State v. Hester

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

LILLIAN MARGUERITE HESTER, Appellant.

No. 1 CA-CR 18-0770
FILED 12-24-2019

Appeal from the Superior Court in Coconino County
No. S0300CR201600433
The Honorable Dan R. Slayton, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee

White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Appellant
 STATE v. HESTER
Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

J O H N S E N, Judge:

¶1 Lillian Marguerite Hester appeals her convictions and
sentences for first-degree murder and child abuse. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the
verdicts and resolve all inferences against Hester. State v. Gurrola, 219 Ariz.
438, 439, ¶ 2, n.1 (App. 2008). Hester acquired custody of J.H., her sister's
son, immediately after he was born in January 2009. When he died at the
age of six, an autopsy revealed significant neglect and injuries, leading a
forensic pathologist specializing in child deaths to conclude his death was
caused by battered-child syndrome.

¶3 A grand jury charged Hester with child abuse, a Class 2 felony
and dangerous crime against children, and first-degree murder, a Class 1
felony. Following trial, a jury convicted Hester as charged. The superior
court sentenced Hester to 17 years' imprisonment on the child-abuse
conviction and a consecutive term of imprisonment for natural life on the
first-degree murder conviction. Hester timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019), 13-
4031 (2019), and -4033(A)(1) (2019).1

DISCUSSION

A. The Jury Instructions.

¶4 On appeal, Hester argues the superior court erred by failing
to properly instruct the jury on first-degree murder and child abuse.
Because Hester did not object to the instructions and failed to request

1 Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.

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different instructions at trial, we review for fundamental, prejudicial error.
State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018).

¶5 To prevail on fundamental-error review, a defendant must
first show trial error. Id. at 142, ¶ 21. If trial error occurred, we then
determine, based on the totality of the circumstances, whether it was
fundamental and prejudicial. Id. To establish fundamental error, a
defendant must show the error: (1) went to the foundation of the case, (2)
took away a right essential to the defense or (3) was so egregious that the
defendant could not possibly have received a fair trial. Id. "If the defendant
establishes fundamental error under prongs one or two, [the defendant]
must make a separate showing of prejudice." Id. We presume jurors follow
their instructions. State v. Prince, 226 Ariz. 516, 537, ¶ 80 (2011).

1. First-degree murder instruction.

¶6 Hester was charged with first-degree murder under A.R.S. §
13-1105(A)(2) (2019), Arizona's felony-murder statute. The predicate felony
for the murder charge was intentional or knowing child abuse under A.R.S.
§ 13-3623(A)(1) (2019).

¶7 The superior court correctly instructed the jury, in accordance
with the statute and the Revised Arizona Jury Instructions ("RAJI"), that the
State needed to prove that (1) Hester committed or attempted to commit
child abuse, and (2) in the course of and in furtherance of this crime, she
caused the death of any person. See A.R.S. § 13-1105(A)(2); RAJI Stand.
Crim. 11.052 (5th ed. 2019). The court also properly instructed the jury that
the charge required "no specific mental state other than what is required for
the commission of child abuse," as provided in § 13-1105(B).

¶8 Hester suggests fundamental error occurred because the
superior court did not also specifically instruct the jury that felony murder
by the commission of child abuse requires that the child abuse be
committed intentionally or knowingly. Hester further argues the
instructions the court gave for the lesser-included child-abuse offenses (i.e.,
reckless and negligent mental states under § 13-3623(A)(2) and (3)) created
the possibility of jury confusion.

