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FELDMAN, Justice. Petitioner brings this special action proceeding to challenge the trial court’s order vacating an entry of default against the real party in interest, Motorola. We accepted jurisdiction pursuant to Rule 8, Rules of Procedure for Special Actions, 17A A.R.S., and Arizona Constitution art. 6, § 5. JURISDICTION An order vacating entry of default is not appealable; therefore, review by special action proceedings is appropriate. Shemaitis v. Superior Court, 114 Ariz. 288, 288, 560 P.2d 806, 806 (1976). FACTS On May 23, 1980, petitioner filed a complaint in the Superior Court of Maricopa County, seeking recovery of damages for personal injuries allegedly sustained by him as the result of Motorola’s negligence. After service of the complaint, petitioner’s counsel commenced negotiations with Zurich-American Insurance Co. (Zurich), Motorola’s insurance carrier. Petitioner granted Zurich an open extension of the time for answer. Negotiations between petitioner’s counsel and Zurich’s claims representative were not successful. On November 12, 1981, after almost 17 months of negotiations, petitioner’s counsel wrote Zurich’s California claims office, stating that the carrier’s representations of desire to settle were evidently “less than well intended” and stating further as follows: Accordingly, please be advised that you are instructed to answer the Complaint in the above-cited matter within 10 days of the date of this letter. Failure to so answer will require us to default your insured. As an alternative to incurring any additional costs associated with legal defense in this claim, I would propose you provide my client with a good faith offer to settle this matter by November 22, 1981. The November 12 letter was received by Zurich in its California office on November 16, 1981. Zurich did not respond to the letter and took no other action until November 24, when one of its claims representatives called Zurich’s local counsel in Phoenix. That attorney was unable to reach petitioner’s counsel until November 25, at which time he learned that default had been entered on the 24th. Thus, Motorola’s default was entered twelve days after the date of the letter revoking the open extension, eight days after receipt of that letter by Zurich, and two days after the deadline set in that letter had expired. On December 28, 1981, thirty-four days after Zurich discovered that default had been entered, Zurich’s Phoenix counsel appeared for Motorola and moved to set aside the default, pursuant to Rules 55(c) and 60(c), Rules of Civil Procedure, 16 A.R.S. The trial court granted the motion to set aside, and petitioners then brought these proceedings pursuant to Rule 8, Rules of Procedure for Special Actions, 17A A.R.S., claiming that the trial court abused its discretion and acted in excess of its legal authority in granting the motion. Having reviewed the record, we agree, and now vacate the order of the trial court. GROUNDS TO SET ASIDE — GENERAL PRINCIPLES The entry of default may be vacated and set aside “for good cause shown.” Rule 55(c). The good cause necessary for setting aside or vacating entry of default is the same as that required for relief from a judgment by default. DeHoney v. Hernandez, 122 Ariz. 367, 371, 595 P.2d 159, 163 (1979). Motorola sought relief under Rule 60(c)(1). Motorola correctly acknowledges that in order to obtain such relief it must have shown each of the following elements: (1) that it acted promptly in seeking relief from the entry of default; (2) that its failure to file a timely answer was due to either mistake, inadvertence, surprise or excusable neglect; and (3) that it had a meritorious defense. Id. The law favors resolution on the merits and therefore resolves all doubts in favor of the moving party. Union Oil Co. of California v. Hudson Oil Co., 131 Ariz. 285, 640 P.2d 847, 850 (1982). Thus, the trial court has broad discretion and its exercise of that discretion will not be disturbed, unless a clear abuse is shown. Id. This does not mean, however, that all entries of default or judgments by default will be set aside. There is a principle of finality in proceedings which is to be recognized and given effect. Camacho v. Gardner, 104 Ariz. 555, 559, 456 P.2d 925, 929 (1969). Thus, although the trial court has broad discretion to resolve all doubts in favor of setting aside the entry of default or the judgment by default, “the discretion thus vested in the court is a legal, and not an arbitrary or personal discretion. There must be some legal justification for the exercise of the power, some substantial evidence to support it.” Lynch v. Arizona Enterprise Mining Co., 20 Ariz. 250, 252,179 P. 956, 957 (1919), cited in Marquez v. Rapid Harvest Co., 1 Ariz.App. 138, 140, 400 P.2d 345, 347 (1965), vacated on other grounds, 99 Ariz. 363, 409 P.2d 285 (1965) Thus, a proper showing of facts is “a prerequisite to the exercise” of the discretion given the trial court. Smith v. Monroe, 15 Ariz.App. 366, 367, 488 P.2d 1003, 1004 (1971). With these legal principles in mind, we have reviewed the record to determine whether there was sufficient evidence before the court below from which it could have exercised its discretion to find that Motorola had sought relief reasonably promptly; had shown mistake, surprise, inadvertence or excusable neglect; and had shown a meritorious defense. We find that Motorola failed to provide a sufficient showing with regard to any of the elements necessary. PROMPT ACTION Zurich’s counsel, acting on behalf of Motorola, learned on November 25, 1981 that default had been entered the previous day. Motorola appeared and moved to set aside the entry of default on December 28, thirty-four days after it first discovered that default had been entered. Its motion states that it “has made a prompt application for relief.” There is no other reference to the delay in filing the motion. None of the records provided us by the parties contains any explanation regarding the reason it took Motorola five weeks to file its motion. Motorola’s failure to explain the five-week delay in seeking relief provided the trial court with no basis on which it could exercise its discretion to determine that the first of the three required elements had been established. The burden of explanation is upon the party seeking to set aside the entry of default. Sloan v. Florida-Vanderbilt Development Corp., 22 Ariz.App. 572, 574, 529 P.2d 726, 728 (1974). We are unable to agree that the trial court could assume that a thirty-four day delay in filing a six-page motion is prima facie reasonable. Since the delay is not explained, there is no basis on which the court could exercise its discretion to find it reasonable. Cf. Marquez v. Rapid Harvest Co., supra, 99 Ariz. at 366, 409 P.2d at 287. EXCUSABLE NEGLECT In support of its motion to set aside, Motorola filed the affidavit of John Shak, the claims manager for Zurich. Shak’s affidavit is the only explanation respondent has attempted to provide for the failure to file an answer between November 16, the date Zurich received the letter revoking the extension of time to answer, and November 24, the date on which default was taken. The affidavit indicates that Zurich’s office handles and settles hundreds of claims daily, that the file had previously been handled by a claims adjuster who had left Zurich’s office in October 1981, at which time the file was transferred to a different adjuster (Phipps) and that “because of the transfer of the file from one adjuster to another [one month earlier], and the time-consuming procedure of filing the correspondence in the file, Adjuster Phipps probably would not have seen this letter until one week later.... ” There is no other explanation, nor any specifics given with regard to why it should take one week for the letter to reach the adjuster in charge of the file. Nor, in fact, does the affidavit indicate by personal knowledge whether the letter actually did take that long to reach the adjuster in charge of the file. The law requires more. The affidavit or testimony must be based upon personal knowledge and must allege facts sufficient to establish what occurred and explain why it should be found excusable. Western Coach Corp. v. Mark V Mobile Home Sales, Inc., 23 Ariz.App. 546, 548, 534 P.2d 760, 762 (1975). Again, the burden of making that explanation is upon the moving party. Sloan v. Florida-Vanderbilt Development Corp., supra. In its memorandum in this court, Motorola acknowledges that the record “[does] not specifically identify one particular employee or procedure which might have delayed the receipt of .. . [the] letter, by the proper adjuster.” Respondent attempts to make a virtue of this vice by arguing that “mistake or inadvertence is rarely completely explainable,” citing the words of Judge Haire in Martin v. Rossi, 18 Ariz.App. 212, 215, 501 P.2d 53, 56 (1972). Those words, however, are not to be interpreted to mean that one need not explain that which could be explained. Martin v. Rossi held that the court could exercise its discretion to set aside a judgment by default where the defendant had explained his own actions in careful detail and thereby established his justifiable reliance upon the promise of his employer’s attorney that the answer would be filed. Id. at 215-16, 501 P.2d at 56-57. The movant had shown his excusable neglect and was not denied relief because of his inability to explain the actions of one who was not his agent. Rule 60(c)(1) permits vacating the entry of default or judgment by default for “excusable neglect,” not “unexplained neglect.” If, by affidavit or otherwise, the defendant fails to provide sufficient facts to explain the failure to take the responsive action required by the rules, the motion must be denied. Where there is no explanation for the delay, there is no excuse shown and no legal ground for vacating the default, so that an order vacating and setting aside default and judgment by default is an abuse of discretion. Shemaitis v. Superior Court, 114 Ariz. at 289, 560 P.2d at 807 (quoting Marsh v. Riskas, 73 Ariz. 7, 11, 236 P.2d 746, 749 (1951)). Respondent argues, however, that “[t]he complexities of operating a large insurance office with numerous adjusters” can provide sufficient reason to characterize the neglect as excusable in this case. In Cocon-ino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 317 P.2d 550 (1957), and in other cases, the most recent of which is Cook v. Industrial Commission, et al., 133 Ariz. 310, 651 P.2d 365 (1982), we acknowledged that clerical and secretarial errors which occur in a large law office are often unavoidable and are ordinarily excusable. The same principle is applicable to a large insurance office. However, respondent’s reliance on Marvin is misplaced. This is not a clerical or secretarial error case; it is an unexplained error case. Marvin has neither application nor relevance. . [9] Respondent then argues that its neglect was excusable because it was not given sufficient notice of plaintiff’s intent to revoke the open extension and to seek entry of default if an answer had not been filed. No doubt recognizing the difficulty with this argument, respondent argues that the revocation letter was not a clear and unambiguous demand for an answer. This argument is unpersuasive. Unlike Mann v. Hennessey, 2 Ariz.App. 438, 409 P.2d 597 (1966), in which the purported revocation letter stated that “unless you can come up with some figure different than the one you have submitted, it is suggested that you file an Answer immediately,” the letter in the case under consideration here is very definite. It stated: “you are instructed to answer the Complaint ... within 10 days of the date of this letter.” The insurer was also informed that “failure to so answer will require us to default your insured.” It is difficult to see how the demand for filing of an answer could have been more explicit. The succeeding paragraph which indicates a willingness to listen to further settlement offers does not detract from the demand for the filing of an answer, especially since Zurich does not even attempt to attribute its failure to answer to an effort to make futher settlement proposals. Respondent further argues that under Rule 6(e) it was entitled to five additional days for answering (thus, a total of 15 days) because the demand for an answer within 10 days was sent by mail. This argument is even less persuasive. The revocation letter was not a notice or pleading filed or sent under the Rules of Civil Procedure. We know of no decision which applies the time periods set forth in the Rules of Civil Procedure to correspondence between the parties, and as a matter of policy we decline to apply those time periods to such correspondence. One further point should be mentioned. We have recently held in Union Oil Company of California v. Hudson Oil Company, supra, that an insurer which is liable to pay the judgment may appear and move to set aside that judgment under the residual clause (part (6)) of Rule 60(c), where it has been blameless and was prevented from defending by the neglect of its insured. This case presents the reverse of that same principle. Here, as far as the record shows, Motorola was blameless and probably without knowledge of the entire situation which led to the entry of default. However, the insurer, which is liable for payment of the judgment and was in charge of the defense, has failed to establish excusable neglect; under these circumstances, that failure is attributable to the insured. Where the insurer is in charge of the defense, its conduct will be examined in determining whether there was excusable neglect. See Camacho v. Gardner, supra; Mayhew v. McDougall, 16 Ariz.App. 125, 491 P.2d 848 (1971). See also Schering Corp. v. Cotlow, 94 Ariz. 365, 385 P.2d 234 (1963) (holding the client bound by its attorney’s neglect). We hold that on the record before us there were insufficient facts upon which the court could predicate even a discretionary finding that the failure to answer was due to “excusable neglect.” MERITORIOUS DEFENSE The only attempt to show a meritorious defense in this case was by affidavit attached to respondent’s motion to vacate. That affidavit was signed by the adjuster who had originally worked on the file, and its only relevant statement on this issue is as follows: “The claim involved a trip and fall injury suffered by a construction worker while he was on a job site located at a Motorola Construction project .... ” In discussing the element of meritorious defense, we have acknowledged that the affidavit showing such a defense “is not intended to be a substitute for a trial of the facts. It is enough if there is shown from all the material facts set forth in the affidavit ... that there is a substantial defense to the action.” Union Oil Co. of California v. Hudson Oil Co., 131 Ariz. 285, 640 P.2d at 851. The adjuster’s affidavit here falls far short of showing anything. Respondent argues that since this is a “trip and fall injury case,” we must infer that there is a substantial defense. This is not permissible because respondent has failed to present any facts which would support such an inference. A meritorious defense must be established by facts and cannot be established through conclusions, assumptions or affidavits based on other than personal knowledge. See Marsh v. Riskas, 73 Ariz. 7, 236 P.2d 746 (1951); Rogers v. Tapo, 72 Ariz. 53, 230 P.2d 522 (1951); Brandt v. Daman Trailer Sales, Inc., 116 Ariz. 421, 569 P.2d 851 (App.1977). In Union Oil Co. of California v. Hudson Oil Co., supra, and in Hendrie Buick Co. v. Mack, 88 Ariz. 248, 355 P.2d 892 (1960), the affidavits were held sufficient because they set forth facts which, if proved at the trial, would constitute a meritorious defense. The only facts respondent provided here would prove that petitioner fell while working in a construction project. We fail to see what defense this would establish. Though we acknowledge that the showing of a meritorious defense need not be strong, we hold that it must be greater than mere speculation. In conclusion, we hold that respondent failed to provide sufficient facts to permit the trial court to exercise discretion to set aside the entry of default. Accordingly, the trial court’s order is vacated and the case is remanded for proceedings consistent with this opinion. HOLOHAN, C.J., GORDON, Vice C.J., and HAYS and CAMERON, JJ., concur. . The Rules of Civil Procedure will be cited as Rule__ . Respondent had eight days of actual notice between receipt of the demand letter and the entry of default. Our courts have taken judicial notice of “the invention of telephones for the purposes of long distance communication to speed a case such as this along.” Shemaitis v. Superior Court, 114 Ariz. at 289, 560 P.2d at 807.

CAMERON, Justice. Defendant, Robert Henry Hartford, appeals his sentence of 9 years to 10 years for assault with a deadly weapon. Former A.R.S. § 13-249(A). We have jurisdiction of this appeal pursuant to A.R.S. §§ 13-4033 and 13-4037. We need consider only two questions on appeal: 1. Was the defendant’s right to counsel violated by the trial court’s refusal to appoint particular counsel at resen-tencing? 2. Did the defendant have a right to a presentence hearing? The facts necessary to a determination of these issues are as follows. Defendant, Robert Henry Hartford, was convicted on 12 January 1979 of assault with a deadly weapon. He was sentenced to a term of imprisonment of 10 years to life. On appeal, we affirmed the conviction but vacated the sentence and remanded for resen-tencing. State v. Hartford, 130 Ariz. 422, 636 P.2d 1204 (1981). The resentencing took place on 14 January 1982. Mr. James Kemper, the attorney who had assisted the defendant in his appeal, appeared. Defendant informed the trial court that he did not wish to have Mr. Kemper represent him and moved that the court appoint a Mr. Guy Buckley as his counsel. It seems that defendant had heard Mr. Buckley speak on the radio and believed that his experience would be helpful to defendant’s case. The defendant had written to request Mr. Buckley’s assistance but had received no response. The trial court denied defendant’s motion to appoint Mr. Buckley. The defendant then renewed his objection to Mr. Kemper and elected to represent himself. Although the court designated Mr. Kemper as advisory counsel, defendant indicated he would not consult him. The defendant then requested a presen-tence hearing. He urged that resentencing entitled him to a second presentence hearing, at which he could subpoena and cross examine a doctor whose diagnosis of the defendant was included in the previous pre-sentence report of 20 December 1978. The trial court noted that it had reviewed the entire file and that a new resentencing hearing was not necessary. The defendant was sentenced to imprisonment for a term of 9 to 10 years. Defendant appeals. RIGHT TO COUNSEL Defendant urges that the trial court’s refusal to appoint Mr. Buckley to represent the defendant violates due process by depriving him of his right to counsel. We do not agree. It is true that there is a right to counsel at every critical stage in a criminal proceeding, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); State v. Reagan, 103 Ariz. 287, 440 P.2d 907 (1968), and sentencing is a critical stage. State v. Lindsay, 5 Ariz.App. 516, 428 P.2d 691 (1967); Lee v. State, 99 Ariz. 269, 408 P.2d 408 (1965). We note, however, that the defendant in the instant case was afforded counsel. There is no question that Mr. Kemper was qualified and the appropriate attorney to serve as counsel for the defendant. As we have stated: “A defendant may not unreasonably reject the counsel offered to represent him and then, on appeal, complain he was denied the assistance of counsel.” State v. Jones, 113 Ariz. 567, 570-71, 558 P.2d 912, 915-16 (1976). See State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966), cert. denied 385 U.S. 1043, 87 S.Ct. 784, 17 L.Ed.2d 687 (1967); State v. Deluna, 110 Ariz. 497, 520 P.2d 1121 (1974); State v. Reid, 114 Ariz. 16, 559 P.2d 136 (1976). We find no error. RIGHT TO A PRE-SENTENCE HEARING At the time of the resentencing, 14 January 1982, defendant moved that the hearing be continued to enable him to present evidence in mitigation of his sentence. In particular, the defendant wished to subpoena and cross examine a Dr. Hayward, whose diagnosis of the defendant as uncooperative and violent appeared in the pre-sentence report of 20 December 1978. In denying the defendant’s request for a sentencing hearing, the court stated it had reviewed the entire record, including the presentence report prepared for the sentencing in January of 1979. The defendant stated: “ * * * I think I am entitled to a pre-sen-tence hearing and I wish to have a hearing on it. * * * I feel that, if you’re considering the record, it should be my privilege to review the record and contest any papers that you considered. * * * ” We agree with defendant. Rule 26.7, Arizona Rules of Criminal Procedure, 17 A.R.S., states: “26.7 Pre-sentencing hearing; request, purpose, pre-hearing conference “a. Request for a Pre-Sentencing Hearing. When the court has discretion as to the penalty to be imposed, it may on its own initiative, and shall on the request of any party, hold a pre-sentencing hearing at any time prior to sentencing.” In the instant case, under the statute in effect at the time, Former A.R.S. § 13-249(A), the court had considerable discretion as to the penalty to be imposed. Thus the defendant, having stated his desire, is entitled to both inspect the presentence report, Rule 26.6(a), and receive a presentence hearing, Rule 26.7(a). The matter will have to be remanded for resentencing, at which time a new presentence report must be prepared and, after adequate notice, a pre-* sentence hearing afforded the defendant. The matter is remanded for resentencing within 60 days of the issuance of the mandate in this case. HOLOHAN, C. J., GORDON, V. C. J., and HAYS and FELDMAN, JJ., concur.

FELDMAN, Justice. This special action proceeding challenges an order of the trial court denying petitioners’ motion to amend the complaint in order to assert a claim for punitive damages. We accepted jurisdiction pursuant to Rule 8, Rules of Procedure for Special Actions, 17A A.R.S. We now find that the scope of the trial court’s orders denying the motion to amend was an abuse of discretion, and we remand the case for proceedings consistent with this opinion. The action below is a tort claim brought by plaintiffs-petitioners, Jeffrey and Barbara Owen (Owen) against L. A. Donald and Earl Donald (Donald) and Thunderbird Freight Lines, Inc. (Thunderbird). The claim arises out of a collision between two tractor-semitrailer rigs. Discovery in the case indicates that in the early morning hours of October 9, 1979, Jeffrey Owen was driving a truck on I — 10 toward Phoenix when he stopped his truck in the emergency lane. L. A. Donald was driving a truck and semitrailer on the same road, also heading toward Phoenix. Donald passed a vehicle by moving into the fast lane of Interstate 10, and then turned back toward the right-hand lane, but continued directly across that lane and struck the parked vehicle occupied by Owen. There is evidence that just prior to the accident Donald’s vehicle had been weaving down the road and that Donald was, perhaps, dozing when he ran into Owen’s truck. Owen sustained very serious injuries when thrown from the seat of his truck. The original complaint was filed on December 20, 1979. Both Thunderbird and Donald were served. Service on Donald was accomplished at the Donald residence in Palm Springs, California. Thunderbird filed an answer on January 9, 1981 and denied liability for Donald’s actions. Donald did not answer the complaint, and his default was entered. No judgment has been taken against him. In the original complaint, Owen claimed that the accident was caused by Donald’s negligent, careless and reckless operation of a trailer rig. Thunderbird, as Donald’s employer or lessor, was alleged to be vicariously liable for Donald’s negligence. The original complaint did not specifically seek recovery of punitive damages. On March 21, 1980, plaintiffs filed a motion to set, and trial was then set for October 14, 1980. Various continuances were granted because Owen’s medical condition was not stationary. Eventually, a “firm” trial setting was made for November 2, 1981, by a minute entry which provided: “This is a firm trial setting. A continuance of the trial will be granted only upon showing of good cause consistent with the policies of the Civil Reduction Project.” Nevertheless, on October 16, 1981, the parties jointly filed a motion for continuance, stating that Owen’s treating physician had advised that “plaintiff’s condition is not yet stable and ... the parties believe ... it would be inappropriate to proceed to trial until there has been sufficient time for his condition to stabilize.” Accordingly, the trial was continued to May 24, 1982. All during this time, plaintiffs had made attempts to locate Donald and take his deposition. Plaintiffs did not undertake independent measures to locate Donald but, rather, inquired of defense counsel with regard to Donald’s whereabouts and Thunderbird’s ability to produce him for deposition. Through mutual mistake, evidently resulting from erroneous information provided by Thunderbird, both counsel believed that Donald’s whereabouts were unknown. Actually, Donald was still located at the Palm Springs address at which he had been served with summons and complaint. Eventually, plaintiffs decided not to rely further upon the defense and, by their own efforts, located Donald at his Palm Springs address. He was interviewed in December of 1981. At that time, plaintiffs’ counsel first became aware of certain inconsistencies in the driver’s logs which Donald had kept pursuant to Interstate Commerce Commission or United States Department of Transportation (DOT) regulations. When analyzed, the log entries at least supported an argument that Donald had violated DOT regulations which both limit the number of hours a driver may stay on the road and prescribe certain rest periods. After some weeks of attempting to get copies of Donald’s logs for the few days prior to the accident, plaintiff’s counsel obtained some further information and documentation from co-counsel in Washington, D. C. These arrived in March 1982, and Donald’s deposition was then reset for March 26, 1982. At the time of the deposition of Donald in Palm Springs on March 26, 1982, plaintiffs’ counsel were allowed to look at the logs, but were unsuccessful in obtaining copies because defense counsel would not consent to their delivery to plaintiffs’ counsel. The motion for leave to file the second amended complaint was then filed with the court on April 6, 1982, some six weeks prior to the “firm trial date” of May 24 and almost three weeks prior to the discovery “cutoff date” which had been set by the trial court. The proposed form of the second amended complaint which was filed with the motion to amend contained allegations that Donald had been grossly negligent in his driving and that Thunderbird had been independently grossly negligent in its conduct by encouraging or permitting Donald to violate DOT regulations. Plaintiffs prayed for an award of punitive damages against Thunderbird on the basis of these allegations of Thunderbird’s own, grossly negligent conduct. This was the first time that plaintiffs had alleged any independent negligence on the part of Thunderbird. The motion to amend was denied by minute entry order dated April 22, 1982. Plaintiffs then moved for reconsideration and rehearing, renewing the motion for leave to amend and filing a second form of proposed amended complaint. This proposed form of complaint alleged that Donald had been grossly negligent and that Thunderbird was therefore vicariously liable for both compensatory and punitive damages; it also contained allegations of Thunderbird’s independent gross negligence. Thus, by the second proposed form of the second amended complaint, plaintiffs sought punitive damages from Thunderbird both on the theory of vicarious liability and that of Thunderbird’s independent gross negligence. This second attempt to amend was filed on April 27,1982, and was equally unsuccessful; on May 18, 1982, the trial court made its minute entry order denying the motion to reconsider and the motion to amend. Plaintiffs claim that the order of April 22 denying the motion to amend and that of May 18,1982 denying the motion for reconsideration and motion to amend were both an abuse of discretion. EFFECT OF THE TRIAL COURT’S RULING On April 28, after having denied the first motion to amend, the trial judge heard oral argument on the motion to reconsider and to grant leave to amend by allowing the filing of the second form of proposed amended complaint. At that time the trial court indicated from the bench that the “main reason that I did not grant the [initial] motion to amend ... was that I felt you had run out of time for a punitive damage claim.... I did not accept your argument that you were unable to pursue that claim at an earlier time . . .. ” Commenting, therefore, that he would re-read the original complaint to see if it set forth a punitive damage claim and would deny the motion to reconsider if it did not, he took the motion under advisement. Evidently concluding that the original complaint did not actually plead a claim for punitive damages, he eventually denied the motion to reconsider and the second motion to amend by the minute entry order of May 18, 1982. Thus, the breadth of the trial court’s rulings is such that plaintiffs were prevented from amending the complaint to allege a claim for punitive damages on either of the following theories: A. That Donald was grossly negligent and that Thunderbird is vicariously liable for such gross negligence and is thus vicariously liable for punitive damages. B. That Thunderbird was grossly negligent in failing to properly supervise Donald’s compliance with DOT regulations and is liable for punitive damages because of its own, independent acts of gross negligence. The two theories present different issues, and will be dealt with separately in the remaining portion of the opinion. LEGAL PRINCIPLES APPLICABLE The parties more or less agree on the governing principles of law. Leave to amend is discretionary, but amendments will be liberally allowed; trial on the merits of the claim is favored, and amendment will be permitted unless there has been undue delay, dilatory action or undue prejudice. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Spitz v. Bache & Co., 122 Ariz. 530, 596 P.2d 365 (1979); Rule 15(a); Arizona Rules of Civil Procedure, 16 A.R.S. “Mere delay” — the mere fact that the attempt to amend comes late — is not justification for denial of leave to amend. Hageman v. Signal L. P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973). “Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted.” Id. To justify denial of the motion, there must be “undue” delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments or undue prejudice to the opposing party. Spitz v. Bache & Co., 122 Ariz. at 531, 596 P.2d at 366. “Prejudice is ‘the inconvenience and delay suffered when the amendment raises new issues or inserts new parties into the litigation.’” Id. THE VICARIOUS LIABILITY CLAIM The vicarious liability claim is essentially one in which the Owens seek to add an allegation setting forth the legal theory— punitive damages — which they claim is supported by evidence elicited in discovery, including Donald’s deposition and copies of Donald’s logs. Essentially, all of this evidence would be admissible on plaintiffs’ negligence claim against Donald, whether there was a punitive damage issue or not. In the original complaint, plaintiffs had alleged that Donald was negligent in the driving and operation of the truck. All the evidence which plaintiffs had been able to discover with respect to Donald’s negligence would be admissible under that claim, including the evidence that Donald had driven too long, had not rested enough, had therefore fallen asleep at the wheel, etc. The motion to amend, insofar as it pertained to the allegations that Donald’s conduct was not only negligent, but so grossly negligent as to warrant the imposition of punitive damages, thus added nothing new to the factual issues. The same claim of negligence was asserted regarding the same accident, involving the same parties; all that was added was a new legal theory allegedly supported by facts which would have been admitted in evidence under the issues already raised. Seen in this light, the motion to amend would have had the result of permitting Owen to obtain an instruction on the issue of punitive damages, assuming the evidence adduced at trial justified such submission. Under these circumstances, we cannot agree that Thunderbird would be prejudiced by the proposed amendment. That amendment did no more than permit Owen to obtain whatever legal relief was justified by the facts already established by discovery and admissible at trial on the original issues. Thunderbird has failed to point out what delay would be necessitated by allowing that amendment. It argues that additional discovery might be required, but it is difficult to see just what discovery would be required to meet the punitive claim that would not have been required to meet the negligence claim. Any additional facts that might be necessary to rebut the contention that Donald’s logs were falsified or that Donald had violated DOT regulations would already have been required from Thunderbird in order to meet the negligence claim based upon these same facts. Having notice of the “transaction” describ ed in the pleadings already on file, Thunderbird had notice of the legal issues which could be raised by that transaction. Marshall v. Superior Court, 131 Ariz. 379, 641 P.2d 867, 870-71 (1982). Accordingly, we hold that under the principles of Foman, supra, and Spitz, supra, Thunderbird would not have been “prejudiced” by allowance of an amendment basing punitive damages on the theory of vicarious liability. The record does not support any contention that the filing of the motion to amend was deliberately delayed by any improper motive nor that plaintiffs’ counsel were negligent in their efforts to prepare the case or complete discovery. It could be argued with some justification that it would have been more efficient or expeditious for plaintiffs’ counsel to have relied on their own efforts in seeking Donald’s whereabouts and securing copies of documents and logs. There are some lawyers who ask for no help and give none, and there are some who ask for no quarter and give none. Within limits, lawyers are free to practice law “by their own lights.” We are unwilling to hold, however, that apparently good-faith efforts to reduce the time and expense of discovery by cooperation between adverse counsel should be labeled as negligent or dilatory, thereby causing a resultant delay to be considered “undue.” We hold, therefore, that the trial court abused its discretion in refusing to allow the amendment of the complaint to permit a claim for punitive damages based upon Thunderbird’s vicarious liability for Donald’s alleged gross negligence. THE CLAIM OF THUNDERBIRD’S INDEPENDENT NEGLIGENCE The first proposed amendment alleged that Thunderbird had itself been grossly negligent in supervising Donald and his compliance with DOT regulations. By these allegations, plaintiff sought to impose punitive damages on Thunderbird for its own acts of gross negligence, whereas the original complaint had contained no allegations with respect to Thunderbird’s independent negligence and sought to impose liability only on the theory of respondeat superior. Thus, unlike the attempt to impose punitive damages because of Donald’s gross negligence and Thunderbird’s vicarious liability, the attempt to impose punitive damages on Thunderbird because of its own acts raised for the first time substantial new factual issues. Bearing in mind that leave to amend was first sought approximately six weeks prior to trial and two or three weeks before the deadline for the end of discovery, it certainly would have been within the trial court’s discretion to allow the amendment, even though Thunderbird correctly points out that an amendment raising a new factual issue of this magnitude would require more time for discovery on the part of all parties, thus probably requiring a delay in the trial. Were we to decide the question independently, we might well allow the amendment in the interest of litigating the matter on the merits and because the delay resulting from the additional discovery which might need to be done on this single issue does not seem prejudicial to Thunderbird. Nevertheless, considering the late date the amendment was sought, the fact that the trial court had set a discovery deadline which was soon to be reached, and the fact that counsel for plaintiffs could have obviated the problem by having sought by independent means to discover the whereabouts of Mr. Donald and his logs, we are not disposed to hold that it was an abuse of discretion for the trial court to have denied that portion of the requested amendment which would have sought to raise the issue of Thunderbird’s own, grossly negligent conduct, nor can we say that the portions of the same order which prevented further discovery on that issue were an abuse of discretion. A review of the cases indicates that denial of leave to amend is generally considered an abuse of discretion where the amendment seeks no more than to add a new legal theory supported by factual issues already in the case. See, e.g., Cagle v. Carr, 101 Ariz. 225, 418 P.2d 381 (1966). Denial is deemed a proper exercise of the court’s discretion when the amendment comes late and raises new issues requiring preparation for factual discovery which would not otherwise have been necessitated nor expected, thus requiring delay in the decision of the case. See Matter of Estate of Torstenson, 125 Ariz. 373, 609 P.2d 1073 (App.1980); Contractor & Mining Service & Supply, Inc. v. H & M Tractor & Bearing Corp., 4 Ariz.App. 29, 417 P.2d 542 (1966). Accordingly, we hold that the trial court abused its discretion in denying leave to amend to assert the legal theory that Donald’s conduct was grossly negligent, and that Thunderbird was vicariously liable for that gross negligence. To that extent, the trial court’s orders of April 22 and May 18, 1982 are vacated and the matter is remanded to the trial court with instructions to grant the motion to amend, and to strike from the amended complaint all allegations seeking to impose liability on Thunderbird other than on a theory of vicarious liability. HOLOHAN, C. J., GORDON, V. C. J., and HAYS and CAMERON, JJ., concur. . Evidently, Donald was either an employee of Thunderbird or a contract driver who leased his rig to Thunderbird. . There was a first amended complaint which added only a claim for loss of consortium on behalf of Barbara Owen; it is not relevant to the issues presented by this Special Action. . This is a program established by the Marico-pa County Superior Court. It is designed to reduce delay in the civil trial calendar by bringing cases to trial at the earliest possible date. . The delay in scheduling the deposition (between the interview in December 1981 and the scheduled date of March 26, 1982) was attributed to attempts to acquire documents, including copies of Donald’s logs for the few days prior to the day of the accident. . By this time, defense counsel for Thunderbird had already entered an appearance on behalf of Donald. . We have previously held that the doctrine of respondeat superior is applicable to a claim for punitive damages based upon the gross negligence of an agent or employee acting within the scope of his authority and performing acts to further the principal’s or master’s interests. Echols v. Beauty Built Homes, Inc., 132 Ariz. —, 647 P.2d 629 (1982). . Owen argued that the use of the word “reckless” in the original complaint was equivalent to the assertion of a claim for punitive damages, even in the absence of such a prayer for relief. The trial court correctly concluded that the complaint and first amended complaint did not assert a punitive damage claim. . The issues must be decided in the posture in which they were submitted to the trial court; that is, without Donald’s admission of negligence which occurred as part of the strategic moves during the argument on the motion to reconsider and which was conditional upon that motion being denied. . We are aware that a slight amount of work would be necessary to prepare for the issue of defendants’ financial standing.

HAYS, Justice. We accepted jurisdiction of this petition for special action to decide whether the trial judge abused her discretion in ordering the state to reveal an informant’s name and address to defense counsel. Ariz. Const, art. 6, § 5(4); 17A A.R.S., Rules of Procedure for Special Actions, rule 3(c). We find the judge did abuse her discretion and we remand this case for proceedings consistent with this opinion. Harold Henry Good, the real party in interest, was charged with aggravated assault and possession of marijuana. A search warrant was obtained when an informant supplied information that Good had marijuana and firearms at his house. During execution of the warrant, Good was shot six times when he refused to heed the officers’ admonitions to put down his gun. To support a defense of justification of the assault and to show absence of constructive possession of marijuana, Good’s counsel filed a motion for disclosure of the informant’s identity and for an order directing the taking of the informant’s deposi tion. The state opposed the motion for disclosure and a hearing was held. Based on the memoranda filed and the offer of proof and arguments made by counsel at the hearing, the trial judge ordered the state to disclose the informant’s name and address to defense counsel and ordered the informant to appear for deposition by the defense. To outweigh the public policy upholding the government’s privilege against disclosing the identity of a confidential informant, the defendant must make a factual showing that the informant could testify on the merits of the case. State v. Altamirano, 116 Ariz. 291, 569 P.2d 233 (1977). The court must weigh evidence supporting each side’s allegations. As we have previously noted, argument of counsel is not evidence. State v. Grounds, 128 Ariz. 14, 623 P.2d 803 (1981). The state argues that this case is very much like Grounds, supra, where we vacated the disclosure order because no evidence had been presented at the hearing. The case here is close to Grounds, but, assuming that the police departmental reports discussed at the hearing and the offer of proof made by the state constitute evidence, they make no showing that justifies the disclosure ordered. First, defendant alleges that the informant’s testimony is necessary to prove his defense of justification of assault since it will point out the officers’ state of mind when they entered his home with guns drawn to execute the search warrant. The informant was not present during this incident. He had merely told the detectives that defendant had guns at his home. He could not say anything about the officers’ behavior on entering Good’s house. In any event, at the hearing, the state offered to prove that entering with weapons drawn is standard police practice in narcotics searches. The informant could provide no testimony for defendant’s defense of justification. Second, Good argues that the informant is the only person who can connect him with the marijuana found at his home. Good was not the only person living there. In State v. Villavicencio, 108 Ariz. 518 at 520, 502 P.2d 1337 at 1339 (1972), we said: “[T]he crime of possession of narcotics requires physical possession or constructive possession with actual knowledge. Constructive possession is generally applied to those circumstances where the drug is not found on the person, but is found in a place under his dominion and control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence of the narcotics. Exclusive control of the place in which the narcotics are found is not necessary.” The informant was not present when the officers found the narcotics and would have no knowledge of those circumstances. Since exclusive control of the place is not required to find constructive possession, constructive possession could be found by the officers on discovering Good and the narcotics together in the house. Again, the informant’s testimony would contribute nothing. We vacate the order of disclosure without prejudice to defendant’s right to refile the motion supported by the presentation of evidence which justifies the disclosure of an informant’s identity. This case is remanded for proceedings consistent with this opinion. HOLOHAN, C. J., GORDON, Y. C. J., and CAMERON and FELDMAN, JJ., concur.

CAMERON, Justice. This is an appeal from the granting of a motion for summary judgment in favor of plaintiff Wallace D. Chewning against E. Payne Palmer III, the alleged guarantor of a $10,000 corporate debenture. We have jurisdiction pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure, 17A A.R.S. We need answer only one question on appeal and that is: Was there a genuine issue of material fact whether Chewning forbore suit in reliance upon the promise of Palmer to pay the amount due on the debenture? The facts necessary for a determination of this issue are as follows. In 1971, Chewning purchased a $10,000 eight percent subordinated convertible debenture of Gemini Guild, Inc., an Arizona corporation. Chewning made this investment upon the advice of his then son-in-law, Palmer. The annual $800 interest payments were made for three years. When the debenture was not redeemed on the date of maturity on 30 June 1974, Chewning inquired of Palmer why the principal of his investment had not been repaid. Later, Palmer wrote the following letter to Chewning: “Dear Wally: “I talked with Gary Adams today regarding the status of the debenture with Gemini Guild. As you know, Gary has been ill for 2lk years, and I am happy to report he is now recovered and is now back at work full-time. His company is not in a position to redeem the debenture now. However, Gary is a very serious-minded young man who will meet his obligations. They are starting to operate the business at a profit, and Gary hopes to redeem the debenture in March or April of 1975. “Needless to say, Wally, I feel very bad about putting you into this position. If this investment goes completely bad, I will personally repay your total investment plus interest. * * * Best regards, /s/ E. Payne Palmer III” Chewning had not solicited the letter and he did not respond after its receipt. Despite Palmer’s divorce from Chewn-ing’s daughter in 1976, Palmer continued in his attempt to assist his former father-in-law to recover the principal of his debenture. Eventually, it became apparent that Gemini Guild was insolvent and unable to repay its creditors. In 1979, Chewning filed a complaint against Palmer as guarantor of Gemini’s unsatisfied obligation. After filing of suit, Chewning’s deposition was taken and he testified as follows: “Q Okay. And did you do anything in March or April of 1975 when the debenture was not redeemed as Mr. Palmer suggested it would be? “A No, I didn’t do anything. ****** “Q Why is it that you waited, sir, then, from June of 1974 until just recently, when this lawsuit was filed, to pursue collection of the note from Gemini Guild? “A Well, I certainly want to get my money back. “Q Well, I know. But let’s take the date that is in this letter of Mr. Palmer’s — March or April of 1975. You know that’s over four years you have waited before pursuing Gemini Guild. Why did you wait so long? To me, that seems a long period of time to wait, sir. “A Now, let me tell you something. That shows how patient I am. But Gary Adams never communicated with me when I came down here. I talked to the man at Tumbar — or what was his name? Tumbar. And he told me what a fine character Gary Adams was. ****** “Q But, prior to that time, you did not -consider contacting an attorney before and taking legal action against Gemini Guild? “A No. “Q Why not? “A Who knows? “Q You do not know at the present time? “A No. I know I didn’t contact anybody. “Q I know that. “A Well, I would say I was very patient, wouldn’t you? Extremely patient. What would a bank do under the same circumstances? ****** “Q But what I’m trying to find out is whether or not you gave Gemini Guild some more time because of your knowledge that one of their principals apparently was having some health problems. ****** “A Well, it would have. “Q Well, is there any other explanation of your waiting this period of time? “A Well, I thought he might stage a comeback. Who knows? “Q Stage a comeback? “A I mean, I have been broke and survived it, and I figure he would be the same way. So I thought it was rather human, although I would — although I would rather have had the money and not been quite so human.” Later Chewning moved for summary judgment. Chewning’s affidavit in support of the motion for summary judgment stated: “Shortly after November 26, 1974, I received a letter from Palmer advising me that Gemini Guild was unable to redeem the debenture which I purchased from it, but promising me that he would personal ly repay my total investment plus interest if the investment went completely bad. “Because of this letter from Palmer, I chose not to institute legal proceedings against Gemini Guild.” Summary judgment against Palmer was entered in the amount of $14,688.20 in principal and accrued interest, plus costs and $300 in attorney’s fees. From this judgment, Palmer appeals, and Chewning cross-appeals the reasonableness of the attorney’s fees awarded. PROMISSORY ESTOPPEL Palmer’s promise to repay Chewning’s investment is not enforceable at law for the lack of a bargained-for-exchange. See J. H. Queal & Co. v. Peterson, 138 Iowa 514, 116 N.W. 593 (1908); Annot., 74 A.L.R. 293 (1931). Chewning must then rely on his equitable remedy under the theory of promissory estoppel. This court has accepted the definition of promissory estoppel as it appears in section 90 of the Restatement of the Law of Contracts. Weiner v. Romley, 94 Ariz. 40, 381 P.2d 581 (1963); Waugh v. Lennard, 69 Ariz. 214, 211 P.2d 806 (1949). “§ 90. Promise Reasonably Inducing Action for Forbearance “(1) A promise which the promissor should reasonably expect to induce action or forbearance on the part of the promis-see or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.” Restatement (2d) of Contracts, § 90 (1981). To avail himself of this provision of the Restatement, Chewning must show that he refrained or forbore his right to sue on the debenture in reliance upon Palmer’s promise to repay Chewning’s “total investment plus interest.” The precise issue in dispute is whether Chewning forbore proceeding against Gemini Guild in reliance on the promise of his former son-in-law that he would assume the obligation of repaying the investment if Gemini Guild did not. Chewning’s intentions in this regard are not clear. Chewn-ing neither solicited Palmer’s promise, nor responded when it was made. Chewning’s testimony in his deposition does not indicate that he relied upon Palmer’s promise to pay. In an appeal from the granting of a motion for summary judgment, the evidence, as well as all inferences reasonably drawn therefrom, will be viewed in the light most favorable to the parties against whom summary judgment was granted. Antwerp Diamond Exchange of America, Inc. v. Better Business Bureau of Maricopa County, 130 Ariz. 523, 637 P.2d 733 (1981); Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (1977). For summary judgment to have been properly granted in this case, there must be no genuine issues of material fact. Antwerp Diamond Exchange of America, Inc., supra; Rule 56, Arizona Rules of Civil Procedure, 16 A.R.S. We believe that there are sufficient issues of material fact left to be resolved in this case, and it was error to grant Chewning’s motion for summary judgment. We note that the Court of Appeals case of Glitsos v. Kadish, 4 Ariz.App. 134, 418 P.2d 129 (1966) is cited in support of the granting of the motion for summary judgment. Glitsos, supra, can be distinguished from the instant case in that in Glitsos, it was stipulated by the parties that there was reliance and forbearance upon the promise to pay. There is no such agreement as to the facts in the instant case. As to the matter of attorney’s fees, we need not consider that issue at this time as that can be determined on remand. Reversed and remanded with instructions for further proceedings consistent with this opinion. HAYS and FELDMAN, JJ., concur.

OPINION GRANT, Judge. Paul Bryant, the defendant, was indicted by the Maricopa County Grand Jury for armed robbery using a gun, a class two dangerous felony in violation of A.R.S. §§ 13-1902 and 13-1904. The defendant entered into a written plea agreement with the state and on April 6,1981 pled guilty to the armed robbery. In exchange the state agreed to drop the allegation of dangerousness and to dismiss another case against the defendant, Maricopa County cause number CR-113764. Additionally, the plea agreement contained a stipulation that the defendant would not be placed on probation but would receive a sentence of seven years in the custody of the Department of Corrections. On May 5, 1981 the defendant was sentenced, in accordance with the plea agreement, to the presumptive term of seven years with the Department of Corrections. A timely notice of appeal was filed. The only issue raised in this appeal is whether the plea proceeding was improper under Rule 17.2.b., Ariz.R.Crim.P., because the trial judge failed to advise the defendant of the requirement that he serve one-half of his sentence before becoming eligible for parole. A.R.S. §§ 41-1604.06.D., 31-412. Rule 17.2.b. provides that before accepting a guilty plea the court must inform the defendant of any special conditions regarding sentence, parole or commutation imposed by statute. Under A.R.S. § 41-1604.06.D. a prisoner’s earliest parole eligibility occurs when the prisoner has served one-half of his sentence, unless the prisoner is sentenced in accordance with any law which prohibits the release on any basis until serving not less than two-thirds of the sentence imposed by the court. This is a general, not a special, sentencing condition. It is a statute which applies across-the-board to all prisoners except those sentenced in accordance with statutes which have special sentencing conditions attached thereto. For an example of such a special sentencing condition imposed by statute, see State v. Levario, 118 Ariz. 426, 577 P.2d 712 (1978). Defendants need not be advised of every single possibility regarding sentencing. See State v. McVay, 131 Ariz. 369, 641 P.2d 857 (1982); State v. Wesley, 131 Ariz. 246, 640 P.2d 177 (1982). In reviewing the record for fundamental error, the court notes that defendant’s sentence was for commitment to the Arizona Department of Corrections for seven years, rather than for a term of “imprisonment” as required by A.R.S. § 13-701.A. State v. Gutierrez, 130 Ariz. 148, 634 P.2d 960 (1981). This technical error is hereby remedied by modifying the sentence to reflect that the defendant is sentenced to a term of “imprisonment” for seven years and committed to the Department of Corrections pursuant to A.R.S. § 13-701. For the reasons stated, the judgment and sentence are affirmed. JACOBSON, J., and RICHARD M. DAVIS, J. pro tern., concur. NOTE: The Honorable RICHARD M. DAVIS, a Judge pro tempore of a court of record, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const, art. VI, § 20.

GORDON, Vice Chief Justice: This case arises from a dispute over what group should be the authorized union representative for members of the Phoenix Police Department. Appellee Fraternal Order of Police Lodge 2 [FOP] filed a special action in Superior Court to force appellant Phoenix Employee Relations Board [PERB] to hold an election to determine whether FOP or intervenor Phoenix Law Enforcement Association [PLEA] should be the authorized representative for the department. The trial court ordered that the election be held after it found invalid § 2.21 of PERB’s rules and regulations. Section 2.21, sometimes referred to as the “contract bar rule,” has the effect of barring an authorized representative election sooner than three years after a contract has been awarded to a designated authorized representative. PERB appealed the order. While PERB’s appeal was pending, parallel legal proceedings concerning the election took place. The election eventually was held, and PLEA retained its status as authorized representative. When the Court of Appeals subsequently considered the case, it found that the election mooted the issues, and it dismissed the appeal. No. 1 CA-CIY 4741 (filed September 1, 1981) (memorandum decision). We granted PERB’s petition for review, giving us jurisdiction under Ariz.Const. Art. 6, § 5(3) and Rule 23, Arizona Rules of Civil Appellate Procedure. We vacate the memorandum decision of the Court of Appeals, and we retain jurisdiction to consider the merits pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure. Unlike the federal court system, the powers of which are limited by U.S.Const. Art. Ill, § 2, cl. 1, our state court system has no constitutional provision constraining it to consider only “cases” or “controversies.” Nevertheless, since the first time we considered the issue, our Court has consistently held that it will refrain from considering moot or abstract questions. See Mesa Mail Publishing Co. v. Board of Supervisors, 26 Ariz. 521, 227 P. 572 (1924); Camerena v. Department of Public Welfare, 106 Ariz. 30, 470 P.2d 111 (1970). We will make an exception, however, to consider a question of great public importance or one which is likely to recur even though the question is presented in a moot case. Camerena, supra; State v. Superior Court, 104 Ariz. 440, 454 P.2d 982 (1969); see Wise v. First National Bank of Nogales, 49 Ariz. 146, 65 P.2d 1154 (1937). The instant case presents a question that is both of great public importance and one that is likely to recur — whether § 2.21 of PERB’s rules and regulations is valid. The question is of great importance to the hundreds of thousands of people living or working in Phoenix because PERB deals with all employees of that city. Thus, the validity of a PERB rule directly affects all city employees and indirectly affects everyone served by those employees. We agree with PERB that “[t]he people of the City of Phoenix unquestionably have a fundamental interest in the development of harmonious and cooperative relationships between the City government and its employees.” The question is also likely to recur because it is probable that FOP or potential authorized representatives of other groups of city employees will seek to force new elections within the three-year periods to which § 2.21 applies. Therefore, even though the propriety of the FOP-PLEA election is moot, we hold that the underlying question of the validity of § 2.21 should be decided. We have no doubt that the parties, who briefed the case to the Court of Appeals before the election occurred, had and still retain a sufficient adversarial interest in the litigation to vigorously present all sides of the question, thereby allowing an informed judicial decision to be made. The memorandum decision of the Court of Appeals is vacated. We will retain jurisdiction of the case to consider the validity of § 2.21 of the Phoenix Employee Relations Board’s Amended Rules and Regulations. The case will be processed pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure. HOLOHAN, C. J., and STRUCKMEYER, HAYS and CAMERON, JJ., concur.

CAMERON, Justice. We granted the petition of the claimant, Jim M. Rosovich, to review a memorandum decision of the Court of Appeals which affirmed the administrative law judge in denying Rosovich’s petition to reopen. We have jurisdiction pursuant to A.R.S. § 12-120.24 and Rule 23, Arizona Rules of Civil Appellate Procedure, 17A A.R.S. We must determine on appeal whether the administrative law judge abused his discretion in denying claimant’s request for a further hearing on claimant’s motion to reopen. The facts necessary for a determination of this matter are as follows. Claimant suffered a compensable industrial injury in April, 1979. Benefits were paid until 6 June 1979, when it was determined that claimant had suffered no permanent disability. After claimant’s timely petition to reopen was denied, a formal hearing was requested and interrogatories were served on the respondent carrier on 6 October 1980. The hearing was set for 17 November 1980. During this time, claimant’s attorney was suffering from a thyroid problem which required radiation therapy and medication. On the day of the hearing, claimant’s attorney was hospitalized and another attorney in the office was substituted in the case. The substitute attorney realized, on the day of the hearing, that the respondent attorney had failed to answer interrogatories and that Dr. Varón, the claimant’s medical witness, had not been subpoenaed for the hearing. The substitute attorney moved for sanctions against the respondent carrier for its failure to answer interrogatories, urging that defendants be precluded from introducing medical evidence. The attorney also moved that a further hearing be set in order to obtain the testimony of Dr. Varón. The administrative law judge denied the motion, relying upon the statement of the Court of Appeals in Camelback Contractors, Inc. v. Industrial Commission, 125 Ariz. 205, 608 P.2d 782 (App.1980) which, though holding that exclusion of evidence was proper for failure to answer interrogatories, had stated that for the future, the failure to move to compel answers prior to hearing “may well” constitute a waiver of the failure to disclose. As to the request for a further hearing, the administrative law judge stated: “13. The applicant’s request, entered at the hearing on November 17, 1980, for a further hearing to adduce the testimony of an additional medical witness not theretofore requested is denied as also fatally late. Cf. Rule 41, R. Proc. I.C.A., A.C.R.R. R-4-13-141. The Industrial Commission Rules of Procedure, having been drafted toward enabling an orderly and fair hearing process, provide filing times and remedies relative to interrogatories, witness appearances, and further hearings, of which note has been taken herein; and, absent which, chaos would prevail, relative to interrogatories, witness appearances, and further hearings.” The Court of Appeals upheld the administrative law judge’s findings, and we granted claimant’s petition for review. It is clear that, as a result of his attorney’s illness, the claimant was not properly represented at the hearing. As a result of this illness, the attorney had neglected to move, prior to the hearing, to compel answers to the interrogatories that had been served on the carrier and failed to subpoena Dr. Varón. Under these circumstances, it would not have been an abuse of discretion to continue or set a new hearing to allow Dr. Varón to testify. See Parsons v. Bekins Freight, 108 Ariz. 130, 493 P.2d 913 (1972). A claimant should have an opportunity to develop the evidence relevant to the hearing. Pauley v. Industrial Commission, 10 Ariz.App. 315, 458 P.2d 519 (1969). The respondents, citing Waller v. Industrial Commission, 99 Ariz. 15, 406 P.2d 197 (1965) and Raymer v. Industrial Commission, 18 Ariz.App. 184, 501 P.2d 25 (1972), urge that it is the province of the Commission to resolve conflicts in the evidence and determine the facts. In this case, however, the administrative law judge did not resolve a conflict in the evidence. Rather, he excluded evidence not only of Dr. Varon’s testimony but the answers to the interrogatories and, by such exclusions, avoided a conflict. We believe it was an abuse of discretion not to grant a hearing at which time Dr. Varón could testify. In holding that Mr. Rosovich is entitled to a further hearing, we do not consider whether he will ultimately prevail on the motion to reopen. Because we find there were meritorious reasons for his delay in produc-, ing Dr. Varón, he is entitled to the hearing he requested. The opinion of the Court of Appeals is vacated and the case remanded for rehearing on reopening of the claim of Mr. Roso-vich. HOLOHAN, C. J., GORDON, V. C. J., and HAYS and FELDMAN, JJ., concur.

GORDON, Vice Chief Justice: This case arose under A.R.S. §§ 12-801 et seq., the Bawdy House Abatement Act. Appellants challenge the constitutionality of that act. Taking jurisdiction under Ariz. Const.Art. 6, § 5(3) and Ariz.R.Civ.App.P. 19(e), we affirm the trial court’s denial of appellants’ motion to dismiss. Appellants operated “massage parlors” in Maricopa County. Customers would pay a woman working at the parlor for a massage. The woman would tell the customer that most of the fee would go to the parlor operator and that she worked primarily for “tips.” After a brief massage, the woman would ask if there was anything else she could do. If the customer replied affirmatively, a negotiation would ensue over what specific sexual act the woman would perform for what price. When the customer “tipped” the woman the agreed-upon price, she would perform the sexual act. A.R.S. § 12-802 declares that every building used as a place of prostitution, assignation, or lewdness is a nuisance which shall be abated pursuant to the Bawdy House Abatement Act. The county attorney, pursuant to the authority of A.R.S. § 12-803, filed a civil complaint alleging that appellants’ massage parlors were buildings being used for the purpose of prostitution. Appellants answered and moved to dismiss the complaint on the ground that the act is unconstitutional. Appellants alleged that the act unconstitutionally invaded their right to privacy and denied them procedural and substantive due process. Following the county attorney’s reply and oral argument, the trial court denied appellants’ motion. Thereafter, the parties entered into a stipulation enjoining the use of the subject buildings for prostitution but reserving appellants’ right to appeal the constitutionality of the Bawdy House Abatement Act. We consider each challenge below. RIGHT TO PRIVACY Appellants first claim that all citizens, including prostitutes, possess a fundamental right to sexual privacy. They argue that to infringe on this right, the state must show that the challenged statutes are necessary to promote a compelling state interest. The right to sexual privacy “exists within the context of the intimate sexual relations between consenting adults in private.” State v. Bateman, 113 Ariz. 107, 110, 547 P.2d 6, 9 (emphasis added), cert. denied, 429 U.S. 864, 97 S.Ct. 170, 50 L.Ed.2d 143 (1976). The sexual acts in the instant case did not occur in private. The massage parlors were open to the public and were outside the zone of the sexual privacy right. Compare Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (the right to privacy prevents the government from intruding on a person’s possession in the home of obscene materials for use solely within the home) with Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (the government may prohibit the use of obscene materials in a public building even if they are seen only by consenting adults who voluntarily pay admission to an enclosed theatre). Appellants’ acts were not private; rather, they were public and subject to the state’s regulation in this particular case regardless of the existence vel non of a compelling state interest. PROCEDURAL DUE PROCESS The Fourteenth Amendment to the United States Constitution provides that no state may “deprive any person of life, liberty, or property, without due process of law.” Appellants claim that the Bawdy House Abatement Act deprives them of procedural due process by allowing: (1) the closing of alleged nuisances before the own ers are given notice and an opportunity to be heard; and (2) the use of reputation evidence to prove a nuisance. A.R.S. § 12-804 allows the trial court to issue a temporary restraining order enjoining the operation of a bawdy house if the county attorney’s complaint or affidavit demonstrates the existence of a nuisance to the court’s satisfaction. Although not stated in A.R.S. § 12-804, such a restraining order is subject to Ariz.R.Civ.P. 65(d), which, inter alia, permits restraining orders issued ex parte to exist only for a short time and requires expeditious hearings after notice to both parties. In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the United States Supreme Court held that the Florida and Pennsylvania replevin statutes violated the procedural due process right to notice and a hearing before depriving a person of possessions. In Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the Court noted that Fuentes dealt with a situation where repossession of goods was permitted without notice or hearing, on the basis of bare conclusionary claims, and without judicial authorization. The Mitchell Court held that Louisiana’s sequestration statute did not violate procedural due process as interpreted in Fuentes because the Louisiana ex parte order could issue only after a court was convinced that relief clearly appeared proper from the specific facts alleged and the defendant was entitled to an expeditious hearing. The temporary restraining order authorized by A.R.S. § 12-804 and Ariz.R. Civ.P. 65(d) is controlled by Mitchell rather than Fuentes. A nuisance under the statute must be shown from facts alleged in the complaint or affidavit, only a court can issue the temporary restraining order, the order is of limited duration, and the restrained party can obtain an expeditious hearing. Neither A.R.S. § 12-804 nor Ariz.R.Civ.P. 65(d) is inconsistent with due process. Appellants also argue that A.R.S. § 12-805(B) is unconstitutional. The statute states that “evidence of the general reputation of the building or place [that is the subject of the abatement action] shall be admissible for the purpose of proving existence of the nuisance.” Appellants argue that the statute contravenes due process because it would allow proof of the entire case against them to be based solely on reputation evidence. A.R.S. § 12-805(B) is silent as to the evidentiary weight to be given to the building’s reputation. The statute provides only that the building’s reputation is admissible to prove that the building is a nuisance. This Court has never held that evidence of the building’s reputation alone is sufficient to prove a nuisance, and we need not reach that issue here (although we have serious reservations about the constitutionality of a ease proved by only reputation evidence). No trial took place in the instant case, because appellants entered into a stipulation to abate operation of the massage parlors. There is no suggestion in the record that the reputation of the parlors would have been the sole evidence admitted to prove that appellants’ buildings were being used as places of prostitution. On the record before us, A.R.S. § 12-805(B) does not operate to deny appellants procedural due process. SUBSTANTIVE DUE PROCESS Appellants also attack the Bawdy House Abatement Act on substantive due process grounds. They argue that A.R.S. § 12-802 is overbroad because its proscription of buildings where “acts of lewdness” occur could apply to all sexual activity and to private homes. If read this broadly, the statute could be used to declare a private home a nuisance merely because the married couple living there engaged in procreation. Appellants impliedly admit that the facts of the instant case do not fit within the scenario described above. Rather, they contend that the potential overbreadth of the statute has a “chilling” effect on their First Amendment right to sexual privacy. If appellants’ First Amendment rights were involved, they might have standing to raise the overbreadth argument. See Dom-browski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). But as discussed above, no First Amendment privacy right of appellants is infringed by the Bawdy House Abatement Act. The United States Supreme Court has said, “The First Amendment overbreadth doctrine * * * represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court.” Bates v. State Bar of Arizona, 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810, 833 (1977). Because appellants have no First Amendment right at issue, they fall within the rule that “[o]ne whose conduct falls within the ‘hardcore’ of a statute may not complain because of the possibility of imprecision in the application of the statute at its periphery.” State v. Duran, 118 Ariz. 239, 244, 575 P.2d 1265, 1270 (App.1978). As the state argues, appellants lack standing to raise their overbreadth argument. Appellants also argue that the act is vague. They reason that the action could not be based on acts of prostitution because prostitution denotes illegal sexual conduct and prostitution itself is not illegal in the parts of Maricopa County where appellants’ massage parlors are located. They contend, then, that the suit could be based only on acts of lewdness, and lewdness is an unconstitutionally vague term. Appellants’ reasoning is unpersuasive. Prostitution is the performance of sexual intercourse for a fee. The term does not denote illegal sexual conduct, although the act is often prohibited by state or local government. Furthermore, even if the acts of lewdness were at issue, lewdness as used in A.R.S. § 12-802 is not unconstitutionally vague. Interpreting a statute similar to A.R.S. § 12-802, the Illinois Court of Appeals declared, “Although traditionally the term ‘lewdness’ is viewed as being broader than and including the term ‘prostitution,’ * * * such terms refer to the same general class of activities which are normally associated with houses of prostitution (or whatever such establishments may be called). They are intended to designate and prohibit sex acts of whatever nature which are performed for money.” City of Chicago v. Geraci, 30 Ill.App.3d 699, 704, 332 N.E.2d 487, 492 (1975) (citations omitted). Lewdness defined in this manner is a sufficiently precise term that a person of ordinary intelligence can conform his or her conduct to the law. Because appellants have mounted no successful challenge to the constitutionality of A.R.S. §§ 12-801 et seq., we affirm the trial court’s denial of appellants’ motion to dismiss. HOLOHAN, C. J., and HAYS and CAMERON, JJ., concur. . A.R.S. § 12-806 directs that the court order abating the nuisance will provide for the removal and sale of all fixtures used in aiding the nuisance and for closure of the building for one year. . We have serious doubts as to whether appellants have standing to raise this argument. “In order to possess standing to assert a constitutional challenge, an individual must himself have suffered ‘some threatened or actual injury resulting from the putatively illegal action.’ ” State v. Herrera, 121 Ariz. 12, 15, 588 P.2d 305, 308 (1978). Because the right to privacy is a personal right, any such right in this case, if it exists, would belong to the prostitute and the customer but not to appellants as owners and operators of the parlors. In some instances, a party may have standing to protect a constitutional right possessed solely by a third person and not by the party. To have such standing, the party must have a substantial relationship to the third person, the third person must be unable to assert the constitutional right on his or her own behalf, and the failure to grant the party standing must result in a dilution of the third person’s constitutional rights. Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423 0974). Without deciding the issue, we observe that it is doubtful that appellants’ case fits within the third party standing rule. Standing, however, is a part of the case or controversy doctrine of U.S.Const.Art. Ill, § 2, cl. 1. Because of this clause, the federal courts constitutionally have jurisdiction only over cases or controversies (which occur only when the parties have standing). Arizona has no analog to the case or controversy provision in its constitution, and our reluctance to consider issues raised where there is no standing is solely a rule of judicial restraint. See Fraternal Order of Police Lodge No. 2 v. The Phoenix Employee Relations Board, 133 Ariz. 126, 650 P.2d 428 (1982). Because standing is not a constitutional jurisdictional requirement in the state courts of Arizona and because the state did not raise the standing issue on appeal, we will consider the merits of appellants’ claim despite the apparent lack of standing. . Moreover, any party, other than the state, who requests a temporary restraining order must post a security to indemnify the restrained party against damage resulting from a wrongful restraint. Ariz.R.Civ.P. 65(e). Therefore, if a private citizen pursuant to A.R.S. §§ 12-803, -804 seeks to abate a bawdy house by obtaining a temporary restraining order, the defendant is given additional due process protection. . Appellants also lack standing to raise this argument because no temporary restraining order was issued or threatened in this case. Nevertheless, in the absence of the state objecting to appellants’ standing, we have considered the merits of appellants’ argument. See Note 1, supra. . The county attorney alleged in the complaint that the buildings were being used for prostitution; no mention was made of acts of lewdness. . Although Arizona has provided for the abatement of bawdy houses, A.R.S. §§ 12-801 et seq., and has prohibited certain activities related to prostitution, A.R.S. §§ 13-3201 et seq., it has not made prostitution itself illegal. Local governmental bodies in Arizona have passed ordinances outlawing prostitution, however.

OPINION HAIRE, Judge. On this appeal the appellant City of Phoenix (City) contends that the trial court erred in enjoining the violation by the City of certain provisions of a cease-and-desist order previously entered by the appellee Arizona Department of Health Services (Department). In its arguments presented to this court the City does not deny that it has violated the provisions of the order, nor does it attack the authority of the trial court to enforce a valid Department cease- and-desist order through the injunctive process. See A.R.S. § 36-601(C). Rather, the thrust of the City’s attack on appeal is that the cease-and-desist order entered by the Department was void, and that therefore it could not provide a legal basis for the subsequent utilization of the trial court’s injunctive process. Procedurally, this case began with an administrative cease-and-desist order issued by the Department pursuant to its claimed regulatory authority over sanitary landfill operations. The cease-and-desist order cited four alleged deficiencies in the operation of certain sanitary landfills owned or operated by the City, and directed the City to take designated particularized steps to comply with the order. The City requested an administrative hearing pursuant to A.R.S. § 36-601(B) to determine the reasonableness of the Department’s order. After the hearing was concluded, but before a decision was rendered by the administrative hearing officer, the city attorney agreed to the entry of a consent order by the Department. This consent order was entered on June 21,1979, and was later superseded by an amended consent order entered December 27, 1979, likewise based on the consent of the city attorney. Some seven months later, on August 1, 1980, the Department filed its complaint in the superior court seeking to enjoin the City’s alleged violations of the amended consent order. After a three day evidentia-ry hearing, the trial court granted the in-junctive relief sought by the Department. This appeal has been taken from the issuance of that injunction. It is important to note that after the entry of the amended consent order the City did not seek judicial review as authorized by the Administrative Review Act (A.R.S. § 12-901, et seq.). Therefore, the amended consent order became final and not subject to judicial review. See A.R.S. § 12-902(B). However, as expressly provided in A.R.S. § 12-902(B), an exception to this statutorily declared finality exists for the purpose of questioning the jurisdiction of the administrative agency over the persons or subject matter involved in the controversy. This statutory exception is in accord with Arizona case law applying res judicata principles to administrative agency proceedings. See Tucson Rapid Transit Company v. Old Pueblo Transit Company, 79 Ariz. 327, 289 P.2d 406 (1955); Tucson Warehouse & Transfer Co. v. Al’s Transfer, 77 Ariz. 323, 271 P.2d 477 (1954); Pacific Greyhound Lines v. Sun Valley Bus Lines, 70 Ariz. 65, 216 P.2d 404 (1950). The City does not base its argument that the amended consent order was void for lack of jurisdiction upon any claimed lack of jurisdiction over the City as a party to the administrative proceedings. Rather, its contention that the amended consent order is void and unenforceable is based primarily upon arguments concerning the administrative agency’s alleged lack of subject matter jurisdiction. In this regard, the City recognizes that A.R.S. § 36-601(A)(17) furnishes a foundation upon which the Department might proceed to regulate and control sanitary landfill activities. The City further recognizes that the conditions specified to be public nuisances under A.R.S. § 36-601(A) may be abated by the Department through the issuance of cease-and-desist orders, and that such a cease-and-desist order may ultimately be enforced by superior court injunction. See A.R.S. § 36-601(B) and (C). A.R.S. § 36-601(A)(17), concerning sanitary landfills, provides as follows: “A. The following conditions are specifically declared public nuisances dangerous to the public health: ****** “17. The storage, collection, transportation, disposal and reclamation of garbage, trash, rubbish, manure and other objectionable wastes other than as provided and authorized by law and regulation.’’ (Emphasis added). Relying upon the emphasized language, the City urges that A.R.S. § 36-601(A)(17) does not furnish a valid basis for the amended consent order entered by the Department in this case because the statute has not been implemented by the promulgation of regu lations governing a substantial part of the activities which the Department sought to abate by affirmative injunction. The City’s argument finds support in A.R.S. § 36-136(G)(11), which in mandatory terms requires that the Department adopt regulations governing sanitary landfill operations. The essence of the City’s contention is that in this case the Department has disregarded statutory requirements that it initially exercise its authority by the promulgation of regulations having general applicability, and instead is attempting to regulate sanitary landfill operations through ad hoc orders arbitrarily entered, depriving the City of the benefit of any predetermined standards against which its challenged activities might be measured and adjudicated. In Arizona Corporation Commission v. Palm Springs Utility Co., Inc., 24 Ariz.App. 124, 536 P.2d 245 (1975), this court thoroughly discussed and approved the general principle of administrative law that the promulgation of rules and regulations of general applicability is to be favored over the generation of policy in a piecemeal fashion through individual adjudicatory orders on an ad hoc basis. The policy considerations discussed in that case are equally applicable here, and need not be further discussed. When such general policy considerations are combined with the City’s well-reasoned statutory analysis and other cited authorities, we would have difficulty in concluding that the Department did not commit legal error in attempting to proceed by cease-and-desist order as to a substantial part of the relief sought in this case, in the absence of prior promulgation and adoption of regulations providing more detailed standards for the control of sanitary landfill activities. However, since the City’s attack on the amended consent order is collateral and not on direct review, mere legal error is not sufficient to justify setting aside the amended consent order entered by the Department in this case. Rather, there must be a showing that the failure to promulgate regulations goes to the subject matter jurisdiction of the Department. As we have previously indicated, under A.R.S. § 12-902(B) the failure to seek review of an administrative agency decision within the time and in the manner provided by the Administrative Review Act results in the decision becoming final and not subject to subsequent judicial review for mere legal error or factual insufficiency. Based upon our review of the record in this matter, we are not persuaded that the City’s attempt to circumvent finality in this case by an attack on the subject matter jurisdiction of the Department is sound. Here, the statutes grant broad authority to the Department in the area in question, and the interpretation of those statutes is subject to legitimate dispute. Thus, the Department not only disputes the City’s interpretation of A.R.S. § 36-601(A)(17), but affirmatively relies on the provisions of § 36-601(A)(4), (5) and (9) as constituting authority for various provisions of its cease- and-desist order. In addition, the Depart ment points out that it has enacted regulations which to some extent regulate sanitary landfill operations, and urges that these regulations furnish support for its cease-and-desist order. Finally, relying upon a 1958 Arizona Attorney General’s opinion, the Department contends that A.R.S. § 36-601(B) authorizes it to proceed by cease-and-desist order against nuisances other than those specifically listed in the seventeen subdivisions of A.R.S. § 36-601(A), and that the conditions challenged by its cease-and-desist order relative to the City’s sanitary landfill operations fall within the classic concepts of public health nuisances. See Arizona Attorney General’s Opinion No. 58-67 (1958). We cite these contentions urged by the Department, not as an indication or acknowledgment that the Department is correct in its legal interpretation of the statutes and the regulations in question. Indeed, as we have previously indicated in this opinion, we have serious concerns in that regard. An erroneous interpretation and application of a statutory provision, however, will normally constitute mere legal error and not operate to deprive an administrative agency of jurisdiction. The point is well made in Arizona Public Service Co. v. Southern Union Gas Co., 76 Ariz. 373, 265 P.2d 435 (1954) wherein the court stated: “Whether the commission misinterpreted the statute it is unnecessary for us to say. Suffice it to say that the commission had jurisdiction over the subject matter (whether Southern should receive from it a certificate of convenience and necessity), and in the exercise of that jurisdiction the commission had the power and authority to try the issue as to whether Southern was qualified to receive such certificate. * * * If a court has the power to try an issue and make a decision thereon, such decision cannot be collaterally attacked for error of law, whether that error be one of misconstruction of a statute or other legal error.” 76 Ariz. at 380, 265 P.2d at 440. Here, we view the regulatory issue raised by the City as pertaining to how the statutory jurisdiction given to the Department must be exercised, as opposed to the existence of that jurisdiction. As such, in our opinion, the issue does not relate to subject matter jurisdiction so as to make absolutely void and subject to collateral attack orders entered by the Department. Rather, the alleged failure of the Department to exercise its authority in the proper manner constitutes at the most mere legal error, and, as we have indicated, where an administrative agency has jurisdiction over both the parties and the subject matter, the validity of a final order affected by mere legal error is not subject to attack in a later proceeding for the enforcement of that final order. The City’s reliance on State v. Downey, 102 Ariz. 360, 430 P.2d 122 (1967) is misplaced. Although there the court allowed a subsequent attack on the validity of an order of the Board of Supervisors incorporating the Town of Paradise Valley, the court emphasized that the proceeding (quo warranto) constituted a direct, not a collateral attack on the prior order. Also, the Board of Supervisor proceedings attacked in Downey did not involve true administrative agency adjudicatory proceedings such as were involved before the Department in this case. It is true that in State ex rel. Bradway v. De Mattos, 88 Wash. 35, 152 P. 721 (1915), also relied upon by the City, the court permitted a collateral attack against a prior consent judgment previously entered against the municipality involved. The basis of the attack, however, was the alleged fraud of the city officials in consenting to the prior judgment. Fraud of that nature has always been recognized as a valid exception to res judicata principles, see Co-field v. Sanders, 9 Ariz.App. 240, 451 P.2d 320 (1969), and it is important to note that no such fraud has been alleged or shown here. We have made no attempt to discuss all of the cases cited by the parties. Some of them involve the allowance of collateral attacks on final judgments based upon true lack of subject matter jurisdiction. We note, however, considerable confusion in this area of the law based upon the often imprecise use by the courts of the words “void” and “jurisdiction”, generally occurring on direct appeal in situations involving mere legal error rather than true lack of jurisdiction. As recognized long ago by Chief Justice Lockwood in Collins v. Superior Court, 48 Ariz. 381, 62 P.2d 131 (1936), discussing this semantical problem: “... appellate courts sometimes fail to realize that the exact meaning of their language, reaching a correct result when limited in its effect to the precise case before them, leads to an improper conclusion when applied to another and entirely different state of affairs. There are many cases in the reports where courts have used the word ‘void,’ where a close analysis of the facts shows that ‘voidable’ is what is really meant, and there have been instances where appellate tribunals have used the word ‘jurisdiction’ when, in reality, they meant, not the power to perform a certain act, but the performing of it when it was prohibited, a very different thing.” (Emphasis in original). 48 Ariz. at 392-93, 62 P.2d at 137; accord, Cockerham v. Zikratch, 127 Ariz. 230, 619 P.2d 739 (1980); see Arizona Public Service Co. v. Southern Union Gas Co., supra. In summary on this issue, although the Department’s order may have involved legal error, we find that the Department did not lack subject matter jurisdiction. We next address the City’s contention that the amended consent order was void because the city attorney allegedly lacked authority to consent to its entry. This contention by the City was not raised in the trial court, and was first urged in the City’s opening brief in this appeal. An affidavit of the city attorney is included in the appendix to the City’s opening brief, and purports to establish the factual basis for the contention. Briefly, the City urges that although the city council informally discussed and approved the original consent order and the amended consent order during two informal council sessions, neither of these orders were ever approved in formal sessions as required by the City’s charter. We have previously granted the Department’s motion to strike the city attorney’s affidavit from the City’s opening brief upon the basis that review on appeal must be limited to the factual record as presented in the superior court. See Patton v. Paradise Hills Shopping Center, Inc., 4 Ariz.App. 11, 417 P.2d 382 (1966). The record is thus devoid of any factual basis for an attack on the city attorney’s authority to agree to the entry of the consent orders. Separate and apart from the lack of a factual basis, however, the Department urges, and we agree, that the attack by the City on the authority of its agent raised for the first time on appeal simply comes too late. First, under Rule 8(d), Rules of Civil Procedure, 16 A.R.S., the lack of authority of an agent to enter into an agreement is an affirmative defense which must be pleaded and proved by the defendant. City of Phoenix v. Linsenmeyer, 86 Ariz. 328, 346 P.2d 140 (1959); Branding Iron Club v. Riggs, 207 F.2d 720 (10th Cir. 1953); 2A Moore’s Federal Practice ¶ 8.27[4], n.3 at 8-264 (2d ed. 1982). Second, and more fundamental, this issue was never urged in the trial court and thus cannot be considered on appeal. Sanitary District No. 1 of Pima County v. State, 1 Ariz.App. 45, 399 P.2d 179 (1965); see Ruck Corporation v. Woudenberg, 125 Ariz. 519, 611 P.2d 106 (App. 1980); Cofield v. Sanders, supra. A review of the record and pleadings in the trial court reveals that although the defendant City generally denied all of the Department’s allegations concerning the ex istence and entry of the original consent order and the amended consent order, it acknowledged in various of its affirmative defenses the existence and entry of the consent orders. Subsequently, the City’s motion to dismiss the Department’s complaint impliedly acknowledged that the City had consented to the orders, and in oral argument on that motion, the city attorney affirmatively recognized that the City had consented to the orders. Finally, in his findings of fact the trial judge expressly found that “the parties entered into” the initial consent order and that “the parties subsequently agreed to modify the consent order and entered into an amended consent order.... ” Although the City filed objections to numerous other provisions of the proposed findings and conclusions, no objections were ever filed to these findings relating to consent and agreement by the City. We therefore hold that under these circumstances the City’s failure to object to the findings of consent standing alone precludes appellate review of this issue, even if the City had appropriately raised the consent issue by pleading an affirmative defense. For the reasons set forth in this opinion, we conclude that the trial judge did not commit error in entering an injunction for the purpose of enforcing the terms of the amended consent order. We also reject the City’s contention that it did not properly consent to the entry of the amended consent order. Since no other issues have been raised by the City, the judgment entered by the trial court is affirmed. CONTRERAS, Acting P. J., and COR-CORAN, J., concur. . A.R.S. § 36-136(G)(ll) provides: “G. The director shall, by regulation: * * * * * * “11. Define and prescribe reasonably necessary measures regarding storage, collection, transportation, disposal and reclamation of garbage, trash, rubbish, manure and objectionable wastes. The regulations shall prescribe minimum standards for storage, collection, transportation, disposal and reclamation of such wastes and shall provide for inspection of premises, containers, processes, equipment and vehicles, and for abatement as public nuisances of any premises, containers, processes, equipment or vehicles which do not comply with the minimum standards.” . A.R.S. § 36-601(A)(4), (5) and (9) provides: “A. The following conditions are specifically declared public nuisances dangerous to the public health: * * * * * * “4. Any place, condition or building controlled or operated by any governmental agency, state or local, which is not maintained in a sanitary condition. “5. All sewage, human excreta, waste water, garbage or other organic wastes deposited, stored, discharged or exposed so as to be a potential instrument or medium in the transmission of disease to or between any person or persons. * * * * * * “9. The pollution or contamination of any domestic waters.” . See A.C.R.R. R9-8^31(A) and R9-8-432. . The City’s consent to the provisions of the Department’s order would have precluded the raising of mere legal error even if there had been a timely direct appeal from the amended consent order. See Cofield v. Sanders, 9 Ariz.App. 240, 451 P.2d 320 (1969). However, the mere fact of consent would not preclude a direct appeal or subsequent attack based on the Department’s lack of subject matter jurisdiction. See Industrial Park Corporation v. U.S. I.F. Palo Verde Corporation, 19 Ariz.App. 342, 507 P.2d 681 (1973); Cofield v. Sanders, supra.

OPINION OGG, Presiding Judge. The defendant was convicted of second degree murder while armed, in violation of A.R.S. §§ 13-1104 and 13-604(G), following a trial by jury. He was committed to the Department of Corrections to serve a presumptive term of IOV2 years, with credit for 162 days of presentence incarceration. He raises seven issues on appeal: 1. Whether the trial court erred in denying his motion for a new determination of probable cause; 2. Whether the trial court erred in denying the defendant’s motion to dismiss based on his claim that A.R.S. §§ 13-1102 through 13-1105 violate equal protection and are void for vagueness; 3. Whether the trial court erred in admitting into evidence photographs of the deceased which the defendant claims were unduly gruesome and prejudicial; 4. Whether the trial court erred in denying the defendant’s motion for a judgment of acquittal based on the defendant’s claim that the evidence was insufficient to warrant a conviction; 5. Whether the trial court erred in allowing into evidence an x-ray of the rib of the victim and testimony concerning the x-ray by a physician when the defendant asserts that the x-ray had not been disclosed by the prosecutor prior to trial; 6. Whether the trial court erred in instructing the jury that the defendant would not be subject to the death penalty in the event the jury found the defendant guilty of first degree murder; 7. Whether the sentence imposed by the trial court was excessive. The defendant was charged by indictment with having committed first degree murder resulting from the shooting death of the victim, Johnny Cordova, during an altercation at the Rose Tree Bar in Flagstaff. The defendant, admitting that he shot the victim, contended that he killed Cordova in self-defense. The state presented its case in support of the first degree murder charge through the testimony of numerous eye witnesses to the offense, various investigating officers, and the county pathologist. A critical issue in the case was the distance between the defendant and the victim at the time of the shooting. In support of his claim of self-defense, the defendant called as witnesses a forensic pathologist, Dr. Benham, and a mathematician, Dr. Moore, who, together, reconstructed the path of the bullet through the body of the victim, calculating the angle of the bullet, and from that, the distance between the victim and the defendant at the time of the shooting. In rebuttal, and over the objection of the defendant, the state introduced into evidence an x-ray of the rib of the defendant and the testimony of the county pathologist to the effect that the bullet fractured the rib and deflected. This testimony in rebuttal tended to contradict the findings of Dr. Benham and Dr. Moore. The shooting was investigated by Flagstaff police officer Cooper who responded to a call to the Rose Tree Bar at approximately 5:00 p.m. on August 17, 1980. As he entered the bar, Cooper observed the body of the victim lying on the floor near the west wall, and heard people in the bar stating that the defendant had shot the victim. Cooper called an ambulance for transporting the victim to the Flagstaff Community Hospital. The victim was pronounced dead at approximately 5:17 p.m. Cooper took a statement from Dolly Cor-dova, the wife of the victim. Dolly told Cooper that her husband was tending bar and that she was sitting on a bar stool when the defendant entered the bar. The defendant approached her and touched her hair, stating what pretty hair she had. The victim told the defendant to stop touching his wife, but apparently the defendant did not heed this request. Dolly told Cooper that her husband walked from behind the bar toward the wall of the bar where he picked up a pool cue and approached the defendant. She stated that the defendant then shot the victim first in either the neck or facial area, causing her husband to turn around. She indicated that her husband walked toward the northwest corner of the pool table and stopped, and that the defendant approached him by several steps, fired his gun, and again shot the victim. Prior to trial, Dolly Cordova was interviewed by the defendant’s counsel and investigator. During the interview she stated that she felt that the defendant was defending himself at the time of the shooting. She said that at the time of the shooting, the victim was holding the pool cue as if it were a baseball bat with which to hit the defendant. She testified at trial that her husband was very jealous and would become violent if she spoke to other men. She related an incident where she had been sitting in the bar speaking to one of the victim’s brothers when the victim became jealous and pushed his brother and began hitting her until she was knocked unconscious. She also testified at trial that she was afraid of the family of the victim because they blamed her for the killing and they had threatened to take her children away from her. Finally, at trial, when she was asked whether she thought the defendant had shot the victim in self-defense, she responded: “I don’t know.” The state also called other eye witnesses whose testimony varied considerably. One witness testified that the defendant shot the victim twice in the back and that there was an approximately thirty-second inter val between the two shots which were fired. The victim was in fact shot once in the face and once in the side. Another witness testified that the shots were less than a second apart. One witness indicated that he saw the victim approaching the defendant and that while the victim was walking fast, he did not appear to be angry or upset. Still another witness indicated that the victim appeared to be extremely angry as he approached the defendant. Dolly Cordova and another witness testified that the defendant was 15 feet from the victim at the time of the shooting. Another witness indicated that the defendant and the victim were ten feet apart at the time of the shooting. The state’s criminalist, Ken Kowalski, conducted tests on gunshot residue found around the hole in the shirt worn by the victim at the time of the shooting. The hole in the shirt was just under the left armpit, and was thus caused by the fatal second shot inflicted by the defendant. Kowalski testified that as a result of his test, he was able to determine that the gunshot wound was not a contact or near contact wound, which he defined as six inches or less from the victim. He also testified that the tests established that the shots could not have been fired from a distance greater than nine to ten feet from the victim. The defense called Dr. Moore, a mathematician from Northern Arizona University, who calculated the distance between the victim and the defendant at the time of the shooting as between 3.8 feet to 5 feet based upon the angle of the path of the bullet through the body. Dr. Moore did indicate that his calculations could vary if the victim were not standing upright at the time of the shooting. The evidence also revealed that immediately after the shooting, the defendant left the Rose Tree Bar on foot and proceeded toward the police station. He was picked up by Officer Tullís in a patrol vehicle and transported to the Flagstaff police station where the officer advised the defendant of his Miranda rights. The defendant agreed to make a statement to the police officers. He told them that he and his friend, Keith, went to the Rose Tree Bar to have a couple of drinks and play some pool. When the defendant entered the bar, he saw a pretty girl sitting there and he walked up to her and said, “Hello, pretty lady”, and touched her on the shoulder. The victim told him not to touch his girl, and the defendant moved away from the girl stating, “I’m sorry, I just said hello.” The defendant indicated that the victim then broke from behind the bar, ran around the bar, and grabbed a pool cue from the cue rack. The defendant told the officers that he shot the victim twice to keep him from hitting him with the pool cue. He stated that he did not aim, but that he just shot. He also indicated that he did not want to shoot the victim, but that he had been hit in the head several years before with a pool cue and had recurring problems as a result of his injuries. An intoxilyzer test indicated that the defendant’s blood alcohol reading was .06, and a subsequent blood test showed that his blood alcohol reading was .15. The defendant’s statement to the police was tape recorded, and the recording was played for the jury. THE GRAND JURY PROCEEDINGS Defendant first contends that the trial court erred in denying his motion for a new finding of probable cause made pursuant to Rule 12.9(a), Rules of Criminal Procedure, 17 A.R.S. He argues that the police officer testified to inaccurate and misleading information which led the grand jurors to believe that the defendant was not intoxicated at the time of the offense. He further argues that the prosecutor misstated the law concerning the element of premeditation required for first degree murder. Before issuing a true bill charging the defendant with first degree murder on August 21, 1980, the Coconino County Grand Jury heard the testimony of Detective James of the Flagstaff Police Department. James related the defendant’s statement to the grand jury and also related the statements of other witnesses to the shooting which differed from the defendant’s ver sion. Detective James responded to a question from a grand juror that the defendant’s breathalyzer results showed that the defendant had a blood alcohol of .06, with .10 as the presumptive level for one to be under the influence of alcoholic beverages. Detective James did not introduce evidence of the blood alcohol test because the results of that test had not been received by him at the time of the grand jury proceedings. Following Detective James’ testimony, the prosecutor presented to the foreman a proposed form of indictment charging the defendant with first degree murder. At that time, a grand juror asked the prosecutor to read the definition of premeditation. The prosecutor read to the grand jury the definition of premeditation in A.R.S. § 13-1101, and also told the grand jury that premeditation could be “as instantaneous as the conscious thoughts of the human mind.” The defendant contends that this instruction was from a case decided under the old code and has no application to the concept of premeditation defined under the current criminal code. We need not determine the propriety of withholding evidence from a grand jury or the propriety of the instructions to a grand jury on an appeal from a subsequent conviction. State v. Verive, 128 Ariz. 570, 627 P.2d 721 (App.1981); State v. Neese, 126 Ariz. 499, 616 P.2d 959 (App.1980). The trial jury, after the full trial and the presentation of the results of both the intoxilyzer and the blood tests, and after being completely and accurately instructed on the elements of all degrees of homicide, found the defendant guilty of second degree murder beyond a reasonable doubt. This court has held that in such circumstances, in order to obtain review of the denial of the motion for a new finding of probable cause, a defendant must seek relief by way of special action prior to trial. A defendant may not by an appeal from a conviction obtain review of matters relevant to a determination of probable cause which had no effect on the subsequent trial. State v. Verive, supra; State v. Neese, supra. MOTION TO DISMISS Prior to trial, the defendant filed a motion to dismiss the indictment, challenging the constitutionality of the first degree murder, second degree murder, manslaughter and negligent homicide statutes, A.R.S. §§ 13-1102 through 13-1105. The defendant asserted that the statutes overlap, are unconstitutionally vague, and constitute a denial of equal protection. The trial court denied the motion to dismiss, and at trial, instructed the jury on the elements of first degree murder, second degree murder, manslaughter and negligent homicide. The trial court also instructed the jury on the states of mind of intentionally, knowingly, recklessly, and negligently, pursuant to A.R.S. § 13-105. Due process requires that criminal offenses be defined in terms of sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute because a person should not be required, at the risk of his liberty, to speculate as to the meaning of a criminal statute. State v. Limpus, 128 Ariz. 371, 625 P.2d 960 (App. 1981). Equal protection of the laws guarantees like treatment to all persons who are similarly situated; however, the Fourteenth Amendment does not deny a state the power to classify in the adoption of police law, and a legislative classification will not normally be set aside if any set of facts rationally justifying it is demonstrated to or perceived by the courts. State v. Kelly, 111 Ariz. 181, 526 P.2d 720 (1974), cert. denied 420 U.S. 935, 95 S.Ct. 1143, 43 L.Ed.2d 411 (1975). Thus, “[a] statute which prescribes different degrees of punishment for the same acts committed under like circumstances by persons in like situations is violative of a person’s right to equal protection of the laws.” People v. Calvaresi, 188 Colo. 277, 534 P.2d 316, 318 (1975). A statute which is defined in terms so vague as to render it incomprehensible to a person of ordinary intelligence violates due process. State v. Limpus, supra. The defendant asserts in this case that the homicide statutes, A.R.S. §§ 13-1102 through 13-1105 violate both due process, as being void for vagueness, and equal protection as creating distinctions without a difference in the classification of the various degrees of homicide. In analyzing the statutes in this case, this court must keep in mind certain principles of review. First, the courts do not demand mathematical precision from the legislature, and there is a strong presumption supporting the constitutionality of a legislative enactment. State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978); State ex rel. Williams v. City Court, 21 Ariz.App. 318, 519 P.2d 71 (1974). Thus, the burden rests on the party challenging the validity of a statute to establish that it is unconstitutional. State v. Yabe, 114 Ariz. 89, 559 P.2d 209 (App.1977). The defendant first asserts that the second degree murder statute under which he was convicted is unconstitutional in that the requirement to sustain a conviction under that statute is indistinguishable from the requirement to sustain a conviction for first degree murder with premeditation pursuant to A.R.S. § 13-1105(A)(1). A.R.S. § 13-1105(A)(1) provides: A. A person commits first degree murder if: 1. Knowing that his conduct will cause death, such person causes the death of another with premeditation; * * * * * * A.R.S. § 13-1101(1) defines premeditation as follows: “Premeditation” means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. As Judge Gerber points out in his treatise, “ ‘Premeditation’ is the distinguishing feature of first degree murder. Its essence is reflective intent to kill. Premeditation requires some ‘length of time’ sufficient to permit the defendant to reflect on what he is about to do.” R. Gerber, Criminal Law of Arizona at 147 (1978). The defendant asserts that first degree murder with premeditation is impossible to distinguish from either intentional or knowing second degree murder as defined in A.R.S. § 13-1104(A)(1) and (2). That statute states: A. A person commits second degree murder if without premeditation: 1. Such person intentionally causes the death of another person; or 2. Knowing that his conduct will cause death or serious physical injury, such person causes the death of another person; * * * * * * The culpable mental states of intentionally and knowingly are defined in A.R.S. § 13-105(5)(a) and (b) as follows: (a) “Intentionally” or “with the intent to” means, with respect to a result or to conduct described by a statute defining an offense, that a person’s objective is to cause that result or to engage in that conduct. (b) “Knowingly” means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It is apparent from a reading of A.R.S. § 13-1105 in conjunction with A.R.S. § 13-1104 that first degree murder requires a showing of premeditation, while second degree murder requires a showing that the offense was committed intentionally or knowingly but without premeditation. It is thus clear that the legislature intended that there be two grades of murder with premeditation as the distinguishing factor between first and second degree murder. See People v. Sneed, 183 Colo. 96, 514 P.2d 776 (1973). While there may not appear to be a great difference between premeditated first degree murder and intentional or knowing second degree murder, and while the distinction between the two may be difficult to apply, there still exists a perceptible measure of difference in that premeditation must precede the killing “by a length of time to permit reflection.” In construing premeditation under the prior criminal code, the Arizona Supreme Court quoted the following instruction as a correct statement of the law: In order to find a deliberate and premeditated killing you must find more reflection on the part of the defendant than is involved in the mere formation of the specific intent to kill. State v. Magby, 113 Ariz. 345, 352, 554 P.2d 1272, 1279 (1976). In light of the definition of premeditation in the current criminal code, it is apparent that State v. Magby has continuing utility, and thus, it is this period of reflection, regardless of the length of time of the reflection, which distinguishes first degree murder from intentional or knowing second degree murder. We conclude, therefore, that A.R.S. §§ 13-1105(A)(1) and 1104(A)(1) and (2) do not violate equal protection inasmuch as there is a perceptible measure of difference between the statutes. We also conclude that a person of ordinary intelligence can perceive the distinctions between first degree murder and second degree murder, and that therefore, the statutes are not unconstitutionally vague. The defendant also asserts that A.R.S. § 13-1104(A)(3), defining reckless second degree murder and A.R.S. § 13-1103(A)(1), defining reckless manslaughter violate equal protection because they are indistinguishable, and that they violate due process because they are void for vagueness. A.R.S. § 13-1104(A)(3) provides: A. A person commits second degree murder if without premeditation: * * * * * * 3. Under circumstances manifesting extreme indifference to human life, such person recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person. A.R.S. § 13-1103(A)(1) provides: A. A person commits manslaughter by: 1. Recklessly causing the death of another person. The culpable mental state of “recklessly” is defined in A.R.S. § 13-105(5)(c) as follows: (c) “Recklessly” means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk. Thus, manslaughter pursuant to A.R.S. § 13-1103(A)(1) is committed where a person has no homicidal intentions but causes death recklessly. The culpable mens rea of recklessly consists of a conscious disregard of a substantial and unjustifiable risk. The risk required for conviction of manslaugh ter must involve “a gross deviation from the standard of conduct that a reasonable person would observe in the circumstances.” However, for one to commit second degree murder pursuant to A.R.S. § 13-1104(A)(3), the legislature has established a more culpable mental state. In commenting on reckless manslaughter in comparison with reckless second degree murder, Judge Gerber states: In treating this situation expressly as manslaughter, this section reflects a judgment that the culpable mental state of extreme indifference in new A.R.S. § 13-1104(AX3) is greater in degree of criminality than the culpable mental state involved here. R. Gerber, supra, at 152. The Criminal Code Commission points out in its committee notes that the extreme indifference to human life involved in reckless second degree murder distinguishes reckless second degree murder “from the less culpable recklessness involved in” reckless manslaughter. Arizona Revised Criminal Code, Arizona Criminal Code Commission at 128 (1975). The commission points out that “shooting into a crowded room or derailing a speeding train may be examples of [the] excessive recklessness” required for reckless second degree murder. Id. Accordingly, while manslaughter requires only a showing of recklessness, reckless second degree murder requires also a showing of “extreme indifference to human life” which created a “grave risk of death” to another in addition to the requirement of recklessness. Clearly then, two distinct measures of care differentiate the condition of recklessness expressed in the two statutes, and an extreme indifference creating a grave risk of death to another is a more culpable mental state than the requirement of a conscious disregard of a substantial and unjustifiable risk. See, e.g., People v. District Court, 185 Colo. 78, 521 P.2d 1254, 1257 (1974), where the Colorado Supreme Court held that “an extreme indifference to human life is clearly a more culpable standard of conduct [than recklessly], especially where necessarily coupled with the additional requirement that there be created a grave risk of death.” (emphasis in original). The defendant also argues that reckless manslaughter as defined in A.R.S. § 13-1103(A)(1) is indistinguishable from negligent homicide, which is defined as follows: A person commits negligent homicide if with criminal negligence such person causes the death of another person. A.R.S. § 13-1102(A). The culpable mental state of criminal negligence is set forth in A.R.S. § 13-105(5)(d) as: (d) “Criminal negligence” means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Thus, negligent homicide is established when a person fails to perceive a substantial and unjustifiable risk, and when the failure to perceive the risk is a gross deviation from the standard of care which a reasonable person would observe. Negligent homicide is distinguished from reckless manslaughter in that for the latter offense, the defendant is aware of the risk of death and consciously disregards it, whereas, for the former offense, he is unaware of the risk. See R. Gerber, supra, at 150. We conclude, therefore, that two distinct states of mind differentiate reckless manslaughter from negligent homicide. The legislature obviously intended that the awareness of the risk be a meaningful distinguishing factor between the two offenses. Accordingly, we find that the statutes defining reckless manslaughter and negligent homicide do not violate the equal protection clause of the Constitution. The defendant argues, nevertheless, that all the homicide statutes herein discussed are void for vagueness and therefore violative of the due process clause of the Constitution. This due process claim hinges exclusively on the equal protection claim inasmuch as the sole thrust of the defendant’s due process argument is that because the statutes are indistinguishable for equal protection purposes, they are, a fortiori, void for vagueness. He does not argue that the statutes are void for vagueness in any other regard. While the homicide offenses necessarily overlap to some degree, we have concluded that there are readily perceptible distinctions between each grade of homicide discussed herein. It follows, therefore, that the defendant’s due process claim must likewise fail. ADMISSION OF PHOTOGRAPHS The defendant contends that the trial court erred in admitting into evidence various photographs of the deceased based on his claim that the photographs were inflammatory and cumulative. The defendant objected at trial to the admission of the photographs as being both inflammatory and cumulative, and the trial court sustained the objection as to four of the photographs but allowed eight photographs into evidence. The defendant argues that the photographs were “sordid, gruesome and depicted the deceased in an inflammatory manner” and that it was reversible error for the trial court to allow them into evidence particularly since the defendant never denied that he shot the deceased. We disagree. Even though the defendant did not deny that he shot the deceased, his defense at trial was self-defense, and the most heavily contested issue at trial was the distance between the victim and the defendant at the time of the shots. Both the angle of the bullet as it entered and traveled through the body, and the presence or absence of powder burns or “tattooing” at the entrance wound were relevant to the determination of the distance between the victim and the defendant at the time of the shooting. It was established by testimony that an elliptical entrance wound, as opposed to a round entrance, would indicate an acute angle of entry of the bullet. Therefore, the photographs were probative on the issue of distance. Moreover, another factual issue was whether the victim had been shot in the back or in the side. The photographs tended to show that the victim had been shot in the side. Therefore, the photographs were directly relevant to and helped clarify the factual issues presented to the jury. The admissibility of arguably gruesome photographs is a question addressed to the discretion of the trial court, and depends on whether the probative value is outweighed by the prejudicial effect of their admission. State v. Steele, 120 Ariz. 462, 586 P.2d 1274 (1978). Thus, where it appears that the sole purpose of introducing a gruesome photograph or an article of clothing is to prejudice the jury, the admission of such items is reversible error. Id. However, it is clear that the photographs introduced in this case were directly probative on the defendant’s claim of self-defense, and our review of those photographs leads us to conclude that they were not so inflammatory as to outweigh their probative value. We find no error. DENIAL OF THE MOTION FOR JUDGMENT OF ACQUITTAL For his next argument, the defendant contends the trial court erred in denying his motion for a judgment of acquittal based on his claim that the evidence is insufficient to support the conviction. State v. Sety, 121 Ariz. 354, 590 P.2d 470 (App.1979). On appeal, this court must view the evidence in a light most favorable to sustaining the jury verdict. State v. Aeree, 121 Ariz. 94, 588 P.2d 836 (1978). The trial court may grant a judgment of acquittal pursuant to Rule 20, Rules of Criminal Procedure, 17 A.R.S., only if there is “no substantial evidence to warrant a conviction.” The trial court is under no obligation to grant a motion for a judgment of acquittal where there is substantial evidence that the defendant has committed the crime charged, and the trial court should not grant a motion for a judgment of acquittal if reasonable minds can differ on the inferences to be drawn from the evidence. State ex rel. Hyder v. Superior Court, 128 Ariz. 216, 624 P.2d 1264 (1981). “ ‘Substantial evidence’ is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). Moreover, it is the duty of the jury to resolve conflicts in the evidence. Id. We have reviewed the record and find there is substantial evidence to sustain the conviction. We therefore find that the trial court did not err in denying the motion for a judgment of acquittal. REBUTTAL EVIDENCE OP X-RAY At the close of the defendant’s case, he moved in limine to preclude the state from introducing into evidence a rib and an x-ray of the rib taken from the victim. The basis for the objection was that the x-ray and rib had not been disclosed to the defendant prior to trial and that a proper foundation had not been established for the admission of the x-ray or the rib. The trial court denied the motion and admitted the x-ray. Following the trial court’s ruling, Dr. Vor-pahl, the pathologist who performed the autopsy, testified that it was his opinion from looking at the x-ray that the bullet ricocheted off the 7th and 8th ribs of the victim after having entered the body at the level of the 5th and 6th ribs. Based on this testimony, the state argued that Dr. Ben-ham could not have accurately calculated the angle of the path of the bullet through the body of the victim. On appeal, the defendant argues that the admission of the x-ray of the rib was reversible error because the x-ray had not been disclosed to the defense at any time prior to trial. The record reveals that Dr. Vorpahl had testified during the state’s case-in-chief that he believed that the bullet had cracked the rib in question and ricocheted off it. Dr. Vorpahl’s name and address had been disclosed to the defendant prior to trial, and indeed, the defendant noticed Dr. Vorpahl as one of his own witnesses well prior to trial. Approximately a week before trial, the defense gave notice that it intended to call Dr. Moore concerning his calculations of the distance between the victim and the defendant at the time of the shooting based on the angle of the bullet through the body. During the trial, the state had the rib in question x-rayed. Dr. Vorpahl testified at the motion in limine that it was standard procedure during an autopsy to retain portions of tissue along the track of a bullet, and that he had saved the rib pursuant to that practice. He further indicated that he had spoken with defense counsel two to three times prior to trial, but he had not disclosed to them that he had saved the rib because neither defense counsel asked and because the condition of the rib was not an issue until Dr. Moore’s testimony. Based on the foregoing, the trial court allowed the state to introduce the x-ray, and indicated that the defendant could move to allow Dr. Benham to examine the rib and testify in surrebuttal, and that the court would consider such a motion at the time it was made. The defendant did not move to allow Dr. Benham to examine the rib and present his conclusions at any time thereafter. Rule 15.1(f), Rules of Criminal Procedure, 17 A.R.S., provides: Upon receipt of the notice of defenses required from the defendant under rule 15.2(b) the state shall disclose the names and addresses of all persons whom the prosecutor will call as rebuttal witnesses together with their relevant written or recorded statements. With regard to the application of rule 15.-1(f), the supreme court has expressly stated that the listing of the names of witnesses for use in the state’s case-in-chief is adequate notice to the defendant to be prepar ed for their testimony at any time, and such testimony may be admitted on rebuttal. State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977). Further, this court has stated: The criminal discovery rules do not require the state to provide a word-by-word preview to defense counsel of the testimony of the state’s witnesses. State v. Wallen, 114 Ariz. 355, 361, 560 P.2d 1262, 1268 (App.1977); see also, State v. Guerrero, 119 Ariz. 273, 580 P.2d 734 (App. 1978). While the state did not specifically disclose the existence of the rib and the x-ray of the rib until the x-ray was made during trial, it is clear that the x-ray evolved out of the testimony of the late disclosed defense witnesses, in particular, Dr. Moore. Where, as here, the defense witness was not disclosed until a week prior to trial, we conclude that imposing the sanction of preclusion of the rebuttal testimony would be unnecessarily harsh. See Rule 15.7(a)(4), Rules of Criminal Procedure, 17 A.R.S.; State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979). The defendant was given an opportunity to question the physician witnesses prior to the admission of the x-ray. He was also given an opportunity to move to allow Dr. Benham to examine the rib and the x-ray, which he failed to do. Under these circumstances, we cannot fault the prosecutor for failing to anticipate that the angle of the bullet through the body would be at issue. We find no error in the ruling of the trial court admitting the x-ray. State v. Lewis, 121 Ariz. 155, 589 P.2d 29 (App.1978). INSTRUCTION REGARDING DEATH PENALTY The defendant next asserts that the jury should not have been instructed concerning a stipulation that the death penalty would not be sought regardless of the verdict. Prior to trial, the following stipulation was entered into between the defendant, his counsel, and the prosecutor: The State of Arizona, by and through the undersigned Deputy County Attorney and the Defendant Thomas Bennett Walton, by and through his attorney Frederick M. Aspey, hereby stipulate and agree that the defendant will not receive the death penalty in this case in the event that the jury returns a verdict of guilty on the charge of first degree murder. IT IS FURTHER STIPULATED and agreed by and between the parties herein that the Court shall inform the prospective jurors of this stipulation at the time of jury selection. IT IS FURTHER STIPULATED and agreed by and between the parties herein that at the time of trial the jury shall be instructed by the Court that irrespective of the verdict, the Defendant will not be subject to the death penalty. During jury selection the jury panel was told by the trial court that if the defendant were convicted of first degree murder, the death penalty would not be sought. At the conclusion of the evidence, the jury was also instructed as follows: You were instructed that if you return a verdict of guilty on the charge of First-Degree Murder, the Defendant will not be subject to the death penalty. In deciding whether the Defendant is guilty or not guilty, do not consider the possible punishment. Defense counsel signed the stipulation at the insistence of the defendant, but during the settling of the instructions, he objected to the death penalty instruction on the grounds that punishment was not an issue for the jury. In State v. Van Dyke, 127 Ariz. 335, 337-38, 621 P.2d 22, 24-25 (1980), in addressing this issue, our supreme court stated: It is true a defendant is entitled to a jury verdict based on the evidence and without regard to the possible punishment, but here, by agreement of the parties, the jury was informed that no death sentence would be rendered. It was not only proper according to the very terms of the stipulation to “instruct” the jury but necessary to direct that this stipulation was to play no part in its delibera tions. Further, it was important to let this jury know how to deal with this particular stipulation in regard to all other stipulations, (citation omitted). We find that Van Dyke is dispositive of the issue in this case. Further, we note that the defendant in Van Dyke was found guilty of two counts of first degree murder, and that therefore any claim of prejudice resulting from the allegedly improper instruction with regard to the penalty for first degree murder would certainly be more persuasive in that case than in this case where the defendant was found guilty not of first degree murder, but of second degree murder. Under these circumstances, it appears clear that the instruction had no effect on the verdict of the jury. We find no error. SENTENCE For his last issue, the defendant contends that the trial court imposed an excessive sentence and requests this court to invoke its authority pursuant to A.R.S. § 13-4037(B) to modify the defendant’s sentence. The record reveals that both the defendant and the state requested a presentence hearing, the defendant for the purpose of presenting mitigating testimony, and the state for the purpose of presenting aggravating testimony. Numerous witnesses appeared at that hearing and testified for the defense, as to the defendant’s peaceful, loving and law-abiding nature, and for the state, as to the defendant’s known violent propensities. The trial court heard all of the testimony and read the presentence report. Prior to imposing the presumptive term, the trial court found the following aggravating circumstances: (I) The defendant has an extensive pri- or arrest history; (II) That the defendant has been arrested for several offenses involving the use of weapons; (III) As. found by the jury, the crime did result from the use of a deadly weapon. The trial court also found the following mitigating circumstances: (I) The defendant’s age of 63 years; (II) The fact that the defendant was intoxicated at the time the offense was committed; (III) The defendant does not have a prior felony conviction; (IV) The defendant cooperated with law enforcement agencies from the time of his arrest; (V) The defendant appears to be sincerely remorseful for what occurred; (VI) There was evidence of provocation and the need for self-defense, although the jury did not find this evidence to be sufficient to justify an acquittal or to justify finding the defendant guilty of the lesser offense. The trial court found that the aggravating and mitigating circumstances were not sufficient to call for a greater or lesser term than the presumptive term, and ordered the defendant committed to the Department of Corrections for the presumptive term of IOV2 years with credit for presentence incarceration of 162 days. The defendant argues on appeal that since the trial court found six mitigating factors and only three aggravating factors, it is difficult to understand how the trial court could have imposed the presumptive term. The defendant also asserts that in view of his age, the sentence imposed may very well end up to be a death sentence. We find these contentions insufficient to compel us to invoke our authority pursuant to A.R.S. § 13-4037(B), to reduce the defendant’s sentence. The balancing of the aggravating and mitigating circumstances in determining a sentence is not based upon mere numbers of aggravating or mitigating circumstances. State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979); State v. Henderson, 133 Ariz. 259, 650 P.2d 1241 1982); State v. Marquez, 127 Ariz. 3, 617 P.2d 787 (App.1980). It is the duty of the trial court to “take into account the amount of aggravating circumstances and whether the amount of mitigating circumstances is sufficiently substantial to call for the lesser term.” A.R.S. § 13-702(E). When a sen tence is within statutory limits, it will not be modified or reduced on appeal unless, from the circumstances, it clearly appears that the trial court abused its discretion in imposing sentence. State v. LaMountain, 125 Ariz. 547, 611 P.2d 551 (1980). An abuse of discretion is characterized by capriciousness or arbitrariness or by a failure to conduct an adequate investigation into the facts necessary for an intelligent exercise thereof. State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978). It is clear that the trial judge carefully exercised his discretion in determining the sentence in this case. The trial court noted that the case was a particularly difficult one for purposes of sentencing, and our review of the record leads us to appreciate the trial court’s difficulties in imposing sentence in this case. While the presentence report recommended a mitigated term of eight years, it is clear to this court that the trial court carefully considered the defendant’s character and background and the nature of the offense itself, and rejected after due deliberation the recommendation of the presentence report. The trial court’s deliberation in this case reflects a meaningful exercise of discretion, and we find no abuse thereof. For the foregoing reasons, the judgment and sentence are affirmed. FROEB and CORCORAN, JJ., concur. . The state argues that the defendant has no standing to attack the constitutionality of A.R.S. § 13-1105(A)(1) because he was not convicted of first degree murder. We disagree. The defendant was convicted of second degree murder and he attacks the constitutionality of A.R.S. § 13-1105(A)(1) as it relates to second degree murder. Inherent in his equal protection claim with regard to A.R.S. § 13-1104 is an assertion of the unconstitutionality of A.R.S. § 13-1105(A)(1). We conclude therefore that the defendant has standing to raise this issue. . A.R.S. § 13-1104(A)(3) also provides that second degree murder may be committed recklessly, but the defendant does not. argue that reckless-second degree murder is indistinguishable from first degree murder. . The Criminal Code Commission’s draft defining premeditation provided: “when such intention or knowledge precedes the killing by an appreciable length of time to permit reflection.” (emphasis added). See R. Gerber, supra at 147. The legislature adopted the Code Commission draft except it deleted the word “appreciable”. . Although the state contends that the defendant has waived his objection as to the inflammatory nature of the photographs, the record reveals that the defendant objected to the photographs not only because they were cumulative but also on the grounds that “they have no effect but to attempt to inflame the jury.”

PER CURIAM. The appellee, Oscar Rodriguez, filed a Petition for Review of the decision of the Court of Appeals, Division Two, holding that the ruling in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) does not apply retroactively to a divorce judgment which became final prior to the date of the McCarty decision. We accepted review. The original judgment in this case was entered in 1974. After the decision in the McCarty case, appellee, in August 1981, succeeded in having the superior court strike from the 1974 judgment the provision which awarded the appellant, his former wife, a share of his Air Force retirement benefits. The Court of Appeals vacated and set aside the 1981 order of the superior court. From our review of the legal authorities, we agree with the ruling of the Court of Appeals; therefore, we approve the decision of the Court of Appeals (Rodriguez v. Rodriguez, 133 Ariz. 88, 649 P.2d 291 (1982) and vacate and set aside the order of the superior court. HOLOHAN, C. J., GORDON, V. C. J., and HAYS, CAMERON and FELDMAN, JJ., concur.

OPINION JACOBSON, Presiding Judge. The primary issue on this appeal is whether the trial court had jurisdiction to enter an award of attorney’s fees under A.R.S. § 12-341.01 after a notice of appeal from the underlying claim had been filed. This litigation commenced with the filing of a complaint for breach of contract by Western Palms Investors and others against appellants Robert D. and Ann M. Trebilcox (Trebilcox) on April 11, 1977. On January 5, 1979 Trebilcox filed a third amended counterclaim adding appellee Brown & Bain, P.A. (Brown & Bain) as counterdefen-dants and alleging breach of fiduciary duty based on a purported attorney-client relationship. On May 30, 1979 the trial court entered summary judgment in favor of Brown & Bain dismissing the Trebilcox counterclaim with prejudice. The judgment expressly reserved jurisdiction to consider an award of attorney’s fees and contained an appropriate finding pursuant to 16 A.R.S., Arizona Rules of Civil Procedure, Rule 54(b). Trebilcox filed a notice of appeal on June 29, 1979 from this judgment. The judgment was affirmed by this court in Trebilcox v. Brown & Bain, P.A., 1 CA-CIV 4979 (filed November 3, 1981). On July 20, 1979, Brown & Bain filed a motion in the trial court for an award of attorney’s fees pursuant to A.R.S. § 12-341.01. The trial court elected to defer a hearing on this motion until after the conclusion of the trial in the main action. On December 18, 1979 the trial court issued findings of fact and conclusions of law upholding all plaintiffs’ claims against Trebilcox and rejecting all Trebilcox’s counterclaims and defenses. The successful plaintiffs also filed motions for an award of attorney’s fees and a hearing on all applications for attorney’s fees was held on March 7, 1980. By minute entry the trial court awarded Brown & Bain attorney’s fees for $10,431.50 which award was entered as a judgment in favor of Brown & Bain on March 21, 1980. On April 21, 1980 Trebil-cox filed a notice of appeal from this judgment. Trebilcox contends that the trial court was without jurisdiction to enter judgment awarding Brown & Bain attorney’s fees on March 21, 1980 because a notice of appeal from the underlying claim had been filed on June 29, 1979. We agree and reverse the' trial court. Arizona courts have held on numerous occasions that as a general rule when an appeal to a higher court has been perfected, the trial court loses all jurisdiction except in furtherance of the appeal. See, e.g., Allison v. Ovens, 102 Ariz. 520, 433 P.2d 968 (1967); Whitfield Transportation, Inc. v. Brooks, 81 Ariz. 136, 302 P.2d 526 (1956); Gotthelf v. Fickett, 37 Ariz. 413,294 P. 837 (1931). The rationale for this general rule has been stated as follows: The jurisdiction of this court when properly invoked must be protected. It cannot be defeated or usurped to the extent that its decision when rendered be nugatory. Whitfield Transportation, Inc. v. Brooks, supra 81 Ariz. at 141, 302 P.2d at 529. This general rule is subject to many well established exceptions. For example, in the absence of supersedeas the trial court in a civil proceeding retains jurisdiction to enforce the previously entered judgment pending appeal. Carp v. Superior Court, 84 Ariz. 161, 325 P.2d 413 (1958); an appeal from an intermediate or interlocutory order does not divest the trial court of jurisdiction to proceed on matters not involved in the appeal, Castillo v. Industrial Commission, 21 Ariz.App. 465, 520 P.2d 1142 (1974); the trial court is vested with continuing powers of jurisdiction in certain domestic relations cases by statute, O’Hair v. O’Hair, 109 Ariz. 236, 508 P.2d 66 .(1973). The question which this court must decide is whether an award of attorney’s fees pending an appeal of the merits of the claim upon which the award is based constitutes an action either “in furtherance of the appeal,” or does not-, involve an issue on appeal. In Title Insurance Co. of Minnesota v. Acumen Trading Co., 121 Ariz. 525, 591 P.2d 1302 (1979) the Arizona Supreme Court held that the absence in a judgment of a disposition of a request for attorney’s fees and a Rule 54(b) determination did not preclude an otherwise final judgment from becoming final and appealable. In so holding the court stated: Pursuant to 16 A.R.S., Arizona Rules of Civil Procedure, rule 54(b), in the absence of an express determination to the contrary, a judgment that decides less than all of the parties’ claims for relief remains open and is subject to revision. For the purpose of rule 54(b), multiple claims exist if the factual basis for recovery states a number of different claims that could have been separately enforced. [Citation omitted.] An award of attorneys’ fees under A.R.S. § 12-341.01 was inextricably tied to the granting of Acumen’s motion for summary judgment, thus constituting only one claim. Rule 54(b) is, therefore, inapplicable. (Emphasis added.) 121 Ariz. at 526, 591 P.2d at 1303. The award of attorney’s fees in the instant case is similarly “inextricably tied” to the granting of summary judgment to Brown & Bain on the Trebilcox counterclaim. Brown & Bain’s claim to these fees is based upon A.R.S. § 12-341.01, which gives the trial court discretion to award such fees to the prevailing party in a contract action. Assuming arguendo that Brown & Bain is correct in characterizing this action as one “arising out of contract,” it is clear that the entitlement to such fees is completely dependent upon the outcome of the appeal of the summary judgment in their favor. Brown & Bain’s request for attorney’s fees was not a separate claim nor can the disposition of this request be fairly characterized as an action in furtherance of the appeal. On the contrary, should this court have reversed the judgment of the trial court on the merits, the award of attorney’s fees would be in derrogation of such decision. We note that while this issue is one of first impression in Arizona, other jurisdictions have found that the trial court is without jurisdiction to make an award of attorney’s fees where such award is dependent upon the party to whom the award is made prevailing on appeal. Loui v. Corey, 634 P.2d 1055 (Haw.App.1981); D’Elia v. Association of Apartment Owners, 632 P.2d 298 (Haw.App.1981) We conclude that the trial court may not make an award granting attorney’s fees pursuant to A.R.S. § 12-341.01 where a notice of appeal has been filed from the underlying contract claim upon which the award is based. For purposes of judicial economy any such award should be made part of the judgment. However it appears that since the underlying judgment upon which attorney’s fee was based has now been affirmed, on remand the trial court would have jurisdiction to award those fees. See D’Elia v. Association of Apartment Owners, supra. To assist the trial court in making this determination we reach the issue raised by Trebilcox whether A.R.S. § 12-341.01 is inapplicable to this matter, as their action for breach of a fiduciary relationship is not one “arising out of contract.” In our opinion this issue is controlled by Sparks v. Republic National Life Ins. Co., 132 Ariz. 529, 647 P.2d 1127 (1982). In Sparks an action was brought by an insured against their insurer alleging in part a bad faith denial of insurance coverage, a tort. After specifically disavowing the holding in Amphitheater Public Schools v. Eastman, 117 Ariz. 559, 574 P.2d 47 (App.1977), the court held that the test to be applied in determining whether the “arising out of contract” language of A.R.S. § 12-341.01 is applicable is whether the “action in tort could not exist but for the breach of the contract.” 647 P.2d at 1141. (emphasis in original). If this test is met, attorney’s fees are awardable under the statute. Trebilcox’s cause of action in tort was for breach of a fiduciary relationship arising out of an attorney-client contract. Implicit in that action was the existence of an attorney-client relationship based upon the contract and a breach of the contractual duty to exercise the utmost honesty, good faith, fairness, integrity and fidelity to the client. Parsons v. Continental National American Group, 113 Ariz. 223, 550 P.2d 94 (1976). It is thus clear that the Trebilcox cause of action for tort could not exist but for the breach of the attorney-client contract. Under such circumstances attorney’s fees are available under A.R.S. § 12-341.01. Moreover, it is plaintiff’s cause of action “arising out of contract” which controls the application of A.R.S. § 12-341.01. Thus if plaintiff’s action satisfies the applicability of A.R.S. § 12-341.01, the fact that the defendants defend and prove the non-existence of a contractual relationship does not preclude awarding the successful defendants’ attorneys’ fees under the statute. Shirley v. Hartford Accident & Indemnity Co., 125 Ariz. 70, 607 P.2d 389 (Ariz.App.1979). Having determined that the trial court was without jurisdiction to enter the judgment from which this appeal is taken, the judgment is reversed. GRANT and BROOKS, JJ., concur. . A.R.S. § 12-341.01 provides in part: A. In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney’s fees. This section shall in no manner be construed as altering, prohibiting or restricting present or future contracts or statutes that may provide for attorney’s fees. . We recognize that there are circumstances under which the trial court has been held to have jurisdiction to make an award of attorney’s fees. However, these cases involve special circumstances, for example: where the trial court has by statute continuing jurisdiction in domestic relations cases; where an award of attorney’s fees pursuant to a statute permits such award for purposes of pursuing the appeal; and where the award is not dependent upon the outcome of the appeal. See, e.g., Bailey v. Bailey, 392 So.2d 49 (Fla.App.1981); In re Marriage of Giammerino, 94 Ill.App.3d 1058, 50 Ill.Dec. 490, 419 N.E.2d 598 (1981); Chicago Title and Trust Co. v. Czubak, 67 Ill.App.3d 184, 23 Ill.Dec. 858, 384 N.E.2d 765 (1978). We also note, without deciding, that a different result might obtain if there were a judgment granting attorney’s fees at the time the judgment was entered in the underlying action but the amount of such fees had not been determined. See Inter. Broth, of Teamsters v. Westera Pa. Motor Carriers Ass’n, 660 F.2d 76 (3d Cir.1981); DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135 (3d Cir.1980); Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131 (6th Cir.1980). But see de Mouy v. Ingvoidstad, 664 F.2d 21 (3d Cir.1981); Croker v. Boeing, 662 F.2d 975 (3d Cir.1981); O. Hommel Co. v. Ferro Corp., 659 F.2d 340 (3d Cir.1981); Williams v. Ezell, 531 F.2d 1261 (5th Cir.1976). . Maricopa County Superior Court Local Rules, Rule 3.6(e) contemplates such a procedure.

OPINION CONTRERAS, Judge. At issue in this special action review of an Industrial Commission award is whether the administrative law judge improperly subjected the petitioners to liability for respondent’s increased disability resulting from unsuccessful surgery undertaken without notice to, or authorization by, the petitioners to treat an industrial injury. We find that the respondent’s decision to undergo the surgery was reasonable under the circumstances, and affirm the award. SURGERY AND FIRST AWARD Respondent Pitre (respondent), a construction laborer, suffered an injury to his low back on February 13, 1979, while in the employ of the petitioner employer. He placed himself under the care of David Di nin, D.O., who remained his attending physician from that time forward and who attended him throughout all times relevant to these proceedings. Dr. Dinin diagnosed a cervical/lumbosacral strain/sprain, and followed a course of conservative treatment, involving back manipulation and physical therapy. Thereafter, however, respondent was readmitted to the hospital with complaints of lower back and leg pain. A myelogram was performed, revealing a defect at L — 4, L-5 intervertebral disc space consistent with a herniated disc at that level. At that time, Dr. Dinin and a consulting orthopedic surgeon, Philip H. Lewis, D.O., requested that petitioner carrier authorize surgery on the herniated disc. The carrier requested that an independent medical examination be performed to consider the necessity for the surgery. The independent examination was conducted by Robert S. Barbosa, D.O., an orthopedic surgeon. Dr. Barbosa opined that respondent was not a candidate for surgery because there was a lack of objective findings, and recommended a course of conservative care involving medications and treatment. Petitioner carrier refused authorization for the surgery. Respondent was then released from the hospital and underwent several weeks of additional conservative care pursuant to Dr. Barbosa’s recommendations. At the end of that period, however, Dr. Lewis still felt surgery was in order. Surgery was performed by Dr. Lewis on May 29, 1979, revealing a disc herniation at L-4, and a congenital stenosis, which had caused symptoms of restricted movement of the L-5 root which passed through the area of sten-osis. On August 10, 1979, petitioner carrier issued its notice of claim status denying liability for the payment of medical benefits relating to the back surgery, following which a request for hearing was filed by the respondent. Formal hearings on the question of coverage of the back surgery were held on February 26 and April 30, 1980. In the Decision and Award of May 19, 1980, petitioner employer and petitioner carrier were found not to have received sufficient notice of the surgery as required by A.R.S. § 23-1062(A). They were therefore found not responsible for medical and hospital expenses relating to that surgery. The administrative law judge further noted in finding 11 of that award: Whether or not the evidence in the record is sufficient to establish that the back surgery was reasonably required is a question which need not be decided by this Hearing Officer since the notice requirements were not met. However, it is the opinion of this Hearing Officer that the opinions of Dr. Lewis and Dr. Dinin that the surgery was necessary are placed in considerable jeopardy by the complete lack of objective findings, as pointed out in the testimony of Dr. Barbosa. That award, affirmed on administrative review, was not appealed and became final. DISABILITY AND SECOND AWARD Respondent continued to receive his compensation and medical benefits (exclusive of reimbursement for the surgery and hospitalization) until these benefits were terminated by a notice of claim status issued by petitioner carrier on August 29, 1980. The notice of claim status also stated petitioner carrier’s position that the respondent employee had no permanent disability caused by his injury of February 13, 1979. The notice of claim status was based upon a report of a consultation group examination of the respondent on August 13, 1980, by Thomas H. Taber, Jr., M.D. and three other doctors. The group consultation report concluded: In our opinion, as a result of the injury and the surgery, the consultants are of the opinion that the patient has sustained approximately five percent (5%) permanent impairment of the whole man attributable to these events. Conceding that the five percent is based principably (sic) upon the laminectomy, from a medical point of view the injury lead (sic) to that surgery. In a purely medical setting we are unable to respond to the hypothetical absence of surgical intervention. As we understand the duties of a mason tender, in our opinion the patient would not be able to return to that vocation. Respondent filed a request for hearing in protest of the August 29, 1980, notice. Hearings were held on February 10, March 19, and May 11, 1981. At the hearings, testimony was taken from three medical experts: Dr. Dinin, Dr. Barbosa, and Dr. Taber. All three physicians testified that respondent had permanent residual disability due to his back condition. The three had varying views on whether the disability was attributable to the injury, the surgery, or both. Dr. Dinin testified that an 11% physical functional impairment of the whole man had resulted, and specified 5% of the impairment as due to the surgery itself, and 6% as due to the loss of range of motion due to the injury. He also testified that respondent’s condition had become medically stationary on May 9, 1980. Dr. Barbosa testified that, in his opinion, respondent’s condition had not been objectively improved by the surgery, and that in fact he felt respondent’s condition had been somewhat better prior to the surgery than after the surgery. He was also of the opinion that at least some of respondent’s impairment was due to the surgery, but was unable to say how much. He further testified that, in his opinion, the surgery had not helped respondent’s condition. Dr. Taber was unable to say within a reasonable degree of medical probability whether any permanent disability would have resulted had there been no surgery. On June 22, 1981, the administrative law judge issued a decision and award, which stated, in pertinent part: 14. Thus, the Law of Arizona appears to be that whether or not there has been negligence or malpractice on the part of a physician which causes additional disability, and whether or not a physician has conducted surgery without giving notice to the defendant insurance carrier pursuant to A.R.S. § 23-1062 A, that the applicant is entitled to compensation benefits for any disability which results from a combination of the accident and of the medical treatment which he receives from a legally qualified physician designed to improve his condition. In this case there is no evidence except that it was the intent of the physicians who performed the surgery on the applicant to improve his condition. Therefore, considering all of the evidence as a whole, the undersigned is persuaded that the applicant’s condition became medically stationary on May 9, 1980, and that the applicant sustained a 10% unscheduled permanent partial disability of the whole person as a result of his industrial injury. The award was affirmed on administrative review, and this special action follows. CAUSATION OF DISABILITY In this special action, petitioners raise three arguments that the imposition of liability for the increased disability was improper. They first contend that respondent’s failure to notify them of his decision to undergo surgery broke the chain of causation between his industrial injury and any additional disability resulting from that surgery. They contend, in essence, that the surgery became the superseding cause of the disability. As authority for that proposition, petitioners rely on O’Donnell v. Industrial Commission, 125 Ariz. 358, 609 P.2d 1058 (App.1979); Allen v. Industrial Commission, 124 Ariz. 173, 602 P.2d 841 (App.1979); and 1 A. Larson, Workmen’s Compensation Law § 13.21. Larson, as petitioners point out, states a general rule that conduct of the employee related to the treatment of a compensable injury ... should not break the chain of causation unless it amounted to an intentional violation of an express or implied prohibition. Larson, pp. 3-392 — 3-393. However, later in the same section, applying a general principle that the reasonableness of a claimant’s act governs the compensability of its consequences, Larson states that if claimant gets conflicting instructions on treatment from different doctors, and chooses to follow his own doctor’s advice, this is not unreasonable. Id., p. 3-407. Larson treats the question involved here — obtaining private surgery without consulting the employer — more fully in § 13-23. When an employee takes such action, two separate questions arise. The first is whether the employer is liable for the medical costs incurred. The general rule is that he is not, and Arizona law is in accord. A.R.S. § 23-1062(A); Pickett v. Industrial Commission, 26 Ariz.App. 213, 547 P.2d 484 (1976); Arizona Public Service Co. v. Industrial Commission, 27 Ariz.App. 369, 555 P.2d 126 (1976). That of course is not the issue here, the question having been finally resolved in favor of the carrier by the first award. The second question, and the one involved here, is whether the carrier is liable for any added disability resulting from the private treatment. Here, the authorities cited support compensability. We note that the Arizona statute, A.R.S. § 23-1062(A), like the New Jersey statute discussed in Larson § 13.23, “appears to address its requirement of notice before medical treatment solely to the issue of reimbursement for medical and hospital expenses as such.” Id. at 3-434. This court has previously held that an employee who takes time off from work on the advice of his own physician, even though the employer’s physician had released him for work, was entitled to lost time benefits. Lee v. Industrial Commission, 121 Ariz. 589, 592 P.2d 785 (App.1979). Nor does Arizona case law dealing with an employee’s intentional act support petitioners’ contention that the industrial injury was not the cause of the disability. In O’Donnell v. Industrial Commission, supra, this court adopted a reasonableness test: We therefore hold, in determining the causal relationship of a subsequent injury or aggravation to a primary injury where the claimant’s activity is a factor in bringing about the subsequent injury or aggravation, such activity shall not be considered to break the chain of causation, unless the activity under all of the circumstances is unreasonable in light of the claimant’s knowledge of his previous condition. 125 Ariz. at 361, 609 P.2d at 1061. The increased disability is thus compensable if respondent’s decision to undergo surgery was reasonable under all the circumstances and not “intentionally reckless conduct.” Allen v. Industrial Commission, supra, 124 Ariz. at 177, 602 P.2d at 845 (Haire, J., dissenting). Respondent concedes that the administrative law judge made no express finding that respondent’s surgery decision was reasonable, but argues that the evidence would support such a finding. We agree. The administrative law judge was not required to make a finding as to every individual fact. We must presume that the administrative law judge considered all relevant evidence in making the award. E.g., Perry v. Industrial Commission, 112 Ariz. 397, 542 P.2d 1096 (1975). We will vacate for failure to make a finding only where we are unable to determine whether the basis of the administrative law judge’s conclusion is legally sound. See Cavco Industries v. Industrial Commission, 129 Ariz. 429, 631 P.2d 1087 (1981). In this case, it is apparent from the record that the award is reasonably supported by the evidence and legally sound. Throughout the award, the administrative law judge emphasized that respondent sought the help of, and relied on the advice of, a qualified physician, and that the surgery was designed or intended to improve his condition. We believe that under the circumstances of this ease, such findings are tantamount to a finding that respondent’s conduct was reasonable. CAUSATION OF SURGERY Petitioners contend that the administrative law judge made no finding that the surgery was (1) causally related to the industrial injury or (2) necessary as a result of the industrial injury. We note that whether or not the surgery was “necessary”, i.e., “reasonably required”, is relevant only to determining whether or not benefits for the surgery itself are appropriate, and that is not the issue here. We believe that medical treatment can be causally related to an industrial injury even if it is not reasonably required. It appears that, at the hearing, the factual causation between industrial injury and surgery was virtually assumed by all parties, and the administrative law judge saw no necessity to make a finding on the subject. In their request for review, petitioners claimed that the surgery was “unrelated” and “bears no relationship to any industrially-related event.” In response to such claims, respondent argues that the chain of (factual) causation was unaffected by the necessity of the surgery or the skill with which it was done. We agree. It was uncontroverted that the surgery was undertaken only because of, and with the intent to improve, the condition resulting from the industrial injury. The administrative law judge explicitly so found and in our opinion this constitutes a finding of causation. Consequently, we accept the administrative law judge’s finding of factual causation. We therefore need not address respondent’s argument that such a finding was implicit in the first award. APPORTIONING CAUSATION AND LIABILITY Finally, petitioners contend that there is an unresolved conflict in the testimony as to what portion of respondent’s disability is attributable to the injury and what portion is attributable to the surgery. This contention is founded on the premise that petitioners are liable for the former but not the latter. Since the premise has been rejected above, this argument is no longer pertinent. For the foregoing reasons, the award is affirmed. EUBANK and HAIRE, JJ., concur.

