ariz. R. Fam. Law P. 82(A) (emphasis added). The “paragraph C” exception does not apply here; therefore, the rule’s directive that findings of fact and conclusions of law are not necessary for motions applies to motions for temporary orders under Rule 47. ¶ 31 Section 25-404(A) also addresses temporary orders. Under that statute, once a party has filed a motion for a temporary order supported by “pleadings as provided in § 25-411,” “[t]he court may award temporary legal decision-making and parenting time under the standards of § 25-403 after a hearing, or, if there is no objection, solely on the basis of the pleadings.” Section 25-404 does not, however, direct the superior court to make detailed § 25^03 findings. ¶ 32 Mother argues statutory findings are required because temporary orders resolve contested issues, and § 25-403(B), therefore, extends the requirement to make specific findings. Mother also argues the court’s “original” determinations pursuant to § 25-403(A) include temporary orders. The arguments place §§ 25-403 and -404 in conflict. However, “where two statutes deal with the same subject, the more specific statute controls.” Pima County v. Heinfeld, 134 Ariz. 133, 134-35, 654 P.2d 281 (1982). Here, both §§ -403 and -404 concern determinations of legal decision-making and parenting time. The language “either originally or on petition for modification” in § 25-403(A) includes a spectrum of circumstances presented by various types of petitions and is a general statute. By contrast, § 25^04 only applies to temporary orders, and is triggered only after a party to an “originally” filed petition files a motion for a temporary order. Section 25-404 is the more specific statute, applicable only under certain conditions, and its discretionary provision controls the content of temporary orders over the mandatory requirement of § 25-403 to “make specific findings on the record about all relevant factors.” A.R.S. § 25-403(B). ¶ 33 Additionally, “[w]hen the legislature has specifically included a term in some places within a statute and excluded it in other places, courts will not read that term into the sections from which it was excluded.” State v. Gonzales, 206 Ariz. 469, 471, ¶ 11, 80 P.3d 276 (App. 2003). Here, the term “shall” is not included in § 25-404(A), although it is included in sections 25-403(A) and (B). We will not read “shall” into § 25-404, when its drafters omitted it. ¶ 34 Moreover, the requirement in § 25-403(B) that the superior court make specific findings on the record about all relevant factors and the court’s reasoning “exists not only to aid an appellant and the reviewing court, but also for a more compelling reason—that of aiding all parties and the family court in determining the best interests of the child or children both currently and in the future.” Reid v. Reid, 222 Ariz. 204, 209, ¶ 18, 213 P.3d 363 (App.2009). Given the transitory nature of temporary orders, requiring detailed findings regarding all aspects of a pending case is not warranted. The temporary order is not appealable, so it only marginally, at best, helps a “reviewing court,” and a temporary order “[d]oes not prejudice the rights of the parties or of any child that are to be adjudicated at the subsequent hearings in the proceeding,” A.R.S. § 25-316(F)(1), and “terminates when the final decree is entered....” A.R.S. §25-316(F)(4); see Ariz. R. Fam. P. Rule 47(M) (“Temporary orders become ineffective and unenforceable upon termination of an action either by dismissal or following entry of a final decree....”). Given the extraordinary number of motions for temporary orders handled by the superior courts, and the minimal utility of detailed findings in such orders, we decline to mandate that § 25-403 findings be made in every temporary order. ¶ 35 For these reasons, we hold that superior courts are not required to make findings addressing the A.R.S. § 25-403 factors when entering temporary orders regarding legal decision-making and parenting time pursuant to A.R.S. § 25-404. See Ariz. R. Fam. P. 82 (findings are “unnecessary” in resolving motions). Although A.R.S. § 25-404 authorizes a superior court to award legal decision-making and parenting time under the standards of § 25^103, it does not require the court to make findings on those factors. Thus, the superior court did not commit reversible error by not making all the findings under § 25-403. C. Paternity is Voluntarily Established by a Registered Acknowledgement of Paternity Under A.R.S. § 25-812. ¶36 Mother argues paternity was not established by the time she left for Wisconsin, and therefore she was not required to obtain Father’s “consent” to remove M.K, from Atizona pursuant to AR.S. § 13-1302(B), Mother contends M.K.’s birth certificate was not signed by Father and Father did not file a petition to establish paternity until Mother already resided in Wisconsin with M.K. Therefore, Mother argues the court erred by considering Father’s lack of consent to Mother’s relocation when rejecting a long-distance parenting plan. We disagree with both the premise and conclusion of Mother’s argument. ¶ 37 Parents of a child born out of wedlock may voluntarily establish paternity by filing a notarized or witnessed statement with the Department of Economic Security or the Department that contains the Social Security numbers of both parents, and is “signed by both parents acknowledging paternity or two separate substantially similar notarized or witnessed statements acknowledging paternity.” A.R.S. § 26-812(A)(l). “Once signed, a purported voluntary ac-knowledgement of paternity is presumed valid and binding until proven otherwise.” Andrew R. v. ADES, 223 Ariz. 453, 467, ¶ 17, 224 P.3d 950 (App. 2010) (citing Stephenson v. Nastro, 192 Ariz. 475, 483, ¶ 26, 967 P.2d 616 (App. 1998)). ¶ 38 “[T]he father’s name shall be stated on a birth certificate ... [i]f a mother and father who are not married to each other at the time of birth and were not married to each other in the ten months before the birth voluntarily acknowledge paternity pursuant to § 25-812....” AR.S. § 36-334(0(2) (emphasis added); see A.R.S. § 36-383(B)(l-3) (to register a birth certificate from a birth that occurred in a hospital, a chief administrative officer of the hospital obtains information, fills out the birth certificate, and “submit[s] the birth certificate for registration to ... the state registrar.”). “A voluntary acknowledgment of paternity ... is a determination of paternity and has the same force and effect as a superior court judgment,” AR.S. § 25-812(D) (emphasis added). ¶ 39 Here, Mother and Father were never married to each other. But because Father’s name appears on the birth certificate registered with and issued by the Department, Father’s paternity was established with the “force and effect” of a superior court judgment. See A.R.S. §§ 25-812(A)(l), -812(D), - 818(A), 36-334(0(2). Mother could have challenged Father’s acknowledgement of paternity and rescinded it within “[s]ixty days after the last signature [wa]s affixed to the notarized acknowledgment of paternity that is filed with the department of economic security, [or] the department of health services” by filing a written copy of the rescission with the Department. A.R.S. § 26~812(H)(1), (I). The record, however, does not indicate Mother has ever attempted to rescind or challenge the issued birth certificate, timely or otherwise. ¶40 Mother further argues that because the actual birth certificate was not signed by Father, his paternity was not established pursuant to A.R.S. § 25-814(A)(3) (“A man is presumed to be the father of the child if ... [a] birth certificate is signed by the mother and father of a child born out of wedlock.”). However, § 26-814 specifies mere presumptions of paternity to be used if paternity is contested, and is thus subordinate to § 25-812, which governs the voluntary establishment of paternity for “a parent of a child born out of wedlock.” Moreover, in 2003 the legislature amended A.R.S. § 26-812, and specifically deleted the requirement that a father sign a birth certificate to voluntarily establish paternity. 