IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

ERICK ANTONIO ESCALANTE,

Appellant.

No. CR-17-0251-PR

Filed September 14, 2018

Appeal from the Superior Court in Yavapai County

The Honorable Michael R. Bluff, Judge

No. CR201580042

REVERSED IN PART AND REMANDED

Opinion of the Court of Appeals, Division One

242 Ariz. 375 (App. 2017)

VACATED IN PART

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor 

General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Eric 

Knobloch (argued), Assistant Attorney General, Phoenix, Attorneys for 

State of Arizona

Kennedy Klagge, Yavapai County Public Defender, Michelle L. 

DeWaelsche (argued), Deputy Public Defender, Prescott, Attorneys for 

Erick Antonio Escalante

David J. Euchner (argued), Tucson, Attorney for Amici Curiae Arizona 

Attorneys for Criminal Justice and Pima County Public Defender’s Office
State v. Escalante

Opinion of the Court

2

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF 

JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES

PELANDER, BOLICK, GOULD, and LOPEZ joined. 

JUSTICE TIMMER, opinion of the Court:

¶1 When a defendant fails to object to trial error, he forfeits 

appellate relief absent a showing of fundamental error. Faced with

conflicting decisions, we today clarify what that showing entails. A

defendant must demonstrate that the error goes to the foundation of the 

defendant’s case, takes away a right essential to the defense, or is of such 

magnitude that it denied the defendant a fair trial. To warrant reversal, the 

defendant must then show prejudice. But if the trial is found to have been 

unfair, prejudice is automatically established, and no further showing is 

required.

¶2 Here, the admission and pervasive use of drug-courier profile 

evidence during the defendant’s trial on drug-related charges constituted 

fundamental error and prejudiced his ability to receive a fair trial. We 

therefore reverse and remand for a new trial.

BACKGROUND

¶3 Detectives in multi-agency task forces suspected Erick 

Escalante of selling methamphetamine in the Verde Valley area. After 

receiving several tips and surveilling Escalante, detectives obtained a 

search warrant and placed a GPS tracking device on his truck. On the 

evening of January 21, 2015, detectives saw that Escalante’s truck was in 

Phoenix and suspected he might be picking up methamphetamine to sell. 

Anticipating the truck’s return to Escalante’s home outside Cottonwood, a 

detective called the Yavapai County Sheriff’s Office and asked that deputies

attempt to conduct a civil traffic stop.

¶4 Two deputies in patrol cars identified the truck near

Cottonwood and followed as it exited Highway 260 at Prairie Lane and 

eventually turned onto Cliff View Drive, a two-lane residential road. The 

truck veered as if to make a U-turn and stopped perpendicular to the 

roadway. The deputies blocked the road with their cars and activated their 

lights to make a civil traffic stop. As a deputy approached the truck, 

Escalante shifted into reverse and started to back up. The deputy told him

to stop, but Escalante shifted into drive saying he intended to “pull to the 

side of the road.” The deputy pulled his gun and repeated his instruction 
State v. Escalante

Opinion of the Court

3

to stop and turn off the truck. Escalante seemed agitated but eventually 

complied. Later, at a police station, Escalante told officers he had traveled

from Camp Verde.

¶5 The deputies searched the truck and found a semi-automatic 

handgun, several knives, and a machete. They also discovered a digital 

scale, dryer sheets, coffee beans, a flip cellphone with limited data and no 

provider subscription (a “throw phone”), and $200 (another $150 was found 

in Escalante’s wallet). A K-9 officer came to the scene, and his dog “alerted”

on the truck, but no drugs were found.

¶6 Within a few hours after Escalante’s arrest and removal of the 

truck, a deputy returned to the scene. He found a sandwich-size plastic 

baggie containing a white crystalized substance in the middle of Prairie 

Lane near Highway 260. The bag appeared to have been run over, and 

some of the contents had spilled onto the roadway. A criminologist later 

determined that the bag contained 47.8 grams of methamphetamine (about 

one-tenth of a pound) and that the digital scale found in Escante’s truck

contained methamphetamine residue.