OPINION HOWARD, Chief Judge. The determinative issue here is whether the trial court erred in not allowing National Indemnity Company to intervene in the lawsuit filed by appellees against its insured. Sol Behar and Daniel Singer operated a barbershop, The Esquire for Men, Inc. They were also the sole stockholders of a separate corporation, Esquire Labs of Arizona, Inc., that was in the business of performing artificial hair transplants. The two businesses were at separate locations. All the hair implants were done at the lab by lab employees supervised by licensed physicians. The barbershop carried “Beauty Shop and Barbershop Malpractice Liability Insurance” issued by National Indemnity Company (National). The lab was insured by another carrier. The complaints filed below were not identical since plaintiffs were represented by different counsel. Examination of these complaints show that they only alleged wrongful conduct in connection with the hair implant process. However, we set forth part of Count VII, the negligence count, contained in some of the complaints since appellees contend that Count VII put the barbershop operation in issue: “II. That Defendant undertook implantation of artificial hair into Plaintiffs’ scalps; that Defendants failed to properly implant said hair; further, that Defendants were negligent by the very undertaking of the implantation and knew or should have known that the implantation would be unsuccessful; that Defendants acted with reckless disregard for the health of Plaintiffs. III. That as a result of Defendants’ ordinary negligence and gross negligence, Plaintiffs were caused serious and permanent injury and sustained and will sustain substantial financial losses due to medical and other expenses.” The barbershop’s attorney requested that National defend the actions on behalf of its insured. At this time he was defending not only the barbershop, but the lab and the Behars and Singers. National responded by letter of July 11, 1980, which explained, among other things, why it declined to defend said suits on behalf of the barbershop as follows: “... However, we have thoroughly reviewed our policy and, based upon information that the occurrences did not take place on our insured premise (1066-68, North Campbell) and furthermore, it did not involve any acts performed by our named insured, we are quite confident that there is no coverage applicable under the terms of our policy No. GLA 13 33 99. ****** Furthermore, we do not believe that the implantation of synthetic hair is any collateral ‘Barber Shop’ operation under the terms of our policy. In fact, it is my understanding that there is an entirely separate corporate entity involving the same corporate officers as identified under our policy (Behar and Singer) but that they have their own separate liability policy for that particular operation. The aforementioned reasons are primarily our basis for denying coverage for this loss and resulting lawsuits. ****** ... [I]f our investigation reveals any exposure to our policy then, of course, we will, and only under those circumstances, undertake the defense of Esquire For Men, Inc..” On August 8, 1980, National filed a declaratory judgment action seeking to have the court determine whether it had an obligation to defend the actions. Simultaneously with the filing of the complaint in the declaratory judgment action, National filed a request for admissions of the barbershop corporation. In its response to these requests for admissions, the barbershop admitted that the implantations did not take place at the barbershop premises and were not performed by barbershop employees, but instead, the implantations took place at the lab corporation premises and were performed by lab corporation employees under the supervision of a licensed physician. National hired an investigator, Roger Winn. He talked to one of the plaintiffs' attorneys, Don Estes, and to an attorney for one of the physician defendants. He also audited the various pending suit files and verified that the implantation was done at the lab by lab employees. He found no hint of barbershop involvement. National also took the depositions of Be-har and Singer in the declaratory judgment action. National contends this discovery disclosed no barbershop involvement. Ap-pellees claim the information discovered at these depositions should have alerted National as to possible barbershop involvement. These depositions are not part of the record on appeal and we therefore cannot consider them. In the meantime, the defendants, The Esquire For Men, Esquire Labs, Behar and Singer entered into “Damron agreements” with various plaintiffs. See Damron v. Sledge, 105 Ariz. 151, 460 P.2d 997 (1969). The effect of the agreements was to give the plaintiffs a free hand to obtain judgments against them and seek satisfaction of such judgments from National and any other insurers which had issued policies to Esquire For Men, Inc. or Esquire Labs. It would appear that under the terms of the agreements, the only way which these defendants would ever incur any liability would be if the plaintiffs failed to make any recovery against any insurance company which had issued liability insurance to them or any recovery against the medical doctors named as defendants or the insurance companies that had issued malpractice coverage to these doctors. If plaintiffs were unable to recover any sums whatsoever, the agreements provided that Esquire Labs and its principals would have to repay the plaintiffs the price paid by plaintiffs for the surgical implants. National did not know that its insureds had entered into this agreement. On November 25, a trial took place. National was never notified that this was going to happen. The only persons who testified were the plaintiffs. The judgments totaled $650,000. Each judgment contained the following paragraph: “That Esquire For Men, Inc., was negligent in the hair care, shampooing and professional barbershop services it provid ed to the Plaintiff ... while the Plaintiff was upon the premises of Esquire For Men, Inc., at 1066-68 North Campbell in Tucson, Arizona, and elsewhere; and further, that the services and treatment provided to the Plaintiff were in connection with or incidental to the business carried on at Esquire For Men, Inc.” National did not learn about the judgments until on or before February 17,1981, when it received an opposition to its motion for summary judgment in the declaratory judgment action. On the same day it hired attorney Arthur Miller to defend the barbershop on the barbershop risk. Miller filed an appeal in this court which was dismissed on April 9,1981, upon motion of the barbershop who objected to attorney Miller representing it. On April 15 attorney Miller filed a motion for relief under Rule 60(c), Arizona Rules of Civil Procedure, 16 A.R.S. National directly filed a motion to intervene on May 1. Prior to moving to intervene, National conducted further discovery in the declaratory judgment action. This discovery disclosed that neither the insured, nor the attorneys involved in the hair implant case ever communicated to National in a way that would put it on notice that there was a claim against the barbershop based upon the barbershop risk which it insured. The trial court ruled that National had violated its duty to defend and was not entitled to intervene. It also denied attorney Miller’s Rule 60 relief. Appellant, National, contends the trial court abused its discretion in denying intervention because the record shows that it had no notice of the fact that the plaintiffs were claiming negligence in the performance of post-surgery barbering services. Appellees’ entire defense to the intervention ultimately rests upon two propositions: (1) The complaints put National on notice of the barbering claims and (2) National’s duty to defend rests not upon the allegations of the complaints, but upon facts proved at trial. We find these propositions to be erroneous. The general rule in Arizona on the duty of the insurance company to defend is as follows: If on its face the complaint in the action brought against the insured alleges facts which come within the coverage of the liability policy, the insurer is obligated to assume the defense of the action, but if the alleged facts fail to bring the case within the policy coverage, the insurer is free of such obligation. Kepner v. Western Fire Insurance Company, 109 Ariz. 329, 509 P.2d 222 (1973); Granite State Insurance Corporation v. Mountain States Telephone and Telegraph Company, 117 Ariz. 432, 573 P.2d 506 (App.1977). If the alleged facts ostensibly bring the case within the policy coverage, but other facts which are not reflected in the complaint plainly take the case outside the policy coverage, there is no duty to defend. Kepner v. Western Fire Insurance Company, supra. The law is clear that an insurer must be given notice of an amended pleading which would impose a duty to defend, and a failure to give notice will relieve the insurer of liability under the policy. Sussman v. American Surety Company of New York, 345 F.2d 679 (5th Cir. 1965); Seaboard Industries, Inc. v. Monaco, 258 Pa.Super.Ct. 170, 392 A.2d 738 (1978). The insured cannot defeat the necessity of the notice of such an amended pleading by simply waiving the necessity of an amendment. Looking at Count VII which we have previously set forth, it is clear that there was not, contrary to appellees’ contention, notice given to National of the barbering claims. Paragraph 2 of the count alleges negligence in the implanting of the hair and paragraph 3 is an allegation of proximate cause and not an allegation of general negligence. In summary, National showed the following in its motion to intervene. The complaints did not allege any facts which showed policy coverage. National did not know of any facts or claims against its insured concerning the care, cutting or shampooing of the plaintiffs’ hair after the surgeries. If the insured knew of such claims, they never notified National and instead entered into agreements which per mitted plaintiffs to get judgment for claims never alleged and never disclosed to National. A clearer miscarriage of justice could not be shown. An application for intervention made after final judgment is timely only in “extraordinary and unusual circumstances.” State Farm Mutual Automobile Insurance Company v. Paynter, 118 Ariz. 470, 577 P.2d 1089 (App.1978). Such circumstances exist here and the trial court abused its discretion in not allowing intervention so that National could pursue relief under Rule 60. As for the appeal by the appellants allegedly represented by Arthur Miller, it is the contention of these appellants that Arthur Miller does not represent them, that they have settled their case with the plaintiffs and that absent their consent, Miller cannot file an appeal on their behalf. Miller, who was hired by National, contends that since the insurance company never had notice of the claims, it has a right to represent the insured and pursue this appeal in spite of their consent. In view of our disposition of the appeal by National, we need not address this issue. National will have its opportunity to pursue Rule 60 relief. The appeal of appellants Esquire For Men, Inc., Esquire Labs of Arizona, Inc., the Be-hars and the Singers is moot. The order denying intervention is vacated and set aside and the trial court is instructed to enter an order granting intervention to National Indemnity Company. The appeal by the rest of appellants is dismissed. HATHAWAY and BIRDSALL, JJ.

OPINION CONTRERAS, Judge At issue in this special action review of an Industrial Commission award is the effect of a claimant’s withdrawal of his request for hearing protesting the carrier’s notice of claim status terminating temporary compensation and notice of permanent disability benefits. We hold that, under the facts presented here, when the employer/carrier brought it to the administrative law judge’s attention that there had been an error in the notice of claim status and disputed issues had in fact not been resolved, the administrative law judge erred in dismissing the request for hearing. The award is set aside. BACKGROUND The facts of the case are undisputed, and we will adopt, as our starting point, essentially the statement of the case and facts contained in petitioner’s opening brief. The claimant sustained an industrial injury on May 3, 1979, while employed by the self-insured petitioner, Arizona Public Service Company (APS). His claim was accepted and he received benefits thereafter. On March 31, 1981, claimant was examined in group consultation by three physicians, whose report stated: After review of the file and the physical examination today, the consultants are of the opinion that the patient’s condition with reference to the injury of 5-3-79 is stationary from an orthopedic viewpoint. Although the patient evinces evidence of pain with all activities and motion of the right upper extremity from the fingers to the shoulder, and, therefore, is not very cooperative, the approximate range of motion and the fracture into the elbow joint indicates the patient has incurred approximately a twenty percent (20%) impairment of the right upper extremity. On May 28, 1981, petitioner issued a Notice of Claim Status terminating temporary benefits, and a Notice of Permanent Disability or Death Benefits, by which claimant was awarded scheduled compensation benefits, in accordance with the physicians’ rating, of $625.00 per month for a period of 12 months, pursuant to A.R.S. § 23-1044(B)(13) and (21). On July 8, 1981, claimant, through his attorney, filed a Request for Hearing with the Industrial Commission, alleging that his condition was not stationary, and/or that he had a greater disability than that which had been awarded. The case was then sent to the Hearing Division at the Industrial Commission, and on September 17, 1981, the administrative law judge issued a Notice of Hearing setting the matter for November 18, 1981. On October 22,1981, claimant’s deposition was taken. He testified that he had not received workmen’s compensation or other disability benefits prior to 1979, but that he had sustained an industrial injury in 1968, and had been off work for about six weeks for cartilage surgery on his knee. Petitioner’s inquiry to the Industrial Commission disclosed that on March 18, 1970, the Commission had entered its Findings and Award for Scheduled Permanent Disability in Case No. NK 13552, by which it had been determined that claimant had sustained a ten percent (10%) functional loss of the left leg, and had been awarded scheduled compensation benefits in the sum of $500.00 per month for a period of five months. The prior award entered some eleven years earlier concerned an injury sustained by claimant while working for this same petitioner employer. On the day of the deposition, claimant’s counsel directed a letter to the administrative law judge to whom the case was assigned and withdrew the request for a hearing which had been filed on July 8, 1981. The letter stated: The Applicant understands that this action will have the effect of allowing the notice which indicated a scheduled award for a 20% right arm to become final and res judicata. On October 23, 1981, the day following claimant’s deposition, petitioner issued (1) a Notice of Claim Status which purported to rescind the prior Notice of Permanent Disability or Death Benefits which had been issued on May 28, 1981, and (2) a Notice of Permanent Disability and Request for Determination of Benefits indicating that claimant had an unscheduled permanent partial disability compensable under A.R.S. § 23-1044(C) and (D). The Notice requested the Industrial Commission to make a determination of the amount of benefits payable to claimant in accordance with A.R.S. § 23-1047. The administrative law judge, without communicating with either counsel, then issued a Findings and Award Dismissing Request for Hearing on October 27, 1981, as follows: FINDINGS On October 22, 1981 the above applicant filed a withdrawal of his REQUEST FOR HEARING; that applicant’s hearing request having now been withdrawn, it reasonably appears issues to be resolved at formal hearing are now moot and/or applicant is no longer desirous of proceeding to formal hearing relative to NOTICE OF CLAIM STATUS and NOTICE OF PERMANENT DISABILITY OR DEATH BENEFITS issued by the self-insured employer on May 28, 1981; that in the premises, REQUEST FOR HEARING heretofore filed by the applicant on July 8, 1981 should be dismissed and the cause vacated and NOTICE OF CLAIM STATUS and NOTICE OF PERMANENT DISABILITY OR DEATH BENEFITS heretofore issued by the self-insured employer on May 28, 1981 should be deemed final. AWARD IT IS ORDERED: That REQUEST FOR HEARING heretofore filed by the applicant on July 8, 1981, should be, and the same hereby is, dismissed and the cause vacated; that formal hearing heretofore scheduled for November 18, 1981 in Phoenix, Arizona, should be and the same is hereby can-celled. IT IS FURTHER ORDERED: That NOTICE OF CLAIM STATUS and NOTICE OF PERMANENT DISABILITY OR DEATH BENEFITS heretofore issued by the self-insured employer on May 28, 1981, should be and the same are hereby deemed final. On November 6, 1981, petitioner filed a Request for Review of the Award entered on October 27,1981. Petitioner stated that, in the course of taking claimant’s deposition on October 22, it discovered that claimant had suffered a previous industrial injury in 1968, that his 1979 injury should have been considered an unscheduled injury, and the notice of claim status had mistakenly designated it a scheduled injury. Petitioner’s intimations to the contrary notwithstanding, there is nothing in the record to demonstrate that these matters were brought to the administrative law judge’s attention prior to November 6, 1981. On November 25,1981, the administrative law judge issued a decision upon review, affirming findings and award dismissing request for hearing. That decision stated, in pertinent part: 3. On October 22, 1981 the applicant filed a withdrawal of his REQUEST FOR HEARING. At that moment, the aforesaid Notices became final, the Commission lost its jurisdiction to hold a hearing and issued the FINDINGS AND AWARD DISMISSING REQUEST FOR HEARING on October 27, 1981. 5. The defendant employer issued the [May 28,1981] Notice and the only timely protest filed thereto was by the applicant on July 8, 1981. It appears that the defendant employer became aware of its error on October 22, 1981, which was more than 90 days after the Notice was issued and therefore a REQUEST FOR HEARING would have been untimely. The defendant employer is now raising the argument that applicant’s REQUEST FOR HEARING kept the matter open so that applicant’s withdrawal of said REQUEST FOR HEARING on October 22, 1981 should not have been accepted. This is analogous to the situation in Employer’s Mutual Liability Insurance Co. of Wisconsin v. Industrial Commission, 15 Ariz.App. 590, 490 P.2d 35 (1971) wherein the court held that opposing counsel cannot rely upon another party’s subpoena request to obtain a continued hearing as a matter of right. The self-insured employer in the instant matter cannot rely on applicant’s REQUEST FOR HEARING to keep this matter open indefinitely for the defendant employer as a matter of right especially, when the applicant withdraws his REQUEST FOR HEARING and the self-insured defendant employer still has not nor has ever made any protest. 7. In Nelson v. Industrial Commission, 115 Ariz. 293, 564 P.2d 1260 (Ct.App.1977) an applicant filed a late Request for Hearing to a NOTICE OF CLAIM STATUS which awarded him scheduled permanent benefits rather than unscheduled permanent partial benefits. Since applicant’s late Request for Hearing was not excused, the applicant argued that the insurance carrier’s error rendered the No- tice void and subject to attack at any time. The court stated: “Our review of the cases cited by the parties reflects the importance which our courts have attached to the finality of unchallenged Commission and carrier determinations, even where they may have been incorrect. See Talley v. Industrial Commission, 105 Ariz. 162, 461 P.2d 83 (1969); Saline v. Industrial Commission, [16 Ariz.App. 204,492 P.2d 453 (1972)].” 8. Although most of the cases refer to an applicant’s failure to timely request a hearing, obviously, the consequences are the same when the defendant employer (although a self-insured defendant employer as in the instant matter which issued its own NOTICE OF CLAIM STATUS) fails to timely request a hearing. ... Since the information concerning applicant’s prior scheduled permanent disability had to be available to the defendant employer herein in its own files, the defendant employer was obviously aware that it had no excuse to file a late Request for Hearing and attempted to circumvent the statute by issuing a new NOTICE OF CLAIM STATUS rescinding a NOTICE OF CLAIM STATUS which had already become final. 9. The FINDINGS AND AWARD DISMISSING REQUEST FOR HEARING heretofore entered on October 27, 1981 is fully supported by the evidence and is hereby affirmed. This special action review follows. THE EFFECT OF THE WITHDRAWAL Claimant contends, and petitioner concedes, that the current practice before the Commission is to enter an award dismissing the request for hearing upon receipt of a withdrawal of that request, without any inquiry as to whether in fact the disputed issues have been resolved. The Arizona Workmen’s Compensation Law, A.R.S. §§ 23-901 et seq. neither expressly authorizes nor expressly prohibits the withdrawal of a request for hearing. A.R.S. § 23-941(C) provides: § 23-941. Hearing rights and procedure C. The commission shall refer the request for the hearing to the administrative law judge division for determination as expeditiously as possible. The presiding administrative law judge may dismiss a request for hearing when it appears to his satisfaction that the disputed issue or issues have been resolved by the parties. Any interested party who objects to such dismissal may request a review pursuant to § 23-943. The parties have argued at some length the practical consequences of requiring the administrative law judge to undertake some kind of investigation to determine whether disputed issues have been resolved before dismissing a request for hearing. However, we believe that a resolution of that issue is not necessary to the disposition of this case. Petitioner’s challenge is directed not so much at the award dismissing the request for hearing, but more particularly at the decision on review affirming that award. Regardless of whether petitioner had an opportunity to set forth its position before the award, it did have and utilize the opportunity to do so during the administrative review process. The record discloses that the facts of the case and the parties’ legal positions were before the administrative law judge at the time of the decision affirming the award. We note that petitioner brought the matter to the administrative law judge’s attention within not more than two weeks after discovering its error. Several general principles regarding the effect of a request for hearing are not disputed. If no request for hearing is filed, the notice of claim status issued by the carrier is considered to be final and to have res judicata effect. A.R.S. § 23-947(B); Phoenix Cotton Pickery v. Industrial Commission, 120 Ariz. 137, 584 P.2d 601 (App.1978); Nelson v. Industrial Commission, 115 Ariz. 293, 564 P.2d 1260 (App. 1977). In filing a request for hearing, a claimant need not specify the grounds, and a timely request opens the whole matter for consideration by the Commission. Parkway Mfg. v. Industrial Commission, 128 Ariz. 448, 626 P.2d 612 (App. 1981). It has been said that the Commission then has “a positive duty to enter into such further proceedings as will result in a proper award”. Kuchinski v. Industrial Commission, 11 Ariz.App. 26, 28, 461 P.2d 505, 507 (1969). If a hearing is held, the subsequent award is res judicata as to all issues which were, or could have been, litigated at the hearing. Capitol Foundry v. Industrial Commission, 27 Ariz.App. 79, 551 P.2d 69 (1976). However, to the extent that petitioner argues that a request for hearing automatically and invariably necessitates a hearing, we disagree. We do not intend to disturb the practice of negotiating settlements of disputed claims, and then withdrawing the request for hearing. See Vigil v. Industrial Commission, 113 Ariz. 292, 552 P.2d 453 (1976); Gray v. Industrial Commission, 24 Ariz.App. 499, 539 P.2d 973 (1975), approved and adopted, 113 Ariz. 296, 552 P.2d 766 (1976). In the event of a settlement, A.R.S. § 23-941(C) authorizes the administrative law judge to dismiss the request for hearing, even without a formal withdrawal. Nor do we intend to prohibit a claimant who, for any reason, chooses to withdraw his request for hearing and not pursue his claim even though he may not agree with the carrier’s position, from doing so. Under such circumstances, when the carrier and the claimant concur in, or the claimant accedes to, the carrier’s determination, we see nothing improper in entering an award dismissing the request for hearing. Furthermore, we do not intend to impose on the administrative law judge any affirmative duty to conduct his own independent investigation to determine whether there has been a resolution of disputed issues. We believe that, in the absence of evidence to the contrary, the administrative law judge is entitled to take a withdrawal of a request for hearing at face value and act accordingly. However, we do not believe that a general policy of favoring bona fide settlements of disputes whenever possible and permissible, see Gray, supra, or a general policy favoring finality, extends to the situation here. A.R.S. § 23-941(C) contemplates dismissal on the basis of a settlement or a resolution of disputed issues. In some cases, such a settlement will be apparent from the withdrawal itself or from other documents in the Commission file. In other cases, there may simply be nothing to contraindicate a bona fide settlement. But in this case, it was apparent that there had been no settlement, but only an attempt by claimant to bind the employer/carrier to an earlier mistaken determination. We believe that the policy in favor of settlements, to the extent that it is even brought into play here, is outweighed by a policy in favor of a resolution on the merits. We strongly disapprove of the disposition of claims by means of a footrace to the Commission. From the decision on review, it is obvious that the administrative law judge believed that, had petitioner timely discovered its error, it could have kept the scheduled/unscheduled issue before the Commission by filing its own request for hearing. This would indeed be an anomaly. We know of no authority for a carrier to protest its own notice of claim status, nor of any procedural mechanism for doing so. We note that the notice of claim form approved by the Commission for carrier use includes a notice to the claimant of the necessity of filing a request for hearing within 90 days but no directions to the carrier concerning the correction of mistakes contained in its own notice. In light of the absence of any such procedures, we believe that a carrier should not be deprived of an opportunity to correct an error and litigate the issues by the claimant’s withdrawal of his request for a hearing, so long as such opportunity is timely sought. We have recently held that there must be exceptions to rigid rules of finality. Southwest Nurseries v. Industrial Commission, 133 Ariz. 171, 650 P.2d 473 (App.1982). We noted that while administrative review of awards pursuant to A.R.S. § 23-943 is restricted to the record, McDuffee v. Industrial Commission, 15 Ariz.App. 541, 489 P.2d 1243 (1971) [, tjhese principles however do not apply if a claimant obtains benefits fraudulently. In that circumstance the Commission may refuse to award further compensation even though an otherwise final notice of claim status or award granting compensation has been entered. See Scott v. Wasielewski, [89 Ariz. 29, 357 P.2d 614 (1960)]; Hopper v. Industrial Commission, [27 Ariz.App. 732, 558 P.2d 927 (1976)]; 3 Larson, Workmen’s Compensation Law § 81.50 (1976).... If the Commission has authority to grant relief based upon fraud uncovered after a final disposition, it is not powerless to grant relief when fraud is uncovered before the disposition becomes final. Id., 133 Ariz. at 174, 650 P.2d at 476. While we do not mean to imply that claimant was fraudulently attempting to obtain compensation, we do believe that petitioner’s discovery of its previous erroneous determination is as valid a reason to mitigate finality as was the carrier’s discovery of the claimant’s fraud in Southwest Nurseries. We have previously stated that “the moment an error is discovered, ... it should be corrected at the first opportunity.” Huff v. Industrial Commission, 18 Ariz.App. 436, 440, 503 P.2d 394, 398 (1972). The procedural setting here is fundamentally different from that in State Compensation Fund v. McComb, 16 Ariz.App. 303, 492 P.2d 1241 (1972). In McComb, the Commission issued its monthly wage award and, over two years later, the employer and carrier, having discovered an error in the computation, requested a hearing on the matter. We affirmed the denial of that request. In this case, petitioner discovered its error and communicated it to the Commission much more promptly. At the time the administrative law judge was made aware of the error, the only “award” which had been issued was the award dismissing the hearing, an award which was still in the administrative review process and which could have been reversed by the administrative law judge without disrupting the or derly administration of the claim. Indeed it was the dismissal of the request for hearing which interrupted the procedure in this case. Until five days before the award, the parties anticipated a hearing on the merits of the claim, in which the extent of the disability and its scheduled or unscheduled nature would have been in issue. Thus, proceeding with the scheduled hearing would not have violated res judicata principles to the same extent as the hearing sought in McComb. In summary, we hold that when one party withdraws a request for hearing, and, either before an award dismissing the request or within the time for administrative review, the other party presents evidence so that it affirmatively appears (1) that disputed issues have not been resolved, and (2) that the party resisting dismissal has exercised due diligence in detecting the error and raising the issue, then the administrative law judge should not dismiss the request for hearing. The award dismissing the request for hearing is set aside. EUBANK and HAIRE, JJ., concur. . Since we have disposed of this matter on this ground, we need not address the issue of the effect of the second notice of claim status issued by petitioner on October 23, 1981.

FELDMAN, Justice. Appellant, State Farm Mutual Automobile Insurance Company (State Farm), appeals a decision of the trial court which granted the motion for summary judgment filed by appellees, Ronald and Georgia Al-madova (Almadova), on an insurance claim Almadova had brought against State Farm. We have jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S. FACTS State Farm had insured Almadova’s 1976 Porsche automobile by a policy which contained theft coverage. On September 11, 1979, Almadova agreed to sell the car to the Fairchild Car Company, which at that time operated a used car lot in Phoenix. On that date, Almadova signed the title to the car and gave possession of the signed title and the car to David Raines, the president of Fairchild. Contemporaneously, Raines tendered Fairchild’s check, payable to Almado-va in the amount of $14,000. Almadova presented the check to the bank on the next day, but it was dishonored because of insufficient funds in the Fair-child account. The following day, Almado-va confronted Raines with the dishonored check. According to Almadova, Raines acknowledged that he had been aware that the check would not be honored, and then gave Almadova a second check for the same amount. This check was drawn on the account of the Specialty Car Company. Al-madova later presented this second check to the bank on two separate occasions, but it was dishonored both times. Some time later, Almadova unsuccessfully attempted to regain possession of the car from Raines and Fairchild Car Company. Almadova eventually found that Fairchild had gone out of business and has been unable to locate the vehicle. Almadova then made a claim under the theft coverage contained in the State Farm policy, and when it was rejected, filed the instant action for recovery under that coverage. The policy contains two provisions relevant to this case. They are: Loss to your car. We will pay for the loss to your car ... in excess of the deductible amount, ... caused by ... theft, larceny ... THERE IS NO COVERAGE FOR: ****** 3. Loss to any vehicle due to ... d. Conversion, embezzlement or secretion by any person who has the vehicle due to any lien, rental or sales agreement. In the motion for summary judgment, Almadova requested the trial court to find as a matter of law that the loss of the car fell within the coverage for “theft” but not within the provision excluding coverage for loss resulting from “conversion, embezzlement or secretion by any person” who had possession of the vehicle due to a sales agreement. State Farm argued that there was a question of material fact with respect to whether the loss had resulted from “theft,” and also filed a cross-motion for summary judgment, contending that because Raines had obtained possession as a result of a sales transaction with Almadova, the loss was within the exclusion as a matter of law. The trial court denied State Farm’s cross-motion for summary judgment, granted Almadova’s motion, and entered judgment for Almadova. State Farm appeals. We must decide, therefore, whether a loss which occurs as the result of the insured’s transfer of possession and title to a putative vendee who tenders a “bad check” for the purchase price is a “theft” within the coverage granted by the policy. If the “theft” coverage does apply, we must then decide whether the transaction is a loss resulting from a “conversion, embezzlement or secretion” of the vehicle by a person who had possession “due to” a “sales agreement.” We conclude that neither question can be answered as a matter of law on the record before us, and therefore reverse the judgment in favor of Almadova and remand the matter for proceedings consistent with this opinion. THEFT COVERAGE We note at the outset that there is much dispute in the cases on whether theft coverage applies when the insured voluntarily relinquishes possession of the automobile but is induced to do so through the fraudulent acts of a purported “purchaser.” See Annot. Automobile Theft Policy — Coverage, 48 A.L.R.2d 8 (1956). On the other hand, it is clear that the exclusionary language in the policy before us excludes from coverage the loss of an automobile when possession of the car is delivered to some third person as part of a bona fide sale, but the vendee later fails to pay and does not return the car. Id. at 72-97. Pointing out that Raines gained possession through the tender of a check which he knew would be dishonored, Almadova argues that there is a “theft” where the “buyer” obtains possession by a fraudulent device with intent to permanently deprive the owner of the property. Thus, Almadova claims, the facts fit the definition of “theft” either under the common law or under our statutory definition of theft (A.R.S. § 13— 1802), so that the loss falls within the coverage. State Farm argues, on the other hand, that a “theft” must include a “trespass” both at common law and in the common understanding of that term, so that the concept of theft does not include a voluntary delivery of possession and title, even when such delivery was induced by false pretenses. See General Accident Fire & Life Assurance Corp. v. Denhardt, 253 A.2d 450, 451 (D.C.App.1969). We note that the policy does not define “theft.” The word has many possible meanings; for example, it may mean conduct defined as theft by our criminal statutes. If so, our criminal code contains definitions of theft so broad as to include the common law crimes of theft, larceny, obtaining by false pretenses, embezzlement and receiving stolen property. See A.R.S. § 13-1802(A). On the other hand, at common law the crime of theft was different from embezzlement, obtaining by false pretenses and the other crimes listed in A.R.S. § 13-1802(A). Thus, it is apparent that the word “theft,” without further definition in the policy, is susceptible of various interpretations and is, therefore, ambiguous. See Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 647 P.2d 1127 (1982). As the Florida Supreme Court has noted, The word “theft” ... has been variously defined by courts of other jurisdictions in construing the “theft” provisions of insurance policies. Some courts have stated that this provision means theft as common thought and common speech would now imagine it; that it should be given the usual meaning and understanding accorded it by persons in the ordinary walks of life.... As stated in Toms v. Hartford Fire Ins. Co., supra, [146 Ohio St. 39, 63 N.E.2d 909, 911] “We think it may be accurately said that to ‘the man on the street’ the word ‘theft’ is of broader scope than ‘larceny’ and comprehends essentially the wilful taking or appropriation of one person’s property by another wrongfully and without justification and with the design to hold or make use of such property in violation of the rights of the owner. In our opinion, where the word ‘theft’ is used in an insurance policy, without definition, it should be interpreted as liberally as possible to protect the insured.” This court is committed to the rule that a contract of insurance prepared and phrased by the insurer is to be construed liberally in favor of the insured and strictly against the insurer, where the meaning of the language used is doubtful, uncertain or ambiguous. . . . And where, as here, a policy under a theft provision described as “Broad Form” provides coverage for loss or damage due to “theft, larceny, robbery, or pilferage,” it requires no great liberality of construction to hold that the insurer intended to provide coverage for losses in addition to those which are, by strict common-law definition, larceny. Fireman’s Fund Insurance Co. of San Francisco v. Boyd, 45 So.2d 499, 500-01 (Fla. 1950) (citations omitted). Our court of appeals has given the following interpretation to the word “theft” in an insurance policy: The modern trend today, where the word “theft” is not defined in the insurance policy, is to give it a liberal construction, namely a common and ordinary meaning according to the understanding of persons in ordinary walks of life. . . . The term “theft” has been construed to include any wrongful deprivation of the property of another without claim or color of right, . . . the fraudulent and wrongful taking of the property of another. . . Pacific Indemnity Co. v. Kohlhase, 9 Ariz.App. 595, 598, 455 P.2d 277, 280 (1969) (citations omitted) But see, e.g., Boggs v. Motors Insurance Corp., 139 A.2d 733 (D.C. App.1958); Annot., supra. We believe the rule formulated in Pacific Indemnity Co. v. Kohlhase, supra, is the more modern and better rule. The rule recognizes the inherent ambiguity of the word “theft” in an insurance policy which contains no further definition, and adopts a definition more in tune with the common usage of the word “theft.” We hold, therefore, that where the terms “theft” or “larceny” are used in the grant of coverage in an automobile insurance policy, but are not clearly defined or limited, they are ambiguous and should be interpreted broadly to include a loss caused by any unlawful or wrongful taking of the insured vehicle with criminal intent, whether or not such taking technically qualifies as embezzlement, theft or larceny at common law. See Farm Bureau Mutual Insurance Co. v. Carr, 215 Kan. 591, 594, 528 P.2d 134, 138 (1974); Modern Sounds & Systems v. Federated Mutual Insurance Co., 200 Neb. 46, 50, 262 N.W.2d 183, 187 (1978); Rudolph v. Home Indemnity Co., 138 N.J.Super. 125, 136, 350 A.2d 285, 292 (1975); Munchick v. Fidelity & Casualty Co. of New York, 2 Ohio St.2d 303, 305-06, 209 N.E.2d 167, 170 (1965). Therefore, if Raines-Fairchild took possession of the car with a present intention not to pay for it, the loss would be within the coverage of the policy. THE POLICY EXCLUSION State Farm claims that the transaction between Almadova and Raines was essentially a sale, that possession was voluntarily given by Almadova and taken by Raines “due to” the “sales agreement” so that the subsequent conversion, embezzlement or secretion of the vehicle by Raines or Fairchild Car Company was expressly excluded by the policy. Almadova contends, on the other hand, that Raines’ fraudulent intent prevented the formation of a valid sales agree ment. Since the agreement was not valid, Almadova argues, Raines’ possession was “due to” a fraud, i.e., theft, not a “sales agreement,” so that the exclusion is inapplicable. Under Almadova’s view, the exclusion would be applicable only when the third party obtained possession of the vehicle without criminal intent, but later formed such intent and failed to return or pay for the car. There is abundant authority for both propositions. Cf., e.g., Great American Indemnity Co. v. Yoder, 131 A.2d 401 (D.C. App.1957) (applying the exclusionary language to a fact situation similar to the case at bench) with Massachusetts Fire & Marine Ins. Co. v. Cagle, 214 Ark. 189, 193, 214 S.W.2d 909, 911 (1948) (holding the exclusion inapplicable because there was “never actually any sale of the car” since the buyer’s knowing use of a bad check vitiated the transaction). We believe that the exclusionary language under consideration falls somewhat short of covering the precise situation presented here. It is a situation which can easily be handled by appropriate wording. See, e.g., Galloway v. Marathon Insurance Co., 220 Ark. 548, 549, 248 S.W.2d 699, 700 (1952) (policy excluded from coverage “any theft . . . that is caused by any person to whom the [insured] voluntarily parts with title and/or possession, whether or not induced so to do by any fraudulent scheme, trick, device, or false pretense”); Rolfsmeier v. Implement Dealers Mutual Insurance Co., 182 Neb. 150, 152, 153 N.W.2d 367, 368 (1967) (a supplement to the policy contained a similar clause to the one in Galloway, supra, so that a transaction similar to that before us was held excluded from the theft coverage); Pacific Indemnity Co. v. Harrison, 277 S.W.2d 256, 257 (Tex.Civ.App.1955) (exclusionary clause similar to one in Galloway, supra). The language used here is not so unambiguous and clear as that used in the exclusions quoted in the cases just cited. There are a number of cases holding that exclusions similar to that under consideration here are inapplicable when the putative purchaser acquires possession through a fraudulent device such as the knowing tender of a “bad check.” See, e.g., Massachusetts Fire & Marine Ins. Co. v. Cagle, 214 Ark. at 193, 214 S.W.2d at 911; Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. at 597, 528 P.2d at 138; Bomar v. Insurors Indemnity & Insurance Co., 150 Tex. 484, 242 S.W.2d 160, 163 (1951). In each of these cases, however, the exclusion applied only when the third party had obtained “lawful” possession due to a sale or other type of agreement. The exclusion here is broader, since it makes no express difference whether the third party obtained “lawful” possession or not. A similar clause was construed in Modern Sounds & Systems v. Federated Mutual Ins. Co., supra, to be inapplicable to a transaction such as that which took place between Almadova and Raines because, the court noted, the exclusion was aimed only at transactions which were continuing in nature so that two or more persons had concurrent legal interests in the car. Thus, the court held the exclusion would be inapplicable to completed transactions where the “buyer” obtained possession by fraud. In our view, the best reasoned case on the effect of the exclusion is Farm Bureau Mutual Ins. Co. v. Carr, supra. There, the court discussed two separate exclusionary clauses. One excluded coverage when the automobile was lost after it had become “subject to” any conditional sale or purchase agreement (plus a variety of other transactions); the other excluded coverage if the vehicle was lost when, after a transfer of possession, there was a subsequent conversion, embezzlement or secretion by a person in “lawful possession.” The court indicated that the clauses, construed together, eliminated coverage when the person who caused the loss acquired such possession as would probably have caused him to purchase his own theft coverage or where he has taken the vehicle lawfully and later formed a criminal intent while still indebted to the insured. Id. 215 Kan. at 596-97, 528 P.2d at 138-39. Even though there is some difference between the exclusionary language, we believe that the principles of the Carr case best fit the situation presented by the policy in question here. Construing together the extension of coverage for “theft” and “larceny” and the exclusion of coverage for transfers of possession due to any sales agreement, we conclude that the intent of the policy is to provide coverage to the insured for any loss resulting from an initial wrongful taking or transfer of possession achieved by a preconceived, fraudulent device or criminal intent (the grant of coverage for theft and larceny), but not to losses which occur when the transferee takes lawful possession but later forms a dishonest, criminal intent (conversion, embezzlement or secretion by any person who has the vehicle due to any lien, rental or sales agreement). Thus, if Raines obtained possession of the car from Almadova due to a preconceived, fraudulent plan, that is, with an initial intent to defraud Almadova (e.g., take possession of the car by false representations — the check — and deprive Almadova of his property), there is coverage and the exclusion is not applicable. If, however, Raines did not have an initial fraudulent or criminal intent but only formed such an intent later, or did not form one at all, then the exclusionary language would control and there would be no coverage. Farm Bureau Mutual Ins. Co. v. Carr, supra. PROPRIETY OF SUMMARY JUDGMENT Under this interpretation of the policy, it is apparent that the trial court erred in granting summary judgment to Almadova. On the record before us, all that is known of Raines’ intent is that he delivered a check and allegedly later made a comment which indicated that he had known at the time that the check would not be good. We know nothing else about what his intentions were, nor do we know why Fairchild Car Company went out of business, whether they were engaged in a scheme to deprive Almadova and others of their cars, etc. Certain inferences of criminal intent can, of course, be made from Raines’ knowing tender of a bad check. Contrary inferences are possible. Resolution of conflicting inferences are for the trier of fact, not for the court on motion for summary judgment. See Northern Contracting Co. v. Allis-Chal-mers Corp., 117 Ariz. 374, 376, 573 P.2d 65, 67 (1977). The parties have not argued, and we have not considered or decided whether the mere knowing delivery of a bad check is a fact which, without more, in and of itself will justify the final inference that Raines had a criminal intent at the time of taking possession. The plaintiff must establish the existence of [the buyer’s] criminal intent by a preponderance of the evidence only and not beyond a reasonable doubt. See Annotation, 48 A.L.R.2d, § 14, p. 51. The fact that the buyer of an automobile issues and delivers an insufficient funds check in payment of the purchase price does not of itself establish criminal intent in a case such as this. On the evidence in this case, however, the factfinder could reasonably have found either that there was, or that there was not, the requisite criminal intent at the time of the taking. That issue cannot be determined as a matter of law and the judgment must therefore be reversed and the case remanded for a new trial. Modern Sounds & Systems v. Federated Mutual Insurance Co., 200 Neb. at 52-53, 262 N.W.2d at 187. Accordingly, the judgment in favor of Almadova is reversed and the case is remanded to the trial court for proceedings consistent with this opinion. HOLOHAN, C. J., GORDON, V. C. J., and HAYS and CAMERON, JJ., concur. . In the motion for summary judgment, Alma-dova claimed that the title was signed over to Fairchild, but in the brief, Almadova claims it was signed to Raines. . The case involved theft coverage on an airplane which was lost when, without the owner’s permission, a student pilot was allowed by the airport manager to take the insured’s airplane on a cross-country flight. The court held the loss was not covered by insurance for theft because it was apparent that at the time of the crash the student thought he had permission to use the airplane. . The exclusion applies to the wrongful acts of “any person who has the vehicle due to any ... sales agreement.” . Raines may have intended to cover the check by making a deposit before the check reached the drawee, may have thought the second check was good, etc.

OPINION KLEINSCHMIDT, Judge. This cause was heard as a special action upon a petition alleging that the trial court’s failure to order the petitioner’s release from custody constituted an abuse of discretion. The facts are not in dispute. On Friday, July 30, 1982, the petitioner, who had been placed on probation in December of 1981 subject to the condition that he not consume alcohol, was arrested in Coconino County for driving while intoxicated, a misdemeanor. On the same day he was afforded an initial appearance and released on his own recognizance. Before he was actually released from the jail a deputy sheriff contacted the petitioner’s probation officer and the probation officer placed an “oral hold” on the petitioner. The deputy sheriff advised the petitioner that he would not be released because the probation officer intended to file a petition to revoke probation. The petitioner contacted his attorney who in turn contacted the probation officer. The probation officer told the attorney that he intended to file a petition to revoke probation. The following Monday, August 2nd, petitioner’s attorney again contacted the probation officer and was again told that a petition to revoke would be filed. One day later, on Tuesday, August 3rd, a petition to revoke the probation was in fact filed and a probation revocation warrant was issued and served. The next day, on August 4th, the petitioner filed a Motion to Release Defendant which, in essence, was a petition for a writ of habeas corpus. This motion recited that the defendant had been arrested on an “oral hold” and invoked Rule 4.1(a) Ariz.R. Crim.P., which provides that a person arrested who was not brought before a magistrate within 24 hours after arrest shall be immediately released. This motion was heard the same day that it was filed and the trial court refused to release the petitioner. The court found that Rule 4.1 did not apply and that instead Rule 27.6, Ariz. R.Crim.P. did apply. Rule 27.6 provides that a probationer arrested on a revocation warrant shall be taken without unreasonable delay before the judge who issued the warrant for an initial appearance. The trial court further found that 48 working hours following a probationer’s arrest is not an unreasonable delay under Rule 27.6. On August 5th the court held an initial appearance on the probation revocation, set the revocation arraignment for August 9th and denied the petitioner’s request for release pursuant to Rule 7.2(b) and (c), Ariz.R. Crim.P. We accept jurisdiction for the purpose of clarifying a practice that lends itself to significant abuse but we deny the relief requested by the petitioner because on this record no prejudice of the type that would mandate release or dismissal has been shown. First, we pass quickly over the petitioner’s contention that the arrest was improper because the probation officer merely placed an “oral hold” on him and did not personally effect the arrest. A probation officer may, pursuant to A.R.S. § 13-901, make a warrantless arrest and we believe that such may be accomplished through a deputy sheriff by asking him to continue holding a probationer in custody so long as the person arrested is advised of the deputy’s authority and the cause of the arrest as required by A.R.S. § 13-3888. It would be a better practice for the probation officer to personally interview the probationer and assess the need to detain him before doing so but the exigencies of some situations may frequently make this impractical. The abuses to which the “oral hold” might lead are easy to imagine. Had this petitioner not had diligent counsel he might still be languishing in jail on the strength of nothing more than an “oral hold.” This possibility makes the strict adherence to the rules relating to revocations all the more important. The petitioner was arrested on a Friday and did not receive an initial appearance on the probation revocation matter until the following Thursday, a lapse of six days. Rule 27.6, Ariz.R.Crim.P. specifies that a probationer arrested on a probation revocation warrant shall be taken without unreasonable delay before the issuing judge for an initial appearance. At that time the probationer is to be advised of his right to counsel, informed that any statement that he makes prior to his hearing may be used against him, afforded a hearing regarding release and given a date for the revocation hearing. The delay experienced here, whether couched in terms of days or working hours, was unreasonable and the trial court abused its discretion in not immediately ordering the petitioner’s release. We base this conclusion upon the guidance provided by Rule 4.1(c), Ariz.R.Crim.P. and State v. Lee, 27 Ariz.App. 294, 554 P.2d 890 (1976). While we do not say that under all conceivable circumstances an initial appearance for a probationer must be held within 24 hours the delay occasioned here was clearly unreasonable. The state concedes this in its response to the petition. A violation of the time limits for initial appearances under the Rules of Criminal Procedure does not carry an automatic sanction of dismissal. State v. Mahoney, 25 Ariz.App. 217, 542 P.2d 410 (1975); State v. Lee, 27 Ariz.App. at 295, 554 P.2d 890. A person denied a timely hearing in probation violation matters must demonstrate prejudice which resulted from the delay, State v. Perez, 7 Ariz.App. 567, 442 P.2d 125 (1968); United States v. Wickham, 618 F.2d 1307 (9th Cir. 1979), or the acts complained of must be of such quality as necessarily prevent a fair hearing, State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (1962). At the hearing on the Petition for Special Action held before this court counsel for the petitioner suggested prejudice in that her client was in jail and could not accompany her to the scene where he was stopped by police to describe just how he was operating his vehicle at the time of the arrest. She further suggested prejudice in that she was unable to hold a joint conference between her client and a certain eyewitness which would afford her an opportunity to resolve potential inconsistencies in the evidence. We do not believe these rise to any violation of due process which would require dismissal. Nor do we believe that the abuse which occurred here mandates petitioner’s release because he has now had a hearing on that issue pursuant to Rule 7, Ariz.R.Crim.P. From the foregoing it might appear that the rules regarding speedy initial appearances create a right without a remedy where no prejudice to a fair trial has occurred. Those who might abuse this right are reminded that there is a well established body of law to the effect that civil liability may ensue from such conduct. See State v. Maldonado, 92 Ariz. at 76, n. 7, 373 P.2d 583. The relief requested in the Petition for Special Action is denied. OGG, P.J., and GRANT, J., concur. . Since Rule 27.6 contemplates an arrest pursuant to a warrant the petitioner argues that Rule 4.1(c) which requires that all persons arrested be taken before a magistrate without unnecessary delay applies to these proceedings. The sanction provided by Rule 4.1(c) for a failure to take an arrested person before a magistrate within 24 hours of arrest is immediate release. In view of the fact that we find that the court abused its discretion in failing to grant the petitioner’s release for a failure to provide a timely initial appearance under any rule petitioner’s contention is moot. We think, however, that where the arrest is for a probation violation the rules applying to probation matters are the ones that must be followed.

OPINION BIRDSALL, Judge. This is an appeal from a judgment in favor of the defendants in an action for contract damages resulting from the premature termination of an “open-end” automobile lease. The trial court ruled that the defendants had justifiably revoked acceptance of the automobile and were not liable on the contract. We shall state the facts in the light most favorable to supporting the judgment below. Polk v. Koerner, 111 Ariz. 493, 533 P.2d 660 (1975). Since Mrs. Palomares was only peripherally involved in the transactions that led to this suit, we shall refer to the appellees in the singular, as “Palo-mares” or “appellee.” On November 30, 1978, the parties executed an “open-end” lease of a 1979 Chevrolet Chevette. They have agreed that this lease was a “transaction in goods,” subject to the provisions of Article Two of the Uniform Commercial Code, A.R.S. § 44-2301 et seq. See A.R.S. § 44-2302; Knox v. North American Car Corp., 80 Ill.App.3d 683, 35 Ill.Dec. 827, 399 N.E.2d 1355 (1980). Furthermore, although the lease agreement expressly disclaimed that it was intended to convey title, the parties have agreed that the transaction was “a kind of sale” entered into in contemplation that Palomares would acquire title by paying an “agreed depreciated value” at the end of the lease term, and that the “lessee” and “lessor” were actually “buyer” and “seller,” respectively. After taking a test drive and making the usual car buyer’s cursory inspection of the automobile, Palomares took delivery on the day the lease was executed. Within a week, he discovered that the car was consuming what he thought was an excessive amount of motor oil, as much as two and one-half quarts on a 128-mile round trip to Tucson from his home near Nogales. An inspection of his garage floor (where the car was regularly parked) revealed no signs of an oil leak, but the car ran “like a crop duster” trailing great clouds of black smoke in its wake. Palomares testified that he took the car back to Preston Motors two or three times during the month of December, 1979, but that the personnel there refused to cheek the car for a defect and insisted that oil consumption was normal during the “break-in” period. Relying upon these assurances that oil-consumption did not indicate a defect, Palo-mares retained possession of the vehicle, but noticed that it was consuming more and more oil as mileage accumulated. In early January, 1979, after Palomares had possessed the car for just over a month, it was involved in a collision with a deer on the Nogales-Patagonia highway about one and one-half miles from the Palomares residence. Palomares inspected the car and, noticing that there still appeared to be quite a bit of water in the damaged radiator, drove it home and parked it overnight in sub-freezing weather. During this short drive he saw no signs that the engine was overheating. No steam or spray came from the engine, and the dashboard temperature warning light did not come on. The next morning, Palomares decided to take the car to Preston Motors for repair of the accident damage. After filling the radiator with anti-freeze (this took only one-half gallon) he drove the eight miles to the dealership. The car again showed no signs of overheating. Upon his arrival at Preston Motors, Palomares was told that the dealership had no body shop and that he should take the car to a local repair shop, Total Automotive, to have it fixed. Palomares drove the car about a mile to Total Automotive. Again, Palomares testified, it showed no signs of overheating. This testimony was corroborated by that of Total Automotive’s owner, Joseph Stack, who said the car showed no outward evidence of overheating; that the radiator was still about half full when the car arrived at his business; and that the fluid was above the sensing device of the warning system. Stack took several weeks to completely repair the accident damage, replacing even slightly damaged parts with new parts at Palomares’ insistence, even though he believed that some of the parts could have been repaired. When Palomares got the car back, he found that it ran just as it had before — it used large amounts of oil, misfired frequently, and often stalled, apparently because of badly fouled spark plugs. He therefore took the car back to Preston Motors and insisted that it be repaired. At Preston Motors, the car engine was disassembled and inspected. This revealed that the engine had been damaged by overheating. The service manager testified that the overheating had been caused by the accident with the deer, and that the repair costs would not be covered by the manufacturer’s warranty. A certified mechanic who testified for the appellee, however, stated that the amount of coolant loss described by Palomares and Stack would not itself cause the amount of overheating indicated by the damage. He suggested that such heat would be caused by a combustion chamber leak resulting from improper assembly of the cylinder head. Other testimony from Ray Preston indicated that excessive oil consumption could result from a leaking combustion chamber. The dealership’s owner and general manager, Harold Preston, testified that he sought and obtained a “policy adjustment” from the manufacturer, so that Palomares would not have to pay for the repairs even though the dealer did not believe the damage to be a result of a factory defect. Preston Motors, however, did not have the facilities to complete the repairs, and found it necessary to send the aluminum cylinder head to a repair business in Tucson. When the head returned, its valve seats were installed upside-down, and Preston sent the head back to the Tucson repair shop for correction. This delay in finishing the repairs upset Palomares, who eventually informed the dealer that he would consider his lease terminated unless the car was ready on April 4, 1979 (about two months after it was taken to Preston). When the repairs were not completed on that date, Palomares stopped making lease payments. Following procedures established by lease provisions pertaining to “Default” and “Premature Lease Termination,” the dealership sold the car at auction for $3,300 and brought this action to recover the remainder of the lessee’s agreed liability for such lease termination (computed by a formula not relevant here). After hearing two days of testimony, the trial court, sitting without a jury, found that the remedy established by the contract was unavailable because Palomares had revoked his acceptance of the automobile and was no longer bound by the contract. The appellant has advanced a number of arguments concerning the sufficiency of the evidence to support findings of fact incorporated or implicit in the judgment. It also contends that the trial court abused its discretion by failing to preclude testimony of an expert defense witness who was not disclosed until two days before trial. Since the sufficiency of the evidence depends, in part, upon that witness’s testimony, we believe it necessary to determine initially whether he should have been allowed to testify. Throughout the discovery phase of the proceedings below, the appellee had asserted that he and his wife would be his only witnesses. Two days before trial, however, he notified opposing counsel and the court that he intended to call three other witnesses. He contended that these were “impeachment” witnesses, but his statements of their proposed testimony clearly showed that they would rebut, not impeach, the appellant’s witnesses. See Zimmerman v. Superior Court, 98 Ariz. 85, 402 P.2d 212 (1965); Ries v. McComb, 25 Ariz.App. 554, 545 P.2d 65 (1976). The appellant therefore requested the sanction specified in Rule 26(e)(1), Arizona Rules of Civil Procedure, 16 A.R.S.: “A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify and the substance of his testimony and (C) the identity of any other person expected to be called as a witness at trial. If a party fails to supplement his responses with respect to any question directly addressed to (B) or (C) prior to 30 days before the date of trial, unless the parties otherwise agree, any witness not so identified shall not be permitted to testify except for good cause shown.” (emphasis added) The trial court precluded testimony of two of the three witnesses. As to the third witness, a local mechanic, the court reserved its decision until after the close of the appellant’s case. It then decided to allow the mechanic to testify because the court needed “some help on auto mechanics.” A review of the nearly 400 pages of reported testimony leads to the conclusion that the court did not err in allowing the testimony of the mechanic. During the appellant’s case, there had been testimony from two persons claiming expertise in auto mechanics, Ray Preston and Joseph Stack. Their testimony was contradictory in some respects, and neither witness offered real “nuts and bolts” testimony about the internal workings of the engine or the materials used in its manufacture, even though these subjects were of obvious concern to the court hearing this difficult case. Stack never gave a direct opinion as to the cause of the overheating. Preston gave his opinion, set forth above, but also admitted that, despite periodic training at a General Motors facility in Phoenix, he possessed no certification as a mechanic and had never repaired a car himself. We are therefore unable to find fault with the trial court’s assessment that it needed “some help on auto mechanics.” The court obviously felt that testimony of the appellee’s witness was necessary to a fair determination of the facts. The trial court’s finding of good •cause under the facts of this case was not an abuse of discretion. Furthermore, we find no prejudice to the appellant from the court’s effort to learn the truth. Before allowing the mechanic to testify, the court offered the appellant’s counsel a continuance for purposes of a deposition or interview of the mechanic, and the offer was declined. Appellant’s counsel did interview: the witness during a lunch recess, and was able to conduct an incisive cross-examination. We note also that the two days of testimony were five days apart, so that even without benefit of a trial continuance the appellant could have interviewed the mechanic, but for some reason chose not to do so. Finally, we believe it is significant that the disputed witness appeared as an expert on the very subject of the appellant’s business, automobiles, making the appellant perhaps the least likely of all conceivable parties to be surprised by his testimony or to be unable to rebut it. We turn now to the statute involved in this ease and to the appellant’s complaints concerning findings necessary under that statute. A.R.S. § 44-2371 provides: “A. The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it: 1. On the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; and 2. Without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances. B. Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it. C. A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.” The statute is identical to § 2-608 of the Uniform Commercial Code. First, the appellant contends that the evidence failed to establish a non-conformity, i.e., a defect in the automobile as it was delivered to Palomares. The appellant argues that the only cause of the engine’s overheating was the loss of coolant and Palomares’ driving the car after the accident. We find, however, that the evidence on the question was in conflict and was sufficient to support findings that the car was defective before the accident and that the engine’s overheating was caused by that defect. Although much testimony was elicited at trial in an effort to identify the specific cause of the overheating, it was not necessary for the appellee to prove, or the court to find, the specific mechanical defect of the automobile. That the engine had been severely damaged from overheating was indisputable evidence that something was very wrong with the car, and the question for the court was whether that “something” was a defect that existed before the accident or was a result of the accident. If the court believed the appellee’s evidence that damage from the accident did not cause the overheating, it could deduce that the defect existed before the accident. That conclusion is buttressed by evidence that excessive oil consumption would be a symptom of such a defect, even if oil consumption was not itself the cause of the damage, and by Palomares’ testimony that the vehicle’s performance problems after repair of the accident damage were identical to those displayed before the accident. Since the court’s finding of a non-conformity is not clearly erroneous, it will not be disturbed on appeal. The appellant also attacks the court’s finding, embodied in its judgment, that a two-month delay in repairing the automobile was per se unreasonable. This finding was not essential to the judgment. The appellant’s argument assumes that Palomares accepted the Chevette with knowledge of the defect “on the reasonable assumption that its non-conformity would be cured” so that the court was required to find that the defect had not “seasonably” been cured, under A.R.S. § 44-2371(A)(l). The evidence, however, showed that Palomares’ acceptance was “[wjithout discovery of such non-conformity” and reasonably induced by the “seller’s assurances” that excessive oil consumption did not indicate a defect. Where the buyer’s acceptance is as described in A.R.S. § 44-2371(A)(2), he may revoke the acceptance without waiting for a cure, seasonable or otherwise, by the seller. Werner v. Montana, 117 N.H. 721, 378 A.2d 1130 (1977); See also McCormick v. Ornstein, 119 Ariz. 352, 580 P.2d 1206 (App. 1978). This right is not waived if the buyer, having no obligation to do so, nevertheless allows the seller to attempt to correct the defect. Chaplin v. Bessire & Co., 361 S.W.2d 293 (Ky.1962). Since the finding of unreasonable delay in effecting a cure is not essential to the judgment, error in that finding will not result in reversal. Regardless of whether Palomares was obligated to allow repair under A.R.S. § 44-2371, however, the appellant argues that he had such an obligation under a provision of the lease agreement making repair of the vehicle his “exclusive remedy.” The appellant points to the following provision: “Maintenance and Repairs: Lessee shall pay for all maintenance and repairs to keep the vehicle in good working order and condition and will maintain the vehicle as required to keep the manufacturer’s warranty in force. The vehicle will be returned at the end of the lease period in good condition, reasonable wear and tear excepted.” We see nothing in this provision making repair an “exclusive remedy” or indicating a waiver of rights under A.R.S. § 44-2371. Continuing in the same vein of argument, however, the appellant contends that the finding that the delay in cure was per se unreasonable also meant that Palomares had not exercised his option to revoke acceptance in a reasonable amount of time, as required by A.R.S. § 44-2371(B). Simply stated, the appellant is arguing that a time lapse that is unreasonable for one purpose is unreasonable for all purposes. This logic would reduce much of the statute to a nullity, and would preclude a buyer who accepted with knowledge of a defect, and who was therefore obligated to allow an effort to cure (§ 2371(A)(1)), from ever being able to revoke acceptance. See Comment 4, Uniform Commercial Code (U.L.A.) § 2-608. The appellant further contends that Palomares was precluded from revoking his acceptance because the automobile had been damaged in an accident before he returned it for repair of its persistent performance problems. This argument is based upon that portion of A.R.S. § 44-2371(B) which requires the buyer to revoke “before any substantial change in the condition of the goods which is not caused by their own defects.” This provision is intended to seek “substantial justice in regard to the condition of the goods restored to the seller” by precluding revocation “if the goods have materially deteriorated except by reason of their own defects.” Comment 6, Uniform Commercial Code (U.L.A.) § 2-608. The condition set forth is satisfied if the buyer is able to return the goods in substantially the same condition as they were received. Hydrick v. Mehlman’s Inc., 253 S.C. 652, 172 S.E.2d 824 (1970). In this case, even though the car had been damaged in an accident, there was testimony that every dent, scratch, and wrinkle had been fully repaired and every damaged part replaced before the car was returned to Preston Motors, and that Preston (whose used car department was the purchaser at the auction) had later sold the car for an amount almost equal to that which it had originally paid to purchase the car from General Motors. We cannot say, therefore, that the court committed clear error in finding that the car was returned in substantially the same condition as it was received, except for deterioration caused by its own defects. The appellant also contends that the evidence established a waiver of Palomares’ right to revoke acceptance. This argument is based upon the evidence that Palomares retained the vehicle after learning that it was using oil. The appellant again assumes that the oil consumption was the defect rather than a symptom of the defect (as the evidence suggests) and ignores the important fact that Palomares’ retention of the car was caused by the seller’s assurances that there was no defect. The waiver argument is without merit. Finally, the appellant contends that the trial court erred in making a finding, embodied in its judgment, that Preston Motors undertook to repair the car under the factory warranty, rather than under a “policy adjustment.” That finding, whether correct or erroneous, is not essential to the judgment and will not form a basis for reversal. Affirmed. HOWARD, C. J„ and HATHAWAY, JJ., concur. . The dealership’s service manager, Ray Preston, testified that the car was spewing water and steam when it arrived, but we must assume that this testimony was disbelieved by the court. . The court also found for Preston Motors on a counterclaim filed by the defendants, who have dismissed their appeal from that portion of the judgment.

OPINION EUBANK, Judge. This special action challenges two orders of the trial court both denying petitioners’ motion to dismiss respondents’ complaint for lack of jurisdiction. Following our hearing on August 4, 1982, we entered an order accepting special action jurisdiction of the case, pursuant to Rule 7, Rules of Procedure for Special Actions, 17A A.R.S.; we ordered the Honorable B. Michael Dann, respondent judge, to dismiss the administrative appeal in Maricopa County Superior Court No. C-458020; we ordered the record to be sent to this court; and we stated that our written decision would follow. This, then, is our written decision setting forth our reasons for granting the petitioners special action relief. The facts are not in dispute. Respondent, Roger Dotson, is a law enforcement officer with the Arizona Department of Public Safety. On December 24, 1981, he received notice from the Director that he was suspended from duty without pay for two working days. Respondent appealed his suspension to the Law Enforcement Merit System Council (Council), pursuant to A.R.S. § 28-235(C)(4). The Council set the appeal for hearing and following the hearing, on February 11, 1982, it entered its order affirming the suspension. A copy of this order was received by the respondent officer on March 3, 1982. Without first filing a motion for a rehearing, as provided for by Rule R-13-5-10(V), Arizona Administrative Rules and Regulations, infra, respondent directly appealed to the Maricopa County Superior Court for judicial review, pursuant to A.R.S. § 28-236. Petitioners moved to dismiss the appeal for lack of jurisdiction, but the motion was denied by the trial court. The main issue before us is whether respondent officer was required to file a timely motion for rehearing with the Council as a condition precedent to his seeking judicial review in the superior court. As indicated by our order taking jurisdiction, we hold that respondent was required to file a timely motion for rehearing in order to obtain judicial review of the administrative decision under A.R.S. § 12-901 et seq. A.R.S. § 12-901 et seq. provides for the judicial review of administrative decisions. A.R.S. § 12-902(B) limits such review as follows: B. Unless review is sought of an administrative decision within the time and in the manner provided in this article, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such decision. If under the terms of the law governing procedure before an agency an administrative decision has become final because of failure to file any document in the nature of an objection, protest, petition for hearing or application for administrative review within the time allowed by the law, the decision shall not be subject to judicial review under the provisions of this article except for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter. (Emphasis added). The merit system council, pursuant to the authority contained in A.R.S. § 28-235 (see Arizona Department of Public Safety v. Dowd, 117 Ariz. 423, 428-29, 573 P.2d 497, 5051-03 (App.1977)), adopted Rule R-13-5-10(V) which reads: V. Rehearings Or Review of Decision: 1. Except as provided in Rule R13-5-10.X., any party in a contested case before the Merit System Council who is aggrieved by a decision rendered in such case may file with the Council, not later than ten (10) days after service of the decision, a written motion for rehearing or review of the decision specifying the particular grounds therefor. 2. Not later than ten (10) days after a decision is rendered, the Council may on its own initiative order a rehearing or review of its decision for any reason for which it might have granted a rehearing on motion of a party. In such case the Council shall give the parties or their counsel notice and an opportunity to be heard on the matter. 3. A motion for rehearing under this Rule may be amended at any time before it is ruled upon by the Council. A response may be filed within ten (10) days after service of such motion or amended motion by any other party. The Council may require the filing of written briefs upon the issues raised in the motion and may provide for oral argument. 4. The Council may affirm or modify the decision or grant a rehearing to all or any of the parties and on all or part of the issues for any of the reasons set forth in Rule 13-5-10.W. An order granting a rehearing shall specify with particularity the ground or grounds on which the rehearing is granted, and the rehearing shall cover only those matters so specified. (Footnotes added). Respondent officer did not comply with Rule R-13-5-10(V) and file for a rehearing with the Council; consequently, further review of Council’s decision is barred by A.R.S. § 12-902(B), supra. Therefore, the trial court lacked jurisdiction to review the administrative decision suspending the respondent officer and the court erred when it refused to grant either of petitioners’ motions to dismiss. The facts sub judice are similar to those considered by Division 2 of our court in Herzberg v. David, 21 Ariz.App. 418, 555 P.2d 677 (1976). There the court said: When A.R.S. Secs. 12-901(2) and 12-902(B) are read together, the legislative intent is clear. If a rehearing procedure is provided, either by statute or rule, a party aggrieved by an administrative decision must avail himself of such administrative review remedy as a condition precedent to judicial review. See Roer v. Superior Court, 4 Ariz.App. 46, 417 P.2d 559 (1966). Rule R4-28-19(N) provides for rehearing of a decision of the Real Estate Commission. The purpose of such rehearing provision is to afford the Commission the first opportunity to correct its own mistakes, thereby eliminating or minimizing subsequent appeals and relitigation. See Brooks v. Industrial Commission, 24 Ariz.App. 395, 539 P.2d 199 (1975); 73 C.J.S. Public Administrative Bodies and Procedure § 156a (1951). Appellant did not avail himself of the right to administrative review and thereby the order revoking his license became final. Since he failed to make an “application for administrative review” which a Rule R4-28-19(N) rehearing is, judicial review1 was foreclosed. A.R.S. Sec. 12-902. (Footnote omitted). Id. at 419, 555 P.2d at 678-79. We agree. Here, respondent officer failed to timely file a motion for rehearing with the Council; consequently, the decision affirming the suspension became final thereby precluding further review. Respondents admit that the Merit System Council’s rules permit rehearing but argue that filing for rehearing is “optional” in that neither § 12-902(B) nor Rule R-13-5-10(V) required the filing of a motion for rehearing before seeking judicial review. They rely primarily upon Foremost Life Insurance Co. v. Trimble, 119 Ariz. 222, 580 P.2d 360 (1978). However, Foremost involved interpretation of a special statute which authorized judicial review separate and apart from A.R.S. § 12-901 et seq. That statute specifically permitted the ag grieved party to either immediately seek judicial review after the agency’s decision or to file a motion for rehearing and then seek judicial review. Such is not the case here. Our facts are like those in Herzberg. See Vol. 3, Arizona Appellate Handbook, §§ 32.3.4.1 and 32.3.6 (1980). Further, although Rule R-13-5-10(V) uses the verb “may”, it appears to be the intent of the Council that an aggrieved party can file for rehearing if he desires further review. We read the rule as “optional” only in the sense that a party may decide not to attempt further review. If the party desires further review then he must file a motion for rehearing. Respondents strongly urge that we should not grant petitioners special action relief because of laches. We disagree. By the failure of Dotson to file a timely motion for rehearing, the Council’s decision became final. Thus, no jurisdiction remained for further administrative review in the superior court. The jurisdiction of a court to hear a matter before it is an appropriate issue for special action relief. Rule 3, Rules of Procedure for Special Actions, 17A A.R.S. Further, Judge Dann denied the motion for reconsideration on June 28, 1982, and the special action was filed within the normal appeal time on July 23, 1982. Absent certain circumstances, this is timely. Further, the question of a courts jurisdiction to decide a matter can be raised at any time. Finally, neither laches nor estoppel can be asserted to gain or defeat rights against the state. Maricopa County v. Cities and Towns of Avondale, 12 Ariz.App. 109, 113, 467 P.2d 949, 953 (1970). The only exception, which is not applicable here, is discussed in Freightways, Inc. v. Arizona Corporation Commission, 129 Ariz. 245, 630 P.2d 541 (1981). Our order of August 4, 1982, requiring respondent judge to dismiss the administrative appeal in Maricopa County Superior Court No. C-458020 is ratified. The trial court orders denying petitioners’ motions to dismiss are reversed, and, if the trial court has not already complied with our August 4th order, then the administrative appeal is dismissed for lack of subject matter jurisdiction. HAIRE, P.J., Department D, and COR-CORAN, J., concur. . The council shall: * * * * * * 4. Pursuant to recognized merit principles, hear and review appeals from any order of the director of the department of public safety and the director of the Arizona criminal intelligence system agency in connection with the suspension, demotion or dismissal of a classified employee. The council’s determination is final, except upon appeal as provided in § 28-236. . A classified employee who is suspended, demoted or dismissed pursuant to this article after a fair hearing and review before the merit system council and conformation of the suspension, demotion or dismissal by the agency head may appeal the determination of the council pursuant to title 12, chapter 7, article 6. If the determination of the council is overruled by the court, the employee shall be reinstated in his position and shall receive full compensation for any salary withheld pending determination by the council and court. . X. Decisions Not Subject To Rehearing Or Review: If in a particular decision the Council makes specific findings that the immediate effectiveness of such decision is necessary for the immediate preservation of the public peace, health and safety and that a rehearing or review of the decision is impracticable, unnecessary or contrary to the public interest, the decision may be issued as a final decision without an opportunity for a rehearing or review. If a decision is issued as a final decision without an opportunity for rehearing, any application for judicial review of the decision shall be made within the time limits permitted for applications for judicial review of the Council’s final decisions. . W. Basis For Rehearing Or Review: A rehearing or review of the decision may be granted for any of the following causes materially affecting the moving party’s rights: 1. Irregularity in the administrative proceedings of the Council or its hearing officer or the prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair hearing; 2. Misconduct of the Council or its hearing officer or the prevailing party; 3. Accident or surprise which could not have been prevented by ordinary prudence; 4. Newly discovered material evidence which could not with reasonable diligence have been discovered and produced at the original hearing; 5. Excessive or insufficient penalties; 6. Error in the admission or rejection of evidence or other errors of law occurring at the administrative hearing; 7. That the decision is not justified by the evidence or is contrary to law. . A motion to dismiss based upon lack of jurisdiction was filed in the superior court but Judge Dann denied the motion by order dated May 28, 1982, stayed the complaint for 90 days and permitted respondent Dotson to file a rehearing before the Council. Petitioner filed a motion for reconsideration with Judge Dann on June 10, 1982, and it was denied on June 28, 1982. On the same day that the motion for reconsideration was filed, respondent Dotson filed his motion for rehearing before the Council. Rehearing was denied after oral argument on July 14, 1982. On July 23, 1982, this special action was filed arguing that Judge Dann exceeded his jurisdiction in issuing his orders of May 28, 1982, and June 28, 1982.

HOLOHAN, Chief Justice. This case involves the scope of review in an appeal de novo from a decision of the state land commission to the superior court. We assumed jurisdiction pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure, 17A A.R.S. This action arose out of a dispute between the Arizona State Land Department (hereinafter, the State) and a lessee of state lands. During 1969, Appellee G. P. Berry (hereinafter, Berry) obtained a commercial lease on the parcel in question and subsequently received periodic lease renewals. In May, 1975, the month before the lease was due to expire, Berry applied for another two-year renewal. His application was returned to him as incomplete. In February, 1977, after Berry had been without a lease for about 20 months, he resubmitted his application for renewal. The following month the State instituted administrative proceedings to terminate Berry’s tenancy. The State alleged that Berry had failed to use the land for the purpose stated in the lease, the housing and breeding of horses, and instead had permitted a tiger trainer to live there and work his Bengal tigers. In May, 1977, following a hearing the state land commissioner issued an order cancelling Berry’s tenancy and ordering him to pay back rent for the period during which he possessed the land as a holdover tenant. Berry appealed to the superior court pursuant to the version of A.R.S. § 37-134 then in effect. Only the issue of the commissioner’s jurisdiction to order payment of holdover rents was litigated on appeal. The superior court ruled that the commissioner “is without authority to issue an order that a person who once held a lease on state land pay monies to the state as and for rent ... after expiration of the lease term.” Accordingly, the commissioner’s order to pay holdover rent was reversed. The State requested that the court award its attorneys’ fees pursuant to A.R.S. § 12-341.01, which request was denied. The State brought this appeal for determination of the following questions: 1. Assuming the state land commissioner did not have authority to order payment of holdover rent, did the superior court err when it refused to consider the merits of the issue of holdover rent? 2. Was the State entitled to attorneys’ fees pursuant to A.R.S. § 12-341.01 for the de novo proceedings in superior court? The State maintains that the superior court improperly characterized the land commissioner’s powers and incorrectly restricted the court’s jurisdiction to that characterization. The appellate jurisdiction of the superior court is not as broad as its original jurisdiction. The superior court, in an appeal de novo, has only that subject matter jurisdiction which could be asserted in the administrative hearing from which the appeal was taken. Madsen v. Fendler, 128 Ariz. 462, 626 P.2d 1094 (1981). Trial de novo means a new trial, or literally a second time, in the same manner, and with the same effect. State v. Jones, 94 Ariz. 334, 385 P.2d 213 (1963). A trial de novo is conducted as though it were one of original jurisdiction in the superior court in the sense that evidence can be received anew, but appellate jurisdiction is not thereby enlarged. Rojas v. Kimble, 89 Ariz. 276, 361 P.2d 403 (1961). If the administrative agency has no jurisdiction to consider a question, the appellate court has none, even if the question would have come within the court’s original jurisdiction. The State concedes that the commissioner lacks authority to issue a money judgment requiring a former lessee to pay holdover rent. However, the State argues that the commissioner does have authority to determine that a person in possession of state lands is a holdover tenant and to determine the amount of “rent” that person owes. This authority, the State contends, is derived from the Enabling Act, the Arizona Constitution and the state land statutes, in particular A.R.S. §§ 37-102 and 37-132. The Arizona-New Mexico Enabling Act of June 20, 1910, 36 Stat. 557, granted over ten million acres of land to Arizona in trust for the use and benefit of designated public activities within the state. Article 10 of the Arizona Constitution accepts the grant and repeats, practically verbatim, the provisions of the Act governing management of the trust land. Pursuant to these provisions the State, with the state land commissioner as trustee, is strictly obligated to manage the trust lands for the benefit of the trust and trust beneficiaries. Lassen v. Arizona, 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967). The administration, charge, and control of state land is vested in the state land department. A.R.S. § 37-102. These powers and duties are to be exercised and performed by the commissioner. A.R.S. § 37-132(A)(1). The commissioner is expressly empowered to lease state trust land for commercial purposes. A.R.S. § 37-132(A)(7). “Except as otherwise provided,” the commissioner is also authorized to “determine all disputes, grievances or other questions pertaining to the administration of state lands.” A.R.S. § 37-132(A)(8). The State argues that these statutes together with the constitution and Enabling Act make it reasonable to construe the commissioner’s power to settle disputes as permitting him to determine that a former lessee who continues to use the land must pay for that use. We agree that the statutory authority permits the commissioner to seek payment for use of state lands. However we cannot agree that the statutes authorize the commissioner to make a binding determination of the amount owing. The statutory scheme sets forth the means the commissioner is authorized to pursue in order to protect trust lands from non-lease uses. A.R.S. § 37-294(B) provides in pertinent part: The state land department shall examine into the rights of all persons in possession of state lands .... If it is determined that any person is unlawfully in possession of such lands, ... the department shall bring an action to recover possession of the lands and improvements, or otherwise establish the rights of the state. Another statute makes it a misdemeanor to unlawfully occupy state land. A.R.S. § 37-501(3). Further, a person who unlawfully occupies state land may be liable for damages in a civil action brought by the state land department pursuant to A.R.S. § 37-502. We believe these statutes were intended to cover situations like the one that is the basis of this action. By the express terms of A.R.S. § 37-132(A)(8), the commissioner has not been granted authority to settle disputes where specific means to determine such disputes is “otherwise provided.” We hold that the statutory remedies created by the legislature are commensurate with the mandates of the Enabling Act and Arizona Constitution in providing adequate protection for the trust and trust beneficiaries. The commissioner has no authority to determine holdover rent issues by himself but must pursue the statutory remedy and bring suit to recover any damages arising out of the unlawful possession of state lands. The superior court properly refused to consider the merits of the issue of holdover rent as it was not within the court’s appellate jurisdiction to determine that issue. The State next asserts that it was entitled to recover attorneys’ fees pursuant to A.R.S. § 12-341.01 for the appeal in superi- or court. The court refused to award attorneys’ fees on four separate grounds, stating that each ground independently supported the conclusion that attorneys’ fees should not be awarded, either pursuant to A.R.S. § 12-341.01 or otherwise. We need not reach the arguments presented by the parties on the question of whether the State, when represented by the Attorney General, is entitled to attorneys’ fees. We find the following conclusion of law by the superior court to be dispositive of this issue: “Were such an award authorized by law, the Court would exercise its discretion, under the circumstances present here, to deny such award. The Court determines that such an award is not mandatory under the circumstances, in that issues ultimately abandoned on appeal by plaintiff were not raised in bad faith, nor were they patently groundless);.]” The matter of allowing attorneys’ fees under A.R.S. § 12-341.01(A) is discretionary with the trial court. Autenreith v. Norville, 127 Ariz. 442, 622 P.2d 1 (1980). The award of attorneys’ fees under A.R.S. § 12-341.01(C) requires a finding that the claim or defense constituted harassment, was groundless and not made in good faith. The trial court exercised its discretion and denied attorneys’ fees under subsection A of the statute, and, having found that the appellee was not acting in bad faith, the trial court also denied attorneys’ fees under subsection C. We find no error in these rulings of the trial court. The judgment of the trial court is affirmed. CAMERON and FELDMAN, JJ., concur.

FELDMAN, Justice. This is an appeal from a judgment rendered on cross motions for summary judgment in a declaratory judgment action between two insurance carriers, both of whom claim to be excess insurers against the loss arising out of a vehicular accident. The court below ruled that both the insurers were “primarily liable” for any damages. Both insurers appealed, each claiming to be excess and urging that the other is primary. We have jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S. and Art. 6, § 5, Arizona Constitution. The dispute between these insurers is but one more battle in a war commenced long ago between the insurers that write coverage for interstate truck lines and those that cover “independent” truckers who lease their rigs to the interstate lines. Over-simplified for purposes of clarity, the basic issue presented is whether primary coverage for an interstate trucking rig, driven on a trip lease, is provided by the insurer for the owner-lessor or that of the certificated lessee. FACTS The facts underlying this arcane question are as follows. On March 13, 1977, Jerry Works, an employee of Harold Powell, dba Powell Trucking, was operating tractor-trailer equipment owned by Powell. Works was involved in an accident which took place in Arizona and in which one Jack Ripley was seriously injured. Ripley filed a tort action against Works and Powell. Illinois-California Express, Inc. (ICX) is an interstate carrier licensed by the Interstate Commerce Commission (ICC). At the time of the accident, the Powell truck was operating under ICX placards because Powell had entered into a “trip lease” with ICX. The lease provided that Powell would provide the tractor, trailer and driver, and would haul a load arranged by ICX for one of ICX’s customers over routes authorized by the ICC for travel by ICX. According to the lease, Powell was to receive 80% of the revenue from the transport of the load and ICX was to receive 20%. Ripley did not join ICX as a defendant in the tort action. The reason for this is unexplained. Powell’s rig was insured for motor vehicle liability under a policy issued by Carolina Casualty Insurance Company (Carolina), while ICX, the lessee, was insured under a policy issued by Transport Indemnity Company (Transport). The use of leased equipment by licensed interstate motor carriers is a common practice and is recognized by the Interstate Commerce Act. The act provides that the ICC may prescribe regulations respecting such use and that such regulations may be those which are “reasonably necessary in order to insure that while motor vehicles are being ... used [under lease] the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof ... as if they were the owners of such vehicles .... ” 49 U.S.C. § 304(e) (emphasis added). The lease between ICX and Powell was subject to regulations which had been made by the ICC to cover such trip leases. The regulations mandate that such trip leases “provide for the exclusive possession, control and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessees 49 C.F.R. § 1057.4 (emphasis added.) The statutory enactment and regulations promulgated thereunder were intended to correct abuses historically incident to the use of leased equipment by licensed motor carriers. The law was designed to prevent the operation of unregulated, uninsured or underinsured vehicles on interstate trips by imposing responsibility for operation of trip-leased vehicles on the lessee holding the ICC certificate of convenience and necessity for the route to be traveled. American Trucking Association v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953); Cox v. Bond Transportation, Inc., 53 N.J. 186, 249 A.2d 579 (1969). In addition, Congress intended to put the use and operation of leased equipment on a parity with the use of equipment owned by the authorized carrier and operated by its own employees, in effect making the driver of the leased unit a statutory employee of the lessee. See Brannaker v. Transamerican Freight Lines, Inc., 428 S.W.2d 524 (Mo.1968); Cox v. Bond Transportation, Inc., supra; Mellon National Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473, 477 (3d Cir. 1961), holding that federal law creates an irrebutable presumption that the lessor’s driver is the employee of the lessee whose placards identify the vehicle. Pursuant to the requirements of the ICC regulations, the lease between ICX and Powell contained clauses by which the lessee, ICX, assumed full responsibility with respect to the Powell equipment and by which Powell surrendered “full control, possession and management of said equipment” to ICX. Further in accordance with ICC regulations, the insurance policy issued by Transport to ICX contained the following endorsement, known as the “ICC endorsement”: In consideration of the premiums stated in the policy to which this endorsement is attached, [Transport] hereby agrees to pay ..., any final judgment recovered against the insured for bodily injury ... resulting from negligence in the operation, maintenance or use of motor vehicles under certificate of public convenience and necessity or permit issued to [ICX] by the Interstate Commerce Commission .... ... It is further understood and agreed that no condition, provisions, stipulation or limitation contained in the policy ... shall relieve the company from liability hereunder .... (Emphasis supplied.) The Transport policy also contained an “Other Insurance” clause which provided that the insurance extended by Transport under the policy should be excess over any other valid and collectible insurance covering any particular accident. The policy which Carolina issued to Powell contained a similar other insurance clause. However, because Powell was not certificated by the ICC, the Carolina policy did not have an ICC endorsement. The Carolina policy did include a so-called “Truckmen’s Endorsement” which provided: The insurance [provided by this policy] does not cover ... any person or organization ... engaged in the business of transporting property ... for others ... if the bodily injury or property damage occurs while such [truck] is not being used exclusively in the business of [Powell] and over a route [Powell] is authorized to serve by federal or public authority The Truckmen’s Endorsement in the Carolina policy also contained a specific excess clause applicable to the accident which gave rise to this case and which provided as follows: With respect to (1) any [truck] of the commercial type while leased or loaned to any person or organization . . . engaged in the business of transporting property by [truck] for others ... [this] insurance ... shall be excess over any other valid and collectible insurance, whether primary, excess or contingent, available to the insured. Otherwise, the insurance under this endorsement is primary insurance. (Emphasis in original omitted.) Unable to reach an agreement as to payment of the loss, Transport and ICX filed this declaratory judgment action to determine the respective duties and liabilities between the two insurers. In a motion for summary judgment, Transport asserted that if its policy covered the loss at all, it should be excess to the policy issued by Carolina, and on a cross-motion for summary judgment Carolina argued that Transport’s policy was primary and that its policy was excess. By judgment entered on October 25, 1979, the court below ruled that both Transport and Carolina were “primarily liable for any judgment” and “are equally and jointly responsible ... to the extent of the respective limits, dollar for dollar.” Carolina filed this appeal from that judgment and Transport took a cross-appeal. PERSONS INSURED The Carolina policy contains a so-called omnibus clause. This clause is required in a policy issued to the owner of a vehicle and expressly extends coverage not only to the owner, who is the named insured (Powell), but also to those driving the vehicle with permission of the named insured. The Carolina policy also covers those “legally responsible” for the use of the vehicle at the time of the accident. Since Powell’s employee, Works, was driving the vehicle with Powell’s permission at the time of the accident, he would be an insured under the omnibus clause of the Carolina policy. So, also, would ICX, because as lessee federal law made it “legally responsible” for the use of the vehicle. On the other hand, Transport’s policy provides nonownership coverage and thus need not contain omnibus coverage. Transport’s policy expressly limits the persons insured to the named insured, ICX, and its officers and directors. However, under federal law, ICX, a lessee of the equipment, is treated “as if [it] were the owner of the vehicle.” 49 U.S.C. § 304(e). Although the federal statutes do not expressly require the licensed motor carrier’s policy to cover any person other than the licensed carrier itself, they do require that a policy such as Transport’s be certified as proof of the lessee’s financial responsibility for its obligation as if it “were the owner.” 49 U.S.C. § 315. Presumably for this reason, Transport and ICX concede that if Transport covers the occurrence at all, Works and Powell are also insureds under its policy. Thus, we conclude that both ICX, which was not sued, and Works and Powell, who were made defendants in the tort action, are covered under both policies. GENERAL COVERAGE PROBLEMS Transport first claims that Carolina is the only insurer for this accident. The argument is based on the contention that the Transport policy provides no coverage at all because it covers Powell and Works as insureds only for an “occurrence ... arising out of the occupation of the named insured (ICX) .... ” Transport argues that the accident — which admittedly occurred while Works was driving with ICX placards on an ICX-Powell lease and while Works was en route to the destination to which ICX had directed him — did not arise out of ICX’s occupation because nothing about the ICX business itself caused the accident. Transport argues, rather, that the occurrence “arose out of” Works’ negligence, not “the occupation” of ICX. The argument is sophistic. The occurrence “arises out of” the insured’s business when there is a “causal nexus” sufficient to warrant the conclusion that the accident is “incident to or connected with” the use of the vehicle in the business of the named insured. National Farmers Union Property and Casualty Co. v. Western Casualty & Surety Co., 577 P.2d 961, 963 (Utah 1978); Vanguard Insurance Co. v. Cantrell, 18 Ariz.App. 486, 498, 503 P.2d 962, 964 (1973). The causal connection required is not proximate cause; i.e., the business of the named insured need not have caused the occurrence, it need only be related to it. Blue Bird Body Co. v. Ryder Truck Rental, 583 F.2d 717, 726 (5th Cir. 1978). Under the admitted facts here, the accident was one “arising out of” the occupation of the Transport’s named insured, ICX. We note that the Carolina Truck-men’s Endorsement provides first that there shall be no coverage at all for a person “... engaged in the business of transporting property for others” if the accident occurs while the insured vehicle is not being used over a route for which the named insured (Powell) held a certificate. However, the coverage denied by this portion of the endorsement is later granted by a subsequent paragraph of the same endorsement, which provides that where the vehicle is being used for transporting property under lease to any person “... engaged in the business of transporting property by [truck] for others ...” the insurance shall be excess over any other applicable insurance. It is impossible to reconcile these two clauses. In the face of such a contradiction, the clause which extends excess coverage “must be preferred over the clause absolutely denying it.” Transport Indemnity Co. v. Home Indemnity Co., 535 F.2d at 238. In any event, Carolina concedes liability as an excess carrier. We conclude, therefore, that both policies provide coverage for the accident. OTHER INSURANCE AND EXCESS PROVISIONS — THE EFFECT OF THE ICC ENDORSEMENT We are thus faced with two policies which covered the accident and provide indemnity for the tort liability of all prospective defendants. Both policies contain excess clauses applicable in the event there is any other valid, collectable insurance. The Carolina policy contains a specific excess provision in the Truckmen’s Endorsement, applicable where the insured vehicle is used under lease to a motor carrier. The Transport policy in this case is issued and certified pursuant to federal regulations which require the licensed common carrier to provide proof of financial responsibility by insurance or otherwise and to certify the existence of any such insurance by filing a certificate with the ICC. The certificate states that no provision of such insurance policy “shall relieve the company from liability.” Of considerable importance here, the endorsement was physically attached to the Transport policy which was issued in this case. With these factors in mind, we now address the contentions of the parties. Carolina claims it is the excess insurer and Transport the primary insurer because the Carolina policy contains a specific excess clause while the excess clause in the Transport policy is rendered unenforceable by virtue of the provisions of the Interstate Commerce Act and the regulations that were enacted thereunder. Substantial authority exists for this position. See, e.g., Argonaut Insurance Co. v. National Indemnity Co., 435 F.2d 718 (10th Cir. 1971), the leading case on Carolina’s side of the argument; Allstate Insurance Co. v. General Fire and Casualty Co., 348 F.Supp. 682 (E.D.Pa. 1972); Hagans v. Glen Falls Insurance Co., 465 F.2d 1249 (10th Cir. 1972). The rationale of this position is set forth in Argonaut, supra, as follows: The ICC endorsement, although not expressly referring to the “other insurance” provisions, says that no condition, provision, stipulation or limitation of the policy “shall relieve the company [the insurer] from liability hereunder.” If the Argonaut position is accepted, it will be relieved from any liability except for excess coverage. We believe that the effect of the endorsement was to make Argonaut the primary insurer. ... Argonaut cannot escape the plain terms of its insuring agreement in this case. The ICC endorsement imposes primary liability and eliminates any need for consideration of the effect of the identical “other insurance” clauses. 435 F.2d 720-21. Transport contends, on the other hand, that since there is enough coverage available from one source or another to satisfy the claims of the injured member of the public, it is not necessary to construe the policies under the mandate of the Interstate Commerce Act. Ample precedent supports this contention. See, e.g., Carolina Casualty Insurance Co. v. Underwriters Insurance Co., 569 F.2d 304 (5th Cir. 1978); Transport Indemnity Co. v. Rollins Leasing Corp., 14 Wash.App. 360, 541 P.2d 1226 (1975); overruled on other grounds, Mission Ins. Co. v. Allendale Mutual Ins. Co., 95 Wash.2d 464, 626 P.2d 505 (1981); Ryder Truck Lines, Inc. v. Carolina Casualty Insurance Co., Ind. 385 N.E.2d 449 (1979). Argonaut Insurance Co. v. Transport Indemnity Co., 6 Cal.3d 496, 492 P.2d 673, 99 Cal.Rptr. 617 (1972). The reasoning which forms the basis for these cases is best stated in Carolina Casualty Insurance Co. v. Underwriters Insurance Co., supra. In that case, the Fifth Circuit refused to follow the Tenth Circuit’s decision in Argonaut Insurance Co. v. National Indemnity Co., supra, stating as follows: The purpose of § 215 of the Interstate Commerce Act and regulations is to assure to members of the public and shippers that a certificated carrier has independent financial responsibility, ... to pay for losses created by its carrier operations. On the face of the endorsement this is accomplished by reading out “other insurance,” “excess,” or similar clauses insofar as the amount available to a third party victim would be reduced. But there is no need for or purpose to be served by this supposed automatic extin-guishment of the clause insofar as it affects the insured or other insurers who clamor for part or all of the coverage * * * * * * Therefore, assuming without deciding that the Underwriters policy contains an ICC endorsement, we hold that the endorsement does not make Underwriters the primary insurer as a matter of law.... Carolina cannot disavow its primary insurer status on the theory that public policy demands that this be pushed off onto Underwriters. ICC policy factors are frequently determinative where protection of a member of the public or a shipper is at stake, but those factors cannot be invoked by another insurance company which has contracted to insure a specific risk and which needs no equivalent protection. 569 F.2d at 312-13 (citations and footnotes omitted). THE BASIS OF DECISION Faced with these two conflicting but well-reasoned lines of authority, the trial court evidently adopted the view of the Fifth Circuit (see Carolina Casualty Ins. Co. v. Underwriters Insurance Co., supra) and concluded that the excess-other insurance clause in the Transport policy was not voided by federal law. Adopting this view, in a dispute where the rights of the shipper and the public are not involved, the terms of Transport's policy would be unaffected by federal law. As a result, both the Transport and Carolina excess clauses would apply and we would be faced with a loss covered by two excess carriers. Under such circumstances, the law generally holds that where both insurers attempt to limit their liability to excess coverages, “the clauses are irreconcilable, cancel each other out, and the liability is to be divided equally between them.” Carolina Casualty Insurance Co. v. Underwriters Insurance Co., 569 F.2d at 315, quoting State Farm Fire and Casualty Co. v. Holton, 131 Ga.App. 247, 205 S.E.2d 872, 874 (1974); see also Harbor Insurance Co. v. United Services Automobile Ass’n., 114 Ariz. 58, 559 P.2d 178 (App.1976). Indeed, each of the policies provides that in such situations an insurer will pay the loss on a dollar-for-dollar basis with any other applicable excess insurer whose policy contains a similar proration clause. Accordingly, the court below ruled that both Transport and Carolina were “primarily liable” and were “equally and jointly responsible” to pay any judgment “to the extent of the respective limits, dollar-for-dollar.” Although this legal conclusion may be in accord with what appears to be the trend of the majority of cases, our analysis leads us to the opposite result. We conclude that the Transport policy provides primary coverage for the accident, while Carolina’s is only excess. We reach this result for three reasons. 1. Analysis of the cases relied upon by Transport Some of the cases on which Transport relies and which appear to support the result below — that both insurers are primarily liable — are inapposite. For instance, in Truck Insurance Exchange v. Transport Indemnity Co., 180 Mont. 419, 591 P.2d 188 (1979), the Montana Supreme Court held that both the lessors’ and lessees’ insurers were primary. Unlike Carolina’s policy here, however, the lessor’s policy in the Montana case contained language to the effect that it was “primary” coverage, id. at 422, 591 P.2d at 190, and that liability “shall not be reduced by the existence of ... other insurance.” Id. at 431, 591 P.2d at 195. Based on these provisions, the Montana court found that the lessors’ insurer had agreed to provide primary coverage and ruled that “both insurers have obligated themselves to provide primary coverage ... [which should be] prorated between them .... ” Id. Thus the court also held that the Transport policy provided primary coverage. In Carolina Casualty v. Insurance Company of North America, 595 F.2d 128 (3d Cir. 1979), the Third Circuit held that “nothing in the federal motor carrier requirements, ... or the imputed ICC endorsement .. . [to the lessee’s policy] would alter any party’s rights or duties of contribution.” Id. at 143. However, since the jury in the underlying tort action had found the driver not negligent and the lessee and lessor each jointly liable for their independent tortious acts, the issue before the court was whether the lessee’s insurer covered the lessor for its independent liability. The court held that neither the federal statute, the ICC regulations, nor the ICC endorsement precluded the lessee and its insurer from pursuing the right of contribution between joint tort-feasors nor absolved Carolina from covering its insured, the lessor, for state-imposed liability for the contribution due from an independently negligent joint tortfeasor. Id. at 144. So far as the record in this case discloses, however, there is no evidence that Powell, the lessor, was independently negligent. Again, in one of the leading state court cases, Transport Indemnity Co. v. Rollins Leasing Corp., 14 Wash.App. 360, 541 P.2d 1226 (1975), the Washington Court of Appeals held that Transport and the lessor’s insurer, INA, were both excess carriers and prorated the loss between them. However, in reaching that result, the Washington court noted that the lessor had agreed to provide the lessee with liability insurance for the trip lease and that the INA policy covering the lessor and describing the leased vehicle was “expressly ‘made a part’ of the rental agreement.” Id. at 362, 541 P.2d at 1228. In essence, therefore, the court refused to accept INA’s argument that the ICC endorsement made Transport the primary insurer irrespective of any contrary agreement between INA and its insured, the lessor. Id. at 364-65, 541 P.2d 1226. In the case before us, however, Carolina has not agreed to provide primary coverage; its Truckmen’s Endorsement explicitly limits Carolina to excess coverage. In a previous battle between these same insurers, the court held that the Carolina policy covering the lessor was primary and Transport’s policy covering the lessee was excess. Carolina Casualty Insurance Co. v. Transport Indemnity Co., 488 F.2d 790 (10th Cir. 1973). The court noted, however, that there were ICC endorsements to each policy and predicated its decision on an attempt to avoid circuity of action on the subrogation claims which Transport might assert. Such claims are not possible here, since it is conceded that each policy covers all of the possible defendants in the tort action and it is the rule that an insurer cannot subrogate against its own insured to assert the claim of its named insured. See Carolina Casualty Insurance Co. v. Underwriters Insurance Co., 569 F.2d 304 (5th Cir. 1978). 2. The language of the policies Nevertheless, a number of the cases support Transport’s argument that neither federal law nor the ICC endorsement void the excess-other insurance clause of the Transport policy. The rationale of this view is that the effect of federal law is limited to disputes between the lessee and shippers or injured members of the public, so that the insurers are free between themselves to contract for allocation of the risk and “are left with their contracts, as they themselves have made them.” Rollins, 14 Wash.App. at 366, 541 P.2d at 1230. Under this view, the determination of primary and excess coverage is to be based entirely on the terms and provisions of the policies themselves. Even if we were to accept this view of the law, we would still disagree with Transport’s ultimate conclusion that it is an excess insurer for the accident in question. Adopting, arguendo, the proposition that the status of the insurers is to be determined by the provisions of the policies, we must still acknowledge that at the most the Carolina policy extends only excess coverage for any accident which occurs while the described vehicle is leased to a common carrier. This is the very reason, in fact, for the insertion of the “Truckmen’s Endorsement.” Transport Indemnity Co. v. Home Indemnity Co., 535 F.2d 232, 238 (3d Cir. 1976); Allstate Insurance Co. v. General Fire and Casualty Co., 348 F.Supp. 682, 685 (E.D.Pa.1972). On the other hand, the Transport policy contains an endorsement providing that the body of the policy (which contains the excess-other insurance clause) “is hereby amended” so that “... no condition, provision, stipulation, or limitation contained in the policy ... shall relieve [Transport] from liability hereunder or from payment of any ... final judgment .... ” If Transport’s excess clause were applied, Carolina would be liable for all or part of the loss; the excess-other insurance clause of Transport’s policy would thus have been used to “relieve [Transport] from liability hereunder or from payment of any ... final judgment” despite the fact that such a result is expressly prohibited by the endorsement physically attached to Transport’s policy. Most of the courts which have reached the conclusion that the two insurers are co-primary or co-excess have not considered this inconsistency in their logic. When the issue was considered in a case in which the lessor’s insurer was admittedly primary, the Montana court first refused to adopt the argument that federal law required a holding that Transport was the primary insurer. However, the court could not disregard the provisions of the ICC endorsement which, as here, was attached to and formed part of the Transport policy; thus, the court went on to hold as follows: [T]he I.C.C. endorsement attached to the Transport Indemnity Co. policy specifies that “no condition, provision, stipulation or limitation contained in the policy shall relieve the Company from liability hereunder.” Thus, the excess coverage clause, at least up to the limits of liability specified in the I.C.C. endorsement, is negated and ineffective to relieve Transport Indemnity Co. from primary coverage. Truck Insurance Exchange v. Transport Indemnity Co., 180 Mont. at 432, 591 P.2d at 195. We agree with this analysis. Even if we were to hold that federal law does not alone determine the rights of the insurers, we cannot read out of the Transport policy a provision which is in that policy. The fact that federal law imputes that provision when the policy is certified does not allow us to conclude that it is written in special ink which appears for cases involving the public and disappears in cases involving other insurers. Here, the clause is physically attached to the policy and must be given effect. We believe that the effect of the ICC endorsement as a part of the Transport policy has been best stated in the minority opinion of the California Supreme Court: Our inquiry must be directed to the legal effect of the required endorsement on the provisions of the original policy with which the P.U.C. has no concern. This is a problem of construction of contracts, for even though the endorsement was required by law, such instrument should be interpreted as a contract, not as a statute.... ... [T]he P.U.C. endorsement attached here specifically provides that “no condition, provision, stipulation, or limitation contained in the policy, or any other endorsement thereon ... shall relieve [Transport] from liability hereunder .... ” The “excess” clause in the standard agreement is clearly a “condition” or “provision” which might, in the absence of the endorsement, relieve Transport from liability. The above language of the endorsement is plain and forthright. It speaks in broad, unconditional and absolute terms: “no condition [or] provision ... in the policy ... shall relieve [Transport] from liability .. . . ” ... The endorsement thus has the effect of superseding and nullifying the “excess” clause which might otherwise relieve Transport from liability. By so doing, it has transformed the coverage into “primary” coverage. Transport of course was fully aware that such an endorsement was required to be affixed to any automobile policy of Willig as a condition to the issuance of a P.U.C. permit and therefor must be presumed to have assented to the sweeping effect of its language. Argonaut Insurance Co. v. Transport Indemnity Co., 6 Cal.3d at 511, 492 P.2d at 682, 99 Cal.Rptr. at 626 (Sullivan, J., dissenting). Thus, even if we adopt Transport’s argument that the rights of the insurers must be determined by the words of the policy, we hold that the words of the endorsement must be considered simply because they are part of that policy. The effect of the excess-other insurance clause in the body of the Transport policy is to relieve Transport of liability, contrary to the provisions of the ICC endorsement. The endorsement expressly amends the body of the policy so that the provisions of the endorsement govern. Based on the language of the policy, we must conclude further that the provisions of the endorsement nullify the excess-other insurance clause in the body of the policy. Therefore, simply considering the respective policy provisions, Transport provides coverage for the accident as a primary insurer, while Carolina expressly provides only excess coverage. 3. The effect of federal law If the endorsement were not present and we were compelled to decide the issue of primary coverage on our interpretation of the Interstate Commerce Act, we would reach the same result. Transport urges that the reasoning set forth by the Washington, Montana and California courts in Rollins, supra, Truck Insurance Exchange v. Transport, supra, and Argonaut (California version), supra, compels us to find that the requirements of law are to be applied only in disputes between the insurer and the injured public, and has no relevancy to a dispute between insurers seeking to apportion the loss. Again, we recognize that the cases cited above so hold and form a probable majority. Respectfully, we disagree. We believe these cases fail to give proper scope and recognition to the purposes for which the statute was enacted and the regulations promulgated. The intent of Congress was not just to provide assurance that the claims of shippers and injured members of the public would ultimately be paid. The intent was to permit the ICC to abolish and regulate a wide range of practices which had come into existence in the trucking industry “by imposing ‘responsibility-and-control’ regulations governing the regulation of non-owned vehicles.” Carolina Cas ualty Insurance Co. v. INA, 595 F.2d at 137, quoting American Trucking Association v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953). Indeed, the list of abuses, including the evasion of financial responsibility through use of trip leases, covers several pages of the reporter. See American Trucking Association, 344 U.S. at 303-11, 73 S.Ct. at 311-15. In a later case, the Supreme Court stated that “fixing financial responsibility for damage and injuries to shippers and ... the public were the significant aims and guideposts in the development of the comprehensive rules.” Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 37, 96 S.Ct. 229, 233, 46 L.Ed.2d 169 (1975). Congressional intent included “fixing” financial responsibility by adopting a rule of law making the lessee liable for any negligent act of the driver, even though he was employed by the lessor. It included adoption of requirements that the lessee give proof of financial responsibility for its liability for the acts of the driver. It included language preventing the insurer whose policy was filed as proof of financial responsibility (Transport in this case) from relieving itself of its obligation to pay damages. Transamerican Freight Lines, Inc. v. Brada Miller, supra. Thus, we disagree with the concept that all loss allocations between private parties are permissible so long as they do not directly prevent compensation to the public. In some cases private agreements respecting loss allocation do not significantly intrude in the federal regulatory scheme and are permissible. See Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., supra, upholding the validity of an indemnification agreement between the lessor and lessee. However, in all cases the federal policy must be considered paramount and affects the interpretation and construction to be given the contractual agreements. We believe here that federal policy does affect the determination of primary and excess status between carriers regardless of the presence or absence of the ICC clause physically attached to the policy. First, given the fact that the congressional act imposes direct liability on the lessee and given further that the lessee’s insurance policy is proof of the lessee’s financial responsibility for that very liability, we believe that the purposes which Congress and the ICC intended to accomplish in regulating the trip lease problem are better served if the lessee’s insurance is considered “responsible for primary coverage, both as a matter of law and of public policy.” Allstate Insurance Co. v. Federal Insurance Co., 23 Md.App. 105, 118-19, 326 A.2d 29, 37 (1974), modified, 275 Md. 460, 341 A.2d 399 (1975); Aetna Casualty and Surety Co. v. Arkin, 365 F.Supp. 813, 817 (N.D.Ill.1973); Allstate Insurance Co. v. General Fire & Casualty Co., 348 F.Supp. 682, 685 (E.D.Pa.1972). We believe that any other conclusion would detract from the policy of fixing liability and financial responsibility. The majority of the California court refused to adopt this conclusion because they feared it would result in imposing primary liability upon the lessee’s insurer “in all cases simply because the trucking industry is more highly regulated .... ” Argonaut Insurance Co. v. Transport Indemnity Co., 6 Cal.3d at 506, 492 P.2d at 678, 99 Cal.Rptr. at 622. However, we agree with the minority of the California court that this is exactly the point. “It is fully consistent with the purposes of regulating common carriers to insist that they [and their insurers that have certified the motor carrier’s financial responsibility] bear a greater financial responsibility ...” than the other parties involved. Id. at 512, 492 P.2d at 682, 99 Cal.Rptr. at 626. Second, requiring primary coverage from the lessee’s carrier has the salutary effect of establishing a uniform rule fixing primary financial responsibility for defense and payment of claims in all cases involving trip leases. We believe this result to be consonant with and required by the objectives which Congress intended to achieve by enactment of the Interstate Commerce Act. It has the further beneficial effect of aiding in the disposition of claims without delays resulting from the necessity of protracted litigation between the insurers in order to determine which of them is to provide primary coverage and which excess coverage. We believe that this, also, more closely promotes or accomplishes the objectives intended by Congress. We do not go so far as to hold that federal law imposes upon the lessee’s insurer the status of sole primary insurer. There may be other primary insurers, depending upon the terms of the lessor’s insurance contract. See Truck Insurance Exchange v. Transport Indemnity, supra. And there may be indemnification agreements between lessor, lessee and other respective insurers. See Transamerican Freight Lines, Inc. v. Brada Miller, supra. Where they exist, these rights may be enforced by action for contribution or indemnity, but such actions will not ordinarily delay disposition of the tort claim by enforcement of the primary liability which the lessee and its insurer must bear. We hold, therefore, that whether the ICC endorsement is physically attached to the policy or merely imputed by law, the lessee’s carrier provides primary coverage to the minimum limits required by law. THE EFFECT OF THE SELF-INSURANCE PROVISION This brings us to the final problem in this complex case. The Transport policy which was certified as proof of ICX’s financial responsibility is written with a retention or self-insurance provision of $50,000. This means that as between ICX and Transport the first $50,000 of each loss is to be paid by ICX. Transport argues, therefore, that even if its underlying policy is held primary the Carolina policy must be applied to cover ICX for the first $50,000 of the loss, that being the amount of ICX’s self insurance. No authority is cited for this proposition, and we have found none. We disagree with the contention. ICX is permitted to enter into agreements with its carrier for allocation between them regarding the payment of any loss. Presumably ICX bargained for this arrangement and got the reduced premium it bargained for. The clear intention of the Carolina policy is to insure only in excess of the minimum limits required by the ICC (which are $100,000). If the first part of the Truckmen’s Endorsement has any meaning, it would appear to negate any coverage by Carolina of the lessee’s retention. In Ryder Truck Lines, Inc. v. Carolina Casualty Insurance, Ind.App., 372 N.E.2d 504 (1978), rev’d on other grounds, Ind., 385 N.E.2d 449 (1979), the Indiana Court of Appeals stated: Appellants argue that as there is no “valid and collectible” insurance up to the $25,000 deductible amount, Carolina’s “excess insurance” clause comes into play. We cannot agree with this assertion. The liability of an insurer under an “excess insurance” clause arises only after the limits of the primary policy are exhausted. See generally 8 Appleman, Insurance Law & Practice § 4914. In the present case, Carolina’s excess coverage began, as the plain words of the policy provide, only if the loss was over the $100,000 limit in the Liberty Mutual policy for personal injury liability. Thus the “excess” liability contemplated focuses on the upper limits of the other insurance policy. The deductible provision does not affect this construction of Carolina’s “excess insurance” clause. This result is consistent with the intentions of the parties. Where an insured purchases a liability policy with a deductible provision, the reduction in coverage results in lower premiums. Up to the deductible amount the expectation is that he will be a “self-insurer.” At the same time the excess insurer, contemplating the possibility that other insurance exists to cover the same risk, limits its liability to amounts over and above that coverage. In such a situation the excess insurance clause should not be extended to cover an amount for which the insured, here Ryder, has bargained to become a “self-insurer.” Id. at 372 N.E.2d at 511. We hold, therefore, that the Transport policy provides primary coverage to the extent of $100,000, that the payment of the retention or deductible portion of the loss is a matter of contract between Transport and ICX, and that the Carolina policy issued to Powell does not cover ICX for that retention. We were informed at oral argument that the tort claim had been settled for an amount within the minimum ICC limits covered by the Transport policy. The record does not reveal the amount of the settlement nor by whom it was paid. Consequently, we have no way of determining who, if anyone, is entitled to reimbursement, or, if appropriate, the amount of such reimbursement. Accordingly, the judgment is reversed and the case remanded to the superior court for determination of those issues in light of the legal principles announced in this opinion. HOLOHAN, C.J., and CAMERON, J., concur. . See Carolina Casualty Insurance v. Transport Indemnity Co., 488 F.2d 790 (10th Cir. 1973). . Federal law and ICC regulations also require the licensed carrier to show proof of financial responsibility for the protection of the public by filing bonds or insurance policies covering against payment of any judgment against the carrier for bodily injury resulting from negligent operation of any motor vehicle used under the carrier’s certificate. See 49 U.S.C. § 315; 49 C.F.R. § 1043.1 (1977). . Actually, there are two Transport policies which apply to this accident. The first, with limits of $100,000, was written pursuant to the requirements of federal law. In addition to this “underlying coverage” there is an “Excess Insurance Contract” with limits of $9,900,000. For reasons which appear later in this opinion, only the “underlying policy” is relevant. To further complicate the situation, the underlying Transport policy provides for retention (i.e., self-insurance) by the insured — a form of de ductible — for the first $50,000 of any loss. The Carolina policy contains no deductible clause. The issues raised by this situation are treated later in this opinion. . Such clauses are required by most state financial responsibility laws. See A.R.S. § 28-1170 B. Powell’s truck was registered and principally garaged in Texas. The Texas financial responsibility law is Texas Rev.Civ.Stat. Ann. art. 6701h, § 1 et seq. (Vernon 1977). . See A.R.S. § 28-1170 C, which provides: “The operator’s policy ... shall insure the persons named as insured therein .... ” . Transport states on page 15 of its opening brief: “Neither Powell Trucking nor Jerry Works are named insureds under the Transport policy. In order to obtain coverage they must be a person or firm ‘to whom insurance protection has been extended under the policy.’ For bodily injury liability, the policy insures anyone incurring liability as a result of an occurrence ‘arising out of the occupation of ICX, the named insured.” The only ground asserted by Transport and ICX for complete lack of coverage is the question of whether this action arose “out of the occupation of’ ICX. . Cf. Carolina Casualty Insurance Company v. Transport Indemnity Company, 488 F.2d 790 (10th Cir. 1973). . Indeed, the Truckmen’s Endorsement has been described as a “peculiarly incomprehensible” document. Transport Indemnity Co. v. Home Indemnity Co., 535 F.2d 232, 237 (3d Cir. 1976). . No doubt the court was also mindful of the general rule embodied in Arizona statute (A.R.S. § 28-1170.01, and also for some reason set forth in haec verba in A.R.S. § 20-1123.01) that where there is both owner’s and non-owner’s coverage available, the owner’s coverage is primary. The Arizona statute went into effect in 1978, while the accident occurred in 1977. The law appears to be that Carolina’s Truck-men’s Endorsement reversed the ordinary re-suit — that the owner’s policy is primary. Cf. Transport Indemnity Company v. Home Indemnity Company, 535 F.2d 232 (3d Cir. 1976), and cases cited therein with Dairyland Mutual Insurance Company v. Andersen, 102 Ariz. 515, 433 P.2d 963 (1967). . The specific reasons for the holding were not set out in the minute entry order granting the motion for summary judgment. . The Montana court was evidently dealing with the same form of Transport policy as is before us in the case at bench. . If Carolina were a primary insurer and Transport an excess insurer, Transport would escape liability entirely, unless the loss exceeded Carolina’s limits. If both insurers were excess, the loss would be prorated and Transport would be relieved in part. . We have previously held that an excess clause has such an effect. See Rocky Mountain Fire & Casualty Co. v. Allstate Insurance Co., 107 Ariz. 227, 230, 485 P.2d 552, 555 (1971), holding that an excess clause in a “ga-rageman’s policy” had the effect of relieving the insurer from liability in derogation of the Arizona Financial Responsibility Law. . The endorsement in question was required by the California Public Utilities Commission. The California statute, regulations and endorsement are set forth in the case and are substantially identical to the federal law, regulations and endorsement.

OPINION JAMES MOELLER, Judge. This appeal is brought by respondent-appellant C. Loran Lee from a judgment and decree in dissolution of marriage granted to petitioner-appellee Bertha 0. Lee. Appellant’s counsel on appeal (different than trial counsel) contests several aspects of the trial court’s division of community property, certain attorney’s fee awards, and the disposition of one alleged community debt. In reviewing the evidence, we are constrained to resolve all doubts and inconsistencies in favor of supporting the trial court’s actions. Wayt v. Wayt, 123 Ariz. 444, 600 P.2d 748 (1979); Nelson v. Nelson, 114 Ariz. 369, 560 P.2d 1276 (1977). Viewed in this manner, the facts material to a resolution of this case are as follows. The parties were married in 1960, at which time appellant owned certain property located on Southern Avenue in Mesa, Arizona. In 1966 appellant deeded an undivided one-half interest in that tract to his wife. In 1968 the parties borrowed $10,000.00 from appellee’s mother, Mrs. Craig, giving in return a note, mortgage and deed covering the Southern Avenue property. Although Mrs. Craig executed a satisfaction of the mortgage and returned the deed in 1974, both she and appellee assert that the debt itself was never forgiven. On the other hand, appellant testified the satisfaction was evidence that the obligation had been excused. In 1974 the parties purchased the assets and name of then bankrupt Blair College, relocating the medical/dental assistant training school to the Southern Avenue property in Mesa. During 1978, the parties acquired, as joint tenants, another parcel of land along Baseline Road in Mesa. After extended proceedings, the trial court rendered a comprehensive judgment of dissolution which, among other things, made complete disposition of the community assets and liabilities. The Southern Avenue property was ordered sold for not less than $400,000.00, the net proceeds to be divided equally between the parties. Blair College was assigned a valuation of $60,-000.00 and was awarded to the appellant, while the Baseline Road property, valued at $46,500.00, was awarded to appellee. The court also ordered that Mrs. Craig be paid $7,186.00 directly from the proceeds of the Southern Avenue property sale in satisfaction of the disputed debt to her. After denial of appellant’s motion for a new trial, he appealed. To resolve one of the issues presented in this appeal, it is necessary to describe certain proceedings which occurred after the trial court’s ruling on the community property. The record shows that appellant attempted, in several ways, to cloud title to the Southern Avenue property so that it could not be sold as had been ordered. Ap-pellee was forced to request the trial court to hold appellant in contempt of its order to sell the property. As part of his efforts to frustrate the court’s order, appellant also brought a separate action claiming that ap-pellee had agreed, several years before, to convey the Southern Avenue property to him in the event the parties divorced or separated. This claim by appellant was a new one and was completely contrary to his position throughout the dissolution proceedings. Upon appellee’s motion, the trial court found Mr. Lee’s actions to be in violation of the court’s order to sell the property, quashed the lis pendens filed by him, ordered him to dismiss the separate action within forty-eight hours, and awarded ap-pellee $1,000.00 in attorney’s fees resulting from his actions. Appellant did not comply with the order to dismiss the separate action at that time. Instead, he brought a special action in the Arizona Supreme Court, requesting a stay of the trial court’s order. When the special action failed, he dismissed the separate action. The trial court again found appellant in contempt of court and awarded appellee an additional $3,000.00 in attorney’s fees incurred by her as a result of appellant’s actions. Both awards of attorney’s fees occurred after appellant filed his notice of appeal from the dissolution decree which is now before us. Although the issue of these orders for attorney’s fees therefore could not have been and was not raised in his notice of appeal, appellant has presented arguments contesting the awards in his brief and in oral argument. THE SOUTHERN AVENUE PROPERTY Appellant initially argues that the trial court lacked “jurisdiction” to order a sale of the Southern Avenue property because the land was capable of partition in kind. This issue was never litigated below and is raised for the first time on appeal. Indeed, appellant’s argument on appeal is somewhat inconsistent with his position at trial, when he himself urged the trial court to order the sale of the property and division of the proceeds in the event the court declined his primary request to partition the property. However, it is not inappropriate for this court to consider jurisdictional questions not raised at trial. See Gage v. Gage, 11 Ariz.App. 76, 462 P.2d 93 (1969). Appellant contends that a trial court is duty bound to order community property partitioned in kind if at all possible, with the sale of such property and division of proceeds being a second alternative available only where partition is impossible. In support of this theory he cites Davis v. Davis, 82 Idaho 351, 353 P.2d 1079 (1960), and Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960). In both of these cases, the trial courts were statutorily bound to divide the community property only as they saw “just” or “right.” Each case does appear to suggest, under such a standard, that the first appropriate course of action is partition in kind where possible. However, due to the express language of the governing Arizona statute, we feel the rule is otherwise in Arizona. The operative portion of our statute provides that the trial court “shall also divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct.” A.R.S. § 25-318(A) (emphasis added). Unlike the statutes involved in Davis and Hailey, our statute specifically provides that the distribution does not have to be “in kind.” In Arizona, the apportionment of community property in a dissolution proceeding rests within the sound discretion of the trial court. Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977); Hatch v. Hatch, 113 Ariz. 130, 547 P.2d 1044 (1976). The trial court’s broad discretionary powers include the power to order a sale of community property when it will facilitate the equitable division of the property. Even under an earlier version of our present § 25-318, which authorized the court to divide community property as “seems just and right”, the power to order a sale of community property was employed. See Hanner v. Hanner, 95 Ariz. 191, 388 P.2d 239 (1964); Hayne v. Hayne, 9 Ariz.App. 99, 449 P.2d 633 (1969). The only inherent limitation on the power of the trial court to apportion community property is that the division, in the final analysis, must result in a substantially equal distribution which neither rewards nor punishes either party. Hatch v. Hatch, supra. It being clear that the trial court had authority to order a sale of the Southern Avenue property, we now turn to appellant’s alternative contention that, in this particular case, the order constituted an abuse of discretion. As noted, trial courts have very broad discretion in allocating and dividing community assets. R. Veldon Naylor, an appraiser called by appellee, testified that the Southern Avenue property could be partitioned equally in kind. He also testified, however, that should the property be sold it would be most profitable to sell it as a single parcel. Conversely, Robert Temple, another appraiser called by appellee, testified that the property would be most profitably disposed of by selling it in five or six lots. In light of the conflicting testimony as to the possible dispositions of the Southern Avenue property, we see no abuse of discretion by the trial court in deciding to order its sale as a single parcel for not less than $400,000.00, with the net proceeds to be divided equally. BLAIR COLLEGE Appellant’s alternative contention that the order for sale of the Southern Avenue property resulted in an inequitable distribution of community assets is similarly unpersuasive. The inequity which springs from the sale, appellant claims, is the forced relocation of Blair College and a concomitant drastic diminution in its value, as opposed to the valuation actually given Blair College by the trial court. In short, because the college must be moved, appellant claims it is not worth nearly the value assigned to it when it was awarded to him by the trial court. We first note that the record does not necessarily support appellant’s assumption that a sale of the Southern Avenue property necessarily compelled a relocation of Blair College. As appellee points out, appellant could have purchased the property at the court-ordered sale, thus negating any relocation of the school. If, as appellant claims, he lacked the funds necessary to make this purchase, he still might have negotiated a lease for Blair College from a new buyer of the property. Appellant’s present argument that any new purchaser would want to develop the property commercially, rather than receive rent from Blair College, is sheer speculation unsupported by the record. Thus, it does not necessarily follow that a sale of the Southern Avenue property automatically compelled a relocation of Blair College. Even assuming a need to relocate the college, however, appellant has failed to demonstrate that the trial court erred in assigning a $60,000.00 value to the college. The expert witness who testified on this issue was Walter Pocock. He had difficulty coming up with a definitive appraisal of Blair College for several reasons. Foremost among these reasons was the unusual manner in which Mr. Lee conducted the business of the college, the inadequacy and inaccuracy of the records maintained by him both before and after the institution of this suit, and his repeated frustration of the discovery procedures instituted by Mrs. Lee and her counsel. However, after employing an accountant to develop reconstructed statements for the business, Pocock estimated the value of the college, as a going business, at $144,000.00. While this valuation appears to have been based primarily upon the assumption that the business would remain on the Southern Avenue property, Pocock also concluded that the business was easier than most to move. It had been moved to the Southern Avenue property itself in 1974. While no formal appraisal of the college was prepared on the assumption that the business would be relocated, there was evidence before the trial court which, when taken with the totality of evidence before the court, indicates that the college had a value of at least $60,-000.00, even assuming the necessity of a relocation. When the trial court ultimately awarded the college to appellant, this minimum valuation of $60,000.00 was assigned to it. In the final analysis, appellant’s claim that the $60,000.00 valuation of the college was error resolves itself into a claim that the trial court was required to accept Mr. Lee’s stated opinion that the value of the college would be totally destroyed by a relocation. There being conflicting evidence in the record on the issue of valuation, we hold that appellant has failed to demonstrate any error or inequity by the trial court’s assignment of a value of $60,000.00. THE BASELINE PROPERTY Appellant next challenges the trial court’s valuation of the Baseline Road property. It was awarded to appellee at an assigned valuation of $46,500.00. This valuation was arrived at by the formal appraisal of R. Veldon Naylor, who, at appellant’s request, prepared an appraisal of the property several months prior to trial. Shortly before trial Naylor reexamined the Baseline property, again at appellant’s request. Although he prepared no revised formal written appraisal, Naylor did offer his oral opinion at trial that the property had appreciated somewhat since his earlier appraisal. The source and validity of this later opinion were vigorously explored on cross-examination. Viewing the evidence most favorably to upholding the trial court’s judgment, as we must, we believe it was clearly within the province of the trial court to base its valuation on the formal appraisal which was in evidence. The determination of issues of credibility and the resolution of conflicting evidence, including evidence from the same witness, are properly functions of the trial court. See Day v. Day, 20 Ariz.App. 472, 513 P.2d 1355 (1973). There being substantial competent evidence to support the trial court’s valuation of the Baseline property, we will not disturb it on appeal. THE CRAIG DEBT Appellant’s next argument, which contests the validity of the court-ordered payment of the Craig debt, presents a question which we believe is one of first impression in Arizona. The court’s judgment provided that Mrs. Craig (Mrs. Lee’s mother) be paid $7,186.00 directly out of the proceeds of the Southern Avenue property sale. As previously noted, the parties to this litigation did not agree on the validity of this debt. Mr. Lee contended that the indebtedness had been forgiven and that this was evidenced by the satisfaction of mortgage that had admittedly been executed and delivered by Mrs. Craig. While Mrs. Craig was not a party to these proceedings, she testified that the satisfaction had been executed and delivered only because Mr. Lee told her it would immunize her against large street assessments, and that the debt remained unsatisfied. It is clear that the trial court not only determined the Craig debt to be valid, but ordered the direct transfer of community assets to Mrs. Craig in full payment of the alleged balance due. However, as noted, Mrs. Craig did not intervene in the action below, nor was she ordered joined as a party by the trial court pursuant to its authority under A.R.S. § 25-314(D). Appellant maintains that the trial court lacked jurisdiction to order a direct payment of the contested debt, at least in the absence of Mrs. Craig’s participation as a party in the trial. We agree. The trial court is invested with authority to equitably divide the community assets in a proceeding for dissolution of marriage. A.R.S. § 25-318(A). Pursuant to this authority, a court may properly allocate community liabilities between the parties in effecting an equitable division of all community property. Speetor v. Spector, 17 Ariz.App. 221, 496 P.2d 864 (1972). Appellant contends that a trial court may not directly transfer community assets to a stranger to the litigation in payment of a contested debt. Conversely, appellee argues that the ordered payment was no more than a permissible allocation of a community liability by the court. Both parties cite Srock v. Srock, 11 Ariz.App. 483, 466 P.2d 34 (1970), as supportive authority. In Srock, the court allocated a particular community debt to the husband for payment. The wife paid the debt first, however, and then filed a petition to show cause why the husband should not be forced to reimburse her. The court entered judgment for the wife and the husband appealed. In affirming the propriety of granting a separate money judgment to the ex-spouse in order to compel the payment of an already allocated debt, Division Two of this court held: We particularly are compelled to affirm the trial court’s discretion to allocate community liabilities because to do otherwise would nullify divorce effectiveness. If the debts already owed by the community, as distinct from the wife’s attorneys fees, cannot be allocated between the parties then an essential item of divorce dispute remains unresolved. We do not mean to say that allocating community liabilities to one party can bind that party to a creditor for a certain amount, or that the creditor, not being a party to the action, is bound to a certain amount. All the decree does effectively is put the responsibility for community debts on one party, whatever that liability might be. Ultimately, the responsibility to so pay cannot be enforced by contempt, as is alimony, but can only be enforced as any other action in debt.... 11 Ariz.App. at 484-85, 466 P.2d at 35-36 (emphasis added). In our view, Srock is not authority for the proposition that a court may order direct payment of contested community debts from community assets in a dissolution proceeding. Srock merely says that a court may allocate existing community debts between the parties, and that one ex-spouse may then seek payment of the obligation through a separate equitable proceeding or an action on the debt. The court expressly recognized that it could not order debt payment to a third party and compel such payment through contempt in a dissolution decree. In the present case we do not have an attempt, as in Srock, by one ex-spouse to enforce a court-ordered allocation of a mutually incurred debt. Rather, the court below sought to extinguish a contested debt to a third party by paying it directly out of community funds. This it was not empowered to do. Srock suggests, and we agree, that the proper procedure in a case such as this, involving a non-intervening and non-joined creditor, is for the trial court to clearly allocate responsibility for the community obligations between each of the parties. Such an allocation is not to be considered a determination of validity or invalidity of the alleged debts insofar as a non-party creditor is concerned. Similarly, the court may not effectively validate and discharge a contested debt by ordering the direct transfer of community assets to a non-party creditor, or by ordering one party to pay the debt directly under pain of contempt. The allocation of community liabilities determines the rights and obligations of parties before the court only with respect to each other. We believe the foregoing rule to be consistent with Srock as well as with the due process rights both of parties to a dissolution proceeding and non-party creditors. Additionally, we believe it is sound policy to adopt a rule which will not require creditors to intervene in contested dissolution actions in order to litigate their claims. To do otherwise would be to turn a dissolution action into a creditor’s proceeding. Furthermore, we note that the court-ordered payment of one contested community debt to a non-party could have serious adverse effects upon other non-party creditors. If the net community assets are insufficient to pay all valid debts, the compelled payment of one could operate as a preference. In a dissolution case invalidating a court-ordered sale of land and distribution of proceeds to creditors, the Washington Supreme Court has stated: Nothing can be found in the divorce act authorizing the court to deprive the spouses of their rights to prefer creditors, claim exemptions and/or homesteads, compromise claims, take bankruptcy, invoke statutes of limitation, make contracts, and enjoy their property rights. Arneson v. Arneson, 38 Wash.2d 99, 101, 227 P.2d 1016, 1017-18 (1951). Similarly, there is nothing in the Arizona dissolution statutes which grants such power to a trial court. We therefore conclude that the trial court acted in excess of its jurisdiction when it went beyond the mere allocation of a contested debt and ordered direct payment to a non-party creditor from the proceeds of the sale of community property. ATTORNEY’S FEES Lastly, appellant contests the trial court’s award of approximately $4,000.00 in attorney’s fees to appellee. As previously noted, both challenged awards were made after appellant filed his notice of appeal. The court of appeals acquires no jurisdiction to review matters not contained in the notice of appeal. China Doll Restaurant, Inc. v. Schweiger, 119 Ariz. 315, 580 P.2d 776 (App.1978); Rexing v. Rexing, 11 Ariz.App. 285, 464 P.2d 356 (1970). In the absence of a timely notice of appeal following entry of the order sought to be appealed, we are without jurisdiction to determine the propriety of the order sought to be appealed. Appellant asserts, however, that since the trial court lacked subject matter jurisdiction to make the fee awards, he may raise the issue at any time. His argument is that the disputed awards were, in reality, for fees incurred in separate proceedings. However, those proceedings were found to be in contempt of court orders in this case, and the fees were awarded in this case. The subject matter jurisdiction of a court is its ‘““power to deal with the general abstract question” ’ ” presented. Arizona Public Service Co. v. Southern Union Gas Co., 76 Ariz. 373, 381, 265 P.2d 435, 441 (1954). “ ‘ “Jurisdiction over the subject matter” is the right of the court to exercise judicial power over that class of cases;.... By “jurisdiction over the subject matter” is meant the nature of the cause of action and, of the relief sought; and this is conferred by the sovereign authority which organizes the court. ... ’ ” Tube City Mining and Milling Co. v. Otterson, 16 Ariz. 305, 312-13, 146 P. 203, 206 (1914). Simply put, appellant seeks to appeal the propriety of an award of attorney’s fees in a dissolution proceeding. A trial court obviously has jurisdiction to order attorney’s fees in dissolution cases. A.R.S. §§ 25-311(A); 25-324. Therefore, his argument that this court should consider the issue notwithstanding his failure to appeal therefrom must fail. CONCLUSION The trial court had jurisdiction to order the sale of the Southern Avenue property and the order was not an abuse of discretion. The trial court’s valuations of Blair College and the Baseline property were supported by the evidence, were not abuses of discretion, and did not result in an inequitable distribution of community assets. We have no jurisdiction to review the propriety of attorney’s fees awarded after the filing of the notice of appeal herein. Due to our conclusion that the trial court lacked authority to order direct payment of the contested Craig debt from community assets, we must remand this case. Since we do not know what has in fact transpired relative to the contested Craig debt, we remand this case for further proceedings consistent with this opinion. Affirmed in part; reversed and remanded in part. CONTRERAS and OGG, JJ., concurring. NOTE: The Honorable JAMES MOEL-LER, Maricopa County Superior Court Judge, was authorized to participate by the Chief Justice of the Arizona Supreme Court pursuant to Arizona Const, art. VI, § 3.