2003 Ariz. Sess. Laws, ch. 230, § 3. Under § 25-812(A), only the voluntary acknowledgment of paternity or an agreed upon genetic test may be used to voluntarily establish paternity for a child bom out of wedlock, D. Mother Needed Father’s Consent or a Court Order to Move M.K. to Wisconsin. ¶ 41 Mother argues that as a parent without a specific court order designating parental decision-making, she was not obligated to obtain Father’s consent before moving with M.K. to Wisconsin. We disagree. ¶ 42 “A father has a right to co-equal custody of his child but not exclusive custody absent a court order to that effect.” Maricopa County Juv. Action No. JD-4974, 163 Ariz. 60, 62, 785 R.2d 1248 (App. 1990). Our legislature has declared, as Arizona public policy, that it is in the best interests of a child, absent evidence to the contrary, “[t]o have substantial, frequent, meaningful and continuing parenting time with both parents” and “[t]o have both parents participate in decision-making about the child.” A.R.S. § 25-103(B)(1), (2). This policy is also reflected in A.R.S. § 25-808(A), when upon the filing of a petition for legal decision-making and parenting time with an attached birth certificate or an acknowledgment of paternity, the court issues a preliminary injunction which, among other orders, prohibits “removing any natural or adopted child of the parties ... from the jurisdiction of the court without the prior written consent of the [other] parity] or the permission of the court.” A.R.S. § 25-808(B)(1)(b). ¶43 Likewise, a parent commits “custodial interference” if he or she knowingly “[b]efore the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.” A.R.S. § 13-1302(A)(2); State v. Donahue, 140 Ariz. 55, 57, 680 P.2d 191 (App. 1984) (father did not have the right to custody of the child to the exclusion of mother in the absence of a court order to that effect). Our supreme court stated the purpose of the custodial interference statute was “to stem the flood of child-stealing acts often attendant to domestic relations cases.” State v. McLaughlin, 125 Ariz. 505, 507, 611 P.2d 92 (1980); Donahue, 140 Ariz. at 57, 680 P.2d 191. A parent’s removal of a child from Arizona to another state, without consent of the other parent or a court order, constitutes withholding the child from the other parent. State v. Wood, 198 Ariz. 275, 277-79, ¶¶ 10-13, 8 P.3d 1189 (App. 2000) (holding that § 13-1302(A)(2) applies to any parent who interferes with the other parent’s right of access to and custody of a child by taking or withholding that child from the other parent). Given the public policy of this state, we disagree with Mother that she could permanently remove the child from Arizona without either obtaining permission from Father or a court order. ¶ 44 Mother further argues this was not a relocation case and the superior court erred by considering relocation factors under A.R.S. § 25-408. We agree that this is not a relocation case under A.R.S. § 25-408. Buencarnino v. Noftsinger, 223 Ariz. 162, 163, ¶ 8, 221 P.3d 41 (App. 2009) (two prerequisites need to be met before applying § 25-408: (1) a written agreement or court order providing for custody or parenting time by both parents, and (2) both parents residing in Arizona). Although this is not a relocation case under § 25-408, the superior court may consider § 25-408 factors in resolving a long-distance parenting issue. Buencamino, 223 Ariz. at 163, n. 3, 221 P.3d 41 (“Even when the § 25-408 relocation provisions are not required to be considered, family court judges may, of course, choose in their discretion to consider some or all of the factors listed in § 25-408(1) in appropriate cases.”) ¶ 45 Father was M.K.’s “legal parent” from the date he signed the acknowledgement of paternity. See A.R.S. §§ 25-812(A)(1), (D), -818(A). Thus, Mother was required to secure Father’s agreement or a court order to permanently remove M.K. to Wisconsin. State v. Wood, 198 Ariz. at 279, ¶ 13, 8 P.3d 1189 (the purpose of § 13-1302(A)(2) is to give “both parents equal access to their child and forbidding either parent from hiding a child from the other”); Donahue, 140 Ariz. at 57, 680 P.2d 191. When rendering its temporary order, the superior court did not abuse its discretion by considering Mother’s failure to secure consent from Father before moving M.K. from Arizona. See A.R.S. § 25-403(A)(6) (which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent). E. The Superior Court Did Not Err by Issuing Temporary Orders That May Require Mother to Return to Arizona With M.K. ¶ 46 Mother argues that because Father did not file a petition to establish legal decision-making until she already resided in Wisconsin with M.K., the superior court did not have the authority to enter an order effectively forcing her and the child to move back to Arizona so that Father could exercise his parenting time in Arizona. Because we conclude Father was M.K.’s legal parent as of the day he signed the voluntary acknowl-edgement of paternity, Mother’s argument fails, as the superior court was merely following the statutory scheme described supra, and acted within its authority. ¶ 47 The superior court explained its reasoning for issuing the temporary orders as follows: Section 25-403(A) enumerates specific factors for the Court to consider, among all factors that are relevant to the children’s physical and emotional well-being. The best interest of a child is the primary consideration in awarding legal decision-making authority and parenting time. Hays v. Gama, [citation omitted]. In making the legal decision-making and parenting time determination, the Court is mindful that as a matter of public policy, absent evidence to the contrary, “it is in a child’s best interest: (1) To have substantial, frequent, meaningful and continuing parenting time with both parents[; and] (2) To have both parents participate in deci sion-making about the child.” A.R.S. § 25-103(B). Subject to the results of Father’s hair follicle test, which was ordered at the February 10, 2017 hearing, Mother has not presented sufficient evidence to depart from the public policy to allow both parents “substantial, frequent, meaningful and continuing parenting time” with the child and to participate in decision-making about the child. Indeed, it appeared from the evidence that Mother’s relocation with the child to Wisconsin primarily was for the benefit of Mother and her family—not for the child’s best interests. The Court specifically rejects Mother’s position that (i) the child should be with Mother “24/7”, and (ii) Father should not be permitted overnight parenting time until the child is two years old. Indeed, Planning for Parenting Time: Arizona’s Guide for Parents Living Apart, which Mother introduced into evidence, provides that: (i) “[bjabies begin to respond to a range of different (but equally valuable) types of parenting styles that each parent provides”; and (ii) “it’s important that [babies] have frequent contact with each of their parents and have a stable schedule and routine.” (Arizona’s Guide for Parents Living Apart, p.21). Moreover, contrary to what Mother suggests, the fact that the child is breastfeeding is not a basis to restrict Father’s parenting time. In this regard, the Guide provides: Parents who are not raising their child together must balance the baby’s need to nurse with its need to bond with the father. The parents should talk often and openly with each other about the baby. Breast-feeding shouldn’t be used to stop the father from spending time with the child. Instead, mothers need to offer the father parenting time, and fathers need to be flexible regarding the need of the baby to nurse. A father can feed an infant with the mother’s expressed (pumped) milk, particularly after nursing routines are well established .... (Id., p.57). Finally, it is not possible to create a long-distance parenting plan that facilitates the child’s need to bond with both parents while Mother and the child continue to live in Wisconsin and Father continues to live in Arizona. The Court is mindful that one of the parties will be burdened regardless of which state the Court selects as the primary location for Father’s parenting time. In determining whether the parenting time should occur primarily in Wisconsin or Arizona, the Court considered (among other things): (i) Arizona is the child’s “home state” and birth state; (ii) Mother, Father and the child lived together in Arizona from the child’s birth until