¶7 The State charged Escalante with four drug-related offenses:

count one: sale or transport of a dangerous drug (methamphetamine); 

count two: possession or use of drug paraphernalia (the digital scale); count 

three: tampering with physical evidence (throwing the bag of 

methamphetamine out the truck window); and count five: possessing a 

deadly weapon while committing a felony (transportation of a dangerous 

drug for sale). He was also charged with four counts of misconduct 

involving weapons for possessing the handgun, the machete, and two 

knives as a convicted felon (counts four, six, seven, and eight). The trial 

court severed the four drug-related counts from the remaining counts.

¶8 Before trial, the State moved in limine to introduce evidence 

that Escalante had engaged in behaviors “indicative of and consistent with 

drug trafficking,” such as driving in a manner designed to avoid police 

scrutiny (“heat runs”), using surveillance cameras at home, and traveling 

to areas of “known drug activity.” Escalante’s counsel did not object. At 

an evidentiary hearing on this and other motions, he stated only that “I 

think they’re going to be allowed to testify as to in their training and 

experience what they believe that information means.” The trial court ruled 

that the evidence was admissible as either intrinsic to the charged crimes or 

as “other act” evidence. See Ariz. R. Evid. 404(b).
State v. Escalante

Opinion of the Court

4

¶9 At the trial on the drug-related charges, multiple law 

enforcement officers testified, without objection, about their specialized 

drug interdiction training and described common drug-trafficking methods 

and drug-courier habits that were consistent with Escalante’s behaviors. 

Officers also testified about what they were told by third parties concerning 

Escalante’s suspected illegal drug activities. The jury found Escalante 

guilty on all counts. He waived his right to a jury trial on the remaining

weapons charges, and the trial court found him guilty on those counts. The 

court sentenced Escalante to multiple, concurrent prison terms, the longest 

of which is fourteen years.

¶10 Escalante appealed the drug-related convictions and 

sentences, and the court of appeals affirmed. See State v. Escalante, 242 Ariz. 

375 (App. 2017). In doing so, the court reviewed for fundamental error 

whether the trial court incorrectly admitted drug-courier profile evidence

and hearsay statements. See id. at 379 ¶11, 386 ¶ 54.

¶11 We granted review to clarify what a defendant must show to 

establish fundamental, prejudicial error, a recurring issue of statewide 

importance. We have jurisdiction pursuant to article 6, section 5(3) of the 

Arizona Constitution and A.R.S. § 12-120.24.

DISCUSSION

I. Fundamental error review

¶12 Escalante argues that the trial court committed reversible 

error by permitting the State to introduce drug-courier profile and hearsay 

evidence as substantive evidence of guilt. Because Escalante did not object 

to this evidence, we will not reverse unless the court committed error that 

was both fundamental and prejudicial. See State v. Henderson, 210 Ariz. 561, 

567 ¶ 20 (2005). Some confusion about what fundamental error review 

entails — much of it our own making — has arisen since this Court decided 

Henderson. Thus, we clarify that standard before applying it here.

¶13 In Henderson, this Court noted that prior appellate decisions 

had inconsistently described what is necessary to establish fundamental 

error. Id. at 568 ¶ 21. It set forth a single standard and disapproved

inconsistent decisions. Id. The Court described fundamental error review 

as follows:
State v. Escalante

Opinion of the Court

5

A defendant who fails to object at trial forfeits the right to 

obtain appellate relief except in those rare cases that involve 

“[prong 1] error going to the foundation of the case, [prong 2] 

error that takes from the defendant a right essential to his 

defense, and [prong 3] error of such magnitude that the 

defendant could not possibly have received a fair trial.” . . . In 

addition, we place the burden of persuasion in fundamental 

error review on the defendant. . . .

To prevail under this standard of review, a defendant 

must establish both that fundamental error exists and that the 

error in his case caused him prejudice.

Id. at 567 ¶¶ 19–20 (emphasis added) (quoting State v. Hunter, 142 Ariz. 88, 

90 (1984) (citing State v. Gendron, 168 Ariz. 153, 155 (1991) (holding that 

fundamental error is that which is “clear, egregious, and curable only via a 

new trial”))).

¶14 Unfortunately, the word “and” in Henderson’s three-prong 

test for fundamental error muddies its application. The Court may have 

used the term to mean that all three prongs must be shown (a conjunctive 

standard). Or the Court may have used the term in listing the “rare” types 

of error that are fundamental error, meaning only one prong must be shown

(a disjunctive standard), as Hunter implied. 142 Ariz. at 90. The Henderson 

Court itself applied a disjunctive standard, finding fundamental error when

only one prong was shown. See 210 Ariz. at 568 ¶ 25. 