¶9 Hester's arguments are unfounded. The jury found her guilty
of intentional or knowing child abuse, and, as instructed, it did not consider
or return verdicts on the lesser-included offenses. Although the court did
not give an explicit additional instruction informing the jurors that felony
murder by child abuse required an intentional or knowing mental state, the
verdict form for first-degree murder instructed the jurors that they were to

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return a verdict for that offense "only if you [the jury] find the defendant
guilty of Child Abuse – Intentional or Knowing" and that they were
precluded from returning a verdict for the charge otherwise. The same
constraint was stated on the verdict forms for child abuse and was
pronounced when the verdict was read.2 "We evaluate jury instructions
and verdict forms as a whole to determine whether they correctly stated the
law, allowed the jury to understand the issues, and provided the jury with
the correct rules for reaching a decision." Lohmeier v. Hammer, 214 Ariz. 57,
61, ¶ 13 (App. 2006); see also State v. Payne, 233 Ariz. 484, 509, ¶¶ 91-92 (2013)
(verdict forms may remedy an alleged deficiency in jury instructions).

¶10 The court read the instructions and the verdict forms to the
jury. The instructions stated the jury could consider the lesser-included
offenses of reckless or negligent child abuse only if it found Hester not
guilty of intentional or knowing child abuse or if it could not agree on a
verdict for that crime. Therefore, the jury was fully and correctly instructed,
and we presume jurors follow their instructions. Prince, 226 Ariz. at 537, ¶
80. To the extent any potential confusion remained, the prosecutor and
Hester's counsel both explained in closing that the jury could find Hester
guilty of felony murder only if it found that she committed child abuse
intentionally or knowingly. See State v. Bruggeman, 161 Ariz. 508, 510 (App.
1989) (appellate courts may consider closing arguments to assess whether
jury instructions were adequate).

2. Failure to seek medical care.

¶11 Hester next contends the superior court erred by failing to,
sua sponte, give the jury a definition of "failure to seek medical care" as a
purported element of felony murder by child abuse. Citing State v. Bennett,
213 Ariz. 562, 567, ¶ 23 (2006), she argues the court erred by not instructing
the jury that to prove felony murder by child abuse based on a failure to
obtain medical treatment, the State must prove beyond a reasonable doubt
that the "[victim's] death 'would not have happened' without [defendant's]
delay in seeking medical attention." Hester cites no case authority requiring

2 The verdict forms instructed, "If you find the Defendant guilty of
Child Abuse – Intentional or Knowing, do not complete the next portion of
the verdict form. Complete this portion [lesser-included offense of Child
Abuse – Reckless] only if you find the Defendant Not Guilty of Child Abuse
– Intentional or Knowing or if you are unable to decide on Child Abuse –
Intentional or Knowing."

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an instruction defining failure to obtain medical treatment, but summarily
argues it is a necessary element of causation in a case such as this.

¶12 Hester's reliance on Bennett is unavailing. Here, the superior
court properly instructed the jury in accordance with the statutes for felony
murder, child abuse and causation. The causation instruction defined both
direct and proximate causation. In sum, the instructions correctly
instructed that to find Hester guilty, the jury was required to find her
intentional or knowing child abuse produced J.H.'s death and "without
which the death would not have occurred." Contrary to Hester's
suggestion, and to the limited extent the facts in evidence resembled those
in Bennett, the causation instruction is consistent with the instruction in that
case. 213 Ariz. at 567, ¶ 23.

¶13 Moreover, although the State contended that Hester's failure
to obtain medical care caused J.H.'s death, it also argued she caused his
death by other means. The evidence, discussed infra ¶¶ 19-24, also
established that Hester's prolonged abuse and neglect of J.H. directly
caused battered-child syndrome, resulting in his death. The jury was not
required to agree on a single cause of J.H.'s death. See infra ¶¶ 33-35; see
also, e.g., Payne, 233 Ariz. at 508-09, ¶¶ 81, 85, 90. Accordingly, the jury was
not required to find that Hester's failure to seek medical care caused J.H.'s
death.

B. Sufficiency of the Evidence.

¶14 Arguing insufficient evidence supports the convictions,
Hester contends the superior court erred by denying her motions for
judgment of acquittal and a new trial pursuant to Arizona Rules of Criminal
Procedure 20 and 24.1. Because both arguments are based on sufficiency of
the evidence, we address them together. See State v. Neal, 143 Ariz. 93, 98
(1984).