at least September 29, 2016, when Mother decided to relocate with the child to Wisconsin without Father’s consent; (iii) Father (who Mother is asking pay child support) has an established job in Arizona, which he would have to give up to relocate to Wisconsin in order to have frequent contact with the child; (iv) Mother does not have a regular job in Wisconsin that she would have to quit if she decided to relocate to Arizona; (v) Mother testified that, if she continued to live in Wisconsin as she desires, she would be willing to bring the child to Arizona for Father’s parenting time only as her financial resources permitted; and (vi) if Mother continues to live with the child in Wisconsin, Father either will have to miss work frequently or reduce the frequency of his parenting time below the ideal level for the child to bond with Father. ¶ 48 Mother does not cite to any Arizona authority that restricts a superior court from issuing a temporary order requiring parenting time to take place in a state different than where the mother and child currently live. The superior court considered the advantages and disadvantages to both parents when determining whether the best parenting plan for M.K. should have Father’s parenting occur in Arizona or Wisconsin, recognizing that one of the parents would be burdened regardless of which state the court selected. ¶ 49 Thus, Mother has not shown that the superior court abused its discretion by ordering Father’s parenting time to occur in Arizona. Kay S. v. Mark S., 213 Ariz. 373, 383, ¶ 51, 142 P.3d 249 (App. 2006) (in considering and weighing different facts, courts might reach different conclusions without abusing their discretion). We defer to the superior court’s discretionary findings and exercise of judgment regarding witness credibility and the weighing of evidence, if the superior court remains within the bounds of that discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d 676 (App. 1998); In re Marriage of Inboden, 223 Ariz. 542, 544, ¶ 7, 225 P.3d 599 (App. 2010); see Ariz. R. Fam. Law P. 82(A). CONCLUSION ¶ 50 We accept jurisdiction of the petition for special action, but deny relief because the superior court did not err by issuing its temporary orders. . We cite to the current version of applicable statutes and rules when no revision material to this case has occurred. . Mother testified that Father knew she was moving to Wisconsin permanently when she left in September because she "packed [her] car with everything [she] needed” and told him she missed her family and needed their support. . The test results filed with the superior court on February 15, 2017, were negative for any illegal substances. While the parties did not submit the results to this court for review, we have taken judicial notice of them. State v. McGuire, 124 Ariz. 64, 66, 601 P.2d 1348 (App. 1978) ("An appellate court can take judicial notice of any matter of which the trial court may take judicial notice, even if the trial court was never asked to do so.”). . Texas has adopted the UCCJEA. See Waltenburg v. Waltenburg, 270 S.W.3d 308, 315 (Tex. App. 2008). The Texas definition of "home state" reads: "In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent. A period of temporary absence of a parent or a person acting as a parent is part of the period,” Tex. Fam. Code Ann. § 152.102 (West 2015); accord A.R.S. § 25-1002(7)(b) (for a child less than six months old, "home state" is "the state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state.”). . Both Mother and Father analyzed the factors of § 25-403(A) in their pretrial statements filed pri- or to the temporary orders hearing. Although the superior court made detailed findings of fact regarding many of the factors identified in § 25-403, see infra ¶47, it declined "to make the type of detailed findings that would accompany final orders.” . Under A.R.S. § 36-334(C)(2), Father's name could only be registered on the birth certificate if Mother and Father signed a voluntary acknowledgment of paternity. Mother did not address Father’s voluntary acknowledgement of paternity when she argued that Father's fundamental right to parent M.K. did not vest before she left for Wisconsin because Father was not married to her and did not act to establish paternity before her departure. See Pima County Juv. Severance Action No. S-114487, 179 Ariz. 86, 96, 876 P.2d 1121 (1994). Mother relies on an out of state case, in which a Massachusetts trial court was found to have lacked authority to force an unmarried mother and minor child to return from New York because mother was the child's only legal parent at the time they moved from Massachusetts to New York. See Smith v. McDonald, 458 Mass. 540, 941 N.E.2d 1, 9 (2010), We do not find Smith persuasive. Father was M.K.’s legal parent at the time Mother moved from Arizona to Wisconsin. . Mother’s reliance on the presumption of maternal custody for children bom out of wedlock in A.R.S. § 13-1302(B) is misplaced because "the present case does not involve criminal prosecution, [therefore, the statute] does not apply.” Juv. Action No. JD-4974, 163 Ariz. at 63, 785 P.2d 1248. . " 'Legal parent’ means a biological or adoptive parent whose parental rights have not been terminated. Legal parent does not include a person whose paternity has not been established pursuant to § 25-812 or 25-814." A.R.S. § 25-401. 9. Arizona Supreme Court, Planning for Parenting Time: Arizona's Guide for Parents Living Apart, (2009), available at http://www.azcourts.gov/ portals/31/parentingTime/PPWguidelines.pdf. . In support of her argument, Mother cites several out-of-state cases. See Mark T, v. Jamie Z., 194 Cal.App.4th 1115, 124 Cal.Rptr.3d 200, 203 (2011) (a trial court must not issue a conditional order to coerce the custodial parent into abandoning plans to relocate); In re Marriage of Smith, 378 Ill.Dec. 1, 3 N.E.3d 281, 282 (2013) (overturning a temporary order requiring mother to either move back to Illinois or lose physical custody of her child); Smith, 941 N.E.2d at 4 (finding Mother of child born out-of-wedlock was free to move before paternity determination); In re Marriage of Littlefield, 133 Wash.2d 39, 940 P.2d 1362, 1363 (1997) (finding a trial court should make parenting plan decisions based on the circumstances of the parents and children as they exist at the time of trial), Given that under Arizona law Father had parental rights at the time Mother took M.K. to Wisconsin, we do not find these cases persuasive.

OPINION HOWE, Judge: ¶ 1 Heather Lynn Turner seeks special action relief from the family court’s granting Liza Michelle Oakley’s motion for reconsideration of the family court’s temporary orders, which gives Oakley rights as a legal parent to minor child C.T. pending the resolution of their marriage dissolution proceedings. In doing so, the family court held that Oakley is presumed to be C.T.’s parent under A.R.S. § 25-814(A)(l). The court also ruled that Turner is equitably estopped from rebutting that presumption because her actions before the proceedings began were “consistent with the position that this was a child of both parties.” Turner argues that the family court erred because A.R.S. § 26-814 applies only to men and cannot be applied to presume paternity by a woman. She further argues that if the presumption applies, the court erred by ruling that she is estopped from rebutting it. ¶2 Special action jurisdiction is appropriate because Turner does not have an “equally plain, speedy and adequate remedy by appeal.” Ariz. R. Spec. Act. 1(a). Orders that are merely preparatory to a later proceeding are not appealable. Villares v. Pineda, 217 Ariz. 623, 624-26 ¶ 10, 177 P.3d 1196, 1196-97 (App. 2008). Because the family court’s temporary orders here are merely preparatory to a later trial on the dissolution, we accept jurisdiction. We grant relief and reverse the family court’s ruling because the presumption of paternity statute, A.R.S. § 26-814, is gender-specific and cannot be applied to—or rewritten by the courts to apply to—women. In so holding, we respectfully disagree with a recent decision of another panel of this Court holding that the female spouse of a child’s mother can claim a presumption of parentage under the statute. McLaughlin v. Jones, 240 Ariz. 560, 382 P.3d 118 (App. 