¶15 Since Henderson, this Court has exacerbated the confusion by

variously treating the fundamental error standard as both conjunctive and

disjunctive. Compare State v. Escalante-Orozco, 241 Ariz. 254, 272 ¶ 40 (2017) 

(conjunctive); State v. Dalton, 241 Ariz. 182, 186 ¶ 12 (2016) (same); State v. 

Valverde, 220 Ariz. 582, 585 ¶ 12 (2009) (same), with State v. Naranjo, 234 Ariz. 

233, 246 ¶ 58 (2014) (disjunctive); State v. Forde, 233 Ariz. 543, 554 ¶ 16 (2014) 

(same); State v. Hargrave, 225 Ariz. 1, 8 ¶ 13 (2010) (same); State v. Bearup, 

221 Ariz. 163, 168 ¶ 21 (2009) (same). Here, the court of appeals applied a 

conjunctive standard. See Escalante, 242 Ariz. at 383 ¶ 35.

¶16 We now clarify that the appropriate standard for 

fundamental error under Henderson is disjunctive. Simply put, requiring a 

defendant to establish all three prongs is overkill. For example, no purpose 

is served by requiring a defendant to establish the first two prongs if the 

third prong is established. An “error of such a magnitude that a defendant 
State v. Escalante

Opinion of the Court

6

could not possibly have received a fair trial” is always prejudicial and 

requires a new trial. See Henderson, 210 Ariz. at 567 ¶ 20 (equating prejudice 

with an unfair trial) (citing Hunter, 142 Ariz. at 90 (holding that defendant 

must prove fundamental error exists, and is of such magnitude that he could 

not have received a fair trial)); see also State v. Bible, 175 Ariz. 549, 567 (1993)

(“A fair trial is a fundamental liberty secured by the United States and 

Arizona Constitutions.” (citing Ariz. Const. art. 2, §§ 4, 24)). The only way 

to give meaning to the first two prongs is to apply the Henderson test 

disjunctively.

¶17 Courts and parties have understandably grappled with the 

meaning of each Henderson prong and how they differ from each other. 

Precise definitions are elusive, as the prongs often overlap, and their 

application depends on fact-intensive inquiries. See Henderson, 210 Ariz. at

568 ¶ 26. A bright-line standard is inadvisable as it risks excluding a case 

that warrants relief. Nevertheless, we provide guidance that should cover

most circumstances.

¶18 Prong one: An error generally goes to the “foundation of a 

case” if it relieves the prosecution of its burden to prove a crime’s elements,

directly impacts a key factual dispute, or deprives the defendant of 

constitutionally guaranteed procedures. See, e.g., Henderson, 210 Ariz. at 568 

¶ 25 (“Because the sentencing procedure followed denied Henderson the 

right to have certain facts decided by a jury beyond a reasonable doubt, we 

conclude that the procedure utilized went to the foundation of Henderson’s 

case.”); State v. McGann, 132 Ariz. 296, 299 (1982) (finding that erroneous 

admission of fifty-seven allegedly forged receipts went to foundation of 

state’s case that defendant’s prior forgeries evidenced his guilt there); State 

v. Juarez-Orci, 236 Ariz. 520, 525 ¶ 17 (App. 2015) (“[T]he instruction at issue 

here potentially ‘improperly relieved the State of its burden of proving an 

element of the offense,’ an error which goes to the foundation of the case, 

and therefore is fundamental.” (citations omitted)); State v. Stevens, 228 

Ariz. 411, 417 ¶ 16 (App. 2012) (concluding that the state’s use of 

defendant’s invocation of her Fourth Amendment rights as evidence of 

guilt went to the foundation of the case—whether the defendant was

merely present or was the person who possessed drugs and drug 

paraphernalia).

¶19 Prong two: An error takes away an “essential right” if it 

deprives the defendant of a constitutional or statutory right necessary to 

establish a viable defense or rebut the prosecution’s case. See, e.g., State v. 