¶15 A judgment of acquittal is appropriate when "there is no
substantial evidence to support a conviction." Ariz. R. Crim. P. 20(a)(1). We
review de novo a superior court's ruling on a Rule 20 motion. State v. West
(West II), 226 Ariz. 559, 562, ¶ 15 (2011). "[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Id. at ¶ 16 (citation omitted). Substantial
evidence is "such proof that reasonable persons could accept as adequate
and sufficient to support a conclusion of defendant's guilt beyond a
reasonable doubt," and may be direct or circumstantial. Id. (quotation

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omitted). We test the evidence "against the statutorily required elements of
the offense," State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App. 2005), and neither
reweigh conflicting evidence nor assess the credibility of witnesses, State v.
Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013).

¶16 We review a superior court's ruling on a motion for new trial
based on the weight of the evidence for an abuse of discretion. State v.
Parker, 231 Ariz. 391, 408, ¶ 74 (2013). "A motion for new trial should be
granted only if the evidence was insufficient to support a finding beyond a
reasonable doubt that the defendant committed the crime." Id. (quotation
omitted). When deciding a motion for new trial, the superior court sits as
the so-called "thirteenth juror" and may independently weigh the evidence
and determine the credibility of the witnesses. State v. Fischer, 242 Ariz. 44,
49-50, ¶¶ 14-15, 17 (2017) (citation omitted).

¶17 Under § 13-3623(A)(1), a person commits child abuse
punishable as a dangerous crime against children when, "[u]nder
circumstances likely to produce death or serious physical injury," he or she
intentionally or knowingly causes a child under fifteen years of age "to
suffer physical injury or, having the care or custody of a child . . . causes or
permits the person or health of the child . . . to be injured or . . . causes or
permits a child . . . to be placed in a situation where the person or health of
the child . . . is endangered." See also A.R.S. § 13-705(Q)(1)(h) (2019).

¶18 Initially, we note there was no meaningful dispute at trial
concerning the statutory elements of J.H.'s age or whether J.H. was in
Hester's care or custody. The State offered the following evidence
pertaining to the remaining elements.

¶19 When J.H. was born, he had no health problems and his
weight was average. Hester and her husband, J.T.H., raised the boy along
with their four daughters in a rural area in northern Arizona close to
Hester's mother. Hester did not enroll J.H. in school with the other children.
Hester and J.T.H. eventually separated, and J.T.H. moved to another state
in 2013. At the time, J.H. was healthy and active. In September 2014,
Hester's boyfriend, J.C., began living with Hester and her family. A few
weeks before J.H.'s death, Hester's 12-year-old autistic nephew, D.G., came
to stay with the family. D.G. generally slept in the same room as J.H., and
did so on the night J.H. died.

¶20 In the week before J.H.'s death, he had not been eating or
sleeping and was behaving erratically. On the night of his death, Hester
gave him a generic antihistamine that contained the sleep aid

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diphenhydramine. Hester was awakened the next day by the other
children screaming that J.H. was not breathing. Hester called 9-1-1 a few
minutes later but only after instructing one of her daughters to call Hester's
mother, who arrived shortly thereafter. J.H. died from cardiopulmonary
arrest before he arrived at the hospital.

¶21 At the time of his death, J.H. was extremely malnourished and
dehydrated. He suffered from severe thymic involution (the thymus assists
the immune system) due to chronic stress on his body. He had 80-100
external injuries on his body, including cuts, bruises and lacerations. At
six-and-a-half years old, and after losing about ten pounds the week before
he died, he weighed just 29 pounds, placing him under the third percentile
for his age, and he appeared the size of a three-and-a-half- to four-year-old
child. No one had taken J.H. to visit a medical-care provider since he was
vaccinated in February 2013, when he appeared healthy and of normal size.
Photos taken at the time of his death showed J.H.'s poor condition and
"purplish-blue" skin coloring. The autopsy and examinations later revealed
that several weeks before he died, J.H. had suffered a fracture to his right
humerus bone that was never treated and healed on its own at an angle.
This type of fracture would be caused only by significant force, such as from
a car accident, and would have been extremely painful.

