Datasets:

free-law

/

arizona_embeddings

like 1

Follow

FreeLaw 9

OPINION JONES, Vice Chief Justice. Chad Alan Lee (defendant) was convicted of kidnapping, sexual assault, armed robbery, theft, and two counts of first degree murder. He was sentenced to death for each of the murders and prison terms for the noncapital offenses. In separate proceedings, Lee was tried and convicted of a third murder; our disposition of that appeal is published separately. State v. Lee, 189 Ariz. 608, 944 P.2d 1222 (1997) (hereafter Lee II). This is an automatic appeal of the convictions and sentences pursuant to Rules 26.15 and 31.2, Arizona Rules of Criminal Procedure. We have jurisdiction under article VI, section 5(3), of the Arizona Constitution and A.R.S. § 13-4031. We affirm the convictions and sentences. FACTS Murder of Linda Reynolds On April 6, 1992, defendant and David Hunt called Pizza Hut from a pay phone and placed an order to be delivered to a vacant house. When Linda Reynolds arrived with the pizza order, defendant and Hunt confronted her with a rifle, forced her to remove her shorts and shirt, and abducted her. Defendant drove his Pontiac LeMans into the desert with Reynolds, and Hunt drove Reynolds’ ear to meet them. Defendant removed the stereo from Reynolds’ car and then destroyed the car by smashing the windows and various parts with a bat, puncturing the tires, and disabling the engine by cutting hoses and spark plug wires. Reynolds watched as one of the two, either defendant or Hunt, shot a bullet through the hood of her car. Defendant testified he destroyed Reynolds’ car so that she could not escape. Reynolds was forced to remove her pantyhose, socks, and shoes and to walk barefoot with Hunt in the desert north of her car where he raped her. Hunt then walked Reynolds back toward her car, where defendant forced Reynolds to perform oral sex on him. After finding Reynolds’ bank card in her wallet, defendant drove her and Hunt to Reynolds’ bank to withdraw money from an automated teller machine (ATM). Defendant gave Reynolds his flannel shirt to wear, walked her to the ATM, and forced her to withdraw twenty dollars. Defendant and Hunt then drove Reynolds back to the desert north of where they had destroyed her car. Reynolds momentarily escaped, but Hunt found her and forced her back to the car. When she returned, her face and lips were bloody. Defendant claimed that he and Hunt argued in front of Reynolds about whether to release her. Defendant testified that Hunt was opposed to releasing her because she would be able to identify them. Defendant stated that as he was escorting Reynolds away from Hunt, defendant shot her in the head as she attempted to take the gun from him. Further, defendant testified that he ran back to the car, got a knife, went back to Reynolds, and stabbed her twice in the left side of her chest to stop her suffering. Defendant returned to his car and drove away with Hunt. On April 7, 1992, defendant pawned Reynolds’ wedding ring, gold ring, and car stereo for a total of $170. He filled out a sales slip and used his driver’s license as identification. Murder of David Lacey Shortly after midnight on April 16, 1992, nine days after the Reynolds murder, defendant called for a cab from a pay telephone at a convenience store. David Lacey’s cab was dispatched, and he picked up defendant. Hunt, who had waited near the convenience store, drove defendant’s car to the location where he and defendant intended to rob Lacey. When Lacey stopped the cab and turned around to get paid, defendant pulled out his revolver and demanded money. Defendant claimed that Lacey turned around and attempted to grab the gun. Defendant then fired nine shots, four of which hit Lacey. Defendant removed forty dollars from Lacey’s pockets and dumped his body by the side of the road. With Hunt following, defendant drove the cab to a dirt road where he shot the cab’s windows and tires and rifled through its contents. Defendant’s cigarette lighter and bloody fingerprint on a receipt were later found in the abandoned cab. After hearing news reports that police had found distinctive shoeprints at the Reynolds and Lacey crime scenes, defendant drove to a forest north of Prescott and burned the shoes he had worn during both murders. At the same time, defendant burned and buried two .22 caliber rifles including one gun he used to shoot Reynolds. Defendant left the knife he used to stab Reynolds stuck into a tree at the same location. Investigation Police began their investigation of Reynolds’ disappearance the evening of April 6, 1992, at her last delivery site and found her body on April 7. They obtained videotape from the ATM that depicted a Pontiac Le-Mans with Reynolds sitting in the front passenger seat and also showed her at the ATM with defendant standing next to her. A patrol officer who responded to two Lacey crime scenes noticed that the shoeprints found at both scenes matched a shoeprint he had seen on a flyer containing information about the Reynolds murder. Subsequently, the Phoenix Police Department, investigating the Reynolds murder, and the Maricopa County Sheriffs Department, investigating the Lacey murder, began a joint investigation because of striking similarities between the two crimes. Pizza Hut provided police with information about past orders that included Hawaiian pizza similar to the last order delivered by Reynolds. One such order had been placed from the home of Hunt’s stepmother. On May 1, 1992, Hunt’s stepmother told police that Hunt and defendant had ordered Hawaiian pizza in the past and that she had recognized defendant’s photograph in the newspaper. She gave police Hunt’s father’s address where police found Hunt, his father, and defendant. Defendant and Hunt agreed to provide police a sample of their fingerprints and did so that day. A few hours later, defendant, Hunt, and their girlfriends left town in defendant’s car. On May 3, 1992, at 4:00 p.m., defendant, Hunt, and their girlfriends were stopped by police in Oak Creek Canyon in connection with an armed robbery in Flagstaff. Defendant was advised of his Miranda rights and transported to the Flagstaff Police Department. That evening defendant was advised of his Miranda rights again and signed a waiver form. Later that day, a palm print found on Reynolds’ car was identified as belonging to Hunt. While attempting to alert law enforcement officers to detain defendant’s car, police learned that it had been impounded in Flagstaff. Detectives from the Phoenix Police Department and the Maricopa County Sheriffs Department drove to Flagstaff to interview defendant and Hunt. On the way, the detectives received information that the bloody fingerprint found on the receipt in Lacey’s cab matched defendant’s print. The detectives interviewed the girlfriends, then Hunt, and then defendant. In defendant’s interview, which began at 2:45 a.m., May 4, after he was again read his Miranda rights, he confessed to robbing and murdering Reynolds and Lacey and told the detectives how and where he had disposed of the weapons. He offered to assist police officers in locating the weapons he used to murder Reynolds. On May 5,1992, a Phoenix Police detective met with defendant at the Coconino County Jail and again advised him of his Miranda rights. Defendant agreed to talk and then accompanied the police officers, directing them to the campsite where he had hidden a single-shot, sawed-off .22 caliber rifle and a semi-automatic .22 caliber rifle and left the knife in a nearby tree. Defendant told officers that he used the knife to stab Reynolds and the single-action rifle to shoot her. Defendant further confessed in detail about his involvement in both murders to the Phoenix Police detective and later to two other officers during transport back to Coconino County Jail. On May 6, 1992, a Maricopa County Sheriffs Department detective reinterviewed defendant about the Lacey murder and robbery because the tape recorder had not functioned properly during the prior interview. On tape, defendant waived his Miranda rights and retold how he planned the robbery and shot Lacey to death. Finally, defendant testified at the trial and admitted that he made the pizza order, destroyed Reynolds’ car, shot and stabbed Reynolds, and pawned her rings and stereo. Defendant also admitted that he called the cab and shot Lacey in the head. Further, defendant testified at trial that all statements he made to police officers were of his own free will, that he was advised of his Miranda rights, and that he told officers he understood his rights. PROCEDURAL HISTORY The Maricopa County Grand Jury charged defendant with the following offenses: (1) as to Linda Reynolds, first degree murder, kidnapping, two counts of sexual assault (sexual intercourse and oral sexual contact), armed robbery, and theft; (2) as to David Lacey, first degree murder and armed robbery; and (3) as to Harold Drury (Lee II), first degree murder and armed robbery. Defendant filed multiple pretrial motions including motions to appoint second counsel and to close the court proceedings to the media, both of which were denied. The trial court granted defendant’s motion to remand to the grand jury for redetermination of probable cause on the charge of sexual assault through sexual intercourse. Defendant was reindicted on sexual assault, alleging accomplice liability. Defendant also filed a motion to suppress his statements, alleging that they were involuntary. Following a suppression hearing, the trial court denied defendant’s motion, finding that he had been advised of his Miranda rights on at least five separate occasions by different police officers, that he understood his rights on each of those occasions, and that he knowingly, intelligently, and voluntarily waived those rights. The trial court also found that his statements were made knowingly and voluntarily and were not the result of police misconduct. Defendant filed a motion to sever the indictment into separate cases for each victim. The trial court granted his motion in part, severing the Reynolds and Lacey counts from the Drury counts. On March 24,1994, a jury found defendant guilty of all charged offenses related to Reynolds and Lacey. Jurors unanimously found defendant guilty of the premeditated and felony murder of Reynolds, and they unanimously found defendant guilty of the felony murder of Lacey. After a sentencing hearing, the trial court sentenced defendant to consecutive, aggravated terms of imprisonment totaling 101 years for the noncapital convictions. For each of the murders, defendant was sentenced to death. In a special verdict, the trial court found the following aggravating circumstances under A.R.S. § 13-703(F) for both of the death sentences: F(l) previous death-eligible conviction, F(2) previous violent felony, and F(5) pecuniary gain. In addition, the court found under A.R.S. § 13-703(F)(6) that the Reynolds murder was especially cruel, heinous, and depraved and that the Lacey murder was depraved. As mitigating factors, the trial court acknowledged defendant’s age, lack of significant pri- or criminal history, deprived childhood, cooperation with law enforcement officials and assistance in recovery of weapons, and remorse. ISSUES Defendant has raised seven trial issues and various arguments pertaining to the death sentences. In addition, he has raised four miscellaneous issues previously rejected by this court. A. Trial Issues 1. Denial of Severance of Reynolds and Lacey Counts Defendant contends the trial court erred by partially denying his motion to sever. To justify reversal based on such error, this court must find the trial court clearly abused its discretion. State v. Atwood, 171 Ariz. 576, 612, 832 P.2d 593, 629 (1992). Offenses are properly joined if they: “(1) Are of the same or similar character; or (2) Are based on the same conduct or are otherwise connected together in their commission; or (3) Are alleged to have been part of a common scheme or plan.” Ariz. R.Crim.P. 13.3(a). A defendant is entitled as of right to sever offenses joined solely on the basis of Rule 13.3(a)(1). Ariz.R.Crim.P. 13.4(b). If a defendant is improperly denied severance, however, such error will not justify reversal if found to be harmless. State v. Ives, 187 Ariz. 102, 106, 109, 927 P.2d 762, 766, 769 (1996) (citing State v. Stuard, 176 Ariz. 589, 596-97, 863 P.2d 881, 888-89 (1993)). If the evidence would have been admissible at separate trials under Rule 404(b), Arizona Rules of Evidence, then the error is harmless, and a defendant will not receive a new trial. Id. a. Common Scheme or Plan Defendant argues that the counts related to the two victims, Reynolds and Lacey, were improperly joined because none of the three conditions required by Rule 13.3(a) were met. Further, defendant argues that if the trial court found that the Reynolds and Lacey counts were of same or similar character under Rule 13.3(a)(1), the trial court erred in denying defendant’s right to severance under Rule 13.4(b). The trial court partially granted defendant’s motion by severing counts related to the Drury murder from counts involving Reynolds and Lacey. In its ruling the trial court found that “the offenses charged in the Reynolds and Lacey deaths are of the same or similar character and also that they are alleged to have been part of a common scheme or plan.” Under Rule 13.3(a)(3), if the trial court properly found the offenses were alleged to have been part of a common scheme or plan, defendant is not entitled to severance as of right. “Common scheme or plan” as used in Rule 13.3(a)(3), Arizona Rules of Criminal Procedure, and as referenced in Rule 404(b), Arizona Rules of Evidence, must be a “particular plan of which the charged crime is a part.” Ives, 187 Ariz. at 108, 927 P.2d at 768 (quoting State v. Ramirez Enriquez, 153 Ariz. 431, 432-33, 737 P.2d 407, 408-09 (App. 1987)). In Ives, this court held that “the inquiry should hereafter focus on whether the acts are part of an over-arching criminal plan, and not on whether the acts are merely similar.” Id. at 109, 927 P.2d at 769. The Ives definition of “common scheme or plan” was adopted for use in all cases in which convictions had not become final (on direct appeal or by expiration of time for direct appeal) as of the date the opinion was filed, November 7, 1996, and therefore applies to this case. See id. at 107, 927 P.2d at 767. Here, the trial court found the following similarities between the Reynolds and Lacey counts: (1) the murders occurred nine days apart, (2) both victims were killed by a .22 caliber weapon, (3) both victims were shot in the head, (4) both murders were motivated, at least in part, by a desire for money, evidenced by the armed robberies committed by defendant and Hunt, (5) both victims were employed in jobs requiring them to carry cash, (6) both victims conducted business by automobile and were called to the scene, (7) both victims’ vehicles were vandalized, (8) both victims’ bodies were found in the same geographical area, (9) similar shoeprints were found at both crime scenes, and (10) defendant admitted firing the gun in both murders. The trial court noted that the only substantial difference is that, unlike Lacey, Reynolds was stabbed in the chest in addition to being shot. The court’s findings justify joinder of the Reynolds and Lacey counts under Rule 13.3(a)(1) as offenses “of same or similar character” but do not justify joinder under Rule 13.3(a)(3) as offenses alleged to have been part of a “common scheme or plan.” Under Ives, to decide whether the Reynolds and Lacey counts were part of a common scheme and plan, we must determine whether they were part of an over-arching criminal plan. Id. at 109, 927 P.2d at 769. Defendant testified that he and Hunt learned about the pizza delivery scam from one of Hunt’s neighbors and that they planned it a half-hour before they placed their order. Defendant also confessed to planning with Hunt to rob a taxi driver, but no testimony or evidence suggests that the two robberies were part of a single plan. Accordingly, because the record does not establish that the Reynolds and Lacey counts were part of a common scheme or plan as defined in Ives, we conclude that the counts were not properly joined under Rule 13.3(a)(3) and that the trial court abused its discretion by denying defendant’s severance motion. b. No Reversal Where Evidence of Other Counts Would Be Admissible at Separate Trials The trial court’s error will not justify reversal if the evidence of other crimes would have been admissible at separate trials under Rule 404(b). Ives, 187 Ariz. at 106, 927 P.2d at 766. Admission of evidence of prior bad acts is controlled by four protective provisions: (1) the evidence must be admitted for a proper purpose under Rule 404(b); (2) the evidence must be relevant under Rule 402; (3) the trial court may exclude evidence if its probative value is substantially outweighed by the potential for unfair prejudice under Rule 403; and (4) the court must give an appropriate limiting instruction if requested under Rule 105. State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055, cert, denied, — U.S.-, 117 S.Ct. 1832, 137 L.Ed.2d 1038 (1997); State v. Gulbrandson, 184 Ariz. 46, 60, 906 P.2d 579, 593 (1995), cert, denied, — U.S.-, 116 S.Ct. 2558, 135 L.Ed.2d 1076 (1996); Atwood, 171 Ariz. at 638, 832 P.2d at 655. (1) Proper Purpose. Although evidence of other crimes is not admissible to prove the character of a person in order to show conforming action, it may be admissible for other purposes, such as proof of intent. Ariz.R.Evid. 404(b). Defendant claimed that he did not intend to kill either Reynolds or Lacey. He testified that while he was walking Reynolds away from Hunt, she tried to pull his gun away from him and then charged at him. Defendant testified that he shot Reynolds while she was running toward him. Similarly, defendant testified that he shot Lacey to protect himself when Lacey turned and tried to grab the gun. In addition, the state argued that defendant intended to kill both Reynolds and Lacey to prevent identification. Defendant’s intent was thus clearly contested, and determination of intent is a “proper purpose” for admission of other crimes under Rule 404(b). See Ives, 187 Ariz. at 109-10, 927 P.2d at 769-70. (2) Relevance. All relevant evidence is admissible unless otherwise excluded by statute or rule. Ariz.R.Evid. 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ariz. R.Evid. 401. Additionally, we recently held that to be admissible in a criminal case the commission of prior bad acts by defendant must be shown by clear and convincing evidence. State v. Terrazas, 189 Ariz. 580, 944 P.2d 1194 (1997). Here, the clear and convincing standard was easily satisfied. Defendant’s testimony that he and Hunt discussed killing Reynolds to prevent identification makes it more probable that defendant killed Lacey to prevent identification. Further, defendant claims that on two separate occasions he was forced to shoot his robbery victims because they attacked him. The unlikeliness of this happening twice tends to show that neither shooting was accidental. See State v. Hernandez, 7 Ariz.App. 200, 203, 437 P.2d 952, 955 (1968) (reasoning that one incident “may have been accidental would be a likely possibility, but that two such instances were coincidental is substantially less likely”). Thus, defendant’s statements describing the details of each of the murders are relevant to the other murder. (3) Rule 403 Weighing. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Ariz.R.Evid. 403. Evidence that defendant committed a second armed robbery and murder would likely be harmful to the defendant, but not all harmful evidence is unfairly prejudicial. See Mott, 187 Ariz. at 545-46, 931 P.2d at 1055-56. “Unfair prejudice results if the evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror.” Id. (citing State v. Sckurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993)). In this case, on several occasions, defendant confessed that he intentionally robbed and that he killed both victims, and his confessions were corroborated by physical evidence. Although both murders were violent, the record does not suggest that the jury’s decisions were improperly influenced by emotion or horror. Further, defendant’s argument that the trial court’s refusal to sever the counts prevented him from testifying about the Reynolds counts while remaining silent regarding the Lacey counts does not reach the level of specificity necessary to require severance. See Atwood, 171 Ariz. at 613, 832 P.2d at 630 (“He must show ‘that he has both important testimony to give on some counts and strong reasons for not testifying on others.’ ”) (quoting State v. Comer, 165 Ariz. 413, 419, 799 P.2d 333, 339 (1990)). In his severance motion, defendant acknowledged this requirement and indicated that this necessary showing would be made at the motion hearing. At the hearing, defense counsel submitted defendant’s affidavit stating he wanted to testify that he did not intend to murder Reynolds, that he kept the rifle to prevent Hunt from shooting her, that he disabled Reynolds’ ear to prevent her from following them, and that he walked her toward lights, attempting to lead her toward assistance. Defendant also stated he would testify that the rifle discharged when Reynolds “grabbed and jostled for control over the rifle.” This is clearly important testimony relevant to the Reynolds counts. In his affidavit, however, defendant did not provide convincing reasons for not testifying regarding the other counts. He stated: “Should I testify at a trial joined with the other offenses, I will be required to answer questions about the other murders for which I am charged. I have no testimony to offer on those crimes. Any answers to questions would be incriminating.” We note that most criminal defendants who have confessed to multiple crimes would have these same reasons for not testifying. “Where joinder of counts is proper, the fifth amendment is not violated by the fact that the defendant must elect to testify on all or none of the counts.” Comer, 165 Ariz. at 419, 799 P.2d at 339. Rule 403 thus would not require that relevant evidence regarding the Lacey counts be excluded in a trial on the Reynolds counts and vice versa. (4) Limiting Instruction. Instructions may prevent a jury’s guilt determination on one charge from influencing the jury’s guilt determination on another charge. Atwood, 171 Ariz. at 613, 832 P.2d at 630. “[A] defendant is not prejudiced if the jury is (1) instructed to consider each offense separately, and (2) is advised that each offense must be proven beyond a reasonable doubt.” Id. (citing Comer, 165 Ariz. at 419, 799 P.2d at 339). When evidence that is admissible for one purpose but not for another is admitted, upon request, the court shall instruct the jury to restrict the evidence to its proper scope. Ariz.R.Evid. 105. The trial court here instructed the jury that the state must prove each element of the charges beyond a reasonable doubt. The court also instructed the jury regarding the twelve verdict forms, each of which specified a charge and the victim to which it related. Further, defense counsel did not request a more specific jury instruction on the limited admissibility as necessary to preserve the alleged error for appeal. See State v. Roscoe, 184 Ariz. 484, 491, 910 P.2d 635, 642 (holding that trial court’s failure sua sponte to give limiting instruction was not fundamental error), cert, denied, — U.S. -, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996); State v. Taylor, 127 Ariz. 527, 529, 622 P.2d 474, 476 (1980). Accordingly, if the trial court had severed the Reynolds and Lacey counts, evidence of each would have been mutually admissible. The trial court’s error in finding a common scheme or plan as a basis for denying defendant’s severance motion was thus harmless and does not justify reversal. 2. Voluntariness of Defendant’s Statements Defendant claims that the trial court abused its discretion by ignoring his physical and mental condition at the time of the May 4, 1992 interrogation in Flagstaff. Defendant claims that at the 2:45 a.m. interview he was exhausted and disoriented because of the time of night, because police had disturbed his sleep by checking on him, and because he had not slept well while camping the previous two nights. He further claims that his will was overborne by the interrogating officers because he has attention deficit disorder and quickly succumbs to authority figures, a tendency he argues had been substantiated by psychological testing. To determine the voluntariness of a statement, the appropriate inquiry is whether, under the totality of the circumstances, the statement was the product of coercive police tactics. State v. Tucker, 157 Ariz. 433, 445-46, 759 P.2d 579, 591-92 (1988) (citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986)). “The trial court’s determination that a confession was voluntary will not be disturbed on appeal absent clear error.” Id. at 444, 759 P.2d at 590. The trial court conducted a suppression hearing and found that defendant had been advised of his Miranda rights on at least five separate occasions by different police officers, that he understood his rights on each of those occasions, and that he knowingly, intelligently, and voluntarily waived those rights. The trial court also found that his statements were knowingly and voluntarily made and were not given as a result of police misconduct. These findings are not only supported by testimony of police officers, but also by defendant’s testimony at trial that all statements he made to police officers were of his own free will, that he was advised of his Miranda rights, and that he told officers he understood his rights. The record does not suggest that police tactics were coercive. We find no clear error in the trial court’s denial of defendant’s motion to suppress his statements. 3. Appointment of Second Counsel Defendant argues that the trial court erred by denying his application for the appointment of a second attorney because of the numerous serious charges. In its denial, the trial court stated that defendant’s counsel “may make application for paralegal or law student assistance for research purposes.” Although we have recently adopted a rule requiring appointment of two attorneys in capital cases, it does not become effective until January 1, 1998. Ariz.R.Crim.P. 6.2 (amended June 25, 1997). Further, defendant has not identified specific examples of prejudice resulting either from ineffective or from an insufficient number of counsel. We conclude, therefore, that the trial court did not abuse its discretion in denying defendant’s request for a second attorney. 4. Proceedings Open to the Media Defendant argues that the trial court erred when it denied his motion to close pretrial and trial proceedings to the media. Defendant claims he was denied his right to a fair trial because of media publicity but provides no specific examples either of inherently prejudicial publicity or of actual prejudice. All court proceedings shall be open to the public, including the news media, “unless the court finds, upon application of the defendant, that an open proceeding presents a clear and present danger to the defendant’s right to a fair trial by an impartial jury.” Ariz.R.Crim.P. 9.3(b). “Clear and present danger means that the substantive evil must be extremely serious and the degree of imminence extremely high.” Phoenix Newspapers Inc. v. Jennings, 107 Ariz. 557, 560, 490 P.2d 563, 566 (1971); see also Atwood, 171 Ariz. at 633, 832 P.2d at 650. The trial court has broad discretion in permitting electronic and photographic coverage of public judicial proceedings. Ariz.R.Sup.Ct. 122. The trial court denied defendant’s motion for closure of electronic and photographic coverage of the proceedings, finding that “because of the passage of time in this case, publicity has been virtually wiped out.” Defendant has not provided any evidence of pervasive, inflammatory publicity that would be presumptively prejudicial. Defendant did not object to the jury panel based on media exposure. Defendant has not identified specific evidence that jurors formed preconceived notions about his guilt, nor has he shown any actual prejudice resulting from publicity. Defendant has not shown that an open proceeding presented a clear and present danger to his right to a fair trial by an impartial jury, and we conclude that the trial court did not err by denying his motion to close proceedings. 5. “Wussler-Type” Instruction for Lesser Included Offenses Defendant asks this court to reconsider the instruction approved in State v. Wussler requiring juries to agree that a defendant was not guilty of the greater charge before considering the lesser included charge. 139 Ariz. 428, 679 P.2d 74 (1984), overruled by State v. LeBlanc, 186 Ariz. 437, 924 P.2d 441 (1996). Recently, in LeBlanc, this court overruled Wussler: It now appears that requiring a jury to do no more than use reasonable efforts to reach a verdict on the charged offense is the better practice and more fully serves the interests of justice and the parties. Under this method, jurors may render a verdict on a lesser-included offense if, after full and careful consideration of the evidence, they are unable to reach agreement with respect to the charged crime. Thus, the jury may deliberate on a lesser offense if it either (1) finds the defendant not guilty on the greater charge, or (2) after reasonable efforts cannot agree whether to acquit or convict on that charge. 186 Ariz. at 438, 924 P.2d at 442. Our decision in LeBlanc, however, having been filed subsequent to the crimes charged here, does not apply to this case: Although today’s decision directs trial courts to abandon the Wussler rule in favor of a “reasonable efforts” instruction, we remain persuaded that the acquittal-first requirement does not violate the United States or Arizona Constitutions. Moreover, the giving of a Wussler-type instruction does not rise to the level of fundamental error. Finally, because the change we make today is procedural in nature, adopted for purposes of judicial administration, its application is prospective only. Id. at 439-40, 924 P.2d at 443-44 (citations omitted). Courts commenced using a “reasonable efforts” instruction no later than January 1,1997. Id. at 440, 924 P.2d at 444. Because this case was tried in 1994, we find that the trial court did not err by giving an “acquittal first” jury instruction regarding lesser-included offenses consistent with Wus-sler. 6. Refusal to Limit Cross-Examination of Defendant at Sentencing Hearing Defendant argues that the trial court erred by denying his motion to limit the state’s cross-examination of him “to certain specific background information” at the sentencing hearing. In order to avoid cross-examination related to the crimes, defendant did not testify in person at his sentencing for the Reynolds and Lacey convictions, but submitted instead a transcript of his deposition. He claims that denial of his motion to limit cross-examination prevented the court from considering all mitigating evidence and that the court could not consider his demeanor without live testimony. In addition, defendant argues that refusal to limit cross-examination abrogated his Fifth Amendment right to remain silent and to refuse to make self-incriminating statements. Rule 611(b), Arizona Rules of Evidence, provides that a witness may be cross-examined on any relevant matter. In addition, A.R.S. § 13-117(A) states: A defendant in a criminal action or proceeding shall not be compelled to be a witness against himself, but may be a witness in his own behalf. If he offers himself as a witness in his own behalf, he may be cross-examined to the same extent and subject to the same rules as any other witness. A criminal defendant’s right to testify on his own behalf “does not include the unqualified right to have brought out on cross-examination only those facts which are favorable to his case.” State v. King, 110 Ariz. 36, 39, 514 P.2d 1032,1035 (1973). Therefore, defendant had no right to place limits on how he would be cross-examined. Further, we find no evidence that defendant’s live testimony about a deprived childhood would have established greater weight for such deprivation as a mitigating circumstance. 7. Sufficient Evidence to Support Sexual Assault Conviction Defendant argues that the trial court erred when it denied his motion for judgment of acquittal on the count of sexual assault of Reynolds as Hunt’s accomplice. The court was required to enter the judgment of acquittal if no substantial evidence warranted conviction. Ariz.R.Crim.P. 20(a); State v. Hill, 174 Ariz. 313, 318, 848 P.2d 1375, 1380 (1993). “ ‘Substantial evidence’ is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of the defendant’s guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). When reasonable minds may differ on inferences drawn from the facts, the case must be submitted to the jury, and the trial judge has no discretion to enter a judgment of acquittal. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993). When the evidence supporting a verdict is challenged on appeal, an appellate court will not reweigh the evidence. The court must view the evidence in the light most favorable to sustaining the conviction, and all reasonable inferences will be resolved against a defendant. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). In order to prove defendant’s guilt as an accomplice, the state must prove that, with intent to promote or facilitate the commission of an offense, defendant either (1) solicited or commanded Hunt to commit the offense; (2) aided, counseled, or agreed to aid or attempted to aid Hunt in planning or committing the offense; or (3) provided means or opportunity for Hunt to commit the offense. See A.R.S. § 13-301. Circumstantial evidence without explicit statements of intent may be sufficient to support a conviction for sexual assault as an accomplice. See State v. Swoopes, 155 Ariz. 432, 434, 747 P.2d 593, 595 (App.1987). Defendant claims that he was removing Reynolds’ stereo from her car and vandalizing the car while Hunt sexually assaulted her. He states that he did not know that the assault occurred until Hunt told him later. He further argues that the circumstantial evidence of a shoeprint similar to his near a mattress is not sufficient to convict him as an accomplice. The state presented evidence that defendant provided means or opportunity by assisting in kidnapping Reynolds and forcing her to undress and by providing the gun and transportation. The state also presented evidence from which a jury could infer that defendant aided or agreed to aid Hunt in the sexual assault. Defendant forced Reynolds to undress at the pizza delivery site, dragged a mattress down a hill to where she and Hunt were standing, and did not release her when, as he testified at trial, he had many opportunities to do so. Evidence that Reynolds’ pantyhose were found on top of a smashed tail light indicates that defendant, by his own admissions as to the sequence of events, was present when Reynolds was forced to remove her shoes, socks, and pantyhose before Hunt took her into the desert and assaulted her. We find, therefore, that the state presented substantial evidence warranting conviction, and the trial court had no discretion to enter a judgment of acquittal contrary to the jury verdict. B. Sentencing Issues When a death sentence is imposed, this court determines independently whether the aggravating circumstances have been proven beyond a reasonable doubt, considers any mitigating circumstances, and then weighs the aggravating and mitigating circumstances, deciding whether the mitigating circumstances are sufficiently substantial to call for leniency. State v. Stokley, 182 Ariz. 505, 516, 898 P.2d 454, 465 (1995), cert, denied, — U.S. -, 116 S.Ct. 787, 133 L.Ed.2d 737 (1996) (citing State v. Brewer, 170 Ariz. 486, 500, 826 P.2d 783, 797 (1992)); A.R.S. § 13-703.01. 1. Aggravating Circumstances a. Finding That Defendant Had Been Convicted of Another Offense for Which a Sentence of Life Imprisonment or Death Could Be Imposed Defendant claims that the trial court erred by finding the A.R.S. § 13-703(F)(1) aggravating circumstance for the Reynolds murder based on the simultaneous conviction for the Lacey murder because he had not murdered Lacey at the time he murdered Reynolds. This court has previously rejected this argument and does so here. See State v. Gretzler, 135 Ariz. 42, 57 n. 2, 659 P.2d 1,16 n. 2 (1983). In Gretzler, this court explained: We have held that our death penalty statute is not a recidivist or enhancement statute, the purpose of which is to serve as a warning to convicted criminals and encourage their reformation. Rather, “[w]e have stated that the ‘purpose of an aggravation/mitigation hearing is to determine the character and propensities of the defendant----’ ” Convictions entered prior to a sentencing hearing may thus be considered regardless of the order in which the underlying crimes occurred or the order in which the convictions were entered. Id. (citations omitted); see also State v. Walden, 183 Ariz. 595, 615-16, 905 P.2d 974, 994-95 (1995) (holding that for purposes of A.R.S. § 13-703(F)(1), conviction occurs upon determination of guilt), cert, denied, — U.S.-, 116 S.Ct. 1444,134 L.Ed.2d 564 (1996); State v. Williams, 183 Ariz. 368, 382-83, 904 P.2d 437, 451-52 (1995) (“[V]alidity of the trial court’s (F)(2) finding is unaffected by the fact that the convictions were simultaneous or by the fact that the armed robbery occurred after the murder.”). The trial court thus properly found an (F)(1) aggravating circumstance for the Reynolds murder based on the Lacey murder conviction. b. Finding That Defendant Had Been Previously Convicted of a Felony Involving the Threat or Use of Violence Defendant claims that the trial court erred by finding the A.R.S. § 13-703(F)(2) aggravating circumstance based on convictions for offenses that occurred after the murders. The trial court based its (F)(2) finding on defendant’s Coconino County convictions for aggravated robbery and aggravated assault, crimes that defendant committed after the murders, but for which he was convicted before the murder convictions. This court’s holding in Gretzler applies to prior convictions as well as simultaneous convictions. 135 Ariz. at 57 n. 2, 659 P.2d at 16 n. 2. A sentencing court may consider any convictions entered previously without regard to the order of the underlying crimes. Id.; see also Walden, 183 Ariz. at 615-16, 905 P.2d at 994-95; Williams, 183 Ariz. at 382-83, 904 P.2d at 451-52. Section 13-703(F)(2) requires the sentencing court to consider as an aggravating circumstance that “defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person.” To satisfy (F)(2), the pri- or conviction must be a felony that by its statutory definition involves violence or the threat of violence on another person. State v. McKinney, 185 Ariz. 567, 581, 917 P.2d 1214, 1228, cert, denied, — U.S.-, 117 S.Ct. 310, 136 L.Ed.2d 226 (1996); State v. Romanosky, 162 Ariz. 217, 228, 782 P.2d 693, 704 (1989); State v. Gillies, 135 Ariz. 500, 511, 662 P.2d 1007,1018 (1983). In 1992 defendant was convicted of aggravated robbery, a class 3 felony, in violation of A.R.S. §§ 13-1902 and -1903, and aggravated assault, a class 3 dangerous felony, in violation of A.R.S. §§ 13-1203(A)(2) and - 1204(A)(2). Robbery, as defined in section 13-1902, involves threat or use of force. Section 13-1203(A)(2) defines assault as “[i]ntentionally placing another person in reasonable apprehension of imminent physical injury,” and section 13-1204(A)(2) requires use of a deadly weapon or dangerous instrument. Therefore, the statutory definitions of both convictions necessarily involve violence or the threat of violence. Accordingly, the trial court properly found an (F)(2) aggravating circumstance for both the Reynolds and Lacey murders based on the Coconino County convictions for aggravated robbery and aggravated assault. c. Finding That the Lacey Murder Was Committed in a Depraved Manner Defendant argues that the trial court erred by finding the A.R.S. § 13-703(F)(6) aggravating circumstance of depraved manner of killing, based solely on a finding of senselessness. The special verdict stated: [T]he court does find that the murder of David Lacey was depraved in that it was senseless. One shot would have disabled the victim if one puts any credence into defendant’s story. But the fact that there were four shots, one of which was a “hard contact” wound and that the robbery could have been accomplished without killing Mr. Lacey shows a total lack of regard for human life. This is especially so when it came within nine days of the murder of Linda Reynolds. (Emphasis supplied.) This court has defined depraved as “marked by debasement, corruption, perversion or deterioration.” State v. Mata, 185 Ariz. 319, 324, 916 P.2d 1035, 1040, cert, denied, — U.S. -, 117 S.Ct. 20, 135 L.Ed.2d 1114 (1996). In addition, we have identified specific factors that may lead to a finding of depravity: apparent relishing of the murder by the killer, infliction of gratuitous violence on the victim, needless mutilation of the victim, senselessness of the crime, and helplessness of the victim. Gretzler, 135 Ariz. at 51-52, 659 P.2d at 10-11. We will reverse an (F)(6) finding where no specific factors, such as those identified, separate the crime from the norm of first degree murders. Either or both senselessness and helplessness, considered together with other circumstances present in a particular case, may lead to the conclusion that an offense was heinous or depraved. In isolation, however, a finding of senselessness or helplessness need not always lead to a holding that the crime is depraved. Id. at 52-53, 659 P.2d at 11-12. In fact, senselessness and helplessness ordinarily are not sufficient to prove heinousness or depravity. State v. Miles, 186 Ariz. 10,18, 918 P.2d 1028,1036 (1996). The state argues that the Gretzler requirement of other circumstances in addition to senselessness is satisfied because the special verdict implied a finding of gratuitous violence by mentioning four shots. The trial court referred to four shots in the context of senselessness and did not explicitly identify gratuitous violence as an additional circumstance. The record does not establish the amount of time between the gunshots or the order in which they were fired, and therefore the facts do not clearly establish violence beyond that necessary to kill. See, e.g., State v. Lacy, 187 Ariz. 340, 354, 929 P.2d 1288, 1302 (1996) (when medical testimony did not establish which of three shots was fatal, court could not determine if injuries were inflicted beyond those necessary to cause death). In order to decide whether a senseless murder is especially depraved, however, a trial judge must consider more than the categories provided by Gretzler. “[J]ustice cannot be reduced to a theorem.” Mata, 185 Ariz. at 326, 916 P.2d at 1041. In order to determine whether a defendant’s actions demonstrate a vile state of mind at the time of the murder, a trial judge must examine “the factual differences between Tison, Ortiz, and Clark [cases finding heinousness and depravity] on the one hand, and Lujan and Blazak [cases where heinousness and depravity finding was reversed] on the other.” Id. at 326-27, 916 P.2d at 1041-42. Tison, Ortiz, and Clark provide three examples of heinousness and depravity. In State v. Tison, this court stated: The senselessness of the murders, given the inability of the victims to thwart the escape, especially in such an isolated area, and the fact that a young child, less than two years old, who posed no threat to the captors, was indiscriminately shot while in the arms of his mother, compels the conclusion that the actual slayers possessed a shockingly evil state of mind. Less violent alter-natives which would have served their purposes in preventing their detection by the authorities were obviously available. But they chose to slaughter an entire family and [their niece]. 129 Ariz. 526, 543, 633 P.2d 335, 352 (1981). In State v. Ortiz, the defendant inflicted multiple stab wounds in the victim’s neck and chest areas and left the victim lying on the floor in the living room where he stabbed the victim’s two young daughters. He then poured gasoline on the victim and around the exits, placed a delayed ignition device at the foot of the victim’s baby’s bed, and ignited the gasoline, leaving the victim and her three children in the burning home. 131 Ariz. 195, 210, 639 P.2d 1020,1035 (1981). In State v. Clark, the defendant killed a seventeen-year-old friend, a sleeping coworker, and a husband and wife who had provided him with work and a home for a year. The defendant kept a spent bullet as a souvenir of his crime and later commented, “You should have seen Charley when I hit him with those cutters.” 126 Ariz. 428, 437, 616 P.2d 888, 897 (1980). This court found that the evidence demonstrated that the defendant was “totally without regard for human life” and fully supported finding that the murders had been committed in an especially depraved manner. Id. This court identified Lujan and Blazak as examples of cases where the finding of heinousness and depravity was not supported by the factual evidence. Mata, 185 Ariz. at 326, 916 P.2d at 1042. In State v. Lujan, we found that the following factors existed but did not indicate that the killing was accomplished in an especially heinous or depraved manner: “the helplessness of the victim; the lack of necessity for the killing to accomplish the defendant’s plan to steal; and the magnitude of the wound inflicted demonstrating a clear intent to kill.” 124 Ariz. 365, 373, 604 P.2d 629, 637 (1979). Lujan had stabbed the victim once in the abdomen after he had been hit, had fallen down, and was lying still. Id. at 368, 604 P.2d at 632. In State v. Blazak, this court reversed the trial court’s finding of heinousness and depravity where the defendant fatally shot a bartender and a nearby patron and wounded a third person during an attempted robbery. 131 Ariz. 598, 600, 604, 643 P.2d 694, 696, 700 (1982). Blazak shot the bartender four times. State v. Blazak, 114 Ariz. 199, 200, 560 P.2d 54, 55 (1977) (denial of post-conviction relief affirmed by Blazak, 131 Ariz. at 605, 643 P.2d at 701). A quick succession of gunshots during a robbery does not present the unique or limited circumstances in which senselessness and helplessness will establish heinousness or depravity. State v. Soto-Fong, 187 Ariz. 186, 207, 928 P.2d 610, 631 (1996), cert, denied, — U.S. -, 117 S.Ct. 1826, 137 L.Ed.2d 1033 (1997). In this case, defendant fired nine shots, hitting Lacey four times, during a robbery. These circumstances are more like those of Lujan and Blazak than those of Tison, Ortiz, and Clark. We find no special circumstances in addition to the finding of senselessness that would justify concluding the manner of Lacey’s murder was especially depraved. We therefore reverse the trial court’s finding of the aggravating circumstance of depravity under A.R.S. § 13-703(F)(6) for the Lacey murder. 2. Mitigating Circumstances The trial court must consider all evidence offered in mitigation but is not bound to accept all such evidence as mitigating. State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 (1994). In its consideration, the trial court must make two determinations: (1) whether defendant proved the circumstance by a preponderance of the evidence and, if so, (2) whether this circumstance in some way is mitigating. If it is, “the court should consider each mitigating circumstance individually and all mitigating circumstances cumulatively when weighing the mitigating and aggravating factors.” Id. (Emphasis supplied.) Here, the trial court found five mitigating factors in each of the murders: age, lack of any significant prior criminal history, deprived childhood, cooperation with law enforcement officials and assistance in recovery of weapons, and remorse. In addition, defendant argues that the trial court should have considered the fact that he was a follower and that he was kind, caring, and steadily employed until he became involved with Hunt. Defendant claims that he “became involved with people and situations that he did not have the ability to control____ He got caught up in an aberrant lifestyle and could not disentangle himself.” He further asks this court to give greater weight to his deprived childhood, when he was shuttled between “his emotionally absent family and kind neighbors.” This court finds that the trial court properly rejected defendant’s claim that he was merely a follower when he was armed with his own weapons in both murders, initiated both robberies by making the phone calls, pulled the trigger in both murders, and stabbed Reynolds. Further, defendant has failed to establish a nexus between his deprived childhood and his crimes. Upon independent review of all mitigation evidence offered by defendant, this court finds no mitigating circumstances beyond those found by the trial court. 3. Summary of Findings on Aggravation and Mitigation We have independently weighed the aggravating and mitigating circumstances related to each death sentence imposed on the defendant. See Stokley, 182 Ariz. at 516, 898 P.2d at 465. For the murder of Linda Reynolds, we find that the state proved beyond a reasonable doubt the aggravating circumstances of previous death eligible conviction, previous violent felony, pecuniary gain, and that the murder was committed in an especially cruel, heinous, and depraved manner. For the murder of David Lacey, we find that the state proved beyond a reasonable doubt the aggravating circumstances of previous death eligible conviction, previous violent felony, and pecuniary gain. For each of the murders, we find that (1) defendant has proved by a preponderance of the evidence the mitigating circumstances of defendant’s age, lack of significant prior criminal history, deprived childhood, cooperation with law enforcement officials and assistance in recovery of weapons, and remorse; and (2) the mitigating circumstances are not sufficiently substantial, taken either separately or cumulatively, to call for leniency. C. Miscellaneous Issues Defendant raises the following arguments to preserve his right to further review at a future time. The court has rejected them previously and rejects them here. 1. The sentencing court erred when it considered victim impact evidence in sentencing. See State v. Spears, 184 Ariz. 277, 292, 908 P.2d 1062, 1077, cert, denied, — U.S. -, 117 S.Ct. 393, 136 L.Ed.2d 308 (1996). 2. Under the doctrine of equal protection, defendant had the right to a jury trial at his sentencing hearing. See id. at 291, 908 P.2d at 1076. 3. Death by lethal gas constitutes cruel and unusual punishment. See id. 4. Arizona’s statutory scheme for imposition of the death penalty is unconstitutional. See Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). DISPOSITION Upon full review, we affirm defendant’s convictions and sentences. ZLAKET, C.J., and FELDMAN, MOELLER and MARTONE, JJ., concur. . Defendant was tried and convicted separately for the murder and robbery of Harold Drury. See Lee II, 189 Ariz. at 608, 944 P.2d at 1222. . In oral argument defense counsel expanded his motion to exclude all newspaper coverage. . Defendant did testify, however, at trial. . In addition to the aggravating circumstances challenged by defendant, the trial court found that the murder of Linda Reynolds was especially cruel, heinous, and depraved under A.R.S. § 13-703(F)(6) and that the murders of both Reynolds and David Lacey were committed for pecuniary gain under A.R.S. § 13-703(F)(5). Although defendant does not challenge these findings on appeal, the court has nevertheless reviewed the evidence on these as well as on the aggravating circumstances that defendant does challenge. We have included the (F)(5) and (F)(6) factors in our independent reweighing of all aggravating and mitigating circumstances to determine the propriety of the death sentences imposed by the trial court. . Although the statute has been amended, this is the wording that was in effect when Lee committed these murders.

OPINION EHRLICH, Judge. The state appeals from the trial court’s order granting the motion of Daniel Hack-man (“defendant”) to suppress the testimony of Calvin Graeb. The court found that a violation of the defendant’s Sixth Amendment right to counsel necessitated its action. We conclude that the independent-source doctrine is applicable to certain information procured by the prosecution. Accordingly and for the reasons which follow, we affirm in part and reverse in part the judgment of the court. FACTS AND PROCEDURAL HISTORY A woman reported that she had been sexually assaulted by her former boyfriend, the defendant. The defendant was arrested and taken to the Show Low Police Department, from where he was booked into the Navajo County Jail and his personal possessions secured in a property bag. After being advised of his rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant signed a waiver and participated in a videotaped interview with Detective Kim Brewer. In his interview, the defendant admitted the conduct reported by the victim but insisted that she had telephoned him at his friend’s house in Phoenix and invited him to her home to engage in the various acts of which she later complained. The defendant also told Detective Brewer that his friend, Calvin Graeb, could confirm the victim’s telephone call to the defendant because he had overheard the defendant on the telephone making such statements as “Oh, you want me to come up.” The defendant added that Graeb resided in the Phoenix area and that Graeb’s telephone number was located in his property held at the jail. The defendant was indicted and the public defender appointed to represent him. Before trial, the state’s investigator, Jim Currier, was assigned to obtain Graeb’s telephone number from the defendant’s jail property and to contact Graeb to determine if he had any information regarding the defendant’s activities on the night in question, the alleged telephone conversation between the defendant and the victim, and the defendant’s relationship with the victim. Currier reviewed the state’s file, including the defendant’s videotaped interview. He then drafted a warrant, later signed by a magistrate, to search the defendant’s property bag at the jail for Graeb’s telephone number. Specifically requested was a search to find any documents regarding a telephone number in the metropolitan Phoenix area for Calvin Graeb. Currier personally served the warrant on the defendant, who still was in custody. He did not notify defense counsel. At the time of service, Currier asked the defendant the location of Graeb’s telephone number and he also elicited additional statements from the defendant. Currier told the defendant that, if Graeb was contacted, Graeb’s testimony would assist the defendant in his case. The defendant told Currier that Graeb’s number was in his checkbook in his property bag. From this bag, Currier retrieved the defendant’s checkbook; Graeb’s telephone number was written on a slip of paper located inside. Subsequently, based upon a violation of his Sixth Amendment right to counsel, the defendant moved to suppress any information obtained by the state as a result of Currier’s contact with him. The trial court granted the motion and ordered all of the defendant’s statements to Currier and information obtained therefrom suppressed, including Graeb’s telephone number. However, the court also ruled that Graeb’s name and other information regarding Graeb previously obtained by Detective Brewer need not be suppressed. Reconsideration of the order was denied. The state’s motion to dismiss the case without prejudice was granted and the state appealed. Ariz.Rev.Stat.Ann. § 13-4032. DISCUSSION The state argues that the trial court erred when it barred Graeb as a witness because, although there was a violation of the defendant’s right to counsel, there was an independent source for the information and the discovery of his telephone number was inevitable. Given the violation of the defendant’s constitutional right, we determine whether the information need be suppressed in accord with the exclusionary rule. A Violation of Constitutional Right to Counsel Currier testified that he was directed to obtain the telephone number of Graeb, a potential witness. Despite the fact that the execution of the warrant could be made by serving the jailer rather than the defendant personally, Currier opted to make personal service of the warrant on the defendant. He said that personal service was a “practice” he tried “to advocate” because, “[Ijdeally, if [he] was going to search someone’s personal property and if they were available, [he] would like to let them know that is what [he was] doing, that is why [he was] doing it.” Currier informed the defendant that he had a search warrant for his personal property and asked the defendant if he would assist him in locating Graeb’s telephone number. The defendant told Currier that the telephone number could be found in his checkbook in his property bag. According to Currier, the defendant spontaneously added that telephoning Graeb would do Currier no good because Graeb was out of the country. Currier replied “fine” but told the defendant that the telephone number would assist him in locating Graeb and that Graeb could assist the defendant in defending his case. Currier admitted that, when he spoke with the defendant, he knew that the defendant had counsel and that the public defender’s office had its own investigator. Currier further conceded that the defendant appeared somewhat upset, even irate, during their talk and added that he ended the exchange because he did not want to become involved in a conversation about the case. He then obtained the defendant’s property bag, took the checkbook out of it and removed a piece of paper with telephone numbers, including that of Graeb, written on it. ... The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a “medium” between him and the State. As noted above, this guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right____ [T]he Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent. Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985) (footnote omitted), relying upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). The state, as it recognizes, violated the defendant’s Sixth Amendment right when Currier questioned the defendant without his attorney being advised and either present or agreeable to contact with the defendant without counsel. Currier’s service of the search warrant on the defendant and resulting conversation without defense counsel’s knowledge and acquiescence cannot be pardoned. The reason given by the state as to why Currier spoke with the defendant without first contacting his attorney was that Currier wanted to be “upfront with everyone.” Given the clear mandate from the Supreme Court condemning contact with a defendant without the cognizance of his attorney because of the obvious potential prejudice to the defendant’s exercise of his constitutional rights, this rationale is completely unsatisfactory. The trial court properly excluded all statements made by the defendant to Currier. When a state agent like Currier chooses to violate a defendant’s Sixth Amendment rights in order to gather additional information, he “must be prepared to live with the consequences of that decision.” United States v. Kimball, 884 F.2d 1274,1280 (9th Cir.1989). B. Independent-source Doctrine We now review the trial court’s decision regarding how much of the knowledge obtained by the state must be suppressed. The defendant argues that all of the information gained from the statements elicited by Currier must be stricken as the “fruits of the poisonous tree” under the exclusionary rule. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963). The exclusionary rule requires the suppression at trial of evidence gained directly or indirectly as a result of a government violation of the Fourth, Fifth or Sixth Amendments. Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988). “[T]he appropriate remedy for a violation of Massiah includes not only suppression of all evidence directly obtained through governmental misconduct, but also suppression of all evidence that can properly be designated fruits of that conduct.” Kimball, 884 F.2d at 1278-79; see also State v. Bravo, 158 Ariz. 364, 374-76, 762 P.2d 1318, 1328-30 (1988), cert, denied, 490 U.S. 1039, 109 S.Ct. 1942, 104 L.Ed.2d 413 (1989). However, concurrently with the exclusionary rule there developed what has become known as “the independent-source doctrine.” It was first enunciated in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392,40 S.Ct. 182,183, 64 L.Ed. 319 (1920): The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others,____ See Segura v. United States, 468 U.S. 796, 814, 104 S.Ct. 3380, 3390, 82 L.Ed.2d 599 (1984); Nardone v. United States, 308 U.S. 338, 340-41, 60 S.Ct. 266, 267-68, 84 L.Ed. 307 (1939); see also cases cited 84 Georgetown L.J. 4 (April 1996), p. 882, n. 690. The question thus becomes whether, notwithstanding the illegality of Currier’s contact with the defendant, Graeb’s telephone number would have been obtained not through an “exploitation of that illegality,” Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417-18, but, rather, from an independent source, thereby rendering it legitimately acquired. The trial court’s determination of what constitutes the “fruit” of the state’s “poisonous tree” is a mixed question of fact and law implicating constitutional questions. As such, its order to suppress evidence is reviewed de novo. Ornelas v. United States, 517 U.S. 690,-, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996). While we view the evidence and draw all reasonable inferences in favor of upholding the court’s factual findings, we are not bound by its legal conclusions. E.g., State v. Fodor, 179 Ariz. 442, 448, 880 P.2d 662, 668 (App.1994). ‘(T)he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position tha[n] they would have been in if no police error or misconduct occurred____ When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.’ Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2508-09, 81 L.Ed.2d 377 (1984). [Emphasis and ellipsis original.] Murray, 487 U.S. at 537, 108 S.Ct. at 2533. In this case, the state knew from Detective Brewer’s interview of the defendant that Graeb’s telephone number could be found in the defendant’s property bag at the jail. This interview was the basis for the warrant authorizing the search of the bag. Thus, the warrant is itself proof of the independent source of the state’s knowledge, untainted by the (forthcoming) Massiah violation, that Graeb’s telephone number was in the defendant’s property. To then not apply the independent-source doctrine and, instead, invoke the exclusionary rule puts the state in a worse position than if no violation had, occurred. See Murray, 487 U.S. at 541, 108 S.Ct. at 2535. The United States and Arizona Supreme Courts each have held in the context of a violation of the Fourth Amendment that “evidence obtained through search under a valid warrant obtained on the basis of information from sources independent of the prior illegal entry is not the ‘fruit of the poison [sic] tree’ and need not be suppressed under the federal exclusionary rule as applied to the states. Segura v. United States, supra.” Bolt, 142 Ariz. at 265, 689 P.2d at 524. No evidence was presented by the defendant to contradict the state’s contention that Currier drafted the search warrant based upon the interview between Detective Brewer and the defendant and that Currier already knew that Graeb’s telephone number was in the defendant’s property bag at the jail before he questioned him. The comments made by the defendant with regard to the location of Graeb’s telephone number did not provide the state with any evidence that would not have been obtained during a search of the bag for the number. The cause of the Massiah violation was Currier’s independent, illegal contact with the defendant in violation of the defendant’s Sixth Amendment right. Thus, the only proper exclusion as a result of the Massiah violation is the defendant’s statements made to Currier. The trial court’s suppression of Graeb’s telephone number and of his identity as a witness is reversed. The exclusionary rule is inapplicable because the warrant existed as an independent source of information from which the state knew the location of Graeb’s telephone number in the defendant’s property- C. Inevitable-discovery Doctrine The trial court based its decision, in part, on the state’s failure to establish that Graeb’s telephone number would have been inevitably discovered by other means. The state argues on appeal that the inevitable-discov ery doctrine is irrelevant to the independent-source doctrine, citing Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599. See Murray, 487 U.S. at 535, 108 S.Ct. at 2532. However, the inevitable-discovery doctrine not only depends on the validity of the independent-source doctrine, it is derived from it. Id. at 539, 108 S.Ct. at 2534. Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered. Id. (emphasis original). Nonetheless, given that the state demonstrated that the information from Graeb was obtained legally independently of Currier’s violation of the defendant’s Sixth Amendment right, we need not discuss the court’s rejection of the state’s inevitable-discovery hypothetical. CONCLUSION We affirm the trial court’s grant of the defendant’s motion to suppress all statements made by the defendant to Currier in violation of the defendant’s Sixth Amendment right to counsel. However, we reverse the court’s order suppressing Graeb’s telephone number and existence as a witness pursuant to the independent-source doctrine. We remand this case for further proceedings consistent with this decision. GERBER, J., concurs. . The defendant also challenged the validity of the warrant but that allegation subsequently was withdrawn. . The exclusionary rule applies to the states through the due process clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S.Ct. 1684, 1691-92, 6 L.Ed.2d 1081 (1961), State v. Bolt, 142 Ariz. 260, 266, 689 P.2d 519, 525 (1984), and to the Sixth Amendment by Massiah, 377 U.S. at 206, 84 S.Ct. at 1203. . ”[T]he exclusionary rule to be applied as a matter of state law is no broader than the federal rule. The independent source doctrine may be applied under the Arizona constitutional provision, and exclusion of evidence obtained under a legal warrant need not be required because of the prior state constitutional violation.” Bolt, 142 Ariz. at 269, 689 P.2d at 528. . Indeed, Currier did not even need a warrant to search the defendant’s property bag. State v. Bible, 175 Ariz. 549, 599, 858 P.2d 1152, 1202 (1993), cert, denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994) (once defendant's property is legally in possession of law-enforcement agents, agents need no warrant to search property; "this type of a warrantless seizure does not violate a defendant’s Fourth Amendment rights.”). . The defendant argues that Currier did not conduct the search pursuant to the warrant since he failed to inventory the contents of the bag and he was not able to testify to anything else in the bag. The fact that Currier searched only the defendant’s checkbook and not his entire bag, the defendant contends, is sufficient evidence that Currier relied solely on the defendant’s statements to him rather than on the warrant to obtain Graeb’s telephone number. The simple response is that Currier was neither obliged to inventory the contents of the bag nor was he compelled by the warrant to search for more than that for which he was looking.

