IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JAVIER ROMERO, Appellant.

No. 1 CA-CR 18-0334

Appeal from the Superior Court in Maricopa County

No. CR 2014-001009-001

The Honorable Peter C. Reinstein, Judge, Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist III

Counsel for Appellee

Michael J. Dew Attorney at Law, Phoenix

By Michael J. Dew

Counsel for Appellant

FILED 3-31-2020
STATE v. ROMERO

Opinion of the Court

2

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Javier Romero appeals from his convictions and sentences for 

second-degree murder and aggravated assault. He argues the superior

court (1) committed fundamental error by failing to provide an additional 

jury instruction defining legal insanity; (2) improperly precluded testimony 

addressing the consequences of a guilty except insane (“GEI”) verdict; and

(3) should have found him GEI as a matter of law. For the following 

reasons, we affirm. 

BACKGROUND

¶2 While Romero was working in a restaurant, he suddenly 

grabbed a large kitchen knife andrepeatedly stabbed a co-worker to death. 

Romero then moved the victim’s body to a nearby room and attempted to 

clean up the blood. Other employees, including Romero’s brother,

discovered the body shortly after the stabbing. Security cameras also 

captured the incident. When Romero’s brother saw what had happened,

he grabbed Romero and asked him what he had done. Romero did not 

respond; his brother testified he “looked like a deer in the headlights . . . 

like he was shocked [at] what he did.” 

¶3 When police officers arrived, they found Romero waiting in 

the restaurant with his supervisor, who explained what Romero had done. 

Romero had a blank expression on his face and did not seem to understand 

instructions. Noticing extensive cuts on Romero’s arms, officers took him 

to a hospital for treatment. Romero told hospital staff his wounds were selfinflicted. After his wounds were cared for, Romero reached out from his 

hospital bed and grabbed at a nearby officer’s handgun. The officer 

prevented Romero from obtaining the weapon and restrained him, after 

which Romero looked at the officer and said, “I don’t know why I did that.” 

¶4 As an affirmative defense, Romero sought to prove he was 

GEI under A.R.S. § 13-502, which states that “[a] person may be found [GEI]

if at the time of the commission of the criminal act the person was afflicted 

with a mental disease or defect of such severity that the person did not 
STATE v. ROMERO

Opinion of the Court

3

know the criminal act was wrong.” At trial, the superior court’s 

preliminary instructions informed the jury that if it found beyond a 

reasonable doubt that Romero committed the charged offenses, it would 

then be required to decide whether he proved by clear and convincing 

evidence he was GEI when the crimes were committed. 

¶5 The three medical experts who testified at trial agreed that 

Romero suffered from schizophrenia but disagreed as to whether Romero 

knew at the time that his acts were wrong. Dr. James Sullivan, testifying 

for the defense, opined that Romero did not know his acts were wrong due 

to a paranoid delusional episode. Dr. Janet Perry, the court-appointed 

expert, agreed. But the State’s expert, Dr. James Seward, offered no

definitive conclusion as to whether Romero knew his acts were wrong. Dr. 

Seward opined that when Romero began stabbing the victim, Romero was 

likely not aware what he was doing was wrong, but there were signs he

became aware what he was doing was wrong in the course of the stabbing. 

Dr. Seward also stated it was possible that Romero’s “behaviors were all 

some kind of manifestation of his psychotic state rather than being an 

awareness that the act was wrong.”

¶6 The jury found Romero guilty on both counts, rejecting his 

GEI defense. This timely appeal followed. 

DISCUSSION

¶7 Our standard of review of the asserted errors depends on 

whether Romero objected in the superior court. If he objected and we find 

error, the State must prove the error was harmless. See State v. Henderson, 

210 Ariz. 561, 567, ¶ 18 (2005). Otherwise, we review for fundamental error

resulting in prejudice. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). 

A. Jury Instructions 

¶8 Romero argues the superior court erred by giving instructions 

that misinformed the jury of the elements required to establish GEI under 

A.R.S. § 13-502(A). We review the propriety of jury instructions de novo. 

State v. Fierro, 220 Ariz. 337, 338, ¶ 4 (App. 2008). Instructions inform the 

jury how to apply the law, State v. Noriega, 187 Ariz. 282, 284 (App. 1996),

and we will not reverse unless the instructions, taken together, would have 

misled the jurors, State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998). Despite our de 

novo review of the legal sufficiency of the jury instructions, because 

Romero did not object at trial to the instructions given, we will reverse only

if the court committed fundamental error resulting in prejudice. See Fierro, 

220 Ariz. at 340, ¶ 11.
STATE v. ROMERO

Opinion of the Court

4

¶9 Romero takes issue with two of the superior court’s 

instructions. The first one paraphrased the standard under A.R.S. § 13-

502(A) and quoted the Revised Arizona Jury Instructions (“RAJI”) Statutory

Criminal 5.02-1 (4th ed. 2018):

You must determine from the evidence whether the 

defendant was [GEI] at the time the crime was committed. A 

defendant is [GEI] if at the time of the crime the defendant 

was afflicted with a mental disease or defect of such severity

that the defendant did not know the criminal act was wrong.