2016), rev. granted, Apr. 18, 2017. Because we conclude that the presumption is not applicable here, we need not reach the issue of equitable estoppel. FACTS AND PROCEDURAL HISTORY ¶ 3 Turner and Oakley, who were in a long-term committed relationship, began attempting to conceive a child through artificial insemination in 2013. Although Turner would carry the child, the pair entered no formal written or oral agreements regarding parenting roles or rights that either would have over the child. The parties discussed whether Oakley should formally adopt the child should Turner become pregnant, but were unsure if adoption was necessary or if “just being on the birth certificate was enough.” Turner did, however, draft a will stating that if she gave birth, Oakley would have sole custody of the child if Turner wei-e to die. Turner and Oakley manned in October 2014. ¶ 4 Oakley played an active role in the artificial insemination process, including reviewing sperm donor profiles, accompanying Turner to appointments, and being with Turner during the insemination procedures. Oakley did not, however, pay for any of the services or sign any fertility clinic documents. Instead, Turner—as the recipient of services—signed them. One of the documents contained a provision stating that Turner agreed that any child born from the insemination process would be the legal child of the recipient, “which designation shall include both recipient and recipient’s husband or partner if applicable,” and that if a child is bom “to husband and wife, such child ... is considered their own.” ¶ 5 Turner became pregnant through an insemination procedure and gave birth to C.T. in September 2015, Oakley was present at C.T.’s birth and cut the umbilical cord. When instructing Turner on how to obtain a birth certificate, a hospital nurse told Turner to list Oakley on the certificate in the section designated “father.” Turner did so, listing both herself and Oakley on C.T.’s birth certificate. Neither Turner nor Oakley took further action to determine whether Oakley needed to formally adopt the child. ¶ 6 This unexplored issue became important in May 2016, when Turner petitioned for dissolution of her marriage to Oakley. In her petition, Turner stated that she and Oakley “have one minor child bom of the marriage,” explaining that Turner was impregnated through artificial insemination and that although Oakley was listed on the birth certificate, Oakley had not formally adopted C.T, Turner asked that she be granted sole legal and physical custody of C.T. and that Oakley receive supervised visitation. She also asked that Oakley be required to pay child support. In a subsequent pleading, Turner asserted that because Oakley is neither C.T.’s natural nor adoptive parent, Oakley could not assert any rights regarding temporary legal decision-making or parenting time. ¶ 7 At the temporary orders hearing, Oakley asserted that she had rights as C.T.’s legal parent. She argued that although she is not the child’s biological or adoptive parent, she is the presumed parent under A.R.S. § 25-814(A)(l), which states that “a man is presumed to be the father of a child” if he and the mother were married within ten months of the child’s birth. The family court disagreed, concluding that the presumption of paternity statute applied only to men and that Oakley therefore could not claim the presumption, The court also concluded that even if the presumption applied, the presumption would be rebutted because Oakley is not biologically related to C.T. Accordingly, the family court entered temporary orders identifying Turner as C.T.’s sole legal parent, but granting Oakley supervised visitation under A.R.S. § 25-409. ¶ 8 Oakley moved for reconsideration. While the motion was pending, another panel of this Court issued its decision in McLaughlin, holding that A.R.S. § 25-814(A)(l) must be read and applied gender-neutrally. 240 Ariz. at 564 ¶ 14, 382 P.3d at 122. It also held that the child’s biological mother in that case was equitably estopped from disputing that her wife was the legal parent in the parties’ dissolution proceedings because the parties had entered into an agreement guaranteeing equal parenting rights, her wife was a beneficiary of her will, and her wife had been a de facto parent of the child for two years. Id. at 565-67 ¶¶ 16-23, 382 P.3d at 123-24. Noting that McLaughlin now guided its decision, the family court granted Oakley’s motion for reconsideration. The family court ruled that Oakley was a presumed parent and set an evidentiary hearing to determine whether evidence rebutted the presumption or whether Turner was estopped from rebutting it. ¶ 9 At the evidentiary hearing, the family court heard testimony from Turner and Oakley about Turner's representations that Oakley was C.T.’s co-parent. The court also considered evidence that they each presented, including social media posts in which Turner called Oakley C.T.’s mother, The family court concluded that Turner was equitably es-topped from rebutting the presumption because the evidence showed that the two worn- en intended to raise the child together as co-parents. Turner petitioned for special action review. DISCUSSION ¶ 10 Turner first argues that the family court erred by holding that the presumption of paternity created by A.R.S. § 25-814(A)(l) applies to Oakley, giving her rights as C.T.’s legal parent. We review issues involving statutory interpretation and constitutionality de novo. Lincoln v. Holt, 215 Ariz. 21, 23 ¶ 4, 156 P.3d 438, 440 (App. 2007). Our primary goal in interpreting a statute is to give effect to legislative intent. JHass Grp. L.L.C. v. Ariz. Dep’t of Fin. Insts., 238 Ariz. 377, 384 ¶ 27, 360 P.3d 1029, 1036 (App. 2015). In doing so, we look to the statute’s plain language as the best indicator of that intent. Azore, LLC v. Bassett, 236 Ariz. 424, 427 ¶ 8, 341 P.3d 466, 469 (App. 2014). Further, we must construe the statute in context with other related provisions and its place in the statutory scheme. Hosea v. City of Phx. Fire Pension Bd., 224 Ariz. 245, 250 ¶ 23, 229 P.3d 257, 262 (App. 2010). When the statute’s language is clear and unambiguous, we must give effect to that language without employing other rules of statutory construction. Indust. Comm'n of Ariz. v. Old Republic Ins. Co., 223 Ariz. 76, 77 ¶ 7, 219 P.3d 285, 287 (App. 2009). Because A.R.S. § 25-814’s language is clearly and unambiguously gender-specific to apply to men, the family court erred by applying the presumption of paternity to Oakley. ¶ 11 In proceedings for dissolution of marriage with children, the family court must often determine who has parental rights to the children. Arizona’s legislature has defined a “legal parent” as “a biological or adoptive parent whose parental rights have not been terminated” and “does not include a person whose paternity has not been established” through voluntary acknowledgement or the presumption of paternity statute. A.R.S. §§ 25-401(4), -812, -814, The presumption of paternity statute provides that “[a] man is presumed to the father of the child if: (1) “[h]e and the mother of the child were married at any time in the ten months immediately preceding the birth” or the child is born within ten months after the marriage is terminated; (2) genetic testing confirms at least a 95% probability of paternity; (3) the mother and father of a child bom out of wedlock sign the birth certificate; or (4) both parents acknowledge paternity in a notarized or witnessed statement. A.R.S. § 25-814(A). The presumption can be rebutted by clear and convincing evidence. A.R.S. § 26-814(C). ¶ 12 Here, the statute’s language clearly and unambiguously provides that it applies solely to men. The statute creates a presumption of “paternity.” “Paternity” means “the fact or condition of being a father.” Webster’s II New College Dictionary 805 (2011). The statute further provides that a “man is presumed to be the father of a child” if one of the enumerated circumstances exists. Given their ordinary meanings, “man” means “an adult male human being,” id. at 664, and “father” means “the male parent of a child,” id. at 408. Each of these words is gender-specific to males and not applicable to females. See Sheldrick v. Maricopa Cty. Superior Court, 136 Ariz. 329, 331, 666 P.2d 74, 76 (1983) (stating