OPINION JACOBSON, Presiding Judge. In this appeal involving a dissolution proceeding, we are asked to determine if the lower court abused its discretion concerning the amount of spousal maintenance awarded to appellee and the award of custody of the parties’ son to an adult brother. We affirm in part and reverse in part. Don Hinkston, appellant, and Leola Hink-ston, appellee, were married in 1952. On September 25, 1979, a decree of dissolution was entered wherein the lower court ordered that the parties’ home should be sold and the net proceeds be distributed fifty-five percent in favor of appellee (approximately $10,400.00) and forty-five percent in favor of appellant (approximately $8,500.00). Additionally, appellant was given a 1967 automobile valued at $500.00, a 1960 motorcycle valued at $100.00, a tent trailer worth approximately $25.00, and a mobile home which had zero equity. The decree ordered appellant to pay spousal maintenance in the amount of $275.00 per month for as long as appellee is unemployed, and $125.00 per month if appellee became employed, said amounts to be paid indefinitely. Appellant was further ordered to pay $100.00 per month for the support of John, the parties’ one minor child. Custody of John was awarded to John’s older brother, Tom Evans. Additional facts will be related as they become necessary. Appellant first argues that the lower court erroneously awarded appellee spousal maintenance in the amount of $275.00 per month for an indefinite period of time. Apparently, it is appellant’s position that the trial court abused its discretion regarding both the amount and the duration of the award. It is an extremely well-settled rule of law that because the trial judge is in the best position to properly tailor an award of spousal maintenance, the trial court is given broad discretion to determine what is a reasonable amount, and we will not interfere with the amount awarded unless an abuse of discretion has been shown. Sommerfield v. Sommerfield, 121 Ariz. 575, 592 P.2d 771 (1979); Burkhardt v. Burkhardt, 109 Ariz. 419, 510 P.2d 735 (1973); Nelson v. Nelson, 114 Ariz. 369, 560 P.2d 1276 (App.1977); Day v. Day, 20 Ariz.App. 472, 513 P.2d 1355 (1973). According to the testimony presented in the lower court, at the time of the dissolution hearing appellant was not employed because he had spent approximately two months preparing the family residence for sale. However, appellant testified that previous to that he had been employed as a construction worker hanging sheetrock and as a security guard, and that he intended to return to both jobs when the work on the house was finished. It is not strenuously argued, nor could it be, that because appellant only intended to return to these jobs the lower court was not sufficiently presented with an amount of monthly income from which an award of spousal maintenance could be given. Appellant gave no indication of anything that would prevent him from returning to either job, and he testified without hesitation regarding the number of hours required by each position and the respective amounts of income he expected to earn. Rather, appellant argues that an indefinite award of $275.00 per month for maintenance is excessive. We do not agree. Both parties testified that appellee had not worked in the past eight years, and the record reflects that appellee only had a tenth grade education. Also, it is undisputed that appellee had Huntington’s disease and that, according to a conciliation court recommendation, it could not be predicted how slowly or rapidly the disease would progress or how much the disease would interfere with appellee’s ability to become employed. Under these circumstances, we cannot say that the trial court abused its discretion by requiring appellant to pay maintenance of $275.00 per month for an indefinite period of time. Some of the factors to be considered by the trial court when determining the amount of maintenance are: the financial needs of the wife, the wife’s ability to sustain her own needs, the husband’s financial condition, and the standard of living established during the marriage. A.R.S. § 25-319; Lindsay v. Lindsay, 115 Ariz. 322, 565 P.2d 199 (App.1977); Pettibone v. Pettibone, 22 Ariz.App. 570, 529 P.2d 724 (1974). Certainly the schedule of expenses prepared by appellee evidenced a financial need of at least $275.00 per month, even considering that appellee was not awarded custody of her son. It was also proper for the trial court to consider appellee’s undisputed medical condition and the effect it might have on her future ability to sustain herself. Pettibone v. Pettibone, supra. Furthermore, we note that although the award falls near the high end of the scale, the amount awarded is within the guidelines adopted by the Domestic Relations Division of the Maricopa County Superior Court. And finally, when computed on an annual basis, such an amount would reasonably compare to the standard of living established by the parties during their marriage. Although the trial court is vested with broad discretion when determining a wife’s need for maintenance, there still must be some support in the record for the court’s determination. Lindsay v. Lindsay, supra. Moreover, spousal maintenance is impermissible unless a spouse meets the requirements of A.R.S. § 25-319(A) at the time of the dissolution hearing. Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977). Accordingly, we find no justification for that part of the maintenance order which required appellant to pay $125.00 per month even if appellee became employed. Appellee testified that she wanted to work, that she had “applications in all over the place,” and that she was next on the list to be hired at Motorola. There is simply nothing in the record to support the trial court’s determination that if appellee obtained employment, she would need an additional $125.00 per month to sustain herself. Nor can additional alimony be predicated on mere hopes and speculative expectations. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966 (1963); Lindsay v. Lindsay, supra. We therefore strike that portion of the decree requiring appellant to pay maintenance of $125.00 per month if appellee becomes employed. Since we find that the employment of the appellee is unsupported by the record, we of necessity must also strike that portion of the award which conditioned spousal maintenance in the sum of $275 per month “for as long as appellee is unemployed.” The amount of spousal maintenance to be paid in the future is best left to future petitions for modification based upon the normal change of circumstances criteria. Lastly, appellant argues that the trial court abused its discretion by awarding custody of the parties’ only minor child, John, to John’s older brother. The entire argument concerning this issue set forth in the appellant’s opening brief (p. 6) is as follows: Finally, the Court erred in awarding the minor child to an adult brother. The conciliation court report indicated the child favored Mr. Hinkston, and further, recommended liberal visitation to both Mr. and Mrs. Hinkston (thus obviating any negative aspects of Mr. Hinkston having custody). Moreover, Mr. Hink-ston had temporary custody of the child up to the date of dissolution (as per an Order to Show Cause). It is respectfully submitted that the minor child would be better off with the Father, than with an adult brother, and therefore Mr. Hink-ston should be awarded custody. In fact, the evidence before the court clearly indicates that appellant is both temper-mentally unfit to have custody and is unable to provide proper physical care for the child. The appellee in her answering brief supports the trial court’s order granting custody to the older brother. In LeRoy v. Odgers, 18 Ariz.App. 499, 503 P.2d 975 (1973), Division 2 of this court held that in absence of a finding of unfitness of a parent to have custody, the trial court abuses its discretion in awarding custody in a dissolution proceedings to a non-parent. Appellant does not question the evidentiary finding that he is unfit to have custody and appellee admits she is incapable of exercising custody. Moreover, appellant does not directly put in issue the authority of the trial court to grant custody to a non-parent. Under these circumstances, we hold, at least facially, the custody order is proper. For the first time in the reply brief, the appellant raises the issue that the trial court did not comply with A.R.S. § 25-328, which provides as follows: § 25-328. Separate trials when custody or visitation is an issue A. In all cases when custody or visitation is a contested issue, the court shall first hear all other issues including maintenance and child support. The contested issue of custody or visitation shall not be heard at any hearing involving other issues even upon agreement of attorneys. B. After all other issues have been decided and the amount of maintenance and child support established by the court, then the issues of custody or visitation may be heard. Normally, issues raised for the first time in a reply brief shall not be considered by the appellate court. Evans v. Federal Savings and Loan Insurance Corp., 11 Ariz.App. 421, 464 P.2d 1008 (1970). Appellant contends however that the failure to follow A.R.S. § 25-328 is jurisdictional, citing Honsey v. Honsey, 126 Ariz. 336, 615 P.2d 14 (App.1980) and thus may be raised at anytime. In Honsey, a domestic relations case in which no answering brief was filed, Division Two of this court, without any analysis, stated: The issue of child custody was heard prior to the resolution of all the other issues including the amount of child support established by the court. While neither counsel objected to the procedure, the provisions of A.R.S. Sec. 25-328 are clearly jurisdictional. 126 Ariz. at 337, 615 P.2d at 15. Honsey is a classic example of the mischief that can arise when courts indiscriminately use the term jurisdiction (the power to act) when what is meant is legal error (the court acted improperly). Failure to follow A.R.S. § 25-328 is clearly legal error, even non-waivable legal error, but it cannot be jurisdictional. The power of the superior court to award custody of minor children in a dissolution proceeding is derived initially from the Arizona Constitution, art. 6, § 14 and is directly conferred by A.R.S. § 25-331. A.R.S. § 25-331 is clear that jurisdiction (the power) of the superior court to act in custody matters is derived from the domiciliary status of the child, the connection of the child and the contestants with this state, and the physical presence of the child within the state. See generally A.R.S. § 8-403. The legislature has enacted an elaborate interlocking framework of legislation attempting to clarify the question of the superior court’s jurisdiction in child custody matters. To envision that this framework could be overthrown simply because the court failed to follow a procedural direction of the legislature is simply not required either legally or by any public policy considerations. Moreover, to hold that the superior court lacks jurisdiction and therefore its orders are void, simply because the procedural dictates of A.R.S. § 25-328 are not followed, possibly casts into doubt numerous custody orders of the court which are presently being followed. Again, such a result is not legislatively required. We therefore hold that the failure to follow A.R.S. § 25-328 does not deprive the superior court of jurisdiction to enter a custody decree, but simply makes a decree not entered in conformity with the statute legally erroneous. The failure to raise this legal error in a proper manner does not require us to consider it. That portion of the decree dissolving the marriage, dividing the property, awarding indefinite spousal maintenance of $275 per month and awarding custody to Tom Evans is affirmed. The decree is modified to strike the award to appellee of $125.00 per month in the event she becomes employed, and strike the condition that continuance of the award of $275 per month depends upon her remaining unemployed. Affirmed as modified. . If appellee ever became employed, she was also ordered to pay child support in the amount of $35.00 per month. . There is some confusion here. Although both parties did testify that appellee had last worked eight years ago, appellee also testified that she had been employed at Casecraft approximately two and one-half years ago. . For the year prior to the dissolution, the parties had a net income of $4,250.00. At $275.00 per month, appellee would be given a yearly amount of $3,300.00. Even assuming a net monthly salary of $865.00 from the sheetrock position only, and including the payment of $100.00 per month child support, appellee would still be left with a yearly income of approximately $5,880.00.

OPINION GRANT, Judge. This is an appeal from an order of the juvenile court terminating the parent-child relationship between appellant and his children, Paul Howell Rosbury, Jr. and Shawn Rosbury. We reverse the court’s order because we find that the evidence does not support the court’s finding of abandonment. Appellant Paul Rosbury and appellee Naomi Connizzo were married in February, 1966 and divorced in January, 1974, in Florida. There were two children born of the marriage, Paul Rosbury, Jr. and Shawn Rosbury. Appellee was given custody of the children, and appellant was granted visitation rights. In March 1975, appellee moved to Missouri with the children. She subsequently married Joseph V. Connizzo, her present husband. In July, 1978, appel-lee and her husband moved to Arizona. On April 8, 1980, appellee petitioned the court for termination of the parent-child relationship between the children and their natural father on the grounds that appellant had abandoned the children, that he had made no effort to maintain a parental relationship with the children, and that he had not provided any support for the children since July, 1977. The petition also stated that Joseph Connizzo, appellee’s present husband, was seeking permission to adopt the children. After a hearing on the matter, the trial court made the following findings and conclusions of law: 1. That the Court has jurisdiction over this matter pursuant to A.R.S. § 8-531 et seq. 2. That the Respondent has abandoned the children and has made no effort to maintain a parental relationship with the children. In the opinion of the Court, the evidence indicated that the Respondent has made only token efforts to support and/or communicate with the children. THEREFORE, IT IS ORDERED terminating the parent-child relationship between Respondent, PAUL HOWELL ROSBURY, SR., and the children, PAUL HOWELL ROSBURY, JR., and SHAWN ROSBURY. IT IS FURTHER ORDERED appointing the Petitioner as guardian of the children and fixing in them the responsibility for support of same. The father appeals from the order of the trial court, and raises the issue, inter alia, whether the evidence presented at the severance hearing warrants the finding that he has abandoned his children. A.R.S. § 8-533(B)(l) (Supp.1982) provides that one of the grounds which justifies the termination of the parent-child relationship is evidence: [t]hat the parent has abandoned the child or that the parent has made no effort to maintain a parental relationship with the child. It shall be presumed the parent intends to abandon the child if the child has been left without any provision for support and without any communication from such parent for a period of six months or longer. If in the opinion of the Court, the evidence indicates that such parent has made only token efforts to support or communicate with the child, the court may declare the child abandoned by such parent. The Arizona statute governing the burden of proof required for terminating a parent-child relationship is A.R.S. § 8-537(B) and provides: The court’s findings with respect to grounds for termination shall be based upon a preponderance of the evidence under the rules applicable and adhering to the trial of civil causes, [emphasis added] The Supreme Court of Arizona reviewed this standard of proof in light of the recent United States Supreme Court decision, Santosky v. Kramer, - U.S. -, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) and concluded that the standard is unconstitutional. In the Matter of the Appeal in Pima County Juvenile Action No. S-919, 132 Ariz. 377, 646 P.2d 262 (1982). See In the Matter of the Appeal in Maricopa County Juvenile Action No. JS-4130, 132 Ariz. 486, 647 P.2d 184 (App.1982). The United States Supreme Court concluded that in parental rights termination proceedings, the “fair preponderance of the evidence” standard violates the due process clause of the fourteenth amendment. The Court stated that a “clear and convincing” standard of proof “strikes a fair balance between the rights of the natural parents and the State’s legitimate concerns,” and that “such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.” - U.S. at -, 102 S.Ct. at 1402-03, 71 L.Ed.2d at 617. The Court further held that the determination of the precise burden equal to or greater than the “clear and convincing” standard is a matter of state law properly left to state legislatures and state courts. Id. at -, 102 S.Ct. at 1403, 716 L.Ed.2d at 617. Since the termination proceedings in this ease occurred under the unconstitutional burden of proof as specified in A.R.S. § 8 — 537(B), the findings and orders of the trial court are constitutionally infirm. See In the Matter of the Appeal in Pima County Juvenile Action No. S-919. While the general procedure would be to vacate the judgment and remand the case to allow the trial judge to make a new factual determination applying the proper standard of proof, we hold that the evidence in this case is insufficient to support an order of termination under either standard of proof. See Juvenile Action No. JS-4130. Sufficiency of the Evidence In support of the trial court’s order terminating the parent-child relationship be tween appellant and his two children, appel-lee alleges that it is in the best interests of the children to sever the parental rights of the natural father and that the children wanted to be adopted by their stepfather. On this latter point, there is evidence in the record that one of the children insisted on using his stepfather’s surname in school, rather than his legal name. There is also evidence that the children indicated to the trial judge in private that they wished to be adopted by their stepfather. Although the best interests of the child are a valid factor in deciding an abandonment allegation, abandonment cannot be predicated solely on the best interests of the child. Matter of Juvenile Action No. S-624, 126 Ariz. 488, 616 P.2d 948 (App. 1980); Anonymous v. Anonymous, 25 Ariz.App. 10, 540 P.2d 741 (1975). In determining whether to terminate a parent-child relationship, the focus is primarily on the conduct of the parent, and the court must determine whether that conduct was an intentional relinquishment of parental responsibilities. Matter of Appeal in Maricopa County, Juvenile Action No. JS-1363, 115 Ariz. 600, 566 P.2d 1346 (App.1977). Stated another way, a severance of a parent-child relationship requires proof that there is conduct on the part of the parent which implies a conscious disregard of obligations owed by the parent to the child, leading to the destruction of the parent-child relationship. Anonymous v. Anonymous; Matter of Juvenile Action No. S-624. We therefore must examine the evidence in this case to determine if this test has been met. In reviewing the evidence, we are mindful of the fact that the trial court will be deemed to have made every finding necessary to support the judgment. In Re Estate of Harber, 104 Ariz. 79, 449 P.2d 7 (1969); Marquess v. Spaner, 15 Ariz.App. 342, 488 P.2d 698 (1971). Furthermore, this court will not interfere with the juvenile court’s findings of fact unless there is no reasonable evidence to support them. Anonymous v. Anonymous. In its order dated April 13, 1981, the trial court made the following findings of fact which are not challenged on appeal: 8. From October, 1977 (date of filing of order to show cause, see 6, supra) to December, 1978, Respondent made no attempt to contact the children. He did not write them, send any money, support, gifts, etc., or call them. The fact is that he was unaware that he did not know their whereabouts. 9. It was not until December, 1978, that he found by sending Christmas cards, that they were no longer in Missouri, and it was not until February, 1979, that he found their address in Arizona. In August, 1979, he made a phone call in which he talked to the Petitioner. In December, 1979, he sent them a present. 10. There is a dispute as to the exact amount of arrearage due. The total sum due between the date of the order and the end of December, 1980, is approximately $12,000.00 which the Respondent claims to have paid approximately $8,000.00. Appellee argues that although the court made no express finding of a presumption of abandonment pursuant to A.R.S. § 8-533(B)(1), such finding can be inferred from findings number 8 and 10, quoted above. Appellee also claims that no child support payments were made from July 19, 1977, until June 20,1980, which further gives rise to the presumption that appellant intended to abandon the children. We agree that the facts in this case appear to give rise to a presumption of abandonment pursuant to A.R.S. § 8-533(B)(1) since the record supports the trial court’s finding that for a period of some fourteen months, appellant failed to communicate with, or provide any money or support for, the children. See, Matter of Appeal in Maricopa County, Juvenile Action No. JS-1363. Even assuming such a presumption can be inferred, however, it has clearly been rebutted by evidence presented at the severance hearing of the appellant’s efforts to maintain a parent-child relationship with his two children. First of all, we note that this is not a case where the parent opposing the severance removed himself or herself from the proximity of the children. See Anonymous v. Anonymous. Rather in this case in July, 1973, appellee took the two children from the State of Florida to Missouri without advising appellant where she was going. After a temporary return to Florida, the mother again left Florida, and was later located by appellant in Little Rock, Arkansas. In November of 1974, appellant provided air fare for the return of appellee and the children to Florida, where the family lived together for a short period of time. In March of 1975, appellee once again left the State of Florida with the children and returned to Missouri without informing appellant. During the summer of 1976, the children visited appellant in Florida for a period of six weeks. Subsequent to this visitation, appellant began to experience difficulty maintaining contact with the children. Ap-pellee was apparently discouraging visitation because appellant was in arrears in his child support payments, resulting in the development of a strong animosity between the parties. The children did not visit appellant in the summer of 1977 because, according to the testimony of the appellee, “The children would not go.” In July of 1978, appellee, her new husband and the children moved to Arizona. Appellant was not advised of the move and was apparently not aware of the move until January, 1979, when the Christmas gifts he had sent to the Missouri address were returned to him. Appellant later learned the Arizona address of his children from the post office. The record indicates that appellant made numerous attempts to contact the children by phone. In addition, appellant regularly sent Christmas gifts and birthday cards to the children. The evidence is clear that as of the date of the severance hearing, appellant continued to be in arrears in his child support payments, although the exact amount of arrearages is disputed. Although we certainly do not condone appellant’s neglect of his child support obligations, such nonsupport is not synonymous with “abandonment.” Anonymous v. Anonymous. It is, however, a factor to be considered and, when coupled with a failure to communicate or the absence of sending gifts, is sufficient to uphold a conclusion that the child has been abandoned. Id. In this case, however, appellant has made numerous attempts to keep in touch with his children, and has regularly sent them gifts and letters, in spite of the difficulties encountered in determining their whereabouts. We hold that the evidence is insufficient under any constitutionally permissible standard to establish a conscious disregard of obligations owed by appellant to his children. With respect to the trial court’s finding that “the evidence indicated that the [appellant] has made only token efforts to support and/or communicate with the children,” we quote from our recent opinion, Appeal in Maricopa County, Juvenile Action No. JS-4130, 132 Ariz. at 489, 647 P.2d at 187: The last sentence of the abandonment subsection allows a finding of abandonment where parents have made only token efforts to support or communicate with the child. This statutory provision cannot reasonably be construed to mean that a finding of “token efforts” alone will support a termination order; rather it means that “token efforts” by the parent to support or communicate with the child do not necessarily show an intent not to abandon. Even though mere “token efforts” are found, the court must also find, based upon the totality of the evidence, that the parent has abandoned the child. As we have previously stated, the evidence presented at the severance hearing was not sufficient to support a finding of abandonment. Because we reverse the decision of the trial court, we do not need to address the other issues raised by appellant. The judgment is reversed. JACOBSON and BROOKS, JJ., concur. . Appellant had been ordered by the Florida Court to pay child support in the amount of $35.00 per week. Appellant fell into arrears on his child support payments and in January of 1975, was ordered to pay an additional $25.00 per month toward the arrearages. . Admitted into evidence at the severance hearing was exhibit 5, a copy of several of appellant’s phone bills which indicates that appellant made calls to the children’s residence on the following dates: September 14, 1976, October 9, 1976, November 11, 1976, January 9, 1977, April 20, 1977 and June 19, 1977. He also called on December 25, 1976, but there was no answer as the family had gone on vacation.

CAMERON, Justice. This is an appeal by the State from the granting of defendant’s motion to vacate judgment, and the granting of a new trial. Defendant cross-appeals, alleging a new trial would violate his right to be free from double jeopardy. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4032. The parties present the following issues on appeal: 1. Did the trial court abuse its discretion in vacating judgment and granting a new trial on the basis of newly discovered evidence? 2. Would a retrial violate defendant’s double jeopardy rights under the United States and Arizona Constitutions? The facts necessary to a determination of these issues are as follows. On the morning of 22 August 1978, 15-year-old Everett Scrivner was hitchhiking in Maricopa County, Arizona, when he was picked up by the victim, Donald “Jackie” Boulduc. They consumed a six-pack of beer, then went to pick up two of Scrivner’s friends, Benny Escobar and the defendant, Michael M. Hickle. Escobar was eighteen and the defendant was nineteen years old. The four proceeded to the home of Scriv-ner’s parents, where they drank more beer which had been purchased by the victim. At some point, Scrivner announced that he was going to rob the victim, but his companions discouraged the idea. It is not clear whether defendant heard the comments, but there is some testimony that defendant also announced his intention to rob the victim. Scrivner, Escobar, defendant, and the victim left for Estrella Park in the victim’s truck. They continued drinking. During the ride, the victim made sexual suggestions and sexually fondled defendant and Scrivner. This angered Scrivner, and during a stop at a restroom, he told Escobar and defendant that he would kill the victim. According to Scrivner’s testimony, defendant said that he would help. The group drove to a canal bank in the Park and parked the truck. The victim and Scrivner wandered off and the victim attempted to perform fellatio on Scrivner, but Scrivner rebuffed him. The victim then told Scriv-ner to send defendant to him. Apparently, the victim performed fellatio and may have attempted sodomy on defendant. Defendant called to his companions. Escobar grabbed a tire iron from the truck and Scrivner picked up a 4" by 4" wooden board. When they came upon defendant and the victim, the defendant appeared to be struggling. When he saw his companions, defendant struck the victim in the head with a rock. The victim fell backwards, and Scrivner and Escobar began beating him on and about the head. There is testimony that defendant also kicked the victim and hit him with rocks and the tire iron. Scrivner and defendant dragged the victim to the canal. They stopped to take his watch, belt, and money, then pushed the victim into the canal. The victim clung to some brush along the side of the canal until defendant or Scrivner threw a last rock which hit him in the head, causing him to lose consciousness and float down the canal. Death was attributed to severe head injuries. Scrivner, Escobar, and defendant took the victim’s truck which they later abandoned near the White Tank Mountains and hitchhiked back into Phoenix. They reported to the police the following day. Scrivner entered into a plea agreement in which he agreed to testify against defendant and be treated as a juvenile. He was placed in custody in Adobe Mountain School. Escobar also agreed to testify against defendant and received a 20 year sentence. The State presented two theories of first degree murder: murder with premeditation and felony-murder occurring in the course of a robbery. The jury was also instructed on second degree murder and manslaughter. Following a jury verdict of guilty of first degree murder, defendant moved for a new trial pursuant to Rule 24.1, Arizona Rules of Criminal Procedure, 17 A.R.S. The motion was denied. The defense then moved for a new trial on the basis of newly discovered evidence. The trial court granted the motion. On appeal, we vacated, holding that the motion was untimely and that the trial court was without jurisdiction to grant or deny it. State v. Hickle, 129 Ariz. 330, 631 P.2d 112 (1981). We noted, however, that the defendant was not foreclosed from relief, and that a motion to vacate judgment pursuant to Rule 24.2, Arizona Rules of Criminal Procedure, 17 A.R.S., or a motion for post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, 17 A.R.S., would be proper. State v. Hickle, supra. Upon remand, defendant was sentenced to imprisonment for life without the possibility of parole for 25 years. The defendant then moved to vacate judgment on the basis of newly discovered evidence, pursuant to Rules 24.2 and 32.1, Arizona Rules of Criminal Procedure, 17 A.R.S. The trial court granted the motion and ordered a new trial. The State appeals and the defendant cross-appeals. NEW TRIAL The trial court found that Everett Scriv-ner’s recanted testimony was newly discovered evidence which would have probably affected the verdict had it been known at trial. The court granted the defense motion to vacate pursuant to Rule 24.2, supra. The State urges that this was an abuse of discretion. We do not agree. A motion to vacate may be granted on the basis of newly discovered evidence. Rule 24.2, supra. As provided by Rule 24.-2(a)(2), newly discovered evidence is evaluated under the standard of Rule 32.1(e), Arizona Rules of Criminal Procedure, 17 A.R.S., which states: “Rule 32.1 Scope of remedy “Subject to the limitations of Rule 32.2, any person who has been convicted of, or sentenced for, a criminal offense may, without payment of any fee, institute a proceeding to secure appropriate relief on the ground or grounds that: ****** “e. Newly-discovered material facts exist, which the court, after considering (1) The probability that such facts, if introduced would have changed the verdict, finding or sentence; (2) The diligence which would have been required to discover and produce the evidence at trial; (3) The promptness with which the petitioner has commenced a proceeding after discovery of such facts, “may require that the conviction or sentence be vacated;” At trial, Scrivner’s testimony that the defendant struck the victim with the “last rock” was used by the State to show defendant’s participation in the beating of the victim after defendant had delivered the initial blow. From it, the State urged the jury to infer premeditation. and that the murder had been committed during the course of the robbery. At the hearing on the motion for new trial, Everett Scrivner stated that he might have lied at trial. He indicated that he had been confused while testifying and that there were parts of the crime that he did not remember. Other witnesses testified at the hearing that Scrivner had told them in confidence that he had lied at the trial. Specifically, the witnesses stated that Scriv-ner had told them it was he, and not defendant, who had thrown the last rock which had caused the victim to loosen his hold on the brush and float down the canal. Scrivner’s testimony, however, was not consistent. At the post-conviction hearing, Scrivner stated that he had testified at trial to the best of his recollection, would give the same testimony again, and that to the best of his recollection, defendant threw the last rock. This testimony was disputed by other witnesses at the post-conviction hearing. We agree with the trial court that evidence indicating Scrivner lied at trial qualifies as “newly discovered material facts” pursuant to Rule 32.1, supra. Considering the importance of Scrivner to the State’s case, the trial judge, after listening to Scrivner’s testimony, could find that the new evidence would probably have changed the verdict. Rule 32.1(e), Arizona Rules of Criminal Procedure, 17 A.R.S. Although we recognize that recanted testimony is not favored as being “inherently unreliable,” the trial judge is still in the best position to evaluate its credibility and effect. “This is not to say that a new trial may never be granted on recanted testimony. The credibility of the recanted evidence is a controlling factor which can best be made in the court that heard the original testimony. In the absence of an abuse of discretion, the trial court’s decision on recanted testimony will not be disturbed on appeal.” State v. Sims, 99 Ariz. 302, 310, 409 P.2d 17, 22 (1965), cert. denied 384 U.S. 980, 86 S.Ct. 1880, 16 L.Ed.2d 691 (1966). See also State v. Scott, 113 Ariz. 423, 555 P.2d 1117 (1976). The evidence was raised promptly upon being discovered by the defense. Rule 32.1(e)(3), supra. The newly discovered evidence in the form of recanted testimony could not have been discovered with the exercise of due diligence prior to trial. Rule 32.1(e)(3), supra. The grant or denial of a new trial is within the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion affirmatively appears. State v. Salinas, 129 Ariz. 364, 631 P.2d 519 (1981). The granting of the new trial was not an abuse of discretion. State v. Madsen, 125 Ariz. 346, 609 P.2d 1046, cert. denied 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980). The State, however, urges that a new trial was improperly granted because the evidence of Scrivner’s perjury could not have changed the verdict. It contends that, regardless of whether defendant threw the last rock, defendant is guilty of first degree murder as an accomplice. We do not agree. Admittedly, if the defendant did not throw the last rock, he could be an accomplice pursuant to A.R.S. §§ 13-301 and 13-303. But to prove accomplice liability, the State must show that Hickle participated or aided the planning or commission of the crime of murder. His presence at the scene of the crime is not necessarily enough. A.R.S. §§ 13-301 and 13-303. We have stated: “Unquestionably, in the absence of pre-concert, the mere presence of a person at the time and place of a crime does not make an aider, abettor or principal.” State v. Sims, supra, 99 Ariz. at 308, 409 P.2d at 20 (1965). See also State v. (Raymond) Tison, 129 Ariz. 526, 633 P.2d 335 (1981). The evidence presented is conflicting as to defendant’s prior intention to rob the victim and to the extent of defendant’s participation in the beating of the victim after defendant delivered the first blow, allegedly in self defense. If defendant threw the last rock, it would add substance to the State’s theory that the defendant acted in concert with others to rob and kill the victim. A resolution of Scrivner’s conflicting testimony as to who threw the last rock is therefore vital in determining whether the defendant can be held criminally responsible, either as a principal or an accomplice. Under such circumstances, we cannot say that the trial court abused its discretion in granting the motion for new trial. Similarly, we disagree with the State’s contention that who threw the last rock is immaterial in determining premeditated murder. We do not know whether or not the jury relied on premeditation or the felony-murder rule in finding the defendant guilty of first degree murder. Also, the evidence suggests that the defendant’s first blow may have been in self defense. The evidence of the ensuing acts, from which one might infer premeditation, is in conflict. Without the “last rock” testimony, we cannot say that there is a probability that the jury would have reached the same verdict. Rule 32.1(e)(1), Arizona Rules of Criminal Procedure, 17 A.R.S. We find no error in setting aside the judgment on the basis of newly discovered evidence pursuant to Rules 24.2 and 32.1, supra. DOUBLE JEOPARDY After defendant’s initial motion for a new trial was denied, defendant then reasserted his motion for new trial which was granted by the trial judge for the reason of insufficiency of the evidence to sustain a conviction for first degree murder. The State appealed. We set aside the order, finding that the second motion for new trial was not timely and that the trial court was therefore without jurisdiction to grant it. See Rule 24.1(b), Arizona Rules of Criminal Procedure, 17 A.R.S.; State v. Hill, 85 Ariz. 49, 330 P.2d 1088 (1958). Defendant urges that, because the trial judge had originally granted a new trial on the basis of insufficiency of the evidence to sustain a verdict of first degree murder, a retrial would violate the double jeopardy clause of the United States and Arizona Constitutions. U.S.Const. amend. V; Arizona Const, art. 2, § 10; Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); State v. Moya, 129 Ariz. 64, 628 P.2d 947 (1981). We do not agree for two reasons. First, the trial xcourt’s order, in which it granted the first motion for new trial for insufficiency of the evidence, was entered without the jurisdictional power to do so and is thus void. State v. Hickle, supra. Being a void order, it is of no force and effect and may not be a basis of a double jeopardy bar. Second, in our review of the record, we do not believe the evidence was in fact insufficient to go to the jury on first degree murder. Admittedly, the trial court, in its order of 4 September 1979, stated that the testimony was “insufficient to support a first degree murder conviction,” and that “there is no credible, clear evidence that defendant premeditated on the killing.” We believe, however, that the trial court was incorrect in its conclusion as to insufficiency of the evidence, and that, at the most, the verdict was against the weight of the evidence. From a review of the record, had the State appealed from the granting of a new trial, A.R.S. § 13-4032(1), based upon insufficient evidence, we would have been forced to reverse because there was sufficient evidence upon which defendant could be convicted of first degree murder, as indeed the trial court inferred when it denied defendant’s first motion for new trial. The difference between insufficiency of the evidence and weight of the evidence in considering the question of double jeopardy has recently been discussed by the United States Supreme Court: “ * * * when a reversal rests upon the ground that the prosecution has failed to produce sufficient evidence to prove its case, the Double Jeopardy Clause bars the prosecutor from making a second attempt at conviction. As we suggested just last Term, these policies do not have the same force when a judge disagrees with a jury’s resolution of conflicting evidence and concludes that a guilty verdict is against the weight of the evidence, (citation omitted) * * * A reversal based on the weight of the evidence, moreover, can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict. The reversal simply affords the defendant a second opportunity to seek a favorable judgment. * * * ” Tibbs v. Florida, - U.S. - , - , 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652, 661 (1982). Because there was sufficient evidence to go the jury on the question of first degree murder, there is no double jeopardy bar to a new trial. Tibbs, supra. Order vacating judgment and granting a new trial affirmed. HOLOHAN, C. J., GORDON, V. C. J., and FELDMAN, J., concur.

OPINION FROEB, Judge. The defendants were charged with criminal damage, a class five felony, for recklessly throwing plastic bags of sulphuric acid onto the premises of Payless Lumber Company. The acid was thrown at several lumber and warehouse sheds being constructed for Payless by Colton Building Systems, a Phoenix-based company. Stacked along the fence surrounding the construction site were primed steel construction beams and surface panels intended for use in the construction of the sheds. The beams were from 6 to 25 feet long, stacked 20 to 30 per bundle. Some of the acid splattered over the stacked beams, causing blistering and discoloration. On the night of the crime, the police took twenty photographs of the damaged materials. They also collected and impounded samples of the acid thrown, and the plastic bags which contained the acid. The police decided not to impound the damaged beams themselves, however, because they were large and would require specialized equipment to move and store. On the morning following the crime, John Colton, an officer of Colton Building Systems, instructed his employees to wash off the acid and scrub the beams with wire brushes to remove the flaked and damaged primer coating. He then resumed construction with the repaired beams. An account ing of the time and materials employed in the repair project was kept which showed cost of repair at $3,157.00. The matter was set for trial on October 1, 1980. Following a period of active discovery and two trial continuances, the defendants filed a motion to dismiss, which was granted on February 27, 1981. Appellant, State of Arizona, filed a notice of appeal, bringing the matter before this court. At the conclusion of the evidentiary hearing on the motion to dismiss, the court stated: In this case the vital issue which determines the class of felony and the sentence or the class of the defense and the sentence which can be imposed is the value of the damage. The beams having been placed in the building without the defense having been given an opportunity to inspect them, test them, there is just no method by which the defense can obtain any evidence to present for the purpose of defending the ease and submitting evidence to the jury of either the difference of the value of the beams before and after the incident or any other measure of what damages may have been, and that this is in fact so prejudicial to the defendants in this case that I think it would constitute a denial of due process on their part to have to go to trial without that ability. IT IS ORDERED granting the defendants’ motions to dismiss without prejudice to the State to refile either as a class six felony, if the State takes that position that that means the value of the property as opposed to amount of damage or certainly as a class two misdemeanor where the issue of the amount of the damage is not essential. The leading case regarding suppression of evidence is Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In that case, the prosecution suppressed a confession by Brady’s co-defendant in Brady’s separate trial. The Supreme Court stated: We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution .... A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant.... Id. at 87-88, 83 S.Ct. at 1196-97,10 L.Ed.2d at 218-19. There is no Brady issue present here, however, as there is no contention that the prosecution suppressed any evidence. Nevertheless, in State v. Hannah, 120 Ariz. 1, 583 P.2d 888 (1978), the Arizona Supreme Court upheld the dismissal of a felony charge upon the inadvertent destruction of evidence seized by the Tucson Police Department at the scene of the alleged arson. The factual question was identification of the defendant. The court determined that because the police made no attempt to examine the evidence for fingerprints, and because it could not be determined whether exculpating evidence would have been developed, the trial court could conclude that the defendant had been denied due process by the negligent destruction of the seized evidence. The court reiterated its holding in State ex rel. Hyder v. Hughes, 119 Ariz. 261, 580 P.2d 722 (1978): We concluded that where there has been a loss of evidence or destruction of evidence we would reverse a defendant’s criminal conviction if (1) bad faith or connivance on the part of the State can be shown or (2) a defendant was prejudiced by loss of evidence, ... 120 Ariz. at 2, 583 P.2d at 889. The State first argues on appeal that this case should not have been dismissed because there was no State participation in the unavailability of the evidence. We need not address this issue, however, because it is clear that the basis for the dismissal was prejudice to the defendants, rather than any impropriety on the part of the State. During the hearing on the motion to dismiss, the court stated: The Court does not find the issue here is bad faith. The issue is prejudice, pure and simple. If there is prejudice to the defendant that is so substantial that he can not go forward with his case, then relief will be the relevant issue. The issue is solely prejudice.... The State next argues that the defendants were not prejudiced by their inability to examine the damaged beams because there is abundant secondary evidence to establish the amount of damage. Such evidence includes twenty color photographs, samples of the acid thrown, the testimonial evidence of John Colton as to the damage he observed to the beams just hours after the acid was thrown on them, and cost sheets reflecting the labor, materials, and supervision involved in actual repair of the damaged beams. The defendants’ response in support of the motion to dismiss is that the failure of the police to make an accurate record of the extent of the criminal damage allegedly caused by the defendants, coupled with their failure to impound and secure some portion of the alleged damaged materials for inspection and testing by the defendants, deprived the defendants of their due process right to a fair trial. The defendants argue that they are thereby precluded from offering evidence regarding the reasonable value of the alleged criminal damage, an essential element of the class five felony charge. Their argument continues that there is no evidence by which the exact degree of damage caused by the sulphuric acid may be determined. The burden of proving damages sufficient to obtain a conviction for the class five felony charge against the defendants is on the State. The State is necessarily limited to the use of secondary evidence to prove the extent of damage. The defendants will have access to the same secondary evidence for purposes of refuting the extent of damages claimed by the State. Whether the evidence is sufficient to sustain a conviction is a matter which must await trial. If a sufficient prima facie case is made, the jury must determine whether the evidence offered by the State proves beyond a reasonable doubt that the damages exceeded $1,500.00. If the evidence is insufficient to prove the extent of damages exceeded $1,500.00, defendants cannot be convicted of a class five felony. We therefore hold that the weakness or incompleteness of damage evidence does not bar proof or disproof of the amount of damage incurred in this case and does not warrant dismissal of the indictment prior to trial. By the same token, we intend no decision, one way or the other, as to whether the State’s proof, when it is offered at trial, will constitute a sufficient prima facie case as to a class five felony justifying its submission to the jury. Finally, in State ex rel. Hyder v. Hughes, supra, the Supreme Court of Arizona explained that in cases such as this, where a showing of prejudice is lacking, an accused is protected by giving a “Willits instruction” which provides: If you find that the plaintiff, the State of Arizona, has destroyed, caused to be destroyed, or allowed to be destroyed any evidence whose contents or quality are in issue, you may infer that the true fact is against their interest. State v. Willits, 96 Ariz. 184, 187, 393 P.2d 274, 276 (1964). The giving of such instruction would place the jury in the position of weighing the explanation [for the unavailability of the evidence] and, if they believed it was not adequate, an inference unfavorable to the prosecution could have been drawn. This in itself could create a reasonable doubt as to the defendant’s guilt. Id. at 191, 393 P.2d at 279. Similarly, an inference unfavorable to the prosecution in this case could create a reasonable doubt as to the extent of damages claimed by the State. For the foregoing reasons, the order dismissing this case is reversed, and the matter is remanded for trial. OGG, P. J., and CORCORAN, J., concur. . A.R.S. § 13-1602(B)(2) provides: Criminal damage is a class 5 felony if the person recklessly damages property of another in an amount of one thousand five hundred dollars or more but less than ten thousand dollars. . Colton’s decision to repair the damaged beams rather than order new ones was prompt ed partly by the “Penalty-Bonus” contract with Payless which provided for a $300 per day penalty if the construction was completed later than July 3, 1980, and a $200 per day bonus if finished early. The beams had been made to specification for the Payless buildings. To order new ones would have been expensive and would have taken 4 to 6 weeks for delivery.

OPINION HOWARD, Judge. Appellant was found guilty by a jury of violating A.R.S. § 13-1802(A)(5) which provides: “A. A person commits theft if, without lawful authority, such person knowingly: ****** 5. Controls property of another knowing or having reason to know that the property was stolen; ...” (Emphasis added) Appellant was apprehended by the police in a stolen automobile. The arresting officer testified that appellant was intoxicated. At trial, appellant requested the trial court, pursuant to A.R.S. § 13-503, to instruct the jury that it could consider the fact of his intoxication in determining whether he committed the crime “knowingly”. The trial court refused. Citing our case of State v. Robles, 128 Ariz. 89, 623 P.2d 1245 (1981), appellant contends the trial court erred in refusing his instruction. We agree the trial court erred, but not for the reason asserted by appellant. Prior to April 23, 1980, A.R.S. § 13-503 stated: “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of any particular culpable mental state is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act.” (Emphasis added) A.R.S. § 13-105(5) states that the phrase “culpable mental state” encompasses, inter alia, “intentionally” and “knowingly”. The word “knowingly” is defined in subpara-graph b as meaning: “. . . [W]ith respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists.” The trial court refused the instruction because A.R.S. § 13-503 was amended prior to the commission of the instant offense. The new statute reads: “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act.” (Emphasis added) We believe A.R.S. § 13-503, as amended, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by relieving the state of the necessity of proving an element of the crime charged. The due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Where the criminal statute involved requires a certain state of mind such as “malice” or “purposely or knowingly”, the state cannot shift the burden of proving these states of mind to the defendant. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). A fortiori, it cannot eliminate the necessity for proving a state of mind essential to the commission of the crime. The state here must prove that the crime was committed “knowingly”. However, it is not necessary to do so if the accused is intoxicated because A.R.S. § 13-503 does not apply to crimes where the required state of mind is “knowingly”. It is therefore obvious that the statute is unconstitutional. The dissent opines that since the state still has the burden of proving the act was done “knowingly”, there is no constitutional infirmity. We are unable to agree. If intoxication cannot be used to show the accused did not act with the required culpable state of mind, then any evidence of intoxication would be inadmissible, and if such evidence were introduced, the state would be entitled to an instruction that such evidence cannot be considered by the jury. The jury could thus convict an accused who was too intoxicated to knowingly commit the crime. To say that the state still has the burden of proving the issue of knowledge is a “Catch 22”. In view of our disposition of this matter, we need not discuss the other issue appellant has presented for review. Reversed and remanded for new trial. BIRDSALL, J., concurs.

HAYS, Justice. This is an action brought by appellants as taxpayers of Arizona to enjoin payment of money by the Arizona Board of Regents under a contract alleged to be illegal in violation of A.R.S. § 34-201. The appellants brought suit pursuant to A.R.S. § 35-213. The trial court granted summary judgment for the Board of Regents. We affirm the summary judgment in favor of the Board of Regents, although we reach this result for reasons different from those of the trial court. We have jurisdiction pursuant to A.R.S. § 12-2101 and 17A A.R.S. Rules of Civil Appellate Procedure, rule 19(e). The appellants seek to enjoin expenditures by the Board of Regents in connection with the installation of a new sound system at Grady Gammage Auditorium on the theory that such expenditures violate the Arizona force account law. Section 34-201(C) requires that construction and alteration of any public building, exceeding five thousand dollars in total cost, be advertised for bids by private contractors rather than done by the state’s own employees. It is uncon-troverted that the labor for the installation of the sound system was done by employees of Arizona State University and that the cost of the project exceeded five thousand dollars. In accordance with the statutory requirement of A.R.S. § 35-213, the appellants requested the attorney general of the state of Arizona to enjoin the expenditure of funds on this project. The attorney general declined appellants’ request and appellants subsequently filed this suit. Evidence at the preliminary injunction hearing established that the money spent on the sound system originated from either of two “local” sources, the Gammage Auditorium Account which is funded from student registration and tuition fees and ticket sales, and the Facilities Development Account, also funded from student fees. The fees retained in these “local” accounts are not reported to the state legislature. The trial court held that an action will not lie under A.R.S. § 35 — 213 to recover allegedly illegal expenditures from funds to which the plaintiffs have not contributed. The court apparently considered Smith v. Graham County Community College Dist., 123 Ariz. 431, 600 P.2d 44 (App.1979), to be dispositive. In Smith, the plaintiffs, the Associated General Contractors of America, sought to enjoin the Community College District from making alterations of the roof of a campus building without having the work done by a licensed contractor. The plaintiffs contended that the college district had failed to comply with the Arizona force account law. The Court of Appeals held that because the plaintiffs were not taxpayers in the community college district they did not have standing to bring the action. “Because the theory allowing the taxpayer to maintain a suit is based upon his equitable ownership of the fund and his liability to replenish the public treasury for an insufficiency caused by misappropriation, we believe that the connection of the Associated General Contractors of America with the community college district is too remote.” 600 P.2d at 46. Appellants urge us not to read into A.R.S. § 35-213 this common-law taxpayer standing requirement for maintaining a suit to challenge expenditures from state funds. We find that Smith is distinguishable and not controlling because that action was not brought under A.R.S. § 35-213. The common-law requirement that the plaintiff contribute to the fund which he challenges is expressly dispensed with by the language of A.R.S. §§ 35-212 — 213. Arizona Revised Statutes, § 35-212, gives the attorney general of Arizona the power to bring an action in the name of the state to enjoin the illegal payment of state money or to recover such money if already paid. Arizona Revised Statutes, § 35-213(A), provides that “[i]f for sixty days after request made by a taxpayer of the state in writing, the attorney general fails to institute such an action as provided in § 35-212, any taxpayer of the state may institute the action in his own name and at his own cost with the same effect as if brought by the attorney general.” These statutes authorize any taxpayer to bring an action, after making the proper request upon the attorney general, to enjoin the illegal payment of state money. There is no requirement that the plaintiff contribute to the challenged fund. The plaintiff acquires his standing directly from the attorney general’s right to bring the action. The only prerequisite to the taxpayer’s standing is that the money in question be “state money.” A taxpayer’s action does not lie under A.R.S. § 35-213 where the funds from which the challenged payments are made are not state money. The issue which we consider is whether the “local” accounts from which payments were made for the installation of the sound system at Grady Gammage Auditorium are “state money” within the meaning of A.R.S. §§ 35-212 — 213. Because A.R.S. Title 35, Ch. 1, Article 6, does not provide us with a definition of “state money,” we must deduce the meaning from the context of the statutes. Statutory construction requires that the provisions of a statute be read and construed in context with the related provisions and in light of its place in the statutory scheme. Romero v. Stines, 18 Ariz.App. 455, 503 P.2d 413 (1972). We are persuaded by appellees’ interpretation of the statutes and hold that the “local” accounts are not “state money.” A statutory distinction between funds appropriated by the legislature and other funds of the university is apparent throughout A.R.S. Titles 15 and 35. A.R.S. § 35— 212 states that the money recovered in the action shall be “paid into the state treasury to the credit of the fund from which the payment was made.” This phrase implies that “state money” is money in the state treasury credited to a particular fund therein. A.R.S. § 35-321(6) defines “state monies” as “all monies in the treasury of this state or coming lawfully into the possession or custody of the state treasurer.” A.R.S. § 35-149 provides generally for the disposition by state agencies of private funds with the state treasurer but exempts university and state colleges from this provision. Finally, we cite A.R.S. § 15-1682 which gives the Board of Regents the power to retain in its treasury all fees and tuitions from student activities and services. Appellants urge us to adopt the rule that a taxpayer can maintain an action to enjoin the wrongful expenditure of state funds where the funds in question are not raised by taxation or where the plaintiffs have not in some way contributed to them. A minority of courts in this country have extended the taxpayer’s right to maintain a suit in equity where the money becomes part of the challenged funds through gift or other contribution. 131 A.L.R. 1230. We decline to consider this question because it is not properly before us. Appellants brought suit under a remedy provided by law and must comply with the prerequisites of that statute. Because the two local accounts are not “state money,” appellants do not have standing under A.R.S. § 35-213 to enjoin expenditures from these funds. We affirm summary judgment in favor of the appellees. HOLOHAN, C.J., and CAMERON, J., concur. § 35-212. Injunctive and civil remedies The attorney general, under appropriate circumstances, shall bring an action in the name of the state to enjoin the illegal payment of state money, or if the money has been paid, to recover such money plus twenty per cent of such amount and interest and costs, to be paid into the state treasury to the credit of the fund from which the payment was made.

OPINION B. MICHAEL DANN, Judge. The City of Phoenix commenced this litigation to condemn 10.92 acres of land owned by the appellees Patón for a land-fill site. Just prior to the inception of the litigation the Patons had entered into a “material sales contract” with the appellant South Bank Corporation, by which South Bank obtained the right to purchase sand and gravel “in place” on the Patons’ land. The basic issue on appeal is whether South Bank had an interest in the land for which the city was required to pay compensation in the condemnation proceeding. We have concluded that the summary judgment of the trial court against South Bank must be reversed. The land in question comprises a portion of the south bank of the Salt River as it runs through the City of Phoenix. The Patons purchased the land in 1963 for long term investment. On May 21, 1974, when the city commenced the instant condemnation proceedings, the city operated a landfill on property adjacent to the subject property. On March 19, 1974, just two months prior to the institution of the condemnation proceedings, the Patons and an agent for an undisclosed principal (South Bank) executed the “material sales contract” referred to above. Eliminating portions without critical materiality to the issues of the present case, the contract reads as follows: MATERIAL SALES CONTRACT Comes now the following named parties and for good and valid consideration hereby enter into this Exclusive Sale and Purchase Agreement for Sand and Gravel. ****** 2. That the First Party [Patons] is desirous of making the ultimate utilization of the real property to obtain the maximum income and return from this most valuable and unique parcel of real property containing a massive sand and gravel deposit. ****** 4. That First Party is desirous of entering into an exclusive agreement for the sale of the sand and gravel in place located on said property and they are not interested in engaging in the mining and manufacturing mineral aggregate at this juncture of time, further it will rent industrial space to contractors, manufacturers, etc., on the real property that is not being mined for san [sic] and gravel or being used in the manufacture of mineral aggregate and heavy contracting operations, it will also construct a temporary portable office complex that will be rented to the tenants who are renting temporary yard space from us for their operations. ****** 8. It is expressly understood that the First Party is only selling the sand and gravel in place. They are not renting and/or leasing said real property. That the Second Party [agent for undisclosed principal] is not paying a royalty to the First Party. 9. That the Second Party has no interest in the real property, save and except that they have the exclusive right to purchase the sand and gravel from said pit and they own out right all materials that they have prepaid. The party of the First Part is the owner of any and all material until the Second Party pays for the same. 10. The Second Party will buy all the material contained in said property regardless of quality. TERMS 1. The purchase price is 25$ per ton for the sand and gravel in place on said property. 2. That the Second Party will purchase a minimum of $1,000.00 worth of material in advance monthly for the term of this Agreement. 3. That after a period of 6 months (which will be necessary to set up the necessary plant facilities) the Second Party will purchase a minimum of $1,200.00 worth of material per month. Said purchase shall be made in advance and payable on or before the 10th of each month. That in the event the Second Party purchases more than $1,200.00 per month, it will pay for the same on or before the 10th of the preceding month. 4. The Second Party shall avail itself to all the land to conduct its mining and plant operation, without any payment for the use of the same. 5. The Second Party will conduct its mining operations of the sand and gravel pit to utilize the material to a depth of 200 feet as feasible. 6. That the First Party expressly reserves the right to possession and use and the profits from said property that is not being mined and used by the Second Party in its operations on said property. 7. That in the event the Second Party fails for a period of 6 months to make its monthly payments in advance, then and in that event the Agreement of Sale of Materials shall be canceled and voided and of not other force and effect. ****** 9. That in the event the Second Party is prevented from removing of any material that it has purchased from First Party through no fault of the First Party, that said mandatory monthly payments will be deferred until the First Party can deliver said material free and clear title to said personal property, to Second Party. That Second Party will endeavor to make up any lost monthly payments as soon as sound business practice permits. ****** 11. That the Second Party shall have no interest in the oil rights located on said property. 12. That the First Party will defend its rights to sell said material, in the event any Third Party should interfere with their property rights. ****** 15. If any other party, other than First Party, should take possession of said property preventing Second Party from removing material from said pit, for which it has paid, then and in that event the First Party is not obligated to reimburse said Second Party for any improvement. Second Parties relief is to recover from the party preventing them from removing their property. Additional facts will be referred to in connection with discussion of the specific contentions of the parties as necessary. I. STATUS OF THE CITY AS A REAL PARTY IN INTEREST The city has filed the only brief for appellees in this appeal. The Patons, however, requested and were granted leave to join in the city’s brief. Appellant has challenged the right of the city to participate in this controversy which concerns the question of whether South Bank does or does not have an interest in the property. The city argues that it has sufficient standing in the matter because of its interest in seeing to an expeditious termination of the condemnation proceedings. It concedes that the over-all value of the property would not be affected by resolution of appellant’s claim. While it might be said that the city is at most a stakeholder with no interest in the controversy between appellant and the Pa-tons, who assert competing interests in the realty (See 2 Nichols on Eminent Domain § 5.3[4] (3rd Ed. 1980)), it is not necessary for us to resolve this issue since the city’s brief has been adopted by the Patons who clearly are interested parties vis a vis appellant. Thus, the matters contained in the city’s brief are properly before us. II. DID APPELLANTS HAVE A COMPENSABLE INTEREST IN REAL PROPERTY Appellees’ principal legal contention is that the contract did not vest appellant with a legally cognizable interest in the property for which compensation was payable upon taking. We find that the more persuasive authorities are to the contrary. Appellant contends that its interest is properly classified as a profit a prendre. Appellees, on the other hand, describe appellant’s interest in various ways, ranging from a simple “license” to an “executory sale of personalty, coupled with an incidental license to dig and remove sand.” The agreement is couched in terms of a “sale of sand and gravel in place.” It in essence grants to appellant the right to come upon the land after having paid for a certain quantity of material and remove the same. It also grants to appellant the right to have mining and milling equipment on the property in furtherance of its rights under the contract. A closely analogous agreement was held to be a profit a prendre in the case of Bates Sand & Gravel Co., Inc. v. Commonwealth, 380 Mass. 933, 404 N.E.2d 81 (1980). Viewed in terms of what the agreement was designed to accomplish, the removal of portions of the real estate, it defines a classic profit a prendre arrangement. See 1 Thompson on Real Property § 135 (1980 replacement); Picchi v. Montgomery, 261 Cal.App.2d 246, 67 Cal.Rptr. 880 (1968); Sehle v. Producing Properties, Inc., 230 Cal.App.2d 430, 41 Cal.Rptr. 136 (1964); “An Analysis of Profits a Prendre,” XXV Oregon Law Review 217 (1946); Restatement of Property § 450, Comment f (1944). According its terms a reasonable construction, we think that the contract can only be legally described as creating a profit a prendre interest in appellant. The leading treatise on condemnation states that profits a prendre are interests in real property. 2 Nichols on Eminent Domain § 5.72(7). Bates Sand and Gravel Co. v. Commonwealth, supra, adopts and applies this rule. See also United States v. 145.30 Acres of Land More or Less, 385 F.Supp. 699 (W.D.La.1974), aff’d., 524 F.2d 1231 (5th Cir. 1975). United States v. 1070 Acres of Land, 52 F.Supp. 378 (M.D.Ga.1943), indicates, in dicta, a contrary view. This case is discussed below. It is true that a mere licensee has no legally cognizable interest in property upon condemnation. This is because a license is generally revocable at the will of the landowner. 2 Nichols On Eminent Domain § 5.751; Tidwell v. State ex rel. Herman, 21 Ariz.App. 3, 514 P.2d 1260 (1973). Likewise, a mere “occupant” of land without some form of permanent status has no compensable interest in the property. 2 Nichols On Eminent Domain § 5.23[7]. We would have a more difficult case than Bates but for the fact that by the provisions of the agreement here appellant was required to purchase first $1,000 and later $1,200 worth of material per month and it was also required to purchase all sand and gravel down to 200 feet below the surface. While a purely optional arrangement with respect to purchases of material might be more analogous to a license, an obligation to steadily purchase such substantial portions of the realty cannot be so regarded. We also agree with appellant that after a proper tender, it would have a prima facie right to a decree of specific performance to carry out its mining operations. Appellee has emphasized the language of paragraphs eight and nine in the main body of the agreement and also the language of subparagraph four under the “terms” set forth in Paragraph 10 of the agreement. Particular stress is laid upon the first clause of paragraph nine of the body of the contract. The statement therein that “the Second Party has no interest in the real property” is, however, qualified by the “saving and excepting” clause which immediately follows and which describes the kind of arrangement found cognizable as a com-pensable property interest in Bates Sand and Gravel v. Commonwealth, supra. Reading the contract as a whole, we find nothing destructive of appellant’s interest in the property in either of these clauses. Appellees particularly rely upon two authorities, U. S. v. 1070 Acres of Land, supra, and Saxman v. Christmann, 52 Ariz. 149, 79 P.2d 520 (1938). The basic holding in 1070 Acres was that the asserted interest in land was not sufficiently described. 52 F.Supp. at 379. The court went on to state however, in dicta, that the sand and gravel contract in question was one merely for an executory sale of personalty, coupled with an incidental license to dig and remove the sand. The focal point of the opinion for present purposes is its conclusion that when the United States exercises legal rights which render impossible the performance of a contract with another, the contract is at an end. Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773 (1923), and other war-requisition cases are cited in support of the conclusion. We reject the controlling application of the war requisition cases in the condemnation situation; the controlling question in a condemnation proceeding is whether the contract established an interest in the land. The dicta in 1070 Acres was rejected by the Massachusetts court in the Bates case. We similarly reject it here. Saxman v. Christmann involved a “special use permit” issued by the U. S. Forest Service. The question of whether the permit was a lease or a license came up in a quiet title action brought by the permittee. The permit contained various provisions for revocation. Our Supreme Court held that it was “a mere license, at most. It certainly is not a lease.” 52 Ariz. at 153, 79 P.2d at 521. There are obvious and marked differences between the instrument in Saxman and the contract in this case. These render extensive discussion unnecessary. Appel-lees rely most heavily upon the following language quoted from 17 Ruling Case Law 570 § 83: ... In general, a contract simply giving a right to take ore from a mine, no interest or estate being granted, confers a mere license, and the licensee acquires no right to the ore until he separates it from the freehold.... 52 Ariz. at 153, 79 P.2d at 522. Again, we are more impressed with the holding in the recent Bates case from Massachusetts and the rule set forth in Nichols cited above than we are with this generality stated in Saxman. Saxman is not concerned with a profit a prendre. It is solely concerned with the lease-license dichotomy. The place of the profit a prendre within this framework is the subject of discussion in 3, American Law of Mining (1960), § 14.3. The passage is sufficiently enlightening that we set it forth at length: § 14.3 PROPERLY EXECUTED AGREEMENTS TO EXPLORE AND MINE. The properly executed mining license, granting the right to go upon the land of another to explore for minerals and sever and remove them when found, i.e., to mine, need not be a license. It may be a nonpossessory or incorporeal interest in land called a profit a prendre. As such, the contract right is irrevocable and may be assignable. The mining license thus classified may constitute a freehold or a term for years, with the duration being determined by the words of the grant. Since the mining license transfers an interest in land, to be executed properly it must comply with the requirements of the statute of frauds and other local statutes dealing with transfers of real property. While the distinction between mining leases and mining licenses has been said to be that the former is exclusive in na ture, a mining license in the nature of a profit a prendre may also be exclusive. It need not be, but when granted in gross for commercial purposes, it is usually so intended. The exclusiveness which does distinguish the mining lease from the mining license lies in the classification of the lease as a possessory interest in land which carries with it the right to exclusive possession. The exclusiveness of the mining license in the nature of a profit a prendre is limited to the mining process itself. The difference is more apparent than real, for the only advantage to the lessee, as distinguished from the licensee, is the availability of possessory actions, such as ejectment. While ejectment is not within the scope of the mining licensee’s power, he may protect himself against any interference with his right to mine, and this, of course, is all that is necessary. Despite the apparent aptness of the profit a prendre as a classification for the interest created by a mining license, it is often ignored. Perhaps influenced by the designation “mining license,” and perhaps by a desire to prevent long term restraints of mining rights, the courts have tended to deal with agreements to explore and mine on an “either-or” basis— either as a mining lease or as a bare license. Thus, in Von Goerlitz v. Turner, [65 Cal.App.2d 425, 150 P.2d 278 (1944) ], the court undertook to determine whether a written agreement to mine on a royalty basis was a mining lease or a mining license. Upon concluding that the agreement did not give “exclusive possession of the premises against all the world,” the court properly decided that the agreement before it was not a lease. Then, following the “either-or” technique, the alternative finding was made and the interest designated a bare license. The sharp dichotomy, with the choice limited to either a lease or a bare license, is too narrow. A finding of an irrevocable mining license is not precluded by a determination that the licensee was not granted “exclusive possession of the premises against all the world.” Such determination merely rules out the lease. As a profit a prendre, the mining licensee’s interest is nonpossessory and need not be exclusive. Assuming an instrument which is properly executed, the next step after discarding the lease as a possibility should be to determine whether the parties intended the property interest created by their contract to be revocable or irrevocable. It is only if it was intended to be revocable that the bare license is the proper finding. If intended to be irrevocable, something other than a bare license is involved, whether it be called a profit a prendre or some other name. (Footnotes omitted; emphasis supplied.) This raises the question of whether there is an intention that the right granted be revocable. This is discussed in section five. III. TERMINATION AT CONDEMNATION Appellees next argue that appellant’s contract rights were terminated and destroyed when the city condemned the property. We take this argument to be a variation upon the theme that appellant’s interest was in the nature of a personal permit, or license. The contention has been essentially disposed of above. IV. REVOCATION There is no express provision in the contract for revocation. Nor are we able to perceive any indicia from which an intent to make revocable can be implied. The contract appears to contemplate a substantial, long-term relationship. The fact that the contract was without a defined term did not have the effect of destroying it as a valid property interest in the nature of a profit a prendre. See 1 Thompson on Real Property § 135 at 475. In the absence of a breach resulting in a termination of the contract, appellant’s rights were coterminous with appellees’ interest in the land. V. TERMINATION BY BREACH Appellees’ last argument is that the contract between them and appellant was terminated by appellant’s breach in failing to make payments for six consecutive months after an initial $1,000 was paid by appellant in April, 1974, and before the city gained legal possession of the land on January 20, 1975. Appellees rely on subpara-graph seven under the “terms” set forth in the contract. Appellant claimed frustration and, in effect, impossibility of performance by reason of the city’s actions in destroying access to and from the property. We find that an issue of fact exists in this regard, making summary judgment improper. It must be borne in mind that summary judgment is inappropriate if there is the “slightest doubt” in regard to the material facts. Peterson v. Valley National Bank, 90 Ariz. 361, 368 P.2d 317 (1962). Appellees claim that appellant never put the issue of frustrated performance before the court prior to rendition by minute entry of summary judgment on January 13, 1977. Formal written judgment was not entered until July 27, 1979. Our review of the record shows that appellant did put the issue before the court in a timely manner. Appellant argued “frustration” of the contract in its motion for partial summary judgment and in an affidavit attached to this instrument filed June 11, 1976, Francis J. Brown stated, “South Bank was prevented (frustrated) from performing under the contract because of the intervening acts of the City of Phoenix.” On November 3, 1976, appellant filed, among a great many other materials, another affidavit of Brown in support of its motion for partial summary judgment describing generally the acts of the City of Phoenix which prevented access to the property. While it is not clear that Brown was speaking from firsthand knowledge, and while this affidavit is not specific as to the dates of the various acts described, it implicitly refers to the period prior to the order granting the city possession and, considering the inferences which must be indulged in favor of a party opposing a motion for summary judgment, Livingston v. Citizens Utility, Inc., 107 Ariz. 62, 481 P.2d 855 (1971), we cannot say that the acts did not interfere with access during the relevant six month period. Appellees cite the deposition testimony of W. Francis Brown, but we do not find in it a negation of the interference and frustration asserted in the affidavits. According to the present record, appellant removed only a total of some $1,423.75 worth of sand and gravel from the land on August 8 and 9, 1974. While appellant did not pay to appellees the indicated $423.75 debt, this was incurred less than six months before the city took possession of the property. If, as appellant asserted, it could not remove sand and gravel, the purpose of the contract was obviously frustrated. Corbin on Contracts § 1356 (One volume ed. 1952). The ninth “term” under the tenth paragraph of the agreement appears to recognize a situation of this nature. In our opinion frustration was a defense to termination by breach and an issue of fact was presented in this regard. VI. CONCLUSION The judgment is reversed and the cause remanded for further proceedings consistent herewith. Subject to the triable issues relating to breach by South Bank and frustration by appellant, South Bank should be permitted an opportunity “to prove the fair market value of its interest in the land . . ., i.e., the value of the sand [and gravel] as it lay undisturbed.” Bates Sand & Gravel Co., Inc. v. Commonwealth, 8 Mass.App. 331, 393 N.E.2d at 958. HAIRE, Acting P. J., and RICHARD M. DAVIS, J. Pro Tem., concur. NOTE: The Chief Justice of the Arizona Supreme Court has authorized Judge B. Michael Dann, Maricopa County Superior Court Judge and Judge Richard M. Davis, a Judge pro tempore of a court of record to participate in this matter pursuant to Arizona Const, art. VI, §§ 3, 20. . This decision of the Supreme Judicial Court of Massachusetts in effect affirmed an earlier decision of the Massachusetts Court of Appeals reported at 8 Mass.App. 331, 393 N.E.2d 956 (1979).

HOWARD, Judge. The state has brought this appeal to challenge the juvenile court’s dismissal of its petition for adjudication of dependency in this action. We reverse and remand for proceedings in accordance with this opinion. On March 20, 1981, appellee mother took her six-year-old son to the emergency room of the Copper Queen Community Hospital in Bisbee, Arizona. He was not breathing, and was pronounced “dead on arrival” after efforts to restore life functions failed. The emergency room physician, Dr. McCleave, noted the following abnormal conditions of the boy on his initial assessment: (1) His pupils were fixed and dilated, and the corneas of his eyes were clouded over. This would indicate that the oxygen supply to the brain had been stopped long enough to cause brain damage and the eyes had been open and unblinking for a period of time. (2) His lips were chapped, and his skin was dry and cracked. This suggested that dehydration had been going on for some time. (3) There was foul-smelling fecal matter in the boy’s mouth which is indicative of prolonged or severe vomiting. (4) The most remarkable irregularity, however, was the boy’s abdomen which the doctor described as being the size of a basketball. The medical examiner, Dr. Froede, determined in a autopsy that the cause of death was “septicemia and peritonitis secondary to perforation of a strangulated inguinal hernia.” This occurs when part of the intestine pokes out through a defect in the abdominal wall and gets caught. Intestinal obstruction may then occur which will cause a decrease in blood supply to the area, tissue death, and eventually rupture of the bowel. Digestive material then pollutes the abdominal cavity causing infection which eventually invades the bloodstream and the whole abdominal area. This condition leads to cardiac arrest and death. In the very early stages of this process, the hernia may be “reduced” or pushed back into the abdominal cavity without surgery. If surgery is required, it is initially fairly safe and simple unless performed late in the progression of symptomatology. The various symptoms which would become manifested during this progression would include acute pain, steady dehydration, fever, persistent vomiting, unusual abdominal swelling and finally shock, coma, and death. Both doctors stated that estimating the actual duration of the boy’s illness was very difficult, but the malady could have lasted weeks depending on the nature of the intestinal obstruction. The boy never attended school after March 3, 1981. Because of the circumstances surrounding the boy’s death, Dr. McCleave notified the Arizona Department of Economic Security concerning the case, and two DES caseworkers visited appellee-parents’ home in Miracle Valley on March 31, 1981. At that time the mother told the caseworkers that she had not obtained medical help for her deceased son, would not seek medical help for any of her other children, and would not allow anyone else to take the children to a doctor because she believed miracles would adequately safeguard her children. DES thereafter filed a petition in the Superior Court of Cochise County to have appellees’ seven children adjudged dependent children. This petition did not seek to remove the children from their parents’ custody. It sought only to insure that proper medical care would be provided for the surviving children. A hearing on this petition was held on July 23, 1981, to determine if the children were, in fact, “dependent children” as defined in A.R.S. § 8-201(10). At the close of the state’s case, a motion to dismiss was granted following findings of fact that the children were well fed, well clothed, attended school with regularity and had a home which was clean and well kept. While this may be true, we disagree with the court that there was insufficient evidence in this case for a finding of dependency under Arizona statutes. As we read the statutes, every child in Arizona is entitled to a home where the parent or guardian is willing to seek medical attention for him should he become sick or injured. When the mother in this case states that she will not seek medical attention for her children should they become ill, she is saying that she is unwilling to exercise reasonable care as required by A.R.S. § 8-201(2) and (10), and the state has a right to intervene. According to A.R.S. § 8-201(10) a dependent child means a child who is adjudicated to be: “(a) In need of proper and effective parental care and control and has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control. (b) Destitute or who is not provided with the necessities of life, or who is not provided with a home or suitable place or abode, or whose home is unfit for him by reason of abuse, neglect, cruelty, or depravity by either of his parents, his guardian, or other person having his custody or care.” (Emphasis added) Child abuse is defined in A.R.S. § 8-201(2) as: “... the infliction of physical or mental injury or the causing of deterioration of a child and shall include failing to maintain reasonable care and treatment or exploiting or overworking a child to such an extent that his health, morals or emotional well-being is endangered.” (Emphasis added) A fair reading of these statutes would be that they are intended to insure that children are properly cared for by their parents. This care encompasses a parental duty to provide children with the necessities of life, including medical attention. State v. Williams, 4 Wash.App. 908, 484 P.2d 1167 (1971); Matthews v. State, 240 Miss. 189, 126 So.2d 245 (1961); 67A C.J.S. Parent & Child § 70 (1978). Indeed, the Supreme Court has recently stated that among parental obligations in regard to their children is “a ‘high duty’ to recognize symptoms of illness and to seek and follow medical advice.” Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). The Court noted that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. Parham v. J. R., supra. See also Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). It is important that the passive conduct involved here not be confused with the absence of abuse. In this case, not doing something (failing to maintain reasonable care by not providing medical attention) is abuse. The standard used is “at what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote it recovery, deem it necessary to call in the services of a physician.” State v. Williams, supra; People v. Edwards, 42 Misc.2d 930, 249 N.Y.S.2d 325 (1964). According to the past acts and statements of the mother, we know that that time will never come for her children, and therefore we know that should they become injured or ill and in need of medical services, they will be abused. The problem involved here seems to be the fact that medical attention, unlike other necessities such as food and shelter, is needed only on a sporadic basis. Certainly if a parent would state that she intends to withhold food or shelter from her children, and it is demonstrated that the parent had done so in the past with a death occurring, the state would have a right to intervene. Indeed, when a child is in need of continuous medical attention and the parents have failed to provide medication or to follow prescribed treatments, the courts have intervened. A court permanently removed three children from a home in In re Welfare of Price, 13 Wash.App. 437, 535 P.2d 475 (1975) without any signs of brutality for failure to provide medication and attention to two children who had primary tuberculosis. The third child had no disease process. In People in the Interest of D. K., 245 N.W.2d 644 (S.D.1976) a court removed a child with a congenital defect from a home based on the fact that he was without the care necessary to his health and welfare, that his mother failed to provide for his special medical needs, and that his mother did not feed him the diet prescribed by his doctor. This, according to the court, constituted lack of proper parental care absent any finding of abuse. See also Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978), where a court ordered that a child with leukemia should receive chemotherapy treatments overriding a mother’s desire to rely on diet manipulation and prayer. Appellees argue that the state has not proven that any of the children are in a life-threatening situation concerning their health, and therefore the state may not intervene. First we note that none of the children have been examined to find out what the state of their health may be. Second, it is unclear that children who may at any time become sick or injured without any provision for medical assistance are not in jeopardy health-wise. And third, assuming arguendo that their lives are not immediately in danger, it seems clear that it is unwise to allow intervention only after a child has been seriously injured as a result of inadequate living conditions or supervision. The statutes speak in terms of “reasonable care” of “health” and “emotional well-being” not emergency situations or life and death situations only. In Matter of Gregory S., 85 Misc.2d 846, 380 N.Y.S.2d 620 (1976), a school doctor found the oldest of three children to be suffering from a hernia, cavities, and “fractured teeth”. The mother refused to permit medical or dental care of the child or to permit medical or dental examination of the other children on grounds of religious beliefs. The court found that the mother’s refusal constituted neglect and ordered medical and dental examinations of each child with further action to be taken by the court upon receipt of examinations. We do not find that order or a similar one in this case to be beyond the court’s authority. Other cases affirm this principle that courts have power to order medical treatment over parental objections even when a child’s life is not immediately endangered. Failure to obtain psychological help for a child as recommended by a guidance counselor, social worker and psychiatrist was found to constitute neglect. Matter of Ray, 95 Misc.2d 1026, 408 N.Y.S.2d 737 (1978). See also In re Carstairs, 115 N.Y.S.2d 314 (Dom.Rel.Ct.1952). Three children who had voluntarily been made dependents of the state had tonsils and adenoids removed despite their father’s religious objections in In re Karwath, 199 N.W.2d 147 (Iowa 1972). There was no showing of a life-threatening situation. In a special affirmance of a lower family court’s decision, the New York Court of Appeals held that it was not necessary that there be a threat to the “physical health or life of the subject or to the public in order for courts to intervene.” In so doing it ordered surgery to correct a massive disfigurement of a child which posed no medical emergency or threat. In re Sampson, 29 N.Y.2d 900, 328 N.Y.S.2d 686, 278 N.E.2d 918 (1972). See also In re Rotkowitz, 175 Misc. 948, 25 N.Y.S.2d 624 (1941) where a court ordered surgery to correct a foot deformity induced by poliomyelitis. The court noted that it had “the power to require that children be examined psychiatrically, tested psychologically and physically examined so that the Court may be aided in determining what is best for the child.” In this case the operation was considered necessary to prevent further deformity and immobility and for correction of the condition. Appellees also argue that the treatment or nontreatment of the deceased child should have no bearing on the state’s dependency proceeding involving appellees’ other children who have not been shown to have been abused. We disagree. In the case before us, the mother has stated that she did not seek any medical attention for her deceased son and there is testimony that his condition was such that had attention been sought for his hernia problem, he would have survived — perhaps even without surgery or medication. The mother states that she will not seek medical care in the future. Because of her prior actions, we can believe this statement. The better-reasoned approach in this situation would seem to be that parents cannot have the privilege of inflicting abuse upon each of their successive children before the children can be protected by the state. In the Matter of T. Y. K., 598 P.2d 593 (Mont. 1979). In such child protective proceedings, it is the function of the court to determine not only whether neglect or far more serious abuse exists, but whether it is likely to exist in the future. A court sitting as parens patriae cannot be limited to existing or past conditions. In re Maria Anthony, 81 Misc.2d 342, 366 N.Y.S.2d 333 (1975); In re Baby Boy Santos, 71 Misc.2d 789, 336 N.Y.S.2d 817 (1972); In re J., 71 Misc.2d 47, 335 N.Y.S.2d 815 (1972). This does not only apply to physical abuse cases. A mother was found guilty of neglect when she delayed twelve hours before taking a child with a head injury to a hospital. Because of this, and the use of unqualified babysitters, the court in In re M., 78 Misc.2d 407, 357 N.Y.S.2d 354 (1974), paroled the injured child and a four-year-old brother to the care of the maternal grandparents with visitation rights. In an older case, a father refused to obtain medical assistance for his wife and three children who died of illnesses within less than seven months prior to the hearing. The state removed the two surviving children from the home upon testimony of the father that “should they become ill and he have opportunity, he would be as likely to apply the treatment [“Bannscheidt” system] to them as he was to those which are dead, and as unlikely to call any physician, of any school, qualified for his business. His own testimony shows no change in his mind as to the medical treatment of his family.” Heinemann’s Appeal, 96 Pa. 112, 42 Am.Rep. 532 (1880). See also In re Welfare of Price, supra, and in Matter of Gregory S., supra. It is unknown at this time if the surviving children have any chronic disease such as tuberculosis or any congenital defects or even if any of them have hernias, as did their brother, which could also become strangulated. It does not seem unreasonable for the state to intervene presently to prevent possible disaster in the future. Lastly, it is appellees’ contention that their beliefs concerning medical care and healing by miracles are constitutionally protected from state intervention. While it is unclear from the record exactly what appel- lees’ religious beliefs are, it is clear that the free exercise clause does not guarantee parents complete control, free of all state authority, merely because the parent asserts that his control is based on religion. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), sets out the often quoted definitive statement of law in this area: “But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty, [citations omitted] And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control.... Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience.... The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.... ****** ... Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” (Emphasis added) It must also be noted that the particular religious belief of a person provides no defense in prosecution for breach of a duty imposed by statute to furnish necessary medical attention to a child. Such statutes make it the duty of those charged with the care of a child to furnish medical attendance to the child, regardless of their religious belief, as the statutes are directed to the acts and not the beliefs of the individuals. Annot. 12 A.L.R.2d 1047 at 1050 (1950). People v. Arnold, 66 Cal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515 (1967); State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962), cert. den. 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124. Many of the cases where states have intervened over the religious objections of parents involve blood transfusions. See Harley v. Oliver, 404 F.Supp. 450 (D.C.Ark. 1975); Jehovah’s Witnesses In the State of Washington v. King County Hospital, 278 F.Supp. 488 (D.C.Wash.1967), aff’d. 390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158 (1968); Muhlenberg Hospital v. Patterson, 128 N.J. Super. 498, 320 A.2d 518 (1974); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952). There are others, however, which involve less immediately threatening situations. A Texas appellate court allowed the state to intervene when it was determined that a child with possible rheumatoid arthritis needed diagnostic tests, medical observation and possibly medical treatment. This was over the mother’s objection due to her faith in divine healing and in the power of religion to overcome all physical ailments and disease. Mitchell v. Davis, 205 S.W.2d 812 (Tex.App.1947). See also In re Karwath, supra; In re Sampson, supra; 52 A.L.R.3d 1118 (1978). We reverse and remand this case for proceedings in accordance with this opinion. BIRDSALL, J., concurs.

FELDMAN, Justice. The action arises out of a complaint filed by plaintiff-appellee, Western Coach Corporation (Western), against defendants-appellants, Marvin and Carole Roscoe (Roscoe, Jr.), and J. E. and Florence Roscoe (Roscoe, Sr.). Western sought recovery of sums allegedly paid by it as a result of the Roscoes’ failure to perform their obligations under a contract for the purchase of a mobile home. The case was tried before a jury, but at the end of defendants’ case, the trial court directed a verdict in favor of the Roscoes. Western moved for a new trial, the motion was granted, and the Roscoes appeal from that order. We have jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S. The transaction which gave rise to this case commenced with Roscoe, Jr.’s purchase of a mobile home from Western Coach by a retail installment contract dated July 8, 1971. The purchase price was $21,736. As part of the transaction, Roscoe, Sr. agreed to guarantee the buyer’s performance. On the same day, Western assigned all the seller’s rights under the contract. By various intermediate assignments, those rights were ultimately assigned to Delta Investment Company (Delta). As part of the transfer of the seller’s rights, and unknown to the Roscoes, Western guaranteed Roscoe, Jr.’s performance to the assignee of the seller’s interest. Roscoe, Jr. eventually sold the mobile home to a party named Love, and Love then sold it to Chambers. On each occasion, as required by the contract, the holder of the seller’s interest in the contract consented to the transfer of the buyer’s interest, each new transferee of the buyer’s interest assumed the obligation to perform, and each transferror agreed to remain liable as a “primary obligor.” In 1977, Chambers defaulted on the payments, and Western repossessed the vehicle at Chambers’ request. According to Western, when it repossessed the mobile home from Chambers it discovered that the vehicle had been vandalized, stripped of its furnishings and otherwise damaged. After taking possession, Western towed the mobile home to its sales lot, where it was repaired and refurbished. In addition, Western made the delinquent payments on the mobile home and paid back taxes which had accumulated on the home. After proper notice, Delta sold the vehicle at a public sale and the proceeds were applied to the balance owing on the purchase contract. Western then instituted this action against the Roscoes to recover the sums it claims to have expended on their behalf. The sums Western claims to have advanced for the Roscoes’ benefit fall within the following categories: 1. Installment payments made by Western on behalf of Roscoe, Jr. to the holder of the seller’s interest in the contract in which Roscoe, Jr. was the original buyer and Roscoe, Sr. was a guarantor. 2. Back taxes paid on the mobile home. 3. Cost of towing, moving and storing the mobile home after Chambers notified Western to retake possession. 4. Cost of refurbishing the mobile home and repairing the damage to it. 5. Attorney’s fees and court costs of the action against Roscoe. The trial judge originally granted the motion for a directed verdict because he believed that Western had failed to present sufficient evidence to support either a claim for indemnification or one for unjust enrichment. Subsequently, as a result of further legal argument, the trial judge determined that he had erred by granting the Roscoes’ motion. On appeal, the Roscoes contend that the original order granting the motion for a directed verdict was correct, so that the trial court erred when it subsequently set aside that order and granted Western’s motion for a new trial. We disagree. After reviewing the record, we find that the trial court’s final determination was correct. The Roscoes were entitled to a directed verdict only if Western had failed to introduce sufficient evidence to sustain a verdict upon the theory of indemnification or upon that of unjust enrichment. Viewing the evidence, as we must, in a light most favorable to the plaintiff, Eaton Fruit Co. v. California Spray-Chemical Corp., 103 Ariz. 461, 463, 445 P.2d 437, 439 (1968), we find that the evidence adduced at trial was sufficient to sustain a verdict on Western’s behalf. I. DEFAULTED PAYMENTS — REIMBURSEMENT AND CONTRIBUTION A. Roscoe, Jr. The Roscoe, Jrs. were the principal obligors for performance of the buyers’ obligations of the contract. Western was a guarantor of their performance. Western’s suit against the Roscoe, Jrs. for reimbursement of payments made under the retail installment contract was based on the theory that a guarantor who has paid his principal’s debt is entitled to reimbursement from the principal. This is a correct statement of the law. See Dykes v. Clem Lumber Co., 58 Ariz. 176, 180, 118 P.2d 454, 455 (1941); Western Coach Corp. v. Rexrode, 130 Ariz. 93, 96, 634 P.2d 20, 23 (App.1981). See generally 38 Am.Jur.2d Guaranty § 127 (1968). The trial judge apparently believed that in order to recover under this theory Western had to prove that the Roscoe, Jrs. had agreed that Western would act as guarantor. This element, however, is not necessary in order to establish a right to subrogation. The principal is liable to the guarantor even though the contract of guaranty was executed at the request of the creditor and without the knowledge of the debtor. See Western Coach Corp. v. Rexrode, 130 Ariz. at 97, 634 P.2d at 24; 38 Am.Jur.2d Guaranty § 127 at 1136-37 (1968). Therefore, when Western introduced evidence at trial to prove that it was a guarantor and had paid its principals’ obligation, it was entitled to have its reimbursement claim submitted to the jury for decision. Accordingly, it was error for the trial judge to direct a verdict in appellants’ favor on this issue. The subsequent grant of a new trial was legally correct. B. Roscoe, Sr. Western’s suit against the Roscoe, Srs. was based upon the theory that as co-guarantors under the retail installment contract, the Roscoe, Srs. were liable to contribute a pro rata share of the amount that Western was required to pay under the installment contract. This is a correct theory of law. Where two or more persons [e.g., Western and Roscoe, Srs.] have bound themselves as coguarantors, each of them, as be tween themselves, is required to bear a ratable proportion of the amount for which they are liable under the contract of guaranty. In the event one has paid more than his share of the sum, he is entitled to demand contribution from the other or others and may maintain suit to enforce the right. 38 Am.Jur.2d Guaranty § 128 at 1137 (1968) (footnotes omitted). See also Restatement of Security § 149 (1941). To establish its right to contribution under this theory, Western produced evidence to show its status as guarantor, Roscoe, Srs.’ status as guarantors, and that Western had made payments under the installment contract in an amount greater than its pro rata share. Thus, there was sufficient evidence in the record to establish a prima facie right to contribution from Roscoe, Sr. to Western. Again, therefore, the trial judge erred when he originally directed a verdict in favor of Roscoe, Sr., and the subsequent grant of a new trial was correct. C. Roscoe, Jr. and Sr. — novation issue. Appellants contend that the evidence presented at trial establishes that a novation occurred when the mobile home was sold to the Loves, thus releasing both the Roscoe, Jrs. and their guarantors from liability under the installment contract. Therefore, appellants argue, when Western made the default payments to the bank it acted gratuitously and is not entitled to reimbursement. We recognize that if a novation had in fact occurred, both the Roscoe, Jrs. and their guarantors would have been released from liability under the retail installment contract: “Novation may be defined as ‘the substitution by mutual agreement of one debtor or of one creditor for another, whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one which is thereby extinguished.’ ” Steele v. Vanderslice, 90 Ariz. 277, 284, 367 P.2d 636, 640 (1961). However, to constitute a valid novation, there must be an extinguishment of a previously valid obligation and an agreement of all parties to a new, valid contract. Dunbar v. Steiert, 31 Ariz. 403, 404, 253 P. 1113, 1114 (1927); United Security Corp. v. Anderson Aviation Sales Co., 23 Ariz.App. 273, 275, 532 P.2d 545, 547 (1975). The novation agreement may be express or implied. Dunbar v. Steiert, 31 Ariz. at 405, 253 P. at 1114. In this case, there was clearly a factual question whether the Roscoe, Jrs. had been released from their obligations under the retail installment contract when they sold the mobile home to the Loves. Mrs. Roscoe, Jr. testified at trial that it was her understanding that their obligation was extinguished when the Loves agreed to assume the payments under the contract. On the other hand, Max Morgan, President of Western, testified that he had explained to the Roscoes that even though they sold the mobile home to the Loves, they remained liable. In addition, Western introduced into evidence the consignment agreement whereby the Roscoe, Jrs. gave Western the power to sell the mobile home on their behalf, and the assumption agreement pursuant to which the Roscoes sold the mobile home to the Loves. Both of these documents contain clauses which state that nothing in the agreement alters the original purchasers’ liability under the original installment contract. Since there was a factual question whether a novation had occurred, the Roscoes were not entitled to a directed verdict on that basis. D. Roscoe Jr. and Sr. — implied surety-ship issues. In the alternative, the Roscoes seem to contend that, as a result of the sale from Roscoe, Jr. to Love, the Loves became the principal obligors on the debt by implication of law, so that, as between the parties to that sale, the Loves were principal obligors and Roscoe, Jrs. were sureties. See A. Stearns & J. Elder, The Law of Suretyship § 2.3, at 10 (5th ed. 1951); Restatement of Security § 83(c) (1941). Arguably, then, when the holder of the seller’s interest learned of the transaction and of Roscoe, Jrs.’ implied suretyship relation with Love, it was legally required to refrain from doing anything which would adversely affect Roscoe, Jr.’s rights as surety by either impairing security for payment of the debt or the ability of the principal obligor to pay that debt. See Westinghouse Credit Corp. v. Wolfer, 10 Cal.App.3d 63, 88 Cal.Rptr. 654, 657 (1970); Restatement of Security, supra, § 83, comment c. The Roscoes urge that when the holder of the seller’s interest consented, without the Roscoes’ knowledge, to the transfer of ownership from Love to Chambers, it committed an act which adversely affected the surety and thus released the Roscoes from their suretyship obligations. Even assuming that despite the contractual provision that they remained liable as “primary obligors,” the Roscoes were converted to sureties by reason of the sale to Love and Love’s assumption of the payments, and even assuming further that the holder of the seller’s interest was required by force of law to recognize this status, we disagree with the Roscoes’ position. By consenting to the sale from Love to Chambers, the holder of the seller’s security interest did nothing that would release Roscoe, Jr. from a suretyship obligation. The obligee’s consent to the principal’s transfer of property which is security for the debt does not ordinarily release the surety, unless the effect of the transaction is to alter the obligation, as, for example, by releasing the original obligor. See Hartford Accident & Indemnity Co. v. Federal Bond & Mortgage Co., 59 F.2d 950, 954 (8th Cir. 1932); Guide Realty Co. v. Lucas, 151 Misc. 775, 272 N.Y.S. 416, 417-18 (1934). Here, Western maintained that despite the transfer of the right of ownership in the trailer, the Loves remained primarily liable on the debt. This was established by the admission in evidence of the assumption agreement between Love and Chambers; it provided that the “ORIGINAL PURCHASER [Roscoe, Jr.] or SUBSEQUENT TRANSFEREE [Love] agrees” that he/she would not be relieved from any of his/her responsibilities under the agreement. Thus, there was evidence which permitted the finder of fact to conclude that the Roscoes’ rights against Love were unaffected by Love’s sale to Chambers, with the result that the Roscoes were not released from their obligations whether they were principal debtors or sureties for Love’s assumed performance. Cf. Restatement of Security § 122 (1941). The Roscoes were not, therefore, entitled to a directed verdict on this issue. II. UNJUST ENRICHMENT Western contends that under the theory of unjust enrichment, it is entitled to be reimbursed by the Roscoes for the sums it paid for back taxes, costs of moving and storing the trailer, and costs of repairing and refurbishing it. This claim is based on the argument that by expending such sums Western preserved the security for the debt and restored its value. Thus, when the holder of the security interest exercised its right of sale pursuant to A.R.S. §§ 44-3149 and -3150, the security brought substantially more at the sale than would have been the case had Western not expended the funds. As a result, Western argues, the debt for which the Roscoes remained liable was reduced by the application of the sales funds and it is entitled to reimbursement for the sums it spent. It is well established that a person who has been unjustly enriched at the expense of another is required to make restitution to the other. See, e.g., Harmon v. Harmon, 126 Ariz. 242, 245, 613 P.2d 1298, 1301 (App.1980); Restatement of Restitution § 1 (1937); D. Dobbs, Handbook on the Law of Remedies §§ 4.1-.2 (1973). The principle is applicable, however, only if the person conferring the benefit is not an “officious intermeddler.” See Restatement of Restitution, supra, § 2: Officiousness means interference in the affairs of others not justified by the circumstances under which the interference takes place. Policy ordinarily requires that a person who has conferred a benefit either by way of giving another services or by adding to the value of his land or by paying his debt ... should not be-permitted to require the other to pay therefor, unless the one conferring the benefit had a valid reason for so doing— ... [W]here a person has officiously conferred a benefit upon another, the other is enriched but is not considered to be unjustly enriched. Id., comment a. In this case, we find that Western has established facts from which the jury could conclude that Western was not an “officious intermeddler.” When the Chambers defaulted in 1977, Western became liable under its guaranty contract for the remaining amount due. The record does not indicate why the holder of the seller’s interest did not exercise its rights against Western in October 1977 when the default first occurred. Nor does it indicate who was responsible for making the payments due under the contract between October 1977 and January 1, 1979 when Delta purchased the contract. What is certain, however, is that at the time Western took possession of the mobile home and made the alleged repairs, the payments were in default. Thus, as of October 1977, the holder of the seller’s interest could have insisted that Western pay the debt. Had Western done so, it would have become entitled to be subrogated to Delta’s rights under the retail installment contract and to possession of the security. See 74 Am.Jur.2d Suretyship § 168 (1974). Thus, Western had an interest in seeing that the security for the debt was preserved and was therefore not an “officious intermeddler.” Cf. Beaver Flume & Lumber Co. v. Eccles, 43 Or. 400, 73 P. 201 (1903). See also Restatement of Restitution § 80, comment d (1937). We conclude, therefore, that the trial court was correct in vacating its order directing a verdict in favor of the Roscoes and in granting a new trial on all issues. The order granting a new trial is affirmed and the case is remanded for further proceedings consistent with this opinion. HOLOHAN, C. J., GORDON, V. C. J., and HAYS and CAMERON, JJ., concur. . Western also named Chambers and Love as defendants and obtained judgment by default against them. Presumably, these judgments are unsatisfied. . We assume in this section of the opinion that Western’s claim against Roscoe, Sr. is grounded on the theory that Western and Roscoe, Sr. were in the position of cosuretyship. See Restatement of Security § 144 (1941). In that event, Western’s claim against Roscoe, Sr. would sound in contribution for recovery of a pro rata share. Id. § 149. If, however, their relationship were one of subsuretyship, id. § 145, Western’s claim against Roscoe, Sr. would sound in reimbursement and Roscoe, Sr. would be liable to Western for the entire performance. Id. That issue cannot be decided on the record as it presently stands and will have to be considered at retrial of the matter. . Of course, the same argument would apply to Roscoe, Sr., who was a surety from the beginning by virtue of express contractual agreement. . Compare Seale v. Berryman, 46 Ariz. 233, 237-38, 49 P.2d 997, 999 (1935), with Shiflet v. Marley, 58 Ariz. 231, 237-38, 118 P.2d 1107, 1110 (1941). . The Roscoes have not argued, and we do not decide, whether the mere addition of an additional party who is liable for payment of the debt is such an alteration of the contract as will discharge the surety. There is some uncertainty in the law in this regard, and we have found no Arizona case on point. However, the Restatement of Security indicates that a modification which is of a type “that can only be beneficial to the surety” does not work a release. See Restatement of Security, supra, § 128(a) and comment to that clause. In this case, it does not appear that the addition of Chambers as a primary obligor could be anything but beneficial to the Roscoes, who remained surety for Love’s performance. Love was not released, nor was his obligation to pay altered. In any event, there would not seem to be a material alteration under the rule set forth in Restatement of Contracts § 435, comment (b) (1932), to which we are referred by the Restatement of Security, supra, § 127 and comment thereto. Legally, therefore, the Roscoes were not damaged by Chambers’ assumption of liability. Roscoe has not urged, and we have not considered, whether consent to Chambers’ taking of possession was a cause of impairment to the security.

OPINION OGG, Presiding Judge. The issue raised in this appeal is whether the trial court abused its discretion by granting a motion for new trial on the basis of a juror’s affidavit that the jury considered notes from a business law textbook which were not part of the evidence. Appellant Robert Kirby brought a complaint against appellees Joe X. and Sharon Rosell alleging fraud in connection with business transactions between the parties. The Rosells denied the allegations and counterclaimed for breach of contract. Following a jury trial, a verdict was returned awarding Kirby $18,000 in damages. The Rosells moved for a new trial on five grounds including an allegation of jury misconduct. The Rosells presented the trial court with a juror’s affidavit which states that the juror had consulted a business law textbook and had read to the jury certain notes including definitions of legal terms which he had taken from the textbook. The trial court granted the Rosells’ motion for new trial on the basis of this affidavit. We affirm. The trial court has authority pursuant to 16 A.R.S., Rules of Civil Procedure, Rule 59(a)(2) to grant a new trial on the basis of jury misconduct. While conceding that the trial court has such discretion, appellant argues that it was an abuse of discretion for the trial court to consider the affidavit of a juror to impeach the verdict. Arizona has long followed the generally recognized rule that testimony or affidavits of jurors will not be admitted to impeach a verdict. See, e.g., Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230 (1977); Moorer v. Clayton Manufacturing Corporation, 128 Ariz. 565, 627 P.2d 716 (App.1981). Our supreme court has stated that such evidence will not be received to impeach a verdict “where the facts sought to be shown are such as inhere in the verdict .... ” State v. Pearson, 98 Ariz. 133, 136, 402 P.2d 557, 559 (1965). Numerous exceptions to the general rule have evolved. See generally 3 Weinstein’s Evidence, ¶¶ 606[03]-606[08] (1981). Affidavits of jurors have been considered in Arizona to show an error or mistake in the judgment entered as not conforming to the findings of the jury, Southern Pacific Railroad Co. v. Mitchell, 80 Ariz. 50, 292 P.2d 827 (1956), improper acts or communication by third parties with a juror, State v. Pearson, supra, and failure by the juror submitting the affidavit to disclose upon inquiry on voir dire his bias and prejudice, Board of Trustees Eloy Elementary School District v. McEwen, 6 Ariz.App. 148, 430 P.2d 727 (1967). These exceptions to the general rule extended to matters which were not “inherent in the verdict”. See Valley National Bank of Arizona v. Haney, 27 Ariz.App. 692, 558 P.2d 720 (1976); see generally Impeachment of Jury Verdicts in Arizona, 21 Ariz.L.Rev. 821 (1979). In 1973, the Arizona Supreme Court adopted Rule of Criminal Procedure 24.1(d), which represented a new policy in Arizona, permitting the receipt of juror testimony or affidavits in limited circumstances for the purpose of impeaching the jury’s verdict. See State v. Callahan, 119 Ariz. 217, 580 P.2d 355 (App.1978); State v. Landrum, 25 Ariz.App. 446, 544 P.2d 270 (1976). Following Arizona’s adoption of a modified version of the Federal Rules of Evidence in 1977, the competency of a juror to testify about jury misconduct in civil cases has been governed by Rule 606(b), Rules of Evidence, 17A A.R.S. The Arizona rule was adopted almost verbatim from the Federal rule except that Arizona restricted its application to civil trials. Arizona’s Evidence Rule 606(b) provides: Inquiry into validity of verdict in civil action. Upon an inquiry into the validity of a verdict in a civil action, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict, or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him, concerning a matter about which he would be precluded from testifying, be received for these purposes, (emphasis added) The emphasized portion of Rule 606(b) is the exception which is the basis of this appeal. Arizona courts have not had occasion to apply Rule 606(b) to a fact situation akin to the instant case. However, since the Arizona rule is almost identical to the federal rule, we find federal case law and case law from other jurisdictions which have likewise adopted the federal rule to be instructive. lt is undisputed that the affidavit in question asserts that extraneous information was brought into the jury room. However, Rule 606(b) refers to the introduction of “prejudicial extraneous information”. Once the court finds that matters not of record were improperly brought to the jury’s attention, it must then determine whether a party was prejudiced thereby, thus requiring a new trial. See, e.g., United States ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970), cert. denied 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971); United States v. McKinney, 429 F.2d 1019, 1023 (5th Cir. 1970), cert. denied 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971); United States v. Pinto, 486 F.Supp. 578 (E.D.Pa.1980); Smith v. Brewer, 444 F.Supp. 482 (S.D. Iowa 1978), aff’d 577 F.2d 466 (1978), cert. denied 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978). See also Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). It is appellant’s position that the trial court abused its discretion in granting a new trial because the record is devoid of any showing that the effect of reading the notes to the jury was prejudicial to appel-lees. It is appellees’ position that there is a presumption of prejudice where extraneous information is presented. We are of the opinion that neither of these positions accurately reflects the proper interpretation of Rule 606(b). Federal courts have held on numerous occasions that a finding that extraneous material has reached the jury does not by itself require the granting of a new trial. The circuit courts have phrased the test for determining prejudice in a variety of ways. See, e.g., United States v. Vasquez, 597 F.2d 192 (9th Cir. 1979); United States v. Marx, 485 F.2d 1179 (10th Cir. 1973), cert. denied 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974); Osborne v. United States, 351 F.2d 111 (8th Cir. 1965). The Arizona Supreme Court recently faced this issue when prejudicial extraneous information was considered by a jury in a criminal homicide case. State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982). In Poland, the court said: Not all extraneous information is so prejudicial as to require reversal. The standard enunciated by the Ninth Circuit is that the defendant is entitled to a new trial if it cannot be concluded beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict (citations omitted). We adopt the reasonable possibility standard applied by the Ninth Circuit as an appropriate balancing test and in harmony with the standards applied in other circuits. While the Poland case and the federal criminal cases relied upon are concerned primarily with the due process rights of criminal defendants, it is our opinion that these cases do reflect the intent of Rule 606(b) and that only prejudicial extraneous matter will suffice to impeach a verdict and that proof of actual prejudice is not required. See also, Smith v. Brewer, supra; United States v. Pinto, supra. In a factual situation analogous to the instant case, the Illinois Court of Appeals discussed the showing that is required to demonstrate “prejudice” from the introduction of extraneous material in a civil case. In Heaver v. Ward, 68 Ill.App.3d 236, 24 Ill.Dec. 930, 386 N.E.2d 134 (1979), the court discussed the affidavits of two jurors that a fellow juror had diagrammed an intersection which was at issue in the case and had brought that diagram and a copy of “Rules of the Road”, an official booklet designed to instruct applicants for drivers’ licenses, into the jury room. After stating that not every instance of bringing unauthorized information to the jury would result in an error so prejudicial as to require reversal, the court stated: Defendant also contends that the examined passages in Rules of the Road were in fact consistent with both the trial court’s instructions and Illinois state law. ****** Neither the trial court nor this court need attempt to delve into the exact effect of unauthorized evidence on a particular juror.... It is enough that the unauthorized evidence directly relates to issues in the case and may have improperly influenced the verdict. 68 Ill.App.3d at 241, 24 Ill.Dec. at 935, 386 N.E.2d at 139. See also, Brown v. Johnson, 92 Ill.App.3d 1095, 48 Ill.Dec. 526, 416 N.E.2d 799 (1981). Other jurisdictions have also rejected a requirement of proof of actual prejudice to obtain a new trial in a civil case where extraneous materials relating to the issues of the case have been brought before the jury. See Stiles v. Lawrie, 211 F.2d 188 (6th Cir. 1954); Nichols v. Seaboard Coastline Railway Co., 341 So.2d 671 (Ala.1976); Simmons v. State, 222 A.2d 366 (Me.1966); Bellows Falls Village Corporation v. State Highway Board, 123 Vt. 408, 190 A.2d 695 (1963); Noll v. Lee, 221 Cal.App.2d 81, 34 Cal.Rptr. 223 (1963); Palestroni v. Jacobs, 10 N.J.Super. 266, 77 A.2d 183 (Super.Ct.1950). We find these cases persuasive and hold that extraneous material considered by the jury may be deemed prejudicial without proof of actual prejudice if it relates to the issues of the case and there is a reasonable possibility of prejudice. In the instant case, the notes read to the jury define legal terms relating to appellant’s allegation of fraud and appellees’ counterclaim for breach of contract. Additionally, one portion of the notes dealt with the requirements for proving “justifiable reliance” as an element of fraud and contained matters not included in the court’s instructions to the jury. Under these circumstances, it was not an abuse of discretion for the trial court to conclude that there was a reasonable possibility of prejudice warranting a new trial. The grant or denial of a motion for new trial is within the sound discretion of the trial court, and a reviewing court will not upset the trial court’s ruling absent a clear showing of abuse of discretion. Adroit Supply Company v. Electric Mutual Liability Insurance Company, 112 Ariz. 385, 542 P.2d 810 (1975). Appellant also argues that because the affidavit in this matter contains more than a statement describing the introduction of extraneous material, it could not be considered by the trial court. In addition to a description of the notes, the affidavit includes statements of the juror’s intent in bringing this information to the jury and his comments to his fellow jurors regarding the notes. The Nevada Supreme Court has had occasion to consider this issue in a criminal case where a juror’s affidavit contained both admissible statements and inadmissible statements under Nevada’s evidentiary rule concerning the competency of a juror’s testimony of jury misconduct. In Barker v. State, 95 Nev. 309, 594 P.2d 719 (1979), the Nevada Supreme Court held that the trial court could rely upon those portions of the affidavit which dealt with objective facts concerning information presented to the jury without considering those portions relative to the state of mind of the jurors. Likewise, we find that the trial court could properly consider only that portion of the affidavit stating that extraneous material was brought before the jury and describing the contents of that material. Further, it is presumed that the trial court considered only competent evidence in arriving at its decision. Taylor v. Mueller, 24 Ariz.App. 403, 539 P.2d 517 (1975); Norvelle v. Lucas, 3 Ariz.App. 464, 415 P.2d 478 (1966). Appellant’s final argument is that Rule 606(b) does not allow proof of jury misconduct by affidavit. Appellant further argues that a hearing should have been conducted to take the testimony of all the jurors to determine if the verdict was in fact compromised by this extraneous material. It has not been contended that the juror did not bring extraneous material into the jury room, nor has there been any assertion that the juror’s affidavit was false in any respect. In our review of the record, we find that no request was made for such a hearing. It further appears that this argument was not presented to the trial court until it was raised in appellant’s motion for reconsideration of the trial court’s order granting the new trial. When considered in this posture, we find the trial court did not err in considering the juror’s testimony as set forth in the affidavit without sua sponte ordering a further hearing. Appellant relies on a line of Arizona cases holding that it is improper to use an affidavit to impeach a juror’s verdict. Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230 (1977); Ott v. Samaritan Health Service, 127 Ariz. 485, 622 P.2d 44 (1980). It should be noted that these cases and the remainder of the Arizona cases cited for this proposition involve juror’s affidavits that attempt to impeach matters inherent in the verdict which relate to the juror’s thought processes in arriving at a verdict. It is clear from the wording of Rule 606(b) that such testimony or affidavit by a juror cannot be considered to impeach a jury verdict. However, Rule 606(b) has a specific exception allowing a juror to testify and impeach a verdict “on the question whether extraneous prejudicial information was improperly brought to the jury’s attention .... ” It is our opinion that the facts of this case fall squarely within the exception as set forth by Rule 606(b) and that the trial court properly considered the juror’s affidavit. Affidavits by jurors have been accepted as competent evidence of jury misconduct prior to the adoption of Rule 606(b). See, e.g., State v. Pearson, 98 Ariz. 133, 402 P.2d 557 (1965). We find nothing in the language of Rule 606(b) to change the law in this area. See State v. Poland, supra. Having determined that, pursuant to Rule 606(b), the trial court could properly consider the juror’s affidavit to determine whether extraneous prejudicial material was brought before the jury, and that it was not an abuse of discretion for the trial court to have granted a motion for a new trial on the basis of that affidavit, we affirm the order of the trial court granting a new trial. CORCORAN and FROEB, JJ., concur. . Appellees have raised as cross issues on this appeal the other grounds upon which they based their motion for new trial. However, because we find it dispositive of this appeal, we address only jury misconduct, the ground upon which the trial court granted appellees’ motion. . Rule 24.1(d), Rules of Criminal Procedure, 17 A.R.S., reads: Admissibility of Juror Evidence to Impeach the Verdict. Whenever the validity of a verdict is challenged under Rule 24.1(c)(3), the court may receive the testimony or affidavit of any witness, including members of the jury, which relates to the conduct of a juror, official of the court, or third person. No testimony or affidavit shall be received which inquires into the subjective mo-fives or mental processes which led a juror to assent or dissent from the verdict. . The only change in Arizona’s Evidence Rule 606(b) was the substitution of the words “in a civil action” for “or indictment”, thus making Arizona’s provision inapplicable to criminal actions. . In Poland, The Arizona Supreme Court was concerned with the application of Rule 24.-l(c)(3)(i) and Rule 24.1(d), Arizona Rules of Criminal Procedure, 17 A.R.S. These rules are concerned with extraneous evidence in the jury room and the admissibility of testimony to impeach a jury verdict. . We note that Illinois has not adopted Rule 606(b) of the Federal Rules of Evidence. However, the rationale of the federal rule is encompassed in Illinois case law, i.e., that while juror testimony concerning subjective mental processes of the jurors is impermissible, testimony about improper external influences is admissible. See People v. Holmes, 69 Ill.2d 507, 14 Ill.Dec. 460, 372 N.E.2d 656 (1978); Advisory Committee’s Note to Rule 606(b), Federal Rules of Evidence. . The governing statute in Nevada is N.R.S. 50.065, Subd. 2, which provides: Upon an inquiry into the validity of a verdict or indictment: (a) A juror shall not testify concerning the effect of anything upon his or any other jur- or’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.

CAMERON, Justice. Defendant, Frederick Francis Thomas, was convicted by a jury on 17 October 1980 of first degree murder in violation of A.R.S. § 13-1105. He was sentenced to life imprisonment without possibility of parole for 25 years. A.R.S. § 13-703. Defendant now appeals both his conviction and his sentence. We have jurisdiction pursuant to A.R.S. §§ 13^031 and 13^035. We must answer the following questions on appeal: 1. Did dismissal of a juror for cause after stating her desire not to be a juror in a ease where the death penalty might be imposed deprive the defendant of his right to an impartial jury? 2. Was testimony in this instance of a witness who had been hypnotized and who testified at trial prior to our decision in State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981) harmless error? 3. Was the defendant denied effective assistance of counsel where his counsel did not move to suppress the testimony of a witness known to have been hypnotized by the authorities? 4. Did the trial court’s instruction that all jurors must agree on a verdict constitute fundamental error? 5. Does the failure to credit pre-sen-tence incarceration against a life imprisonment term violate A.R.S. § 13-709? The facts necessary for a determination of this matter are as follows. Cord Dough-erty, Ronnie and Brenda Lindsey, and Harold Parker, the victim, were drinking wine in Patriot’s Park on 28 January 1980. Defendant struck up a conversation with the group. He eventually discussed attempting a bank robbery in Texas. They later met Mike Mickelson and together drove out to South Mountain Park to camp overnight. During the drive, Harold Parker expressed reservations about committing the robbery. At the campsite, defendant walked up a hill where he conferred privately with each member of the group except Parker. He told them they had to get rid of “the kid,” Harold Parker, because he was talking too much and could subvert the robbery plan. Defendant sent Mickelson and Brenda Lindsey to a shopping center to try to sell some stereo speakers in order to purchase more wine. While they were gone, the others gathered firewood. Defendant walked up behind the victim and stabbed him with a knife. Ron Lindsey then stabbed the victim several times with a buck knife and cut the victim’s throat. At defendant’s direction, Lindsey and Dougherty buried the body with rocks and tree limbs. The next morning, Mickelson, Dougherty and Ron Lindsey donated plasma to get money to travel. Mickelson left the plasma center through the back door without telling his companions and departed for California, where he reported the murder to the authorities. Defendant, Dougherty, Brenda Lindsey and Ron Lindsey drove to Oklahoma together in the Lindsey’s car, where the police arrested them for the murder of Harold Parker. At the jury voir dire preceding the defendant’s trial, the judge asked the jurors whether the possible imposition of the death penalty might affect their impartiality. The judge excused several jurors for cause following the inquiry. During the trial, Mike Mickelson, who had been hypnotized in order to refresh his memory after giving statements to California and Arizona police, testified against the defendant. The jury found defendant guilty of first degree murder. The trial court found that there were no aggravating circumstances and imposed a life sentence without possibility of parole for 25 years, giving defendant credit for 286 days of incarceration against the life sentence, but not against the 25 years to be served before parole eligibility. JURY IMPARTIALITY During voir dire of the jury, these exchanges occurred: “THE COURT: Are there any of you who favor the use of the death penalty in capital cases? ****** “MS. CATES: I believe it ought to be used, but I certainly would hate to be on a jury that’s going to — you know, that this will be the end result. ****** “THE COURT: Do any of you feel you would prefer not to sit on this jury, because first degree murder provides for the possibility of the death sentence? Ms. Cates? “MS. CATES: Definitely.” Ms. Cates was subsequently excused by the court. The defendant contends that his conviction must be reversed because a juror was excluded from the panel by the trial court following her responses to queries concerning the death penalty on voir dire. Defendant states that the juror’s exclusion violates his United States Constitution 6th and 14th Amendment rights, as well as rights arising under Article 2 § 24 of the Arizona Constitution, which reads in part: “§ 24. Rights of accused in criminal prosecutions “Section 24. In criminal prosecutions, the accused shall have the right * * * to have a speedy public trial by an impartial jury * * *.” To support his United States constitutional claim, defendant cites Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Witherspoon court held that a death sentence cannot be executed if the jury finding the defendant guilty was culled of veniremen stating general objections to the death penalty or expressing conscientious or religious scruples against its imposition. But the Wither-spoon court proceeded to state: “Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.” Witherspoon v. Illinois, supra, 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21, 20 L.Ed.2d at 785, n. 21. (emphasis in original) In the present case, Thomas was sentenced to life imprisonment. Thus the rule stated in Witherspoon and followed by Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), does not help defendant. Since the defendant did not receive the death penalty, the conviction stands. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); State v. Prewitt, 104 Ariz. 326, 452 P.2d 500 (1969); State v. Madden, 104 Ariz. 111, 449 P.2d 39 (1969). The defendant argues, however, that dismissal of a single juror due to express reservations about the death penalty required him to select his jury from a panel biased in favor of conviction. The argument that such a jury is “prosecution prone” has been rejected by this court in State v. Prewitt, supra, and State v. Madden, supra. As the United States Supreme Court stated in Witherspoon, supra: “The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.” 391 U.S. at 517-18, 88 S.Ct. at 1774-75, 20 L.Ed.2d at 782. (Footnote omitted) Accord Bumper, supra, 391 U.S. at 545, 88 S.Ct. at 1790, 20 L.Ed.2d at 800-01. The defendant contends further, however, that the trial court’s dismissal of a juror for cause has the effect of granting the State an additional peremptory challenge in violation of Rule 18.4(c), Arizona Rules of Criminal Procedure, 17 A.R.S. Admittedly, whenever a court excuses a juror, such removal may aid one party or the other, as the juror’s removal by the court enables the party who might otherwise be disadvantaged by the presence of the juror on the panel to conserve its peremptory challenge for another juror. However, absent some showing of abuse and resulting prejudice, Rule 18.4(a) does not require reversal so long as a party’s right to an impartial jury is not impaired. The defendant is not entitled to a particular jury, but only a fair one, State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981); State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978); State v. Hilliard, 89 Ariz. 129, 359 P.2d 66 (1961), and unless the record affirmatively shows that defendant was not tried by a fair and impartial jury, then there is no error. State v. Zimmer, 106 Ariz. 166, 472 P.2d 35 (1970). In the instant case, there is no showing that the jury was not fair and impartial and Art. 2 § 24 of the Arizona Constitution was not violated. We find no error. USE OF HYPNOTIZED WITNESS On the 5th day of February 1980, Mike Mickelson was hypnotized by a Phoenix detective after Mickelson reported to police the events surrounding the crime of which the defendant was convicted. On 15 and 16 October 1980, Mickelson testified at defendant’s trial. Defendant contends that under State v. Mena, supra, Mickelson’s testimony should have been excluded, and that his right to a fair trial was violated when the testimony was admitted. In Mena we held, among other things, that a criminal trial witness who has undergone hypnosis is incompetent to testify to post-hypnotic recall. In State v. Stolp, 133 Ariz. 213, 650 P.2d 1195 (1982), we set forth the rule that “[i]n cases where the hypnosis and subsequent testimony preceded our decision in Mena, we will not reverse if introduction of the testimony amounted to harmless error.” State v. Stolp, supra, 133 Ariz. at 214, 650 P.2d at 1196, citing State ex rel Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982). Since the defendant’s trial preceded the February 1981 filing of Mena, supra, Stolp, supra, applies. Of course, the harmless error doctrine as espoused by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), is recognized by the Arizona courts. State v. Jackson, 109 Ariz. 559, 514 P.2d 480 (1973); State v. Devaney, 18 Ariz.App. 98, 500 P.2d 629 (1972). There is a difference, however, between harmless error and non-prejudicial error. The harmless error doctrine concerns errors of a fundamental or constitutional nature, and permits such errors to be raised at any stage of the judicial process. In contrast, the nonprejudicial error doctrine concerns errors that are not of a fundamental or constitutional nature, and requires that such errors initially be challenged in the trial court in order to be preserved for appeal. “The rule is well settled in Arizona that the failure of counsel to object constitutes a waiver, and there is no basis for appeal, (citation omitted) It is, however, subject to the exception that a court should notice defects on its own initiative which affect substantial rights, principally those affecting constitutional rights, solely to prevent a miscarriage of justice.” State v. Gilreath, 107 Ariz. 318, 319, 487 P.2d 385, 386 (1971). In Stolp, supra, we indicated that the harmless error doctrine would apply. This may have been misleading because it implied that error in the admission of testimony by witnesses who have been hypnotized is of a fundamental or constitutional level, and, as such, no objection need be made in the trial court in order to preserve the matter on appeal. What we intended in Stolp was to treat this issue as fundamental error only in those cases which occurred prior to Mena, therefore allowing the issue in such'cases to be raised on appeal without counsel having made an objection at trial. We did not intend to hold, as to testimony received after Mena, that violation of Mena would be fundamental or constitutional error. As to hypnotically related testimony received after Mena, counsel must object to the admission in the trial court before it may be preserved on appeal. In the instant case, the hypnosis issue is properly before this court. The standard on appeal is identical for both the harmless error and non-prejudicial error doctrines. “Whether denominated harmless error, as when dealing with constitutional error, Chapman, supra, or prejudicial error, A.R.S. § 13-3987, as when dealing with non-constitutional error, the test is the same. If it can be said that the error, beyond a reasonable doubt, had no influence on the verdict of the jury, then we will not'reverse, (citation omitted) The question is not whether, absent the error, there were sufficient facts from which the jury could find the defendant guilty, the question is whether, without this evidence, the appellate court can say, beyond a reasonable doubt, that the jury would have found the defendant guilty.” State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980). Applying this rule, we believe that without Mickelson’s testimony, the jury, beyond a reasonable doubt, would have found the defendant guilty. Admittedly, Mike Mick-elson did provide evidence that defendant intended to murder the victim: “ * * * he [defendant] told me he was going to eliminate Parker and he asked if I agreed and I didn’t argue with him. * * He had called Parker a snitch.” But Mickelson’s testimony was not the principal or most telling source of direct proof against the defendant. Mickelson was absent when the stabbing occurred; he had been dispatched to a shopping center several miles from the crime scene. Testimony was given by two other eyewitnesses to the murder. Witness Cord Dougherty, who helped bury the victim, testified, “He [defendant] said ‘The kid had to be got rid of, because he was talking — talking wrong,’ about the kid slipping up and getting us busted.” Ron Lindsey, who stabbed the victim, testified that, “He [defendant] was telling me that Mr. Parker had to be done in — had to be done away with; that he was afraid that he might blow * * * the heist case in El Paso, Texas.” A third witness, Brenda Lindsey, testified that Thomas said he wanted to get rid of the victim because he didn’t trust him. Mickelson’s testimony was merely cumulative of the testimony that convicted the defendant. We find no error. EFFECTIVENESS OF REPRESENTATION Defendant contends that he was denied a fair trial due to ineffective assistance of counsel. He claims that his trial counsel was unaware that Mickelson was subjected to hypnosis, and that his counsel’s failure to object to the introduction of Mickelson’s testimony substantially prejudiced his case. Thomas’ trial counsel knew, contrary to defendant’s assertion, that Mickelson had been hypnotized by Phoenix police in February of 1980. At the post-conviction (Rule 32) hearing, counsel testified that he deliberately decided not to move to suppress the witness’ testimony, based on his understanding of Mickelson’s prehypnosis statements to the authorities and of the existing case law on the admissibility of such testimony. The attorney stated that there was at the time only one case concerning hypnosis and that it was not conclusive on the facts in the instant case. He also stated he had gone over Mickelson’s prehypnosis statements before the trial and that they did not conflict with Mickelson’s trial testimony. Defendant’s trial counsel apparently chose, as a matter of trial tactics, to subject Mickelson to a rigorous cross-examination in an attempt to discredit his story rather than to move to suppress his testimony altogether. This was consistent with the defense theory that the testimony of the witnesses present at the killing was fabricated to cast the entire responsibility for the crime on the defendant while exculpating themselves. We have abandoned the “farce and sham” standard for gauging effective representation in favor of a stricter test which focuses on the “quality of counsel’s performance” measured against “minimal professional competence.” State v. Watson, No. 3201-PR-2, filed this day. Under this standard, we find no error. Even if the trial attorney’s strategem in preferring cross-examination to testimonial suppression was not an effective tactic, errors in trial tactics per se do not constitute inadequate representation. Compare State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981) with State v. Carriger, 132 Ariz. 301, 645 P.2d 816 (1982). The attorney’s conduct at trial did not so prejudice the defendant as to constitute ineffective representation under either the former or current standard. State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981). See American Bar Association, Standards for Criminal Justice, Chapt. 4, Part VII (The Defense Function: Trial) (1980). JURY INSTRUCTIONS At the close of the evidence and arguments, the trial court charged the jury: “All 12 of you must agree on a verdict. All 12 of you must agree whether the verdict is guilty or not guilty. When you go to the jury room, you will choose a foreman who will be in charge during your deliberations and who will sign any verdict.” The defendant contends that the trial court erred by giving Recommended Arizona Jury Instruction (RAJI) 1.10 cited above. The defendant claims that lack of an explanatory instruction, that the jury is not obliged to reach a verdict if no agreement on the facts can be reached, has the effect of coercing the jury to arrive at a unanimous verdict as to guilt or innocence. We note that objection to this instruction was not made during the trial, as is required by Rule 21.3(c), Arizona Rules of Criminal Procedure, 17 A.R.S., and was therefore not preserved on appeal. Thomas argues, however, that the instruction constitutes fundamental error, which enables him to raise this claim for the first time on appeal. State v. Edgar, 126 Ariz. 206, 613 P.2d 1262 (1980). We do not agree. Admittedly, as we have discussed supra, if the alleged error was fundamental or constitutional, we would have to consider the question on appeal. In the context of jury instructions, this court has defined fundamental error as “such error as goes to the foundation of the case, or which takes from the defendant a right essential to his defense.” State v. Evans, 109 Ariz. 491, 493, 512 P.2d 1225, 1227 (1973), quoting State v. Pulliam, 87 Ariz. 216, 222, 349 P.2d 781, 785 (1960). We do not find that the trial court’s use of RAJI 1.10 and its failure to specifically instruct that the jury was not obliged to reach any verdict whatsoever was error, let alone fundamental error. The instruction given was for the purpose of advising the jury that in a criminal proceeding a guilty verdict must be unanimous, which served to protect, not deny, the defendant’s rights. See State v. Lockett, 107 Ariz. 598, 491 P.2d 452 (1971). The judge need not, by instruction, invite a “hung jury.” We find no error. PAROLE TIME CREDIT At the sentencing hearing, the trial court stated, after imposing a term of life imprisonment without possibility of parole for 25 years, as provided by statute: “You have served 286 days in custody. Although you are entitled to that time to be credited against the sentence, it will not be credited against your parole time. Twenty-five years runs from this date.” In other words, the defendant’s 286 days in custody prior to sentencing were credited by the trial court against the life portion of the term but not against the 25 years for parole eligibility. Defendant argues that such treatment in effect denies him credit for his pre-sentence incarceration and amounts to a minimum sentence of 25 years plus the 286 days served. We agree. The language of A.R.S. § 13-709(B) is that time served “shall be credited.” This, we believe, requires crediting time served against the minimum 25 year portion of the sentence of life imprisonment in the same manner as against any other determinate period of imprisonment. The judgment of conviction is affirmed, and the defendant is allowed a credit of 286 days on the sentence pursuant to this opinion. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and FELDMAN, JJ., concur.