Valenzuela, 194 Ariz. 404, 407–08 ¶ 16 (1999) (“By failing to give the [lesser 
State v. Escalante

Opinion of the Court

7

included offense instruction], the trial court denied appellant ‘a right 

essential to his defense’ and affected the ‘very foundation of [his] theory of 

defense.’” (alteration in original)); State v. Ramos, 235 Ariz. 230, 235 ¶ 15 

(App. 2014) (“In light of [the prosecutor commenting on defendant’s failure 

to testify], fundamental error occurred because Ramos was deprived of a 

right essential to his defense.”); State v. Trujillo, 227 Ariz. 314, 318 ¶ 15 (App. 

2011) (concluding that sentencing judge’s consideration of defendant’s lack 

of remorse and failure to admit guilt to aggravate sentences deprived him 

of a right essential to his defense).

¶20 Prong three: An error so egregious that a defendant could not 

possibly have received a fair trial encompasses either or both prongs one 

and two. But to satisfy prong three, the error must so profoundly distort 

the trial that injustice is obvious without the need to further consider

prejudice. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 355–57 (1966) 

(reversing murder conviction because “bedlam reigned” when about 

twenty reporters sat “inside the bar” “staring at [the defendant] and taking 

notes,” “hounding most of the participants in the trial,” and printing 

sensationalized stories); Rideau v. Louisiana, 373 U.S. 723, 724, 726–27 (1963) 

(concluding that defendant, whose twenty-minute taped confession to 

robbery, kidnapping, and murder was televised three times in a parish of 

around 150,000 people, could not possibly have received a fair trial as, even 

without considering voir dire, “subsequent court proceedings in a 

community so pervasively exposed to such a spectacle could be but a 

hollow formality”).

¶21 To summarize, the first step in fundamental error review is 

determining whether trial error exists. Henderson, 210 Ariz. at 568 ¶ 23 (“To 

obtain relief under the fundamental error standard of review, [a defendant] 

must first prove error.”). If it does, an appellate court must decide whether 

the error is fundamental. In doing so, the court should consider the totality 

of the circumstances. See Gendron, 168 Ariz. at 155 (requiring an appellate 

court to analyze the entire record to determine whether “reasons clearly 

demonstrat[e] that the case falls within our definition of fundamental 

error”). A defendant establishes fundamental error by showing that (1) the 

error went to the foundation of the case, (2) the error took from the 

defendant a right essential to his defense, or (3) the error was so egregious 

that he could not possibly have received a fair trial. If the defendant 

establishes fundamental error under prongs one or two, he must make a 

separate showing of prejudice, which also “involves a fact-intensive 

inquiry.” Henderson, 210 Ariz. at 568 ¶ 26. If the defendant establishes the 

third prong, he has shown both fundamental error and prejudice, and a new 
State v. Escalante

Opinion of the Court

8

trial must be granted. The defendant bears the burden of persuasion at each 

step. Id. at 567 ¶ 19.

II. Admission of drug-courier profile evidence

A. Error

¶22 Drug-courier profile evidence suggests that a defendant 

possesses one or more behavioral characteristics typically displayed by 

persons trafficking in illegal drugs. See State v. Haskie, 242 Ariz. 582, 585 

¶ 14 (2017); State v. Lee, 191 Ariz. 542, 544 ¶ 10 (1998). Such evidence has 

legitimate uses, for instance when the justification for a police stop or arrest 

is contested at a suppression or probable cause hearing. State v. Ketchner, 

236 Ariz. 262, 264 ¶ 15 (2014). It can also be used to assist a jury in 

understanding the modus operandi of a drug-trafficking organization. See 

Lee, 191 Ariz. at 547 ¶ 26 (Jones, J., dissenting). But profile evidence cannot 

be used as substantive proof of guilt because of the “risk that a defendant 

will be convicted not for what he did but for what others are doing.” Id. at 

545 ¶ 12 (internal quotation marks omitted) (quoting State v. Cifuentes, 171 

Ariz. 257, 257 (App. 1991)); see also Haskie, 242 Ariz. at 586 ¶ 15 (to same 

effect).

¶23 The prosecutor here introduced drug-courier profile 

evidence. He elicited testimony from officers who, after relating their 

training and experience in drug interdiction, described typical behaviors of

drug-traffickers, thereby suggesting that because Escalante also engaged in 

such behaviors, he too was a drug-trafficker. See Lee, 191 Ariz. at 544 ¶ 10. 