that a statute permitting a natural mother to initiate a paternity proceeding or a father to initiate a maternity proceeding did not allow “for the bringing of a paternity action against the mother, nor a maternity action against the father”), ¶ 13 The context in which those words exist further supports this conclusion. See Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, 326 ¶ 12, 266 P.3d 349, 352 (2011) (stating that the courts do not consider words in isolation when interpreting statutes). The Legislature has adopted an entire statutory scheme relating to “Maternity and Paternity Proceedings.” See generally A.R.S. §§ 25-801-818. To give effect to the Legislature’s delineation of different guidelines for each, the ordinary and contrasting meanings of “maternity” and “paternity” need to be applied. Ignoring the gender-specific language would disrupt this statutory scheme. ¶ 14 Notwithstanding the ordinary meaning of the statute’s plain language, Oakley urges that the presumption statute must be construed gender-neutrally so that the presumptions may apply to women as well as men—the conclusion reached in McLaughlin. She contends that the United States Supreme Court’s decision in Obergefell v. Hodges, — U.S. -, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), demands that it be read gender-neutrally. Oakley’s—and the McLaughlin court’s—analysis of Obergefell and the presumption statute is flawed in three respects. ¶ 15 The first flaw is that Obergefell does not extend so far as to require the courts to modify statutory schemes relating to same-sex parenting. Cf. Doty-Perez v. Doty-Perez, 241 Ariz. 372, 375 ¶ 16, 388 P.3d 9, 12 (App. 2016) (stating that Obergefell ⅛ holding does not require the court to retroactively modify adoptions by individuals in same-sex marriages who would have jointly adopted if same-sex marriage was legal at the time). Obergefell established two points of constitutional law under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. First, marriage is a fundamental right that the government cannot deny to same-sex couples. Obergefell, 135 S.Ct. at 2604-05. Second, all states must give full faith and credit to same-sex marriages performed in other states. Id. at 2607-08. Although the Court cited to the importance of legitimizing all unions for, among other reasons, the stability and safeguards it provides to families and children, neither of the Court’s holdings mandates that any laws dealing with maternity and paternity be changed or expanded. See id. at 2599-600; see also Smith v. Pavan, 505 S.W.3d 169, 176-77 (Ark. 2016) pet. for cert. filed (U.S. Feb. 13, 2017) (concluding that Obergefell does not require the state to apply its law deeming a mother’s “husband” as the child’s father for birth certificate purposes in a gender-neutral manner to female same-sex parents); In re P.L.L.-R, 366 Wis.2d 134, 876 N.W.2d 147, 153 (2015) (finding that “Obergefell did not answer questions regarding Wisconsin’s presumption of paternity statute ... [or] artificial insemination statute,” and therefore declining to read those statutes gender-neutrally). ¶ 16 Oakley argues that Obergefell nevertheless requires that the presumption statute be read gender-neutrally because it invalidates state laws “to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” 135 S.Ct. at 2605. But the purpose of the presumption statute is to assist in determining whether a man is a child’s biological father, see Hall v. Lalli, 194 Ariz. 54, 59-60 ¶¶ 13-18, 977 P.2d 776, 780-81 (1999) (discussing the interests of the child, State, and mother in paternity), not to broadly establish a term or condition associated with marriage. Thus, Obergefell does not mean that the presumption statute is unconstitutional unless its language is judicially interpreted gender-neutrally. ¶ 17 The second flaw is that Oakley and the McLaughlin court misunderstand the role of biology in determining parentage in Arizona and in serving as the basis of the presumption statute. The McLaughlin court believed it could interpret the statute’s obviously “male-specific terms” in a gender-neutral fashion because the presumptions were “not necessarily biologically based.” 240 Ariz. at 564 ¶ 15, 382 P.3d at 122. According to McLaughlin, the statute addresses more than mere paternity, and broadly encompasses “the notion of parenthood” “without regard to biology.” Id. But this conclusion fails to recognize that—with the exception of adoption, which is not involved in this case— parentage in Arizona is determined by biology. See A.R.S. § 25-401(4) (“ ‘Legal parent’ means a biological or adoptive parent whose parental rights have not been terminated.”); Doty-Perez, 241 Ariz. at 377 ¶ 23, 388 P.3d at 14 (noting that biology and adoption are “the only legal mechanism that may establish legal parenting status”). The presumption statute must be viewed in that light and not on the basis of a non-statutory “notion of parenthood.” Arizona does not recognize de facto parentage. Doty-Perez, 241 Ariz. at 375 ¶ 15, 388 P.3d at 12. ¶ 18 Moreover, biology—the biological difference between men and women—is the very reason the presumption statute exists. A child’s mother is usually readily determined by a woman’s biological act of giving birth. See Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d 1054, 1059 (Ind. 1992) (“Because it is generally not difficult to determine the biological mother of a child, a mother’s legal obligations to her child arise when she gives birth.”). Thus, Arizona does not need, and does not have, a “presumption of maternity” statute. But the act of birth reveals nothing about the identity of the child’s biological father. See Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 63, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001) (noting that “fathers and mothers are not similarly situated with regard to proof of biological parenthood”). Consequently, to help determine whether a particular man is a child’s father, the Legislature enacted the presumption of paternity statute. Given the statute’s purpose, its limited application to men is not remarkable or constitutionally infirm. See id. (stating that imposing “a different set of rules for making [a] legal determination with respect to fathers and mothers is neither surprising nor troublesome from a constitutional perspective”). Because the biological difference between men and women is the reason for the statute, and biology is used specifically to determine paternity, A.R.S, § 25-814(A) cannot be read gender-neutrally as a presumption of parentage statute. ¶ 19 The third flaw in the analysis is that replacing the male-specific language of A.R.S. § 25-814(A) with gender-neutral terms does not provide any benefit to Oakley or to any person in a same-sex marriage seeking to establish parentage through the presumption statute. Arizona Revised Statutes Section 26-814(C) provides that any presumption established under A.R.S. § 25-814(A) may “be rebutted by clear and convincing evidence.” Because Oakley and other similarly-situated spouses are never biologically related to the children involved in the dissolution proceedings, even if the statute is read gender-neutrally, the other spouse will always defeat the presumption by proving that the former spouse is not biologically the child’s parent. ¶20 The McLaughlin court avoided this problem by invoking the doctrine of equitable estoppel, holding that the child’s biological mother could not rebut the presumption of paternity because she and her spouse had expressly and unequivocally agreed in writing that they would be the child’s parents and share custody. 