OPINION BIRDSALL, Judge. The appellant, an automobile salesman, had his driver’s license suspended for six months because of his refusal to submit to a breathalyzer test. Upon receiving notice of the suspension, he requested an administrative hearing pursuant to A.R.S. § 28-691(E). The hearing officer of the Department of Transportation found that the arresting officer had reasonable grounds to believe the appellant was driving while under the influence, was placed under arrest and refused to submit to the test. The suspension of his license was sustained and he appealed to the superior court. That court found against the appellant and ordered him to surrender his license for the six-month period. On appeal to this court he contends: 1) The superior court erred in finding that the hearing officer did not act arbitrarily in finding that he refused to take the test. 2) That since he is an auto salesman the proceedings resulting in the loss of his license deny him equal protection since he cannot work in his vocation without driving. We affirm. A transcript of the evidence before the hearing officer was certified to the superior court. This record shows that the appellant was equivocal, at least, about taking the test. He refused, then consented until he was told a police observer would be with him and the officer when the test was administered. He then refused. Then he consented again until he saw a sign on the door leading into the test area which read “police personnel only.” Although he was told this did not apply to him, since he was with the officer, he refused to enter. The hearing officer could properly conclude that this conduct amounted to a refusal. See Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971). The precise question presented by the appellant’s second contention has been decided by the California Court of Appeals in Murphy v. Department of Motor Vehicles, 86 Cal.App.3d 119, 150 Cal.Rptr. 20 (1978). There the equal protection argument made by a truck driver was rejected for several reasons, one being that if a license should be suspended at all for a refusal under the implied consent law, it should be that of the driver who makes the most use of our highways. The appellant also argues that the department should at least exercise its discretion and not suspend the license of the occupational driver pursuant to A.R.S. § 28-691(D), but rather use A.R.S. § 28-446(A)(9). The latter statute allows the department to order driver training, without suspension, for a refusal. An equal protection argument concerning these same statutes was made and rejected in Murray v. Thorneycroft, 131 Ariz. 156, 639 P.2d 346 (App.1981). Although that case did not involve the occupational driver, we find the reasoning and authorities contained in that opinion applicable here. That the appellant will be unable to pursue his occupation may place him in a different “class” than the recreational driver, but this does not constitute an equal protection violation. No discrimination or unequal treatment has been shown. Even if it had, it appears that all persons within the appellant’s “classification” are treated equally and the classification, if there be one, is reasonable. Edwards v. Alhambra Elementary School District No. 63, 15 Ariz.App. 293, 488 P.2d 498 (1971); Murray v. Thorneycroft, supra. Affirmed. HOWARD, C. J., and HATHAWAY, J., concur.

OPINION CONTRERAS, Judge. At issue is whether the trial judge’s intrusions into the jury room and conversations with the jurors require reversal of appellant’s convictions. We hold that they do and remand the case for a new trial. Appellant Michael Felton Hilliard, III, was convicted of Count I, burglary; Count II, sexual assault; Count III, kidnapping, a dangerous felony; Count IV, sexual assault, a dangerous felony; and Count V, robbery. Appellant was sentenced to 10 years for Count 1,14 years for Count II, 21 years for Count III, 21 years for Count IV, and 14 years for Count V. The court ordered that Counts III and IV run consecutively and that Counts I, II and V run concurrently with each other and with Counts III and IV. Appellant’s motion for a new trial was denied. Appellant has presented four arguments on appeal: (1) that the trial judge improperly communicated with the jury on two separate occasions; (2) that the trial judge improperly commented on the evidence; (3) that the trial judge erred in sentencing; and (4) that the appellant did not receive effective assistance from his trial counsel. We find the first issue dis-positive, and reverse and remand. THE FIRST COMMUNICATION The reporter’s transcript of proceedings reflects that at the end of the first day of jury deliberation, the trial judge physically entered the jury room. We quote from the transcript: (The following proceedings were held in the jury room at 4:50) THE COURT: Ladies and gentlemen, I think we’ll recess tonight, unless there’s any reason that you think you need to stay a little longer for another ten minutes. Why don’t we come back tomorrow at 9:00 o’clock. Please remember my admonitions. I don’t want you to go to the scene of the alleged crime, and I want you to especially remember not to talk this over with anybody else. You were chosen by the lawyers specifically to do the job. No one else. Don’t ask anyone what you would do in such and such a case. This is strictly your job. A JUROR: Can I ask one little question? THE COURT: Okay. A JUROR: I think it’s going to relate to the other two jurors. A lot of people have been confused about the layout of the house, and these pictures don’t help. THE COURT: Remember, I told you that for whatever reasons all the evidence is before you. To bring in any more information — in essence, we’d have to reopen the whole case. A JUROR: Okay. THE COURT: So, we can’t give you any more information. There’s no more information we can give you. A JUROR: Sir? May I say something? THE COURT: Want you to know, we are making a record and— A JUROR: I just— THE COURT: And the defendant is not present nor his counsel. A JUROR: This doesn’t have anything to do with the case. THE COURT: Off the record. (An off the record discussion ensued.) THE COURT: Thank you. We’ll see you tomorrow morning at 9:00 o’clock. There is no indication in the record as to the length of the non-record discussion between the judge and jury, nor the subject matter of the conversation. There is no indication as to when, or how, appellant’s counsel first learned of the incident. It could very well be that counsel had no knowledge of what transpired until the reporter’s transcript of proceedings was prepared. Thus, as candidly recognized by ap-pellee, the record does not show that appellant had an opportunity to voice his objection at the trial level. In short, the critical facts of this case are: (1) there was an actual physical intrusion by the judge into the jury room; (2) the communication was not clearly consented to by appellant or his counsel; (3) there was an off-the-record discussion between the judge and a juror in the presence of the jury; and (4) there is no indication of what was discussed off the record. REVERSIBLE ERROR The most important fact is the actual physical intrusion of the judge into the jury room during the course of deliberations. The only two Arizona opinions which have dealt with this situation have denounced this practice in the strongest terms. See State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956); State v. Werring, 111 Ariz. 68, 523 P.2d 499 (1974). In Burnetts, in response to a jury inquiry, the trial judge took it upon himself to go to the door of the jury room and tell the jury that a particular exhibit had been withdrawn from evidence. A jury member then asked the judge a question about a recommendation of leniency, to which the judge responded. The meeting occurred without notice to counsel. The Arizona Supreme Court stated: ... There can be no question but that in the discharge of his official duty, the place for the judge is on the bench. As to him, the law has closed the portals of the jury room, and he may not enter. ... We find that in practically all of the reported cases appellate courts properly regard communications between the trial judge and jurors, relative to the trial, as of a more serious nature and more likely to have a prejudicial effect than communications between other court officials or attendants and jurors.... It is impossible to promote confidence in the administration of justice unless the jury is kept free from outside influences. In the instant case, if the jurors desired a question answered or further instructions, the proper way to have handled the matter would have been to bring them back into open court with its attendant safeguards. 80 Ariz. at 211-212, 295 P.2d at 378-379. The court reversed and remanded for new trial. In Werring, the jurors sent to the judge a note with three questions. The judge consulted with the attorneys and read the questions to them but refused to let the defense counsel read the written questions, refused to have a court reporter or clerk present, and made no reference to the event in his minute entries. The judge then entered the jury room to orally answer the jury’s inquiries. Upon his return, he advised counsel that in addition to answering the original written questions, he had orally responded to further juror questions. The Arizona Supreme Court, citing Burnetts, stated: We condemn the conduct of the judge in as strong terms as is possible. 111 Ariz. at 69, 523 P.2d at 500. The court reversed and remanded for new trial. In State v. Robin, 112 Ariz. 467, 543 P.2d 779 (1975), the jury, after retiring to deliberate, sent the judge questions which dealt with issues of fact. The judge did not go into the jury room, but did answer the questions from his notes and his recollection of the relevant testimony. The Arizona Supreme Court, citing Werring and Bur-netts, peremptorily reversed and remanded for a new trial. The issue presented here is whether the very strong condemnation of a judge’s intrusion into the jury room expressed in Burnetts and Werring have been eroded by more recent decisions dealing with other forms of judge-jury communications. We do not believe that it has. In State v. Mata, 125 Ariz. 233, 609 P.2d 48 (1980), the Arizona Supreme Court considered two communications from judge to jury, both made in court during trial but without notice to defense counsel. The court, while holding that the communications were not prejudicial and therefore not reversible error, reviewed the Arizona case law and stated the following general principles: The general rule in Arizona is that reversible error occurs when a trial judge communicates with jurors after they have retired to deliberate,7 unless defendant and counsel have been notified and given an opportunity to be present. State v. Lamb, 116 Ariz. 134, 568 P.2d 1032 (1977); State v. Robin, supra; State v. Werring, supra; State v. Burnetts, supra. While the cases cited by defendant do hold that prejudice need not be shown, all of these cases involved situations fraught with potential for prejudice to defendant,8 wherein it was impossible to ascertain the impact of the communication upon the jury. See also United States v. Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). Such circumstances warrant an irrebuttable presumption of prejudice. See State v. Davis, 117 Ariz. 5, 570 P.2d 776 (1977). Where it may be said, beyond a reasonable doubt, that there was no prejudice to the defendant, a communication between judge and jury outside the presence of defendant and counsel is harmless error. See State v. Lawrence, 123 Ariz. 301, 599 P.2d 754 (1979); State v. Davis, supra. See generally Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). 125 Ariz. at 240-241, 609 P.2d at 55-56. Of particular significance are the substantive distinctions set forth in the footnotes of Mata. We quote from the footnotes: 7. We note that none of the instant communications occurred after the jury retired to deliberate. This aspect of the general rule is derived from 17 A.R.S., Rules of Criminal Procedure, rule 22.3, which provides: “After the jurors have retired to consider their verdict, if they desire to have any testimony repeated, or if they or any party request additional instructions, the court may recall them to the courtroom and order the testimony read or give appropriate additional instructions. The court may also order other testimony read or give other instructions, so as not to give undue prominence to the particular testimony or instructions requested. Such testimony may be read or instructions given only after notice to the parties.” We see no reason to be less concerned with a potential violation of defendant’s rights if a communication occurs before the jury retires to deliberate. 8. Both Burnetts and Werring involved the actual physical intrusion by the judge into the jury-room, where he communicated orally with the panel on issues of fact and law. In Robin, the judge responded to questions of fact from the jury by answering from his notes and his recollection of testimony. Id. We do not believe that the foregoing detracts in any way from the holding of Burnetts and Werring. This is clear from fn. 8, in which the court pointedly distinguishes those two cases on the basis of the “actual physical intrusion by the judge into the juryroom.” Such a comment clearly indicates the continuing vitality of Burnetts and Werring. Nor, in our opinion, does the last sentence of fn. 7 imply that intrusions into the jury room are to be treated like any other improper communication. In Mata, both of the communications were through the bailiff, and there was no question of intrusion into the jury room. The court merely stated that the fact that the two communications occurred before the jury retired to deliberate did not render the communications any less improper. In State v. Pawley, 123 Ariz. 387, 599 P.2d 840 (App.1979), this court considered one written communication from judge to jury. The facts were these:.. After the jury had retired, a note was sent from the jury to the trial judge. It read: “Can we open the plastic bag containing a letter, item 12-A?” The note was signed by the jury foreman. A proceeding was conducted at which the judge, counsel for the state, counsel for the defendant and a court reporter were present. A transcript of the proceeding was made. After hearing arguments from counsel on the proposed response to the jury’s note, the court sent a note to the jury reading: “Mr. [jury foreman], the answer is ‘yes’; however, please return all contents in the plastic envelope. Stan Goodfarb, Judge.” There is nothing in the record to indicate that Pawley was present at this time or had been notified of the note from the jury, and he urges that these omissions are reversible error. 128 Ariz. at 389, 599 P.2d at 842. We held that the mere absence of the defendant during the communication was not reversible error. We do not consider the communication in Pawley even remotely similar to the intrusion which took place in this case. Nor do we believe that Pawley in any way undermines the holding of Burnetts and Werring. We had this to say about the rule of Burnetts and Werring and its application to the facts of the Pawley case: The rule that the defendant be given notice and an opportunity to appear originated in Arizona in those cases where the trial judge physically entered the jury room and orally communicated with the jury, the rationale being that under such circumstances, the likelihood of the judge influencing the jury out of the presence of the defendant is so great that actual prejudice will be presumed. State v. Burnetts, supra; State v. Werring, supra. The rule requiring that a defendant be given an opportunity to be present should not be mechanically applied to situations where the rationale for his presence does not exist. Here, the defendant’s legal position was represented and protected by the presence of counsel. There was no personal interaction between judge and jury, with its attendant dangers of untoward influence. Finally, there was a meticulously maintained record which would reflect any prejudice to the defendant. Under these circumstances, we find no error in the procedure adopted by the trial court.... 123 Ariz. at 389-390, 599 P.2d at 842-843. (emphasis supplied). We see nothing in the foregoing to indicate dissatisfaction with, much less, modification of, the rule of Bur-netts and Werring. Even if we were to assume that Pawley is somehow applicable to cases of intrusion into the jury room, each of the three saving factors found in Pawley is absent here. In the present case there was, as already noted, “personal interaction”. Secondly, appellant’s position was not “protected by the presence of counsel.” Finally, there is no “meticulously maintained record”. It appears from the relevant minute entry in this case that although both counsel were notified that the jury would be recessed and waived their presence, neither counsel was notified that the judge would enter the jury room and engage in further discussion with the jury. Similarly there is no indication that they were subsequently notified that the judge had, in fact, entered the jury room and had a discussion with the jury. Generally, where the judge responds to issues of fact and law in the absence of defendant and his counsel, reversible error is committed and defendant is not required to show actual prejudice. State v. Robin, supra. Even if the trial judge merely refused comment, that does not reduce his intrusion to harmless error. In Burnetts, there was no transcript of the conversation, but the trial judge reported that a juror asked whether they could write on a guilty verdict that they recommended leniency, and that he responded in the negative. The Arizona Supreme Court did not even discuss the correctness of the judge’s statement, but held that where the communication concerned the case and not merely extraneous matters, we are of the opinion that the defendant is not required to show actual prejudice. 80 Ariz. at 212, 295 P.2d at 379. In Wer-ring, the Arizona Supreme Court did not consider it important enough to mention the nature or correctness of the judge’s statements. Therefore, even if the first half of the first communication was only a refusal to comment, it was still reversible error. Moreover, in this case, in response to the second question from a juror, the judge went off the record and there is no indication of the length or nature of the discussion which occurred off the record. The lack of a complete record here is exceedingly troublesome. See State v. Pawley, supra. Although the off-the-record discussion was preceded by an indication from the juror that he had a question that had nothing to do with the case, it is impossible to determine from the record whether, in fact, the question had nothing to do with the case. Further, even if the juror’s initial question had nothing to do with the case, we cannot determine from the record whether there then ensued any further discussion of relevance to the case. The deficit in the record in the present case makes it impossible to say that, beyond a reasonable doubt, there was no prejudice to the defendant, and therefore harmless error. State v. Corrales, 121 Ariz. 104, 588 P.2d 846 (App.1978). This factor distinguishes the present case from those cases where a complete record allowing the reviewing court to determine that the improper communication constituted harmless error. State v. Mata, supra; State v. Davis, 117 Ariz. 5, 570 P.2d 776 (App.1977); State v. Cagle, 124 Ariz. 276, 603 P.2d 547 (App.1979). We will not belabor the point further. Suffice it to say that in every decision since Werring in which an appellate court of this state held that there was no reversible error in a judge-jury communication, other than the judge’s intrusion into the jury room, the court has distinguished Burnetts and Wer-ring on precisely that ground. See, e.g., State v. Lamb, 116 Ariz. 134, 568 P.2d 1032 (1977); State v. Lawrence, 123 Ariz. 301, 599 P.2d 754 (1979); State v. Davis, supra. In short, Burnetts and Werring control, and mandate the conclusion that the trial judge’s actions in this case constitute reversible error. While we have focused on the first communication, we believe that the second communication, which was made with the consent of counsel and which was transcribed in full, was also reversible error, by the very fact that the judge entered the jury room. Appellee’s entire argument on the intrusion issue is that appellant was not prejudiced by either communication. We do not believe that the issue of prejudice is relevant under Burnetts and Werring. Among other jurisdictions which have considered the question, there are two views. Some states hold that the judge’s intrusion into the jury room is per se reversible error, regardless of the intent or content of any communication. About an equal number hold that such conduct is reversible error only if the defendant is prejudiced thereby. We are convinced that the per se rule is the better view and that the Arizona decisions are in accord. The prejudice rule opens numerous problems and entails cumbersome and unsatisfactory post hoe hearings and determinations, at both the trial and appellate levels. Like the court in Burnetts, we feel that it would establish a dangerous precedent under the admitted facts not to reverse for a new trial. 80 Ariz. at 212, 295 P.2d at 380. In accordance with Burnetts and Werring, we hold that it is reversible error for the judge to enter the jury room after the jury has retired to deliberate, regardless of the intent or content of any ensuing communication, and regardless of the prejudice, or lack thereof, resulting. As pointedly stated in Burnetts: There can be no question but that in the discharge of his official duty, the place for the judge is on the bench. As to him, the law has closed the portals of the jury room, and he may not enter. 80 Ariz. at 211, 295 P.2d at 378. Having disposed of this appeal on the first ground raised by appellant, we do not address the others. The judgment is reversed and the matter remanded for a new trial. EUBANK and HAIRE, JJ., concur. . Representative of this view are: ALABAMA Montgomery v. State, 42 Ala.App. 345, 164 So.2d 717 (1964); Graves v. State, 377 So.2d 1129 (Ala.Cr.App. 1979), cert. denied, 377 So.2d 1130 (Ala.) INDIANA Danes v. Pearson, 6 Ind.App. 465, 33 N.E. 976 (1893); Laine v. State, 154 Ind.App. 81, 289 N.E.2d 141 (1972) (dicta). MICHIGAN Zaitzeff v. Raschke, 387 Mich. 577, 198 N.W.2d 309 (1972); People v. Heard, 388 Mich. 182, 200 N.W.2d 73 (1971); People v. Olson, 66 Mich.App. 197, 238 N.W.2d 579 (1975). MINNESOTA Hoberg v. State, 3 Minn. 181 (262) (1859); State v. Mims, 306 Minn. 159, 235 N.W.2d 381 (1975). NEVADA State v. Graff, 96 Nev. 474, 611 P.2d 196 (1980) (quoting Burnetts). NORTH DAKOTA State v. Murphy, 17 N.D. 48, 115 N.W. 84 (1908). WASHINGTON State v. Wroth, 15 Wash. 621, 47 P. 106 (1896). WISCONSIN Havenor v. State, 125 Wis. 444, 104 N.W. 116 (1905). . Representative of this view are: ARKANSAS Day v. State, 185 Ark. 710, 49 S.W.2d 380 (1932); Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973). ILLINOIS People v. Veal, 58 Ill.App.3d 938, 16 Ill.Dec. 188, 374 N.E.2d 963 (1978). IOWA State v. Olds, 106 Iowa 110, 76 N.W. 644 (1898). KENTUCKY Wireman v. Commonwealth, 212 Ky. 420, 279 S.W. 633 (1926); Smith v. Common wealth, 321 S.W.2d 786 (Ky.1959) (error waived by failure to object) MARYLAND Brown v. State, 236 Md. 505, 204 A.2d 532 (1964) (in judge’s chambers). OKLAHOMA Graham v. State, 73 Okl.Crim. 337, 121 P.2d 308 (1942). PENNSYLVANIA Commonwealth v. Knable, 369 Pa. 171, 85 A.2d 114 (1952). TENNESSEE Cartwright v. State, 80 Tenn. 620 (1883). TEXAS Rogers v. State, 118 Tex.Cr. 123, 38 S.W.2d 784 (1931) (prejudice apparently required). . The per se rule is also consistent with A.B.A. Standards for Criminal Justice, Trial by Jury (1980), § 15-3.7, which provides: Standard 15-3.7. Control over and relations with the jury (a) The trial judge should take appropriate steps ranging from admonishing the jurors to sequestration of them during trial, to ensure that the jurors will not be exposed to sources of information or opinion, or subject to influences, which might tend to affect their ability to render an impartial verdict on the evidence presented in court. (b) The trial judge should require a record to be kept of all communications received from a juror or the jury after the jury has been sworn, and he or she should not communicate with a juror or the jury on any aspect of the case itself (as distinguished from matters relating to physical comforts and the like), except after notice to all parties and reasonable opportunity for them to be present. The A.B.A. standard is a general rule applicable to all judge-jury communications. The rule reaffirmed herein is an application of the general rule to an especially improper type of judge-jury communication. The per se rule is, we believe, necessary to effectuate the principles underlying Standard 15-3.7.

CAMERON, Justice. This is an appeal by the Department of Economic Security (DES) from an order of the trial court allowing the garnishee, the Arizona Bank, to deduct its answering fee costs against the funds garnisheed. We have jurisdiction pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure, 17A A.R.S. The only question we must answer on appeal is whether a garnishee’s costs may be taxed against the garnishment fund in the possession of the garnishee. The facts are not in dispute. On 31 January 1974, DES obtained a $3,370 judgment against Robert J. Jaye Plumbing Company, for unpaid unemployment insurance contributions. The judgment was renewed on 16 November 1978. One year later, DES caused a writ of garnishment to be issued and served upon the Arizona Bank. The bank filed an answer on 22 January 1980, admitting that it was indebted to Jay Plumbing for the sum of $214.20, and asking it be awarded its answering fee of $50. Immediately thereafter, Jaye Plumbing filed a claim for a $100 exemption from garnishment pursuant to A.R.S. § 33-1126(7). On 15 February 1980, DES obtained a judgment against the bank for $114.20, which represented the $100 exemption, but did not provide for the answer fee requested by the bank. The bank filed a motion to set aside the verdict. The Superior Court granted the motion holding that the bank was entitled to have its answer fee deducted from the fund garnished and which the bank held on deposit. The remainder of the fund was ordered released to DES. From this order DES appeals, claiming that the garnishee bank is not entitled to its answer fee against the garnishment fund, and that DES is entitled to the entire fund less the $100 statutory exemption. Our garnishment statute reads: “§ 12-1591. Taxing costs “A. When the garnishee is discharged upon his answer, the cost of the proceeding, including reasonable compensation to the garnishee shall be taxed against plaintiff. “B. When the answer of the garnishee is not controverted and the garnishee is held thereon, the costs as provided in subsection A of this section shall be taxed against defendant. “C. Where the answer is controverted the costs shall abide the issue.” Thus by subsection A, if there are no funds, then the garnishee is entitled to be reimbursed by the plaintiff for the cost of answering the writ. If there are funds and the garnishee’s answer is “not controverted,” then the costs are taxed against the defendant pursuant to subsection B. “The policy evidenced by the provisions of section 12-1591, as well as by other provisions of our garnishment code, (footnote omitted) is obviously to give some degree of extra protection and compensation to the garnishee who is dragged into litigation which normally has resulted from a controversy existing primarily between other parties. To effectuate this policy section 12-1591 allows the garnishee to recover its expenses involved in the garnishment proceeding, including attorneys’ fees, under the circumstances set forth in the statute. * * * ” Spanier v. U. S. Fidelity & Guaranty Co., 127 Ariz. 589, 598-99, 623 P.2d 19, 28-29 (App. 1980). DES argues that A.R.S. § 12-1591(B), read in conjunction with A.R.S. § 12-1585, requires the garnishee to seek to recover the costs against the judgment-debtor in a separate or collateral proceeding “in the same manner that the plaintiff is required to collect its judgment — by finding a garnishee, * * “§ 12-1585. Judgment against garnishee “If it appears from the answer of the garnishee, or otherwise, that the garnishee is indebted to the defendant in any amount or was so indebted when the writ was served, the court shall give judgment for plaintiff against the garnishee for the amount so admitted or found to be due defendant from the garnishee unless the amount exceeds plaintiff’s judgment against defendant in which case it shall be for the amount of such judgment.” A.R.S. § 12-1585. Admittedly, the issue is not that clear. There is authority, however, to guide us in the interpretation of the statute and the intent of the legislation. The Arizona garnishment statutes were adopted from those of Texas, see Gulf Homes, Inc. v. DM Federal Credit Union, 125 Ariz. 68, 607 P.2d 387 (App.1979), and the construction previously given the language in our statute by the State of Texas is persuasive. Gulf Homes, supra. The Texas Court of Civil Appeals, in discussing that state’s equivalent of A.R.S. § 12-1591(B), held that a garnishee’s costs were deductible from the garnishment fund: “The record shows that defendant had on deposit with garnishee the sum of $1,547.48 at the time the writ of garnishment was served. In the usual case, the costs, including reasonable attorney’s fees, would first be taken from such sum with the balance thereof paid to plaintiff.” Pan American National Bank v. Ridgway, 475 S.W.2d 808, 809 Fn. 2 (Tex. Civ.App.1972); see also, Dallas Packing Co. v. Kimberling, 289 S.W. 149 (Tex.Civ. App.1926). We agree with the Texas court. The experience of the members of this court is that this has long been the interpretation by the Arizona courts and this interpretation has not been challenged until now. Indeed, such a rule is the only one that makes sense. To require the garnishee to collect its costs from the judgment-debtor in a collateral proceeding would promote unnecessary litigation and unfairness in that the defendant might not be available for suit at the time of the issuance of the writ. The trial court was correct in allowing the Arizona Bank to deduct its answer fee from the garnishment fund before releasing the remainder to DES. DES, however, cites the case of Weir v. Galbraith, 92 Ariz. 279, 376 P.2d 396 (1962), as authority for the view that the courts have held that plaintiff should have judgment for all funds held by the garnishee, and that the garnishee would have to seek reimbursement of the answer fee from the defendant. It is true, as DES contends, that the minute entry in Weir, supra, read as follows: “ORDERED granting judgment for pltf. against Garnishee Deft. Ariz. Title Guarantee & Trust Co. in sum of $3,995.00, and “ORDERED that Garnishee Deft. Ariz. Title Guarantee & Trust Co. have judgment against Deft. W.L. Weir in the sum of $100.00 for its atty’s fees herein.” Weir v. Galbraith, supra, 92 Ariz. at 289, 376 P.2d at 403. (emphasis added by DES) We note, however, that (1) the issue of whether the cost of answering the writ should be set off against the funds held by the garnishee was not squarely before the court and (2) the answer of the garnishee was controverted pursuant to paragraph C of A.R.S. § 12-1591, rather than paragraph B as is the case herein. We do not believe Weir, supra, is applicable. We believe a further comment is in order. This is a $50 lawsuit, appealed by the state from a decision of the trial court that followed well-settled custom. The state has an advantage that other litigants on appeal do not share in the exemption from bond and costs on appeal, and the use of attorneys who, at taxpayers expense, may prosecute appeals without regard to expense. This is done so that the state’s interests, the people’s interests, may be adequately represented and defended, especially in those cases where important state or public matters are involved. We note in the instant case that the state and its political subdivisions are more often than not the garnishee rather than plaintiff, and the interpretation urged by the Department of Economic Security might well cost the state more than it would gain in the cases where the state is the plaintiff. This case is not one in which the state has a vital interest. This case just is not one which should demand the time of an appellate court system, already clogged with pressing and substantial cases involving the life and liberty of citizens, large sums of money, and urgent questions of constitutional law needing speedy disposition. The ruling sought in the instant case by the DES is one that would have worked an injustice on those garnishees who are required by law to answer writs of garnishment in suits over which they have no interest or control. The position of the DES in this case serves neither the interest of the state nor the cause of justice. Order affirmed. HOLOHAN, C. J., and HAYS, J., concur.

CAMERON, Justice. On 4 November 1981, defendant Ruth Watkins was found guilty of first degree murder for the death of Walter Robinson. After an aggravation-mitigation hearing, the trial court sentenced the defendant to life imprisonment without possibility of parole for 25 years. A.R.S. § 13-703. The defendant appeals her conviction. We have jurisdiction pursuant to A.R.S. § 13-4031. The defendant raises the following issues on appeal: 1. Did the trial court abuse its discretion by permitting the State to impeach the defendant with a prior felony conviction? 2. Did testimony by a police officer that he had observed the defendant in an intoxicated condition on a previous occasion constitute reversible error as a comment on a prior bad act? 3. Did the trial court err in denying defendant’s request for a jury instruction on the crime of manslaughter? The facts necessary for a determination of these issues are as follows. On the morning of 26 June 1981, the defendant and two male companions drove to a grocery store in Yuma, Arizona. The driver of the car went into the store to shop, leaving the defendant in the front seat and the victim, Walter Robinson, in the back. A few minutes later, witness Jesus Torres was leaving the store with his groceries when he saw the defendant standing outside the car pointing a gun at Robinson in the back seat. Mr. Torres testified that the defendant was jabbing the gun at Robinson and shouting, “I’m going to kill you, mother-fucker.” Mr. Torres then immediately returned to the store to escort his mother to his car and drove home where he telephoned the police. When Officer Charles Pulliam arrived at the scene, he found the defendant in the front seat of the car with an open bottle of whiskey in her hand. Robinson was slumped across the back seat with a fatal .22 caliber gunshot wound in his chest. When questioned by Officer Pulliam, defendant remarked, “He must have been very sick, he’s throwing up blood.” When the driver of the vehicle returned and asked the defendant what had happened, the defendant allegedly said, “Robinson tried to grab me, so I shot him.” After her arrest, a search of defendant’s purse revealed a .22 caliber revolver which contained five bullets and one spent cartridge. After a two day trial, the jury returned a verdict of guilty to first degree murder. At the aggravation-mitigation hearing, the trial judge found that one aggravating circumstance existed in that the defendant had previously been convicted of manslaughter in 1973. The trial judge found that the defendant’s capacity to appreciate the wrongfulness of her conduct was significantly impaired by her alcoholism and intoxication on the day of the murder and that this mitigating circumstance outweighed the prior aggravating manslaughter conviction. A life sentence was then imposed. IMPEACHMENT WITH PRIOR FELONY Before trial, a hearing was held on a defense motion to preclude the admission of defendant’s prior conviction for involuntary manslaughter. The judge weighed the probative value of the prior conviction against its potential prejudicial effect as required by Rule 609, Arizona Rules of Evidence, 17A A.R.S. The judge concluded that evidence of the manslaughter conviction would be unduly prejudicial and therefore inadmissible. The judge did, however, find that the fact of a prior felony conviction was probative of the defendant’s credibility. The court therefore permitted the State to inquire of the defendant whether she had a prior felony conviction, but the decision precluded the State from inquiring into or mentioning the nature of the felony committed. Over defense counsel’s continuing objection, the defendant was asked on cross examination whether she had been convicted of a prior felony. No other inquiry into the nature of the prior offense was attempted. The defendant argues that the trial court erred in permitting the defendant to be impeached with mention of the prior felony conviction. We do not agree. The rule of evidence dealing with impeachment by evidence of a prior conviction provides: “Rule 609. Impeachment by Evidence of Conviction of Crime “(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement, regardless of the punishment.” Rule 609, Arizona Rules of Evidence, 17A A.R.S. The rule only requires the trial court to independently weigh the probative value of the prior conviction against the prejudicial effect. In this case, the court did all that the rule requires. We find no abuse of discretion and no error. State v. Noble, 126 Ariz. 41, 612 P.2d 497 (1980); State v. Dixon, 126 Ariz. 613, 617 P.2d 779 (App.1980). PRIOR BAD ACT The defendant next contends that it was error for the prosecutor to elicit from a State’s witness evidence of defendant’s pri- or bad acts. The incident occurred during the testimony of Detective Richard Stall-worth. The prosecutor questioned Stall-worth about the defendant’s state of intoxication on the day of the murder. In attempting to establish a foundation for the detective’s opinion on this question, the prosecutor asked if he had observed the defendant for signs of intoxication at any other time. The detective responded, “At one time I did.” Defense counsel objected to the question and moved for a mistrial out of the hearing of the jury. The defendant’s argument on this issue is summarized from her brief: “The jury was left with the clear impression that the Defendant had had some prior criminal difficulty, in that she had been observed by a police detective for signs of intoxication. * * * The jury was left to speculate on the nature of the prior criminal incident. Therefore, given the prejudicial effect of that testimony, and its inability to be cured by an instruction or by any other means, the court was under an obligation to grant a mistrial.” We disagree with defendant’s position for two reasons. First, there was no prejudice to the defendant. The defendant’s entire defense rested on mental incapacity due to alcoholic intoxication, and she herself testified that she had been an alcoholic since childhood. If anything, Detective Stall-worth’s remark that he had observed the defendant in an intoxicated condition on another occasion supported the defendant’s defense. Second, Detective Stallworth’s remark did not necessarily infer prior criminal conduct on the part of the defendant. Defendant cites State v. Francis, 95 Ariz. 57, 386 P.2d 654 (1963) for support. In that case, we reversed a conviction where the prosecutor had made references to a prior police record without an offer of proof. In Francis, supra, the prosecutor asked a witness, “Are you acquainted with any of Mr. Francis’ problems with the police?” There is no similarity between Detective Stallworth’s remark in this case and the prosecutor’s conduct in Francis, supra. In Francis, supra, there was a strong inference that the defendant had other “problems with the police” which could lead the jury to believe that the defendant was guilty of other crimes. We do not find that to be the case here, where only defendant’s drinking problem had been observed by the officer. We find no error. MANSLAUGHTER JURY INSTRUCTION In her last assignment of error, the defendant maintains that it was error for the trial court to have refused to instruct the jury on manslaughter. The basis for allowing the instruction, defendant contends, was provided by the following testimony: “[PROSECUTOR] With the Court’s permission, I would like to play this portion of the tape. (Whereupon the tape recording was played and the following is a transcript of the testimony thereon.) ‘McCain: When I went in the store, he was in the back seat, sitting behind her and she sit in the front seat. ‘Stallworth: Okay. ‘McCain: When I come back out of the store with the groceries, she was still sitting in the front seat and he was laying down on the side of his face, you know, and I said, what happened? She said, “Well, Robinson grabbed me and I shot him.” ‘Stallworth: She said, “He grabbed me and I shot him?” ‘McCain: Yeah, that’s what she told me, that’s the words she said.’ ” We believe the testimony is insufficient to require a manslaughter jury instruction. Throughout the trial, the defendant denied shooting the victim or claimed an inability to remember the events on the morning of the murder. There was no evidence that the defendant killed the victim in the heat of passion or with provocation, and the trial court did not err in failing to give defendant’s requested instruction on voluntary manslaughter. State v. Watkins, 126 Ariz. 293, 614 P.2d 835 (1980); State v. Heath, 122 Ariz. 36, 592 P.2d 1302 (App.1979). Affirmed. HOLOHAN, C. J., GORDON, Y. C. J., and HAYS and FELDMAN, JJ., concur.

OPINION HAIRE, Judge. The only issue in this review of an award entered by the respondent Commission in a workmen’s compensation proceeding, is whether the administrative law judge abused his discretion in refusing to schedule an additional hearing to allow the carrier and employer to present newly discovered evidence indicating that the employee had given fraudulent testimony relating to his claimed injury. The evidence was discovered shortly after the entry of the administrative law judge’s decision, and the circumstances surrounding the discovery of the evidence and the nature thereof were submitted to the judge by affidavit and memorandum of counsel as a part of the carrier’s request for review of the award. The procedural and factual detail pertinent to the issue raised on review follows. On May 6, 1980, the employee (claimant) filed a claim for workmen’s compensation benefits for an industrially related back injury. After the carrier denied the claim by notice of claim status, claimant timely requested a hearing to protest the denial. At the scheduled hearing, claimant testified that on or about March 30, 1980, while lifting a citrus tree as a nurseryman for the petitioner employer, he injured his back. In addition, he testified that prior to this accident, except for muscle strain from overexertion, he had never seen a doctor, been hospitalized, or had any serious problems with his back. In addition, the claimant’s girlfriend corroborated his testimony about his lack of any pre-injury back problems. Arden Reynolds, M.D., the claimant’s treating neurosurgeon, was the only medical expert to appear. He testified that he performed surgery on April 28th which revealed a large L-5-S-1 disc herniation on the left side. On the basis of his observation of the disc tissue during surgery and claimant’s reporting of a recent industrial injury to his back, Dr. Reynolds was of the opinion that to a reasonable medical probability the disc herniation was related to the alleged tree-lifting incident. On October 29, 1980, five days after the scheduled hearing, the hearing judge issued an award for a compensable claim. On November 18,1980, the carrier and employer filed a timely request for review. The request for review asked for a further hearing alleging that the claimant had lied about his pre-injury back condition. In an affidavit supporting this allegation, counsel stated that after the scheduled hearing, claimant’s girlfriend had advised him that claimant had lied, and also told him about physicians who had previously treated the claimant for back problems. Counsel also submitted medical reports from 1975 and 1976 establishing that the claimant had received extensive medical treatment and hospitalization for prior back injuries, specifically L-5-S-1 discogenic disease, the same area of the back involved in the present treatment. When the hearing judge issued his decision upon review he affirmed the previous award without expressly ruling on the request for a further hearing. In his decision he stated: “1. The post-hearing attempt at introduction of unsupported medical and lay testimony in the form of an Affidavit signed by Counsel for the carrier was not considered in the review of the evidence properly submitted herein. McDuffee v. Industrial Commission, 15 Ariz.App. 541, 489 P.2d 1243 (1971).” The parties have treated the decision as constituting a denial of the request for an additional hearing to present the evidence of fraud. The carrier and employer now seek review by this court of that denial. The petitioners’ contention is that the hearing judge abused his discretion by summarily denying their request for review without considering the evidence of fraud or scheduling an additional hearing to permit them to present this evidence. We first note that by statute, the administrative law judge in ruling on the request for review, could not consider the medical reports and affidavits. A.R.S. § 23-943 E provides: “The review shall be made by the presiding administrative law judge and shall be based upon the record and the memo-randa [of points and authorities].” Thus, the administrative law judge could not have considered the post-hearing medical and lay evidence submitted by petitioners’ affidavit in arriving at a decision on the merits of claimant’s claim. In fact, petitioners did not request that he do so. Rather, all that petitioners requested was that he consider their affidavit in exercising his discretion as to whether a further hearing was justified. Our supreme court has said that there is no statute of limitations or rule of law which prevents the Industrial Commission from upsetting a former finding that claimant’s condition was compensable when such a finding was procured by fraud. Scott v. Wasielewski, 89 Ariz. 29, 357 P.2d 614 (1960); see generally Hopper v. Industrial Commission, 27 Ariz.App. 732, 558 P.2d 927 (1976). In light of the overwhelming evidence of fraud presented to the administrative law judge, it was a clear abuse of discretion to refuse petitioners’ request for a hearing. Claimant presents several arguments to support the administrative law judge’s ruling. The first is that because Dr. Reynolds found fresh disc tissue indicating a recent herniation, the medical evidence from 1975 and 1976 was irrelevant to his opinion that the herniation was industrially related. In effect, with this argument the claimant attempts to sidestep his false testimony by arguing that his untruthfulness was nonprejudicial. The medical evidence submitted to the hearing judge established that the claimant had been hospitalized for chronic, severe back pain and that diagnoses of discogenic disease and of a probable herniated disc at L-5-S-1 were rendered. The claimant’s deceit was therefore related to the very condition for which he claimed benefits, not to some collateral matter. Additionally, the true medical evidence shed light on the issue of claimant’s credibility. Since Dr. Reynolds relied upon the history given him by the claimant, evidence of claimant’s credibility was highly relevant. Therefore this past medical history unquestionably shed light upon the issues involved and should have been considered. See Arizona State Welfare Department v. Industrial Commission, 25 Ariz.App. 6, 540 P.2d 737 (1975). Claimant next argues that the hearing judge’s decision was proper because the petitioners’ medical evidence was untimely submitted. As a general rule, absent compliance with A.C.R.R. R4-13-156, the fact-finding process in workmen’s compensation proceedings ends at the conclusion of the last scheduled hearing. Wood v. Industrial Commission, 126 Ariz. 259, 614 P.2d 340 (App.1980). The rules for introducing newly discovered evidence applicable in civil cases are inapplicable in workmen’s compensation cases, Cowan v. Industrial Commission, 18 Ariz.App. 155, 500 P.2d 1143 (1972), and, administrative review of awards pursuant to A.R.S. § 23-943 is restricted to the record, McDuffee v. Industrial Commission, 15 Ariz.App. 541, 489 P.2d 1243 (1971). These principles however do not apply if a claimant obtains benefits fraudulently. In that circumstance the Commission may refuse to award further compensation even though an otherwise final notice of claim status or award granting compensation has been entered. See Scott v. Wasielewski, supra; Hopper v. Industrial Commission, supra; 3 Larson, Workmen’s Compensation Law § 81.50 (1976). We believe that this exception to finality principles applicable to notices of claim status and awards should also be applicable to rules governing the fact-finding process. If the Commission has authority to grant relief based upon fraud uncovered after a final disposition, it is not powerless to grant relief when fraud is uncovered before the disposition becomes final. Claimant’s final argument is that A.R.S. § 23-1028 is the exclusive remedy for fraudulent claims for workmen’s compensation benefits. That section provides: “If in order to obtain any compensation, benefit or payment under the provisions of this chapter, either for himself or for another, any person knowingly makes a false statement or representation, such person is guilty of a class 2 misdemeanor, and, if the person is a claimant for compensation, benefit or payment, he shall in addition forfeit all right to such compensation, benefit or payment after conviction of the offense.” The Commission’s authority, however, relates to the orderly processing of workmen’s compensation claims and as noted above, this authority permits the Commission to withhold compensation when a fraudulent claim for benefits is uncovered. See Scott v. Wasielewski, supra; Hopper v. Industrial Commission, supra; Larson, supra. We therefore reject the argument that A.R.S. § 23-1028 is an exclusive remedy. We conclude that the hearing judge abused his discretion by refusing to schedule an additional hearing to allow the petitioners to present the evidence of fraud and medical evidence and to question Dr. Reynolds about its effect on his opinion that the claimant’s condition was industrially related. Therefore, the award is set aside. In view of the result we have reached, claimant’s request for attorney’s fees on the ground that the petition for review is frivolous, is hereby denied. EUBANK, P. J., and FROEB, J., concur.

OPINION FROEB, Judge. This is an appeal from a decision of the Unemployment Insurance Appeals Board which determined that the parcel delivery services performed within the State of Arizona by drivers for Dial-A-Messenger, Inc., constitute employment within the contemplation of A.R.S. § 23-615 and are not excluded under the provisions of A.R.S. § 23-613.01. For the reasons stated herein, we reverse the decision of the Appeals Board. Another opinion on the same subject is also filed this date in M. Z. Moore, d/b/a M. Z. Moore & Associates v. Arizona Department of Economic Security, 132 Ariz. 360, 645 P.2d 1274 (App.1982). Dial-A-Messenger’s parcel delivery service is performed by drivers who transport parcels for customers after orders are placed with Dial-A-Messenger for pickups and deliveries. Dispatchers employed by Dial-A-Messenger contact the drivers by radio and inform them of pickup addresses, the destinations of the packages and the rates to be charged for the services. The drivers select their routes and are responsible for collecting the charges which are turned in daily to Dial-A-Messenger. The drivers are compensated periodically on a per job commission basis. In addition, the drivers earn waiting time charged to the customers on a basis of $1.25 for each ten minutes the driver has to wait after the first five minutes. Drivers owning and operating their own vehicles lease their vehicles to Dial-A-Messenger, as required by regulation of the Arizona Corporation Commission, A.C.R.R. R14 — 5-317(B). This lease provides, among other things, that the lease shall be for a period of not less than thirty days, the lease may be canceled by either party by notice to the other and to the Arizona Corporation Commission, and that the motor vehicle shall be under the complete control of the lessee (Dial-A-Messenger) during the existence of the lease. A separate agreement for services is entered into between Dial-A-Messenger and each of the drivers. The service agreement provides, among other things: (1) Dial-A-Messenger desires to utilize services of the driver on a nonexclusive basis; (2) Dial-A-Messenger provides a central office for receipt of requests for pickup and delivery service, and will furnish the driver with addresses by two-way radio, telephone, or beeper; (3) Dial-A-Messenger will permit the operation of vehicles by the driver under the name of Dial-A-Messenger, all in accordance with the Arizona Corporation Commission Motor Carrier Rules and Regulations; (4) Dial-A-Messenger will make available mobile radios or pagers which may be rented by the driver; (5) the driver will service Dial-A-Messenger’s customers in accordance with all Arizona Corporation Commission Motor Carrier Rules and Regulations; (6) the driver will obtain general liability motor vehicle insurance in an amount not less than required by the Arizona Corporation Commission; (7) the driver will bear all financial responsibility, including maintenance of the driver’s own separate payroll compensation records and payment of all federal, state and local taxes; (8) the driver will keep a daily manifest of all pickups and deliveries and accumulate signatures of the customers served; (9) the driver has the right to set his own hours; (10) the driver is to be considered an independent contractor and under no circumstances an employee of Dial-A-Messenger; (11) the driver has the right to engage in other services for noncompeting businesses providing performance to the company is in conformance with company police rules and regulations; and (12) either party may cancel the agreement upon notice. The Appeals Board determined that the services performed by drivers for Dial-A-Messenger constitute employment within the meaning of A.R.S. § 23-615. “Employment” is defined as “any service of whatever nature performed by an employee.... ” Thus, the issue underlying the Appeals Board’s determination is whether the drivers who perform parcel delivery services for Dial-A-Messenger are “employees” within the Employment Security Act. “Employee” is defined in A.R.S. § 23-613.01: A. “Employee” means any individual who performs services for an employing unit and who is subject to the direction, rule or control of the employing unit as to both the method of performing or executing the services and the result to be effected or accomplished. Absent other evidence indicating the employing unit exercises direction, rule or control over the individual as to both the method of performing or executing the services and the result to be effected or accomplished, the following shall not be considered an employee under this section: 1. An individual who performs services for an employing unit which are not a part or process of the organization, trade or business of the employing unit and who is not treated by the employing unit in a manner generally characteristic of the treatment of employees. 2. An individual deemed subordinate or subject to the direction, rule or control, or the right thereof, of an employing unit solely because of a provision of law regulating the organization, trade or business of the employing unit. 3. An individual who performs services for an employing unit through isolated or occasional transactions, regardless of whether such services are a part or process of the organization, trade or business or the employing unit or who performs casual services for an employing unit. 4. An individual who performs services for an employing unit in a capacity as an independent contractor, business person, agent or consultant, or in a capacity characteristic of an independent profession, trade, skill or occupation. An understanding of legislative background is helpful in analyzing the present case. Prior to 1947, the statutory definition of “employment” determined coverage of an employee under the employment security law. “Employment” was defined in the Unemployment Compensation Law of 1936 as follows: “Employment” means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, expressed or implied .... In 1937, this definition was amended to include three statutory conditions, which if met excluded coverage for certain employment services. This came to be known as the “ABC” test. There was no separate statutory definition of “employee” as there is now. In 1947, the “ABC” provision was deleted by the legislature and “employment” was redefined as is now set forth in A.R.S. § 23-615: “Employment” means any service of whatever nature performed by an employee for the person employing him, ... In 1961, the Arizona Supreme Court, in Beaman v. Superior Products, Inc., 89 Ariz. 119, 358 P.2d 997 (1961), found that the “ABC” test had been inserted into the Employment Security Act for the purpose of restricting coverage and that the deletion of the test in 1947 broadened the coverage of the Act. 89 Ariz. at 122, 358 P.2d at 998. In 1979, the Act was again amended to include § 23-613.01 quoted earlier. We held in Smith v. Arizona Department of Economic Security, 128 Ariz. 21, 623 P.2d 810 (App.1980) that the enactment of this provision served to restrict the types of employment relationships covered by the unemployment tax. We stated in Smith: [W]e find that A.R.S. § 23-613.01 represents a substantial departure from prior law. Under prior law, the Arizona Supreme Court has held that the statutory scheme under the Employment Security Act abrogated the common law definition of employee and independent contractor in favor of a more liberal construction so that the purposes of the act would be fully realized. (Citations omitted.) A.R.S. § 23-613.01 defines employee in much the same manner as the Federal Unemployment Tax Act. The Federal Unemployment Tax Act has adopted the common law test applied realistically. Id. at 25, 623 P.2d at 814. The Department questions our determination in Smith that Arizona law now defines “employee” in much the same manner as the Federal Unemployment Tax Act, and that therefore the common law test applies. It notes that the statutory language of FUTA defines “employee” to include “any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of employee.” 26 U.S.C. § 3306(i) (1976). It points out, however, that the Arizona Employment Security Act contains no language requiring application of common law rules to determine the employer-employee relationship. In fact, notes the Department, prior to the enactment of A.R.S. § 23-613.01, the common law concept of “employment” had been rejected by the Arizona Supreme Court in favor of a broader definition of the term. See Arizona Department of Economic Security v. King, 122 Ariz. 158, 160, 593 P.2d 908, 910 (1979); Beaman v. Superior Products, Inc., supra; McClain v. Church, 72 Ariz. 354, 357-58, 236 P.2d 44, 46-47 (1951). The Department argues that none of the reasons for a broadened construction of the Arizona Employment Security Act have been changed by the enactment of A.R.S. § 23-613.01. We disagree. After the deletion of the “ABC” test in 1947, the coverage of the Act was at its most inclusive stage. See Beaman v. Superior Products, Inc., supra. Prior to 1979, the Act did not contain a definition of “employee.” The enactment of A.R.S. § 23-613.01 in 1979 added the provision that an “employee” must be “subject to the direction, rule or control of the employing unit as to both the method of performing or executing the services and the result to be effected or accomplished.” This section, rather than the definition of “employment” in A.R.S. § 23-615, is now the central provision for determining coverage of the Act. If the disputed individual is not an “employee” as defined in A.R.S. § 23-613.01, there is no occasion to consider the definition of “employment” in A.R.S. § 23-615. We reaffirm our determination in Smith, supra, that the enactment of A.R.S. § 23-613.01 defining employee served to restrict the types of employment relationships covered by the unemployment tax. We also reaffirm our holding in Smith that A.R.S. § 23-613.01 defines “employee” in much the same manner as the Federal Unemployment Tax Act, which has adopted the common law test applied realistically. The applicable Internal Revenue Regulation, 26 CFR 31 — 3306(i)—1(b), states that an employer-employee relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so.... In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services an an independent contractor is not as to such services an employee.... This definition of an employee and independent contractor is entirely consistent with A.R.S. § 23-613.01. To summarize, under Arizona law in effect at all times relevant to this case, the existence of an employment relationship depends upon control by the employing unit not only as to the result to be effected but also as to the method by which the services are performed. In reaching its decision in this area, the Board has applied certain indicia by which it determined that the services here involved that degree of control sufficient to find that the drivers were employees rather than independent contractors. A.C.R.R. R6-3-1723(C). There is no challenge made to the validity of these indicia. We therefore examine the facts of the present case in light of them to determine if the Board was correct in finding that the drivers were employees. A brief synopsis of each of the indicia of control precedes our discussion: (A) Authority over the individual’s assistants : Authority by the employing unit over the individual’s assistants indicates control over the individual. Section 9 of the employment agreement between Dial-A-Messenger and the drivers states that the agreement is for personal services and is not assignable or transferable. The agreement is silent, however, with respect to assistants of the drivers. None of the witnesses who testified ever had occasion to hire an assistant since the parcels delivered were small. Neil Pritt, the chief operating officer of Dial-A-Messenger, testified that he did not inquire whether any of the drivers employed helpers, and would not object to their doing so. One of the drivers testified that he took his wife with him occasionally and did not feel the need to so inform the company. Another driver testified that although he did not need an assistant he felt he could hire one if he wanted to and would pay the assistant if he hired one. (B) Compliance with instructions: A requirement that one comply with instructions about when, where and how to work indicates control. Dial-A-Messenger’s dispatcher tells the drivers where to pick up the parcels and where to deliver them. The parcel must be picked up within sixty minutes after receiving the assignment. The driver is instructed as to Dial-A-Messenger’s charges, which are established by the Arizona Corporation Commission, makes the collection, and places each collection in an envelope marked with the job number, the driver number, date, and amount to be collected. The envelopes are turned in daily to Dial-A-Messenger. Each driver keeps a daily manifest of all pickups and deliveries as required by the Arizona Corporation Commission. The drivers choose their own hours of work, and are free to refuse to perform a particular delivery. The drivers also select their own routes for delivery. Any specific instructions from the customers are communicated directly to the drivers by the customers themselves. The only instructions received from Dial-A-Messenger regarding the manner in which the services are performed arise from Dial-A-Messenger’s duty to make certain that the drivers are familiar with the Motor Carrier Safety Regulations of the Federal Highway Administration and that their activities will not constitute violations of those regulations. This duty arises by virtue of A.C. R.R. R14-5-317(B)(4). (C) Oral or written reports: Written reports to the employing unit regarding the method by which services are performed indicate control in that the worker must account for his actions. The drivers of Dial-A-Messenger submit manifests which are invoices displaying the job identification number, the driver’s identification number, the dates and amounts of charges. These records provide the basis for paying the drivers and are required by regulation. There is no evidence in the record that the drivers are required to submit any reports regarding the manner or method by which their services are rendered. (D) Personal performance: Services which must be rendered personally indicate the employing unit is interested in the method as well as the result. The agreement between Dial-A-Messenger and the drivers states that the agreement is for personal services and is not assignable or transferable. Thus, it would appear that the drivers are precluded from hiring a substitute to make the delivery. (E) Establishment of work sequence: A requirement that services be performed in the order or sequence set for him by the employing unit indicates that the worker is subject to control in that he is not free to follow his own pattern of work. The drivers for Dial-A-Messenger are directed as to where and when to make deliveries by the dispatcher who has the authority to set priority on deliveries. This element of control is attenuated by the fact that the drivers have the right to refuse to make a particular delivery. (F) Right to discharge: The right to discharge as distinguished from the right to terminate a contract is an important factor indicating that the person possessing the right has control. With respect to termination, the agreement between Dial-A-Messenger and the drivers provides: 5. The Company and Contractor shall have the mutual right to cancel this agreement if performance is deemed inadequate by either party. 6. The term of this Agreement is from month to month, and either party shall notify the other party verbally or in writing of their desire and intention to terminate the agreement. Upon notification, the agreement shall be cancelled immediately. The agreement does not provide that the driver may be terminated without notice, without cause, for failure to use specified methods, or for failure to make services available to the public on a continuing basis, any of which would indicate the right of control according to the regulation. R6-3-1723(C)(2)(g). Instead, the agreement provides for termination upon notice and is therefore not indicative of the existence of the right to control. The record indicates that the dispatcher and Neil Pritt have the right to discharge drivers. Pritt testified that he discharged one driver for drinking on the job and another for verbal abuse toward another employee. Such evidence indicates that the drivers may be discharged with cause, but there is no evidence that drivers are discharged without cause. (G) Set hours of work: The drivers of Dial-A-Messenger are free to choose their own hours of work, which indicates lack of control by the employing unit. The testimony indicates that most of the drivers work full eight-hour days, five days a week. Some drivers work part time, and one worked only on Mondays. (H) Training: The drivers are trained only to fill out the manifest and other paperwork, and to use the mobile radio. Such minimal training is not indicative of control by the employing unit. (I) Amount of time: The devotion of a worker full time to the activity of the employing unit indicates control by the employing unit. While most of the drivers work full time for Dial-A-Messenger, this appears to be more a result of individual preference than a requirement imposed by Dial-A-Messenger. The employment agreement specifically states that Dial-A-Messenger desires the services of the drivers on a nonexclusive basis. (J) Expense reimbursement: A lack of control is indicated where the worker is paid on a job basis and must pay his own incidental expenses. The drivers for Dial-A-Messenger pay all their own expenses, including insurance, car maintenance, fuel, oil, commercial license plates, and ACC stamps. Four of the drivers use company-owned vehicles. These drivers receive a smaller percentage of the charges as their commission, thereby in effect shifting the operating costs to the drivers. They still pay for their own gasoline. In addition to the indicia of control previously set forth, A.C.R.R. R6-3-1723(D) suggests certain factors which indicate an independent status: (1) Availability to the public: The fact that an individual makes his services available to the general public on a continuing basis is usually indicative of independent status. In this case, the driver’s availability to the general public was limited by A.R.S. § 40-607(C), which would prevent the issuance of a certificate of convenience and necessity to operate a common motor carrier over a route or in a territory already served by common carrier except “when the existing common motor carrier operating over the route or serving the territory, will not provide service of a character and over an area deemed satisfactory by the commission.” Thus, since Dial-A-Messenger was authorized to provide a parcel delivery service in the Phoenix area, the individual drivers did not possess the requisite certificate of convenience and necessity from the Commission in order to make their services available to the public. See Corporation Commission v. Pacific Greyhound Lines, 54 Ariz. 159, 94 P.2d 448 (1939). (2) Compensation on job basis: The drivers are paid at the end of each week on a per job commission basis, which is indicative of an independent contractor status. (3) Realization of profit or loss: The income of the drivers depends upon the relationship of their expenses to their earned commissions. Thus, they are in a position to realize profit or suffer loss, which indicates an independent contractor status. (4) Significant investment: Most of the drivers supply their own vehicles for their delivery service. Although the radio and paging devices are supplied by Dial-A-Messenger, the drivers must pay a deposit for their use. Such investment indicates an independent status. It appears from the foregoing that Dial-A-Messenger exerts control over the drivers in very limited respects. The drivers are required to keep a daily manifest of pickups and deliveries, and they are required to be familiar with the Motor Carrier Safety Regulations of the Federal Highway Administration. The vehicles owned by the drivers must be leased to the company, and identify the company as the operating carrier. Furthermore, the drivers must obtain general liability motor vehicle insurance in an amount not less than that required by the Arizona Corporation Commission. All these elements of control are required by law, however, and should therefore be excluded from the balancing procedure in determining the status of the drivers. A.R.S. § 23-613.01(AX2). Other elements of control present in this case include directions given by the dispatcher as to where and when to make deliveries (attenuated by the driver’s ability to refuse to make the delivery) and the requirement for the personal services of the driver. After considering all factors involved, we conclude that the evidence is insufficient to establish the degree of control over the manner in which the drivers perform their services necessary to establish an employer-employee relationship. Therefore, Dial-A-Messenger is not required to pay unemployment taxes on the drivers’ earnings. For the reasons set forth, the decision of the Unemployment Insurance Appeals Board is reversed. EUBANK, P. J., and HAIRE, J., concur. . This section has since been amended by Laws 1981, Ch. 246, § 2. . Those conditions were: 1) such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; 2) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and 3) such individual is customarily engaged in an independently established trade, occupation, profession, or business. . Applying the common law rules “realistically” was further explained in Illinois Tri-Seal Products, Inc. v. United States, 353 F.2d 216, 228 (Ct.Cl.1965): [T]he end-point determination — whether for whom the services are performed as an “employer” within the common-law meaning of that term — must be made on the basis of actual reality by looking to the substance of the arrangement and giving weight to all relevant factors. . The full text of A.C.R.R. R6-3-1723(C) setting forth factors adopted by the Department of Economic Security is reproduced in Smith v. Arizona Department of Economic Security, 128 Ariz. at 25-27, 623 P.2d at 814-16. . This restriction has presumably been eliminated by deregulation of Arizona common motor carriers. See Laws 1981, Ch. 207, effective July 1, 1982. . A.R.S. § 23-613.01(A) provides: [E]mployee does not include: 2. An individual subject to the direction, rule, control or subject to the right of direction, rule or control of an employing unit solely because of a provision of law regulating the organization, trade or business of the employing unit.

OPINION HOWARD, Chief Judge. This is an appeal from a granting of a summary judgment in favor of appellee. The facts are not in dispute and only a question of law is involved. Section 19-91 of the Tucson City Code imposes a business privilege tax on certain business activities. The code sets forth three conditions which must be met before the activity is not taxable. (Sections 19-91(1), (2) and (3).) The transfer of title and possession of the item must occur without the corporate limits of the city, the order for the item must be placed without the corporate limits of the city, and the item must not have been stored, stocked or warehoused within the corporate limits of the city. The issue in this case is whether certain cars delivered to appellee for predelivery servicing were “stored, stocked or warehoused” in the city. We hold they were not and affirm. The main office of M. M. Sundt Construction Company is located outside the corporate limits of the City of Tucson. Sundt special ordered vehicles and equipment from its main office. The vehicles were shipped by Ford Motor Company from outside the State of Arizona to Sundt stopping en route at Jim Click Ford, Inc. in Tucson, where they remained at most two days for pre-delivery servicing which every vehicle must receive. They were washed, fluid levels were checked, bolts were tightened and general service was provided to secure the vehicles which were then immediately delivered to Sundt. Transfers of title and possession of the vehicles occurred without the corporate limits of the City of Tucson. Two rules of statutory construction are involved here. Tax statutes are to be strictly construed against taxing authorities and any ambiguities are to be resolved in favor of the taxpayer. Honeywell Information Systems v. Maricopa County, 118 Ariz. 171, 575 P.2d 801 (App.1978). Words and phrases in statutes shall be given their ordinary meaning unless it appears from context or otherwise that a different meaning is intended. McIntyre v. Mohave County, 127 Ariz. 317, 620 P.2d 696 (1980). The words at issue are defined in Webster’s Third New International Dictionary. “To store” means “to leave or deposit in a store, warehouse or other place for keeping, preservation or disposal.” “To stock” means to “get or have (as merchandise) in stock.” “To warehouse” means “to deposit, store, or secure in a warehouse” or “to put or hold in safekeeping.” The equipment was not being held by appellee for safekeeping, or preservation or disposal. The trial court was correct in granting summary judgment to appellee. Affirmed. HATHAWAY, J., and JAMES C. CAR-RUTH, Superior Court Judge, concur. NOTE: Judge BEN C. BIRDSALL having recused himself in this matter, Judge JAMES C. CARRUTH was called to sit in his stead and participate in the determination of this decision.

GORDON, Vice Chief Justice: Appellant Arnold Ray Tucker was convicted by a Yuma County jury of one count of first degree murder, one count of armed robbery, and two counts of armed kidnapping — all under our former criminal code. The trial court sentenced him to life imprisonment for the murder and to three concurrent terms of 10 to 30 years on the other charges. Appellant then appealed to this Court. We have jurisdiction pursuant to Ariz.Const. Art. 6, § 5(3) and A.R.S. § 13-4031 ((formerly A.R.S. § 13-1711). Appellant raises a number of issues. We need only consider his speedy trial claim. The convictions are reversed and the charges are dismissed with prejudice. Appellant was initially tried in 1976. The evidence showed that appellant had the victims come to his residence so that they could buy marijuana from appellant’s cofel-ons. Rather than complete the sale, appellant and his cofelons had planned to rob the victims. After introducing the victims to the cofelons, appellant apparently left the scene. Appellant’s cofelons then robbed and kidnapped both victims and drove away from the residence. During the flight from the robbery scene, one victim was killed and the other narrowly escaped. Although there was evidence that appellant had no knowledge that a murder would occur, he was equally culpable with the other cofel-ons of felony murder (former A.R.S. § 13-452) because he aided and abetted (former A.R.S. §§ 13-139, -140) the robbery. Appellant’s original convictions were affirmed by this Court with two justices dissenting (one joining the dissent only in part). State v. Tucker, 118 Ariz. 76, 574 P.2d 1295 (1978), cert. denied, 439 U.S. 846, 99 S.Ct. 144, 58 L.Ed.2d 147. Appellant thereafter sought habeas corpus relief in the federal courts. The Federal District Court of Arizona, adopting the dissenting opinion in the state case, granted the requested habeas corpus relief. Tucker v. Raines, No. Civ. 79-455 PHX-WPC (D.Ariz., order filed July 16, 1979). The district court ordered the state to retry appellant within 60 days or else release him from custody pending retrial. The order was stayed pending an appeal to the Ninth Circuit. On appeal, the Ninth Circuit affirmed the district court. Tucker v. Raines, 626 F.2d 867 (9th Cir., 1980). When the Ninth Circuit’s opinion was filed, the clerk of the court sent the following notice to defense counsel and the Arizona Attorney General (who was representing the state in the federal court proceedings): “NOTICE OF ENTRY OF JUDGMENT “Judgment was entered in this case as of the file stamp date on the attached decision of the court. * * * * * * “Issuance of the Mandate (FRAP 41) “The mandate is the certified copy of the judgment. The mandate is scheduled to be issued 21 days from the entry of judgment unless the court directs otherwise. A timely petition for rehearing will stay the issuance of the mandate. If the petition is denied, the mandate will be entered 7 days later. * * * ” (Emphasis in original.) The state took no further action, and the judgment/mandate was entered on August 18,1980 per the rule explained in the notice. When defense counsel received notice of the Ninth Circuit’s decision, he wrote a letter to the assistant attorney general handling the case and demanded a new trial or release of his client as previously ordered by the district court. Defense counsel sent a copy of this letter to the Yuma County Attorney. Believing that a separate document entitled “mandate” would be, but had not yet, been filed by the Ninth Circuit, the assistant attorney general advised the Yuma County Attorney to take no action on appellant’s demand until a mandate was received. The state never sent appellant a response to the letter. When the instant case returned to the Yuma County Superior Court, the state had 60 days from the entry of the judgment/mandate to retry appellant or release him by virtue of the federal district court’s order. Further, appellant argued that Ariz. R.Crim.P. 8.2(d) required a retrial within 60 days of the date when the state received the Ninth Circuit’s judgment/mandate— August 26, 1980. Thus, appellant’s trial should have commenced or he should have been released by October 17,1980 under the federal order. Rule 8.2(d), if applicable, required a trial by October 27, 1980. The state made no attempt to schedule appellant’s trial during this interval until appellant filed in state superior court a motion to dismiss the prosecution after the 60 days of the federal order expired. At the same time, appellant moved in federal district court to have the state release him. The state opposed both motions and requested that a trial date be set by the superior court. The hearing in superior court took place on October 27, 1980. Appellant’s motion to dismiss was denied and a trial was set for November 18, 1980, as the court found justification for the state’s delay. Ariz.R.Crim.P. 8.2(d) requires a retrial within 60 days after the “service of the mandate.” The deputy county attorney prosecuting appellant stated that he never received a mandate from the federal courts or the Attorney General. The trial court held that the confusion caused by the interface of the federal and state rules and the Attorney General’s office and Yuma County Attorney’s office excused the neglect in scheduling a retrial. On November 3,1980, the federal district court denied the state an extension of time to comply with its retry or release order and ordered that appellant be released pending retrial. The parties appeared again in superior court on November 5,1980 to enforce the federal court’s order. At the hearing, the deputy county attorney “requested” the court to dismiss the prosecution without prejudice to avoid the speedy trial limits of Rule 8.2(d). When the court asked if the state was moving for a dismissal without prejudice, the prosecutor correctly replied that the state could not make such a motion due to Rules 8.6 and 16.5(a). The prosecutor then stated that he was merely “submitting” the matter to the court for its consideration. Over appellant’s vigorous objections and pursuant to Rule 8.6, the court dismissed the case and did so without prejudice by finding that the state’s delay was justified. The court also ordered that the appellant be released forthwith. While appellant was being processed out of jail, the state filed a new case (the instant case) charging the same offenses as in the original prosecution. Before appellant could be released from jail, he was arrested and held pending trial of the new case. The filing of the new case apparently also gave the state 90 days from the new arraignment to try appellant. Rule 8.2(b). Appellant finally went to trial on February 11, 1981 and was convicted. The speedy trial issue is now before us on appeal from appellant’s conviction. At the outset, the state argues that appellant has waived his right to raise the speedy trial issue. It argues that appellant should have brought a special action sometime before the new trial started so that there would not be an unnecessary trial. Although we agree that a special action on speedy trial issues promotes judicial economy, we do not believe appellant waived any rights. First, this Court has often considered speedy trial arguments on appeal and has never required that they be brought by way of special action. Second, appellant’s failure to bring a special action may be attributed in part to the statements of the state’s representative. When appellant appealed the dismissal of the original case without prejudice, the state moved for dismissal of the appeal arguing in part that “appellant is free to raise his challenges after judgment and sentence in a timely filed Opening Brief.” The state’s motion to dismiss the appeal was thereafter granted. These facts do not support a finding of waiver. We must first determine what speedy trial rule applies to appellant’s original case. The parties and the trial court assumed that the speedy trial time limits of Ariz.R.Crim.P. 8.2(d) would apply. Rule 8.2(d) requires a retrial within 60 days of the service of the mandate when a defendant’s conviction is reversed on appeal in the state courts. Rule 8.2 is not explicit as to the time period within which a retrial must be had when a defendant is granted habeas corpus relief in federal court, however. We hold that the parties were correct in assuming that Rule 8.2(d) applies in such cases. The state’s position after a federal court grants a state prisoner habeas corpus relief is analogous to the state’s position after a state court reverses a defendant’s convictions. In both situations, the state has investigated, assembled, and tried the case once, and it need only reassemble its evidence. Furthermore, a defendant who must go to federal court to have a faulty conviction declared invalid should be entitled to no less speedy trial protection than a defendant who finds relief in the state courts. Therefore, Rule 8.2(d) gives a defendant granted federal habeas corpus relief the right to be retried within 60 days after the federal mandate is served. We next turn to whether there was a speedy trial violation under Rule 8.2(d). Rule 8.2(d) requires a retrial after reversal of a conviction within 60 days from “service of the mandate” from the appropriate court. The Notice of Entry of Judgment sent by the Ninth Circuit after its affirmance of the district court could not be clearer in its discussion of the mandate. The certified copy of the judgment would be the mandate, and the judgment/mandate would be filed 21 days from the entry of judgment. The mandate was indeed so filed on August 18, 1980 and the Attorney General was served the mandate on August 26,1980. For purposes of the present case, this service made October 27, 1980 the last day for appellant’s trial to commence. Any confusion the state argues it had might have been alleviated had it responded to appellant’s letter requesting a timely trial. Because the trial did not commence by October 27,1980 (and indeed was not scheduled for November 18, 1980 until a hearing was held on October 27), appellant’s speedy trial rights under Rule 8.2 were violated. Having found such a violation, we now must decide whether dismissal of the charges should have been with prejudice. See Rule 8.6. Rule 8.6 gives no guidelines to determine whether a dismissal should be with or without prejudice. When dealing with the allegation of a denial of the Sixth Amendment right to a speedy trial, the court must consider the length of the delay, whether the defendant has demanded a speedy trial, the reason for the delay, and the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Rule 8 speedy trial right is more restrictive of the state than the Sixth Amendment and does not require the analysis espoused by Barker. See State ex rel. Berger v. Superior Court, 111 Ariz. 335, 529 P.2d 686 (1974). In fact, the unspecified length of delay necessary to a Sixth Amendment violation under Barker is superseded in Arizona by the narrowly drawn time limits enumerated in Rule 8.2. Further, Rule 8 generally does not require the defendant to make any demand to preserve the speedy trial right. Rojas v. Superior Court, 100 Ariz. 364, 414 P.2d 740 (1966); State v. Lee, 25 Ariz.App. 220, 542 P.2d 413 (1975). Nevertheless, the other two prongs of the Barker analysis — the reason for the delay and the prejudice to the accused — are helpful guidelines in deciding whether a dismissal on speedy trial grounds should be with or without prejudice. The state argued before the trial court that its neglect in retrying appellant was excusable. The argument is that there was confusion over when the Rule 8.2 time limits would begin due to a misunderstanding as to the effect of the certified copy of the judgment/mandate. The Attorney General received the mandate but was not the prosecutor for retrial. The Yuma County Attorney was the prosecutor for retrial but never received the mandate. The Yuma County Attorney was never told that the mandate had been received because the Attorney General’s office never realized that the mandate had been served. We understand how such a mix-up can occur when one office of the state is handling trials and another office of the state is handling appeals and post-conviction petitions. Nevertheless, for purposes of guaranteeing a criminal defendant’s rights, the state and all its offices must be considered a single entity. Communication between the Attorney General and Yuma County Attorney must be a problem for those offices and not a problem for appellant. Therefore, the Yuma County Attorney is charged with service of the mandate on August 26, 1980. The state’s neglect in not setting trial within 60 days thereafter is not justified. Appellant was also prejudiced by the state’s actions. Whatever the motives, the state’s conduct resulted in subversion of the federal court’s order to retry appellant within 60 days of a final decision in the case or release him pending retrial. By the time the 60 days expired, the state had not scheduled a retrial, had not released appellant, and had not answered his letter requesting a timely retrial. When on October 27 the state finally requested a date for a new trial, the trial was set for November 18 and appellant was still not released. Appellant had to return to federal court where on November 3 he obtained an order for his release. Appellant then had to bring this order back to superior court on November 5 to obtain his release. At this time, the state deftly maneuvered to keep appellant in custody. The state dodged Ariz.R.Crim.P. 16.5(a)’s prohibition of the prosecutor moving for a dismissal “to avoid the provisions of Rule 8” by submitting the matter and the state’s recommendation to the court for action on the court’s own motion. When the court then decided to dismiss without prejudice on “its own initiative” under Rule 8.6, the state achieved in substance what Rule 16.5(a) precludes. The state circumvented the federal court’s release order by then filing a new case and detaining appellant pursuant to those charges before he could be released. We cannot condone such gamesmanship within the letter but not the spirit of the law. The result of the state’s conduct was to subvert appellant’s right to a speedy trial to keep him in custody. One of the primary purposes of the right to a speedy trial is to “minimize the possibility of lengthy incarceration prior to trial.” United States v. MacDonald, - U.S. - , -, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696, 704 (1982). Delayed pretrial incarceration of a defendant, “wholly aside from possible prejudice to a defense on the merits, may ‘seriously interfere with the defendant’s liberty * * * [and] may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ ” Moore v. Arizona, 414 U.S. 25, 27, 94 S.Ct. 188, 190, 38 L.Ed.2d 183, 186 (1973) (quoting Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Thus, the appellant’s continued pretrial incarceration prejudiced him. It is with great consternation that we reverse a criminal conviction of such a serious nature solely because the state dallied too long in bringing appellant to trial. But the state’s violation of appellant’s right to a speedy trial was not minor. If we are to preserve the efficacy of the right to a speedy trial in Arizona, we must reverse the conviction and dismiss the prosecution with prejudice when presented with facts such as those in the instant case. The conviction is reversed; the case is remanded to the superior court with instructions to dismiss the prosecution with prejudice. CAMERON and FELDMAN, JJ., concur. . October 25, 1980, which was 60 days after August 26, 1980, fell on a Saturday. October 27 was the first day after that on which a trial could be held. . The trial court’s dismissal of the original case without prejudice was not an appealable order under A.R.S. § 13-4033. . The practical problem with such a rule is illuminated in the instant case. In the Arizona court system, the appellate court always sends a mandate to the clerk of the relevant superior court. The Ninth Circuit’s certified copy of judgment was its mandate, however, and this judgment/mandate was not sent to the state courts. A court cannot comply with its duty to schedule a defendant’s trial if it is unaware that the defendant should be tried. It appears in the present case that defense counsel may have informally sent copies of the federal orders and judgments to the Yuma County Superior Court. In the future, we suggest that either the prosecution or the defense serve upon the clerk of the appropriate superior court a certified copy of any federal judgment or mandate affecting a case in the superior court. Nevertheless, the state in the present case has never argued that the speedy trial limits did not begin running when it received a copy of the Ninth Circuit’s j udgment / mandate. . See note 3, supra. . These cases were modified by Rule 8.1(d) which became effective on August 1, 1975. That rule states: “The defendant’s counsel shall advise the court of the impending expiration of time limits in the defendant’s case. Failure to do so may result in sanctions and should be considered in determining whether to dismiss an action with prejudice pursuant to Rule 8.6.” The official comment declares that the rule was added “in light of State ex rel. Berger v. Superior Court, 111 Ariz. 335, 529 P.2d 686 (197[4]) to equalize the burden of speedy trial compliance between the defense and the prosecution.” In State ex rel. Berger, a long series of motions and hearings intervened between the date of arrest and the eventual trial date. An important issue on appeal was whether the delays caused by these interruptions should have been excluded under Rule 8.4. This Court concluded that some of the delays were nonexcluded time and that the defendants’ speedy trial rights had been denied. We stated that it is the prosecutor who has the main duty to insure a speedy trial but held that when the trial court is the cause of noncompliance with the Rule 8.2 time limits, a dismissal may be without prejudice. We believe Rule 8.1(d) was meant to apply only in cases similar to State ex rel. Berger, i.e., when a pretrial motion or hearing causes a trial to occur later than expiration of the original Rule 8.2 time limit. In such cases, there will always be an issue as to whether the delay was an excluded or nonexcluded period under Rule 8.4. The accused may not lie poised until the Rule 8.2 limit runs and then pounce with a claim of denial of a speedy trial because the delay was nonexcluded time. The prosecution and defense both have a duty to request resolution of the Rule 8.4 issue before a speedy trial violation occurs. But when there are no intervening delays between the event that triggers Rule 8.2 and the expiration of the Rule 8.2 time limit, the accused need not demand compliance with the time limits. Unlike the Sixth Amendment wherein the time limit for a speedy trial is unspecified, Rule 8.2 is quite explicit about the time within which an accused must be brought to trial. If nothing interferes with the running of the Rule 8.2 period, the accused should not need to visit the courthouse every so often to remind the court to check the countdown. Thus, Rule 8.1(d) is inapplicable in the instant case because no delay occurred between the service of the federal mandate on the state and expiration of the Rule 8.2(d) 60 day time limit. Moreover, we note that although appellant never made any demands on the court for a speedy trial, he did make such a demand by letter to the Attorney General and Yuma County Attorney. Also, the state has not argued at any stage that Rule 8.1(d) should operate in this case to preclude a dismissal with prejudice.

HOLOHAN, Justice: The Appellant, Charles Lowell Miller, entered a plea of guilty to an amended information charging the offense of attempted rape. He was sentenced to confinement in the State Prison and filed a timely appeal. The record discloses that the Appellant also entered a plea of guilty to an amended information charging the offense of lewd and lascivious acts, and the proceedings as to this amended information took place at the same time and before the same trial judge, but it bore a separate number in the trial court, and there was no formal order consolidating the two cases. An appeal was taken from the judgment and sentence on the amended information charging lewd and lascivious acts, but the appeal was to the Court of Appeals. Pursuant to Rule 47(e) 5, Rules of the Supreme Court, 17 A. R.S., we ordered the appeal transferred from the Court of Appeals to this Court, and we have consolidated the matters for determination since all the issues presented are identical. The Appellant was originally charged during August, 1970, with three informations. Cause No. 63936 charged the Appellant with the offense of rape. Cause No. 64026 charged him with grand theft and aggravated battery, and Cause No. 64039 charged him with aggravated battery, assault with a deadly weapon and lewd and lascivious acts. Shortly after Appellant’s arraignment in September, 1970, his appointed counsel filed a motion for examination of the Appellant’s mental condition pursuant to A.R.S. § 13-1621. The motion was granted, the Appellant was examined by two psychiatrists and thereafter a hearing was held at which the trial court found that the Appellant was unable to understand the nature of the proceedings or to assist counsel in his defense. The Appellant was committed to the State Hospital for treatment. The Appellant remained in the State Hospital for a little over two months, and in December, 1970, the Superintendent of the State Hospital forwarded to the trial judge the reports of the treating psychiatrists who reported that the Appellant was not suffering from any mental illness or defect and that he was able to understand the charges against him and assist his counsel in his defense. After receiving the reports, the trial court, as required by A.R.S. § 13-1621, subsec. H, par. 4, set the matter for hearing. On January 25, 1971, the matter was heard, and, by stipulation of counsel, oral testimony was waived, and the records and reports of the psychiatrists were submitted as the evidence in the cause. The trial court took the matter under advisement. Unfortunately, the record does not disclose that the trial judge ever made a ruling on the matter, and the record fails to show that the trial court ever determined that Appellant was able to understand the proceedings against him and to assist counsel in his defense. The several informations were set for trial, but on April 21, 1971, Appellant appeared before the trial court for the purpose of changing his plea to amended in-formations which were to be filed pursuant to a plea bargain entered into between Appellant and the State. The record discloses that Cause No. 64039 charging aggravated battery, lewd and lascivious acts and assault with a deadly weapon was to be dismissed and that a pending complaint in the Northeast Justice Court of Maricopa County, Cause No. 14535, charging a confidence game, was also to be dismissed. An amended information in Cause No. 63936 was to be filed, charging attempted rape, and an amended information in Cause No. 64026 to charge lewd and lascivious acts was to be filed. The trial court permitted the filing of the amended informations and interrogated Appellant to determine whether his offered plea was made voluntarily, intelligently and understandingly. After the interrogation the court concluded that the requisites for accepting the plea were presented on the record, and the court accepted Appellant’s plea of guilty to each of the amended informations. On October 13, 1971, sentence was imposed, and Appellant was sentenced to not less than 1 nor more than 5 years in Cause No. 64026, and not less than 8 nor more than 12 years on Cause No. 63936. The sentences were ordered to run concurrently and each sentence was to commence on July 29, 1970, the date upon which the Appellant was first incarcerated on any of the charges. The single issue presented by this appeal is, whether the Appellant understood the nature of the charges against him. On the record the interrogation by the trial court shows an attempted compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). However, counsel for Appellant points out that nowhere in the record is there a finding by the trial court that the Appellant was able to understand the proceedings and assist counsel in his defense. In State v. Blazak, 105 Ariz. 216, 462 P.2d 84 (1969), we provided that A.R. S. § 13-1621, even though prescribing certain rules of procedure, would be applied in all cases until specifically modified or suspended by rules promulgated by this Court. It is clear that A.R.S. § 13-1621, subsec. H, par. 4, requires that there be a hearing after a defendant is returned from the State Hospital, and that the hearing is to determine whether the defendant is able to understand the nature of the proceedings and assist counsel in his defense. We held such hearing to be mandatory in State v. Blazak, supra: “This statute provides that where the defendant has previously been committed to the State Hospital, the trial court ‘shall conduct another hearing to determine whether the defendant is able to understand the proceedings against him and to assist in his own defense.’ A.R.S. § 13-1621, subsec. H, par. 4. (Emphasis supplied.) This wording is mandatory and substantive. . . .” (105 Ariz. 218-219, 462 P.2d 86) The hearing was held, but the court, according to the record, did not make a finding as to whether the Appellant was able to understand the proceedings or assist counsel. As we pointed out in State v. Davis, 106 Ariz. 598, 480 P.2d 354 (1971), it is contradictory to argue that a defendant may be incompetent and yet knowingly or intelligently waive a right. It is necessary that these causes be returned to the trial court and that the trial judge make a ruling- on the matter submitted to him on the hearing of January 25, 1971. If the trial court finds that the Appellant was able to understand the nature of the proceedings and to assist counsel in his defense he will adyise this Court by appropriate finding, and if the finding is supported by the evidence the judgment of conviction in each cause will be affirmed. If the trial court finds that the Appellant was not able to understand the nature of the proceedings or assist counsel in his defense the trial court is directed to set aside the plea of guilty, reinstate the original in-formations, and proceed according to law. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and LOCKWOOD, JJ., concur.

HOLOHAN, Justice. Fernando Soza Moreno entered a plea of guilty to a charge of sale of heroin in violation of A.R.S. § 36-1002.02. He appeals his conviction and sentence of 8 to 10 years in the State Prison raising one issue: Was the sentence excessive in light of the fact that a witness at a mitigation hearing testified that Moreno would be accepted in a drug rehabilitation program if probation were ordered? We have held that in determining what sentence a defendant should receive “the trial judge is, in most instances, better able than we to evaluate him and to determine what is necessary to rehabilitate him to constructive activity.” State v. Maberry, 93 Ariz. 306, 309, 380 P.2d 604, 606 (1963). Absent a showing of arbitrary or capricious action on the part of a trial judge, the imposition of a lawful sentence and the denial of probation will be sustained on appeal. State v. Gray, 105 Ariz. 30, 459 P.2d 82 (1969). Where, as here, probation is denied for an admitted seller of heroin, we feel no compulsion to invalidate the action of the trial court. A denial of probation to one who sells narcotics is certainly not an action which we consider to be arbitrary or capricious. See State v. Tyree, 109 Ariz. 259, 508 P.2d 335 (1973). In searching the record of this case for fundamental error as required in A.R.S. § 13-1715, and Anders v. California, 386 U. S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we have found two irregularities. One concerning the plea taking, and the other dealing with the legality of the sentence. While the record reflects that the plea was voluntarily made, there is nothing in the record to show that the defendant was advised that he was waiving two rights deemed fundamental in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Since there is no showing that Moreno knew he was waiving both the right to confront his accusers, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and the privilege against self-incrimination, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the trial court is directed to make findings of fact concerning these matters and to advise this Court of those findings. State v. Darling, 109 Ariz. 148, 506 P.2d 1042 (1973). Also, we have found that the sentence in the present case does not comply with the law. In State v. Tyree, supra, we pointed out that A.R.S. § 36-1002.02, provides for a mandatory punishment of 5 years to life. See State v. Hays, 109 Ariz. 123, 506 P.2d 254 (1973). No discretion lies in the trial court to alter that term of sentence save for the granting of probation. Although the defendant in State v. Tyree, supra, was not prejudiced by his improper sentence, here Moreno’s 8 year minimum is 3 years more than the 5 year minimum prescribed by the statute. A.R.S. § 36-1002.02 subsec. A. A showing of prejudice in the sentence- requires that the sentence be made to conform with the law. In the present case there would be no alternative but .to correct the sentence of 8 to 10 years to a term of 5 years to life. On remand if it is found that the defendant was not advised of the rights mentioned above, the plea should be set aside and the original information reinstated. However, if the trial court finds that Moreno knew of the rights he was waiving, the court will make findings of fact and impose the legal sentence of 5 years to life. Thereafter, the record together with the findings of the trial court will be returned to this Court, and if there is evidence -to support the findings that the plea of guilty was knowingly made, we will affirm the conviction. The case is hereby remanded for proceedings consistent with this opinion. '• HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER, and LOCKWOOD JJ., concur.

HOLOHAN, Justice: The defendant, Nathaniel Bainch, was tried and found guilty of robbery. He appeals from the judgment of conviction and sentence of five to six years in prison. The record discloses that on July 3, 1970, Pedro Iglesias, an 80-year-old man, had been shopping at a J. C. Penney store' in Phoenix. He was sitting on the sidewalk, with a shopping bag full of purchases at his side, waiting for a bus to take him back to his home in Glendale. A man, subsequently identified as the defendant, Nathaniel Bainch, suddenly “grabbed” the bag from Iglesias, and threatened him with a drawn knife. Iglesias attempted to get his bag back, but was cut on the arm by the knife, and pushed down into the street. The assailant fled, but Iglesias followed and saw him enter a tavern. Iglesias then summoned two nearby police officers. Upon entering the tavern he pointed to Bainch, the defendant, who was seated therein, and stated: “That is the man that took my bag. That is the bag right there.” A blue J. C. Penney bag was observed leaning against Bainch’s feet. The officer asked: “Is that your bag?” Bainch answered: “Yes, I bought it from a man.” Subsequent examination disclosed that the bag contained a welfare check made out to Igelsias, as well as the items he had purchased. The defendant was arrested, tried, and on the strength of these facts, the jury returned a guilty verdict on the robbery charges. On appeal, the defendant contends that the trial court erred in two matters: (1) Admission of his statement to police officers that he had “bought” the bag; and, (2) Denial of his motion to suppress an in-court identification on the grounds that prior to trial the police has shown only his photograph to the victim. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held: “. . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. At the outset, we note that the statement “I bought it from a man” is neither a confession nor an inculpatory admission, as is customarily found in cases in which Miranda is invoked. In fact, the statement is consistent with defendant’s later testimony that during the approximately five-minute interval between robbery and arrest he had bought the bag from an unnamed serviceman passing through town. We note from the language above that Miranda bars use of “exculpatory” statements as well. The statement by the defendant in response to the question by the police officer is potentially inadmissible under Miranda, provided, of course, that the interrogation was “custodial.” The trial court held a voluntariness hearing and concluded that the defendant was not in custody at the time the statement was made. The question of when “custodial interrogation” begins was defined by Chief Justice Warren in Miranda as: “. . . after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 85 S.Ct. at 1612, 16 L.Ed.2d at 706. In Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), the court held that the Miranda warnings were required before a statement was admissible in all instances of in-custody questioning even outside the police station. A person under arrest and not free to leave the presence of the officer was in custody. The federal Supreme Court did distinguish between investigation and in-custody interrogation: “General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” 384 U.S. at 477, 86 S.Ct. at 1629, 16 L.Ed.2d at 725. Since Miranda the “focus of the investigation” test of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), has been supplanted or redefined to equate it with the custodial interrogation test. Custody is now the crucial issue in determining whether Miranda warnings are necessary before a statement by defendant may be received in evidence against him. See State v. Mumbaugh, 107 Ariz. 589, 491 P.2d 443 (1971). The facts in this case are similar to those in State v. Sherron, 105 Ariz. 277, 463 P.2d 533 (1970). The appellant in the cited case contended that his consent to a search by police officers was not voluntary because the consent had been obtained without having been advised of his constitutional rights pursuant to Miranda. The officers had questioned Sherron without first giving the Miranda warnings, but the officers had advised him that he was not under arrest and no restraint was used. It was clear that Sherron was a suspect, but the officers had not taken him into custody. In approving the admission of both the conversations with Sherron and the items found after the “consent” search, the court said: “Neither Miranda nor Orosco require that a police officer refrain from speaking to any citizen on the streets without the requisite warning. Neither opinion suggests that a police officer is precluded from asking questions of or eliciting help from bystanders in the general vicinity of a crime.” 105 Ariz. at 279, 463 P.2d at 535. The fact that an officer may be suspicious of an individual is not the test as to whether Miranda warnings must be given prior to questioning, nor is the mere presence of a police officer to be considered a restraint on the suspect’s liberty. The vital point is whether, examining all the circumstances, the defendant was deprived of his freedom of action in any significant manner, and the defendant was aware of such restraint. In the latter instance the Miranda warnings are required to be given before the statements of the defendant may be received in evidence against him. On the facts of this case, we find it clear that the defendant was not in custody when he responded to the officer’s question “Is that your bag?” The location of the questioning was a tavern which the defendant had voluntarily entered. The officers had not placed him under arrest, nor had any weapons been drawn. The questioning was extremely brief and spontaneous, and it served to determine if this particular man, through his connection with the bag, should be the subject of further inquiry after a Miranda warning. This case is clearly distinguishable from State v. Evans, 439 S.W.2d 170 (Mo.1969), and Johnson v. Commonwealth, 208 Va. 740, 160 S.E.2d 793 (1968), the authorities cited by appellant. In Evans, the police officer took the defendant, suspected of murder by arson, to the scene of the fire, then to the hospital, then to the emergency room. He questioned him, and stated that a witness had accused him of setting the fire. Finally, a defective Miranda warning was given and the defendant confessed. In Johnson, the defendant was taken from his home at 3 o’clock in the morning, questioned by the sheriff’s office for half an hour, returned home with instructions “not to leave the house,” taken out by law officers the following day to the scene of the crime, questioned further, taken to the sheriff’s office again, and questioned again, whereupon he confessed. These two precedents are inapplicable to the facts of this case where the police officer briefly asked defendant, sitting in a tavern, whether a bag near his feet was his. We hold that the brief conversation in this case comes within the scope of “general on-the-scene questioning” permissible under Miranda without the necessity of advising the subject of his rights. The appellant also argues that it was error for the trial court to rule that the in-court identification was not tainted, on the grounds that prior to trial the police had shown the victim a photograph of the defendant and identified him as the robber. This Court, in State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), established the following principle: “. . . if it can be determined from the record on clear and convincing evidence that the in-court identification was not tainted by the prior identification procedures or from evidence beyond a reasonable doubt that it was harmless, and there is otherwise no error, the conviction will be affirmed.” 104 Ariz. at 384, 453 P.2d at 955. An in-court identification is not tainted if it has “an independent source,” State v. Dessureault, supra. We find no error in the trial court’s ruling that the identification was based on an independent source. The victim, Iglesias, specifically pointed out the defendant to police officers in the tavern shortly after the robbery, singling him out from other people in the bar and from another Negro man sitting next to him. He watched while the defendant was led into the street and arrested, and the contents of the bag removed and identified, all in broad daylight. He stated emphatically in chambers that he could remember the defendant clearly even if he had not been shown the picture, and he commented that the picture shown him was not a very good picture of the defendant. We conclude that the trial court could prcgerly find the in-court identification to be free from taint. No other error appearing on close examination of the record, the judgment of conviction and sentence are affirmed. Affirmed. • HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER, and LOCKWOOD, JJ„ concur.

CAMERON, Vice Chief Justice. This is a special action from a judgment of the Superior Court of Maricopa County granting a motion to dismiss the third party complaint of the defendant, Spur Feeding Company, predecessor of Spur Industries, Inc., against the respondent, Del E. Webb Development Company. We are asked to determine whether a previous decision of this court between the defendant Spur and the third party defendant, Del Webb, is res judicata as to the parties and the facts in this case. The facts necessary for determination of this matter on appeal are as follows. On 17 March 1972, this court rendered its decision in the matter of Spur Industries, Inc. v. Del E. Webb Development Company, 108 Ariz. 178, 494 P.2d 700 (1972), rehearing denied 1972. For a more complete factual background the reader is directed to that opinion. In that opinion we stated that the central question before the court was: “[M]ay the developer of a completely new town or urban area in a previously agricultural area be required to indemnify the operator of the feedlot who must move or cease operations because of the presence of the residential area created by the developer?” We then went on to state: “ * * * Spur is required to move not because of any wrongdoing on the part of Spur, but because of a proper and legitimate regard of the courts for the rights and interests of the public. “Del Webb, on the other hand, is entitled to the relief prayed for (a permanent injunction), not because Webb is blameless, but because of the damage to the people who have been encouraged to purchase homes in Sun City. It does not equitably or legally follow, however, that Webb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact been the cause of the damage Spur has sustained. It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify “those who are forced to leave as a result. “Having brought people to the nuisance to the foreseeable detriment of Spur, Webb must indemnify Spur for a reasonable amount of the cost of moving or shutting down. * * * ” Spur Industries, Inc. v. Del E. Webb Development Company, supra, 108 Ariz. at 186, 494 P.2d at 708. Pending at the time of the above action was the suit in the instant case, Andras, et al. v. Spur Feeding, et al., which was a suit by numerous property owners in the Sun City area seeking damages from Spur as the result of the cattle feeding operation. After the opinion was rendered in this court in Spur v. Webb, supra, Spur filed a third party complaint against Del E. Webb Development Company to obtain indemnity from Webb for damages for which Spur might be held liable to the over 400 plaintiffs. Upon motion of Webb, the third party complaint was dismissed with prejudice by the court with a finding that there was no just reason for delay. Rule 54(b), Rules of Civil Procedure, 16 A.R.S. We granted the petition for special action as we believed there was no adequate or speedy remedy by way of appeal. The respondent Webb contended in the trial court and contends here that the previous opinion of the court in Spur v. Webb, supra, is res judicata as to the facts in this case and that this court’s previous decision resolved against Spur “the issues which Spur has attempted to reassert by way of its third party complaint.” We disagree. Our Court of Appeals has stated: “ * * * Under the doctrine of res judicata an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction is conclusive as to every point which could have been raised by the record, and decided with respect to the parties thereto. Day v. Wiswall’s Estate, 93 Ariz. 400, 381 P.2d 217 (1963). The doctrine of res judicata binds the same parties standing in the same capacity in the subsequent litigation on the same cause of action, not only upon the facts actually litigated, but also upon those points which might have been (even though not expressly) litigated. A. L. Kornman Co. v. Metropolitan Government, etc., 216 Tenn. 205, 391 S.W.2d 633 (1965). Generally, there must be mutuality, not only of the parties, but of the issues to invoke the doctrine of res judicata.” Di Orio v. City of Scottsdale, 2 Ariz.App. 329, 330, 408 P.2d 849, 850 (1965). A reading of the opinion in Spur v. Webb, supra, leads us to the inescapable opinion that it is not res judicata as to the parties before the court in the instant case. The previous opinion of this court in Spur v. Webb, supra, concerned itself with two parties and only two questions: 1. whether Spur’s operation should be enjoined, and, 2. if so, who was going to pay for the cost of closing or moving. In the present case before the court, we are concerned primarily with: 1. whether each of the over 400 plaintiffs have sustained any damages as a result of Spur’s previous operation, and 2. if so, whether Webb’s conduct as to each of the individual plaintiffs is such that Webb should be required to indemnify Spur as to any damages the court might find the plaintiffs are entitled to receive. , Not only are the parties different, but the facts of the case are different than those of the prior case of Spur v. Webb, supra. Defendant Spur is entitled to have litigated the conduct of Webb as to each of the plaintiffs and to have the question of indemnity litigated as to each of them. ' The judgment of the trial court dismissing the motion of Spur to file a third party complaint should be set aside. Judgment reversed. HAYS, C. J., and STRUCKMEYER, and LOCKWOOD, JJ„ concur.

HOLOHAN, Justice. This matter comes before us by Special Action in which the petitioner, Arnold Construction Company, Inc., seeks to prohibit the Arizona Board of Regents from awarding a contract to Redden Construction, Inc. We accepted jurisdiction (Ariz. Const, art. 6, § S, A.R.S.) because of the nature of the case and the importance of the issues presented. The facts are not in dispute. The Arizona Board of Regents has authorized a project to construct an addition to the Physical Science Center at Arizona State University to be known as the Physics and Geology Addition. The architect employed by the Regents to design the structure had at the time of this action completed the plans and specifications for approximately sixty per cent of the total project. The Regents decided to commence construction of a portion of the project. Apparently the amount of funds available through legislative appropriation was not sufficient to allow the full project to be built at this time. The phase of construction in question in this case does not in itself involve a structure for the support, shelter and enclosure of persons, animals, chattels or movable property, but it appears to be the foundation works for a building to be constructed. Bids were requested and received by the Regents in connection with the phase of the project, and the low bid was submitted by Redden Construction, Inc. which is licensed by the Registrar of Contractors as a Class B General Building, Heavy Construction, contractor. The second low bidder was Arnold Construction Company, Inc., the petitioner, which is licensed by the Registrar of Contractors as a Class B contractor and a Class A General Engineering contractor. It is conceded that Redden Construction, Inc. does not hold a Class A contractor’s license. Arnold Construction Company, Inc. has protested an award of the contract to Redden Construction, Inc. on the grounds that Redden does not possess the necessary contractor’s license and Redden is therefore ineligible to perform the contract. If Redden does not possess the required contractor’s license to do the work required its bid may not be considered. A.R.S. § 34-241, subsec. A provides: “A. When calling for bids for contracts for public work to be performed on behalf of the state or any political subdivision thereof, which will be paid for from public funds, no bid shall be considered for performance of a contract, including construction work which is not submitted by a bidder duly licensed as a contractor in this state.” The question presented in this case is whether Redden has the proper license for construction of the phase of the project to be built. Redden Construction, Inc. has a General Building contractor’s license (Class B). A.R.S. § 32-1102, subsec. 1 defines such a contractor as: “1. General building contracting. A general building contractor is a contractor whose principal contracting business is in connection with any structure built, being built, or to be built for the support, shelter and enclosure of persons, animals, chattels or movable property of any kind requiring in its construction the use of more than two unrelated building trades or crafts, or to do or superintend the whole or any part thereof, but does not include a person who merely furnishes materials or supplies as provided in § 32-1121 without fabricating them into or consuming them in performing the work of the general building contractor.” The petitioner maintains that the phase of construction which is to be undertaken cannot be accomplished by a Class B contractor because the structure or project to be built is not in and of itself a structure for the support, shelter and enclosure of persons, animals, chattels or movable property. Implicit in petitioner’s contention is the position that the specific job to be built must be considered separately and independent of any reference to the total project contemplated when all phases are completed. Petitioner argues that the only-matter which this Court or the Regents may look to is the type of structure to be built under the contract to be awarded. Under such a view the proposed construction lies outside of the jurisdiction of a General Building contractor, and the proper license, it is contended, would be General Engineering which is defined under A. R.S. § 32-1102, subsec. 2 as: “2. General engineering contracting. A general engineering contractor is a contractor whose principal contracting business is in connection with fixed works requiring specialized engineering knowledge and skills and includes but is not limited to any or all of the following divisions or subj ects: irrigation, drainage, water power, water supply, flood control, inland waterways, harbors, railroads, highways, tunnels, airports and runways, sewerage, bridges, earthmoving projects, paving and transmission lines.” There is no question but that Redden Construction, Inc. has the proper license to construct the total project, that is, the Physics and Geology Addition to the Physical Science Center if the project in its totality had been submitted for construction under a single contract. The Regents argue that if a contractor is properly licensed to do the whole project it is absurd to say that he is not licensed to do a part of that same project. The Registrar of Contractors has filed an amicus brief, and in it he supports the position taken by the petitioner. Essentially, the Registrar argues that a construction contract must be examined as to its four corners and not with regard to extrinsic possibilities or probabilities. Implicit in the argument of the Registrar is the position that the only certainty is the contract to be awarded, and what the project may ultimately be is a matter of speculation based upon factors which may or may not occur. There is, of course, an element of both reason and prudence in the position of the Registrar. The legislature can always decline to fund a project beyond amounts already appropriated. On the other hand, men in all walks of life, including government, act upon reasonable anticipation. It is extremely doubtful that a construction project, once undertaken, which has large sums of money invested in it will be abandoned before the ultimate completion of the building. This is not to say that events and circumstances might occur which would cause an abandonment of a project, but in considering the matter this Court should look to the usual conduct of men in handling their affairs rather than the exceptional occurrence. Government agencies often rely on the fact that once a building project has been authorized, and a portion of the money appropriated, the usual result is that additional funds for the completion of the project will be made available in future appropriations. Even with government, the existence of a large excavation containing concrete foundations and provision for utilities compels the conclusion that funds for the placement of the building on that foundation will probably be forthcoming. The resolution of this case involves the construction to be placed on the statutes governing the licensing of contractors. Unquestionably, in the construction of a statute, the first duty of the Court is to find the intent of the legislature. To arrive at the intention of the legislature we look to the words, context, subject matter, effects and consequences, reason, and spirit of the law. Westinghouse Electric Corporation v. Rhodes, 97 Ariz. 81, 397 P.2d 61 (1964). The purpose of licensing building contractors is for the protection of the public. Northen v. Elledge, 72 Ariz. 166, 232 P.2d 111 (1951). The legislature gave to the Registrar of Contractors the duty to require that those involved in constructions of structures and improvement to real property have the required skill, training and ability to accomplish such construction in a safe and workmanlike fashion. In the case at issue there is no question of the ability of the general contractor, Redden Construction, Inc., to accomplish the project in a safe and proper manner, and, but for the phasing of the project, its license would clearly allow it to build the total proj ect. In the interpretation of a statute the Court should give it a sensible construction which will accomplish the legislative intent and purpose and, if possible, avoid an absurd conclusion or result. Mendelsohn v. Superior Court, 76 Ariz. 163, 261 P.2d 983 (1953). We believe that the position contended for by the petitioner and Registrar would lead to an absurd result without, in any way, accomplishing the statutory purpose. Under the rules issued by the Registrar pursuant to A.R.S. § 32-1105, a general contractor may do all or any part of the work required to be done under any contract which he, under his licenses, is authorized to enter into. Rule 11, Rules and Regulations of the Registrar of Contractors. Under the foregoing rule, Redden could have done the work called for in the contract to be awarded if the total project had actually been submitted for bid and construction. It is certainly an odd result to provide that the contractor is qualified and skilled to build the total building and all its parts, but he is not licensed to build the part of that same whole when it is separated into phases or parts. While courts give great weight to the opinions of those charged with the duty of administering the regulation of a pursuit involving technical expertise, we are not persuaded to follow the opinion of the Registrar in this case because it results in an absurdity which is not necessary under the purpose of the act nor required by a reasonable and fair construction of the wording of the statute. A.R.S. § 32-1102, subsec. 1 describes the structure for support, shelter and enclosure of persons, etc., in terms of “ . built, being built, or to be built . . . . ” We believe that a reasonable interpretation of the language used is that the structure contemplated in the statute includes the product which the owner plans and expects to have built, and the nature of the building to be built is not changed by the fact that the owner elects to have the construction of the building proceed in separate phases or stages. In the instant case the structure to be built is the Physics and Geology Addition to the Physical Science Center which will shelter and enclose persons, and the nature of the structure is not changed by the fact that the Board of Regents have seen fit to proceed with the construction in a series of phases. Redden Construction, Inc. holds a contractor’s license which permits it to construct the addition to the science center, and the same license is sufficient to permit Redden to construct the phase in question. The relief requested in the Special Action is therefore denied. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and LOCKWOOD, JJ., concur.

LOCKWOOD, Justice: This is a special action in the nature of an application for a writ of mandamus requiring Judge Ben C. Birdsall, Presiding Judge in Pima County, to assign to the Honorable Ruskin Lines, Cause No. 128832, Pima County, for hearing, pursuant to R.C.P. 42(f) (1) (F), 16 A.R.S. with the application they filed an acceptance by Judge Ruskin Lines. There were originally six causes consolidated and named in No. 128832 but three are no longer involved. The City of Tucson filed a motion for summary judgment claiming that the magazines in question were obscene “as a matter of law”. The matters were continued several times, awaiting the United States Supreme Court decisions. When the case was assigned for argument on summary judgment and prior to any legal decision being made in the cases, a notice of change of judge was promptly filed in each of the consolidated cases indicating agreement among counsel that the case be assigned to Judge Lines. A consent to have the matter assigned to him was signed and filed by Judge Lines. Thereafter, Judge Birdsall entered the following order: “Court having taken under advisement the reassignment of all pending matters in the above entitled causes of action following a request for change of judge. “IT IS ORDERED that the matter is referred back to the Court Administrator to assign all pending matters to a Judge of the Superior Court in Pima County, other than Judge Lawrence W. Galligan, and for the purpose of setting a date for Hearing.” A conference was held with Judge Birdsall to request that he reconsider his ruling. As a result of said conference Judge Birdsall thereafter entered the following minute entry: “The City Attorney, counsel for the plaintiff appearing before the Court on July 20, 1973 and advising that the plaintiff and defendants, by their counsel, Joseph H. Soble had stipulated to the permanent assignment of the within cases to Honorable Ruskin Lines, Judge of the Superior Court in and for Graham County and requesting that this Court as Presiding Judge order such permanent assignment of the cases and it appearing to the Court upon review of the files that these are not cases which should be permanently assigned to one Judge and it further appearing that no permanent request had been made of this Court to obtain the services of a Judge from outside of Pima County and it further appearing that these are cases which can be assigned to any available local Superior Court Judge, except Hon. Lawrence Galligan, a request for change of Judge having been made as to Judge Galligan. “IT IS HEREBY ORDERED that all pending Motions be set for Hearing on MONDAY, JULY 30, 1973 at 9:00 A.M. on the regular Motion Calendar before an available Judge of this Court other than Judge Lawrence Galligan.” This Special Action is brought to compel Judge Birdsall, Presiding Judge in Pima County to comply with Rule 42(f)(1)(F) and to assign the case for further hearings to Judge Ruslcin Lines. While we are not unmindful of the budgetary problems raised in Pima County when numerous out-of-county judges are assigned to hear matters arising in Pima County, nevertheless, we are constrained to hold that the Rule is clear and unambiguous. It reads: “(F) Assignment of action. After a notice of change of judge is timely filed, the parties shall inform the court in writing if they have agreed upon a judge who is available and is willing to have the action assigned to him. An agreement of all parties upon such a judge shall he honored and shall prechide further changes of judge as a matter or right unless the judge agreed upon becomes unavailable. If, at the end of ten days, or before the time set for trial, whichever comes first, no judge has been agreed upon, then the presiding judge or another judge appointed by the presiding judge regularly to handle such duties shall reassign the action. If a second notice of change of judge is timely filed by a party entitled to do so, the judge who made the assignment shall convene a conference which attorneys for all parties shall attend. At the conference an assignment of the action shall be made to the judge to whom the objections of the parties are least applicable. No further notices of change of judge shall be permitted without court order.” (Emphasis added.) The language is that “an agreement of all parties upon such a judge shall he honored and shall preclude further changes of judge as a matter of right unless the judge agreed upon becomes unavailable.” Judge Lines was agreed upon and signified his acceptance of availability. The language is mandatory, and therefore Judge Birdsall has no discretion but to honor it. Therefore, it is ordered that the Honorable Ben C. Birdsall make and enter his order assigning the matter to the Honorable Ruskin Lines. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and HOLOHAN, JJ., concur.

HAYS, Chief Justice. Defendant, Freddie Delvecchio, appeals from the judgment and sentence of the Superior Court entered on November 17, 1970, for the crimes of attempted robbery and assault with a deadly weapon. He received concurrent sentences of five to fifteen years for each crime. Though represented by counsel at his trial, his appeal is presented in propria persona. His defense was mistaken identity and alibi. Except for the question of the criminal’s identity, the facts are undisputed. On August 20, 1970, a man entered the Dairy Creme establishment at Seventh Avenue and Roosevelt Street in Phoenix, right at closing time — 11:00 P.M. The place was manned by 16-year-old Cathy Grimsley and 19-year-old Darla Barker. The robber came up to the counter and demanded “the money” from Darla at gunpoint. She thought that he was joking. He then pointed the gun at Cathy, ordered her to “come here,” and threatened to put a bullet into her head if she did not give him the money. She said that she did not have it. While this conversation was taking place, Darla picked up an aerosol can of mace and squirted it in the robber’s face. He ducked, and both girls ran into the back room where they called the poliqe. The man fled and was not apprehended at that time. The jury chose not to believe defendant’s alibi, and found him guilty. Defendant’s principal argument is that the in-court identification was tainted by a prior unfair pictorial identification and a prior illegal lineup. As he puts it in his brief, the lineup took place “without notification to, and in the absence of appellant’s court-appointed counsel, David Derickson, Deputy Public Defender.” In addition, the prosecuting attorney showed Cathy a picture of defendant on the morning of the trial, shortly before she testified. The wording of the above-quoted statement implies that counsel had already been appointed to defend the defendant before the lineup took place. This, of Course, could not have been done unless a complaint had already been filed, in which case United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, would apply. At first, it was not clear whether those cases applied to pre-indictment lineups, but all doubts as to when their per se exclusionary rule takes effect were resolved by Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), in which the United States Supreme Court said: “This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell [v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158] case makes clear that the right attaches at the time of arraignment, and the Court has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra [, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387]. But the point is that, while members of the Court have, differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation, .of adversary judicial ' criminal. proceedings — whether by way óf formal; charge, preliminary hearing, indictment,, information, or arraignment.” The difficulty with defendant’s conten-! tion is that the implication is not true. At, the time of the lineup, no complaint had, been filed, no arrest had been made, and. no attorney had been appointed. We base, this statement upon the record which af-. firmatively shows over the magistrate’s! signature that the complaint was filed, on. September 1; that the warrant of arrest issued on September 1; that the warrant,' was served on September 2, at which time, defendant was present and the magistrate, informed him of the charge and of his. right to counsel; and that on September 3, defendant was again present. before the magistrate who on that date appointed the Public Defender to represent the defendant. Defendant himself admits that the lineup about which he complains, took' place on August 31 — a day before, any for- ‘ mal proceedings were started which might-bring his case under the rule of Kirby, supra. Kirby states that it does not! mean that this gives the police a free hand' in conducting suggestive lineups. These may still be attacked under the due process clause of the Fifth and Fourteenth Amend- i ments. However, we have carefully stud-'; ied the transcript and the entire record and. have been unable to find any unfairness or; suggestiveness in either the photographic j identification or the lineup. In each case, the police were meticulously careful to sep-. arate the girls, to show only the faces in' the pictorial presentation so that the' clothes would not influence the choice, and; to pick persons with similar characteristics'’ for the lineup, a picture of which is included in the record. Cathy testified that de-; fendant’s picture was submitted to her with, six or seven others and with no suggestion-that the robber’s was among them; that, she had five minutes to observe the robber ■ at the time of the crime, from only a few; feet away; that at the lineup she recog-. nized defendant “the instant I walked in there”; that “I am positive he is the same person.” Darla testified that the scene of the crime was well lighted; that she was standing within three feet of the robber; that she observed him for three or four minutes; that she also was shown one-half dozen pictures with only the faces visible; that all of .the men in the pictures were dark-complected and about the same age; that she recognized the picture of defendant “immediately”; that she recognized defendant at the lineup “immediately”; that she was “positive” that the defendant in court was the robber. On cross-examination she was asked whether the pictures or the fact that she saw defendant in the lineup helped her identify defendant in court, and she answered, "No. I would still recognize him if I hadn’t seen anything until now.” In our opinion, beyond a reasonable doubt, the in-court identification was untainted by the prior identification procedures. Defendant’s next contention is that because of his counsel’s failure to object to the illegal lineup and the tainted in-court identification, he was denied the effective assistance of counsel-. Since we have held that the lineup was legal and not suggestive, and since we have held that the in-court identification was, beyond a reasonable doubt, untainted, the basis for this contention is absent, and this argument must fall. Defendant’s last argument is that the trial court erred in excluding evidence offered to prove that defendant had on a previous occasion been the victim of a mistaken identity. The picture of defendant which the two girls had identified as that of the robber was introduced in evidence by the State. Defendant elected to take the stand in support of his alibi witnesses. The following language in the reporter’s transcript illustrates the circumstances arid ruling to which defendant assigns error: “BY MR. ESTRADA: [Defense Counsel] “Q Freddy, see that picture there in front of you, State’s Exhibit Number' 1? “A Yes, sir. “Q You say this was taken when? “A About July 15th, somewhere around in there. “Q Do you know the circumstances under which it was taken ? ject, your Honor. “MR. ZETTLER: I’m going to object, your Honor. “That’s immaterial. “THE COURT: Objection sustained, unless it’s strictly material to this case. “MR. ESTRADA: Maybe we had better approach the bench, your Honor. “(The following proceedings took place at the bench, out of the hearing of the jury:) “MR. ESTRADA: Your Honor, there has been a mistake in identity concerning my client before. “He will testify that he has been charged once before and mistakenly identified. “THE COURT: There has been a what? “MR. ESTRADA: There has been a mistaken identification before, and that’s why this picture was taken. “He did it voluntarily on a different charge, but he has been mistaken for somebody else before. “MR. ZETTLER: I would object to that, your Honor. “THE COURT: Well, that’s not material to this particular case. “It’s a question that he let them take the picture on that date. We’re going into collateral issues. “If you go into that, if I permit you to do that, he will want to go on further. “Proceed. “(Conclusion of proceedings at bench.) “MR. ESTRADA: I have no further questions of Mr. Delvecchio.” No offer of proof was made, but we may assume from the tenor of the argument that defendant feels that since he claims he was mistakenly identified in the instant case, he ought to have been allowed to show that this has happened before. We understand from what he said in court, and from what he argues in his brief, that the police, long before the instant case, suspected him of a crime and asked his permission to take his picture to submit to the witnesses; that the witnesses, on seeing his picture which he voluntarily permitted the police to take, refused to identify him as the criminal; and that the police then merely kept the picture in their file until the new attempted robbery. This line of reasoning overlooks the fact that there was not a prior mistaken identity; there was merely a police officer who mistakenly thought defendant had committed another crime — probably because his general description matched what he had been given. But the witnesses did not identify defendant, so there was no mistaken identity based on the picture. Even if there had been, there is some question whether evidence of a prior erroneous identification tends to prove that the identification in the instant case was erroneous. That reasoning is somewhat the same as the reasoning by which a prosecutor used to argue that prior bad acts make it more likely that the accused committed the bad act for which he is being tried. Cases are legion, that such evidence is inadmissible. We cannot accept defendant’s argument that “[i]t may very well be that Appellant stands convicted for the man whom the police had thought Appellant to be on the prior occasion, because this evidence never reached the jury.” One other point must be noted, although it is not advanced in defendant’s brief — defendant was charged with and convicted of both attempted robbery and assault with a deadly weapon against the same girl, Cathy Grimsley. We have held, as recently as October 19, 1972, that two such convictions cannot stand where the acts which supply the elements of force and fear required for the robbery conviction are the same acts necessary to supply the essential elements for a conviction on a charge of assault. State v. Jorgenson, 108 Ariz. 476, 502 P.2d 158 (1972). See, to same effect, State v. Williams, 108 Ariz. 382, 499 P.2d 97 (1972). These cases are the result of our interpretation of A.R.S. § 13-1641. We consider it improper to affirm both convictions even though the point has not been raised. The remedy, where the sentences are to run concurrently, is to reverse that for the lesser crime — here, the assault— thus making it unnecessary to remand for resentencing. The judgment and sentence for attempted robbery are affirmed. The judgment and sentence for assault with a deadly weapon are reversed. CAMERON, V. C. J., and STRUCK-MEYER, LOCKWOOD and HOLOHAN, JJ., concur.

LOCKWOOD, Justice: This is an appeal from the judgment and conviction of the defendants after a transferral from the juvenile court to the criminal court of Pinal County. The juvenile court hearing was held on September 7, 1971 at which time the juveniles were represented by their court-appointed attorney, Ronald J. Greenhalgh. They were charged with aggravated bat tery, robbery, and grand theft, auto. In an attempted escape from Fort Grant they had assaulted and battered their guard, stole his watch, his car keys and his car. At this time the defendant Joe Angel Jiminez was 17 and Troy ICillinger was 16. Both had been in Fort Grant twice, and were likely to have been endorsed for parole in September of 1971. The record indicates that the county attorney filed an information in the Superior Court on October 12, 1971 against both defendants (and others not here concerned) charging each of them in three counts with the crimes of aggravated battery, robbery and grand theft, auto. On pleas of not guilty on the part of each, the matter was continued to October 18, 1971. All were represented by counsel. On October 18th the defendants pursuant to a plea bargain arrangement, withdrew their pleas and pled guilty to count three, grand theft, auto. The judge found each guilty and sentenced him to not less than three nor more than four years, whereupon the other charges were dismissed. The court informed each of the defendants of his right to appeal and of his right to have an attorney appointed for him. On December 9th the defendants filed notice of appeal from the conviction and sentence in propria personam. On December 10, 1971 the judge appointed counsel for the appeal. On July 19, 1972 defendants’ attorney filed his opening brief. On August 18th the state filed its answering brief. There the matter rested until January 15, 1973 when it was argued and submitted for decision. The only errors claimed are (1) the Juvenile Code contains no provision authorizing the juvenile court to waive jurisdiction and remand the child to adult court for original prosecution and (2) the juvenile court abused its discretion in waiving jurisdiction; and (3) the juvenile court judge failed to comply with the proper procedures for waiving jurisdiction. It has frequently been held that the juvenile court has the power to waive its jurisdiction to hold a child under the age of 18 years and to remand him for trial in the adult criminal court. Application of Vigileos v. State, 84 Ariz. 404, 330 P.2d 116 (1958). Upon examination of the record in the juvenile court, it appears that the defendants were afforded every right under the juvenile court rules. The Superior Court has exclusive original jurisdiction in all proceedings and matters affecting incorrigible or delinquent children or children accused of crime, under the age of 18 years. The judges of the juvenile court are empowered in their discretion to suspend criminal prosecution of such children. Art. 6, § 15. Conversely, the judges may refuse to suspend criminal prosecution of any such child, in which event he will be prosecuted in the criminal court as an adult. Such a waiver of jurisdiction is commonly referred to as a remand to the adult court. The legislature has recognized the possibility of a delinquent child being released from the juvenile court for trial in the adult criminal court under A.R.S. § 8-207, subsec. C, as added 1970. It has provided for an appeal to the Court of Appeals under A.R.S. § 8-236 as amended 1970. Procedural rules were promulgated by this Court, which were also effective in 1970. Since the appeal is based on the jurisdiction of the juvenile court, we have examined the entire record of the juvenile proceedings. The minutes of the juvenile court proceedings show that the several hearings held were in accordance with juvenile court proceedings, that each of the defendants was permitted to testify and that each was informed of his right to have an attorney appointed for him. The record of each of the juveniles was read, showing that each had a long record of delinquency. Defendant Killinger’s record began at age 14 years, showing petty theft, runa way, disturbing the peace, curfew, fighting, joy riding, malicious mischief, passing contraband. Defendant Jiminez’ record shows theft of a vehicle, curfew, assault with deadly weapon, armed robbery and grand theft, auto. These delinquent acts dated back to age sixteen. In addition to these delinquencies, both had been committed to the Industrial School twice. After several brief hearings, a transfer hearing was conducted in the Juvenile Court of Graham County. There were several juveniles concerned and the matters were consolidated for the hearing. Notices were given to the parents, and an attorney appointed in conformity with their wishes. The juveniles admitted the acts with which they were charged. At the end of the hearing, the judge made the following order: “ORDER BY THE COURT that the record show that for all four of the Juveniles, JOE ANGEL JIMINEZ, TROY KILLINGER, ERNESTO COLOREZ and ROBERT CHARLES BLACK-CLOUD, the Court finds that for the best interest as individuals and the best interest of the State of Arizona can best be served by the said Juveniles to be hereinafter remanded to adult Court for prosecution as adults.” The minutes of the court indicate that the procedure was properly conducted up to the point when the Judge of the Juvenile Court made disposition. The minutes of the Juvenile Court give no indication that the court complied with Rule 14 Rules of Procedure for the Juvenile Court, 17 A.R.S., by stating the reasons for the transfer by minute entry or written order. The rule provides that: Rule 14. Transfer Hearing; Order “(a) * * * “(b) The court may transfer the action for criminal prosecution to the appropriate court having jurisdiction of the offense if the court finds probable cause and reasonable grounds to believe that: “(1) The child is not amenable to treatment or rehabilitation as a delinquent child through available facilities; and “(2) The child is not commitable to an institution for mentally deficient, mentally defective or mentally ill persons; and “(3) The safety or interest of the public requires that the child be transferred for criminal prosecution. “(c) Upon such transfer the juvenile court shall state the reasons therefor by minute entry or written order and the child shall thereupon be transferred to the custody of an appropriate law enforcement officer, released on bail, if the offense is bailable, or released upon his own recognizance.” Therefore, the order remanding the juveniles to the adult criminal court would be ineffective in ordinary circumstances. But the jurisdiction of the Juvenile Court ceases after an individual has reached his 18th birthday. In this case defendant Jiminez has attained this age, defendant Killinger is within two months of doing so. Therefore to send them back for a due process hearing and the proper juvenile court order would be a futile gesture for the Juvenile Court would have lost jurisdiction. Since the Juvenile Court had sufficient facts before it to make a finding justifying the remand, which facts appear fully in the record, we will not order the case reversed for an error which could not be corrected at this time. The record will supply the proper finding of the court. Judgment affirmed. HAYS, C. J., and CAMERON, V. C. J., concur.