¶22 Hester acknowledged several times that she should have
taken J.H. to the doctor. But she did not do so, even though his health
deteriorated over an extended period of time, and even though he was in
obviously grave condition in his final week. Over all that period, Hester
kept J.H. in a highchair during the day and, at night, she locked him in his
bedroom, where law enforcement found feces. Hester mainly fed J.H. only
dry cornflakes, and, even at six years old, he was not allowed to leave his
highchair until he finished them. To punish J.H. when he did not eat the
dry-cornflake meals, Hester refused him water. J.H. was so frail and weak
that he needed help walking. Hester would spank him almost daily, often
with a belt, and would make him march in place beside his highchair for
exercise. A few days before J.H.'s death, Hester texted with a friend about
her desire to be rid of J.H., and the two discussed that if Hester could locate
her sister, J.H. could be shipped off to her in a "live animal box."

¶23 The medical examiner was not able to identify a natural cause
of J.H.'s death but found significant signs of neglect and did not rule out
battered-child syndrome. He also found dehydration but could not
diagnose malnourishment because of the absence of prior medical records
for J.H.

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¶24 The State's medical expert, a forensic pathologist who had
access to extensive medical records and interviews, testified that J.H.'s
death was caused by battered-child syndrome. Specifically, the expert
testified J.H.'s death was produced by overt acts of abuse and prolonged
neglect that together were more than sufficient to meet the syndrome's
clinical definition, all of which J.H. suffered inside Hester's home and under
her care. The expert testified the autopsy was one of the most thorough he
had reviewed and that the medical examiner did every conceivable test to
rule out alternative or natural causes of J.H.'s death. To reach his diagnosis
of battered-child syndrome and his opinion that it caused J.H.'s death, the
expert considered the nature and extent of J.H.'s injuries; J.H.'s overall
appearance and condition; his level of malnutrition and dehydration; his
small size and extensive weight loss; his severe thymic involution; Hester's
refusal to obtain medical care; the healed fracture of J.H.'s right humerus,
which would have been painful, debilitating and obvious; evidence of J.H.'s
failure to thrive; and the absence of an identifiable natural cause for these
conditions or his death. Both the medical examiner and the State's expert
agreed that the deprivation of food and the deprivation of water that the
child suffered were separately life-threatening, and the State's expert stated
the combination of those two made the threat even more concerning.

¶25 At trial, Hester's defense was, first, that she was not guilty of
intentionally or knowingly committing acts of child abuse. Hester also
presented a third-party-culpability defense, arguing that D.G., the autistic
child who was sleeping in the same room, was responsible for J.H.'s death.
Through the testimony of Hester's daughters, S.H., A.H. and T.H., Hester
asserted that D.G. attacked and strangled J.H., causing or contributing to
his death. On appeal, Hester argues that an alleged intervening event by
D.G. prevented the State from proving causation.

¶26 D.G. denied the allegations at trial, testifying that although he
had physical encounters with J.H. at other times, he did not touch J.H. on
the night of his death. A.H. testified she saw D.G. with his hands around
J.H.'s neck the night before J.H. died and she needed to separate them. A.H.
did not mention this incident, however, in her two interviews with law
enforcement after J.H.'s death.

¶27 S.H. testified that A.H. instructed her to "lie" and report to law
enforcement that D.G. had suffocated J.H. T.H. claimed that she had seem
D.G. choking J.H. a "week or two" before J.H.'s death but failed to report
this alleged incident until a third interview with authorities. At trial, T.H.
disclosed for the first time an assertion that D.G. told her "I didn't mean to
kill [J.H.]"

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¶28 Beyond D.G.'s denial, the jury reasonably could have found
significant credibility issues in Hester's daughters' testimony. Furthermore,
neither the medical examiner nor the State's expert saw any objective
evidence of strangulation. The State's expert in particular was provided
with specific, detailed information concerning the allegations against D.G.,
considered them in his review and rejected them.