For example, jurors heard testimony that drug-traffickers often use 

surveillance cameras outside their homes; make “heat runs”; carry dryer 

sheets and coffee beans to mask the smell of drugs from police dogs; create 

secret compartments in vehicle dashboards to hide drugs; generally travel 

at night to conceal their movements and provide cover for surreptitiously 

throwing drugs out a vehicle window to avoid law enforcement detection;

carry firearms; use “throw phones” for easy disposal; travel along drug 

“pipelines,” like I-17; and measure drugs with small electronic scales.

Officers also testified that Escalante traveled to an “active drug area” in 

Phoenix, which they described as a “major hub” for methamphetamine and 

the source for most illegal drugs sold in the Verde Valley.

¶24 We agree with Escalante and the court of appeals that

admission of this testimony constituted error because the evidence was 

used as substantive proof of guilt. See Escalante, 242 Ariz. at 383 ¶ 32; see 

also Ketchner, 236 Ariz. at 264 ¶ 15. The testimony was only relevant to 
State v. Escalante

Opinion of the Court

9

demonstrate that Escalante’s behaviors were consistent with drug

trafficking. Indeed, the prosecutor told the jury in opening statement that 

Escalante’s observed “counter-surveillance techniques” were “consistent 

with people who are involved in drug trafficking activities.” And in closing 

argument, the prosecutor said “people who deal drugs have certain ways 

of behaving” and reminded jurors that the testifying officers possessed

“detailed knowledge” about drug-traffickers and had related “indicators of 

drug activity.”

¶25 Expert testimony about general behaviors is permitted if 

helpful to a jury’s understanding of the evidence. See State v. SalazarMercado, 234 Ariz. 590, 594 ¶ 15 (2014). Here, for example, a qualified officer 

could have explained that dryer sheets and coffee beans, like the ones found 

in Escalante’s truck, can be used to mask the smell of illegal drugs from 

police dogs. But officers could not permissibly testify that possession of 

dryer sheets and coffee beans, together with other behaviors, was 

“consistent with drug trafficking” because doing so served only to invite 

the jury to find that Escalante, too, was a drug-trafficker.

B. Fundamental error

¶26 The admission of drug-courier profile evidence here went to 

the foundation of the case and therefore constitutes fundamental error. The 

pivotal factual issue in the case was whether Escalante had possessed the 

methamphetamine found on Prairie Lane with an intent to sell it (count 

one). (Proof of counts three and five also depended on resolution of that 

issue.) The evidence tying Escalante to the baggie of methamphetamine 

was circumstantial and not overwhelming. Methamphetamine residue was 

present on the scale found inside Escalante’s truck. Two incoming text 

messages on the “throw phone” suggested Escalante was selling something 

(“Hey, bro. Give me a call. Need to place an order.” and “If you’ve got any, 

let me know.”). In the months before the arrest, multiple people made 

short-term visits to Escalante’s apartment. Escalante lied about traveling 

from Phoenix when he was stopped. But the baggie was found in the 

middle of the road hours after Escalante’s arrest, casting doubt on whether 

he had discarded the drug. Notably, jurors posed several questions about 

the drug’s discovery and origins: “Do you think it is unusual that the white 

substance in the road was not spotted by all the law enforcement who went 

up and down the road that night of the arrest? Explain conditions that 

might have made this possible that it wasn’t seen”; “Was the baggie from 

the road tested for fingerprints? Would it have been possible to find 

fingerprints on the bag?” Fingerprint analysis was not done, and DNA 
State v. Escalante

Opinion of the Court

10

testing “revealed nothing” to indicate that Escalante had possessed the 

baggie.