OPINION ZLAKET, Chief Justice. On December 9, 1987, a jury convicted Graham Saunders Henry of first degree murder, kidnapping, theft, and robbery. The trial court sentenced him to death on the murder conviction and to terms of imprisonment for his other crimes. On direct appeal, we affirmed the non-capital convictions and sentences. With respect to the death sentence, however, we struck one aggravating factor and remanded for resentencing. State v. Henry, 176 Ariz. 569, 863 P.2d 861 (1993). The trial judge thereafter conducted a new sentencing hearing and reimposed the death penalty. This automatic appeal followed. We have jurisdiction pursuant to Ariz. Const, art. VI, § 5(3); A.R.S. § 13-4031; and Rule 31.2(b), Ariz.R.Crim.P. I. Facts and Procedural History The facts underlying defendant’s convictions are recited in our earlier opinion. See Henry, 176 Ariz. at 573-75, 863 P.2d at 865-67. The focus here is limited to events that have transpired since that decision. On September 13, 1994, a hearing was held on a defense motion to change the sentencing judge, who had also presided over defendant’s trial. The motion was ultimately denied. At the same proceeding, the hearing judge additionally rejected defendant’s request to remove his attorney, Peter Rosales, and appoint new counsel. Rosales subsequently left the public defender’s office and was replaced by Gerald Gavin. After approximately five months, Gavin filed a motion to withdraw. The judge denied it, noting that defendant had already fired or forced to withdraw numerous qualified lawyers. The resentencing hearing occurred two days later. Before any evidence was offered, defendant made a conditional motion to proceed in propria persona. When the court refused to accept his conditions, defendant expressly withdrew his request for self-representation. The hearing proceeded, and the judge resentenced him to death. II. Hearing on Motion to Change Judge For Cause A. Right to Testify At the hearing conducted pursuant to Rule 10.1, Ariz.R.Crim.P., attorney Rosales put the trial judge on the stand as his only witness. Thereafter, the court asked the lawyer whether he wished to offer any further evidence, and the following exchange ensued: Mr. Rosales: No, Your Honor. Mr. Henry: Yes, he does. I wish to testify, Your Honor. Don’t I have a legal right to testify? The Court: Mr. Rosales, do you wish to call him?. Mr. Rosales: No, Your Honor. The court then called a recess, reconvening only for closing arguments. Defendant asserts that the hearing judge violated his constitutional right to testify and that what he had to say was “necessary to the court fully understanding the factual basis for the motion to recuse.” He claims that, given the opportunity, he could have testified to the trial judge’s “refusal — as well as his voice tone, facial expressions and general demeanor at that time and throughout the proceedings in this case — to view photographs.” The photos supposedly would have shown the absence of defendant’s footprints crossing a roadway at the crime scene, thereby undermining the state’s claim that he was a major participant in the offense, see Tison v. Arizona, 481 U.S. 137,158,107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987), and supporting his charge of ineffective assistance of counsel. The defense has failed to provide any support in the record for its underlying claims. No specific evidence of the alleged judicial misconduct is referenced in the transcript, nor has our independent review disclosed any. The photographs have not been identified either by exhibit number or in any other appropriate manner, nor are they attached to the briefs. We possess nothing more than appellate counsel’s exceedingly general description of what the defendant “could” have said if permitted to testify. Under such circumstances, we must conclude that the trial court’s actions either did not occur as described or were justified. See State v. Lavers, 168 Ariz. 876, 399, 814 P.2d 333, 356 (1991). A trial judge is presumed to be free from bias. State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984), overruled on other grounds by State v. Noble, 152 Ariz. 284, 731 P.2d 1228 (1987). “[Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994); see also Perkins, 141 Ariz. at 286, 686 P.2d at 1256. The trial court’s refusal to examine photographs, if true, would not alone demonstrate such profound antagonism. See State v. Curry, 187 Ariz. 623, 631, 931 P.2d 1133, 1141 (App.l996)(disagreements over rulings insufficient to support recusal). Additionally, defendant’s subjective observations of the judge’s tone of voice and expressions would add little, if anything, to his claim. See Liteky, 510 U.S. at 555, 114 S.Ct. at 1157 (“Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women ... sometimes display.”). Thus, even assuming defendant’s unsubstantiated claims are accurate and that he had a right to testify at this judicial disqualification proceeding, we find no prejudice. See Harrington v. California, 395 U.S. 250, 251-54, 89 S.Ct. 1726, 1727-28, 23 L.Ed.2d 284 (1969) (confrontation clause violation held harmless error); State v. Canaday, 117 Ariz. 572, 574-75, 574 P.2d 60, 62-63 (App.1977) (applying harmless error analysis to 6th Amendment claim). B. Right to Counsel and Self-Representation Defendant filed a motion to substitute a new lawyer for Rosales, which was heard on the same day as the foregoing request to remove the trial judge. Following argument, the court denied it, finding that defendant was merely intent on usurping counsel’s role as strategist for the defense. The judge then advised defendant that he had to choose between keeping his attorney and representing himself, but defendant refused to respond unless the court divulged whether it would grant him additional time to prepare. The judge declined to indicate in advance how he would treat this request and proceeded with the removal hearing as though defendant had not waived his right to a lawyer. 1. Denial of New Counsel Motion Defendant first argues that the judge should have granted his motion to substitute counsel because he was involved in an irreconcilable conflict with his attorney. Were it not for that conflict, defendant asserts, he would have called additional witnesses and introduced further evidence to show that he was not death eligible and to bolster the proffered mitigation. Although defendant identifies several of the witnesses, he fails to provide us with the substance of their testimony. Accuseds have a Sixth Amendment right to representation by competent counsel. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152,1194 (1993); Ariz. Const, art. II, § 24. Those afforded representation, however, are entitled neither to attorneys of their own choosing, State v. DeLuna, 110 Ariz. 497, 500, 520 P.2d 1121,1124 (1974), nor to a meaningful relationship with them. Bible, 175 Ariz. at 591, 858 P.2d at 1194. When ruling on a motion to substitute counsel, courts should keep in mind “the rights and interest of the defendant ... tempered by exigencies of judicial economy.” State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987). A proper analysis includes consideration of the following: Whether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and quality of counsel. Id. at 486-87, 733 P.2d at 1069-70. Unlike other factors, the presence of a genuine irreconcilable conflict requires the appoint ment of new counsel. Bible, 175 Ariz. at 591, 858 P.2d at 1194. According to defendant, Rosales rarely communicated with him prior to the removal hearing, failed to adequately prepare, and had been improperly influenced by one of his former attorneys. This, he asserts, created an irreconcilable conflict. We find that the argument lacks support in the record. There is ample evidence that the “conflict” in question amounted to nothing more than a disagreement over appropriate defense strategies. Although tactical decisions may raise concerns about attorney competence, such matters are more properly analyzed in post-conviction relief proceedings. See State v. Mata, 185 Ariz. 319, 335, 916 P.2d 1035, 1051 (1996); Ariz.R.Crim.P. 32. Furthermore, this was not the first time defendant had expressed dissatisfaction with his lawyers. His proclivity to change counsel lends strong support to the judge’s decision. See LaGrand, 152 Ariz. at 486, 733 P.2d at 1069. Before trial, the court granted two defense motions to substitute counsel, one motion for self-representation, and another to withdraw the waiver of defendant’s right to an attorney. Between the time of his conviction and the motion in question, defendant moved either for new counsel or self-representation five more times. When a defendant has repeatedly claimed “irreconcilable conflict” with a series of attorneys, the court may deny a motion for yet another lawyer where the orderly administration of justice so requires. See State v. Lee, 142 Ariz. 210, 220, 689 P.2d 153, 163 (1984). Under the circumstances of this case, we cannot say that the court abused its discretion. 2. Denial of Right to Self-Representation Defendant next argues that the hearing judge erroneously denied his motion to continue, thereby precluding him from meaningfully exercising his right to self-representation at the removal proceeding. The transcript reflects that defendant was first permitted to fully articulate his complaints regarding Rosales. Thereafter, a lengthy colloquy ensued, during which the court repeatedly gave defendant the opportunity to choose between representation by counsel and self-representation. Defendant continued to argue his position, but refused to make a choice. The discussion ended in the following fashion: The Court: Mr. Henry, maybe I missed this, but did you choose or did you not choose? Mr. Henry: I am objecting to being forced to choose. The Court: I have heard your objection now for about five times. I have overruled your objection. It is well documented on the record. Now you need to choose. Mr. Henry: Will Your Honor give me a reasonable continuance to try to work with Mr. Rosales and Mr. Freeman in some capacity to get the witnesses and the documents and records that I feel I need for a defense if I agree to relinquish my right to counsel? The Court: Mr. Rosales, if you are counsel on this case, are you ready to proceed today? Mr. Rosales: I am ready to proceed today, Your Honor. The Court: Okay. The answer is no. Mr. Henry: Which means if I take over my own defense, you still won’t give me a continuance? The Court: That’s not what I said. You need to choose. Mr. Henry: Well, I object, Your Honor, because I am at least entitled to know whether you’ll give me adequate time to prepare my own defense in some fashion. The Court: All right. Thank you, Mr. Henry. At this point I am going to assume that you’re ready to proceed with Mr. Rosales as your counsel. Mr. Henry: No I am not, Your Honor. I don’t believe I have had a full and— opportunity to litigate the issue about his impropriety as counsel. The Court: Thank you. Your objections are noted for the record. We are then going to take up the Motion For Change of Judge. A defendant has a constitutionally protected right to proceed without counsel. Faretta, 422 U.S. 806, 95 S.Ct. 2525. In order to successfully invoke this right, however, the accused must make an unequivocal request to represent himself. State v. Rickman, 148 Ariz. 499, 503, 715 P.2d 752, 756 (1986). If timely, the request ordinarily should be granted, see State v. De Nistor, 143 Ariz. 407, 412, 694 P.2d 237, 242 (1985), provided it is made knowingly, intelligently, and voluntarily. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981). The “unequivocal request” requirement serves two purposes. First, it acts as a safety net, ensuring that a defendant does not inadvertently waive counsel while thinking aloud about the benefits and pitfalls of self-representation. Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989). Second, the requirement prevents a defendant from “taking advantage of the mutual exclusivity of the rights to counsel and self-representation.” Id. If the court were to permit self-representation on an ambiguous request, a defendant might later be able to claim that the right to counsel was improperly denied. See State v. Hanson, 138 Ariz. 296, 300, 674 P.2d 850, 854 (App.l983)(citing Meeks v. Craven, 482 F.2d 465, 467 (9th Cir.1973)). In the present case, defendant never made an unequivocal request to proceed in propria persona. The closest he came was when he asked, “[w]ill your Honor give me a reasonable continuance to try to work with Mr. Rosales and Mr. Freeman in some capacity to get the witnesses and the documents and records that I feel I need for a defense if I agree to relinquish my right to counsel?” We believe this statement is more akin to “thinking aloud” than to making a request. At best, defendant was negotiating with the court. Had the judge responded affirmatively, defendant still would not have been committed to waiving his right to a lawyer. Moreover, if the court had permitted self-representation at this point in their colloquy, defendant might later have had a compelling argument that he never made a genuine waiver of counsel. There was no error. III. Right to Counsel at Resentencing Hearing Two days before the resentencing hearing, Gavin moved to withdraw, submitting as an exhibit a motion for new counsel 'written by defendant. After the lawyer argued his motion, the following exchange occurred: Defendant: May I respond? The Court: No, you may not. Not yet. Mr. Zack, what is the State’s position? Mr. Zack: Your Honor, the State, of course, traditionally takes no position concerning who or how a defendant is represented. The State would point out it is obvious that Mr. Henry has engaged in these same tactics with several lawyers who have been appointed for him. There is no lawyer who the Court could appoint that would not have the same problems as Mr. Gavin or any other lawyer. It would appear certainly there is two— Defendant: Objection. The Court: Mr. Henry, Mr. Henry, you are not representing yourself. That option may become available to you but you do not have the right to argue this motion. I am aware that you want to fire Mr. Gavin. Proceed, Mr. Zack. Defendant: I object to the State being made a party to this argument. The Court: Mr. Henry, if you want to be present at this hearing, please refrain from interrupting. Go ahead, Mr. Zack. Mr. Zack: My point is the Defendant’s intent for making these accusations against all his lawyers apparently is to delay the proceedings and build in an error issue on appeal and, again, we have gone through this for over a year now. It is the State’s position that we want to get the Defendant resentenced and would desire to do that this Thursday and get this case moving. Beyond that the State I don’t believe can get involved in the representation of the Defendant. The Court: All right. Mr. Gavin, anything further? Mr. Gavin: Just a reminder. Mr. Henry has put my bar license at risk. I think when that happens there is a definite conflict. Given the other exhibits I filed I would ask the Court to let me off for the reasons already cited. The Court: Well, we have reached the point in this case that I anticipated that we would reach at some point; the only question being how long it would take us to get here. It is the same point that we reached with every other attorney that has ever represented the Defendant in this case. I can certainly appreciate the dilemma that Mr. Gavin is in. My concern is that I feel deep down in my heart that no matter who I appoint to represent the Defendant in this case, we will be having an identical hearing at some point down the road and I say that just because I am aware of the people that have been appointed to represent Defendant in the past. Some of them probably are not among the greatest trial attorneys that I have ever seen. Some of them are, in my opinion, cream of the crop that is available around here. And I am just not willing to give the Defendant the right to get a new attorney any time that he wants simply by filing a bar complaint or threatening to file a bar complaint. And I am just absolutely convinced that if I grant this request, we are just guaranteeing that we are going to have this same conversation with some other lawyer somewhere down the line. Defendant argues that the trial court’s failure to inquire into why [he] was seeking substitute counsel and ... to determine the nature and extent of the conflict between Mr. Henry and his counsel ran afoul of the Sixth Amendment to the United States Constitution and Ariz. Const., art. 2, §§ 4, 8, 13, 15, and 24____” We disagree. Further inquiry was unnecessary because the court had already amassed sufficient information on which to base its decision. Prior to the hearing, the judge had reviewed defendant’s pro per motion for new counsel, which detailed the nature and extent of the “conflict.” That pleading thoroughly set forth defendant’s contentions that Gavin refused to acquire mitigation evidence, that he was too busy to prepare an adequate defense, and that he was improperly influenced by one of his predecessors. We note the striking similarity between these claims and those against Rosales. The merits of these charges, however, are not properly before us, since they would appropriately be the subject of post-conviction relief proceedings pursuant to Rule 32, Ariz.R.Crim.P. Defendant also contends that an irreconcilable conflict arose after he filed a bar complaint against his counsel. Again, we cannot agree. “As a matter of public policy, a defendant’s filing of a bar complaint against his attorney should not mandate removal of that attorney.” State v. Michael, 161 Ariz. 382, 385, 778 P.2d 1278, 1281 (App. 1989). A rule to the contrary would encourage the filing of such complaints solely for purposes of delay. Defendant’s penchant for changing counsel once more reinforces the court’s ruling. He was represented by six different attorneys before his second petition for review to this court. In all, he moved to substitute counsel ten separate times. Although a defendant is entitled to competent counsel, we agree that the trial court need not have embarked on “the search for the ideal Graham Henry attorney.” IV. Rights to Self-representation, Compulsory Process, Confrontation, and Due Process Defendant allegedly filed a motion to proceed in propria persona on the same day that his motion for new counsel was denied. The court never received the motion, so defendant renewed it orally at the resentencing hearing. He argued that in order to adequately represent himself he needed (1) a three to four week continuance; (2) the prosecutor’s assistance in contacting and securing witnesses named in his list of mitigating factors; (8) access to the state’s documentary and photographic evidence; and (4) advisory counsel to help prepare for resentencing. The judge denied each request, stating “I am simply not willing to allow you to come in on the very beginning of this hearing and cause it to be delayed____” He then asked defendant if he wanted to go forward in propria persona. Defendant declined and now argues that the court deprived him of his right to self-representation by denying him the time and resources necessary to prepare an adequate defense. A death-eligible defendant may represent himself at sentencing. Henry, 176 Ariz. at 585, 863 P.2d at 877. Here, however, defendant again failed to make an unequivocal request. See State v. Rickman, 148 Ariz. 499, 508, 715 P.2d 752, 756 (1986). As with the removal hearing, we cannot conclude from the record that defendant would have been committed to representing himself had the court granted his conditions. The unequivocality requirement was designed to guard against such ambiguity. See State v. Hanson, 138 Ariz. 296, 300, 674 P.2d 850, 854 (App.1983). In any event, we would uphold the court’s ruling even if defendant had properly invoked this right. Motions for self-representation must be balanced against the “government’s right to a ‘fair trial conducted in a judicious, orderly fashion----’ ” State v. De Nistor, 143 Ariz. 407, 412, 694 P.2d 237, 242 (1985) (citation omitted). In this ease, defendant appears to have abused the protections afforded to accuseds by his repeated attempts to manufacture error and delay the proceedings. The record is replete with his frequent interruptions, lengthy digressions, and repeated requests for substitute counsel or self-representation. Given this history and the fact that defendant had a lawyer present who announced that he was ready for the hearing, there was no need for further delay. Defendant further asserts that the court violated his rights to compulsory process, confrontation, and due process by preventing him from obtaining witnesses and materials needed for the hearing. These claims are equally meritless. He was not entitled to hybrid representation, Rickman, 148 Ariz. at 503, 715 P.2d at 756, and he was represented by counsel. V. Physical Restraints At the resentencing hearing, the judge required defendant to wear shackles, handcuffs, and a shock belt. Defendant contends that this was an abuse of discretion because he had never disrupted any proceedings. He also claims that the shock belt, allegedly capable of rendering him unconscious, might have impaired his mental faculties to such an extent that his testimony was adversely affected. The imposition of security measures is within the sound discretion of the trial judge. State v. Stewart, 139 Ariz. 50, 54, 676 P.2d 1108, 1112 (1984). The record, however, must provide support for the use of such restraints. State v. Bracy, 145 Ariz. 520, 532, 703 P.2d 464, 476 (1985). Factors to be considered include past convictions for crimes of violence as well as prior escapes. See id. In this case, defendant’s criminal history justified the security devices. He had previously been convicted of several violent felonies including involuntary manslaughter and armed robbery. Moreover, the record fails to demonstrate prejudice. There was no jury present during sentencing, see State v. McMurtrey, 136 Ariz. 93, 98, 664 P.2d 637, 642 (1983)(finding no error because jury did not see the shackles), and nothing indicates that the restraints detracted from defendant’s concentration while testifying. In fact, the transcript reflects that defendant was extremely focused in addressing virtually all of the points he had raised in his written notice of mitigating factors. VI. Death Eligibility Under Tison Because the murder occurred before the United States Supreme Court handed down Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), defendant claims that use of the Tison standard to determine his death eligibility constituted an ex post facto violation. As defendant concedes, however, this court rejected the same argument in State v. Salazar, 173 Ariz. 399, 413, 844 P.2d 566, 580 (1992), and we choose not to revisit the issue. VII. Aggravating Factors At resentencing, the court found two aggravating factors: a prior felony involving the use or threat of violence under A.R.S. § 13-703(F)(2), and an offense committed in expectation of pecuniary gain pursuant to section 13-703(F)(5). Defendant challenges the validity of both findings. He first argues that his California armed robbery conviction does not satisfy (F)(2) because the crime, as defined by statute, does not necessarily involve the use or threat of violence against another person. We have previously rejected this argument in State v. Correll, 148 Ariz. 468, 479, 715 P.2d 721, 732 (1986), and more recently in State v. Kemp, 185 Ariz. 52, 64, 912 P.2d 1281, 1293, cert, denied, Kemp v. Arizona, — U.S. -, 117 S.Ct. 117, 136 L.Ed.2d 68 (1996). We see no reason to reconsider it here. Defendant further asserts that his 25-year-old armed robbery conviction is too remote in time to support the (F)(2) aggravating factor. Unlike other enhancement or aggravation statutes, however, A.R.S. § 13-703(F)(2) does not expressly provide a time limitation. Cf. A.R.S. § 13-604(U)(1)(b) (to enhance sentence under “dangerous and repetitive offender” statute, a prior conviction must have been obtained within 10 years of present offense); A.R.S. § 28-697(G) (three prior D.U.I.S within 60 months result in felony D.U.I.). In light of the inclusion of such provisions in analogous statutes, we assume that the omission in (F)(2) was intentional. In any event, during much of the intervening 25-year period, defendant was in prison and thus restricted in his ability to commit further crimes. Allowing him to advantageously use this time would be anomalous. With respect to the (F)(5) factor, we have already upheld the trial court’s conclusion that expectation of pecuniary gain was the impetus for this killing. Henry, 176 Ariz. at 588, 863 P.2d at 880. We see nothing in the present record that would cause us to reverse that finding. VIII. Mitigating Factors The trial court found one statutory mitigating factor, A.R.S. § 13-703(G)(l)(signifi-cantly impaired capacity to appreciate the wrongfulness of conduct or to conform conduct to the law). Defendant complains that the judge failed to credit him with the following non-statutory mitigation: sentence disparity, intelligence and education, good behavior in prison, the felony murder instruction, intoxication, history of substance abuse, and traumatic upbringing. We turn first to the disparity in sentences received by defendant and his co-defendant, Vernon Foote. The same judge presided over both cases. After Foote’s trial resulted in a hung jury, the prosecutor offered to let him plead guilty to attempted murder. Foote accepted and was sentenced to 15 years in prison. At defendant’s resentencing, the court emphasized that he attached no importance to the fact that Foote had entered into the plea agreement. Instead, he stated, “[w]hat I did attach significance to is what he pled to. He pled guilty to attempted first degree murder. That is not the same as pleading to first degree murder obviously and he didn’t plead guilty to kidnapping____” The judge also noted that unlike defendant, Foote had no prior felonies or convictions involving crimes against persons. Unexplained disparity between sentences may constitute a mitigating factor. State v. Dickens, 187 Ariz. 1, 25-26, 926 P.2d 468, 492-93 (1996); State v. Schurz, 176 Ariz. 46, 57, 859 P.2d 156, 167 (1993). As defendant asserts, plea bargaining will not always explain gross differences in punishment. See State v. Marlow, 163 Ariz. 65, 71-72, 786 P.2d 395, 401-402 (1989). Here, however, the men’s distinct criminal backgrounds were sufficient to justify the disparity in penalties. Furthermore, defendant’s assertion that Arizona law prohibits judges from using criminal history to reject mitigation is meritless. See, e.g., State v. Miller, 186 Ariz. 314, 326, 921 P.2d 1151,1163 (1996), cert, denied, Miller v. Arizona, -U.S.-, 117 S.Ct. 1088, 137 L.Ed.2d 221 (1997); State v. Murray, 184 Ariz. 9, 43, 906 P.2d 542, 576 (1995). According to defendant, the trial judge failed to consider intelligence and education as mitigating factors because he believed they could never qualify as such. This is not an accurate representation of the record. The court stated that it would be “totally incomprehensible to find [intelligence and education] as a mitigating factor in this case ----” (Emphasis added). We agree. Defendant frequently used his intelligence for purposes of deception. For example, he gave police a false name to avoid being connected to an outstanding warrant and lied about events surrounding the murder to conceal his involvement. We see no reason to reward an individual who uses his education and intelligence in duplicitous ways. Defendant also claims that the trial court erred in refusing to consider that he assisted other inmates with legal research and helped to establish a prison law library. The record belies his assertion, revealing that the court expressly considered this evidence but decided it was not “the type of circumstance that rises to the level of what mitigation ought to be.” Although there is no requirement that evidence reach a particular threshold to warrant consideration as a mitigating factor, we believe the judge was saying that this information, even if true, carried little or no weight. Our review of the record confirms the court’s conclusion. First, aside from testimony by defendant — described by the judge as one of the least credible witnesses ever seen in his courtroom — there is no evidence that he helped establish a library. As for providing legal assistance, the court had warned defendant on several occasions that he was authorized to use the library only for his own case. He was not permitted to do research for other inmates. Therefore, any mitigating value was nullified by his disregard of this directive. According to defendant, his “lack of disciplinary problems” in prison should also have been regarded as a mitigating circumstance. In State v. Hinchey, 181 Ariz. 307, 314-15, 890 P.2d 602, 609-10 (1995), this court held that a sentencing judge is not required to accept in mitigation the fact that a defendant has been a model prisoner. Moreover, the record here indicates that defendant was less than the ideal inmate. In response to specific questioning, his own witness would only admit that he was “about the average” for a person on death row. Defendant also challenges the resentencing judge’s refusal to find that the felony murder instruction given at trial was a mitigating circumstance. We have held that such an instruction may be mitigating where there is some doubt as to a defendant’s specific intent to kill. State v. Bolton, 182 Ariz. 290, 315, 896 P.2d 830, 855 (1995) (citations omitted); State v. Atwood, 171 Ariz. 576, 648-49, 832 P.2d 593, 665-66 (1992). As stated in our earlier opinion, however, the evidence “supports ... a conclusion that Henry was an active, intentional participant in the killing.” 176 Ariz. at 588, 863 P.2d at 880 (emphasis added). Among other things, the record indicates that two people dragged the victim up the berm, defendant’s clothes were spattered with blood, he hastily drove off after the stabbing, and later gave false information to the police. Id. Thus, we find no error despite some confusion in the trial judge’s explanation for his refusal to give the instruction mitigating effect. He stated, “I go back to my finding that the Tison standard has been met in this case____” Obviously, a felony murder instruction may still be mitigating where death eligibility has been established under the Tison standard. Concluding otherwise would render meaningless our holding in Bolton. Defendant also claims that the court improperly failed to find his intoxication and history of alcohol and drug abuse as non-statutory mitigating factors. With respect to the former, the court found that defendant’s intoxication at the time of the homicide impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law under A.R.S. § 13-703(G)(1). It would have been redundant to count this evidence again as non-statutory mitigation. We find insufficient proof of historical substance abuse, but in any event, this would provide no additional mitigation without evidence of a causal connection to the crime. See State v. Medrano, 185 Ariz. 192, 195-96, 914 P.2d 225, 228-29 (1996); Bible, 175 Ariz. at 609, 858 P.2d at 1212. Finally, defendant argues that the court erred in failing to give mitigating weight to the fact that he had saved the lives of four people during his lifetime and had endured a traumatic upbringing. In Henry, we upheld the court’s conclusions regarding these factors, 176 Ariz. at 588, 863 P.2d at 880, and nothing presented since that decision persuades us to do otherwise. CONCLUSION Following our independent review, we affirm the two aggravating factors and one statutory mitigating factor. On balance, we conclude that the mitigation is not sufficiently substantial to call for leniency. Therefore, defendant’s capital sentence is affirmed. JONES, V.C.J., and FELDMAN, MOELLER and MARTONE, JJ., concurring.

OPINION LANKFORD, Judge. The State petitions this Court for special action relief, claiming that the trial court erred in granting defendant’s request for a jury trial. We agree and grant the State’s requested relief. Because the State is without an adequate remedy by appeal, and special action review is the proper manner to address the right to a jury trial, we accept jurisdiction. See State v. Miller, 172 Ariz. 294, 295, 836 P.2d 1004,1005 (App.1992). The facts are as follows. Defendant was charged with contracting without a license, a class one misdemeanor. See Ariz.Rev.Stat. Ann. (“A.R.S.”) § 32-1151. If convicted, defendant faced a possible punishment of six months imprisonment and a $2,500 fine, which is the maximum punishment for a class one misdemeanor. The municipal court judge denied defendant’s request for a jury trial and convicted him following a bench trial. Defendant appealed to the Maricopa County Superior Court and again requested a jury trial. The trial judge granted defendant’s request, ruling that the maximum fine for conviction of the charged offense was sufficiently severe to warrant a jury trial. The State argues that the trial court exceeded its authority in ordering a jury trial. We agree. In order to determine whether a defendant has a right to a jury trial, Arizona courts apply the three part test set forth in Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966). Courts must consider “the severity of the penalty inflictable, as well as the moral quality of the act and its relation to common law crimes.” Id. at 42, 410 P.2d at 483. Each prong of this test is independently sufficient to trigger the right to a jury trial. Frederickson v. Superior Court, 187 Ariz. 273, 274, 928 P.2d 697, 698 (App.1996). We are principally concerned here with the first prong. Defendant’s potential penalty — six months in jail and a $2,500 fine — is not sufficiently severe to warrant a jury trial. This Court most recently addressed this issue in Freder-ickson, supra. In Frederickson, we held that leaving the scene of an accident is a jury-eligible offense. Although Frederickson rested on the moral turpitude of the offense, we cited the following definition of the severity prong in dictum: Under Arizona law a crime is a jury eligible offense if: (1) the defendant is exposed to a severe penalty, i.e. a penalty in which the exposure exceeds six months imprisonment or $1,000 infines[] ... Frederickson, 187 Ariz. at 274, 928 P.2d at 698 (quoting State v. Harrison, 164 Ariz. 316, 317, 792 P.2d 779, 780 (App.1990), cert, denied, 498 U.S. 1093, 111 S.Ct. 979, 112 L.Ed.2d 1064 (1991)) (emphasis added). By this measure, a jury trial would be warranted in this case. However, Frederickson misstated the rule. Harrison in turn attributed this definition of “severe penalty” to State ex rel. Baumert v. Superior Court, 127 Ariz. 152, 618 P.2d 1078 (1980). However, Baumert did not so hold. Instead, the Supreme Court held that “a maximum penalty of 6 months imprisonment and a possible maximum penalty of $1,000 fine for the crime of disorderly conduct does not constitutionally require a trial by jury because the penalty is not serious[.] ...” Id. at 155, 618 P.2d at 1081 (emphasis added). Thus, Harrison mischaracterized the rule of Baumert, and Frederickson relied upon Harrison. We therefore take this opportunity to clarify the law concerning the severity of punishment necessary to trigger defendant’s right to a jury trial. The amount of the fine alone does not control the right to jury trial. E.g., Baumert, supra. The total potential punishment is determinative. Accordingly, we examine the potential fine in conjunction with the maximum jail sentence. In 1980, our supreme court held that six months in jail and a $1,000 fine was not “serious” enough to warrant a jury trial. Baumert, supra. More recently, this Court held that six months in jail and a $2,500 fine did not expose defendant to “severe penalty.” Mungarro v. Riley, 170 Ariz. 589, 826 P.2d 1215 (App.1991) (granting jury trial based on moral turpitude of false reporting to law enforcement agency); see also Miller, 172 Ariz. at 295, 836 P.2d at 1005 (denying jury trial for charge of contracting without a license because, inter alia, six months in jail plus fine not sufficiently severe). Thus, the trial court incorrectly ruled that Tibshraeny’s potential penalty — $2,500 maximum fine and six months jail time — is severe enough to warrant a jury trial. Relief granted. KLEINSCHMIDT, P.J., and FIDEL, J., concur. . Defendant clearly fails the final two parts of the Rothweiler test. This Court has held that contracting without a license does not involve moral turpitude and is unrelated to any common law offense. Miller, supra. Therefore, defendant is not entitled to a jury trial under these parts of the Rothweiler test. . The right to a jury trial based on more than six months potential incarceration is required by United States Supreme Court case interpreting the Sixth Amendment, which applies to the States under the Due Process Clause. See, e.g., Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970) ("[N]o offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.”). Interestingly, none of the prior Arizona cases makes this point — i.e., the supremacy of the federal provision — clear.

OPINION FIDEL, Presiding Judge. This originated as an Anders appeal. After reviewing the record, we ordered counsel to brief whether the trial court erred when it permitted Officer Marcus Brown to express opinions concerning (1) the veracity of Appellant’s wife’s prior out-of-court statements and (2) the effects of alcohol consumption on an alcoholic. For reasons that follow, we reverse and remand. On October 13, 1994, Glendale police responded to a “check-welfare call” involving Appellant Leonard Arthur Reimer and his wife, S.R. Upon arrival, Officer Brown and other Glendale police found the couple’s apartment in disarray and S.R. covered with blood and wounds. Paramedics took her to a hospital, where physicians treated her injuries. Hospital tests revealed that she had a .342 blood alcohol content. Appellant was charged with two counts of aggravated assault, class three dangerous felonies, and one count of kidnapping, a class two dangerous felony. The first count of aggravated assault charged Appellant with using the butt of a shotgun to intentionally, knowingly, or recklessly cause physical injury to S.R. The second count charged him with using a shotgun to intentionally place S.R. in reasonable apprehension of imminent physical injury. Following a four-day trial, a jury found Appellant guilty of both counts of aggravated assault, but not guilty of kidnapping. The court sentenced Appellant to two concurrent, mitigated five-year prison terms. I. Appellant first argues that the trial court abused its discretion when it permitted Officer Brown to express the opinion that S.R. truthfully described Appellant’s conduct in an out-of-court statement to the police. We agree. What S.R. reported to the police differed from her eventual account at trial. According to Officer Brown, on the night of the assault, S.R. told the police that Appellant pointed a shotgun at her, threatened to kill her, and hit her with the butt of the shotgun. At trial, S.R. testified that Appellant showed her the shotgun but not that he pointed it at her. S.R. further testified that Appellant said she did not deserve to live, but she denied that he threatened to kill her or that he hit her with the butt of the gun. S.R. explained these inconsistencies by claiming that she spoke to the police while “under distress.” On further examination of Officer Brown, the State asked him to comment on the truthfulness of S.R.’s statements to him: Q. Based on your years of training and experience with responding to calls, do you have any reason to believe that [S.R.] was lying to you on the evening of October 13th, 1994? When Appellant’s counsel objected, the trial court asked the State to lay foundation, and the State responded by qualifying Officer Brown as experienced in determining whether persons were being truthful or not: Q: Officer, do you have any experience in detecting whether or not someone is being credible with you when you talk to them? A: Yes. Q: What experience do you have? A: Basically what we call street knowledge. Also, we get trained on investigation scales, on what people do when ... they’re not being truthful with you, a lot of their physical movements that they make, how they’ll conduct themselves, how they won’t make eye contact with you____ I have been a patrol officer for five years, and I have talked to many, many people. And I know when somebody is being truthful with me and when somebody is not being truthful with you. After laying this foundation, the State was permitted over defense counsel’s continuing objection to elicit the following opinion from Officer Brown: Q: Based on your personal knowledge and experience, do you believe [S.R.] was lying to you about what happened to her on October 12th and 13th? A: I believe she was telling the truth. The parties dispute whether Officer Brown rendered an expert opinion based on learning and experience pursuant to Rule 702 of the Arizona Rules of Evidence, or a lay opinion based on observation pursuant to Rule 701 of the Arizona Rules of Evidence. The State’s argument that he testified merely as a lay witness rings hollow, however, as the State expressly undertook to meet the trial court’s call for foundation by establishing Officer Brown as a person qualified by training and experience to distinguish people who are telling the truth from people who are lying. Moreover, even if Officer Brown had offered only a lay opinion, his opinion would not have been admissible. Rule 702 allows expert testimony only if the expert possesses “scientific, technical, or other specialized knowledge” that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Rule 701 similarly permits only lay opinions that are “rationally based on the perception of the witness and ... helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Neither rule permits testimony such as that of Officer Brown because Arizona courts have expressly determined that neither expert nor lay witnesses assist the trier of fact to understand the evidence or to determine a fact in issue when they merely opine on the truthfulness of a statement by another witness. See, e.g., State v. Lindsey, 149 Ariz. 472, 474, 720 P.2d 73, 75 (1986); State v. Moran, 151 Ariz. 378, 382, 728 P.2d 248, 252 (1986); State v. Schroeder, 167 Ariz. 47, 50, 804 P.2d 776, 778 (App.1990); accord State v. Tucker, 165 Ariz. 340, 346-48, 798 P.2d 1349, 1355-57 (App.1990). Such opinions are rejected because they are “nothing more than advice to jurors on how to decide the case.” Moran, 151 Ariz. at 383, 728 P.2d at 253; see also Lindsey, 149 Ariz. at 476, 720 P.2d at 77; Schroeder, 167 Ariz. at 50, 804 P.2d at 778. Although Lindsey and Moran both concerned witnesses tendered as experts, we extended the same rule to lay opinion testimony in Schroeder. In Schroeder, an investigating officer opined on the credibility of a sexual abuse victim to bolster the victim’s prior consistent statements of alleged abuse. 167 Ariz. at 49, 804 P.2d at 778. Applying the Lindsey-Moran rule, we found the testimony improper. Id. at 51, 804 P.2d at 780. We ruled it harmless error, however, because the officer made only a single reference to the victim’s credibility, because she testified in her capacity as the investigating officer, and, most significantly, because the court promptly excluded the testimony from evidence, admonished the jury to “disregard completely” the question and answer, and instructed the jury that “[t]he issue of credibility of a witness is solely and completely an issue for the jury.” Id. at 49-50, 804 P.2d at 777-78. Here, Officer Brown was not presented merely as an investigating officer offering a lay observation. Rather, in response to the trial court’s request for foundation, the State qualified him as an expert with extensive experience in distinguishing truthful from untruthful witnesses. Further, the trial court did not strike the testimony and admonish the jury to disregard it as in Schroeder. Instead, the trial court admitted the testimony into evidence, merely reminding the jury that it was obliged “to evaluate the witnesses and the basis for their testimony.” By approving Officer Brown’s foundation as an expert in truth-telling and by permitting him to opine on the truthfulness of S.R.’s out-of-court statement, the trial court clearly abused its discretion under the controlling case law of this state. II. The State alternatively argues that, even if the trial court abused its discretion in permitting Officer Brown to express an opinion on the truthfulness of S.R.’s out-of-court statement, the error was harmless because S.R. testified at trial, the court adequately cautioned the jury that its role was to determine the credibility of witnesses, and Appellant’s voir dire examination sufficiently revealed Officer Brown’s lack of formal training on this point. We disagree. An error is harmless if, beyond a reasonable doubt, it did not contribute to or affect the jury’s verdict. Delaware v. Van Arsdall, 475 U.S. 673, 681-84,106 S.Ct. 1431, 1436-38, 89 L.Ed.2d 674 (1986); State v. Medina, 178 Ariz. 570, 577, 875 P.2d 803, 810 (1994). Appellant was convicted of two counts of aggravated assault, class three dangerous felonies. Both charges alleged the use of a dangerous weapon — Appellant’s shotgun. Count one alleged that he struck S.R. with the butt of his shotgun; count two alleged that he used the shotgun to intentionally place S.R. in reasonable apprehension of im minent physical injury. The essential evidence on both charges was S.R.’s out-of-court statement as presented by Officer Brown. Officer Brown testified that S.R. told him on the night of her injuries that Appellant pointed a shotgun at her, threatened to loll her, and hit her with the butt of the gun. S.R. testified that Appellant neither pointed the shotgun at her, nor threatened her life, nor hit her with the butt of his gun. Because the outcome depended on the credibility of S.R.’s statement to Officer Brown, we cannot conclude beyond a reasonable doubt that his assessment of her veracity did not influence or affect the jury’s verdict. See Moran, 151 Ariz. at 382, 728 P.2d at 252.(“The danger of prejudice may be heightened when, as here, the state’s case rests entirely on extra-judicial statements.”). The trial court’s admission of Officer Brown’s credibility testimony constitutes reversible error. III. Appellant next argues that the trial court erred when it allowed Officer Brown to testify concerning the effects of alcohol consumption on an alcoholic. Over defense counsel’s objection, the trial court allowed Officer Brown to characterize the attributes of an alcoholic in the following opinion: If somebody is an alcoholic, they need a certain level of alcohol in their system to function normal, just as somebody that does drugs, narcotic drugs. So to us, when we hear, say, a .34, where we think that’s high, that’s very normal. That’s just a standard normal line of functioning in life for an alcoholic. Because we reverse on other grounds, we need not decide whether the trial court committed reversible error in permitting this testimony. For purposes of remand, however, we note that, while Officer Brown established his expertise in discerning signs of alcohol consumption, he did not discuss his training or expertise in understanding the effects of alcohol on an alcoholic. For the foregoing reasons, we reverse and remand for further proceedings. SULT and LANKFORD, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . In Moran and Schroeder, the offending testimony, like the testimony here, concerned the credibility of an out-of-court statement. See Moran, 151 Ariz. at 382, 728 P.2d at 252; Schroeder, 167 Ariz. at 49, 804 P.2d at 778; see also State v. Keller, 315 Or. 273, 844 P.2d 195, 201 (1993)(similar rule applies "whether the witness is testifying about the credibility of the other witness in relation to the latter’s testimony at trial or is testifying about the credibility of the other witness in relation to statements made by the latter on some other occasion.”).

OPINION McGREGOR, Chief Judge. In these consolidated appeals, we examine the use of historical prior felony convictions as a basis for sentence enhancement under Arizona Revised Statutes Annotated (“A.R.S.”) section 13-604 (Supp.1996). Specifically, we consider what constitutes a “third or more prior felony conviction” under A.R.S. section 13-604.U.1(d). I. Fernando Ramon Garcia (“defendant”) was convicted of theft, a class 5 felony, on February 26,1996. At trial, defendant admitted to three prior felony convictions. The dates of defendant’s prior convictions, all class 4 felonies, were April 17, 1985 (“April 1985 conviction”); July 12,1985 (“July 1985 conviction”); and December 23, 1992 (“1992 conviction”). On March 28,1996, a jury convicted defendant of another charge of theft, a class 3 felony. Following a separate trial, the jury further found that defendant previously had been convicted of the three prior felony offenses. At the sentencing for the two theft convictions, the trial court ruled that defendant’s three prior convictions constituted two historical prior felony convictions, as defined by A.R.S. section 13-604.U.1. Pursuant to A.R.S. sections 13-604.C and .D, the court sentenced defendant to concurrent, presump tive terms of 11.25 years on the class 3 felony conviction and 5 years on the class 5 felony conviction. Defendant timely appealed his convictions and sentences. Because the appeals involve a common issue of law, we granted defendant’s motion to consolidate. II. Defendant’s sole argument on appeal is that the trial court erred in concluding that his three prior convictions constituted two “historical prior felony convictions” for purposes of enhanced sentencing under A.R.S. section 13-604. Defendant concedes that his 1992 conviction constitutes a historical prior but argues that neither of his 1985 convictions falls within the purview of A.R.S. section 13-604.U.1. Our analysis of the statute, including its spirit and purpose, leads us to agree with defendant. The subsections of section 13-604.U.1 define four categories of convictions as “historical prior felony convictions”: (a) any prior felony conviction that falls within one of six specific types of offenses; (b) any class 2 or 3 felony, not addressed in subsection (a), committed within ten years of the present offense; (e) any class 4, 5, or 6 felony, not addressed in subsection (a), committed within five years of the present offense; and (d) any third or more prior felony conviction. Subsections (a) and (b) clearly do not apply, since none of defendant’s convictions is for an offense listed in subsection (a) and none is for a class 2 or 3 felony. His prior convictions therefore constitute “historical prior felony convictions” only if they fall under subsection (c) or (d). As indicated, defendant concedes that his 1992 conviction, for a class 4 felony offense committed in the five years immediately preceding the present offenses, is a “historical prior felony conviction” under subsection (c). While defendant’s 1985 convictions were also for class 4 felonies, neither of these convictions qualifies as a historical prior under subsection (c) because neither offense was committed within five years of the current offenses. Thus, the 1985 convictions can be “historical prior felony convictions” only if one of them qualifies as a “third or more prior felony conviction” under subsection (d). At sentencing, defendant argued against such application, asserting that his first prior felony conviction must be the conviction most remote in time. Therefore, the April 1985 conviction was his “first” prior felony conviction, the July 1985 conviction was his “second” prior conviction, and the 1992 conviction was his “third prior felony conviction.” However, because the 1992 conviction could not be “double-counted,” both as a class 4 prior felony conviction under subsection (c) and as a “third or more prior felony conviction” under subsection (d), defendant argued that he had only one “historical prior felony conviction” for purposes of sentence enhancement. Under this interpretation, defendant’s sentence would have been 6.5 years, rather than 11.25 years, for the class 3 felony, and 2.25 years, rather than 5 years, for the class 5 felony. Rejecting defendant’s arguments, the trial court concluded that either of defendant’s 1985 convictions could serve as a “third” prior conviction under subsection (d). The court reasoned that a “third prior conviction” could be any one of three convictions rather than only a conviction third (or more) in time. Because the trial court based its ruling on its interpretation of section 13-604.U.1(d), we review that ruling de novo. See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227,1230 (1996). A. In construing a statute, our goal is “to fulfill the intent of the legislature that wrote it.” We first consider the statute’s language “because we expect it to be ‘the best and most reliable index of a statute’s meaning.’ ” When the statute’s language is not clear, we determine legislative intent by reading the statute as a whole, giving meaningful operation to all of its provisions, and by considering factors such as the statute’s context, subject matter, historical background, effects and consequences, and spirit and purpose. We also interpret statutes “in such a way as to achieve the general legislative goals that can be adduced from the body of legislation in question.” Id. (citations omitted). In interpreting a criminal statute, we are also guided by the rule of lenity. This rule dictates that if a criminal statute is “ ‘susceptible to more than one interpretation ... any doubt should be resolved in favor of the defendant.’ ” State v. Tarango, 185 Ariz. 208, 210, 914 P.2d 1300, 1302 (quoting State v. Pena, 140 Ariz. 545, 549-50, 683 P.2d 744, 748-49 (App.1983), decision approved and adopted, 140 Ariz. 544, 683 P.2d 743 (1984)), affd on reh’g, State v. Arizona Dep’t of Corrections, 187 Ariz. 211, 928 P.2d 635 (1996). Following the rules of statutory construction outlined in Zamora, we look first to the language of section 13-604.U.1(d). Subsection (d) provides that “[a]ny felony conviction that is a third or more prior felony conviction” may constitute a “historical prior.” The adjective “third” is defined as “being number three in a countable series.” Webster’s Third New International Dictionary 2377 (1966). A “series” is a “group of usually three or more things or events standing or succeeding in order.” Id. at 2073 (emphasis added). The plain language of the provision therefore suggests that the legislature intended that, in applying section 13-604.-U.1(d), trial courts count prior felony convictions in chronological order. Common usage also indicates that the term “third” typically denotes the most recent item or occurrence in a series of three. For example, a third parking ticket usually refers to that received after the first and second; a third child has two older siblings; a third marriage follows two earlier unions; and accepting a third choice signifies that two earlier choices could not be obtained. The state agrees that the term “third” connotes a chronology, but argues that a court could count “chronologically” in more than one way: from the earliest conviction forward to the most recent conviction or, as the trial court did in this case, in the reverse order, or in no particular order. Division Two of this court approved a similar approach in State v. Everidge, 188 Ariz. 46, 932 P.2d 802, 804 (App.1996), in which the court commented that, under A.R.S. section 13-604.U.1(d), “it does not matter if it is the third conviction chronologically or not.” Although we find defendant’s interpretation of the statute more tenable, we conclude that because the term “prior” has an implicit retrogressive meaning, the language of section 13-604.U.1(d) arguably may be regarded as ambiguous. We therefore turn to other sources to discern the legislature’s intent. The legislative history of section 13-604-U.1(d) provides no insight into what the legislature meant by the phrase “third or more prior felony conviction.” In 1993, the legislature adopted this provision, without amendment, from Senate Bill 1049, and the provision remains as it was originally enacted. See 1993 Ariz. Sess. Laws 1413. Therefore, no changes in statutory language guide us in discerning legislative intent. The general “spirit and purpose” of section 13-604, however, do assist us in determining the meaning of “third or more prior felony conviction.” The statute as a whole clearly was intended to punish defendants who have certain prior felony convictions more severely than those who do not. See State v. Sweet, 143 Ariz. 266, 270, 693 P.2d 921, 925 (1985) (“The aim of the legislature in enacting provisions for enhanced or mandatory sentences for repeat offenders, as evidenced by A.R.S. § 13-604, is to treat more severely those who have prior felony convictions than those who have prior misdemeanor or petty offense convictions.”). The statute also clearly distinguishes between defendants with one historical prior conviction and those with “two or more” such priors. See A.R.S. § 13-604. The legislature apparently concluded that a defendant who acquires at least two historical prior felony convictions has demonstrated a sufficient level of recidivism to warrant the maximum sentence enhancement available under the statute. Furthermore, the statutory structure and language reveal that the statute, as a whole, establishes an inverse relationship between seriousness of an offense and the number of years during which the offense can be used to enhance a sentence. For example, subsections (b) and (c) reflect the legislative judgment that, for most felony convictions, passage of a defined period of time makes those offenses too remote to justify their use for sentence enhancement. Those subsections, by permitting use of class 2 and 3 felonies for ten years and class 4, 5, and 6 felonies for five years, evidence a legislative intent to relate seriousness to time. The legislature, however, adopted two exceptions to this general rule under subsection U. First, the statute allows prior convictions for the “more serious” offenses, those listed in subsection (a), to enhance a sentence regardless of how much time passes between the prior conviction and the present offense. The second exception, that in subsection (d), permits the use of a “third prior felony conviction” without regard to how much time has passed between that conviction and the present offense. Because subsection (a) already permits use of defined offenses without regard to passage of time, subsection (d) must refer to those convictions for “non-subsection (a)” offenses that are more than five or ten years old, and thereby too remote in time to fall within subsection (b) or (c). The problem with counting backwards to find a “third prior conviction,” as the state urges we do, is that by doing so we would capture felonies that the legislature has expressly deemed to be too remote in time under subsections (b) and (c). In this case, for instance, neither of defendant’s 1985 convictions falls within subsection (c) because neither occurred within five years of the present offense. By “counting back,” therefore, the trial court used a conviction expressly defined by subsection (c) as too remote in time to enhance defendant’s sentence. We think such a result is inconsistent with the legislature’s apparent intent to establish a cut-off date for considering convictions that do not fall within subsection (a) . The state argues that interpreting the language of section 13-604.U.l(d) as applying only to those convictions that occur chronologically third or later in time renders the provision superfluous. The state reasons that in “virtually every case” the defendant’s most recent felony conviction or convictions (that is, those convictions which are most likely to be the defendant’s “third or more” prior convictions) will fall under subsection (b) or (c), thereby rendering subsection (d) inapplicable. The state may well be correct. The result, however, is consistent with the legislative purpose of imposing time limits on the use of most prior convictions to enhance a sentence. Moreover, assuming the state’s contention to be true, we are not convinced that applying a “third in time” approach to 13-604.U.1(d) renders that provision superfluous. In those cases in which a defendant’s prior convictions, because of their age, do not fall under another provision of the statute, subsection (d) permits a trial court to designate those prior convictions as historical priors, provided that they are a defendant’s “third or more prior felony conviction.” In this case, for instance, if defendant had accrued a third felony conviction in 1985, that conviction would have qualified as a second historical prior felony conviction for sentence enhancement purposes. In other words, once a person has been convicted of three felony offenses, the third in time can be used to enhance a later sentence, regardless of passage of time. We conclude that applying subsection 13-604.U.l(d) only to felony convictions that are chronologically the third or more in time is consistent both with the statute’s purpose of punishing defendants with multiple prior felony convictions more harshly than other defendants and with the purpose of establishing a relationship between time of prior offense and its use to enhance a sentence. B. Even if we were not convinced that the legislature used the phrase “third or more prior conviction” in its usual sense in enacting section 13-604.U.1(d), and were further convinced that the legislative purpose and spirit did not render the statute clear, we would be left with a statute that is “susceptible to more than one interpretation.” Tarango, 185 Ariz. at 210, 914 P.2d at 1302. The rule of lenity therefore requires that we resolve the issue in favor of the defendant, id., count his prior convictions chronologically, and find that only defendant’s 1992 conviction could be considered his “third ... prior felony conviction.” However, because the trial court had already designated defendant’s 1992 conviction as a historical prior felony conviction under 13-604.U.1(c), it could not use that same conviction to find an additional historical prior under subsection (d). See, e.g., Anderjeski v. City Court, 135 Ariz. 549, 551, 663 P.2d 233, 235 (1983) (“[I]n Arizona the clear legislative intent is not to cumulate punishment for one act.”). The trial court therefore erred in ruling that defendant had two historical prior felony convictions for purposes of sentence enhancement under A.R.S. section 13-604. III. We affirm defendant’s convictions in CR 95-08011 and CR 95-09709. We vacate his sentences in both cases and remand for re-sentencing consistent with this decision. FIDEL, P.J., and PATTERSON, J., concur. . Section 13-604.U.1 defines "historical prior felony conviction” as: (a) Any prior felony conviction for which the offense of conviction: (i) Mandated a term of imprisonment except for a violation of chapter 34 of this title involving a drug below the threshold amount; or (ii) Involved the intentional or knowing infliction of serious physical injury; or (iii) Involved the use or exhibition of a deadly weapon or dangerous instrument; or (iv) Involved the illegal control of a criminal enterprise; or (v) Involved aggravated driving under the influence of intoxicating liquor or drugs or driving while under the influence of intoxicating liquor or drugs with a suspended, canceled, revoked or refused driver license; or (vi) Involved any dangerous crime against children as defined in § 13-604.01. (b) Any class 2 or 3 felony, except the offenses listed in subsection (a) of this paragraph, that was committed within the ten years immediately preceding the date of the present offense. Any time spent incarcerated is excluded in calculating if the offense was committed within the preceding ten years. (c) Any class 4, 5 or 6 felony, except the offenses listed in subdivision (a) of this paragraph, that was committed within the five years immediately preceding the date of the present offense. Any time spent incarcerated is excluded in calculating if the offense was committed within the preceding five years. (d) Any felony conviction that is a third or more prior felony conviction. A.R.S. § 13-604.U.1 (footnote omitted). . We reject the state’s argument that A.R.S. section 13-104, which abrogates the "general rule that a penal statute is to be strictly construed,” invalidates the rule of lenity in Arizona. As this court held in Pena, 140 Ariz. at 549-50, 683 P.2d at 748-49, notwithstanding section 13-104, the rule of lenity continues to require that if a criminal statute is susceptible to more than one interpretation, we resolve any doubt in favor of the defendant. . Thus, if a defendant has three prior felony convictions and his two most recent convictions fall under subsection (b) or (c), but his first conviction does not, the defendant would have only two historical prior felony convictions.