¶29 At the same time, the evidence offered by the State showed
that Hester's abuse and neglect resulted in battered-child syndrome that
caused J.H.'s death. See State v. Hernandez, 167 Ariz. 236, 239 (App. 1990)
(collecting cases upholding admission of battered-child-syndrome
evidence, including to prove cause of death); State v. Poehnelt, 150 Ariz. 136,
139, 150 (App. 1985) (no error in permitting expert to testify about battered-
child syndrome in child-abuse case even though it pertained to the ultimate
issue). The jury was free to accept that evidence over Hester's evidence and
argument to the contrary. See State v. Clemons, 110 Ariz. 555, 556-57 (1974).

¶30 The evidence also supported the jury's finding that Hester
intentionally or knowingly caused J.H.'s obvious life-threatening condition
through overt acts of abuse and long-term neglect, which the State's expert
termed battered-child syndrome, and that this directly and proximately
caused J.H.'s death. In addition, the evidence was sufficient to show that
Hester's intentional or knowing failure to obtain medical care for J.H. also
caused his death. Hester acknowledged she should have sought medical
help for J.H.; the jury might have concluded she did not because she feared
the legal consequences she would suffer if doctors saw his grave condition.
See Payne, 233 Ariz. at 507, ¶ 77.

¶31 Connecting the facts to the statutory elements of the offense,
the evidence substantially shows Hester committed child abuse by
"caus[ing]" (overt acts of abuse including physical injury) and
"permit[ting]" (significant neglect over an extended period of time) J.H.'s
person and health to be injured and by placing him in a situation (her home
under her care) where his person and health were endangered, eventually
causing his death. See A.R.S. § 13-3623(A). We therefore conclude the State
offered sufficient evidence to prove each of the three alternative means
provided in the child-abuse statute. See infra ¶¶ 33-35. As such, we decline
the State's invitation on appeal to determine whether the jury was required
to agree on the specific means by which Hester committed the crime. For
these reasons, the superior court did not err by denying Hester's Rule 20
and Rule 24.1 motions.

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C. Duplicity of the Charges.

¶32 Hester argues the charges were duplicitous and violated her
right to a unanimous jury verdict. In her brief, Hester focuses her
duplicitous argument only on the child-abuse charge. See State v. Moody,
208 Ariz. 424, 452, ¶ 101, n.9 (2004) (failure to adequately argue claim in
opening brief usually constitutes waiver). Because Hester did not complain
about duplicity in the superior court, we review for fundamental,
prejudicial error. Escalante, 245 Ariz. at 138, ¶ 1. A criminal defendant is
entitled to a unanimous jury verdict, and violation of that right constitutes
fundamental error. Ariz. Const. art. 2, § 23; State v. Davis, 206 Ariz. 377, 390,
¶ 64 (2003).

¶33 We have defined § 13-3623(A) as "an alternative-means
statute," meaning that the crime of child abuse is "a single unified offense."
State v. West (West III), 238 Ariz. 482, 489, ¶ 19 (App. 2015). "Alternative
means statutes identify a single crime and provide more than one means of
committing the crime." Id. (citation omitted). Specifically, a person may
commit child abuse by three different means, and the statute classifies the
offense based on the defendant's mental state. Id. at 490, ¶¶ 21-22. Because
child abuse is a single unified offense, "the same evidence can be used to
prove all three means." Id. at 492, ¶ 28. First-degree murder also is a single
unified offense, and thus jury unanimity concerning the means of death is
not required. State v. Millis, 242 Ariz. 33, 40, ¶ 22 (App. 2017).

¶34 Thus, a defendant charged with child abuse is entitled to a
unanimous verdict regarding whether the defendant committed the offense
but is not entitled to unanimity regarding the precise manner in which the
offense was committed. Payne, 233 Ariz. at 508-09, ¶¶ 81-90; Millis, 242
Ariz. at 39-40, ¶ 21; West III, 238 Ariz. at 492-94, ¶¶ 29-30, 37. A jury may
reach a verdict regarding a single unified offense "based on a combination
of alternative findings." State v. Dann, 220 Ariz. 351, 367, ¶ 79 (2009).