HOLOHAN, Justice. On March 4, 1971, appellant, Raymond Earl Pietsch, entered a plea of guilty to a charge of armed robbery. Imposition of sentence was suspended on March 24, 1971 and appellant was placed on probation with one of the conditions being that he serve one year in the county jail. During his confinement the appellant was accused of smuggling hacksaw blades into the jail which he obtained while working as a trus-tee and passed to other prisoners for their use in an unsuccessful attempt to escape from the county jail. A criminal complaint was filed against the defendant, but immediately before a preliminary hearing was to be held the complaint was dismissed. Thereafter, a hearing for the revocation of probation was ordered. This hearing resulted in probation being revoked and appellant being sentenced to a prison term of 5 to 6 years. This appeal is brought raising 3 questions: (1) was there sufficient evidence to sustain the trial court’s finding that a condition of probation had been violated? (2) was the appellant subjected to double jeopardy in his revocation hearing after a criminal charge on the same subject matter had been dismissed? (3) was appellant deprived of the effective assistance of counsel ? SUFFICIENT EVIDENCE The petition for revocation of appellant’s probation accused him of smuggling contraband into the Pima County Jail. The contraband consisted of hacksaw blades which had been used by prisoners in the county jail in an attempted escape from the jail. In order for probation to be revoked, A.R.S. § 13-1657, subsec. B provides, in part, that the court must have “reason to believe” that the defendant is engaged in criminal practices. The “reasonable belief” required by the statute is established by a preponderance of the evidence presented. At the revocation hearing the testimony of two fellow trustees was presented. They testified that the appellant had taken part in the smuggling of the hacksaw blades into the Pima County Jail. Other evidence was introduced which established that an escape attempt had been made using hacksaw blades to cut certain cell bars in the jail. The evidence submitted was sufficient to support the finding of the trial court that the terms of appellant’s probation had been violated. DOUBLE JEOPARDY Appellant states that the county attorney recognized that the case was insufficient to support a criminal conviction, so the preliminary hearing was dismissed by the prosecution. Subsequently a probation revocation hearing was ordered by the superior court. It is argued that the special facts of this case dictate that it be recognized that, as a practical matter, this procedure required the appellant to answer twice for the same offense. Clearly this argument is without merit. A preliminary hearing is not a proceeding at which jeopardy attaches. Skinner v. Superior Court, 106 Ariz. 287, 475 P.2d 271 (1970). In any event, the preliminary hearing in this case was not even held, so it cannot be said that appellant has twice been put in jeopardy for the same offense. Also, it should be noted that the punishment flowing as a result of probation being revoked is not punishment for the probationary breach, but is instead punishment on the original charge, State v. Crowder, 103 Ariz. 264, 440 P.2d 29 (1968) ; so it is apparent that double jeopardy is not involved here. EFFECTIVE ASSISTANCE OF' COUNSEL Appellant’s sole allegation in support of his argument that he was denied the effective assistance of counsel is that his trial attorney did not call as witnesses two persons allegedly involved in the smuggling of the hacksaw blades. Questions concerning an attorney’s judgment in regard to trial tactics will not support a finding that counsel’s representation was inadequate. State v. Streett, 11 Ariz.App. 211, 463 P.2d 106 (1969); Barron v. State, 7 Ariz.App. 223, 437 P.2d 975 (1968). Clearly, the record in this case does not support a finding that the revocation hearing was' a farce or mockery of justice, so we find appellant was not deprived of the effective assistance of counsel. State v. Brown, 107 Ariz. 375, 489 P.2d 12 (1971). The judgment of the trial court is affirmed. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and LOCKWOOD, JJ., concur.

■ HAYS, Chief Justice. This is an appeal from a jury verdict in favor of the contestant of the probate of the will of Rosalie Eva Vermeersch. Her husband, Jules L. Vermeersch, as the executor named in the will, filed the original petition for probate on June 30, 1969. Rosalie Marie Lewin, the adopted daughter of Mr. and Mrs. Vermeersch, contested the validity of the will on the grounds of testamentary incapacity and undue influence. Mr. Vermeersch later declined to act as executor, for medical reasons, and the alternative executor named in the will, The Valley National Bank of Arizona, was appointed as executor. The proponent (appellant) on appeal is The Valley National Bank of Arizona, as the alternate Executor-Designee and as the Guardian of the Estate of Jules L. Vermeersch, an incompetent. The contestant (appellee) is Rosalie M. Lewin, the adopted daughter. The questions presented on appeal are substantially as follows: (1) Was the evidence below sufficient to support the court’s finding Mrs. Vermeersch lacked testamentary capacity and was acting under undue influence when she executed her will; (2) Was it error to admit evidence concerning the will, the testamentary capacity and the susceptibility to undue influence of Mr. Vermeersch; (3) Was it error to allow the trial court to cross-examine Kathryn Jackson and Jewel Dillehay; and (4) Was it error to refuse to give proponent’s requested instructions. The facts which were brought out during some five and one-half weeks of trial are somewhat involved and show a unique family situation. Mr. and Mrs. Vermeersch moved to Arizona in 1923 from New Orleans and joined Mr. Vermeersch’s parents in Phoenix. That same year they adopted Rosalie who had been born as a result of an affair between Mr. Vermeersch and a family friend in Louisiana. In Phoenix, Mr. Vermeersch began his machinery business which grew into a community estate worth approximately one million dollars. Kathryn Jackson, the secretary, was employed in 1923 and was continuously employed by Mr. Vermeersch un-' til he was adjudged incompetent after the completion of the trial. Kathryn’s role during this time went beyond that of a secretary. She sold repair parts, maintained the inventory and sold equipment. The business was on the south side of East Van Burén Street in Phoenix and the family homes were directly across the street on the north. It was a family business and, although Kathryn lived separately with her sister, Jewel Dillehay, Kathryn was part of the family. Some testimony indicates that Kathryn and Mr. Vermeersch took trips together and slept together. Some testimony indicates that Kathryn was bossy and that Mrs. Vermeersch was jealous of her. Other testimony shows Kathryn as a loyal friend and employee of the entire family. Kathryn kept the books and as time went on assumed more and more duties in running the house. She hired and fired housekeepers and did the shopping for the house, as well as for Mrs. Vermeersch’s clothes. In later years, she prepared the family income tax statements. Mrs. Vermeersch was 12 years older than Mr. Vermeersch and the evidence indicates he loved her in a protective way. She was devoted to him. Mr. Vermeersch’s parents lived in a house immediately to the west of Jules and Rosa Vermeersch. When his parents died, Mr. Vermeersch moved into the west house and, though he visited her daily, he never again lived in the east house with his wife. Although there were a number of family quarrels, Mrs. Vermeersch appears to have, accepted Rosalie and loved her as her own daughter. The Vermeersches were an old-country Catholic family and Rosalie was not allowed to dress and date like her high school contemporaries. In 1940 she rebelled and married Alfred Allison against her family’s wishes. The marriage was not a happy one, but she stayed married to Mr. Allison until 1954 for the sake of her parents and grandparents. In 1960 Rosalie married Burt Lewin and was di vc-rced from him in 1969. Although Rosalie’s relationship with her father was stormy at times, he was extremely fond of her, talked about her constantly, and visited her frequently, especially during her marriage to Burt Lewin. Rosalie did not see her mother as frequently, although Mrs. Vermeersch had family dinners with the Lewins on holidays. In November 1967, Jules Vermeersch was involved in an automobile accident. ¡The hotly-disputed events, crucial to this appeal, date from this point. Mr. Vermeersch was seriously ill after the accident and Rosalie wanted her father to come to her house to recuperate when he was well enough to leave the hospital. Mr. Vermeersch thought his daughter was trying to get his money and was afraid she was going to try to kidnap him. He was discharged at his wife’s request on December 17, 1967, and taken, accompanied by several deputy sheriffs, to his own home. Guards were hired so that Rosalie and her attorney could not get into the house. Kathryn, the secretary, was taking care of Mr. and Mrs. Vermeersch and is alleged to have manipulated them into believing that ¡ Rosalie was only after their money. Kathryn was in charge and only those people she allowed were permitted to see the Vermeersches. On December 19, 1967, Rosalie filed a petition to have her father declared incompetent and to have a guardian appointed for his estate. A restraining order was issued to prevent Mr. Vermeersch from having access to his bank accounts and other assets. He was bitter about his daughter’s attempt to have him declared incompetent. The matter of Mr. Vermeersch’s competency and ability to handle his affairs was tried and he was found competent and capable of taking care of himself and managing his property without assistance. He was found not likely to be deceived or imposed upon by artful or designing persons. On the night of January 9, 1968, when Mr. Vermeersch was again in the hospital, the contestant, her husband, two security guards, a private detective, and the contestant’s daughter cut through the fence around the Vermeersch house and tried to get in to see Mrs. Vermeersch. Mrs. Vermeersch came to the door but was afraid that Rosalie was trying to kidnap her and told them to go away. While Mr. Vermeersch was still in the hospital in January, 1968, he called his attorney and told him that his wife wished to change her will. It is her new will, exeuted on January 23, 1968, which is the subject of this lawsuit. An examination of the events surrounding the actual making of the will is necessary to determine if the evidence below was sufficient to support the court’s finding that Mrs. Vermeersch lacked testamentary capacity and was acting under undue influence when she executed her will. Policy favors testacy and it is the duty of the court to carefully examine a verdict finding a will invalid and to set aside such a verdict where it appears the evidence is not clearly sufficient to support it. “In will contests the evidence must be closely scrutinized by appellate courts because ‘... in will contests more than in any other class of cases are juries wont to render verdicts upon insufficient evidence . . .’” In re Walters’ Estate, 77 Ariz. 122 at 129, 267 P.2d 896 at 901 (1954). Mrs. Vermeersch was 94 years old at the time she executed her will. She had very poor eyesight and was deaf in one ear and partially deaf in the other. As a result of previously broken hips, she used a “walker” to move around. Evidence shows that she was forgetful and did not remember the names of her great grandchildren. She spilled food when she ate and went to the bathroom frequently. She had a short attention span and it was difficult for some people to talk with her. This court, however, is not concerned with a generally deteriorated mental condition; the law is concerned only with the state of the testatrix’s mind at the time of the execution of the will. In re Stitt’s Estate, 93 Ariz. 302, 380 P.2d 601 (1963). As the Supreme Court stated when it reversed a jury verdict in favor of the contestant in Estate of DeBrazil, 19 Ariz. 567, 173 P. 417 (1918): “Assuming that all of the witnesses testified truthfully of the facts related, and of their respective opinions of the unsound mental condition of the testatrix at the times specified, [prior to the execution of the will] yet the uncontradicted testimony of the sound state of testatrix’s mind at the time she made and published her will is the testimony controlling the issue here joined and on trial.” 19 Ariz. at 570-571, 173 P. at 419 (emphasis added). The evidence shows that Mr. Ver■meersch first informed the attorney preparing the will that Mrs. Vermeersch wanted to change her will. The attorney then went to her home to discuss the will and she told him which sections of the old 1966 will she wanted deleted. The 1966 will provided for a $10,000 bequest to her daughter, Rosalie Lewin, a $5,000 bequest to the secretary, Kathryn Jackson, $2,000 to Mrs. Vermeersch’s granddaughter, and $2,000 to St. Mark’s Catholic Church. The rest of her estate would have gone to her husband, Jules L. Vermeersch. Under the 1968 will, the specific bequests were deleted, and her entire estate went to her husband in the event she died first. At the same time Mrs. Vermeersch executed her new will, Mr. Vermeersch executed a new will. Attached to his will was an election under which Mrs. Vermeersch agreed that if he died first, she would take a trust fund in lieu of her community property interest. At her death, the entire community estate would then pass according to his will. Under his will, the bulk of the estate went to Kathryn Jackson and her sister, Jewel Dillehay. Mr. Vermeersch was, of course, free to change his will after his wife’s death on April 8, 1969, and, in fact, executed a new will in October of 1969. The only will under question in the instant case is Mrs. Vermeersch’s. The law presumes that the testatrix had the requisite testamentary capacity. To successfully challenge the validity of the will for lack of testamentary capacity, the burden was on the contestant to prove a lack of one of the following elements : (a) the ability to know the nature and extent of one’s property, (b) the ability to know the natural objects of one’s bounty, and (c) the ability to understand the nature of the testamentary act. In re Stitt’s Estate, supra. On review, we hold that contestant failed to meet the required burden of proof and that there was no evidence to support the finding of the jury of lack of testamentary capacity. The two witnesses to the execution testified that Mrs. Vermeersch knew she was making a will disposing of her property and that she was alert and competent. One of the witnesses read the will to her, speaking loudly into the ear she could hear out of better. Several times during the reading she asked him to stop and read a section over again. When he was through reading, he asked Mrs. Vermeersch if she wanted the whole will reread and she said no, that she understood the will. The new will was written according to Mrs. Vermeersch’s instructions to her attorney. She clearly knew her daughter but had made a conscious decision to leave her share of the community property to her husband of 63 years. Months later, Mrs. Vermeersch told her nurse in the nursing home that if she died first, all her property would go to Mr. Vermeersch and that if he died first, she would be provided for under the will. With regard to undue influence, again the law presumes that Mrs. Vermeersch was not acting under undue influence when she executed her will. In re Estate of O’Connor, 74 Ariz. 248, 246 P.2d 1063 (1952). The presumption would switch to one of undue influence if the following facts were true: (1) that Jules Vermeersch occupied a confidential or fiduciary relationship to the decedent, (2) that he was active in the preparation of the will, and (3) that he was the sole beneficiary. He was active in the preparation of the will and was the sole beneficiary, but the marital relationship is not one of the confidential relationships giving rise to the presumption of undue influence. In re Estate of McCauley, 101 Ariz. 8, 415 P.2d 431 (1966). The burden was then on the contestant to prove that the will was the product of undue influence executed on the testatrix. This will was reasonable and natural in view of Mrs. Vermeersch’s circumstances, attitudes and family. The Vermeersches had been married for 63 years and Mrs. Vermeersch was devoted to her husband. The will was inconsistent with the prior will which left the contestant $10,000, but was absolutely consistent with declarations made to the nurse at the rest home months after the will was executed. The testatrix may have been senile and unusually susceptible to undue influence, but the contestant failed to show that she was. Of the five doctors who testified regarding the effects of arteriosclerosis, four had never seen or talked with Mrs. Vermeersch, and the fifth, who had seen and talked with her, in December of 1967, testified that she carried on an intelligent conversation and knew who she was, where she was and what she was doing and saying. There was evidence that Kathryn Jackson contributed to the testatrix’s belief that the contestant was only after her parents’ money and that she wanted to have her father committed. However, even assuming the evidence against Kathryn was all true, Kathryn Jackson and her sister were not beneficiaries of the contested will. In fact, Kathryn stood to inherit $5,000 under the 1966 will and inherits nothing under the contested 1968 will. The issue in the instant case is whether Jules L. Vermeersch unduly influenced his wife to ignore her own wishes and to write her will in accordance with his wishes. We find no such evidence in the record under the circumstances. Nothing could have been more natural than for Mrs. Vermeersch to leave her estate to her husband of some 63 years. In light of our holdings regarding testamentary capacity and undue influence, we find it unnecessary to discuss issues (2), (3) and (4) so raised by appellant. The judgment of the lower court is reversed and the cause remanded with instructions to enter judgment admitting the will to probate. CAMERON, V. C. J., and STRUCK-MEYER, J., concur.

CAMERON, Vice Chief Justice. This is an appeal from a judgment of guilty after a guilty plea to two counts of aggravated assault, § 13-245 A.R.S., and concurrent sentences of four to five years on each count. We are asked to answer the following questions on appeal: 1. Were the guilty pleas made intelligently and knowingly in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)? 2. Was there a factual basis for the plea? After a preliminary hearing, the defendant was held to answer to two counts of assault with intent to commit murder, § 13-248 A.R.S. On 21 December 1971, defendant withdrew his prior pleas of not guilty and entered pleas of guilty to the amended informations charging aggravated assault. A timely appeal was filed. WAS THE PLEA INTELLIGENT AND VOLUNTARY? Defendant contends that the Boy-kin requirements were not met at the time the plea was entered and specifically that the court failed to advise the defendant of the elements of the crime. We disagree. We have read the reporter’s transcript of the plea and we believe that all the requirements of Boykin v. Alabama, supra, were met. State v. Darling, 109 Ariz. 148, 506 P.2d 1042, filed this day. Further, we have stated that it is not necessary that the court advise the defendant of the legal elements of the crime before it can be considered intelligent and voluntary. State v. Montgomery, 109 Ariz. 34, 504 P.2d 935, 8 January 1973; State v. Phillips, 108 Ariz. 332, 498 P.2d 199 (1972); State v. Ferrell, 108 Ariz. 394, 499 P.2d 109 (1972) and State v. Kuhlman, 15 Ariz.App. 359, 488 P.2d 996 (1971). FACTUAL BASIS FOR THE PLEA • The reporter’s transcript of the preliminary hearing was before the court at the time of the plea. We believe the record shows a factual basis for the plea. State v. Darling, supra. We have reviewed the entire record as required by § 13-1715 A.R.S., State v. Burrell, 96 Ariz. 233, 393 P.2d 921 (1964), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We find' no fundamental error. Judgment affirmed. HOLOHAN and HAIRE, JJ., concur.

CAMERON, Vice Chief Justice. This is a petition for special action brought by the plaintiffs-petitioners from an order of the Superior Court dismissing the plaintiffs’ complaint. On appeal we are called upon to determine if the trial court abused its discretion in dismissing the action. Plaintiffs-petitioners specifically contend that they are entitled to a hearing and relief upon three questions: 1. Are the provisions of § 16-103 and § 16-151 A.R.S., which provide for the canceling of the registration of all voters who failed to vote in the last election, unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution and Art. VIII, § 1 of the Arizona Constitution? 2. Does the application of § 16-151 A. R.S., canceling the registration of those who failed to vote in the last general election but who may wish to vote in a contemplated recall election, violate the equal protection clause of the Fourteenth Amendment of the United States Constitution ? 3. May the county recorder be compelled to mail postcards (for re-registration) to those who have lost their registration by not voting prior to the 1 April date set by statute (§ 16-151 [B] A.R.S.) ? The facts necessary for a determination of this matter are as follows. Plaintiffs’ complaint alleges that the plaintiffs, Citizens’ Committee for the Recall of Jack Williams, is “a coalition of thirty (30) Arizona associations actively engaged in sponsoring, advertising and promoting the recall of Arizona Governor, Jack Williams.” The complaint further alleges that “Frances Alvarez, John Vincent and Bernie Abeytia are three of some 213,751 residents of the State of Arizona who were properly registered to vote in the general election held 7 November 1972, but failed to vote in that election” and whose right to vote has been canceled pursuant to statute. They allege that they bring this action on their own behalf and on behalf of all Arizona residents who were properly registered to vote in the 7 November general election but who failed to do so. The plaintiff committee contends that it has in its possession recall petitions containing substantially more than the minimum number of signatures required by Art. VIII, § 1 of the Arizona Constitution, A.R.S., and § 19-201 A.R.S. The complaint also alleged that the committee intended to file these petitions on or about 2 January 1973, though at the writing of this opinion this has not been done. After the filing of the said complaint, the defendants moved to dismiss pursuant to Rule 12(b)(6), Rules of Civil Procedure, 16 A.R.S., on the basis that, “(1) There is no justiciable issue; and (2) no rights have been denied, as no action has been taken to the damage of any of the named Plaintiffs, nor have the Plaintiffs taken any action to cause any official of the State of Arizona to act.” The motion was argued before the respondent Superior Court judge who ordered: “I am granting the motion because it is my feeling that the Court doesn’t have jurisdiction.” Plaintiffs brought a petition for special action in this court and we took the matter under advisement pending a review of the record made in the trial court. ARE §§ 16-103 and 16-151 A.R.S. UNCONSTITUTIONAL ? § 16-151, subsec. A A.R.S. provides: “Following each general election the registration of an elector who did not vote in the general election of that year shall be canceled and removed from the general county register by the county recorder.” § 16-151, subsecs. B and C set forth the procedure whereby before 1 April following a general election the county recorders must give the non-voters removed by the procedures in subsec. A the opportunity to restore their registration by mail. § 16-103 A.R.S. provides: “A person whose name appears on the general register of voters for the last preceding general state and county election and who has not been canceled out for failure to vote, or a person who voted in the last preceding general election for presidential electors only and has subsequently met the residency requirements for voting in all elections, or a person who has registered on or before the fiftieth day preceding a special primary, special general, special recall or other special election, shall, if otherwise qualified, be entitled to vote at any such special election authorized by law.” The statutes further direct that those who did not vote at the last general election and had their registration canceled must do something — either re-register in person or, if they still reside at the same address, return the postcard which the statute, § 16-151, subsec. B A.R.S., requires that the recorder send to them for that purpose. Those who did exercise their right to vote in the last election are still registered and may vote without doing anything further. Two three-judge federal courts have upheld the decennial cancellation without written notice of all voting registrations. Judge Craig, speaking for the court in one case, stated: “The initial question we must decide is whether there has in fact been a signifi cant encroachment on the right to vote. The answer is in the negative. No voter who re-registers will be denied or deprived of the right to vote. There are no changes in the qualifications of those who may re-register. The provision requiring all voters to re-register is the same type of provision that initially requires one to register when he becomes twenty-one or establishes residence in the county in order to become eligible to vote. * * * ****** “Plaintiffs further assert that the failure to provide adequate notice of the change in the law operates to discriminate, in addition to the less economically fortunate against ethnic minorities and the uneducated, because these groups are less aware of the necessity to re-register. It is, indeed, questionable that these groups have substantially less access to modern communication media. Moreover, with respect to these groups, the problem is no different with respect to the re-registration requirement than with respect to the original registration requirement. Unequal awareness is a sociological fact which is present whenever there is any change in the law. Certainly every legislative act which has universal application to the entire citizenry is not pregnant with equal protection problems. “Assuming the statute does result in some, albeit not significant, inconvenience to the lower income electorate, ethnic minorities and the uneducated, the Court is of the opinion, that there is a justified need for the legislation. Thus, the Court finds that the statute does not violate the equal protection clause. “In the opinion of this Court, the decennial re-registration requirement of A.R.S. § 16-150 (d), as amended, is a legitimate and necessary means of effectuating the state’s interest in the purification of its electoral system.” Johnson v. Marston, No. CIV 70-352 PHX WEC, 27 November 1970, judgment affirmed by the United States Supreme Court, Johnson v. Marston, 401 U.S. 968, 91 S.Ct. 1216, 28 L.Ed.2d 320 (1971). See also Vinik v. Smyth, No. CIV 71-89 TUC WEC, 4 October 1971. If the wholesale cancellation of all voters, including those who did vote in the last general election, can be upheld because of the state’s interest in the purification of its election system, surely the cancellation of the registrations of those who have not voted at the last general election is not constitutionally infirm. The chances are greater that those who did not exercise the right to vote at the last general election had some legal impediment to their continued registration than those who did exercise that right. As to those still residing at their same place of residence, they need only return the postcard to keep their registration valid. As to those who have moved, they must re-register as they are required by law to do anyway, § 16-109 and § 16-110 A.R.S., and we do not find this burden constitutionally oppressive or discriminatory. We therefore hold that the cancellation of the registration of voters who have failed to vote in the last election is not contrary to the Fourteenth Amendment of the United States Constitution or to the Constitution of the State of Arizona. MUST THOSE WHO FAILED TO VOTE IN NOVEMBER 1972 BE ALLOWED TO VOTE IN THE RECALL ELECTION WITHOUT REREGISTRATION? Having held as we have that the cancellation provisions of the Arizona statutes are constitutional and valid, it must follow that those whose registrations have been canceled because of their failure to exercise their right to vote, may not vote in the contemplated recall election until they have been re-registered by postcard or have re-registered themselves. We see no constitutional reason for the court to direct that the county recorder deviate from existing law and keep on the registration rolls those voters who, for whatever reason, failed to vote in the last general election and have failed to return the postcard if they are still living at the same address, or have failed to re-register if they are, in fact, still eligible to register and vote. The fact that there will be a burden upon the plaintiff-committee to re-register those voters whose registrations have been canceled and whom they believe will support their cause is not persuasive. At the present time, this burden falls equally on both the proponents of petitioner’s position and those who oppose it. Admittedly, because a recall election must, by statute, he held within 35 -days of the filing of the petitions, § 19-209 A.R.S., and the eligible voters in such election are limited to those registered “on or before the fiftieth day preceding the * * * recall * * * election,” § 16-103 A.R.S., may mean that some who do not re-register 15 or more days prior to the filing of the recall petition will not be able to vote in the recall election. However, since petitioners control the date upon which the petitions will be filed, they have no cause to complain. MUST THE RECORDER SEND OUT THE CARDS PRIOR TO THE ELECTION? Our statute reads as follows: “B. The county recorder shall, by April 1 of the year following a general election, send to each voter whose registration was canceled under subsection A of this section, a double postcard stating on the hack of the mail-out card that this registration has been canceled for failure to vote. In addition, the mail-out card shall state that if the information on the return card is correct, he may sign and return the card within thirty days and his registration will be restored. The mail-out card shall also state that if the information on the return card is not correct, he must reregister. The return card shall give the information about the voter as it appears in the general register.” § 16-151, subsec. B A.R.S., as amended. There is no indication that the county recorders will fail to abide by this statute, and we see no reason why the trial court could or should order the recorders to send the cards out before the deadline established by statute. In this regard, it should be noted that the response to the application for special action indicated that in Maricopa County, 97,826 cards had been mailed and that as of 1 February 1973, 16,327 cards had been returned. WAS THE MOTION TO DISMISS CORRECTLY GRANTED ? Defendants made their motion to dismiss pursuant to Rule 12(b)(6) of the Rules of Civil Procedure, 16 A.R.S. Subsection (6) is for “failure to state a claim upon which relief can be granted.” In deciding motions to dismiss, all material allegations in the complaint are taken as true, Lakin Cattle Company v. Engelthaler, 101 Ariz. 282, 419 P.2d 66 (1966), Davis v. Aandewiel, 16 Ariz.App. 262, 492 P.2d 758 (1972), and in considering the sufficiency of the complaint to state a claim for relief, the prayer is not part of the complaint, Husky v. Lee, 2 Ariz.App. 129, 406 P.2d 847 (1965). Arizona’s declaratory relief statute states in part as follows: “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.” § 12-1831 A.R.S. The declaratory judgment act is remedial and is to be liberally construed. Planned Parenthood Center of Tucson, Inc. v. Marks, 17 Ariz.App. 308, 497 P.2d 534 (1972); Connolly v. Great Basin Insurance Co., 6 Ariz.App. 280, 431 P.2d 921 (1967). However, the declaratory judg ment act was not intended to constitute a fountain of legal advice for the court, Iman v. Southern Pacific Co., 7 Ariz.App. 16, 435 P.2d 851 (1968), and we have stated that declaratory relief will be based on the existing state of facts not those which may or may not arise in the future. Arizona State Board of Directors for Junior Colleges v. Phoenix Union High School District of Maricopa County, 102 Ariz. 69, 424 P.2d 819 (1967). And: “It is the court’s view that the facts pleaded by appellant do not show a present existing controversy which permits the court to adjudicate any present rights. The allegations merely show an intent to do certain things in the future all of which are dependent upon future events and contingencies within control of the appellant. There are many contingencies or events which might occur before the last day before appellant may file his petition, e. g., the appellant may decide not to become a candidate for office between now and the time for filing petitions and papers, or he might not secure the required number of signatures to his papers and petitions as to entitle him to file for the office of Governor.” Moore v. Bolin, 70 Ariz. 354, 358, 220 P.2d 850, 852 (1950). See also Merritt-Chapman & Scott Corp. v. Frazier, 92 Ariz. 136, 375 P.2d 18 (1962); Maricopa County v. Leppla, 89 Ariz. 220, 360 P.2d 227, 84 A.L.R.2d 1129 (1961). We agree with the Court of Appeals: “ * * * The remedial purpose of the declaratory judgments act has been adverted to in Peterson v. Central Arizona Light & Power Co., 56 Ariz. 231, 107 P.2d 205 (1940) and Podol v. Jacobs, 65 Ariz. 50, 173 P.2d 758 (1946). But, even though the act is remedial and is to be liberally construed, it is well settled that a declaratory judgment must be based on an actual controversy which must be real and not theoretical, (citations omitted) To vest the court with jurisdiction to render a judgment in a declaratory judgment action, the complaint must set forth sufficient facts to establish that there is a justiciable controversy. (citations omitted) A ‘justiciable controversy’ arises where adverse claims are asserted upon present existing facts, which have ripened for judicial determination, (citations omitted).” Planned Parenthood Center of Tucson, Inc. v. Marks, supra, 17 Ariz.App. 308 at 310, 497 P.2d at 536. We find no abuse of the trial court’s discretion. Petition dismissed. HAYS, C. J., and STRUCKMEYER and LOCKWOOD, JJ., concur.

HAYS, Chief Justice. A jury found defendant, William Frank (Billy) Adams, guilty of possession of dangerous drugs for sale. There is ample evidence in the record to support the conviction. The defense was that he was living with a girl named Sandra; that they had periods when they would get into violent arguments over the fact that she was occasionally seeing another boy friend also named Billy Adams. At such times, defendant would leave her for several days. Her testimony was that the last time he left her, she called the other Billy Adams, who came over and gave her grocery money and comfort because she was ill. He also asked permission to leave a large paper bag in her suitcase which was kept on a closet shelf in the bedroom. She granted permission. A few days later defendant returned, and that afternoon a group of policemen searched the house by authority of a search warrant and found huge quantities of amphetamines and other dangerous drugs in the paper bag in the suitcase. They also found a small box with a few pills in defendant’s pants pocket, which fact he explained by saying that he found them on Sandra’s night table and took them away from her to throw away but forgot about them. Sandra admitted lying to the police while they were investigating the facts and apparently the jury disbelieved the defense version. Three questions are raised on appeal: I The trial judge prohibited defense counsel from asking prospective jurors on voir dire the results of the criminal cases on which they had previously sat. Counsel made no attempt to ask them how they voted. It was his theory that (a) this information was available to the prosecutor, who had a card index on each juror, showing the results of previous cases, which index he consulted during the voir dire, and (b) this information was important to the defense in deciding which jurors to challenge peremptorily. The judge’s ruling was not prejudicial. In our opinion, the information as to how the previous juries went, without knowing how the particular juror voted, is information so tenuous that the defense could not use it with much chance of knowing whether the juror was defense-oriented or prosecution-oriented. Though the better practice would be to allow the defense the simple question of how the previous cases turned out — so as to give the defense the same information that the prosecution had — there was no error and no reason to believe that different jurors would have reached a different result. II The defense argues that the affidavit upon which the search warrant was issued did not sufficiently inform the magistrate that the information was reliable and that the information in it was probably accurate. The defense freely admits that such affidavits are tested by much less vigorous standards than those governing the admissibility of evidence at a trial. However, it correctly contends that the affidavit must meet the two tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, where the affidavit is based on hearsay information. In the instant case, it was stipulated that no evidence was taken by the issuing magistrate, and that he relied entirely upon the affidavit which was made by the police officer. The affidavit stated that the affiant had probable cause to believe and did believe that defendant had on his person, and that the premises to be searched contained, amphetamines; that affiant received information from a confidential source that defendant possessed a usable amount of amphetamines on his person and in his house ; that affiant believed the informant to be reliable because the latter “personally saw” defendant in possession on his person and in his house; that informant also told affiant that defendant was selling the drugs out of his house; that affiant believed the information to be reliable because “on numerous occasions in the past,” . . . the informant has been very helpful “in keeping affiant abreast of the illicit narcotics traffic in Phoenix, where narcotics are used and sold, and persons using and selling narcotics;” that past information obtained from the informant has resulted in the arrest of 16 other persons on narcotic charges. The affidavit described both defendant and the exterior of his house. Affiant also made it clear that the revelation of the informant’s identity would endanger his life and render his future value to the police department nil. Defendant contends that the above information does not measure up to Aguilar, supra; that all sixteen arrests may have arisen from just one tip, and in any event there is no showing that the tip resulted in any conviction. He cites Pew v. People, 485 P.2d 118 (Colo.); Watson v. Mazurkiewicz, 326 F.Supp. 622 (E.D.Pa.); People v. Young, 4 Ill.App.3d 602, 279 N.E.2d 392. Aguilar, supra, requires that the affidavit contain more than mere conclusions — that it contain enough of the underlying facts to enable the magistrate to determine whether the conclusion is logical. Aguilar permits the affidavit to be based upon hearsay, if it contains enough to enable the magistrate to conclude that the informant is credible. Defendant argues that although the informant saw defendant in possession of the drugs, he did not see the defendant selling them. It is not necessary that the informant see all the elements of the crime. It is enough that he saw defendant in possession. Possession for sale was proven by the quantity of pills found in the house. For the above reasons, we feel that the affidavit is sufficient under the tests of Aguilar, supra, which is of course binding upon us. Ill Defendant also argues that the execution of the warrant did not comply with the restrictions of A.R.S. § 13-1446 subsec. B, which at the time of this crime, read: “The officer may break open an outer . . . door . . . of a house ... to execute the warrant, if, after notice of his authority and purpose he is refused admittance . . .” Whether there was a knock, how long after any knock the officers waited before entering the unlocked door, etc., are disputed facts. In State v. Brady, 105 Ariz. 592, 469 P.2d 77, a case involving the above statute, we said: “When there is any conflict, the evidence must be viewed in the light most favorable to sustaining the conviction.” Here, one officer testified that he knocked, waited about twenty seconds during which he heard sounds inside the house “like a chair being scooted,” and then he rushed in. The door was unlocked. An other officer- testified that they entered almost simultaneously with the knock- — he estimated about five seconds afterwards. It is difficult, in a raid, to guess at elapsed time. The problem is to give the occupants time to open the door. We believe that the conflict in the evidence is resolved by the verdict. For the reasons set out above, the judgment of the Superior Court is affirmed. CAMERON, V. C. J., and HOLOHAN, J., concur.

OPINION TIMMER, Presiding Judge. ¶ 1 The Maricopa County Attorney’s Office (the “State”) charged Ravi R. Urs with one count of reckless driving, a class 2 misdemeanor, in violation of Arizona Revised Statutes (“A.R.S.”) § 28-693 (Supp.2000), for driving his vehicle on a closed portion of freeway. The justice court subsequently denied Urs’ request for a jury trial, and he sought special action relief from the superior court. That court granted relief to Urs and instructed the justice court to provide him with a jury trial. The justice court then stayed its proceedings pending our resolution of this appeal. ¶ 2 Jury eligibility is a question of law, and we therefore review the superior court’s order de novo. Amancio v. Forster, 196 Ariz. 95, 95, ¶2, 993 P.2d 1059, 1059 (App.1999). We hold that reckless driving was a jury-eligible offense at common law, and Urs’ right to a jury trial is thus guaranteed by Article 2, Sections 23 and 24 of the Arizona Constitution. Consequently, we affirm. DISCUSSION ¶ 3 Article 2, Sections 23 and 24 of the Arizona Constitution broadly guarantee a trial by jury to all criminal defendants. However, our courts have recognized that “[t]he constitutional guarantee of trial by jury is not a grant, but a reservation of a pre-statehood right.” Benitez v. Dunevant, 198 Ariz. 90, 93, ¶ 4, 7 P.3d 99, 102 (2000) (citations omitted). Accordingly, if an offense is linked to a jury trial at common law at the time Arizona adopted its constitution, a defendant accused of committing that offense is guaranteed a jury trial. Id.; see also Brown v. Greer, 16 Ariz. 215, 217, 141 P. 841, 842 (1914) (constitution guarantees jury-trial rights that “existed when the [constitution was adopted”). Conversely, if a charged offense was a common law “petty” crime or one comparable to such an offense, a defendant is not entitled to a trial by jury. Benitez, 198 Ariz. at 92-93, ¶ 4, 7 P.3d at 101-02; Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 41, 410 P.2d 479, 483 (1966). ¶ 4 In a line of cases commencing with Rothweiler, our supreme court has fashioned a test (the Rothweiler/Dolny test) to determine jury eligibility for present-day crimes that may or may not have existed at common law. To determine jury eligibility, a court must consider whether (1) the “offense is traceable to jury eligibility at common law,” (2) the maximum potential penalty for committing the offense is severe, and/or (3) the crime involves moral turpitude or has “potential for such grave consequences that [it is] considered serious in the eyes of society.” Benitez, 198 Ariz. at 93, ¶¶ 7-9, 7 P.3d at 102. The existence of any factor triggers jury eligibility. Id. at ¶ 8. We decide jury eligibility based on the elements of an offense and not the facts of an individual case. McDougall v. Strohson (Cantrell), 190 Ariz. 120, 125, 945 P.2d 1251, 1256 (1997). ¶5 Relying on District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930), the superior court found that reckless driving is traceable to a jury-eligible offense at common law. Consequently, even though the court also concluded that the other Rothweiler/Dolny factors were absent, it ordered the justice court to convene a jury trial for Urs. The State argues that the superior court erred in its ruling because Colts involved an offense distinguishable from A.R.S. § 28-693, which was not a jury-eligible offense at common law. ¶ 6 The District of Columbia charged the defendant in Colts with driving a motor vehicle “at a greater rate of speed than twenty-two miles an hour over ... public highway(s) recklessly, ... at a greater rate of speed than was reasonable and proper, ... in such manner and condition so as to endanger property and individuals.” Colts, 282 U.S. at 70, 51 S.Ct. 52. The trial court rejected Colts’ demand for a jury trial, and the case was tried to a judge, who found Colts guilty. Id. ¶ 7 Colts appealed his conviction, and the Supreme Court held that Colts was entitled to a jury trial. Id. at 71, 51 S.Ct. 52. Significantly, the Court noted that the charged offense “was an indictable offense at common law when horses, instead of gasoline, constituted the motive power.” Id. at 73, 51 S.Ct. 52 (citation omitted). The Court reasoned that the crime charged against Colts was of a similar “serious character, amounting to [a] public nuisance[ ] indictable at common law.” Id. The Court then concluded as follows: An automobile is, potentially, a dangerous instrumentality, as the appalling number of fatalities brought about every day by its operation bear distressing witness. To drive such an instrumentality through the public streets of a city so recklessly ‘as to endanger property and individuals’ is an act of such obvious' depravity that to characterize it as a petty offense would be to shock the general moral sense. Such an act properly cannot be described otherwise than as a grave offense — a crime within the meaning of the third article of the Constitution — and as such within the constitutional guarantee of trial by jury. Id. (citations omitted); see also Frances Wharton, 1 American Criminal Law § 4(1) (6th ed.) (1870) (Clearly, driving a carriage “in such a way as to endanger the lives of the passers-by” is an indictable, and jury-eligible, common-law disturbance of the peace). ¶ 8 The State contends that the reckless driving offense charged against Colts is distinguishable from the crime at issue in this case, and Colts is therefore inapplicable. Specifically, the State argues that the charge against Colts involved an element of endangerment that is not found in A.R.S. § 28-693. Absent that element, the State asserts, the offense of reckless driving loses its link to jury-eligible offenses indictable at common law. See Colts, 282 U.S. at 72, 51 S.Ct. 52 (Colts was not charged merely “with driving recklessly, ... but with the grave offense of having driven at the forbidden rate of speed and recklessly, ‘so as to endanger property and individuals.’ ”). ¶ 9 As Urs points out, however, a charged offense does not have to be identical to common-law crimes that were jury eligible in order to be linked to such crimes. In Bowden v. Nugent, 26 Ariz. 485, 488, 226 P. 549, 550 (1924), the supreme court explained that “persons accused of crimes may demand and have a jury trial in those cases as to character or grade, in which they could demand and have a jury trial before the Constitution was adopted____” Thus, the Bowden court held that the defendant accused of violating a city ordinance by operating a poker game was entitled to a jury trial because the charge was “in the nature of conducting or maintaining a gambling house,” a jury-entitled offense at common law. Id. at 488, 226 P. at 550; see also id. at 491-92, 226 P. at 551 (Lyman, J. dissenting) (disagreeing with majority because the ordinance was not identical with jury-entitled, common-law offense). ¶ 10 We decide that driving a vehicle “in reckless disregard for the safety of persons or property,” in violation of A.R.S. § 28-693(A), is in the character of operating a motor vehicle so “ ‘as to endanger [any] property [or] individual ]’ ” a jury-eligible offense at common law. Colts, 282 U.S. at 73, 51 S.Ct. 52; see also State ex rel. Dean v. City of Tucson (Aldrich), 141 Ariz. 361, 362, 687 P.2d 369, 370 (App.1984) (citing Colts and recognizing that reckless driving was a jury-eligible offense at common law); State v. O’Brien, 68 Haw. 38, 704 P.2d 883, 886 (1985) (“[R]eckless driving ... was indictable at common law and ... entitled the defendant to a jury trial.”). Consequently, Urs is guaranteed a jury trial by Article 2, Sections 23 and 24 of our constitution. ¶ 11 The State next argues that we should follow this court’s decision in Aldrich, which applied the Rothweiler/Dolny test and held that reckless driving in violation of A.R.S. § 28-693 is not a jury-eligible offense. Aldrich, 141 Ariz. at 363, 687 P.2d at 371. In that case, the court recognized that reckless driving is a crime that was jury eligible at common law but reasoned that “this factor alone is not determinative.” Id. at 362, 687 P.2d at 370. Because the court concluded that the other factors were absent, it held that a defendant accused of reckless driving was not entitled to a jury trial. Id. at 363, 687 P.2d at 371. But as Urs contends, the reasoning in Aldrich is no longer correct in light of the supreme court’s more recent pronouncement in Benitez. In that case, the court clearly stated that if an offense is traceable to jury eligibility at common law, “the jury right is also firmly established even in the absence of the other two factors.” Benitez, 198 Ariz. at 93, ¶ 9, 7 P.3d at 102. For that reason, we cannot follow Aldrich. ¶ 12 The State finally urges us, for various policy reasons, to refrain from determining jury eligibility on an offense-by-offense basis. Because we are constrained to follow the Rothweiler/Dolny test as mandated by our supreme court, we must decline this request. CONCLUSION ¶ 13 We hold that reckless driving in violation of A.R.S. § 28-693 was a jury-eligible offense at common law, and Urs’ right to a jury trial is thus guaranteed by Article 2, Sections 23 and 24 of the Arizona Constitution. We therefore affirm. CONCURRING: JOHN C. GEMMILL and NOEL FIDEL, Judges. . Article 2, Section 23 provides that, “[t]he right of trial by jury shall remain inviolate.” Section 24 states that, "[i]n criminal prosecutions, the accused shall have the right ... to have a speedy public trial by an impartial juiy....” . A "petty” offense in this context is synonymous with a "minor” offense, Rothweiler, 100 Ariz. at 41, 410 P.2d at 483, and is not dependent on the legislature’s classification of a crime as a misdemeanor or felony. Benitez, 198 Ariz. at 93, ¶ 5, 7 P.3d at 102; see also Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and Trial by Jury, 39 Harv. L.Rev. 917, 923-924 (1926) (explaining that in the interests of judicial efficiency, some offenses originally afforded jury eligibility were later deemed petty and tried to court without a jury). . "Indictable offenses” at common law were juty-eligible crimes. See. Colts, 282 U.S. at 73, 51 S.Ct. 52.

CAMERON, Justice. This is a petition for review of a decision and opinion of the court of appeals which ordered defendant’s plea of guilty to be vacated. State v. Mott, 150 Ariz. 198, 722 P.2d 366 (App.1986). We have jurisdiction pursuant to Arizona Constitution, art. 6 § 5(3) and Rule 31.19, Ariz.R.Crim.P., 17 A.R.S.. We must answer only one question on appeal and that is whether the prior decision of this court in State v. Anderson, 147 Ariz. 346, 711 P.2d 456 (1985), applies to the facts in this case. The facts necessary for determination of this matter are as follows. On 16 February 1984, defendant was indicted by the Maricopa County grand jury for kidnapping, a class 2 dangerous felony and two counts of sexual assault, a class 2 dangerous felony. A plea agreement was reached in which the defendant agreed to plead guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the crime of kidnapping, if the allegation of dangerousness and the two sexual assault charges were dismissed, and if defendant were given probation. At the time of the plea, the defendant, as allowed by North Carolina v. Alford, supra, stated that even though he was pleading guilty, he was not guilty and was going thereafter to seek evidence to clear himself. Defendant had waived his right to counsel but was assisted by advisory counsel. At the proceedings, the following exchange took place: MR. ADAMS [appellant’s advisory counsel]: Your honor, if I might try to clarify matters a little bit, I have discussed with Mr. Mott many times and he feels that he is being falsely accused, that the facts as stated by the State are not the true facts, but he also knows that if he were to go to trial they would present this evidence, that there is a likelihood of conviction, that the original offense as charged is a dangerous offense, that he would go to prison if he were convicted. Because the State has offered to drop the allegation of dangerousness and stipulate to probation, it is my understanding that Mr. Mott wants to enter the guilty plea with the full knowledge that he is not admitting to having done this, but he is only pleading guilty to take advantage of this plea agreement. That’s what I have advised him and I am certain that he understands it that way. THE COURT: Do you understand it that way, Mr. Mott? THE DEFENDANT [Mr. Mott]: Yes. THE COURT: And now after all the discussion that has been made, and knowing that the State has said they would prove and your feelings about the matter and the fact of the totality, the whole plea agreement of dismissal of two causes, and the stipulated probation and the fact that you would not be having to have a trial, the risk that you indicated yourself was involved there in a jury possibly finding you guilty of all three counts, because of all of that, you feel that it is wise to plead guilty and that is why you are still pleading guilty, is that correct? THE DEFENDANT: Yes, I am doing that under Alford, yes. ****** THE COURT: And do you give that not guilty plea up? THE DEFENDANT: Yes, but I have a question. THE COURT: What’s the question? THE DEFENDANT: It’s about my constitutional rights as reopening a case. In other words, if I do come up with evidence which I intend to do and which I will do as soon as possible, then I have a right to reopen the case, right? In other words, if I could prove that I’m telling the truth, right—in other words, I know I’m telling the truth about these matter. THE COURT: Well now, let’s look at this again. You talk about reopening it when you are merely pleading to it at this time. If you and—and I know both attorneys have told you this, but if you feel that the evidence should be presented, then you may want a trial, but the point I’m trying to indicate to you, the only way that you would be able to go back with respect to this charge, to go back into the record is by making an immediate appeal. THE DEFENDANT: Immediate appeal? THE COURT: I will be advising you to that effect. THE DEFENDANT: How does that work? THE COURT: Once you make your plea, you are giving up your right to do as you indicated, go back into the record. I’m not certain quite how you mean that— MR. DONOFRIO: Your Honor, I think what he means, he wants to know that there is such a thing as Rule 32, if newly discovered evidence which was not available to him at the time this plea proceedings, he could take and file a petition for post conviction relief. That’s all he is asking. He has talked to Mr. Adams [defendant’s attorney] about this. MR. ADAMS: Yes, Your Honor. I have advised him that if he were to come up with some evidence that was not available at this time, substantial evidence that he could in fact file a petition for post conviction relief under Rule 32 and come back into this Court with that evidence. If it were substantial enough to set aside this plea, that is another question but he also has that right and I advised him that he would have that right. I think what he is saying is, if he ever had sufficient evidence to present a Rule 32 by way of post conviction relief, that he could present that to the Court at a later date, even after he pled guilty. I think that’s also available to him. ****** THE DEFENDANT: Okay. THE COURT: Do you feel you understand it now? THE DEFENDANT: I want to ask one question. At this time, I’m doing that, yes. THE COURT: You feel you understand that? THE DEFENDANT: To go to trial at this time, yes—no. THE COURT: And do you give up those constitutional rights that we went over? THE DEFENDANT: Yes. THE COURT: And has anyone promised you anything now with respect to sentencing that has not been put in that plea agreement; anything outside of the agreement, any lawyer or any judge or any friend, anybody? THE DEFENDANT: Not that I can think of. It would appear that the defendant, even though representing himself, negotiated a very favorable plea agreement, including not only the dismissal of sexual assault charges and the allegation of dangerousness but also the sentence of probation. Defendant contends, however, and the majority of the court of appeals agreed, that his plea was taken contrary to State v. Anderson, supra. We do not agree. In Anderson, the defendant entered a plea of no contest to three counts of the sale of dangerous drugs and one count of knowingly possessing dangerous drugs. At the time of the plea, some tea balls allegedly containing drugs were being examined by a laboratory in Salt Lake City, Utah. Defendant was told by his counsel that if the report was negative that his plea of no contest could be withdrawn and to do so would simply be a formality. As we stated: Defendant claims that prior to his acceptance of the tendered plea agreement his trial attorney (different from counsel on appeal) told him that he could withdraw his plea based on negative results from the Salt Lake City lab and to do so was simply a formality. At an evidentiary hearing conducted on April 11, 1984, defendant’s trial counsel was examined. He testified that defendant asked prior to acceptance if the plea could later be withdrawn. As to what would happen if the Salt Lake City tests were negative, “And I then advised him that he would have the opportunity to move to withdraw his plea____” Trial counsel further testified that pri- or to the acceptance of the plea there was no discussion with defendant regarding the permissible grounds for withdrawal of a plea or the legal standard (manifest injustice) used by the judge. Defendant testified that had he known that withdrawal was not a mere formality and that it was discretionary with the trial court he would not have entered into the plea. State v. Anderson, 147 Ariz. at 350, 710 P.2d at 460. In discussing the rights that the defendant waives by entering a plea of guilty or a plea of no contest, we stated: We believe a lay person hearing the attorney’s statements, without more, would understand his advice to mean a motion to withdraw would be routinely granted. This is especially true in this case where defendant had previously rejected numerous plea offers, questioned counsel as to withdrawal, and the test results from Salt Lake City did, in fact, render favorable results. While it is true that a defendant must not tell the judge that his plea is entered into voluntarily if it is not, ... defendant’s responses to the trial judge are not necessarily inconsistent with a belief that he could withdraw his plea at a later date. The record as a whole indicates that defendant would have rejected the plea and proceeded to trial had he been advised as to the true consequences of the plea and subsequent withdrawal procedures. Id. 147 Ariz. at 351, 710 P.2d at 461. (citations omitted). Anderson is distinguishable from the instant case in that the defendant therein was clearly misled as to the effect of his plea. That does not appear to be the case herein. Defendant was informed of the right he was waiving. He also understood he had a right to appeal. More importantly, he understood that in certain circumstances he might obtain post conviction relief pursuant to Rule 32. It was not, however, indicated to him that this was a mere formality as it was to the defendant in Anderson, supra. We agree with the dissent in the court of appeals that the trial court bent over backwards to accommodate defendant and to assist him in understanding the proceedings. Admittedly, this may have been made more difficult by the fact that defendant had waived counsel and was being assisted by advisory counsel only, to the extent defendant would allow him. Nevertheless, the plea was, in our opinion, voluntarily and intelligently made. As Judge Eubank stated in his dissent: “The state had a very strong case against him and he made a very good bargain, getting probation in the process. His criminal record certainly did not justify probation in my opinion.” State v. Mott, supra, 722 P.2d at 370 slip op. at 10 (EUBANK, J., dissenting). The record is clear that defendant pled guilty pursuant to Alford because of the strength of the state’s case against him and in order to receive probation. It was a knowing, voluntary and intelligent plea. The decision and opinion of the court of appeals is vacated and the judgment of the trial court is affirmed. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and FELDMAN, JJ., concur.

OPINION GREER, Judge. This is an appeal from a judgment for the plaintiffs in an action for medical malpractice. We reverse and remand for entry of judgment for defendants-appellants Ralph V. Wilson, M.D. et ux. On April 4, 1978, appellee Francis Lavello (Lavello), then employed as a truck driver for A.M. Lewis Company, sustained an injury to his right knee arising out of and in the course of his employment. He went to a hospital emergency room, and then to the company physician, who referred him to orthopedic surgeon Dr. Eugene Chandler. Dr. Chandler first saw Lavello in May of 1978, and approximately three weeks later ordered an arthrogram, which he concluded revealed a horizontal cleavage tear of the medial meniscus of the right knee. Dr. Chandler recommended surgical removal of the torn meniscus. Lavello thereafter requested that he be seen by a physician closer to his home, and his industrial carrier referred him to appellant Dr. Ralph Wilson (Dr. Wilson) on June 12, 1978. Dr. Wilson treated Lavello for a period of time, and in November of 1978 performed an arthroscopy. Although he had been prepared to remove the meniscus at that time, he did not do so. At the request of the industrial carrier, Lavello was examined by Dr. Hubbard on March 7, 1979. Dr. Hubbard found Lavello’s condition stationary, and sent him back to work with a 5% disability. Dr. Wilson agreed with Dr. Hubbard’s opinion, and last saw Lavello on March 21,1979. Lavello continued to suffer pain. On August 27, 1979 he saw Dr. Feingold, who recommended a repeat arthrogram. Dr. Cary Stegman performed an arthrogram on October 3, 1979, which revealed a complex tear in the medial meniscus. Dr. Marion Peterson eventually removed the torn meniscus in May of 1980. Lavello’s industrial claim was closed with an award of 20% disability in the left leg in September of 1981. Evidence adduced at trial tended to show that Dr. Wilson’s failure to remove the torn meniscus in late 1978 caused a significant worsening in the condition of Lavello’s knee. Lavello never obtained a claim reassignment from his employer’s industrial carrier. He filed the instant lawsuit on March 4, 1981, almost two years after he last saw Dr. Wilson. Dr. Wilson’s answer alleged, inter alia, that Lavello lacked a cause of action in his own right and that the court therefore lacked personal and subject matter jurisdiction. Dr. Wilson later moved for summary judgment arguing that Lavello’s action was barred by the one-year limitation period established by A.R.S. § 23-1023(B). The trial court denied the motion, finding that the defense asserted by Dr. Wilson under A.R.S. § 23-1023 was unavailable to him. Dr. Wilson challenged that ruling by special action to the Arizona Supreme Court, No. 16274-SA (November 5, 1982), but that court declined to accept jurisdiction. The case was tried to a jury in June, 1983. A verdict was returned in favor of appellee in the amount of $432,500. Appellant filed a motion for new trial, which was denied. Timely appeal followed. Dr. Wilson has raised ten issues on appeal. We need address only one: whether Lavello’s action was barred by A.R.S. § 23-1023(B). We hold that it was. The statute provides as follows: A. If an employee entitled to compensation under this chapter is injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in event of death his dependents, may pursue his remedy against such other person. B. If the employee entitled to compensation under this chapter, or his dependents, does not pursue his or their remedy against such other person by instituting an action within one year after the cause of action accrues, the claim against such other person shall be deemed assigned to the insurance carrier, or to the person liable for the payment thereof. Such a claim so assigned may be prosecuted or compromised by the insurance carrier or the person liable for the payment thereof, or may be reassigned in its entirety to the employee or his dependents. After the reassignment, the employee entitled to compensation, or his dependents, shall have the same rights to pursue the claim as if it had been filed within the first year. C. If he proceeds against such other person, compensation and medical, surgical and hospital benefits shall be paid as provided in this chapter and the insurance carrier or other person liable to pay the claim shall have a lien on the amount actually collectable from such other person to the extent of such compensation and medical, surgical and hospital benefits paid. This lien shall not be subject to a collection fee. The amount actually collectable shall be the total recovery less the reasonable and necessary expenses, including attorneys’ fees, actually expended in securing such recovery. The insurance carrier or person shall contribute only the deficiency between the amount actually collected and the compensation and medical, surgical and hospital benefits provided or estimated by the provisions of this chapter for such case. Compromise of any claim by the employee or his dependents at an amount less than the compensation and medical, surgical and hospital benefits provided for shall be made only with written approval of the compensation fund, or of the person liable to pay the claim. A.R.S. § 23-1023. The precise question before us is whether an action for negligent aggravation of an industrial injury through medical malpractice constitutes a third-party action subject to A.R.S. § 23-1023(B). If it does, then Lavello’s failure to commence the action within a year after his claim against Dr. Wilson accrued, or to obtain a reassignment of that claim from his employer’s insurance carrier after the first year expired, requires entry of judgment for Dr. Wilson. Stephens v. Textron, Inc., 127 Ariz. 227, 619 P.2d 736 (1980); K.W. Dart Truck Co. v. Noble, 116 Ariz. 9, 567 P.2d 325 (1977); Canez v. Polanco, 120 Ariz. 128, 584 P.2d 592 (App.1978). This is a case of first impression in Arizona. Issues concerning the application of A.R.S. § 23-1023(B) ordinarily arise in situations where the negligent third party is alleged to have been the sole cause of the industrial injury from which the third party action arises. See, e.g., Stephens v. Textron, Inc., supra (employee's widow sued the operators of a helicopter in which the employee was killed in the course of his employment). Our supreme court has made it clear, however, that A.R.S. § 23-1023 may also apply where the negligent third party, while not the initial cause of the industrial injury, is alleged to have exacerbated it in treating it medically. In Liberty Mutual Insurance Co. v. Western Casualty and Surety Co., 111 Ariz. 259, 527 P.2d 1091 (1974), the plaintiffs sustained certain minor injuries when plaster dust blew into their eyes on the job. They were thereafter treated for their injuries by the defendant physicians, who left toxic materials in their eyes and thereby caused extensive damage to their vision. At issue before the supreme court was whether the industrial carrier was entitled to a lien pursuant to A.R.S. § 23-1023(C) on the entire proceeds of a settlement of the third party action against the physicians. In the course of its analysis, the court noted: We observe that it is now uniformly held that aggravation of the primary injury by medical and surgical treatment is compensable under Workmen’s Compensation Acts. 1 Larson’s Workmen’s Compensation Law, § 1321, and see, e.g., Heaton v. Kerlan, 27 Cal.2d 716, 166 P.2d 857 (1946) and Matter of Parchefsky v. Kroll Brothers, Inc., 267 N.Y. 410, 196 N.E. 308 (1935). In Heaton v. Kerlan, the court said, quoting from an earlier California case, that: * * * the employee is entitled to recover under the schedule of compensation for the extent of his disability, based on the ultimate result of the accident, regardless of the fact that the disability has been aggravated and increased by the intervening negligence or carelessness of the employer’s selected physician. 111 Ariz. at 263, 527 P.2d 1091 (citations omitted). Talley v. Industrial Commission, 137 Ariz. 343, 670 P.2d 741 (App.1983) completes the analysis. In Talley, the petitioner slipped at work and hurt his back while carrying a heavy wooden beam. The following day, he reinjured his back in a mi nor automobile accident unconnected with his work. He filed an industrial claim and sued the driver of the other vehicle. His attorney later settled the suit against the other driver without first obtaining the approval of the workmen’s compensation carrier. Citing the unauthorized settlement and A.R.S. § 23-1023(C), the carrier refused to pay workmen’s compensation benefits, and the Industrial Commission sustained that position. This court disagreed. We held that A.R.S. § 23-1023(C) did not apply to settlement of claims that were totally independent of the industrial accident, and thus the carrier’s approval of the automobile accident settlement was not required. We indicated in Talley that the carrier’s reliance on Liberty Mutual was misplaced because, unlike the automobile accident in Talley, “a malpractice action stemming from allegedly negligent treatment of an industrial injury is not a separate, nonindustrial action.” 137 Ariz. at 347, 670 P.2d 741. We further noted that the negligent treatment of an industrial injury entitles the employee to workmen’s compensation benefits for the consequential damages arising therefrom. Liberty Mutual and Talley make it quite clear that under Arizona law, a medical malpractice action arising out of the treatment of an industrial injury is not regarded as separate and independent from the industrial injury itself. In effect, such a claim, though dependent upon facts different from those which gave rise to the original industrial injury, is nevertheless treated as an outgrowth or expansion of the industrial injury claim, and retains its relation to the employment in question. Consistent with that view, a worker suffering increased disability arising from the negligent medical aggravation of an industrial injury is fully eligible for worker’s compensation benefits. See Allstate Insurance Co. v. Industrial Commission, 126 Ariz. 425, 616 P.2d 100 (App.1980); Liberty Mutual, supra. Further, unlike a claim for aggravation of an industrial injury by means of a separate, nonindustrial event, see Talley v. Industrial Commission, supra, the industrial carrier acquires A.R.S. § 23-1023(C) lien rights on the entire “amount actually collectable” in an action for negligent medical aggravation of an industrial injury. Liberty Mutual, supra. We therefore find inescapable the conclusion that such an action is fully within the intendment of A.R.S. § 23-1023, and that the provisions of A.R.S. § 23-1023(B) are applicable thereto. Lavello nevertheless argues, relying upon A.R.S. § 23-1021 and certain language in Talley, that A.R.S. § 23-1023 cannot apply because a medical malpractice action for negligent care of a work-related injury is not an “accident arising out of or in the course of [the] employment.” Contrary to Lavello’s argument, however, the applicability of § 23-1023 depends by its terms not on the nature of the injury-producing event, but rather upon the employee’s entitlement to compensation. As we have indicated supra, it is well settled that the consequences of negligent medical aggravation of an industrial injury are fully compensable under our Worker’s Compensation Act. The prerequisite for application of A.R.S. § 23-1023 is thus established. As for Lavello’s reliance upon Talley, he refers us to the following language: A clear reading of § 23-1023 demonstrates that a carrier’s subsection C subrogation right and concomitant right to approve claim settlements are limited to and based upon the rights of “an employee entitled to compensation under this chapter” in accordance with subsection A. “An employee entitled to compensation” is one who is injured in the course and scope of his employment. A.R.S. § 23-1021. We find the plain import of § 23-1023 is to allow carrier subrogation and settlement approval rights in the limited circumstance where a third-party tortfeasor injures an employee in the course and scope of his employment. 137 Ariz. at 346, 670 P.2d 741 (emphasis added). Contrary to appellee’s contention, the highlighted language was intended solely to emphasize the inapplicability of A.R.S. § 23-1023 to third party torts that were entirely unrelated to the employment in connection with which workmen’s compensation was provided. The question of the applicability of the statute to a claim for exacerbation of an industrial injury through negligent medical treatment was not before us. Lavello also argues that lien rights pursuant to A.R.S. § 23-1023(C) are distinguishable from an automatic assignment of a third party claim under A.R.S. § 23-1023(B). He attempts to distinguish Liberty Mutual, supra, on that ground, asserting “[t]he industrial insurance company may have a lien for benefits it has paid, but cannot and should not have a right to sue the malpractice physician to whom it had sent the injured employee.” We cannot agree. Lavello has offered no conceptual basis for distinguishing between the lien rights established by subsection (C) and the assignment (subrogation) rights established by subsection (B). Indeed, Olivas v. United States, 506 F.2d 1158 (9th Cir.1974), cited by Lavello on a different issue, cuts squarely against that position. In that case a U.S. government contractor’s worker’s compensation policy expressly waived any subrogation rights the carrier might acquire against the government by reason of any compensation payments made. The court held this contractual waiver applied both to the carrier’s subrogation rights under A.R.S. § 23-1023(B) and to its lien rights under A.R.S. § 23-1023(C). The court stated: The Arizona courts have refused to draw such a distinction between “lien” and “subrogation” interests. “Lien rights” under Ariz.Rev.Stat. § 23-1023’s predecessors have been treated as if they were subrogation rights. State Industrial Commission v. Pressley, 74 Ariz. 412, 250 P.2d 992, 996-997 (1952); Hornback v. Industrial Commission, 106 Ariz. 216, 474 P.2d 807, 810-811 (1970). * * * * * * Moreover, under the same practical reading which the Arizona courts have accorded to prior versions of § 23-1023, it is clear that the lien interest created under paragraph (C) is merely an alternative to the assignment of rights under paragraph (B). The provisions are designed to insure that an employee will not receive a double recovery and that the insurance carrier will be reimbursed by the third-party tortfeasor for compensation actually paid. 506 F.2d 1158, 1165. German v. Chemray, Inc., 564 P.2d 636 (Okla.1977), relied on by Lavello, also does not support his position. At issue in that case was not the application of a special statute of limitations for third-party actions, but rather whether a physician who negligently aggravated an industrial injury was entitled to share in the statutory immunity conferred on the employer. Further, Mock v. Santa Monica Hospital, 187 Cal.App.2d 57, 9 Cal.Rptr. 555 (1960), cited by Lavello, is not inconsistent with our holding. Like the court in Mock, we do not hold that the compensability of a new injury resulting from the treatment of an industrial injury precludes an action against the physician in question for malpractice. Our holding concerns only the conditions under which such an action may be brought. Fletcher v. Harafajee, 100 Mich. App. 440, 299 N.W.2d 53 (1980), is also inapposite. That case concerned the Michigan statutory conditions under which co-employee immunity was applicable, and has nothing whatever to contribute to the resolution of the issue in this case. Finally, Lavello argues that Fremont Indemnity, the industrial carrier, waived “any potential interest in Francis Lavello’s claim by lien or assignment....” In support of this argument, Lavello relies on a letter from his counsel to the claims manager for Fremont Indemnity, dated February 26, 1981, confirming that Lavello’s counsel had been advised that “any malpractice claim that Mr. Lavello has you do not consider subject to the statutory assignment for any interest that Fremont Indemnity might have.” Appellees further rely on deposition testimony by Fremont Indemnity’s claims supervisor to the effect that she was in a position to know of any claim by Fremont Indemnity upon Lavello’s third-party action against Dr. Wilson, but had no knowledge of any such lien claim. We cannot agree that the requirement of A.R.S. § 23-1023(B) for a “reassignment” of the third-party claim is thereby met. The most that can be concluded from the letter and testimony is that the industrial carrier was laboring under the mistaken apprehension that Lavello’s claim against Dr. Wilson had not been automatically assigned to it by operation of A.R.S. § 23-1023(B). What was required, however, was an express reassignment from the carrier to Lavello before the expiration of the statute of limitations. Compare Stephens v. Textron, Inc., 127 Ariz. 227, 619 P.2d 736 (1980) with Stirewalt v. PPG Industries, Inc., 138 Ariz. 257, 674 P.2d 320 (App. 1983). It is undisputed that no such reassignment ever occurred. The ease is reversed and remanded with directions to enter judgment for appellants. BROOKS, P.J., and JACOBSON, C.J., concur. . If the court 'declines to accept jurisdiction,’ its ruling is not considered to be a decision on the merits and does not become the law of the case. See McRae v. Forren, 5 Ariz.App. 465, 428 P.2d 129 (1967); Morgan v. Continental Mortgage Investors, 16 Ariz.App. 86, 491 P.2d 475 (1971).

JACOBSON, Judge. The issue raised in this review of an award of the Industrial Commission is whether a carrier may “correct” a Notice of Claim Status, finding a permanent disability, more than 90 days after the Notice is issued. The facts are basically undisputed. The claimant, Gilbert Estrada, was injured while employed by the Church of Jesus Christ of Latter-Day Saints at the L.D.S. Church Farm. On April 14, 1983, the carrier issued a Notice of Claim Status closing the claim as of March 8, 1983, with an unscheduled permanent impairment. No medical report supporting the closing was filed with the Commission. On April 17, 1983, the Commission notified the carrier of the lack of a medical report and requested submission of form 107, which triggers a determination of benefits. In early May, 1983, the carrier responded to this inquiry by sending the Commission a medical report authored by Dr. John Whisler. This report opined that “patient is just about the same and is at the stage now where decisions will have to be made. I do not feel that he is physically capable of returning to the rigors of his former work, namely that of heavy equipment operator....” Upon receiving this report, a Commission employee informed the carrier that the medical report might not support a finding of permanent impairment and suggested either a further medical report or a rescinding Notice of Claim Status. Consequently, the carrier scheduled an independent medical examination of the claimant, by Dr. Gerald Moczynski for July 21, 1983. This examination did not take place, however, until sometime in October, 1983, at which time Dr. Moczynski determined that the claimant could be discharged with no permanent physical impairment attributable to the industrial accident. On February 9, 1984, the carrier issued an “amended” Notice of Claim Status, which stated that claimant was discharged as of March 8, 1983, with no permanent disability. The Notice stated, “Amend April 14, 1983 Notice as we have been advised by the Industrial Commission that the notice was improper and should be rescinded.” This amended Notice was timely protested and following hearings, the Administrative Law Judge entered an award finding that the April 14, 1983 Notice of Claim Status, not having been protested within 90 days of its issuance, became res judicata as to claimant’s physical condition, and that the Notice of February 6, 1984, was null and void. The carrier has sought review contending the award is improper because: (1) The April 14, 1983 Notice of Claim Status was void pursuant to Roseberry v. Industrial Commission, 113 Ariz. 66, 546 P.2d 802 (1976); (2) The February 6, 1984 Notice of Claim Status is entitled to be given effect, because it was issued pursuant to the Commission’s direction, and (3) A procedure must be judicially established to allow a carrier to correct an inaccurate Notice of Claim Status. Turning first to the Roseberry issue, the carrier contends that since its April 14, 1983 Notice of Claim Status was not supported by Dr. Whisler’s report, the Notice is void. In Roseberry, the Arizona Supreme Court held that a Notice of Claim Status which was unsupported by the medical report on which it was based, was void on its face and therefore not entitled to res judicata effect. As subsequent cases have made clear, the voidness doctrine of Rose-berry is applicable only where the Notice of Claim Status is directly contrary to the medical report upon which it is based. See Calixto v. Industrial Commission, 126 Ariz. 400, 616 P.2d 75 (App.1980); NCR Corp. v. Industrial Commission, 142 Ariz. 167, 688 P.2d 1059 (App.1984). The Administrative Law Judge correctly concluded that Dr. Whisler’s report was not “directly contrary” to the Notice of Claim Status indicating a permanent disability. While this report did not unambiguously find a “stationary condition” with “permanent function impairment” it did indicate that the claimant’s condition was “just about the same” and that he could not return to his pre-injury employment. The report thus raises inferences of a stationary condition and a lessening of post injury working capabilities. Given these inferences, the report is not directly contrary to the Notice of Claim Status and is, therefore, not void under Roseberry. The carrier next argues that because the February, 1984 Notice of Claim Status was issued at the insistence of the Industrial Commission, it must be given precedence over any res judicata effect of the April, 1983 Notice. This argument is based upon the contention that it had a right to rely upon the representation of an employee of the Commission that the April Notice of Claim Status was not supported by a medical report and that the time limit of 90 days would not commence until a proper Notice was filed. This “reliance” argument is based upon the holding in Cohen v. Industrial Commission, 133 Ariz. 24, 648 P.2d 139 (App.1982). Cohen, held that a claimant who received the wrong form from a carrier and timely filed it, had a right to rely on the correctness of the form. The claimant was thus excused from filing a correct form within the proper time period. The claimant in Cohen is a far cry from a carrier. Such a carrier is charged, under the law with the duty and privilege of making initial ex parte decisions related to the processing of claims and payments of benefits under the Workers’ Compensation Act. Holmes Tuttle Broadway Fund v. Industrial Commission, 27 Ariz.App. 128, 551 P.2d 577 (App.1976). No such duty evolves upon a claimant. Under this statutory scheme, a degree of expertise on the part of the carrier is implied. This is the antithesis of the naivete of the claimant in Cohen and we therefore reject any “reliance”, by this carrier which would avoid the res judicata effect of the April Notice of Claim Status. Likewise, we reject the implied contention that a claims technician could bind the Commission as to the effect of Dr. Whisler’s report. Such a procedure would be completely contrary to the right of the carrier to process its claims. Finally, the carrier argues that giving res judicata effect to the April Notice of Claim Status, and not allowing the carrier to “correct” its error results in the claimant being unjustly enriched. This, it is contended, is contrary to the legislative scheme that only “valid” claims be compensated. As has been pointed out numerous times by this court, principles of res judicata are concerned with finality, not correctness. Byers v. Comer, 50 Ariz. 134, 70 P.2d 330 (1937). Res judicata principles take effect under A.R.S. § 23-947 after 90 days. It is clear from the testimony that the practices of the Commission are to allow a carrier to unilaterally rescind or amend a previously issued Notice of Claim Status within the 90 day statutory period. Thus, both the claimant and the carrier may void the binding effect of a Notice of Claim Status within this time frame—the claimant by filing a request for hearing and the carrier by simply issuing a new Notice. However, after that period has expired, the claimant cannot avoid the effect of the notice by simply claiming it is erroneous. Neither can the carrier. We therefore hold that the carrier is bound by its own Notice of Claim Status after 90 days and find no exceptions to the principles of res judicata applicable to the April, 1983 Notice. The award of the Commission is affirmed. GRANT, P.J., and SHELLEY, J., concur. . The employer is a self insurer and will hereafter be referred to as the "carrier”. . We assume that the carrier, as well as the claimant, may avoid the "erroneous” effect of a final Notice of Claim Status by utilizing the rationale of Gallegos v. Industrial Commission, 144 Ariz. 1, 695 P.2d 250 (1985). We express no opinion as to whether that rationale is available to the carrier under the circumstances presented here.

OPINION PATTERSON, Judge. ¶ 1 Barry Levitan appeals the judgment of the superior court declaring him a contractor within the meaning of Arizona Revised Statute (“A.R.S.”) § 32-1101(A)(3) (Supp.2000). For the following reasons, we reverse. I. BACKGROUND ¶ 2 For purposes of this declaratory judgment action, the parties have stipulated to the relevant facts. Levitan owns two residential rental properties in Flagstaff containing five units and seventy-nine units, respectively. He desires to re-roof his five-unit property and to replace a stained toilet at the other property. Levitan accordingly filed a complaint against the Arizona Registrar of Contractors seeking a declaratory judgment that he and his employees can perform the repairs without obtaining a contractor’s license because Levitan is not a contractor within the meaning of A.R.S. § 32-1101(A)(3). ¶ 3 After determining that Levitan’s action satisfied the jurisdictional and justiciability requirements, the trial court ruled that Levi-tan fell within the definition of a contractor under § 32-1101(A)(3). Because the parties stipulated that Levitan did not qualify for a license exemption, the trial court never addressed the exemptions listed in A.R.S. § 32-1121 (1996). Levitan appealed. II. DISCUSSION A. Contractor Under A.R.S. § 32-1101(A)(3) ¶ 4 Our task is to analyze the parties’ statement of stipulated facts to determine whether Levitan qualifies as a contractor within the meaning of A.R.S. § 32-1101(A)(3). Because this issue requires us to interpret and apply statutes, it is a question of law that we review de novo. Wells Fargo Credit Corp. v. Tolliver, 183 Ariz. 343, 345, 903 P.2d 1101, 1103 (App.1995). ¶ 5 A.R.S. § 32-1101(A)(3) provides in pertinent part: “Contractor” is synonymous with the term “builder” and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others to: (a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, projectj development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction. (Emphasis added.) ¶ 6 The Registrar contends that Levitan meets this definition because he receives compensation in the form of rent. This court, however, has defined “rent” to mean “compensation for the use of real property” and not for construction services. Pavilion Hotel, Inc. v. Valley Nat’l Bank of Ariz., 180 Ariz. 498, 504, 885 P.2d 186, 192 (App.1994). Other authorities agree. See Black’s Law Dictionary 1297 (6th ed.1990) (defining rent as “consideration paid for use or occupation of property”); Webster’s New Riverside University Dictionary 995 (1994)(defining rent as “payment ... at designated intervals in return for the right to occupy or use another’s property”). ¶7 More importantly, the parties concur that Levitan’s obligation to repair and maintain his . property derives from statute. A.R.S. § 33-1324(A)(2)(Supp.2000) requires a landlord to “[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.” Thus, Levitan was legally required to maintain the property irrespective of the rental agreement’s requirements. Accordingly, rent does not compensate for repairs, alterations, or improvements to rental property. See City of Phoenix v. Santa Anita Dev. Corp., 141 Ariz. 179, 182, 685 P.2d 1331, 1334 (App.1984) (applying a virtually identical definition of contractor from the Phoenix City Code and concluding that the increased value achieved by improving properties did not result from any “contracting” activities). ¶8 The Registrar nevertheless argues that Levitan was a contractor because he admittedly failed to qualify under any of the exemptions listed in A.R.S. § 32-1121. As authority for this proposition, the Registrar pointed out that the exemption statute’s section heading refers to “Persons not required to be licensed” and reasoned that even non-contractors are “persons” and must fall into one of the listed categories. We reject this argument. A section heading is not part of a statute and cannot vary its express terms. 1A Norman J. Singer, Suth erland on Statutes and Statutory Construction § 21.04, 121-22 (5th ed.1993). ¶ 9 The Registrar’s construction also ignores the admonition in A.R.S. § 32-1101(D) that “[o]nly contractors as defined in this section [A.R.S. § 32-1101(A)(3)] are licensed and regulated by this chapter.” Indeed, the Registrar’s construction renders the “contractor” definition in A.R.S. § 32-1101(A)(3) a nullity by requiring compliance with A.R.S. § 32-1121 alone. ¶ 10 Properly construed, A.R.S. § 32-1121 creates safe harbors for certain specific categories of persons who do contracting work. See Thomas C. Horne, Arizona Construction Law § 902(f)(1), at 333 (1990). A California court recognized this phenomenon when analyzing a parallel California statute in People v. Moss, 33 Cal.App.2d Supp. 763, 87 P.2d 932 (1939.). The court explained that the argument referred to (i.e. all owners who improve the property are contractors) loses whatever potency it would have when we note that for some reason, possibly an excess of caution, an exemption of identical import, though varying in expression from time to time, has been in the statute throughout its existence, and by no stretch of construction possible prior to 1937 could it be said that a contractor’s license was required of an owner building on his property. Id. at 934. ¶ 11 The analysis in Miller v. Superior Court, 8 Ariz.App. 420, 446 P.2d 699 (1968), illustrates the interplay between the Arizona statutes. In Miller, the real property owner subdivided the land, hired a licensed contractor to construct condominiums, and sold the units to the public. Id. at 421, 446 P.2d at 700. Division Two of this court ruled that the owner fit the definition of a “contractor” because “he was the one undertaking to build the condominium villa.” Id. at 422, 446 P.2d at 701. The court then turned to A.R.S. § 32-1121 and found that none of the provisions applied. Id. at 423, 446 P.2d at 702. Accordingly, the definitional statute was the first step in the contractor analysis. If the person qualified as a contractor, the court must consider if an exemption applied. If the person did not qualify — or the parties stipulated that no exemption applied — the court will not analyze A.R.S. § 32-1121. ¶ 12. In sum, we conclude that Levitan does not receive compensation, and thus, does not qualify as a contractor. In light of this conclusion, as well as the parties’ stipulation that no exemption applies, we need not analyze the applicability of the specific exemptions in A.R.S. § 32-1121. Our decision also obviates the need to consider whether the reference to “undertakes” in A.R.S. § 32-1101(A)(3) denotes a two-party relationship. III. CONCLUSION ¶ 13 We hold that under the stipulated facts Levitan does not qualify as a contractor for purposes of A.R.S. § 32-1101(A)(3). Accordingly, we reverse the trial court’s ruling, vacate the judgment, and remand for further proceedings consistent with this opinion. CONCURRING: JAMES B. SULT, Presiding Judge, SHELDON H. WEISBERG, Judge.

GORDON, Vice Chief Justice. Defendant, Edward Eugene Bay, was tried by a jury and convicted of five felony counts: first degree murder, A.R.S. §§ 13-1101, 1105, arson of an occupied structure, A.R.S. §§ 13-1701, 1704, two counts of aggravated assault, A.R.S. §§ 13-1203, 1204, and first degree burglary, A.R.S. §§ 13-1501, 1508(A). An allegation of dangerousness was filed as to all of the charged offenses. Defendant was sentenced to life imprisonment for the murder conviction and received the presumptive sentence for the other four counts to be served concurrently with each other and the murder count. Defendant was married to Verna Bay. Defendant’s adult stepson, Martin Powell, lived with the couple. Verna Bay’s mother, Joyce Renner, lived near the Bay residence. The Bays had a stormy relationship fraught with problems arising from defendant’s alcoholism and his chronic unemployment. On January 18,1985, the couple had a fight which led to a separation and defendant moved in with his parents. Verna and Martin obtained a court order for protection which precluded defendant from all contact with them or the residence. Defendant was served with the order at 5:00 the next morning at his parents’ home. Defendant was very upset by the court order and made statements to the serving deputy about getting even with his wife. Defendant left his parents’ home early in the morning and spent the rest of the day driving around and consuming alcohol. Defendant testified that he consumed approximately two cases of beer, some wine and three or four tequila drinks between approximately 6:00 a.m. and 9:20 p.m. Throughout the day defendant made harassing telephone calls to the Bay residence. During one of the calls defendant told Martin “a gallon of gas and a match go a long way.” Defendant claims the statement was “a gallon of gas and a match will go a long ways, you have a car, too.” However, we fail to see how defendant’s version of the statement is any less inculpatory. At approximately noon defendant stopped across the street from the house and yelled obscenities at Martin who was putting hardware and a padlock on the front door to prevent defendant from entering. Defendant returned to the house at approximately 8:30 p.m. and knocked on the door. Verna told him to leave and that Martin was calling the police. Defendant left before the police arrived. Shortly after the police left at approximately 9:20 p.m. defendant again returned to the house. Defendant poured gasoline on Verna’s car from a five-gallon can. Verna’s mother, the deceased, opened the back door and before she could close it, defendant had entered and began sloshing gasoline around the house. Martin was on the telephone with the police when defendant attempted to douse Verna and him with gasoline. Martin and defendant got into a wrestling match and shortly thereafter the gasoline ignited and the room caught on fire. Martin testified that he never saw defendant with a lighter or match. Verna told a police officer that she saw defendant ignite the gasoline, but at trial recanted virtually all her previous statements made to police officers. Once the house went up in flames the parties attempted to flee the structure. The living room door was padlocked from the outside so escape had to be made through the patio door. Defendant, Martin and Verna escaped but Joyce Renner died and her body was later found inside near the living room door. Martin and defendant both received severe burns and attempted to rescue Renner when they realized she had not exited. At the scene Verna pointed to defendant and said, “That’s him, he did it, he poured gasoline on us and set us on fire.” Martin told authorities on the scene, “That son of a bitch [pointing to defendant] set me on fire.” Verna then came up and stated, “He poured gasoline on me and my mother and set us on fire.” She next lunged at defendant, hit him in the face and stated, “You bastard, you killed my mother.” Two yel low Bic lighters were found by firemen in the living room and at trial Fire Marshal Ruben Araya eliminated as a source of ignition any open gas appliances, electrical or spontaneous combustion. In his opinion the source of ignition was an open flame induced by a person in the living room. At the hospital defendant’s blood alcohol level was tested and at 1:00 a.m. was .16%. Prior to trial the state moved, pursuant to Rule 11, Ariz.R.Crim.P., 17 A.R.S., to have defendant’s mental competency determined. Defendant was found competent to stand trial. Although the medical experts agreed defendant had numerous mental problems none could give an opinion that he was M’Naghten insane. At trial, defendant was prevented from pursuing the defense of insanity. The trial court also refused to give an instruction that reckless burning was a lesser included offense of arson of an occupied structure. Defendant appeals the above rulings by the trial court. We have jurisdiction pursuant to Ariz. Const. art. 6 § 5(3) and A.R.S. §§ 13-4031, 4033, 4035 and Rule 31, Ariz.R.Crim.P., 17 A.R.S. I On the day before trial, June 17, 1985, the state filed a motion in limine to preclude defendant from putting on testimony at trial regarding defendant’s history of mental illness or prior hospitalization for mental illness. This motion was predicated on defendant’s intention to pursue the defense of insanity. The motion requested that defendant make an offer of proof in order to demonstrate what testimony he intended to rely upon as a basis for his insanity defense. The defendant did not respond to the motion in writing and argument was held in the trial court’s chambers without the benefit of a court reporter, as is alleged to be the custom in the Yuma County Superior Court. On June 19, 1985, the trial court granted the state’s motion and precluded the defendant from going into the area of insanity and refused defendant’s requested jury instructions on insanity. Defendant claims to have made an adequate offer of proof in chambers, while the state claims the offer was insufficient. Initially, we note our strong objection to motions argued in chambers without the benefit of a court reporter. See State v. Fletcher, 149 Ariz. 187, 717 P.2d 866 (1986). Had argument been preserved, it would have made our examination of this issue easier. This practice, if customary, should be immediately discontinued. After argument in chambers, the trial court allowed defendant to enter an objection on the record regarding the previous ruling. The objection referred only to the fact that defendant himself would not be allowed to testify or present evidence of his mental illness. No mention was made on the record as to the preclusion of other lay witnesses on the issue of insanity. An offer of proof is simply a detailed description of what the proposed evidence is. Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 129, 700 P.2d 819, 827 (1985); M. Udall and J. Livermore, Arizona Law of Evidence, § 13 at 20 (2d ed. 1982). Ordinarily, a ruling of a trial court excluding evidence cannot be reviewed on appeal in the absence of an offer of proof showing that the excluded evidence would be admissible and relevant. State v. Kaiser, 109 Ariz. 244, 246, 508 P.2d 74, 76 (1973). However, an exception to the general rule is made when the offer of evidence is refused on substantive rather than evidentiary grounds. Id. at 246-247, 508 P.2d at 76-77; Jones v. Pak-Mor Mfg. Co., supra. Since there was no transcript of the argument on the motion and the trial court’s minute entry does not specify the reason for granting the state’s motion, we can only conclude the motion was granted for the reasons urged in the state’s written motion. The main contention in the motion was that the defendant was incapable of proving the defense of insanity by clear and convincing evidence absent expert testimony. Because the question of whether insanity may be established solely by lay testimony is a question of substantive law, appellate review is permitted even assuming the inadequacy of the offer of proof. We also believe that Rule 103(a)(2), Rules of Evidence, 17A A.R.S. was adequately complied with by defendant considering the trial court’s customary procedure in chambers. The test of insanity in Arizona is whether the defendant knew the nature and quality of his action at the crucial time or whether he could distinguish right from wrong. See A.R.S. § 13-502. This is the M’Naghten test and it has repeatedly been sustained as the sole test of sanity in criminal cases in Arizona. State v. Steelman, 120 Ariz. 301, 312, 585 P.2d 1213, 1224 (1978); State v. Heath, 122 Ariz. 36, 39, 592 P.2d 1302, 1305 (App.1979). This test requires a defendant to prove by clear and convincing evidence that he is not responsible for his criminal conduct. A.R.S. § 13-502(B). In this case defendant attempted to carry his burden of proof with the benefit of only lay testimony. There is a dispute between the parties as to who would be called to testify, aside from defendant himself, on the issue of defendant’s mental state at the time of his acts. Although the record is unclear, it appears defendant was going to call his wife, Verna, and one or both of his parents to attempt to establish his defense. The issue then becomes whether the state is correct in its assertion that expert testimony is required in order to prove by clear and convincing evidence that a defendant is insane for purposes of A.R.S. § 13-502. The general rule is that a lay witness, if competent, may testify to relevant evidence. See Rules 402, 601, 602, 701, Ariz. Rules of Evidence, 17A A.R.S. In Arizona lay testimony has long been admissible in criminal trials on the issue of sanity. See State v. Sanchez, 117 Ariz. 369, 373, 573 P.2d 60, 64 (1977); State v. Coey, 82 Ariz. 133, 139, 309 P.2d 260, 264 (1957); M. Udall & J. Livermore, supra § 21 at 26; Wharton’s Criminal Evidence § 609 at 175 (13th ed. 1973). Foundationally, a lay witness must have had an opportunity to observe the past conduct and history of a defendant, State v. Coey, 82 Ariz. at 139, 309 P.2d at 264; the fact that he is a lay witness goes not to the admissibility of the testimony but rather to its weight. Id. If lay testimony is admitted, logically, a jury is free to accept it as a basis for its verdict. State v. Overton, 114 Ariz. 553, 562 P.2d 726 (1977). This is so even if there is conflicting medical testimony on the issue. Id. We have previously held that there is no inference, as a matter of law, that a defendant’s insanity is established because the state failed to call experts to rebut a defendant’s experts. State v. Sanchez, supra. The converse of this holding is logically true—there is no inference, as a matter of law, that a defendant’s sanity is established because he failed to call experts to rebut the state’s experts. This is so because a jury need not believe or accept as true the testimony of experts over lay counterparts. This reasoning is correct in spite of the fact that a criminal defendant has the burden of proving by clear and convincing evidence that he was insane at the time of the act. See A.R.S. § 13-502(B). While we have previously commented on the difficulty a defendant may have in sustaining his burden of proof absent expert testimony, State v. McMurtrey, 136 Ariz. 93, 100, 664 P.2d 637, 644 (1983), we do not believe it is an impossible task. We, therefore, hold that the trial court committed reversible error when it refused to allow defendant to attempt to prove the defense of insanity absent expert testimony on the issue. Because we must remand for a new trial, we will address only those questions likely to be raised again, keeping in mind that different evidence presented on retrial may mandate different results. II Defendant’s requested jury instruction on reckless burning pursuant to A.R.S. § 13-1702 was refused by the trial court. He claims this was error because reckless burning is a lesser included offense of arson of an occupied structure. A requested instruction on a lesser included offense is proper only if the lesser offense is composed of some but not all of the elements of the greater crime so that it is impossible to commit the greater offense without committing the lesser offense and if the evidence supports an instruction on the lesser offense. State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). Arson of an occupied structure is defined by A.R.S. § 1704: “A. A person commits arson of an occupied structure by intentionally and unlawfully damaging an occupied structure by knowingly causing a fire or explosion. B. Arson of an occupied structure is a class 2 felony.” Reckless burning is defined by A.R.S. § 13-1702: “A. A person' commits reckless burning by recklessly causing a fire or explosion which results in damage to an occupied structure, a structure or property. B. Reckless burning is a class 1 misdemeanor.” We believe reckless burning is a lesser included offense of arson because the only significant difference between the two crimes for purposes of this case is the required mental states. A.R.S. § 13-202(C) states, in part: “If acting recklessly suffices to establish an element [of an offense], that element also is established if a person acts intentionally or knowingly.” The state’s argument that recklessly is not a lesser included mental state of knowingly is unsupported. The state’s position that the two mental states are mutually exclusive is not correct under the clear meaning of the statute. Having determined that reckless burning is a lesser included offense of arson, the next question is whether the evidence supported a reckless burning instruction. Defendant testified that he did not intend to damage the house or ignite the gasoline. He testified that when Joyce Renner opened the door while he was pouring gasoline on his wife’s car, he entered the house intending only to bluff and frighten the occupants. Defendant was not pouring gasoline around the outside of the house and at the time of the acts it is estimated his blood alcohol level was between .28 and .30%. It was defendant’s position at trial that he never threatened any damage before his third and final trip to the house other than damage to a car. It is possible the jury could have found defendant impulsively entered the house, and that he didn’t intend to damage the house or knowingly cause the fire. This is supported by testimony by Verna that defendant was like a zombie and had a blank look on his face during the episode. Depending upon the evidence on retrial, the instruction for reckless burning should be given. The conviction and sentence of the trial court is reversed and the ease is remanded for a new trial not inconsistent with this opinion. HOLOHAN, C.J., concurs. . “Rule 103. Rulings on Evidence (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.”

OPINION PAUL G. ULRICH, Judge Pro Temp. This is an appeal from the denial of plaintiff-appellant’s motion to set aside an order of dismissal pursuant to Rule 60(c)(6), Arizona Rules of Civil Procedure. Appellant’s counsel contends the trial court abused its discretion in denying the motion. We disagree and affirm the trial court’s order. PROCEDURAL HISTORY Plaintiff filed a negligence complaint on April 16, 1984, alleging she sustained personal injuries as a result of her slip and fall in defendant-appellee’s grocery store on or about May 10, 1982. No subsequent activity occurred in the trial court’s file. On February 27, 1985, pursuant to Rule V(e)(2), Uniform Rules of Practice of the Superior Court (formerly Rule V(d)), the trial court sent plaintiff’s attorney a routine minute order advising that the case was being placed on the inactive calendar for dismissal on April 29, 1985. Defendant thereafter filed an answer on March 15, 1985. On March 29, 1985, both counsel signed a stipulation to continue the case on the inactive calendar, requesting an additional 90 days to complete discovery. The only reason stated for this request was that “[djefendant filed his answer on March 15, 1985.” The trial court instead treated the stipulation as a motion to continue under Rule V(e)(2). It denied the motion for failure to show “good cause” in a minute order dated April 10, 1985. On April 19, 1986 plaintiffs counsel filed a motion to withdraw as counsel and again sought to continue the case on the inactive calendar stating simply, “[t]his case is not ready to be tried as further discovery is necessary.” Defendant’s response did not object to plaintiff’s motion as such. Instead, it indicated defendant desired more time for discovery before it had to file its list of exhibits and witnesses in accordance with Rule Y after plaintiff had done the same. It also asserted defendant’s delay in filing an answer had occurred at plaintiff’s request.2 Plaintiff’s motion to continue was denied and the action was dismissed without prejudice by the trial court for lack of prosecution in a minute order dated May 9, 1985 and by a formal written order entered on May 23, 1985 because “good cause” to continue under Rule V(e)(2) was not shown. No appeal was taken from this order. On July 17, 1985, over seven weeks after entry of the formal dismissal order and nine weeks after the trial court entered its minute order, plaintiff’s counsel filed a motion to set aside the dismissal pursuant to Rule 60(c)(6). The motion presented no facts' justifying this delay. Nevertheless, counsel argued the requisite “good cause” showing under Rule V(e)(2) was satisfied, contending the case was not ready for trial because discovery was not yet complete and his client would suffer undue hardship because the statute of limitations had run on her claim. Defendant’s response argued for the first time that plaintiff had failed to show “good cause” because (1) the court’s file showed no activity from April 16, 1984 through March 15, 1985; (2) the court had correctly rejected plaintiff’s contention that failure to prosecute was the result of negotiation efforts; (3) Rule 60(c) does not provide for relief under the facts of this case; and (4) plaintiff gave no reason for filing her motion to set aside over seven weeks after the formal order dismissing his action. After hearing oral argument, the trial court denied the motion to set aside in a minute order dated September 23, 1985, finding no “good cause” under Rule V existed, the motion to set aside was untimely and the relief sought was not within the provisions of Rule 60(c). A formal order of dismissal was thereafter entered on October 7, 1985. PRELIMINARY JURISDICTIONAL AND PROCEDURAL MATTERS Initially, we must determine whether we have jurisdiction concerning this appeal. See Soltes v. Jarzynka, 127 Ariz. 427, 621 P.2d 933 (App.1980). Appellant’s notice of appeal, filed September 30, 1985, states she is appealing from the unsigned minute entry order denying the motion to set aside dated September 23, 1985. The formal written order signed by the trial judge to that effect was not entered until October 7, 1985. Even though appellant prematurely filed her notice of appeal before the formal order was filed, we have jurisdiction pursuant to A.R.S. § 12-2101(D) and thus need not dismiss the appeal. Barassi v. Matison, 130 Ariz. 418, 636 P.2d 1200 (1981). We must also decide what questions are properly before us. In the trial court, appellant’s counsel moved to set aside the order of dismissal only pursuant to Rule 60(c)(6). For the first time on appeal, he asserts his motion should have been granted not only under Rule 60(c)(6) but also under Rule 60(c)(1) for his possible “excusable neglect.” However, counsel is precluded from raising the issue of his “excusable neglect” under Rule 60(c)(1) for the first time on appeal since he failed to raise that issue in the trial court. Evans v. Arizona Dep’t of Corrections, 139 Ariz. 321, 678 P.2d 506 (App.1983); Cote v. A.J Bayless Markets, Inc., 128 Ariz. 438, 626 P.2d 602 (App.1981). We will therefore consider only whether the trial court abused its discretion in denying the motion to set aside pursuant to Rule 60(c)(6). Denial of such a motion is a matter within the trial court’s sound discretion and will not be disturbed on appeal absent a clear abuse of discretion. See Staffco, Inc. v. Maricopa Trading Co., 122 Ariz. 353, 595 P.2d 31 (1979). We consider appellant’s contention according to this standard of review. PROPRIETY OF PROCEEDING UNDER RULE 60(c) Appellant’s counsel was fully involved in the proceedings leading to the trial court’s initial order of dismissal. His proposed stipulation and motion for continuance on the inactive calendar were both denied while he was counsel of record. The trial court had jurisdiction over the parties and the subject matter, and the legal authority to enter its ruling. No claim is made that counsel somehow failed to receive timely notice of the order of dismissal or that the trial court’s order was otherwise void. The order of dismissal was also a final, appeal-able order pursuant to A.R.S. § 12-2101(D). Campbell v. Deddens, 93 Ariz. 247, 379 P.2d 963 (1963). Under these circumstances, we believe appellant’s proper course of action was to file a timely motion for reconsideration of the trial court’s ruling pursuant to Rule 59, Arizona Rules of Civil Procedure presenting the matters then desired to be raised rather than a motion to set aside the judgment filed pursuant to Rule 60(c)(6). Tippit v. Lahr, 132 Ariz. 406, 646 P.2d 291 (App.1982). In any event, appellant also could have sought appellate review at that time by filing an appeal based on the trial court’s order of dismissal entered on May 23, 1985 pursuant to A.R.S. § 12-2101(D). Failure to do so caused that order to become final as to issues that either had or might have been litigated at that time. E.g., Fraternal Order of Police, Lodge 2 v. Superior Court, 122 Ariz. 563, 596 P.2d 701 (1979); Pierpont v. Hydro Mfg. Co., Inc., 22 Ariz.App. 252, 526 P.2d 776 (1974). Cf., Arizona Downs v. Superior Court, 128 Ariz. 73, 623 P.2d 1229 (1981). Rule 60(c) does not encompass situations, other than void judgments, where a party merely asks the court to reconsider a previous legal ruling. De Gryse v. De Gryse, 135 Ariz. 335, 338, 661 P.2d 185, 188 (1983); Welch v. McClure, 123 Ariz. 161, 165, 598 P.2d 980 (1979). Rule 60(c) is also not an alternative to filing an appeal. Craig v. Superior Court, 141 Ariz. 387, 687 P.2d 395 (App.1984); Tippit v. Lahr, 132 Ariz. 406, 646 P.2d 291 (App.1982); Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950) (construing federal Rule 60(b)). “While the precise scope of Rule 60(c) relief defies neat encapsulation, it is clear that the rule, except as it applies to void judgments, is primarily intended to allow relief from judgments that, although perhaps legally faultless, are unjust because of extraordinary circumstances that cannot be remedied by legal review.” Tippit v. Lahr, supra, 132 Ariz. 406, 409, 646 P.2d 291, 293-94. We recognize that in Bickerstaff v. Denny’s Restaurant, Inc., 141 Ariz. 629, 688 P.2d 637 (1984), our supreme court considered the merits of an appeal from an order denying a motion to set aside a dismissal without prejudice filed pursuant to Rule 60(c). The motion there involved was filed three months after the order of dismissal was entered. It does not appear that appellant’s counsel in any manner there sought an extension on the inactive calendar in the trial court before the order of dismissal was originally entered, as here occurred, or that the trial court ruled on any such request. Under these circumstances, we believe Bickerstaff is distinguishable. It should not be relied upon as either approving or requiring use of a Rule 60(c) motion as such rather than a Rule 59 motion for reconsideration or an appeal from the order of dismissal itself when reasons either exist or could have then been presented to the trial court supporting the contention that a further continuance on the inactive calendar is justified by the particular circumstances involved. The trial court’s discretion in ruling on a contested motion to dismiss for lack of prosecution or for additional time on the inactive calendar is based “upon the same conditions that permit relief under Ariz.R.Civ.P. 60(c), provided the good cause required by [former] Rule V(d)(2) is shown.” Campbell v. Deddens, 93 Ariz. 247, 251, 379 P.2d 963, 965 (1963) (emphasis added). However, Campbell expressly states that the trial court is not required “to go through the needless formality of a dismissal” before its discretion provided by Rule 60(c) can be exercised. Id. It therefore follows that although the standards governing exercise of the trial court’s discretion are the same in either event, in situations where the remedies of a Rule 59 motion for reconsideration or an appeal from either an order of dismissal or a denial of the motion for reconsideration are available, they should be pursued. In summary, no reason appears why a Rule 60(e) motion should have been attempted by counsel or considered by the trial court based on the circumstances here presented. Pursuing such a course simply resulted in an unnecessary abandonment of available remedies. We therefore hold the trial court correctly denied appellant’s motion to set aside the order of dismissal on the basis the motion did not involve circumstances within the provisions of Rule 60(c)(6). TIMELINESS Appellant’s motion to set aside was not filed until nine weeks after the trial court’s minute order and seven weeks after its formal order of dismissal were filed. No reason for this delay was given either in the motion itself or in appellant’s reply memorandum when timeliness was raised as an issue in appellee’s response. Under these circumstances, we believe the trial court also properly held the motion was untimely. In Bickerstaff, supra, the supreme court decided the merits of the appeal rather than holding the motion to set aside was untimely because it was filed three months after the order of dismissal. However, in Richas v. Superior Court, 133 Ariz. 512, 652 P.2d 1035 (1982), the supreme court specifically held that an unexplained five-week delay in filing a motion seeking relief from entry of a default pursuant to Rules 55(c) and 60(c) provided the trial court no basis upon which it could exercise its discretion to determine the moving party had acted “reasonably promptly” to seek relief. In Bickerstaff, supra, the supreme court stated the same requirement of acting “promptly” applies in seeking relief from an order of dismissal without prejudice pursuant to Rule 60(c), although that Rule by its terms merely requires that the motion be made “within a reasonable time.” Given these authorities, we conclude the “prompt action” required by Richas here also requires affirming the portion of the trial court’s ruling that appellant’s motion was untimely. Indeed, without any explanation being offered for appellant’s delay, Richas would require us to hold that granting the motion would have been an abuse of discretion, since the trial court’s discretion would have lacked a factual basis. Given Bichas, we are not required to speculate for purposes of this appeal how much delay is excessive. However, to avoid its application, counsel should provide the trial court factual information justifying any delay in the event they feel compelled by their particular circumstances to proceed under Rule 60(c) rather than as previously indicated. “GOOD CAUSE” Rule 60(c)(6) allows relief from a final judgment or order for any other reason justifying relief from the operation of the judgment. Bickerstaff, supra. To justify relief under this clause, the facts must go beyond the factors enumerated in clauses 1 through 5 and raise extraordinary circumstances of hardship or injustice. Id., citing Webb v. Erickson, 134 Ariz. 182, 186, 655 P.2d 6, 10 (1982). Appellant here contends “extraordinary circumstances” exist because both parties stipulated to the first “motion to continue,” plaintiff filed a second such motion to which defendant did not object, both motions occurring prior to dismissal, and finally plaintiff would suffer hardship as a result of the dismissal because the statute of limitations had run on her claim by the time the trial court dismissed the case. We disagree. The mere passage of the limitations period does not create a unique situation justifying relief from judgment. Bickerstaff, supra, 141 Ariz. at 632, 688 P.2d at 640. The problem in this case lies with the motions to continue occurring prior to dismissal and defendant’s later change of position after the trial court denied the motions and dismissed the case without prejudice. Under Rule V, the trial court was permitted to continue the case on the inactive calendar only upon a showing of “good cause.” The reasons provided the trial court in the proposed stipulation, plaintiff’s motion to continue and defendant’s response thereto were that defendant had filed its answer on March 15, 1985, additional time to complete discovery was necessary, the delay in prosecuting the claim was because of efforts by plaintiff’s counsel to directly negotiate with defendant’s counsel, and defendant needed more time for discovery to enable him to file his list of witnesses and exhibits as the result of the delay plaintiff had caused. The trial court acted within its discretion in holding these reasons insufficient. An effort to negotiate is not a sufficient reason showing “extraordinary circumstances” under the rule. Bickerstaff, supra, 141 Ariz. at 632, 688 P.2d 637. Instead, the real issue presented is whether plaintiff’s attorney was entitled to rely on the stipulation and the defendant’s response to plaintiff’s motion to continue which did not object to continuing the case. To state it differently, is “good cause” under Rule V(e)(2) shown when the parties essentially agree to continue the case prior to dismissal without stating any substantial basis justifying that continuance for the court’s information, making this factor an “extraordinary circumstance” justifying relief from the order of dismissal? We do not believe so. Our research has disclosed no Arizona cases dealing with this precise question. However, in our opinion the proposed stipulation and later unobjected-to motion to continue relied on by plaintiff’s counsel do not constitute “good cause” as contemplated by Rule V(e)(2). Our supreme court has stated former Rule V(d) was designed to standardize, among the Superior Courts in this state, the exercise of their inherent power to dismiss cases for want of prosecution, and to provide a convenient administrative practice which would bring to the attention of the court and the attorneys involved the fact that ample time had elapsed in which to prepare a case for trial. It was not intended to place a sword in the hands of defendants’ attorneys which will enable them to abruptly terminate litigation if their opponents miss a deadline. Campbell v. Deddens, 93 Ariz. 247, 249-50, 379 P.2d 963, 964-65 (1963) (emphasis added). The policy behind Rule V(e) is to promote the most expeditious and inexpensive manner for disposing of civil cases. If the parties by stipulation or otherwise could circumvent that Rule without an adequate showing of “good cause,” its policy would be frustrated. The Rule places control over the case in the trial court to ensure that policy is achieved. This policy is fully consistent with American Bar Association Standards Relating to Trial Courts, No. 250, adopted in 1984: “the court, not the lawyers or the litigants, should control the pace of litigation.” A.B.A. Standard No. 251 further provides, “court supervision and control of the movement of all cases from the time of filing of the first document invoking court jurisdiction through final disposition is one of the ‘essential elements’ the court should use to manage its cases.” See generally, B. Mahoney, L. Sipes and J. Ito, Implementing Delay Reduction and Delay Prevention Programs in Urban Trial Courts (National Center for State Courts 1985). Here, the parties’ initial proposed stipulation did not present sufficient information to support the requested extension. No explanation was given as to why defendant had not filed its answer until eleven months after the complaint had been filed, or what was occurring in the litigation that was not reflected in the trial court’s file. The trial court thus was not provided any factual basis for exercising its discretion to determine whether “good cause” for the requested stipulated extension existed. Plaintiff's subsequent motion to continue on the inactive calendar also did not provide any such information, or seek to explain the delay that had occurred to that time. Plaintiff’s final motion to set aside the order of dismissal indicated for the first time that she had not returned to her physicians for evaluation of her alleged injuries so her counsel could present a settlement demand prior to commencing discovery and preparing for trial. No reason appears why that information was not previously provided the trial court, particularly since the relevant correspondence attached to plaintiff’s motion was in existence when the earlier motion for continuance was filed. However, we cannot say in any event that plaintiff’s own unexplained failure to assist her counsel by obtaining a necessary medical evaluation itself constituted “good cause” for delaying the litigation. Parties to litigation must be made aware they have a responsibility to the court and their counsel to assist in permitting their litigation to proceed in timely fashion, and be held responsible for doing so. Otherwise, they might frustrate the trial court’s efforts to keep litigation current by their own inattention, delay or obstruction. Our determination is not a rigid application of the rules of procedure resulting in dismissal of plaintiff’s case contrary to the general principle that cases should be decided on their merits. We fully agree with that general principle. However, rules of procedure enacted by our supreme court cannot be disregarded by the parties, counsel or the courts. Garcia v. State, 148 Ariz. 146, 713 P.2d 347 (App.1986). Accordingly, we find the trial court did not abuse its discretion, and affirm its order denying appellant’s motion to set aside the prior order of dismissal. CONTRERAS, P.J., and GRANT, J., concur. NOTE: PAUL G. ULRICH was authorized to participate in this case by the Chief Justice of the Arizona Supreme Court pursuant to Ariz. Const. Art. VI, § 3 and A.R.S. §§ 12-145-47. _ . Rule V(e) provides: Inactive Calendar. The clerk of the court or court administrator shall place on the Inac tive Calendar every case in which a Motion to Set and Certificate of Readiness has not been filed within nine months after the commencement thereof ... All cases remaining on the Inactive Calendar for two months shall be dismissed without prejudice for lack of prosecution ... unless prior to the expiration of such two months period: (1) A proper Motion to Set and Certificate of Readiness is filed; or (2) The court, on motion for good cause shown, orders the case to be continued on the Inactive Calendar for a specified period of time without dismissal. (Emphasis supplied). 2. Plaintiff claims defendant’s response was a separate motion to continue that was not ruled on by the trial court. We disagree. The response did not affirmatively request a further continuance. In any event, since the trial court ruled one month after the response was filed, presumably it considered both the motion and response in making its decision. Adjudication of defendant’s response was also necessarily included in the trial court’s ruling. That ruling also thus was a final determination as to the response as well. . Several prior decisions have considered on their merits appeals from orders denying motions filed pursuant to Rule 60(c) to set aside dismissals without prejudice. E.g., Walker v. Kendig, 107 Ariz. 510, 489 P.2d 849 (1971); McKinley v. Town of Fredonia, 140 Ariz. 189, 680 P.2d 1250 (App.1984); Ursel v. Pizzo, 126 Ariz. 316, 614 P.2d 858 (App.1980). However, these cases also appear to have involved situations where orders of dismissal had been entered prior to any effort to make a record justifying further continuance on the inactive calendar. They are therefore also distinguishable for this reason as well. . The problems of civil litigation delay and costs are among the principal issues facing court management today. Long delays in resolving disputes and the high costs involved in pursuing the average civil suit fuel the public discord with the courts and the legal profession. Of equal concern is the problem of access to justice that is exacerbated by high costs. The litigation process has become so costly that the expense in pursuing small to medium-stakes claims can exceed the potential recovery. M.D. Planet, Reducing the Delay and Cost of Civil Litigation in the 1980's: Caseflow Management Plus Simplifled Procedures, Continuing Legal Education, State Bar of Arizona (1984). . The parties’ stipulation was not binding on the trial court in any event. Although parties may stipulate regarding facts, they cannot properly stipulate either as to the applicable law or court procedures. Those matters are the trial court’s own duty to determine. E.g., Word v. Motorola, Inc., 135 Ariz. 517, 662 P.2d 1024 (1983); State v. Boggs, 103 Ariz. 328, 441 P.2d 778 (1968); State Consol. Pub. Co. v. Hill, 39 Ariz. 163, 4 P.2d 668 (1931).

OPINION GRANT, Presiding Judge. Defendant Arthur Douglas Royer was charged with filing a false instrument in violation of A.R.S. § 39-161. Following a jury trial, he was convicted of the offense and placed on three years probation. The charge arose out of defendant’s renewal application for his real estate broker license filed with the Real Estate Department in 1981. One of the questions on the application was whether the applicant had been “charged with or convicted of any criminal offense.” A.R.S. § 32-2123(B)(4) requires that every application for a real estate broker license be in writing and contain certain information, including whether the applicant has ever been “charged or convicted of a felony and, if so, the nature of the felony, and if committed where and when committed and the disposition of the conviction....” Defendant answered the question “no.” The state introduced evidence at trial that at the time defendant answered the question in the negative, he had personally been served with a summons and indictment in another matter that was referred to as the “Big Valley” case. In fact, it was a 45-page indictment, naming defendant in 7 of the 32 counts. The state argued that the indictment itself was admissible because defendant’s “state of mind” was a very important issue in the case. The state argued that the length of the indictment, the fact it named defendant’s friends and associates, and the myriad of charges involved were all extremely relevant to show that the defendant could not possibly have overlooked the fact that he had been “charged” with a felony. On appeal, defendant raises the following issues: 1. The trial court erred in limiting defendant’s right to cross-examination. 2. The trial court erred in admitting the Big Valley indictment into evidence. 3. The trial court erred in its instructions to the jury. CROSS-EXAMINATION OF WITNESSES Defendant argues that the trial court erred by limiting cross-examination of a licensing administrator who worked for the Real Estate Department. The broker renewal application was admitted through her testimony. During trial, defendant’s counsel attempted to cross-examine her as to whether or not any administrative action had been taken by the department against the defendant’s broker license; whether the license application of other co-defendants in the Big Valley case were approved by the department; and, whether the Real Estate Department had received a copy of the indictment in the Big Valley case, which would have included counts alleging criminal acts by defendant. In each instance, the trial court ruled that the evidence was irrelevant and precluded questioning into those areas. Defendant argues that because his defense was that he did not intentionally lie on the application, the court’s refusal to allow him to examine the Department’s knowledge of the charges pending against him prevented the jury from hearing relevant evidence on his defense. Defendant was charged with filing a false instrument in violation of A.R.S. § 39-161. That- statute states, in part: A person who acknowledges, certifies, notarizes, procures or offers to be filed, registered or recorded in a public office in this state an instrument he knows to be false ... is guilty of a class 6 felony. Defendant testified on direct examination that he did not know that the application included a question regarding whether or not an applicant had been “charged” with a criminal offense. His testimony, and counsel’s cross-examination of the license administrator, attempted to show that defendant believed that he was only required to notify the Department if he were “convicted” of a felony offense. In determining whether the trial court improperly curtailed defendant’s right to confrontation under the sixth amendment, a reviewing court must determine whether a defendant has been denied the opportunity of presenting information which bears either on the issues in the case or on the credibility of the witnesses. See State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977). A fundamental requirement for admission of any evidence is that it be “relevant,” that is, it must have a 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. State v. Fisher, 141 Ariz. 227, 245, 686 P.2d 750, 768 (1984) cert. denied 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984); rule 401, Arizona Rules of Evidence. In this case, we think the trial court properly exercised its discretion in determining that whether the Department had taken any administrative action against the defendant in this matter, whether licenses of co-defendants in the Big Valley case were renewed, or whether the Department received a copy of the indictment was irrelevant to the issue of whether the defendant was guilty of an offense under A.R.S. § 39-161. We note that the questions posed to the license administrator were later asked of the defendant’s witness, a former assistant real estate commissioner. He testified that the Real Estate Deprtment had received a copy of the indictment and also testified that no administrative action had been taken against any of the defendants in the Big Valley case. When evidence is introduced through other witnesses during trial, it is not reversible error to have precluded the questions in the first instance, unless somehow there is prejudice to a defendant. See State v. Goswick, 142 Ariz. 582, 584-85, 691 P.2d 673, 675-76 (1984). We find no prejudice here. ADMISSION OF THE INDICTMENT Defendant argues that the trial court erred in admitting the entire indictment of the Big Valley case. He argues that presenting the entire document, containing allegations against numerous other co-defendants, prejudiced him and that the prejudice exceeded any probative value the document might have had. The state argues that the trial court properly admitted a copy of the entire Big Valley indictment in evidence as it was necessary to prove an element of the crime charged and because it was necessary to complete the story of the crime. To prove the elements of a violation of A.R.S. § 39-161, the state was required to prove that the defendant filed an instrument that he knew was false in a public office. The indictment was introduced in evidence to support the state’s proof of the fact that defendant falsely stated that he had not been previously “charged with” a felony offense. Defendant’s testimony at trial supported his defense that he simply did not read the application carefully enough to know that the question referred to “charged with” as well as “convicted of” a felony offense. At the outset of the state’s case, particularly during cross-examination of the state’s witnesses by defense counsel, the theory of the defense appeared to be that the Real Estate Department was not concerned with whether a person had been “charged with” a felony offense, but was only taking action against real estate licensees who had been “convicted of” felony offenses. The parties appeared to agree that defendant knew he had been charged with a felony prior to completing the broker license renewal application. If the entire indictment were introduced only to prove this uncontested point, it had little purpose except to inflame the jury. E.g., State v. Chappie, 135 Ariz. 281, 288, 660 P.2d 1208, 1215 (1983). In Chappie, the Arizona Supreme Court ruled that while photographs of the murder victim were relevant to proving some elements of first degree murder, they had little probative value when none of the issues for which the photographs could properly be used were in issue, and admitting them was error. However, evidence which is relevant to an uncontested issue may also be relevant to contested issues. An example is State v. Clabourne, 142 Ariz. 335, 343, 690 P.2d 54, 62 (1984). The defendant in Claboume challenged the admissibility of photographs of the murder victim because he had been willing to stipulate the victim’s identity and cause of death. On appeal, the court ruled that the photographs were needed for other purposes, to explain testimony, and to prove malice and premeditation to show first degree murder. Thus the trial court did not abuse its discretion in admitting the photographs. Id. In this case, the trial judge carefully considered the probative value of the admission of the indictment to prove the falseness of the statement made in the renewal license application. In addition, the trial judge gave a thorough and careful limiting instruction to the jury to guide them in their consideration of the indictment. Under all of the facts of this case, we cannot say that the trial judge clearly abused his discretion in determining that the entire indictment would be admissible to prove the element of falsity of the statement. INSTRUCTIONS TO THE JURY Defendant argues that his defense at trial was that he either mistakenly or through ignorance marked the wrong box on the license renewal application form. He argues that the court erred in refusing to give his proffered instructions regarding “ignorance or mistake of fact” and defining the term “knowingly.” Defendant objected to the instruction defining “knowingly” given by the trial court. That instruction was one of a group defining the elements of the crime of presentment of a false instrument and immediately followed the instruction setting forth the elements of the crime. The court instructed that the offense required proof that the defendant, in part, offered to be filed an instrument “he knows to be false.” The instruction clearly referred to the last element and stated: “To know” or “knowingly” imports only a knowledge that the facts exist which bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission. Defendant argues that the instruction left out his theory of “ignorance or mistake” and imported to the jury that the mere commission of the act, i.e., checking the wrong box, constituted a commissio. * the offense. When the instructions are read as a whole, it is clear that the jury was properly instructed that in order to convict the defendant of this offense they had to find that he filed an instrument which he knew was false. We think the trial court’s instructions properly framed the legal issue for the jury. The court’s definition of the element of “knowing” was in accordance with statutes defining “knowingly,” A.R.S. § 13-105(5)(b), § 1-215(12). Where the refused instructions relate to matters that are adequately covered by other instructions pertaining to the legal issues, there is no error in refusing the specific instructions offered by the defense. State v. Via, 146 Ariz. 108, 704 P.2d 238 (1985) cert. denied, — U.S. -, 106 S.Ct. 1268, 89 L.Ed.2d 577 (1986). Under the court’s instruction, the jury was required to find that defendant knew that he had been “charged with” an offense, and then falsely answered the question. The court’s instructions would have permitted them, had they been so inclined, to believe the defendant and find that he did not knowingly make a false statement. Judgment affirmed. BROOKS and FROEB, JJ., concur.

HOLOHAN, Justice. This case is before us on appeal by the plaintiff Bryan Hall from an order grant ing summary judgment to the defendant Motorists Insurance Corporation. Plaintiff-appellant Bryan Hall purchased an El Camino automobile from Midway Chevrolet through Dee Hall, a family friend. The purchase was financed by a loan from the First National Bank of Arizona at Springerville, Arizona. Plaintiff purchased a $100 deductible collision policy of insurance from appellee insurance company, Motorists Insurance Corporation. Purchase of the policy was arranged through Mr. Davis, an employee of the automobile agency and an agent for the defendant insurance company. Plaintiff paid the full amount of the insurance premium by a check separate and apart from the automobile purchase funds. The transactions involving the purchase of insurance were completed on March 18, 1970. Thereafter the plaintiff, a member of the armed services, was transferred to South Carolina. On or about April 20, 1970 plaintiff received a notice from the insurance company which had been mailed on April 13, 1970 and forwarded to his new address. The notice from the insurance company was a cancellation of plaintiff’s insurance policy effective April 24, 1970. Plaintiff telephoned the insurance company, and he was advised by an agent of the company of the reasons for the cancellation (which are not material to a resolution of this case). Plaintiff asked that the policy be cancelled immediately and that his premium refund be sent to him as soon as possible. The plaintiff was advised that the premium had not been received by the insurance company from the automobile agency, and the insurance company’s agent told the plaintiff that it would take anywhere from ten days to two weeks to get the money to him. Plaintiff called Mr. Davis at the automobile agency to urge Davis to send the premium money to him. Davis maintained that he had no notice of the cancellation, and without such notice Davis stated he could not refund the premium. In all of the above conversations the plaintiff advised the parties of his need for the refund to buy insurance for his car. The plaintiff did make arrangements to secure other insurance from another insurance company, but the insurance would not be effective until the premium was paid. Plaintiff urges that he had no funds to pay the premium except the funds expected in the premium refund. On May 17, 1970 the plaintiff was involved in an automobile accident which caused a total loss of the vehicle except for $280 received for salvage. When plaintiff got out of the hospital on May 19 he called the insurance company, reported the accident, and was told that there was no insurance in force. He then called Davis at Midway, who told him that he’d get out the refund that same day — and he did so! The check was dated May 19, made payable jointly to the First National Bank and plaintiff, and was mailed to the bank at Springerville. Plaintiff brought suit against the automobile agency and the insurance company, alleging breach of contract, negligence, and estoppel. The complaint asks for actual and punitive damages. The defendant insurance company answered and moved for summary judgment which was granted. A written judgment was filed with the finding required by Rule 54(b), Rules of Civil Procedure, 16 A.R.S. and the plaintiff filed a timely appeal from the judgment in favor of the defendant insurance company. Pursuant to Rule 47(e)5, Rules of the Supreme Court, 17 A.R.S., this cause was ordered transferred to this Court. The plaintiff presents three questions in this appeal: (1) Is the insurance company estopped to deny the existence of a valid insurance contract? (2) Did the actions of the insurance company constitute negligence or breach of contract? (3) Was the conduct of the defendant sufficient to establish a claim for punitive damages? In determining whether summary judgment should have been granted, neither the trial court nor the appellate court weighs the evidence, and the matters presented are considered in the most favorable aspect to the party opposing the motion. Peterson v. Valley National Bank, 90 Ariz. 361, 368 P.2d 317 (1962). The elements of estoppel were defined by this Court in Builders Supply Corp. v. Marshall, 88 Ariz. 89, 352 P.2d 982 (1960). If any of the elements is lacking there can be no estoppel. Knight v. Rice, 83 Ariz. 379, 321 P.2d 1037 (1958). Reliance by the party invoking estoppel is essential. It is clear in this case that there was no such reliance by the plaintiff on any belief that the insurance policy was in full force and effect. The plaintiff testified in his deposition that he assumed he had no insurance after the cancellation date, and he knew that he was driving without insurance after that date. Since there was no reliance or even belief that the policy was still in effect, the claim of estoppel must fail. The issue presented by plaintiff in his claim that the insurance company breached its contract and was negligent is more complex. In the complaint the plaintiff alleges that the defendant breached its agreement to return the premium refund within ten days as promised, but, on appeal, the plaintiff urges that the breach was in the failure to return the unused premiums within a reasonable time. The policy of insurance issued to the plaintiff by the defendant insurance company provides: “If the company cancels, earned premium shall be computed pro rata. Premium adjustment may be made either at the time cancellation is effected, or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation.” In Hagin v. Fireman’s Fund Insurance Co., 88 Ariz. 158, 353 P.2d 1029 (1960), we adopted the view that under a clause similar to above a refund or tender of the unearned premium is not a condition precedent to effective cancellation of the policy. This viewpoint has been subjected to criticism, and a number of jurisdictions take the position that irrespective of the language of the insurance contract the tender of the unearned premium is a condition precedent to effective cancellation of the policy. An annotation in 16 A.L.R.2d 1200-OS collects the cases from the various jurisdictions who have ruled on the question. From our review of the cases we see no reason to depart from the position we announced in Hagin. A good exposition of our position was stated in Jorgensen v. St. Paul Fire & Marine Insurance Co., 158 Colo. 466, 408 P.2d 66 (1965): “The contract itself specifically provides that payment of unearned premium is not a condition of cancellation. Under such circumstances, courts cannot make a new contract for the parties by construction. The rule that language in an insurance contract should be construed against the insurer cannot be applied where the language is unambiguous and there is nothing to construe.” 158 Colo, at 470, 408 P.2d at 68. The refund of unearned premium is not a condition precedent to cancellation, rather it is a consequence of the cancellation. Leslie v. Standard Accident Insurance Co., 327 Ill.App. 343, 64 N.E.2d 391 (1945). See also Jensen v. Traders & General Insurance Co., 52 Cal.2d 786, 345 P.2d 1 (1959); Hartsfield v. Carolina Casualty Insurance Co., 411 P.2d 396 (Alaska 1966). Generally, the issue of negligence is not a proper subject for summary judgment. Boozer v. Arizona Country Club, 102 Ariz. 544, 434 P.2d 630 (1967). The plaintiff urges that the delay in payment of the refund was unreasonable. The insurance contract provided that the premium adjustment was to be made, “either at the time cancellation is effected, or as soon as practicable after cancellation becomes effective, . . . . ” The defendant insurance company concedes that the above language means within a reasonable time. Turney v. Allstate Ins. Co., 167 Pa.Super. 175, 74 A.2d 730 (1950). What constitutes a reasonable time is a fact question depending upon the circumstances. Marquez v. Rapid Harvest Co., 1 Ariz.App. 138, 400 P.2d 345 (1965). The defendant insurance company has called our attention to Wallace v. State Farm Mut. Automobile Ins. Co., 187 Tenn. 692, 216 S.W.2d 697 (1949) and Turney v. Allstate Ins. Co., supra, as authority that periods in excess of three weeks have been found to be reasonable. These cases depend upon their facts, and we cannot say that as a matter of law the period of time in this case was reasonable. This is an issue which the trial court should have left to the trier of fact, and summary judgment should not have been granted. Since both negligence and breach of contract are alleged the proof of the elements of damages may be different. 22 Am.Jur. 2d Damages § 80. Fact issues have been raised which may entitle the plaintiff to special elements of damage. Jacob v. Miner, 67 Ariz. 109, 191 P.2d 734 (1948); Sharp v. Western Union Telegraph Co., 39 Ariz. 349, 6 P.2d 895 (1932). Before plaintiff can be entitled to punitive damages, he must prove his actual damages. Jacob v. Miner, supra. Punitive damages are not allowed for mere negligence. There must also be shown a reckless or wanton disregard of the rights of others. Gila Water Co. v. Gila Land & Cattle Co., 30 Ariz. 569, 249 P. 751 (1926). We do not weigh the evidence in testing the correctness of the granting of a motion for summary judgment, and, since fact questions have been presented, the ultimate resolution of these matters must await the trial. The application of the legal principles is dependent upon the establishment of the facts. The plaintiff should have been allowed a trial of the issue. The judgment of the superior court is reversed, and the case is remanded to the superior court for trial. Reversed. STRUCKMEYER and LOCKWOOD, JJ., and HAIRE, Judge of the Court of Appeals, Division One, concur.