OPINION SULT, Judge. This is an appeal from the trial court’s grant of summary judgment to appellees on appellants’ claim for legal malpractice. Appellants’ complaint alleged malpractice sounding in negligence as well as malpractice based on breach of contract. For the reasons set forth below, we reverse the ruling of the trial court on the negligence claim but affirm that court on the breach of contract claim. We also conclude that appellants are not barred by collateral estoppel from litigating the causation element of their claim. FACTUAL AND PROCEDURAL HISTORY In 1972, Pollution Controls, Inc. (“PCI”), a Minnesota corporation, experienced financial difficulties. Appellants Financial Placements, Inc. (“FPI”) and Donald E. Collins (“Collins”) helped PCI locate funds to remain in business. By promissory note dated August 4,1972, PCI promised to pay the principal amount of $5,000 and interest in the form of 2,500 shares of PCI common stock to FPI and one Melvyn Bell, with payment due in thirty days. In the event the principal was not paid when due, the payees could opt to receive more PCI common stock as additional interest on the unpaid principal balance. PCI executed a similar promissory note dated August 28, 1972. The principal amount of that note was $20,000, and the payees were FPI and Collins. This note was payable in six months, and the interest was to be paid in PCI common stock. Again, if the principal was not paid when due, addi tional interest was payable in PCI stock. Both notes were executed and delivered in Minnesota. PCI failed to pay the principal and interest when due under both notes. By declining to attempt to collect on the notes, Collins and FPI in effect exercised their right granted under each note to receive additional interest payable in PCI stock. Eventually, PCI was merged into Environmental Systems Company (“ESC”), a company whose stock became very valuable over time. In 1989, Collins and FPI hired appellant Equity Reclamations, Inc., (“Equity”), an Arizona corporation, to assist them in recovering, in the form of ESC stock, the principal and interest owed to them under the notes. Later that year, Equity, through its president Lawrence Grinnell (“Grinnell”), contacted appellee Miller & Miller, Ltd., a Phoenix law firm, (“the firm”) to discuss representing appellants in the note-collection process. Before he agreed to be retained by appellants, appellee Murray Miller (“Miller”), a principal of the firm, engaged a Los Angeles law firm to research and assess the effect of the statute of limitations on appellants’ claims. The resulting research memorandum indicated that under Minnesota law, the notes most likely would be treated as demand notes with the result that the statute of limitations would not begin to run until actual demand was made. The memorandum cautioned, however, that demand generally had to be made within a “reasonable” time and that “[r]easonableness is a jury question and not easily defined.” On December 1, 1989, the firm and Equity/Grinnell entered into a contract for legal services. The contract called for the firm to “provide reasonable and necessary services” to Equity and Grinnell, including representing them “in litigation to recover assets which belong to them.” By letter dated January 12, 1990, Miller demanded that ESC pay amounts due under the $20,000 note. Miller wrote that he would “take the appropriate and necessary action to protect our clients’ interest” if ESC did not respond by January 31. The letter did not refer to the $5,000 note and the record does not indicate whether ESC responded to this letter. The record does not show that anything else occurred with respect to these notes until, in a letter dated August 25,1990, Grin-nell expressed to Miller his concern about the lack of action on various matters Miller was handling for Equity, including collection of the notes. Grinnell wrote, “Please, I urge you, avoid further delays in the progress of beginning to file these and other suits.” Miller then demanded payment from ESC under the $5,000 note by letter dated September 24, 1990. ESC responded by requesting additional information and noting that it had been almost eighteen years since the notes were issued. There is no evidence that Miller ever responded to this inquiry or provided ESC with more information. In December 1990, Miller engaged the Minnesota law firm of O’Connor & Hannan to assist in collecting on the two notes. On or about March 29,1991, Miller and O’Connor & Han-nan filed lawsuits against ESC in Minnesota state court on the two notes. The actions were thereafter removed to federal district court. The district court granted summary judgment to ESC in both cases. The court ruled that the statute of limitations on the notes had run some six and one-half years before the lawsuits were filed. The court also found that even if the notes waived the statute of limitations defense, the actions were barred by laches. Finally, the court noted that an August 30,1972 agreement between FPI and PCI superseded FPI’s rights under the notes and discharged the notes. FPI and Collins appealed to the Eighth Circuit Court of Appeals, which affirmed on statute of limitations grounds but employed a different analysis to reach that result. Collins v. Environmental Sys. Co., 3 F.3d 238 (8th Cir.1993). Applying Minnesota law, the court found that the notes waived the statute of limitations, but that the waiver was effective only for a reasonable time, which the court determined was the six-year interval of the limitations period. Id. at 242. Thereafter, appellants had another six-year period in which to make demand, at the conclusion of which the six-year statute of limitations for suing on the notes began to run. The respective periods were tied to the months in which each note was originally due, namely, September for the thirty-day $5,000 note, and February for the six-month $20,000 note. The court thus found the commencement of the limitations period for the $5,000 note was September 1984 and for the $20,000 note was February 1985. Id. at 243. Accordingly, the court held that the six-year limitations period expired in September 1990 for the former and in February 1991 for the latter, making the claims filed in April 1991 on both notes barred by the statute of limitations. Id. The court did not address the laches defense or the August 30,1972 agreement. In May 1994, appellants filed actions in Maricopa County Superior Court against the firm and Miller and his spouse (collectively “appellees”), as well as the law firm of O’Connor & Hannan. The complaints were for legal malpractice and alleged negligence, breach of contract, and breach of fiduciary duty. The two cases were consolidated, and the firm of O’Connor & Hannan was ultimately dismissed for lack of personal jurisdiction. Appellees moved for summary judgment, arguing that under the unsettled point of law doctrine, they were not liable for good faith errors in judgment on an uncertain point of law. They maintained that Miller could not have predicted the Eighth Circuit would adopt the statute of limitations that it did, and therefore, Miller was not negligent as a matter of law. Appellees further argued that appellants could not provide any proof of causation. They reasoned that since the federal district court held the actions were also barred by either the doctrine of laches or the August 30, 1972 agreement, even if appellants had won on the statute of limitations issue in federal court, they would have lost on either or both of these other issues. Ap-pellees asserted that since the district court had ruled on these issues, appellants were collaterally estopped from rearguing them in the malpractice action. The trial court agreed and granted summary judgment in favor of appellees. It applied the unsettled law doctrine, finding that because there was no settled law on which Miller could have relied, he was not negligent as a matter of law. The court also found that no causation existed, adopting ap-pellees’ argument in this regard. The trial court did not rule directly on the breach of contract claim until it considered attorneys’ fees, at which time it concluded that appellants had argued this claim in their response to appellees’ motion and had not prevailed. After denying appellants’ motion for reconsideration, the trial court entered a judgment in favor of appellees that included an award of $22,709.50 in attorneys’ fees. Appellants timely appealed. ISSUES 1. Was summary judgment properly granted on appellants’ negligence claim? 2. Was summary judgment properly granted on appellants’ breach of contract claim? 3. Were appellants collaterally estopped from relitigating the issue of causation? 4. Did the trial court err in awarding attorneys’ fees to appellees? DISCUSSION I. The Negligence Claim Appellants argue that in light of the age of the promissory notes, the uncertainty regarding the statute of limitations, and the instructions of the client, a reasonably knowledgeable and diligent attorney in Miller’s position would have promptly filed lawsuits to collect on the notes. In their view, the trial court misapplied the unsettled law doctrine because, under that court’s logic, Miller had no duty to file suit within any particular time period due to the uncertainty as to the statute of limitations. Appellants assert that precisely because of this uncertainty, a reasonably knowledgeable and diligent attorney would have taken the precaution of promptly filing suit, rather than assuming that a lengthy delay in initiating the action would make no difference. Appellees respond that Miller was not negligent because the statute of limitations vis-a-vis these notes was an unsettled point of law, and consequently, he had no reason to know it was about to expire. Appellees maintain that since Miller could not have anticipated the Eighth Circuit’s ruling on the applicable statute of limitations period, he cannot be held liable for his failure to timely file. In reviewing a grant of summary judgment, we view the facts and inferences therefrom in the light most favorable to the party against whom judgment was entered. AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 293, 848 P.2d 870, 872 (App. 1993). We must consider whether genuine issues of material fact exist and whether the trial court correctly applied the substantive law. Jordan v. Burgbacher, 180 Ariz. 221, 225, 883 P.2d 458, 462 (App.1994). In conducting our review, we determine “de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law.” Gonzalez v. Satrustegui 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App.1993). In the context of reviewing a summary judgment on a claim for attorney negligence, we inquire whether the plaintiff has established triable issues of fact regarding the following: (1) the existence of an attorney-client relationship which imposes a duty on the attorney to exercise that degree of skill, care, and knowledge commonly exercised by members of the profession; (2) a breach of that duty; (3) that such negligence was a proximate cause of resulting injury; and (4) the fact and extent of the injury. Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App.1986). In determining the presence or absence of the requisite skill, care, and knowledge in a particular case, we consider all the facts and circumstances presented. Sarti v. Udali 91 Ariz. 24, 26, 369 P.2d 92, 93 (1962). We are mindful that each case presents unique circumstances and “[i]t is exceedingly difficult, if not utterly impossible, to lay down any general rule which would control the measure of the liability in all cases.” Id. In connection with the questions of duty and breach, the trial court, in assessing the conduct of Miller, relied on the unsettled law doctrine in finding that appellants had failed as a matter of law to establish a prima facie case of attorney negligence. This doctrine holds that an attorney will not be held liable “for a mistake in a point of law that has not been settled by the highest court of the jurisdiction and upon which reasonable lawyers may differ.” Martin v. Burns, 102 Ariz. 341, 343, 429 P.2d 660, 662 (1967); see Molever v. Roush, 152 Ariz. 367, 372, 732 P.2d 1105, 1110 (App.1986). An unsettled point of law is one on which there is an “absence of precedent, authoritative analysis, and meaningful debate [which] leaves the attorney with his or her judgment as the only reliable tool to resolve the issue.” 2 R. Mallen & J. Smith, Legal Malpractice § 17.8 at 515 (4th ed. 1996). In urging affirmance of the trial court on this issue, appellees rely heavily on the holding in Martin. An explication of the facts in Martin is helpful in assessing the reach of that holding. The case began when Overson sued the Martins and obtained a default judgment against them. The Martins then hired attorneys Burns and Ferrin, who were successful in having the judgment set aside. However, Overson appealed to the supreme court and Burns and Ferrin failed to argue on this appeal that the order setting aside the judgment was nonappealable. Consequently, Overson obtained a reversal of the trial court’s ruling. The Martins, now repre sented by a new lawyer, then attempted to stay the mandate and challenge the supreme court’s decision on the basis that the order was nonappealable. The court, however, refused to hear the argument because the issue had been waived by failing to raise it in the initial appeal. The Martins then sued Burns and Ferrin, alleging that they had negligently failed to raise as an issue that the order setting aside the default judgment was nonappealable. The trial court ruled against the Martins and on appeal, the supreme court rejected the Martins’ argument, noting that prior to the consideration in the underlying case of the appealability of the order, there were no cases in which the question had been presented. The court observed: It is clear that a lawyer cannot predict accurately what courts may in the future decide on a point of law. Although the [lawyers] may have been incorrect in believing the order to be appealable, we cannot say that they were guilty of malpractice for this error. The law was not well settled at the time of the appeal that the order there involved was not appealable. 102 Ariz. at 343, 429 P.2d at 662 (citation omitted). Appellees attempt to bring their facts within this general rule from Martin by asserting that Miller could not have predicted that the Eighth Circuit would decide that a “one-of-a-kind” eighteen-year statute of limitations applied to these notes. However, appellees do not go beyond this mere assertion and explain why the Martin rule should exonerate Miller. As we read Martin, it stands only for the proposition that a lawyer cannot be found negligent based solely on a failure to have accurately predicted what the law may be in the future. Martin cannot be read to hold that in the face of an unsettled point of law, anything the lawyer may do, or omit to do, is shielded from liability. Rather, appellees’ efforts to immunize Miller on the basis of Martin illustrate the wisdom of the Sarti court’s observation that each ease presents unique circumstances and “[i]t is exceedingly difficult ... to lay down any general rule which would control the measure of the liability in all cases.” 91 Ariz. at 26, 369 P.2d at 93. Martin is not controlling on the facts presented in this case. Here, the research memorandum prepared for Miller indicated that an action on the promissory notes likely could be filed within a “reasonable time” but what constituted a “reasonable time” was uncertain. Given that information, we believe that a reasonably prudent attorney arguably would have made demands on the notes and filed actions on them shortly after being retained, rather than defer action, without explanation, for nearly sixteen months. Promptly making demands and filing actions would have put the client in the best position to argue that the actions were filed within a reasonable time and thereby avoid the bar of the statute of limitations. We conclude, therefore, that the trial court erred in ruling that Martin required a finding of non-liability as a matter of law. A more helpful precedent is Baird v. Pace, 156 Ariz. 418, 752 P.2d 507 (App.1987). The Baird court found persuasive, and adopted, the following principles from Smith v. Lewis, 13 Cal.3d 349, 118 Cal.Rptr. 621, 627, 530 P.2d 589, 595 (1975): If the law on a particular subject is doubtful or debatable, an attorney will not be held responsible for failing to anticipate the manner in which the uncertainty will be resolved____ But even with respect to an unsettled area of the law, we believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem. Baird, 156 Ariz. at 421-22, 752 P.2d at 510-11. In effect, Baird establishes that an attorney is not permitted to do nothing after completing reasonable research. Rather, a course of conduct must be elected based upon an assessment of the facts and law the attorney has at hand. In a given case, doing nothing may turn out to be the proper course of conduct to elect, but that election must be supported by evidence detailing the assessment process in which the attorney engaged to reach that conclusion. That evidence, in turn, is applied to the standard of care to determine whether the attorney measured up to his professional responsibility. See id. at 420, 752 P.2d at 509. With the Baird principles in mind, we now examine the evidence to determine whether a genuine issue of fact exists regarding Miller’s conduct and whether that conduct fell below the applicable standard of care. It was appellants’ burden to produce evidence that would establish the standard of care for an attorney in Miller’s position, as well as evidence that Miller fell below this standard. In this connection, appellants did present such evidence in the form of an affidavit of attorney Leroy Hofmann. In Hofmann’s opinion, a reasonably competent and diligent lawyer would have concluded that the statute of limitations was uncertain, and that delay in bringing suit could adversely affect his ability to collect on the notes. Hofmann also opined that delay could subject the noteholders to adverse situations such as loss of evidence or death of important witnesses. Hofmann concluded that Miller should have filed the suits soon after December 1989 or, at the very least, before the next anniversary of the due dates of the notes. Hoftnann’s affidavit was admissible on the issue of the standard of care. Baird, 156 Ariz. at 420, 752 P.2d at 509. (“Expert testimony is generally used to establish the standard of care by which the professional actions of an attorney are measured and to determine whether the attorney deviated from the proper standard.”). Moreover, in our opinion, the affidavit is adequate as pri-ma facie evidence of that standard and also adequate to create a fact question as to whether Miller deviated from it. By contrast, there was nothing forthcoming from appellees regarding what Miller did between the time the legal research was received and he was retained in December 1989, and the time the lawsuits were filed in March 1991. That is to say, appellees did not offer any evidence that Miller made “an informed decision as to a course of conduct based upon an intelligent assessment of the problem.” Id. at 421, 752 P.2d at 510. Appellees assert that the Hofmann affidavit is irrelevant and should be disregarded. They argue that the applicable standard of care in this malpractice action should be that of a Minnesota lawyer. Because Hofmann does not claim to have any expertise on the standard of care in Minnesota, appellees assert that his affidavit is insufficient to create a triable issue on this point. We disagree that such expertise is necessary. Miller is an Arizona attorney who was retained in Arizona by an Arizona corporation whose president is domiciled in Arizona. The attorney-client relationship was formed in Arizona and conducted primarily in this state. In these circumstances, the standard of care for an attorney is an Arizona standard, and this is the standard on which Hof-mann expressed an opinion. See Restatement (Second) Conflict of Laws § 145 (1971); Schwartz v. Schwartz, 103 Ariz. 562, 564-65, 447 P.2d 254, 256-57 (1968) (“The local law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort.”), overruled on other grounds, Fernandez v. Romo, 132 Ariz. 447, 452, 646 P.2d 878, 883 (1982). We conclude that the Hof-mann affidavit was relevant on the issue of Miller’s performance. We also conclude that the affidavit created a genuine issue of material fact regarding Miller’s adherence to the applicable standard of care that precluded summary judgment. See Orme School v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). We therefore reverse the trial court’s finding on this issue. II. Breach of Contract Appellants argue that they also have a valid claim for breach of contract. They assert that Miller’s failure to file lawsuits promptly after entering a retainer contract with Equity/Grinnell, and later being asked by Equity/Grinnell to file lawsuits without delay, provides “another wholly independent basis for Miller’s liability.” Appellees respond that because Miller did not agree to any express undertaking to file a lawsuit on a certain date, appellants do not have a breach of contract claim against them. In Lewin v. Miller Wagner & Co., Ltd., 151 Ariz. 29, 725 P.2d 736 (App.1986), an action involving accountant malpractice, we faced the question “whether the failure to comport with the legally imposed standard of care also constitutes a breach of the employment agreement.” Id. at 35, 725 P.2d at 742. In answering the question in the negative, we said: [W]here there is a contract for services which places the parties in such a relationship to each other that, in attempting to perform the promised service, a duty imposed by law as a result of the contractual relationship between the parties is violated through an act which incidentally prevents the performance of the contract, then the gravamen of the action is a breach of the legal duty, and not of the contract itself. Id. at 36, 725 P.2d at 743 (quoting Yeager v. Dunnavan, 26 Wash.2d 559, 174 P.2d 755, 757 (1946)). This rationale was approved by our supreme court in Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218 (1987), where the court held that “[ajbsent some special contractual agreement or undertaking between those in the professional relationship ... a professional malpractice action does not ‘arise’ from contract, but rather from tort.” Id. at 524, 747 P.2d at 1223. See also Environmental Liners, Inc. v. Ryley, Carlock & Applewhite, 187 Ariz. 379, 387, 930 P.2d 456, 464 (App.1996) (“When it is the gravamen of a legal malpractice claim that a lawyer has violated his implied duty to provide reasonably competent and ethical services, that claim sounds in tort, not in contract____”). We recognize that Lewin and Barmat are not precisely on point since they were concerned with distinguishing between contract and tort in the context of the statutory provision for attorneys’ fees in actions arising out of contract. Nevertheless, they are persuasively instructive on the basic question of whether an action in contract can even be maintained in a malpractice setting. Essentially they teach that even where there is an express contract between the professional and the client, an action for breach of that contract cannot be maintained if the contract merely requires generally that the professional render services. Only if there is a specific promise contained in the contract can the action sound in contract, and then only to the extent the claim is premised on the nonperformance of that promise. See Towns v. Frey, 149 Ariz. 599, 601, 721 P.2d 147, 149 (App.1986) (“[T]he contract relied upon must itself contain an undertaking to do the thing for the nonperformance of which the action is brought.”). See generally 1 R. Mallen & J. Smith, Legal Malpractice § 8.5 at 588-91 (no cause of action for breach of express contract unless suing for breach of a specific promise). In examining the contract between the firm and Equity/Grinnell, we find that paragraph 1(b) contains the only language describing the undertaking by the firm. It states, in relevant part, that the firm “will provide reasonable and necessary legal services to ‘Clients’ to include ... representing Clients or their clientele named as plaintiffs in litigation to recover assets which belong to them.” The agreement to provide “reasonable and necessary legal services” is nothing more than a general promise which encompasses the basic duty imposed by law to provide reasonably competent legal services. It clearly lacks the specificity required for a breach of contract action. The only specific promise made in the contract is that the firm will represent the clients in litigation, a promise that Miller fulfilled. That he may have done so in a negligent manner, in violation of the duty imposed on him by law to represent his client in accordance with the applicable standard of care, does not change the gravamen of the action from tort to contract. Lewin, 151 Ariz. at 36, 725 P.2d at 743. Appellants nevertheless argue that Grinnell’s subsequent written instructions to Miller, when coupled with the retainer contract, provide a basis for a contract action. Appellants offer an agency premise for this conclusion. However, they cite no authority and offer no analysis demonstrating why a failure to follow a client’s instructions, issued subsequent to and separate from a creation of the retainer contract, constitutes a breach of that contract. We note that the instructions here were not limited solely to the subject promissory notes, but included other cases covered by the retainer contract. The plea to avoid delay in filing suit referred generally to all cases covered by the contract. Moreover, no particular date by which to file suit on any of the cases was expressed. Most importantly, the letter itself did not constitute a contract because there was no assent to its contents by Miller. Viewed in this light, appellants’ argument is reduced to an assertion that two documents, the letter and the retainer agreement, neither of which contained a specific promise, can, when coupled together, constitute a contract to perform a specific promise. We fail to see any logic in this and agree with the trial court that there was no basis for appellants’ breach of contract claim. We therefore affirm the trial court’s finding on this issue. III. Collateral Estoppel and Causation Appellees urge as an alternate ground for affirmance that even assuming there is a triable issue of attorney negligence, appellants cannot prevail because they cannot prove causation. They argue that the district court had already ruled that the actions were barred by laches and the superseding effect of the August 30, 1972 agreement, and that this ruling collaterally estopped appellants from relitigating these issues in the malpractice litigation. Appellees posit that since appellants could not reargue these issues, they could not show that Miller’s conduct caused them any damage. Appellants respond by pointing out that the Eighth Circuit did not address these issues in its opinion, and thus there is no ruling from that court on which to base an estoppel argument. They also argue that at the district court level, the ruling on these issues was not essential to the judgment rendered by that court. Thus, appellants conclude, the district court’s ruling on laches and the effect of the subsequent agreement was not a final judgment for collateral estop-pel purposes. In establishing causation in a legal malpractice action, “the plaintiff must prove that but for the attorney’s negligence, he would have been successful in the prosecution or defense of the original suit.” Phillips, 152 Ariz. at 418, 733 P.2d at 303. To do so, the plaintiff must convince the trier of fact in the malpractice suit that a reasonable judge or jury would have decided in his favor in the underlying action but for the attorney’s negligence. Id. Appellants would necessarily fail in this endeavor if they are collaterally estopped from urging in this action that their suits in the Minnesota district court would not have been barred by laches or the 1972 agreement. If this is the ease, then lack of causation from Miller’s alleged negligence is established as a matter of law. We first consider which forum’s law to apply to this issue of collateral estoppel and, in so doing, we must consider the factors set forth in Schwartz v. Schwartz, 103 Ariz. at 564-65, 447 P.2d at 256-57. See Wendelken v. Superior Court, 137 Ariz. 455, 457, 671 P.2d 896, 898 (1983) (the Schwartz factors must be evaluated according to their relative importance with respect to the particular issue). As we have previously noted, the conduct alleged to have caused the injury occurred primarily in Arizona, appellees and two of the appellants are domiciled and/or incorporated in Arizona, and the relationship between appellants and appellees originated in Arizona and was conducted primarily in this state. On these factors, we conclude that it is appropriate to apply Arizona law in resolving this issue. In Arizona, the elements necessary to invoke collateral estoppel are: (1) the issue was actually litigated in a previous proceeding; (2) there was a full and fair opportunity to litigate the issue; (3) resolution of the issue was essential to the decision; (4) a valid and final decision on the merits was entered; and (5) there is a common identity of the parties. Gilbert v. Board of Medical Examiners, 155 Ariz. 169, 174, 745 P.2d 617, 622 (App.1987); J.W. Hancock Enter, v. Arizona State Registrar of Contractors, 142 Ariz. 400, 410, 690 P.2d 119, 129 (App.1984). We focus our inquiry on whether resolution of the laches and superseding agreement issues was essential to the rulings by the federal district court and the Eighth Circuit in the previous proceedings. The district court dismissed the note-collection actions on the ground that the statute of limitations for suit on the notes had run long before the actions were filed. After so concluding, the court noted that even if it had held that the notes indefinitely waived the statute of limitations, the claim would still be barred by laches. It also indicated that FPI’s rights under the notes were superseded by the 1972 agreement. Cleariy, the district court’s comments on the laches and superseding agreement issues were not necessary or essential to the judgment. At most, those issues were only incidentally decided and the court’s statements in connection with those issues had no bearing on the principal ground on which the court dismissed the lawsuit. As for the Eighth Circuit, we agree with appellants that since that court did not even mention these alternative bases for the district court’s decision, there is no ruling on which to base estoppel. Considered in this light, we conclude that appellees have failed to establish that resolution of these issues was essential to the prior rulings, and therefore appellants are not barred from litigating the laches and superseding agreement issues. Appellees also argue that assuming collateral estoppel is inapplicable, appellants nevertheless cannot prevail because a consideration of the laches and subsequent agreement defenses on their merits conclusively demonstrates their applicability, thus barring appellants’ claims as a matter of law. Appellees claim they presented these arguments to the trial court separately from their inclusion in the collateral estoppel argument. In our review of the record, however, we find that if this argument was raised, it is vague and unsupported by any evidence. Moreover, from an examination of Minnesota law, it appears that the laches argument would be unavailing. In Minnesota, when an action is governed by a statute of limitations, the doc trine of laches has no application. Arono-vitch v. Levy, 238 Minn. 237, 56 N.W.2d 570, 573 (1953). Because the Eighth Circuit found that a Minnesota statute of limitations governed to bar the underlying action, the doctrine of laches became irrelevant. As to the superseding agreement, we do not find in the record either the agreement or any evidence from which the trial court could have determined that the agreement superseded the promissory notes. Therefore, the trial court could not have been in a position to decide, as a matter of law, that the agreement terminated any rights under the notes. Upon remand, appellees may raise this question in a manner that will enable the court to determine the issue on the merits. On the record before us, the issue of causation remains an open one. Because the trial court determined lack of causation as a matter of law, and because our decision demonstrates that the foundation for that ruling was in error, we reverse the trial court on this issue. IV. Attorneys’ fees The trial court awarded fees to appellees as the prevailing party in a matter arising out of contract. Because we have affirmed the dismissal of the breach of contract claim, appellees are still the prevailing party on that claim. However, we have reversed the summary judgment on the negligence claim and the causation issue, and it appears that some portion of appellees’ fees awarded by the trial court may have been incurred in connection with these issues. The fee award must therefore be vacated but the trial court may, upon reconsideration following remand, make an award for that portion of appellees’ fees actually expended in litigating the breach of contract claim. See Environmental Liners, 187 Ariz. at 387, 930 P.2d at 464. CONCLUSION We affirm the dismissal of the breach of contract claim. We reverse the dismissal of the negligence claim and the trial court’s ruling on the issue of causation. We remand this matter to the trial court for further proceedings consistent with this opinion. VOSS and EHRLICH, JJ., concur. . Appellants’ complaints in their malpractice actions allege that the lawsuits to collect on the two notes were filed on March 29, 1991. The Eighth Circuit stated that the lawsuits were filed in April 1991. This discrepancy does not affect our disposition of this matter. . Notwithstanding the trial court’s somewhat belated disposition of the contract claim, the issue has been fully briefed and argued in this appeal. We find the record regarding this claim is sufficient, and we therefore address and dispose of it. With respect to the breach of fiduciary duty claim, it was apparently disposed of in the final judgment entered by the trial court which granted judgment for appellees against appellants without restricting the judgment to fewer than all appellants’ claims. Neither party has referred to this claim in this appeal and, consequently, we do not address it. . The engagement language of this paragraph also referred to such tasks as providing consultation and advice, preparation and review of agreements and documents, assisting and/or negotiating contracts, and consulting with other counsel when necessary. . Schwartz set forth these factors from the Restatement as important contacts to consider in determining relationship. These are: (a) the place where the injury occurred, (b) the place where the conduct occurred, (c) the domicile, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. . We note in passing that Minnesota law on this issue does not differ in any significant respect from Arizona law and would not yield a different result from the one we reach. See, e.g., Anderson v. Mikel Drilling Co., 257 Minn. 487, 102 N.W.2d 293, 297 (1960) (the doctrine of collateral estop-pel applies if the determination of the issue in question in the former action was necessary to the judgment, but does not apply to issues incidentally or collaterally decided); In re Trusts Created by Hormel, 504 N.W.2d 505, 509 (Minn. App.1993) ("Collateral estoppel precludes relit-igation of issues that are both identical to those issues already litigated by the parties in a prior action and necessary and essential to the resulting judgment.”). . Appellants presented to this court, as exhibit 10 in their appendix, a memorandum order of the federal district court in Minnesota concerning the collateral estoppel effect of its previous statements regarding laches and the superseding agreement. This order was issued after this appeal was filed; thus, it is not in the record on appeal. Appellees moved to strike the exhibit, and we delayed ruling on the motion until this appeal was considered on its merits. We now grant the motion striking the exhibit, not only because it was not presented to the trial court but also because we may not take judicial notice of a memorandum decision. Kriz v. Buckeye Petroleum Co., 145 Ariz. 374, 377 n. 3, 701 P.2d 1182, 1185 n. 3 (1985). . Minnesota law would apply to a resolution of the laches question since the issue would arise in the context of the basic action on the notes. See Catchpole v. Narramore, 102 Ariz. 248, 251, 428 P.2d 105, 108 (1967) ("It is the broad, unquestioned rule that the law of the place, lex loci, will govern as to matters going to the basic action.").

OPINION RYAN, Judge. Joe Saenz (“Saenz”) appeals from the trial court’s entry of summary judgment in favor of the Arizona State Compensation Fund (“the Fund”) on Saenz’s claims for bad faith, breach of contract, and punitive damages. Saenz claimed that the Fund acted in bad faith and breached the parties’ settlement agreement when it transmitted a portion of the settlement amount to the clerk of the superior court under an order of assignment. We hold that in complying with the order of assignment, the Fund was not required to wait thirty-one days before transmitting the funds and was in fact required to do so within ten days of the date it agreed to pay Saenz. See Arizona Revised Statutes Annotated (“A.R.S.”) § 12-2454.0HF). We also conclude that the Fund is entitled to have its attorneys’ fees request considered by the trial court. BACKGROUND Saenz was injured in 1991 while working for Pinnacle Commercial, which provided workers’ compensation insurance through the Fund. The Industrial Commission (“the Commission”) awarded Saenz permanent partial disability benefits of $379.46 per month. Saenz disputed this award and later settled with the Fund for a lump sum cash payment of $22,500. The Commission approved the settlement on March 16, 1994. At the time, Saenz was $17,880.36 in arrears on his court-ordered child support obligation. The Attorney General’s office consequently filed a request for an order of assignment to collect that amount from the $22,500 that the Fund owed Saenz. On March 25, 1994, the trial court issued a limited order of assignment directing the Fund to pay $17,880.35 to the Clerk of the Maricopa County Superior Court “no later than 10 days after this order becomes binding under A.R.S. § 12-2454.” To comply with the order of assignment, the Fund issued a $17,880.35 check to the clerk and distributed the remaining funds to Saenz. On April 12, 1994, Saenz filed a request to stop the order of assignment. The court denied the request. Based on the Fund’s failure to pay him the full settlement amount, Saenz filed this action against the Fund alleging bad faith and breach of contract, and seeking punitive damages. The trial court granted the Fund’s motion for summary judgment, but denied its request for attorneys’ fees. Saenz timely appealed, the Fund timely cross-appealed from the denial of attorneys’ fees, and we have jurisdiction. See A.R.S. § 12-2101(B). DISCUSSION To grant a motion for summary judgment, the trial court must find that no genuine issue of material fact exists and that the moving party is entitled to judgment on the merits as a matter of law. Orme School v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). We view the evidence in the light most favorable to the party against whom summary judgment was granted, and “we determine de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law.” Gonzalez v. Satrustegwi, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App. 1993). The interpretation of a statute is a question of law that we consider de novo. Barry v. Alberty, 173 Ariz. 387, 389, 843 P.2d 1279,1281 (App.1992). The Fund Properly Complied With the Order of Assignment The trial court’s order of assignment to the Fund provided: TO: STATE COMPENSATION FUND Holder of Benefits, Funds or Property Owed To: [Saenz] YOUR [sic] ARE HEREBY ORDERED to send $17,880.36 of that entitlement to the MARICOPA COUNTY CLERK OF THE SUPERIOR COURT.... You must send a certified check or money order for the above amount no later than 10 days after this order becomes binding under A.R.S. § 12-2454 [sic]. Saenz argues that under A.R.S. § 12-2454.01(F) the limited order of assignment did not become binding until thirty-one days after the Fund received it. He contends that the Fund improperly and in bad faith transferred funds to which he was entitled. Section 12-2454.01 provides in part: D. Following receipt of the petition or request, the clerk of the superior court, without notice to the person obligated to pay support or maintenance, shall order the person to make an assignment of a portion of the person’s earnings, income, entitlements or other monies without regard to source as is sufficient to pay the amount ordered by the court to the person or agency entitled to receive the child support or spousal maintenance. The order shall operate as an assignment and is binding upon any existing or future employer or other payor of the person ordered to pay support or spousal maintenance upon whom a copy of the order is served____ F. An assignment order made pursuant to this section does not become binding until thirty-one days after service of a copy of this subsection and subsections G, H, J, K, N, O and P of this section and two copies of the petition or request, order and notice upon an employer or other pay- or---- The employer or other payor shall withhold the amount specified in the assignment from the earnings, income, entitlements or other monies payable to the person obligated to support and shall transmit such amount to the clerk of the superior court or support payment clearinghouse within ten days after the date the employee is paid. (Emphases added). Saenz maintains that the first sentence of A.R.S. § 12-2451.01(F) precludes a payor from transmitting any funds until thirty-one days have elapsed. He asserts that the statute obligates the payor to pay the employee/obligor any amounts owed within thirty-one days, regardless of the existence of the order of assignment. Saenz’s interpretation of A.R.S. § 12-2451.01(F) is flawed in several respects. First, Saenz ignores A.R.S. § 12-2454.01(F)’s requirement that the payor withhold and transmit the amount specified in the order of assignment to the clerk of the court “within ten days after the date the employee is paid.” Saenz’s interpretation renders this language meaningless because under his approach the employee would be entitled to receive all funds paid during the thirty-one day period. “When statutory language gives rise to different interpretations, as it does here, we will adopt the interpretation that is most harmonious with the statutory scheme and legislative purpose.” State v. Pinto, 179 Ariz. 593, 596, 880 P.2d 1139, 1142 (App. 1994). In making such a decision, “we examine the policy behind the statute and the evil it seeks to remedy.” Id. We will also “construe provisions of a statute to harmonize rather than contradict one another ‘if sound reasons and good conscience allow.’ ” Ban v. Quigley, 168 Ariz. 196, 198, 812 P.2d 1014, 1016 (App.1990) (quoting City of Mesa v. Salt River Project Agric. Improvement & Power Dist., 92 Ariz. 91, 98, 373 P.2d 722, 727 (1962)). To give effect to A.R.S. § 12-2454.01(F)’s thirty-one day provision and its ten day provision, we conclude that upon receipt of an order of assignment, the payor must transmit the funds within ten days after the employee becomes entitled to payment. The language that provides that the order is binding after thirty-one days is intended as notice that the order may be challenged during those thirty-one days. This interpretation is supported by other language in A.R.S. § 12-2454.01. The statute contemplates that the payor will transmit the funds within ten days of payment. The court then has discretion to order that the funds not be disbursed pending a challenge to the order of assignment. A.R.S. § 12-2454.01(1) (“If the motion or request and notice of hearing are filed with the court by the person alleged to be in arrears before the date the order of assignment becomes binding on the employer or other pay- or, the court in its discretion may order the clerk of the court or support clearinghouse not to disburse any monies until after the hearing on the motion or request.”). This leaves the court, not the payor, to determine whether a valid order of assignment exists. It also protects potentially-owed funds from being dissipated during that thirty-one day period. Cf. Jackson v. Phoenixflight Productions, Inc., 145 Ariz. 242, 246, 700 P.2d 1342, 1346 (1985) (“the effect of a writ of garnishment is to impound any asset or property of defendant which is found in the garnishee’s hands pending resolution of the merits of the garnishor’s claim”). Thus, Saenz’s concern that the obligee will receive the funds and spend them despite the employee’s challenge to the order of assignment is unfounded. Saenz also argues that the notice provisions in A.R.S. § 12-2454.01(Q) support his position that the payor must wait thirty-one days before transmitting funds pursuant to an order of assignment. We disagree. A.R.S. § 12-2454.01(Q) sets out the form by which the clerk must notify an obligor of the order of assignment. This form merely restates the statutory time limits and the procedural rights of the obligor; it does not impact the substantive requirements of A.R.S § 12-2454.0KF). Finally, orders of assignment are intended to provide a means for collecting support obligations owed by the obligor. See Argonaut Ins. Co. v. Lyons, 159 Ariz. 267, 270, 766 P.2d 619, 622 (App.1988). Saenz’s reading of A.R.S. § 12-2454.01 would allow obligors to obtain any funds that are otherwise subject to assignment as long as they take possession of those funds within thirty-one days. Such an interpretation would undermine the statute’s intent and lead to absurd results, and we therefore reject that approach. See, e.g., Mail Boxes, etc., U.S.A. v. Industrial Comm’n, 181 Ariz. 119, 121-22, 888 P.2d 777, 779-80 (1995) (primary rule of statutory construction is to give effect to legislative intent and courts will interpret statutes to fulfill the legislature’s purpose and avoid senseless results). We hold that A.R.S. § 12-2454.01(F) allows the payor to transmit funds to the clerk of the court during the thirty-one days before the order of assignment becomes binding. Thus, despite a settlement agreement to pay Saenz $22,500, the Fund properly transmitted a portion of those funds to the clerk during the thirty-one days before the order of assignment became binding. Accordingly, reasonable minds could not find that the Fund breached the settlement contract or acted in bad faith. Therefore, summary judgment was properly granted. See Argonaut, 159 Ariz. at 271, 766 P.2d at 623 (insurer’s compliance with A.R.S. § 12-2454.01 does not violate duty of good faith and fair dealing towards insured). Because we hold that the Fund is not liable as a matter of law, we need not decide whether the Fund is immune from punitive damages under A.R.S. § 12-820.04. Attorneys’ Fees In denying the Fund’s request for attorneys’ fees, the trial court concluded that Pettinato v. Industrial Comm’n, 144 Ariz. 501, 698 P.2d 746 (App.1984), precluded such an award. The trial court denied attorneys’ fees in this case as a matter of law, and did not exercise its discretion under A.R.S. § 12-341.01. Therefore, we review this question of law de novo. See Radish v. Arizona State Land Dep’t, 177 Ariz. 322, 326, 868 P.2d 335, 339 (App.1993). The Fund argues that it is entitled to attorneys’ fees under A.R.S. § 12-341.01(A) because it was the successful party in an action arising out of contract. The Fund contends that this bad faith and breach of contract lawsuit arises out of both tort and contract. In Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 544, 647 P.2d 1127, 1142, cert, denied, -459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982), our supreme court held that attorneys’ fees are awardable under A.R.S. § 12-341.01 to the successful party in a bad faith action. Pettinato held that workers’ compensation cases do not arise out of a contract for the purposes of A.R.S. § 12-341.01(A). 144 Ariz. at 503-04, 698 P.2d at 748-49. In Pettinato, the employee suffered an industrial injury and the Commission awarded monthly benefits. The employer and its carrier protested and requested a hearing. After the hearing, the administrative law judge (“ALJ”) denied the request, finding that the employer and carrier’s position was baseless and frivolous. However, citing a lack of statutory authority, the ALJ denied the employee’s request for attorneys’ fees. On appeal, we rejected the employee’s claim that fees could be awarded under A.R.S. § 12-341.01(A) because the action arose out of the employment contract. Petti-nato, 144 Ariz. at 504, 698 P.2d at 749. We concluded that workers’ compensation “benefits are triggered by a work-related injury, not the underlying employment agreement,]” and that Sparks did not control. Id. Pettinato is distinguishable. The issue in Pettinato was the existence and extent of the work-related injury and the amount of the award. Here, Saenz raised claims of bad faith and breach of contract based on the Fund’s alleged breach of the settlement agreement. The amount or appropriateness of the underlying workers’ compensation benefits is a separate issue not before this court; nor are we asked to determine the extent or existence of an industrial injury. Thus, this action is not a true “workers’ compensation proceeding.” This case is similar to Sparks, a bad faith and breach of contract action against an insurer. Accordingly, Pettinato does not apply and attorneys’ fees are allowable under A.R.S. § 12-341.01(A) and Sparks. We therefore reverse the judgment denying the Fund’s request for attorneys’ fees and remand to the trial court for consideration of the Fund’s application for attorneys’ fees. CONCLUSION We affirm the trial court’s entry of summary judgment in favor of the Fund, reverse its denial of the Fund’s attorneys’ fees, and remand for consideration of the Fund’s attorneys’ fees application. GRANT, P.J., and TOCI, J., concur. . Now A.R.S. § 25-505(F) (Supp.1996), which now requires such funds to be transmitted within two days of payment. . We note that although the order stated that it was issued pursuant to A.R.S. § 12-2454, the applicable statute is A.R.S. § 12-2454.01, which applies to ex parte orders of assignment. Both parties argued on the basis of that section. In any event, the result is the same because A.R.S. § 12-2454(G) also requires the employer or other payor to transmit funds to the clerk within ten days after payment.