¶35 Relying on State v. Klokic, 219 Ariz. 241, 244, ¶ 14 (App. 2008),
however, Hester argues the State was required to elect a particular act upon
which to base a conviction or, alternatively, the court was obligated to
instruct jurors that they all must agree on a specific act to support any guilty
verdict. The measures described in Klokic, however, do not apply here
because the "multiple-acts analysis in Klokic is generally inapplicable to
cases involving a single unified offense such as child abuse under § 13-
3623(A)." Millis, 242 Ariz. at 40-41, ¶ 25; see West III, 238 Ariz. at 493-94, 496,
¶¶ 37-39, 46. Here, the indictment alleged Hester engaged in an ongoing
course of criminal conduct over an extended period of time as a single

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undertaking under alternative-means statutes. It thus clearly informed her
the child-abuse charge was based on her continuing course of conduct from
October 1, 2014, to June 22, 2015. For that reason, the State did not need to
elect a specific act upon which to proceed, and the court was not required
to give a unanimity instruction. State v. Sanders, 245 Ariz. 113, 130, ¶¶ 70-
72 (2018); Millis, 242 Ariz. at 40, ¶ 24; West III, 238 Ariz. at 494, ¶ 39. As in
Millis and West III, the extended continuing course of Hester's criminal acts
and failures to act, such as denying food and water and refusing to seek
medical care, made it impossible to determine the exact time and nature of
each act of abuse, and ultimately caused a single result: J.H.'s death. Millis,
242 Ariz. at 40, ¶¶ 24-25; West III, 238 Ariz. at 496, ¶ 45.

¶36 In any event, even under a Klokic multiple-acts analysis, the
remedial measures would not be required because Hester's abuse and
neglect were part of a single criminal transaction. See Payne, 233 Ariz. at
508, ¶¶ 85-86; West III, 238 Ariz. at 494-95, ¶ 40; Klokic, 219 Ariz. at 244, ¶¶
14-15. Moreover, she offered the same defenses to the charged acts,
asserting that any neglect or acts were not intentional or knowing and that
the third-party culpability of D.G. was an intervening causal event. See
Sanders, 245 Ariz. at 130, ¶ 72.

¶37 In sum, the charges were not duplicitous and Hester's right to
a unanimous jury verdict was not violated.

D. Asserted Vagueness of the Child-Abuse Statute.

¶38 Hester argues the child-abuse statute, § 13-3623, is
unconstitutionally vague because it fails to give reasonable notice of the acts
it prohibits and therefore permits arbitrary enforcement. Because Hester
did not raise this issue in the superior court, we review for fundamental,
prejudicial error. Escalante, 245 Ariz. at 138, ¶ 1.

¶39 "A statute is void for vagueness if it fails to give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited,
so that [the person] may act accordingly." State v. Burbey, 243 Ariz. 145, 149,
¶ 15 (2017) (quotation omitted). Yet, "with the exception of challenges
based on First Amendment grounds, a defendant whose conduct clearly
falls within the legitimate purview of the statute has no standing to
challenge the statute as vague." State v. Anderson, 199 Ariz. 187, 191, ¶ 15
(App. 2000); see also State v. George, 233 Ariz. 400, 402, ¶ 8 (App. 2013)
(rejecting vagueness challenge because defendant's "conduct fell squarely
within the statute's ambit").

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¶40 Here, Hester was convicted based on acts that fell squarely
within the statute's proscriptions, such as denying J.H. food and water to
the point he was dehydrated and severely underweight, excessively
punishing him, and refusing to obtain medical care for him when he was
obviously critically ill. See A.R.S. § 13-3623(A), (F)(4). Thus, her vagueness
challenge fails.