The second instruction, paraphrasing A.R.S. § 13-105(10)(b) and quoting 

RAJI Statutory Criminal 1.0510(b), stated:

“Knowingly” means that a defendant acted with awareness 

of or belief in the existence of conduct or circumstances 

constituting an offense. It does not mean that a defendant 

must have known the conduct is forbidden by law.

¶10 Romero argues these instructions wrongly informed the jury 

it could find he knew his conduct was wrong even if he could not 

understand it was forbidden by law. He contends the instructions given 

were “in direct contradiction to the elements of the [GEI] affirmative 

defense,” and the superior court should have sua sponte given the jury 

instruction at issue in State v. Corley, 108 Ariz. 240, 242–43 (1972) and State 

v. Tamplin, 195 Ariz. 246, 247, ¶ 4 (App. 1999), to explain what “wrong” 

means in the context of A.R.S. § 13-502. The relevant instruction given in 

those two cases stated:

Knowledge that an act was wrong, as the phrase is used in 

these instructions, means knowledge that the act was wrong 

according to generally accepted moral standards of the 

community and not the defendant’s own individual moral 

standards. Knowledge that an act was forbidden by law will 

permit the inference of knowledge that the act was wrong 

according to generally accepted moral standards of the 

community. 

Corley, 108 Ariz. at 242–43; Tamplin, 195 Ariz. at 247, ¶ 4 (hereinafter referred 

to as the “Corley instruction”). In those cases, the respective appellate courts 

rejected the defendants’ arguments that the instruction should not have 

been given, whereas here Romero contends the court fundamentally erred 

by failing to give the same instruction. Corley, 108 Ariz. at 243; Tamplin, 195 

Ariz. at 249, ¶ 12. 
STATE v. ROMERO

Opinion of the Court

5

¶11 To address whether the superior court was required to sua 

sponte give the Corley instruction at Romero’s trial, we begin with the wellaccepted premise that unless the legislature plainly indicates otherwise, a 

crime “requires both guilty conduct and a culpable mental state.” See e.g.,

State v. Slayton, 214 Ariz. 511, 514, ¶ 9 (App. 2007). Under Arizona’s 

criminal code, a person acts “knowingly” when, “with respect to conduct 

or to a circumstance described by a statute defining an offense,” the person 

engages in such conduct with the “aware[ness] or belie[f] that the . . . 

conduct is of that nature or that the circumstance exists.” A.R.S. § 13-

105(10)(b). A defendant need not have acted, however, with “any 

knowledge of the unlawfulness of the act or omission.” Id.

¶12 The criminal law’s general indifference to whether a 

defendant knows an act is criminal reflects a second core principle—

ignorance of the law is no defense. See A.R.S. § 13-204(B); State v. Morse, 127 

Ariz. 25, 31 (1980). “Knowingly” thus refers to factual knowledge, not 

knowledge of an act’s legal or moral impropriety. See State v. Francis, 243 

Ariz. 434, 436–37, ¶ 12 (2018) (collecting cases holding “that knowledge of 

an act, even without understanding its legal significance, can establish the 

culpable mental state necessary for conviction of a crime that must be 

‘knowingly’ committed”); see also Bryan v. United States, 524 U.S. 184, 193 

(1998) (“[T]he term ‘knowingly’ merely requires proof of knowledge of the 

facts that constitute the offense.”).

¶13 Under the statutes at issue here, the State was required to 

prove that Romero had an awareness of or a belief that his conduct at the 

restaurant was of such a nature that it would “cause death or serious 

physical injury,” A.R.S. § 13-1104 (second degree murder), and that in the 

hospital he was aware of or had a belief that he was “tak[ing] or 

attempt[ing] to exercise control over” a firearm belonging to an officer, 

A.R.S. § 13-1204(A)(9)(a) (aggravated assault). Thus, the superior court’s 

instruction, stating that knowingly “does not mean that a defendant must 

have known the conduct is forbidden by law,” properly reflects Arizona 

law. 