CAMERON, Vice Chief Justice. This is an appeal from a jury verdict and judgment of guilty to the crime of murder in the second degree, §§ 13-451 and 13-452 A.R.S., and a sentence of not less than 40 years nor more than life. We are asked to answer the following questions on appeal: 1. Did the trial court commit reversible error in failing to examine the ten year old witness prior to her testimony? 2. Was it reversible error for the trial court to fail to declare a mistrial because of an alleged conversation between the State’s chief witness and a juror prior to the commencement of the trial ? The facts necessary for a determination of the matters on appeal are as follows. The defendant, Bias Casas Perez, had been on ill terms with the Mendoza family for some time. In 1969 the daughter of the victim had to call the police to have the defendant Perez removed from the Mendoza premises. On 16 February 1970, Tony Mendoza, the son of the victim, and the defendant engaged in a fist fight in a bar in Phoenix, Arizona. On 22 February 1970, the defendant, together with a brother David Perez and two others, went to the Mendoza residence and asked for Tony Mendoza. The daughter of the deceased went to the neighbors to call the police. By the time the police arrived, the deceased, Espiridion Mendoza, had been struck over the head with a crowbar wielded by the defendant Bias Perez. The deceased died six days later. Although there were numerous witnesses to the events surrounding the altercation, there were only two eyewitnesses to the actual beating. Jose Mendoza, the son of the victim, testified he attempted to chase the defendant off of the property, failed to do so and then witnessed the defendant strike his father twice with a crowbar. He testified for some 131 pages, mostly on cross-examination, and his testimony was particularly damaging. The other eyewitness was the granddaughter of the deceased, Sally Mendoza, who was ten years and seven months old when she testified in court. The defendant did not request and the trial court did not interrogate the witness concerning her competency to testify prior to her testimony. The jury was instructed and given forms of verdicts for first degree murder, second degree murder, and manslaughter. They returned a verdict of guilty of second degree murder and defendant appeals. FAILURE TO INTERROGATE THE TEN YEAR OLD WITNESS Our statute states: “The following shall not be witnesses in a civil action: * * * * * =:= “2. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are to testify, or of relating them truly.” § 12-2202 A.R.S. And: “The laws for determining competency of witnesses in civil actions are also applicable to criminal actions and proceedings, except as otherwise provided by this chapter.” § 13-1801 A.R.S. See also Rule 272, Rules of Criminal Procedure, 17 A.R.S. We have stated: “It is the settled law in this state that the trial court must examine children under ten years of age to determine whether they are capable of receiving just impressions and relating them truly. * * * ” Davis v. Weber, 93 Ariz. 312, 316, 380 P.2d 608, 611 (1963). See also State v. Brown, 102 Ariz. 87, 425 P.2d 112 (1967); Litzkuhn v. Clark, 85 Ariz. 355, 339 P.2d 389 (1959). It does not follow that the trial court on its own motion must examine a child over the age of ten years, in this case ten years and seven months, and absent a request by the defendant we will not consider the error on appeal unless it appears from the testimony that the error was fundamental and prejudicial. In the instant case the defendant did not object until the end of the trial. We have reviewed the witness’s testimony and we agree with the statement of the trial court: “But I want the record to show that in addition to the fact that nobody specifically or even intimated to the Court that some hearing outside of the jury should have been held or inquiry of the witness concerning her understanding of the oath, not having been made, if I had after hearing her testimony felt for one second that she did not understand the seriousness of the proceedings or her purpose in being on the witness stand or if I felt that she was obviously lying, I would have stricken her testimony then and there. “To the contrary, the Court felt that she was not only a bright little girl but apparently had a good memory, kept her emotions in order, she wasn’t too nervous, she was responsive to questions, she stood up under a rather severe cross-examination for a little girl her age and although there might be room to argue whether or not she remembered too much too quickly because of the passing of time and her age, those raise fact questions. The Court is satisfied now and was then that she was old enough and bright enough to understand the nature of an oath and her responsibility to the public. She is obviously a good student in school, speaks English well. I am satisfied that hers was competent evidence.” We find no error. CONVERSATION BETWEEN PROSECUTION WITNESS AND A JUROR After the trial and during the course of an aggravation and mitigation hearing, the mother of the defendant testified that in an early stage of the trial Jose Mendoza, the son of the victim and the State’s major witness, had been seen talking and laughing with the jurors. Jose Mendoza testified to the contrary: “Q BY THE COURT: After you were sworn in you left the courtroom? “A They put us in a room back here. “Q Yes, you left the courtroom? “A Right. “Q Did you at any time on that day after you were sworn in out in the hallway or in the anteroom or in that little room or outside the elevators or anywhere, have any occasion to talk to anybody on the jury for any reason or purpose ? “A No, sir, no one. We didn’t talk to nobody. We stayed alone in that room for all the time we were in there. “Q Who was ‘we’ ? “A The rest of the witnesses. “Q The Mendoza family ? “A Right, uh huh. “Q Did you ever during that first day speak to anybody on the jury? “A No, sir. ****** “Q From the very beginning of this trial when you were sworn in in the courtroom until the jury’s verdict was returned, are you aware or do you know if anybody in your family or any Mendoza talked to anybody on the jury during a recess or a lunch hour or after we recessed in the evening for the next morning? “A No, sir, we haven’t even discussed it among ourselves yet. Nothing. >}C S|i ífc ífí iji “Q BY THE COURT: I asked you whether you talked to the jury. “A No.” In ruling, the court stated : “There is no evidence before the Court of what words were spoken. There is no evidence of improper remarks. There is no evidence of anything that would indicate or suggest to this Court that the jury did anything other than abide by their oath as jurors, nor is there anything that tells me that a State's witness violated the rule which was invoked and what he was instructed upon, because the evidence before me is that this occurred prior to that. I am just as much interested as you are, Mr. Garcia, in making certain of the integrity of the jury’s verdict.” A reading of the transcript indicates that the facts amply support the decision of the trial court in this regard. Judgment affirmed. HAYS, C. J., and STRUCKMEYER, LOCKWOOD and HOLOHAN, JJ., concur.

HOLOHAN, Justice: Defendant, William A. Briley, was found guilty of armed robbery in February of 1969. Upon appeal, this Court reversed and ordered a new trial, State v. Briley, 106 Ariz. 397, 476 P.2d 852 (1970). In March of 1971 the defendant was again found guilty by a jury of armed robbery. He was sentenced to serve not less than 8 nor more than 10 years. From this judgment of conviction and sentence he appeals. The facts of the case were set forth in State v. Briley, supra, and the facts presented at the retrial were essentially the same as presented at the first trial. At the second trial, the court allowed the testimony of the victim, Ray Owens, from the first trial to be read into evidence over the objection of the defense. In this appeal the defendant challenges as error the admission of the transcript from the prior trial into evidence and the admission of certain exhibits placed into evidence. Ordinarily, the defendant must be given the opportunity to test the recollection and credibility of the witnesses against him in a face to face encounter before the jury. This Sixth Amendment right of confrontation in the Constitution is essential and fundamental, and has been made obligatory upon the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). A.R.S. Arizona Constitution Art. 2, § 24, A.R.S. § 13-161. There is, though, a well cited and well reasoned exception to this rule. The defendant’s rights of confrontation and cross-examination are not violated where the witness is presently unavailable, his testimony has been preserved in a prior judicial proceeding and defendant has had at least the opportunity to confront the witness and cross-examine him; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); State v. Lippi, 108 Ariz. 342, 498 P.2d 209 (1972); State v. Stuard, 104 Ariz. 305, 452 P.2d 98 (1969); State v. Head, 91 Ariz. 246, 371 P.2d 599 (1962). In the recent case of Barber v. Page, supra, the U.S. Supreme Court held “a witness is not 'unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” In Barber, it was held that no good faith efforts had been made. The witness in the cited case was in a federal penitentiary out of the state. His presence there was known but no attempt was made to have him brought before the trial court to testify. Mere ab sence, then, from the jurisdiction where the witness’ address is known is no longer 1 a sufficient showing to dispense with the right of confrontation. There must be a showing 'of a good faith effort to obtain the presence of the witness for the trial. But in the case at bar, the exact whereabouts‘of the witness was not known. It was apparent from Owens’ testimony at the first trial that he was a hobo who never stayed long in one place. Testimony at a hearing on the motion to admit the transcript revealed what was undoubtedly a “good-faith” effort by the State to secure the presence of the witness at the trial. A check was, made at least three times at his last known address in Tucson; attempts were made to find the witness in the Marana and Eloy areas; and a teletype message was sent to all law enforcement agencies in the state with a description of the witness with a request that he be located. These efforts produced no results. 1 ' The defendant contends the State had reason to believe that the witness was out of the state, somewhere in the state of Washington, and that the prosecution failed in its .duty under Barber to inquire as to his whereabouts there. The fact that the witness might have been somewhere in the state of Washington does not mean that the prosecution must contact all law enforcement agencies in that state to locate the witness. In State v. Owens, 103 Ariz. 541, 447 P.2d 233 (1968), we recognized the problems' of securing the presence of an “itinerant laborer” and held that under such circumstances, where there was evidence to show the witness had left' the state, there was no requirement that subpoenas be issued and sent to the sheriffs of other states. Barber 'does not require more than was done in this case. Essentially, Barber stands for the proposition that a showing of the imprisonment of a witness, even an institution out of the state, is not sufficient ground for dispensing with confrontation. The State is required' to request delivery of the prisoner and receive a refusal before the prisoner-witness may be said to be unavailable. In Barber the State did not at-? tempt to obtain the witness even though his exact whereabouts were known. Such is not the case in this instance. The whereabouts of the witness were unknown, and the efforts of the prosecution constituted a good-faith effort to obtain the presence of the witness for the trial. The transcript from the former' trial showed extensive direct and cross-examination of the witness in the presence of the defendant and jury providing an adequate basis for this Court to conclude that the testimony bore the necessary “indicia of reliability” to place it before the jury to be evaluated for its truth. Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). The trial court was correct in . ruling that the transcript of the former testimony was admissible. Defendant next raises two questions concerning the lack of proper foundation for the admissibility of exhibits. These exhib- ■ its in the main consisted of those articles of personal property taken by the defendant from the victim at the time of the , crime as well as pictures of the scene. Initially, error is claimed in admitting these exhibits at the prior trial. Admission of several of the exhibits was without objection. Without proper objection the matter is not subject to review unless it constitutes fundamental error, and we find no such error. State v. Scott, 105 Ariz. 109, 460 P.2d 3 (1969); State v. Thorne, 104 Ariz. 392, 453 P.2d 963 (1969). As to the admission of those exhibits objected to, an examination of the record of the prior trial indicates that all exhibits were admitted properly. Defendant also argues that admission of the exhibits at the second trial was improper. The contention is that there was an insufficient showing that the' second trial’s exhibits were the same ones which were referred to in Owens’ testimony. Since the exhibits were not admitted into evidence at the second trial until after Owens’ testimony had been read into the record, and since the numbering of exhibits at the second trial was different than at the first, perhaps some confusion could have resulted. However, an examination of the record as a whole assures us that the objects testified about were the same ones presented in the second court proceeding; also, additional foundation and support for admission for the exhibits came from two of the officer witnesses. The judgment and sentence are affirmed. Affirmed. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and LOCKWOOD, JJ., concur.

HAYS, Chief Justice. The defendant, Ronald Wilmer Marovich, appeals from the judgment entered upon a jury verdict of guilty and from the sentence of five to seven years given him for the crime of robbery. Only one issue is argued and, in the words of his brief, that is: “Did the trial court make an adequate finding of the voluntariness of the statement allegedly made by the defendant to officer Kaufman?” The facts show that a man held up a U-Totem Market in Phoenix. The market had previously been fitted out by the police with a camera which was wired to the cash register so that the camera would take several pictures of the robber when the money was removed from the register. After the robbery, the pictures were developed and defendant was arrested and taken to the police station for interrogation, where Officer Kaufman questioned him. Kaufman showed defendant the pictures taken during the robbery and, according to Kaufman’s testimony, defendant stated, “There is no doubt about it, it’s me.” According to defendant, his statement was, “It looks like me.” The question, however, is not so much what was said, but whether Kaufman read defendant his Miranda rights before or after the admission. A motion to suppress defendant’s admission was made and the trial judge held a voluntariness hearing out of the presence of the jury. At that hearing, defendant and Kaufman gave contradictory versions of when the warnings were given. At the conclusion of the hearing, the judge ruled: “The defense motion to suppress the statements of the defendant is denied. ****** “As I say, it would be basically up to the jury to determine the facts ... on the basis of the evidence which has been presented.” In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Court held that before a confession can be admitted in evidence, the trial judge must hold a hearing outside the hearing of the jury and make a clear finding of voluntariness. One month later we followed that case by holding that a trial judge erred when, in the jury’s presence, he stated that there was prima facie sufficient foundation to admit defendant’s statement and that the jury was the group that would determine whether the statement was voluntary. State v. Owen, 96 Ariz. 274, 394 P.2d 206. For the purpose of complying with Jackson v. Denno, supra, there is no difference between a confession and an admission. Ozven, supra. In 1965, in State v. Costello, 97 Ariz. 220, 399 P.2d 119, we held that at the conclusion of a voluntariness hearing in the absence of the jury, the trial judge’s statement that the State had made a “prima facie” showing of voluntariness was error under the rule of Jackson v. Denno, and that only if the judge makes “a definite determination that it was voluntary” may he admit the confession for consideration by the jury. In State v. Mileham, 100 Ariz. 402, 415 P.2d 104 (1966), the trial judge held a hearing in the absence of the jury, at the conclusion of which he stated: “The objection is overruled.” We held that to be an insufficient determination of voluntariness. In State v. Dodd, 101 Ariz, 234, 418 P.2d 571 (1966), we held that a ruling that the confession is “prima facie voluntary” will not take the place of a definite finding of voluntariness. The question was again before us twice in January, 1972. In State v. Ramos, 108 Ariz. 36, 492 P.2d 697, the trial judge ruled: “Objection overruled. The court finds that there was an intelligent waiver.” We held that ruling to be insufficient and remanded for a definite finding of voluntariness. In State v. O’Dell, 108 Ariz. 53, 492 P.2d 1160, the judge’s ruling was: “I’ll admit it,” after a hearing, and we again held that to be insufficient. The Attorney General ably and eloquently asks us to overrule some of these holdings, which he admits make the ruling in the instant case improper. His argument is that the judge’s overruling of the motion to suppress was tantamount to a finding of voluntariness, and that to require the ruling to be a finding of voluntariness in so many words “is to enshrine form over substance.” The argument is persuasive where it is clear that the judge understood Jackson v. Denno, supra, and merely worded his ruling badly. But in the instant case, it is clear that the trial judge did not understand that the duty of finding the admission to be voluntary was his and his alone, since he said, when he ruled, that it was really up to the jury to make that determination. In any event, we think that having repeatedly followed the strict requirements of Jackson v. Denno, supra, from its decision right up to this year, we should not overrule the cases cited above. The Attorney General’s arguments are not limited to trying to persuade us to be less strict about the form of the ruling following the voluntariness hearing. He also argues that the form of the ruling in the instant case is harmless error, quoting the following from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705: “We conclude that there may be some constitutional errors, which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the reversal of the conviction.” 386 U.S. 18, at 22, 87 S.Ct. 824, at 827, 17 L.Ed.2d 705, at 709. When a state appellate court reviews a case involving federal constitutional error, the state must apply the federal standard and declare the belief that the error was harmless beyond a reasonable doubt, if it affirms. This has been interpreted to mean that a constitutional error is harmless beyond a reasonable doubt “when the tainted evidence was cumulative” and the balance of the evidence is “overwhelming.” Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). As the Court said in Harrington: “The case against Harrington was not woven from circumstantial evidence. It is so overwhelming that unless we say that no violation of Bruton [Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476] can constitute harmless error, we must leave this state conviction undisturbed.” 395 U.S. at 254, 89 S.Ct. at 1729, 23 L.Ed.2d at 288. We have but to substitute “Jackson v. Denno” for “Bruton” in the above quotation to have it apply to the instant case. In it, the allegedly tainted evidence was cumulative, and the other evidence was overwhelming. The error was harmless beyond a reasonable doubt and, had the wrongfully-admitted evidence been omitted, the verdict would have been the same. The victim made a positive in-court identification, and defendant was unfortunate enough to pick for his robbery, a store equipped with an automatic camera which photographed him in the very act of the holdup. Judgment affirmed. CAMERON, V. C. J., and STRUCK-MEYER, LOCKWOOD and HOLOHAN, JJ., concur.

CAMERON, Vice Chief Justice. This is a petition for review of a decision of the Court of Appeals which held, pursuant to the provisions of Rule 42(f)(1) of the Rules of Civil Procedure, 16 A.R.S.: “ * * * that petitioner was entitled to disqualify the respondent judge as a matter of right * * The opinion of the Court of Appeals was filed contemporaneously with the case of Hofstra v. Mahoney, 18 Ariz.App. 4, 499 P.2d 735 (1972). We granted review in Hofstra v. Mahoney, supra, vacated the decision of the Court of Appeals, and dismissed the petition for special action holding that in a divorce action wherein a party attempts to either enforce or modify a prior decree, the party has waived the right to a peremptory challenge of the judge who tried the original action stating: “It is clear that it was intended by the legislature that divorce cases remain open, and jurisdiction continues, as long as it is necessary to modify the decree entered. Thus, the present petition to eliminate the alimony is not a new case. The husband impliedly recognized this fact when he gave his petition the same title and number as that of the original case. * * * ” Hofstra v. Mahoney, 108 Ariz. 498, 499, 502 P.2d 1317, 1318 (1972). Although nothing we say here should be construed to prevent a judge from considering and granting a motion for change of judge based upon actual bias and prejudice, we hold' in the instant case that the petitioner is not entitled to a peremptory challenge as a matter of right. Hofstra v. Mahoney, 108 Ariz. 498, 502 P.2d 1317, supra. Decision of the Court of Appeals, Division One, 18 Ariz.App. 9, 499 P.2d 740 (1972), vacated. The special action is dismissed. HAYS, C. J., and STRUCKMEYER, LOCKWOOD and HOLOHAN, JJ., concur.

HAYS, Chief Justice. This case is before us on a petition to review a decision of the Court of Appeals reported at 17 Ariz.App. 550, 499 P.2d 164 (1972), affirming a judgment of the Superior Court. The opinion of the Court of Appeals is vacated and the judgment of the Superior Court is affirmed. The plaintiff below is the administratrix of the estates of Mose and Georgia Mae Broussard, deceased. Mose died shortly after the transaction involved in this case, and Georgia died before the trial. At the time of the transaction, Mose was 77 years old. In September, 1962, Mose owned the home in which he and his wife, Georgia Mae, lived with their children. He and the defendant, D. C. Cunningham, did gardening and yard work, and sometimes had worked together. They were friends, but not close ones. Their incomes were small. Their educations were poor; Cunningham had gone through the third grade, and Mose couldn’t sign his own name. Though Mose owned his home, it had been foreclosed, and when he came to see Cunningham, he had five hours to raise $1056, failing which he would lose the property. Cunningham had some money in a savings institution, and withdrew it to pay off what was overdue on Mose’s home. The sole question in this case is whether Cunningham loaned Mose the money or whether he bought the home from Mose. The transaction took the form of a deed from the Broussards to Cunningham. This action in the lower court was brought to have the court declare the conveyance to be an equitable mortgage. It was heard by the court with an advisory jury. The jury answered two interrogatories: (1) that the value of the property was $2500 at the time of the transaction, and (2) that both parties intended the transaction to be an outright sale. The trial judge agreed, and adopted the jury’s view, and plaintiff appealed. The Court of Appeals affirmed. The difficulty in deciding this case is not due to conflicting legal theories, but rather to vague, conflicting and incomplete facts. Mose Broussard was not alive to tell his side of the story, and Cunningham, 83 years old at the time of the trial, could hardly be expected to recite, with complete clarity, events which took place some six years before. In addition, when two men with very little education attempt to deal in real property without benefit of counsel, it is inevitable that some misunderstandings will arise. The picture that comes through on reading the testimony is that of a simple man helping out a friend. Some of this testimony was to the following effect. “Q. He said he was going to lose the house unless you helped him out? “A. Yes sir. I think he had about four or five hours to redeem it. “Q. What did you do then ? “A. I told Mose this. ... ‘If you and Georgia will give me a deed to the place, sell the place to me’ — and that is what he come to do, he come for me to buy the place. . “Q. And you were going to give him a chance to get the money and pay you back? “A. Well, he had five years to do it. I was going to sell him the place back, that was the agreement. . . . He didn’t have that on the escrow but that was between him and me. “Q. How much money did you want back from him? “A. I don’t know, we didn’t have no agreement at all. . . . He said he would pay me rent until he got able to get me a down payment. “Q. What were you going to sell him the property back for ? “A. ... I didn’t mean to make too much off of him. “Q. And what was that conversation? “A. He says . . . ‘[i]f you’ll buy and give me a chance to buy it back . I’ll keep up all of the expenses, and you won’t have to be out a thing but what you will be out of buying. I’ll pay you rent until I’m able to pay your down payment.’ “Q. Was Georgia May present during that conversation? “A. Yes sir . . . and I went far enough with Georgia to say ‘Georgia, friendship is worth a whole lot to me. . . .’ “Q. Did you explain to her that it was a sale? “A. Yes sir, she knew it was a sale. “Q. Now you never made any agreement as to when and for how much you would sell it back, is that right ? "A. No sir, no sir. “Q. That was just someday that was going to he done? "A. Someday it would be done, yes sir. “Q. Would you have loaned Mose that amount of money? “A. No sir, not only Mose, I ain’t never been in the loaning business. . . .” Mary Shelton, the Broussards’ daughter testified that when her father came home from the title company, he told her and his wife that Mr. Cunningham had paid off the debt and that “he had to put up the deed . . . and when they pay him his money back, he would release the deed to the house.” The evidence showed that immediately after the money was advanced, Mose began paying $45 per month "rent” for being allowed to live in the house; that Cunningham issued rent receipts to Mose; and that Mose used them to show the welfare authorities that he did not own the house, and how much his monthly payments were for living quarters. Georgia Mae, several years after the deal was made, and after her husband’s death, decided to treat the rental payments as repayments on a loan, and when she decided that she had paid back more than Cunningham had advanced, she refused to pay any more rent and demanded that the property be deeded to her. Cunningham successfully sued to evict her, and rented the property to another family. This lawsuit followed. The equitable mortgage doctrine is a device used to prevent an avaricious lender from taking advantage of a distressed borrower. Even without avarice and distress, lenders have a natural dislike for taking a mortgage as security, because of the time and expense of a foreclosure upon default, and the tying up of the property during the redemption period. Other lenders don’t like the ceiling on interest imposed by the usury laws. Were it not for the doctrine of equitable mortgage, they would always take an absolute deed, with an option to the borrower to repurchase at a much higher figure. In order to give some guidelines, we set out in Merryweather v. Pendleton, 91 Ariz. 334, 372 P.2d 335 (1962), six conditions that influence the. determination whether the doctrine of equitable mortgage should he applied. These six criteria were not intended to be exhaustive. There are others. Another, for example, would be the relative sophistication of the parties, and whether one was engaged in the business of loaning money. Had a mortgage banker advanced the money to a man who couldn’t sign his own name, the picture would be much different. Here, however, we have two old men with little education, and no evidence that one was trying to take advantage of the other. One thing which is not a criterion in determining the issue, is whether there is a note or mortgage signed by the borrower. In every case where the lender takes a deed in lieu of a mortgage, the note and mortgage are conspicuous by their absence. In cases where the central issue is whether an outright sale or a mortgage was intended, the burden is upon the borrower to establish, not merely by a preponderance of the evidence, but by clear and convincing evidence, that a loan was intended. Merryweather, supra. Even though the jury was purely advisory, we may take its answers to the interrogatories as a guide to the demeanor and veracity of the witnesses. Ibid. No findings appear in the record. However, the trial court will be deemed to have made every finding of fact necessary to support its judgment. In re Estate of Harber, 104 Ariz. 79, 89; 449 P.2d 7. Further, the trial court’s findings will not be distrubed if they are supported by reasonable evidence. Ibid. It would appear — taking the facts in the light most favorable to sustaining the trial court’s decision — that Cunningham and Mose Broussard agreed that the former would buy the house and rent it to Mose until such time as Mose had sufficient funds to start paying back the amount ad vanced. Despite Georgia Mae’s feeling that the rental payments were payments on the “loan,” they must be considered as rent, and as such, cannot be applied to the sum advanced by Cunningham. He testified that he would still honor his promise to sell the home back. However, in such case, he would be entitled to $1056 plus interest. No tender was made nor was there any showing that plaintiff had any money. Plaintiff’s position was that the debt had been entirely paid off — a position that the court and jury did not accept. Furthermore, plaintiff did not come into court with clean hands. The Broussards had promised to pay all expenses, and failed to do so. It is then a case where plaintiff is asking a court of equity to force the defendant to honor a promise, when the plaintiff herself (or at least her predecessors in interest) did not honor hers. The plaintiff was clearly at a disadvantage in not having Mose alive to testify, and in having to meet a burden of proof by clear and convincing evidence. She failed to do that, and for that reason, the judgment is affirmed. CAMERON, V. C. J., and STRUCK-MEYER, LOCKWOOD and HOLOHAN, JJ., concur.

CAMERON, Vice Chief Justice. This is an appeal from jury verdicts and judgments of guilt to the crimes of rape, first degree, § 13-611 subsec. A A.R.S., and aggravated battery, § 13-241 subsec. B and § 13-245 subsec. A, par. 3 A.R.S., and sentences of not less than 20 nor more than 21 years for the rape and not less than 2 nor more than 5 years on the aggravated battery charge. We are asked to answer the following questions on appeal: 1. Was it error to grant the County Attorney’s motion for a continuance? 2. Was it error for the County Attorney to fail to disclose to the defendant matters contained in the police . investigation report ? 3. Did the court err in denying the defendant’s motion for new trial based on newly discovered evidence ? The facts necessary for a determination of this matter on appeal are as follows. On the evening of 6 October 1970, at approximately 10:00 p. m., the victim was alone at home with her five year old daughter and three year old son. Her husband was away at school. The victim was taking a bath when she heard a knock at the- door. She instructed her five year old daughter to “see who it was.” According to her testimony: “Q What was the next thing that happened? “A Well, she left the bathroom and then, all of a sudden there he was standing in the bathroom.” The victim testified that he was holding what looked like a knife and also a flashlight and he told the victim, “Lady get out of the tub. Don’t scream or I’ll kill you.” After she got out of the tub he demanded “money or pussy.” She told him she didn’t have any money and he hit her on the right side of the head, forced her to the floor of the bathroom, and wrapped a towel around her head. The victim was forced to lay on her stomach and at one time he choked her until as she stated "I thought I’d stopped breathing. Thought I was going to die right there and then. He let me go.” “Q What happened after he let you go? “A Then he pulled me by the hair and told me 'you bitch, get down’.” The victim was forced to remain on her stomach and sexual intercourse was accomplished from the rear. After the rape he forced the victim into her bedroom where he went through her purse taking several dollars. He then pulled her by the hair back into the bathroom, placed her in the tub and left. Immediately after this the three year old boy came in crying and screaming. The victim testified: “Q What was his physical shape at that time? “A Well, he had three ... he had three, let’s see, he had three marks of blood coming to the surface of his forehead right here (indicating), and his mouth was full of blood. * * * * * * “Q He said that the man had kicked him? “A Yes, that the man had kicked him and so did the little girl.” The victim immediately called her husband and upon his return the police were called. After the arrival of the police and their preliminary investigation, the victim was taken to the hospital where an examination was made revealing the presence of spermatozoa in the vaginal cavity. On the day after the rape, the victim selected a picture from a group of twelve photographs depicting a person that “looked like” the defendant, and on 15 October a five-man lineup was held at which time the victim identified the defendant, Edward Lewis Jackson, as the assaultant. A preliminary hearing was held 23 October 1970. The defendant was held to answer and trial was set in the Superior Court for 15 December 1970. At that time, because of a mix-up with this case and another case in which the defendant Edward Lewis Jackson was also a defendant, the State asked for a continuance which was granted over the objections of the attorney for the defendant. Trial was held before a jury commencing 29 December 1970. At the trial the victim, the medical doctor, and two police officers testified for the State. The victim made a positive in-court identification of the defendant and testified regarding the lineup identification as follows: “Q When you viewed this line-up, how many people were in the line-up itself? “A Five. “Q Were they all Negroes ? "A Yes, they were. “Q Were they all generally about the same height ? “A They were around the same height, but they weren’t the same height, no. “Q Now, before you went into this line-up, did anyone indicate to you that . . . make any indication to you who you would see in that . . . yes or no ? “A No. “Q While you were in there, did anyone say anything to you about there would be someone in there you should recognize ? “A No. “Q And who was actually in the line-up with you at the time you looked at these five individuals ? Well, Mr. Farmer and I believe a policeman . . . there were more than just one person there. I’m not sure who they were. A 'Q Now, when you walked into this" room, did you . . . how long did it take before you recognized someone in that line-up ? ‘A I recognized him over there right away, immediately. 'Q Would you tell us just exactly the steps you went through from the time you walked in there ? ‘A Yes, they gave me instructions of what was going to happen and I went and so I recognized . as soon as I seen his face, I recognized him right away, but I went through and looked at each individual and then I identified. ‘Q Now, you identified immediately from the way he looked, is that not correct ? ‘A Right, right away. ‘Q Is there any other way you were able to identify this as being the particular man ? ‘A His voice. ‘Q How did you do that ? ‘A Well, they had each one of the men that were in the line-up and said something similar to the incident that night, individually as they were, one, two, all the way up to five. ‘Q And you were able to recognize his voice, is that not correct ? ‘A Yes. ‘Q I show you now what’s marked State’s Echibit No. 1 for identification and I ask you does this picture truly and accurately depict the scene of the line-up as you viewed it on the morning of October 15th of 1970 in this complex? "A Yes, it is. “Q And would you hold that picture up so the jury can see that picture and which man was it that you picked as being the defendant ? “A Number three. “Q Now, is the number three, at this time, have anything different about him than he was at the time you saw him ? “A He has a little goatee and moustache.” And: "Q Now, Mr. Fischer asked you a little while ago if seeing the defendant on these other two occasions aided you in identifying him today. Would you explain what you mean by that ? “A Sure. You look at a person and see him, it helps bring more into it, but I still wouldn’t forget that face even after I went out of that lineup, it was like I could still see that face outside of the room yet. It’s something you don’t forget that easily. “Q So, you’re saying that if you see anybody several times, it’s better than if you see them once ? “A Sure, you could get more of the clothing and more of them if you see them more. “Q Now, if you were to say that you didn’t see the line-up and you didn’t see him at the Preliminary Hearing, would you still be able to, in your opinion, be able to identify this individual today ? “A Yes, I would ... I would.” The police officer testified regarding the twelve pictures shown to the victim the day after the rape: “Q At that time, did you have occasion to show her some pictures ? “A Yes, I did. “Q Approximately, if you can remember, how many pictures did you show her ? “A Approximately a dozen pictures. “Q Did you . . . strike that. When you showed her these pictures, did you just tell her to look and see if she recognized anyone? “A Yes, I did. “Q Was she able to pick someone out? “A No, she said that the person was not in there. “Q Was there a picture in that group of pictures of the defendant, Mr. Edward Lewis Jackson? “A No, he was not in there. “Q Did she make any statements to any of the pictures at all in maybe looking like . “A She said one of them looked quite a bit like him. “Q So, there was not a picture in there though of the defendant, is that not correct ? “A His picture was not in there.” The defendant did not testify, but three witnesses including the defendant’s fiancee testified on his behalf. The defendant’s fiancee testified that on the morning of 6 October the defendant had picked up his mother from work at the Arizona State Hospital and had then spent the rest of the day with her and that in the evening they had spent their time moving furniture into defendant’s and his mother’s new home, as well as visiting with friends. This testimony was supported by the two other defense witnesses. In rebuttal to the alibi defense, the State obtained testimony from a bookkeeper at the State Hospital to the effect that the defendant’s mother did not work on the night of the 5th and the morning of the 6th of October, the day the-defendant allegedly picked up his mother from work. The jury returned verdicts of guilty as to both charges and the defendant appeals. CONTINUANCE BY THE COUNTY ATTORNEY Trial in the above matter was set for 15 December 1970, some 70 days after the crime had occurred, and 36 days after the information was filed in the Superior Court. The jury panel was present but there had been no attempt to select a jury at that time, and there is no question that jeopardy had not attached. State v. Mojarra Padilla, 107 Ariz. 134, 483 P.2d 549 (1971); State v. Stout, 5 Ariz.App. 271, 425 P.2d 582 (1967). Defendant vigorously opposed the continuance and over defendant’s objection the matter was set for 4 January 1971, and the other charge was set for 28 December 1970. On 18 December 1970, the instant case was reset to 28 December 1970 at which time it was tried. Defendant contends on appeal that it was prejudicial error for the trial court to grant the County Attorney’s motion for a continuance. The Rules of Criminal Procedure, 17 A.R.S., applicable at that time, allow the court to grant a continuance for “good cause,” but for no longer than justice requires. Rules 241 and 247, Rules of Criminal Procedure, 17 A.R.S. And Rule 236 of the Rules of Criminal Procedure provides for a dismissal “if he is not brought to trial for the offense within sixty days after the * * * information [is] filed.” A continuance to a time within the sixty day period mandated by Rule 236 is presumptively nonprejudicial, and we find no abuse of the trial court’s discretion in continuing the case for a time still within the sixty day trial period. FAILURE TO DISCLOSE POLICE INVESTIGATION REPORT The defendant contends that the trial court erred in denying his motion to “set aside the verdict and dismiss with prejudice” because the State concealed a police report wherein the victim is reported to have stated she believed that the defendant had not had normal sexual intercourse with her, but instead made penetration into the anal cavity and also she was dubious of her ability to recognize her attacker if she saw him again. The defendant cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Fowler, 101 Ariz. 561, 422 P.2d 125 (1967) wherein we stated: “A number of the state courts also have accepted in various forms the proposition that the prosecutor is under a duty to make disclosure of evidence in his possession which relates to the charges being brought against the defendant and that a conviction cannot stand when the prosecutor has either wilfully or negligently withheld material evidence favorable to the defendant, (citations omitted) “In the present case we are faced with the question of whether the failure of the state to reveal the relevant physical evidence found at the scene of the crime constituted a denial of due process. That many courts have recently found that the state has an obligation to disclose certain types of evidence certainly seems just when the duties of the prosecution are considered in their proper perspective. Both prosecutors and the police, as public officers acting on behalf of the state, are sworn to uphold the law and are duty bound to protect the rights of the innocent as well as to prosecute the guilty. Their primary duty is not to convict, but to see that justice is done. Canon 5, Canons of Professional Ethics. A prosecutor who fails to reveal evidence that clearly would aid the accused’s defense would seem to have lost sight of his proper objective. Should his failure be a deliberate attempt to employ defendant’s unknowingness to the prosecution’s own advantage, his actions would become particularly reprehensible. * * * ” State v. Fowler, supra, 101 Ariz. at 563, 422 P.2d at 127. At the hearing on the motion, after the verdict, the victim testified that she had her doubts at first but that after the examination and other events she realized that penetration had been made into the vaginal cavity. The testimony of the doctor concerning the presence of spermatozoa both at the preliminary hearing and at the trial supports this conclusion. Penetration of the vulva, no matter how slight, is necessary before a person can be guilty of the crime of rape, § 13-612 A.R.S.; State v. Torres, 105 Ariz. 361, 464 P.2d 953 (1970); State v. Scott, 105 Ariz. 109, 460 P.2d 3 (1969), and penetration of the anal cavity alone will not support a conviction for rape. See Reynolds v. State, 274 Ala. 171, 146 So.2d 85 (1962) for a comprehensive citation of authority on this question as to what constitutes “carnal knowledge” and sexual intercourse. The statement made by the complaining witness to the officer to the effect that she had her doubts whether the penetration was into the vulva was material because without penetration of the vulva the defendant, irrespective of what other offenses he might have committed, did not commit the crime of rape. The failure of the State to notify the defense of this was certainly error and we do not condone the potentially prejudicial conduct of the county attorney. State v. Fowler, supra. We believe, however, under the facts in the instant case that the error was harmless. The harmless error rule announced by the United States Supreme Court in the cases of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), applied the doctrine of harmless error to constitutional or fundamental error in those cases wherein the error did not contribute to the verdict and was harmless beyond a reasonable doubt. It should be kept in mind, however, that the harmless error rule is an appellate court rule and should not be applied where the error is of the type which could deceive the appellate court into thinking that the error was harmless when in fact it was not. In the instant case, were our record limited to the facts presented at the trial, we would have no way of knowing whether the action of the State in withholding this information was prejudicial. In the present case, however, these facts are not concealed from the appellate court, for at the hearing on the motion to set aside the verdict and to dismiss the case, the victim not only testified but was cross-examined as to information contained in the withheld report. Also, the examining physician testified at this hearing and cross-examination was allowed. From the testimony of the victim at that hearing, as well as that of the examining physician, it is clear that, even though the victim had some doubts at first because of the way in which the rape was accomplished, her testimony at trial would have been consistent on this point with the verdict if cross-examined on the contents of the report. We therefore hold that, based upon the testimony adduced at the motion to set aside the verdict and dismiss, the failure to make available to the defendant the allegedly beneficial information contained in the police report was harmless and did not, beyond a reasonable doubt, contribute to the verdict. Chapman v. California, supra. As to the identification of the defendant, it is apparent from the testimony that the victim had ample opportunity to observe the defendant and was able to identify him at the lineup and at the trial. Though she may have had some doubts at the time she talked to the officer immediately after the event, once she did see the defendant again her identification was instantaneous and positive. NEWLY DISCOVERED EVIDENCE The defendant in his alibi defense presented testimony by the defendant’s fiancee who stated that the defendant was with her all day the day of 6 October and that she first saw the defendant that morning “after he went to pick up his mother from work.” On cross-examination by the State, she said: “Q I understand that. Okay, let’s go down to . let’s start on October 6, okay, and in the morning hours, I believe you said that you saw Eddie, the Defendant here, on that morning, didn’t you ? “A After we went to pick his mother up. “Q After you went to pick his mother up. Did you see him before that? “A No, I didn’t. “Q And he went to pick up his mother, is that correct? And do you know where he went to ? “A Arizona State Hospital. “Q She worked that day, didn’t she? “A Yes. “Q Did she tell you that ? “A Did she tell me that? “Q Yes. “A No, she didn’t have to tell me. "Q Okay. Now, tell me what happened, what time was that ? “A Let’s see ... I think she got off about ... I don’t know, 7:00 or 8:00. “Q Now, if I were to tell you his mother didn’t work that day, would that change your story and that possibly these events happened on some other day . . . is it possible these events could have happened the next day ? “A (No audible response.) “Q No, you are sure of that? “A That’s right. “Q You are positive that this was on October 6th, the day you are talking about ? “A The day we moved.” On rebuttal testimony the State presented an employee of the Arizona State Hospital, Finance Department, Payroll Division, who testified that the time cards indicated that the defendant’s mother did not work that night. The motion for new trial on newly discovered evidence was based on the testimony produced at the hearing of the Comptroller of the hospital who testified that the defendant’s mother did indeed work that night before. Rule 310 of the Rules of Criminal Procedure, 17 A.R.S., applicable at the time this trial took place, states: “The court shall grant a new trial if any of the following grounds is established: ífí 5¡C ^ i{s j{i jfc “(3) That new and material evidence, which if introduced at the trial would probably have changed the verdict or the finding of the court, is discovered which the defendant could not with reasonable diligence have discovered and produced upon the trial.” Whether or not the mother was picked up at the Arizona State Hospital on the morning of 6 October is not material to the issue before this court. The rape occurred between 10 and 10:30 p. m. that night, and while the rebuttal testimony might indicate that the witness was mistaken on this point, it does not mean that the witness is necessarily mistaken on the question of the whereabouts of -the defendant at the time the rape occurred. The trial judge and the jury were able to observe the demeanor of the witnesses and were able to draw their own conclusions. We have stated: “We have held that a new trial for newly-discovered evidence is required if the introduction of the evidence at the trial would probably have changed the verdict, and if the defendant could not, with reasonable diligence, have discovered and produced it upon the first trial, (citations omitted) The alleged newly-discovered evidence on a collateral issue was to be used solely for the purpose of impeaching the state’s witness. It does not go to the proof or disproof of the crime charged. The general rule in this state is that a new trial will not be granted based on any discovered evidence which is merely impeaching. Such evidence does not have a substantial probability of changing the verdict. The court below did not err in denying the new trial.” State v. Thurston, 100 Ariz. 297, 302, 413 P.2d 764, 767 (1966). See also State v. Sims, 104 Ariz. 118. 449 P.2d 289 (1969). ' We agree with the minute entry which states: “As to Paragraph I, THE COURT FINDS THAT the newly discovered evidence offered by defendant in support of his motion for New Trial is insufficient to warrant the granting of such a motion. “The Court bases this opinion on the fact that the defense offered at trial by defendant insofar as the new evidence is concerned, was in the form of alibi testimony from several witnesses. The newly discovered evidence offered by defendant in support of a Motion for New Trial neither confirms nor disproves the alibi testimony nor does it establish a new defense.” We find no error. Judgments affirmed. HAYS, C. J., and STRUCKMEYER, LOCKWOOD and HOLOHAN, JJ., concur.

CAMERON, Vice Chief Justice. This is an appeal from judgments entered on defendant’s pleas of guilty to two counts of theft from the person, § 13-661, subsec. A A.R.S., and concurrent sentences of six to ten years on each count. We are asked to answer only one question on appeal and that is: Does Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), require that before accepting a guilty plea the court advise a defendant of the elements of the crime to which he is pleading guilty? The facts necessary for a determination of this appeal are as follows. After preliminary hearings, defendant was held to answer to charges of two counts of assault with a deadly weapon and two counts of robbery. On 9 March 1971, defendant withdrew his previously entered pleas of not guilty and entered guilty pleas to two counts of theft from the person pursuant to a plea bargain. In the course of its examination of defendant prior to accepting his guilty pleas, the court asked these questions concerning defendant’s understanding of the charges against him: “Q You have been charged by the State with the crime of theft from a person, a felony, on two causes. Do you understand what that means ? “A Yes. “Q Have you discussed this matter with • your lawyer? “A Yes. “Q And you do understand the nature of the charges that are being filed at this time? “A Yes.” Defendant contends that Boykin v. Alabama, supra, requires that the trial court advise the defendant of the legal elements of the crime before the plea can be considered intelligent and voluntary. We do not agree. This matter has been previously discussed and answered by this court and our Court of Appeals. See State v. Montgomery, 109 Ariz. 34, 504 P.2d 935, 8 January 1973; State v. Phillips, 108 Ariz. 332, 498 P.2d 199 (1972); State v. Ferrell, 108 Ariz. 394, 499 P.2d 109 (1972) ; and State v. Kuhlman, 15 Ariz.App. 359, 488 P.2d 996 (1971). We have reviewed the entire record as required by § 13-1715 A.R.S., State v. Burrell, 96 Ariz. 233, 393 P.2d 921 (1964), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We find no fundamental error. Judgments affirmed. STRUCKMEYER and HOLOHAN, JJ., concur.

HOLOHAN, Justice. Darryl Lester Bettis entered a plea of guilty to a charge of armed robbery on July 16, 1971. He was sentenced to a term of 8 to 10 years confinement in the Arizona State Prison at Florence. This appeal is brought questioning only whether the sentence is excessive in light of the facts that this was a first offense and that the defendant is “youthful.” Neither the record on appeal nor appellant’s brief disclose the exact age of the defendant, and the factors of youth and first offense are relevant considerations in determining the propriety of a sentence [See State v. Flores, 108 Ariz. 231, 495 P.2d 461 (1972); State v. Seelen, 107 Ariz. 256, 485 P.2d 826 (1971)], but youth and first offense are not the only factors relevant to fixing the sentence. State v. Smith, 107 Ariz. 218, 484 P.2d 1049 (1971). As an additional factor the appellant points out that he was not the one armed during the offense, and the record supports his position. It was his codefendant who had the gun. This is, of course, no defense to the charge as the appellant was, admittedly, an aider and abettor in the commission of the offense. State v. Church, 109 Ariz. 39, 504 P.2d 940 (1973). Where discretion is vested in the trial judge as to the limits of the sentence, he should consider not only the circumstances of the offense but also the moral character and past conduct of the defendant. State v. Smith, supra. The record is clear in this case that the trial judge did just that. At the time of sentence the trial judge reviewed with appellant the circumstances of the robbery, and those circumstances disclosed that the house of two older women had been invaded at night, ransacked while the women were held at gunpoint, property taken, and the women left tied on the floor. While the appellant protests that this was his first felony conviction, his past conduct did nothing to recommend him. Even appellant recognized the problem when he stated to the trial court: “I know I have been in a lot of trouble when I was younger.” Appellant had a history of juvenile delinquency which included a commitment to the state industrial school. At the time of sentence appellant was absent without leave from the Army for the second time. There is nothing presented in the record, or by counsel, which in any way suggests that the trial judge abused his discretion in the sentence imposed. The judgment and sentence of the trial court are affirmed. HAYS, C. J., and STRUCKMEYER, J., concur.

HAYS, Chief Justice. Defendant,' Felipe Rocha, appeals from a judgment entered upon a jury verdict of guilty of robbery, and from his sentence of five to seven years in prison. The facts indicate that the victim was Sylvester Dominguez, a 79-year-old man, blind in one eye and with very little sight in the other. He was also nearly deaf. An interpreter was needed at the trial. The defense was alibi. • Only one issue is raised on appeal— namely, whether the in-court identification was unduly suggestive, and a violation of due process under the fourteenth amendment to the United States Constitution. The evidence showed that the victim had just come out of the door to his living quarters, with $26 in bills with which he intended to pay his rent. At the same time, defendant exited from a station wagon' and attacked the old man; stealing his money and'a ring. Identification in court was by the victim and by a lady named Aurora Pacheco. The latter saw him and! identified him before the jury. The State' also tried to get the victim to identify defendant. Because of the latter’s bad sight! and bad hearing, plus an interpreter who did not function too well, the interrogation of the victim was drawn out and frequently unintelligible. However, it was clearly proven by the victim’s testimony that he saw his attacker up close and recognized him as the defendant, whom he had known for over ten years. In order to identify defendant in court, it was necessary to require defendant to step up to within a few feet from the victim, who then was quite positive that it was Felipe Rocha and was the man who had robbed him. The defense took exception to the “one-man lineup” as being suggestive and violative of State v. Dessureault, 104 Ariz. 380, 453 P.2d 451; Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1999, 87 S.Ct. 1967; and United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926. These cases hold that an out-of-! court lineup is a critical stage of the proceedings in a criminal case and that, therefore, the accused is entitled under most circumstances to have his lawyer present. They do not purport to affect the in-court identification, unless it is tainted by a previous unduly suggestive out-of-court identification. Defendant contends that since the court permitted and required defendant to approach the victim, who was on the witness stand, alone, this was the equivalent to a one-man lineup and therefore unduly suggestive. We hold that this point is not well taken. Mrs. Pacheco identified defendant, saw the attack, called the police, and took pictures of the victim who was left quite bloody from the attack which knocked him unconscious. She also identified defendant in court, but defendant argues that the suggestive identification by the victim “precluded any reasonable possibility that an independent source of identification would have had a material bearing on the < witness making his final identification of the defendant.” We are unable to agree with this argument. It is our holding that the victim knew his attacker, knew that his attacker was the defendant, and sufficiently identified him in court. That, together with the identification by Mrs. Pacheco, provides ample evidence to sustain the jury’s verdict of guilty. Judgment affirmed. CAMERON, V. C. J., and STRUCK-MEYER, LOCKWOOD, and HOLOHAN, JJ., concur.

LOCKWOOD, Justice: In March of 1972, defendant, after a jury trial in Maricopa County, was convicted of first degree rape, a felony, and sentenced to serve a term of not less than five years nor more than seven years at the Arizona State Prison. The state’s evidence consisted of testimony from the victim incriminating the defendant. No corroborating testimony was given. From both his conviction and sentence, the defendant now appeals to this court. The victim in this case was a sixty-six year old widow, who lived in Avondale, Arizona. She had sold Avon products in that town for a period of four and one-half years. On the night of May 26, 1971, the victim was sexually assaulted. The victim recognized the assailant as the boyfriend of one of her customers, Varee Epps. The victim testified that she had seen the assailant at the Epps’ home on two previous occasions during the previous fourteen months that she had been selling Avon products to Miss Epps. Either through fear or embarrassment, the victim waited one week before reporting the crime. On June 2, 1971 she reported the incident to the City Manager of Avondale whom she knew and trusted. He in turn reported the crime to the police. The investigating officer interviewed the victim at her house. He brought to the initial interview a folder containing seven photographs of possible suspects. The victim picked out two photographs as being similar to the assailant but definitely not the assailant. She then told the officer that she recognized her assailant as being the boyfriend of one of her customers, Varee Epps, but that she did not know his name. The investigating officer left and after some inquiries, ascertained the name of the alleged assailant, Jesse A. Taylor, and located some photographs of the suspect in the police files. A second investigating officer returned to the victim’s home with the original photographs plus the photographs of the suspect which had been placed in the back of the folder. Upon seeing a photograph of the suspect, the victim immediately identified him as her attacker. Defendant was brought to the police station for a stationhouse showup. The victim was brought to the station and shown a man sitting alone in a small room. She indicated to the investigating officers that he was not her assailant. She was then shown the defendant who was also sitting in a small room by himself. The victim immediately identified the defendant as her attacker. Defendant’s counsel was not present during the showup proceedings. Defendant on appeal has raised several issues for this court to review. Defendant’s first contention is that the initial photographic identification was unduly suggestive because it focused the victim’s attention exclusively upon the defendant. The United States Supreme Court has said: “ * * * [W]e hold that each case must be considered on its own facts, and that convictions based on eyewitnesses identification * * * by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). (Emphasis added.) Defendant’s argument fails for the reason that the witness had a completely independent basis for the identification of her assailant. The victim had an opportunity to observe the defendant on at least two occasions prior to the assault and she' knew the identity of the assailant although she did not know his name. She immediately recognized the defendant when he first appeared at her home the night of the attack. On that basis it is obvious that the victim was identifying the assailant for the benefit of the police so that they could arrest the right person rather than the police suggesting the identity of the defendant. Under these circumstances, the procedure used by the police could not be considered impermissibly suggestive. The second issue raised by the defendant is that the stationhouse showup conducted by the police was unduly suggestive and violated the defendant’s right to due process under the law. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Applying these factors we find no merit to defendant’s claim that the one-man lineup was impermissibly suggestive. The victim was able to observe her attacker for a period of at least one quarter of an hour at the time of the crime in addition to having seen him on two prior occasions. Her description of the assailant was such that the police were able to bring the defendant into custody the same day the attack was reported to them. In addition the victim had no doubt that the defendant was her attacker when he was shown to her. Finally, there was only a lapse of seven days between the time of the attack and the confrontation. Her record for reliability was also excellent in that she was able to correctly pick out defendant’s photograph and did not misidentify the first suspect she was showed. Weighing all these factors we must conclude that there was little likelihood that there would be a misidentification. Defendant also urges in his appeal that the right to counsel should be extended to pre-indictment as well as to post-indictment lineups. We have repeatedly held that pre-indictment or pre-information lineups are not a critical stage of the proceedings requiring the presence of counsel. State v. Flynn, 109 Ariz. 545, 514 P.2d 466 (1973); State v. Nunez, 108 Ariz. 71, 492 P.2d 1178 (1972); State v. Branch, 108 Ariz. 351, 498 P.2d 218 (1972); State v. Fields, 104 Ariz. 486, 455 P.2d 964 (1969); State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). For these reasons we will not extend the doctrine of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d. 1178 (1967) and require the accused to be represented by counsel in pre-indictment or pre-information situations. The fourth issue raised on appeal by the defendant is that the victim’s in-court identification of the defendant was tainted by her photographic identification and/or the lineup identification. We have previously stated that: “Questions as to whether there has been an accurate in-court identification of the defendant untainted by prior identification procedures and whether these procedures followed were fair to the defendant are preliminary questions for the trial court. State v. Dessureault, supra; State v. Darby, 105 Ariz. 115, 460 P.2d 9 (1969); State v. Murray, 106 Ariz. 150, 472 P.2d 19 (1970).” State v. Nunez, supra at 73 of 108 Ariz., at 1180 of 492 P.2d. The trial court in this case made such a determination when it denied the defendant’s motion to suppress. Such a determination will not be disturbed on appeal unless there is clear and manifest error. State v. Murray, 106 Ariz. 150, 472 P.2d 19 (1970); State v. Darby, 105 Ariz. 115, 460 P.2d 9 (1969). Defendant’s last assignment of error is that the verdict is contrary to the weight of the evidence. In considering whether a verdict is contrary to the evidence, this court does not decide whether it would reach the same conclusion as the jury but rather whether there was competent evidence to support the conclusion found. State v. Ford, 108 Ariz. 404, 499 P.2d 699 (1972); State v. Kidwell, 106 Ariz. 257, 475 P.2d 241 (1970). We conclude after reviewing the record that there was competent evidence to support the conclusion reached by the jury. Judgment affirmed. HAYS, C. J., CAMERON, V. C. J., and STRUCKMEYER and HOLOHAN, JJ., concur.

CAMERON, Vice Chief Justice. This is an appeal from a summary judgment entered in favor of Frederick Morey Schade and from denial of Mary Ruth Schade’s motion for summary judgment upon an appeal from an order of the Arizona State Retirement Board. The issue on appeal is whether the record before the Board contains sufficient evidence to support the finding by the Board that the deceased Fred K. Schade did not intend to change the beneficiary of his retirement funds until the date of his retirement. The facts necessary for a determination of this matter on appeal are as follows. In 1953, the Arizona legislature enacted the State Employees’ Retirement System Act which is now found in Article 2, Chapter 5, Title 38 A.R.S. The act established a retirement system for state and public employees. Both the employee and the employer make contributions to the individual’s retirement account. Fred K. Schade was a member of the Arizona State Retirement System. In 1968, Fred Schade was divorced from Fern Morey Schade. Fern Schade was given custody of their son Frederick Morey Schade, then 16 years old. As a result of the divorce, Fern Schade received most of the property of the parties, including the home and other real and personal property. According to testimony of the second wife, Fred K. Schade had only a “1964 Volkswagen and a new job” when he met and in November of 1968 married Mary Ruth Schade. In April of 1969, deceased suffered a-heart attack and was hospitalized. Mary Schade’s insurance paid for the hospitalization. The testimony indicated that the deceased was very happy with his new wife and that he was also extremely fond and proud of his son Frederick Morey Schade. In May of 1969, after he was released from the hospital, he signed a “Change of Beneficiary” designating, as beneficiary,. Mary Schade and Frederick Morey Schade to “share and share alike.” On 17 July 1969, the deceased signed an' “Application for Retirement Income and Election of Settlement Option.” The form provided by the Board contained the state» ment that the date of retirement “cannot be sooner than the first day of the month following conclusion of payroll status and submission of the retirement application.” The deceased requested that his retirement become effective on 1 August 1969 which was the first available day as indicated by the statement on the form. He elected to take Option 1 which reads as follows: “Life annuity with refund provision, I elect to receive monthly income payments to be paid during my lifetime, with a refund to my designated beneficiary of any balance in my retirement account remaining at my death, such refund not including prior service credit pension payments. If my beneficiary should predecease me, the refund shall be paid to my estate. My beneficiary is Mary Ruth Schade, my wife._ (relationship) Fred K. Schade passed away on 29 July 1969. At the time of his death, Fred K. Schade had a balance of approximately $14,000 in his retirement fund account with the Arizona State Retirement System. It is the balance of this account that is in dispute. Disposition of the funds in Mr. Schade’s account at his death, hut prior to the date of retirement, is set out in § 38-758, subsec. E, A.R.S.: “E. Upon the death of a member prior to retirement, the designated beneficiary or the estate of the deceased shall be entitled to a payment equal to the balance in the deceased member’s retirement account.” On 21 October 1969, the Arizona Retirement Board, pursuant to § 38-743 A.R.S., held a hearing to determine the rights of beneficiaries to the balance of this account. The order of the Board arising out of that hearing was appealed to the Superior Court which remanded the matter for a second hearing due to the fact that there was no reporter’s transcript of the first hearing. On 18 February 1970, the Arizona Retirement Board held a second hearing. After a hearing at which both Mary Schade and the son testified, the Board found that the two beneficiaries as of 16 May were Mary Schade and Frederick Morey Schade and that: “5. Fred K. Schade, deceased, did not • intend by the execution and filing of his ‘Application for Retirement Income and Election Settlement Option’ to change the designation of Mary Ruth Schade and Frederick Morey Schade 'as the beneficiaries of his retirement account in the event of his death prior to settlement. “6. Fred K. Schade, deceased, by the execution and filing of his ‘Application for Retirement Income and Election of Settlement Option’ intended to name Mary Ruth Schade as the sole beneficiary of the balance, if any, in his retirement account at the time of his death after retirement. Conclusions of Law “1. Fred K. Schade, at the date of his death, was not retired within the meaning of Article 2, chapter 5, Title 38, Arizona Revised Statutes. “2. On July 27, 1969, the designated beneficiaries of the retirement account of Fred K. Schade, deceased, were Mary Schade and Frederick Morey Schade, share and share alike.” The appeal to the Superior Court from the decision of the Arizona State Retirement System was pursuant to the Administrative Review Act, § 12-901, et seq., A.R.S. The scope of the Superior Court’s review is limited to deciding whether the administrative action was illegal, arbitrary, capricious, or involved an abuse of discretion. Arizona Board of Regents v. Superior Court, 106 Ariz. 430, 477 P.2d 520 (1970). In reviewing actions of the trial court under the act, appellate courts will only search the record to determine whether the evidence is of a substantial nature to support the lower court’s decision. Welsh v. Arizona State Board of Accountancy, 14 Ariz.App. 432, 484 P.2d 201 (1971) . Since the trial court in the instant case granted a motion for summary judgment without new evidence, a trial de novo not being asked for by the party or ordered by the trial court, § 12-910, subsec. A, A.R.S., we have before us the sole question as to whether the summary judgment in favor of the son is supported by the evidence which was presented to the State Retirement Board. The benefits provided for beneficiaries under the State Employees’ Retirement System, § 38-741 et seq., A.R.S., are in the nature of proceeds of an annuity or life insurance contract. The law regarding change of beneficiary under acts of this kind generally follows the law regarding the change of beneficiary of an annuity or a life insurance contract. Rogers v. Rogers, 152 So.2d 183, 5 A.L.R.3d 637 (Fla.App.1963). This court has held that the method of changing beneficiaries as set out in the insurance contract must be strictly followed. There are, however, three exceptions to this general rule requiring strict compliance with the provisions and they are: (1) if the insurer has waived strict compliance; (2) if it is beyond the power of the insurer to comply literally with the regulations, equity will treat the change as regularly made; and (3) if the insured has done all in his power to effect the change, hut before the change is completed he dies, equity will treat the change has having been made. McLennan v. McLennan, 29 Ariz. 191, 240 P.2d 339 (1925); Doss v. Kalas, 94 Ariz. 247, 383 P.2d 169 (1963); Franklin Life Insurance Co. v. Mast, 435 F.2d 1038 (9th Cir. 1970). See also, Annotation, 19 A.L.R.2d 5. “ * * * The provisions in a policy of insurance as to the procedure for making a change of beneficiary are for the benefit of the insurer. If the insurer does not choose to require enforcement thereof, and the rights of the respective claimants alone are before the court, the intent of the insured should govern, (citations omitted).” Doss v. Kalas, supra, 94 Ariz. at 251, 383 P.2d at 172. In the instant case there is no question concerning strict compliance as the State Retirement System is willing to pay to anyone the court designates, and we feel that the insured at the time he signed the election form had done all he felt he had to do to make Mary Schade his beneficiary at the time of signing. We can find nothing in the record to reasonably support the finding of the Board that the deceased intended to keep his son and wife as beneficiaries from the date of the signing to the date of his retirement some 15 days later and then change to Mary Schade as his sole beneficiary. On the contrary, a reading of the transcript of the hearing before the Board indicates that, if anything, the deceased intended to change the beneficiary at the time of signing the document on 17 July. The order of the trial court granting summary judgment in favor of the appellee, Frederick Morey Schade, is set aside and the matter remanded to the trial court with directions to grant the motion of the appellant, Mary Ruth Schade, for summary judgment. LOCKWOOD, J., and JESSE A. UDALL, Retired Justice, concur.

HAYS, Chief Justice. The defendant, Daniel Pena Martinez, was charged on September 16, 1971, with seven felonies connected with various burglaries committed in Nogales, Arizona. He was tried by a jury and was found not guilty of Counts I, II, III, and IV. He was found guilty of Counts V, VI and VII. Martinez was sentenced to from twelve to fifteen years on Count V and to from twelve to fifteen years on Count VI, to run concurrently. He was sentenced to from twelve to fifteen years on Count VII to run consecutively to the sentences for Counts V and VI. Martinez argues four issues on appeal; however, we need respond to only one of these. The clerk of the court, in reading the information in the instant case, read, in part, as follows: The State of Arizona, Plaintiff, vs. Daniel Pena Martinez, Defendant. Information for First Degree Burglary and Grand Theft, Seven Counts, Felonies with Prior Convictions (emphasis added). Counsel for the defendant moved for mistrial immediately after the reading of the information on the grounds that prior convictions of the defendant were mentioned. The court offered to instruct the jury to disregard the statement, and the defense attorney expressed the view that mention of it by the court would not cure the defect, but would only emphasize it further. The prosecuting attorney agreed that a mistrial was in order. The court denied the motion for mistrial. The reading of the prior convictions section of the indictment clearly was not testimony offered for the purposes of impeachment and did not fall within any of the usual exceptions to the rule excluding a reference to prior crimes. State v. Gallagher, 97 Ariz. 1, 396 P.2d 241 (1964). The effect of information of a prior conviction is to create in the minds of the jury an impression that the defendant’s character is bad, and attempts to cure the error by admonition merely compound the problem. State v. Gortarez, 96 Ariz. 206, 393 P.2d 670 (1964). The facts in the case before us present the kind of situation most likely to prejudice the defendant’s case: Where a third party (here, the court clerk) brings the indication of prior convictions before the jury, the information appears to be coming from a neutral source and its admission is not tempered by normal protective procedures. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). (Marshall dealt with jurors who read newspaper accounts of the defendant’s previous convictions). Under the standards established by this court in Gallagher and Gortarez, supra, declaration of a mistrial was mandatory when the defense objected to the clerk’s mention of prior convictions. We must, therefore, reverse the conviction, vacate the sentences and remand for a new trial. CAMERON, V. C. J., and STRUCK-MEYER, J., concur.

KLEINSCHMIDT, Judge. On November 10, 1980, the appellant, William Boy, filed suit against the appellee, I.T.T. Grinnell Corporation, (ITT), alleging that a pipe fitting produced by the defendant was unreasonably dangerous because it was improperly designed and defectively manufactured and that the fitting broke because of these defects, resulting in injury to the plaintiff. The jury found for ITT. On appeal, Boy argues there was error in the jury instructions and in the admission and exclusion of evidence. The product involved is a cast iron pipe fitting—a 1 X ¾ inch concentric reducer used to connect a one inch pipe to a three-quarter inch pipe. The ITT reducer consists of two threaded female ends connected by a transitional section. The fitting introduced in evidence is what remains of a 1 X ¾ inch reducer which was purportedly installed as part of a fire protection system at the Scottsdale Shadows condominiums. The sprinkler system is made of cast iron pipe which is connected to the city water main. That pipe is then connected to smaller pipes which extend throughout all floors of the building. Finally, “drops” are installed, vertical pipes which extend downward from the skeletal system of pipes into the rooms, hallways, and stairwells of the building. The drops consist of a piece of pipe one inch in diameter to which a reducer is attached before the sprinkler heads are installed. The fitting which is the subject of this case was the 1 X % inch reducer portion of the drop that was purportedly originally installed above the stairwell door on the sixth floor landing of the building. The sprinkler system was being installed by the Grantham Company, which had hired Boy as an apprentice pipe fitter and assigned him to help with the installation of the fire protection system. Prior to the day of the accident, Boy’s primary job had been to help install the main pipes through the walls of the buildings. He had never installed any of the drops. On the day of the accident, Boy had been instructed to make sure that each drop was the proper length so that the sprinkler head could be attached. He was to remove and replace any fitting which was not the correct length. At approximately 2:30 p.m. on November 12, 1979, Boy was found unconscious on a fifth floor landing of the building. The Scottsdale police arrived at the scene by 3:00 p.m. and Officer Chris Bingham climbed the stairs to the sixth floor landing where he found a ladder standing. Above the doorway and in front of the ladder, a broken pipe fitting was protruding from the ceiling. Officer Bingham also found what appeared to be a piece of the broken fitting on the fifth floor landing. Based on his investigation of the accident scene and the physical evidence, Officer Bingham concluded that Boy had been standing on the ladder working on the fitting above the door on the sixth floor. He believed that the fitting broke while Boy was working on it and Boy fell to the fifth floor landing. There were no eyewitnesses to the accident, however, and Boy, having suffered a severe injury from the accident, has no memory of anything that occurred on that day. According to Boy, if he had been performing the job of sizing the drop on the sixth floor landing, he would have been applying pressure to the reducer with a pipe wrench in order to remove the drop. Expert witnesses for both sides who examined the fitting agreed that a load placed on the fitting at a prior time, presumably when the drop had originally been installed, had caused the fitting to fracture. There were two longitudinal fractures which were 180 degrees apart and which ran parallel to the axis of the pipe directly under the teeth marks left by a pipe wrench. The second stage of the failure of the fitting presumably occurred when Boy was attempting to remove the fitting on November 12, 1979. As he applied pressure to loosen the drop, the fitting fractured around its circumference. The circumferential fracture ran from one to the other of the prior longitudinal fractures causing a piece of the fitting to break off. The experts agreed that the longitudinal fractures were caused by the fitting being subjected to greater torque than it could withstand. They disagreed, however, on whether normal force had been applied to tighten the fitting or whether the fitting had been abused by a force greater than it could be expected to withstand. They also disagreed on how much force a fitting should be capable of withstanding without breaking. Boy’s experts testified that there were six defects in the transition area of the fitting, which made the transition area too weak to withstand a normal load applied by a pipe wrench. The experts testified that three of the defects were defects in the design of the thin wall section of the reducer and three were defects that occurred during the manufacture of this particular reducer. Although the bulk of the testimony at trial was devoted to whether or not the fitting was defective and unreasonably dangerous, ITT also disputed that the subject fitting was an ITT fitting since its logo was not present on any of the pieces pro duced at trial. ITT also questioned whether the fitting produced at trial was in fact the fitting which broke at Scottsdale Shadows since there had been a breakdown in the chain of possession. Because the only evidence of how the accident occurred was circumstantial, ITT also argued several variations as to how the accident might have occurred. Boy’s case was impeded by the fact that pieces of the subject fitting which had been cut off by one of plaintiff’s experts had been lost. Finally, Boy was unable to produce the part of the fitting which had broken off at the time of the accident because it had been impounded and later discarded by the Scottsdale police. ADMISSION OF SAFETY HISTORY EVIDENCE Initially, Boy argues that the trial court erred in admitting evidence of the absence of previous injury or property damage resulting from the use of the ITT reducer. ITT sought to admit testimony of one of its engineers, Ara Nalbandian, that over the fifty years the product had been on the market, the company had not received any complaints that the reducer had caused either injury or property damage. ITT argued that this safety history evidence was relevant to the issue of whether the product design was defective or unreasonably dangerous. ITT argued that the evidence should be admitted to rebut testimony presented by Boy’s co-worker, Mark Ash-ton, who testified that in his experience as a pipe fitter, approximately three to four out of every 500 of the ITT reducers he had used in his work had broken when normal pressure from a wrench had been applied to them. Boy objected to admission of the safety history, both in a motion in limine and later at trial, when ITT’s counsel began questioning Nalbandian on this subject. Boy argued that safety history is not relevant to the issues of whether the design and manufacture of the product were defective and unreasonably dangerous. Alternatively, he argued that even if the evidence was relevant on the issues of defective and unreasonably dangerous design, such collateral evidence would confuse the jury and the jury would not be able to limit consideration of the evidence merely to those issues to which the evidence was relevant. Finally, Boy objected to the foundation for the proffered evidence, arguing that there was no showing that Nalbandian had taken the steps to acquaint himself with whether other persons had experienced problems with the product throughout the years it had been in use. The trial court allowed the evidence in, ruling that while it was not admissible to show ITT’s lack of knowledge that fittings broke, it was admissible on the issues of whether the design was defective and unreasonably dangerous. The court gave a cautionary instruction to the jury at the time the evidence was admitted that it was supposed to consider the evidence only as to whether the product was unreasonably dangerous, and that defendant’s lack of knowledge of any defect was not a defense to the action. The Arizona Supreme Court, in Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 700 P.2d 819 (1985), has recently issued a definitive opinion regarding the admissibility of evidence of the safety history of a product which is dispositive of this case. The plaintiff in Pak-Mor was injured while working on a refuse compaction and collection machine manufactured by Pak-Mor Manufacturing Company. He sued Pak-Mor alleging improper design of the machine and sought recovery on theories of negligence and strict liability. The trial court granted the plaintiff’s motion to exclude all evidence of the absence of prior, similar accidents. The defendant had argued that the evidence was relevant to show that the design was not defective, that the product was not unreasonably dangerous, and that the defendant had no notice of any defect or danger. After verdict and judgment for the plaintiff, the defendant appealed, claiming that the exclusion of safety history was error. After studying the criticisms that have been leveled at the established rule of per se inadmissibility of the absence of prior accidents, the court concluded that the rule of per se inadmissibility is not compatible with modem principles of evidence. It observed that there can be no doubt that evidence of safety history is relevant in defective design cases, whether the claim is in negligence or strict liability. Thus, plaintiff’s objection based on the irrelevance of safety history in strict liability actions is groundless. As the court stated: Rule 401 defines ‘relevant evidence’ as that ‘having 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.’ The essence of a negligence action based on defective design is that defendant distributed a product when it was reasonably foreseeable that its design presented an unreasonable risk of harm. In a strict liability action, the plaintiff must prove that the product was defective and unreasonably dangerous. The factors which bear upon this determination in a defective design case were considered by us in Byrns v. Riddell, Inc., 113 Ariz. 264, 550 P.2d 1065 (1976). One of those factors is the likelihood that the product, as designed, will cause serious injury. Id. at 267, 550 P.2d at 1068. Thus, in product liability actions based on defective design, relevant issues may include whether defendant should have foreseen the potential for danger from use of the product as designed, whether a defect existed, and whether a particular danger was unreasonable—including the likelihood of its causing serious injury. Safety history, including the presence or absence of prior accidents under similar use, is evidence which may make these ultimate facts ‘more probable or less probable than [they] would be without the evidence.’ There can be no doubt that evidence of safety history is relevant. 700 P.2d at 823 (footnote and citations omitted). The court made it clear that the rule to apply in determining whether to admit evidence of safety history is Rule 403, Arizona Rules of Evidence, which requires the trial court to determine whether the probative value of evidence is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” In arriving at a decision the trial court must weigh many factors, including the difficulty of meeting an allegation that there have been no prior accidents. The court noted that the ultimate issue for the trial court to consider in determining whether to admit the safety history evidence is whether the particular evidence offered is relevant to establish “evidentiary facts from which it may be inferred that there have been no prior accidents, thus warranting the ultimate inference that the product was neither defective and unreasonably dangerous nor the cause of the injury.” 700 P.2d at 825. Discussing the heavy burden that the defendant carries on this issue, Pak-Mor explained how it can be met: Thus, the proponent of the evidence must establish that if there had been prior accidents, the witness probably would have known about them. This portion of the evidentiary predicate will, in most cases, be formidable. It is not, however, insurmountable. The defendant may have established a department or division to check on the safety of its products and may have a system for ascertaining whether accidents have occurred from the use of its products. The defendant or its insurers may have made a survey of its customers and the users of its product to determine whether particular uses of the product have produced particular types of injuries. Information may have been compiled by and obtained from governmental agencies such as the Consumer Product Safety Commission, the FAA, the FDA, or the FTC. Defendant may have established a system with its insurers, distributors, or retailers whereby retail customers are encouraged to report accidents, accidents are investigated, and data is compiled. Any of these methods, or others, may produce facts with which the proponent of the evidence may establish that if there had been accidents or near-accidents when the product was used in a relevant manner, defendant probably would have learned of the information and would have it available. Thus, if the import of the evidence is no more than testimony that no lawsuits have been filed, no claims have been made, or ‘we have never heard of any accidents,’ the trial judge generally should refuse the offered evidence since it has very little probative value and carries much danger of prejudice. 700 P.2d at 825 (footnote omitted, emphasis added). ITT points to the following testimony of Nalbandian as sufficient foundation: Q Okay. When you say that you are the manager of that section, what are your jobs? What do you do as manager? A As a Manager I, in the product development, we are responsible in developing the products which are new and maintaining the products, fitting products, which have been manufactured and are being manufactured presently. Furthermore, we are responsible to the avantgarde for the product line being cognizant of what is the market as far as technical developments, the competition, the uses, the abuses, or any other thing that is fed back to us to either improve or make the necessary adjustments to help the market situations get the best possible general use. Q Ara, if there is a—if the people out in the world that are using one of the products that comes under pipe fitting section is experiencing difficulty or problems, will you become aware of that? A Yes. ****** Q What is the reason that you will be made aware of problems that are developing with ITT products under your area? A Well, if, for example, if we have made certain products and the customer has a specific requirement and he wants to have a product to be used and to be used in such a manner that it is going to give them the satisfactory performance or if he has some trouble in getting something worked out or he has had some other problem that he can’t really understand, usually technical, would be able to sort of help him in getting the customer satisfied. Q What is your specific duty if you find someone, for example, is having problems with one of these ITT fittings breaking on a regular basis? A Well, we do the failure analysis and we ascertain the problems associated with the situation and if there is a remedy, or recognizing the problem, we take a corrective action or we recommend the jobber or the person who has had difficulty to follow certain procedures that will make it better. ****** Q Tell the jury why you were familiar with [ITT’s] fire protection operation. A During my initial start with Grinnell, which was in 1966, at that time we had the fire protection division within our compound. Their research group was also in association with us which meant that we were in the same group. Since I was responsible for the pipe fitting end of it, we had direct communication and involvement on their requirements, problems, needs, and the developments that they required. My task was to be involved in their needs, know exactly what their businesses are, know exactly how the customers responded or required or associate myself with the industries exactly, the development as to the market needs then. Q During that time, Ara, did you have frequent occasion to actually go into the field and see how these installations were being used and to help supply the needs? A Yes, I have and still I do. Q Even today? A Yes. * * * * * * Q Ara, I asked you earlier whether you would be the person at ITT who would be required to know if the company was having problems with these products and, specifically, this one by three-quarter inch product breaking in use. Would you have such a knowledge if breakage was occurring and being reported back to the company? A Yes. # sft * * * * Q Ara, have you, during the time that you have been with the Grinnell and since 1973, been responsible for being aware of how your product performs in the marketplace? A Yes. Q Are you also the person, if there is a problem, developing, that is, that is responsible for instituting whatever corrective action may be necessary? A Yes. ITT’s reliance on these answers from Nalbandian is misplaced, for his responses fail to meet the “formidable” evidentiary predicate required by Pak-Mor. Indeed, Nalbandian’s testimony suffers the very shortcoming that Pak-Mor cautioned about: it failed to show that if there was information available about accidents, that Nalbandian would have known of such information. He vaguely referred to trips to the field which were unsystematic and apparently sporadic. This testimony failed to reflect in the least just how large a sample of ITT parts was encompassed in his assessment. Common sense suggests that users might not complain about a defective item that costs only one dollar. Consumers might take a loss on the item, rather than take the time and spend the money to bring the defect to ITT’s attention. This is precisely the type of evidence which Pak-Mor concluded should be excluded because “it has very little probative value and carries much danger of prejudice.” Pak-Mor, supra. Our conclusion is equally applicable to ITT’s contention that the safety history was admissible rebuttal testimony. Regardless of the purpose of the evidence, the trial court’s decision runs afoul of the dictates of Rules 401 and 403 as interpreted by Pak-Mor. An adequate foundational predicate must be laid. The admission of the safety history was reversible error. It is entirely possible that the verdict might have been in favor of appellant had the safety history not been admitted. While ITT introduced a number of experts who testified in a theoretical manner as to the absence of any defects in the ITT product, the safety history corroborated those experts by providing a practical basis for the contention that the product was without flaw. ITT admitted in its argument for a directed verdict that there was sufficient evidence that the reducer was either defectively designed or manufactured to take the case to the jury. Where improper testimony is admitted into evidence, prejudice is presumed. Valley Transportation System v. Reinartz, 67 Ariz. 380, 383, 197 P.2d 269, 271 (1948). We will not indulge the assumption that this evidence had no effect on the verdict. Since the case must be retried, we will address questions which may arise again. JURY INSTRUCTIONS The parties do not agree on how to instruct the jury on the definition of an “unreasonably dangerous” product due to a design defect. The trial court properly instructed the jury on the elements that Boy had the burden of proving: (1) That the product was defective at the time it was manufactured and sold. (2) That the defect was such that it caused the product to be unreasonably dangerous for its intended or foreseeable use. (3) That the defect was a proximate cause of the plaintiff’s injuries and damages. (4) The amount which will reasonably compensate the plaintiff for his injuries and damages. R.A.J.I., Prod. Liability # 4, as modified by Byrns v. Riddell, Inc., 113 Ariz. 264, 550 P.2d 1065 (1976). The trial court then instructed the jury regarding the definition of the key terms— “proximate cause,” “defective,” and “unreasonably dangerous.” Boy requested that the trial court instruct the jury that “[a] product is defective and unreasonably dangerous if it fails to perform as safely as an ordinary user would expect when the product is used in an intended or reasonably foreseeable manner.” The proposed instruction made no distinction in meaning between the terms “defective” and “unreasonably dangerous.” ITT also requested a similar instruction defining defective and tmreasonably dangerous in terms of reasonable expectation. ITT made no attempt to persuade the court to define the phrases in terms of the risk/benefit analysis that the court ultimately adopted and which we discuss later. Instead of giving these instructions, the trial court deleted the words “and unreasonably dangerous” from the instruction and gave the modified instruction as a definition of “defective”, to wit: “A product is defective if it fails to perform as safely as an ordinary user would expect when the product is used in an intended or reasonably foreseeable manner.” Over Boy’s objection the trial court then gave its own instruction defining “unreasonably dangerous” in terms of the seven-factor analysis cited in Byrns v. Riddell, Inc., supra: In determining whether a defect, if any, is unreasonably dangerous, you should consider: (1) the usefulness and desirability of the product, (2) the availability of other and safer products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of the danger (particularly for established products), (6) the avoidability of injury by care and use of the product, and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive. Boy contends that under the circumstances of this case it was error to give this instruction. We agree. The risk/benefit analysis used to determine if a defect is unreasonably dangerous was first alluded to in Arizona case law in Byrns v. Riddell, Inc., supra. The court in Byms discussed the difficulty of defining the term “unreasonably dangerous” in defective design cases. The court observed that the Restatement (Second) of Torts § 402A provides a definition of “unreasonably dangerous” in Comment (i): The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. 113 Ariz. at 267, 550 P.2d at 1068. The court also quoted the above-mentioned seven-factor analysis. The Byms court did not say when one test should be used rather than another. It did indicate that the seven-factor analysis was one approach to the question of whether a defect is unreasonably dangerous. The court cautioned, though, that “[n]o all encompassing rule can be stated with respect to the applicability of strict liability in tort to a given set of facts. Each case must be decided on its own merits.” 113 Ariz. at 267, 550 P.2d at 1068. The seven-factor analysis approach is obviously one in which the risks of danger are balanced against the benefits to be gained from using the product. In Brady v. Melody Homes Mfr., 121 Ariz. 253, 589 P.2d 896 (App.1978), this court considered the question of when a risk/benefit analysis, as opposed to the consumer expectation approach, should apply in a design defect case. We observed that the consumer expectation test would not apply when the consumer would not know what to expect from a product because he had no idea how safe the product could be made. 121 Ariz. at 257, 589 P.2d at 900. We indicated that in that type of case the risk/benefit analysis should be used. Boy is correct when he points out that the risk/benefit analysis is appropriate in a design defect case only when the consumer expectation standard is inappropriate or insufficient. See Brady, supra; Hohlenkamp v. Rheem Mfg. Co., 134 Ariz. 208, 211, 655 P.2d 32, 35 (App.1982). Although Boy was relatively inexperienced in working with reducers, he nevertheless had sufficient familiarity with the product to have developed the expectation that it would not break in ordinary use. He testified that in the three months he had worked with these fittings he had never had one break. One of Boy’s witnesses also testified that while this type of fitting occasionally broke when he used it, he did not expect such incidents when he worked with the item. Under current Arizona law the consumer expectation test is the appropriate one for a manufacturing defect, as opposed to a design defect. If something goes wrong in the manufacturing process, the result is a product which the manufacturer did not intend and which could hardly be contemplated by the consumer. Brady, supra. For these reasons it was improper to give the risk/benefit instruction. INSTRUCTION ON MISUSE Boy argues that the trial court erred in instructing the jury on the affirmative defense of misuse. The trial court instructed the jury that the verdict should be for the defendant if they found by a preponderance of the evidence that plaintiff’s accident was caused by a use of the product in a manner other than that which was reasonably foreseeable. He contends that there was no evidence that the subject fitting had been misused and therefore that it was error for the trial court to instruct the jury on the affirmative defense of misuse. Boy’s experts at trial testified that in their opinion the subject fitting had not been overtightened or abused in any manner. He points out that defendant’s experts did not testify that the subject fitting had been abused and therefore argues that there was no evidence of abuse of the subject fitting. ITT’s rejoinder is that its whole case was based on showing misuse and that the evidence it presented was sufficient to merit a jury instruction on misuse. We agree with ITT that the evidence it introduced supported a misuse instruction. The fact that defendant’s experts were unable to say from looking at the subject fitting that it had been misused is not determinative. While a small portion of the testimony at trial dealt with whether there were manufacturing defects in the subject fitting, the bulk of the testimony bore on the question of whether there were design defects in the product. Experts for each side had opinions on how strong the fitting should be and had conducted tests on identical ITT reducers to determine the amount of force needed to break the fitting. ITT’s experts were able to testify that from the tests they conducted the fitting would not break when force approximately four times the amount necessary to make the fitting leak-tight was placed upon it. They testified that the ITT fittings broke at loads comparable to the loads required to break similar fittings made by other manufacturers. They said that this allowed an adequate factor of safety. Although the parties’ experts presented conflicting evidence on these issues, we conclude that ITT presented substantial evidence that its 1 X ¾ inch reducer would withstand a normal load placed on it to make it leak-tight. ITT’s experts placed the issue of misuse squarely before the jury by their testimony that the reducer could have broken only by misuse. While Boy may argue that defendant’s experts did not conduct proper tests to make this determination, the validity and usefulness of the tests were simply factors for the jury to consider in deciding which testimony to accept. PROPOSED INSTRUCTION ON VIOLATION OF INDUSTRY STANDARDS Boy argues that the trial court erred in refusing his jury instruction that the defendant’s violation of applicable industry standards was evidence that the subject fitting was defective and unreasonably dangerous. Boy had requested the following instruction: You may consider the violation of any applicable standards as evidence that the product is defective and unreasonably dangerous. We agree with ITT that the instruction was properly refused. As phrased it is a comment on the evidence because it tells the jury how to apply a finding, i.e., it tells them that the product is defective if it is not in compliance with the standards. Moreover, while the evidence at trial indicated the fitting did not comply with the American National Standards Institute’s length standards, the evidence was conflicting as to whether this was in fact a safety standard. Defendant’s experts had testified that the length standard was for convenience of the users of the product, not for safety purposes. The instruction was properly refused because it told the jury that they could find the product defective and unreasonably dangerous if it violated any applicable standard, without limiting it to safety standards. The instruction assumed as true a fact which was in dispute and was therefore properly refused. See, e.g., Soto v. E. W. Bliss Div., 116 Ill.App.3d 880, 72 Ill.Dec. 319, 452 N.E.2d 572 (1983). We do not mean to say that upon retrial no instruction of this type can be given. In Hohlenkamp v. Rheem Mfg. Co., supra, Division 2 of this court stated that evidence of applicable industry standards, including those of the American National Standards Institute, are admissible since they constitute substantive evidence on the issues of whether the product is defective and unreasonably dangerous. It is true that the Hohlenkamp case says nothing about the propriety of giving a jury instruction regarding the effect of a violation of industry standards. Our review of the relevant case law reveals that in design defect cases, the trial court can properly instruct the jury on compliance or noncompliance with industry standards. Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1198 (4th Cir.1982); Raney v. Honeywell, Inc., 540 F.2d 932, 938 (8th Cir.1976). Such an instruction is relevant to a determination of whether the product as designed is defective or unreasonably dangerous. Reed, supra; Raney, supra. We believe that the admission of evidence of this nature requires the court to give some guidance to the jury with respect to how to use it. An instruction which advises the jury that they may consider a violation of safety standards, if any, together with all the other evidence in determining whether the product was defective and unreasonably dangerous and that the weight to give such evidence is up to them, might be appropriate. Based upon the foregoing, we reverse and remand for a new trial. CONTRERAS and OGG, JJ., concur. SUPPLEMENTAL OPINION KLEINSCHMIDT, Judge. On August 15, 1985, this court filed an opinion in this matter which reversed the trial court’s judgment and remanded the matter for new trial. A review of the appellee’s motion for reconsideration, appellant’s response thereto, and the supreme court’s decision in Dart v. Wiebe Manufacturing, Inc., 147 Ariz. 242, 709 P.2d 876 (1985), decided after the original opinion in this case was filed, suggests that we need to further address the issue of jury instructions. The appellant presented evidence at trial that the pipe fitting could have been defectively manufactured, defectively designed, or both. The trial judge gave a “risk/benefit” instruction. That instruction does not properly apply to the plaintiffs claim that there was a manufacturing defect in the fitting. Dart strongly indicates that in eases where a manufacturing defect is alleged, a “consumer expectation” instruction should be given. Dart, 147 Ariz. at 244, 709 P.2d at 878. Our opinion is thus in accord with Dart on this issue, and appellee’s motion to reconsider is accordingly denied. Dart further indicates that a risk/benefit instruction is proper in design defect cases when a consumer expectation instruction would be inappropriate, such as when the consumer would not know what to expect from the product because he would have no idea how safe the product could be made. Dart, 147 Ariz. at 244, 709 P.2d at 878. Given that a consumer would probably not know what to expect with regard to the safe design of a pipe fitting, had appellant’s claim merely been a design defect claim, the instruction actually given to the jury would have been proper. If on retrial appellant presents a prima facie case on both a manufacturing defect and a design defect, and the evidence indicates that the appellant had no expectation with respect to the design of the product, the trial judge should give two instructions—the consumer expectation instruction on the manufacturing defect claim and a risk/benefit instruction on the design defect claim. See Dart, 147 Ariz. at 248, 709 P.2d at 882. In no event should the jury’s determination of whether there was a manufacturing defect be framed by a risk/benefit instruction. We have considered appellee’s discussion in its motion for reconsideration on the admission of safety history evidence, and we deny the motion. Opinion modified; motion for reconsideration denied. CONTRERAS and OGG, JJ., concur.

OPINION GRANT, Presiding Judge. Appellant Alan James Thompson (defendant) was charged by indictment with one count of attempted first degree murder and two counts of child abuse of his girl friend’s young son. The state filed allegations of dangerousness, and of prior convictions pursuant to State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980). Defendant pled guilty to attempted first degree murder and one count of child abuse, both dangerous felonies. One count of child abuse was dismissed, and the state impliedly dropped the allegation of Hannah prior convictions. The defendant entered an Alford plea, with a factual basis statement attached to the plea and further facts read to the court at the change of plea hearing. The trial judge, the Honorable Jeffrey S. Cates, found the plea to be knowing, intelligent, and voluntary. After defendant’s plea, his co-defendant Catherine Inman went to trial on five counts of child abuse. Judge Cates, who accepted defendant’s plea, presided at his co-defendant’s trial. Defendant was not present, nor was his attorney present, at that trial. Inman was found guilty of one count of child abuse, a class 4 felony, one count of child abuse, a class 3 felony, and one count of child abuse, a repetitive class 2 felony. After that trial, sentencing proceedings for the defendant were scheduled before the same judge. At one proceeding, the court suggested to defendant that if he wished to move for a change of judge, he should do so promptly so as not to delay sentencing. Defendant then filed a motion, pursuant to rule 10.1, Arizona Rules of Criminal Procedure, for a change of judge for cause. The presiding criminal judge of the superior court, the Honorable John H. Seidel, presided over the hearing, at which Judge Cates testified. At the end of the hearing, Judge Seidel concluded that no evidence showed any interest or prejudice by Judge Cates and that the fact that Judge Cates presided at Inman’s trial did not require his recusal from sentencing defendant. Before the sentencing hearing, an extensive presentence report was filed. At the presentence hearing, the prosecution introduced and played a videotape showing the present state and activities of the victim; the only witness was a police officer who participated in making the film. The defense presented no evidence in mitigation. The court specifically found aggravating factors. Defendant was sentenced to 21 years for attempted first degree murder and 21 years for child abuse, to be served consecutively. Defendant received 298 days for presentence incarceration credit. The only argument raised in this appeal is that the trial court erred by denying the motion for a change of judge. Defendant argues that when the trial judge heard the severed trial of his co-defendant Inman before he sentenced defendant, the Inman trial became an aggravation of sentence hearing during which defendant had no chance to cross-examine witnesses or to contest accusations made against him. Defendant urges that the Inman trial was an ex parte communication in violation of Canon 3(A)(4) of the Code of Judicial Conduct, rule 81 (formerly rule 45), Supreme Court Rules. The state argues that there is no per se disqualification where the sentencing judge has presided over the trial of a co-defendant. Rather, the state argues that rule 10.1(a), Arizona Rules of Criminal Procedure, provides the only applicable grounds: In any criminal case prior to the commencement of a hearing or trial, the state or any defendant shall be entitled to a change of judge if a fair and impartial hearing cannot be had by reason of the interest or prejudice of the assigned judge. The state claims that the defendant did not establish any grounds for disqualification. We note rule 17.4(g), Arizona Rules of Criminal Procedure, provides that if a judge rejects a plea agreement and allows a plea to be withdrawn, the judge shall, upon request of the defendant, disqualify himself from the case. The rule is based on the fact that the judge would then have read the presentence report prior to a determination of guilt. See Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969) (judge must not review presentence investigation report until after defendant’s guilty plea or conviction; pertinent rule now amended to permit judge’s review of report at any time with defendant’s consent). In the case before us the plea was accepted before the co-defendant’s trial so the sentencing judge had not heard any evidence from an ex parte or collateral source prior to the plea. The plea was not subsequently withdrawn so this rule does not come into play. The first question is whether there is any per se disqualification in this situation. There are no Arizona statutes or rules of court which so provide. We have found no Arizona opinions on point. However, the cases from other jurisdictions hold that the trial judge presiding over the separate trial of a co-defendant does not automatically require the trial judge to recuse himself when considering the case of the defendant. See United States v. Partin, 601 F.2d 1000 (9th Cir.1979) cert. denied, 446 U.S. 964, 100 S.Ct. 2939, 64 L.Ed.2d 822 (1980); In re Richard W., 155 Cal.Rptr. 11, 91 Cal.App.3d 960 (1979); Jones v. State, 416 N.E.2d 880 (Ind.App. 1981); Manning v. Engelkes, 281 N.W.2d 7 (Iowa 1979); Carey v. State, 43 Md.App. 246, 405 A.2d 293 (1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1660, 64 L.Ed. 244 (1980). In both Manning and Jones, the appellate courts considered the effect of Canon 3(C)(1)(a), which provides: (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; ... The Canon has been adopted with the same language in the judicial codes of Iowa, Indiana, and Arizona. Although defendant has argued the applicability of Canon 3(A)(4), we find that Canon 3(C)(1)(a) is the applicable provision of the Code of Judicial Conduct in this situation. Canon 3(A) is under the heading “Adjudicative Responsibilities,” while Canon (3)(C) deals expressly with disqualification. In Jones, the trial judge had found Jones’s co-defendant guilty at a bench trial. Jones was later tried without a jury before the same judge and was convicted. In post-conviction proceedings, Jones argued that the trial judge should have disqualified himself under Canon 3(C)(1)(a), Indiana Code of Judicial Conduct. The appellate court held the judge did not have to disqualify himself because “[t]hat personal knowledge which requires recusal is knowledge acquired from extra judicial sources, not what the judge learned from his participation in the case.” Id., 416 N.E.2d at 881. Similarly, in Manning, the appellate court noted: In State v. Smith, 242 N.W.2d 320 (Iowa 1976), we reviewed Canon 3C and concluded that “evidence presented in the trial of a prior cause, or definite views on the law, create no personal bias since they do not stem from an extra judicial source.” Id. at 323-24. Since evidence presented in the trial of the previous Jones [co-defendant] case cannot give rise to a “personal bias” which necessitates recusal, [the] trial court’s role in the prosecution of plaintiff’s co-defendant is not sufficient ground to require recusal. Manning, 281 N.W.2d at 10. Therefore, the trial judge could properly rule on the prosecution’s motion to dismiss the defendant’s charges after presiding at the co-defendant’s trial. We concur with the reasoning of Jones and Manning. Although involving different facts, this court stated the same general rule in Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (App.1977), “It is generally conceded that the bias and prejudice necessary to disqualify a judge must arise from an extra-judicial source and not from what the judge has done in his participation in the case.” We agree that the rule that a trial judge must be impartial, “does not mean that a judge must recuse himself from a criminal case merely because he has heard unfavorable remarks about the defendant in the course of prior litigation.” Commonwealth v. Campbell, 5 Mass.App.Ct. 571, 587, 366 N.E.2d 44, 57 (1977) (alleged bias based on judge presiding over earlier trial of same defendant). See also State v. Munoz, 110 Ariz. 419, 520 P.2d 291 (1974). The cases of State v. Valencia, 124 Ariz. 139, 602 P.2d 807 (1979) and State v. Leslie, 136 Ariz. 463, 666 P.2d 1072 (1983), cited by defendant, are readily distinguishable. Both were cases in which the trial court spoke ex parte to relatives of murder victims prior to sentencing. The information received there was not obtained in a prior judicial proceeding. Having concluded there is no per se rule of disqualification, the question then becomes whether the defendant at the rule 10.1 hearing in fact established an interest or prejudice on the part of the trial judge. The superior court’s ruling on a motion for change of judge based on prejudice will not be overturned on appeal absent an affirmative showing of abuse of discretion. State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984). For the purposes of the motion, there is a presumption of impartiality by the trial court and the burden is on the party seeking recusal to prove bias or prejudice by a preponderance of the evidence. Id. The party seeking recusal must show how any proclivity on the part of the trial court prejudiced him. Id. There is no evidence of prejudice in this record. Judge Cates stated at the rule 10.1 hearing: Q. [By Steve Collins, defense counsel] After hearing the trial of Catherine In-man, did you have feelings either way in regard to the sentencing of Alan Thompson at that point at the end of the trial? A. [By Judge Cates] Before I read the presentence report? Q. Correct. A. I had an open mind. I was not favorably impressed with Alan Thompson just because he had pled [guilty] and I had assumed that he had committed the strangulation. * * * * * * A. I had an open mind until after I had an opportunity to read the presentence report. He testified that the only aggravating factor he was aware of prior to reading the presentence report was the nature of the crime. Of course, the court was clearly aware of the nature of the crime at the time that defendant pled guilty from the written factual basis attached to the plea agreement, and from the oral recitation to the court which clearly informed the court of the nature of defendant’s crime, even before the Inman trial had begun. Defendant has not pointed to any particular evidence or statements in the Inman trial which were not contained in the factual basis for defendant’s guilty plea, or in the presentence report, despite the fact that the court provided defense counsel with a transcript of the Inman trial prior to the presentence hearing. If the judge had any misconceptions about defendant arising from the Inman trial, defendant could have refuted them at the presentence hearing, but he made no such effort. The presentence report contained statements from people who had testified at the Inman trial. Defendant does not contend that there is any difference between the testimony of the state’s witnesses at the Inman trial and their statements as reported in the presentence report. In Munoz, the court found no prejudice to the defendant, where the “sentencing judge was already in possession of accurate information concerning the defendant prior to receiving the same information which a presentence report would certainly contain.” Id., 110 Ariz. at 421, 520 P.2d at 293. Defendant argues that his denial of the crime in his statement in the presentence report was contrary to the evidence produced at the Inman trial. However, in making the Alford plea, defendant admitted the state could prove his guilt. Moreover, at the change of plea proceeding, the state read into the record defendant’s version of the facts as related to a Phoenix police detective. Thus, both from the factual basis for the guilty plea and from the presentence report the court was aware that defendant’s version of the facts was different from that which he conceded the state could prove at trial. As evidence that the Inman trial was in effect a substitute for an aggravation hearing and to establish the trial judge’s prejudice, the defendant relies on estimates by the prosecutor of the time required for the sentencing hearing. After defendant’s guilty plea was entered at the October 25, 1984 change of plea hearing, the court asked how long the presentence hearing would take. The prosecutor replied, “Days.” On January 6, 1985 during another discussion to schedule sentencing, the prosecutor stated the matter would take two or three hours. Jury selection in the Inman trial began November 5, 1984 and the jury reached its verdicts on November 27, 1984. Defendant argues that this change in the prosecutor’s time estimate means “the prosecutor realized that there was no need to further influence or inform Judge Cates. That function had been performed during the co-defendant’s trial.” The argument ignores two critical factors. First was the remainder of the October 25, 1984 discussion on the estimated length of the sentencing hearing. Judge Cates asked whether the prosecution believed the hearing would take days. The prosecutor replied, “I really do, but the thing is, I’d like to see the [presentence investigation] report before I go blocking off any of the court’s time to put on evidence.” The prosecutor recognized the need for a presentence report, and that the report would influence how much additional evidence he would need to present. The presentence report is the second factor. The report, filed December 18, 1984, was 31 pages. A supplemental report was filed prior to the February 8,1985 sentencing hearing. The probation officer who prepared the report spoke with nearly all the witnesses from the Inman trial. He also interviewed other persons who did not appear at the trial. The thorough investigation and report reduced the amount of evidence the prosecutor required for his sentencing presentation. The sequence of events complained of by defendant fails to show prejudice by the trial judge. In conclusion, Judge Seidel did not err either in concluding that there was no automatic disqualification in this instance, or that there was no showing of bias or prejudice which would require the disqualification of Judge Cates from sentencing the defendant. We have reviewed the record for fundamental error, pursuant to A.R.S. § 13-4035, and have found none. For the above reasons, the conviction and sentence are affirmed. BROOKS and FROEB, JJ., concur. . The court of appeals may take judicial notice of matters of record therein. Hackin v. First National Bank, 5 Ariz.App. 379, 427 P.2d 360 (1967). State v. Inman, 1 CA-CR 8765, is an appeal pending before this court. . Canon 3(A)(4) provides in relevant part: A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte applications concerning a pending or impending proceeding.

OPINION ESPINOSA, Chief Judge. ¶ 1 Appellant Jesus Flores was on probation from an earlier felony conviction when a Department of Public Safety (DPS) officer found a gun and ammunition in the glove compartment of the car Flores was driving. A jury found him guilty of possessing a deadly weapon as a prohibited possessor. Because he had committed the offense while on probation, the trial court sentenced him to a day-for-day, 4.5-year term of imprisonment pursuant to A.R.S. § 13-604.02(A). Flores contends on appeal that the trial court erred in admitting into evidence statements he made to a law enforcement officer, claiming he was improperly interrogated without having been advised of his Miranda rights. Additionally, he contends that his sentence was unlawfully enhanced because the fact of his probationary status had not been determined by the jury as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm. Admissibility of Statements ¶2 Flores first argues that he “was questioned in violation of Miranda” and that the trial court erred in admitting his statements after a voluntariness hearing on the first day of trial. Because the determination of voluntariness is “highly fact-intensive, a court’s finding mil not be disturbed absent clear and manifest error.” State v. Trostle, 191 Ariz. 4, 14, 951 P.2d 869, 879 (1997); State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994). In crafting his argument, Flores has been vague about which of his various statements he believes comprises the “confession” he claims to have made when he “was immediately taken into custody and questioned regarding criminal activity without any advisement of his constitutional rights.” But the evidence, viewed in the light most favorable to upholding the trial court’s ruling, State v. Weinstein, 190 Ariz. 306, 947 P.2d 880 (App.1997), does not show that the trial court erred. ¶ 3 In May 1998, DPS Officer Beck stopped a 1994 Camaro Flores was driving on Interstate Highway 10 in Pinal County after Beck learned from a dispatcher that the car’s insurance had been canceled. Beck first asked Flores for his driver’s license, which he could not produce. Beck then asked for the vehicle registration and proof of insurance. As Flores reached to open the glove compartment, he told the officer, “I want to warn you, there is a pistol and ammunition in the glove box.” Beck removed the gun, returned to his vehicle, radioed his dispatcher, and thereafter was informed that there was an outstanding felony probation warrant for Flores’s arrest and that his driver’s license had been suspended. Beck then handcuffed Flores and placed him in the patrol ear. At the voluntariness hearing, Beck testified that as soon as Flores got into the car, he had asked Flores “if he knew his rights. He stated he did. He had been through this before. I asked him if he knew he had the right to remain silent and [if] he knew he had the right to have [an] attorney present. He said he knew them all.” Beck further testified that “at some point” he had asked Flores if he had been convicted of a felony, and Flores had confirmed “that he had been and that is what he was on probation for.” ¶4 To assess whether a defendant’s incriminating statements were made voluntarily and not in violation of the defendant’s Fifth Amendment right against self-incrimination, the trial court evaluates the totality of the surrounding circumstances. Ross; see also Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Miranda warnings are not required unless the defendant is in custody. State v. Wilson, 113 Ariz. 145, 548 P.2d 23 (1976). Here, despite some ambiguity in Beck’s testimony and the state’s argument that Flores was merely under investigative detention, we proceed on the assumption that Flores was already in custody when Beck asked him if he had been convicted of a prior felony. The appropriate inquiries then become whether Flores was properly advised of his rights and whether his will was overborne by impermissible police conduct or coercive pressures during a custodial interrogation. State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990). ¶ 5 Although, as the state urges, Beck may only have been attempting to verify that there was indeed an outstanding arrest warrant for Flores when he asked him about his prior conviction, see State v. Jeney, 163 Ariz. 293, 787 P.2d 1089 (App.1989) (booking information not subject to Miranda), nonetheless, in this particular context the information was directly and patently incriminating because it comprises an element of the charged offense. See A.R.S. §§ 13-3101(A)(6)(b), 13-3102(A)(4). The state further argues, however, that'because Beck “ensured that Appellant was aware of his Miranda rights,” and because Flores had “prior experience with the judicial system” and stated he “ ‘knew them all,”’ no violation of Miranda occurred. The state cites Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 2880, 106 L.Ed.2d 166, 177 (1989), quoting Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182, 193 (1974), for the proposition that “the prophylactic Miranda warnings are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.”’ But the state overlooks that that language was severely undercut in Dickerson wherein the Supreme Court minimized it and came to a near opposite conclusion, holding that the Miranda warnings are constitutionally required. In any event, we need not resolve the issue whether a less than complete advisement of rights is sufficient for a knowledgeable suspect. ¶ 6 The two essential elements of Flores’s offense had already been established before he was taken into custody and without benefit of his incriminating statement: he had demonstrated his knowing possession of the gun by telling Beck about it before opening the glove compartment, and Beck had learned of his felony conviction from the dispatcher. By responding affirmatively to Beck’s question, Flores simply confirmed information that was already a matter of public record and easily verifiable even without his cooperation. Thus, regardless of the adequacy of Miranda warnings administered, Flores’s confirmation that he had previously been convicted of a felony was not necessary for his conviction and its admission at trial was harmless. See State v. Rodriguez, 186 Ariz. 240, 921 P.2d 643 (1996) (despite violation of Fifth and Fourteenth Amendment rights, conviction may still stand if error found harmless). ¶ 7 Moreover, although Flores furnished some additional information during the drive after assuring Beck he was aware of his Miranda rights, none of those statements constituted a confession in the ordinary sense. The details he provided were either nonessential (his having driven the ear on other occasions when the gun was in the car) or available from other sources, including public records (his felony conviction and status as a prohibited possessor), again making any conceivable violation of his rights harmless under the circumstances. See State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999) (any error in admitting defendant’s statement harmless in view of overwhelming evidence of guilt and independent evidence of inculpatory statement’s truth). In short, Flores has no legitimate claim that his statements were coerced or his privilege against self-incrimination infringed, and the trial court did not err in admitting the statements at trial. Apprendi Claim • ¶ 8 Flores bases his second claim of error on the Supreme Court’s decision in Apprendi, arguing that his sentence was illegally enhanced because the fact that he was on probation when he committed this offense “exposed [him] to a greater punishment than that authorized by the jury’s guilty verdict” and should, therefore, have been found by the jury. That claim fails for two reasons. First, Flores was sentenced pursuant to A.R.S. § 13-604.02(A), which required that he be “sentenced to ... not less than the presumptive sentence authorized under this chapter,” and that the sentence be served in its entirety. Pursuant to A.R.S. § 13-604(A), the maximum sentence is six years and the presumptive term for a class four felony committed with one historical prior felony conviction is 4.5 years, the sentence imposed here. Because Flores’s probationary status thus did not increase the penalty for his crime “beyond the prescribed statutory maximum,” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455, but merely raised the crime’s minimum term, the holding of Apprendi is inapplicable to him. Second, Flores stipulated at trial that, at the time of his offense, he had been on probation and was not permitted to possess a firearm. The court read the stipulation to the jurors and instructed them that the stipulated facts were part of the evidence in the case. In finding Flores guilty as a prohibited possessor of the handgun, the jury implicitly but necessarily made the finding that he had been on felony probation at the time. His argument is therefore meritless. ¶ 9 For the foregoing reasons, the judgment of conviction and sentence are affirmed. HOWARD, P.J., and DRUKE, J., concurring. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

FELDMAN, Justice. Defendant brings this special action proceeding to prohibit the trial court from permitting the state to call his former counsel as a witness at a retrospective competency determination. The issue presented is whether the state can require a criminal defendant’s former counsel to testify on the issue of defendant’s past competency to stand trial or to plead. We have accepted jurisdiction because this is an important issue of first impression in the state of Arizona. King v. Superior Court, 138 Ariz. 147, 673 P.2d 787 (1983). We have jurisdiction under Ariz. Const, art. 6, § 5 and A.R.S. § 12-120.24. FACTS Bishop (defendant) was charged with first degree murder in 1980. His mental problems, including competency to stand trial, were in question from the beginning of the case. Defendant was represented by appointed counsel, Michael Addis, who made the appropriate motion to have defendant’s competence to stand trial evaluated under Rule 11, Ariz.R.Crim.P., 17 A.R.S. A hearing was held on the question despite defendant’s refusal to attend. The court determined that defendant was competent to stand trial. Eventually, defendant entered into a plea bargain, pleading guilty to the charge of first degree murder in return for the state’s agreement to the imposition of a life sentence. The plea bargain was approved by the court and a life sentence was imposed. On subsequent appeal, we determined that the record did not establish that the defendant had voluntarily waived his constitutional right to be present at his competency hearing. See State v. Bishop, 139 Ariz. 567, 570, 679 P.2d 1054, 1057 (1984). We held, therefore, that there had never been a valid determination of defendant’s competency to plead guilty, stating that “we will not uphold a guilty plea, where competency has been a valid issue, absent a proper finding of competency.” Id. at 571, 679 P.2d at 1058. In that appeal, defendant sought to have this court set aside or reverse the judgment and vacate the plea. We did not do so and remanded the case with instructions that the trial court make a retrospective inquiry into defendant’s competency to enter a plea in 1982. Id. The mandate required the trial judge to hear the competency issue and to vacate the plea if he found the defendant had not been competent to enter it. Id. The procedural steps which followed are not relevant to this proceeding. In essence, the only issue before us is whether, at the hearing at which the trial judge will make the retrospective determination of competency, defendant’s former counsel, Mr. Addis, may be called to testify on the issue of defendant’s past competency. The respondent trial judge held that former counsel is required to testify. Claiming that the trial court exceeded its authority in so doing (see Rule 3, Ariz.R.P.Spec.Act., 17A A.R.S.), defendant asks that we vacate the order. The solution to this difficult problem requires us to consider the purpose of Rule 11, its relationship to the attorney-client privilege, and matters of public policy. DUE PROCESS AND THE COMPETENCY HEARING 1. The Nature of the Inquiry into Competence The “failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent ... deprives him of his due process right to a fair trial.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975); see also State v. Ferguson, 26 Ariz. App. 285, 286-87 n. 2, 547 P.2d 1085, 1086-87 (1976). This rule is based on principles fundamental to our adversary system of justice. Drope, 420 U.S. at 172, 95 S.Ct. at 904. Our judicial system assumes that truth and justice result from the clash of adversaries. The adversaries, however, are not lawyer against lawyer but party against party. The United States Constitution guarantees more than a right to counsel. The fundamental guarantee of the sixth amendment is the defendant’s right to control and participate in his defense. The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.” ... It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy.... This allocation can only be justified, however, by the defendant’s consent, at the outset, to accept counsel as his representative. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 2533-34, 45 L.Ed.2d 562 (1975) (citations omitted). Of course, as a corollary to this rule the defendant must be able to participate in or assist counsel in the conduct of his defense. It is also necessary that the defendant have the mental ability to control the decision-making process. It is the defendant, “with the help of counsel, [who must] rationally weigh the advantages of going to trial against the advantages of pleading guilty.” Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747 (1970). The same rule, of course, obtains with regard to other essential decisions such as whether the defendant should waive his right to counsel, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Obviously, the defendant can neither exercise his right to participate and assist in his defense, nor make the final decisions relating to the conduct of his defense if he is mentally incompetent to engage in these activities. Consequently, the law recognizes that a defendant cannot plead or be tried while incompetent. Drope v. Missouri, supra; State v. Bishop, supra. The Supreme Court has developed a dual analysis to determine defendant’s competency to stand trial or plead. The inquiry is whether defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as a factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). 2. The Rules Our Rules of Criminal Procedure provide a framework for making the necessary de termination of competency. Rule 11.1 states the Dusky test. State v. Contreras, 112 Ariz. 358, 542 P.2d 17 (1975). Rule 11.2 allows any party to move for an examination into either defendant’s competency for trial or his mental state at the time of the offense. These are distinctly different inquiries, one leading to a determination of whether the trial can proceed at all, and the other to the trial defense of insanity. See Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U. CHI. L. REV. 21 (1977). Rule 11.3(a) requires that a competency hearing must be held if reasonable grounds exist to support a request. State v. Salazar, 128 Ariz. 461, 462, 626 P.2d 1093, 1094 (1981). Due process requires the judge to raise the issue and hold the hearing sua sponte if it appears to the judge at any time that competency is in doubt. Drope v. Missouri, 420 U.S. at 180, 95 S.Ct. at 908; State v. Bradley, 102 Ariz. 482, 486, 433 P.2d 273, 277 (1967); State v. Messier, 114 Ariz. 522, 525, 562 P.2d 402 (App.1977). The rules provide detailed procedures for compulsory examination by mental health experts, while preserving the important distinction between the insanity defense and the question of competency to stand trial. See Rule 11.3. Information which the examiner obtains in connection with the former is excluded from trial because of the fifth amendment. See Rule 11.3(e)(3). Similarly, statements or summaries obtained by the examiner and pertaining to mental capacity at the time of the offense are provided only to the defendant. See Rule 11.4; State v. Ramirez, 116 Ariz. 259, 269, 569 P.2d 201, 211 (1977) (error for physician to testify as to statements made by defendant during examination); State v. Gonzales, 111 Ariz. 38, 41, 523 P.2d 66, 69 (1974). The same concern is the subject of Rule 11.7, which provides a privilege—“No evidence of any kind obtained under these provisions shall be admissible at any proceeding to determine guilt or innocence ...” See State v. Freeman, 114 Ariz. 32, 559 P.2d 152 (1976). Rule 11 thus highlights the unique and distinctive nature of the hearing which determines competency to stand trial. Its sole purpose is to determine whether defendant has sufficient mental ability to allow the adversary system to operate properly. Again, this is based on society’s decision that the adversary system best promotes the interests of justice; fundamental fairness requires that a defendant be armed with some minimal awareness of reality before the power of the state is exerted against him. See Drope, supra. 3. Unique Nature of a Competency Hearing Exposing the distinctions between competency to stand trial and the trial defense of incompetency to the charge (insanity) does much to resolve the question before us. Our analysis indicates five significant distinctions between the two inquiries into competency. These distinctions convince us that a hearing on competency for trial is qualitatively different from and suspends momentarily the ordinary nature of a criminal case. A. Nonadversarial Nature of the Inquiry Because defendant cannot be tried at all if he is unable to assist in his defense, the only purpose for the determination of defendant’s competency to stand trial is to see whether the adversarial process can be commenced or continued. Pizzi, supra, 45 U. CHI. L.REV. at 56-59. As Professor Pizzi points out, therefore, the competency hearing has an essentially non-adversarial objective. Id. There are no established positions. The usual defendant will always wish to be found not guilty of the crime charged, but he may not always wish to be found incompetent to stand trial. This would be especially true in situations where incompetency to stand trial may result in a longer deprivation of liberty than trial and conviction. In other cases, where the charge is more serious, incompetency to stand trial may result in a delay which sometimes would benefit the defendant and other times would help the state. What is a “favorable disposition” for either “side” on questions of competency will, therefore, vary with the facts of each case. Id. at 27-29, 55-56. B. The Nature of Counsel’s Duty We think it obvious, also, that the role of defense counsel at a competency hearing is different from the role of defense counsel at other proceedings. If the defense attorney’s primary responsibility is to protect the defendant’s exercise of his constitutional rights, what adversarial position should the attorney assume when the issue being determined is the ability of the defendant to exercise his rights? ... ... Counsel has no obligation to see that the court makes what counsel personally believes to be the correct ruling with respect to the suppression of evidence or the determination of probable cause. It could be argued similarly that the correct determination of competency is the responsibility of the court, not defense counsel and therefore, if he believes that a plea is in his client’s best interest, counsel should take the adversarial position that his client is competent. The problem with this argument is that defense counsel has a responsibility for the correct determination of the competency issue that he does not have with respect to other issues. A trial court’s erroneous rulings in favor of the defendant on issues other than competency do not adversely affect the defendant’s constitutional rights; instead the court may simply be giving those rights a broader sweep than it should. But if the court erroneously concludes that the defendant is competent, the court’s decision goes directly to the defendant’s ability to waive or assert his constitutional rights. Although it is the court’s responsibility to determine the issue of competency, counsel has the obligation, flowing from his duty to protect his client’s rights, to see that the issue is decided correctly. As with the question of raising the competency issue, counsel is not free to chart an adversary course at the hearing based on his view of the client’s best interests. Pizzi, supra, 45 U. CHI. L. REV. at 58. C. Necessity It seems to us that there is yet a third important and unique aspect of a hearing on competency to stand trial. On the issues to be determined at such a hearing, defense counsel, and defense counsel alone, is often the most knowledgeable witness. In the case at bench he appears to be the only witness; due to the passage of time the mental health experts are unable to say with any certainty whether defendant was competent in the past. The determination to be made is whether the defendant had both the ability to assist his lawyer and a rational and factual understanding of the charges and proceedings at the time he pleaded guilty in 1982. Who but defense counsel is in a better position to testify to the ultimate issues? In fact, when we consider that all other persons have limited and restricted access to defendant, it is obvious that defense counsel always is a very logical witness on the issue. The trial judge and appointed mental health experts who examine a defendant have only limited time to interview or observe him and do so under strained or formal circumstances. It is counsel who spends time with a defendant in a manner which allows observation of the facts necessary to determine the issues to be decided at the competency hearing. Unlike any of the adversarial issues, on the question of competency to comprehend the proceedings and assist the attorney, the defense lawyer is often the most cogent witness. D. The Role of the Judge Guilt or innocence of the charge is usually decided by the jury, and most aspects of the trial are shaped to that expectation. However, the determination of competency to stand trial is always and exclusively a question for the court. See Rule 11.5; United States v. Davis, 365 F.2d 251, 254-55 (6th Cir.1966). Further, although the judge may appoint mental health experts to assist him in his determination, he is not bound by their opinions; the determination of both fact and law is his. Note, Incompetency to Stand Trial, 81 HARY. L. REV. 454, 470 (1967). Oliver, Judicial Hearings to Determine Mental Competency to Stand Trial, 39 F.R.D. 537, 545-46 (1965). The judge’s duty is to evaluate the data and determine “whether the defendant’s functional impairment is cumulatively so great that he fails to meet the minimum performance level necessary for the satisfaction of due process and the preservation of the integrity of the criminal adversary system.” Note, The Identification of Incompetent Defendants: Separating Those Unfit for Adversary Combat from Those Who Are Fit, 66 KY. L.J. 666, 675 (1978). There are a number of criteria which the judge may consider in making the determination. See id. at 682-91; State v. Guatney, 207 Neb. 501, 511-13, 299 N.W.2d 538, 545 (1980) (Krivosha, C.J., concurring); State v. Lawrence, 368 So.2d 699, 701 (La.1979). Competency hearings also differ from those cases in which trial by jury is waived and the judge is the finder of fact. On questions of competency to stand trial, not only is the judge a finder of fact, he is also a de facto witness who may take into consideration his own observations of the defendant. State v. Messier, 114 Ariz. at 526, 562 P.2d at 406. The factors identified compel us to conclude that the court should be able to utilize counsel’s knowledge whenever the question of competency to stand trial is properly raised. Such a result, however, raises the danger that defense counsel will be put in a position where he may be required to testify about his communications with his client. We turn, then to examine the question of privilege. ATTORNEY-CLIENT PRIVILEGE In general, in Arizona ... opinion ... testimony of lay witnesses [is admissible] where such opinions are supported by personal observations or knowledge of the defendant’s past conduct and history, [citations omitted] In Jones on Evidence, the rule in regard to the admissibility of the testimony of nonexpert witnesses is set forth as follows: “The opinion of a nonprofessional witness is not admissible, however, unless it is shown to be based upon the witness’s own knowledge and observation of the person’s appearance; and it is generally held that, before expressing an opinion, the witness must state the facts and circumstances on which his opinion is founded. ...” 2 Jones on Evidence, § 14.7 at 603. State v. Overton, 114 Ariz. 553, 555, 562 P.2d 726, 728 (1977). Does lay testimony from defense counsel as to defendant’s ability to assist in his own defense violate the attorney-client privilege? Defendant claims that testimony from Mr. Addis is an impermissible intrusion into the attorney-client privilege. See A.R.S. § 13-4062(2). The state argues that it has no intention of asking Mr. Addis to reveal any confidential client communication. Instead, it avows, it intends only to ask Mr. Addis to describe defendant’s behavior, his ability to respond to stimuli and his ability to respond to questions. Based upon these observations, the state then seeks Addis’ opinion of defendant’s competency. In response, it is argued that effective cross-examination, a basic right, is denied because of the privilege. While few cases have dealt with this issue, the weight of authority supports the view that an attorney may testify at a competency hearing without violating the attorney-client privilege so long as the testimony does not include the substance of confidential communications. United States v. Kendrick, 331 F.2d 110, 114 (4th Cir.1964) (objectively observable particularizations of the client’s demeanor and attitude not within the privilege if made at a time when neither lawyer nor client manifested any reason to suppose they were confidential); see also Darrow v. Gunn, 594 F.2d 767 (9th Cir.1979), cert. denied 444, U.S. 849, 100 S.Ct. 99, 62 L.Ed.2d 64; United States v. David, 511 F.2d 355, 360 (D.C.Cir.1975); Clanton v. United States, 488 F.2d 1069, 1070 (5th Cir.1974), cert. denied 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d 116 (1975); Howell v. United States, 282 F.Supp. 246 (N.D.Ill.1968), aff'd 442 F.2d 265 (7th Cir.1971); United States v. Tom, 340 F.2d 127 (2nd Cir.1965); Jones v. District Court, 617 P.2d 803, 808 (Colo. 1980). None of these cases provides a satisfactory response to the cross-examination issue raised by defendant’s present counsel. Some authority also supports the view that counsel may not testify. If trial counsel in a criminal case could be called by the Government and asked to give an opinion as to the accused’s competency and ability to assist in the defense, he could necessarily also be asked for the factual data upon which he premised his opinion. These questions would open to inquiry by the Government the entire relationship between the accused and his counsel. Such revelations would be a violation of the attorney-client privilege and would also invade an accused’s right to counsel in the trial of the criminal charge. Gunther v. United States, 230 F.2d 222, 223-224 (D.C.Cir.1956). “Any expression as to the client’s mental competency necessarily embrace[s] more than facts observable by anyone; it comprehend[s] conclusions drawn in the course of an association that is uniquely regarded in the law.” United States v. Kendrick, 331 F.2d at 115 (Sobeloff, J., specially concurring with remand determination only). We regard this as being a basically correct statement. Even though counsel may be asked for no more than an opinion based on observation, see Rule 701, Ariz.R.Evid., 17A A.R.S., it defies reality to pretend that the lawyer has formed opinions on competency without relying upon discussions with the defendant. Counsel may observe defendant’s physical behavior, but certainly his contacts with the defendant will ordinarily consist of discussion. Questions posed by counsel, responses made by defendant and information conveyed by defendant necessarily form much of the foundation for defense counsel’s opinion of his client’s competency. We acknowledge that permitting the witness to relate the ultimate opinion without permitting cross-examination on the basis for the opinion constricts cross-examination very close to its permissible limits. Nonetheless, we will allow the testimony for several reasons. Observation of behavior is not a communication and therefore is not protected by the privilege. See Granger v. Wisner, 134 Ariz. 377, 379-80, 656 P.2d 1238, 1240-41 (1982); McCORMICK, EVIDENCE § 89 at 213 (3d ed. 1984). More importantly, the essential distinctions between a hearing on competency to stand trial and a determination of guilt or innocence mandate the result we reach. Given the different nature of the judicial inquiry—the diminished adversarial nature of the proceeding, the need for the testimony and the different duties and functions of counsel and court—there is an essential difference in what is expected of counsel. We believe that as an officer of the court, counsel has a duty at a Rule 11 hearing to aid the judge in reaching a correct decision on the issue of whether the adversarial proceedings may be commenced or continued. We therefore conclude that, in a competency hearing, the judge may call upon both counsel as officers of the court to provide whatever conclusions and opinions they may have, together with so much of the supporting facts as may be obtained without violating either the attorney-client privilege or the confidentiality provided to attorney’s work product. In some cases, this may mean very little information will be available, while in others a great deal may be obtained. Whatever is available should be at the court’s disposal. The judge will determine whether it is necessary to seek assistance from counsel. If the testimony is not essential, it is better to dispense with counsel’s help simply because the act of testifying may damage the relationship between lawyer and client. We hold, therefore, that the court may call defense counsel as a witness at the retrospective competency hearing to be held under the mandate issued in State v. Bishop, supra. Counsel may be examined to the extent indicated in this opinion. We do not address in this opinion the question of counsel’s competency as a witness in the truly adversarial portions of the trial. Relief is denied. GORDON, V.C.J., and HAYS, J., concur. HOLOHAN, C.J., concurs in the result. CAMERON, J., did not participate in the determination of this matter. . In Arizona relief previously obtained through writs of prohibition, mandamus or certiorari is now obtained through a procedure known as “special action". See Rule 1, Arizona Rules of Procedure for Special Actions, 17A A.R.S. . Rules of Criminal Procedure will be referred to as Rule —. . Of course, the test for insanity (responsibility) as a defense to the charge is quite different from the inquiry before us. A defendant may well be insane under the M’Naughton rule and yet be capable of assisting counsel, or he may lack the ability to assist counsel even though he was sane under the M’Naughton test. The tests being different, there is "very little relationship between a defendant’s competency to stand trial and his criminal responsibility for the crime.” Pizzi, supra, 45 U. CHI L. REV. at 38. . We note also that in a retrospective inquiry with new counsel, such as that in the case at bench, raising the question of competency is, to some extent, an attack on the quality of the former lawyer's representation, because it was his duty to call his client’s incompetency to stand trial or plead to the attention of the court. In such cases, concern about intrusions into the attorney-client relationship and the privilege is diminished if the incompetency claimed to exist was of the type which should have been recognized by the former counsel. Against such a charge, the attorney has a right to defend himself and the defendant cannot use the attorney-client privilege as a sword to block the inquiry into the issue which he has raised. Pizzi, supra, 45 U. CHI. L. REV. at 60.