OPINION MARTONE, Justice. We are asked to decide whether the right to use a preexisting nonconforming use can be lost through nonuse, short of an intent to abandon. We hold that an intent to abandon is not required and that a preexisting nonconforming use can be lost where its nonuse is attributable, at least in part, to the property owner. I. Background Amer “Omar” Aldabbagh owns an adult entertainment business in Glendale that would violate Glendale’s zoning ordinance but for its status as a preexisting nonconforming use. The county attorney filed a nuisance abatement action against Aldabbagh under AR.S. § 12-801 et seq., alleging that his club was used “for the purpose of lewdness, assignation or prostitution,” § 12-802, and seeking an order of abatement closing the building for a period of one year under § 12-806(B)(4). The building was closed on May 28,1992, pursuant to a temporary restraining order. After an evidentiary hearing, the court found that the business was used on a continuing basis for the commission of sexual acts for money. It thus granted preliminary injunctive relief on June 17, 1992. On December 22,1993, the parties stipulated to the dismissal of the nuisance abatement action with prejudice because, having been closed for more than one year, the county attorney had obtained relief, with respect to closure, “to the fullest extent allowed by statute.” Stipulation for Dismissal, Dec. 22, 1993, at 2. Within one year of regaining possession of the premises, Aldabbagh leased them to David Benz, who applied for a license to operate an adult entertainment business. Glendale rejected the application, claiming that the property had lost its status as a lawful preexisting nonconforming use because it had not been so used for a period exceeding one year. Article IV, section 7(d) of Glendale’s zoning ordinance provides as follows: No building, structure or land in or on which a nonconforming use is abandoned or ceased to be carried on for a period exceeding one year or is superseded by a conforming use subsequent to the enactment of this ordinance shall again be devoted to any prohibited use---- Glendale then filed this action against Al-dabbagh and Benz, seeking a declaration that the preexisting nonconforming use was lost because the business had “ceased to be carried on for a period exceeding one year” within the meaning of its zoning ordinance. The trial court held that the loss of a preexisting nonconforming use requires a showing of intent to abandon. Because the parties stipulated that Aldabbagh did not intend to abandon his use of the club, the court ordered Glendale to issue a zoning clearance to Benz to allow the property to be used for adult entertainment. The court of appeals affirmed. City of Glendale v. Aldabbagh, 187 Ariz. 235, 928 P.2d 659 (App.1996). It held that a showing of the owner’s intent to abandon the use was necessary and that the discontinuance of the use for the period exceeding one year only created a rebuttable presumption of intent to abandon. This meant that the owner could rebut it by proving no intent to abandon. Judge Gerber wrote separately to express the view that intent to abandon was not required under the ordinance as long as the cessation of the nonconforming use by the property owner was voluntary. Because the issue is one of first impression, we granted review. Rule 23(c)(4), Ariz. R. Civ.App. P. II. Analysis The Glendale ordinance provides that a preexisting nonconforming use is lost if it is (1) abandoned, or (2) ceased to be carried on for a period exceeding one year. Glendale argues that while abandonment requires a showing of intent, the ordinance is in the disjunctive and any nonconforming use that is ceased to be carried on for a period of more than one year is lost, wholly apart from the intent or actions of the property owner. Aldabbagh and Benz argue that whatever the formulation of the city’s ordinance, a preexisting nonconforming use cannot be lost without a showing of intent to abandon. We reject Aldabbagh and Benz’s argument that an intent to abandon is essential to a finding of cessation. But we also reject Glendale’s argument that any nonuse for a period of more than one year, even for reasons unattributable to the property owner, constitutes cessation. Instead, we hold that to qualify as a nonconforming use that has “ceased to be carried on for a period exceeding one year,” the period of nonuse must be attributable at least in part to the property owner. Abandonment requires a subjective intent to give up the nonconforming use. See 4 Ziegler, Rathkopfs The Law of Zoning and Planning § 51B.02[1], at 51B-4 (4th ed.1991). To cease means “to come to an end” or “stop.” Webster’s Third New International Dictionary 358 (1976). Thus, if we were to look only at the ordinary meaning of words, we would conclude that there is nothing about the word “ceased” that requires an intent to abandon. But in the zoning context, the words “ceased” or “cessation” have taken on variations in meaning, influenced in part by legislative intent and concepts of equity. Intent has been injected into the cessation analysis in two ways. Some courts have concluded that “to discontinue,” “to cease,” or “to abandon” are synonymous and the party opposed to the use must prove an intent to abandon. See, e.g., Board of Zoning Adjustment for Lanett v. Boykin, 265 Ala. 504, 92 So.2d 906, 909 (1957); Pappas v. Zoning Board of Adjustment of Philadelphia, 527 Pa. 149, 589 A.2d 675, 677 (1991). Other courts, as did our court of appeals here, have construed cessation provisions to create a rebuttable presumption of intent to abandon. See, e.g., Ansley House, Inc. v. City of Atlanta, 260 Ga. 540, 397 S.E.2d 419, 421 (1990); Martin v. Beehan, 689 S.W.2d 29, 31 (Ky.App.1985). We know, in light of the breadth of Glendale’s argument, that it did not intend cessation to be synonymous with abandonment. Its ordinance is written in the disjunctive. If cessation were synonymous with abandonment, Glendale’s decision to include cessation in its ordinance would have no meaning. We thus conclude that cessation is not synonymous with abandonment. The second approach, that of interpreting a cessation provision to give rise to a presumption of intent to abandon, does respect the disjunctive nature of the ordinance and gives some substantive content to the term by shifting the burden of proof. But this approach does not give full effect to the purpose behind the cessation provision. Ordinances like Glendale’s that terminate a nonconforming use based upon cessation are intended to eliminate a factual inquiry into a property owner’s state of mind. See 4 Ziegler, Rathkopfs The Law of Zoning and Planning § 51B.02[2], at 51B-9. Imposing an intent to abandon requirement has been criticized as “not only ‘unfortunate but silly’ because it encourages property owners who have actually abandoned their nonconforming use to commit perjury, and because it not only disregards but supersedes the intention of the legislative body that designed the ordinance.” Hartley v. City of Colorado Springs, 764 P.2d 1216, 1223 (Colo.1988) (quoting 4A N. Williams & J. Taylor, American Land Planning Law § 115.06, at 193 (rev. ed.1986)). Legislative bodies that adopt a cessation provision are intending to go as far as they are constitutionally or statutorily able to go in extinguishing preexisting nonconforming uses. An intent to abandon analysis frustrates that purpose. The elimination of nonconforming uses is a fundamental problem in zoning. 4 E.C. Yokley, Zoning Law and Practice § 22-14, at 99 (4th ed.1979). Public policy encourages the elimination of nonconforming uses “primarily because they detract from the effectiveness of comprehensive land use regulation, often resulting in lower property values and blight.” Rotter v. Coconino County, 169 Ariz. 269, 272, 818 P.2d 704, 707 (1991). Consequently, “nonconforming uses are excepted from the general rule that zoning ordinances should be strictly construed in favor of the property owner.” Outdoor Systems, Inc. v. City of Mesa, 169 Ariz. 301, 307, 819 P.2d 44, 50 (1991). Because preexisting nonconforming uses are protected in Arizona by statute, A.R.S. § 9-462.02, we have never had to explore the outer contours of their protection under the constitution. Instead, we have just said that “nonconforming uses should be eliminated or reduced to conformity as quickly as possible within the limits of fairness and justice.” Rotter, 169 Ariz. at 272, 818 P.2d at 707. Our views on what is a just and fair construction of the cessation component of the Glendale ordinance are informed by what other courts have done under similar circumstances. Zoning ordinances terminating nonconforming uses when ceased for a specified period have been held to be equitable as long as the cessation of use is within the property owner’s control. In City of Minot v. Fisher, 212 N.W.2d 837, 841 (N.D.1973), the court held that a discontinuance statute presumed abandonment after the designated time period except “in situations where the cessation of use was beyond the control of the property owner.” Similarly, a Pennsylvania ordinance prohibiting the resumption of nonconforming uses that were discontinued for twelve months created a presumption of abandonment but terminated the use only if it was shown that the discontinuance “was not caused by circumstances beyond the landowners’ or occupiers’ control.” Spencer v. Zoning Hearing Bd. of Rockland Township, 111 Pa.Cmwlth. 111, 533 A.2d 497, 499 (1987). In Smith v. Board of Adjustment of Cedar Rapids, Iowa, 460 N.W.2d 854, 857 (Iowa 1990), the court held that an ordinance may dispense with subjective intent, yet concluded that the right to continue a nonconforming use was nevertheless dependent upon the actions of the property owner. In Ernst v. Johnson County, 522 N.W.2d 599, 604 (Iowa 1994), the same court concluded that “[p]eriods of discontinuance which are caused by circumstances beyond the control of a property owner will not cause the loss of a nonconforming use.” In construing a New Mexico discontinuance statute, the court found that proof of intent to abandon was unnecessary but that “mere temporary suspension of use resulting from causes beyond the owner’s control does not constitute an abandonment or discontinuance within the meaning of the Code.” Texas Nat’l Theatres, Inc. v. City of Albuquerque, 97 N.M. 282, 639 P.2d 569, 574 (1982). We have found nothing that would prohibit Glendale from enacting an ordinance that dispenses with the intent to abandon requirement. On the other hand, Glendale may not terminate a use just because one year passes. Some conduct within the control of and attributable to the property owner must be a cause of the condition justifying the termination. The termination of a nonconforming use does not require a decision by the property owner to discontinue the use. A nonconforming use may be lost through negligence or inadvertence. A use may also be lost if a person engages in civil or criminal misconduct that the property owner knows or should know could lead to involuntary closure and indeed does lead to closure. Glendale argues that the closing of Aldabbagh’s business for more than a year pursuant to the injunction is proof of conduct attributable to Aldabbagh sufficient to satisfy the cessation component of its ordinance. There is no question that Aldabbagh was properly restrained from using the club for a period in excess of one year. There is also no question that had the findings in support of granting the preliminary injunction been made final in the action, Aldabbagh would have been collaterally estopped from relitigating those facts. But the parties stipulated to the dismissal of the action before the facts were finally adjudicated. Thus, the findings in connection with the preliminary injunction have no preclusive effect and Glendale may not rely upon them in this action. Both Glendale and Aldabbagh are entitled to a trial on the merits of Glendale’s allegations of misconduct. If Glendale proves that Aldabbagh engaged in wrongdoing that led to the closure of the club, then Glendale will be entitled to a judgment declaring the invalidity of Aldabbagh’s nonconforming use. Such a trial will be governed by the rule we adopt here, under which Aldabbagh’s declaration of intent not to abandon his use will not save the use as long as Glendale proves that the period of nonuse is attributable to his unlawful conduct. III. Conclusion The judgment of the superior court is reversed, the opinion of the court of appeals is vacated, and the case is remanded to the superior court for further proceedings consistent with this opinion. ZLAKET, C.J., JONES, V.C.J., and FELDMAN and PELANDER, JJ., concur. MOELLER, J., did not participate in the determination of this matter. JOHN PE-LANDER, Judge, Court of Appeals, Division Two, was appointed to sit in his stead pursuant to Ariz. Const, art. VI, § 3. . Glendale also argues that Aldabbagh’s plea to criminal liquor charges and a civil settlement in a related RICO action may also be considered. But the criminal action and the RICO settlement had nothing to do with the closure of Alda-bbagh's club. There is thus no causative relationship between the conduct underlying these proceedings and the nonuse of the property. We therefore only consider Glendale’s claim in connection with the nuisance action.

OPINION FLÓREZ, Presiding Judge. Appellant Peter Tonnessen, a Colorado resident, contests the trial court’s exercise of subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act (UC-CJA), A.R.S. §§ 25-431 through 25-454. We publish our resolution of this issue pursuant to Fenn v. Fenn, 174 Ariz. 84, 847 P.2d 129 (App.1993), and resolve the other issues raised on appeal by memorandum decision. In November 1993, appellee commenced dissolution proceedings in Colorado, where she and appellant resided, stating in her petition that there were no children of the marriage and that she was not pregnant. After appellee moved to Arizona in February 1994, she discovered she was pregnant with twins. In March 1994, appellant amended his response in the Colorado action to request custody of the unborn children. The Colorado court entered stipulated temporary orders “vesting]” in appellee “custody of the infants upon their birth.” The twins, M. and L., were born in Arizona on September 2, 1994. In June 1995, appellee filed a custody complaint in Arizona and moved under the UC-CJA, in both Arizona and Colorado, to establish exclusive jurisdiction in Arizona. As grounds for the motions, appellee asserted that (1) Arizona is L.’s home state, (2) a Colorado decree determining custody would not be entitled to full faith and credit in Arizona under the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A, and (3) the parties could not confer subject matter jurisdiction on the Colorado court. After a telephone conference between the Colorado and Arizona judges, pursuant to current A.R.S. § 25-436(0, the Colorado judge agreed the Arizona court should assume jurisdiction. This order was affirmed on appeal. In re Marriage of Tonnessen, 937 P.2d 863 (Colo.App. 1996). The Arizona judge entered a contemporaneous order, stating, in relevant part, that he and the Colorado judge had agreed “that under the Uniform Child Custody Jurisdiction Act which is the law of both Arizona and Colorado, Arizona is the home state of the minor child, L., born September 2, 1994.” Appellant moved for reconsideration, which the court denied, finding “that the State of Colorado is not the home State of the children, that the State of Colorado was not acting in conformity with the UCCJA in assuming jurisdiction, and that the State of Colorado is not a more convenient forum.” Appellant now challenges these findings on appeal. “The UCCJA is a uniform act, adopted in some form by all 50 states, that establishes which court has subject matter jurisdiction in interstate child custody disputes.” J.D.S. v. Franks, 182 Ariz. 81, 86, 893 P.2d 732, 737 (1995). Jurisdiction under the UCCJA is a question of law reviewed de novo. Id. at 89, 893 P.2d at 740. Appellant asserts the court erred in finding that Arizona is L.’s home state. Section 25-432(5), A.R.S., defines “home state” as the state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. See also Colo.Rev.Stat. § 14-13-103(5). L. was born in Arizona and has never lived in any other state. Therefore, Arizona could properly exercise home state jurisdiction. The inquiry does not end here, however, because the Arizona proceeding was not filed first. Under such circumstances, the question is not whether Arizona had jurisdiction but whether Colorado exercised its jurisdiction in substantial conformity with the UCCJA Franks, 182 Ariz. at 91, 893 P.2d at 742. Colorado would be in substantial conformity if it met one of the jurisdictional requirements of the UCCJA; therefore, we must determine whether it met the requirements of Arizona’s version of § 3 of the UCCJA Id. at 90, 893 P.2d at 741. Arizona’s version of § 3, § 25-433, provides in pertinent part: A. The superior court of the state of Arizona is vested with jurisdiction to make a child custody determination by initial or modification decree if any of the following apply: 1. This state is the domicile or the home state of the child at the time of commencement of the proceeding or had been the child’s domicile or home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state. 2. It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships. See also Colo.Rev.Stat. § 14-13-104. Appellant argues that under § 25-433(A)(1), Colorado is L.’s home state “if in útero time is counted.” He cites no authority for this argument, however, and we reject it. The statute does not contemplate the in utero period of time in determining domicile or home state; it contemplates a postnatal child. Further, although in a different context, we have previously rejected an attempt to include an unborn child within a statutory definition of “child” when the legislature has not specifically included the term in its definition. See In re Pima County Juvenile Severance Action No. S-120171, 183 Ariz. 546, 905 P.2d 555 (App.1995); Reinesto v. Superior Court, 182 Ariz. 190, 894 P.2d 733 (App.1995). Appellant also claims that, under § 25-433(A)(2), significant connections exist for Colorado to exercise jurisdiction because of his presence there, as well as that of L.’s siblings, his children by a previous marriage. Subsection (A)(2) only applies, however, if the child and at least one contestant had a significant connection with Colorado; L. did not. See, e.g., Nistico v. District Court, 791 P.2d 1128, 1132 (Colo.1990) (argument that father’s relatives live in Colorado “is unpersuasive in light of the absence of evidence in the record that a strong relationship exists between Colorado and [the child], or [the child] and his relatives on [father’s] side of the family”). Appellant next argues that Arizona should have declined jurisdiction based on laches, waiver, or estoppel. These doctrines are irrelevant, however, when considering subject matter jurisdiction under the UC-CJA which only recognizes inconvenient forum or misconduct. A.R.S. §§ 25-437, 25-438. We review the court’s determination on these factors for abuse of discretion. Loper v. Superior Court, 126 Ariz. 14, 612 P.2d 65 (App.1980). We find none here. Unlike Loper, in which the Arizona court failed to first consult and cooperate with the Aaska court about the appropriate forum, the trial court here followed the statutory procedure and conferred with the Colorado court before determining'jurisdiction. We find no error and therefore affirm the trial court’s exercise of subject matter jurisdiction under the UCCJA. DRUKE, C.J., and ESPINOSA, J., concur. . At the time of the proceedings below, the UC-CJA was found at A.R.S. §§ 8-401 through 8-424. . A paternity test established that appellant is the biological father of only one of the twins, L. Thus, this appeal relates only to L. . On appeal, appellant concedes that, under the PKPA, "home state status is dispositive, even if there are significant connections of the child to [another] [s]tate.” See 28 U.S.C. § 1738A(c)(2)(B). See also J.D.S. v. Franks, 182 Ariz. 81, 893 P.2d 732 (1995). Because we find that Arizona has home state jurisdiction, we do not address jurisdiction under the PKPA. . The record does not contain a copy of appellant's response to the motions.

OPINION FELDMAN, Justice. Carlos Martinez (Plaintiff) was shot while running away from a group of youths who had gathered in the parking lot of the Wood-mar condominium complex. Plaintiff claims the Woodmar IV Condominium Homeowners Association (Defendant) is liable for failing to prevent the attack. The claim was dismissed by summary judgment and the court of appeals affirmed, holding Defendant had no duty to protect Plaintiff. Martinez v. Woodmar IV Condominiums Ass’n, 187 Ariz. 408, 930 P.2d 485 (App.1996). We granted Plaintiff’s petition for review because it presents an important issue of tort law and one not previously decided in Arizona. See Ariz.R.Civ.P. 21. We have jurisdiction under Ariz. Const, art. VI, § 5(3), and A.R.S. § 12-120.24. FACTS AND PROCEDURAL HISTORY Plaintiff was attending a graduation party at Defendant’s 152-unit condominium complex. Plaintiff was a guest of the tenant of a unit owner. After fifteen minutes at the party, he and two other party-goers returned to the complex’s parking lot to check on their cars. One of his friends found a group of local ruffians sitting in and on his car. A discussion ensued. As Plaintiff was running away from the altercation, he was shot in the back. The group scattered and no one has yet been apprehended and charged with the shooting. From the descriptions given by Plaintiff and his friends, the live-in security officer for the complex recognized the group as a gang of young people from a neighboring complex that often would gather in the parking lot to sell drugs and participate in other unsavory activities. Usually, the security guard would disperse them when he saw them. However, because of budget constraints, Defendant employed only one guard, who patrolled the complex for eight hours a day — usually between eight or nine in the evening and five or six in the morning. The shooting occurred about an hour before the guard came on duty. Plaintiff brought a damage action against Defendant, claiming it retained control of the parking lot and arguing that had Defendant hired a second guard for an earlier shift, the group would have been sent on its way before the altercation could have occurred. The trial court found no duty and granted Defendant’s motion for summary judgment, which the court of appeals affirmed. DISCUSSION A. Characterization of duty Apparently, the court of appeals saw this case as one of a landlord’s duty to protect Plaintiff from the tortious acts of a third party — the gang. The court found Plaintiff was only a social guest and therefore to be treated as a licensee. The court concluded Plaintiff could not recover under the rubric of the Restatement (Second) of Torts § 315 (1965), which says there is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the [defendant] and the third person which imposes a duty upon the [defendant] to control the third person’s conduct, or (b) a special relation exists between the [defendant] and the [plaintiff] which gives to the [plaintiff] a right of protection. Martinez, 187 Ariz. at 409, 930 P.2d at 486, citing Restatement § 315. The court then held, “Woodmar did not assume a duty to protect plaintiff, create or encourage his contact with the group in the parking lot, or act in any other way so as to justify imposing on Woodmar a duty to protect plaintiff____” Id. at 410, 930 P.2d at 487. We believe the court of appeals improperly characterized the case. Because no special relation of the type contemplated by Restatement § 315 existed between Plaintiff and Defendant or Defendant and the shooter, Defendant had no § 315 responsibility to control the shooter. This does not, however, free Defendant from liability for breach of any duty it might have had as the owner or possessor of land. That duty would exist because of Defendant’s status with respect to the land and consequent power to prevent harm by exercising control over its property. We agree with the court of appeals’ conclusion that Defendant had no § 315 responsibility or duty to control the shooter but do not believe Defendant was without a duty to use care to control its property. B. Defendant’s duty as possessor of common areas used by its owners and their guests We focus on Defendant’s status with relation to the land rather than the presence or absence of a special relationship between it and the tortfeasor or Plaintiff. We are concerned only with the question of whether Defendant, occupying a status similar to that of a landlord, had a duty of reasonable care to maintain the safety of its common areas because it had control over the land. In Petolicchio v. Santa Cruz County Fair & Rodeo Ass’n, we cited Frances T. v. Village Green Owners Ass’n, 42 Cal.3d 490, 229 Cal. Rptr. 456, 723 P.2d 573 (1986), for the proposition that in response to changed social conditions, courts may recognize a landowner’s duty of reasonable care to protect against another’s foreseeable criminal acts. 177 Ariz. 256, 261, 866 P.2d 1342,1347 (1994). In Frances T., the California court found a condominium association could be held liable as a landlord when it had actual knowledge of inadequate lighting and the hazardous condition it created, yet failed to remedy the condition that led to the plaintiff’s rape and robbery. In the present case, the court of appeals noted Frances T. and stated: “Assuming without deciding that Woodmar acted like a landlord in controlling the complex common areas, it might have had some duty to protect an owner of a condominium unit or the owner’s tenant.” Martinez, 187 Ariz. at 409, 930 P.2d at 486. However, the court distinguished between a condominium owner and a social guest/licensee, holding any duty owed to a unit owner would not extend to Plaintiff. Id. We believe this distinction is contrary to existing law when, as in this case, the danger causing the injury is located on property in the exclusive control of the landlord or condominium association. In Arizona, if there is no statute or case law on a particular subject, we have traditionally followed the Restatement of Laws. Restatement § 360 states: A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully wpon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreason able risk involved therein and could have made the condition safe. (Emphasis added.) Restatement (Second) of Property § 17.3 contains an almost identical provision. With respect to common areas, § 360 was followed in Dolezal v. Car-brey, 161 Ariz. 365, 778 P.2d 1261 (App.1989) (landlord’s duly of care extended to social guests of tenant). As was noted by Prosser & Keeton, landlord liability extends to areas where “the landlord has retained control over that aspect of the premises responsible for the injury.” W. Page Keeton, et al., Pros-ser and Keeton on the Law of Torts § 63, at 442 (5th ed.1984). We note Defendant in this case is not a lessor but a new type of possessor — a condominium association that has retained in its control common areas, such as the parking lot, that unit owners are entitled to use as appurtenant to their unit. We couple this with the introduction to Part Six of the Restatement (Second) of Property, which addresses the tort liability of landlords, stating: “In condominiums, the tort problem is the same as in any other case of the tort liability of the possessor of land to others.” The element of control, we believe, is essential to a finding of duty for the condominium association. Like a landlord who maintains control and liability for conditions in common areas, the condominium association controls all aspects of maintenance and security for the common areas and, most likely, forbids individual unit owners from taking on these chores. Thus, if the association owes no duty of care over the common areas of the property, no one does because no one else possesses the ability to cure defects in the common area. We do not believe the law recognizes such a lack of responsibility for safety. We therefore hold that with respect to common areas under its exclusive control, a condominium association has the same duties as a landlord. Frances T., 229 Cal. Rptr. at 461, 723 P.2d at 578. Thus, if we apply the rules of Restatement § 360 and Restatement (Second) of Property § 17.3, a condominium association has a duty not only to the unit owners and their tenants but also to those who are on the land with their consent and who will inevitably be expected to use common areas such as the parking lot. See Restatement § 360 cmt. d (the rule stated in § 360 applies to all common areas the lessee is expected to use, such as the yard). On this point, we believe the case law is quite clear and supports the Restatement view. Traditionally — Prosser & Keeton cites cases as early as 1880, e.g., Looney v. McLean, 129 Mass. 33 (1880)— common areas were considered under the control of the landlord, although open and necessary for use by tenants. This element of control creates an “affirmative obligation to exercise reasonable care to inspect and repair such parts of the premises for the protection of the lessee; and the duty extends also to members of the tenant’s family, his employees, his invitees, his guests, and others on the land in the right of the tenant ____” Prosser & Keeton § 63, at 440. This, of course, is the duty enumerated in Restatement § 360. We hold that Defendant’s duty with respect to the common areas, like that of a landlord, extends not only to the unit owners but also to those on the land with consent of the owners and their tenants. C. Duty with respect to the type of activity on the land The duty to maintain the safety of common areas applies not only to physical conditions on the land but, we believe, also to dangerous activities on the land. See Restatement § 344; Restatement (Second) of Property § 17.3. Thus, the condominium association, like a landlord and certain other land possessors, has a duty to maintain the common areas it controls in a safe condition and protect both owners and their guests from dangerous conditions or activities. [3] The court of appeals noted the Restatement rule but stated that “given plaintiff’s legal status [as a licensee], Woodmar only owed a duty to ‘refrain from knowingly letting him run upon a hidden peril or wantonly or wilfully causing him harm.’ ” Martinez, 187 Ariz. at 410, 930 P.2d at 487. The court found the gang hanging out in the parking lot was not a hidden danger, stating the “transient harm created by third persons who commit crimes” is distinguishable from a dangerous physical condition that a landowner must make safe. Id at 410, 930 P.2d at 487. Again, we disagree. See Robertson v. Sixpence Inns, 163 Ariz. 539, 544, 789 P.2d 1040,1045 (1990) (land possessor’s duty encompasses reasonable care to protect from or warn of danger of criminal attacks); Restatement § 344. The duty to those using the common areas with consent of the association, its unit owners, and their tenants, includes the use of reasonable care to prevent harm from criminal intrusion. See Restatement (Second) of Property § 17.3 cmt. 1: 1. Criminal Intrusion. For the purpose of this section, the unreasonable risk of harm from criminal intrusion constitutes a dangerous condition, so that where the landlord could by the exercise of reasonable care have discovered the unreasonable risk of criminal intrusion and could have made the condition safe from such unreasonable risk of criminal intrusion, he is subject to liability for physical harm caused by criminal intrusion if he had not taken the necessary precautions. As regards parts of the property retained the landlord’s control, common entranceways, fire escapes, halls and other approaches to the leased property are included. It is well recognized at present that failure to provide adequate lighting, door locks, or other security measures may subject certain landowners to liability for harm caused by a criminal attack on persons to whom the owner owes a duty of care. L leases an apartment to T in an area of increasing crime, providing secure common areas at the time of the lease. Subsequently L stops providing constant doorman service, constant desk attendants, and frequently leaves an entrance to the building unlocked at night. A criminal intruder assaults and robs T. L knows of the unreasonable risk and has failed to exercise reasonable care in making the common areas reasonably safe. L is subject to liability to T. Restatement (Second) of Property § 17.3, illus. 18. Logically, it cannot be otherwise. If one owes a duty of reasonable care to those on one’s land with permission, then the circumstances will dictate what is reasonable to protect others from foreseeable and preventable danger. The category of danger neither creates nor eradicates duty; it only indicates what conduct may be reasonable to fulfill the duty. As Prosser & Keeton acknowledges, since 1970 courts have recognized the landlord’s duty of care may include measures to protect others from criminal attacks, provided the attacks are reasonably foreseeable and preventable. Prosser & Keeton § 63, at 442-43 (citing Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C.Cir.1970) (owner of urban multiple-unit apartment dwelling had duty of reasonable care to protect tenants from foreseeable criminal assaults)); see also Robertson, 163 Ariz. at 544, 789 P.2d at 1045 (duty to independent contractor foreseeably attacked by criminal); Rosenbaum v. Security Pacific Corp., 43 Cal.App.4th 1084, 50 Cal.Rptr.2d 917 (1996); Frances T., 229 Cal.Rptr. at 475-76, 723 P.2d at 593; Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796, 798 (1993); Berry Property Management, Inc. v. Bliskey, 850 S.W.2d 644, 653 (Tex. 1993). Our case is the type in which courts are tempted to blur the concepts of duty and negligence. As we have previously indicated, we disapprove of attempts to equate the concepts of duty with specific details of conduct. Markowitz v. Arizona Parks Bd, 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985). Duty is an issue “of the relation between individuals which imposes upon one a legal obligation for the benefit of the other____” Id (quoting Coburn v. City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984)); Prosser & Keeton § 53, at 356. As the possessor of the common areas, Defendant had a relationship, similar to that of a landlord, with unit owners, their tenants, and persons on the land with consent and permission to use the common areas. That relationship required Defendant to use reasonable care to avoid causing the injury to those it permitted to use the property under its control. Markowitz, 146 Ariz. at 355, 706 P.2d at 367 (citing Restatement § 343 and quoting Prosser & Keeton § 61, at 419). The relationship between Defendant, its unit owners, and persons given permission to enter the common areas thus imposed an obligation on Defendant to take reasonable precautions for the latter’s safety. The type of foreseeable danger did not dictate the existence of duty but only the nature and extent of the conduct necessary to fulfill the duty. The true issue on summary judgment in this case, therefore, was not the question of duty but rather the question of negligence. We turn, then, to the specific facts to determine whether the trial judge correctly granted summary judgment. D. Propriety of summary judgment The trial judge should grant summary judgment if the facts supporting the negligence claim or defense “have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). Foreseeability of harm defines and limits the scope of conduct necessary to fulfill a land possessor’s duty and is the cornerstone of the cases involving a possessor’s duty to act reasonably to protect tenants and their guests from criminal attacks. Frances T., 229 Cal.Rptr. at 475-76, 723 P.2d at 593. If the possibility of some injury from Defendant’s acts or omissions was not foreseeable, Defendant was not negligent, and the trial judge properly granted summary judgment. When reviewing a decision to grant summary judgment, we review the facts in the light most favorable to the non-movant. Id In the instant case, we look at whether sufficient evidence of foreseeability and possible prevention was presented to create a genuine issue of material fact. In the response to the motion for summary judgment, there is evidence presented that Defendant knew of the incursion by gangs in the parking lot and other common areas of its property, knew the gangs engaged in drug dealing and other criminal activity, was warned by its own security guard of the need for 24r-hour patrols, had hired a second guard for a short period but terminated him because of expense considerations, and knew a neighboring condominium complex had hired off- duty Phoenix police officers to patrol. We therefore hold there is sufficient evidence from which a jury could find the danger foreseeable and Defendant negligent. On this record, also, we cannot say as a matter of law Defendant could not have taken reasonable measures that probably would have prevented the attack. It may'be that increased security patrols, better fencing, calls for police control, or other measures might have prevented injury. This question of causation in fact is, of course, one especially for the jury. Petefish v. Dawe, 137 Ariz. 593, 599, 672 P.2d 937, 943 (App.1982) (“[C]ausation in fact is a question of fact for the jury in all but rare instances.”). CONCLUSION The trial court and court of appeals erred in not recognizing the duty flowing from the relationship between _ Defendant, the unit owners, their tenants, and those using the common areas with permission. Although Defendant did not owe Plaintiff a duty of care based on Defendant’s special relationship to control the attacker in this case, with respect to the common areas under its control it had a duty like that of a landlord to maintain its property in a reasonably safe condition. This included the duty to take reasonable measures to protect against foreseeable activities creating danger, including criminal attacks, on the land it controlled. The record in this case provides sufficient evidence from which a jury could find negligence and causation. Accordingly, summary judgment was improper. Therefore, we vacate the court of appeals’ opinion, reverse the trial court’s grant of summary judgment, and remand to the trial court for proceedings consistent with this opinion. ZLAKET, C. J., JONES, V.C.J., and MOELLER and MARTONE, JJ., concur. . Plaintiff asked this court to abolish distinctions inherent' in the traditional triumvirate of trespasser, invitee, and licensee and follow California’s lead in Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968). On these particular facts, however, preservation of the traditional distinctions between entrants to the land is irrelevant and we see no reason to address this issue. . Throughout this opinion, the Restatement (Second) of Torts will be referred to as Restatement. . Arizona statutes define condominiums and condominium associations under A.R.S. § 33-1201 et seq.: “Condominium” means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of the separate portions. A.R.S. § 33-1202(10). The membership of the association at all times shall consist exclusively of all the unit own-ers____ The association shall be organized as a profit or nonprofit corporation or as an unincorporated association. A.R.S. § 33-1241. . § 17.3. Parts of Leased Property Retained in Landlord’s Control Which Tenant is Entitled to Use A landlord who leases a part of his property and retains in his own control any other part the tenant is entitled to use as appurtenant to the part leased to him, is subject to liability to his tenant and others lawfully upon the leased property with the consent of the tenant or a subtenant for physical harm caused by a dangerous condition upon that part of the leased property retained in the landlord's control, if the landlord by the exercise of reasonable care could have: (1) discovered the condition and the unreasonable risk involved therein; and (2) made the condition safe. . In Piccolo v. Woodall, 186 Ariz. 307, 921 P.2d 710 (App.1996), the court of appeals apparently recognized the principle that a landlord owed a duty of care to its tenant’s social guest, although it found no breach of duty. See also Dolezal, 161 Ariz. 365,778 P.2d 1261. . No other rule, we believe, makes sense. Suppose, for example, that a unit owner and his visiting brother were in the complex elevator and were injured when it malfunctioned because of the association’s negligence in repair or maintenance. It would be a strange rule that would allow the injured unit owner to recover for his injuries while the brother, a guest equally expected and invited to use the elevator, could not. It would be possible, of course, to argue that the guest would recover if the defect were hidden but not if it were obvious. Could the association then escape responsibility simply by posting a sign stating "caution, elevator may malfunction" ? We refuse to embrace such arcane and illogical distinctions. With respect to the common areas, the possessor — landlord or association — invites all tenants, owners and their guests, as users. See Restatement § 343. . We note that Restatement § 344 applies in this case. Condominium developments are businesses that could not be operated without common areas open to unit owners, their tenants, and their guests. Thus: A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. Restatement § 344.

OPINION HOWARD, Chief Judge. Appellant, the natural father of C., appeals from an order severing his parental relationship with the child. Appellee, C.’s natural mother, filed the petition for severance alleging that appellant was serving time in the Wilmot Training Facility, Arizona Department of Corrections, for one count of rape and three counts of sexual assault and that he was unfit to parent the minor child because his influence would seriously endanger the child’s physical, mental, moral or emotional health. Although the juvenile court’s decision antedated Santosky v. Kramer, - U.S. -, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the court applied the “clear and convincing evidence” standard mandated by Santosky. We therefore must decide whether there was substantial evidence to support the decision. In the Matter of the Appeal in Maricopa County, Juvenile Action No. JS-4130, 132 Ariz. 486, 647 P.2d 184 (1982). A.R.S. § 8-533(B), as amended, provides in pertinent part: “B. Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court may also consider the needs of the child: * * * sfs sf: # 4. That the parent is deprived of civil liberties due to the conviction of a felony if the felony of which such parent was convicted is of such nature as to prove the unfitness of such parent to have future custody and control of the child, or if the sentence of such parent is of such length that the child will be deprived of a normal home for a period of years.” The juvenile court expressly found that appellant had been sentenced to prison for a period of seven years as the result of convictions of sexual assault, attempted sexual assault, and kidnapping; that the victims of each offense were young women, unknown to appellant; that appellant showed little or no remorse or regret about the occurrences, other than the loss to him of his liberty and possibly of his son; that appellant’s sentence was of such length that the child would be deprived of a normal home for a period of years; that the natural parents were divorced from each other; that the child support provided by appellant was $2.00 per month; that appellant had never resided with the child; and that there had been no bonding between appellant and the child. The court concluded that the best interests of the child would be served by permitting the severance and that appellant had been deprived of his civil liberties due to his conviction of a felony of such a nature as to prove his unfitness as a parent to have the future custody and control of the minor child. The evidence reflects the following. Appellant and appellee were married on January 19, 1980, when he was 22 and she was 17. Several months later, appellant was arrested and charged with sexual assault, attempted sexual assault and kidnapping. The first charge arose out of an incident which occurred two nights before his marriage, and the other two charges out of an incident which occurred approximately two months after the marriage. Appellant pled guilty and was sentenced to a seven year term. On June 3, 1980, appellee filed a petition for dissolution of marriage, alleging that appellee was pregnant, was the proper person for custody of the child, and that appellant should have reasonable rights of visitation. At that time, appellant had been arrested and was incarcerated in the Pima County Jail. The child was born on August 5, 1980, and on January 16,1981, a contested hearing was held on the dissolution. The marriage was dissolved and custody of the child was awarded to appellee. The court expressly found the following: (1) that appellant was in the custody of the Department of Corrections and incarcerated in the Wilmot Road facility; (2) that because of this incarceration, he was unable to earn any significant income and therefore would be required to pay child support of only $2.00 per month until such time as his release; (3) that upon release and proper petition being filed, the court would review the matter of child support; (4) that visitation with the minor child by appellant would not seriously endanger the child’s physical, mental, moral or emotional health; and (5) that it was in the best interests of the child that he have visitation with appellant and appellant’s mother. The court very carefully spelled out the terms for appellant’s exercise of his visitation rights while in the custody of the Department of Corrections and reserved ruling upon the extent and conditions of appellant’s visitation rights when released. During the period of his incarceration, appellant was to have visitation with the child one time per month under conditions imposed by the Department of Corrections. Less than two months later, in March 1981, the petition for severance was filed. In July, appellee remarried. In November, the severance hearing was held and, with the exception of two months, appellant had visitation with the child every month from February through October. The counselor at the Department of Corrections who was assigned to appellant testified at length. He had had weekly ses sions with appellant for approximately two and a half months. According to him, he was impressed with the fact that appellant had admitted the offense of sexual assault. He was of the opinion that appellant was treatable through counseling and was responsive to it. When asked to explain why appellant stated to the juvenile judge that he was not a rapist, the counselor stated: “Because the actual behavior that — he did was like a fraction of his whole life, and that, by rights, I don’t think he should characterize himself as a rapist. He was guilty of the act of rape, and that he — I think he was accurate in saying that he doesn’t — he hadn’t in the past gone around raping, and he — his convictions at this point are that he’s not going to do that in the future, and he’s working hard at it. ****** A person who is a rapist has, usually has a history of — a developmental history from the time he’s very young, which include [sic] peeping into windows, dressing up in women’s clothes, and a lot of developmental sexual type experiences, and Michael didn’t fit that at all.” According to Mr. Lewis, the counselor, appellant was genuine in his concern for the child and had begun counseling with Dr. Ford, a private contractor, months before Lewis took over. Another counselor at the facility also testified as to appellant’s discussions with her about his feelings and his trying to understand his feelings. According to her, appellant sought her out when he needed someone to talk to primarily about his concern and love for his child. When asked whether she had an opinion as to whether appellant would pose a danger to his child, she responded that her “sense” was that he would not. She based that on her interactions with him, her feedback from Lewis and Ford, from housing people and her sense of his values. When asked on cross examination as to her opinion of whether appellant would sexually assault other women when released from prison, she stated: “I know the intensity of Michael’s commitment to understanding why he did what he did, and that what he did, he did, was reprehensible. He feels guilty about it, and that Michael is willing to accept— accepting the consequences for that. And the more so — Michael does not want to repeat that behavior. He wants to learn whatever it is that needs to be learned so that he discontinues that. So that’s — so that’s the — whatever he’s done is then dead. He won’t do that kind of thing anymore. That he’s productive and a positive citizen.” Appellant admitted that he had been using drugs for a period of five years prior to the offenses involved. On the evening of the sexual assault, he had indulged in drugs and also had been drinking extensively at a party planned for him by some of his friends prior to his marriage. Appellant had participated in the TASC treatment and had attended classes at Pima College with regard to drug and alcohol abuse. When asked whether he would abstain from drugs and alcohol upon release, he responded that he could not give a yes or no answer, but would try to avoid drugs and alcohol to the best of his ability. We disagree with appellant that the juvenile court was limited by principles of res judicata as to the dissolution court’s determination regarding appellant’s fitness for purposes of visitation while he was in the custody of the Department of Corrections. See Matter of Newman, 49 Or.App. 221, 619 P.2d 901 (1980). We also disagree that the evidence is insufficient to justify termination of appellant’s parental rights. We must accept the juvenile court’s findings in support of termination of the parent-child relationship unless they are clearly erroneous. Matter of Juvenile No. J-2255, 126 Ariz. 144, 613 P.2d 304 (App.1980). Two recent decisions have interpreted A.R.S. § 8-533(B)(4). In the Matter of Juvenile No. J-2255, supra; In the Matter of the Appeal in Pima County Juvenile Action Nos. S-826 and J-59015, 132 Ariz. 33, 643 P.2d 736 (1982). In the first case, the father had prior convictions of molesting young girls. In the later case, the father was in prison, having been convicted by a jury for rape and sodomy of a nine-year-old child. He had a prior conviction for child abuse and was serving a 20-year to life sentence. We pointed out that certain crimes support a rational inference of parental unfitness and proof of the conviction of such crimes creates a rebuttable presumption that the father is unfit to parent children. We agree that an act of sexual assault is “egregiously offensive.” In re Involuntary Termination of Parental Rights, 449 Pa. 543, 297 A.2d 117 (1972). Whether or not commission of such crime, in and of itself, permits a rational inference of unfitness is a question we need not decide in this case. We believe that the commission of a sexual assault on the eve of marriage and the attempted sexual assault two months after marriage demonstrate an inability or unwillingness to conform to accepted morality. The counseling appellant had undertaken in prison was of short duration and therefore the juvenile court could have rejected the opinion that appellant was treatable. Appellant testified at length about his concern for being able to be a father to his son. It would appear that the concern stemmed from the fact that he had lacked such a relationship and attributed many of his problems to this. He admitted longstanding substance abuse and the possibility that he might not be able to resist temptation when released. The juvenile judge had the benefit of appellant’s demeanor when he testified and could consider this when determining his fitness. Ornstead v. Kleba, 37 Ill.App.3d 163, 345 N.E.2d 714 (1976). Appellant’s search, via counseling, for an understanding of his deviant behavior may have been too short-lived and self-oriented to show rehabilitation or a strong potential. We recognize the vital importance to both parent and child of termination of their relationship. However, it is not the function of an appellate court to substitute its judgment for that of the juvenile court where, as here, there is substantial evidence to support the determination of unfitness. Affirmed. BIRDSALL and HATHAWAY, JJ., concur. . This is the amount ordered in the decree of dissolution. . The record is unclear as to whether the guilty plea was only as to the sexual assault.

OPINION CORCORAN, Judge. Danny E. Rybolt was charged in a seven-count indictment with four offenses against Victim One, including first degree burglary, armed robbery, sexual assault (intercourse), and sexual assault (oral sexual contact) and with three offenses against Victim Two, including first degree burglary, sexual assault (oral sexual contact) and sexual assault (intercourse). The offenses against Victim One occurred in the morning hours of March 5, 1980, and the offenses against Victim Two occurred in the evening hours of March 5, 1980. Prior to trial, the prosecutor filed an “Allegation of Prior or Repetitive Conviction.” Any convictions which were to arise from Counts 1 through 4 were charged as prior convictions for sentencing purposes as to Counts 5 through 7, and conversely, any convictions to arise from Counts 5 through 7 were charged as prior convictions for sentencing purposes as to Counts 1 through 4. At trial, the state suffered a directed verdict on the armed robbery charge (Count 2). Rybolt was found guilty on all other counts. Following entry of judgment of guilt, he was sentenced to a term of 28 years’ imprisonment on each count, all terms to run consecutively. We have jurisdiction of his appeal from the judgments of conviction and the sentences. A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033. We affirm the convictions and sentences. At trial, Victim One testified that she had returned home from taking her younger daughter to school at approximately 9:00 a. m. Appellant entered her home, held a knife to her back and threatened to stab her with it. He tied her in a spread-eagle fashion to the bed and sexually assaulted her by fondling her breasts and vagina, attempting to force a package of refrigerated cookie dough into her vagina, and twice forcing her to perform fellatio upon him. The victim described appellant’s manner as deliberate, calm and collected as he methodically committed the offenses. Before leaving, he told her, “Now you know what it’s like to be afraid.” On the same day at approximately 8:30 p. m. appellant forced his way into the home of Victim Two. He held a knife to her throat and back and tied her in a similar fashion while he threatened her. He cut her dress off with the knife. After fondling her breasts, he raped and sodomized her. and forced her to submit to cunnilingus and fellatio. While he was standing over the victim, holding a ketchup bottle in his hand and pouring ketchup on her back, her roommate arrived home. A scuffle occurred between them and appellant fled on foot. His fingerprints were found on a knife in one house and on a cup in the other house. Appellant first contends that the trial court impermissibly modified the indictment in its instructions to the jury. First, with regard to the oral sexual contact counts, he argues that the trial court did not require a jury finding of oral sexual contact by giving the following general instruction: In order to find the defendant guilty of sexual assault, there must be proof of the following things: One, the defendant intentionally or knowingly had oral contact with the vulva or anus of another person without the other person’s consent, or the defendant intentionally or knowingly penetrated the vulva or anus of another person with a part of his body or an object without the other person’s consent, or the defendant intentionally or knowingly masturbated the vulva of another person without the other person’s consent, or the defendant intentionally or knowingly required another person to have oral contact with his penis without the other person’s consent; and, two, the other person was not legally married to the defendant. His argument continues that since the trial judge did not require the jury to make any finding of oral sexual contact with either of the alleged victims, the jury could have returned its verdicts of guilt on those counts simply upon a finding of masturbation, or penetration with a part of the body or with an object. Thus, since neither masturbation nor penetration was charged in those counts, the trial court’s instructions broadened the charge. Secondly, he argues that the trial court’s instructions do not require the jury to make any specific findings as to the victim of any count or to judge separately the crimes involving Victim One from the crimes involving Victim Two. Therefore, he was convicted without a jury finding on the specific charges of each count. We do not agree with these contentions. We note that appellant made no objection to the sexual assault instruction or the forms of verdict. As a result, any error is not reversible unless it is fundamental. Rule 21.3(c), Rules of Criminal Procedure; State v. Dippre, 121 Ariz. 596, 592 P.2d 1252 (1979). The trial court’s instruction on sexual assault is based on the language of the statute. See A.R.S. § 13-1406. Most importantly, the court gave the jury eighteen verdict forms; the jury was authorized to find appellant not guilty on each of the six counts, guilty on each count as a non-dangerous offense, or guilty on each count as a dangerous offense. The verdicts returned by the jury clearly spell out their specific findings. The pertinent verdict forms returned by the jury are as follows: Count I: [Street address. Victim One] We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, do find the defendant guilty of Burglary, 1st degree, while armed with a knife, a dangerous offense. Count III: [Victim One] We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, do find the defendant guilty of Sexual Assault on [Victim One] by engaging in sexual intercourse while armed with a knife, a dangerous offense. Count IV: [Victim One] We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, do find the defendant guilty of Sexual Assault on [Victim One] by engaging in oral sexual contact, while armed with a knife, a dangerous offense. Count V: [Street address. Victim Two] We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, do find the defendant guilty of Burglary 1st degree, while armed with a knife, a dangerous offense. Count VI: [Victim Two] We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, do find the defendant guilty of Sexual Assault on [Victim Two] by engaging in oral sexual contact, while armed with a knife, a dangerous offense. Count VII: [Victim Two] We, the Jury, duly empaneled and sworn in the above entitled action, upon our oaths, do find the defendant guilty of Sexual Assault on [Victim Two] by engaging in sexual intercourse, while armed with a knife, a dangerous offense. Each form of verdict set forth the actual names of Victim One and Victim Two. In addition, the forms relating to Counts I and V, the burglary counts, set forth the street addresses of each one where the burglaries were alleged to have occurred. Rule 13.5(b), Rules of Criminal Procedure provides: Altering the Charges; Amendment to Conform to the Evidence. The preliminary hearing or grand jury indictment limits the trial to the specific charge or charges stated in the magistrate’s order or grand jury indictment. The charge may be amended only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment. The charging document shall be deemed amended to conform to the evidence adduced at any court proceeding. See also Ariz.Const. art. 2, § 30. The trial court may not amend an indictment to charge new and different “matters of substance” without the concurrence of the grand jury. State v. Kelly, 123 Ariz. 24, 26, 597 P.2d 177, 179 (1979). An accused may be convicted of an offense different from that with which he was originally charged only if it is included in the offense charged, or if he consents to an amendment of the charges. State v. Wilson, 126 Ariz. 348, 615 P.2d 645 (App.1980). Such consent cannot be inferred from a defendant’s silence. State v. Sanders, 115 Ariz. 289, 564 P.2d 1256 (App.1977). In the instant case, we are unable to see how the trial court could be held to have amended the original charges. The general instructions were on the elements of the crime, and followed the statutory language. The forms of verdict conformed to the original charges in the indictment. First, they did not permit a finding of guilt based on misconduct other than that charged. For this reason, authorities cited by appellant are distinguishable. Second, they did require the jury to separately judge the crimes against each individual victim. The instructions as a whole, read together with the forms of verdict, indicate that the original indictment was not amended. We find no error. Appellant next contends that under A.R.S. § 13-604, a subsequent offense cannot be utilized to enhance punishment for a prior offense; it was thus improper for the state to charge the evening offenses as pri- or convictions for enhancing punishment of the morning offenses; and while a conviction on another crime need not precede the crime being enhanced, the crime itself must have been committed before the crime being enhanced. Again, we do not agree. A.R.S. § 13-604(H) reads: Dangerous and repetitive offenders H. Convictions for two or more offenses not committed on the same occasion but consolidated for trial purposes, may, at the discretion of the state, be counted as prior convictions for purposes of this section. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section. The legislative comment to § 13-604(H) (formerly § 13-703(F) in the draft) states: The code seeks to strengthen the sanctions of the criminal justice “system” by isolating the dangerous and repetitive criminal for longer periods of incarceration. Arizona Criminal Code Commission, Arizona Revised Criminal Code § 703, at 96 (1975). However, to accept appellant’s argument would be to interpret § 13-604 as a recidivist statute, contrary to the interpretation of our supreme court: § 13-604 is not a true recidivist statute as that term is commonly understood. Recidivist statutes have usually been construed to mean that the defendant must have been convicted of the crime before the second crime was committed in order for the statute to apply. See Annotation, 24 A.L.R.2d 1247. The purpose of such recidivist statutes is to deter crime by serving as a warning to first offenders and to encourage their reformation. Our state legislature has clearly indicated that it was concerned not only with deterring the commission of crime, but also with punishing the persistent or repetitive offender regardless of when the defendant committed the other offense. State v. Hannah, 126 Ariz. 575, 576, 617 P.2d 527, 528 (1980) (emphasis added). Further, § 13-604(H), specifically authorizes the use of one conviction as a “prior” to enhance punishment on another conviction stemming from the same trial. Davis v. Superior Court, 126 Ariz. 568, 617 P.2d 520 (1980). The only limitation contained in § 13-604(H) is that “spree” offenses, i.e., those committed on the same occasion or substantially contemporaneously, may not be used as enhancement for each other. Finally, we note that it has always been proper to consider a defendant’s character, as evidenced by his conduct occurring between the date of the crime and the date of sentencing, in the sentencing process. See, e.g., State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980). Appellant’s argument is without merit. Appellant’s third argument is that where an offense contains its own provisions for a specific enhancement of punishment (i.e., for use of a deadly weapon), there can be no “multiple enhancement” by application of the general enhancement statute. In this case, appellant argues that he has been punished three times for the single act of committing a burglary while armed with a deadly weapon: one, under A.R.S. § 13-1508, the burglary was elevated from a class 3 to a class 2 felony; two, the sentencing judge imposed three times the authorized sentence under the general enhancement statute, A.R.S. § 13-604(G); and three, under A.R.S. § 13-702(D)(2) the use of the knife was an aggravating factor which resulted in both “extended and consecutive” sentences. He argues that this multiple punishment for a single act is violative of A.R.S. § 13-116 and the prohibition against double jeopardy. These specific arguments have already been rejected by our supreme court in State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980), and we have no authority to rule on them further. See also State v. Rodriguez, 126 Ariz. 104, 612 P.2d 1067 (App.1980). Appellant next contends that his convictions for burglary (two counts) and sexual assault (four counts) violate the double punishment statute, A.R.S. § 13-116. He argues that the common evidence of intent to commit sexual assault is an essential component of both the burglary and the sexual assault convictions. In reviewing this contention, the “identical elements” test must be applied to claimed violations of § 13-116: we must eliminate the facts supporting one charge and determine whether sufficient facts remain to support the other charge. State v. Cruz, 127 Ariz. 33, 617 P.2d 1149 (1980). In the instant case, the various states of mind which underlay appellant’s actions during the time of the offenses are discrete and distinguishable. First, when he entered or remained in the residences with the intent to commit theft or any felony (e.g., sexual assault) therein, he was responsible for the burglaries. A.R.S. § 13-1508. Second, when he thereafter intentionally or knowingly engaged in non-consensual sexual intercourse or oral sexual contact with the victims, he was responsible for sexual assault. A.R.S. § 13-1406. We find no violation of A.R.S. § 13-116. Finally, appellant contends that the trial court’s remark that the record could reflect the identification of the defendant was a comment on the evidence. During the testimony of Victim Two, the following transpired: Q The person that was with you and came into your house that day, is that person in the courtroom today? A Yes, he is. Q What’s he wearing? A He’s wearing a brown shirt open at the collar. I can’t see his pants. Q Where is he seated? A He’s seated next to Mr. Shaw, the defense attorney. MR. JONES: May the record reflect the identification, Your Honor? THE COURT: The record shall so reflect. Our state constitution provides: Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.... Ariz.Const. art. 6, § 27 (emphasis added). In order to comment on the evidence, “the court must express an opinion as to what the evidence proves.” State v. Barnes, 124 Ariz. 586, 590, 606 P.2d 802, 806 (1980) (emphasis in original). In the instant case, the trial court did not state any opinion, but simply stated for the record a fact which had occurred at trial, i.e., that the witness had referred to a particular individual in the courtroom. This was not a comment on the evidence. State v. McMurry, 20 Ariz.App. 415, 513 P.2d 953 (1973). Having found no error, the judgments of conviction and the sentences are affirmed. OGG, P. J., and FROEB, J., concur. . § 13-116. .Double punishment An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other, to the extent the constitution of the United States or of this state require.