¶14 Turning to the GEI instruction, wrongfulness in context of a 

GEI defense has its origins in “what is known as the Rule of M’Naghten’s 

Case as the test for criminal insanity,” which Arizona has long followed. See 

State v. Schantz, 98 Ariz. 200, 206 (1965) (collecting cases). The Rule states 

as follows:

[T]o establish a [defense] on the ground of insanity, it must be 

clearly proved that, at the time of the committing of the act, 
STATE v. ROMERO

Opinion of the Court

6

the party accused was [laboring] under such a defect of 

reason, from disease of the mind, as not to know the nature 

and quality of the act he was doing; or, if he did know it, that 

he did not know he was doing what was wrong.

M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843). The Rule’s first part “asks 

about cognitive capacity: whether a mental defect leaves a defendant 

unable to understand what he is doing.” Clark v. Arizona, 548 U.S. 735, 747 

(2006). Its second part addresses the “lack of moral capacity: whether a 

mental disease or defect leaves a defendant unable to understand that his 

action is wrong.” Id. 

¶15 After its adoption in 1977, Arizona’s courts consistently 

understood A.R.S. § 13-502 as codifying M’Naghten. See, e.g., State v. Mott, 

187 Ariz. 536, 541 (1997); State v. Zmich, 160 Ariz. 108, 110 (1989); State v. 

Heartfield, 196 Ariz. 407, 410 (App. 2000). In 1993, however, our legislature 

deleted the first prong of the test from the statute’s text, so that now a 

person is GEI only if a “mental disease or defect” caused the person to “not 

know the criminal act was wrong.” A.R.S. § 13-502(A); see Clark, 548 U.S. at 

742 (upholding changes to Arizona’s moral incapacity-based insanity test 

as constitutional); cf. Kahler v. Kansas, No. 18-6135, 2020 WL 1325817, at *5–

6 (U.S. Mar. 23, 2020) (upholding Kansas’s cognitive incapacity-based 

insanity test as constitutional). 

¶16 Though the meaning of “wrong,” as used in M’Naghten, “has 

been an enigma since the standard was . . . adopted,” Arizona defines the 

word “wrong” in accordance with generally accepted moral standards of 

the community. Corley, 108 Ariz. at 243 (citing State v. Malumphy, 105 Ariz. 

200, 212 (1969) (McFarland, J., specially concurring)); see also State v. Skaggs, 

120 Ariz. 467, 472 (1978) (citing Malumphy). This concept necessarily 

“include[s] both legal and moral wrong.” Corley, 108 Ariz. at 243.

¶17 As relevant here, in pressing his GEI defense, Romero was 

required to prove by clear and convincing evidence that his mental disease 

or defect rendered him unable to know his acts were legally and morally 

wrong according to the standards of the community. Id. Romero’s 

argument is that the instructions informed the jury that it could find he 

knew his acts were wrong—and thus could not prove his GEI defense—

even if he did not know the acts were forbidden by law. What Romero 

asserts as error, however, is a correct statement of the law. Indeed, 

M’Naghten contemplated the scenario where a defendant lacks knowledge 

that his act was illegal:
STATE v. ROMERO

Opinion of the Court

7

If the question were to be put as to the knowledge of the 

accused solely and exclusively with reference to the law of the 

land, it might tend to confound the jury, by inducing them to 

believe that an actual knowledge of the law of the land was 

essential in order to lead to a conviction; whereas the law is 

administered upon the principle that every one must be taken 

conclusively to know it, without proof that he does know it. 

If the accused was conscious that the act was one which he 

ought not to do, and if that act was at the same time contrary 

to the law of the land, he is punishable. . . .

M’Naghten’s Case, 8 Eng. Rep. at 723; accord Malumphy, 105 Ariz. at 212. 

Stated differently, evidence of a defendant’s inability to know an act has 

been criminalized is insufficient to establish a GEI defense. Moreover, if the 

State counters this defense with evidence showing the defendant was aware 

his conduct was illegal, then it would not be improper for the jury to 

conclude that he also knew his conduct was morally wrong. See Corley, 108 

Ariz. at 243 (rejecting defendant’s challenge to jury instruction stating in 

part that “‘[k]nowledge that an act was forbidden by law will permit the 

inference of knowledge that the act was wrong according to generally accepted 

moral standards of the community’”) (emphasis added). 

¶18 In the oft-cited case of People v. Schmidt, 110 N.E. 945 (N.Y. 