E. Hester's Motion for Mistrial.

¶41 Hester argues the superior court erred by denying her motion
for mistrial. We review the denial of a motion for mistrial for an abuse of
discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). "A declaration of a
mistrial is the most dramatic remedy for trial error and should be granted
only when it appears that justice will be thwarted unless the jury is
discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262
(1983). Hester also contends for the first time on appeal that prosecutorial
misconduct occurred in the events that led to the motion; we review that
argument for fundamental, prejudicial error. Escalante, 245 Ariz. at 138, ¶
1.

¶42 To determine whether a prosecutor's comments "constituted
misconduct that warrants a mistrial, a trial court should consider two
factors: (1) whether the prosecutor's statements called to the jury's attention
matters it should not have considered in reaching its decision and (2) the
probability that the jurors were in fact influenced by the remarks." State v.
Newell, 212 Ariz. 389, 402, ¶ 60 (2006). The defendant bears the burden of
showing the challenged statements, "in the context of the entire proceeding,
so infected the trial with unfairness as to make the resulting conviction a
denial of due process." Id. (quotation omitted).

¶43 During cross-examination, Hester had asked D.G. about his
relationship with J.H., and D.G. volunteered he had anger problems while
he was living at Hester's home but said he thereafter rectified those
problems. On redirect, the State asked D.G. whether he had any problems
controlling himself in stressful situations, and then asked, "Does that go
along with the fact that you've been diagnosed autistic?" Earlier, the court
had precluded cross-examination about D.G.'s condition and any
medications for it.

¶44 Hester's counsel objected before D.G. answered. Hester
moved for a mistrial, arguing Hester had been prejudiced beyond
rehabilitation because her cross of D.G. was exhausted and that due to
D.G.'s condition, her lawyer could not restore the rapport he had previously

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built with D.G. The superior court expressed concern about the
prosecutor's question but denied the motion. Hester accepted the court's
offer to strike the question and instruct the jury to disregard it.

¶45 The superior court did not err in concluding the question did
not require a mistrial. Although the question approached a precluded
subject area, D.G. did not respond to it, and the State was not allowed to
ask other questions about D.G.'s condition. Considering the context, D.G.'s
overall testimony and D.G.'s previous statement that he had anger
problems during the time he lived in Hester's home, we cannot conclude
the question influenced the jury, and, in any event, any implication that
D.G. had uncontrolled anger problems seemingly would have buttressed
Hester's defense that D.G. attacked J.H. Moreover, the court's remedy was
appropriately tailored to the violation. Again, we presume jurors follow
the court's instructions. Prince, 226 Ariz. at 537, ¶ 80.

¶46 In addition, the superior court altered its prior ruling by
allowing Hester to ask D.G. about the medications and his condition, but
Hester chose not to inquire about those subjects in further cross-
examination. For all these reasons, the court did not abuse its discretion by
denying Hester's motion for mistrial.

¶47 Regarding Hester's prosecutorial-misconduct argument, the
prosecutor's question, though apparently improper, was not misconduct.
The question was at least tangentially related to D.G.'s earlier testimony
that he had received help for his anger. Moreover, the record contains no
mention of prosecutorial misconduct related to the incident, and the court
did not appear to reject the prosecutor's explanation for why he asked the
question. The record thus does not support Hester's argument.

F. The Superior Court's Evidentiary Rulings.

¶48 Hester argues the superior court erred by denying her request
to admit a video-recorded interview of D.G. and by limiting her cross-
examination of D.G. We review the superior court's evidentiary rulings for
an abuse of discretion. State v. Delahanty, 226 Ariz. 502, 506, ¶ 17 (2011)
(cross-examination); State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006)
(generally). We review questions of law de novo. See State v. Davolt, 207
Ariz. 191, 202, ¶ 21 (2004).