¶27 Evidence that Escalante fit the profile of a drug trafficker 

greatly increased the likelihood the jury would find that he possessed the 

drug with the intent to sell it before discarding it to prevent detection. See 

Stevens, 228 Ariz. at 417 ¶ 16. The evidence was not a brief hiccup but 

permeated the trial, being elicited from eight officers over three days and 

referred to by the prosecutor in both the opening statement and closing 

argument. Cf. State v. Hulsey, 243 Ariz. 367, 433 ¶ 114 (2018) (finding that 

the “brevity and inconsequential nature” of the erroneous reference to 

defendant’s identity did not constitute fundamental error); State v. Valdez, 

160 Ariz. 9, 14 (1989) (concluding no fundamental error when prosecutor’s 

improper closing argument reference to defendant seeking a plea 

agreement was “an isolated evidentiary matter”). In short, the linchpin of 

the State’s case against Escalante “was to suggest that because [Escalante’s] 

behavior was consistent with that of [a] known drug courier[], [he] likewise 

must have been [a] courier[].” Lee, 191 Ariz. at 546 ¶ 18. Admission of this 

evidence went to the foundation of the case and constituted fundamental 

error.

¶28 The court of appeals reached the opposite conclusion because 

“the jury had substantial evidence to convict Escalante on count 1.” See 

Escalante, 242 Ariz. at 384 ¶ 36. But that is not a proper consideration in 

deciding whether the error went to the foundation of the case. Instead, the 

impact of the error on the jury’s verdict is appropriately considered when 

addressing prejudice. The court also found that because Escalante failed to 

show all three Henderson prongs, he did not establish fundamental error. 

See id. at 383–84 ¶¶ 35–38. As clarified today, a defendant need only show

one prong to establish fundamental error, and Escalante made that 

showing.

C. Prejudice

¶29 Establishing prejudice from fundamental error varies 

depending on the nature of the error and the unique case facts. See Dalton, 

241 Ariz. at 186 ¶ 13; Henderson, 210 Ariz. at 568 ¶ 26. The error here 

deprived Escalante of the opportunity for the jury to render a verdict free 

of the taint of drug-courier profile evidence. Escalante therefore must show

that without this evidence and attendant argument, “a reasonable 

jury . . . could have reached a different [verdict].” See Henderson, 210 Ariz. 

at 569 ¶ 27 (emphasis added); see also State v. Martin, 225 Ariz. 162, 166 

¶¶ 14–15 (App. 2010) (applying this standard in finding that even if it was 
State v. Escalante

Opinion of the Court

11

fundamental error to admit videotape in evidence, it did not prejudice the 

defendant).

¶30 The State urges us to require a defendant to show that a 

reasonable jury would have reached a different result but offers no 

compelling reason or authority for doing so. Henderson’s “could have” 

standard is well-accepted and complements the state’s burden in harmlesserror review to prove “beyond a reasonable doubt that the error did not 

contribute to or affect the verdict or sentence.” See Escalante-Orozco, 241 

Ariz. at 286 ¶ 126 (citation and internal quotation marks omitted).

¶31 This is not to say that the “could have” standard is easily 

satisfied. In keeping with Henderson’s pronouncement that appellate relief 

for fundamental error occurs in “rare cases” and such error is “curable only 

via a new trial,” the “could have” inquiry necessarily excludes imaginative 

guesswork. The standard is an objective one, and requires a showing that 

without the error, a reasonable jury could have plausibly and intelligently

returned a different verdict. A “reasonable jury” is “composed of persons 

of average intelligence and judgment” who “use[] common sense in 

considering the evidence presented in connection with the instructions 

given by the court.” Citizens Utils. Co. v. Firemen’s Ins., 73 Ariz. 299, 302 

(1952). In applying the “could have” standard, an appellate court should 

examine the entire record, including the parties’ theories and arguments as 

well as the trial evidence. See Gendron, 168 Ariz. at 155; State v. Gulli, 242 

Ariz. 18, 21 ¶ 13 (App. 2017).

¶32 We decline to adopt Amicus’s suggestion that we apply a 

subjective standard to determine whether the jury that rendered the verdict 

could have reached a different result without the error. An appellate court 

cannot know what did or did not guide a particular jury’s determination. 

Because that jury and a hypothetical “reasonable jury” share the same 

presumptive traits, however, any questions posed by jurors during trial or 

deliberation may be pertinent in applying the standard objectively.

¶33 The court of appeals concluded, without citation to authority, 

that “[a] defendant cannot show prejudice, and thus cannot obtain reversal 

under fundamental error review . . . where the record suggests the 

defendant did not object to the impermissible evidence as part of his 

defense strategy, and there is otherwise substantial evidence of his guilt.” 