240 Ariz. at 566 ¶ 21, 382 P.3d at 124. Whether that doctrine can apply to determine a child’s parentage, its fortuitous applicability to a given case does not help resolve this issue of statutory interpretation. Not every same-sex couple will have a written agreement clearly establishing their intent. Here, for example—although our holding that A.R.S. § 25-814(A) does not apply to this case obviates our need to resolve the applicability of equitable estoppel—the family court based its estoppel finding on the testimony of Turner and Oakley and evidence of them social media postings, without evidence of any formal written agreement. The applicability of clear and plain statutory language in such a weighty matter as a child’s parentage should not depend on the quality of the documentation of a couple’s intent. ¶ 21 Oakley attempted to resolve the statutory problem at oral argument before this Court by contending that A.R.S. § 25-814(0) should be interpreted in cases involving same-sex spouses to limit rebuttal evidence only to evidence that the biological mother had not consented to share parental rights with her spouse. But nothing in the language of that subsection indicates that rebuttal evidence should be so limited. Moreover, such an interpretation would mean that the statute would apply differently depending on whether the disputing parties are a same-sex or an opposite-sex couple. An opposite-sex spouse, for example, could defeat a presumption of paternity by presenting clear and convincing evidence that the presumed father is not the child’s biological father. A same-sex spouse, in contrast, could rebut the presumption only by showing he or she did not consent to being a co-parent with the presumed parent. Nothing in A.R.S. § 25-814’s language allows such an outcome, and such an interpretation of the statute would raise its own questions of equal protection of the laws. ¶ 22 We sympathize with Oakley’s desire to legally establish that she is C.T.’s parent alongside Turner and recognize that this issue will recur in other cases with increasing frequency. We also understand C.T.’s need— and the need of every child affected by this issue—to have permanent and stable parental relationships. But the paternity statutes as they are currently written provide no remedy to Oakley, and we cannot rewrite the statutes to do so, no matter how laudable that outcome might be as a matter of public policy. See New Sun Bus. Park, LLC v. Yuma Cty., 221 Ariz. 43, 47 ¶ 16, 209 P.3d 179, 183 (App. 2009) (“Our Legislature did not choose this particular language, however, and we are ‘not at liberty to rewrite the statute under the guise of judicial interpretation.’ ”) (quoting State v. Patchin, 125 Ariz. 501, 602, 610 P.2d 1062, 1063 (App. 1980)). The remedy for Oakley and others similarly-situated lies not with the courts, but with the Legislature. See Riepe v. Riepe, 208 Ariz. 90, 94 ¶ 14, 91 P.3d 312, 316 (App. 2004) (“[Concerns about the social ramifications of this provision are more appropriately raised to the legislature.”). The family court thus erred by finding that Oakley was a presumed parent under AR.S. § 25-814(A), and we grant relief. CONCLUSION ¶ 23 For the foregoing reasons, we accept jurisdiction, grant relief, and reverse the family court’s order finding that Oakley is the presumed parent of C.T. under AR.S. § 25-814(A)(l). . McLaughlin states that only one of the four presumptions is biologically based, A.R.S. § 25-814(A)(2) ("Genetic testing affirms at least a ninety-five per cent probability of paternity.”), 240 Ariz. at 564 ¶ 15, 382 P.3d at 122. McLaughlin claims that the presumption at issue here, A.R.S. § 25—814(A)(1)—a man is presumed to be the father if he is married to the child’s mother within ten months preceding or following the child's birth—is not. Although perhaps not obvious on its face, this presumption is indeed grounded in biology. Ten months roughly corresponds to the human gestation period and "the laws of nature” suggest that the male spouse during that period would be the child’s father. Cf. Anonymous v. Anonymous, 10 Ariz.App. 496, 499, 460 P.2d 32, 35 (App. 1969) (stating that the "presumption of legitimacy” rule requires that "if a husband had access to his wife so drat by the laws of nature he could be the father of a child born in wedlock, it must be presumed to be his”). . At oral argument before this Court, Oakley contended that in addition to biology or adop tion, satisfying one of the paternity presumptions was a third way to establish parentage in Arizona. For that proposition, she relied on the second sentence in A.R.S. § 25-401(4), which states that a "[Ilegal parent does not include a person whose paternity has not been established pursuant to § 25-812 (voluntary acknowledgement] or 25-814 [presumption of paternity]. But that sentence merely means that a man does not come within the definition of "legal parent" unless paternity has been established by (1) voluntarily acknowledging paternity and withstanding any challenge to that acknowledgement pursuant to A.R.S. § 25-812, or (2) proving the existence of a presumption of paternity and withstanding any attempt to rebut that presumption pursuant to A.R.S. § 25-814. It does not create a third way to establish parentage. Moreover, accepting that argument would mean that proving that a person satisfies a presumption proves the fact at issue, paternity. Presumptions do not work that way, however. See Golonka v. Gen. Motors Corp., 204 Ariz. 575, 590 ¶ 50, 65 P.3d 956, 971 (App. 2003) ("Arizona courts generally hold that a presumption is a procedural device that shifts the burden of producing contraiy evidence to the party opposing the presumed fact but leaves the burden of persuasion on the proponent of the evidence,”). Even with the benefit of the presumption, a man must still prove that he is the child's father. The dissent also disputes that parentage in Arizona is based only on biology or adoption. The dissent argues that a man may be legally deemed a father of a child born out of wedlock through the voluntary acknowledgement procedure set forth in A.R.S. § 25-812 without proving a biological relationship to the child, See infra ¶28. But although the acknowledgment procedure does not require a man to present proof that he is the child's biological father, in filing an ac-knowledgement, a man declares that he is the child’s "natural father” and that he is "the only possible father of the child." See Ariz. Dep't of Econ. Sec., Notice of Alternatives, the Ilegal Consequences and Rights and Responsibilities, available at http://www.azdhs.gov/documents/ licensin^vital-records/register-acknowledge ment-patemiiy.pdf (last visited June 2, 2017); see also A.R.S. §§ 25-812(D), (F) (requiring the filing of the acknowledgement and receipt of the notice). The man is therefore claiming that he is the child's biological father. In addition, if the acknowledgement is challenged, the challenge will be resolved by genetic testing of the child, mother, and the alleged father. See A.R.S. § 25-Si 2(E). The court will be required to vacate the determination of paternity if it "finds by clear and convincing evidence that the established father is not the biological father of the child.” Id. Thus, even in cases of voluntary acknowledgement, biology is the basis of determining paternity- . Of course, a woman who is using a surrogate to give birth to her biological child cannot be prohibited from proving that she is the child’s biological mother. Soos v. Superior Court, 182 Ariz. 470, 475, 897 P.2d 1356, 1361 (App. 1994) (holding that the statute prohibiting surrogacy contracts, A.R.S. § 25-218, unconstitutionally violated the biological mother’s right to equal protection of the laws because it did not allow her to prove maternity, but did allow the surrogate's husband to rebut the presumption of paternity). Nevertheless, to the extent that the mother cannot prove that she is the child’s biological mother, the surrogate who gave birth to the child is deemed the child's "legal mother.” A.R.S. § 25-218(B). Moreover, in a maternity action under A.R.S. § 25-806(B), the petition must allege that a woman "is delivered of a child” and that the woman is the child’s mother.