1. Videotaped interview of D.G.

¶49 During direct examination of D.G., the State needed to refresh
his memory numerous times. Before cross-examination, to support her

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Decision of the Court

third-party-culpability defense, Hester moved to admit an entire 45-minute
interview of D.G. recorded the day after J.H.'s death at a "Safe Child"
facility. She argued the videotape was admissible both as a past recollection
recorded under Arizona Rule of Evidence 803(5)(A) and as non-hearsay
offered to show D.G.'s demeanor. The court ruled that although D.G.'s
memory lapses about certain topics had been successfully refreshed during
direct examination, those lapses were an insufficient basis on which to
admit the entire video. The court, however, allowed Hester to use any
relevant portion of the interview to refresh D.G.'s recollection or impeach
him if needed. During cross-examination, Hester used several interview
transcripts, including that of the Safe Child interview, but not the video.

¶50 The record supports the superior court's ruling. The court
properly addressed the foundational requirements under Rule 803(5)(A),
which specifically requires memory loss on a particular matter: The record
must be "on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately."3 Because D.G.'s testimony
showed he could testify fully from memory at times and that his memory
could be refreshed, the court did not abuse its discretion in its ruling.

¶51 The superior court also concluded D.G.'s demeanor during
the interview was not relevant. Hester did not sufficiently demonstrate at
trial why D.G.'s demeanor was relevant and fails to do so on appeal. The
superior court noted that if Hester chose to play admissible portions of the
videotape to refresh D.G.'s memory or impeach him, those excerpts would
show D.G.'s demeanor at the time. Finally, because the trial exhibit
containing the video is not part of the record on appeal, we presume it
supports the superior court's decision. State v. Mendoza, 181 Ariz. 472, 474
(App. 1995).

2. Cross-examination of D.G.

¶52 Hester also contends the court erred when it precluded her
from examining D.G. about his character pertaining to violence, including
his autism diagnosis, whether D.G. was presently taking autism
medications and whether he was taking medications at the time of J.H.'s
death.

3 The superior court further concluded that playing the video in its
entirety might introduce irrelevant and overly prejudicial information. See
Ariz. R. Evid. 402, 403.

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Decision of the Court

¶53 We do not find in the record any offer of proof or other
support regarding the relevance of D.G.'s medications or his condition.
Consequently, we cannot review the superior court's ruling. See State v.
Hernandez, 232 Ariz. 313, 321, ¶ 37 (2013) ("The lack of an offer of proof
forecloses [appellant's] argument on appeal."). Without record support, we
cannot assume that D.G.'s asserted failure to take his medications caused
his admitted anger problems, that any current medications remedied those
problems, or that the medications or anger were related to his condition.

¶54 Moreover, Hester's reliance on State v. Machado, 226 Ariz. 281
(2011), is inapposite. The superior court here did not restrict Hester's third-
party-culpability defense based on an improper analysis under Arizona
Rule of Evidence 404(b) regarding a past history of violence by the third-
party as discussed in Machado. 226 Ariz. at 282, 284, ¶¶ 7, 16. The court
merely precluded Hester from inquiring during her initial cross-
examination of D.G. about his medications and his autism, on the grounds
of relevance and prejudice, after D.G. volunteered he previously had anger
problems. To the extent this evidence implicated a Machado analysis, the
superior court's ruling is consistent with Machado. See id. at 284, ¶ 16
(admission of third-party-culpability evidence governed by Rules 401
through 403, not 404(b)).

¶55 The superior court's only prior limitation on Hester's cross-
examination pertaining to D.G.'s alleged past acts of violence was that it
instructed counsel to approach the bench before beginning to inquire into
any acts to which D.G. "open[ed] the door" so that the court could rule on
admissibility. And the superior court permitted Hester to reopen her cross-
examination to ask D.G. about his medications and autism diagnosis, but
Hester chose not to do so. Thus, the court did not abuse its discretion.

¶56 Finally, although Hester argues the court's limitation of her
cross-examination violated due process, because no error occurred, Hester

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Decision of the Court

has not satisfied her initial burden to establish fundamental error. See
Escalante, 245 Ariz. at 142, ¶ 21.

CONCLUSION

¶57 For the reasons stated, we affirm Hester's convictions and
sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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