dissenting.
¶ 18 I respectfully dissent. The majority holds first that a trial judge’s failure to comply with A.R.S. § 13-702.C cannot constitute harmless error. Apparently recognizing that substantial compliance with section 13-702.C is not error at all, the majority then holds that this trial judge did not substantially comply with that statute. I disagree with both those conclusions. I would conclude that the trial judge complied, or at least substantially complied, with section 13-702.C and that she fulfilled all the goals set out in State v. Holstun, 139 Ariz. 196, 677 P.2d 1304 (App.1983), which the majority today approves.
A.
¶ 19 By characterizing Holstun as setting out the “better rule,” the majority apparently also adopts the holding of Holstun that failure to comply with section 13-702.C cannot be harmless error. 139 Ariz. at 198, 677 P.2d at 1306. Of course it is a better practice, as the majority states, for a trial judge to describe precisely the specific circumstances found to be aggravating or mitigating. This court said so in State v. Mahler, 128 Ariz. 429, 626 P.2d 593 (1981), and again in State v. Gannon, 130 Ariz. 592, 638 P.2d 206 (1981). In both those cases, however, we found that the trial judge substantially complied with *6the statute and affirmed the aggravated sentences imposed.
¶20 The majority’s decision to adopt a “no harmless error” rule reflects quite an extraordinary approach, which we have rejected in the context of considering whether errors, even those of constitutional dimension, can be harmless under the facts of a particular case. The majority justifies its extraordinary holding by noting that, while in most instances we would affirm a “judge’s decision so long as the record contains facts that support the result,” doing so is inappropriate here because the statute requires the judge to state his or her reasons. Op. at ¶ 12. However, we previously have held that a judge’s failure to comply with the strict mandates of a statute can indeed constitute harmless error. See State v. Mendoza, 170 Ariz. 184, 194, 823 P.2d 51, 61 (1992) (granting a continuance that violates the statutorily mandated 150-day rule for bringing a trial can constitute harmless error). We have employed harmless error analysis in situations involving constitutional, evidentiary, and jury related matters, as well as issues affecting elements of charged offenses. For example, failure to appoint counsel for a defendant at a preliminary hearing has constituted harmless error. See State v. Miranda, 104 Ariz. 174, 184, 450 P.2d 364, 374 (1969); State v. Moses, 101 Ariz. 426, 427, 420 P.2d 560, 561 (1966). Errors involving the alleged deprivation of constitutional rights can be harmless. See State v. Hein, 138 Ariz. 360, 365, 674 P.2d 1358, 1363 (1983). Errors involving improper instructions do not necessitate a new trial when the jury’s verdict is fair and reasonable or when the complaining party is unable to show prejudice resulted. See Bliss v. Treece, 134 Ariz. 516, 520-21, 658 P.2d 169, 173-74 (1983). Fundamental error that involves differing mental states can be harmless when total innocence is the defense presented as to each mental state charged. See State v. Herrera, 176 Ariz. 9, 15, 859 P.2d 119, 125 (1993). A violation of the confrontation clause can be harmless error. See State v. Wood, 180 Ariz. 53, 64, 881 P.2d 1158, 1169 (1994). Evidentiary errors, such as the admission of hearsay statements, can be fundamental, reversible error in one ease and harmless in another depending upon the facts of the case. See id.; State v. Eastlack, 180 Ariz. 243, 256-57, 883 P.2d 999, 1012-13 (1994) . When a defendant does not testify at trial, the failure to obtain an on-the-record waiver of the defendant’s right to testify can constitute harmless error. See State v. Gul-brandson, 184 Ariz. 46, 65, 906 P.2d 579, 598 (1995) . Failure to give a limiting instruction concerning prior bad acts can result in harmless error. See State v. Atwood, 171 Ariz. 576, 639, 832 P.2d 593, 656 (1992). The erroneous admission of DNA evidence constitutes harmless error when the consistency and strength of other evidence establish a defendant’s guilt. See State v. Bible, 175 Ariz. 549, 589, 858 P.2d 1152, 1192 (1993).
¶ 21 These cases apply the generally accepted rule that virtually any error, under particular circumstances, can be harmless. I cannot justify holding, as the majority does, that we will affirm a trial judge’s decision if the record supports it unless the decision involves section 13-702. As the dissenting judge stated in Holstun, a judicial decree that an error in stating aggravating factors can never be harmless is an “elevation of this type of error to a status not enjoyed even where error of constitutional dimension is involved....” 139 Ariz. at 199, 677 P.2d at 1307.