CAMERON, Justice. This is a special action brought in response to the trial court’s denial of defendant’s motion for dismissal of an indictment. We have jurisdiction pursuant to art. 6, § 5(1) of the Arizona Constitution. We must decide two questions: 1. Did the delay in bringing defendant to trial violate Rule 8 of the Arizona Rules of Criminal Procedure, 17 A.R.S.? 2. Did the delay violate the sixth amendment to the United States Constitution speedy trial requirement? The facts are not in dispute. On 1 May 1984, defendant was arrested for the armed robbery and kidnapping of patrons of a Phoenix restaurant. See State v. McCutcheon, 150 Ariz. 317, 723 P.2d 666 (1986), decided this day. Defendant was placed in custody and taken to the Maricopa County Jail, where he remained until he was sentenced on 13 June 1985. Thereafter, he was transferred to the Department of Corrections. While defendant was awaiting trial in Maricopa County, the Tucson Police Department came to believe that defendant committed a robbery of a Tucson drugstore. On 21 May 1984, a criminal complaint was filed in Justice Court. As a result, a felony warrant was issued. Defendant was not, however, served with this warrant. Additionally, defendant was charged for the same offense by an indictment dated 28 June 1984, and another warrant for arrest was issued on that date. That warrant was not served until 23 August 1985. At that time, a writ of habeas corpus ad prosequendum, ordering defendant’s transfer from the State Prison to Pima County, had been issued and served. On 26 August 1985, defendant was arraigned before the Superior Court of Pima County. Thereafter, the trial court granted two continuances at defendant’s request because of trial conflicts by his attorney and upon a finding by the judge of extraordinary circumstances and delay being indispensable to justice. One continuance was from 1 October to 1 November, and another from 17 December to 14 January. In addition, the court of appeals issued a stay on 6 January 1986, which was vacated on 22 January when that court dismissed defendant’s petition for special action. We issued a stay on 31 January pending determination of defendant’s petition for special action. RULE 8 1. Rule 8.3 Defendant first contends that while he was in custody because of the Maricopa County offense, he should have been notified of his right to demand a final and speedy disposition of any untried charges against him pursuant to Rule 8.3 Ariz.R.Crim.P. 17 A.R.S. (Hereinafter Rule _). He urges that since he was not notified of this right, the charges should be dismissed with prejudice. We do not agree. Rule 8.3 sets forth a mechanism for prisoners to request a final disposition of any untried charges. 2. Within 30 days after a detainer has been filed against a prisoner incarcerated within this state, the prosecutor charged with the duty of prosecuting the charge from which the detainer results, shall inform him of the detainer and of his right to request its final disposition under Rule 8.3(b)(1). 3. Within 90 days after sending such a request to the court and prosecutor, the prisoner shall be brought to trial upon the charge. Rule 8.3(b)(2), (3). A detainer is “a writ or instrument, issued or made by a competent officer, authorizing the keeper of a prison to keep in his custody a person therein named.” Black’s Law Dictionary 535 (Revised 4th Ed.1968). A detainer “puts prison officials on notice that an inmate is wanted for trial in another jurisdiction.” State v. Olson, 146 Ariz. 336, 338, 705 P.2d 1387, 1389 (App.1985). More importantly, a detainer requires that the prison officials notify the prosecutor of the inmate’s release date and hold him for the prosecutor. In the instant case, no detainer was filed. A writ of habeas corpus ad prosequendum, a writ to produce the defendant for the purposes of prosecution, does not amount to a detainer. U.S. v. Mauro, 436 U.S. 340, 359, 98 S.Ct. 1834, 1846, 56 L.Ed.2d 329 (1978). Under Rule 8.3(b)(2), the prosecution is not required to notify the defendant of the right to request a trial until a detainer is filed. Since no detainer was issued, Rule 8.3(b) has not been violated. We find no error. 2. Rule 8.2 Defendant next contends that Rule 8.2 requires he be brought to trial within 150 days of his being charged. Defendant points out that more than one year elapsed between the filing of the complaint and indictment and his receipt of the arrest warrant. He, therefore, argues that the indictment against him should be dismissed because he has been denied a speedy trial. Rule 8 provides time periods within which a defendant must be brought to trial. Specifically, Rule 8.2(a) states: Rule 8.2 Time limits a. All Defendants. Every person against whom an indictment, information or complaint is filed shall be tried by the court having jurisdiction of the offense within 150 days of the arrest or service of summons under Rule 3.1 except for those excluded periods set forth in rule 8.4 below. On its face, Rule 8.2(a) measures the 150 day period from arrest. The court of appeals has held, however, that “the 150-day period does not commence until the defendant has become ‘accused’, by virtue of the presentment of an indictment or the filing o[f] a complaint.” State v. Roberson, 118 Ariz. 343, 344, 576 P.2d 531, 532 (App. 1978). However, Roberson can be distinguished in that in Roberson the defendant was arrested as a juvenile and released from custody by the juvenile court. He then turned eighteen and was indicted. Defendant, in Roberson, contended that the time began running at the time he was arrested and that since more than 150 days had elapsed, the charges should be dismissed. The court of appeals held that in these circumstances, the 150 days ran from the date of the indictment and not the date of the arrest; since the defendant had been timely prosecuted from the date of indictment, there was no error. The court of appeals was correct in its result because defendant was arrested as a juvenile and the time does not run as long as the defendant is under the jurisdiction of the juvenile court. [A]s long as the defendant was under the jurisdiction of the Juvenile Court, the State could not proceed against him as an adult. Art. 6, § 15, Arizona Constitution; A.R.S. §§ 8-202 and 8-246(A); McBeth v. Rose, 111 Ariz. 399, 531 P.2d 156 (1975). The speedy trial time limits of Rule 8, Rules of Criminal Procedure, 17 A.R.S., (1973), did not run during this period. State v. Myers, 116 Ariz. 453, 454, 569 P.2d 1351, 1352 (1977). In the instant case, we believe that a defendant in custody on another offense who has not been the subject of a detainer and who has not requested a trial pursuant to Rule 8.3(b)(1), must measure his time from the date of transfer to local custody or from arraignment. We believe the applicable rule is Rule 8.2(b) which reads: b. Defendants in Custody. Every person held in custody in this state on a criminal charge shall be tried by the court having jurisdiction of the offense within 120 days from the date of his initial appearance before a magistrate on the complaint, indictment, or information, or within 90 days from the date of his arraignment before the trial court, whichever is the lesser. In the instant case, the date of defendant’s initial appearance, 26 August 1985, was the same as the date of arraignment. Defendant then had 90 days to be tried from that date subject only to the excludable time periods of Rule 8.4 and 8.5. Rule 8.4 excludes “Delays resulting from continuances in accordance with Rule 8.5, but only for the time periods prescribed therein”. Rule 8.4(d). Rule 8.5(b) reads as follows: b. Grounds for Motion. A continuance shall be granted only upon a showing that extraordinary circumstances exist and that delay is indispensible to the interests of justice. A continuance may be granted only for so long as is necessary to the interests of justice, and in no case for longer than 30 days. Applying the foregoing rules to the instant case, defendant was arraigned on 26 August 1985. Ninety days from 26 August would mean the defendant had to be tried by the 24th of November. Excluding the times from 1 October to 31 October (31 days) and from 17 December to 13 January (28 days), the defendant would have 59 additional days in which to be tried or a trial date of 22 January 1986. However, in addition the court of appeals issued a stay on 6 January which ran until 22 January the day the defendant’s petition for special action was denied. This stay added 16 more days of excluded time which meant that the final day for trial was 7 February. We issued a stay effective 31 January 1986, when we granted the petition for special action. Rule 8.2 has not been violated. SIXTH AMENDMENT Defendant also contends his speedy trial right under the sixth amendment has been violated. U.S. Const. Amend. VI. In the context of a constitutional analysis, the United States Supreme Court has held that the speedy trial right of the sixth amendment commences only after the defendant has been “accused” of a crime. U.S. v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). “So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provisions of the Sixth Amendment.” Id. 92 S.Ct. at 463. The sixth amendment right to a speedy trial arises when a person becomes accused. U.S. v. Marion, supra. As stated, Marion provides that a person becomes accused by either formal indictment, information, or actual restraint imposed by arrest or holding to answer. 404 U.S. at 320, 92 S.Ct. at 463. In the instant case, defendant’s right to a speedy trial for purposes of the sixth amendment attached on 28 June 1984, when he was charged by indictment. To evaluate the alleged sixth amendment speedy trial violation, we must apply the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Barker sets out four factors: length of delay, reason for delay, timeliness of defendant’s assertion of his right, and prejudice caused to the defendant. Id. 407 U.S. at 530, 92 S.Ct. at 2192. See also State v. Gretzler, 126 Ariz. 60, 72, 612 P.2d 1023, 1035 (1980), cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). While length of delay has the least weight of the four factors, it serves to trigger the analysis. State v. Gretzler, 126 Ariz. at 72, 612 P.2d at 1035. Once the test is triggered, all four factors must be considered. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192. In the instant case, we believe a delay of about nineteen months triggers the Barker analysis. See State v. Soto, 117 Ariz. 345, 348, 572 P.2d 1183, 1186 (1977) (nine month delay triggered analysis); U.S. v. Jenkins, 701 F.2d 850 (10th Cir.1983) (sixteen month delay triggered analysis). Once triggered, the court must consider the reason for the delay. “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence ... should be weighted less heavily.... Finally, a valid reason, ..., should serve to justify appropriate delay.” Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192. (footnote omitted). In the instant case, the major cause of the delay appears to be the fact that the defendant was being held and tried in Maricopa County on other charges from 1 May 1984 until 13 June 1985. While we do not believe such a delay was justified, it does not appear that the delay was the result of a deliberate attempt by the state to hamper the defense. We believe that the delay caused by the trial in Maricopa County was a “more neutral reason”. Barker v. Wingo, supra. The third factor is the timeliness of defendant’s assertion of his right. In the instant case, defendant did not request a speedy trial while in custody in Maricopa County or in the State Prison. Defendant, however, may not have learned of the charges until 23 August 1985, when he was served with a warrant. We will not penalize defendant for this failure, See Terry v. Duckworth, 715 F.2d 1217 (7th Cir.1983) (where court did not “assign significant blame to petitioner” for failing to assert speedy trial right when he didn’t know of pending charge). Finally, defendant claims he was prejudiced because a key witness now cannot be found. Defendant, however, offers nothing to show as to how this key witness, if present, would testify. See U.S. v. Jenkins, 701 F.2d at 857. We have weighed the four Barker factors. From the record before us, we are unable to determine if the defendant’s sixth amendment rights to speedy trial have been violated without determining whether defendant has been prejudiced by the delay. By this statement, we do not infer that prejudice to the defendant is the sole factor we must consider in determining whether the defendant’s sixth amendment right to speedy trial has been violated. Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). Considering, however, that the delay, though long, was not shown to be a “deliberate attempt to delay the trial in order to hamper the defense”, Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192, prejudice to the defendant becomes important in determining whether there was a sixth amendment speedy trial violation. The matter must be returned to the trial court for a hearing to determine if defendant has been prejudiced by the delay. If the trial court, after said hearing, determines that defendant has not been prejudiced by the delay, the defendant must be tried forthwith. If the court finds the defendant has been prejudiced, the matter must be dismissed with prejudice pursuant to Barker v. Wingo, supra. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and FELDMAN, JJ., concur. . A stay stops everything, including the running of a continuance.

HOLOHAN, Chief Justice. National Indemnity Company brought an action against the defendant St. Paul Insurance Companies to compel St. Paul to contribute to the cost of defense borne by National in defending their mutual insured on claims covered by both insurers. The trial court entered judgment in favor of St. Paul. National appealed, and the Court of Appeals reversed. National Indemnity Company vs. The St. Paul Insurance Companies, 150 Ariz. 492, 724 P.2d 578 (App.1985). We granted St. Paul’s petition for review to resolve the conflict in decisions on this subject between the divisions of our Court of Appeals. The facts are not in dispute. In February 1980 Long’s Portable Stalls, Inc. leased portable stalls for use at a horse show. In separate incidents during the exhibition, two horses were electrocuted. Two lawsuits were filed by the horse’s owners against Long. Both National and St. Paul provided insurance coverage for these incidents. Under the policies issued by National and St. Paul, each was obligated to undertake the defense of Long. National defended Long in both actions; St. Paul refused to participate in the defense. Subsequently, St. Paul agreed to pay one-half of the settlement arranged by National, but it refused to contribute to the defense costs incurred by National in the defense of the claims. In Arizona Joint Underwriting Plan v. Glacier General Assurance Company, 129 Ariz. 351, 631 P.2d 133 (App.1981), Division Two of the Court of Appeals held that, absent an agreement, where more than one insurance company has the duty to defend an insured, the insurance company actually defending the insured has no right to claim contribution from the other insurance company for the cost of defending the insured. Id. at 354, 631 P.2d at 137. In this case, Division One of the Court of Appeals rejects the position of Division Two and holds that the insurance company assuming the defense of their mutual insured can claim contribution from the other insurer. The authorities are divided on the issue whether one insurance company can compel another insurance company to contribute to the cost of defense of an insured where each insurer has the duty to defend that insured. We have considered the authorities relied on by both divisions, and we believe that the authorities relied on by Division One are more persuasive. When an insurer has a duty to defend the insured, there should be no reward to the insurer for breaching that duty. A breach of the obligation to defend should not be encouraged, but the rule which allows an insurer to avoid the costs of defense tends to encourage an avoidance of the insurer’s responsibilities. Under the principle of equitable subrogation, the insurer which has performed the duty to provide a defense to its insured should be able to compel contribution for a share of the cost of defense from another insurer who had a similar obligation to the same insured but failed to perform it. We approve the ruling of Division One which requires St. Paul to contribute to the costs of defense borne by National in defending their mutual insured. The decision of Division Two in Arizona Joint Underwriting Plan vs. Glacier General Assurance Company, supra, is disapproved. St. Paul challenges the award of attorneys’ fees by the Court of Appeals to National. St. Paul points out that the only precedent in Arizona on the issue in controversy was Arizona Joint Underwriting. In light of this background, St. Paul argues that assessing attorneys’ fees against it for relying on existing law would be unjust. Under the principles set forth in Associated Indemnity Corporation v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985), the award of attorneys’ fees to National for pursuing its claim in the trial and appellate courts does not appear to be justified. St. Paul had a right to rely on the only Arizona precedent on the issue, and that precedent would justify the legal position taken by St. Paul in resisting the demand of National. The award of attorneys’ fees by the Court of Appeals is vacated. The opinion of the Court of Appeals is approved in part and vacated in part. The judgment of the superior court is reversed, and the case is remanded to that court with directions to enter judgment for the plaintiff National Indemnity Company. GORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.

OPINION LACAGNINA, Judge. State Farm Fire and Casualty Company (State Farm) appeals from the superior court judgment confirming an arbitration award in favor of Denise Berg Wise (Wise) under the uninsured motorist provisions of her State Farm policy. Wise was awarded $6,000 compensatory damages, $7,000 punitive damages and $5,200 in attorney’s fees. State Farm challenges the award on the following grounds: 1) the arbitration panel exceeded its authority in awarding punitive damages (State Farm does not appeal the award of compensatory damages); 2) the policy does not provide coverage for punitive damages; and 3) the trial court erred both in its award of attorney’s fees and in the amount awarded. We disagree and affirm. ARBITRATORS PROPERLY DECIDED ISSUES SUBMITTED State Farm argues that the arbitration award should not have been confirmed because the arbitrators exceeded their powers. A.R.S. § 12-1512(A)(3). The arbitrators’ authority is defined by the agreement from which their power to act is taken. Smitty’s Super-Valu, Inc. v. Pasqualetti, 22 Ariz.App. 178, 525 P.2d 309 (1974); Migneault v. United Services Auto Association, 21 Ariz.App. 397, 519 P.2d 1162 (1974); Allstate Insurance Company v. Cook, 21 Ariz.App. 313, 519 P.2d 66 (1974). Arbitrators have authority to decide questions of fact and questions of law. Verdex Steel and Construction Co. v. Board of Supervisors of Maricopa County, 19 Ariz. App. 547, 509 P.2d 240 (1973). Our review of an arbitration award is limited. We presume that the arbitrators have decided only those issues contained in the submission agreement, and the award is binding unless we find that the arbitration extended to matters beyond the scope of the issues submitted under the parties’ agreement. Smitty’s Super-Valu, Inc. v. Pasqualetti, supra. The uninsured motorist provision of Wise’s policy with State Farm defined the questions to be decided by the arbitrators: Deciding Fault and Amount Two questions must be decided by agreement between the insured and us: 1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle or underinsured motor vehicle; and 2. If so, in what amount? Citing Allstate Insurance Co. v. Cook, supra, State Farm argues that the arbitrators did not have the authority to make a punitive damage award because that necessarily involved a determination of coverage. State Farm contends that it is not the right to recover damages from the insurance company which is being arbitrated but the right to recover damages from the uninsured motorist. We disagree. As the arbitration award indicates, the parties stipulated to “the fact of policy coverage and the uninsured status of the adverse driver.” Therefore, the remaining question to be decided by arbitration was the amount of damages. We also disagree with State Farm’s statement of Wise’s rights concerning her uninsured motorist coverage. The purpose of the financial responsibility laws is to provide a fund to compensate victims of automobile accidents for their bodily injuries. Cassel v. Schacht, 140 Ariz. 495, 683 P.2d 294 (1984). The primary purpose is to provide “security against uncompensated damages arising from operation of motor vehicles on our highways.” Schecter v. Killingsworth, 93 Ariz. 273, 285, 380 P.2d 136, 144 (1963). Under Wise’s policy, State Farm agreed to “pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.” (Emphasis original.) Wise is entitled to recover, under the uninsured motorist provision of her policy, damages she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. Transportation Insurance Company v. Wade, 106 Ariz. 269, 475 P.2d 253 (1970). As in any standard liability policy, State Farm’s failure to specifically exclude punitive damages from its uninsured motorist coverage makes it liable for punitive damages. Price v. Hartford Accident & Indemnity Co., 108 Ariz. 485, 502 P.2d 522 (1972). Such a specific exclusion for punitive damages would have been valid and enforceable. Cassel v. Schact, supra. Without such an exclusion, however, the arbitrators were within their authority in awarding punitive damages, and their award is binding against State Farm by the terms of their agreement and Arizona law. DISCRETIONARY AWARD OF ATTORNEY’S FEES AFFIRMED The trial court’s award of attorney’s fees under A.R.S. § 12-341.01(A) is discretionary, not reviewable by this court if the record contains a reasonable basis for the exercise of that discretion. Associated Indemnity Corp. v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985), quoting Jones v. Queen Insurance Co., 76 Ariz. 212, 262 P.2d 250 (1953); Wheel Estate Corp. v. Webb, 139 Ariz. 506, 679 P.2d 529 (App. 1983); Grand Real Estate, Inc. v. Sirignano, 139 Ariz. 8, 676 P.2d 642 (App.1983). In this case the trial court awarded Wise attorney’s fees in the amount of $5,200 “in order to mitigate the burden of expenses of litigation on appeal pursuant to A.R.S. § 12-341.01(B).” The court further determined that the fees were reasonable and were appropriately awarded pursuant to the contingency fee agreement between Wise and her attorney. We find no abuse of discretion. Associated Indemnity Corp. v. Warner, supra. Wise is awarded attorney’s fees on appeal, upon filing the proper affidavits according to Rule 21(c), Rules of Civil Appellate Procedure, 17A A.R.S. Affirmed.

HAYS, Justice. Appellant, Warren C. Cook, was tried before a jury in November, 1974, for murder, obstructing justice, kidnapping, assault with intent to commit murder, assault with a deadly weapon, and possession of a deadly weapon. The state also alleged prior convictions of aggravated assault and battery. The first trial resulted in a mistrial. In January, 1975, appellant was tried again before a jury solely on the charges of murder and assault with intent to commit murder, both with an allegation of a prior conviction. Appellant was found guilty of involuntary manslaughter, A.R.S. § 13-457 (repealed 1978) and assault with intent to commit murder, A.R.S. § 13-248 (repealed 1978) both with a prior conviction. The trial judge sentenced Cook to concurrent terms of twenty-five years to life on each count. No timely appeal was taken. After a Rule 32 hearing, however, appellant was granted a delayed appeal in April, 1985. This order by the Mohave County Superior Court was based on a finding that the delay in seeking an appeal was not appellant’s fault. This court has jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.Rev.Stat.Ann. §§ 13-4031 and -4035. We affirm. The facts follow. Early on the morning of July 22, 1974, appellant and another man, Harold Juengst, were drinking beer and talking outside of appellant’s gas station. The two men began to argue concerning Charles Juengst, Harold’s father. Harold testified that appellant referred to Charles Juengst as “that bald-headed son-of-a-bitch” and to Harold as a “hippy.” Following this, appellant pulled out a knife. Harold then attempted to call his father on a pay phone and when the coins jammed, appellant used his knife to cut Harold’s beard and hair. Appellant and Harold got into appellant’s jeep and started to go to Charles Juengst’s home. At some point, Harold jumped out and ran to his parents’ home, awakened them and told them that appellant was planning to kill Charles Juengst. Charles Juengst called the Mohave sheriff’s department. Deputy Mike Lewis responded to the call. Lewis and Harold Juengst returned together to appellant’s service station to gather evidence of the attack on Harold. After they arrived, Lewis was walking in front of the gas station when appellant appeared carrying a gun. Harold testified that Deputy Lewis said, “Put the gun down, it’s not that serious.” Appellant responded, “I’m going to kill that bald-headed son-of-a-bitch, and you, and everyone else.” Appellant then fired the rifle, fatally injuring Lewis. Harold Juengst, who was standing at a distance behind the deputy, turned and ran. Appellant shot Harold, grazing his side. As Harold continued to run, a third shot was fired. Appellant went to his home, obtained another gun and drove to Charles Juengst’s home. There, appellant fired a shot through the door, and a second shot through the window of the home. Appellant then went to his son’s home and eventually returned to the gas station where he was arrested. ADMISSION OF OTHER BAD ACTS First, appellant claims that the testimony concerning the subsequent events at the home of Charles Juengst unfairly prejudiced him. We disagree. The general rule is that evidence tending to show that a defendant has committed certain bad acts, other than those for which he is on trial, is inadmissible. State v. Woods, 121 Ariz. 187, 190, 589 P.2d 430, 433 (1979). However, Arizona has long recognized an exception to the rule: evidence of circumstances which complete the story of the crime is admissible, even though it may reveal that other criminal offenses have been committed. State v. Evans, 110 Ariz. 380, 381, 519 P.2d 182, 183 (1974). “Evidence of other criminal acts is admissible when so blended or connected with the crime of which defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime.” State v. Villavicencio, 95 Ariz. 199, 200, 388 P.2d 245, 246 (1964). On numerous occasions, this court has found no error when evidence of later crimes was admitted to complete the story of the crime. See State v. Via, 146 Ariz. 108, 704 P.2d 238 (1985) (testimony of an alleged marijuana purchase admissible as completing the story, where the state argued defendant’s true intention was to use victim’s stolen credit cards); State v. Reinhold, 123 Ariz. 50, 597 P.2d 532 (1979) (theft of victim’s money completed the story of crime where victim testified defendant used her money after raping her to buy cigarettes and beer before they returned to her apartment). Explanation of events which occur before and after a crime can be admitted in order that the full story be understood. State v. Richmond, 114 Ariz. 186, 194, 560 P.2d 41, 49 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977). In the instant case, not only is the substance of the testimony relevant to the state’s theory of the case, but it also corroborates Harold Juengst’s earlier testimony. Harold testified that appellant said he was going to kill Charles Juengst. Appellant referred to Charles Juengst as a “bald-headed-son-of-a-bitch,” both prior to and at the killing of Deputy Lewis. Appellant’s actions of going to get another gun, driving to Charles Juengst’s home and firing shots into the house, corroborates Harold’s testimony that appellant wanted to kill Charles Juengst. This testimony helps the jury to understand what was meant by appellant’s statement to Deputy Lewis just before the killing. Appellant testified that he thought he had shot a burglar, not a police officer. Thus, the events at Charles Juengst’s home help to explain the state’s theory as to why appellant left the scene of the killing and how he eventually returned and was arrested. The threats against Charles Juengst before the killing of Deputy Lewis and the attempt to carry out those threats immediately after the killing were clearly part of the complete story of the events of that night. The jury was entitled to have the alleged crime, i.e., the murder of Officer Lewis, fixed in the background of the accompanying events. We find no abuse of the trial court’s discretion in allowing this testimony to be admitted. EXCESSIVE SENTENCE Appellant asserts that the sentence imposed is excessive and was improperly enhanced under § 13-1649 (repealed 1978). In 1975, involuntary manslaughter was punishable by imprisonment not to exceed ten years. A.R.S. § 13-457. Assault with intent to commit murder was punishable by imprisonment for not less than five years nor more than life. A.R.S. § 13-248. Each of appellant’s sentences was enhanced through application of the Arizona Recidivist Statute, § 13-1649 of the former code. A.R.S. § 13-1649 was applicable to both counts. State v. Ferrerira, 128 Ariz. 530, 533, 627 P.2d 681, 684 (1981) (A.R.S. § 13-1649 applied to each of 11 counts to enhance sentences). Section 13-1649 read in part: A. A person who, having been previously convicted for ... any offense punishable by imprisonment in the state prison, commits any crime after such conviction, shall be punished upon conviction of such subsequent offense as follows: 1. If for an offense punishable for a first conviction by imprisonment for a term exceeding five years, by imprisonment in the state prison for not less than ten years (emphasis added). Another statute, A.R.S. § 13-1644 (renumbered A.R.S. § 13-4002, repealed 1978), authorized the court to impose a sentence up to life imprisonment if the statute called for a term not less than any number of years and no upper limit was expressly declared in the statute. As A.R.S. § 13-1649 provided for a term of not less than ten years and did not provide for a maximum Sentence, the trial court was authorized under A.R.S. § 13-1644 to impose a life sentence. The twenty-five years to life sentence given appellant for the count of assault with intent to murder was within the statutory range, even if appellant was a first-time offender. We find no abuse of discretion by the trial court in setting the minimum at twenty-five years rather than five years. The sentence of twenty-five years to life for the count of involuntary manslaughter with a prior conviction was also within the statutory range in 1974. Having found that both counts were properly enhanced, we find that appellant’s contention that the sentences are illegal and require resentencing or a new trial is without merit. Appellant claims that the trial court should not have sentenced appellant under the enhancement statute without first having had an adjudication of the fact of a prior felony conviction under State v. McGriff, 7 Ariz.App. 498, 441 P.2d 264 (1968); see also State v. Lopez, 120 Ariz. 607, 608, 587 P.2d 1184, 1185 (1978). We find that the addendum to the information, the appellant’s testimony on the stand, and the trial court’s minute entry of judgment is sufficient for an “adjudication” in compliance with McGriff. In an addendum to the information, the state alleged that on February 23, 1968, in Mohave County Superior Court, case number 2293, Warren C. Cook was convicted of the crime of aggravated assault and battery, a felony. Attached to the addendum are records from the Superior Court, including fingerprints and appellant’s photo, the fact that appellant was represented by counsel, and the judgment and sentence of two to five years in prison. In addition to the addendum, appellant testified and admitted the prior conviction on the stand. At trial, appellant admitted two counts of aggravated assault or battery, committed in 1968 in Mohave County, and that they were felony offenses. “An admission on cross-examination is surely the strongest evidence available to prove a prior conviction ...” State v. Seymour, 101 Ariz. 493, 495, 421 P.2d 517, 519 (1966). An admission on the stand of a prior felony conviction for the same crime alleged, on the same date alleged, and at the same place alleged, is sufficient to establish the prior conviction. State v. Pacheco, 121 Ariz. 88, 90, 588 P.2d 830, 832 (1978). Also, when the state was prepared to prove the prior convictions with a witness, appellant’s counsel said to the court: Mr. Oehler: If he is here ... and the only relevant reason why he would be here ... is if we deny the prior conviction. I am prepared at this time to stipulate to the prior conviction. The defendant will be testifying and will have to admit on the stand that he has been found guilty pursuant to the Arizona Rules of Evidence of the crime, the date and place and nature. This clearly shows that appellant and his counsel knew of the prior convictions alleged and intended to admit them on the stand. Additionally, this court has held that when a defendant admits a prior felony conviction on cross-examination, and the prior conviction was alleged by addendum and the state was prepared to prove it, this court may take judicial notice of the records of the Superior Court to determine whether the place and date of the prior conviction agree with the place and date in the addendum. State v. Valenzuela, 109 Ariz. 109, 506 P.2d 240 (1973). In interpreting the earlier version of rule 17, Rules of Criminal Procedure, 17 A.R.S., and sentence enhancement under A.R.S. § 13-1649, we have held that where “the prior conviction was alleged for the purpose of increasing punishment, rather than as ‘an element of the crime charged,’ rule 17 had no application to an admission of the prior conviction.” State v. Canaday, 119 Ariz. 335, 336, 580 P.2d 1189, 1190 (1978), citing State v. Gholson, 112 Ariz. 545, 544 P.2d 654 (1976). Thus, we believe the trial court did not err, under the law effective at the time, in determining the prior conviction based on appellant’s admission on cross-examination. The trial court needed only to make such a determination and its minute entry of March 7,1975, is sufficient adjudication of the matter in open court. We therefore find no abuse of discretion and affirm the sentences as within the applicable statutory limits at the time. WITNESS FALSE TESTIMONY In a pro per brief, appellant has raised additional issues on appeal. We will address those now. Appellant argues that one witness lied while testifying, resulting in appellant’s conviction by perjured testimony. The credibility of witnesses is an issue to be decided by the jury. State v. Reinhold, 123 Ariz. at 59, 597 P.2d at 541, citing State v. Scott, 113 Ariz. 423, 425, 555 P.2d 1117, 1119 (1976). As long as there is evidence supporting the judgment, we will not disturb their determination. Id. Here, the jury believed the witness as evidenced by their verdict. Further, we find the evidence was sufficient to sustain appellant’s convictions. Thus, we need not consider the issue further. PRESENTENCE REPORT Appellant claims that the presentence report was filled out by his wife. He does not, however, make any allegation that the information contained therein was incorrect or harmful to his case. At the sentencing hearing, the trial judge stated that “favorable” information from appellant’s wife was part of the presentence report and that he based appellant’s sentence, in part, on this report. As we find nothing to indicate that appellant was prejudiced by the information, we find no error. -Despite this, appellant asserts that he is entitled to resentencing because he never saw the presentence report. First, no evidence was presented which would indicate that he was not afforded an opportunity to read the presentence report. In fact, at the Rule 32 hearing, appellant’s attorney testified that his normal procedure is to go over the report with his clients. This raises at least an inference that appellant was shown the report. State v. Stotts, 144 Ariz. 72, 79-80, 695 P.2d 1110, 1117-18 (1985). Second, appellant does not allege that any portion of the presentence report was improper or that it prejudiced him in any way. Third, rule 26.6(a) states in part, “The court shall permit the prosecutor and defense counsel, or if he is without counsel, the defendant, to inspect all presentence ... reports.” The record clearly shows that appellant’s counsel had a full copy of the presentence report. Appellant was provided a full and fair opportunity to challenge any allegedly improper portions both before and after sentencing. See State v. Mincey, 130 Ariz. 389, 412, 636 P.2d 637, 660 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1984). We find no error. INITIAL APPEARANCE Appellant contends that he was drunk at his initial appearance which was several hours after his arrest. However, appellant’s own testimony at trial is contrary to this contention. In referring to the time prior to the argument with Harold Juengst, appellant was asked: “Were you intoxicated at that time?” Appellant answered, “No, sir, I’d say I wasn’t intoxicated. I think I drank five and a half beers that night.” The testimony further shows that appellant did not consume any additional alcohol that night. Thus, we find nothing in the record to substantiate appellant’s contention that he was drunk at the initial appearance several hours after he last had the opportunity to consume alcohol. In addition, appellant makes no allegation that he was so drunk that he was unable to comprehend what occurred at the initial appearance. See, e.g., State v. Ferguson, 149 Ariz. 200, 717 P.2d 879 (1986). Appellant contends that he was denied a right to counsel at his initial appearance before a magistrate. In Arizona, an initial appearance is a proceeding at which a person is advised of his right to counsel and steps are taken toward obtaining counsel for subsequent proceedings. Rule 4.2. Hence, no right to an attorney exists at the initial appearance on the day of the arrest. Appellant’s right to counsel, therefore, was not violated. COMPETENCY OF COUNSEL Finally, appellant asserts that his attorney did not meet the minimum standards of competency of State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982), overruled, State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984) . Appellant alleges that his attorney misinformed him concerning the possibility of his receiving the death sentence if granted a new trial on appeal. Initially, we recognize that State v. Watson was overruled in part by this court in State v. Lee, supra. Thus, we must examine appellant’s contention in light of this case. In State v. Lee, we stated that in order for a defendant to establish a claim for ineffective assistance of counsel, he must show that “but for the trial counsel’s unprofessional conduct, the result of the trial would have been different.” Id. at 219, 689 P.2d at 162. See also State v. Nash, 143 Ariz. 392, 398, 694 P.2d 222, 228, cert. denied, — U.S. -, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985) . Appellant has not made such a showing. Appellant was granted a delayed appeal on the basis of his allegation of attorney misinformation. As we are affirming both the judgment of guilt and the sentences imposed by the trial judge, the requisite prejudice is absent. We have reviewed the record for fundamental error. A.R.S. § 13-4035; 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). We have found none. The judgment and the sentences are affirmed. HOLOHAN, C.J., and CAMERON and FELDMAN, JJ., concur. Note: Justice FRANK X. GORDON, Jr., did not participate in the determination of this matter.

OPINION EHRLICH, Judge. The trial court granted relief to Karen Lawrence-Juedes fka Karen Ziegelbauer from an order declaring $12,861.61 as the total child-support arrearage that James W. Ziegelbauer owed Lawrence-Juedes, his former wife. The court held that an earlier order made an incorrect determination that an Illinois order entered under Illinois’s version of the Revised Uniform Reciprocal Enforcement of Support Act (“RURESA”) had modified the child-support provisions of Lawrence-Juedes and Ziegelbauer’s Arizona decree of dissolution. Therefore, the court held that, as a matter of Illinois law, the RURE-SA order had left the Arizona decree intact. It recalculated Ziegelbauer’s child-support arrearage at $44,970.22 and entered judgment for that amount. Ziegelbauer appealed. We now must decide whether the trial court correctly interpreted the Illinois RURESA support order. FACTS AND PROCEDURAL HISTORY Lawrence-Juedes petitioned for dissolution of her marriage in Maricopa County, Arizona, in February 1982. The parties’ dissolution decree, entered June 15,1982, ordered Ziegelbauer to pay Lawrence-Juedes $200 monthly support for each of their two minor .children. Ziegelbauer moved to Illinois thereafter. In February 1983, Lawrence-Juedes obtained the Maricopa County Attorney’s assistance in enforcing child-support payments from Ziegelbauer. Pursuant to Ariz.Rev. StatAnn. (“A.R.S.”) section 25-563 (Supp. 1996), Arizona’s version of RURESA section 14, the county attorney filed a complaint for support on Lawrence-Juedes’s behalf in Maricopa County. The complaint alleged a total arrearage of $5060 for the period March 15, 1982, through January 31, 1983. It sought $200 per month for child support and an additional $100 per month toward arrear-age until paid. In accordance with AR.S. § 25-563, the complaint and supporting documents were certified and forwarded to Illinois. They were filed in Boone County, Illinois, on April 7, 1983, pursuant to former Ill.Rev.Stat. ¶ 1218, currently 750 Ill. Comp. Stat. Ann. 20/18 (West 1993). Ziegelbauer appeared in the Illinois Circuit Court and stipulated with an assistant Illinois state’s attorney: 1. That as of 3-15-83, the respondent is in arrears for child support of $5,060.00. 2. That the respondent has agreed to pay $100.00 per week regular child support and $25.00 per week on the arrearage ... total of $125.00 per week commencing June 15, 1983. In 1985, Illinois authorities petitioned the Illinois Circuit Court for a contempt order against Ziegelbauer. After a hearing, the court ordered “[t]hat the respondent’s child support shall be reduced from $100.00 per week to $51.65 per week commencing July 12, 1985” and “[tjhat the arrearage is struck at $6488.30 as of 7-12-85.” Lawrence-Juedes transferred the children to Ziegelbauer’s custody on January 11,1986. The Illinois court abated Ziegelbauer’s “current child support” as of that date. On April 1, 1986, the children returned to Lawrence-Juedes. Effective three days later, the Illinois court reinstated “current child support” at $51.65 per week with $10 per week against the arrearage. On August 25, 1988, the Illinois assistant state’s attorney and Ziegelbauer stipulated that Ziegelbauer was in arrears in the amount of $6999.30 as of July 18, 1988, and agreed to pay “current child support” of $55 per week and $20 per week against arrear-age beginning August 26, 1988. A similar stipulated order was entered in the Illinois court on June 13, 1989, which acknowledged child-support arrearage in the amount of $8368.55 as of June 12, 1989; Ziegelbauer was to pay $52 per week current child support and $23 per week against arrearage beginning June 16,1989. In September 1990, Lawrence-Juedes filed a “motion to determine arrearage and for entry of judgment” in the Maricopa County action. It incorporated an affidavit calculating Ziegelbauer’s net child-support arrearage and accruing interest under the dissolution decree at $25,670.51 as of September 15, 1990, including $422.34 in unreimbursed medical expenses. A copy of the motion was served on Ziegelbauer in Wisconsin on November 22, 1990. The trial court entered judgment in the requested amount on February 13, 1991. No one appeared on Ziegel-bauer’s behalf and no appeal was taken. In March 1995, Lawrence-Juedes filed an affidavit of arrearage pursuant to A.R.S. § 25-503(G) (Supp.1996) (formerly A.R.S. § 12-2453(F) (1994)). She averred that Zie-gelbauer’s child-support arrearage, net of payments totalling $11,394, was $41,396.43 as of January 15, 1995. On June 5, 1995, Lawrence-Juedes obtained an order of assignment directing any employer of Ziegelbauer to withhold $200 for child support and $750 against arrearage from Ziegelbauer’s monthly earnings, capped at 50% of his disposable earnings. Ziegelbauer filed a motion to amend the order of assignment. He challenged the ar-rearage amount of $24,999.48 which Lawrence-Juedes had alleged four years before in her uncontested motion to determine the arrearage. Ziegelbauer noted that Lawrence-Juedes based her current arrearage calculation of $41,396.43 on that figure and asserted that the lower arrearage figure reflected in the Illinois Circuit Court’s records demonstrated that his actual arrearage through June 23, 1995, was $9966.55 plus interest. In July 1995, the trial court reduced Zie-gelbauer’s monthly assignment amount from $950 to $300. It also directed counsel to confer and either recalculate the arrearage or request an evidentiary hearing. Lawrence-Juedes requested a hearing and, later, filed a petition for an order to show cause for contempt. On January 5, 1996, the court raised Zie-gelbauer’s monthly assignment amount from $300 to $500. At a later hearing, it raised the amount to $800 and gave counsel until March 20, 1996, to file memoranda on the effect of the Illinois court’s rulings on the arrearage calculation. Only Ziegelbauer filed a memorandum within that time. On March 26, 1996, the trial court issued an order determining that the correct arrearage amount was $12,861.61 as of January 1995. Lawrence-Juedes filed her memorandum on March 28, 1996, the date the court’s order was filed, and, on April 1, 1996, moved for reconsideration. The motion was denied. Lawrence-Juedes moved for relief from judgment on May 21,1996. After argument, the trial court ruled that it was not required to credit the Illinois court’s arrearage determination because, as a matter of law, the Illinois court had never modified Ziegel-bauer’s support obligation under the Arizona decree of dissolution. Ziegelbauer then appealed. DISCUSSION Ziegelbauer contends that “the modifications of support made in Illinois Court are binding on Arizona Courts.” He states that the parties’ dissolution decree was registered in Illinois “as the Illinois Court acted in accordance with registration by not transmitting payments made by Husband to Arizona and not forwarding modified orders to Arizona.” Ziegelbauer relies on Burke v. Burke, 617 N.E.2d 959, 962 (Ind.App.1993), for the proposition that the Illinois Circuit Court’s support orders in this case “specifically provid[ed]” that the parties’ Arizona dissolution decree be modified within RURESA section 31, adopted in Illinois as Ill.Rev. Stat. Ch. 40, ¶ 1231, currently 750 Ill. Comp. Stat. Ann. 20/31 (West 1993). We do not agree with Ziegelbauer’s interpretation of Illinois law or his application of that law to the circumstances of this case. Illinois’s version of RURESA section 31 is almost identical to Calif.Fam.Code § 4840, which this court considered and applied in White-Nathan v. Nathan, 181 Ariz. 112, 888 P.2d 237 (App.1994). Section 31 provides in pertinent part: A support order made by a court of this State pursuant to this Act does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court. [Emphasis added.] It thus conditions the responding court’s power to modify or nullify the original, underlying child-support order upon entry of an order that specifically so provides. If the responding court’s order does not precisely so allow, then that court has refrained from exercising the modification power that section 31 grants it. In that situation, “the RURESA support order does not nullify or supersede the original support order, and arrearages will continue to accumulate under that order.” White-Nathan, 181 Ariz. at 116, 888 P.2d at 241; accord Jefferson County Child Support Enforcement Unit v. Hollands, 327 Ark. 456, 939 S.W.2d 302, 305 (1997) (absent express language of nullification, order establishing child-support obligation different from that under foreign state decree does not modify child-support provisions of foreign decree). Relying on Burke, 617 N.E.2d 959, Ziegelbauer contends that the orders and actions of the Illinois Circuit Court amounted to “specifically providing” for modification of the support provisions of the 1982 Arizona decree. This is so, he argues, because, like the order in question in Burke, the Illinois court’s order of July 3, 1985, “reduced” Zie-gelbauer’s child-support obligation. Ziegel-bauer states, “The wording of the order is similar to the order in Burke except the word reduce is used rather than modify.” Ziegelbauer’s analysis is mistaken. Initially, he does not fully acknowledge the characteristics of the RURESA order from which the Burke court concluded that the rendering court had specifically provided for modification of the underlying support order. In Burke, the Indiana trial court’s divorce decree originally imposed on the father a $700 monthly child-support obligation. After the father moved to Illinois in reduced circumstances, the Indiana court modified his child-support obligation under the decree to twice-monthly payments of $173 for support and $32.40 against arrearage. The Indiana court later found the father in contempt of its own prior support and arrearage order, and determined that the father was in arrears in excess of $20,000. Thereafter, in a RURE-SA action, an Illinois court further reduced the father’s support obligation to $200 per month. In Illinois again, the mother sought to register the Indiana arrearage determination as a foreign judgment and petitioned for a contempt order. The father opposed the registration and petitioned to reduce his support obligation. The Illinois court set the father’s support payments at $250 per month for both children to abate by half when the older became 18 and abate entirely when the younger became 18. After both children reached 18, the father petitioned in Indiana to terminate his support obligation altogether. The Indiana trial court declined to hold that the Illinois court’s order had modified the Indiana divorce decree. On appeal, the Indiana appellate court reversed. Contrary to Ziegelbauer’s implication, the Burke court did not find the responding court’s reference to modifying the respondent’s present child-support obligation sufficient of itself to “specifically provide” for modification of the underlying order. Referring to the Illinois order, the court stated: In the findings accompanying its order, the Illinois [responding] court stated that “there has been a substantial change in Respondent’s circumstances sufficient to warrant a modification in [Father’s] present child support obligation.” ... It is clear that the court was referring to modification of the Indiana decree and not to the prior Illinois RURESA order because the court specifically found that the prior Illinois order had modified the Indiana divorce decree, and the Indiana court had in turn modified the prior Illinois order. Id. 964 (emphasis added). Ziegelbauer argues: The language in Burke v. Burke, “specifically providing” for modification, does not reference the Indiana order per se, but does state there is a modification of present child support. In the Illinois orders [in the instant case] the court specifically recognize[d] change[d] circumstances. When children [were] residing with Father for a period of time, the court abated support. When children went back to live with Mother for a period of time, the court reinstated support, and when the court initially modified support, it referenced not only an agreement of the parties, but also a review of Husband’s financial circumstances. Despite Ziegelbauer’s contention, nothing comparable to the circumstances described in Burke appears in the Illinois Circuit Court’s RURESA orders in this case. That court’s initial order was based on Ziegelbauer’s agreement with the $5060 arrearage alleged in Lawrence-Juedes’s Arizona complaint and his agreement to pay $100 per week child support and $25 per week against arrearage. The Illinois court’s next order provided “[t]hat the respondent’s child support shall be reduced from $100.00 per week to $51.65 per week commencing July 12, 1985....” Its use of the word “reduce” carries no implication that the court intended to modify the original Arizona decree. The Illinois court plainly changed only the more limited support obligation that its initial RURESA order imposed. Neither that order nor any of the Illinois court’s other support orders mentioned the Arizona decree of dissolution or expressed any intention to modify Ziegelbauer’s support obligation under the Arizona decree. Thus, the Illinois court’s orders did not “specifically provide” for modification of the Arizona dissolution decree within 750 Ill. Comp. Stat. Ann. 20/31. Ziegelbauer also argues: ... The fact that the alleged responding state (Illinois) did not transmit to the initiating court any payments made by the obligor, pursuant to RURESA Section 28, indicates Illinois considers this matter its own, either by way of registration or modification, and all orders were final and would be binding on the Arizona court entitled to full faith and credit. He cites no authority for this contention. Additionally, even assuming the correctness of the inference Ziegelbauer draws, anything that Illinois might “consider” concerning the underlying source of Ziegelbauer’s support obligation is immaterial under Illinois law absent compliance with the statutorily-prescribed means by which an Illinois court may supersede or modify a foreign state’s support order. 750 Ill. Comp. Stat. Ann. 20/31. The series of arrearage amounts that the Illinois court determined is consistent with our conclusion that the court merely issued standard RURESA support orders that did not supersede the Arizona decree’s support provisions. Simple arithmetic reveals that all these amounts were based on the original $5060 arrearage alleged in Lawrence-Jue-des’s Arizona RURESA complaint, increased by the varying Illinois support obligations and reduced by Ziegelbauer’s sporadic payments in Illinois. Ziegelbauer finally contends that “it can be argued the decree was registered, as the Illinois Court acted in accordance with registration by not transmitting payments made by Husband to Arizona and not forwarding modified orders to Arizona.” We again disagree. “Registration” of a foreign support order is the alternative enforcement procedure we discussed as follows in White-Nathan: ... RURESA sections 85 through 40 ... permit an obligee to register a foreign support order with the responding court. Within twenty days of service, the obligor may ask the responding court to vacate the registration. If the obligor does not do so, the registered support order is confirmed and becomes enforceable in the responding state. 181 Ariz. at 114-15, 888 P.2d at 239-40. As Lawrence-Juedes correctly points out, however, nothing contained in this record suggests that she ever registered the Arizona decree in Boone County. It reflects only that Lawrence-Juedes caused an independent support action to be initiated in her state of residence and forwarded to Ziegel-bauer’s state of residence for filing. In his reply brief Ziegelbauer rejoins: ... Respondent has only argued that the Illinois court treated its modified order as if the Arizona decree had been registered. This fact is important as an indication of the Illinois court’s attitude toward the orders it had issued. It treated the action and the order as its own, indicating that it intended to modify the Arizona decree and make the Illinois decree controlling between the parties. [Emphasis original.] As said above, Ziegelbauer cites no authority for the proposition that the Illinois court’s “attitude” or its failure to transmit his payments to Lawrence-Juedes’s former home state of Arizona can be treated as a legally-aeceptable substitute for the required “specific provision” modifying the Arizona decree. RURESA § 31. The trial court did not err in computing Ziegelbauer’s child-support ar-rearage based on the unmodified Arizona dissolution decree. ATTORNEY’S FEES Lawrence-Juedes requests an award of attorney’s fees on appeal pursuant to A.R.S. sections 12-341.01(0, 12-349 and 12-350. Ziegelbauer’s appeal was insufficiently supported by the law or the record. It unreasonably complicated Lawrence-Juedes’s efforts to collect child-support arrearages. Further, the appeal could not be said to have been taken in good faith given the maintenance of Ziegelbauer’s position in light of the governing law. In the exercise of our discretion, we award attorney’s fees to Lawrence-Juedes upon compliance with Rule 21, Ariz. R. Civ.App. P. CONCLUSION The judgment is affirmed. WEISBERG and GRANT, JJ., concur. . The statement of facts in Ziegelbauer’s opening brief fails to support its assertions with citations to the record as required by Ariz. R. Civ.App. P. 13(a)(4). We therefore disregard it, see Flood Control District of Maricopa County v. Conlin, 148 Ariz. 66, 68, 712 P.2d 979, 981 (App.1985), and summarize the facts from the record and the answering brief. . Arizona’s Revised Uniform Reciprocal Enforcement of Support Act, formerly A.R.S. §§ 12-165 through 12-1691, has been transferred and renumbered as A.R.S. §§ 25-551 through 25-591. 1996 Ariz.Sess.Laws Ch. 192, § 11, eff. July 20, 1996. For convenience, we cite the provisions of the Act as currently numbered. . Contra Beach v. Beach, 642 N.E.2d 269, 276 (Ind.App.1994) (declining to follow Burke and holding instead that an Indiana URESA support order cannot modify a foreign state’s support order).

OPINION. JONES, Vice Chief Justice. This appeal raises the question whether a petition challenging a City of Peoria zoning ordinance adequately complied with the requirements of the Arizona Constitution and referendum statutes. Petitioner Lorna Thacker, who represents a Peoria citizens group (Citizens), seeks review of an adverse decision by the court of appeals. We have jurisdiction under Arizona Constitution article VI, section 5(3), and Arizona Revised Statutes section 12-120.24. Factual and Procedural Background In December 1994, the Peoria City Council rezoned approximately sixteen acres owned by appellant Paula Myles Investments, L.L.C., from zoning classification General Commercial (C-4) to classification Planned Area Development (P.A.D.). The rezoning ordinance required in relevant part: Section 1. Parcel of land in Peoria, Mari-copa County, Arizona more accurately described on Attachment A is hereby conditionally rezoned from General Commercial (CM) zoning district to Planned Area Development (P.A.D.) zoning district. Section 2. That the rezoning herein provided for be conditioned and subject to the following: 1. Development shall be in accordance with the Standards and Guidelines Report dated November 21,1994. 2. Dedication of a 65 ft. half-street for the west half of 75th Avenue. 3. Dedication of a 30 ft. half-street for the north half of Tierra Buena Lane. Peoria City Ordinance No. 94-85. The Standards and Guidelines Report (Guidelines) mentioned in section 2(1) of the ordinance consisted of nine pages and included the development standards for the property. Additionally, the Guidelines revealed that the development would contain multifamily residences, that the architectural style and appearance would be as generally described, and that the project would conform to city codes, ordinances, and policies. The day after the Peoria City Council approved the rezoning ordinance, Citizens obtained a referendum number from the city clerk in order to circulate signature petitions to place the ordinance on the ballot and subject it to challenge at the next election. The clerk provided Citizens with a copy of the ordinance, a legal description of the property, and a zoning map of the property and surrounding area. Citizens attached all of these to the petitions to be circulated. After Citizens gathered the required number of signatures, it filed the petitions with the clerk. In March 1995, appellants filed suit in Maricopa County Superior Court challenging the validity of the petitions. Appellants contended that because Citizens did not attach a copy of the Guidelines, the petitions were insufficient as a matter of law. The trial judge granted Citizens’ motion to dismiss the complaint. The court of appeals reversed, holding the referendum petitions invalid without the Guidelinés and instructing the trial court to enter an order granting summary judgment in favor of appellants. We must decide whether the referendum petition circulated by Citizens satisfied the Arizona constitutional and statutory requirement that a “full and correct copy of the title and text of the measure” be attached and available to the elector at the time his or her signature is affixed. Ariz. Const, art. IV, pt. 1, § 1(9); A.R.S. § 19-112(B). We conclude that the referendum petition as presented to petition signers complied with the constitutional and statutory requirements applicable to referendum proponents. Discussion The Arizona Constitution addresses the important legislative tools of referendum and initiative whereby the people “reserve, for use at their own option, the power to approve or reject at the polls any Act, or item, section, or part of any Act, of the Legislature.” Ariz. Const, art. IV, pt. 1, § 1. Article IV, part 1, section 1(9) provides that “[e]ach sheet containing petitioners’ signatures shall be attached to a full and correct copy of the title and text of the measure so proposed to be initiated or referred to the people----” (Emphasis added). A.R.S. § 19-112(B) essentially restates the requirements of section 1(9): “The signature sheets shall be attached to a full and correct copy of the title and text of the measure or constitutional amendment proposed or referred by the petition at all times during circulation.” (Emphasis added). Significantly, the legislature also has provided specific guidance regarding the proper form and content of initiative and referenda petitions addressing zoning measures: [T]he measure to be attached to the petition as enacted by the legislative body of an incorporated city, town or county means the adopted ordinance or resolution or, in the absence of a written ordinance or resolution, that portion of the minutes of the legislative body that reflects the action taken by that body when adopting the measure. In the case of zoning measures the measure shall also include a legal description of the property and any amendments made to the ordinance by the legislative body. A.R.S. § 19-121(E) (emphasis added). There were no amendments to the Peoria ordinance. Because Citizens attached the adopted ordinance and the legal description of the affected property to the signature petitions, it asserts that the petitions complied fully with the statutory and constitutional requirements and that the statute requires nothing more. In support, Citizens cites Van Riper v. Threadgill, 183 Ariz. 580, 905 P.2d 589 (App.1995). Van Riper involved a zoning referendum petition where, among other issues, the court of appeals was faced with the question whether the petition was defective because specific supplemental documents claimed essential to the application for rezoning were not attached. Validating the petition, the Van Riper court stated: The statute which governs what must be attached to the petition when the measure to be referred is enacted by the legislative body of an incorporated town is A.R.S. section 19-121(E) rather than A.R.S. section 19-112(B). .Under A.R.S. [section] 19-121(E), the only things which must be attached to the petition are the ordinance or resolution, a legal description of the property in the case of a zoning measure, and any amendments to the ordinance made by the legislative body. Id. at 584, 905 P.2d at 593 (emphasis added). Here, in contrast, the court of appeals determined that Citizens’ petition without the guidelines was incomplete. In so deciding, the court amplified the scope of section § 19-121(E) by announcing an additional requirement that supplemental documentation be attached to the petition: [I]f an item, in this case the Guidelines Report, is referred to in an ordinance, and the ordinance itself is incomplete without it, it must be attached to the petition. To hold otherwise would be to ignore the spirit of Article IV, Part 1, section 1(9) of the Arizona Constitution. [W]hen an ordinance is meaningless without its companion documents, the companion documents must be attached to the referendum petitions. If the actual physical attachment of the explanatory documents to the petition proves to be too cumbersome, the information must otherwise be made immediately available to those who may be asked to sign the petition. Sherrill v. City of Peoria, 187 Ariz. 428, 431, 930 P.2d 505, 508 (App.1996). According to the court, “copies of all statutes, zoning codes or ancillary materials mentioned in a zoning ordinance” need not be attached to a referendum petition “when the materials have little or no specific relevance to the ordinance.” Id. Although the petition materials included a copy of the ordinance, the legal description, and the zoning map, the court found that without a copy of the Guidelines, which it considered to be “an intricate part of the ordinance,” the reader of the petition was left with only a “fragmented understanding of the petition.” Id. The court concluded that the petition without the Guidelines did not constitute a “full and correct copy of the title and text of the measure” and was therefore invalid. The court’s analysis implies that reference in the ordinance to General Commercial (C-4) and P.A.D. zoning districts without the inclusion of the Guidelines Report left the average petition signer with little idea of precisely what would be put on the ballot. We do not agree. Peoria Zoning Ordinance article 14-33 defines a P.A.D. as a zoning district for a variety of uses, including any development having one or more principal uses or structures on a single parcel of ground or contiguous parcels. The P.A.D. shall consist of a harmonious selection of uses and groupings of buildings, parking areas, circulation and open spaces, and shall be designed as an integrated unit, in such a manner as to constitute a safe, efficient, and convenient urban area development. Any use or combination of uses may be allowed in a P.A.D. provided it is consistent with the Peoria Comprehensive Master Plan, provided such uses are identified as permitted uses upon approval of the P.A.D. Even though the P.A.D. ordinance does not specify intended use, it does require careful “selection of uses and groupings of buildings,” and that the P.A.D. must be designated as “an integrated unit ... consistent with the Peoria Comprehensive Master Plan.” Any interested person would be free to refuse to sign the petition and then to contact the city clerk for additional information. We also note that the petition signing phase of the referendum procedure precedes the election and that the proponents and opponents routinely communicate to the electorate all there is to know about the merits of the proposition, and more, during the course of the ensuing campaign. Moreover, we discern nothing in the petition that is calculated to mislead a petition signer. Underlying the court of appeals’ analysis is a concern that because the potential uses allowed under a P.A.D. zoning designation are multiple, a petition signer could not make an informed decision without also reading the Guidelines. We have considered this argument and find it not entirely without merit. But we look also to the controlling language of the statute which, in the end, must govern. Our responsibility is to focus directly on Citizens’ petition and to decide, not whether it accomplishes every legitimate purpose on which the court or others might speculate, but whether it complies with the requirements set forth in the relevant statutory and constitutional provisions. We determined previously that a referendum petition must “comply strictly with applicable constitutional and statutory provisions.” Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 429, 814 P.2d 767, 770 (1991) (citing Cottonwood Dev. v. Foothills Area Coalition, 184 Ariz. 46, 49, 653 P.2d 694, 697 (1982)). Petitions for initiatives and referenda on zoning measures are necessarily governed by A.R.S. § 19-121(E). Our analysis leads to the conclusion that section 19-121(E) establishes a bright-line rule that specifies three items to be attached to each petition: (1) the adopted ordinance or resolution; (2) a legal description of the property; and (3) amendments, if any, made to the ordinance. The statute on its face requires no less and no more. After closely examining Citizens’ petition, we conclude that the court of appeals erred in ruling the petition invalid. Citizens complied with section 19-121(E) by attaching the full text of the ordinance and a copy of the legal description of the shcteen acres. The legal description was accompanied by the zoning map which revealed the new zoning classification and the location of the property in relation to other property in the vicinity. The fact that the P.A.D. zoning classification permits multiple uses cannot serve as a basis to alter or add to the language and meaning of the controlling statute, section § 19-121(E). We further conclude that the court of appeals’ new standard requiring the attachment of “companion documents” when an ordinance is “meaningless” without them is itself vague and will spawn needless speculation inconsistent with the simple requirements of section 19-121(E). The most telling difficulty with the court of appeals’ standard is that petition proponents would frequently have difficulty deciding precisely what additional materials a court might consider necessary to provide an ordinance with meaning and would force the proponent of a referendum to speculate what materials referred to in an ordinance would need to be attached to make a petition complete. This standard ventures beyond applicable statutory and constitutional requirements and introduces an unnecessary element of subjectivity and uncertainty. Although the court explained that “[o]ur holding is not meant to quarrel with the ruling in Van Riper or take issue with the language in A.R.S. § 19-121(E)____”, 187 Ariz. at 431, 930 P.2d at 508, the standard it announces does both. While well-intentioned, the court’s approach is inconsistent with the Arizona Legislature’s express direction that [t]he right of initiative and referendum shall be broadly construed. If there is doubt about requirements of ordinances, charters, statutes or the constitution concerning only the form and manner in which the power of an initiative or referendum should be exercised, these requirements shall be broadly construed, and the effect of a failure to comply with these requirements shall not destroy the presumption of validity of citizens’ signatures, petitions of the initiated or referred measure, unless the ordinance, charter, statute or constitu tion expressly and explicitly makes any fatal departure from the terms of the law. A.R.S. § 19-111 (Historical and Statutory Notes, Laws 1989, ch. 10, § 1); see also Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 67, 811 P.2d 22, 28 (1991) (inclusion of “surplus material” with petition did not render petition defective; reiterating that “the judicial branch has no power to keep the proposal off the ballot simply because we might believe the matter has not been submitted to the people in a fair form.”) (quoting Tilson v. Mofford, 153 Ariz. 468, 473, 737 P.2d 1367, 1372 (1987) (Feldman, Y.C.J., concurring)). Courts must resist the temptation to “improve upon” or try to “fix” otherwise clear statutory language in an effort to make it more useful or meaningful. Rather, the responsibility to alter statutes that can be read only one way, as here, remains with the legislature. State Tax Comm’n v. Quebe-deaux Chevrolet, 11 Ariz. 280, 289, 226 P.2d 549,555 (1951). Disposition Because we find that AR.S. § 19-121(E) is clear and unambiguous and that Citizens acted in compliance with it, we hold that the court of appeals erred in requiring that the referendum proponents furnish more documentation than the statute or the Arizona Constitution demand. Accordingly, we vacate the court of appeals’ opinion and affirm the trial court’s order dismissing the complaint. ZLAKET, C.J., and FELDMAN, MOELLER and MARTONE, JJ., concur.

OPINION NOYES, Presiding Judge. The Industrial Development Authority of the County of Pima (“Pima IDA”) bought sixteen apartment complexes in Maricopa County and claimed that they were exempt from ad valorem taxation because Pima IDA was a political subdivision of the state and, therefore, its property was “state” property, which is constitutionally exempted from taxation. The tax court upheld the tax and we affirm. I. Pima IDA is an Arizona non-profit corporation organized pursuant to Arizona Revised Statutes Annotated (“A.R.S.”) sections 35-701 through 35-761 (1990 and Supp.1996). In 1993 and 1994, pursuant to a “Direct Sale Program” by which the Resolution Trust Corporation sold property at a discount to governmental agencies, Pima IDA purchased a group of sixteen apartment complexes located in Maricopa County. As a condition of the sale, Pima IDA agreed to make thirty-five percent of the units in each complex continuously available for occupancy by lower-income and very low-income families at a reduced rental rate. For tax year 1994, Maricopa County assessed Pima IDA an ad valorem property tax on the sixteen apartment complexes, which had full cash values totalling $14,585,636. Pima IDA paid the tax, then filed this action to recover the tax on grounds that the apartment complexes were “state” property under the Arizona Constitution article 9, section 2(1) and the taxation was therefore illegal. See A.R.S. § 42-204(C) (Supp.1996) (pertaining to taxpayer actions to “recover any tax illegally collected”). On cross-motions for summary judgment, the tax court granted judgment to the defendant taxing authorities. Pima IDA appealed. We have jurisdiction pursuant to A.R.S. section 12-210(B) (1994). II. Pima IDA’s cause of action is based on the Arizona Constitution article 9, section 2(1), which provides, “There shall be exempt from taxation all federal, state, county and municipal property.” Pima IDA is a political subdivision of the state, as are counties, municipalities, and numerous other entities. A.R.S. section 35-511(2) (1990) provides, “ ‘Political subdivision’ means city, town, county, ... industrial development authority, ... and any other agency, instrumentality, municipal corporation or other entity created by a law of this state which has the power to issue bonds.” Pima IDA claims that, because it is a political subdivision of the state, its property is “state” property within the meaning of article 9, section 2(1). The problem with this argument is that article 9, section 2(1) mentions “county and municipal” but does not mention “industrial development authority.” Every word of a statute or constitutional provision is to be given meaning. E.g., City of Phoenix v. Yates, 69 Ariz. 68, 72, 208 P.2d 1147, 1149 (1949) (citations omitted). To interpret the word “state” in article 9, section 2(1) as broadly as Pima IDA does — to encompass all political subdivisions of the state — is to remove all meaning from the section’s mention of “county and municipal.” To give meaning to those words, then, we apply the principle of expressio unius est exclusio al-terius, e.g., Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982), and hold that, because article 9, section 2(1) expressly exempts county and municipal property from taxation, it excludes from that exemption the property of all other political subdivisions of the state. Pima IDA argues that “this Court should focus its analysis upon the recognized public policy considerations, and the consequences of the alternative interpretations.” Our primary focus when interpreting a constitutional provision, however, is on “the intent of those who framed the provision.” Jett v. City of Tucson, 180 Ariz. 115,119, 882 P.2d 426, 430 (1994); Pinetop-Lakeside Sanitary Disk v. Ferguson, 129 Ariz. 300, 302, 630 P.2d 1032, 1034 (1981). If the language of the provision is clear, as it is in this case, we do not focus on policy considerations, for “judicial construction is neither necessary nor proper.” Jett, 180 Ariz. at 119, 882 P.2d at 430. Pima IDA argues that article 9, section 2(1) confers intergovernmental tax immunity rather than exemption from taxation. No “immunity” issue exists in this case. In Tucson Mechanical Contracting, Inc. v. Dep’t of Revenue, 175 Ariz. 176, 179, 854 P.2d 1162, 1165 (App.1992), we held that a tax does not violate the doctrine of intergovernmental tax immunity “unless the tax falls directly on the federal government, falls on an instrumentality indistinguishable from the federal government, or somehow discriminates against the government or a private party with which it does business.” An ad valorem tax on Pima IDA’s apartment complexes does none of those things. A.R.S. section 35-741 (1990) provides, in relevant part, that an industrial development authority corporation “shall be exempt from all taxation in this state, except that property of the corporation shall be subject to all applicable ad valorem taxes.” This statute is constitutional. The judgment of the tax court is affirmed. GERBER and EHRLICH, JJ., concur.

OPINION FLÓREZ, Judge. Appellants, two students (Students) and their parents (Parents), appeal from a permanent injunction enjoining them from entering Phoenix Preparatory Academy (the Academy), a public inner-city middle school governed by appellee Phoenix Elementary School District No. 1 (the School District). The trial court issued the injunction after finding that the Academy’s mandatory dress code does not violate the First Amendment to the United States Constitution. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND In May 1995, the School District enacted a mandatory dress code for students attending the Academy. The code stated: Boys: All white shirts with collar. No logos on the shirt. This may be a “Polo” shirt, dress shirt, etc. Navy blue pants or shorts. Girls: All white collared blouses or “polo” shirt. No logos on the blouse or shirt. Navy blue pants, shorts, or skirt. The white tops with a collar (polo shirt, oxford type shirt, blouse) may be purchased at any store. The only requirement is that they be all white with no logos of any kind. The navy blue bottoms (pants, shorts, skirt) may be purchased at J.C. Penney Company ONLY. Procedures for implementing and enforcing the code included a two-week phase-in and provided for ongoing education about the code’s requirements. It also provided: 2. After September 5,1995, students who fail to comply with the Dress Code shall be advised of the requirements of the Dress Code and offered use of a uniform for the day, and a parent contact shall be made. 3. Students who refuse to comply with the Dress Code shall be given the opportunity to transfer to another school, either within or without the District. The Phoenix Elementary School District No. 1 shall assure such student’s admission to another school located within the District. On September 6, the Students wore clothing that did not comply with the dress code. One wore a T-shirt with a United States flag and logos stating “USA,” “I support my country,” and “America.” The other wore a T-shirt with a picture of Jesus Christ, “Jesus,” “True Spirit,” and a Bible with the words “The School of Higher Learning.” That day, the Parents informed the Academy that the Students would never comply with the dress code, insisting they were entitled to opt out of it, and that enforcement of the code violated the Students’ First Amendment right of free speech. Later that day, the School District delivered transfer letters to the Parents, notifying them that the Students had been transferred to another school in the district which did not have a dress code, effective September 7. On September 7, Parents and Students marched onto the Academy’s campus, entered the classrooms without permission, and distributed literature to other students disparaging the dress code. In separate actions, each side sought declaratory and injunctive relief. After consolidating the cases, the trial court conducted a hearing, made extensive findings of fact, and concluded that the mandatory dress code did not offend the First Amendment to the United States Constitution. This appeal followed. DISCUSSION We accept the trial court’s factual findings unless they are clearly erroneous or not supported by any credible evidence, Imperial Litho/Graphics v. M.J. Enterprises, 152 Ariz. 68, 730 P.2d 245 (App.1986), and review questions of constitutionality de novo. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 917 P.2d 222 (1996); see also Jews for Jesus, Inc. v. Board of Airport Comm’rs of City of Los Angeles, 785 F.2d 791 (9th Cir.1986), judgment aff'd, 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). Relying on Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), and Pendley v. Mingus Union High School District No. 4, 109 Ariz. 18, 504 P.2d 919 (1972), the trial court found that the dress code neither facially nor as applied violated the Students’ First Amendment rights to free speech. The court applied the forum analysis of Cornelius because it found that the dress code regulated the medium of expression, not the message. It also found that the Academy is not a public forum and that the dress code is reasonably related to “appropriate matters of concern to the School Board and that the policy itself [was] reasonable.” Finally, the court balanced the interests of the Students against the need for the dress code, finding “that the School Board’s intent was to provide a mandatory uniform policy which would benefit the student body as a whole” and “the interests of the entire student body outweigh[ed] [the Students’] freedom of expression rights.” Appellants argue that the T-shirts bearing logos expressing religious and political sentiments are protected speech under the First Amendment and are subject to the stringent review of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), instead of the less stringent standard in Cornelius. We find the Tinker analysis inapplicable and agree with the trial court that the Cornelius analysis is appropriate. In Tinker, the United States Supreme Court overturned the school district’s suspension of students who wore black armbands to protest the Vietnam war, finding that the students were suspended because the school officials disagreed with the students’ viewpoint. Tinker and its progeny are directed at content-based restrictions on speech. In contrast, the evidence shows the School District’s dress code is not intended to restrict speech, but is a content-neutral regulation of student dress that the trial court found furthers reasonable policies and goals of the Academy. We also agree with the trial court that under the Cornelius standard, the code’s content-neutral restrictions do not contravene the First Amendment. In Cornelius, the NAACP Legal Defense and Education Fund and other similar organizations challenged a restriction imposed by executive order which potentially inhibited them from participating in fundraising through the Combined Federal Campaign, a charity drive aimed at federal and military personnel. The restrictions allowed participation only by tax-exempt, nonprofit charitable groups supported by public contributions that provided Reversing the appeals court, the United States Supreme Court noted that the First Amendment includes a right to solicit contributions and that the extent to which the government may curtail that right depends upon whether the forum involved is public or nonpublic. Finding that the public workplace is a nonpublic forum, the court held that the government could restrict access “as long as the restrictions are ‘reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.’ ” 473 U.S. at 798, 105 S.Ct. at 3448, 87 L.Ed.2d at 576, quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794, 803 (1983) (holding teacher’s internal mail system a nonpublic forum). Similarly, we must decide if the Academy campus is a traditional public forum, a forum created by government designation, or a nonpublic forum. See Perry. Traditional public fora are those places or means of communication “which by long tradition or by government fiat have been devoted to assembly and debate,” id. at 45,103 S.Ct. at 954, 74 L.Ed.2d at 802, such as streets and public parks. They do not include all government property. Cornelius. Government designated fora are places or means for communication which the government has intentionally designated for discussion and debate. The government must show a compelling governmental interest to exclude speakers from such a forum. Id. A nonpublic forum, in contrast, is one to which the public does not have access and in which the government can impose reasonable time, place, and manner restrictions upon speech in light of the purpose of the forum. Id. A school is generally considered a nonpublic forum for purposes of the First Amendment. Lamb’s Chapel v. Center Mo-riches Union Free Sch. Dish, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988); Hedges v. Wauconda Community Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir.1993); Miles v. Denver Pub. Schs., 944 F.2d 773 (10th Cir. 1991). Moreover, school officials have great latitude to regulate activities in a manner “reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at 273, 108 S.Ct. at 571, 98 L.Ed.2d at 604. The Academy closely monitored nonstu-dents, including parents, who came onto the campus. It never had an “open door” policy, even regulating time, place, and manner as to nonschool sponsored groups and activities. The trial court correctly concluded that the Academy is a nonpublic forum. We next determine whether the evidence supports the trial court’s finding that the dress code bears a reasonable relation to the pedagogical purpose of the school. Hazel-wood Sch. Dist. The School District presented evidence that it adopted the dress code because it: 1. Promotes a more effective climate for learning 2. Creates opportunities for self-expression 3. Increases campus safety and security 4. Fosters school unity and pride 5. Eliminates ‘label competition’ 6. Ensures modest dress 7. Simplifies dressing 8. Minimizes costs to parents. The trial judge also heard testimony from a police officer about increased campus safety as a result of the dress code and from California school administrators who had observed the effects on California campuses with similar dress codes. The administrators testified that such codes reduce clothing distractions, increase campus safety, improve school spirit, level socioeconomic barriers, “ensur[e] that students dress appropriately,” and reduce staff and faculty time required to enforce the dress code. Thus, the court had ample evidence to support its finding that the policies underlying the adoption of the dress code were reasonably related to the Academy’s mission. The Cornelius analysis also involves consideration of whether there are alternative avenues of expression. Although the trial court did not address the issue, we note that the dress code provided students with such alternative methods of expression as jewelry, buttons, non-uniform days, and petitions. See Heffron v. Intl' Soc’y for Krishna Consciousness, Inc., 452 U.S. 640,101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (ample alternative channels of communication). CONCLUSION The School District’s content-neutral dress code constitutionally regulates the Students’ First Amendment speech rights in the nonpublic forum of their school. It regulates a method, not a message, and is reasonable in view of the pedagogical mission of the Academy. Affirmed. ESPINOSA, P.J., and CHARLES S. SABALOS, J. , concur. . In July 1995, A.R.S. § 15-342(22) was enacted to specifically empower public schools to implement mandatory dress codes.

ORDERED: Petition for Review by the Supreme Court — DENIED.

OPINION MARTONE, Justice. Rule 15.1(g)(1), Ariz. R.Crim. P., requires a prosecutor to provide the defendant notice of intent to seek the death penalty “no later than 30 days after the arraignment in superi- or court.” The question before us is whether notice given one year and three months after the arraignment is a particularly egregious violation of the rule. We hold that it is. I. Background Anthony Allan Holmberg was indicted on two counts of child abuse and one count of first degree murder on January 27, 1995. He was arraigned in superior court on May 11, 1995. One year and three months later, on August 12, 1996, the state filed its notice of intent to seek the death penalty. On August 19, 1996, Holmberg filed a motion to strike the state’s notice for the reason that it violated Rule 15.1(g)(1), Ariz.R.Crim. P. In response, the state argued that Holmberg failed to show any prejudice flowing from the state’s violation. In his reply, Holmberg argued that he was prejudiced by the state’s violation “because the preparation of a capital case is entirely different from any other type of case not only in preparation for trial but also in preparation to protect Mr. Holmberg’s interests from what may happen after trial.” Holmberg’s reply, Sept. 9,1996, at 4-5. The trial court denied the motion for the reason that Holmberg “failed to show where he has been prejudiced by the delay.” Minute Entry of Sept. 11,1996. Holmberg filed a petition for special action in the court of appeals, which declined to accept jurisdiction. We granted Holmberg’s petition for review because the question presented has significant implications for capital litigation in Arizona. Rule 8(b), Ariz. R.P. Sp. Act.; Rule 23(c)(4), Ariz. R. Civ.App. P. II. Analysis A decision to seek the death penalty requires careful and thoughtful consideration of our death penalty statute, A.R.S. § 13-703, our cases construing it, and all evidence relevant to aggravating and mitigating circumstances. A decision to seek the death penalty sets in motion a series of significant effects. The county is put on notice that it will have to bear the expense not only of prosecuting such a case but also the significant expense of defense fees, expert witness fees, and other extraordinary expenses. AR.S. § 13-4013. The county (or court) will have to select counsel who are qualified to defend capital cases and ensure that they have both the time and resources to do their job. This will frequently require more than one lawyer. The court, too, is affected. A capital case may require a special assignment to avoid the disruptive effect such a case may have on an ordinary criminal calendar. The court may marshal the resources of law clerks or other assistants to help the assigned judge to deal with the unique problems associated with capital litigation. Arizona judges may receive research and judicial support in capital cases through the Arizona Capital Litigation Law Clerk Assistance Program. The decision, too, will have a profound effect on the defendant. It may influence plea negotiations. It will affect the evidence offered or not offered. It will require the gathering of evidence relevant to aggravation and mitigation, which in turn may require the services of investigators and expert witnesses. The prosecutor is also affected. A decision to seek the death penalty ensures that, if actually imposed, the future course of the case will be characterized by the layered complexity of both state and federal post-conviction proceedings. And, given the pros ecutor’s special responsibility as a minister of justice and not simply an advocate, ER 3.8, Rule 42, Ariz. R. Sup.Ct., the decision cannot be undertaken lightly. Our legislature has already acknowledged the complexities associated with the defense of capital cases and has required this court to establish and maintain a list of qualified lawyers to be appointed in post-conviction proceedings in capital cases. See A.R.S. § 13-4041. Pending before this court is a proposal to amend the rules of criminal procedure to require the appointment of two lawyers who meet certain standards to represent the defendant in a capital case. In such a regime, the notice of intent to seek the death penalty becomes even more important. See In re petition to amend Rule 6.2 and to adopt Rule 6.8(b), Ariz. R.Crim. P., Supreme Court No. R-96-0031. It is against this backdrop that Rule 15.1(g)(1), Ariz.R.Crim. P., was adopted. By requiring notice of intent to seek the death penalty no later than thirty days after arraignment, all of these wheels are set in motion at the outset. It alerts all the participants to the special needs involved in the trial of a capital case. Rule 15.1(g)(1) has been the subject of three of our recent opinions. In State v. Lee, 185 Ariz. 549, 555, 917 P.2d 692, 698 (1996), we upheld the denial of a motion to preclude the state from seeking the death penalty where the state filed its written notice eighty-seven days late, because it was undisputed that the defendant had actual oral notice as evidenced by discussions during plea negotiations and defense counsel’s contacts with death penalty lawyers throughout Arizona. We said that a defendant seeking to demonstrate an abuse of discretion “should be prepared to show some prejudice from surprise or delay.” Id. at 556, 917 P.2d at 699. In State v. Jackson, 186 Ariz. 20, 24, 918 P.2d 1038, 1042 (1996), we again found no abuse of discretion where the trial court allowed the state to file its notice one day late because it was clear that the defendant had actual notice of the prosecutor’s intent to seek the death penalty at least one week before the state’s notice was due. We also squarely rejected the defendant’s argument that strict compliance with Rule 15.1(g)(1) was jurisdictional. Id. In Barrs v. Wilkinson, 186 Ariz. 514, 516, 924 P.2d 1033,1035 (1996), we concluded that the trial court erred in failing to grant the defendant an evidentiary hearing on his request to show prejudice from a notice that was nearly three months late. Counsel argued that he would have to withdraw because he had already reached his contractual quota of capital cases. He further argued that had timely notice been given, a different lawyer could have been assigned and important early decisions could have been made. We concluded that the defendant had made a color-able claim of prejudice and was entitled to an evidentiary hearing. We acknowledged that a continuance may well be the appropriate remedy for a Rule 15.1(g)(1) violation but that preclusion of the death penalty “may be appropriate where, for instance, the state’s violation is particularly egregious or the defendant will clearly suffer harm.” Id. at 516, 924 P.2d at 1035. We noted that Barrs was not a case, like Lee or Jackson, in which the notice was filed a few days late or the defendant had actual notice of the state’s intent within the prescribed time limit. For months the defendant, his lawyer, and the office of court-appointed counsel reasonably believed it was a non-capital case. We did, however, reject the argument that the state should be automatically precluded from seeking a death sentence where it fails to show good cause for the violation, and instead remanded for an evidentiary hearing on the question of prejudice and harm. Holmberg argues that the trial court’s ruling here was an abuse of discretion because unlike Lee and Jackson, he had no actual notice of the state’s intent to seek the death penalty before the prescribed period expired. He contends that allowing the state to notify him of its intent to seek the death penalty one year and three months after arraignment violates not only the plain language of the rule but its purpose. The state argues that there was no prejudice here because it filed its notice in August 1996, the firm trial date was reset to March 1997, and has again been reset to May 1997. State’s Response to Petition for Review at 7. The state further informs us that the reason for the extraordinary delay in this case is that the deputy assigned to the case “had never been assigned a death penalty case before,” and “she was simply unaware of the proper procedures for notice to be followed in a death penalty ease.” Id. at 12. Our review of the record indicates that this is the “particularly egregious” case we referred to in Barrs, 186 Ariz. at 516, 924 P.2d at 1035. By August 6, 1996, the parties had engaged in extensive discovery, had filed their disclosure statements, their witness and exhibit lists, and because discovery was still ongoing, the trial court continued the trial from August 6, 1996, to August 30, 1996. Minute Entry of Aug. 6,1996. Six days later and in the face of an August 30 trial date, the state filed its notice of intention to seek the death penalty. The defendant promptly filed his motion to strike the state’s notice on August 19,1996. The state filed its response on the trial day, August 30,1996, and on that same day the trial court ordered the defendant to file a reply to the state’s response and continued the trial to October 4, 1996. Minute Entry of Aug. 30, 1996. The defendant filed his reply on September 9, 1996, and on September 11, 1996, the trial court denied the defendant’s motion to strike. Up to this point, Holmberg was represented by a single public defender. On September 23, 1996, just a week and a half before trial, a second public defender filed a notice of appearance as co-counsel for Holmberg. Four days before trial, the defendant filed a motion for stay of proceedings so that he could seek special action relief from the denial of his motion to strike the state’s notice of intention to seek the death penalty. On October 4, 1996, the trial court denied the motion for stay and reset the trial to March 3, 1997. On January 24, 1997, Holmberg moved to continue the trial from March 3, 1997, to May 5, 1997, for, among other reasons, the need for newly added co-counsel “to pursue the area of mitigation.” Motion to Continue dated Jan. 24,1997 at 2. On February 7,1997, the trial court continued the trial to May 21, 1997. Minute Entry of Feb. 7, 1997. This is plainly not a case, as is suggested by the state, where a notice of intent to seek the death penalty was filed late but at least six months before trial. This notice was filed eighteen days before the trial date. It is also a case in which the trial court denied the defendant’s motion to strike the notice twenty-three days before the reset trial date. Although the trial court, on October 4, 1996, reset the trial to March 3, 1997, by then the damage had been done. The parties had been engaged in extensive discovery, no mention had been made of the death penalty, defense counsel had no reason to develop evidence that would mitigate a death penalty, no reason to obtain co-counsel until it was too late, and by the time the trial was reset to March 1997, giving the defendant about five months, the parties had endured sixteen separate trial continuances. This is not a ease in which the state discovered aggravating circumstances during trial preparation, which would make it appropriate to seek leave to file a tardy notice. Instead, this case was characterized by the state as a “capital offense” at the proceedings on the return of the indictment on January 27, 1995. Tr., Jan. 27,1995, at 40. The filing of a notice of intent to seek the death penalty cannot be a fifteen-month afterthought. This would completely eviscerate the purpose sought to be achieved by the rule. The parties, the lawyers, the court, and all others must know that it is a death ease from the outset. We reject as categorically as we can the state’s suggestion that if untimely notices of intention to seek the death penalty are to be dismissed without any showing of prejudice to the defense, Arizona prosecutors will reason, “Better safe than sorry” and routinely file notices of intent to seek the death penalty as part of every first degree murder case____ If this Court determines that the defense need not show prejudice to have an untimely notice dismissed, the consequence will be that the State will file many more notices of intent to seek the death penalty, and ultimately withdraw most of those notices. State’s Response to Petition for Review at 9-10. We do not believe that Arizona prosecutors would so lightly disregard the special responsibilities imposed upon them under ER 3.8 as ministers of justice. Indeed, in our experience, we believe that this argument is not fairly reflective of the professionalism the vast majority of prosecutors show day in and day out. No prosecutor should ever file a notice of intent to seek the death penalty unless in earnest, after the most careful and deliberative consideration of the evidence and law. The filing of the notice of intent to seek the death penalty should set into motion all the machinery we have detailed in this opinion. If a substantial violation of the notice rule right through the end of the process could be cured by the expedient of a trial continuance, then the purpose sought to be achieved by the rule would be frustrated. The prejudice to the defendant and to the system would be apparent. This is the “particularly egregious” case in which we can say with confidence that the system has not worked as it should, and as it must. Barrs, 186 Ariz. at 516, 924 P.2d at 1035. This case was prepared for trial as a non-capital case. This is thus not a case of presumed prejudice, but actual prejudice to the defendant and the administration of justice. III. Conclusion We vacate the order of the trial court which denied the defendant’s motion to strike the state’s notice of intent to seek the death penalty and remand this case to the superior court with instructions to grant the motion and proceed to trial. ZLAKET, C.J., JONES, V.C.J., and FELDMAN and MOELLER, JJ., concur.

OPINION MOELLER, Justice. FACTS AND PROCEDURAL HISTORY On May 20, 1994, Timothy Sterns’ truck was stolen from his place of employment. Six days later, a police detective told defendant, Mario Amado Terrazas, that he thought there were stolen vehicles on defendant’s property. When defendant gave the detective permission to look around, the detective found the frame and glove box of Sterns’ truck, both of which contained the truck’s vehicle identification number. On a later date, Sterns identified more parts of his truck among items that had been found on defendant’s property. When the detective asked defendant about the pieces to Sterns’ truck, defendant claimed that he had been gone for four days and, while he was away, the vehicle parts had been left on his property by an unknown individual. Defendant waived his right to a jury trial. The state sought to introduce evidence of other crimes, wrongs, or acts, and defendant sought to exclude such evidence. The trial court stated that it would receive the evidence subject to a later ruling on admissibility. The state proceeded to offer evidence of three earlier incidents which it alleged showed defendant had committed earlier criminal acts with which he had never been charged. The first involved a 1985 Chevrolet Blazer S-10 owned by Tommy Medina that was stolen in March 1998. At that time, a friend of Medina’s saw someone driving Medina’s truck onto defendant’s property. The next day, Medina and the friend went with police onto defendant’s property and located parts belonging to Medina’s vehicle. The second item involved Jennifer Vasquez’ 1991 Chevrolet S-10 truck that had been stolen in 1992, two years before the truck involved in this case was stolen. When the Vasquez truck was stolen, there were several items in it, including a maroon backpack containing library books. While searching defendant’s property in connection with the present case, a detective found a maroon backpack and three library books. He seized the books but not the backpack. The books proved to be the library books that had been in Vasquez’ truck when it was stolen. No other connection between Vasquez’ truck and defendant was shown. The third item of alleged bad act evidence involved Richard Estrada’s stolen truck. A police detective showed Estrada pictures of items found on defendant’s property to determine whether they were parts of Estrada’s truck. Estrada, however, could not make any positive identification. At the end of the trial, the court relied on the other act evidence regarding Medina’s Blazer and the books from Vasquez’ truck, but disregarded evidence regarding Estrada’s truck because of the lack of evidence connecting it to defendant. The trial court found defendant guilty of class four felony theft, suspended his sentence, and placed defendant on probation. The court of appeals affirmed. We granted review and have jurisdiction pursuant to Arizona Constitution article VI, section 5(3) and Arizona Rules of Criminal Procedure 31.19. ISSUE In Arizona, what level of proof is required to show prior bad acts in a criminal case, assuming such evidence is otherwise admissible? DISCUSSION We granted review in this case to consider the level of proof trial judges should apply in determining whether to admit evidence of prior bad acts in a criminal case. We emphasize that this is a criminal case and is not intended to apply to civil cases, which present different considerations. This opinion assumes that all of the prerequisites for admission of the prior bad acts have been met and the only question remaining is with regard to the proper level of proof required for admission of those acts. At the trial court level, the defense argued for an admissibility standard similar to the standard set forth in State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967). The defense stated that “there needs to be enough evidence of the prior bad act or wrong to survive a directed verdict.” The trial judge, on the other hand, applied a standard closer to the preponderance standard enunciated in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The trial judge státed that the only amount of evidence necessary was “enough to link the defendant to what’s going on.” He did not require “substantial evidence or beyond a reasonable doubt,” or enough evidence to “get past a directed verdict.” On appeal, the court of appeals noted that although this court had never affirmatively adopted the Huddleston preponderance stan dard, we had referred to the Huddleston case in some of our opinions. State v. Terra-zas, 187 Ariz. 387, 390, 930 P.2d 464, 467 (App.1996). The court of appeals then applied Huddleston, holding that evidence of prior acts may be admitted “if the profferer produces sufficient proof to permit a fact-finder to conclude, by a preponderance of the evidence, that the prior act occurred and that the party against whom the evidence is offered committed the act.” Id. Upon consideration, we do not agree with the preponderance standard set forth in Huddleston, but hold that the standard to be applied to prior bad acts evidence is that set forth in Hughes, requiring proof by clear and convincing evidence. Evidence of prior bad acts committed by a defendant is usually inadmissible at trial. Ariz. R. Evid. 404(b); see Hughes, 102 Ariz. at 122, 426 P.2d at 390; State v. Garcia, 96 Ariz. 203, 205, 393 P.2d 668, 670 (1964). However, evidence of prior bad acts may be admissible to establish “motive, intent, absence of mistake or accident, identity and common scheme or plan.” Hughes, 102 Ariz. at 122, 426 P.2d at 390; Ariz. R. Evid. 404(b). The issue presented in this case is by what standard these prior bad acts must be proved to be admissible against the defendant in a criminal case. The first case to set forth the standard in Arizona was State v. Hughes. 102 Ariz. at 122-23, 426 P.2d at 390-91. In Hughes, this court noted that the overwhelming majority of other states required the proof to be “clear,” or “clear and convincing,” or that there must be “substantial proof’ that the other crime was committed by the defendant. Id. The court stated that, whether the standard is given by any of these phrases, “the test appears to be that the proof both as to the commission of another crime and its commission by the defendant, must be by.‘substantial evidence sufficient to take the case to a jury.’ ” Id. at 123, 426 P.2d at 391 (quoting State v. Hyde, 234 Mo. 200,136 S.W. 316, 331 (1911)). This court has subsequently cited and followed Hughes. See, e.g., State v. Valles, 162 Ariz. 1, 5, 780 P.2d 1049, 1053 (1989); State v. McGann, 132 Ariz. 296, 298, 645 P.2d 811, 813 (1982). In 1977, Arizona adopted the Federal Rules of Evidence. Even so, “we are not bound by the United States Supreme Court’s non-constitutional construction of the Federal Rules of Evidence when we construe the Arizona Rules of Evidence.” State v. Bible, 175 Ariz. 549, 580, 858 P.2d 1152, 1183 (1993). The United States Supreme Court interpreted the standard of proof required to allow evidence of prior bad acts under Federal Rules of Evidence 104(b) in Huddleston, 485 U.S. at 689-91, 108 S.Ct. at 1501-02. The standard adopted by the Supreme Court differs from the standard set forth in Hughes. Huddleston only requires a jury to be able to find the conditional fact by a preponderance of the evidence. Id. Hughes requires the judge to find the conditional fact by “substantial evidence sufficient to take the case to a jury.” 102 Ariz. at 123, 426 P.2d at 391 (quoting Hyde, 136 S.W. at 331). Because both Huddleston and Hughes have been cited by this court, a question has arisen as to which standard should now be used in Arizona. We clarify that we did not adopt the preponderance standard set forth in Huddleston. Rather, we adhere to Hughes and clarify that, for prior bad acts to be admissible in a criminal case, the profferer must prove by clear and convincing evidence that the prior bad acts were committed and that the defendant committed the acts. Although we have cited to Huddleston, we have not previously adopted the preponderance standard of Huddleston. When we last identified the issue, we declined to decide it. See State v. Schurz, 176 Ariz. 46, 51-52, 859 P.2d 156, 161-62 (1998). In a few cases where we cited to Huddleston, we cited it merely to highlight the four factors that Huddleston identifies as safety precautions embedded within the Federal Rules of Evidence. See State v. Gulbrandson, 184 Ariz. 46, 60, 906 P.2d 579, 593 (1995), cert, denied, — U.S. -, 116 S.Ct. 2558, 135 L.Ed.2d 1076 (1996); State v. Atwood, 171 Ariz. 576, 638, 832 P.2d 593, 655 (1992). The protective provisions found in the rules of evidence are: (1) rule 404(b)’s requirement that the evidence be admitted for a proper purpose; (2) the relevancy requirement of rule 402; (3) the trial court’s assessment that the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice, see rule 403; and (4) rule 105’s provision for an appropriate limiting instruction, if the party requests one. Atwood, 171 Ariz. at 638, 832 P.2d at 655. We continue to agree with these four protective provisions. They are, in essence, merely a restatement of part of the Federal Rules of Evidence. See State v. Roscoe, 184 Ariz. 484, 493, 910 P.2d 635, 644 (stating that the four factors are “[f]our rules of evidence [that] protect defendants from the admission of unfairly prejudicial other acts ____”), cert. denied, — U.S. -, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996). We also cited Huddleston in support of our holding in State v. Williams, 183 Ariz. 368, 378, 904 P.2d 437, 447 (1995). In Williams, we said that “[e]vidence whose relevancy depends on the fulfillment of a condition of fact is admissible when a jury could reasonably believe from the evidence that the condition was fulfilled.” Id. We realize that this language may have caused some ambiguity. However, in Williams, we were only addressing an issue of admissibility, not the required level of proof. Now that the issue of the level of proof is squarely presented, we hold that Hughes is still good law. We further hold that Hughes was not overruled by our adoption of the Arizona Rules of Evidence in 1977, which are patterned after the Federal Rules of Evidence. This court has continued to apply Hughes after the adoption of the Arizona Rules of Evidence. See Valles, 162 Ariz. at 5, 780 P.2d at 1053; McGann, 132 Ariz. at 298, 645 P.2d at 813; State v. Woods, 121 Ariz. 187, 190, 589 P.2d 430, 433 (1979); State ex rel LaSota v. Corcoran, 119 Ariz. 573, 576, 583 P.2d 229, 232 (1978). No conflict is present between the Rules of Evidence and the Hughes standard; the standard does not change the Rules, but merely provides a standard that must be met to admit the evidence under the Rules. Many other courts require clear and convincing proof of evidence of prior bad acts (both that the act occurred and that the defendant committed the act) before they will allow the evidence to be admitted. Johnson v. United States, 683 A.2d 1087, 1093 (D.C.App.1996) cert, denied, — U.S. -, 117 S.Ct. 1323,137 L.Ed.2d 484 (1997); Phillips v. State, 591 So.2d 987, 989 (Fla.App.1991); State v. Jackson, 625 So.2d 146, 149 (La.1993); Ayers v. State, 335 Md. 602, 645 A.2d 22, 37 (1994); State v. Spaeth, 552 N.W.2d 187, 193 (Minn.1996); State v. Wilson, 5 Neb-App. 125, 556 N.W.2d 643, 652 (1996); State v. Smith, 300 S.C. 216, 387 S.E.2d 245, 247 (1989); State v. McCary, 922 S.W.2d 511, 514 (Tenn.1996); see also State v. Cohen, 634 A.2d 380, 386 (Del.Super.1992); People v. Oaks, 169 Ill.2d 409, 215 Ill.Dec. 188, 208, 662 N.E.2d 1328, 1348 (1996), cert. denied, — U.S. -, 117 S.Ct. 191, 136 L.Ed.2d 129 (1996) (requiring less than a reasonable doubt but “more than mere suspicion”); State v. Howell, 557 N.W.2d 908, 911 (Iowa App.1996) (requiring “clear proof’); Winiarz v. State, 107 Nev. 812, 820 P.2d 1317, 1321 (1991); State v. Michaud, 135 N.H. 723, 610 A.2d 354, 356 (1992) (requiring “clear proof’ “firmly establishing”); Daniel v. State, 923 P.2d 728, 734 (Wyo.1996). However, a number of states have chosen to apply a “preponderance”-type standard. See Ex Parte Hinton, 548 So.2d 562, 567 (Ala.1989); People v. Gamer, 806 P.2d 366, 370 (Colo.1991); State v. Kay, 129 Idaho 507, 927 P.2d 897, 905 (App.1996); State v. Krause, 82 Wash.App. 688, 919 P.2d 123, 126 (1996); see also Hawks v. State, 223 Ga.App. 890, 479 S.E.2d 186, 188 (1996) (state made “sufficient showing” that defendant committed the crimes); State v. Wilson, 108 N.C.App. 117, 423 S.E.2d 473, 476 (1992) (requiring “substantial evidence”); State v. McDonald, 500 N.W.2d 243, 246 (S.D.1993) (requiring “substantial evidence”); State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516, 525 (1994). Additionally, one state applies the standard of “beyond a reasonable doubt.” See Harrell v. State, 884 S.W.2d 154, 157 (Tex.Crim.App.1994). We believe there are important reasons to apply a clear and convincing standard, rather than some lesser standard, to evidence of prior bad acts. Such evidence is quite capable of having an impact beyond its relevance to the crime charged and may influence the jury’s decision on issues other than those on which it was received, despite cautionary instructions from the judge. Note, Winship on Rough Waters: The Erosion of the Reasonable Doubt Standard, 106 Harv. L.Rev. 1093, 1103 (1990). Studies confirm that the introduction of a defendant’s prior bad acts “can easily tip the balance against the defendant.” Edward J. Imwinkelried, Uncharged Misconduct Evidence, 1-SUM Crim. Just. 6, 8 (1986). Because of the high probability of prejudice from the admission of prior bad acts, the court must ensure that the evidence against the defendant directly establishes “that the defendant took part in the collateral act, and to shield the accused from prejudicial evidence based upon ‘highly circumstantial inferences.’” Vivian M. Rodriguez, The Admissibility of Other Crimes, Wrongs or Acts Under the Intent Provision of Federal Rule of Evidence JM(B): The Weighing of Incremental Probity and Unfair Prejudice, 48 U. Miami L.Rev. 451, 457 (1993). Applying the standard of “clear and convincing evidence” establishes a “clear, recognizable standard for courts and lawyers and is consistent with the due process owed under the federal and state constitutions.” Smith v. State, 267 Ga. 363, 478 S.E.2d 379, 381 (1996) (Fletcher, P.J., concurring). To allow a lesser standard in a criminal case is to open too large a possibility of prejudice. We have recently noted the potentially prejudicial effects of prior bad acts evidence and cautioned trial courts and counsel to exercise extreme care in its use, even where it is admissible. State v. Ives, 187 Ariz. 102, 111, 927 P.2d 762, 771 (1996). Therefore, before admitting evidence of prior bad acts, trial judges must find that there is clear and convincing proof both as to the commission of the other bad act and that the defendant committed the act. In this case, library books that had been located in a truck stolen two years earlier were found on defendant’s property. We believe that this evidence is not clear and convincing proof that defendant controlled the stolen truck, knowing or having reason to know that the truck was stolen. Therefore, evidence concerning the books was improperly admitted and used. CONCLUSION The trial judge relied on prior bad act evidence in determining defendant’s guilt and stated that he probably would have reached a different conclusion if he had not received and considered prior bad act evidence. We cannot determine how the judge would have decided the case had he not received and considered improper bad act evidence. Therefore, defendant’s conviction and sentence must be set aside and the case remanded for a new trial consistent with this opinion. ZLAKET, C.J., and FELDMAN, J., concur. . Rule 404(b) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . Rule 104(b) states: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or may admit it subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. . In arriving at this conclusion, we are aware that, in federal courts, the fact that the defendant has been charged with and acquitted of the prior bad acts does not necessarily preclude their admission. Dowling v. United States, 493 U.S. 342, 348, 110 S.Ct. 668, 672, 107 L.Ed.2d 708 (1990). Assuming, without deciding, that Arizona would opt for a similar rule, it is not inconsistent with the rule we apply in this case, as the earlier acquittal could be based upon the failure of the state to have proved the prior bad acts beyond a reasonable doubt.

OPINION FELDMAN, Justice. The state filed an action seeking a declaration that it had no duty to defend or indemnify Allen Heinze, the former executive director of the Arizona Prosecuting Attorneys Advisory Council, in two cases seeking damages for sexual harassment. The state argued indemnification was not available in either case because Heinze’s acts were not in the course and scope of employment. On cross-motions for summary judgment, the trial court ruled that the state must indemnify Heinze. The court of appeals reversed, granting summary judgment in favor of the state. See State v. Schallock, 185 Ariz. 214, 914 P.2d 1306 (App.1995). We granted review to decide two issues of statewide importance: first, whether collateral estoppel applies and, second, whether Heinze’s actions were within the terms of the state’s insurance coverage. We have juris diction pursuant to Ariz. Const, art. VI, § 5(3) and Ariz.R.Civ.App. 23. FACTS AND PROCEDURAL HISTORY A. Background Colleen Schallock, a 23-year-old law student, clerked during the summer of 1988 with the Arizona Prosecuting Attorneys Advisory Council (APAAC). Bertha Saunders was a secretary at APAAC. Allen Heinze was the executive director of APAAC and answerable only to its members, a collection of county attorneys and other government officials who meet quarterly to coordinate the training of and assistance to prosecutors. Schallock and Saunders both filed lawsuits against Heinze and APAAC seeking damages for sexual harassment. Given the procedural posture of this action, we view the facts in the light most favorable to Schallock and Saunders. Over a period spanning almost a decade, Heinze often made off-color comments, vulgar gestures, and sexual jokes, and inappropriately touched the women in the office. Work conditions were such that women employees would not work late unless a male staff attorney was also there. One former APAAC staff member described Heinze’s treatment of women employees as “like his personal harem.” Between June 1984 and fall 1990, Heinze “engaged in multiple acts of sexual misconduct, including touching Saunders’ crotch, buttocks, and breasts, running his hands over her arms, shoulders and the top of her chest, placing his arms around her in an attempt to force her to kiss him, unzipping his pants, unfastening his belt, and simulating sexual intercourse from behind.” While both were attending a seminar in June 1984, Heinze entered Saunders’ hotel room, made sexual comments, and asked her to engage in sexual intercourse. He then forced himself upon Saunders, pressing against her. Similarly, Heinze at least twice touched Schallock’s breasts and put his hand down her skirt. At a conference in Sedona in the summer of 1988, Heinze propositioned Schal-lock, telling her he would help her get a job in Phoenix and at the same time placing his hand on her thigh under a table. Schallock told him that was not the way she wanted to get a job. Later in the evening in a hotel room, Heinze raped Schallock. Afterward he told her he would give her a job at any amount of money she wanted. In December 1988, when Schallock was no longer working at APAAC, Heinze insisted she have lunch with him. He assaulted her again after the lunch. When she threatened to reveal the rape, he told her he was a powerful political figure and would “take her down with him.” B. Schallock’s tort action In her complaint, Schallock alleged (1) Heinze personally and APAAC vicariously were liable for a public policy tort (sexual harassment); (2) APAAC independently was liable for damages on the theory of negligent retention; and (3) Heinze personally and APAAC independently and vicariously were liable for intentional infliction of emotional distress. Heinze believed he would be indemnified by state insurance for any judgment against him and his wife. The state, however, reserved its rights if a court subsequently determined that Heinze’s acts were outside the coverage or indemnity provided by A.R.S. § 41-621. Asserting his Fifth Amendment rights, Heinze refused to give evidence in Schallock’s tort case. After trial, the jury returned three verdicts for Schallock and against APAAC and Heinze. In the first verdict, the jury found Heinze liable for “intentional or reckless infliction of emotional distress, and/or sexual harassment in the workplace, and ... the full damages to be $1,476,535.50.” In its second verdict (form 3), the jury stated APAAC was liable “for intentional infliction of emotional distress, and/or sexual harassment in the workplace and ... the full damages to be $908,446.50.” In its third verdict (form 6), the jury found APAAC liable for “negligent hiring and full damages to be $908,446.50.” Given the jury’s answer to the accompanying interrogatory, we interpret this verdict as finding APAAC directly liable for negligent hiring, supervision, and retention of Heinze based on evidence that (1) Heinze had been dismissed from previous employment with a law enforcement agency because of charges of sexual impropriety, a fact allegedly known to one or more APAAC members when Heinze was hired; and (2) Heinze’s aberrant sexual activities with APAAC’s employees extended over almost a decade and were known or should have been known to AP-AAC’s members. The jury also wrote a note: “We want it to be clear that we have divided the liability in the following manner: Mr. Heinze $1,476,553.50 and APAAC $908,-446.50 and total liability is $2,385,000.” Before trial, the state and Schallock made a “high-low” agreement, providing a formula for a guaranteed payment to Schallock; in return, if a verdict were returned against APAAC, Schallock agreed to dismiss the action against it. Therefore, although verdicts 3 and 6 were returned on the claims presumably establishing APAAC’s direct and vicarious liability, judgment was never entered on those verdicts. Instead, complying with the settlement agreement, Fireman’s Fund, the state’s insurer, paid Schallock $725,000 in full settlement of the $908,000 verdict against APAAC. We assume the $1.4 million verdict against Heinze, which was eventually reduced to judgment, remains unpaid. C. The state’s declaratory judgment action During the course of the tort litigation, the state filed this declaratory judgment action claiming it could not indemnify Heinze for Saunders’ and Schallock’s claims because his acts were outside the course and scope of his employment. In Schallock’s trial, the judge directed a verdict on the vicarious liability issue, finding no factual support for the state’s contention that Heinze’s actions were not in the course and scope of his authority as APAAC’s director. However, because the verdict was never reduced to judgment, the order directing a verdict on course and scope was never merged in a final judgment or appealable order. Because there was no judgment entered, the state claims there is no collateral estop-pel on the issue of course and scope and the directed verdict therefore cannot be used to establish course and scope for insurance purposes under A.R.S. § 41-621(A)(3). On cross-motions for summary judgment, the trial judge in the declaratory judgment action relied on the doctrine of collateral estop-pel flowing from the directed verdict in the tort case and concluded that under § 41-621 the state was required to indemnify Heinze. D. The court of appeals’ opinion Putting aside as irrelevant the issue of APAAC’s direct liability, the court of appeals characterized the question as whether the state must indemnify a state employee against his personal liability for sexual harassment. The court of appeals held there was no collateral estoppel on the issue of course and scope because the directed verdict was never reduced to judgment. It then concluded as a matter of law that Heinze’s “tortious acts were not in the course and scope of his employment” and therefore A.R.S. § 41-621 “does not extend Heinze indemnity for his conduct.” Schallock, 185 Ariz. at 218, 914 P.2d at 1310. The court vacated the summary judgment granted in favor of Schallock and ordered the trial judge to enter judgment in favor of the state, in effect granting its motion for summary judgment. We granted review to consider only two questions: 1. Whether collateral estoppel applies where a party has fully litigated the issue to a verdict but a judgment has not been entered because of a settlement between the parties. 2. Whether Heinze’s actions were within the terms of the coverage provided by the state insurance pursuant to A.R.S. § 41-621. DISCUSSION A Collateral estoppel and the directed verdict 1. What was decided on course and scope A review of the trial court record in this action reveals ample evidence that at least some APAAC members knew of Heinze’s improper conduct. Relevant portions of the transcripts and depositions taken in the tort case were part of the declaratory judgment action record. In those depositions, APAAC staff attorneys admitted having seen Heinze fondle female employees and force them to kiss him at holiday parties, and heard him use crude and sexually explicit language. Likewise, some Council members heard Heinze use rough, sexually explicit language and had received complaints from outside attorneys about Heinze’s use of pejoratives of a sexual nature. Finally, at a conference in May 1988, a former clerk spoke with a Council member and a former APAAC employee about Heinze’s propensity to treat women employees as his harem. The clerk had also complained to the staff attorneys about the unwanted attention from Heinze, to no avail. Thus, as the court of appeals acknowledges, there was evidence in the tort case from which the judge could have found as a matter of law that Heinze’s actions were or should have been known to some Council members. Schallock, 185 Ariz. at 218, 914 P.2d at 1310. However, because the entire evidentiary record from the tort case is not before us, it is impossible to fully ascertain the grounds on which the judge based his directed verdict ruling. 2. Chaney Building and Cheimetron The first issue on which we granted review was whether the doctrine of collateral estoppel applies to the directed verdict in the tort ease and precludes the state from argu ing the issue of course and scope in the present coverage case. If so, the directed verdict ruling would have concluded the state’s indemnity obligation for Heinze’s torts under the coverage provisions of A.R.S. § 41-62(A). The court of appeals held the directed verdict did not collaterally estop the state from denying coverage in either Schallock’s or Saunders’ case. Both the court of appeals and the state relied on Chaney Bldg. Co. v. City of Tucson to support the argument that the issue was not fully litigated and therefore does not preclude further litigation. In Chaney, we held collateral estoppel applies to an issue if (1) it has been actually litigated, and (2) final judgment has been entered. 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986). Schallock and Saunders argue that numerous cases from states other than Arizona, particularly Chemetron Corp. v. Business Funds, Inc., support the proposition that the issue was fully litigated despite the lack of a final judgment. They cite Chemetron’s holding that the party against whom collateral estoppel is being used offensively, as in Saunders’ case, need only have had a “full and fair opportunity to litigate the issue in the prior case.” 682 F.2d 1149, 1189 (5th Cir.1982). Arizona case law already directly addresses this problem. See City of Glendale v. Aldabbagh, 939 P.2d 418 (Ariz.Sup.Ct.1997) (findings at preliminary injunction hearing not sufficient to permit application of collateral estoppel doctrine because case settled before final adjudication). Thus, because no judgment was entered, the verdict does not rise to the level required for collateral estop-pel. There is, of course, a fundamental difference between a verdict and a judgment, the one being the jury’s finding on the facts; and the other, the Judge’s determination of the ease upon the verdict. A verdict, before judgment has been entered thereon, has no finality, cannot be executed and cannot be pleaded in bar as res judicata or offered in evidence as collateral estoppel. State v. Williams, 131 Ariz. 211, 213, 639 P.2d 1036, 1038 (1982) (quoting Neely v. State, 210 Tenn. 52, 356 S.W.2d 401 (1962)) (citations omitted). This position is further supported by the commentators in 50 C.J.S. Judgments § 697 (“A verdict on which no judgment was entered ... is not, as a rule, conclusive on the parties in a subsequent suit.”) and 46 Am.Jur.2d Judgments § 563 (“[T]he application of the doctrine [of res judicata] may not be predicated upon a verdict ... upon which no judgment is rendered. ...”). B. Course and scope for purposes of indemnification The second issue on which we granted review was whether the state must indemnify Heinze because his actions were within the course and scope of his employment. This does not quite state the issue briefed and argued. Because Heinze was found liable in the tort action and the state has satisfied its direct liability to Schallock under the settlement agreement, the correct issue in the declaratory judgment action is whether the state must indemnify Heinze for the judgment against him. At this point, the state is evidently a self-insurer providing coverage under A.R.S. § 41-621(D), which provides for “self-insurance for losses arising out of state ... liability ... [as] prescribed by subsection A of this section.” As both the trial judge and court of appeals correctly saw it, the central issue is whether Heinze’s conduct was within the coverage extended by subsection A, which provides indemnity for an officer acting within “the course and scope of employment or authorization.” Of course, when the officer acts in that manner, the state ordinarily will be vicariously liable. See Restatement (Second) of Agency (hereinafter Restatement) § 219 et seq. The insurance statute thus understandably provides coverage for the officer in those situations in which the state itself could be held liable. 1. Interpreting course, scope, and authorization We turn, as did the court of appeals and trial court, to the nature of Heinze’s actions. On this issue, the trial judge in the tort case instructed the jury as follows: If you find that Defendant Heinze intentionally inflicted emotional distress upon Plaintiff, then you must determine if Defendant APAAC is responsible for his actions. 1. Defendant APAAC is subject to liability for the actions of Defendant Heinze committed while acting in the scope of his employment. To hold an employer liable, an employee must: a) have acted within the scope of his employment; b) be subject to the employer’s control or right of control; c) have acted in furtherance of the employer’s business. An employee’s conduct is within the scope of employment if and only if; a) it is the kind he is employed to perform; b) it occurs substantially within authorized time and space limits; and e) it is motivated, at least in part, by a purpose to serve the employer. 2. Defendant APAAC is subject to liability for the actions of Heinze acting outside the scope of his employment, if; a) Defendant APAAC intended the conduct or the consequences; or b) Defendant APAAC was negligent or reckless; or. c) Defendant Heinze purported to act or speak on behalf of Defendant APAAC and he was aided in accomplishing his misconduct by the existence of the agency relationship. (Emphasis added.) The instruction, taken almost verbatim from Restatement § 219, contains two separate theories of vicarious liability. Part 2(c) paraphrases the words of § 219(2)(d), which, as we shall see later, deals with the master’s vicarious liability for torts a servant was empowered to commit because of the master’s delegation of authority- The court of appeals noted the “state correctly asserts that ‘Heinze is provided coverage [by the statute] only if his acts were performed ... in the course and scope of employment or authorization.’ Schallock and Saunders respond that ‘so long as the tort complained of was caused incidental to the exercise of the supervisory power, Heinze must be deemed as acting within the course and scope of his employment.’ ” Schallock, 185 Ariz. at 219, 914 P.2d at 1310. In concluding that Schallock’s position was incorrect, the court of appeals relied on its prior decision in Smith v. American Express Travel Related Services Co., which held the employer was not vicariously liable for a supervisor’s harassment and sexual assaults on an employee because the supervisor’s acts were not expressly or impliedly authorized by the employer or in furtherance of its business. 179 Ariz. 131, 136, 876 P.2d 1166, 1171 (1994). The language of Smith, standing alone, would mean that an employer is never vicariously liable for an intentional tort. We believe this sweeps much too broadly. In addition, we note that in Smith the evidence did not establish the employer’s actual or constructive knowledge of the supervisor’s conduct. Thus, even if correctly decided, Smith is much different than the case before us, as can be seen from the court’s language: [N]o evidence exists from which a reasonable juror could conclude that [the employer] knew about [the supervisor’s] sexual misconduct and ratified it____ Finally, no evidence exists in this record from which a reasonable juror could conclude that [the employer] knew or should have known that [the supervisor] had created a sexually offensive working environment and thus was capable of sexual assault. Id. at 137, 876 P.2d at 1172. We do not believe Smith is applicable here and turn therefore to an analysis of agency law. 2. Law of agency — factors peculiar to supervisory sexual harassment cases In Sehallock the court of appeals stated, “[flollowing Smith and the Restatement (Second) of Agency, we hold that Heinze did not act in the course and scope of employment____ Though Heinze used his broad supervisory authority as a license for sexually predatory acts, these acts were not intended to serve APAAC but himself.” Schallock, 185 Ariz. at 218, 914 P.2d at 1310. The court then rejected Schallock’s contrary argument because it “confuses elements of independent and vicarious liability and obscures the traditional lines of course and scope.” Id. We disagree with the court of appeals on several grounds. First, given the facts of this case, we do not believe it can be said as a matter of law that Heinze was outside the course and scope of authority with regard to many or most of the incidents alleged by Saunders and Schallock. Second, the court has overlooked entirely the question of authorization: the statute grants indemnity for acts done within “course and scope or authorization.” A.R.S. § 41-621(A)(3) (emphasis added). Finally, the court has conflated principles required to establish a master’s direct liability in tort with those necessary to find vicarious liability. Before addressing these issues, it is important to note four special factual and legal considerations in cases of the present type. First, this case involves claims of a managing officer’s sexual harassment of subordinate employees over whom he had power to hire and fire, promote and demote, instruct and control. This distinguishes the case from the great majority of cases involving torts committed by a servant against either a non-employee or co-employee. Language used in such cases is sometimes inapplicable to cases involving a managing officer’s harassment of a subordinate. See David Benjamin Oppenheimer, Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L.Rev. 66, 71 (1995). Second, the law of agency governs both commercial relations and master-servant relations. We must be careful to apply only those rules that pertain to the latter situation. Id. Third, phrases such as “course and scope of employment” and “scope of authority” carry the gloss of historical meaning and policy considerations much more complex than the words themselves indicate. See Doe v. Samaritan Counseling Center, 791 P.2d 344, 349 (Alaska 1990) (quoting Fruit v. Schreiner, 502 P.2d 133, 140-41 (Alaska 1972)). Finally, in determining course and scope in a sexual harassment case, we must realize that employers never adopt resolutions authorizing sexual harassment. Nor do they grant such authority in job descriptions or employment manuals. Oppenheimer, supra, 81 Cornell L.Rev. at 84; Faragher v. City of Boca Raton, 111 F.3d 1530, 1541 (11th Cir.1997) (Barkett, J., concurring in part, dissenting in part). In the absence of written controls, a firm’s policies set the limits both on what is tolerated or permitted and on the authority given its supervisors. With these considerations in mind, we address the specifics of the present case. 3. The Restatement rule We believe the court of appeals erred in concluding the Restatement compelled them to grant summary judgment to the state. The principles expressed by the Restatement do not permit judgment for the state as a matter of law. Conduct within the scope of employment may be either of the same nature as that authorized or incidental to that authorized. Restatement § 229(1). Many factors are to be considered in determining whether conduct not expressly authorized is so incidental as to be within course and scope, including time and place of the conduct. Id. § 229(2)(b). Almost all of Heinze’s improper acts took place at AP-AAC’s office or a related location, such as a seminar site or training session, and were within or incidental to business hours or sessions. Another factor is. the previous relation between master and servant. Id. § 229(2)(c). Taking Sehallock’s case at its strongest, as we must on summary judgment, APAAC was aware for close to a decade that Heinze, the person managing its affairs, was engaged in egregious improprieties and did little or nothing to call a halt. A jury might well choose not to believe claims that these acts were unauthorized and outside the course of employment when the employer permitted them to occur and recur over a long period at its place of business and dur ing business hours. In addition to evidence of Council members’ actual knowledge, there is considerable evidence that the abusive working conditions created by Heinze were so pervasive that a jury could infer APAAC was aware of the way Heinze ran its business and by permitting such conditions to continue authorized his abusive acts. See Faragher, 111 F.3d at 1538, and cases cited. A third relevant factor is whether “the master has reason to expect that such an act will be done.” Restatement § 219(2)(b). One can hardly be surprised when sexual harassment that has occurred for years continues. A jury might well find that if APAAC was aware of the work environment Heinze created, it should have anticipated even the final sexual assaults and rapes with which Heinze is charged in these cases. Some aspects of this ease seemingly favor a finding that Heinze’s actions were not in the scope and course of employment. One is the purpose of the acts: to be within the course and scope, the act must be, at least in part, motivated by a purpose to serve the master rather than solely to serve personal motives unconnected to the master’s business. Restatement § 235. But here again, and particularly in a sexual harassment case, the act in question is not the ultimate tortious act but rather conduct related to the tort. In fondling the file clerks and offering advancement for sex, Heinze was both serving the master by running the office — a task he was explicitly authorized to do — and serving his personal desires. That his motives were mixed is of consequence, but the mixed motives cut both ways. See Restatement §§ 235 & 236. In Doe, the Alaska Supreme Court reviewed the cases and concluded that an improper sexual relationship initiated by a pastoral counselor during therapy sessions with a patient satisfied the “motivation to serve” test because it was incidental to the servant’s legitimate work activity — therapy. 791 P.2d at 347-48; see also Perez v. Van Groningen & Sons, 41 Cal.3d 962, 227 Cal.Rptr. 106, 719 P.2d 676 (Cal.1986) (while driving master’s equipment, servant gave plaintiff ride for personal reasons); Samuels v. Southern Baptist Hospital, 594 So.2d 571, 573-74 (La.App.1992) (rape of patient by nursing assistant); Oppenheimer, supra, 81 Cornell L.Rev. at 66, 82-84. The relevant purpose to be ascertained is not whether Heinze had authority to harass — no supervisor has that authority — but whether he had authority to run and was running APAAC’s business. See Restatement § 235, cmt. b. This principle has been recognized in Arizona. In State v. Pima County Adult Probation Department, several probation officers sought coverage under A.R.S. § 41-621(A)(3) against a damage claim asserted because a probationer under the department’s supervision had been allowed contact with juveniles, in direct violation of the superior court’s order. The state argued that because the probation officers intentionally violated the court’s express instructions, they were not acting within the course and scope of employment and thus were not entitled to coverage. The court of appeals rejected that claim, holding that in supervising the probationer, the officers acted in the course and scope of their employment because the act of supervision was their employer’s business. The fact that they violated express instructions was an element to be considered but not conclusive on the question of course and scope. 147 Ariz. 146, 149, 708 P.2d 1337, 1340 (App. 1985). So long as the officers were subject to the department’s control or right of control and were in general acting in furtherance of the department’s business, they were within the course and scope. Id. at 149-50, 708 P.2d at 1340-41. See Faragher, 111 F.3d at 1536 (If “the act was the agent’s way of accomplishing some authorized purpose, then the master cannot avoid liability even if he has given specific, detailed and emphatic instructions to the contrary.”); W. Page Kee- ton, et al„ Prosser & Keeton on the Law of Torts § 70, at 507 (5th ed.1984) (describing “tendency” in later cases to find course and scope when the “employment has provided a peculiar opportunity and even incentive” for servant’s intentional tort). Other factors to be considered include the seriously criminal nature of the acts and extent of departure from normal methods of operation. See Restatement § 229(2)(i) & (j). But acts may be found in the scope even if “forbidden or done in a forbidden manner,” and even if consciously criminal or tortious. Restatement §§ 230 and 231. The acts complained of here were part of or incidental to Heinze’s employment by APAAC, even though done to satisfy Heinze’s aberrant desires. Heinze was in complete charge of APAAC’s day-to-day operation. Conduct done “with no intention to perform it as part of a service for which the servant is employed” is ordinarily outside the scope. Restatement § 235. Heinze’s conduct, however, was incidental to his position and authority as APAAC’s executive director. We therefore conclude that the court of appeals’ reliance on the Restatement of Agency to support summary judgment on the issue of course and scope was misplaced. Under Restatement principles, the Restatement factors that apply to the facts of this case create a jury question. But we do not rely on the Restatement alone. We believe analysis of case law dealing with similar situations leads to the same conclusion. 4. Federal cases on course and scope in sexual harassment cases In Smith, the court of appeals discounted the federal cases, reasoning that liability under cases dealing with Title VII “is much broader than common law tort liability.” Smith, 179 Ariz. at 135, 876 P.2d at 1170. We again disagree with Smith, believing the United States Supreme Court’s decision in Mentor Savings Bank v. Vinson instructed federal courts to take agency law as a guide in determining employer liability for a supervisor’s acts of sexual harassment when deciding a Title VII case. 477 U.S. 57, 71-72,106 5. Ct. 2399, 2408, 91 L.Ed.2d 49 (1986). Chief Justice Rehnquist, writing for the Court, proclaimed no unique rule for determining vicarious liability in cases dealing with a supervisor’s sexual harassment. Instead, the Court rejected the administrative agency’s view that an employer is absolutely or strictly liable for a supervisor’s actions and directed the district courts as follows: Congress wanted courts to look to agency principles for guidance in this area. While such common law principles may not be transferrable in all their particulars to Title VII, Congress’ decision to define employer to include any “agent” of an employer, ... surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the court of appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency § 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Id. at 72,106 S.Ct. at 2408. Following Meritor, most if not all circuit court decisions dealing with Title VII sexual harassment actions have applied the common law of agency to determine the employer’s vicarious liability. See Katherine Philippakis, Comment, When Employers Should be Liable for Supervisory Personnel: Applying Agency Principles to Hostile-Environment Sexual Harassment Cases, 28 Ariz. St. L.J. 1275, 1279 (1997). For that reason, we believe post-Meritor Title VII cases apply common-law agency principles and should be considered. The federal cases cover both quid pro quo and hostile work environment situations. A quid pro quo claim is one in which the offender conditions job benefits or advancements on the employee’s performance of sexual favors, while a hostile-environment claim is one in which the offender creates a sexually “hostile or offensive working environment.” Id. at 1276; Meritor, 477 U.S. at 65, 106 S.Ct. at 2404. Given these definitions, both types of claims are raised by the facts here. In quid pro quo cases, applying traditional • agency principles, many courts have held an employer liable because a quid pro quo harasser is able to grant such job benefits or detriments only because he has actual or apparent authority to do so delegated to him by his employer____ Under traditional agency principles the exercise of such actual or apparent authority gives rise to liability on the part of the employer under a theory of respondeat superior. See Restatement (Second) of Agency § 219(2)(d) (1958). Nichols v. Frank, 42 F.3d 503, 514 (9th Cir. 1994) (collecting cases). Some hostile environment eases have found a jury question with regard to vicarious liability. In a case similar to ours, the plaintiff had both hostile environment and quid pro quo claims. The harasser was not only her immediate supervisor but the corporate vice president in charge of managing the hotel property where the plaintiff worked. He had full authority to determine employee benefits and to hire, fire, promote, and discipline the employees. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1348 (4th Cir. 1995) . The circuit court affirmed judgment against the employer, stating that it was following Meritor and applying the common law of agency in determining the question of vicarious liability. Id. at 1350. In applying those “principles in the context of this case,” the court stated: [W]hether an employee’s acts are within the scope of his employment requires an examination of when the act took place, where it took place, and whether it was foreseeable. See generally Restatement (Second) of Agency §§ 210 to 245 (1958). (Emphasis in original.) An employer may be liable for an employee’s acts even if the employee’s motive is not to benefit the employer, to advance his self interest rather than the interest of his employer.... A forbidden or even consciously criminal or tortious act may still be within the scope of employment____ Indeed an employer may be liable for its employee’s unauthorized use of force if such use was foreseeable in view of the employee’s duties____ The test of the liability of the employer for the tortious act of the employee is not whether the tortious act itself is a transaction within the ordinary course of the business of the employer or within the scope of the employee’s authority, but whether the service itself in which the tor-tious act was done was within the ordinary course of such business or within the scope of such authority____ Here Bachelor’s assaults took place in the work place, during working hours, on an employee whom he had authority to hire, fire, promote, and discipline. There is no question that such sexual assaults were foreseeable;____ Thus, under common law agency principles Bachelor was acting within the scope of his employment with Cavalier and so Cavalier is liable for Bachelor’s assaults on Martin. To be sure, ... Bachelor’s assaults on Martin were “outrageous and violative of his employer’s rules.” Nonetheless, those assaults arose out of Bachelor’s management of the hotel,____ At the very least, because Bachelor’s “willful and malicious acts were committed while he was performing his employment duties” there is here ... sufficient evidence to present “a jury issue” as to whether Bachelor was acting “within the scope of his employment” with Cavalier. Id. at 1351-52 (citations omitted, emphasis added) (quoting Commercial Business Systems, Inc. v. BellSouth Services, Inc., 249 Va. 39, 453 S.E.2d 261, 266 (Va.1995)); see also Fields v. Sanders, 29 Cal.2d 834, 180 P.2d 684 (1947); Philappakis, supra, 28 Ariz. State L.J. at 1288 (any other interpretation of motive to serve the employer would be unduly constrained and antithetical to the Restatement position). Many other federal cases have reached the same conclusion on more or less the same analysis, applying the Restatement and common law agency eases in both quid pro quo and hostile environment cases. See, e.g., Kauffman v. Allied Signal, Inc., 970 F.2d 178, 183-84 (6th Cir.1992) (court should look at “when the act took place, where it took place, and whether it was foreseeable” to determine whether supervisor’s harassment occurred within course and scope of employment). Kauffman holds the employer is relieved of liability if the company learns of the hostile work environment created by its supervisor and takes prompt remedial action. Id. at 184. This part of the decision has been cogently criticized on the ground that prompt remedial action could insulate against direct liability for negligence and against punitive damage claims, but not against vicarious liability. Oppenheimer, supra, 81 Cornell L.Rev. at 132. We need not concern ourselves with this issue because the present record contains no evidence of remedial action prior to Schallock’s filing her damage action. Some federal cases have rejected employer course and scope liability absent evidence that the employer also knew or should have known of the hostile work environment created by the supervisor. See, e.g., Nichols, 42 F.3d at 508; Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir.1982). These cases have also been cogently criticized as confusing elements necessary for a finding of direct liability with those required for vicarious, course and scope responsibility. See Philli-pakis, supra, 28 Ariz. State L.J. at 1285; Oppenheimer, supra, 81 Cornell L.Rev. at 133-35 (citing cases). Again, though the criticism seems logical, we need not solve this problem because the partial record of the tort case indicates quite clearly that APAAC had either actual knowledge of the hostile work environment or at worst constructive knowledge because the conditions were so widespread and prevalent. See Faragher, 111 F.3d at 1538; E.E.O.C. v. Mitsubishi Motor Mfg. of Am. Inc., 102 F.3d 869, 870 (7th Cir.1996) (where hostile work environment is pervasive, employer’s knowledge may be imputed or inferred). Notwithstanding the confusion and debate among the federal circuits, we conclude AP-AAC is not entitled to summary judgment on the course and scope issue in Schallock’s and Saunders’ hostile environment claims. The court of appeals thus erred in instructing the trial court to enter judgment for the state. C. Authorization We believe the court of appeals also erred in overlooking the word “authorization” as used in AR.S. § 41-621(A)(3), which provides coverage for officers acting in “course and scope of employment or authorization.” (Emphasis added.) We note first that authorization must mean something other than the idea that the tortious act was authorized. If the act itself was authorized, then the conduct would have been in the course and scope. We believe, therefore, that authorization as used in the statute applies to vicarious liability found outside course and scope of employment. That liability is described in Restatement § 219(2) and may be imposed because of the authority or power the master has given a servant, especially one in a supervisorial position. Under common-law principles of agency a master is vicariously liable outside of course and scope of employment for torts committed by a servant when the servant purports to “act or speak on behalf of’ the master and “was aided in accomplishing the tort by the existence of the agency relationship.” Restatement § 219(2)(d). Heinze spoke and acted for APAAC. It put him in a position to control and run its business, evidently investing him with power to run its office and control its employees. It did this arguably knowing or having reason to know of his aberrant propensities. It kept him in that position for nearly a decade, again arguably knowing the manner in which he conducted himself. From this record, it appears APAAC did not adopt either a formal policy against sexual harassment or a grievance procedure for employees. As a result, complaints about sexually harassing incidents presumably were to be resolved by Heinze, the perpetrator. Given these factors, we cannot say as a matter of law that the master has no vicarious liability for acts outside the scope of employment. The com ment to Restatement § 219 puts it in the following words: This Subsection enumerates the situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment____ Clause (d) includes primarily situations in which the principal’s liability is based upon conduct which is within the apparent authority of a servant, as where one purports to speak for his employer in defaming another or interfering with another’s business. Apparent authority may also be the basis of an action of deceit, and even physical harm. In other situations, the servant may be able to cause harm because of his position as agent, as where a telegraph operator sends false messages purporting to come from third persons. Again the manager of a store operated by him for an undisclosed principal is enabled to cheat the customers because of his position. The enumeration of such situations is not exhaustive, and is intended only to indicate the area within which a master may be subjected to liability for acts of his servants not in scope of employment. Restatement § 219(2), cmt. e (citations omitted) (emphasis added). We believe Restatement § 219(2)(d) deals with a supervisor’s authority and that employer liability in factual situations such as this is well recognized both in agency case law and in Title VII cases. See, e.g., Faragher, 111 F.3d at 1536; see also Oppenheimer, supra, 81 Cornell L. Rev. at 88-90 and nn. 110-113 (analyzing both common law and Title VII cases). Oppenheimer concludes that such “liability is properly viewed as vicarious, not direct, since it [may be] imposed without considering the fault of the employer.” Id. at 88. Many of the federal cases have found vicarious liability properly imposed under Restatement § 219(2)(d) under facts similar to those before us. See, e.g., Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1445-46 (10th Cir.1997); Karibian v. Columbia University, 14 F.3d 773, 780 (2d Cir.1994). Application of the authority concept to su-pervisorial sexual harassment cases has been described in the following manner: Moreover, under common law agency principles an employer is also liable for an employee’s wrongful acts, even if those acts are not committed within the actual scope of his employment, if the employee uses his apparent authority to accomplish the wrongful acts and so is acting within the “apparent scope” of his employment. Martin, 48 F.3d at 1352 (citations omitted) (emphasis in original). Under the common law of agency a supervisor’s use of the actual or apparent authority of his position — power conferred by the employer — “gives rise to [the employer’s] liability under a theory of respondeat superior.” Nichols, 42 F.3d at 514, citing Restatement § 219(2)(d) and cases; see also Harrison, 112 F.3d at 1450. Heinze’s sexually abusive acts were thus within his authorization if it is found that APAAC gave Heinze the power and authority with which to create and maintain a sexually abusive work environment or to establish a quid pro quo position over APAAC employees. We believe the record in this case, including the authority given Heinze, his methods of operating the office, APAAC’s tolerance of those methods, and the lack or presence of sexual harassment policies or grievance procedures are factors that prohibit summary judgment in favor of the state on this issue also. See Harrison, 112 F.3d at 1444. CONCLUSION The trial judge erred in granting summary judgment on the basis of collateral estoppel. That doctrine is inapplicable to this case, in which no judgment was entered against the party sought to be estopped. Accordingly, we vacate the trial court’s judgment in favor of Sehallock. The court of appeals erred in directing judgment in favor of the state. The present record does not establish as a matter of law that Heinze’s acts were not within the course and scope or authorization of his employment. Accordingly, we vacate the court of appeals’ opinion. Because this court did not accept review of all the issues raised on appeal, we remand the case to the court of appeals for further proceedings consistent with this opinion. JONES, V.C.J., MOELLER and MARTONE, JJ., and JOSEPH M. LIVERMORE, Judge (Retired), concur. THOMAS A. ZLAKET, C.J., did not participate in the determination of this matter; pursuant to article VI, § 3 of the Arizona Constitution, the Honorable JOSEPH M. LIVERMORE, Judge (Retired) of the Arizona Court of Appeals, Division Two, was appointed to sit in his stead. . See A.R.S. § 41-1830 et seq., creating and defining the functions of APAAC. Title 41 of the Arizona Revised Statutes covers "State Government.” APAAC was created pursuant to § 1830 of the title. APAAC is a council consisting of county attorneys, the Attorney General or his designee, one of the state’s two law school deans, the chief prosecutor for a city larger than 250,-000 people, one full-time prosecutor appointed by the Governor to represent smaller cities, and the Chief Justice of the Supreme Court or his designee. The Council meets quarterly to coordinate the state's prosecutors, formulate rules for prosecution, and assist prosecutors by providing various research and training programs. The Director of the Administrative Office of the Courts is the Chief Justice's present designee to APAAC. . § 41-621 Purchase of insurance; coverage; limitations; exclusions; definition A. The department of administration shall obtain insurance against loss, to the extent it is determined necessary and in the best interests of the state as provided in subsection E of this section, on the following: 3. The state and its departments, agencies, boards and commissions and all officers, agents and employees thereof ... against liability for acts or omissions of any nature while acting in authorized, governmental or proprietary capacities and in the course and scope of employment or authorization except as prescribed by this chapter. s}; sfc * * sjc Jk D. The department of administration may determine, in the best interests of the state, that state self-insurance is necessary or desirable and, if that decision is made, shall provide for state self-insurance for losses arising out of state property, liability or worker’s compensation claims prescribed by subsection A of this section. If the department of administration provides state self-insurance, such coverage shall be excess over any other valid and collectible insurance. (Emphasis added.) The department evidently obtained insurance from Fireman’s Fund under subsection (A), but the policy was apparently exhausted and the state became a self-insurer under subsection (D). . The jury was given various verdict forms and interrogatories to answer. The verdict form used depended on the answers to the interrogatories. The verdicts returned by the jury were: VERDICT FORM 1: Jury to use this form if the jurors answered either or both of the following questions in the affirmative. The jurors answered both affirmatively. 1. Was Heinze liable to Schallock for intentional or reckless infliction of emotional distress? 2. Was Heinze liable to Schallock for sexual harassment in the work place? VERDICT: Jury found for Schallock and against Heinze for intentional or reckless infliction of emotional distress, and/or sexual harassment in the workplace. Full damages: $1,476,-553.50 (handwritten in is "total $2,389,000”). VERDICT FORM 3: Jury to use this form if the jurors answered either of the following questions in the affirmative. The jurors answered both affirmatively. 1. Was APAAC liable for intentional or reckless infliction of emotional distress? 2. Was APAAC liable for sexual harassment in the work place? VERDICT: Jury found for Schallock and against APAAC for intentional infliction of emotional distress, and/or sexual harassment in the workplace. Full damages: $908,446.50. VERDICT FORM 6: Jury to use this form if the jurors answered the following question in the affirmative. The jurors answered affirmatively. 1. Was APAAC at fault for negligently hiring, supervising, and retaining Heinze? VERDICT: Jury found for Schallock and against APAAC on the negligent hiring, retention, and supervision claim. Full damages: $908,-446.50. . But see Restatement § 213, cmt. h, “In a given case the Employer may be liable both on the ground that he was personally negligent and because the servant’s conduct was within the scope of employment.” . This is not a new principle. Judge Barkett’s opinion relies on Justice Story’s 1857 Commentar-íes on the Law of Agency: [A principal] is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances, or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts, or disapproved of them. 111 F.3d at 1541 (quoting Joseph Story, Commentaries on the Law of Agency § 452, at 536-37 (5th ed. 1857)). . We use "Title VII" to describe the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17 (1988).