1915), the court further explained the difference between legally and 

morally wrong. See Malumphy, 105 Ariz. at 210–12. There, the defendant 

argued the trial court mis-instructed the jury under a M’Naghten-type 

statute by limiting “wrong” to mean no more than “contrary to the laws of 

the state.” Schmidt, 110 N.E. at 946 (internal quotations omitted). On 

appeal, however, the court was “unable to accept the view that the word 

‘wrong’ . . . [should] receive so narrow a construction.” Id. Analyzing 

M’Naghten, the court explained that “a defendant who knew nothing of the 

law would none the less be responsible if he knew that the act . . . was 

morally wrong.” Id. at 947. Although M’Naghten had not explicitly

considered “[w]hether [a defendant] would also be responsible if he knew 

[the act] was against the law, but did not know it was morally wrong,” id.,

the Schmidt court pointed out that, in most cases, the analysis will be 

coterminous because “[o]bedience to the law is itself a moral duty.” Id. at 

949. 

¶19 By not limiting “wrong” to mean “against the law,” the GEI 

instruction here did not incorrectly bar the jury from considering evidence 

related to Romero’s understanding of both the legal and moral wrongness 

of his acts. The instruction accurately reflected § 13-502, and Romero has 
STATE v. ROMERO

Opinion of the Court

8

not shown that modeling the jury instruction on the statutory language was 

improper. See State v. Harris, 151 Ariz. 236, 238 (1986) (upholding jury 

instructions for burglary based on statutory language, despite subsequent 

clarifying case law). In the absence of any authority requiring the Corley

instruction, we cannot say the superior court erred here. Cf. 1 Wayne R. 

LaFave, Substantive Criminal Law § 7.2(b)(4) (3d ed. 2018) (noting that this 

prong of M’Naghten is often “simply given to the jury without 

explanation”). 

¶20 We appreciate Romero’s argument that the superior court 

should have given the Corley instruction because it more accurately 

describes this unique area of law. Thus, in future cases we encourage trial 

judges to give the Corley instruction because it provides juries, expert

witnesses, and counsel a better understanding of the GEI defense. The 

instruction may have been helpful in this case given that the State’s expert 

was the only individual at trial who offered the jury with a definition of 

“wrong,” and he incorrectly stated that “to the best of my understanding, 

in Arizona, not knowing that an action was wrong refers to the legal 

wrongness as opposed to moral wrongness.” Nonetheless, the court’s 

failure to sua sponte give the Corley instruction was not improper.

B. Testimony Regarding Consequences of a GEI Verdict 

¶21 Romero also argues the superior court erred by not allowing 

him to examine Dr. Perry about the consequences of a GEI verdict. Romero 

contends he needed to question Dr. Perry about the issue “to rebut the 

State’s insinuation that the GEI defense was less punishment.” Because 

Romero raised this issue in the superior court, which rejected his argument, 

we review that ruling for harmless error.

¶22 We review the superior court’s evidentiary rulings and 

restrictions on witness examination for an abuse of discretion. State v. 

McGill, 213 Ariz. 147, 156, ¶ 40 (2006). Because the decision of which 

punishment to impose is generally the court’s task alone, juries are not 

permitted to consider the consequences of their verdicts. State v. Cornell, 

179 Ariz. 314, 327 (1994). 

¶23 During cross-examination of court-appointed expert Dr. 

Perry, the prosecutor questioned whether Romero was malingering when 

Perry interviewed him in the following exchange:

Q. Okay. . . . A person in Mr. Romero’s position, 

hypothetically may consider, a finding of legal insanity to be 

a benefit over a finding of guilt in a courtroom?
STATE v. ROMERO

Opinion of the Court

9

A. I did not discuss that [with] him.

Q. Okay. But, hypothetically, I mean, people may 

perceive one option is better than the other?

¶24 Romero objected to this line of questioning, but the superior 

court overruled him. The prosecutor continued:

Q. . . . A subject that you’re examining such as Mr. 

Romero --

A. Uh-huh.

Q. -- may in the time he’s had between the incident and 

when he’s being evaluated -- may come in his mind,rightly 

or wrongly, to a realization that one result might be 

better for him than another?

A. Yes.

Q. More in his self-interest?

A. Yes. . . . 

Q. And that’s one of the problems in competency exams 

as well, test subjects may feel a certain result might be more 

favorable to them?

A. Yes.

Q. Now that might be true not just of persons charged 

with crimes, but anyone seeing someone in your profession?

A. Yes.

. . . 

Q. . . . In your experience doing GEI cases, have you 

encountered test subjects who fabricate information about the 

offense? 

A. Yes.

Q. And usually, would that be hypothetically to make 

themselves look better?
STATE v. ROMERO

Opinion of the Court

10

A. Yes. 

¶25 At an ensuing bench conference, Romero argued that the 

prosecutor’s questions “opened the door to punishment . . . [by] asking 

those questions about what [Romero’s] feelings were about being 

convicted” and requested to ask the witness “about what happens if a 

person gets convicted of GEI, where do they go.” The superior court 

ultimately denied Romero’s request to ask Dr. Perry about the 

consequences of a GEI verdict. 