See Escalante, 242 Ariz. at 385 ¶ 45. Because an “apparent probability” 

existed that defense counsel here deliberately failed to object to the profile 

evidence “because he wanted to show that the state did not proffer 
State v. Escalante

Opinion of the Court

12

sufficient ‘real evidence’ to support a conviction,” the court found that 

Escalante failed to show prejudice. Id. ¶¶ 42–45. It suggested that any 

remedy must be secured by asserting an ineffective assistance of counsel 

claim in post-conviction relief proceedings. Id. ¶ 45 n.7.

¶34 We disagree with the court of appeals for two reasons. First, 

whether “substantial evidence of guilt” exists is not the standard for 

deciding prejudice. As just explained, the proper inquiry is whether, 

without the error, a reasonable jury could have reached a different result, 

even if substantial evidence of guilt exists. Of course, the amount of errorfree evidence supporting a guilty verdict is pertinent to that inquiry. See, 

e.g., State v. Ramos, 235 Ariz. 230, 237 ¶ 20 (App. 2014) (“Given the strength 

of the State’s evidence . . . we hold that even without the prosecutor’s 

impermissible statements . . . no reasonable jury could have acquitted 

Ramos . . . .”).

¶35 Second, putting aside the practical problems associated with 

divining whether defense counsel’s silence was strategic or neglectful, 

tactical reasons for remaining silent in the face of trial error do not preclude

a finding of prejudice. The consequence for strategically failing to object to 

trial error is bearing the formidable burden of showing that the error was

fundamental and warrants the “rare case” remedy of reversal and a new 

trial. See Henderson, 210 Ariz. at 567 ¶ 19 (imposing the burden of 

persuasion on the defendant “to discourage a defendant from taking his 

chances on a favorable verdict, reserving the ‘hole card’ of a later appeal on 

a matter that was curable at trial, and then seeking appellate reversal”) 

(internal interlineations and citation omitted). And eliminating the 

availability of appellate relief would be contrary to the purpose of 

fundamental error review: granting relief when issues are “so important 

that overriding considerations concerning the integrity of the system will 

excuse a party’s failure to raise the issue in the trial court.” See Gendron, 

168 Ariz. at 155.

¶36 Prior decisions from this Court cited by the State do not 

persuade us to reach a different decision. None of these cases suggests that 

a defendant necessarily loses the ability to obtain appellate relief for 

fundamental, prejudicial error if defense counsel strategically failed to 

object to trial error. See State v. Miller, 234 Ariz. 31 passim (2013) (finding no 

fundamental error based on multiple factors, including defense counsel’s 

professed “strategic choice” not to object to inadmissible testimony);

Gendron, 168 Ariz. at 155 (emphasizing the limited circumstances in which 

fundamental error occurs and noting that “[a] claim of fundamental error 
State v. Escalante

Opinion of the Court

13

is not a springboard to reversal where present counsel is simply secondguessing trial counsel.” (quoting State v. Smith, 114 Ariz. 415, 420 (1977)));

State v. Perez, 141 Ariz. 459, 464 n.6 (1984) (finding no error from the trial 

court’s refusal to give a requested Willits instruction and noting that

defense counsel could not claim prejudice anyway because he could have 

argued the substance of the instruction but “made a tactical decision” to 

forego it).

¶37 The State also cites cases from other jurisdictions that 

conclude or suggest that when a failure to object could have been strategic, 

it is more appropriate to consider the issue in post-conviction relief 

proceedings than in fundamental error review. See Johnson v. State, 765 A.2d 

926, 929 (Del. 2000); State v. Perry, 245 P.3d 961, 981 (Idaho 2010); Ryan v. 

State, 9 N.E.3d 663, 668 & n.4 (Ind. 2014). (State v. Foxen, 29 P.3d 1071, 1075

(N.M. 2001), also cited by the State, is inapposite as it equated strategic 

decisions to submit erroneous jury instructions with invited error.) We 

decline to follow these cases. If fundamental, prejudicial error necessitates 

a new trial, no reason exists to await post-conviction relief proceedings to 

grant that remedy. And doing so would only delay justice and waste 

judicial resources.

¶38 Importantly, if defense counsel invited trial error, 

strategically or carelessly, the defendant cannot obtain appellate relief even 

if the error was fundamental and prejudicial. See State v. Logan, 200 Ariz. 