OPINION NOYES, Judge. Plaintiff filed an untimely notice of appeal to superior court from an arbitration award in favor of Defendants. Defendants moved to strike the notice of appeal and Plaintiff moved for leave to file a delayed appeal on grounds of excusable neglect. The trial court denied Defendants’ motion and granted Plaintiff’s motion. Defendants appealed to this Court. We hold that “excusable neglect” is the standard to meet when seeking a delayed appeal from compulsory arbitration to superior court. We also hold that the court abused its discretion in finding that the secretarial error in this case qualified as excusable neglect. I. PlaintiffAppellee Ilia Jarostchuk (“Plaintiff”) loaned $7,500 to a corporation whose president, Defendant/Appellant Michael W. Roe, signed the promissory note. When the loan was not repaid, Plaintiff sued Roe and his wife (“Defendants”), and others not relevant here. Because the claim was for less than $50,000, it was subject to compulsory arbitration as provided by Arizona Revised Statutes Annotated (“AR.S.”) section 12-133 (1992); Rule 1, Uniform Rules of Procedure for Arbitration (“Arbitration Rule”); and Rule 3.10, Local Rules of Practice of Marico-pa County Superior Court. The case was arbitrated on claims of fraud and racketeering. The arbitrator found for Defendants and filed the award on Friday, September 22, 1995, at 7:26 p.m. Counsel received a copy before 5:00 p.m. that day. Arbitration Rule 7(a) provides that a party “may appeal from the award by filing a notice of appeal with the Clerk of the Superior Court within twenty days after the filing of the award.” Arbitration Rule 5(c) provides that, “Upon expiration of the time for appeal and if no appeal has been taken, the award shall become final and binding as a judgment of the Superior Court, and the Clerk of the Superior Court shall enter the award in the judgment docket.” The time for appeal to superior court expired on October 12, 1995. Plaintiff filed his notice of appeal on October 16,1995. After the trial court denied Defendants’ motion to strike and granted Plaintiffs request for delayed appeal, Defendants timely appealed to this Court. We have jurisdiction pursuant to A.R.S. sections 12-2101(0 (1994) and 12-2101.01(A)(4) and (5) (1994). II. An order granting or denying relief under Rule 60(c), Arizona Rules of Civil Procedure, is reviewed using the abuse of discretion standard. City of Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073,1078 (1985) (citations omitted). Defendants argue that the court cannot grant a delayed appeal pursuant to Rule 60(c) unless the moving party establishes lack of knowledge that judgment was entered, together with extraordinary, unique, or compelling circumstances. Defendants cite cases which so hold: Park v. Strick, 137 Ariz. 100, 669 P.2d 78 (1983), and Geyler. We distinguish these cases because they involve delayed appeals from superior court to the court of appeals. The court in Geyler advised that, “In considering whether to allow a delayed appeal, the trial judge should, therefore, remember that the party seeking relief has had his day in court since the case has already been litigated on its merits.” 144 Ariz. at 328, 697 P.2d at 1078. A party to an arbitration proceeding, however, is in a different position; that party can still demand “his day in court.” Arizona Revised Statutes Annotated section 12-133(H) (Supp.1996) provides that, “Any party to the arbitration proceeding may appeal from the arbitration award to the court in which the award is entered by filing, within the time limited by rule of court, a demand for trial de novo on law and fact.” Similarly, Arbitration Rule 7(c) provides that, “All appeals shall be de novo on law and facts.” An appeal from compulsory arbitration is therefore not a request for review; it is a demand for trial de novo. We conclude that the Strick-Geyler test for delayed appeal to the court of appeals is too harsh a test for delayed appeal from compulsory arbitration to superior court. The Geyler court noted that, given the strong interest in the finality of judgments in cases which have been litigated on the merits, Rule 60(c) relief for a delayed appeal would require a stronger showing than required for relief from a default judgment. Id. at 328, 697 P.2d at 1078. Applying that same reasoning here, we conclude that a judgment entered because a party did not file a timely appeal from compulsory arbitration is like a judgment entered because a party did not file a timely answer to a complaint; each results in loss of a party’s right to a trial on the merits and each should require the same showing for relief. One such showing is the “excusable neglect” test of Rule 60(c)(1). Neglect is excusable if it “might be the act of a reasonably prudent person under the same circumstances.” Geyler, 144 Ariz. at 331, 697 P.2d at 1081 (citing Coconino Pulp v. Marvin, 83 Ariz. 117, 120, 317 P.2d 550, 552 (1957)). In this case, Plaintiffs secretary accepted responsibility for the late-filed notice of appeal. Her affidavit avows that she had been a full-time employee of Plaintiffs counsel for less than two months at the time, that she had worked part-time for him for the previous nineteen months, and that she had no other legal experience. Counsel gave her the arbitration award and asked her to compute and calendar the twenty-day deadline for appeal. The secretary’s affidavit states that, “In calculating such date, I inadvertently did not include Saturday, September 23, 1995 and Sunday, September 24, 1995 on the belief that the first day of the period so computed should not be included if it is a ‘Saturday, Sunday, or legal holiday.’ ” (This error caused the twentieth day to fall on October 14, a Saturday. If this error is excused, the notice of appeal was timely filed on October 16, a Monday.) The last part of the secretary’s affidavit refers to Rule 6(a), Arizona Rules of Civil Procedure, which provides: In computing any period of time prescribed or allowed by these rules ... the day of the act, event or default from which the designated period of time begins to run shall not be included. When the period of time prescribed or allowed ... is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall not be included in the computation____ The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. The trial court gave no reasons for finding excusable neglect, but it must have accepted the secretary’s affidavit, for that was the only excuse offered by Plaintiff. We conclude that the secretary’s affidavit is insufficient to show excusable neglect. First of all, the miscalculation was not inadvertent, as her affidavit states; it was intentional in the sense that she intended to exclude the first Saturday and Sunday. She did this because she believed that these two days did not count. Because such belief could only have been based on Rule 6(a), the affiant admits knowing about the rule and computing time according to it. Because the affiant knew that the applicable time period was twenty days, the source of her erroneous belief could only have been the last sentence of Rule 6(a). This sentence does not come close to saying that the first Saturday and Sunday are excluded; it says that the last day is included unless it is a Saturday or Sunday. We will not belabor the point, but we conclude that the court must say “No” to the notion that a reasonably prudent legal secretary would read Rule 6(a) to exclude the first Saturday and Sunday from computation of a twenty-day period. Although the only excuse offered by Plaintiff’s attorney was that his secretary’s neglect was excusable, we appreciate that the neglect ultimately in question here is that of the attorney who relied on the secretary. In Coconino Pulp v. Marvin, an attorney failed to file a timely answer to a complaint, resulting in default judgment against his client. 83 Ariz. 117, 119, 317 P.2d 550, 551. The attorney blamed the secretary who neglected to remind him when the answer was due. Id. The court found that, “absent some showing of inefficiency or undependability of the secretary, the attorneys should be justified in assuming that they will be properly informed concerning the status of their cases.” Id. at 121, 317 P.2d at 552. The court held that, “If through some inadvertent clerical error the lawyer is not informed, his conduct resulting therefrom we believe is excusable.” Id. What distinguishes this case from Coconi-no Pulp is that, here, the secretarial error was neither inadvertent nor clerical; it was intentional action on a matter requiring some legal competence. When an attorney entrusts such matters to a secretary, it is ordinarily not enough, when something goes wrong, for the attorney to later say, “My secretary was inexperienced.” If that is all it takes to show excusable neglect, filing deadlines are open-ended. On a related matter, we agree with Defendants that Rule 6(b), Arizona Rules of Civil Procedure, cannot be interpreted to extend the twenty-day appeal deadline provided by the arbitration statute, A.R.S. section 12-133. See Varga v. Hebern, 116 Ariz. 539, 541, 570 P.2d 226, 228 (App.1977) (holding that Rule 6(b) “cannot be construed to nullify the specific provisions of the statute”). III. Defendants request an award of attorneys’ fees pursuant to A.R.S. section 12-133(1) and Arbitration Rule 7(f). Arizona Revised Statutes Annotated section 12-133(1) (Supp.1996) provides, in pertinent part: If the judgment on trial de novo is not at least ten per cent more favorable than the monetary relief or other type of relief granted by the arbitration award the court shall order that ... the appellant pay ... the following costs and fees, unless the court finds on motion that the imposition of the costs and fees would create such a substantial economic hardship as not to be in the interest of justice: 1. To the county, the compensation actually paid to the arbitrator. 2. To the appellee, those costs taxable in any civil action and reasonable attorney fees as determined by the trial judge for services necessitated by the appeal. 3. Reasonable expert witness fees that are incurred by the appellee in connection with the appeal. The wording of Arbitration Rule 7(f) is substantially the same. The clear intent of the statute and rule is to make an appellant pay for an unsuccessful appeal from arbitration to superior court. We therefore conclude that “judgment upon trial de novo” should be interpreted broadly, to apply to all trial court judgments following appeal from arbitration, including judgments resulting from something other than actual trial. We hold that A.R.S. section 12-133(1) and Rule 7(f) apply to Plaintiffs appeal to superior court. Because the judgment resulting from Plaintiffs appeal to superior court is not ten percent more favorable to Plaintiff than the relief granted by the arbitration award, on remand Defendants can apply for an award of costs and attorneys’ fees incurred in superior court. Defendants’ request for attorneys’ fees on appeal is denied. Neither Rule 7(f) nor A.R.S. section 12-133(1) expressly provides for an award of attorneys’ fees in the court of appeals. Because the rule and statute provide that fees “shall” be ordered on appeal to superior court, they are mandates. Because these mandates do not expressly include appeals from, as well as appeals to, superior court, we presume that the drafters intended that these mandates apply only in superior court and that other statutes and rules apply in the court of appeals. We therefore conclude that neither Rule 7(f) nor A.R.S. section 12-133(1) applies in the court of appeals. Defendants also base their request for attorneys’ fees in the court of appeals on A.R.S. section 12-341.01(A) (1992), which provides for a discretionary award in cases arising out of contract. Assuming that the statute applies in this tort case, we find it proper for the parties to pay their own attorneys’ fees here. The trial court found for Plaintiff and the appeal presented novel and significant questions of law. Defendants are entitled to costs on appeal pursuant to A.R.S. section 12-342 (1992). Reversed and remanded with directions to grant Defendants’ motion to strike Plaintiffs notice of appeal. GERBER and EHRLICH, JJ., concur.

OPINION DRUKE, Chief Judge. Robert and Janice Barnes, doing business as Bob Barnes Farms (“the farm”), sued Sandoz Crop Protection Corporation to recover for damage to its cotton crop allegedly caused by use of Zorial, an herbicide Sandoz manufactured. The farm alleged claims of strict products liability, negligence, and breaches of various express and implied warranties. Sandoz moved for summary judgment, arguing that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136 through 136y, preempted the negligence and warranty claims. Sandoz also argued that the strict liability claim failed for lack of evidence. The trial court granted summary judgment, ruling that FI-FRA preempted all the claims. This appeal follows the trial court’s denial of the farm’s motion for reconsideration. We affirm. In its products liability claim, the farm alleged that the Zorial it used “was defective and unreasonably dangerous in that it destroyed [the] entire crop.” While the trial court granted summary judgment on preemption grounds, we need not decide the correctness of its decision because summary judgment can be affirmed for a different reason. See Gary Outdoor Advertising Co. v. Sun Lodge, Inc., 133 Ariz. 240, 650 P.2d 1222 (1982) (correct result by trial court will be affirmed even if based on different reason). In Gosewisch v. American Honda Motor Co., Inc., our supreme court set forth the following requirements for a strict products liability claim: [T]he plaintiff must show that the product is in a defective condition and unreasonably dangerous, the defective condition existed at the time the product left the defendant’s control, and the defective condition is the proximate cause of the plaintiffs injury. Three types of defects can result in an unreasonably dangerous product: (1) design defects, (2) manufacturing defects, and (3) informational defects encompassing instructions and warnings. 153 Ariz. 400, 403, 737 P.2d 376, 379 (1987) (citations omitted). The farm has pled design defect. To avoid summary judgment, therefore, the farm was required to present sufficient evidence to show that Zorial was defective, that the defect was unreasonably dangerous, and that the farm’s injuries were proximately caused by the defect. Orme School v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990) (trial court must grant summary judgment “where the proponent presents no evidence from which a reasonable jury could find, directly or by inference, that the possibilities favored the proponent”). The farm retained two experts, Dr. John Chemicky and Samuel Stedman, who both testified at deposition that Zorial should not be used on cotton grown in Arizona. Neither expert stated, however, that Zorial was so defectively designed that it should not be used on cotton grown anywhere. Indeed, Stedman agreed that Zorial should not be removed from the market. “[I]t’s a product that we need to continue, continue working with,” he said, “but we need to make sure the recommendation is correct.” Dr. Cher-nicky’s testimony contained the followed colloquies: Q. Is it your opinion that Zorial should not be used at all in Arizona cotton? [Dr. Chernieky]: Correct. Q. And on what do you base that opinion? A Its potential to injure cotton. Q. Do you know that the amount of Zorial in 1994 was double the amount used in Arizona cotton in ’93? A I wasn’t aware of that. Q. Would that be important to you? A No. Q. So, in your opinion, Zorial should not be used at all in Arizona on cotton? A. It’s my opinion. ****** Q. On what do you base this opinion that Zorial has no place in Arizona cotton? A Basically, on the fact that — several things. One is, it’s not efficacious at the rates that it’s used. Though you increase the margin of safety by reducing the rates, you drop tremendously the amount of effi cacy achieved with the material. Therefore, you’re spending expensive money on [a] product that really doesn’t do what the grower buys it for, and that’s to control nutsedge. * * 4; * * * Q. ... Do you have any other specific criticism of the University of Arizona’s research data on Zorial? A No, I wouldn’t say so. ‡ ^ ^ ^ Q. Going back to your opinions in this case, if I understand them, and I want to make sure I’ve got them all, that you do not believe Zorial should be used in Arizona cotton because you don’t believe it to be efficacious? Correct? A. Correct. Q. And that you saw some personal observations of bad results with Zorial in’93. A. Correct. On this record, we find the farm established, at most, that Zorial was not “efficacious.” A product that does not produce a desired effect, that is, does not work as advertised, is not necessarily designed defectively or unreasonably dangerous. The farm faded to show that Zorial was either. Moreover, we note that the evidence of Zorial’s inefficacy is itself inconsistent. Dr. Chernicky acknowledged that some Arizona cotton growers obtained favorable results with Zorial, though he believes they did so by disregarding the manufacturer’s instructions and “working on their own to figure the safest way to use it.” In sum, the farm’s evidence of strict products liability “ha[s] so little probative value, given the quantum of evidence required, that reasonable people could not agree with the [farm’s] conclusion” that Zorial was defectively designed. Orme School, 166 Ariz. at 309, 802 P.2d at 1008. Accordingly, summary judgment was properly granted on the farm’s design defect claim. The farm’s remaining claims are contingent to varying degrees on its design defect claim. While we have concluded that the evidence is insufficient to withstand Sandoz’s motion for summary judgment on that claim, we agree with the trial court that FIFRA preempts these remaining claims. FIFRA is a comprehensive federal statute regulating the use, sale, and labeling of herbicides. The parties do not dispute that Zorial is an herbicide within the meaning of FIFRA and that its label was approved by the Environmental Protection Agency under FIFRA’s statutory scheme. FIFRA preempts “‘any state common law cause of action that rests on an alleged failure to warn or convey information about a product through its label.’ ” Burt v. Fumigation Service and Supply, Inc., 926 F.Supp. 624, 630 (W.D.Mich.1996), quoting In re DuPont-Benlate Litigation, 859 F.Supp. 619, 622 (D.Puerto Rico 1994). The farm’s negligence claim alleged that Sandoz owed “a duty of reasonable care in all aspects of the design, testing, manufacturing, promotion, distribution and supply of’ Zorial “and to ensure that the consuming public, including [the farm], obtained accurate information regarding both the safety and characteristics of the product.” The claim further alleged that Sandoz breached these duties by “advis[ing]” it to treat the cotton crop with Zorial, “knowing that the [c]rop would likely suffer than not from its use.” The farm contends that such advice gave rise to a claim for negligent misrepresentation, but there is no evidence that San-doz advised the farm in any way inconsistent with the instructions on the Zorial label. Because this claim relies on the contention that the information Sandoz supplied about the herbicide was inadequate, i.e., Sandoz failed to warn that Zorial would in fact, harm, not help, the cotton crop, it “‘necessarily challenge^] the adequacy of the warnings provided on the product’s labeling or packaging,”’ and is therefore preempted. Taylor AG Industries v. Pure-Gro, 54 F.3d 555 (9th Cir.), quoting Papas v. Upjohn Co., 985 F.2d 516, 519 (11th Cir.) (“Papas II”), cert, denied, 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993). The third claim, based on A.R.S. § 47-2315, alleged that Sandoz breached the implied warranty for fitness because it “informed” the farm that Zorial would meet its “herbicide need.” In Taylor AG Industries, the Ninth Circuit Court of Appeals affirmed the district court’s ruling that FIFRA preempted the Arizona cotton farmers’ state law claims against Pure-Gro, the manufac turer of two defoliant chemicals, holding, in pertinent part, that FIFRA preempted implied warranty claims, including those based on § 47-2315, “because the asserted implied warranties operate by state law to impose labeling requirements indirectly.” 54 F.3d at 563. We adopt this reasoning here. If San-doz, like Pure-Gro, “were to be liable for breach of an implied warranty of fitness for a particular purpose, that liability would be imposed by a state law requirement rather than by any voluntary action on the part of [Sandoz]. Therefore, an implied warranty of fitness for a particular purpose also constitutes a state law requirement and is preempted by FIFRA.” Id. (citation omitted). Moreover, “to the extent the implied warranty claim depends upon inadequacies in labeling or packaging, FIFRA section 136v pre-empts the claim.” Papas II, 985 F.2d at 520. The farm’s final claim alleged that Sandoz “expressly or impliedly warranted” that Zorial “was of merchantable quality when in fact it was not, that it was fit for customary use when in fact it was not, and that it was safe to cotton when applied by [Sandoz’s] instructions when it was not and otherwise [would] meet [the farm’s] needs when it did not.” Additionally, the farm alleged these warranties were breached by “recommending, selling, distributing, designing, developing, manufacturing and supplying Zorial, a defective product____” As we concluded above, the evidence is insufficient to show that Zorial is defective. In any event, the record contains no evidence of how San-doz breached these warranties beyond the farm’s assertion — which we hold is a disguised labeling claim — that Zorial was not fit for use in Arizona. Consequently, these warranty claims are preempted by FIFRA. See Taylor AG Industries; Grenier v. Vermont Log Buildings, Inc., 96 F.3d 559 (1st Cir. 1996). Affirmed. PELANDER, P.J., and LIVERMORE, J., concur.

RYAN, Judge. This appeal concerns a trial court’s use of amended Rule 22.4, Arizona Rules of Criminal Procedure (effective December 1, 1995), when the jury announced it was at an impasse. We find no error and thus affirm Anthony Lee Sabala’s (“Sabala”) conviction and sentence on one count of theft, a class 4 felony under Arizona Revised Statutes Annotated (“A.R.S.”) section 13-1802. FACTS AND PROCEDURAL HISTORY Sabala was driving a stolen car on the morning of August 18, 1995. There was another person in the car. Officer Michael Cantrell saw Sabala and discovered the car was stolen. When Sabala noticed the police car behind him, he began to speed away. After speeding through stop signs in a busy roadway, the stolen car turned into a parking lot and slowed down. Sabala and his passenger jumped out and fled in different directions. Officer Cantrell radioed a description of Sabala to other police officers and chased the passenger. Officer Cantrell caught and arrested the passenger. Officer Russell Zeller was in uniform on bicycle patrol in the vicinity when he heard Officer Cantrell’s radio description of Sabala. About ten seconds after hearing the radio description, Zeller saw Sabala running toward him and away from where the stolen car was abandoned. Sabala matched the suspect’s description broadcast over the radio. When Sabala spotted Officer Zeller, he ran away, ignoring Zeller’s commands to stop. Zeller eventually caught Sabala and arrested him. On the day of the arrest and again at trial, Officer Cantrell identified Sabala as the driver of the stolen vehicle. At the police station, Sabala admitted that he knew he was driving a stolen car. The state filed an information charging Sabala with theft. The state also alleged two prior felony convictions. The case proceeded to a jury trial. Sabala testified that he was arrested as a result of mistaken identity, that he had nothing to do with the stolen car, and that his earlier admissions were false and were offered only because he wanted to end his “interrogation” by police after his arrest. (Sabala’s police interview lasted twenty-three minutes.) The jury began deliberating at 2:40 p.m. on a Tuesday. After two hours the jury foreman told the bailiff that the jurors had reached an impasse. The trial judge asked the bailiff to tell the jury to put the message in writing. In response, the jury sent the following note: Seven jurors voted guilty. The juror [is] voting not guilty because the juror believes that Mr. Sabala is not guilty. Please advise. We are at an impasse. The trial court then issued an instruction, over Sabala’s objection: This instruction is offered to help your deliberations, not to force you to reach a verdict. You may wish to identify areas of agreement and areas of disagreement. You may then wish to discuss the law and the evidence as they relate to areas of disagreement. If you still have disagreement, you may wish to identify for the Court and Counsel which issues or questions or law or fact you would like Counsel or Court to assist you with. If you would like this option, please list in writing the issues where further assistance might help bring about a verdict. Areas where the Court or Counsel may be able to assist you are in the giving of additional instructions, the clarifying of earlier instructions, directing the attorneys to make additional closing argument, reopening the evidence for limited purposes, or a combination of these measures. I do not wish or intend to force a verdict. We are merely trying to be responsive to your apparent need for help. If it is reasonably probable that you could reach a verdict as a result of this procedure, it would be wise to give it a try. The trial court adjourned and directed the jurors to return the next morning “and consider this instruction at that time.” The jury resumed deliberations the following day at 10:40 a.m. The court received a second note from the jury at 11:55 a.m. It stated: We would like more clarification on how Tony’s original confession was obtained. Did Tony volunteer the information himself or did an officer ask him specific questions and Tony just agreed with everything? The trial court decided not to permit additional testimony, but ruled that the court reporter could read back portions of testimony and the attorneys could make additional arguments. The jury returned to the courtroom and the reporter read back the relevant portion of Officer Cantrell’s direct examination testimony. At the jury’s request, the reporter also read back the relevant portion of Saba-la’s direct and cross-examination testimony on this issue. Defense counsel and the prosecutor then presented brief additional arguments. The court asked the jury whether it had further questions or wanted additional testimony read back, but no other questions or requests were submitted. At 2:00 p.m. the jury resumed deliberations. Thirty minutes later the jury returned a guilty verdict. Sabala admitted two prior felony convictions, and the trial court sentenced him to an aggravated prison term of eleven years. Sabala timely appealed. This Court has jurisdiction. Ariz. Const, art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033. DISCUSSION Sabala argues that the trial court coerced the jury verdict and that, consequently, this court should reverse the conviction. The test for coercion is ‘“whether the trial court’s actions or remarks, viewed in the totality of circumstances, displaced the independent judgment of the jurors.’ ” State v. McCrim-mon, 187 Ariz. 169, 172, 927 P.2d 1298, 1301 (1996) (quoting State v. McCutcheon, 150 Ariz. 317, 320, 723 P.2d 666, 669 (1986)). To support his allegation of coercion, Sabala cites two factors: the court’s knowledge of the numerical jury split, and the court’s supplemental jury instruction. Sabala also argues that the court’s failure to give a cautionary instruction along with the supplemental instruction contributed to the jury being coerced into reaching a verdict. A. Numerical Division Among Jurors The jury spontaneously told the trial court it was split seven to one in favor of conviction. Sabala argues that this circumstance led to a coerced verdict, citing State v. Lautzenheiser, 180 Ariz. 7, 10, 881 P.2d 339, 342 (1994) (“Lautzenheiser II ”), and McCutcheon, 150 Ariz. at 320, 723 P.2d at 669. Although the trial court inadvertently became aware of the jurors’ split, this fact does not amount to coercion per se. McCrimmon, 187 Ariz. at 172, 927 P.2d at 1302. While a known division among jurors creates “the potential for harm,” Lautzenheiser II, 180 Ariz. at 10, 881 P.2d at 342, we evaluate the effect of the court’s knowledge in view of the totality of the circumstances. McCrimmon, 187 Ariz. at 172, 927 P.2d at 1301 (“Disclosing the numerical division will not always indicate a coerced verdict.”); McCutcheon, 150 Ariz. at 320, 723 P.2d at 669; State v. Roberts, 131 Ariz. 513, 516, 642 P.2d 858, 861 (1982). In McCutcheon, a case involving multiple counts against more than one defendant, the supreme court found coercion where the trial judge inadvertently discovered that two members of the twelve-juror panel adamantly favored acquittal. The trial court issued further instructions after twice asking the jury to try and “reach a verdict on one count against one defendant.” The supreme court found an implicit and improper message in the trial judge’s actions: Since the jury knew that the trial judge was aware the majority had voted for conviction, her repeated questions sent an inference that she agreed with the majority. We believe she implicitly communicated to the dissenters the message that she thought they should change their views, since that would be the only way, in all likelihood, a verdict could be reached. Any pressure to decide then was pressure to decide against the defendant. 150 Ariz. at 320, 723 P.2d at 669. In contrast, the trial judge here did nothing more than “inquire of the jurors to determine whether and how court and counsel can assist them in their deliberative process,” as permitted by Rule 22.4 of the Arizona Rules of Criminal Procedure. See McCrimmon, 187 Ariz. at 174, 927 P.2d at 1303. The instruction the trial judge read was, for the most part, recommended by the comment to Rule 22.4. Other than the court’s knowledge of the numerical division, there is no evidence of coercion. Therefore, this case is also distinguishable from Lautzenheiser II. In that case, the trial judge knew which juror was the “holdout” and encouraged further deliberations beginning at 4:30 p.m. on New Year’s Eve. 180 Ariz. at 11, 881 P.2d at 343. McCrimmon is also distinguishable. In that case, the dissenting juror was singled out twice during the polling process as the only juror who did not agree with the verdict. Once the numerical division was known, the trial court repeatedly told her, once in open court, and thereafter in their private meeting, that she would have to decide whether she agreed with the guilty verdicts. 187 Ariz. at 173, 927 P.2d at 1302. Sabala’s case is more similar to Roberts, in which a conviction was affirmed even though the trial court inquired what the split was (and learned it was eleven to one) before sending the jury to deliberate further. 131 Ariz. at 515-16, 642 P.2d at 860-61. The better practice, however, is for the court to instruct jurors to refrain from revealing the numerical split and whether they are inclined to acquit or convict. Cf. State v. Dunlap, 187 Ariz. 441, 930 P.2d 518 (1996) (“[T]rial court did not know the numerical division of the jurors’ votes or which way the jury was leaning.”). The jury note here announced that only one juror had voted not guilty. “From a pragmatic standpoint, when such a division is announced and ... seven pairs of eyes turn to look at the single holdout, it is impossible to conclude that the juror was not subjected to pressure after the jury had returned to the jury room.” Lautzenheiser II, 180 Ariz. at 10, 881 P.2d at 342 (quoting Roberts, 131 Ariz. at 517, 642 P.2d at 862 (Feldman, J., dissenting)). But pressure always exists to some degree whenever jurors adopt majority and minority positions. Under the totality of circumstances test in general, and the Roberts decision in particular, the inherent pressure associated with being a lone dissenter does not, without more, amount to coercion. See 131 Ariz. at 516, 642 P.2d at 861. This jury never indicated that further deliberations would be futile. Its first note stated that the panel had reaehéd an “impasse” and requested advice. The second note sought help of the kind available under Rule 22.4. These facts distinguish this case from the cases cited by Sabala. Cf. Lautzenheiser II, 180 Ariz. at 9, 881 P.2d at 341 (foreman stated that further deliberations would not be helpful); McCutcheon, 162 Ariz. at 59, 781 P.2d at 36 (jury informed trial court that division was “unresolvable” and that “no further discussion will be fruitful”). The sequence and timing of events further remove any fear that the verdict was coerced. After receiving additional instructions at the end of the afternoon on Tuesday, the jury resumed deliberations on Wednesday for one hour and fifteen minutes before asking a question about Sabala’s confession. Had the jury resumed deliberations only to return , a short while later with a guilty verdict, we might say that “the proof is in the pudding----” Roberts, 131 Ariz. at 517, 642 P.2d at 862 (verdict reached within fifteen minutes of resuming deliberations supports finding of coercion) (Feldman, J., dissenting); see also State v. Lautzenheiser, 177 Ariz. 26, 32, 864 P.2d 1058, 1064 (App.1993) (verdict reached twenty minutes after resuming deliberations supports finding of coercion) (Grant, J., dissenting), rev’d, Lautzenheiser II, 180 Ariz. at 11, 881 P.2d at 343. Here, however, the jurors requested further advice and, after receiving it, resumed deliberations for thirty more minutes before returning a verdict. These facts suggest that the holdout juror changed position as a result of receiving clarifying information, not that he or she surrendered “honest convictions” due to overbearing pressure from the court. See McCrimmon, 187 Ariz. at 172, 927 P.2d at 1302 (finding that the court sent the holdout juror “a clear message that being undecided was unacceptable”); Lautzenheiser II, 180 Ariz. at 11, 881 P.2d at 343; State v. McCutcheon, 162 Ariz. 54, 60, 781 P.2d 31, 37 (1989) (“McCutcheon II ”). B. Coercive Implications of the Supplemental Instruction Sabala also asserts that the additional instruction based on the comment to Rule 22.4 implied “that it was the dissenter who needed to specify his misgivings with the state’s case so that he could receive the ‘help’ necessary to change his verdict.” This argument stands not on the content of the instruction, but on the fact that the trial court directed further deliberations knowing that only one juror favored acquittal. This argument is the coercion per se argument rejected in Roberts. See 131 Ariz. at 516, 642 P.2d at 861. The court’s suggestion that the jury further deliberate, standing alone, could be construed as an order to the dissenter to reconsider. But Sabala fails to cite any particular defect in the instructions warranting such a conclusion. Sabala also argues that by outlining the help available (additional instructions, clarification of earlier instructions, additional closing argument, reopening evidence for limited purposes), the court misled the jury into believing that it would remain impaneled “until it reached a verdict, even if that meant sitting through a second trial presented in bits and pieces.” We do not see this implication. The court stated that the instruction was “offered to help your deliberations, not to force you to reach a verdict” and informed the jury that the court did “not wish or intend to force a verdict.” See Dunlap, 187 Ariz. at 465, 930 P.2d at 542 (similar supplemental jury instruction and circumstances demonstrated “no coercive effect on the jury”). C. Failure to Give a Cautionary Instruction Sabala also cites the trial court’s failure to remind the jurors that they were not to surrender their honest convictions in order to reach a verdict. Sabala did not object on this ground when the court delivered the additional instruction, so error in this regard will result in relief only if it amounts to fundamental error. See, e.g., State v. Smith, 138 Ariz. 79, 83, 673 P.2d 17, 21 (1983), cert, denied, 465 U.S. 1074, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984). The trial court should have expressly admonished the jurors not to surren der their “honest convictions” for the sake of reaching a verdict. Lautzenheiser II, 180 Ariz. at 11, 881 P.2d at 343; McCutcheon II, 162 Ariz. at 60, 781 P.2d at 37. However, failing to do so does not amount to fundamental error. McCutcheon II, 162 Ariz. at 60, 781 P.2d at 37; see also Roberts, 131 Ariz. at 515-16, 642 P.2d at 860-61 (no fundamental error where trial court not only failed to give cautionary instruction but inquired about numerical division among jurors, learned of eleven to one split, and required further deliberations stating that there was “a lot of evidence”). Accordingly, we will not vacate the verdict on this ground. D. The Dissent We agree with the dissent’s comments concerning the trial court’s failure to warn the jurors not to disclose their vote and failure to specifically tell them not to surrender their honest convictions. Dissent op. at 422, 943 P.2d at 782. However, we disagree that these circumstances coupled with the recommended instruction from the comment to Rule 22.4 amount to coercion. Twice in that instruction the jury was told that the court did not intend or wish to force a verdict. Also, the instruction used qualifying language such as “may,” and “[i]f ... reasonably probable.” Use of such qualifying language eliminates any coercive suggestion. State v. Michael, 161 Ariz. 382, 386, 778 P.2d 1278, 1282 (App.1989) (“trial court’s use of the words ‘if possible’ eliminates any coercive suggestion in the court’s note”). Also, the jury’s initial note, among other things, asked for advice. The trial court merely responded to the jurors’ request in the spirit of the reformed jury rules. See B. Michael Dann and George Logan, III, Jury Reform: the Arizona Experience, 79 Judicature 280, 283 (1996) (“This technique [use of Rule 22.4’s recommended instruction] allows jurors to be more active than before and to take responsibility for articulating their needs for information required for their decision.”). Finally, the brevity of the trial should not be a significant factor. Deciding what is a short trial is difficult, and one court’s short trial may be another court’s nightmare. Further, each victim is entitled “[t]o a speedy trial or disposition and prompt and final conclusion of the case after conviction and sentence.” Ariz. Const, art. 2, § 2.1; Ariz. R.Crim. P. 39. The instruction recommended by the comment to Rule 22.4 adequately protects both a defendant’s right to each juror’s individual judgment and the victim’s right to a prompt resolution of his or her case. The instruction also encourages informed jury verdicts. See B. Michael Dann, “Learning Lessons” and “Speaking Rights”: Creating Educated and Democratic Juries, 68 Ind. L.J. 1229, 1230, 1261-62 and 1269 (1993). Use of that instruction here did not compromise the integrity of the verdict. The “holdout” juror was never identified to the court. Moreover, the court never emphasized that a verdict was desirable; instead it twice told the jurors that it was not trying to force a verdict. Additionally, the court used qualifying language, and no time pressures were present. These factors lead us to view the totality of the circumstances differently than the dissent. CONCLUSION We affirm the conviction and sentence of the trial court. We have not reviewed the remainder of the record for fundamental error. State v. Smith, 184 Ariz. 456, 459-60, 910 P.2d 1, 4-5 (1996). FIDEL, J., concurs. . We view the facts in the light most favorable to sustaining the verdict, resolving all reasonable inferences against the defendant. State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992), cert, denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). . The comment to the Rule states in part: Many juries, after reporting to the judge that they have reached an impasse in the deliberations, are needlessly discharged very soon thereafter and a mistrial declared when it would be appropriate and might be helpful for the judge to offer some assistance in hopes of improving the chances of a verdict. The judge’s offer would be designed and intended to address the issues that divide the jurors, if it is legally and practically possible to do so. The invitation to dialogue should not be coercive, suggestive or unduly intrusive.

OPINION GERBER, Presiding Judge. Nancy L. Linder (Linder) and Charles G. Linder, Sr. (jointly the Linders) were losing parties in a prior lawsuit involving $20,000 held in a real estate escrow account. The stakes have grown since then. In the present action, the Linders, represented by attorney Judith Prakel (Prakel), filed suit (1) for negligence against the attorneys who represented them in the prior lawsuit and (2) for fraud against the prevailing adverse party, Sue O. Schilleman (Schilleman), and her attorneys. The Lin-ders, now in propria persona, appeal from the trial court’s order granting all defendants’ motions to dismiss for failure to state a claim. The Linders and Prakel also appeal from the trial court’s imposition of Rule 11 sanctions and the denial of their motion for new trial. For reasons that follow, we affirm. BACKGROUND The TICOM Litigation The underlying litigation arose from a dispute over the attempted sale of Apacheland Movie Ranch (Apacheland) in Apache Junction. The ranch was then owned by Schille-man. In 1985, Linder, a licensed real estate agent, contacted Schilleman with a potential buyer. Schilleman and “Stephen S. Russell and/or Nominee” executed a purchase contract with a purchase price of $1,100,000, with $20,000 in earnest money to be deposited in escrow held by Title Insurance Company of Minnesota (TICOM). Russell paid half of the earnest money and Linder put up the other half. The escrow instructions contained the following cancellation clause: CANCELLATION 16. If either party elects to cancel these instructions because of the failure of the other party to comply with any of the terms hereof within the time limits provided herein, said party so electing to cancel shall deliver to Escrow Agent a written notice to the other party and Escrow Agent demanding that said other party comply with the terms hereof within thirteen days from the receipt of said notice by Escrow Agent or that these instructions shall thereupon become cancelled. Both the escrow instructions and the purchase contract contained a “time is of the essence” clause. On November 6, 1986, Sehilleman invoked this clause by demanding that escrow close by November 11, 1986. When escrow failed to close on that date, she asked TICOM to issue a thirteen-day cancellation notice to Russell and to advise him that unless he paid the amount due under the pin-chase contract by November 25, 1986, escrow would be cancelled and he would forfeit his earnest money. When Russell did not deposit the required amount into the account, she eventually cancelled the escrow. TICOM then filed an interpleader action against Sehilleman and Russell to determine the right to the $20,000 earnest money. Sehilleman filed a cross-claim against Russell in which she alleged that she was entitled to the earnest money because he had failed to perform. She also filed a cross-claim against Linder in which she alleged that Linder not only brokered the transaction but also was an undisclosed buyer in violation of Arizona Department of Real Estate regulations. She sought a declaratory judgment that the purchase contract was thereby void or cancelled. For his part, Russell filed a cross-claim against Sehilleman seeking specific performance of the contract. The trial court granted summary judgment in favor of Sehilleman and against Russell and Linder. It ruled that Sehilleman was entitled to cancel the contract, that the contract did not provide for the sale of personal property, and that Linder failed to disclose in writing her status as a buyer. The court awarded Sehilleman the $20,000 earnest money as well as $188,197.85 in attorneys’ fees and costs. Linder filed a motion for reconsideration which the trial court denied. The court then awarded Sehilleman an additional $11,647 in attorneys’ fees. The TICOM Appeal The Linders filed a timely appeal in the TICOM case separate from this appeal. In that appeal, they argued that (1) Linder was not a party to the contract; (2) even if Lin-der was a party, the trial court erred in ruling that Sehilleman could cancel the contract because, in Linder’s view, Schilleman’s title was unmarketable and a dispute existed regarding whether personal property could be transferred pursuant to the contract; and (3) the trial court erred in awarding attorneys’ fees against Linder. In an unpublished memorandum decision in that appeal, Division Two of this court affirmed the trial court’s judgment. See Schilleman v. Leffler/Linder, 2 CA-CV 90-0099 (October 30, 1990). The court noted that in her joint cross-motion for summary judgment, Linder “specifically claimed that she disclosed her dual status as purchaser and broker during negotiations with Schilleman.” Id. at 7. The court further noted that in response to Schilleman’s contention that she had violated Arizona Real Estate Regulations, Linder “argued that she had made adequate disclosure____” Id. The court concluded that because Linder once maintained that she was a party to the contract, “she [could] not change her position on appeal.” Id. at 6. With regard to Linder’s argument that Sehilleman could not cancel the contract because her title was unmarketable, Division Two of this court determined that the escrow instructions permitted either party to cancel the instructions if the other party failed to perform and that the “cancellation provision did not require the electing party to perform or tender performance.” Id. at 9. Thus Sehilleman had a contractual right to cancel escrow when Russell and Linder did not deposit the purchase money into escrow by the closing date. The court further determined that the writings involved did not satisfy the statute of frauds as to personal property and therefore personalty was not included in the contract. Lastly, the court found no abuse of discretion in the trial court’s award of attorneys’ fees against Lin-der. The appellate court awarded Schille-man additional attorneys’ fees and costs. The Linders then filed a petition for review in the Arizona Supreme Court. The court denied the petition and awarded Schilleman additional fees. The Linders subsequently filed a Chapter 11 voluntary bankruptcy petition in the United States Bankruptcy Court, later converted to a Chapter 7 liquidation. The Present Case On July 8, 1993, the Linders, represented by attorney Prakel, filed an amended complaint in superior court alleging negligent representation by their former lawyers — the law firm of Brown & Herrick, through its attorneys Greg Brown and John Herrick, and the law firms of Robert P. Kaufman, P.C., Kaufman, Apker & Nearhood, P.C., and Lancy, Scult & McVey, P.A., through their attorney Sandra J. Schaller (Sehaller), The Linders further alleged that Sehille-man, together with her former attorneys— the law firm of Lewis and Roca, through its attorneys Foster Robberson and Sheila Car-mody, and the law firm of Rawlins Burrus Lewkowitz & Feinstein, P.C. (Rawlins Bur-rus), and its attorney Jeffrey Leonard — committed fraud by making false representations to the court and by withholding material information during this litigation. The defendants filed motions to dismiss the amended complaint pursuant to Rule 12(b)(6), Arizona Rules of Civil Procedure, both for failure to state a claim and also for lack of standing. The trial court granted the defendants’ motions for failure to state a claim. The court also granted Lewis and Roca’s, Rawlins Burrus’, and Schilleman’s motions for sanctions pursuant to Rule 11, Arizona Rules of Civil Procedure, against the Linders and Prakel, jointly and severally, in the amount of $30,000. Following the trial court’s denial of their motion for new trial or to amend judgment, the Linders and Prakel filed this timely appeal. They present the following issues for review: 1. Did the trial court err in dismissing the negligence claims? 2. Did the trial court err in dismissing the fraud claims? 3. Did the trial court abuse its discretion in awarding Rule 11 sanctions jointly and severally against the Linders and Prakel? 4. If the trial court properly imposed Rule 11 sanctions, was the amount excessive? 5. Did the trial court abuse its discretion in denying appellants’ new trial motion? We have jurisdiction pursuant to Arizona Revised Statutes Annotated (A.R.S.) section 12-2101(B) and (F)(1). DISCUSSION I. Motions to Dismiss On review of a motion to dismiss for failure to state a claim, we take the allegations of the complaint as true. We will uphold the dismissal only if the plaintiff is not entitled to relief “under any facts susceptible of proof under the claims stated.” Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184,186, 677 P.2d 1292,1294 (1984). We may affirm for reasons other than those relied upon by the trial court. Earthworks Contracting Ltd. v. Mendel-Allison Constr. of Cal., Inc., 167 Ariz. 102,109, 804 P.2d 831, 838 (App.1990). A. Negligence Claims The Linders’ complaint alleged that their former attorneys negligently represented them in the TICOM litigation. The negligence claims can be summarized as follows: their attorneys (1) misrepresented that Lin-der was a partner in the Apacheland transaction and (2) failed to investigate the relevance of the Schilleman-Stewart litigation to the TICOM litigation. Specifically, in Count One of their amended complaint, the Linders alleged that attorney Greg Brown (Brown) and the Brown & Herrick firm “fail[ed] to apprise himself, and his clients, of the fact that Sehilleman and the Stewarts were involved in the Schilleman-Stewart Litigation.” This litigation was significant, according to the Linders, because Sehilleman was alleging that the Stewarts had not provided her with an acceptable assumption statement concerning Apacheland and, additionally, had not resolved problems with its lease and personal property, all of which “preventfed] her from closing escrow with Russell.” Brown thus “fail[ed] to establish with TICOM that Sehilleman did not have the legal right to demand that TICOM issue to Russell the ... thirteen-day cancellation notices when Sehilleman herself could not perform.” The Linders further alleged that attorney John Herrick and the Brown & Herrick firm were negligent in “failing to recognize that an actual conflict of interest existed in the Russells’ and the Linders’ position” in the TICOM litigation; in failing to inform them that their positions could not be represented jointly; in failing “to assert ... that Nancy Linder never actually became a nominee in the Apacheland Purchase Contract or a partner of Russell as a buyer”; and in failing to obtain a copy of the “Agency and Option Agreement ... with exhibits A and B attached.” In Count Four of their amended complaint, the Linders alleged that attorney Schaller negligently failed to recognize the different legal positions of the Linders and the Rus-sells; failed to inform the court that Schille-man could not demand performance from Russell when she could not perform by closing on the Apacheland contract; erred in stating to Judge Gottsfield during oral argument on February 12, 1988, that Linder and Russell were partners, thereby preventing Linder from prevailing in the lawsuit; and failed to correct attorney Robberson’s statements at oral argument on April 27, 1988, that escrow officer Gail Johnson could have prepared a closing statement on November 11, 1986, and that Sehilleman had the legal right to demand close of escrow on November 25,1986. With respect to the allegation that Linder’s attorneys misrepresented her status as a buyer, thus preventing her from prevailing in the TICOM lawsuit and subsequent appeal, the trial court noted: Plaintiffs contend that if Ms. Schaller had ignored the extensive deposition testimony of Ms. Linder and Mr. Russell and instead told the Court that Ms. Linder was a “potential buyer,” this could have affected the outcome of the case. Judge Gottsfield ruled based on the entire record before him, including the depositions, that Ms. Linder was a “party” to the transac-tion____ An attorney has an obligation to deal fairly with a tribunal. Arizona Rules of Professional Conduct, Rule 3.3(a): A lawyer shall not knowingly: 1. Make a false statement of fact of law to a tribunal; 2. Except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to exposing a criminal or fraudulent act by the client____ Ms. Schaller could not “unspeak” the sworn testimony of her client and her client’s partner. We agree with the trial court’s reasoning. Linder’s initial position was that she had made appropriate disclosure of her dual status as a broker and a buyer and thus satisfied real estate regulations. Such disclosure would have been unnecessary if she was not a buyer, as she now claims. However, Lin-der’s affidavit as well as her own deposition testimony and that of Russell establish her true status as a buyer in the Apacheland transaction. She cannot now complain to us about what she said in her own words. Given her own statements, her attorneys in the TICOM litigation hardly could have “misrepresented” her status to the court. In fact, her attorneys were ethically foreclosed from maintaining that she was only a “potential buyer,” as Linder now contends they should have alleged. (Emphasis added.) If there is any misrepresentation, it lies in the discrepancy between Linder’s sworn statements and her differing position in this appeal. With respect to the allegations in the amended complaint regarding the Schilleman-Stewart litigation, we agree with the trial court that Division Two’s memorandum decision resolved the central issue, namely, the effect of Schilleman’s ability to perform on her right under the escrow instructions to cancel escrow: Under the escrow instructions, either party was permitted to cancel the instructions if the other party failed to perform. This cancellation provision did not require the electing party to perform or tender performance. Schilleman issued the required 13-day demand notice and the buyers did not perform. Her cancellation of the escrow instructions was valid. Schilleman, 2 CA-CV 90-0099 at 9-10. The Schilleman court ruled as a matter of law that the Schilleman-Stewart litigation did not affect Schilleman’s right to cancel escrow when Linder and Russell failed to deposit their money on the required date. Further, the court determined that because the Wilderness/Schilleman agreement of sale contained no restrictions on assignability, there was “no possibility of a successful attack on its assumability, and accordingly, Schilleman was able to tender a marketable title.” Id. at 11. Regarding the leases on the property, the court found that because they were in default, Schilleman had the right to cancel them and retake possession and that such cancellation was not necessary to Schilleman’s ability to perform “until ... the buyers tendered the purchase price.” Id. at 12. The court also found that personal property was not included in the transaction because there was no signed writing identifying specific property satisfying the statute of frauds. Id. at 14. Thus, no factual issue existed with respect to personalty to prevent summary judgment, as the Linders had contended. Id. at 15. In light of this court’s prior decision described above, the Linders now have no basis for a claim of negligence against their attorneys for failure to investigate the Schille-man-Stewart litigation. Further, in light of Linder’s own sworn testimony, the Linders have no basis for their claim of negligence against their attorneys in the Apacheland transaction. Accordingly, we affirm the trial court’s grant of Brown & Herrick’s and the Schaller defendants’ motions to dismiss for failure to state a claim. B. Fraud Claims The Linders’ fraud claims against Schille-man and her attorneys, Lewis and Roca and Rawlins Burris, also relate to the Schille-man-Stewart litigation. In Count Five of their amended complaint, the Linders alleged that these defendants “knowingly made false representations to the Arizona Superior Court” during the TICOM litigation by “failing to disclose or produce the correct Agency and Option Agreement with its exhibits to Linders’ counsel in response to Linders’ Request for Production of Documents on or about June 30, 1987”; by “misrepresenting the relevance of the Schilleman-Stewart Litigation to this Lawsuit”; and by “misrepresenting Schilleman’s ability to close the escrow on the Apacheland transaction.” The Linders also alleged that these defendants made false representations to the court of appeals, supreme court, and the bankruptcy court regarding the SchillemanStewart Litigation. Count Six alleges resulting intentional or reckless infliction of emotional distress. The essence of all these claims can be summarized as follows: had these defendants not misled the Linders’ counsel and the court about the nature of the Schilleman-Stewart litigation (and had the Linders’ own attorneys not negligently represented them), the Linders would have been able to make a winning argument that Schilleman was unable to perform and therefore unable to cancel escrow. The Linders’ claims are defective for several reasons. First, the Linders fail to plead all the essential elemente of a fraud claim. Although there is no “magic lan guage” required to state a claim for fraud, the complaint as a whole must be construed to plead all nine elements. Hall v. Romero, 141 Ariz. 120, 124, 685 P.2d 757, 761 (App. 1984). Justifiable reliance is one of those essential elements. Here, the Linders failed to allege that they justifiably relied on any statements made by opposing counsel. Indeed, as a matter of law and common sense, they had no right to rely on statements made by the attorneys opposing them. See Lewis v. Swenson, 126 Ariz. 561, 566, 617 P.2d 69, 74 (App.1980) (any duty owed by adverse counsel with respect to the conduct of litigation is “owed to the court, and not to the adverse party.”) Thus, because they had no right to rely, the Linders’ fraud claim is legally deficient. Second, this court’s holdings in the TICOM appeal resolve the issues raised in the Linders’ complaint. These rulings cannot now be collaterally attacked. Division Two of this court determined that Schilleman was not obligated to convey personal property because no signed writing identified the specific property to be transferred. In the present case, the Linders alleged in their complaint that Schilleman and Lewis and Roca committed fraud by failing to produce the Agency and Option Agreement and its exhibits during discovery. The Linders argue that if these documents had been produced, they might have shown that Stewart conveyed the personal property at Apache-land to Schilleman and that such writing might satisfy the statute of frauds with respect to the Apacheland transaction. In their view, because Apacheland was being sold to Russell by Schilleman partially by an assignment of her father’s “Agreement of Sale” which incorporated the Agency and Option Agreement — Exhibit A of which presumably described personal property — these documents might have shown that “conveyance to Russell was supposed to include the personal property.” These contentions are specious. The Lin-ders merely speculate about the contents of Exhibit A; neither the Linders nor Prakel have seen this document. Further, even if we assume that Exhibit A described with particularity the personal property conveyed to Schilleman by Stewart, the present transaction still lacked a writing signed by Schille-man confirming that she agreed to sell and the buyers agreed to buy specifically identified personal property. Thus, even if this document had been produced during the TI-COM litigation, it would not have affected the trial court’s ruling on the personal property issue. Division Two of this court also determined that Schilleman had the contractual right under the escrow agreement to cancel the escrow upon the buyer’s nonperformance independently of her ability to perform. That decision rests on the broad language in the cancellation provision of the escrow instructions. That court found that “[t]his cancellation provision did not require the electing party to perform or tender performance.” Schilleman, 2 CA-CV 90-0099 at 9 (emphasis added). Lewis and Roca’s statements that the Schilleman-Stewart litigation was irrelevant to Schilleman’s ability to cancel escrow rested on the language of this clause and therefore could not have been “misrepresentations” intended to deceive the court. The Linders fully litigated the performance issue and the personalty issue in the TICOM trial court and in the subsequent appeal to this court. The Schilleman judgment is final and cannot be collaterally attacked. Third, and most basic, the Linders’ fraud claims against opposing counsel are not recognized by Arizona law. In granting Lewis and Roca’s motion to dismiss, the trial court ruled as follows: The critical issue is whether this Court should recognize a cause of action by a party against opposing counsel at the con- elusion of the lawsuit. Plaintiffs have sought to encourage this Court to adopt such lawsuits as the “more reasoned approach” to analyzing counsel’s liability to third parties. But case law in Arizona, specifically, Lewis v. Swenson, 126 Ariz. 561, 617 P.2d 69 (App.1980), stands foursquare against the proposition which Plaintiffs advocate. No authority exists in Arizona for bringing a claim of fraud against an opposing attorney for statements made during litigation. To the contrary, case law narrowly limits claims against opposing counsel. Our law is clear. In Lewis v. Swenson, 126 Ariz. at 562, 617 P.2d at 70, the plaintiff in a medical malpractice action sued opposing counsel for alleged misconduct in failing to prevent an expert witness from commenting on high malpractice premiums in the jury’s presence. In affirming the trial court’s dismissal of the plaintiff’s complaint, the Lems court, in an opinion authored by now Justice O’Connor, quoted from Norton v. Hines, 49 Cal.App.3d 917,123 Cal.Rptr. 237,240 (1975): Clearly, an adverse party is not an intended beneficiary of the adverse counsel’s client. If a cause of action exists against attorneys ..., it must be pleaded as an action for malicious prosecution. We see no reason to extend applicable law now found in cases involving attorneys and third parties when there is sound and recognized public policy for limiting the cause of action to malicious prosecution. Lewis, 126 Ariz. at 564, 617 P.2d at 72 (emphasis added). The court noted that “reasons of public policy have caused courts to declare that there is an absolute privilege of attorneys and witnesses to state anything at trial which relates to the matter at issue.” Id. There are policy reasons supporting this view. In Green Acres Trust v. London, 141 Ariz. 609, 611, 688 P.2d 617, 619 (1984), plaintiffs brought a defamation action against defendants and their attorneys based on oral and written statements published during a press conference preliminary to the initiation of a class action against plaintiffs. In holding that an attorney’s conduct during the course of judicial proceedings is absolutely privileged, our Supreme Court explained: In the area of absolute privileges one of the most common is that involving the participant in judicial proceedings. The socially important interests promoted by the absolute privilege in this area include the fearless prosecution and defense of claims which leads to complete exposure of pertinent information for a tribunal’s disposition. The privilege protects judges, parties, lawyers, witnesses and jurors. The defense is absolute in that the speaker’s motive, purpose or reasonableness in uttering a false statement do not affect the defense. Whether the privilege exists is a question of law for the court, and may be properly raised in a motion to dismiss____ Green Acres Trust, 141 Ariz. at 613, 688 P.2d at 621 (citations omitted) (emphasis added); accord, Western Technologies, Inc. v. Sverdrup & Parcel, Inc., 154 Ariz. 1, 4, 739 P.2d 1318, 1321 (App.1986) (“An absolute privilege exists for participants in judicial proceedings.”); Darragh v. Superior Couri, 183 Ariz. 79, 81, 900 P.2d 1215, 1217 (App.1995) (“One of the most widely recognized absolute privileges is that afforded participants in judicial proceedings.”) In light of these well-established cases, the Linders’ claims of fraud and intentional infliction of emotional distress against opposing counsel fail to comprise recognized causes of action. For all the reasons stated above, we affirm the trial court’s grant of Lewis and Roca’s, Rawlins Burrus’, and Schilleman’s motions to dismiss for failure to state a claim. Although the Linders were foreclosed from bringing a fraud claim against opposing counsel, they had other remedies available to them which they did not utilize. Litigants who believe that their adversaries or their adversaries’ attorneys have been guilty of misconduct during litigation may file a motion under Rule 60(c), Arizona Rules of Civil Procedure, for relief from final judgment on the basis of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial ... ;(3) fraud ..., misrepresentation or other misconduct of an adverse party____ The motion shall be filed within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment or order was entered or proceeding was taken. (Emphasis added.) Furthermore, attorneys are subject to the disciplinary power of the courts and the State Bar. See Ariz. R. Civ. P. 11; Rules of the Supreme Court, Rule 42. II. Rule 11 Sanctions Both the Schaller defendants and the Lewis and Roca defendants filed motions for attorneys’ fees and sanctions. Following an evidentiary hearing, the trial court denied the Schaller motions but granted the Lewis and Roca motions. The court assessed a total of $30,000 in attorneys’ fees — $10,000 each to Lewis and Roca, Rawlins Burras, and Schilleman — against the Linders and Prakel, ruling that these defendants should have judgment “jointly and severally ... as a sanction for the violation of Rule 11.” In assessing these sanctions, the trial court explained: [Tjhere was not a good faith basis, after reasonable investigation, for the filing of this action by Plaintiffs against the fraud Defendants, Lewis and Roca, Rawlins and Burras, and Sue Schilleman____ There is no authority in Arizona for such an action, and it is not and was not a reasonable extension of Arizona law to believe that such an action could be supported. # sH % sj« sj; Plaintiffs chose to ignore the existing authority of Lewis v. Swenson; Western Technologies v. Sverdrup & Parcel, Inc.; and Green Acres Trust v. London. (Citations omitted.) We review the trial court’s order imposing Rule 11 sanctions for an abuse of discretion. James, Cooke & Hobson, Inc. v. Lake Havasu Plumbing & Fire Protection, 177 Ariz. 316, 317, 868 P.2d 329, 330 (App. 1993). Under Rule 11, the allegations of fraud must have been “well grounded in fact” and “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” The good faith component of Rule 11 does not turn on whether an attorney subjectively pursues claims in good faith. Instead, that rule embodies an objective standard about what a professional, competent attorney would do in similar circumstances to satisfy the rule’s requirements. Standage v. Jaburg & Wilk, P.C., 177 Ariz. 221, 230, 866 P.2d 889, 898 (App.1993). Here the fraud claims are not well grounded in fact. One of the Linders’ and Prakel’s chief allegations is that these defendants committed fraud by “failing to disclose or produce the correct Agency and Option Agreement with its exhibits” in response to their request for production of documents in 1987. However, testimony at the sanctions hearing revealed that Lewis and Roca had indeed produced this agreement at that time. Further, Prakel based certain allegations in the complaint on the contents of a document — Exhibit A — -which she admitted she had not seen and which has yet to be produced and apparently has not even been found. Additionally, Prakel has alleged that the defendants have committed fraud by misrepresenting the relevance of the Schilleman-Stewart litigation and its effect on Schille-man’s ability to cancel the contract, despite this court’s prior holding that Schilleman had a right to cancel escrow regardless of her ability “to perform or tender performance” under the express terms of the cancellation provision. These claims are both factually and legally deficient. As discussed above, no authority exists in Arizona for a fraud claim against an adversary or an adversary’s attorney based on statements made during litigation. See Lewis, 126 Ariz. 561, 617 P.2d 69; Green Acres Trust, 141 Ariz. 609, 688 P.2d 617; Western Technologies, 154 Ariz. 1, 739 P.2d 1318. Moreover, Prakel has not made a good faith argument that existing law should be extended to encompass such fraud claims. She cites numerous cases as evidence of a legal trend to recognize such actions. However, with the exception of one case discussed below, all the cited cases are distinguishable. Most of the cases involve attorney conduct outside judicial proceedings. In other cases, the attorney conduct is governed by state or federal statutes or the cause of action is not based on fraudulent statements made during litigation. Prakel primarily relies on Robinson v. Volkswagenwerk AG, 940 F.2d 1369 (10th Cir.1991), cert, denied, 502 U.S. 1091, 112 S.Ct. 1160, 117 L.Ed.2d 408 (1992), a federal case that cited § 1983 cases in holding that absolute immunity, while generally available to government lawyers, is available to private lawyers only in defamation claims. She states in her reply brief that “[e]ven if Robinson v. Volkswagenwerk ... were the only case from another American jurisdiction directly on point which supported the Linders’ claims against the Fraud Defendants, the existence of that holding, based on accepted common law principles, even if the Appellees want to argue that it was wrongly decided, would be alone sufficient to make this award of Rule 11 sanctions improper.” We do not agree that citing one dissimilar federal case from another jurisdiction demonstrates a good faith argument under Rule 11 for the modification of existing Arizona law. Admittedly, in Smith v. Lucia, 173 Ariz. 290, 299, 842 P.2d 1303, 1312 (App. 1992), this court found that an attorney’s theory of the case, based on minority case law, was not objectively unreasonable for purposes of Rule 11. In that case, however, the applicable law was unsettled in Arizona and controlling precedent was lacking. In contrast, Prakel’s attempt here to bring a fraud claim against opposing counsel runs directly contrary to long-standing, unwavering, recent and repeatedly affirmed Arizona law. Similarly, her reliance on Tucson Airport Authority v. Certain Underwriters at Lloyd’s, London, 186 Ariz. 45, 918 P.2d 1063 (App.1996), is also wholly misplaced because that suit concerned an insured’s bad faith claim against its own insurer for breach of good faith and fair dealing during coverage. No such fiduciary loyalties exist between these parties and opposing counsel. In a sampling of recent judicial and ethical views, the December 1996 issue of the ABA Journal finds no support whatsoever for the notion of suing an opposing attorney. Mark Hansen, Taco Bell’s Run for the Courthouse — Company’s wrongful litigation suit against a plaintiffs lawyer is dismissed, ABA Journal, Dec. 1996, at 20. To maintain such a claim, a court would have to find that a lawyer owed some duty to an opposing party and then breached that duty. Such a finding would necessarily create an automatic conflict of interest between a lawyer and client which would dilute if not destroy the lawyer’s duty of aggressive and exclusive representation. Like the proverbial biblical servant, a lawyer cannot serve two opposing masters. Given this entrenched Arizona precedent, Prakel had no objectively reasonable basis for believing that established Atizona immunity law would change in response to a sweeping argument supported by one dissimilar case from another jurisdiction. She therefore fails to meet Rule ll’s good faith requirement. In light of the foregoing discussion, it was untenable for Prakel to sue more than 190 individuals based on factually groundless allegations unwarranted by existing law and unsupported by a good faith argument for a change in Arizona law. These baseless claims needlessly extended litigation and caused the defendants substantial expense in defending them. We therefore find that the trial court properly exercised its discretion in awarding $30,000 in sanctions pursuant to Rule 11. The Linders contend that the trial court erred in assessing Rule 11 sanctions against them as “non attorneys relying upon their chosen counsel’s legal opinion.” However, Rule 11 expressly allows the trial court to impose upon an attorney, “a represented party, or both, an appropriate sanction.” Prakel argues that the amount of the sanctions is excessive. She states in her opening brief that “no inquiry was made as to [her] ability to pay the award.” To the contrary, Prakel herself had the duty to present pertinent financial evidence to the trial court for its Rule 11 consideration. In fact, she presented none. This court cannot consider on appeal evidence that was not before the trial court. Dorman v. Swift and Co., 162 Ariz. 228, 231, 782 P.2d 704, 707 (1989). Because Prakel failed to meet her evidentiary burden of showing that the trial court abused its discretion in awarding $30,-000 in sanctions, we have no way on this silent record to find the sanctions excessive. Moreover, after reviewing Prakel’s motion for new trial with its numerous exhibits, we find no abuse of discretion in the trial court’s denial of this motion. III. Request for Sanctions and Attorneys’ Fees on Appeal Defendants request this court to award them attorneys’ fees and sanctions on appeal pursuant to Rule 11, Arizona Rules of Civil Procedure, Rule 25, Arizona Rules of Civil Appellate Procedure, and A.R.S. sections 12-341.01(A) and (C) and 12-349(A)(1). In light of the financial hemorrhages that have already occurred, in the exercise of our discretion we decline to award any more monies to anyone. CONCLUSION For the foregoing reasons, we affirm the trial court’s judgment dismissing the Lin-ders’ complaint for failure to state a claim and assessing $30,000 in Rule 11 sanctions against the Linders and Prakel. THOMPSON, J., concurs. . Spencer Stewart is Schilleman’s father and the former owner of Apacheland. . The Agency and Option Agreement allegation is discussed further under the heading titled "Fraud Claims." See infra pp. 764-765. . The agreement of sale between Stewart (Wil-demess) and Schilleman. . At the Rule 11 hearing, the testimony showed that Schilleman had produced the Agency and Option Agreement in response to the Linders’ June 30, 1987 request for production but had responded that she could not produce Exhibit A, which presumably described Apacheland personal property, because she did not have it. Prakel admitted that she had seen the Agency and Option Agreement, which expired in 1978, for the first time only several days before this hearing. . Prakel also admitted at the Rule 11 hearing that she has never seen Exhibit A. . Contrary to Prakel’s assertion in her reply brief that Darragh "limited the holdings in Western Technologies and Green Acres," this court held that the absolute privilege protected both the testimony and written appraisals of a judicial witness from suit. The court also held that the plaintiffs could maintain a cause of action under the federal RICO statute "if they [could] present sufficient evidence, independent of the immunized testimony and appraisals, that Petitioner participated in the alleged conspiracy." (Emphasis added.) . In her motion for new trial or to alter or amend the judgment, Prakel merely stated that if the court granted her request to have the Linders relieved of the Rule 11 sanctions, leaving her alone liable, “the amount of sanctions should be reduced to reflect that decision.”

OPINION. ZLAKET, Chief Justice. On October 24, 1986, 17-year-old Frankie Spencer disappeared. Six days later, her body was discovered in a remote desert area. She had been strangled to death. In January 1989, defendant Hughes was charged with first degree murder, hindering prosecution, and conspiracy. A jury convicted him on all counts. The trial judge sentenced him to death on the murder conviction and to consecutive 2.5-year prison terms for the other offenses. This automatic appeal followed. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3), A.R.S. § 13-4031, and Rule 31.2(b), Ariz.R.Crim.P. FACTS AND PROCEDURAL HISTORY It is undisputed that the victim was at defendant’s apartment on the last day she was known to be alive. She went there in the early afternoon to meet one of his neighbors, who had agreed to photograph her for a portfolio. Around dusk, she hitchhiked out of that neighborhood. A note to her father and stepmother stating that she was returning to defendant’s place, along with clothing from the photo shoot, established that Frankie had made it home. Whether she ever reached his apartment again is unknown. There is limited physical evidence to show where the young woman was murdered or who did it. Her body was dressed in one of the outfits she had worn for the photos. Her shoes were never found, and her socks were relatively clean, indicating that she probably had been placed in the desert. A tourniquet made with nylon rope and a stick was around her neck. On one sock, examiners found a dark-colored dog hair. A similar one was later re trieved from a 1964 Buick accessible to co-defendant David Lankisch. A human hair found in the vehicle did not match Frankie’s, and one discovered on her blouse did not match any of the suspects’. Because of decomposition, the medical examiner was unable to detect the presence of alcohol or drugs in Frankie’s system. He also could not determine if she had been beaten, sexually assaulted, or bound at the wrists or ankles. Sperm found in her vagina indicated that sexual intercourse had taken place within 24 hours of death. Her fingernails were not broken, and no material was found underneath them. Defendant allegedly made various statements to friends and a jailmate regarding the victim’s disappearance and murder. Several weeks after the body was found, his former roommate, James Nelson, told police about a dream defendant described to him in which Frankie was beaten, dragged in the desert, and strangled. Even though he had not told authorities about it when first questioned, Nelson claimed that this conversation took place the day after Frankie disappeared. While incarcerated for an unrelated arson in December 1986, defendant revealed to fellow inmate Joe Salerno that he had given two juveniles some crack cocaine to “off’ his fian-cée. He said they hurt her worse than he wanted. She had been tortured, dragged, and left in the desert, allegedly because she would not marry him. In October 1989, after having made two separate statements that he knew nothing of the murder, Charles Coleman claimed that before the victim’s body was found, defendant and co-defendants David Lankisch and Christopher Scherf had joked about putting a noose around Frankie’s neck, dragging her with it, and leaving her in the desert. In 1987, a grand jury failed to return an indictment. In January 1989, a second grand jury charged defendant and Lankisch with one count each of first degree murder. The men were also indicted, together with Scherf, for first degree hindering prosecution and conspiracy to commit a class five felony (hindering prosecution). The charges against Scherf were eventually dropped. Lankisch, tried separately, was found guilty of premeditated murder. After a successful motion for new trial based on newly-discovered evidence, Lankisch pled guilty to lesser charges and was placed on probation. Defendant’s trial commenced in May 1990, and he was convicted on all counts. In its verdict, the jury indicated that he was guilty of murder only as an accomplice. At sentencing, the trial court found three aggravating factors: (1) a prior felony conviction involving the use or threat of violence on another person, see former A.R.S. § 13-703(F)(2); (2) procurement of others to commit the crime by payment or promise of payment, see A.R.S. § 13-703(F)(4); and (3) a killing that had been committed in an especially heinous, cruel or depraved manner, see A.R.S. § 13-703(F)(6). Following a mitigation hearing, the trial judge determined that the proffered evidence was not sufficiently substantial to call for leniency and sentenced defendant to death. DISCUSSION I. Character Evidence Before trial, defendant filed a motion to determine the admissibility of other crimes, wrongs, and acts sought to be introduced by the state. As described by the prosecution, these included: [Ejvery other bad act, and every statement that your client made that I have disclosed to you. That would include evidence of the [sic] David Lankisch attempting incest with his sister, David Lankisch inserting objects into the vagina of Joselyn DePaul; the sexual relations between David Lank-isch and Jake Hughes; all of the evidence regarding the drug dealing and transactions at Jake’s house and his drug transactions with any and all witnesses; the knife incident in which he threatened Jim Nelson, the brake line incident in which Jim Nelson cut the brake lines of someone’s car on behalf of Jake Hughes; the incident in which Jake indicated to Jim Nelson he had someone shoot a garbage can; the incident in which a bullet was shot through a window at Mike Rincon’s house; Jake’s sex act with Rebecca; Jake’s statements to Detective Manricky regarding strangula-tions; Jake’s act of pointing a gun at Jim Nelson’s face; the fire bombing of Michelle’s apartment; the fire bombing of Jim Nelson’s car; the firebombing of Kelly Choitz’ car; the shooting out of the windows of Vaunda’s automobile; any and all statement of Jake Hughes regarding murder, other crimes in which he was involved, his criminal connections, his drug trafficking, his sexual activities, and any and all statements by both of these gentlemen and [sic] they relate to other acts. Jake’s act of asking Alexander Lee to let him have sex with his wife and to let him film Alex and his wife having sex. According to the state’s theory of the case, defendant had commanded two juveniles to kill Frankie because she spurned his love, owed him money, and interfered with his marijuana business. The prosecutor urged admission of the foregoing acts and statements to establish defendant as a “Charles Manson-type” person who exerted control over a group of juvenile delinquents, in particular co-defendant Lankisch. The state maintained that the evidence would prove defendant’s ability to manipulate others, even to the extent of inducing homicidal conduct. Following a hearing on defendant’s motion, the judge issued a minute entry that simply listed, without comment, the evidence she would allow: 1. Jake Hughes’ statement to Alex Lee that Frankie Spencer had hurt him, etc. 2. Jake Hughes’ prior conviction re: Michelle Phifer. 3. Jake Hughes’ statements to [Joe] Salerno. 4. Jake Hughes’ drug activity at his residence involving any of co-defendants and involving Frankie Spencer. 5. Jake Hughes’ statement to Kevin Sold re: Frankie Spencer stealing money from Jake Hughes, etc. 6. Jake Hughes’ statement to Detective Manricky regarding strangulation. 7. David Lankisch’s admission to selling drugs out of Jake Hughes’ house. 8. Jake Hughes’ alleged statement to Frankie Spencer in Kelly Conway’s presence re: tying Ms. Spencer and having sex with her. Defendant may rebut with Mr. Conway’s recollection re: the conversation. 9. Jake Hughes’ and David Lankisch’s statements made in Charles Coleman’s presence re: Frankie Spencer. 10. Jake Hughes’ statements to Frankie Spencer in David Turton’s presence re: going to the desert, hanging her from tree, tying her hands, etc. Defendant may introduce rebuttal evidence on this. 11. The two photographs showing rope, twine, and a shoe lace. Just before the start of trial, the case was transferred to Judge Fleischman. Although initially stating that he planned to abide by his predecessor’s rulings, the judge revisited, at the prosecutor’s urging and over defendant’s objection, many of the acts and statements previously precluded. He thereafter ruled that four general categories of evidence would be relevant: (1) defendant’s relationship with the victim; (2) his reaction to the murder; (3) his retaliatory responses in threatening situations; and (4) his utilization of other people, including juveniles, to do certain deeds. Ultimately, testimony regarding defendant’s drug dealing, verbal and physical threats, and miscellaneous acts of violence, including three arsons, was admitted in evidence. Defendant asserts that much of the evidence lacked relevance. See Rule 402, Ariz.R.Evid. He says the state sought to prove only that he had a general propensity for violence, which constitutes improper character evidence under Rule 404, Ariz.R.Evid. He also argues that there was insufficient proof of some of the acts, see Huddleston v. United States, 485 U.S. 681, 685-87, 108 S.Ct. 1496, 1499-1500, 99 L.Ed.2d 771 (1988); State v. Marahrens, 114 Ariz. 304, 307, 560 P.2d 1211, 1214 (1977), and that any probative value of the admitted evidence was substantially outweighed by the danger of unfair prejudice. See Rule 403, Ariz.R.Evid. Finally, he challenges the trial judge’s modification of the earlier evidentiary rulings. A. Other Crimes, Wrongs, or Acts The court admitted detailed evidence of defendant’s involvement in the firebombing of Michelle Phifer’s apartment. Rebecca Lankisch testified that her brother David threw a molotov cocktail through Phifer’s window because he was “taking care of business” for defendant, who had offered to pay $200 for the deed. James Nelson told the jury that defendant was angry with Phifer because she had crossed him in a drug deal. Charles Coleman stated that defendant responded to news of the arson by proclaiming, “The bitch finally paid,” and by telling others she had been taught a lesson. Other witnesses confirmed that defendant wanted the apartment burned because Phifer owed him money. In addition, the trial court permitted Nelson to relate instances in which he had been threatened by defendant. These included the firebombing of his car (allegedly for moving out of their apartment), having a loaded gun put to his head, and being chased with a knife. Nelson was also allowed to describe defendant as a person who sought revenge: Q. Did he indicate to you if people — if he felt that people had done him wrong that he would retaliate and do something to hurt them in return? A. Yes. Q. Did you know the defendant to deal drugs? A. Yes, I did. Q. And did you have conversations with Mr. Hughes about people who he supplied drugs to who maybe wouldn’t pay him or couldn’t pay him? A. Yes. Q. Did he indicate to you that people who didn’t pay him would become an accident? A. Yes, they did. Q. Over the time that you met Mr. Hughes did you have — I guess you’ve indicated you’ve had conversations with him about what he would do if people did him wrong? A. Yeah. Q. Did he indicate to you that it wasn’t his style to do things himself to these people who had done him wrong? A. Yes. Finally, the court admitted testimony from ten separate witnesses regarding defendant’s drug dealing, many of whom related details of their own transactions with him. Some reported general threats he had made in the past. For example, Alex Lee testified as follows: Q. Mr. Lee, do you recall an occasion when you were having a conversation with Jake and he had the opportunity to pull out a knife? A. Yes. Q. And at that time he was trying to prove a point to you, was he not? A. Yes. Q. And he was trying to prove to you that if somebody had something over you that you would do what they said? A. That’s correct. Q. And on this occasion you were sitting on a couch and he came close to you and stabbed a couch right next to you? A. That’s correct. Q. He told you as well if you were in danger that you would do what he said? A. Yes. Q. And in fact you had many conversations about that type of thing? A. Yes. Q. ... Did he ever tell you that if you hurt him or anything along those lines he said he’d wait ten years to come after you? A. That’s correct. Q. And if not, one of his followers would? A. I never heard him say about his followers. I knew if you mess with Jake you’re going to pay a price. Another witness, David Holt, added that defendant claimed he would get his money one way or another if someone owed him for drugs. Kevin Sold further corroborated the image of defendant as a man who retaliated when crossed: Q. During the course of the time that you would see the defendant, did he ever discuss with you his drug dealings and what would happen to people if they didn’t — if they screwed him? A. Yeah. Q. When we’re talking about if they screwed him, what are we talking about? A. If they were to rip him off and stole from him. Q. What did he tell you? A. That he didn’t like if people did it. People could get hurt that way. Q. Did he ever say what he would do? A. Not specifically. It was again: Accidents happen. Rule 404, Ariz.R.Evid., prohibits evidence, of a person’s bad character in order to prove a propensity for committing crimes. The danger sought to be avoided is that such evidence has “relatively slight probative value compared to the risk of misuse by the jurors.” Morris K. Udall et al., Arizona Practice: Law of Evidence § 83, at 170 (3rd ed.1991). The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited and either to allow it to bear too strongly on the present charge or to take the proof of it as justifying a condemnation, irrespective of the accused’s guilt of the present charge. 1A John H. Wigmore, Evidence § 58.2, at 1212 (Tillers rev.1983). Rule 404(b) makes an exception for evidence of crimes, wrongs, or acts offered for some relevant purpose other than proving conformity with character. Even when a proper basis is articulated, however, the evidence should nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Rule 403, Ariz.R.Evid. The state argues that the Phifer and Nelson arsons, exhibiting defendant’s response to those who angered him, demonstrated intent and modus operandi. It also claims that the Phifer firebombing illustrated defendant’s control over Lankisch and established a common scheme or plan of using juveniles to commit crimes. As for other acts of violence against Nelson, the state asserts they were relevant to put his testimony “in perspective” and to understand that he believed defendant’s threats were serious. Likewise, it argues that the couch-stabbing incident demonstrated Lee’s belief that defendant was not bluffing when he suggested that people would “pay a price” if they messed with him. Lastly, according to the state, defendant’s narcotics activity and related comments regarding what he would do to people who “crossed him” were unavoidable and relevant because his occupation at the time of the murder was that of a drug dealer, his relationship with the victim centered on drugs, and one possible motive for the murder was that she had interfered with his business. 1. Phifer ñrebombing Because the trial court deferred to the first judge’s cursory ruling regarding the Phifer arson, there is nothing in the record indicating the specific basis on which it was admitted. We therefore consider each of the state’s proffered non-character purposes. See State v. Sardo, 112 Ariz. 509, 515, 543 P.2d 1138, 1144 (1975) (evidentiary determinations should be affirmed if legally correct on any ground). To establish identity based on other acts, “‘the modus operandi of and the circumstances surrounding the two crimes must be sufficiently similar’ as to be like a signature.” State v. Jackson, 186 Ariz. 20, 27, 918 P.2d 1038, 1045, cert denied, — U.S.-, 117 S.Ct. 527, 136 L.Ed.2d 413 (1996) (citations omitted). We have trouble accepting the state’s claim of “striking similarities” between the strangulation murder and the mo-lotov cocktail arson. At best, there are only two likenesses — both victims were women who had angered defendant and David Lank-isch may have been paid to commit the crimes. We do not agree that these are sufficient to identify defendant as an accom plice to murder. Cf. State v. Harding, 187 Ariz. 278, 290, 670 P.2d 383, 395 (1983)(“striking similarities” existed where both victims had stayed at hotels, were similarly hog-tied and gagged, and had personal effects and vehicles stolen). The assertion that the firebombing was part of a common scheme or plan is equally meritless. For purposes of establishing this 404(b) exception, the other act evidence must establish “a particular plan of which the charged crime is a part.” State v. Ives, 187 Ariz. 102, 106-07, 927 P.2d 762, 766-67 (1996). Mere similarity does not, by itself, prove that the conduct was part of a common scheme or plan. Id. at 107, 927 P.2d at 767. The state contends that defendant’s pattern of striking back at those who angered him and his use of juveniles to commit crimes demonstrate a distinct strategy. The argument, however, is merely another way of saying that defendant acted in conformity with his prior bad acts, the very essence of what Rule 404(b) forbids. The common scheme or plan exception requires something more than mere criminal tendencies. See Morris K. Udall et al., Arizona Practice: Law of Evidence § 84, at 185-86 (3rd ed. 1991) (“[T]he distinction [for 404(b) purposes] is between proving a specific plan embracing the charged crime and proving a general commitment to criminality____”); State v. Ramirez Enriquez, 153 Ariz. 431, 432-33, 737 P.2d 407, 408-09 (App.1987). Other than defendant’s propensity for violence, there simply is no evidence tying these acts together as part of some over-arching criminal scheme. Cf. State v. Grainge, 186 Ariz. 55, 58, 918 P.2d 1073, 1076 (App.1996) (in prosecution for sexual offenses involving two minors, evidence of furnishing marijuana to one of them admissible as part of defendant’s plan to seduce the victim). Likewise, we cannot accept the state’s contention that the Phifer firebombing, as well as the Nelson car arson, show defendant’s intent. Where, as here, the accused denies any involvement in the charged offense, the “intent” exception of 404(b) is not a proper basis for injecting prior misconduct into a proceeding. Ives, 187 Ariz. at 110, 927 P.2d at 770 (“Unless there is some discernible issue as to defendant’s intent (beyond the fact that the crime charged requires specific intent), the state may not introduce evidence of prior bad acts as part of some generalized need to prove intent in every case.”). These acts were unrelated, isolated instances. See State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487, 489 (App.1993) (“Evidence of a prior crime, act, or wrong cannot be introduced to prove a defendant’s mental state unless it is similar to the act for which the defendant is on trial.”). Finally, the state asserts that the apartment firebombing was relevant to show defendant’s control over Lankisch. We agree. In his jailhouse statement to Salerno, defendant said he gave two juveniles cocaine to commit the murder. Evidence that Lankisch had previously worked for defendant tended to identify him as one of those juveniles. Relevancy notwithstanding, however, the admitted evidence went far beyond that necessary to establish the relationship between Lankisch and defendant. Because most of the witnesses discussed the Phifer arson in the context of defendant’s retaliatory character, there is a substantial risk that the jury considered this evidence for an improper purpose. See Rule 403, Ariz.R.Evid.; State v. Salazar, 181 Ariz. 87, 92, 887 P.2d 617, 622 (App.1994). 2. Nelson incidents During the state’s offer of proof regarding the car arson, gun threat, and knife incident, the prosecutor avowed that Nelson would testify about a threat defendant allegedly made after the victim’s body was found that he would “have an accident” if he talked to the police. Although defendant did not challenge the admissibility of the statement itself, the trial court ruled that details of these other incidents would be admitted to show whether Nelson took the threat seriously. He later added that they would also show defendant’s response to threatening situations, “as well as his relationship -with Mr. Nelson, who’s apparently going to be a pretty important witness.” Concerning the threat, however, Nelson testified to only the following: Q. Did Jake ever have conversations with you about you talking to the police? A. Yes, he did. Q. And what was it that he told you? A. That if the police contacted me I was — I was supposed to say nothing. I didn’t know anything. To play stupid. Q. Did he ever tell you what would happen to you if you talked to the police? A. Yeah. I would become one of his accidents. Q. Did he ever indicate to you what would happen to you if he got busted? A. Yes, he did. Q. What did he indicate to you? A. That I would be an accident either when it happened or if and when he gets out. (Emphasis added). Even if we assume that this conversation referred to the murder rather than defendant’s other illegal activities, and that it took place after the victim’s body was found, whether Nelson thought defendant’s threats were serious was essentially irrelevant. He admitted during cross-examination that he never hesitated in talking to the police. There also was no suggestion that his delay in telling authorities about defendant’s dream occurred because he feared retaliation. Cf. State v. Williams, 183 Ariz. 368, 376, 904 P.2d 437, 445 (1995) (attempted murder of a witness admissible to explain another’s initial refusal to tell the truth about charged crime); State v. Jeffers, 135 Ariz. 404, 417, 661 P.2d 1105, 1118 (1983) (assaults on others admissible to explain witness’s fear of defendant and reason for delayed reporting). Moreover, as previously noted, defendant’s “pattern of retaliating when crossed” is just another way of saying “propensity for violence.” Thus, it too was an improper basis for admitting the arson, gun, and knife incidents. 3. Lee incident Having reviewed the entirety of Lee’s testimony, we can discern no legitimate reason for admitting the couch-stabbing incident and related threat. As with Nelson, there is no assertion that the witness changed his testimony or lied to police out of fear of defendant. This evidence served only to paint defendant as a violent, aggressive person, in direct contravention of Rule 404(b). 4. Drug dealing Defendant concedes that his drug involvement with the victim was relevant to motive. The state presented evidence that he believed Frankie was stealing his customers, had once used some drugs that were supposed to be sold, and owed him $175. Defendant argues, however, that the extensive testimony of his illegal dealings by no less than 10 witnesses went far beyond what was necessary to establish motive. We agree. That defendant regularly sold drugs to others could only have reinforced in the jurors’ minds that he was a bad person— someone who had a propensity for committing crimes. He was not on trial for selling or possessing narcotics. It was therefore incumbent on the trial court, under Rule 403, to limit the evidence to its probative essence (motive) by excluding irrelevant or inflammatory detail. See Salazar, 181 Ariz. at 92, 887 P.2d at 622. No such attempt was made here. Moreover, we cannot agree with the state that the testimony from Holt, Sold, and Nelson regarding defendant’s threats to strike back at those who ripped him off in drug deals was “unavoidable.” On the contrary, the evidence should have been excluded because the only possible basis for its admission was to show that defendant acted in conformity with a violent, vengeful character. B. Other Statements 1. Choitz ñrebombing During grand jury proceedings, Kelly Choitz testified to her belief that defendant flrebombed her car after she had confronted him about being a bad influence on the Lank-isch siblings. There was no other evidence of defendant’s involvement, and he was never charged with the crime. At trial, the prosecutor argued for admission of a statement defendant made to Don Porterfield in response to having been accused of burning the vehicle. Defendant allegedly said, “I don’t do chickenshit stuff like that, if I have something out for someone I kill them.” The trial judge admitted the remark as a statement of intent, see Rule 803(3), Ariz. R.Evid., basing his ruling on State v. Mincey, 115 Ariz. 472, 566 P.2d 273 (1977), rev’d, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (Mincey I); State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981) (Mincey II); and State v. Mincey, 141 Ariz. 425, 687 P.2d 1180 (1984) (Mincey III). Rufus Junior Mincey was convicted of second-degree murder for killing an undercover narcotics officer. This court affirmed the admission of comments, made several weeks before the crime, that he wanted to cut down a shotgun “in case he ever get hassled by pigs” and would use the weapon to “kill a pig if they get in my way.” Mincey III, 141 Ariz. at 435, 687 P.2d at 1190. Because the statements referred to a specific class of persons (police) of which the victim was a member, this court found that they were relevant to establish defendant’s intent to take the life of another. Mincey I, 115 Ariz. at 481, 566 P.2d at 282; Mincey III, 141 Ariz. at 435, 687 P.2d at 1190. Here, defendant argued that because the statement had nothing to do with the victim, its probative value was substantially outweighed by the danger of unfair prejudice. See Rule 403, Ariz.R.Evid. Believing defendant’s objection “really goes to the weight, not the admissibility” of the statement, the court observed that defendant’s remark was no different than one in which a person accused of murdering a spouse has said, “I’m angry at my spouse and I want to kill her.” This suggests that the judge missed the point of defendant’s objection, and the record does not indicate whether he considered anything other than relevance in admitting the statement. See State v. Taylor, 169 Ariz. 121, 125, 817 P.2d 488,492 (1991) (encouraging explicit Rule 403 weighing). Ordinarily, a general threat to do harm, not expressly directed at the victim, has little probative value unless it is connected in some way to the charged offense. 41 C.J.S. Homicide § 204, at 44 (1991). We agree with the state that the victim here was within an identifiable category of persons — those who crossed defendant. However, the remark encompassed such a broad spectrum of individuals that its worth was highly questionable. See State v. Bible, 175 Ariz. 549, 593, 858 P.2d 1152,1196 (1993) (statement about a large group not overwhelmingly probative). We must also consider the circumstances under which the statement was made in assessing its probative value. Unlike in Min-cey, where the accused anticipated police infiltration of his drug operation, the instant comment was more akin to generalized puffing or bragging. Although the remark may have been marginally relevant to identify defendant as the culprit, we believe the risk was too great that the jury would improperly consider it as evidence of his bad character. 2. Views of women Over objection, the trial court allowed Nelson to testify as follows: Q. During the time that you knew Jake and lived with Jake did he ever discuss with you women? A. Yes. Q. And how did he react to women? A. Well, he was very possessive, and a woman had her place and she did what he wanted her to do, but if you’re a good friend of Jake’s you could do whatever you would like as far as bodywise goes, but he wanted her mind. Q. He what? A. He wanted her mind. Q. What do you mean by that? A. He wanted to manipulate her around, get her to do the things he wanted to do. Defendant characterizes the foregoing as testimony of an irrelevant prior bad act. Although in our view these statements are not “other acts” for purposes of Rule 404(b), we agree they lacked relevance. There was no basis for offering such testimony other than to show that defendant acted in conformity with a negative view of women and a desire to use them. See, e.g., State v. Johnson, 71 Ohio St.3d 332, 643 N.E.2d 1098, 1105 (1994) (hatred of women a character trait). Be cause this type of evidence is prohibited by Rule 404(a), and there is no claim that defendant placed his character in issue, the court erred in admitting it. C. Harmless Error Analysis Assuming, without deciding, that it was proper to revisit the first judge’s evidentiary rulings, the court abused its discretion in admitting the evidence of other wrongful acts. As a result, the case was saturated with improper inferences of defendant’s bad character. Moreover, permitting testimony of defendant’s threat to kill anyone he had “something out for” accentuated the image of defendant as a violent, aggressive person. It is clear from the prosecutor’s closing argument that he wanted the jury to focus on defendant’s propensity to retaliate: What’s he going to do, ladies and gentlemen, when somebody rips him off? What’s he going to do when somebody pisses him off? What’s he going to do when somebody hurts him? Listen to him. He’s been telling everybody all along. Although the state presented significant circumstantial evidence of defendant’s guilt, many of the witnesses had credibility problems. It is thus no surprise that the prosecution, in closing, recounted every bad act admitted as well as the descriptions of defendant’s threatening personality. See State v. Charo, 156 Ariz. 561, 563, 754 P.2d 288, 290 (1988) (use of evidence in closing arguments belied claim that it was unimportant). Additionally, we note that the state failed to put forth any claim of harmless error. It is also significant that the jury found defendant guilty on counts 2 and 3 even though, as discussed hereinafter, there was little support for those convictions. The volume of improper character evidence admitted in this trial was overwhelming. Because we cannot say beyond a reasonable doubt that the jury’s verdict was not influenced by these errors, we must reverse the convictions and remand for a new trial. See State v. Grannis, 183 Ariz. 52, 57, 900 P.2d 1, 6 (1995); Charo, 156 Ariz. at 563, 754 P.2d at 290. II. Other Issues Several other evidentiary challenges may arise again on retrial, so we discuss them here. We also address defendant’s Rule 20 arguments regarding counts 2 and 3. All remaining issues, including those raised in the state’s cross-appeal, are moot A. Expert Testimony The prosecution offered Lowell Crace as a knot expert. He testified that he had been a military interrogation specialist and, in that capacity, had occasion to view the use of various restraint methods. Defendant argues that such observation does not constitute specialized experience in knots and ropes. He now also asserts that military personnel are not authorized to testify as witnesses, citing 32 C.F.R. § 516.49, and claims that Crace’s statements about prisoners of war added a sinister aura to the proceedings, inflamed the jurors’ passions, and failed to assist them in their deliberations. We note that the latter issues were not raised below. Moreover, although initially objecting on foundational grounds, defense counsel failed to re-assert his opposition after the court heard additional testimony and qualified the witness. Waiver notwithstanding, there was no error. An expert may give an opinion based on either actual experience or careful study of a subject. State v. Richards, 166 Ariz. 576, 578, 804 P.2d 109, 111 (App.1990). Here, the state established that Crace had been in the Army for 25 years, received training in Vietnam and military interrogation schools, worked in various capacities with prisoners and detainees, and had seen hundreds of people tied up with ropes. Additionally, we disagree with defendant’s reading of 32 C.F.R. § 516.49 and find that the trial judge acted within his discretion. B. Victim’s Letters To establish the victim’s state of mind pursuant to Rule 803(3), Ariz.R.Evid., the state introduced an excerpt from a letter she "wrote two weeks prior to her disappearance. It reads: I’m not seeing Jake anymore. He says he wants me out of his life because I hurt him too much. He’s in love w/me, ya know, and I guess he really hates it because Dave [Lankisch] and I slept together and I won’t let him touch me. (and I never will) Just between me and you, it’s because he’s black. You probably know that tho. If he was white I’d probably marry him or something dumb like that. Defendant argues that the court erred in refusing to admit the entire letter as well as two others written by the victim on the same day. He asserts that the three letters, taken together, best represented the victim’s state of mind because they showed she was not involved with anyone, including himself. He points to Rule 106, Ariz.R.Evid., which states that “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” (Emphasis added). Rule 106, however, does not require the admission of irrelevant or prejudicial evidence. See State v. Passarelli, 130 Ariz. 360, 363, 636 P.2d 138, 141 (App.1981); see also 1 John W. Strong et al., McCormick on Evidence § 56 (4th ed.1992). Here, the proffered material was irrelevant because at issue was whether she had rejected defendant, not whether a “serious” relationship existed between them. C. Gruesome Photographs The trial court admitted two gruesome photographs of the victim. Defendant argues that the exhibits were highly inflammatory and prejudicial because the body was in a state of decomposition. He also claims they were irrelevant because he did not contest the cause of death. The admission of photographs is reviewed for an abuse of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 170, 800 P.2d 1260, 1278 (1990). It involves a three-part inquiry: (1) relevance; (2) tendency to incite passion or inflame the jury; and (3) probative value versus potential to cause unfair prejudice. State v. Murray, 184 Ariz. 9, 28, 906 P.2d 542, 561 (1995), cert, denied, — U.S.-, 116 S.Ct. 2535, 135 L.Ed.2d 1057, and cert, denied, — U.S. -, 117 S.Ct. 193,136 L.Ed.2d 130 (1996). Exhibit 22 depicts the victim’s back and shows the placement of the stick within the noose, as well as the length of the rope. Although unpleasant, the photograph was relevant and not unduly prejudicial because there was some dispute as to whether the victim had been bound at the hands and/or feet and whether the stick was used as a torture device. Exhibit 20 is a side view of the victim in the morgue. It portrays the condition of her clothing and the discoloration of her face. Although this picture is also gruesome, we do not find it unduly prejudicial. D. Sufficiency of Evidence on Counts 2 and 3 Defendant’s motion for directed verdict on the hindering prosecution and conspiracy to hinder prosecution charges was denied by the trial court. See Rule 20(a), Ariz.R.Crim.P. Judgment of acquittal is appropriate when there is no substantial evidence to warrant a conviction. State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). Substantial evidence is more than a “mere scintilla” and is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt. Id. We view the evidence in a light most favorable to sustaining the verdict. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). To prove hindering prosecution, the state must show “that a defendant intended to hinder the apprehension, prosecution, conviction, or punishment of another for a felony and that the defendant rendered assistance to such person.” State v. Fisher, 141 Ariz. 227, 248, 686 P.2d 750, 771 (1984)(emphasis added); A.R.S. § 13-2512. “Assistance” includes intimidating any person from aiding in the discovery, apprehension, prosecution or conviction of another, and knowingly concealing evidence. A.R.S. §§ 13-2510(4),(5). A conviction of conspiracy requires proof of an intent to promote or aid in the commission of the offense, an agreement with another to engage in conduct constituting the offense, and an overt act in furtherance of the offense. State v. Newman, 141 Ariz. 554, 559, 688 P.2d 180, 185 (1984); A.R.S. § 13-1003(A). The state argues that when he threatened to hurt Nelson if he talked to the police, defendant attempted to obstruct further investigation of Lankisch. As proof of concealment and a conspiracy to hide evidence, it points to accounts from defendant’s neighbors, who heard three sets of footsteps and a car speeding away on the night of the victim’s disappearance. The state also relies on defendant’s comments to Coleman about the victim’s body being left in the desert. In response, defendant asserts there is no proof anything was concealed. He claims the state’s position is premised on the assumption that evidence must have been hidden because the police could find nothing linking him to the crime. Moreover, he says, the state failed to relate the Nelson threat to the killing. We agree with defendant that Nelson’s testimony is inadequate proof of an intent to hinder either Lankisch’s or Scherf s prosecution. As the record reflects, the prosecutor did not show when the statements were made. See supra, at 70, 938 P.2d at 465. Significantly, the witness claimed that he last spoke to defendant on the day he described his dream. This allegedly took place after the victim disappeared but before her body was found. Yet, the prosecution made no attempt to tie the “don’t talk to police” threat to this final conversation or to connect it with the murder rather than the numerous other illegal activities described by the witness. Nelson’s testimony, standing alone, is not enough to support the hindering prosecution conviction. The remaining evidence relied on by the state is equally insufficient. To say that defendant faces a separate criminal prosecution for concealing the victim’s body, thereby inhibiting the investigation of co-defendants, is tantamount to charging him with hindering his own prosecution. Such a result is not supported by the statute’s common-law underpinnings as an “accessory after the fact” crime, one which was “a distinct, independent offense.” State v. Sims, 99 Ariz. 302, 309, 409 P.2d 17, 21 (1965); A.R.S. § 13-141 (repealed 1976); see also Goodwin v. State, 644 So.2d 1269, 1274 (Ala.Crim.App.1993)(cannot indict for hindering prosecution of others where defendants’ own charges arise from the same set of facts); State v. Pugh, 55 Or.App. 305, 637 P.2d 1325, 1329 (1981) (cannot convict defendant of hindering prosecution of co-defendant where defendant’s conduct served his own interest against self-incrimination). Finally, we can identify nothing in the record that would support a finding that there had been an agreement between defendant, Lankisch, and Scherf to hinder each other’s prosecution. See State v. Sullivan, 68 Ariz. 81, 87, 200 P.2d 346, 350 (1948) (“Conspiracies cannot be established by suspicions ____ Mere association does not make a conspiracy.”) (citation omitted). Because there is insufficient evidence of hindering prosecution or conspiracy, we must reverse counts 2 and 3 with prejudice. DISPOSITION We reverse defendant’s convictions and remand to the trial court for further proceedings consistent with this opinion. FELDMAN, MOELLER and MARTONE, JJ., and ROBERT J. CORCORAN, J. (Retired), concur. . The record is replete with leading questions. The judge, while acknowledging continuing objections from the defense, instructed the prosecutor to lead several of the witnesses in an apparent attempt to confine the testimony to only those other acts specifically admitted.

CUNNINGHAM, C. J. (After Stating the Facts as Above). The relief demanded by this action was a personal judgment against the Peabody Company as the corporate successor to the Bonanza Belt Copper Company, and also a decree against the mines, the title to which was the assets of the Bonanza Belt-Copper Company at the time the plaintiffs’ debt was created, and which said mines the appellant acquired by means of transactions which were performed for the purpose and with the intent to hinder, delay and defraud creditors of the Bonanza Company, and especially these plaintiffs. The trial court rendered a personal judgment against the Bonanza Belt Copper Company in favor of the plaintiffs for their claim up to April 6, 1914, and denied recovery for all items of account after that date, on the theory that the plaintiffs were notified on that day by the general manager of the Bonanza Belt Copper Company to close the credit account, and that plaintiffs are bound by that notice. The court further decreed that the mines described, the record title of which is in the appellant, Peabody Consolidated Copper Company, be sold to satisfy plaintiffs’ said judgment. The appellant seriously contends that, as the appellant is guilty of no fraud in fact, it cannot be held liable to pay the debts of the Bonanza Belt Copper Company; and in support of such contention it seriously and persistently urges upon our attention the case of Luedecke v. Des Moines Cabinet Co., 140 Iowa, 223, 118 N. W. 456, and particularly and especially requests that we examine the notes to 32 L. R. A. (N. S.) 616, where this Luedecke case is annotated. The language of the case that is pressed upon our attention is as follows: “In order to render the purchasing company personally liable for the debts of the selling corporation, it must appear that: (a) There be an agreement to assume such debt; (b) the circumstances surrounding the transaction must warrant a finding that there was a consolidation of the two corpora tiqns; or (e) that the purchasing corporation was a mere continuation of the selling corporation; or (d) that the transaction was fraudulent in fact” — citing cases. The court concludes by saying: “None of these things appear in this case, and in our opinion the court was in error in rendering a personal judgment against the purchasing corporation. ” These cases have no application to the judgment in this record. The judgment is not a personal judgment against the Peabody Company. The personal judgment is against the Bonanza Belt Copper Company, and pursues in the hands of the Peabody Company the real estate which belonged to the Bonanza Company at the time plaintiffs’ debt arose. It is well settled that— “Equity regards the property of a corporation ás held in trust for the payment of the debts of the corporation, and recognizes the right of creditors to pursue it into whosoever possession it may be transferred, unless it has passed into the hands of a bona fide purchaser; and the rule is well settled that stockholders are not entitled to any share of the capital stock, nor to any dividend of the profits, until all of the debts of the corporation are paid.” C., R. I. & P. R. R. Co. v. Howard, 74 U. S. (7 Wall.) 392, 409, 19 L. Ed. 117, 120. See, also, C., M. & St. P. R. R. Co. v. Third Nat. Bank, 134, U. S. 276, 33 L. Ed. 900, 904, 10 Sup. Ct. Rep. 550; Northern Pac. Ry. Co. v. Boyd, 177 Fed. 804, 819, 101 C. C. A. 18. The trial court expressly relied upon a line of cases correlated with the Boyd case. Our inquiry, therefore, is confined to a state of the facts which authorize the ci’editor to pursue property of his corporate debtor into the hands of a purchaser with notice of the creditor’s rights. The parties concede that plaintiffs were bona fide creditors of the Bonanza Company prior to and at the time the appellant corporation acquired its rights to the mines, the property in question. The circumstances surrounding the several transactions resulting in the record title to these mines coming to a pause in the Peabody Company are sustained by undisputed evidence or admissions. The Peabody Company’s immediate grantor was L. C. Dessar, who, by deed of August 5, 1915, conveyed to the Peabody Company said mines. Dessar organized and caused the Peabody Company to be incorporated on July 10, 1915, with an authorized capital stock of 300,000 shares of the par value of $5 a share. All of said capital stock was issued and delivered to D. C. Dessar in consideration of said deed and of the bonds secured by a trust deed. Dessar acquired the rights he conveyed by said deed of August 5, 1915, in the following manner: On July 23, 1914, L. C. Dessar was the principal stockholder, the controlling director, and general manager of the Bonanza Belt Copper Company, and claimed an indebtedness due him for money advanced in the sum exceeding $9,000, and a salary as general manager at $500 per month overdue for two years up to July 9, 1914, in the sum of $7,500, and filed suit against the said debtor, demanding judgment for both claims. In due time he recovered judgment in the sum of $18,013.84. Thereafter an execution was issued and levied upon said mines, the mines were noticed for sale and sold to the judgment creditor, L. C. Dessar, for his bid of $500. In due time, July 22, 1915, L. C. Dessar received a sheriff’s deed conveying all of the debtor’s rights in the mines to such purchaser. The purchaser, who was the principal stockholder, the retiring general manager, and thereupon became the apparent owner of all of the assets of the Bonanza Company, granted 'to said Bonanza Company a lease of the mines until he sold the mines to the Peabody Company on August 5, 1915, so that the Bonanza Company could continue to operate the mines in its own name for a short time. No one will seriously contend, in the light of these facts, that Dessar was ignorant of the claims of these plaintiffs. The transaction was consummated by the assistance of the courts, of which the plaintiffs are not charged with having any actual knowledge.. Dessar’s action was one in the nature of an action by a trustee to recover of the beneficiary a personal claim for money advanced to and personal services rendered as agent for the beneficiary, and a satisfaction of said claims in part by converting the entire trust estate into his personal ownership, for the small sum of $500, a sum not greater than the reasonable court costs of the proceeding which resulted in the transfer. By means of said court proceeding, L. C. Dessar acquired all of the assets of the Bonanza Belt Copper Company in excess of the property sufficient to satisfy a mortgage lien held by th.e Empire Trust Company, as trustee for the bondholders, and L. C. Dessar was the sole bondholder. L. C. Dessar thereby became possessed of all the right, title, interest and claim of the judgment debtor, the Bonanza Belt-Copper Company (paragraph 1373, Bev. Stats. Ariz, 1913), in and to the said mines as of the date of the levy of the execution which resulted in the sale» As an unsecured creditor of the Bonanza Company, Dessar, by such judgment and sale of the Bonanza Company’s equity in the mines, caused the Bonanza Company to deliver all of its assets to him. He thereby became a preferred creditor of the Bonanza Company. Dessar was the principal stockholder, general manager and principal creditor, controlling and directing all of the affairs of the Bonanza Belt Copper Company. He was the person most vitally interested in its affairs, and was in the position to be the best informed of its creditors of all its affairs. He is therefore charged with full knowledge of the creditors of the Bonanza Belt Copper Company and of the amount of their debts owing by said Bonanza Company. Dessar had actual notice, as general manager of the said Bonanza Company, of the plaintiff’s debt. With full knowledge of these affairs, Dessar proceeded, by said court action, to reduce all of the Bonanza Company’s assets to his use, to the exclusion of the rights of the other creditors, including these plaintiffs. These assets consisted of the Bonanza Belt Copper Company’s equity of redemption in the mines in excess of value sufficient to satisfy the bonded indebtedness represented by the bonds with interest issued under the authority of the trust deed mentioned- herein. Such equity was great or small in proportion to the value of the mines over and above the amount of the bonded debt secured by said lien. The value of such equity was uncertain so long as said lien remained unsatisfied, and such condition existed on the twenty-third day of July, 1915, ' when Dessar received his sheriff’s deed. ' The question therefore becomes vital whether the Peabody Consolidated Copper Company became a bona jide purchaser of said equity in excess of the lien of the trust deed without notice of plaintiffs’ claim against such equity as a- creditor of the Bonanza Company? Of course, L. C. Dessar, while he possessed such property, could not be heard to say that he had no notice of the existence of plaintiffs’ debts. Dessar is chargeable with full notice of plaintiffs’ rights, and the facts show that Dessar caused himself, as a creditor, to be preferred to other creditors to the loss of' the other creditors. Is the Peabody Company also, chargeable with notice of plain tiffs’ rights and the wrongs committed by L. C. Dessar against plaintiffs ? If the Peabody Company is chargeable with notice of the means used in the circumstances by which Dessar acquired the said mines to the harm of the plaintiffs, then the transfers, first from the Bonanza Company to Dessar, and, second, from Dessar to the Peabody Company, are void as to these creditor plaintiffs. At the time the Peabody Company acquired the said mines, Dessar was its promoter, its financial agent, its sole stockholder and controlling director — in fact, its guiding spirit. Is it possible that the Peabody Company could have acquired all of the rights of the Bonanza Belt Copper Company in the equity in the mines through the principal creditor, the general manager, and controlling stockholder of both corporations without at the same time acquiring knowledge of the means used by the mutual agent and stockholder to accomplish the conveyance and transfer and in the passage through him leave behind the other creditors? The answer of the lower court is, “No”; that Dessar’s knowledge affecting the title conveyed to the corporation he so represented must be imputed to the corporation he so organized — to the Peabody Consolidated Copper Company. This view of the matter of imputed notice is supported by 1 Thompson on Corporations, section 116, cases cited notes pages 250 and 251, and by natural justice and sound logic. Consequently the Peabody Company is chargeable with notice to the effect that the Bonanza Company preferred its principal stockholder and general manager as a creditor to its other unsecured creditors, and by means of a judgment permitted him to convert to his own use all of the assets, to the' loss of its general’creditors. The matter of value of the equity so converted by Dessar is not a question in this case. The intention and purpose with which the conversion was accomplished is a question in the pleadings. The complaint charges (paragraph XIII) the Peabody Company with having acquired title to the mines from Dessar in the manner and by the means above referred to “for the purpose and with the intent to hinder, delay and defraud the creditors of the said Bonanza Belt Copper Company, and especially for the purpose and with the intent of hindering, delaying and defrauding the plaintiffs in the collection of their said debt. . . . ” The plaintiffs further allege in the same paragraph of their complaint that the action of Dessar in causing the properties /to be sold under said two judgments “resulted in stripping the said Bonanza Belt Copper Company of all of its property, leaving it without any assets whatever subject to execution. ’ ’ The Peabody Company answered' paragraph XIII of the complaint in paragraph Y of its answer, wherein it says that it “denies that any of the acts or transfers or things alleged in said paragraph XIII of the complaint were for the purpose and with the intent to hinder, delay and defraud the creditors of the said Bonanza Belt Copper Company, and especially for the purpose and with the intent of hindering and delaying and defrauding the plaintiffs or any other person or corporation in the collection of any debt.” The appellant thereby asserts the necessity of the existence of an actual fraudulent purpose and specific intent to defraud in order to avoid a conveyance having the effect of depriving other creditors of means of satisfying their debts; that there must appear to exist a personal intent, a consciously fraudulent and dishonest motive, before the conveyance became void as to creditors. But such is not the meaning ordinarily given to such results of conveyances. See Gibson v. Love, 4 Fla. 217; California Cons. Mining Co. v. Manley, 10 Idaho, 786, 81 Pac. 50; Nelson v. Leiter, 190 Ill. 414, 83 Am. St. Rep. 142, 60 N. E. 851. The plaintiffs, as unsecured creditors of the Bonanza Belt Copper Company, had an equitable right to subject the said Bonanza Company’s equity ip the mines to a satisfaction of their debts in common with Dessar and other creditors. Of course, the rights of creditors are subordinate to the mortgage lien, as the equity depends upon that lien. The fact that Dessar converted all of the said equity to his use and benefit while standing in a confidential relation do the debtor and thereby being charged with a duty to cause said debtor to deal justly and honestly with all of its unsecured creditors makes him and the debtor whom he represents equally cognizant of the wrong resulting to other creditors less favorably situated, and without any personal, dishonest motive. The results amount to hindering, delaying and depriving the plaintiffs of a valuable right by acts purposely and intentionally done, hence, in law, defrauding the plaintiffs purposely and intentionally. ■ The law imputes the fraud from the acts, conveyances and transfers when they result in a wrong to another, in violation of a duty owing. The grantee receives and holds the title acquired in such circumstances in trust, subject to the claims of the persons wronged, provided the grantee is chargeable with notice of such wrong as a, fact. The lower court necessarily found, as a fact,- that the Peabody Consolidated Copper Company did have notice of these plaintiffs’ claims against the said equitable title, and for that reason it was not a bona fide purchaser for value, but held the property subject to plaintiffs’ rights. This court will net disturb a judgment unless it is made to appear clearly from the record that harmful error has been committed. Upon this record and the whole case, justice seems to have been doné the appellant. The judgment seems to have been particularly just and favorable to the appellant. There being no reversible error on the record, the judgment is affirmed. ROSS and BAKER, JJ., concur.

CUNNINGHAM, C. J. The property assessed, the valuation of which is the subject matter of this action, consisted of mills and smelters for the reduction of ores. The taxpayer was dissatisfied “with the amount of its assessment as fixed by the state tax commission and the board of equalization,” and therefore gave notice, filed the protest, paid the taxes, and filed the receipt for such payment in the office of the clerk of the board of supervisors on the fifteenth day of September, 1917. The papers were filed in the superior court, and the procedure indicated by paragraph 4887, Revised Statutes of Arizona of 1913, was substantially followed. The court denied a motion to dismiss the appeal, and a trial resulted in favor of the plaintiff, “that the tax as levied by the tax commission is excessive; that the amount of taxes be fixed in the sum of $2,000,000 in round figures; and that execution issue as provided by law.” The state and county appeal. The taxpayer moves to dismiss the appeal for the reason that the order made is not appealable. In State v. Inspiration Consolidated Copper Co., ante, p. 503, 181 Pac. 955, we have held adversely to such contention.' The motion to dismiss this appeal ié consequently denied. The judgment rendered in this cause was rendered in a matter wholly within the province of the state tax commission’s duties, of which the superior court acquired no jurisdiction, through the course of the proceedings by which the matter came before the court. We have considered all of the questions involved in this case in cause No. 1668 (State v. Inspiration Consolidated Copper Co., supra), and on the authority of that case the judgment is vacated and the cause remanded to the lower court, with instructions to dismiss the action. Vacated and remanded, with instructions. BAKER, J., concurs.

JOHN WILSON ROSS, J. The salient allegations in appellants’ amended complaint on which they base their right •to the relief sought are to the following effect: That on the thirty-first day of March, 1908, Mrs. Mary L. Wright, widow of James H. Wright, deceased, and mother of the plaintiffs and of Mary S. Wright, deceased, died intestate, seised in fee simple of certain real estate situate in the city of Prescott, Yavapai county, Arizona. That plaintiffs and Mary S. Wright, deceased, were and now are the sole heirs of Mary L. Wright, deceased. That Mary S. Wright and defendant, A. C. Young, were married on the fourteenth day of November, 1911, and that Mary S. Wright died intestate and without issue, leaving the said defendant, A. C. Young, still her lawful husband and sole heir at law. That the plaintiffs, on the eighteenth day of April, 1908, made, executed and delivered their quitclaim deed to said real estate to the said Mary S. Wright. That, at the time of the making of said quitclaim deed, it was mutually agreed by and between appellants and the said Mary S. Wright that the said Mary S. Wright should accept, take and hold the title to said real estate for the purpose of making a sale thereof, and should occupy and live upon the said premises and use the rents or income therefrom for the purpose of keeping the premises in repair and pay the taxes thereon. That as soon as the premises were sold the proceeds from such sale would be divided equally among the heirs, viz., E. S. Wright, Harry F. Wright, and Mrs. B. O. Jackson, the appellants, and the said Mary S. Wright. That the said Mary S. Wright agreed and consented to all the conditions so mutually understood, agreed and intended to be performed. That said quitclaim deed was made without consideration, but recites a consideration of one dollar.. Mary S. Wright died on the fourth day of April, 1915. That on the twenty-sixth day of February, 1916, E. S. Wright for himself and his coappellants requested of A. C. Young, appellee, to carry out the conditions of said agreement and presented to him a quitclaim deed for his signature, and that the said A. G. Young refused to execute and deliver the same. The plaintiffs prayed that a trust be declared in their favor for an undivided three-fourths interest in the said real estate, and that the said A. C. Young be adjudged a trustee of the said three-fourths interest. To the amended complaint, defendant interposed a general and special demurrer questioning the sufficiency of said amended complaint upon the grounds: That the same does not state facts sufficient to constitute a cause of action; that the alleged agreement, not being in writing, is void under the statute of frauds; laches and estoppel; peaceable and adverse possession under the three-year statute of limitation and the five-year statute of limitation; and, by way of answer, denies that appellants own any interest in said real estate; and alleges that appellee is the owner in fee simple of said real estate, obtaining title to the same as the sole heir at law of Mary S. Wright, deceased. . The cause was tried before the court without a jury. Thereafter, on the third day of May, 1917, the trial judge rendered his decision in writing, finding in favor of the defendant. On the same day judgment was entered in favor of the defendant. Prom the final judgment and order denying plaintiffs’ motion for a new trial, plaintiffs appealed to the supreme court. ■ -Attention is called to appellants’ first assignment of error, which is that the trial court erred in holding that a grantor cannot impress a trust upon his own deed by parol evidence alone. In the ease at bar the trust is an express trust as alleged in the amended complaint and proved by the evidence. There is no material conflict in the evidence. One of the main points raised by the pleadings, and which this court ought to determine, is: May the grantor in a deed duly executed and delivered impress or ingraft a parol trust in his own favor against the terms of his own deed when the trust is an express trust, and is not tainted with fraud, mistake or duress arising at the time of the execution of the deed? There is no provision in our statute similar to that found in the seventh section of the English statute of frauds and perjuries, which enacts that all -declarations or creations of trusts and confidences of any lands or tenements or hereditaments shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust or by his last will in writing. It necessarily follows that the English statute of frauds does not apply in our state, and the question is an open one as to whether an express trust may be impressed or ingrafted on a deed in favor of the grantor, as against the terms of his own deed when the same is not tainted with fraud, mistake or duress arising at the time of the execution of the deed. The seventh section of the English statute of frauds has been substantially enacted in some of the states of the United States, and it is uniformly held, wherever the statute of frauds in force contains a provision requiring express trust to be created or evidenced by writing, that an oral agreement between the grantor and grantee that the property conveyed shall be held in trust for the grantor cannot be enforced as an express trust. The alleged deed recites a valuable consideration paid by the said Mary S. Wright to the plaintiffs, and contains the habendum, which is as follows: “To have and to hold the same together with all and singular the appurtenances and privileges thereunto belonging or in any wise appertaining, and all the estate, right, title, interest and claim whatsoever of the said parties of the first part, either in law, or in equity, in possession or expectancy to the only proper use, benefit and behoof of the said party of the second part her heirs and assigns forever.” The authorities are to the effect that in a deed of this character, giving on its face clear indication that an absolute estate was intended to pass either by the recital of a valuable consideration paid, or by an express covenant to warrant and defend the title, no trust would be implied by reason of the fact that no consideration was actually paid. Gaylord v. Gaylord, 150 N. C. 222, 63 S. E. 1028. To the effect that a parol trust may not be ingrafted on a deed absolute on its .face in favor of the grantor as against the grantee, Gaylord v. Gaylord, supra, seems to be decisive, and we quote in extenso therefrom: “Upon the creation of these estates, however, oiur authorities seem to have declared or established the limitation that, except in cases of fraud, mistake, or undue influence, a parol trust, to arise by reason of the contract or agreement of the parties thereto, will not be set up or ingrafted in favor of the grantor upon a written deed conveying to the grantee the absolute title, and giving clear information on the face of the instrument that such a title was intended to pass. . . . “The trust cannot be alleged consistently with the deed, because it is impossible to believe that the grantee gave a full and valuable consideration for the privilege of holding the land for the use of the grantor. A deed may be regarded in two aspects: In one it is the means by which the title is conveyed; in the other, a memorandum of the terms and conditions of the transfer. If a man deliberately executes á sealed instrument, reciting that he has transferred the right of ownership for value received, he should not be permitted to put the grantee to the proof of that which has been established with the utmost solemnity known to the law. This is the more true because such a disguise is generally adopted for some sinister purpose, to defraud creditors or deprive a wife of dower. . •. . “The main current of decision is in this direction and establishes that a trust cannot be fastened on an absolute deed by evidence that the grantee paid no consideration, or that he agreed to take and hold the premises from the grantor. . . . “Thus it will be seen that, while in North Carolina, the seventh section of the English statute of frauds not having been enacted here, parol trusts will be upheld in given instances in favor of third persons, . . . such trusts will not be permitted or established here by reason of contemporaneous parol contracts and agreements between the parties when the same are in direct conflict with the expressed stipulations of the written deed and the entire purport of the instrument.” There are decisions to the contrary, but we think the better' rule is that where the deed is absolute upon its face, as in the instant case, and where the pleadings and the evidence both show an express trust, and where there is no allegation of facts in the- complaint showing fraud, duress or undue influence, the grantor ought not to be allowed by parol evidence to ingraft upon his own deed a trust in his own favor as against the terms of his own deed. The stability of titles rests largely upon written instruments, and to protect titles this rule in reason ought to prevail. We do not wish to be misunderstood, for there are many cases where equity will ingraft a trust on property in favor of the grantor by parol, and we quote from Pomeroy’s Equity Jurisprudence, volume 3, section 1053, in support thereof, to wit: “In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, . . . and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right and takes the property relieved from the trust.” The pleadings in plaintiffs’ amended complaint contain no allegations of fact showing fraud, misrepresentations, concealments, undue influence, duress, or that any undue advantage was taken of the plaintiffs by reason of weakness or necessities which would render the taking of the property by the said Mary S. Wright unconscientious. The pleadings wholly fail to show a constructive trust; but, on the contrary, they show an express trust, and the evidence establishes an express trust. When the pleadings and the evidence both show an express trust, the grantor in a deed duly executed' and delivered cannot impress or ingraft by parol a trust in his own favor against the terms of his own deed. Richardson et al. v. McConaughey et al., 55 W. Va. 546, 47 S. E. 287; Gaylord et al v. Gaylord et ux., 150 N. C. 222, 63 S. E. 1028. As expressing our views and conclusions, we quote verbatim, the following: “It is not alleged that there was any fraud or mistake in the execution of the deed, or any viee therein. There is no claim that any language was used >in the deed which was not intended by the parties to be used in expressing the contract between the parties} The sole question in this case is whether parol testimony, in the absence of any allegation of fraud or mistake, is admissible to contradict the legal import óf a deed. We are of the opinion that this cannot be done. It is a well-settled rule in this state that parol evidence is not admissible to contradict written evidence, except in cases of fraud or mistake, or where there is vice in the contract.” Holtheide v. Smith et al., 74 S. W. 689, 24 Ky. Law Rep. 2535; Munford v. Green’s Admr., 103 Ky. 140, 44 S. W. 419, 19 Ky. Law Rep. 1791; Brown v. Brown et al., 66 Conn. 493, 34 Atl. 490; Handlan v. Handlan, 42 W. Va. 309, 26 S. E. 179. Defendant’s general demurrer to plaintiffs’ amended complaint ought to have been sustained. Appellants’ second assignment of error raises the question that the evidence presented was not sufficient to justify the court in rendering judgment for the plaintiffs. The court in this cause was the trier of the facts. Our Constitution and the laws made in pursuance thereof provide that trial by jury may be waived in civil cases where the consent of the parties is given, and, if the jury shall be waived, the cause shall be tried by the court. In this canse the record shows that trial by jury was waived, and the cause tried by the court. The law says, where a trial is held'by the court, the court occupies the same relation to the facts in the case that a jury would have if the case had been tried by a jury. It would serve no useful purpose to analyze the evidence. Suffice to say there is evidence in the record of a substantial nature tending to support the judgment of the lower court. We are asked to review the facts by this^ assignment of error. It was the duty of the trial court to give full consideration to the evidence and to pass upon its weight and sufficiency, and this court cannot say that its conclusions were wrong where there is evidence of a substantial nature tending to support the judgment. This court should reverse the judgment of the lower court only when there is a want of evidence to sustain it, or when the judgment is so manifestly against the weight of evidence as to show it to be the result of bias or prejudice. Miles v. Franz Lumber Co., 14 Ariz. 455, 130 Pac. 1112; Butler v. Shumaker, 4 Ariz. 16, 32 Pac. 265; Willard v. Carrigan, 8 Ariz. 70, 68 Pac. 538. Appellants’ other assignments of error we deem unnecessary to consider. We would be remiss should we fail to commend the illuminating briefs filed by the respective counsel in this cause. For the foregoing reasons, the judgment of the lower court is affirmed.