CHIEF JUSTICE BALES, opinion of the Court: ¶ 1 This case concerns the transfer of child custody proceedings from state to tribal court under 25 U.S.C. § 1911(b) of the Indian Child Welfare Act (“ICWA”). We hold that § 1911(b) addresses transfer only of foster care placement and termination-of-parental-rights actions. Although § 1911(b) does not apply to state preadoptive and adoptive placements, such as the proceeding involved here, it also does not prohibit the transfer of such actions to tribal court. I. ¶ 2 A.D. is a member of the Gila River Indian Community (“Community”) and an Indian child for purposes of ICWA. See 25 U.S.C. § 1903(4). Having been prenatally exposed to amphetamines and opiates, A.D. was born in August 2014 in Arizona outside the Community’s boundaries. Five days after her birth, the Arizona Department of Child Safety (“DCS”) removed A.D. from her mother, who is also a Community member, and placed her with Sarah H. and Jeremy H. (“foster parents”). A.D. has since resided with her foster parents outside the Community’s boundaries. Because the foster parents are not members of AD.’s extended family or Indians, they do not qualify for a presumptive preference as an adoptive placement under ICWA. See id. § 1915(a) (stating that, absent good cause to the contrary, preference shall be given to a placement with members of the child’s extended family, other members of the child’s tribe, or other Indian families). ¶ 3 Three days after her foster care placement, DCS filed a dependency petition on behalf of A.D, in the juvenile court and notified the Community. In October 2014, the Community moved to intervene under 25 U.S.C. § 1911(c), which the court allowed. In February 2015, the court found that the state had made “active efforts ... to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family,” see id. § 1912(d), but that those efforts were unsuccessful. The court also found that the birth parents’ continued custody of A.D. was likely to result in serious emotional or physical danger to A.D., found AD. dependent, and granted DOS’s request for a case plan of severance and adoption. The Community agreed to the new case plan. ¶ 4 In March 2015, DCS moved to terminate the parental rights of AD.’s mother and father and notified the Community. The Community requested that the child remain in her current placement until a suitable ICWA placement could be identified. In a June 2015 order, the court terminated the rights of AD.’s parents and also found good cause to deviate from ICWA’s placement preferences. The Community did not appeal from that order. ¶ 5 The foster parents moved to intervene, noting their desire to adopt A.D. The Community did not respond to the motion, and the court allowed the foster parents to intervene. On July 1, 2015, the foster parents petitioned to adopt A.D. After the court scheduled AD.’s adoption for August 26, 2015, the Community successfully moved to stay the adoption proceedings. ¶6 On August 18, 2015, the Community moved to transfer the proceedings to its tribal court under 25 U.S.C. § 1911(b). The Community noted that DCS supported the motion to transfer, but the foster parents and AD.’s guardian ad litem objected. After holding evidentiary hearings, the juvenile court in January 2016 denied the Community’s motion to transfer A.D.’s case to tribal court, finding the foster parents had met their burden of showing that good cause existed under § 1911(b) to deny the motion. ¶7 The Community appealed, and the court of appeals addressed whether “26 U.S.C. § 1911(b) of ICWA allow[s] transfer to tribal court of state preadoptive and adoptive placement proceedings occurring after parental rights have terminated!)]” Gila River Indian Cmty. v. Dep't of Child Safety, 240 Ariz. 385, 389 ¶ 11, 379 P.3d 1016 (App. 2016). The court ruled that § 1911(b) does not. Id. ¶ 8 We granted review to determine whether § 1911(b) of ICWA governs the transfer of preadoptive and adoptive placement actions from state to tribal court, a recurring issue of statewide importance. We have jurisdiction under article 6, section 6(3), of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶ 9 The Community first argues that § 1911(b)’s application was not properly before the court of appeals because the foster parents did not cross-appeal the juvenile court’s denial of the Community’s transfer motion. The foster parents, however, were not aggrieved by the juvenile court’s order and therefore were not required to cross-appeal. See CNL Hotels & Resorts, Inc. v. Maricopa County, 230 Ariz. 21, 25 ¶ 20, 279 P.3d 1183 (2012) (“Arizona’s long-settled rale is that if [an] appellee in its brief seeks only to support or defend and uphold the judgment of the lower court from which the opposing party appeals, a cross-appeal is not necessary.”) (internal quotation marks omitted). In opposing the Community’s transfer motion, the foster parents argued that § 1911(b) did not apply, and they repeated that argument in their answering appellate brief. Thus, whether § 1911(b) applied was an issue properly before the court of appeals. ¶ 10 On the merits, the Community argues that the court of appeals erred in holding that § 1911(b) does not allow transfer of a dependency case after parental rights have been terminated. We review the interpretation of statutes de novo. Valerie M. v. Ariz. Dep’t of Econ. Sec., 219 Ariz. 331, 334 ¶ 10, 198 P.3d 1203 (2009). ¶ 11 With respect to ICWA “we attempt to give effect to the will of Congress as expressed in the statutory language, which we construe liberally in favor of the interest in preserving tribal families.” Id. Nonetheless, we “will not look beyond the clear meaning of express statutory terms unless a literal interpretation would thwart the purpose of the statutory scheme or lead to absurd results.” Steven H. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 566, 670 ¶ 14, 190 P.3d 180 (2008) (quoting Navajo Nation v. Hodel, 645 F.Supp. 825, 827 (D. Ariz. 1986)). ¶ 12 Congress enacted ICWA in 1978 to address the removal of an alarmingly high percentage of Indian children from their Indian families by nontribal public and private agencies and the placement of such children in non-Indian foster and adoptive homes and institutions. See 25 U.S.C. § 1901(4). In response to these concerns, ICWA provides a dual jurisdictional scheme over Indian child custody proceedings. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). ICWA delineates “child custody proceeding” into four categories: foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. 25 U.S.C. § 1903(l)(i)-(iv). ¶ 13 The first jurisdictional component of ICWA, § 1911(a), concerns all four categories of actions and acknowledges exclusive tribal jurisdiction over actions involving Indian children who reside or are domiciled within the tribe’s reservation and over cases involving Indian children who are wards of tribal courts regardless of residence or domicile. The Community does not assert exclusive jurisdiction under § 1911(a) as A.D. has never resided or been domiciled within the Community’s reservation, nor is she a ward of the Community’s court. ¶ 14 The second jurisdictional component of ICWA, § 1911(b), concerns transfer proceedings. It addresses two of the four catego ries of actions involving Indian children by acknowledging concurrent but presumptively tribal jurisdiction over foster care placement and termination-of-parental-rights actions. See Holyfield, 490 U.S. at 36, 109 S.Ct. 1597. Section 1911(b) states: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, [tjhat such transfer shall be subject to declination by the tribal court of such tribe. 25 U.S.C. § 1911(b) (emphasis added). Thus, § 1911(b) by its terms governs only foster care placement and termination-of-parental-rights actions. ¶ 15 ICWA defines “foster care placement” as: [A]ny action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.... Id § 1903(l)(i) (emphasis added). And ICWA defines “termination of parental rights” as “any action resulting in the termination of the parent-child relationship.” Id. § 1903(l)(ii) (emphasis added). ¶ 16 When the Community requested a transfer in August 2015, the action was not one for foster care placement or termination of parental rights because the court had already terminated the rights of A,D.’s parents in June 2015 and that ruling had not been appealed. See id. § 1903(l)(i)-(ii). Therefore, § 1911(b) did not govern the Community’s motion to transfer. ¶ 17 We are not persuaded by the Community’s argument that our reading of § 1911(b) will thwart ICWA’s purpose or lead to absurd results. In various provisions of ICWA, Congress distinguished between foster care placement and termination-of-parental-rights actions on the one hand and preadoptive and adoptive placement actions on the other. See id. § 1903(l)(i)-(iv); id. § 1911(c) (providing right to intervene for foster care placement and termination of parental rights but not for preadoptive or adoptive placement actions); id. § 1912(a) (same regarding notice); id. § 1912(c) (same