B.
¶ 22 Even if I agreed with the statement in Holstun that appellate courts should not review the situation considered in that case for harmless error, I would find the facts there readily distinguishable from those of this case. In Holstun, the trial judge gave no reasons for his decision to impose an aggravated sentence. In such a situation, which occurs rarely, asking an appellate court to search the record for any factors that might justify the aggravated sentence would ask the appellate court, the defendant, and the public to speculate about the factors relied upon by the trial judge. In that situation, an appellate court could well conclude the trial judge’s error constituted reversible error.
¶ 23 The situation here, however, is very different. This trial judge expressly announced that she had “considered all of the *7factors and [found] the following aggravating factors to be present.” The majority apparently agrees that, when a trial judge attempts to comply with section 13-702.C, we will affirm the sentence imposed if the judge substantially complied with the statute, for the majority states it tried, “unsuccessfully, to find substantial compliance under the facts of this case____” Op. at ¶ 14. In my view, the majority’s inability to find substantial compliance reflects an unduly narrow, formalistic reading of the statute and fails to give adequate deference to the trial judge.
¶ 24 The first problem with the majority’s approach relates to its underlying construction of section 13-702. In paragraphs one through fourteen of subsection C, the statute lists fourteen specific factors the trial court can consider as aggravators. Paragraph fifteen, however, permits the trial judge to consider “[a]ny other factors which the court may deem appropriate to the ends of justice.” A.R.S. § 13-702.C.15. Although the majority refers to the fifteenth paragraph, or “catch-all provision,” when it considers whether the trial court substantially complied, it gives no weight to the trial judge’s findings, which I regard as fitting squarely within the catch-all provision.1
¶25 The majority’s failure to consider fully whether the trial judge’s comments establish aggravating factors under paragraph fifteen may result from its insistence that trial judges state aggravating factors “in the [ ] precise terms of the statute.” Op. at ¶ 17. Such a requirement makes it all but impossible for trial judges to utilize paragraph fifteen, which permits consideration of “other factors which the court may deem appropriate to the ends of justice.” A.R.S. § 13-702.C.15. Factors found under that provision will never follow the “precise [language] of the statute,” for the provision is intended to allow trial judges to consider factors other than those expressly enumerated in the statute.
¶ 26 If we afford paragraph fifteen some meaning, which I believe we must, then the trial judge’s substantial compliance becomes even clearer. As I mentioned earlier, the trial judge began by stating, expressly and not by implication, that she found certain aggravating factors. The majority rejects the trial judge’s reference to defendant’s flight from police because flight is an element of one of the underlying charges. The record, however, establishes facts that exceed those needed to support the one charge of unlawful flight of which this defendant was convicted. The facts, as related by the majority, Op. at ¶¶ 3-5, show that Harrison fled from the police when they tried to make the initial stop; that he fled in his ear after his initial encounter with the officers; and that he ran away again after they stopped his car a second time. Those facts rise “to a level beyond that which is [ ] necessary to establish” the flight conviction. Op. at ¶ 14. The trial judge said flight was an aggravating factor; the record shows she appropriately considered that fact. As we do in other instances, we can and should presume she knew and applied the law.
¶27 In addition to referring to Harrison’s flight from police, the trial judge then described in some detail other factors intended to explain the sentence she was about to impose. Although the majority states it does *8not “raise form over substance” and does not “require a specific litany” or “formal findings or conclusions,” I am left to wonder what else the trial judge could have done. Op. at ¶ 12. Using only those factors found in the sentencing transcript, see Op. at ¶ 5, perhaps she should have numbered her findings, saying something like:
I find as an aggravating factor that you fled from the police on three occasions, which conduct rises to a level beyond that necessary to establish the offense of unlawful flight of which you were convicted.
I find as a further aggravating factor that your conduct escalated a minor traffic stop into a series of felonious criminal offenses during which you unnecessarily placed at risk your own safety and that of a group of police officers. I find (1) that your actions show repeated instances of an inability to control your anger; (2) that your inability to control your anger was the factor that led to events spiraling nearly out of control; (3) that you evidenced a refusal to follow the standards of behavior that society expects from us all; (4) that your foul language, which exceeded any expected bounds, farther escalated the situation; and (5) that your actions show your repeated refusal to respect the authority of law enforcement officers. I find that your conduct was so extreme as to indicate the likelihood that you will commit serious offenses in the future unless you understand that your actions carry consequences.