OPINION HOWARD, Chief Judge. This is an appeal by the State of Arizona and Pima County from a superior court review of a property tax assessment. The issues are: (1) Whether this court has jurisdiction to hear a tax appeal; (2) whether amendment of the pleadings to add the department of revenue as a defendant was proper under Rule 15(c) and (3) whether the property was improperly classified and excessively valued. Plaintiffs-appellees, the Pesqueiras, have a large-scale ranching operation in Mexico. They export cattle to the United States at Sasabe, Arizona. Before 1977, they paid $1 per head of cattle to use the corrals and other facilities there. In 1977, they bought approximately 470 acres of land that includes these facilities. Although the Pes-queiras consider this land to be a part of their total ranching operation, it is not contiguous to any of their Mexican ranches. The Arizona acreage includes the town of Sasabe, which occupies only a fraction of the total area and which consists of a bar, grocery store, automobile parts store and several residences. The gross income from the rentals in town is from $30,000 to $40,-000. In fact, the Pesqueiras consider the town to be incidental to their intended use of the property, which is the shipping of cattle into the United States. They process 1,500 to 2,000 head of cattle through the Sasabe property each year. The facilities are also available to other Mexican ranchers, who pay $1.50 per head. About three percent of the cattle are not accepted by their buyers and are set free from the corrals to forage. In addition, seed bulls destined for Mexico are turned out to forage, each for a month or more. The Pesqueiras bought the property for $620,000. It had been classified “agricultural/grazing”, but in 1979, the assessor revoked the grazing classification and placed a full cash value of $545,380 on it. The property is split into two parcels for assessment purposes. One parcel contains both the town and the corrals. The Pes-queiras appealed to the county board of equalization and secured a reduction in the full cash value to $435,276. The classification was not changed. This was upheld by the state board of tax appeals. The Pes-queiras appealed to the superior court. That court ordered the reclassification of the land to agricultural/grazing and further reduced the full cash value to $134,922. The state and county appealed to this court. I The Pesqueiras raise a threshold jurisdictional issue, arguing that a tax appeal cannot be pursued beyond the superior court and citing Sarwark v. Thorneycroft, 123 Ariz. 1, 596 P.2d 1173 (App.1979), aff’d 123 Ariz. 23, 597 P.2d 9. In Sarwark, the court held that appellate jurisdiction is not created by the administrative review act where a statute prescribes procedures for review in the superior court but is silent as to review by a higher court. Appellate review in the instant case, however, proceeds under the tax appeal statutes themselves. A.R.S. § 42-152(G) directs the county board of supervisors or department of revenue to correct the tax rolls after the superior court has entered judgment “unless appeal is taken as provided under the rules of civil procedure.” The statute is not silent on the issue of appellate court jurisdiction and Sarwark therefore has no application. Appellants raise their own jurisdictional argument, asserting a lack of subject matter jurisdiction in the superior court. A.R.S. § 42-146 places a time limit on taxpayer appeals to the superior court; in the instant case, it is November 1 of the tax year. In addition, § 42-146 requires the appeal to be prosecuted as provided in A.R.S. § 42-151, the pertinent parts of which state: “C. The clerk of the superior court shall docket the appeal in the name of the appellant [taxpayer] as plaintiff and of the state or county ... and the department [of revenue] as defendants .... D. A copy of the notice of appeal shall be served on the defendant or defendants and the state board of tax appeals within ten days of filing, in the manner provided for service of process in the rules of civil procedure or by certified or registered mail. An affidavit showing such service shall be filed with the clerk of the court In their complaint to the superior court, the Pesqueiras named as defendants the Pima County Assessor, Pima County Treasurer and The Pima County Board of Supervisors and the Arizona State Board of Tax Appeals (Division I of the Department of Revenue). Affidavits of service of process show service on the board of tax appeals by service on the assistant attorney general in Tucson. The Pesqueiras realized their mistake and moved to amend the caption, which was granted beyond the November 1 filing deadline. Appellants argue, and we agree, that the procedures in the statute must be followed in order to confer subject matter jurisdiction on the court. Cf. Dassinger v. Oden, 124 Ariz. 551, 606 P.2d 41 (App.1979) (fulfilling statutory requirements for claims against the state is jurisdictional); Norcor of America v. Southern Arizona International Livestock Association, 122 Ariz. 542, 596 P.2d 377 (App.1979) (same). Thus, the taxpayer must name and serve the proper defendants. (The statute does not merely give docketing directions to the clerk, as the Pesqueiras suggest.) The filing deadline also is a jurisdictional condition. See Cochise County v. Wilcox, 14 Ariz. 234, 127 P. 758 (1912). Also, see Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962). We believe, though, that the superi- or court had jurisdiction by virtue of the amendment of the pleadings, which was properly allowed under Rule 15(c), Arizona Rules of Civil Procedure, 16 A.R.S. This rule permits a change of parties after a limitation period has passed if the new party had notice of the action and if it knew or should have known it would have been named but for a mistake. The department of revenue argues that these requirements have not been met. It points out that notice served on the tax appeals board cannot give notice to the department because there is a statutory “Chinese wall” between them. See A.R.S. § 42-141(A) (“There is established a state board of tax appeals as an independent agency which shall not in any way be subject to the supervision or control of the department of revenue.”) The department claims it cannot be brought into the case after November 1 by the “relation back” doctrine of Rule 15(c) and the case must be dismissed for failure to join the department. Rule 15(c) includes the following language which was added in a 1966 amendment: “Service of process in compliance with Rules 4(d)(7) or (8) satisfies the requirement of [the new party’s knowledge of the action and the mistake in not naming it] with respect to the state, county, municipal corporation or any agency or officer thereof to be brought into the action as a defendant.” Rule 4(d) states: “Service shall be made as follows: (7) Upon the state, by delivering a copy of the summons and of the complaint to the attorney general. (8) Upon a county or municipal corporation or other governmental subdivision of the state subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer, the secretary, clerk, or recording officer thereof.” The purpose of this amendment was to allow for relation back where a party has named the wrong person in an agency. State Bar Committee Note, Rule 15(c), Arizona Rules of Civil Procedure, 16 A.R.S. The amendment follows a similar one in the federal rules and was adopted mainly for conformity with the federal rules. Id. In 3 Moore’s Federal Practice ¶ 15.01[9], the reason for the amendment is explained. The author gives examples of complaints filed in district courts pursuant to the social security statutes. The claimants, who should have named the Secretary of Health, Education and Welfare, mistakenly named “the United States of America”, the department or a non-existent agency. All were denied the opportunity to amend after the statutory period of limitations and suffered dismissal for failure to follow the statutory procedures. Moore’s states: “The policy of the statute limiting the time for suit against the Secretary of HEW would not have been offended by allowing relation back in the situations described above. For the government was put on notice of the claim within the stated period ... by means of the initial delivery of process to a responsible government official .... In these circumstances, characterization of the amendment as a new proceeding is not responsive to the reality, but is merely question-begging; and to deny relation back is to defeat unjustly the claimant’s opportunity to prove his case.” Id. at 15-10 II Thus we proceed to the merits of this case. Was the property improperly classified and was the valuation excessive? The valuation and assessment approved by the board of equalization is presumptively correct, A.R.S. § 42-152, and the burden of proof is on the taxpayer to show that the board’s action was excessive. Navajo County v. Four Corners Pipe Line Company, 106 Ariz. 511, 479 P.2d 174 (1970); see A.R.S. § 42-152(C). The superior court may take evidence, A.R.S. § 42-152(B), but its function is to review the board’s action only on an abuse of discretion basis. Navajo County v. Four Corners Pipe Line Company, supra. In its guidelines for property valuation, the department of revenue has defined “agricultural property” as: “[T]hat property used for the purpose of agronomy, horticulture or animal husbandry: 1. In which the primary function is to produce an agricultural crop or commodity. 2. In which the primary investment is for the purpose of farming or stock ranching. 3. Capable of being utilized, solely from its agricultural ability, to sustain economic self-sufficiency and return a normal profit on the investment in comparison to the agricultural market .... ” Further guidelines include the following: “The primary use of the land shall be for the purpose of livestock grazing of large uncultivated acreages in order to utilize the natural forage crops thereon. A nonqualifying ranch is property used primarily for residential, pleasure, commercial, or recreational purposes and in which agricultural use is incidental.... ” These guidelines are binding on the court. See Department of Property Valuation v. Cookey, 23 Ariz.App. 470, 534 P.2d 278 (1975). In the instant case, the Pesqueiras’ land contains the town of Sasabe and corrals holding cattle to be fed and watered before delivery to buyers. In addition, the facilities are available to other cattlemen for a charge. These clearly are not agricultural uses as defined in the guidelines. Opposed to these uses is the grazing of about 40 head of cattle on the natural forage crops of the land. It does not appear, however, that the assessor was incorrect in viewing this grazing as incidental to the primary commercial use of this property. The Pesqueiras argue that the Sasabe property is an integral part of their overall ranching operations and should therefore be classified as agricultural. This does not follow. Furthermore, the Mexican ranches are not contiguous to the Arizona property. It is obvious that the subject parcel is a separate piece of land used primarily for commercial purposes, even though the cattle export operation ties in with the cattle-raising operation in Mexico. The trial court made a finding of fact that the full cash value of the property was $115,359. In its conclusions of law, it placed a full cash value of $134,922. Appellants claim that the Pesqueiras did not present any substantial evidence to rebut the valuation by the taxing agencies, as required by A.R.S. § 42-152. The Pes-queiras claim that a 1978 appraisal introduced by appellants shows a full cash value for the property of $143,281. This figure, however, is the 1977 tax assessor’s valuation. On page one of this same exhibit the current market value of the property is estimated to be $633,000. “Full cash value” and “market value” are synonymous. A.R.S. § 42-201. The only other evidence of value is the 1978 assessor’s valuation of $137,602. It is clear that the Pesqueiras have not presented any substantial evidence to rebut the presumption of correctness of the valuation placed on their property. The judgment of the superior court is reversed and the decision of the state board of tax appeals is reinstated. BIRDSALL, J., and J. RICHARD HANNAH, Superior Court Judge, concur. NOTE: Judge JAMES D. HATHAWAY having recused himself in this matter, Judge J. RICHARD HANNAH was called to sit in his stead and participate in the determination of this decision.

OPINION BROOKS, Judge. The decisive question on this appeal is whether certain conduct by a collection agency and the emotional distress resulting therefrom is sufficient to impose liability in an action for intentional infliction of emotional distress. The facts are as follows. In December of 1976, Leo and Phyllis Ellison had a muffler installed on their pickup truck at a Midas Muffler Shop. The bill was $178.50 and a check for that amount was issued to Midas by Phyllis Ellison. Midas attempted to cash the check but when it was returned for insufficient funds, Midas delivered it to Commercial Accounts Corporation for collection. In January of 1977, the Ellisons were notified by Commercial Accounts that the check had been returned. Immediately thereafter, Leo Ellison went to the office of Commercial Accounts and personally paid the $178.50 in cash. Ellison received a receipt for this transaction, but when he asked to have the check back he was told by Commercial Accounts that they did not have it. Ellison then drove to the Midas Muffler Shop and asked for the check back. After a search, the manager told Ellison that they did not have the check either. Thereafter, Commercial Accounts forwarded its own check payable to Midas in the sum of $110.10 representing the amount collected from the Ellisons minus its 40 percent collection fee. Midas, however, neglected to credit Ellisons’ account as having been paid. Several months later, Midas desired to change collection agencies and requested the return of all its uncollected accounts from Commercial. Included in the accounts returned by Commercial was the Ellisons’ check. The check and other accounts were then sent by Midas to its new collection agency, Kiva Collections. Unaware that the check had been paid, Kiva began telephoning the Ellisons in November of 1977 in an attempt to secure payment. Six phone calls were made over a three month period and, except for one call taken by Leo Ellison at approximately 9:15 p.m. one evening, all the rest were answered by Phyllis Ellison between 8:00 a.m. and 2:00 p.m. Although the substance of the telephone conversations varied from call to call, Phyllis Ellison testified at trial that the Kiva representative stated at various times and in a vicious and nasty manner that the Ellisons were “no better than lying thieves or sponges” and that Kiva was going to “sue your asses” or “sue the hell out of you.” It is undisputed that none of the phone calls were made by Midas Muffler. Phyllis Ellison also testified that the calls upset her and made her cry and that she had difficulty sleeping after some of the calls were made. A copy of the receipt which Leo Ellison had received from Commercial Accounts was ultimately sent by Ellisons to Kiva as proof of payment of the Midas bill. Kiva then notified Midas of the existence of the receipt but was instructed to continue collection efforts because the receipt was not identifiable on its face as being legitimate and Midas had no record of payment. Thereafter, Midas filed a complaint against the Ellisons alleging an unpaid account, whereupon the Ellisons filed a counterclaim against Midas and a third party complaint against Kiva for intentional infliction of emotional distress. Summary judgment was entered in favor of the Ellisons and against Midas on the original complaint. The remaining matters were tried to a jury which returned a verdict in favor of the Ellisons and against Midas and Kiva awarding $750.00 in compensatory damages and $1,750.00 for punitive damages. Thereafter, both Midas and Kiva moved for judgment notwithstanding the verdict. That motion was granted and this appeal by the Ellisons followed. We affirm. On appeal, the Ellisons argue that it is the duty of the trier of fact to determine whether the conduct complained of was sufficiently outrageous to support a claim of intentional infliction of emotional distress, and that the unanimous verdict demonstrates that a proper determination was made. Additionally, we recognize that when reviewing a judgment notwithstanding the verdict, the evidence should be viewed in the light most favorable to the party against whom the motion was made, and if there is any substantial evidence from which reasonable men could have found the ultimate facts to be such as to sustain the verdict, a motion for judgment notwithstanding the verdict should be denied. Adroit Supply Company v. Electric Mutual Liability Insurance Company, 112 Ariz. 385, 542 P.2d 810 (1975); Hurvitz v. Coburn, 117 Ariz. 300, 572 P.2d 128 (App. 1977). In an attempt to minimize wasted judicial resources on meritless claims for relief under this tort, however, “it becomes the duty of the court in the first instance, as society’s conscience, to determine whether the acts complained of can be considered as extreme and outrageous conduct in order to state a claim for relief.” Cluff v. Farmers Insurance Exchange, 10 Ariz.App. 560, 562, 460 P.2d 666, 668 (1969). “[I]t is for the court to determine whether on the evidence severe emotional distress can be found.” Venerias v. Johnson, supra. 127 Ariz. at 500, 622 P.2d at 59. Accordingly, the court is required to make an initial determination of the sufficiency of the plaintiff’s case. Davis v. First National Bank of Arizona, 124 Ariz. 458, 605 P.2d 37 (App. 1979); Jackson v. Peoples Federal Credit Union, 25 Wash. App. 81, 604 P.2d 1025 (1979); Dawson v. Associates Financial Services Company of Kansas, Inc., 215 Kan. 814, 529 P.2d 104 (1974); Restatement (Second) of Torts, § 46 Comment h (1965). Arizona has accepted the test for intentional infliction of emotional distress as set forth in the Restatement (Second) of Torts, § 46 (1965). Savage v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954); Davis v. First National Bank of Arizona, supra; Cluff v. Farmers Insurance Exchange, supra. The Restatement § 46 states in pertinent part: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Although both parties have cited cases from this jurisdiction which have considered intentional infliction of emotional distress, that tort as it relates to the debtor-creditor situation appears to be a question of first impression in Arizona. Also, because the terms “outrageous conduct” and “severe emotional distress” are not capable of precise legal definition, it follows that a case by case analysis is required. Therefore, an examination of decisions from other jurisdictions which have considered the precise question before us is instructive. At the outset, it is necessary to recognize that a proper determination of the issue here presented involves a balancing of the interests of a creditor in collecting a debt against the interest of the debtor to be free from the infliction of severe emotional distress or the unreasonable invasion of privacy. “We must be certain that the outrage theory will not emasculate legitimate creditor remedies on the one hand, or open the floodgates of litigation on the other.” Jackson v. Peoples Federal Credit Union, supra, 604 P.2d at 1028. Therefore, the courts have uniformly insisted that the creditor’s conduct be clearly and obviously excessive in order to sustain a cause of action; “liability usually has rested on a prolonged course of hounding by a variety of extreme methods.” W. Prosser, The Law of Torts § 12 at 57 (4th ed. 1971). For example, in Watson v. Franklin Finance, 540 S.W.2d 186 (Mo. App. 1976), it was alleged that during a 16 month period, the creditor repeatedly wrote, phoned, and visited the debtor, threatening to seize the debtor’s home and sell it if payment on the debt was not made. The court determined that a cause of action for emotional distress had been stated. Similarly, in Moore v. Savage, 359 S.W.2d 95 (Tex. Civ. App. 1962), the evidence showed that loan company employees called the plaintiff’s business, a pre-school nursery, 15 times per day for three months. Personal visits were made to plaintiff’s business where demand for payment was made, and the phone calls to the nursery stopped only when plaintiff complained to the police. The court upheld a jury verdict in plaintiff’s favor for emotional distress. Stressing the long duration of the creditor’s course of conduct and the volume of the threatening letters and bills, the court in Moorehead v. J.C. Penney Company, Inc., 555 S.W.2d 713 (Tenn. 1977) held that a claim for emotional distress had been stated where it was alleged that even though plaintiffs had notified defendants of an error in billing, the defendant repeatedly made telephone calls and sent approximately 42 threatening letters over a period of more than one year, and that during the course of this conduct defendant threatened to deliberately injure the plaintiffs’ credit reputation and job security. Other analogous decisions can be found in the debtor-creditor context where the tort involved was invasion of the debtor’s right of privacy. The similarity between intentional infliction of emotional distress and invasion of privacy has been recognized. See Davis v. First National Bank of Arizona, supra. “Protection against unreasonable invasion of privacy is also the main consideration where the tort of outrage is asserted against a creditor for his debt collection activities.” Jackson v. Peoples Federal Credit Union, supra, 604 P.2d at 1028. A good example of such unreasonable creditor conduct is found in Housh v. Peth, 99 Ohio App. at 485, 135 N.E.2d 440 (1955), aff’d 165 Ohio St. 35, 133 N.E.2d 340 (1956). In that case, numerous calls were made by the debt collector every day for a three week period, some of which were late at night. Calls were also made to plaintiff’s superiors at the school where plaintiff was employed such that at one time plaintiff was called from her classroom three times within 15 minutes. The calls threatened loss of employment and the repeated nature of the calls caused plaintiff to lose a roomer at her boarding house. The court determined that there was sufficient evidence to support plaintiff’s judgment obtained in an action for invasion of privacy. See also Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961) and cases collected therein which have examined debtor harassment within the context of invasion of privacy. A careful review of the pertinent decisions persuades us that the conduct here involved was not so extreme and outrageous as to permit recovery. Certainly six phone calls by Kiva over a period of three months cannot be considered excessive nor can we say that the language used by Kiva’s employees was so atrocious as to be utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Restatement (Second) of Torts § 46 Comment d (1965). As stated in Slocum v. Food Fair Stores of Florida, 100 So.2d 396, 398 (Fla. 1958), “[t]here is no inclination to include all instances of mere vulgarities, obviously intended as meaningless abusive expressions.” Furthermore, we find lacking in this particular factual situation a second element required for intentional infliction of emotional distress. The courts have also uni formly insisted that the emotional distress suffered be severe. “[A] line of demarcation should be drawn between conduct likely to cause mere ‘emotional distress’ and that causing ‘severe emotional distress’ .... ” Slocum v. Food Fair Stores of Florida, supra, 100 So.2d at 397; Jackson v. Peoples Federal Credit Union, supra; Restatement (Second) of Torts § 46 Comment j (1965). Examples of emotional distress considered severe by the courts are as follows: Moore v. Savage, supra, (plaintiff suffered heart attack and nervous exhaustion); Kirby v. Jules Chain Stores Corporation, 210 N.C. 808, 188 S.E. 625 (1936) (fright caused by collecting agent’s conduct resulted in premature birth of dead baby); Lyons v. Zale Jewelry Company, 246 Miss. 139, 150 So.2d 154 (1963) (conduct caused plaintiff to be found writhing in bed in a state of extreme shock and hysteria. She suffered severe nervousness and headaches resulting in such a breakdown of her physical and emotional well being that she was unable thereafter to perform her job.); Turman v. Central Billing Bureau, Inc., 279 Or. 443, 568 P.2d 1382 (1977) (plaintiff suffered severe headaches and stress and her state of anxiety ultimately required hospitalization); Dawson v. Associates Financial Services Company of Kansas, Inc., supra, (telephone calls to plaintiff who suffered from multiple sclerosis caused stress and a relapse resulting in a permanent impairment of her condition). Other illustrative decisions can be found at 87 A.L.R.3d 201; Greenfield, Coercive Collection Tactics — An Analysis of the Interests and the Remedies, 1972 Wash. U.L.Q. 1; Prosser, Insult and Outrage 44 Cal. L. Rev. 40 (1956). At the trial in the case before us, Phyllis Ellison testified that the telephone calls upset her and made her cry, and that she had difficulty sleeping on several occasions after the calls were made. We cannot say that the emotional distress here involved was sufficiently severe to warrant the imposition of liability for intentional infliction of emotional distress. “It is only where it is extreme that the liability arises. Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people.” Restatement (Second) of Torts § 46 Comment j (1965). We find that the conduct complained of and the emotional distress resulting therefrom were not sufficient as a matter of law to sustain a claim for intentional infliction of emotional distress. The judgment of the trial court is thereby affirmed. We next consider appellee Midas Muffler’s contention that this appeal with respect to Midas is frivolous, and that we should impose sanctions on appellants and their attorney pursuant to Rule 25, Rules of Civil Appellate Procedure, 17A A.R.S. As is pointed out by Midas in its answering brief, in the absence of special circumstances a collection agency is an independent contractor with respect to the creditor whose claim is sought to be collected by the agency. Therefore, under the general principles applicable to independent contractors, the creditor is not responsible for the torts of the collection agency or its employees. See 15A Am. Jur. 2d Collection and Credit Agencies, § 2 (1976). In the opening brief, counsel for appellants makes absolutely no attempt whatsoever to show why Midas should be liable for the collection methods of Kiva. In the argument section of the opening brief, Midas’ alleged liability is asserted only in a conclusionary fashion, such as the following: The allegations of the complaint and the evidence presented to the trier of fact were sufficient for the jury to determine whether the conduct of Kiva Collections and Midas Muffler was extreme and outrageous. Counsel for appellants did not even file a reply brief to rebut the points urged in Midas’ answering brief. Assuming arguen-do that counsel’s clients insisted that an appeal be taken against Midas as well as Kiva, counsel’s attempt to show liability on behalf of Midas did not even come close. Frivolous appeal damages in the amount of $500.00 are therefore awarded against coun sel for appellants, Michael St. George, and in favor of Midas Muffler Shop. JACOBSON and GRANT, JJ., concur. . There are four elements which must coincide to impose liability for intentional infliction of emotional distress: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress, and (4) The emotional distress must be severe.' Venerias v. Johnson, 127 Ariz. 496, 499, 622 P.2d 55, 58 (App. 1980). . Rule 25. Sanctions for Delay or Other Infractions Where the appeal is frivolous or taken solely for the purpose of delay, or where a motion is frivolous or filed solely for the purpose of delay, or where any party has been guilty of an unreasonable infraction of these rules, the appellate court may impose upon the offending attorneys or parties such reasonable penalties or damages (including contempt, withholding or imposing of costs, or imposing of attorney’s fees) as the circumstances of the case and the discouragement of like conduct in the future may require. (Emphasis added.)

FELDMAN, Justice. Transamerica appeals from the judgment of the trial court which awarded the plaintiff, Zuckerman, damages on a fire loss claim. We assumed jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S. On July 27, 1975, a fire substantially destroyed property belonging to the plaintiff, Zuckerman. Transamerica had covered Zuckerman for fire loss by a policy which contained a clause requiring that any action for recovery on a claim insured under the policy must be commenced within twelve months “after inception of the loss.” Within the one-year period, Zuckerman consulted counsel and also negotiated directly with Transamerica’s adjuster. The adjuster informed Zuckerman that the loss was covered and that the company would pay the claim. Subsequently, it was agreed that the payment would be equal to the lowest of the three damage estimates that were to be obtained. The lowest estimate was $9,417.87. Accordingly, Zuckerman informed his attorney that he had reached a settlement agreement with the adjuster. This information was confirmed by the adjuster, who told the attorney that a draft would be forwarded for an amount equal to the lowest estimate. A dispute then arose. Because Zucker-man did not intend to use the insurance proceeds to rebuild, the company took the position that the policy permitted it to reduce the settlement to “actual cash value,” subject to a depreciation factor and excluding contractor’s overhead and profit, sales tax, building permit fees and like items. By letter of October 14, 1975, the company tendered a draft in the amount of $6,247.76 and notified Zuckerman’s lawyer that “[i]n the event the building is repaired at some -future date, we will at that time, after inspection of same, issue our draft for the difference.... ” It also indicated that Zuckerman had failed to file a proof of loss form as required by the policy and gave Zuckerman fifteen days from that date in which to comply with this requirement. Zuckerman’s lawyer refused the tender, demanding the full $9,417.87 settlement. On December 15, 1975, the company advised Zuckerman that it had received a document purporting to be a proof of loss from his attorney and claimed that the document was “DEFICIENT” in nine separate respects. Transamerica stated that the proof of loss form was “hereby rejected and refused as compliance with contract terms, and is enclosed herein for your disposal.” Therefore, Transamerica concluded, it “neither admits nor denies liability for any loss which may have occurred.... ” Nevertheless, Transamerica concluded its letter of December 15 by informing Zuckerman that “[i]n the interest of fairness, we will maintain [sic] to honor our offer ... in the amount of [$6,247.76].... ” Between December 15,1975 and the summer of 1976, Zuckerman’s attorney and the adjuster had several conversations regarding settlement of the claim. The adjuster’s position was that the insurer was not required to pay the entire amount of the agreed settlement if Zuckerman was not going to rebuild. The lawyer stood on the settlement amount. Finally, on September 30, 1976, approximately three months after expiration of the one-year policy limitation period, Zuckerman filed an action against Transamerica. The action was not brought on the settlement agreement, but rather for recovery of the loss under the policy coverage. After trial to the court, judgment was awarded to Zuckerman in the amount of $11,960. Transamerica appeals, and claims that the action was barred by the one-year limitation provision contained in the policy. Nevertheless, Transamerica acknowledges that it is willing to pay its insured the sum of $6,247.76, which was previously tendered in its offer of October 14, 1975. Since the case was tried without a jury and neither party requested findings of fact or conclusions of law, we must sustain the judgment below on any legal theory which is supported by the evidence. Nicholas v. Giles, 102 Ariz. 130, 133, 426 P.2d 398, 401 (1967). Zuckerman claims that the judgment can be supported on the theory that the trial court found that Transamerica was estopped to raise the defense of failure to file within the one-year period required by the policy. This estoppel, Zuckerman claims, was based upon the continued negotiations of the parties with regard to whether Transamerica would pay the agreed settlement and the adjuster’s statement to Zuckerman’s lawyer that “you don’t have to end up in court.” Transamerica responds to this argument by pointing out that after unilaterally reducing the settlement it had clearly told the lawyer that it would never pay more than $6,247.76 and that the lawyer knew he would have to “end up in court” unless his client was willing to take the offer. In fact, “negotiations” were at a stalemate. Transamerica never offered or negotiated toward payment of more than the offer of $6,247.76. Policy provisions such as that in question here have been held enforceable in Arizona. Wells-Stewart Construction Co., Inc. v. General Insurance Company of America, 10 Ariz.App. 590, 594, 461 P.2d 98, 102 (1969). However, the insurer’s rights under such a provision may be lost by a waiver or estoppel resulting from continuing negotiations between the parties. Shea North, Inc. v. Ohio Casualty Insurance Company, 115 Ariz. 296, 298, 564 P.2d 1263, 1265 (App.1977). Zuckerman argues there were sufficient facts here to justify a conclusion by the trial court that the type of “negotiations” which took place wére enough to establish the elements of such an estoppel. A waiver or estoppel with respect to a contractual limitation period will exist if an insurer by its conduct induces its insured, by leading him to reasonably be-Heve a settlement or adjustment of his claim will be effected without the necessity of bringing suit, to delay commencement of the action on the policy until after the limitation period has run. Shea North, Inc. v. Ohio Casualty Company, 115 Ariz. at 298, 564 P.2d at 1265 (citations omitted). It is difficult to conclude that the elements of estoppel required by Wells-Stewart, 10 Ariz.App. at 594, 461 P.2d at 102, and Shea-North, 115 Ariz. at 298, 564 P.2d at 1265, are present in this case. Transamerica had taken a final position and had indicated no willingness to go beyond the offer which had been extended. It did not lead Zuckerman’s counsel to reasonably believe that settlement for any amount above that figure could be “effected without the necessity of bringing suit” and the record contains no suggestion that the delay in filing was due to any well-founded belief to the contrary. All offers of settlement made by insurance companies to the¿iisured are not to be construed as waivers» of the time limitation. If this company, in making its offers to the insured, had made it clear that it had concluded this was the full extent of its liability, and that it was refusing to recognize any further liability, it could have relied upon the limitation of action clause within the policy. Hounshell v. American States Insurance Co., 67 Ohio St.2d 427, 433, 424 N.E.2d 311, 314 (1981). Thus, we hold that the “negotiation type” of estoppel raised in Shea North, supra, is not applicable here. This, however, does not necessarily end our inquiry. The facts of this case lead us to question the wisdom of applying this clause in the circumstances presented here. At the outset, we note that the limitation for suit set by the clause establishes a significantly shorter time than the six-year period which ordinarily applies to actions on written contracts. See A.R.S. § 12-548; Eureka-Security Fire & Marine Insurance Co. v. Simon, 1 Ariz.App. 274, 277, 401 P.2d 759, 762 (1965) (holding that absent a policy limitation clause, A.R.S. § 12-548 applies to actions on insurance contracts). Ordinarily, we would question the inherent validity of a policy provision which sets a limitation period so much shorter than that enacted by the legislature. The statutes of limitations “are declarations of public policy as well as a private right....” Ross v. Ross, 96 Ariz. 249, 252, 393 P.2d 933, 934 (1964). The clause in issue here, however, is given inherent validity by A.R.S. § 20-1115(A)(3), which permits but does not require that such a provision be inserted in certain types of insurance policies. However, the fact that the law permits the existence of such a clause does not mean that it must be applied in every situation. Statutory authorization may validate the clause against the claim that it is inherently void as contrary to the general statute of limitations, but it does not guarantee that the clause will be enforceable under all circumstances. ... While courts are diligent to protect insurance companies from fraudulent claims and to enforce all regulations necessary to their protection, it must not be forgotten that the primary function of insurance is to insure. When claims are honestly made care should be taken to prevent technical forfeitures such as would ensue from an unreasonable enforcement of a rule of procedure unrelated to the merits.... Statutes of limitation ... in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put an adversary on notice to defend within the period of limitation and the right to be free of stale claims in time comes to prevail over the right to prosecute them.... The short statutory limitation period in the present case is the result of long insistence by insurance companies that they have additional protection against fraudulent proofs, which they could not meet if claims could be sued upon within four years as in the case of actions on other written instruments. * *. Bollinger v. National Fire Insurance Co. of Hartford, Connecticut, 25 Cal.2d 399, 406-07, 154 P.2d 399, 403 (1944) (citations omitted, emphasis supplied). Thus, it appears that by permitting insurance companies to shorten the limitation period, the legislature intended to allow them to protect themselves from fraudulent claims, not to relieve them from patently just ones. We note also that the clause in question forms part of the policy “conditions” which require that notice of loss and proof of claims be filed within certain time periods. These policy conditions are preprinted, form provisions attached to the policy. We have previously indicated that in the absence of prejudice, policy conditions which require the giving of “notice of loss” or the filing of “proof of loss” within a specified time cannot be applied to work a forfeiture of the insured’s claim. See Lindus v. Northern Insurance Co. of New York, 103 Ariz. 160, 164, 438 P.2d 311, 315 (1968) (dealing with a “homeowners” liability policy). In Wells-Stewart, supra, the court of appeals held that the Lindus rule was inapplicable to the condition limiting the time for instituting legal action. This holding was premised on the legislative grant of permission to the insertion of the clause. We have concluded that the holding of Wells-Stewart should be examined. In determining whether the Lindus rule should apply to the time for action condition of the form, we must acknowledge that parties are at liberty to contract and may, indeed, agree to shorten the statute of limitations from that which normally applies to claims. See 1A Corbin, supra, § 218 at 311-12; Fireman’s Fund Insurance Co. v. Sand Lake Lounge, Inc., 514 P.2d 223 (Alaska 1973). The general purpose of such a clause is ... to prevent the bringing and enforcement of stale claims, involving extra danger of fraud and mistake, .... An express provision fixing a shorter limit merely hastens the enforcement; and it is not made invalid by being included from the beginning in the contract to be enforced. If held invalid, it must be on the ground that the terms are unconscionable and that unfair advantage has been taken of a claimant whose bargaining position was inferior. Id. at 226 (emphasis in original) (quoting from 1A Corbin, supra, § 218 at 311-12). Thus, if this were the ordinary contract, we would have no hesitation in holding the parties to their agreement, providing the limitation period was not so short as to be against public policy and that the terms of the contract were not so unconscionable that unfair advantage was being taken of the person in an inferior bargaining position. Corbin, id. Whatever the historic origin of the insurance contract, we cannot close our eyes to present-day reality. An insurance agreement such as the ordinary fire policy in issue here is not a contract arrived at by negotiation between the parties. The insured is given no choice regarding terms and conditions of coverage which are contained on forms which the insured seldom sees before purchase of the policy, which often are difficult to understand, and which usually are neither read nor expected to be read by either the person who sells the policy or the person who buys it. This is not the traditional method by which contracts, including insurance contracts, have been made. The changes which have come into the insurance business over the last 50 years reflect the industry’s adjustment to modern business conditions and necessities. The rules pertaining to the enforcement of the “bargain” made by the parties evolved at a time when the parties negotiated an insurance contract; they have little or no relevance to the present methods of transacting most insurance business. This principle is being increasingly recognized by the courts. For example, in Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193 (1977), the Pennsylvania Supreme Court held that the condition of the policy which required notice of the loss “as soon as practicable” would not be enforced absent a showing of prejudice to the insurance company. In reaching this result, the court overruled a line of prior decisions based upon the principle that courts were obliged to enforce the contractual agreements stated in the policy; the Pennsylvania Supreme Court reasoned as follows: The rationale underlying the strict contractual approach reflected in our past decisions is that courts should not presume to interfere with the freedom of private contracts and redraft insurance policy provisions where the intent of the parties is expressed by clear and unambiguous language. We are of the opinion, however, that this argument, based on the view that insurance policies are private contracts in the traditional sense, is no longer persuasive. Such a position fails to recognize the true nature of the relationship between insurance companies and their insureds. An insurance contract is not a negotiated agreement; rather its conditions are by and large dictated by the insurance company to the insured. The only aspect of the contract over which the insured can “bargain” is the monetary amount of coverage.... In Cooper v. Government Employees Insurance Co., 51 N.J. 86, 237 A.2d 870 (1968), the Supreme Court of New Jersey stated: “... [W]e have recognized that the terms of an insurance policy are not talked out or bargained for as in the case of contracts generally, that the insured is chargeable with its terms because of a business utility rather than because he read or understood them, and hence an insurance contract should be read to accord with the reasonable expectation of the purchaser so far as its language will permit.” 51 N.J. at 93, 237 A.2d at 873. Thus, an insured is not able to choose among a variety of insurance policies materially different with respect to notice requirements, and a proper analysis requires this reality be taken into account. ... As was said in Cooper v. Government Employees Insurance Co., supra: “[Although the policy may speak of the notice provision in terms of ‘condition precedent,’ ... nonetheless what is involved is a forfeiture, for the carrier seeks, on account of a breach of that provision, to deny the insured the very thing paid for. This is not to belittle the need for notice of an accident, but rather to put the subject in perspective. Thus viewed, it becomes unreasonable to read the provision unrealistically or to find that the carrier may forfeit the coverage, even though there is no likelihood that it was prejudiced by the breach. To do so would be unfair to insureds.” 51 N.J. at 93-94, 237 A.2d at 873-874. We are reluctant, therefore, to allow an insurance company to refuse to provide that which it was paid for unless a sound reason exists for doing so. ... In short, the function of a notice requirement is to protect the insurance company’s interests from being prejudiced. Where the insurance company’s interests have not been harmed by a late notice, even in the absence of extenuating circumstances to excuse the tardiness, the reason behind the notice condition in the policy is lacking, and it follows neither logic nor fairness to relieve the insurance company of its obligations under the policy in such a situation.... We have in the past excused a condition of forfeiture where to give it effect would have been purely arbitrary and without reason, and we are of the opinion that, in the absence of prejudice to the insurance company, such a situation exists in the context of a late notice of accident.... Brakeman v. Potomac Insurance Company, 472 Pa. at 72-76, 371 A.2d at 196-197 (citations and footnotes omitted). The same considerations are generally applicable to the conditions involving the time for bringing legal action. The provision is not one which is bargained for and its application in the face of an otherwise valid claim defeats the reasonable coverage expectations of the insured; in the absence of prejudice to the insurer, caused by the late filing of suit, enforcement leads to an effectual forfeiture of the claim, thus creating an inequitable result. Some courts have attempted to avoid this type of inequity by holding that the phrase “inception of the loss” which starts the policy limitation period running should be interpreted to mean the date on which the insurer made an outright denial of liability. See Fireman’s Fund Ins. Co. v. Sand Lake Lounge, 514 P.2d at 227, and cases cited therein. We choose not to take such a strained approach; the phrase “inception of the loss” is not ambiguous and clearly denotes the time at which the loss occurs. We prefer, rather, a rule consistent with the modern-day business methods of the insurance industry. It is a rule which we have already followed with respect to other policy conditions. See Lindus v. Northern Ins. Co., supra. We therefore disapprove of the result reached on this issue in Wells-Stewart Construction Co., Inc. v. General Insurance Co. of America, supra, and hold that while the policy condition shortening the applicable statute is valid pursuant to A.R.S. § 20-1115(A)(3), the insurer may be estopped from raising a defense based upon such an adhesive clause where the enforcement of the clause would work an unjust forfeiture. The key factor in the determination of this issue is the question of whether the insurer has shown prejudice by reason of the delay in filing suit. In the absence of such a showing, it is fair to say that the purpose for which the insurer was given permission to insert the clause will not be served by its enforcement. In reaching this conclusion, we do not ignore A.R.S. § 20-1115. However, we must recognize that the legislature has neither enacted a one-year statute of limitations nor required the adoption of such a provision in the contract. It has merely left the insurer free to insert such a clause, provided that the time shall not be limited to a period of less than one year. A.R.S. § 20-1115(A)(3). While a limitation prescribed by statute and contained in the policy is statutory in nature, a reduction in the limitation which is allowed by law is contractual rather than statutory. 20A Apple-man, Insurance Law and Practice § 11582, p. 387-88 (1980). We recognize, therefore, that the legislative grant of permission for insertion of such a clause is an enactment intended to prevent any claim that the clause is invalid as contrary to public policy. Thus, the statute permits the insurer to contract for the benefit of its business affairs, but does not raise the clause to the dignity of a statute of limitations. See 51 Am.Jur.2d, Limitation of Actions § 64 at 643 (1970) (citing Planet Construction Co. v. Board of Education, 7 N.Y.2d 381, 385, 198 N.Y.S.2d 68, 165 N.E.2d 758, 760 (1960)); Forman v. Home Insurance Co., 174 Misc. 478, 21 N.Y.S.2d 445 (1940). The rule which we have adopted puts the limitation clause on the same footing as its “sister clauses” in the printed conditions attached to the policy. The limitation clause, notice of loss clause, proof of loss clause, together with the cooperation clause, are all adhesive in nature and are the result of neither choice nor negotiation. We do not write a contract for the parties by holding these provisions unenforceable under all circumstances. We do apply to the limitation provision, as we have applied to others, a rule that the conditions will be enforceable despite their adhesive nature unless it is inequitable to enforce them. Where the conditions do no more than provide a trap for the unwary, the insurer will be estopped to raise them. We thereby grant the consumer his reasonable expectation that coverage will not be defeated by the existence of provisions which were not negotiated and in the ordinary case are unknown to the insured. See Sparks v. Republic National Life Ins. Co., 132 Ariz. 529, 647 P.2d 1127 (1982). Such decisions do no more than allow the common law to evolve in conformity with the changes which the insurance industry has adopted in its business practices. The clause will be enforced when the reasons for its existence are thereby served and will not be applied when to do so would be to defeat the basic intent of the parties in entering into the insurance transaction. Further, we emphasize that the principles and rules established by this case are applicable only to those situations in which the terms and conditions of the policy have not been truly negotiated by the parties. In those insurance agreements in which the parties have bargained or had the opportunity to bargain for the entire contract, ordinary rules of contractual construction should continue to be applied. The reason for this is simply that in such transactions there is an intent of the parties to be determined and enforced. Turning again to the facts of this case, it is obvious that Transamerica was not prejudiced by the fact that suit was brought more than one year after the loss occurred. There was never any dispute regarding the loss, its cause or the existence of coverage for the loss. Nor was there any dispute regarding the amount of damage; that figure was determined by the agreement to accept the lowest of three damages estimates to be obtained by Zuckerman. There seems no question but that Zucker-man’s claim is valid; the amount of the claim was established by getting the estimates required by the insurer itself. Enforcement of the policy limitation provision in this case would cause a forfeiture of a patently valid claim, would not serve the purpose for which the limitation clause exists, and would work an injustice to the plaintiff. It is also clear that the parties in this case did not negotiate the conditions in question and that the “condition” portion of the insurance policy is adhesive. We hold, therefore, that the insurer is estopped to enforce the clause and that the judgment of the trial court is affirmed. GORDON, Y. C. J., and HAYS and CAMERON, JJ., concur. . The company’s position is dubious on this point. The policy contains no clause permitting such deductions from the amount of the loss. It does provide that the company “does insure” Zuckerman “to the extent of the actual cash value of the property ..., but not exceeding the amount which it would cost to repair or replace the property.” (Emphasis supplied.) This is hardly equivalent to a provision that the insured must use the loss payment proceeds for the purpose of rebuilding. . The company’s position on the alleged deficiencies in the proof of loss is also quite dubious. . Zuckerman also claims that the judgment could be supported on the theory that the trial court enforced the settlement agreement. We do not consider this theory because Zuckerman filed the action on the policy and not on the settlement contract. . Ross v. Ross, supra, holds that a waiver of the statute of limitations is void. Of course we deal here with a shortening of the statute rather than a waiver. Generally, parties may contract with regard to shortening the statute, even though they cannot bargain not to plead it. 1A Corbin, Contracts § 218 at 311-312 (1963). However, while Corbin discusses the matter in terms of the parties “agreeing” to and “bargaining for” the shorter limitation period, these concepts have little to do with an insurance “contract” such as that here under consideration. . It has also been held in Arizona that failure to comply with the “cooperation clause” of an insurance policy will not result in the forfeiture of rights arising thereunder unless the insurer establishes prejudice. See Baumler v. State Farm Mutual Automobile Insurance Co., 493 F.2d 130, 139 (9th Cir. 1974). . This issue was not raised by the plaintiff. We requested, and received, supplementary briefs on the issue. . This approach has been suggested with regard to such adhesive provisions. See, Oldfa-ther, “Toward a Usable Method of Judicial Review of the Adhesion Contractor’s Lawmaking,” 16 Kansas L.R. 303 (1968).

OPINION BIRDSALL, Judge. This is an appeal from a judgment in favor of the defendant/appellee in a personal injury action. The plaintiff /appellant contends that the trial court erroneously instructed the jury. We agree that one instruction was erroneously given, and reverse. The facts, viewed in the light most favorable to sustaining the judgment, are as follows. The appellant was one of several teenage boys riding down the Mount Lem-mon Highway in a station wagon driven by Michael Manzanedo. As they travelled down the mountain, the occupants of the station wagon were throwing snowballs at vehicles coming in the opposite direction. A snowball thrown by the appellant struck and shattered the windshield of a pickup truck driven by the appellee. As the appel-lee stopped his truck, Manzanedo picked up speed and fled down the mountain. Appel-lee turned his truck around and gave chase. He observed that the station wagon was being driven in a reckless manner, and realized that his pursuit of the station wagon was “fairly dangerous.” He nevertheless continued his pursuit in the hope of stopping the station wagon or reading its license number. After seven or eight miles of pursuit, he was able to pull within ten feet of the back end of the station wagon. He honked his horn and signalled the station wagon to pull over, but Manzanedo did not stop. At about that point the appellee’s passenger was able to get the license number and the appellee testified “he gave up the pursuit.” He nevertheless continued to follow the other vehicle. Shortly thereafter, the vehicles came to a long straight stretch of highway at the base of the mountain. At this point the pursued began to outdistance the pursuer, and the appellee was left behind as the station wagon accelerated to a speed of eighty-five to ninety miles per hour. Manzanedo testified that it was his intention to get off the mountain and on to the “straight-away and then just lose them,” and that he was still trying to get away when the crash occurred. He also testified that at that time he had reason to believe Petroni had given up the chase and quit. When the station wagon had opened a lead of about 250-300 yards, it suddenly went out of control and crashed. Just before the crash the appel-lee’s truck was going about 55 miles per hour. The crash occurred within a few (three or four) seconds after the distance between the vehicles had increased. Appellant received permanent injuries in the crash. He settled his claim against Manza-nedo, and brought this action against appel-lee. The appellee’s theory at trial was that he had not been negligent in pursuing the station wagon and that even if he had been negligent, the negligence of Manzanedo in continuing to flee after the chase had allegedly ended was an efficient intervening force (superseding cause) that relieved him of liability for the appellant’s injuries. In support of the latter theory, he requested and received the following jury instruction: “If you find that the defendant was negligent and that his negligence was a substantial factor in bringing about an injury to the plaintiff, but that the immediate cause of the injury was the negligent conduct of a third person, the defendant is relieved of liability for such injury if: 1. At the time of his conduct, the defendant did not realize, nor reasonably should have realized, that the third person might act as he did; or 2. A reasonable person knowing the situation existing at the time of the conduct of the third person would have regarded it as highly extraordinary that the third person had so acted in such a fashion; or 3. The conduct of the third person was extraordinarily negligent and was not a normal consequence of the situation created by the defendant.” The authority cited for this instruction was §§ 440 and 447 of the Restatement of Torts 2d, which define superseding cause and list circumstances under which the intervening negligence of a third party is not a superseding cause. The appellant timely objected to the giving of this instruction, stating: “... there is no indication that there was any intervening cause which could be considered superseding.... that there is no superseding intervening cause which would entitle the defendant to instructions on superseding intervening act since the host driver, Mr. Manzanedo, testified that he resumed and continued his speed without interruption and that the speed of the vehicle — and that the host driver increased his speed due to the fact the defendant had been chasing him.” No objection was urged that the offered instruction was not a proper statement of the law. The appellant now makes this contention on appeal. Not having made that specific objection in the trial court he cannot now raise it on appeal. Rule 51(a), Rules of Civil Procedure, 16 A.R.S.; Winchester v. Palko, 18 Ariz.App. 534, 504 P.2d 65 (1972). The appellant’s objection was, however, sufficient to preserve his contention that the evidence did not support the giving of any superseding-intervening instruction. The purpose of the rule is to prevent the trial court from committing error in the instructions, Nielson v. Flashberg, 101 Ariz. 335, 419 P.2d 514 (1966); Milam v. Milam, 101 Ariz. 323, 419 P.2d 502 (1966). That purpose would have been served if the trial court had refused the instruction. We agree with the appellant that it was error to give an intervening-superseding instruction under the evidence in this case. In order for the conduct of the appellant’s driver to be an intervening-superseding cause, the evidence would first have to support a finding that Manzanedo’s conduct in speeding on the straight-away was an intervening cause of the accident. Where the defendant’s negligent conduct has terminated and only the risk of harm created by that conduct is present, then any outside force which is a substantial factor in bringing about the injury is an intervening force. Zelman v. Stauder, 11 Ariz.App. 547, 466 P.2d 766 (1970). Assuming, arguendo, that the negligent conduct of the appellee had ended and that Manzanedo’s increased speed was an intervening cause of the accident, in order to also be a superseding cause the evidence would then have to support a finding that Manzanedo’s high speed on the straight-away was extraordinary or would not normally be expected by a reasonable person in view of the situation existing at the time of its intervention. Herzberg v. White, 49 Ariz. 313, 66 P.2d 253 (1937). A more recent decision contains the following: “For an intervening cause to be a superseding cause it must be a cause which could not have been reasonably foreseen or anticipated by the defendant. Stated differently, in order for an intervening cause to supersede the original negligence, the intervening cause must be so extraordinary that the defendant could not have reasonably anticipated that the cause would intervene.” City of Phoenix v. Schroeder, 1 Ariz.App. 510, 516-517, 405 P.2d 301 (1965). We do not believe that a reasonable person could find that Manzanedo’s speed upon reaching the bottom of the mountain was so extraordinary that the appellee could not have reasonably anticipated it. Viewing the evidence in the light most favorable to sustaining the verdict, we fail to see how such a finding could rationally be made. For the jury to find initially that the appellee was negligent with respect to the appellant, it would necessarily find that Manzanedo’s flight, in a manner likely to result in an accident, was a foreseeable result of the appellee’s pursuit. Having made this initial finding, it could not rationally have found that the possibility of Man-zanedo’s continued flight, for mere seconds after the appellee had allegedly abandoned the pursuit, was unforeseeable, and not a normal consequence of the situation. See Restatement of Torts 2d § 449. It was undisputed that the incident involved was a chase, not a race, and that Manzanedo’s purpose was to escape, not to beat the ap-pellee to the bottom of the mountain. The appellee has suggested that Manza-nedo’s demeanor during his testimony could have led the jury to disbelieve his testimony and to conclude that Manzanedo was speeding for reasons unrelated to the pursuit. Even if the jury disbelieved Manzanedo, other evidence, including the testimony of the appellant and another passenger in the station wagon, was to the same effect as his. The next question, of course, is whether the error requires reversal. We realize that the jury’s general verdict in appellee’s favor could conceivably have been rendered without regard to the erroneously given instruction. The jury might have found that appellee’s pursuit was not negligent, that it was not a cause-in-fact of appellant’s injuries, or that the causal connection was too remote to impose liability. From the evidence, however, we believe any of those findings was unlikely, and the record reveals that a great deal of appellee’s closing argument centered upon the instruction. We are therefore convinced that appellant was prejudiced by the error and that reversal is required. Appellant also objects to the giving of the following instruction: “You are instructed that the defendant was required by law to anticipate and foresee and guard against only what is likely to happen, but that he is not required to foresee and guard against that which is not likely to happen or in other words that which is only remotely or slightly probable. And that the proper test is not whether the injurious results or consequences were possible, but whether they were likely to occur according to the usual experience of persons.” Appellant contends that the instruction is an incorrect statement of the law, See Arizona Public Service Co. v. Brittain, 107 Ariz. 278, 486 P.2d 176 (1971), and that it was not supported by the evidence. Again, however, only the latter objection was raised below. Since this question may arise during the new trial, we will determine whether an instruction on the foreseeability of appellant’s injury was supported by the evidence. In our previous discussion we have assumed that appellee’s pursuit was negligent because the question of superseding cause could arise only after an initial finding that appellee was negligent and that his negligence contributed to the accident. We are not prepared to hold, however, that the evidence established appellee’s negligence or the foreseeability of appellant’s injuries as a matter of law. It is true that appellee admitted in his testimony that he believed the chase to be “fairly dangerous.” This admission was made in response to a very general question and will not be taken as an admission that appellee foresaw the risk of appellant’s injuries, since he could have been admitting only that he perceived danger to himself or to property. In addition, there was evidence that the speeds at which the appellee followed the Manzanedo vehicle were within the legal limits, and that he did not believe that his pursuit was actually causing Manzanedo’s reckless driving. We therefore find that the question of the foreseeability of appellant’s injuries was for the jury’s determination in deciding whether appellee was negligent in the first instance. Reversed and remanded for new trial. HOWARD, C. J., concurs. . The instruction was, apparently, an attempt to state the converse of Restatement § 447. A correct statement of the converse (which itself would not necessarily by a correct statement of the law) would require the word “and,” instead of “or,” at the ends of subparagraphs 1 and 2.