564, 566 ¶ 15 (2001). “Invited error” occurs when the defendant is the 

source of that error. See id. ¶ 11 (i.e., “the party urging the error”). Failing 

to object to error, as occurred here, even if done strategically, forfeits 

appellate review—absent fundamental, prejudicial error—but does not 

foreclose appellate review by inviting error. See State v. Rushing, 243 Ariz. 

212, 217 ¶ 14 (2017). 

¶39 The court of appeals also concluded that Escalante failed to 

show that without the profile evidence a reasonable jury could have 

reached a different verdict. See Escalante, 242 Ariz. at 384–85 ¶¶ 40–41. In 

doing so, it rejected Escalante’s argument that juror questions 

demonstrated the prejudicial impact of the profile evidence but did not 

address his contention that without that evidence, “very little evidence of 

guilt” existed. Id. ¶ 41.

¶40 We disagree with the court of appeals and instead conclude

that Escalante has demonstrated that the erroneous admission of drugcourier profile evidence prejudiced his trial on counts one, three, and five. 
State v. Escalante

Opinion of the Court

14

Guilty verdicts on those counts depended on the jury finding that Escalante 

possessed the methamphetamine found in the road with the intent to sell it. 

See A.R.S. §§ 13-2809, -3102, -3407. As previously explained, the admissible 

evidence supporting the prosecution’s case on these counts was 

circumstantial and prompted several questions from the jury about the 

baggie’s ownership. See supra ¶ 26. That Escalante’s behaviors fit the drugcourier profile laid out by law enforcement officers trained in illegal drug 

interdiction greatly enhanced the likelihood that jurors would conclude 

that Escalante had possessed the methamphetamine with the intention of 

selling it. Also, the profile evidence permeated the trial from start to finish. 

See supra ¶ 23; see also Escalante, 242 Ariz. at 384 ¶ 38 (describing the 

prosecution as “run[ning] amok with the drug courier profile evidence”). 

Without the drug-courier profile evidence, a reasonable jury considering 

the remaining evidence could plausibly and intelligently find him not 

guilty on counts one, three and five.

¶41 The State points out that defense counsel used the profile 

evidence to support his theory that law enforcement officers targeted 

Escalante with no “real evidence.” Specifically, defense counsel argued in 

closing that the State “spent three days blowing a lot of smoke from a lot of 

law enforcement officers” and “a parade of police officers” was convinced 

Escalante was a drug dealer with “no hard evidence that he really is.” It is 

appropriate to consider how inadmissible evidence impacted a defense 

theory when considering prejudice. Cf. Escalante-Orozco, 241 Ariz. at 278–

79 ¶ 83 (concluding that even if evidence was inadmissible, defendant’s use 

of the testimony to fit his defense theory precluded a finding of prejudice). 

But here, defense counsel’s lemons-into-lemonade argument did not 

dissipate the prejudice caused by introducing profile evidence. Indeed, 

without that evidence, Escalante had an even stronger argument that the 

evidence against him was insufficient to support a guilty verdict.

¶42 Escalante did not prove that the admission of profile evidence 

prejudiced his defense or rendered the trial unfair on count two, possession 

of drug paraphernalia. A person commits that crime if he knowingly 

possessed drug paraphernalia with the intent to use it. See A.R.S. § 13-

3415(A). “Drug paraphernalia” includes a digital scale if used to weigh 

illegal drugs. Id. § 13-3415(F)(2)(e). The evidence here was that a scale with 

methamphetamine residue was found in Escalante’s truck. Even without 

the profile evidence a reasonable jury could not have reached a different 

verdict on this count.
State v. Escalante

Opinion of the Court

15

CONCLUSION

¶43 Escalante’s trial was infected with fundamental, prejudicial 

error that deprived him of a fair trial on counts one, three, and five. We 

therefore reverse his convictions and sentences on those counts and remand 

for a new trial. Because the error did not prejudice him on the remaining 

counts, we affirm Escalante’s convictions and sentences on those counts. 

We vacate paragraphs 11, 25, 33-53 and 57 of the court of appeals’ opinion. 

In light of our decision, we do not address Escalante’s hearsay challenges, 

none of which concern count two.