I conclude that the ends of justice deem it appropriate to impose aggravated sentences for the offenses of which you have been convicted.
¶ 28 The findings stated above simply repeat, in a slightly altered format, the statements made by the trial judge. The question then becomes whether such findings would satisfy the values the majority asserts will be furthered by requiring trial judges to articulate their reasons for imposing an aggravated sentence.
¶ 29 Relying upon Holstun, the majority says that applying a “no harmless error” approach to section 13-702 ensures that a trial judge’s misapprehension of the facts will come to light. This trial judge’s comments, however, show beyond a doubt that she understood the facts, and not even the defendant suggests otherwise. That goal has been met. A second goal is to assure that the judge will give thought as to whether the sentence imposed is appropriate. Again, the comments of this trial judge reveal that she gave careful thought to the appropriate sentence. In fact, she rejected the sentencing recommendations of the prosecutor and Harrison’s probation officer. The third goal that results from requiring trial judges to articulate aggravating factors is that stating reasons reaffirms the defendant’s individuality, while driving home the severity of the consequences of the crime and the effect of his extreme conduct in increasing the seriousness of the charges he faced. The sentencing comments here reveal more appreciation of the defendant’s individual motivations than often is apparent. The trial judge’s comments reveal an unusually clear attempt to explain to the defendant the severity of the consequences of his conduct. The trial judge met that goal. The fourth goal is to assure that the sentencing process will not become mechanical. Surely no one reading the judge’s attempt to shape this penalty to this defendant can think for a moment that a “mechanical” process took place.
¶30 Of the Holstun factors, that leaves the goal of ensuring that the trial judge does not rely on matters that are not properly aggravating factors. In Holstun, that warning served an apparent purpose because the trial judge articulated no reasons for aggravating the sentence. In this instance, I see no use of improper factors, unless the majority intends to hold that paragraph fifteen lacks effect. If the statute allows a trial judge to act pursuant to that paragraph, then the judge met that goal also.2
¶ 31 The majority adds another reason to the Holstun litany: requiring articulation of factors “will enable an appellate court to determine whether the judge has correctly considered the specific aggravating or mitigating circumstances.” Op. at ¶ 11. Of course the appellate court must know what *9factors the trial judge used. A rule requiring substantial compliance with the statute adequately advances that goal, and for the reasons stated above, I would find substantial compliance.
C.
¶ 32 For the foregoing reasons, I would hold that a trial judge’s alleged failure to comply with A.R.S. § 13-702 is subject to harmless error analysis. In this case, I would conclude that the trial judge, either expressly or substantially, complied with the statute. I also would conclude that the reasons stated by the judge independently, and as supported by other matters of record, justify the aggravated sentence imposed and advance the goals of requiring judges to articulate their reasons for imposing aggravated or mitigated sentences. Therefore, I would affirm the sentences imposed.
CONCURRING: FREDERICK J. MARTONE, Justice.. Even if we were to limit onr consideration to the specifically enumerated factors, the record shows substantial compliance by the trial judge. As the majority notes, a finding that establishes one of the elements of the underlying crime cannot be considered unless it rises to a level beyond that needed to establish the element. The record shows that requirement is met. Paragraph one of subsection C defines as an aggravating factor the infliction or threatened infliction of serious physical injury, unless the circumstance is an essential element of the offense of conviction. Harrison was convicted of three counts of aggravated assault, but the facts show several additional uncharged incidents of that behavior. After the initial stop, he charged a police officer once, then a second time. As he fled in his car, he tried to run over the officers. After the second stop, he resisted arrest. At .the police station, he violently attacked a group of police officers. Those facts establish more than is needed to justify a conviction of three counts of aggravated assault. Asking an appellate court to consider whether the undisputed facts of record establish these aggravating elements imposes no undue burden on the court. Previously, when faced with the argument that a trial judge relied on inappropriate factors to impose a sentence, we have looked to the record to determine whether the judge would have imposed the same sentence absent reliance on those factors. See, e.g., State v. Garza, 192 Ariz. 171, 962 P.2d 898 (1998).
. It is worth noting that the mitigating factors found by the trial judge all fall within the "catchall provision” of A.R.S. § 13-702.D. Those mitigating factors are no less valid because they are not within the enumerated mitigating factors listed in the statute.