HAYS, Justice. Plaintiffs (appellants) brought a negligence action to recover for injuries suffered as a result of a fall while patrons at defendants’ (appellees) service station. The trial court granted summary judgment in favor of the defendants and this appeal follows. We took jurisdiction pursuant to A.R.S. § 12-2101 and 17A A.R.S., Rules of Civil Appellate Procedure, rule 19(e). Summary judgment is generally not appropriate in negligence actions. It may be granted, however, if the record demonstrates that there is no genuine dispute as to any material fact; if only one inference can be drawn from the undisputed material facts; and, as a matter of law, if the moving party is entitled to judgment. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982); 16 A.R.S. Rules of Civil Procedure, rule 56(c). The primary duty of the reviewing court is to determine whether there is an issue of fact to be tried. Where reasonable minds could reach different conclusions as to the existence of a genuine issue, summary judgment should not be granted. Wisener v. State, 123 Ariz. 148, 598 P.2d 511 (1979). The material facts in this case are not in dispute; rather, it is the factual inferences which arise from the undisputed facts that are in actual dispute. Those facts, viewed in a light most favorable to the party opposing the motion for summary judgment, are developed in the deposition of appellant. On the day of the accident, July 3, 1978, appellants Mr. and Mrs. Tribe and their two children pulled into appellees’ service station. Mr. Tribe bought some gas and drove around the building to the restrooms. Mrs. Tribe used the restroom, then walked with her daughter to the front of the station in search of a water fountain. Mrs. Tribe and her daughter approached the fountain by taking a short step of approximately six inches to get onto the sidewalk upon which the fountain was located. After getting her drink, Mrs. Tribe turned around while cautioning her daughter about the traffic, stepped off a sixteen-inch step on the front of the sidewalk and fell heavily, shattering her wrist. Appellants allege that the location of the water fountain on the premises of the Shell service station is inherently dangerous and negligently designed and constructed. Mrs. Tribe stated that she never saw the sixteen-inch step because she approached the drinking fountain from the side where the step was six inches. She stated that a station wagon obstructed her view of the step and her attention was distracted by the traffic and her concern for her child’s safety. Photographs attached to the deposition illustrate the difference in the elevation of the step and show that the riser was painted a contrasting color. Whether the trial court was correct in granting summary judgment depends on the resolution of two issues: (1) was the condition of the step from which Mrs. Tribe fell open and obvious? and (2) if so, should the appellees have foreseen the harm occurring from that condition? The law is clear in Arizona that a proprietor of a business is under an affirmative duty to make the premises reasonably safe for use by invitees, Nicoletti v. Westcor, Inc., supra, and the bare fact that a condition is open and obvious does not necessarily mean that it is not unreasonably dangerous. Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27 (1963). It is the general rule that a proprietor is not liable to an invitee for injuries from dangerous conditions which are obvious or as well known to the invitee as to the proprietor. Daugherty v. Montgomery Ward, 102 Ariz. 267, 428 P.2d 419 (1967). But, if the proprietor should anticipate the harm from the condition despite its obviousness, he may be liable for physical injury caused by that condition. The fact that the injured party knew of the danger is not conclusive. Silvas v. Speros Construction Co., 122 Ariz. 333, 594 P.2d 1029 (App.1979). The Restatement (Second) of Torts states that a possessor of land is generally not liable to his invitees for physical harm caused to them by a condition on the land whose danger is known or obvious to them. But where the possessor has reason to anticipate harm to an invitee from a condition despite its obviousness, duty may require him to warn the invitee or take other reasonable steps to protect him. “Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it ...” Restatement (Second) of Torts, § 343A, comment f (1965). The appellees cite Robles v. Severyn, 19 Ariz.App. 61, 504 P.2d 1284 (1973), in support of the trial court’s determination that the condition was open and obvious. In Robles, a 3V2-year-old guest was injured by a sharp palm frond on a tree in his neighbor’s yard. The court held that this natural condition was neither hidden nor deceptive and granted summary judgment in favor of the defendants. We are not dealing with a natural condition such as a palm tree on the premises of the service station. Reasonable minds could easily disagree as to whether a sixteen-inch step down is open and obvious to one who has ascended a six-inch step. Summary judgment is inappropriate where founded on a disputed inference drawn from an undisputed fact. Nicoletti v. Westcor, supra, 639 P.2d at 332. Whether the step was dangerous, open and obvious or whether appellees should have anticipated the harm if open and obvious are issues to be decided by a jury in its capacity as triers of fact. The trial court erred in not submitting the case to the jury. Reversed and remanded for trial. CAMERON and FELDMAN, JJ., concur.

GORDON, Vice Chief Justice: Jesse G. Christopher is the appellant in two cases consolidated for appeal. In the first case, appellant was placed on probation for child molestation, but his probation was revoked when he violated the conditions thereof by committing more child molestations and by having contact with children under the age of 15 years old. The second case concerns appellant’s pleas of guilty to six charges of child molestation with two prior convictions. These six charges arose from incidents occurring after the granting of probation. The trial court sentenced appellant to a prison term of 25 years to life for the old code offense in the first case (former A.R.S. § 13-653) to be served concurrently with the 25 year terms subsequently imposed for the new code offenses in the second case (current A.R.S. § 13-1410). We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and A.R.S. § 13-4031, and we affirm. Appellant was first convicted of child molestation and placed on probation in March, 1979. A presentence report by Dr. John LaWall following a psychiatric evaluation of appellant made recommendations concerning the treatment of appellant. Dr. LaWall stated that any psychiatric treatment should emphasize “behavior modification techniques” rather than “insight therapy.” He noted, however, that appellant’s motivation to change and remorse for what he had done was questionable. Dr. LaWall concluded that behavior modification would be the most effective treatment plan but that the more drastic alternative of “chemical castration” — a reversible process involving injecting an individual with a chemical that temporarily suppresses the sex drive— could also be used. The trial court imposed as conditions of probation two years of confinement in the county jail (with eligibility for work furlough) and psychiatric therapy to be paid for by appellant. For reasons not appearing in the record, the treating doctor used the insight therapy method on appellant rather than the behavior modification techniques or chemical castration recommended by Dr. LaWall. The treatment was not successful, and appellant molested more children during the summer of 1981. These molestations led to new criminal charges and revocation of the probation. Appellant makes only one argument on appeal. He asserts that being placed on probation constitutionally entitled him to be effectively treated and rehabilitated. The state allegedly denied him his right when it did not require his treatment while on probation to include chemical castration and behavior modification. The state’s failure to afford effective treatment and rehabilitation, he contends, precludes the state un der the Eighth and Fourteenth Amendments to the United States Constitution from giving him such long prison sentences for the offense underlying the probation and the subsequent offenses resulting from that failure. Appellant argues that a constitutional right to treatment and rehabilitation for a probationer arises as a matter of due process from the purposes of probation and from the state’s power to deal with probationers. We find no such constitutional right arising from either source. To support the contention that rehabilitation is the primary goal of probation, appellant cites the American Bar Association’s [ABA’s] Standards for Criminal Justice. The current views of the ABA, however, directly contradict appellant’s argument. In the comments to Standard 18-2.3, the ABA states: “[Tjhese standards endorse probation not because it is believed that probation will rehabilitate the offender, but because no more severe sanction will frequently be necessary. What is essential is that probation is the most humane alternative, not that it might be the most therapeutic. The ABA has long believed that probation is a desirable disposition in appropriate cases for a variety of independent reasons: (1) it maximizes the liberty of the individual while vindicating the authority of the court; (2) it eases the reintegration of the offender into the community; (3) it minimizes the hidden costs that imprisonment places on the family of the offender * * *; and (4) it is the most economic form of correctional supervision. “Some evidence also exists that the subsequent rate of imprisonment is lower for probationers than for those sentenced to imprisonment. Although a debate exists, many criminologists believe that prison itself may be criminogenic, that is, that longer confinement makes the offender more likely to become a recidivist.” ABA Standards for Criminal Justice 18.75-76 (2d ed. 1980). We do not completely agree with the ABA, as rehabilitation is an important goal of probation in Arizona. See State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329 (1977); State v. Hennessy, 13 Ariz.App. 546, 479 P.2d 194 (1971). But we recognize that the purposes enumerated by the ABA are also important reasons for granting probation to those convicted in Arizona courts. An additional reason for granting probation rather than imposing a prison term is to alleviate the overcrowding in our prisons by not incarcerating those people with whom the state can adequately deal in other ways. Thus, rehabilitation is not the only nor the primary purpose of granting probation. Although rehabilitation is one goal when penalties are imposed for criminal offenses, there are other goals — retribution, restraint of the offender to prevent him or her from engaging in more criminal acts, and deterrence of the general population from engaging in crime. These goals are as much a consideration when deciding whether and how to impose probation as they are in deciding whether and how to impose a prison sentence. Certainly, any society considered civilized by Western standards stresses rehabilitation in its penological system. This is so as a matter of altruism (society should help those people who commit crimes to help themselves to improve their condition and become law-abiding citizens) and pragmatism (rehabilitated criminals will not continue to prey on society by committing more crimes and will cease being economic burdens on the community). But at this stage of human and scientific development, no society should be forced to guarantee effective rehabilitation to all offenders and ignore the other purposes of punishment. To preserve order and prevent vigilante justice, society needs to consider retribution in its disposition of convicted criminals. Also, it cannot yet be guaranteed that rehabilitation will be successful even if the convicted criminal fully participates in a treatment program. To insure the security of its citizens, society must be able to restrain the criminal to prevent further criminal acts and to discourage others from committing criminal acts. Proper punishment and treatment can be imposed only if rehabilitation is balanced and considered along with the other goals of punishment — retribution, restraint, and deterrence. Appellant’s case is a good example of why effective rehabilitation cannot become the primary goal of our penological system. After committing one child molestation, appellant was granted probation and given the chance to rehabilitate himself. But the attempted rehabilitation failed and appellant molested more children. Although one psychiatrist recommended a different form of treatment at the time probation was granted, he questioned whether appellant could be effectively rehabilitated by any treatment method because of appellant’s lack of remorse and motivation to change. Society is not required to stay the imposition of retribution for the crimes appellant has already committed and forego restraint of appellant thereby allowing him to victimize more children while other rehabilitative treatments are tried. The trial judge and not the prosecutor, defense attorney, defendant, psychiatrist, or probation officer is in the best position to balance the goals of our criminal justice system and to choose the proper disposition, and that judge is not constitutionally required to give the most weight to the goal of rehabilitation. The powers the state may exercise in attempting to rehabilitate a probationer also are not a source of a constitutional right to rehabilitation. Appellant argues that the state’s right to impose a variety of probation conditions that infringe on the probationer’s privacy for purposes of rehabilitation creates a correlative right in the probationer to receive effective rehabilitation. He analogizes to Youngberg v. Romero, - U.S. -, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), in which the United States Supreme Court held that when a state involuntarily commits a person for a psychological problem, the patient has a constitutional due process right to receive minimally adequate treatment. But the Youngberg Court expressly held that involuntarily committed patients are entitled to a higher level of treatment and conditions than are convicted criminals. Appellant’s situation, concerning a convicted criminal on probation, is more analogous to that of a convicted criminal in prison. Both kinds of persons are subjected to some form of punishment because of criminal conduct and not merely because of a psychological problem. Neither the Fourteenth Amendment’s Due Process Clause nor the Eighth Amendment’s Cruel and Unusual Punishment Clause (which are the constitutional provisions on which appellant relies) require a state to provide incarcerated prisoners with a rehabilitation program. See Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); Smith v. Schneckloth, 414 F.2d 680 (9th Cir.1969); State v. Kidwell, 27 Ariz.App. 466, 556 P.2d 20 (1976). To grant appellant the correlative right he seeks would require the state either to forego any attempt at rehabilitating him to avoid creation of the correlative right or to attempt to rehabilitate him to the exclusion of the other purposes of criminal punishment. Neither alternative is justified. The state and its courts may pursue all four purposes of punishment that are discussed above. To accomplish these purposes, a trial court has some discretion in deciding whether to grant probation, whether to include a jail term as a condition of probation, and whether to include other conditions of probation that would serve other purposes including rehabilitation. As probation itself is a matter of grace and not of right, State v. Smith, 112 Ariz. 416, 542 P.2d 1115 (1975), so too is rehabilitative treatment while on probation. We strongly encourage attempts at rehabilitation both for probationers and incarcerated prisoners and find it unfortunate that a potentially more effective method of treatment was not tried on appellant while still on probation. It may be that the failure to provide a different treatment was a contributing cause to appellant’s subsequent crimes. Nevertheless, we will not interfere with the trial court’s reasonable exercise of discretion in deciding that the other interests at stake required appellant’s immediate imprisonment rather than continued probation while the search goes on for another more effective method of rehabilitation. The fact of imprisonment and the length of the term imposed are permitted under the statutes, are supported by the facts, and are not cruel and unusual nor a violation of the due process notions of fundamental fairness. Having searched the record for fundamental error pursuant to A.R.S. § 13-4035 and finding none, we affirm the probation revocation, the convictions, and the sentences. HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.

OPINION FROEB, Judge. The defendant was convicted of second degree murder in violation of former A.R.S. §§ 13-451, -452, —453 and -454, following a trial by jury, and was sentenced to serve a term of imprisonment in the Arizona State Prison of not less than 14 nor more than 45 years. He raises two issues for our consideration: whether the trial court erred in admitting evidence that the defendant had hit the victim over the head with a baseball bat two months prior to her disappearance, and whether the trial court erred in allowing the state to present testimony of specific violent acts committed by the defendant in rebuttal to the testimony of his character witnesses. The evidence at trial revealed that: on April 2, 1977, a dead body was found by police detectives at 107th Avenue and Or-angewood in Phoenix. The body was located in a wash in a garbage dump, and was observed by Detective Kinman lying face down, covered by a piece of cardboard and the backseat of a car. The Maricopa County Medical Examiner was called to the scene and determined that the body was female and in a highly decomposed state. The body was taken to the medical examiner’s office for further examination, and was identified by dental records to be the remains of Twyla Featherman. The cause of death could not be determined due to the state of decomposition of the body. Twyla Featherman had been reported to the Phoenix Police Department as missing on October 22, 1976. On November 11, 1976, Detective Thompson of the Phoenix Police Department spoke with the defendant who, at that time, was the estranged husband of Twyla Featherman. The defendant told Detective Thompson that he had been with Twyla on the night of October 21,1976, which was the night she disappeared. He said they had had some drinks and dinner, and then Twyla told the defendant that she wanted to go to the Neutral Corner Bar which was owned by the defendant. They arrived at the bar around 10:30 or 11:00 P.M., but found it to be closed. According to defendant, shortly after their arrival at the bar, Twyla stated that she had to leave and, after making a phone call, refused a ride from the defendant and left the bar on her own, never to be seen again. At the time the body of Twyla Featherman was discovered, some five and one-half months later on April 2, 1977, the defendant was vacationing in Las Vegas with his new wife, Glenda Featherman. When he returned and discovered that Twy-la’s body had been found, the defendant called the sheriff’s office to advise them that he was available if needed. He was interviewed at the sheriff’s office on April 13,1977, and repeated the same story which he had told Detective Thompson in November 1976. At that time, he also told the sheriff’s officers that his marriage to Twyla had been dissolved in December 1976 and that he had married Glenda Featherman in January 1977. He told the officers that his marriage to Twyla had been rocky and that he had “slapped her a few times.” On August 12, 1978, Glenda Featherman, then married to the defendant, contacted the Maricopa County Sheriff’s Department advising them that she wished to make a statement regarding the disappearance of Twyla Featherman. After being granted use immunity by the County Attorney’s Office, Glenda gave a statement to the sheriff’s department implicating the defendant in the murder of Twyla Featherman. Glenda Featherman and the defendant were divorced on March 20, 1979. At trial, Glenda Featherman gave lengthy testimony which we here only summarize. She testified that at 4:00 A.M., on October 22, 1976, she received a phone call from the defendant, whom she was dating at that time. He asked that she come to the Neutral Corner Bar. When she arrived there she saw the body of Twyla Feather-man lying on the floor. Thereafter, Glenda helped the defendant dispose of Twyla’s body at the dump at 107th Avenue and Orangewood. On the way home from the dump, the defendant explained to Glenda that he killed Twyla by pressing on pulse points at her temples until she lapsed into unconsciousness. He would allow her to return to consciousness and after he did this numerous times, she simply did not recover. In further testimony, Glenda Featherman related that she followed directions given to her by the defendant out of fear of his threats made against her and her son. After an incident in August 1978, she filed for divorce and following further threats against her life as well as her son, she finally went to the police and gave her story. Misti Weaver, Twyla’s daughter from a previous marriage who lived with the defendant and Twyla during their marriage, testified as follows: A. Yes. They had a rocky marriage; they fought a lot. John would come home, beat her up after he went out, got drunk. Wake us kids up, beat her up. Q. Did you see this? A. Yes, quite a few times. Q. When he would beat her up, what would he use? How would he be hitting her? A. His fists. Q. You say this happened quite a few times during the course of this marriage? A. Yes. Q. Towards the end of the marriage, in 1976, did the relationship between your mother and John Featherman change any? A. It got worse. Q. Did you see the signs of any injuries on your mother as a result of these beatings? A. Yes, I did. Q. Misti, calling your attention to the latter part of August, 1976, around August 29 or August 30, 1976, did you and your mother finally — or did your mother finally move out of the house that she lived at with Johnny Featherman? A. Yes, she did after he hit her over the head with a baseball bat. On motion of defense counsel, the trial court ordered the statement concerning the baseball bat incident stricken and told the jury to disregard it. Defendant also moved for a mistrial on the grounds that the witness had not personally seen this event but had heard of it from another person and that it was a prior bad act and prejudicial. The trial court denied the defense motion for a mistrial based on the state’s assertion that admissible evidence of the baseball bat incident would be presented. The court determined that proper evidence of the baseball bat incident would be admissible pursuant to rule 404(b), Rules of Evidence, to prove the defendant’s intent and/or motive. The next person to testify about the baseball bat incident was Sheri Savage, a friend of Twyla Featherman, who took Twyla to Phoenix Baptist Hospital in August 1976 for treatment of wounds to her head. Over the objection of the defendant, Savage testified that she had heard Twyla tell the doctor that her husband beat her on the head with a baseball bat. Savage also testified that within five days after this incident, she confronted the defendant with regard to the baseball bat incident: Q. What did you say to him? What did he say to you regarding this baseball bat incident? A. I asked him why he beat her in the head with a baseball bat. I told him that he could have killed her. He told me that he wanted to kill her, that he was so upset with her, all he could see was her big mouth running. He walked in the family room, he picked up the baseball bat, he wanted to kill her, he was very upset with her. He said he could have put her body out in the desert and the police would have thought it was another sex slaying. Q. Did he indicate to you why he was upset with her? A. He said — I asked him if he was drinking, and he told me no, he hadn’t been drinking; he was stone cold sober. But when he got home that morning, about four or five o’clock, whatever it was, she jumped on him, and they had an argument, and he lost his temper. Q. Did he indicate to you what the argument was, if you can remember? Yes or no? A. It was over another woman. Savage also stated that approximately a week after she had taken Twyla to Phoenix Baptist Hospital, she took her to see a Dr. A. E. Zachow concerning the head injuries. Dr. Zachow testified that he removed the sutures from Twyla’s scalp on September 7, 1976. He recalled Twyla having said something to him to the effect that she had sustained the injuries while horseback riding. He did not recall a mention of the baseball bat and stated that if Twyla had mentioned a baseball bat, he would have suggested another form of treatment including X-rays. He also testified that the injuries which he saw on Twyla’s head were not consistent with being struck on the head by a baseball bat because there was no indentation. Dr. Melvin Phillips testified for the defense that he had known Twyla and the defendant for many years. He stated that he had never noticed any injuries on Twyla and that he had never seen the defendant do anything violent. He also never observed any sign that Twyla was afraid of the defendant. He examined the hospital records concerning Twyla’s treatment for the head injury and stated that the records were not consistent with Twyla’s having been hit on the head with a baseball bat. John Featherman, Jr., the son of the defendant, testified in reference to the alleged baseball bat incident on cross-examination as follows: Q. In fact, the day before she left, your father beat her, didn’t he? A. No. Q. Do you recall you were cleaning up and placing her in the bath tub or helping your father place her in the bath tub so the blood wouldn’t get all over the living room? A. No. Q. Do you recall telling Misti that? A. No. Q. Do you recall doing it? A. I didn’t do it. Q. Do you recall telling Misti that that night you had heard a commotion and you came downstairs and your mother was down on the floor on her back? A. No. Q. You don’t recall that? A. I didn’t tell her that. Q. Do you recall telling her that you had pulled your father off your mother? A. No. ADMISSIBILITY OF THE BASEBALL BAT INCIDENT For his first claim of error, the defendant argues that the evidence concerning the baseball bat incident was improperly admitted. He contends that the incident does not fall within an exception of rule 404(b), Rules of Evidence, that the evidence of the baseball bat incident was insufficient to allow its introduction, and that the prejudicial effect of the admission of the evidence outweighed its probative value. The state asserts that the defendant waived any claim of error arising out of the admission of the baseball bat incident because of a failure to object at trial, that in any event the incident was admissible pursuant to rule 404(b), and that the evidence was sufficient to allow the testimony. Finally, the state concludes that even if the trial court erroneously admitted the testimony concerning the baseball bat incident, the error was harmless. Arizona Rule of Evidence 404(b) states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence that the defendant has committed certain bad acts other than those for which he is on trial is generally inadmissible because it is irrelevant and because of the danger of unfair prejudice to the defendant. However, the relevance of a prior bad act may outweigh the prejudice to the defendant “if the illegal conduct does more than discredit the character of the defendant.” State v. Rose, 121 Ariz. 131, 136, 589 P.2d 5, 10 (1978). Prior bad acts are therefore admissible in order to prove the defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. “In all these situations the bad acts shed some light on the crime charged and not merely on the defendant’s criminal propensity.” Id. Before evidence of a separate crime or offense may be admitted, “there must be evidence of that other crime substantial enough to take that case to a jury, ... although it need not be proof beyond a reasonable doubt.” State v. Marahrens, 114 Ariz. 304, 307, 560 P.2d 1211, 1214 (1977). Finally, the question of whether other bad acts are too misleading or prejudicial to be admissible is left to the discretion of the trial court. State v. Rose, supra. In the present case, the defendant initially objected to the testimony of Misti Weaver concerning the baseball bat incident immediately following her testimony. The trial court ordered that the answer be stricken, and recessed for an in-chamber conference where the defendant moved for a mistrial on the grounds that the testimony constituted an improper reference to a prior bad act, and because the evidence was insufficient to take the case to a jury. After inquiring what further evidence the state would introduce on the issue, the trial court concluded that the evidence would be sufficient to take the case to a jury, and that the incident was admissible to prove intent and motive. We conclude that the trial court did not err in denying the motion for a mistrial. The defendant was charged in this case with murder under former A.R.S. §§ 13-451 and —452. The state tried the case on a first degree theory which required proof that the defendant acted with malice aforethought and that the killing was “willful, deliberate and premeditated.” The evidence of the baseball bat incident which occurred two months prior to the murder was relevant to the issue of whether the defendant acted with malice in killing the victim. Furthermore, the incident was not too remote from the offence charged to be relevant. In State v. Denny, 27 Ariz.App. 354, 555 P.2d 111 (1976), this court held that the trial court properly admitted evidence that the defendant attempted to assault her husband with a car five months prior to the time she killed him. In Denny the prior bad act was admissible because we concluded that it showed “malice and intent and motive” of the defendant. 27 Ariz.App. at 359, 555 P.2d at 116. In the same case, this court held that the trial court erred in allowing evidence that the defendant had shot her prior husband twenty-two months before the crime for which she was being tried. We concluded that the evidence of the shooting of the prior husband was inadmissible because it was introduced only to show that the defendant had such a predisposition and was acting in conformity with that trait of character when she murdered the subsequent husband. In the present case the evidence of the defendant’s hostility to his victim demonstrated by the baseball bat incident two months prior to her death is directly relevant to his intent the night she was killed. Intent is frequently shown by evidence of other criminal acts of the same character. State v. Rose, supra. See also State v. Tostado, 111 Ariz. 98, 523 P.2d 795 (1974); State ex rel. Berger v. Superior Court, 108 Ariz. 396,499 P.2d 152 (1972). We find that the evidence of the baseball bat incident was admissible pursuant to rule 404(b), Rules of Evidence. We also find that the baseball bat incident was shown by substantial evidence. Sheri Savage testified that she heard the victim tell the physician at Phoenix Baptist Hospital that the cause of the injury was that the defendant hit her over the head with a baseball bat. The hospital records reflect that the statement was made. Both Savage and Patsy Blackham observed the victim’s head injury. Finally, Savage testified that the defendant admitted that he had hit the victim over the head with a baseball bat. We find that sufficient evidence was presented as to this incident to render it admissible. State v. Marahrens, supra. Finally, the state contends that the defendant waived the issue by his failure to object at trial. We conclude that the defendant did not waive the issue. He objected as soon as Misti Weaver referred to the incident. He immediately moved for a mistrial, asserting the grounds that he now asserts on appeal. While he did not continue to object to every subsequent reference to the baseball bat incident, we conclude that his motion for a mistrial was sufficient to preserve the issue for purposes of appeal. STATE’S REBUTTAL EVIDENCE The primary defense at trial was the defendant’s good character. Many witnesses testified on behalf of the defendant concerning his reputation or their opinion of his nonviolent character. In response, the state presented evidence in the form of opinion and reputation evidence that the defendant was violent. The defendant testified in his own behalf, and on cross-examination by the state testified that he did not have a quick temper and that he tried to be easy-going. He also testified that he had, upon occasion, been in bar fights. The state questioned the defendant concerning the occurrence of a fight between him and a man named Ernie Flaaen over the defendant’s coaching of a Pop Warner football game. The defendant stated that he did not challenge Ernie Flaaen to fight. The state, in rebuttal, called Ernie Flaaen to the witness stand, and Flaaen testified that on that particular occasion, the defendant raised his fist at Flaaen, assumed a boxer stance, and said something about fighting. Flaaen also testified concerning his opinion that the defendant was violent. The defendant also testified about a bar fight in which he was involved, and when asked if Patsy Blackham witnessed this fight, he testified that she did not. He further testified that he had a disagreement with Patsy concerning how she kept statistics for Pop Warner football, but denied that he was going to hit her during the course of that discussion. In rebuttal, the state called Patsy Blackham to the witness stand and she testified that she did observe the defendant threaten to hit a man in the bar, and that he also threatened to hit her concerning the football statistics on a different occasion. The defendant did not object to the testimony of either Ernie Flaaen or Patsy Blackham. On appeal, the defendant contends that the introduction by the state of the specific instances of misconduct to prove the defendant’s character for violence was error. The state argues that the defendant has waived the claim of error by his failure to object at trial; that the testimony was properly admitted pursuant to rule 405(b); and that even if the admission of the rebuttal testimony was error it was harmless. The basic rule concerning the admissibility of past misconduct evidence is set forth in rule 404(b) quoted earlier. Rule 405 provides the method of proving character when character evidence is admissible pursuant to rule 404. Rule 405 states: (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct. Thus, character may be proved by testimony concerning a person’s reputation or by testimony in the form of a witness’s opinion. Only in certain instances, however, are specific instances of conduct admissible to prove character. Specific instance testimony may be inquired into and evidence admitted only on cross-examination pursuant to rule 405(a), or in cases in which character or a trait of character is “an essential element of a charge, claim, or defense” pursuant to rule 405(b). We are not here called upon to decide whether the rebuttal testimony would, under any theory, be admissible in evidence over the defendant’s objection. There was no objection. The defendant’s argument is that reversal is required even when the testimony was not objected to because of its prejudicial nature. For this, the defendant relies upon State v. Johnson, 94 Ariz. 303, 383 P.2d 862 (1963); State v. Price, 106 Ariz. 433, 477 P.2d 523 (1970), and State v. Ballantyne, 128 Ariz. 68, 623 P.2d 857 (App. 1981). Johnson and Price predate the Rules of Evidence adopted in 1977, but nevertheless provide general guidance. It should be noted, however, that in Arizona prior to the 1977 Rules of Evidence a character witness could not be cross-examined as to specific instances of conduct. Viliborghi v. State, 45 Ariz. 275, 43 P.2d 210 (1935). The fact that the opposite is now true throws a somewhat different light upon the subject of past conduct evidence, and prior Arizona cases must be read with this in mind. State v. Johnson and State v. Price hold to the principle that, even absent objection, it is reversible error for the state to make inquiry of past conduct of the defendant because of its prejudicial nature. It is noteworthy that in both of those cases, unlike the present case, there were objections to the rebuttal evidence involving specific acts, but no objection had earlier been made by the defendant when the state inquired about past conduct during cross-examination. In State v. Ballantyne, no objection was made either to cross-examination or to rebuttal evidence of specific acts introduced by the state. The court of appeals found no objection was necessary to preserve the error, relying upon State v. Price. In neither Johnson, Price nor Balia ntyne did the defendant place his character and reputation in issue and we therefore focus upon this distinction in evaluating the claim of fundamental error. In the present case, the defendant’s character and reputation were very much in issue. That fact, coupled with the propriety of the state’s cross-examination involving specific acts, defeats the argument that we should reverse because the error was fundamental. We hold, in this situation, that objection to the evidence was required in order to preserve the error for appeal. Since there was no objection here, there was no reversible error. In other words, if the defendant presents evidence that he is nonviolent and a person of good character, the rules of evidence allow the state to show to the contrary both by way of cross-examination as to specific acts and by witness testimony concerning opinion and reputation. The rules do not permit the state to rebut with specific instances of past conduct, but if such testimony is erroneously offered, the defendant must object to preserve the error. As a separate argument on this issue, the state contends that specific instances of conduct were in fact admissible pursuant to rule 405(b) because the defendant made trait of character for nonviolence an “essential element of his defense.” See State v. Miller, 128 Ariz. 112, 624 P.2d 309 (App. 1981); State v. Lehman, 126 Ariz. 388, 616 P.2d 63 (App.1980). We need not reach this question, however, in light of our disposition of the issue under the preceding discussion. The last issue raised by the defendant is that, based on the entire record, the prejudicial effect of the evidence relating to the baseball bat incident and the rebuttal testimony as to specific instances of conduct by the defendant substantially outweighed its probative value and denied the defendant a fair trial. Rule 403. After reviewing the entire case, we reject this contention. There was a great deal of evidence on both sides concerning whether the defendant was peaceful or violent. The subject was at the center of the case. The defendant testified that he had been involved in approximately half a dozen bar fights. Evidence was presented through the testimony of Sheri Savage, Misti Weaver, Loren Le Moine and Glenda Featherman that the defendant had assaulted Twyla Featherman and Loren Le Moine the night before Twyla’s disappearance. Glenda Featherman testified that the defendant assaulted her in August 1978. Misti Weaver testified that the defendant had hit Twyla with his fists numerous times prior to her death. Other persons testified that they had observed Twyla with injuries. The evidence of the Patsy Blackham incidents and Ernie Flaaen incident was clearly cumulative to the other evidence. Moreover, the trial in this case was lengthy and the Patsy Blackham and Ernie Flaaen evidence consumed only a very small portion of the trial. Lastly, the state’s case rested on the testimony of Glenda Featherman. The rebuttal testimony by Patsy Blackham and Ernie Flaaen did not corroborate or reflect on her testimony in any way. It is clear that, except as to the evidence of premeditation, the jury believed her testimony in arriving at its verdict. We are unable to say that the evidence was so prejudicial that the trial court abused its discretion in deciding that its probative value justified its admission. For the foregoing reasons, the judgment and sentence are affirmed. CORCORAN, Acting P. J., and HAIRE, J., concur. . The introduction of the prejudicial evidence in each of these three cases was for the purpose of impeachment. Impeachment was also involved in this case, but it was combined with proof of character. The issue raised by defendant in this appeal relates to the introduction of prior conduct evidence to prove character and implicates rules 404 and 405. We point out that the impeachment side of the issue implicates rule 608(b) which states that “specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than a conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.” We make no attempt in this opinion to disentangle these two aspects of prior conduct evidence. Suffice it to say that defendant’s reliance on Johnson, Price and Bai-iantyne is based on the effect of admitting instances of prior conduct regardless of whether they are introduced for impeachment/ or proof of character.

HAYS, Justice. After a jury trial, David DeRosier was found guilty of violating A.R.S. § 36-1002, possession of a narcotic drug. He was sentenced to four years probation. In a memorandum decision the Court of Appeals reversed and remanded. After rehearing was denied, both parties filed timely petitions for review which we granted. We take jurisdiction pursuant to A.R.S. § 12-120.24 and 17 A.R.S. Rules of Criminal Procedure, rule 31.19. Decision of the Court of Appeals is vacated. Judgment of the trial court is affirmed. Two issues are presented by this case. First, did the trial court err in refusing to suppress evidence seized during a warrant-less search? Second, did the trial court err in instructing the jury that intoxication is not a defense to illegal possession of a narcotic drug? On August 29, 1980, after working outside all day, appellant entered a Tucson pizza parlor. He became intoxicated and passed out at his table. The restaurant manager summoned the police when he could not awaken appellant. Police officers aroused appellant and escorted him outside. He was told that the manager did not want him inside the restaurant. Despite this admonition, appellant later went back inside the restaurant. He claimed he was looking for his cigarettes. The police officers observed appellant reenter the restaurant, then exit the restaurant under the manager’s firm grasp. The officers arrested appellant for trespass. A subsequent search of appellant produced a small vial of cocaine. At trial, appellant stated that two strangers had approached him in the restaurant. They wanted to sell him drugs or to trade the drugs for pizza. He told them he was not interested and asked them to leave. One of the strangers was still at the table when appellant passed out. Appellant claims he had never seen the vial before the officer took it out of his pocket. The trial court refused to suppress the evidence of the cocaine. Over appellant’s objection, the trial court instructed the jury that intoxication was not a defense to illegal possession of a narcotic drug. SEARCH Appellant contends the trial court erred in failing to suppress evidence of the cocaine because it was taken in a warrantless search. The trial court found that the officer personally observed appellant committing a misdemeanor, i.e., criminal trespass in the third degree, A.R.S. § 13-1502. The officer was justified in arresting appellant in accordance with A.R.S. § 13-3883(2), State v. Nixon, 102 Ariz. 20, 423 P.2d 718 (1967); State v. DeWoody, 122 Ariz. 481, 595 P.2d 1026 (App. 1979). It is well established that a police officer may make a full search of a person incident to a lawful custodial arrest. State v. Myers, 117 Ariz. 79, 89, 570 P.2d 1252, 1262 (1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978); State v. Susko, 114 Ariz. 547, 549, 562 P.2d 720, 722 (1977). The search here was pursuant to a lawful arrest. The officer was free to seize any criminal evidence. State v. Jackson, 112 Ariz. 149, 539 P.2d 906 (1975). We find no error. JURY INSTRUCTION Appellant contends the trial court erred in instructing the jury that intoxication is not a defense to the charge of unlawful possession of a narcotic drug. Appellant asserts that the cited authority for this instruction, A.R.S. § 13-503, is unconstitutional. We held to the contrary in State v. Ramos, 133 Ariz. 4, 648 P.2d 119 (1982). The offense of possession of a narcotic substance requires the mental state of “knowingly.” Under the Ramos rationale the court was correct in refusing to give an instruction which would allow the jury to consider appellant’s intoxication in determining his culpable mental state. While the instruction given did not follow the wording of A.R.S. § 13-503, we do not believe the jury was misled as to the law. The jury was additionally instructed that possession of a narcotic drug has three elements: one, the defendant must know he possessed a substance; two, the defendant must know that the substance is a narcotic drug, and three, the defendant must possess a usable amount of the narcotic drug. Further, the jury was instructed that the state must prove each element of the offense beyond a reasonable doubt. In light of all the instructions given, we find the jury was properly instructed on the law. Judgment of the trial court affirmed. HOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur. . A.R.S. § 13-1502(A) provides: A. A person commits criminal trespass in the third degree by: 1. Knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry. . A.R.S. § 13-3883(2) provides: A peace officer may, without a warrant, arrest a person: 2. When he has probable cause to believe a misdemeanor has been committed in his presence and probable cause to believe the person to be arrested has committed the offense. . A.R.S. § 13-503 provides: No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act.

OPINION HAIRE, Judge. The issue in this appeal is whether the trial court committed error when it allowed the appellee, Deming National Bank (Bank) to foreclose its mortgage against the appellant, Walraven, whose lien on the mortgaged real property was admittedly junior to the mortgage held by the Bank. The propriety of allowing the mortgage foreclosure is questioned by appellant because the Bank had previously brought an independent action on the secured indebtedness, obtained a judgment, executed on that judgment, and then purchased the mortgaged property at the execution sale for the full amount of the secured indebtedness, all without any attempt to foreclose its mortgage lien. The record below, omitting unnecessary details, shows that the Bank, which was doing business in New Mexico, had duly recorded its latest mortgage covering the subject real property in the Coconino County Recorder’s Office in January 1975. Wal-raven’s junior lien on the same real property came into existence in October 1975, when he duly recorded an abstract of judgment in the amount of $8,000 which he had obtained against the mortgagors. The Bank’s initial efforts by legal action to collect on the secured indebtedness began in New Mexico with a suit against the mortgagors. Since the mortgaged real property was situated in Arizona, the New Mexico action made no attempt to foreclose the mortgage, but did result in a June 1977 judgment against the mortgagors for the full remaining balance of the secured indebtedness. This New Mexico judgment was then forwarded by the Bank to Arizona counsel for collection purposes. Arizona counsel obtained a litigation report relating to the mortgaged property from a title company. Since the litigation report did not reflect the recorded junior lien held by Walraven, the Bank’s Arizona counsel decided to reduce the New Mexico judgment to a domestic judgment, and then to have an execution sale relating to the mortgaged property, rather than to bring a new Arizona action to foreclose the mortgage. As previously indicated, the Bank purchased the mortgaged property at the execution sale for the full amount of the secured indebtedness. The execution sale was held in November 1977. Some five months later, the Bank having in the interim period discovered the existence of the Walraven junior lien, filed the subject action to foreclose its mortgage, naming Wal-raven and the mortgagors as defendants. After the mortgagors defaulted, both the Bank and Walraven filed motions for summary judgment, and the trial court granted summary judgment in favor of the Bank, thereby allowing it to proceed with the foreclosure action against Walraven. In this appeal Walraven recognizes that notwithstanding the language of A.R.S. § 33-722, the mere fact that the Bank brought an independent action on the secured indebtedness and obtained a judgment thereon did not, in itself, preclude subsequent action by the Bank to foreclose its mortgage. See Smith v. Mangels, 73 Ariz. 203, 240 P.2d 168 (1952). Instead, Walraven’s contentions are based upon the additional facts that here, there has been an execution sale, and that at the execution sale the Bank purchased the mortgaged property for the full amount of the secured indebtedness. Thus, Walraven’s argument continues, the Bank has exercised a binding election between the two procedures available to it, and the purchase of the mortgaged property at the execution sale for the full amount of the debt has resulted in the extinguishment of both the indebtedness and the mortgage. From the foregoing, Walraven concludes that now the Bank, as an execution sale purchaser, owns the property subject to his lien. See generally A.R.S. § 12-1626(A); Lebrecht v. Beckett, 96 Ariz. 389, 396 P.2d 13 (1964); 47 Am. Jur.2d Judicial Sales, § 268. There can be no quarrel with the general principle that ordinarily when the secured obligation is discharged in full, any mortgage securing that obligation is extinguished and ceases to exist. As stated in Best Fertilizers of Arizona, Inc. v. Burns, 116 Ariz. 492, 570 P.2d 179 (1977): “This Court is committed to the modern doctrine that the debt or obligation secured is the principal thing and the mortgage is only an incident or accessory to it. It follows that whatever extinguishes, discharges or satisfies the debt or obligation will also discharge the mortgage. Weatherford v. Adams, 31 Ariz. 187, 251 P. 453 (1926). Where there has been payment of a debt, the mortgage is released. Valley National Bank v. Mil-moe, 74 Ariz. 290, 297, 248 P.2d 740 (1952).” 116 Ariz. at 493, 570 P.2d at 180. A strict application of the above principle here would result in reversal, since it is unquestioned that in legal contemplation when the Bank paid the full amount of its judgment at the execution sale, the judgment was satisfied and the indebtedness ceased to exist. The Bank, however, urges that Arizona has long recognized an exception to this extinguishment principle, by allowing a subsequent reforeclosure of a mortgage where a junior lienholder or the holder of any junior interest in the mortgaged property has been discovered after the conclusion of the initial foreclosure action. See Williams v. Williams, 32 Ariz. 164, 256 P. 356 (1927); Johns v. Wilson, 6 Ariz. 125, 53 P. 583 (1898), affirmed, 180 U.S. 440, 21 S.Ct. 445, 45 L.Ed. 613 (1901). In Williams v. Williams, supra, the Arizona Supreme Court specifically held that where a junior lienholder was omitted from the original suit by reason of mistake, a second foreclosure action to deal with the property rights of the junior lienholder .could be maintained. The court in that case, quoting Jones on Mortgages, stated: “ ‘If the owner of the equity has, through mistake, not been made a party, the mortgagee, who has purchased at a sale, may maintain a second action to foreclose the equity of such owner, and for a new sale, but he cannot recover the costs of the previous sale.... Although a new action is the proper remedy for a foreclosure imperfect through failure to make all persons interested in the equity of redemption parties to the suit, the courts have allowed the original suit to be reinstated upon an amended petition, even after an interval of several years.’ ” 32 Ariz. at 172-73, 256 P. at 358. See also the authorities cited, 59 C.J.S. Mortgages § 524. It appears that these authorities furnish ample support for the judgment entered by the trial court allowing the Bank to proceed with the foreclosure of its mortgage in this action. Walraven urges, however, that these decisions should not apply here, since the Bank’s initial Arizona action was not a mortgage foreclosure action, but rather the Bank was the purchaser of the mortgaged property at an execution sale resulting from the domesticized New Mexico judgment on the underlying indebtedness. He urges that by executing against the property based on that judgment rather than instituting foreclosure proceedings, the Bank was clearly attempting to avoid statutory rights given to junior lienholders under Arizona’s mortgage foreclosure statutes. First, we note that the record before this court does not support any inference that the Bank was attempting to avoid any rights which Walraven might have had as a junior lienholder. Rather, it is evident that the failure to foreclose its mortgage lien was the result of the Bank’s reliance on the title company’s litigation report and its lack of knowledge of the existence of the junior lien. Obviously, in the foreclosure action now authorized by the foreclosure judgment entered in the Bank’s favor, the full statutory rights given to a junior lienholder will now be available to Walraven. We recognize that there are authorities which, under varying factual circumstances, have refused to allow the subsequent foreclosure of a mortgage where the mortgagee has purchased the subject property at an execution sale based upon a judgment for the secured indebtedness. See 55 Am. Jur.2d Mortgages § 545; authorities cited in an Annot., 122 A.L.R. 485. These authorities have not, however, discussed a factual situation analogous to that presented here, nor referred to or distinguished controlling case law similar to that set forth by the Arizona Supreme Court in Williams v. Williams, supra. When the facts presented on this appeal are considered, we can perceive no logical reason why foreclosure should not be allowed here merely because the Bank initially proceeded by independent action on the indebtedness rather than by foreclosure action. The rationale that the mortgage is extinguished when the secured indebtedness is fully paid is equally applicable to both situations, and unless relief is granted the undiscovered junior lienholder gains un warranted superior rights in both instances. There appears to be no logical reason why the junior lienholder’s rights should now be allowed to become prior merely because the Bank, based upon an erroneous litigation report, proceeded by execution sale rather than by mortgage foreclosure. We therefore affirm the trial court’s judgment allowing the Bank to foreclose its , mortgage. EUBANK and CONTRERAS, JJ., concur. . Although there is some confusion in the record as to whether the purchase price at the execution sale was for the full amount of the remaining indebtedness ($42,913.79), or slightly less, since this is an appeal from the granting of summary judgment, we will state the facts in a light most favorable to appellant. Schmidt v. Mel Clayton Ford, 124 Ariz. 65, 601 P.2d 1349 (App.1979). . The Bank is not represented on this appeal by the same counsel. . A.R.S. § 33-722 provides: “§ 33-722. Election between action on debt or to foreclose If separate actions are brought on the debt and to foreclose the mortgage given to secure it, the plaintiff shall elect which to prosecute and the other shall be dismissed.” . Some authorities arrive at the same result by applying a “merger” theory of mortgage extin-guishment, that is, that the mortgage is extinguished when there is a merger in the mortgagee of both the legal and equitable estates in the property. See e.g., 55 Am.Jur.2d, Mortgages § 545. That theory has not been urged on this appeal. Therefore, we have not set forth facts relating to the intention of the parties which might be pertinent to a merger theory. For a decision refusing to apply the “merger” doctrine so as to preclude a foreclosure action against a junior lienholder following a prior execution sale which extinguished the indebtedness, see Reid v. McMichael Holdings, Inc., 56 A.2d 435 (N.J.Chan.1947).