regarding right to examine reports or other documents); id. § 1914 (same regarding right to petition for invalidation). ¶ 18 Congress’s differentiation throughout ICWA indicates its desire to place certain federal mandates on states for foster care placement and termination-of-parental-rights actions but not preadoptive and adoptive placements. The latter are not presumptively subject to transfer to tribal court under § 1911(b). But even if preadoptive and adoptive placements proceed in state court, a tribe may continue to participate if, as here, it has intervened under § 1911(c). See also In re Appeal in Maricopa Cty. Juvenile, 136 Ariz. 528, 533, 667 P.2d 228, 233 (App. 1983) (finding trial judge acted within discretion in granting tribe’s motion to intervene in adoption proceeding). Moreover, in such cases a state court must follow ICWA’s placement preferences unless it finds good cause to deviate from them. 25 U.S.C. § 1915(a)-(b). Cf. Adoptive Couple v. Baby Girl, — U.S. -, 133 S.Ct. 2552, 2565, 186 L.Ed.2d 729 (2013) (holding that “§ 1915(a)’s rebuttable adoption preferences [do not] apply when no alternative party has formally sought to adopt the child”). ¶ 19 Although the court of appeals correctly held that § 1911(b) did not apply here, that court was mistaken in stating that ICWA does not “allow” the transfer of actions “occurring after parental rights have terminated[.]” Gila River Indian Cmty., 240 Ariz. at 389 ¶ 11, 379 P.3d 1016. By its terms, § 1911(b) provides that a state court must transfer foster care placement or termination-of-parental-rights cases to tribal court unless the state court finds good cause for retaining the case or unless either parent objects to the transfer. Section 1911(b) is silent as to the discretionary transfer of pre- adoptive and adoptive placement actions, but we do not interpret that silence to mean prohibition. See Puyallup Tribe of Indians v. State (In re M.S.), 237 P.3d 161, 166 ¶ 13 (OMa. 2010) (“Reading what is contained in the statute ... does not require us to read into the statute what is not there, i.e., that transfers may only be granted if requested before a termination of parental rights proceeding is concluded.”) (emphasis omitted). ¶ 20 When enacting ICWA, Congress recognized, rather than granted or created, tribal jurisdiction over child custody proceedings involving Indian children. See Holyfield, 490 U.S. at 42, 109 S.Ct. 1697 (“Tribal jurisdiction over Indian child custody proceedings is not a novelty of the ICWA,”); Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,-778, 38,821-22 (June 14, 2016) (codified at 26 C.F.R. pt. 23) [hereinafter 2016 BIA Final Rule] (noting that Congress, in enacting ICWA, recognized that inherent tribal jurisdiction over domestic relations, including child-custody matters, is an aspect of a “Tribe’s right to govern itself’); Cohen’s Handbook of Federal Indian Law 840, 842 (Nell Jessup Newton et al. eds., 12th ed. 2012) (“Before the passage of ICWA, tribes exercised jurisdictional authority over custody of their children,” and § 1911(b) “reflects the legislative compromise made when states and others resisted tribes’ exercise of exclusive jurisdiction over all Indian child custody proceedings.”) (emphasis added). ¶ 21 Thus, tribes have the inherent authority to hear child custody proceedings involving their own children. By enacting ICWA, Congress recognized that authority and clarified the standards for state courts in granting transfer requests of certain types of eases. As a result, although ICWA does not govern the transfer of preadoptive and adoptive placement actions, state courts may nonetheless transfer such cases involving Indian children to tribal courts. ¶22 The 2016 Bureau of Indian Affairs (“BIA”) Final Rule and Guidelines support this conclusion. Both state the following: “Parties may request transfer of preadoptive and adoptive placement proceedings, but the standards for addressing such motions are not dictated by ICWA or these regulations.” 2016 BIA Final Rule, 81 Fed, Reg. at 38,822; see also Office of the Assistant Secretary— Indian Affairs, Bureau of Indian Affairs, U.S. Dep’t of Interior, Guidelines for Implementing the Indian Child Welfare Act 47 (2016). ¶ 23 Our interpretation also comports with rulings by other courts that § 1911(b) only applies to transfer requests for foster care placement and termination-of-parental-rights actions, see In re AP., 289 Mont. 521, 962 P.2d 1186, 1188 ¶10 (1998), but does not preclude transfer of preadoptive and adoptive placement actions. See In re M.S., 237 P.3d at 166 ¶ 14 (“[W]e cannot construe § 1911(b), as a matter of law, as an expression of intent to preclude tribal court jurisdiction when transfer is requested after parental rights are terminated.”). But see In re Welfare of the Child of RS., 805 N.W.2d 44, 47 (Minn. 2011) (concluding that federal and state law did not authorize transfer of a state preadoptive action). ¶ 24 Similarly, other courts have held that § 1911(c), which recognizes a tribe’s right to intervene in foster care placement and termination proceedings, does not bar state courts from allowing intervention in adoption proceedings. See In re Appeal in Maricopa Cty. Juvenile, 136 Ariz. at 533, 667 P.2d 228 (“Although [ICWA] explicitly provides a tribe with the right to intervene in foster care and termination proceedings, it does not preclude a trial court from exercising its discretion in allowing intervention by a tribe in an adoption proceeding.”) (citation omitted); Jeffrey A. v. Tohono O’odham Nation (In re Baby Boy G), 27 A.D.3d 34, 805 N.Y.S.2d 313, 329 (2005) (“Many courts have held that although ICWA does not provide a statutory right of intervention, neither does it prohibit intervention under applicable state law.”). ¶ 25 Our holding does not preclude a tribe from requesting the transfer to tribal court of a preadoptive or adoptive placement, but we have no occasion here to discuss grounds other than § 1911(b)—such as Arizona statutes or the forum non conveniens doctrine— that might support a transfer motion. Cf 2016 BIA Final Rule, 81 Fed. Reg, at 38,822 (noting “it may be appropriate to transfer preadoptive and adoptive proceedings involving children residing outside of a reservation to Tribal jurisdiction in particular circumstances” but declining to identify criteria). The Community relied only on § 1911(b) in requesting a transfer. ¶ 26 In denying the Community’s motion, the juvenile court concluded there was “good cause” under § 1911(b) not to order a transfer pursuant to the statute. The Community argues that the court erred in finding “good cause.” The juvenile court reached the correct conclusion, irrespective of its “good cause” determination, because § 1911(b) does not apply to preadoptive and adoptive proceedings. We accordingly affirm its denial of the motion to transfer. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (“The fact that the trial judge came to the proper conclusion for the wrong reason is irrelevant. We are obliged to affirm the trial court’s ruling if the result was legally correct for any reason.”). ¶ 27 Finally, contrary to the court of appeals and the foster parents’ arguments, we decline to rely on waiver as a basis for affirming the denial of the Community’s transfer motion. See Gila River Indian Cmty., 240 Ariz. at 391 ¶ 18, 379 P.3d 1016. The Community did not expressly waive its right to seek transfer; thus, the only waiver here would be implied because the Community did not seek transfer until after parental rights were terminated. However, “[t]o imply a waiver of jurisdiction would be inconsistent with the ICWA objective of encouraging tribal control over custody decisions affecting Indian children.” In re J.M., 718 P.2d 150, 155 (Alaska 1986) (emphasis omitted). Moreover, courts have historically been reluctant to imply a waiver of Indian rights under ICWA. Id.; cf. In re Guardianship of Q.G.M., 808 P.2d 684, 689 (Okla. 1991) (“Because of the ICWA objective to ensure that tribes have an opportunity to exercise their rights under the Act, and because of the plain language of § 1911(e), a tribe’s waiver of the right to intervene must be express.”). III. ¶ 28 We vacate the court of appeals’ opinion and affirm the juvenile court’s denial of the Community’s motion to transfer.