¶26 Romero cites authority discussing appropriate factors for the 

jury to consider during a capital case’s penalty phase in support of his 

assertion that the jury should have been informed about the consequences 

of a GEI verdict. See Simmons v. South Carolina, 512 U.S. 154 (1994) (plurality 

opinion); State v. Escalante-Orozco, 241 Ariz. 254 (2017), abrogated in part by 

Escalante, 245 Ariz. at 140–41, ¶ 16. But nothing in those cases implies that 

a jury should be allowed to consider the consequence of its verdict during 

a trial’s guilt phase. See, e.g., Simmons, 512 U.S. at 163 (explaining that 

“[a]rguments relating to a defendant’s future dangerousness ordinarily 

would be inappropriate at the guilt phase of a trial” but may be considered 

when the jury “has sentencing responsibilities”).

¶27 In fact, our supreme court has rejected a similar argument. See 

State v. McLoughlin, 133 Ariz. 458, 461 (1982). In McLoughlin, “an 

unidentified third party” told a juror the defendant would go free if the jury 

found him insane, and “[t]his juror passed along this information to the rest 

of the jury” during deliberations. Id. at 460. The court made clear that “this 

information is always inadmissible.” Id. at 461. Although ultimately 

reversing his conviction, the court nonetheless disagreed with the 

defendant’s assertion that “an instruction correctly stating what would 

have happened had he been acquitted by reason of insanity . . . would have 

avoided the problem caused by the juror misconduct.” Id. Because 

“disposition of a defendant upon the jury’s verdict has nothing to do with 

the defendant’s guilt or innocence,” it can “never be considered by the jury 

in its deliberations.” Id. at 461–62. In other words, the court would not 

correct an error by allowing another error to occur. See id. Consistent with 

this principle, the superior court properly instructed the jury not to consider 

Romero’s possible punishment in its deliberations. 

¶28 Furthermore, viewed in context, we do not view the questions 

posed to Dr. Perry as entering the impermissible area of punishment. 

Importantly, the prosecutor’s questions contained qualified, conditional 

terms such as “hypothetically,” “perceive,” and “rightly or wrongly.” And 
STATE v. ROMERO

Opinion of the Court

11

they were generally sought to elicit possible explanations for malingering 

and why that was a concern for psychologists in many clinical situations. 

This was a relevant and proper subject of questioning, one Romero’s 

counsel raised while examining Dr. Sullivan. And on re-direct, without 

mentioning consequences, defense counsel addressed whether and to what 

extent the issue of malingering contributed to Dr. Perry’s opinions, giving 

Romero an adequate opportunity to rebut any implication that he might 

have been feigning his mental condition. Accordingly, the superior court 

acted within its discretion in denying Romero’s request. 

C. GEI as a Matter of Law 

¶29 Citing A.R.S. § 13-103(B), and State v. Bayardi, 230 Ariz. 195 

(App. 2012), Romero contends the superior court should have declared him 

GEI as a matter of law. We are aware of no authority that authorizes a court 

to take such action, and § 13-502 explicitly leaves insanity in the fact finder’s 

hands. See A.R.S. § 13-502(D) (stating “if the finder of fact finds the 

defendant [GEI] . . . .”). Nor does Bayardi, which concerned the types of 

criminal defenses available under Arizona law, provide support. Id. at 198, 

¶ 13. The issue there was whether the defendant’s proffered statutory 

defense was “an affirmative defense, a justification defense or a defense that 

denies an element of the charge or responsibility.” Id. at 198, ¶ 10. We held 

that the statute at issue created an affirmative defense, expressing no view

about whether any affirmative defense—such as GEI—can be established 

as a matter of law. Id. at 201, ¶ 22. To the contrary, Bayardi contemplated 

that such defenses are questions of fact for the factfinder to resolve. Id. at 

200, ¶ 20 (providing that affirmative defenses excuse a defendant from 

responsibility “[w]hen the requisite facts are established”). We therefore 

reject Romero’s contention that the court should have found him GEI as a 

matter of law. 
STATE v. ROMERO

Opinion of the Court

12

CONCLUSION

¶30 We hold that the superior court did not (1) commit 

fundamental error by failing to instruct the jury with more specificity on 

the definition of insanity; (2) abuse its discretion in precluding testimony 

about the consequences of a GEI verdict; or (3) err in failing to declare 

Romero GEI as a matter of law. We therefore affirm Romero’s convictions 

and sentences.