OPINION HAIRE, Judge. Appellees, Philip R. and Barbara Nien-stedt, husband and wife, commenced this action in Maricopa County Superior Court to recover damages allegedly sustained as a result of abuse of process by appellants Manfred R. and Nancy Wetzel, husband and wife, in prior litigation between the parties. A jury verdict awarded the Nienstedts $7,350 as compensatory damages and $50,-000 as punitive damages. The Wetzels have appealed from the judgment entered on that verdict. Although several issues have been raised on appeal, we will first address appellants’ contentions concerning the applicability of abuse of process concepts to the claim involved here, as well as the contention that the evidence was insufficient to justify submission of the claim to the jury. ABUSE OF PROCESS Viewing the evidence in a light most favorable to supporting the judgment, we find that the following facts were established at trial. In February 1975, Manfred Wetzel, then an attorney licensed to practice law in Arizona, filed a complaint against the Nien-stedts in Maricopa County Cause No. C-307988 for breach of an alleged oral contract, fraud and defamation. Appellants and the Nienstedts were neighbors when this complaint was filed and the lawsuit involved an alleged oral contract pursuant to which the parties were to share the cost of building a retaining wall on appellants’ property adjacent to the Nienstedts’ property. The Nienstedts’ liability under the alleged oral contract would have amounted to $780.69. Appellant Manfred Wetzel had purchased the home prior to his marriage to Nancy Wetzel and brought suit solely in his name. The Nienstedts answered the complaint and counterclaimed against both of the appellants on the assumption that Nancy Wetzel, even though not named as a plaintiff in the complaint, might have a legal interest in the home. In his capacity as the Wetzels’ attorney, Manfred Wetzel thereafter filed a pleading entitled a “Counter-counterclaim” on behalf of his wife. This pleading was essentially a reiteration of the original complaint naming Nancy Wetzel as the “Counter-counter-claimant.” On May 13, 1975, the Nienstedts filed a motion to dismiss and strike the counter-counterclaim as an improper pleading. On January 29,1976, the Nienstedts not having filed an answer or a reply, appellants entered their default on the counter-counterclaim. On February 27, 1976, a default hearing before a superior court judge was conducted at which time the default was set aside and the court set April 2, 1976, as the time for hearing the Nienstedts’ motion to dismiss and strike, as well as other pending motions. On that date the court, by minute entry order, denied the motion to dismiss and strike, and stated that following completion of discovery the court would consider realignment of the parties. On April 27, 1976, appellants entered another default against the Nienstedts on the counter-counterclaim and noticed a default hearing before a court commissioner for May 27, 1976. The Nienstedts filed a motion to quash the default hearing, and at the hearing on this motion the trial court vacated the default hearing and realigned the parties denominating Nancy Wetzel as a plaintiff. The court further joined the counter-counterclaim with the complaint and held that the answer previously filed by the Nienstedts would be considered as an answer to the counter-counterclaim and that the counterclaim previously filed by the Nienstedts would be considered as a counterclaim against both appellants. Numerous discovery motions were filed by both parties. At one point the trial court imposed sanctions for what it described as obstructionist activities of appellants. In August 1976, one day prior to the scheduled trial, appellant Manfred Wetzel moved for a continuance. The motion stated that he was committed to represent a client at another trial scheduled on the same day on a matter having a lower cause number. In response, the Nienstedts filed an affidavit stating that appellant Manfred Wetzel did not appear as the counsel of record on that particular case. However, appellant Manfred Wetzel filed an uncon-troverted affidavit stating that although his brother’s name appeared as the attorney of record, he and his brother had associated on the case and he was in fact trying the case. In response to one of the Nienstedts’ motions to produce, appellants filed a motion for a protective order to prevent disclosure of two tape recordings allegedly containing conversations of the Nienstedts which Manfred Wetzel had filed with the court in a sealed envelope. Manfred Wetzel had indicated to the Nienstedts that these tapes proved the existence of an oral contract, and if played at trial, could be used to prove perjury by the Nienstedts. He represented to the court that these tape recordings were to be used for impeachment purposes and also were subject to protection because they constituted his work product as an attorney inasmuch as the questions on the tape “were structured” by him. He further requested that the court review the tapes in chambers and determine whether they were privileged as his work product. At the hearing on appellants’ motion for the protective order appellants were represented by counsel other than Manfred Wetzel. Following the court’s denial of his motion for a protective order, Manfred Wetzel admitted to the court that the tapes were blank, contrary to his prior express affirmation to the court that the tapes contained questions structured by him. The court then found that appellant Manfred Wetzel had deceived the court, had willfully and intentionally failed to comply with the Nienstedts’ motion for production, and had filed motions for enlargement of time and for a protective order which were a sham and unjustified. Consequently, the court dismissed appellants’'complaint as a sanction pursuant to Rule 37, Arizona Rules of Civil Procedure, 16 A.R.S. The court further awarded the Nienstedts $500 in attorney’s fees incurred on their motion to produce and their response to appellants’ motion for protective order, plus their total court costs incurred in that action. The Nienstedts then commenced this litigation against appellants claiming that abuse of process in the prior litigation had occurred when appellants: sought recovery of punitive damages in a contract action; filed a motion to continue by reason of another pending action in which appellant Manfred Wetzel did not appear as attorney of record; entered default on an improper pleading; entered a second default and scheduled a hearing before a court commissioner when the appellants knew that the trial judge had set aside an identical default and contemplated realignment of the parties; and failed to act in good faith in discovery proceedings. The Nienstedts contended that in engaging in the aforementioned procedures, the primary goal of the appellants was to utilize processes of the court to harass the Nienstedts by purposely subjecting them to excessive legal fees in defending against appellants’ claims. In this connection, there was evidence that during discovery proceedings appellant Manfred Wetzel told the Nienstedts that through this case he was going to make the Nienstedts’ attorney a rich man; that he (Wetzel) could break people financially (impliedly through subjecting them to legal fees and expenses); and, that because he was a lawyer representing himself it would not be necessary for him to incur similar fees and expenses. Against this factual background we now address the legal requirements necessary for the establishment of an abuse of process claim. First, we note that through developing case law the word “process” as used in the tort “abuse of process” is not restricted to the narrow sense of that term. Rather, it has been interpreted broadly, and encompasses the entire range of procedures incident to the litigation process. Barquis v. Merchants Collection Association of Oakland, Inc., 7 Cal.3d 94, 496 P.2d 817, 101 Cal.Rptr. 745 (1972); Thornton v. Rhoden, 245 Cal.App.2d 80, 53 Cal.Rptr. 706 (1966); Younger v. Solomon, 38 Cal.App.3d 289, 113 Cal.Rptr. 113 (1974); Foothill Industrial Bank v. Mikkelson, 623 P.2d 748 (Wyo.1981). Thus it has been held that a request for admissions will, under appropriate circumstances, support a complaint for abuse of process, Twyford v. Twyford, 63 Cal.App.3d 916,134 Cal.Rptr. 145 (1976). See also Hopper v. Drysdale, 524 F.Supp. 1039 (D.Mont. 1981) (the noticing of depositions). As applied to this case, we therefore consider as “processes” of the court for abuse of process purposes, the noticing of depositions, the entry of defaults, and the utilization of various motions such as motions to compel production, for protective orders, for change of judge, for sanctions and for continuances. Concerning whether the utilization of any of these processes singly or collectively constitutes an abuse of the court’s processes, the Restatement (Second) of Torts (1977), states the general principle as follows: “§ 682. General principle “One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.” Under this view, to establish a claim for abuse of process there must be a showing that the defendant has (1) used a legal process against the plaintiff; (2) primarily to accomplish a purpose for which the process was not designed; and, (3) harm has been caused to the plaintiff by such misuse of process. Although Arizona case law relating to the tort of abuse of process is not extensive, it appears to be in accord with the Restatement’s view, recognizing that the essential elements of the tort include (1) a willful act in the use of judicial process; (2) for an ulterior purpose not proper in the regular conduct of the proceedings. We consider this second requirement to be essentially equivalent to the Restatement’s element requiring a showing that the process has been used primarily to accomplish a purpose for which the process was not designed. See Bird v. Rothman, 128 Ariz. 599, 627 P.2d 1097 (App.), cert. denied, 454 U.S. 865, 102 S.Ct. 327, 70 L.Ed.2d 166 (1981); Rondelli v. County of Pima, 120 Ariz. 483, 586 P.2d 1295 (App.1978); Joseph v. Markovitz, 27 Ariz.App. 122, 551 P.2d 571 (1976); Gray v. Kolhase, 18 Ariz.App. 368, 502 P.2d 169 (1972); Blue Goose Growers, Inc. v. Yuma Groves, Inc., 641 F.2d 695 (9th Cir. 1981). We reject appellants’ suggestion that we adopt the position taken by some courts which require as an additional element of an abuse of process claim, a showing that the wrongful use of the court’s process has resulted in the seizure of plaintiffs’ person or property. See Funk v. Cable, 251 F.Supp. 598 (N.D.Pa.1966); Sachs v. Levy, 216 F.Supp. 44 (E.D.Pa.1963); Sie-brand v. Eyerly Aircraft Company, 185 F.Supp. 538 (D.Or.1960). Such a requirement has not been set forth in prior Arizona decisions or in the Restatement, and, in essence, would limit the scope of the tort to those instances involving the use of “process” in the strictest sense of that term. As previously indicated, the later authorities interpret “process” as encompassing the entire range of court procedures incident to the litigation process, and do not restrict the tort to the utilization of process in the nature of attachment, garnishment or warrants of arrest. Arizona case law recognizes that the gist of the tort is the misuse of process, justified in itself, for an end other than that which it was designed to accomplish. Rondelli v. County of Pima, supra; see also Prosser, The Law of Torts, § 121 (4th ed. 1971). It is immaterial that the process may have been properly obtained or issued as a normal incident of the litigation involved. It is the subsequent misuse which constitutes the misconduct for which liability is imposed. See Restatement (Second) of Torts § 682, Comment (a) (1977). On the other hand, the authorities recognize that there is no liability when the defendant has done nothing more than legitimately utilize the process for its authorized purposes, even though with bad intentions. See generally, Prosser, Law of Torts, § 121, p. 857 (4th ed. 1971). This same concept is implied in the Restatement’s § 682’s use of the word “primarily,” which is explained in Comment (b): “b. ‘Primarily.’ The significance of this word is that there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.” Seizing upon the above-quoted language of Comment (b), the appellants contend that even if it is assumed that appellant Manfred Wetzel had an incidental motive or ulterior purpose to cause the Nienstedts to incur substantial legal expenses, nevertheless there can be no liability because appellants merely used the legal procedures available in this litigation for the very purposes for which they were intended. We would agree with appellants’ position if the evidence presented in the trial court was such as to require the conclusion that the complained of processes were in fact invoked for legitimate and reasonably justifiable litigation purposes. However, there is evidence from which a trier of fact could have concluded that in many instances the ulterior or collateral purpose of appellant Manfred Wetzel to subject the Nienstedts to excessive litigation expenses was in fact his primary purpose, and that his use of various legal processes was not for legitimate or reasonably justifiable purposes of advancing appellants’ interests in the ongoing litigation. Although our research has not revealed any cases in which liability for abuse of process has been imposed where the ulterior or collateral purpose involved has been to expose the injured party to excessive attorney’s fees and legal expenses, we can perceive no reason why general abuse of process principles should not apply to such circumstances. Cf. Ginsberg v. Ginsberg, 84 A.D.2d 573, 443 N.Y.S.2d 439 (1981) (abuse of process liability imposed when party repeatedly used subpoena processes for the purpose of exhausting the opponent’s financial resources); Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Association, Inc., 38 N.Y.2d 397, 343 N.E.2d 278, 380 N.Y.S.2d 635 (1975) (involving the use of witness subpoena power for 87 teachers so as to impose financial hardship); Dishaw v. Wadleigh, 15 A.D. 205, 44 N.Y.S. 207 (1897) (involving assignment of collection claims to an associate in a distant part of the state, thereby purposely exposing debtors to the inconvenience and expense of attending a distant court). We recognize that the utilization of virtually any available litigation procedure by an attorney will generally be accompanied by an awareness on that attorney’s part that his action will necessarily subject the opposing party to additional legal expenses. The range of feeling in the initiating attorney evoked by that awareness might well vary from instances of actual indifference to instances of intense satisfaction. By our holding in this case we do not intend to suggest that liability for abuse of process should result from either of the said instances alone. Liability should result only when the sense of awareness progresses to a sense of purpose, and, in addition the utilization of the procedure for the purposes for which it was designed becomes so lacking in justification as to lose its legitimate function as a reasonably justifiable litigation procedure. As previously stated, there was evidence presented here of many instances from which a trier of fact could have concluded that the ulterior or collateral purpose of appellant Manfred Wetzel to subject the Nienstedts to excessive litigation expenses was in fact his primary purpose, and that his use of various legal processes was not justified or used for legitimate or reasonably justifiable purposes of advancing appellants’ interests in ongoing litigation. RES JUDICATA Appellants argue that even if this court determined that a cause of action for abuse of process was properly alleged and proven, this issue was previously ruled upon in the prior litigation, Maricopa County Cause No. C-307988, thus giving rise to the defense of res judicata. This contention is based upon the fact that in the prior litigation brought by the Wetzels against the Nienstedts, the trial court dismissed Wetzels’ complaint and awarded the Nienstedts $500 in attorney’s fees. In that action the court found that attorney Wetzel had willfully abused the processes available to him by misleading the court that the blank tapes constituted his work product. Appellants point out that the Nienstedts moved to recover $7,350 attorney’s fees as a sanction in Cause No. C-307988 and that this motion was denied and no appeal was taken. Appellants argue that since this request for attorney’s fees was denied in Cause No. C-307988 it could not be recovered in a separate action for abuse of process. Under the doctrine of res judicata, a judgment on the merits in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Under the doctrine of collateral estoppel such judgment precludes relitigation of issues actually litigated and determined in the prior suit regardless of whether it was based upon the same cause of action as the second suit. Industrial Park Corporation v. U.S.I.F. Palo Verde Corporation, 26 Ariz.App. 204, 547 P.2d 56 (1976). In Cause No. C-307988, the basis for the imposition of sanctions was limited to appellants’ activities in relation to the blank tapes. Further, the award of attorney’s fees was by the terms of the minute entry order limited to attorney’s fees incurred with respect to that issue. Thus, many issues alleged by appellees as constituting abuse of process in Cause No. C-351561 were not addressed in Cause No. C-307988 and the doctrines of res judicata and collateral estoppel are not applicable. We further note that res judicata is an affirmative defense that must be pleaded. Rule 8(d), Arizona Rules of Civil Procedure, 16 A.R.S. Appellants’ answer in the instant case does not contain any reference to res judicata. Failure to plead res judicata constitutes a waiver of this defense. Hanrahan v. Sims, 20 Ariz.App. 313, 512 P.2d 617 (1973); see also Abner v. Arizona Newspapers, Inc., 11 Ariz.App. 237,463 P.2d 543 (1970). APPELLEES’ FAILURE TO TIMELY ANSWER INTERROGATORIES AND FILE PRE-TRIAL STATEMENT The parties had agreed that the interrogatories in question did not have to be answered until after the trial court ruled on appellants’ motion for summary judgment. The motion was determined on May 11, 1979 and the parties were informed of the decision on or about May 15, 1979. The answers to interrogatories were received by appellants on May 30, 1979, the day before trial. The interrogatories contained questions relating solely to the identification of witnesses and exhibits that appellees intended to use at trial. The names of these witnesses and exhibits were filed with the court and reflected that the only witnesses to be called were the parties themselves and the only exhibits to be presented were portions of the court’s records in Cause No. C-307988. Rule 26(e)(1), Arizona Rules of Civil Procedure, 16 A.R.S., provides that, unless the parties otherwise agree, if a party fails to identify a witness prior to 30 days before the date of trial, “any witness not so identified shall not be permitted to testify except for good cause shown.” However, the trial court has great discretion in imposing sanctions for the violation of the rules of discovery. Zakroff v. May, 8 Ariz.App. 101, 443 P.2d 916 (1968). The trial court concluded that no prejudice would result to appellants because of the delay in receiving the answers to interrogatories since the witnesses and exhibits listed were identical to those previously filed with the court. The determination whether to impose a sanction for failure to update interrogatories is within the reasonable exercise of the trial court’s discretion. Greco v. Manolakos, 24 Ariz.App. 490, 539 P.2d 964 (1975). We do not find that the trial court abused its discretion in refusing to impose sanctions under the circumstances of this case. Similarly the trial court has wide discretion under Rule 16(c), Uniform Rules of Practice, 17A A.R.S. governing pre-trial statements. Packard v. Reidhead, 22 Ariz.App. 420, 528 P.2d 171 (1974). Appellants filed a pre-trial statement as required by Rule 16 but appellees failed to do so. The trial court permitted appellees to join in appellants’ pre-trial statement and found that no prejudice had occurred to appellants as a result of this joint pre-trial statement. We are of the opinion that the trial court did not abuse its discretion by refusing to dismiss the lawsuit or to place it on the inactive calendar. ADMISSION OF TESTIMONY CONCERNING APPELLANT MANFRED WETZEL’S SUSPENSION FROM THE PRACTICE OF LAW Prior to trial the court granted appellants’ motion in limine to exclude any reference during trial to appellant Manfred Wet-zel’s suspension from the practice of law. However, the court subsequently reversed its ruling and informed counsel in chambers that it would permit a limited inquiry into this issue because during the course of appellant Wetzel’s testimony he had on several occasions, before the jury, accused appel-lees’ counsel of unethical and illegal conduct. The court restricted such inquiry as follows: “... the Court has now advised counsel that the plaintiffs through their counsel may if they choose to do so ask defendant Wetzel whether or not he has been suspended indefinitely from the practice of law by the Arizona State Supreme Court because of ethical violations of the Code of Professional Responsibility- “The Court has further advised counsel that if an affirmative response to said question is given by Mr. Wetzel, that the Court will not allow further inquiry into said subject matter.” Appellees’ counsel asked appellant Wetzel whether he had been so suspended. Appellant responded affirmatively and no further reference was made to this matter. Appellants argue that the trial court erred by admitting this testimony because it was irrelevant and therefore inadmissible or, alternatively, because even if relevant, its probative value was outweighed by its prejudicial effect requiring its exclusion pursuant to Rule 403, Arizona Rules of Evidence, 17A A.R.S. Appellants argue that appellant Wetzel’s suspension from the practice of law did not make it “more probable” that an abuse of process was perpetrated on appellees and therefore it was not relevant. However, this argument ignores the fact that evidence of appellants’ suspension was not introduced to prove the existence of abuse of process but to impeach appellant Wetzel’s credibility in making purportedly authoritative statements on legal ethics. This evidence was relevant for impeachment purposes. The trial court may exclude relevant evidence pursuant to Rule 403, Arizona Rules of Evidence, 17A A.R.S., which provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The trial court has wide discretion pursuant to this statute. The record in this case reflects thoughtful consideration by the trial court in balancing the potential prejudicial effect of evidence concerning appellant Manfred Wetzel’s professional status and its relevancy to issues brought into the trial by appellant himself. The admission of evidence is a matter largely within the discretion of the trial court and its ruling will not be disturbed except where there is an abuse of discretion. Circle K Corporation v. Ro-senthal, 118 Ariz. 63, 574 P.2d 856 (App. 1977); Butler v. Wong, 117 Ariz. 395, 573 P.2d 86 (App.1977). Given the fact that appellant himself brought the issue of legal ethics into the trial and because the trial court carefully limited the inquiry into appellant’s suspension to one question and one answer, we conclude that the trial court did not abuse its discretion in admitting this evidence. EXCESSIVE VERDICT Appellants do not contest the award of $7,350 as actual damages except on the basis that the actual damages were precluded by the res judicata effect of the superior court decision in Maricopa County Cause No. C-307988. As previously discussed, the award of attorney’s fees in the prior action related only to the award of fees relative to appellees’ motion to produce and response to appellants’ motion for protective order. The record in this matter contains testimony that the attorney’s fees sought in the present action were fees incurred in excess of the amount awarded in the prior action. Appellees also sought compensatory damages in the present action for mental suffering. The jury verdict does not specify in its award of actual damages the amounts granted for attorney’s fees or mental suffering. Therefore, we make no assumption with respect to the amounts allocable to these claims. Appellants’ argument on appeal concerning excessive damages is limited to an attack on the award of $50,000 punitive damages which they claim was the result of passion or prejudice. The only arguments asserted in support of this claim are that the failure of appellees to introduce evidence relative to appellants’ wealth or financial resources resulted in the jury having no way of relating punitive damages to appellants’ economic status. Additionally, it is urged that the amount of punitive damages was excessive in comparison to the actual damages awarded. Appellants speculate that the excessive punitive damages award was caused by the introduction of evidence relative to appellant Wetzel’s suspension from the practice of law. In Arizona, there is no compensatory-punitive damage ratio limit. Whether punitive damages are excessive is based solely on the circumstances of each case and one of the factors that the jury may consider in assessing the degree of punishment is the wealth of the defendant. Dodge City Motors, Inc. v. Rogers, 16 Ariz.App. 24, 490 P.2d 853 (1971). However, we are aware of no authority, nor has appellant cited any authority, indicating that evidence of the wealth of a defendant is a necessary prerequisite to an award of .punitive damages. For cases holding that such evidence is not required, see Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975); Carrick v. McFadden, 216 Kan. 683, 533 P.2d 1249 (1975); Fahrenberg v. Tengel, 96 Wis.2d 211, 291 N.W.2d 516 (1980); Rogers v. Florence Printing Company, 233 S.C. 567, 106 S.E.2d 258 (1958). In any event, a defendant may not complain of the absence of evidence of his wealth when he has made no effort to introduce such evidence. Rogers v. Florence Printing Company, supra; Rinaldi v. Aaron, supra. The amount of an award for punitive damages is a matter of discretion with the trier of fact, and such award will not be disturbed unless it is so unreasonable in regard to the circumstances as to show influence of passion or prejudice. Nielson v. Flashberg, 101 Ariz. 335, 419 P.2d 514 (1966). The size of the verdict alone is not sufficient evidence of passion or prejudice on the part of the jury. Jackson v. Mearig, 17 Ariz.App. 94, 495 P.2d 864 (1972). Punitive damages are allowed where the conduct of the wrongdoer is wanton, reckless or shows spite or ill will. E.g., Salt River Valley Water Users Association v. Giglio, 113 Ariz. 190, 549 P.2d 162 (1976); Country Escrow Service v. Janes, 121 Ariz. 511, 591 P.2d 999 (App.1979). Where the trial court has refused to interfere with the jury’s determination of damages, this court cannot interpose its own judgment on the issue unless convinced that the verdict is so excessive as to suggest passion or prejudice. Frontier Motors, Inc. v. Horrall, 17 Ariz.App. 198, 496 P.2d 624 (1972). The record in this matter contains testimony from which a jury could conclude that appellants’ conduct reflected spite, ill will and reckless indifference to the interest of appellees. We do not find the verdict so excessive as to suggest passion or prejudice. The judgment of the trial court is affirmed. CONTRERAS, Acting P. J., Department A, and OGG, J., concur. . The disposition in that action is also on appeal to this court, 1 CA-CIV 5685. It is a separate appeal and is not considered in this opinion. . See A.R.S. § 1-215(26) which, for statutory interpretation purposes, gives a restricted definition of the word “process”. . Rule 16(c)(4), Uniform Rules of Practice, 17A A.R.S. provides: “(4) The failure of any attorney for the plaintiff to comply with Rule (c)(1) of this rule will render the party represented by such attorney subject to judgment of dismissal or assignment of the case to the inactive calendar.” . Rule 401, Arizona Rules of Evidence, 17A A.R.S., provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

OPINION JACOBSON, Presiding Judge. This case prevents novel questions regarding the effect of a prior federal prosecution on criminal proceedings in the State of Arizona. The issues concern the possible collateral estoppel effect of the federal prosecution, as an aspect of double jeopardy under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and the statutory defense provided by A.R.S. § 13-112. The facts pertinent to this narrow inquiry are that in December, 1977, defendants Richard Berry and Richard Kerekes were indicted by a federal grand jury in Reno, Nevada for 10 counts of violation of federal statutes, including mail fraud, fraud by wire, interstate transportation of money obtained by fraud and travel in interstate commerce, aiding and abetting and conspiracy. In June of 1978, Berry pled guilty to conspiracy and the remaining counts were dismissed as to him; Kerekes went to trial and was found guilty of all 10 counts. The essence of the federal charges was that the defendants, with others, conspired to and did devise a scheme to defraud and obtain money from victims who were seeking letters of commitment and credit against which mortgage loan financing could be obtained. In fact, the letters of commitment and credit were worthless. As a result of the scheme, numerous victims throughout the country paid the defendants an advance fee for the letters. The defendants accepted the advance fees, knowing that the commitment letters were worthless and that they were unable to provide the financing. As a result none of the mortgage financing was ever obtained. The federal charges specifically named six victims of the fraud. Although it appears that the federal government knew of two Arizona victims, Dee Clegg and Lonnie Skinner, the federal prosecutors chose not to charge the defendants with separate substantive crimes involving these victims. In March of 1980, the state obtained an indictment in Maricopa County Cause Number CR-111286 which charged Berry, Ker-ekes and another with conspiracy and two counts of grand theft by false pretenses. The conspiracy alleged was the same as that charged in the federal proceeding, and the two remaining counts were theft charges in regard to the victims Skinner and Clegg. The defendants moved to dismiss the conspiracy count, apparently on the grounds that it constituted double jeopardy and violated A.R.S. § 13-112. At oral argument on the motion, the state agreed that the conspiracy count should be dismissed. Because of other procedural difficulties with the case, the state agreed to the dismissal of the case in its entirety without prejudice, and sought another indictment on the two substantive charges of grand theft. In July of 1980, the state obtained another indictment in this case, Cause Number CR-113556. This case alleges two counts of theft by false pretenses as to the victim Clegg (Count I) and victim Skinner (Count II). The defendants moved to dismiss Count II on double jeopardy (collateral es-toppel) grounds, and the trial court on October 24,1980, granted the motion. The state filed a motion to reconsider the dismissal on November 4, 1980, and the defendants filed a motion to dismiss Count I as well, also on collateral estoppel grounds. The state’s motion to reconsider was denied on November 24, 1980, and the defendant’s motion to dismiss Count I was likewise granted on the same date. The state on December 1,1980, appealed from the orders of the trial court in granting both motions to dismiss and in denying the motion for reconsideration as to the dismissal of Count II. A.R.S. § 13-4032(1). The defendants have raised, by a motion to dismiss, the question of this court’s jurisdiction to entertain the state’s appeal of the dismissal of Count II of the indictment. As previously indicated, the time sequences applicable to Count II are that the court order dismissing Count II was entered on October 24, 1980, and the state’s motion to reconsider that order was filed on November 4, 1980. On November 24, 1980, the motion to reconsider was denied and on December 1, 1980, the state appealed. 17 A.R.S., Rules of Criminal Procedure, Rule 31.3, requires that a notice of appeal be filed within 20 days of the order being appealed. The time for filing of a timely notice of appeal is essential to the exercise of jurisdiction by this court over the appeal. State v. Good, 9 Ariz.App. 388, 452 P.2d 715 (1969). The notice of appeal filed December 1, 1980, is more than 20 days from the order dismissing Count II, but is within 20 days from the order denying the motion to reconsider. The question then becomes whether an order denying a motion to reconsider is itself an appealable order, or if not, whether a motion to reconsider, extends the time for appealing the order of dismissal. The right to appeal is strictly statutory. State v. Valdez, 48 Ariz. 145, 59 P.2d 328 (1936). A.R.S. § 13-4032 provides that: An appeal may be taken by the state from: 1. An order dismissing an indictment, information or complaint or count of an indictment, information or complaint. ****** 5. An order made after judgment affecting the substantial rights of the state. Since an order dismissing a count of an indictment is specifically made appealable, we conclude that an order denying reconsideration of that appealable order is not “an order made after judgment affecting the substantial rights of the state.” The state has not argued that it is. We therefore conclude that an order denying reconsideration of an order of dismissal is not an appealable order in and of itself so as to vest jurisdiction in this court to consider it. The state argues that a motion to reconsider is properly allowable under Rule 16.1(d). We agree. However, the right to file a motion to reconsider does not answer the question of whether the filing of such a motion extends the time for appeal. The filing of a motion affecting an appealable order does not extend the time for filing an appeal from that order, in absence of a rule so providing. In the Matter of Maricopa County, Juvenile Action No. JS-1109, 26 Ariz.App. 518, 549 P.2d 613 (1976). Unlike the Rules of Civil Appellate Procedure (See A.R.S. 17A, Rule 9(b)), the Rules of Criminal Procedure do not provide that the filing of certain types of motions extends the time for filing an appeal. Determinable finality is an important consideration and therefore there must be a basis in the rules for a motion which will extend the time for appeal. Cf. Maganas v. Northroup, 112 Ariz. 46, 537 P.2d 595 (1975). We hold that the filing of a motion to reconsider an order dismissing a count of an indictment does not extend the time for filing a notice of appeal from the order of dismissal. Since the notice of appeal was filed more than 20 days from the entry of the order of dismissal, we have no jurisdiction over the appeal of the dismissal of Count II, except to order the dismissal of this appeal as to that count. However, we do have jurisdiction of the state’s timely appeal as to the dismissal of Count I, and therefore proceed to consider the merits of that appeal. The first issue presented by the defendants is whether the State of Arizona’s prosecution of them, subsequent to the federal prosecution, is barred by principles of collateral estoppel as an aspect of double jeopardy, as enunciated in Ashe v. Swenson, supra. In that case, three or four armed men robbed six poker players and the defendant was charged in separate counts with robbery of each of the six men, and with auto theft. He was acquitted in a Missouri state court on the charge of robbery of one of the victims, and then subsequently tried and convicted on a second count of robbery of a different victim. The United States Supreme Court held that the federal rule of collateral estoppel, embodied in the United States Constitution’s Fifth Amendment guarantee against double jeopardy, precluded the second prosecution. The state could not be allowed to relitigate the single issue which rationally could have been in dispute, i.e., the identity of the defendant. In applying this rule, the Court said that the initial proceeding must be examined, to see if the prior determination could have been based on an issue other than the one which the defendant sought to foreclose from reconsideration. If the prior determination could not have been based on a different issue, then that issue would be foreclosed. See also State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960); State v. Forteson, 8 Ariz.App. 468, 447 P.2d 560 (1968). In our opinion, constitutional provisions against double jeopardy or collateral estoppel as an aspect of double jeopardy are simply not applicable when the two prosecutions are by different sovereigns. The requirements of the rule of collateral estoppel are set forth in Annot., Res Judica-ta — Criminal Cases, 9 A.L.R.3rd 203 at 214 (1966): A common statement of the rule of collateral estoppel is that where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action. It has also been said that the doctrine of collateral estoppel operates, following a final judgment, to establish conclusively a matter of fact or law for the purposes of a later lawsuit on a different cause of action between the parties to the original action. To invoke the principle of collateral estoppel there must exist a final judgment rendered upon the merits by a court of competent jurisdiction in a prior action between the parties, upon a matter within its jurisdiction, and directly determining a question of fact distinctly put in issue and not merely collaterally in question. (Emphasis added.) Regarding the constitutional provisions which guarantee freedom from a double jeopardy, it is generally recognized that a federal prosecution is no bar to a state’s subsequent prosecution of the same person for the same acts, because the two governments are separate political sovereigns. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) reh. den., 360 U.S. 907, 79 S.Ct. 1283, 3 L.Ed.2d 1258 (1959). The same consideration which precludes the application of double jeopardy generally, is equally applicable to the doctrine of collateral estoppel — the parties in the two litigations are different. Since there is no contention that the State of Arizona was in any manner in privity with the United States’ prosecution of the defendants, that prior litigation could not collaterally estop the state from its day in court. While collateral estoppel may not be applicable, Arizona provides some statutory protection against such multiple prosecutions via A.R.S. § 13-112: § 13-112. Former conviction or acquittal in another state When on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or country, founded upon the act or omission in respect to which he is on trial he has been acquitted or convicted, it is a sufficient defense. (Emphasis added.) The defendants argue that the act or commission which was the subject matter of the federal prosecution — the fraudulent scheme to obtain “advance fees” — is the same act or omission by which the state seeks to prove theft by false pretenses and is thus barred by A.R.S. § 13-112. The state counters by contending, that while both the federal prosecution and the state prosecution may rely upon similar facts, since the victim Clegg was not named in the federal indictment, the elements of the crime surrounding this victim are not identical to the elements surrounding the federal prosecution of other victims and thus the defense provided by A.R.S. § 13-112 is not available. We first note that the defense of A.R.S. § 13-112 is predicated upon the same “act or omission,” while the double jeopardy provisions of the United States and Arizona constitutions bar prosecution for the same “offense.” We believe this distinction to be crucial, for it is no answer to the applicability of A.R.S. § 13-112 to point out that the “offenses” prosecuted by the federal government (conspiracy, interstate transportation, etc.) are different from the “offense” sought to be prosecuted by the state (theft by false pretenses). In our opinion, if the act or omission giving rise to both prosecutions is the same, A.R.S. § 13-112 provides a complete defense. It thus becomes necessary to define the scope of “act or omission.” We note that the term “act or omission” used in A.R.S. § 13-112 is the same term used in A.R.S. § 13-116 dealing with double punishment. Logically, the term should consistently be given the same interpretation in both statutes. Case law has long established that A.R.S. § 13-116 is interpreted by applying the “identical elements” test. State v. Gordon, 125 Ariz. 425, 610 P.2d 59 (1980). This test requires eliminating the elements of one crime, and then determining whether the remaining evidence supports the elements of the other charge. State v. Gordon, supra. This is the test adopted by Henderson v. State, 30 Ariz. 113, 244 P. 1020 (1926) which interpreted the predecessor of A.R.S. § 13-112, a statute which contained almost the identical language of the current version. We realize in adopting this interpretation that the Arizona Supreme Court in the recent case of State v. Poland, 132 Ariz. 269, 645 P.2d 784 (consolidated) (1982), has indicated that A.R.S. § 13-112 deals with differing crimes rather than differing acts and omissions. However, the court in Poland was not required to perform an in depth analysis of A.R.S. § 13-112 since whether an “offense” analysis or an “identical elements” analysis was engaged in that case, the result is the same — armed robbery obviously having different elements than murder, — and the evidence supporting the two was different. Applying the identical elements test to Berry, we find that A.R.S. § 13-112 provides no defense. In the federal prosecution, Berry pled guilty to conspiracy in violation of 18 U.S.C. § 371. The elements of conspiracy under the federal statute are that (1) two or more persons must conspire; (2) to commit any offense against the United States (or defraud the United States); and, (3) one or more of such persons do an act to affect the object of the conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). The crime is completed simply upon the formation of the criminal agreement and the performance of an overt act in furtherance thereof. Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956), cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957). The state crime with which Berry was charged is theft by false pretenses under former A.R.S. § 13-661(A) which requires proof that the defendant (1) knowingly and designingly (2) by a false or fraudulent representation or pretense (3) obtained money or other value. Since evidence in the federal prosecution need not show completion of the crime, while such evidence must be shown to convict under the state charge, the elements are obviously different and the evidence supporting the two charges are different. Thus the “act or omission” necessary to convict the defendant of federal conspiracy is not the same “act or omission” to convict the defendant Berry of theft. With respect to defendant Kerekes, he was found guilty of conspiracy and nine other substantive charges. What we have stated concerning the conspiracy charge as to Berry is equally applicable to Kerekes. As to the substantive charges, none involved the victim Clegg. Assuming evidence is submitted showing that Kerekes defrauded Clegg, eliminating the Clegg evidence does not show that Kerekes also defrauded the victims involved in the federal prosecution. Conversely, additional evi dence must be produced in the state prosecution for the defrauding of Clegg that was not produced in the federal prosecution of other victims. In summary, we find that neither defendant is being prosecuted in Arizona for the identical “act or omission” for which he had been previously prosecuted in federal court. A.R.S. § 13-112 does not bar prosecution in the instant case. For the foregoing reasons, the state’s appeal as to Count II is dismissed; the trial court’s order dismissing Count I is reversed; and the matter is remanded for further proceedings consistent herewith. GRANT, J., and RICHARD M. DAVIS, Judge Pro Tern., concur. NOTE: The Honorable RICHARD M. DAVIS, a Judge pro tempore of a court of record, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const, art. VI, § 20. . Formerly § 13-146. Transferred and renumbered as § 13-112 by Laws 1977, Ch. 142, § 40, effective October 1, 1978. . Amended by Laws 1979, Ch. 74, § 2; Laws 1980, Ch. 50, § 6. . The quoted language is from the amendment to this statute, (Laws 1980, Ch. 50 § 6), effective August 31, 1980. Since the effective date was prior to the trial court order dismissing the count and the filing of the notice of appeal, although subsequent to the filing of the indictment, wé have assumed the amendment is applicable for the purposes of this appeal. See State v. Fridley, 126 Ariz. 419, 616 P.2d 94 (App.1980). . § 13-116. Double punishment An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other, to the extent the constitution of the United States or of this state require. . In State v. Poland, the court stated: Defendants contend, however, that the Arizona prosecution is barred by former A.R.S. § 13-146 [now A.R.S. § 13-112]____ We disagree. This is not a situation of parallel prosecutions. The prosecutions were for distinct and separate crimes occurring at different times. The federal prosecutions were for kidnapping and armed robbery, while the state prosecution was for murder.

OPINION OGG, Presiding Judge. The appellant/defendant, Alfred Randal Barber, was indicted on 84 counts involving conspiracy, fraud in the sale of securities, sale of unregistered securities, sale by an unregistered security dealer, and grand theft by false pretenses. The appellant was found guilty, after a jury trial, on 45 counts and was sentenced to concurrent terms of not less than three years nor more than four years on Count I, and not less than four years nor more than six years on the remaining counts. The appellant has appealed and is currently released on bond pending the disposition of this appeal. The appellant raises six issues for our disposition which will be considered in the order presented in appellant’s opening brief. I. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION TO DISMISS CERTAIN COUNTS AS BEING BARRED BY THE STATUTE OF LIMITATIONS? The indictment against the appellant was returned by the statewide grand jury on April 10,1979. The original indictment was amended twice during trial to dismiss certain counts. The appellant contends that 14 of the security fraud counts should have been dismissed because they were barred by the statute of limitations. The following listed contested counts, charges, and dates are set out below for clarification of this issue. Count Charge Date of Sale Last Dividend Payment 16 Security Fraud 9/5/72 6/14/74 17 " " 4/10/73 " 22 " " 10/2/72 6/28/74 23 " " 1/10/74 " 24 " " 2/21/74 " 37 " " 4/3/73 " 38 " " 4/6/73 8/15/74 39 " " 10/22/73 " 40 " " 10/18/73 " 41 " " 10/29/73 " 42 " " 11/5/73 " 43 " " 1/10/74 " 44 " " 2/27/74 " 45 " " 4/9/74 " In each of the above counts, the appellant is charged with directly or indirectly selling or offering for sale fraudulent securities on the specific dates set out in the “date of sale” column. A.R.S. § 13-106.B (repealed 1978), which applies to the time frame of this case, reads in pertinent part as follows: An indictment for a felony other than those mentioned in subsection A of this section shall be found, or an information filed for such felony, within 5 years after its commission .... (emphasis added) Appellant argues that the above listed 14 security fraud counts are barred by the statute of limitations because the April 10, 1979 indictments were more than five years after the date of the sale of the securities. The state argues that the appellant made payments allegedly representing dividends on each of the securities in question well within the statutory five-year period. The state contends the payment of these so-called dividends was an integral part of the scheme to defraud rather than events merely incidental to the security fraud. A criminal statute of limitations puts a time limitation in which the state has jurisdiction to act against the accused. Such statutes are to be liberally construed in favor of the accused and against the prosecution. State v. Fogel, 16 Ariz.App. 246, 492 P.2d 742 (1972). It is well settled that a statute of limitations begins to run when an offense is completed. Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1942). In Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), the Supreme Court pointed out that the fraudulent scheme involved (mail fraud) was completed when the defendants received the money that was intended to be obtained by their fraud, and that certain subsequent banking transactions were merely incidental and collateral to it, and not a part of it. The appellant relies upon Carroll v. United States, 326 F.2d 72 (9th Cir.1963), where the Ninth Circuit relied on Kann in concluding that the mailing of stock certificates evidencing the ownership of stock previously offered, accepted and paid for did not go to the essence of the “offer or sale” proscribed by the Securities Act, and were only incidental to it. The court found that the crime was complete when the sale of the stock was executed by offer, acceptance and payment. The Ninth Circuit distinguished Carroll in United States v. Brown, 578 F.2d 1280 (9th Cir.1978), cert. denied, 439 U.S. 928, 99 S.Ct. 315, 58 L.Ed.2d 322, where the defendant argued that five counts of violations of 15 U.S.C. §§ 77q(a) (securities fraud) were barred by the statute of limitations. The sales in issue in Brown were evidenced by the written assignment of land purchase contracts, and the receipt of payments from individual investors in return for the assignments, which took place more than five years before the return of the indictment. Many of the land contracts were forged. Payments were made within the five year period to purchasers of these forged instruments as if they were genuine. The defendant in Brown relied on Carroll in arguing that the subsequent use of the mails by him to transmit purported monthly payments to individual investors was not part of the “offer or sale” and that such mailings could not constitute the starting point for the computation of the period of limitations. The Brown court found that the facts of the case before them did not fall within the holding of Carroll. It held as follows: The mailings of purported monthly payments to the purchasers of the land contracts, in our view, constitute an integral part of the transaction which the court found to be fraudulent. In analogous prosecutions under the mail fraud statute (18 U.S.C. § 1341) activities tending to lull investors, either to prevent discovery of fraud or to permit further fraudulent activities to progress unhindered, have been held to constitute a part of the execution of the fraudulent scheme and to be integral to the offense rather than incidental to it. United States v. Ashdown, 509 F.2d 793 (5th Cir.1975); United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). The record before us is ample to support a like conclusion. United States v. Brown, supra, 578 F.2d at 1285. See also United States v. Jensen, 608 F.2d 1349, 1355 (10th Cir.1979), (“the statute of limitations is no bar if there is an ongoing scheme continuing into the five year period.”); United States v. McDonald, 576 F.2d 1350, 1357 (9th Cir.1978), cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124 (where payments mailed to investors concealed land fraud scheme, caused some investors to invest more money and maintained defrauding company’s reputation as a reliable source of investments, statute of limitations did not begin to run until after those payments were made). Similarly, in the case before us, the indictment alleged that appellant and his co-conspirators planned and participated in a comprehensive scheme to defraud investors. Evidence was adduced at trial which indicated that appellant’s method of operation was to locate potential investors through the sale of medicare supplemental insurance policies. Once appellant and his associates ascertained that the victims had money to invest, they would offer them an opportunity to buy stock in allegedly growing and stable companies. After the victims had invested in these companies, appellant would pay them “dividends” which he represented as profits of the company. The evidence showed that these “dividends” did not come from company profits. One victim testified that by receiving regular dividend payments, she “thought it was a good company and it was responsible [and] never thought it was anything else but what they claimed it to be.” We agree with appellee that the facts of this case fall within the reasoning of Brown. The record before us is sufficient to support a conclusion that the dividend payments were in furtherance of the fraudulent scheme and served the purpose of lulling the recipients into a state of complacency, thus perpetuating the fraudulent scheme. Accordingly, these payments may constitute the starting point for the computation of the period of limitations. The trial court did not err in denying appellant’s motion to dismiss these counts as barred by the statute of limitations. II. DID THE TRIAL COURT ERR IN FAILING TO DISMISS CERTAIN COUNTS IN THE INDICTMENT AS BEING DUPLICITOUS AND MULTIPLICITOUS? Appellant contends there was multiplici-tous charging by the state on seven counts of grand theft by false pretenses and that the court erred in not dismissing such counts, which were numbered as counts 3, 7, 11,15, 28, 32 and 36. Appellant argues that the same facts and offenses were charged as security fraud in counts 2, 4, 8,12, 25, 29 and 33. A charge may be defective as multiplicitous when it charges a single offense in multiple counts. State v. O’Brien, 123 Ariz. 578, 601 P.2d 341 (App.1979). In determining multiplicity the court must consider whether each count of the indictment requires proof of a fact that the other counts do not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Appellee argues, and we agree, that the elements of grand theft by false pretenses and the elements of security fraud differ in at least four respects: 1. A material omission is an element of security fraud, not theft by false pretenses. 2. Security fraud can involve a misrepresentation concerning a future fact, theft by false pretenses requires misrepresentation of a past or existing fact. 3. In security fraud the victim does not have to transfer anything of value, whereas theft by false pretenses requires reliance upon the misrepresentation and loss. 4. A security is a required element in security fraud, not of theft by false pretenses. We find security fraud and theft by false pretenses to be separate and distinct crimes. Consequently, prosecution of one does not preclude prosecution for the other. The contested counts raised in this issue were not multiplicitous. Appellant further contends that the se-' curity fraud counts numbered 16,17, 22, 23, 24, 37, 38, 39, 40, 41, 42, 43, 44 and 45 were duplicitous. Appellant argues that each of these counts alleges two separate and distinct crimes in each count, to-wit: (1) a fraudulent sale of a security on or about a certain date; and (2) a subsequent and continuing course of conduct designed to defraud the victim and others in the future. A duplicitous indictment is one that charges two or more distinct offenses in a single count, thereby preventing the jury from deciding each offense separately and concealing from the defendant and the court the specific charge or charges on which the jury found the defendant guilty. United States v. Murray, 618 F.2d 892 (2d Cir.1980). The rationale underlying the prohibition against duplicitous indictments is to give notice to the defendant of exactly what charges he must defend against and to avoid the consequences of the inability of the jury to indicate which way they are voting on each of the charges. Dunn v. State, 50 Ariz. 473, 73 P.2d 107 (1937); Kimble v. State, 539 P.2d 73 (Alaska 1975). From our review of the record in each of the counts alleged to be duplicitous, we find that only one crime has been charged, that of security fraud. The allegations complained of, regarding the subsequent “dividend” payments, do not allege an additional crime but in fact constitute a part of the execution of the fraudulent scheme and are integral to the offense charged. See United States v. Brown, supra. We do not find the 14 contested security fraud counts to be duplicitous. It is further argued that count 2 is also duplicitous in making an allegation that the defendant defrauded nine persons involving numerous acts over an extended period of time. These same allegations are realleged as to each individual victim in subsequent counts. The fact that count 2 contains a factual description of the fraudulent scheme and that there is reference to this description in subsequent counts does not make the count duplicitous. There is no error in giving a defendant more information than is statutorily required in the indictment. We do not find count 2 to be duplicitous. III. DID THE TRIAL COURT ERR IN GRANTING THE STATE’S MOTION TO AMEND AS TO COUNTS 4, 5, 6 and 7 OF THE SECOND AMENDED INDICTMENT? At the close of all the evidence, the state moved to amend counts 4, 5, 6 and 7 of the second amended complaint to conform to the evidence. All of these counts involved transactions with Walter J. Cox. The evidence offered at trial was that Walter J. Cox had loaned $7,000 to National Hospital Plan Insurance Agency, Inc. and not to National Hospitalization, Inc. as charged in the indictment. Over the appellant’s objection, the court allowed the amendments to conform to the evidence. Appellant contends it was error for the court to permit the amendment of a fact that had been previously determined by the grand jury without presenting it back to that body for approval. Based upon this error, the appellant contends the trial court should have granted appellant’s motion for a directed verdict or judgment of acquittal as to all counts involving Walter J. Cox. Rule 13.5(b), Arizona Rules of Criminal Procedure, 17 A.R.S., provides in pertinent part as follows: The charge may be amended only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment. The charging document shall be deemed amended to conform to the evidence adduced at any court proceeding. A defect may be considered formal or technical when its amendment does not operate to change the nature of the offense charged or to prejudice the defendant in any way. State v. Bruce, 125 Ariz. 421, 610 P.2d 55 (1980). In determining the propriety of an amendment to an indictment to conform to the evidence, this court must consider whether the allowing of that amendment would violate two important rights of the defendant, to-wit: (1) the defendant must have been put on notice of the charges against him with an ample opportunity to prepare to defend against them; and (2) the acquittal of the amended charge must provide a double jeopardy defense to a subsequent prosecution on the original charge. State v. Phelps, 125 Ariz. 114, 608 P.2d 51 (App.1979). In the Phelps case, this court held that the substitution of the name of the brokerage firm for that of the stockbroker in the indictment in order to conform the indictment to the evidence would not prejudice the defendant because the defendant was fully aware of the transaction, the applicable charge, and the available defenses. Here we find that the amendment did not change the nature of the offense charged, nor did it prejudice the appellant in any way. The factual amendment to the indictment to reflect the correct name of the corporation does not change the nature of the substantive charge. The evidence before the grand jury was consistent with the evidence presented at trial and the appellant had access to all such information prior to trial. The transaction which gave rise to the charges set forth in counts 4, 5, 6 and 7 was described with particularity both at the grand jury proceedings and in count 1. It appears the defendant was fully aware of the charge against him and had ample opportunity to prepare his defense. The amendments granted did not limit the appellant’s defense of double jeopardy for the entire record of the case would be available to bar a subsequent prosecution for any possible charges pertaining to a Walter Cox loan. A double jeopardy defense is not limited to the four corners of the indictment. State v. Phelps, supra. We find no prejudice to the appellant in the amendments granted by the trial court. IV. DID THE TRIAL COURT ERR IN FAILING TO INSTRUCT THE JURY ON THE STATUTORY EXEMPTIONS CONTAINED IN A.R.S. §§ 44-1843 and 44-1844? Appellant argues that it was error for the trial court to fail to instruct the jury on the statutory exemptions set out in A.R.S. § 44-1843, which defines what exempt securities are, and § 44-1844, which defines what exempt transactions are. In addition, he claims that it was incumbent upon the state to prove that the notes involved were not exempt securities and that the transactions were not exempted by law. He further alleges that the state’s failure to present evidence on this issue is also error. To begin our analysis of this issue, we first note that the state is not required to prove that the securities and transactions were not exempted by law. A.R.S. § 44-2033 provides: In any action, civil or criminal, when a defense is based upon any exemption provided for in this chapter, the burden of proving the existence of the exemption shall be upon the party raising the defense, and it shall not be necessary to negative the exemption in any petition, complaint, information or indictment, laid or brought in any proceeding under this chapter. This statute clearly places the burden upon the appellant to prove the existence of any exemption he deemed applicable to this case. State v. Baumann, 125 Ariz. 404, 610 P.2d 38 (1980). We further note that there is no competent evidence in the record to support an instruction on any of the exemptions listed in §§ 44-1843 and 44-1844, with the exception of the limited exemption for certain negotiable notes or commercial paper. This exemption was covered by defense instruction number 1 which was given by the court as modified. It is the opinion of this court that the trial court did not err in the failure to give instructions covering the exemptions of §§ 44-1843 and 44-1844. V. WAS THE EVIDENCE PRESENTED BY THE STATE SUFFICIENT TO ALLOW THE CASE TO GO TO THE JURY? In reviewing the transcript to determine an issue raised as to the sufficiency of the evidence, this court must consider the evidence in the light most favorable to sustaining the verdict of the jury, and all reasonable inferences must be resolved against the appellant. State v. Gaines, 113 Ariz. 206, 549 P.2d 574 (1976). We have reviewed the transcript in such a light and find there was competent evidence to permit the trial court to submit the case to the jury. We find no error here. VI. WAS THE APPELLANT GIVEN COMPETENT LEGAL REPRESENTATION THROUGHOUT THE ENTIRE TRIAL? Appellant has requested his present appellate counsel to raise the issue relative to his allegation that he was not given adequate legal representation at the trial level. The standard in Arizona for the determination of such an issue is whether the representation by the defendant’s lawyer was so ineffective that the proceedings were reduced to a farce, sham, or mockery of justice. State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981). The Ninth Circuit Court of Appeals has adopted a more comprehensive test which mandates that the legal representation conform to a “reasonably competent” standard. See Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir.1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Using either of the above standards, it is the opinion of this court that the appellant received competent legal representation throughout this long and complex trial. The convictions and sentences are affirmed. CORCORAN and FROEB, JJ., concur. . The language of 15 U.S.C. § 77q(a) is similar to the language of A.R.S. § 44-1991, the securities fraud statute which is the basis of the convictions which appellant contends were barred by the statute of limitations. . This instruction as given reads as follows: The provisions of the law pertaining to the crimes of sale of unregistered securities and sale by an unregistered security dealer or salesman do not apply to negotiable promissory notes or commercial paper, if the issue of such notes or paper matures in not more than twelve months from date of issue and is issued within three months after the date of sale, and if such sale arises out of current transactions or the proceeds of which have been or are to be used for current transactions.

OPINION GRANT, Judge. This is an appeal from an order entered by the trial court after a hearing on an order to show cause. The issue raised is whether the father, the appellee, is liable for orthodontic expenses incurred by the mother, the appellant, on behalf of the parties’ minor child. On August 7, 1972, Francis M. Smith, appellant, was granted a divorce from Alfred K. Smith, appellee. The decree awarded appellant custody of the parties’ minor child, Jill. The decree provided that appellee make child support payments in the amount of $100 per month, and further provided that appellee pay “all medical bills and dental bills incurred for the health and protection of said minor child until further order of the Court.” Approximately three years later, the decree was modified by stipulation of the parties, so that appellee’s child support obligation would thereafter be satisfied by Social Security benefits which Jill began receiving as a result of appellee’s retirement. In October of 1977, appellant took Jill to an orthodontist for braces. After the bill was paid in full, appellant demanded reimbursement from appellee, which was refus ed. On January 30, 1980, appellant filed a petition for order to show cause why appel-lee should not be required to reimburse appellant for payment of the orthodontic expenses. After hearing testimony, the court subsequently determined that under the terms of the modified divorce decree, appellee had no obligation to pay for Jill’s orthodontic services. The court did determine that a bill of $147.00 for cleaning and filling Jill’s teeth was a dental expense within the meaning of the decree and ordered appellee to pay appellant only that amount. Appellant has appealed from that order. We affirm. We begin by restating the pertinent language of the decree. Appellee was ordered to pay “all medical bills and dental bills incurred for the health and protection of said minor child until further order of the Court.” (emphasis added) The subsequent modification changed only the manner of payment of appellee’s child support obligation; nothing else in the decree was affected thereby. In his response to the petition for order to show cause, appellee presented two reasons why he should not be required to pay for orthodontic expenses. He first claimed that he was entitled to a set off or credit because the Social Security benefits received by the child exceed the $100.00 per month child support he was originally ordered to pay. We are unimpressed by this argument, as was the trial court. The excess resulted from an increase in Social Security benefits and not by reason of voluntary payments by appellee. Furthermore, the child is entitled to the Social Security benefits because of the stipulated modification of the original decree and as a matter of law due to appellee’s retirement. 42 U.S.C. § 402(d)(1) (1976). Appellee then complained that appellant did not use the dentist he designated. As the trial court found there is no such restriction in the decree of divorce. The trial court did not find these reasons persuasive but, instead, determined that an orthodontic expense was not within the meaning of the above-quoted provision of the divorce decree. Appellant argues that the trial court erred by deciding this matter on the basis of a consideration that was neither raised in the response nor at the hearing. We disagree. First of all, we note that “[generally, a responsive pleading to an order to show cause is not required unless ordered by the court.” In Re Estate of Taylor, 5 Ariz.App. 144, 149, 424 P.2d 186, 191 (1967). A show cause order only compels a respondent to appear at the hearing and contest the necessity of the action requested by the petitioner. Turner v. Turner, 576 S.W.2d 452 (Tex.Civ.App.1978); Herring v. Standard Guaranty Insurance Company, 238 Ga. 261, 232 S.E.2d 544 (1977). Therefore, any reliance by appellant on the “defenses” raised in appellee’s response is misplaced. While these “defenses” may help to frame the issues raised by the proceeding, they should not operate to “freeze” those issues as may be the case where responsive pleadings are required. Additionally, appellant can hardly argue that whether orthodontic work was within the purview of the decree was a question raised for the first time in appel-lee’s post-hearing memorandum. Rule 15(b) Ariz.R.Civ.P., 16 A.R.S. The transcript of proceedings reveals substantial testimony elicited from appellee which indicated that appellee did not pay the orthodontic bill because he did not think it was an expense contemplated by the divorce decree. Also, near the end of the hearing, the court made a similar statement to that effect. Moreover, a show cause hearing does not shift the burden of proof from petitioner to respondent, but only requires the respondent to oppose a prima facie case when it is first made out by the petitioner. Chambers v. Blickle Ford Sales, Inc., 313 F.2d 252 (2d Cir. 1963); Turner v. Turner, supra; Herring v. Standard Guaranty Insurance Company, supra; Zemurray v. Kilgore, 130 Fla. 317, 177 So. 714 (1937); 60 C.J.S. Motions and Orders § 37(5) (1969). Accordingly, at the hearing in the court below, the burden of showing why appellee should pay for the orthodontic expense remained with appellant. This burden was not met. Appellant’s entire case in chief consisted only of appellant’s testimony that over $1,700.00 in orthodontic expenses had been paid for on behalf of Jill. No attempt was made to show why those expenses were necessary for Jill’s health and protection, as opposed to cosmetic reasons. Appellant must stand on the strength of her own showing, and not depend on claimed weaknesses in the presentation of her opponent’s case. We must view the evidence in a light most favorable to sustaining the judgment of the trial court, and we will affirm that judgment if there is any reasonable evidence to support it. Bender v. Bender, 123 Ariz. 90, 597 P.2d 993 (App.1979); Thorton v. Southwest Flour and Feed Company, 8 Ariz.App. 190, 444 P.2d 747 (1968). We find no evidence to support appellant’s claim that pursuant to the divorce decree appellee was required to pay for the orthodontic expenses of their minor child when appellant failed to show the expenses were necessary for the child’s health and protection. The order of the trial court is affirmed. JACOBSON, J., and RICHARD M. DAVIS, J. pro tern., concur. NOTE: The Honorable RICHARD M. DAVIS, a Judge pro tern, of a court of record, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const, art. VI, § 20.

OPINION CONTRERAS, Judge. At issue in this special action review of an Industrial Commission award is whether the administrative law judge abused his discretion in dismissing petitioner’s claim as untimely filed without a meritorious excuse. We conclude that he did, and therefore set aside the award. BACKGROUND The essential dates and events are these: March 28,1978 Jack Cohen (Collins) was killed in Florida, allegedly within the course of his employment. August 3, 1978 Eugene Keller, counsel for the estate of Jack Cohen, having been contacted by the stepson of Barbara Cohen, the widow (hereafter petitioner), wrote to the insurance agency which had sold respondent carrier’s policy to respondent employer. Keller advised the agency of Cohen’s death and inquired about procedures for making a claim on behalf of the estate and/or the widow. August 8, 1978 The insurance agency sent Keller an Employer’s Report of Industrial Injury, but not a Widow’s Claim. The accompanying letter stated: Enclosed please find Workmen’s Compensation forms to be filled out for the claim on Jack Cohen.... October 13, 1978 The Employer’s Report, filled in by petitioner, was sent to the insurance agency, and subsequently forwarded to the carrier. October 17, 1978 The carrier filed the Employer’s Report with the Industrial Commission. May 11, 1979 Counsel for the estate called the Industrial Commission, inquired about the status of the claim, and was informed that a Widow’s Claim should be filed. August 1, 1979 Petitioner filed Widow’s Claim with the Industrial Commission, one year and four months after Jack Cohen’s death. Subsequently, the carrier denied the claim. Pursuant to petitioner’s request a hearing was held limited to the question arising from the late filing of petitioner’s claim. The administrative law judge issued a decision dismissing the claim. That decision included the following dispositive finding: 15. The evidence does not establish that the approximate, four-month delay in the filing of the claim was excessive under the circumstances or that the carrier was prejudiced. However, the evidence also does not establish that the applicant has a meritorious reason for the late filing of the claim. Therefore, the late filing is not excused. The decision was affirmed on administrative review and this special action review followed. Since the late filing occurred prior to the effective date of the current A.R.S. § 23-1061(A), relief from the late filing is governed by the three-part test developed in Kleinsmith v. Industrial Commission, 26 Ariz.App. 77, 546 P.2d 346 (1976), approved and adopted, 113 Ariz. 189, 549 P.2d 161 (1976), and Andrew v. Industrial Commission, 118 Ariz. 275, 576 P.2d 134 (App.1977). The administrative law judge found that the delay was not excessive and the carrier was not prejudiced. Accordingly, the only issue on appeal is whether petitioner presented a meritorious reason underlying the late filing so as to excuse it. We conclude that she did present facts which constituted a meritorious excuse. First, petitioner originally filed the wrong form with the Industrial Commission. That form had been provided by the insurance agency. Respondent asserts that since no misrepresentation was made by either the carrier or the employer, St. Paul Fire & Marine Ins. Co. v. Industrial Commission, 25 Ariz.App. 595, 545 P.2d 443 (1976), is inapplicable and petitioner is not entitled to relief. We disagree. The issue is not limited to whether any of the respondents actively misled petitioner (intentionally or not), see Keeler v. Industrial Commission, 122 Ariz. 16, 592 P.2d 1282 (App. 1979). Rather, the broad issue in this case requires a consideration of whether petitioner’s error was the result of her reasonable reliance on incorrect information. In other words, any element of “fault” is not conclusive. Even if the insurance agency was not the agent of either the carrier or employer, it did hold itself out as informed and competent to advise on workmen’s compensation claims. Keller informed the agency that Cohen was dead and a widow’s claim was at least contemplated, but the form supplied was inappropriate for that purpose. We believe that petitioner was justified in assuming that the agency’s letter with the included form was responsive to Keller’s inquiry. Her reasonable reliance on that letter was a factor to be considered in determining whether there was a meritorious excuse for the delay. Second, after the incorrect form was filed in October 1978, the Industrial Commission took no action for seven months, until contacted by Keller in May 1979. A.R.S. § 23-1061(C) provides: C. If the commission receives a notification of the injury, the commission shall send a claim form to the employee. The Commission offered no explanation other than computer malfunction or oversight or clerical error for its failure to comply with the statutory directive. The result was that petitioner did not even receive the correct form until more than a year after the death of Jack Cohen. The administrative law judge dismissed the significance of this factor, stating that it was not established that there was any intention in the enactment of A.R.S. § 23-1061(C) to make the Commission the entity which would ultimately be responsible for the timely filing of claims, or to shift the burden of timely filing from a claimant to the Industrial Commission. Similarly, respondents argue that the Commission’s failure to send the proper claim form does not result in an automatic waiver of the one-year statute of limitations. Both the administrative law judge’s finding and respondent’s related argument miss the point. The issue is not whether the Commission neglected some statutory duty, nor whether such neglect would, in every case, provide relief from the one-year filing requirement, but whether petitioner’s error, in this particular case, was the result of her reasonable assumption that lack of communication from the Commission indicated that her claim was being processed. We believe that it was. The administrative law judge disposed of both the above excuses by finding that, even had petitioner been furnished the correct forms, she still probably would have not made a timely filing. 8. Insofar as applicant’s reason for the late file is that she relied upon others to do it, and they apparently did not do it in a timely manner, it is concluded that this is not a meritorious reason within the meaning of The Workmen’s Compensation Act. 13. The applicant stated that if the Commission had sent a claim form to her timely she would have signed it and filed it immediately, or she would have called the office of the employer. However, it is apparent from the remainder of her testimony that if she had received the claim form she would have left it to others to handle. And the evidence does not establish that if she had left it to others to handle the claim would have been filed timely. In fact, from the circumstances revealed by the evidence it is equally if not more reasonable to infer that there would have been just as great a chance that the claim would not have been timely filed, even if it had been sent to the applicant, since the applicant would have relied upon other people to do it for her. We find no support in the record for these speculative “findings”. The delay from August 3, 1978, when Keller made the first inquiry of the insurance agency, until October 17, 1978, when the wrong form was filed with the Commission, was only two and one-half months. Likewise, the delay from May 11, 1979, when Keller made his inquiry to the Commission, until August 1, 1979, when the correct form was finally filed with the Commission, was only two and one-half months. There is nothing in the record to suggest that, had petitioner been furnished the correct form in August 1978, she would not have filed it by October 1978, i.e., well before the year expired. Similarly, there is nothing in the record to suggest that there would not have been a timely filing if the Commission had met its statutory directive and provided petitioner with the correct form in October 1978. The “finding” that, had she been furnished the correct form in August 1978 or October 1978, she would likely not have filed it by March 1979 is pure speculation. To the extent that the administrative law judge discounted petitioner’s excuse because of her reliance on others, specifically her stepson and attorney Keller, we fail to see the logic involved. We do not believe that petitioner’s reliance on others adds or subtracts anything from the merits of her excuses. Likewise, respondents’ contention that petitioner’s reliance on others amounted to an “intentional renunciation of responsibility” or deliberate relinquishment of her claim is clearly without merit. Petitioner, having shown that the insurance agency provided her the incorrect form and that the Commission failed to take the action which would have corrected the error, demonstrated a meritorious reason underlying the late filing, and the administrative law judge abused his discretion in finding otherwise. The award is set aside. EUBANK and HAIRE, J., concur.

OPINION JACOBSON, Presiding Judge. The question before the court is whether the trial court erred in reducing the defendant’s sentence from not less than 40 nor more than 50 years to not less than 15 nor more than 30 years. The state brings this petition for review pursuant to 17 A.R.S., Rules of Criminal Procedure, Rule 32.9, from the trial court’s order granting the defendant’s petition for post-conviction relief, and denying the state’s motion for rehearing. We find that the trial court did err in granting the petition for post-conviction relief. On July 10, 1975, the defendant was convicted of possession of dangerous drugs for sale in violation of the former A.R.S. §§ 32-1970(C), 32 — 1996(C), and 32-1901, and was sentenced to serve a term of not less than 40 nor more than 50 years in the Arizona State Prison. The defendant filed a timely notice of appeal, and his conviction and sentence were affirmed by the supreme court in State v. Pike, 113 Ariz. 511, 557 P.2d 1068 (1976). When the defendant was convicted, the statute under which he was sentenced provided that a person who was convicted of possession of a dangerous drug for sale could be punished by imprisonment in the state prison for a term of one year to life. Subsequent to the defendant’s conviction, the legislature amended the statute making possession for sale of a controlled substance a class 2 felony and set the punishment for this, as a second offense with a prior felony, at not more than 21 years with the presumptive sentence as 10.5 years. The defendant filed a petition for post-conviction relief seeking to have his sentence modified on the grounds that the original sentence imposed was excessive to the point of being a cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States. The defendant also attached to the petition for post-conviction relief numerous letters of recommendation attesting to his rehabilitation since the date of his incarceration. The state responded to the petition for post-conviction relief arguing that the defendant was precluded from seeking the relief requested because he had failed to raise the issue on appeal, and further arguing that the defendant could not obtain relief because he had failed to directly attack the constitutionality of the former A.R.S. § 32-1970(C). See State v. O’Neill, 117 Ariz. 343, 572 P.2d 1181 (1977). On July 31, 1981, the trial court entered its order granting the petition for post-conviction relief and sentencing the defendant to serve a term of not less than 15 nor more than 30 years in the Arizona State Prison, ostensibly in order to make the defendant eligible for parole on May 1, 1985, which is when the defendant would be eligible for parole had he been sentenced under the 1979 session laws’ criminal code. The state timely filed a motion for rehearing which was denied on August 13, 1981, and on August 19, 1981, the state filed a petition for review. The threshold question presented is whether the trial court had jurisdiction in the Rule 32 proceedings to modify the sentence originally imposed. It is clear in Arizona that the trial court has no inherent authority to modify a sentence already lawfully imposed. State v. Filipov, 118 Ariz. 319, 576 P.2d 507 (App.1977). It is equally clear that the trial court may not modify a sentence which has been affirmed on appeal when the defendant claims in Rule 32 proceedings that he has been rehabilitated since the imposition of sentence. State v. Guthrie, 111 Ariz. 471, 532 P.2d 862 (1975); State v. Zebrowski, 24 Ariz.App. 452, 539 P.2d 926, approved, 112 Ariz. 433, 543 P.2d 119 (1975). Thus, the trial court commits legal error in attempting to modify a sentence based on the defendant’s claim that he had been rehabilitated. We assume the trial court was aware of these rules and did not consider legally impermissible matters in reducing sentence. Therefore, in reviewing this matter this court will not consider the evidence presented by the defendant of his rehabilitation inasmuch as the evidence is irrelevant by operation of law. However, in order to attack the validity of a sentence in the collateral proceedings pursuant to Rule 32, a defendant may assert grounds which bring him under the rule and thus afford the trial court jurisdiction to act within the purview of the rule. In the instant case, the defendant did allege that his original sentence of not less than 40 nor more than 50 years was cruel and unusual and in violation of the Eighth Amendment of the Constitution to the United States. 17 A.R.S., Rules of Criminal Procedure, Rule 32.1(a), provides that a defendant may secure appropriate relief on the grounds that his sentence was in violation of the Constitution of the United States. Thus, the trial court did have jurisdiction to review the defendant’s claim. We find, however, that the sentence originally imposed on the defendant was not cruel and unusual under the facts of the case as they existed at the time the defendant was sentenced. The defendant claimed in the Rule 32 proceedings that the sentence originally imposed on him was grossly disproportionate to the severity of the crime. Any analysis of an Eighth Amendment claim concerning disproportionality must begin with Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). In that case, the Supreme Court held that Rummel’s sentence of life imprisonment mandated by the Texas recidivist statute for his third felony conviction did not violate the Eighth Amendment. In that case Rummel argued that his life sentence was grossly disproportionate to the severity of the crime. In rejecting Rummel’s argument, the Supreme Court noted that the proportionality principle applied primarily in cases involving the death penalty because of the unique nature of the death penalty for purposes of Eighth Amendment analysis. The Supreme Court also noted that the proportionality principle had been applied and could in the future be applied in an extreme case not involving the death penalty. See Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). However, concerning cases not involving the death penalty or other unique punishments such as that considered in Weems, the Supreme Court in Rummel wrote: Given the unique nature of the punishments considered in Weems and in the death penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes conced-edly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative. 445 U.S. at 274, 100 S.Ct. at 1139, 63 L.Ed.2d at 391. In deferring to the legislative prerogative to establish terms of sentences, the Court also stated that there was no clear way to make “any constitutional distinction between one term of years and a shorter or longer terms of years.” 445 U.S. at 275, 100 S.Ct. at 1140, 63 L.Ed.2d at 391. The Supreme Court recently had occasion to apply Rummel in Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982). In Hutto, the defendant was convicted of possession of nine ounces of marijuana having a street value of $200.00 with the intent to distribute the marijuana. He was sentenced to a $10,000 fine and 20 years imprisonment on each of the two charges with the prison terms to run consecutively. In the per curiam opinion dismissing the defendant’s habeas corpus petition, the Supreme Court wrote: In short, Rummel stands for the proposition that federal courts should be “re-luctan[t] to review legislatively mandated terms of imprisonment,” [citation omitted], and that “successful challenges to the proportionality of particular sentences” should be “exceedingly rare” [citation omitted]. - U.S. at -, 102 S.Ct. at 705, 70 L.Ed.2d at 560. Applying the standards enunciated in Rummel supra, to the facts of the instant case, we conclude that the fixing of sentences for particular offenses is a matter properly left to the legislature, and that only in the most extreme case is it appropriate for the courts to interfere with the legislative prerogative. Indeed, statutes authorizing the term of life imprisonment for the sale of heroin have been upheld in Arizona as not violative of the constitutional prohibition against cruel and unusual punishment. See State v. Guthrie, supra; State v. Espinosa, 101 Ariz. 474, 421 P.2d 322 (1966). In light of Hutto and the Arizona case law, we cannot say that the authorization of a sentence of from one year to life for possession of dangerous drugs for sale is violative of any constitutional protection against cruel and unusual punishment. We thus conclude that the sentence originally imposed on the defendant in this case was not violative of the Eighth Amendment. First, it is clear that a sentence within the statutory limits is not cruel and unusual punishment where the statute fixing the punishment is not unconstitutional. State v. Guthrie, supra. Second, the defendant’s record in this case reveals a long history of drug related offenses. Moreover, following the defendant’s conviction but prior to sentencing, he failed to make himself available to the adult probation office for the preparation of a complete presentenee report, and he failed to appear for sentencing, requiring the trial court to issue a bench warrant for his arrest. Under these circumstances, we find no infirmity in the sentence originally imposed on the defendant, and we further find that the trial court abused its discretion in modifying the sentence. For the foregoing reasons, the trial court’s order of July 31, 1981, is vacated, and the sentence previously imposed of not less than 40 nor more than 50 years in the Arizona State Prison to date from May 1, 1975 is hereby reinstated. GRANT, J., and RICHARD M. DAVIS, J. Pro Tern., concur. NOTE: The Honorable Richard M. Davis, a Judge pro tempore of a court of record, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const, art. VI, § 20. . Rummel was originally convicted in 1964 of fraudulent use of a credit card to obtain $80.00 worth of goods or services; in 1969 he was convicted of passing a forged check in the amount of $28.36; and in 1973, he was convicted of obtaining $120.75 by false pretenses.

OPINION CORCORAN, Judge. The appellees commenced this litigation to invalidate an annexation ordinance passed by the appellant City of Scottsdale (Scottsdale). Appellees moved for summary judgment on the ground that Scottsdale had failed to comply with the notice provisions of Arizona’s open meeting law, A.R.S. §§ 38-431.01 to .09. The trial court granted summary judgment. We affirm its decision. Although the action taken by the city council of Scottsdale involves annexation, this is not a “strip annexation” case. This is an open meeting law case. The open meeting law was first adopted in 1962. Laws 1962, Ch. 138. In 1978, the legislature adopted a declaration of public policy for the guidance of those charged with the interpretation of the open meeting law by adding A.R.S. § 38-431.09: Declaration of Public Policy. It is the public policy of this state, reflected in this article [3.1], that meetings of public bodies be conducted openly. Toward this end, any person or entity charged with the interpretations of this article shall take into account the policy of this article and shall construe any provision of this article in favor of open and public meetings. Laws 1978, Ch. 86, § 7. In construing the open meeting law and the declaration of policy, the language must “be liberally construed to effect their objects and to promote justice.” A.R.S. § 1-211(B). This construction must be followed “unless such construction would be inconsistent with the manifest intent of the legislature.” A.R.S. § 1-211(A). The proceedings which led to this litigation were occasioned by the demise of the legislatively sanctioned practice of “strip annexation.” Prior to July 1,1980, Arizona law permitted this species of municipal enlargement, by which an incorporated municipality could annex a strip as little as ten feet wide encircling a broad expanse of unannexed land contiguous to the municipality. This action had the effect of depriving the owners of land within the encircled strip of the right to be annexed by any other municipality. See A.R.S. § 9-471(A)(1). It could also in effect confer a veto power over the incorporation of any other municipality within a six mile radius. See A.R.S. § 9-101.01. In the spring of 1980, the legislature amended A.R.S. § 9-471 to eliminate the practice of strip annexation. This legislation, Laws 1980, Ch. 226, § 1, took effect on July 1, 1980. In late June, 1980, certain Scottsdale city officials and members of the city council became convinced of the desirability of annexing a 10 to 25 foot strip of land encircling some 86 square miles north and west of the existing city limits. They were professedly motivated in some part by the thought or fear that the City of Phoenix (Phoenix), which was likewise adjacent to the area in question, might conceivably attempt a similar “strip annexation” of the same land. Scottsdale considered strip annexation important because Scottsdale had more rigorous zoning and development standards than Phoenix and the area lay within the projected growth pattern of Scottsdale. If Scottsdale was successful in the strip annexation, it could exercise a strong degree of control over zoning and development in the 86 mile area. It is not disputed that the annexation would also have taken Scottsdale to within six miles of the unincorporated communities of Carefree and Cave Creek, thus requiring citizens in those areas to first offer to be annexed to Scottsdale as a condition precedent to incorporation as a municipality. A.R.S. § 9-101.01. On Friday morning, June 27, at 8:00 a. m., the Scottsdale city council convened in a duly noticed session to consider annexation petitions to effectuate the strip annexation described above. One of the annexation petitions, rejected by the council because it contained conditions, was submitted by the appellee Rawhide Capital Company (Rawhide Capital). Questions were raised as to whether the annexation petitions acceptable to the council were sufficient in terms of the value of land represented, and one council member moved to postpone consideration of the proposed Ordinance 1304 until the next regular meeting of the council on Monday, June 30, at 5:00 p. m. This motion carried, and it thus became a matter of orally announced public record that the next consideration of the proposed strip annexation ordinance would be on Monday at 5:00 p. m. The proposed annexation had been the subject of some public attention, and members of the press were present at the meeting to observe the council’s actions. Among the persons present at the Friday morning meeting of the council was James Paul, general partner of the appellee Rawhide Capital. Rawhide Capital owns Rawhide, a large tourist attraction within the area encircled by the proposed annexation. After the meeting on Friday morning some city officials became convinced that it was strategically necessary for the city council to consider the proposed annexation ordinance on Monday morning, if possible. They were concerned that news media reports of the unsuccessful Friday morning meeting would prompt an attempt by Phoenix to annex the area before the regular council meeting late Monday afternoon. If Phoenix were successful in such an attempt, Scottsdale would be ousted from jurisdiction in the matter. The record indicates that Scottsdale city officials were making tentative plans before the close of business on Friday, June 27, to hold a council meeting the following Monday morning. Inasmuch as the mayor was not willing to call an early morning meeting to preempt annexation jurisdiction, the affirmative votes of four council members were necessary for the special meeting. By Saturday, June 28, city officials had received the express affirmative votes of three members, James Bruner, Jeff Schubert and Charlie Smith, and were confident enough of receiving the affirmative vote of a fourth council member, Diane Cusack, that they proceeded to give official notice of a special meeting to take place in city hall at 7:00 a. m. on Monday morning. Mayor Herbert Drink-water and council members Billie Gentry and Dr. Heinz Hink opposed the calling of this special meeting. The Arizona open meeting law requires that public notice be given of meetings of public bodies where public issues will be decided. The relevant notice provisions read as follows: Notice of meetings. A. Public notice of all meetings of public bodies shall be given as follows: 3. The public bodies of the cities and towns shall file a statement with the city clerk or mayor’s office stating where all public notices of their meetings will be posted and shall give such additional public notice as is reasonable and practicable as to all meetings. C. Except as provided in subsections D and E, meetings shall not be held without at least twenty-four hours’ notice to the members of the public body and to the general public. D. In case of an actual emergency, a meeting may be held upon such notice as is appropriate to the circumstances. E. A meeting may be recessed and resumed with less than twenty-four hours’ notice if public notice of the initial session of the meeting is given as required in subsection A, and if, prior to recessing, notice is publicly given as to the time and place of the resumption of the meeting or the method by which notice shall be publicly given. A.R.S. § 38-431.02. Pursuant to subsection (AX3) of the statute, the Scottsdale city council had by Resolution 1290 designated the city hall, police department headquarters and Eldorado Park as the places for posting “public notices.” No claim has been made that these locations were not suitable for posting public notices. Cf. Valley National Bank v. Brooks, 3 Ariz.App. 340, 414 P.2d 189 (1966) (which deals with “public places”). After Scottsdale city officials determined on Saturday to hold the meeting regarding proposed Ordinance 1304 on Monday morning at 7:00 a. m., they proceeded to post notices of the newly scheduled meeting and copies of the proposed ordinance and map in city hall, in the police department headquarters, and in a building at Eldorado Park. They also posted notices in the Scottsdale Center for the Arts, inside a building at Indian School Park, and in the municipal library. All notices were posted by 7:00 p. m. on Saturday evening. However, neither city hall nor the municipal library was open to the public between Saturday evening and 7:00 a. m. on Monday morning. Police headquarters were open to the public only if one were to press a buzzer and ask for admittance. The Arts building was open between the hours of 10:00 a. m. and 5:00 p. m. on Sunday and the buildings in the two parks were open to the public between 6:00 a. m. and 10:30 p. m. on Sunday. Nothing was posted on the property described in the proposed ordinance. The city officials involved in the decision to hold the meeting and to post notices thereof conferred with the Scottsdale city attorney in regard to complying with the provisions of A.R.S. §§ 38-431.02(A)(3) and (C). It was determined that extra postings were necessary and that the three indicated extra postings would be sufficient. It was decided by city officials not to inform the news media until council member Diane Cusack had returned to the city on Sunday and given her express approval to the early Monday morning meeting. A member of the media called a city official on Saturday and inquired whether “there was anything new” in regard to the proposed ordinance. He was answered in the negative. One city official testified that he made attempts to reach James Paul by telephone, without success. After city officials contacted Diane Cusack on Sunday afternoon, certain members of the media were contacted and informed that there would be a meeting early Monday morning. This was too late for any media publication prior to the meeting. The special meeting was held as scheduled on Monday morning at 7:00 a. m. City hall ordinarily opens at 8:00 a. m., and this was the first council meeting in the memory of any witness to take place at 7:00 a. m. The council considered and passed Ordinance 1304. Aside from the members of the council and staff, the only person in attendance at the special meeting was an individual from the media. The meeting adjourned at 7:15 a. m. When the council convened for its regular weekly session at 5:00 p. m., the audience was informed that Ordinance 1304 had already been considered and passed by the council. The position of appellee Rawhide Capital in this matter has been described. The strip annexed by the city pursuant to Ordinance 1304 runs through a parcel of land owned by the appellee Boulders Carefree Corporation. Boulders Carefree Corporation intends to develop a resort on this property and will be faced with conflicting zoning and development requirements. The appellee Carefree Improvement Association is a corporation whose members include citizens of the unincorporated communities of Carefree and the surrounding area. Scottsdale raises two principal issues. Both are predicated upon the stringent standards applied in this jurisdiction as a prerequisite to the granting of a summary judgment. Rule 56, Rules of Civil Procedure. First, Scottsdale contends that it made a good faith effort to comply with the notice provisions of the open meeting law and that if it is given the benefit of all inferences which might be favorably drawn in support of its position, the reasonableness and practicality of the notice it gave should be an issue for determination by the trier of fact, not susceptible to summary judgment. The second issue advanced by Scottsdale on appeal is that the subject matter of the special meeting on Monday morning, June 30 was such that circumstances of an “actual emergency” existed, so that the adequacy of its notice should be judged under the less stringent standards of A.R.S. § 38-431.-02(D). The office of the procedural device of summary judgment is to determine without the necessity of a superfluous trial a claim which upon the established facts and the law can only be determined in favor of the moving party. See 6 Moore’s Federal Practice § 56.02 (2nd ed. 1981). But summary judgment may be granted only when there is no genuine issue of material fact, or issue raised by conflicting inferences which may be drawn from an uncontroverted material fact. Wisener v. State, 123 Ariz. 148, 598 P.2d 511 (1979); Rondelli v. County of Pima, 120 Ariz. 483, 586 P.2d 1295 (App. 1978). Thus, the critical issue in the context of the summary judgment on appeal is whether a reasonable finder of fact might conclude that the notice given complied with the requirements of the open meeting law. See, e.g., Moore v. Maricopa County, 11 Ariz.App. 505, 466 P.2d 56 (1970). If a reasonable finder of fact might so conclude, summary judgment would have to be reversed and the issue determined by trial in the usual manner. While we agree with Scottsdale that what is “reasonable,” “practicable,” and “appropriate” would generally be a matter for determination at trial, that determination must be made in the present case based upon the legislative policy set forth in the open meeting law. In other words, the notice given, in order to come into at least the lower end of the spectrum of what might be considered “reasonable,” “practicable,” and “appropriate” must accord with the basic policy of the statute, which the courts are required to enforce by the mandate set forth in A.R.S. § 38-431.09. If the open meeting law has a “core” provision, it is found in § 38-431.01(A). That subsection of the law provides: Meetings shall be open to the public. All meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings. A.R.S. § 38-431.01(A) (emphasis added). The notice provisions in the open meeting law are obviously designed to give meaningful effect to provisions such as A.R.S. §§ 38 — 431.01(A) and 38-431.09. The goal of exposing the public decision-making process to the public itself could be significantly, if not totally thwarted, in the absence of mandatory notice provisions and their enforcement. See Government in the Sunshine Act: Opening Federal Agency Meetings, 26 Am.U.L.Rev. 154, 196 (1976). See also Town of Paradise Valley v. Acker, 100 Ariz. 62, 411 P.2d 168 (1966). The meeting in question was held in unique circumstances. It was the first Scottsdale council meeting ever held at 7:00 in the morning, before the usual opening of city hall. The notices were posted during the weekend regarding a special meeting to commence before the opening of the city hall on the next regular day of business. These circumstances made it virtually impossible for any person to file a suit in the superior court before the meeting to challenge the adequacy of the notice. A.R.S. § 38-431.07; Rule 1.1., Superior Court Local Rules-Maricopa County. Far more importantly, however, it was convened to consider a proposed ordinance which as a matter of the declared public record had been scheduled for reconsideration on Monday afternoon at 5:00 p. m., the regular meeting time of the council. It is clear upon the record before us that there were “persons so desiring” to attend the council meeting at which proposed Ordinance 1304 was to be considered. It is equally clear that city officials and council members knew or had good reason to know that there were persons who desired to attend the meeting and who were not apt to become aware of the newly scheduled meeting by reason of notices posted on Saturday night and available for viewing on Sunday, only, at the places we have described. The council’s actions and the manner in which it proceeded in this case are precisely the public actions contemplated by the legislature when it enacted the open meeting law. The supreme court interpreted the legislative intent as follows: The intent of the open-meeting law is that legal actions — proceedings which constitute a “decision, commitment or promise made by a majority of the members of a public body,” A.R.S. § 38-431(2) —“be conducted openly.” Karol v. Board of Education Trustees, 122 Ariz. 95, 98, 593 P.2d 649, 652 (1979). However, the supreme court has also indicated that “a minor deviation” from the requirements of the statute does not require that all actions of a public body be declared null and void “because equitable principles require a balancing of the rights of those involved.” 122 Ariz. at 97, 593 P.2d at 651. Although the open meeting law does not prescribe the hours during which those places where public notice will be posted must be open, the connotation of the words “public notice,” would indicate that it must be posted in a place where members of the public have reasonable access. The city council had designated city hall, police department headquarters, and Eldorado Park as the places where the public notices would be posted. However, during the time the notices were posted for the Monday morning meeting there was no access at all to city hall, and there was very limited access to police department headquarters. Although the notices were posted at the places required by A.R.S. § 38-431.02(A)(3) and Resolution 1290, they were not effective “public notices” because of the public’s lack of access to them. Scottsdale did post additional notices of the Monday morning meeting but these notices cannot be considered as substitutes for those required by statute and Resolution 1290. They can be considered only as “such additional public notice as is reasonable and practicable as to all meetings.” A.R.S. § 38-431.02(A)(3). Generally, whenever a statute requires that notice be given and does not specify the manner in which the notice is to be given, personal notice is required. Cameron v. Shuttleworth, 75 Ariz. 61, 251 P.2d 659 (1953); Valley National Bank v. Stewart, 53 Ariz. 328, 89 P.2d 493 (1939). When the statute directs the manner of giving notice affecting property rights, there must be strict compliance with the statute. Lewis v. Ehrlich, 20 Ariz.App. 363, 513 P.2d 153 (1973). See also Mason v. Wilson, 116 Ariz. 255, 568 P.2d 1153 (App.1977). When “jurisdictional notice” is mandated in a certain manner, any means of notice other than that prescribed is ineffective, Hart v. Bay-less Investment & Trading Co., 86 Ariz. 379, 346 P.2d 1101 (1959), and failure to comply with the mandated notice will render any action void. Yuma County v. Arizona Edison Co., 65 Ariz. 332, 180 P.2d 868 (1947). The first time the posted notices would have become “public” would have been at 8:00 a. m. on Monday morning when city hall and the police department headquarters opened for business. That is when they would have become available for public inspection — which was one hour after the noticed meeting was held. By emphasizing this time sequence, we do not mean to express any opinion as to the exact time when the 24 hours commences to run. A.R.S. § 38-431.02(0). See Microwave Communications, Inc. v. FCC, 515 F.2d 385, 390-97 (D.C.Cir.1974). We agree with Scottsdale that technical violations and minor deviations from the requirements of the open meeting law should not render action by a public body null and void, so long as there is substantial compliance with the open meeting law. Karol v. Board of Education Trustees, supra; City of Flagstaff v. Bleeker, 123 Ariz. 436, 600 P.2d 49 (App.1970). However, this court must determine whether there has been substantial compliance by reviewing the whole of the proceeding, rather than its several parts. City of Flagstaff v. Bleeker, 123 Ariz. at 438, 600 P.2d at 51. In doing so, we must conclude that there was a misleading element inherent in the circumstances since the very persons desiring to attend the city council meeting had already been informed that it would be held at a later time. While good faith may be of some relevance in determining in some cases that there had been only a technical violation or a minor deviation from the requirements of the open meeting law, we are unable to conclude that good faith together with all of the other circumstances in this case suffices to make an issue of fact. And while the appellees have characterized the actions of Scottsdale’s officials as evidencing an intent to withhold notice from the public, the absence of any such intent is plainly insufficient in and of itself to create an issue of fact. Conceding every permissible inference to Scottsdale, we are unable to conclude in view of the specific circumstances in question here that the notice given by Scottsdale satisfied the requirement that “public notices” be posted in designated public places. A.R.S. § 38-431.02(AX3) and Resolution 1290. Scottsdale concedes that the Scottsdale City Charter defines “emergency” and the facts of this case admittedly do not fall within that definition. However, Scottsdale argues for the first time on appeal that the matter of the proposed strip annexation presented a “case of an actual emergency” and that, accordingly, the notice it gave must be judged or might be judged by a trier of fact to have been “appropriate” under such exigent conditions. See A.R.S. § 38-431.02(D), quoted above. Appellees initially meet this argument with the proposition that Scottsdale may not urge a contention on appeal that it has not presented to the trial court. This is true, even on review of a summary judgment. Crook v. Anderson, 115 Ariz. 402, 565 P.2d 908 (App.1977); Sullins v. Third and Catalina Construction Partnership, 124 Ariz. 114, 602 P.2d 495 (App.1979). Scottsdale argues that it is incumbent upon this court as well as the trial court to review the entire record and, in effect, determine ap-pellees’ motion anew. This is not conformable with the concept of this court as an appellate court sitting in review of determinations made by the trial court. Scottsdale does not get a hearing de novo upon appel-lees’ motions. The rule of Crook v. Anderson applies, and we may consider only those contentions which were advanced in the trial court. Apart from the foregoing, however, we do not perceive that the circumstances presented here could be fairly characterized as an “actual emergency” within the meaning of the statute. The word “actual” means “real” as opposed to “nominal” and “existing in fact” as opposed to “constructive” or merely “possible” or “conceivable.” See Mason v. Hart, 140 Cal.App.2d 349, 295 P.2d 28 (1956). And “emergency” is generally defined as an unforeseen combination of circumstances which call for immediate action. State v. Unosawa, 48 Wash.2d 616, 296 P.2d 315 (1956). The statute permitting strip annexations was on the books for many years. The subject was legislatively debated and the statute amended in the spring of 1980, months prior to the proceedings in question. Officials of Scottsdale wished to exercise “influence” or hegemony over the part of Maricopa County north and west of the city so that its zoning and other activities subject to regulation under the police power might be in conformity with that of Scottsdale rather than the ordinances of Phoenix in the event that Scottsdale eventually annexed the whole area encircled within the strip. Even if it were clear that Phoenix was preparing a competing annexation proposal, and there is no evidence of such a competing proposal in the record, such circumstances do not in our view create an “actual emergency” within the meaning of the open meeting law. Compare Mead School District No. 354 v. Mead Education Association, 85 Wash.2d 140, 530 P.2d 302 (1975). To hold otherwise would dilute language of the legislature which it has apparently chosen with care. The appellees sought to recover their attorney’s fees in the superior court. The trial judge denied recovery, and appellees have cross-appealed the issue. Initially it should be observed that the statutory scheme of the open meeting law provides for a limited number of sanctions. Any business transacted in violation of the open meeting law is null and void. A.R.S. § 38-431.05. Any person violating the open meeting law is guilty of a class 3 misdemeanor. A.R.S. § 38 — 431.06. A person convicted of a class 3 misdemeanor can be incarcerated for a fixed time not exceeding 30 days, A.R.S. § 13-707(3), and be fined not more than $500.00. A.R.S. § 13-802(C). The court may also order that a successful plaintiff recover his reasonable attorney’s fees from “the defendant state, political subdivision of the state or the incorporated city or town.... ” A.R.S. § 38-431.07. A.R.S. § 38 — 431.07 provides: Equitable relief. Any person affected by a legal action of a public body may commence a suit in the superior court for the county in which the public body ordinarily meets, for the purpose of requiring compliance with, or the prevention of violations of this article, by members of the public body, or to determine the applicability of this article to matters or legal actions of the public body. The court may order such equitable relief as it deems appropriate in the circumstances. The court may also order payment to a successful plaintiff in a suit brought under this section of his reasonable attorney’s fees, by the defendant state, political subdivision of the state or the incorporated city or town of which the public body is a part or to which it reports. (emphasis added.) The emphasized provision in regard to attorney’s fees has not previously been the subject of any extensive judicial discussion. Cf. Ahnert v. Sun-nyside Unified School District, 126 Ariz. 473, 616 P.2d 933 (App.1980). All of the appellees contend that A.R.S. § 38-431.07 should be construed as creating a presumption that attorney’s fees are to be awarded to a successful plaintiff in a suit seeking to enforce the provisions of the open meeting law in the absence of particular reasons which would make such an award unjust. Appellees prominently cite in this regard Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), involving Title II of the Civil Rights Act, and Common Cause v. Stirling, 119 Cal.App.3d 658, 174 Cal.Rptr. 200 (1981), decided under California’s Brown Act, a “sunshine” or open meeting law. We do not perceive either the compelling necessity or desirability of creating a presumption in this area. The legislature has employed the simple word “may” as an indicator of the extent of judicial authority. This is the classic language of discretion. The Karol case, cited above, indicates that substantial compliance with the provisions of the open meeting law may be sufficient. This suggests to us a recognition by our supreme court that our open meeting law, which imposed substantial changes in public meeting procedures, may not always yield clear black and white answers to persons seeking the most efficient lawful procedures. In sum, we perceive no indication that the legislature intended to establish a formal or informal presumption in regard to the recovery of attorney’s fees, and we decline to create one. This takes us to appellees’ baseline contention that the trial court abused its discretion in failing to award attorney’s fees in this case. Certainly, the fact that the corporate ap-pellees are substantial corporations able to finance litigation cannot, of itself, be controlling. No authority is cited to the contrary. Furthermore, the third group of ap-pellees, incorporated as the Carefree Improvement Association, is simply a group of residents in the Carefree area whose rights were significantly affected by Scottsdale’s actions. One of the appellees has argued that Scottsdale’s action was prompted by “imperialistic” motives. While this characterization does not significantly advance analysis, it serves to focus upon the fact that Scottsdale was intent upon expanding its influence into an unincorporated area, at the expense of a similar potential quest, real or imagined, by Phoenix. Courts, of course, can accord no respect to any particular municipal “life style,” or choose among the various lawful manners by which one municipality exercises its police powers as opposed to the manner chosen by another nearby municipality. We cannot, therefore, share any particular sympathy for Scottsdale’s objectives in attempting to rush through a strip annexation ordinance. Cf. State ex rel. DeConcini v. City of Phoenix, 74 Ariz. 46, 243 P.2d 766 (1952). What Scottsdale undertook was concededly lawful when it was undertaken, and accordingly our focus under A.R.S. § 38-431.-07 must be upon the extent of its attempted compliance with the open meeting law, and the extent to which the appellees’ successful action was beneficial to others as well as themselves. In the final analysis, the same factors which compel judgment for appellees lead us to conclude that a denial of attorney’s fees was inappropriate in this case. While we are impressed on the one hand that Scottsdale officials consulted with the city’s 'legal counsel, we cannot close our eyes to the fact that its officials chose to withhold any hint of its planned Monday morning meeting from persons who concededly desired to attend the meeting and from news media until it was too late for any meaningful dissemination. That fact must be viewed against the background of a publicly announced postponement of consideration of the controversial ordinance until 5:00 p. m. on Monday afternoon. Even though council member Cusack was unavailable, plans for the early morning meeting proceeded apace, and the established facts and circumstances disclose an attempt to give only the minimum notice required by the open meeting law. We have determined that the notice did not meet the required standard. It violated the express intent and declaration of public policy of the open meeting law. A.R.S. § 38-431.09. It is of course true that the appellee for-profit corporations had their own substantial interests to protect. But presumably there are other properties within the vast expanse encircled by the strip annexation whose owners will be free of the narrowing of their options which the strip annexation imposed. Under all the circumstances, we are of the opinion that the situation calls for the imposition of attorney’s fees against Scottsdale in favor of the successful appellees. We believe that our decision in this regard gives effect to the intent that the legislature has expressed in the open meeting law and which is set forth in the declaration of public policy. Summary judgment for the appellees is affirmed. The cause is remanded to the superior court for ascertainment of the proper amounts to be awarded to appellees for attorney’s fees in connection with the litigation in the superior court. The appellees have requested attorney’s fees for defending the appeal. Our decision indicates the propriety of such an award, and the appellees may particularize their requests in their statement of costs. Rule 21(c), Rules of Civil Appellate Procedure. The cause is remanded for further proceedings in conformity herewith. CONTRERAS, V. C. J., and OGG, J., concur. . At that time the City of Scottsdale encompassed approximately 89 square miles of land. . We do not express any opinion as to whether the procedure followed by the city council in recessing the meeting which commenced at 8:00 a. m. on Friday to be resumed on Monday at 5:00 p. m. would comply with the requirements of the open meeting law in the absence of other notice. See A.R.S. § 38-431.02(E). . Resolution 1290, adopted by the city council on August 20, 1974, provides: NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Scottsdale as follows: Section 1: That in accordance with the provisions of Subsection 3 of Section 38-431.02, Arizona Revised Statutes, notices of all regular, special and other meetings of the City Council and all agencies, boards and commissions of the City of Scottsdale and their committees and subcommittees shall be posted at City Hall, Police Department Headquarters and Eldorado Park, at least twenty-four (24) hours prior to the commencement time of said meeting and shall also set forth the time and place of all such meetings. . The notices read as follows: NOTICE IS HEREBY GIVEN that the May- or and City Council of the City of Scottsdale, Arizona, will hold a special meeting at 7:00 a. m., on Monday, June 30, 1980, in the Kiva, City Hall, 3939 Civic Center Plaza, Scottsdale, Arizona, for the purpose of considering revised Ordinance No. 1304, annexing certain territory contiguous to the existing limits of the City of Scottsdale. The “revised Ordinance” related to a change in the property description of the strip to be annexed which was different from the description considered at the Friday morning meeting. . The open meeting law does not by its terms provide that the defendant can in turn recover those attorney’s fees from the responsible persons who actually violated the provisions of the open meeting law. Also, the open meeting law does not by its terms provide for any civil sanctions or penalties to be imposed against persons who violate it. In this case, the individual parties defendant are joined “in their capacity as elected Mayor and members of the Council of the City of Scottsdale, and not individually.” (Emphasis added.) . Ahnert interpreted the open meeting law as it existed before its amendment in 1978. 126 Ariz. at 475 n. 1, 616 P.2d at 935 n. 1. The amendment in 1978 contains the “declaration of public policy” previously quoted, A.R.S. § 38-431.09. Laws 1978, Ch. 86, § 7.

OPINION HOWARD, Chief Judge. Pursuant to a plea agreement, appellant pled nolo contendré to three counts of aggravated assault in exchange for three counts of child molesting being dismissed. Appellant was sentenced to the maximum sentence on each count, 1.875 years, the sentences to run consecutively. Appellant has raised four points on appeal, none of which merits reversal. His first contention is that the material developed in the presentence report was wrongly used against him because he was not given Miranda warnings by the preparer of the report when he was interviewed after entering his plea. He relies on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981). In Estelle v. Smith, supra, the supreme court held that when faced with an in-custody, court-ordered psychiatric inquiry, the defendant’s statements to the doctor were not freely and voluntarily given and the state could only use the statements in the penalty phase if the defendant had been apprised of and waived his rights under Miranda. In Battie v. Estelle, supra, the defendant was also confined at the time of his being questioned under court order prior to trial by a psychiatrist to determine whether he was competent to stand trial and whether he was insane at the time of the crime. The state subsequently called the psychiatrist to testify at the penalty stage of the defendant’s trial and the Fifth Circuit Court of Appeals applied the rationale of Estelle v. Smith, supra, in overturning the sentence. Appellant herein admits that the subject questioning was not done while he was in custody and was not done pursuant to a court order. However, those factors are not the distinguishing factors which are important for us. What is important is that Miranda sought to give a defendant fair warning where the coercive atmosphere of the questioning was likely to overbear his desire to remain silent. A pretrial psychiatric examination is part of the accusatory stage of a criminal proceeding. On the other hand, appellant’s cooperation with the adult probation office is not an accusatory stage of the proceedings. Rather, it is important that a defendant and the adult probation officer have a relationship which encourages an accurate appraisal of a defendant’s social and criminal history and a recommendation for beneficial rehabilitative treatment which will best modify a defendant’s behavior to conform to society’s requirements. It has been held that Miranda is not applicable to the routine parole interview between a parole officer and a parolee because “[a] parole officer acts as a guide and counselor to the parolee in his efforts to achieve and maintain rehabilitation. To work effectively the parole officer must know the parolee’s whereabouts and activities both social and business.... These routine reports and interviews are invariably non-custodial and, therefore, outside the ambit of Miranda. Moreover, implicit in the relationship is the requirement that the parolee cooperate fully and unreservedly in the parole experiment.” State v. Davis, 67 N.J. 222, 337 A.2d 33 at 35 (1975). We agree with the reasoning of the New Jersey Supreme Court. Our situation is more closely akin to that in People v. Parker, 101 Misc.2d 800, 421 N.Y.S.2d 561 (1979). In that case, the New York Supreme Court dealt with a situation where a parolee initiated routine contact with his parole officer following an arrest and prior to a subsequent court appearance and the parolee was advised “to come in and see” his parole officer following the next court appearance. As the court pointed out, such a request by the court does not convey the element of the police-dominated atmosphere of custodial interrogation that was the basis of Miranda, but rather the questioning was routine and an integral part of the parole process. In the instant case, we can say that the questioning was routine and integral part of the sentencing process. If a defendant chooses to cooperate, the interview process offers an offender the opportunity to help the probation officer make a recommendation which would enable a defendant to eventually assume his responsibilities as any other well-adjusted citizen. Our decision is not to be construed to pertain to a situation where the presentence investigation is accusatory in nature and the probation officer has as his mission the investigation of specific criminal activity. Such was not the case here and we are not addressing ourselves to such a situation. We hold that where the presentencing investigation is not accusatory in nature and merely a routine and integral part of the sentencing process, a defendant is not entitled to Miranda warnings since the in-custodial coercive atmosphere of Miranda is not present and the questioning is not accusatory in nature. Appellant’s claim that the sentences imposed were excessive is also without merit. The trial court stated that he had considered everything in the file, including the recommendations of the attorneys. The material from appellant’s attorney, which was alluded to by the judge, included the points which appellant now raises as being in mitigation. A sentencing judge is not required to make findings about circumstances on which he does not rely in assessing a sentence. State v. Inglish, 129 Ariz. 444, 631 P.2d 1102 (1981). The trial court had before it enough aggravating circumstances to warrant the sentences imposed. Appellant’s history of peculiar sexual behavior is documented in the presentence report and his prowling and voyeurism are discussed in the report and in his United States Navy record. He was pleading to sexual offenses against his own daughter and a neighbor’s child and admitted to incestuous relations with his half-sister. While none of these prior incidents resulted in convictions, they can still properly be used in sentencing. See Williams v. New York, 337 U.S. 241, 69 S.Ct 1079, 93 L.Ed. 1337 (1949). The presentence report showed a defendant obsessed with aberrant sexual behavior and the evidence was more than adequate to support the sentences imposed. Appellant claims there were defects in his Rule 32 proceeding which require the granting of relief. We do not agree. Appellant’s Rule 32 proceeding contains arguments about his sentence which we have already discussed. In addition, two procedural points were raised. The first is that the trial court exceeded the 10-day time limit within which it was supposed to issue a decision. See Rule 32.8(d), Arizona Rules of Criminal Procedure, 17 A.R.S. However, the rule provides no sanction for such a violation and appellant has not alleged any prejudice resulting from the delay. Second, appellant notes that the state filed no response to his motion for rehearing and did not speak in opposition to his motion at the hearing. However, the judge denied appellant’s motion for rehearing after appellant’s presentation without giving the state an opportunity to respond. The fact that the state filed no written response requires no explanation and the trial court is not bound to grant appellant’s motion just because the state failed to respond to it. Finally, appellant contends that the punishment applied to him was cruel and unusual because he was taken immediately into custody and given no time to settle his affairs. A defendant released until sentencing must be prepared to finally go into custody after sentencing. See e.g., McKellar v. Arizona State Department of Corrections, 115 Ariz. 591, 566 P.2d 1337 (1977). Our review of the record for fundamental error shows none. However, appellant’s sentences should be modified to show that he is sentenced to terms of imprisonment and committed to the custody of the Department of Corrections. State v. Razinha, 123 Ariz. 355, 599 P.2d 808 (App.1979). Affirmed as modified. HATHAWAY and BIRDSALL, JJ., concur. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . The New Jersey Supreme Court, however, was faced with a situation other than the ideal one described. The defendant in that case was in jail charged with having committed an armed robbery when he was questioned by his parole officer and it was obvious that the officer knew of the charge against him since the questions asked related to his whereabouts on the date of the robbery. The court said that admittedly the question was pertinent as to whether he was adhering to his parole conditions and that to attempt to use that in-custody statement outside the framework of the parole system and at the defendant’s subsequent criminal trial on the charge of armed robbery would require that he first have been advised of his Miranda rights and knowingly and voluntarily waive them.

OPINION BIRDSALL, Judge. The appellant was convicted of third-degree burglary, a class 5 felony, A.R.S. § 13-506, and was sentenced to three years probation. He asks us to reverse his conviction because the trial jury was selected in his absence. The trial of this case was set for July 30, 1981. On July 29,1981, the appellant’s trial counsel contacted the prosecutor and requested the state’s consent to a continuance until August 18, 1981. Finding that the state would not oppose the continuance, and seemingly unaware that any continuance had to be ordered by the court, See Rule 8.5(a) and (b), Arizona Rules of Criminal Procedure, 17 A.R.S., defense counsel informed the appellant that the case was being continued. The appellant was therefore absent when counsel for both parties appeared before the court on July 30. Defense counsel explained the reasons for his client’s absence and orally requested a continuance. The “motion” was denied. After agreeing to advise the venire of the reasons for the appellant’s absence, the court proceeded with selection of the jury. Trial commenced with opening statements on the following day, with the appellant present. The right of the accused to be present at trial includes the right to be present during selection of the jury. State v. Tudgay, 128 Ariz. 1, 623 P.2d 360 (1981). The state has therefore conceded that it was error to select the jury in the appellant’s absence, but contends that the error was harmless because there is no indication that the jury obtained was not fair and impartial. The right to be present is one of the most basic rights of the criminal defendant, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), and must therefore be zealously guarded. Minor violations of that right have occasionally been held to be harmless error. See State v. Lawrence, 123 Ariz. 301, 599 P.2d 754 (1979). Courts of numerous states have held that the defendant’s absence from portions of the jury selection process does not require reversal. See generally, Annot. “Impaneling or selecting of jury in accused’s absence,” 26 A.L.R.2d 762 § 4 (1952). A review of the cases collected in that annotation reveals, however, only one case in which a conviction was sustained and in which the defendant was apparently absent from the entire selection process. That case, Commonwealth v. Bova, 180 Pa.Super. 359, 119 A.2d 866 (1956) gives scant attention to the question and cites as its only authority a case that actually rested upon a finding that the accused had waived his right to be present, Commonwealth ex rel. Hancock v. Maroney, 177 Pa.Super. 133, 110 A.2d 923 (1955). It is evident that harmless error has generally been found only where the accused’s absence has been from some minor portion of the selection process. Although we empathize with the trial court’s frustration at having its calendar rearranged by the unauthorized acts of counsel, we cannot sanction a total denial of the appellant’s right to be present at this critical stage of the proceeding. The conviction is reversed. HOWARD, C.J., and HATHAWAY, J., concur. . “Form of Motion. A continuance within the time limits of Rule 8.2(b) and (d) may be granted only upon written motion, stating with specificity the reasons justifying it, and a certificate of the signer that it is made in good faith.” Rule 8.5(a), Arizona Rules of Criminal Procedure, 17 A.R.S.

GORDON, Vice Chief Justice: Polaris International Metals Corporation [Polaris] and James Concannon, President of Polaris, filed a declaratory judgment action against appellees. The purpose of the action was to: (1) void the Arizona Corporation Commission’s [the Commission] Cease and Desist Order with Docket No. S-1343-I issued March 26, 1971; (2) hold A.R.S. § 44-1841 unconstitutional to the extent it applies to interstate commerce; (3) rule that Polaris’ stock sales from January 1, 1973 to the time the complaint was filed were within the exemptions of A.R.S. § 44-1844; and (4) find the Commission’s investigation of Polaris unreasonable and order it restrained. From the trial court’s order of April 21, 1980 granting appellees’ Motion to Dismiss, appellants appeal. The thrust of the motion was that appellants had failed to state a claim for which relief could be granted, Ariz.R.Civ.P. 12(b)(6). Taking jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and Ariz.R.Civ.App.P. 19(e), we affirm in part and reverse in part the trial court’s order and remand for further proceedings consistent with this opinion. FACTS In reviewing an order granting a motion to dismiss under Ariz.R.Civ.P. 12(b)(6), it is well-settled that the facts pleaded by the plaintiff are considered true. Therefore, for the purposes of this appeal, we rely only on appellants’ version of what transpired before the complaint was filed. Correspondence in the record indicates that the Commission first became involved with Polaris in 1961. The present controversy did not begin, however, until 1971. On March 26, 1971, the Commission entered a cease and desist order against Polaris. Polaris had been selling unregistered securities through unregistered salespeople to finance the development of a pilot plant that would test a new steel making process. The Commission ordered Polaris to stop engaging in any act related to the sale of securities until the company registered its securities, sales personnel, and advertising material pursuant to the appropriate Arizona statutes and rules. On April 7, 1971, Polaris’ attorney sent a letter requesting the Commission to clarify its order and to retract allegedly false statements made by Commission representatives to a Polaris stockholder and to Tucson security brokers. Having received no response to the letter, the attorney telephoned the Commission on April 25 and was promised an answer to his letter. No answer was ever received. Polaris obtained the help of an Arizona state senator who arranged a meeting between the Commission and Polaris on December 15,1971. Polaris claims that at that time a Commission representative made more false statements about Polaris (concerning alleged investigations by federal and Louisiana securities agencies) and refused to clarify or vacate the cease and desist order. The Arizona Legislature amended A.R.S. § 44-1844(1) in 1972 to exempt private offerings of securities from the securities registration requirements. Polaris believed that its prior security offerings had been private, and on June 1, 1973 again began to issue and sell stocks in what it contends were private offerings. In July, 1974, Polaris scheduled two meetings with a corporation commissioner who cancelled one meeting after Polaris’ representatives had arrived in Phoenix from Tucson and ended the other meeting after fifteen minutes so that he could make a prior engagement. The same state senator who had previously interceded on Polaris’ behalf then wrote a letter to the Commission requesting a prompt resolution of the Polaris matter. The Commission responded but said that the matters concerning Polaris were still under investigation and requested Polaris to turn over records to the Commission. Polaris was attempting throughout this period to have the 1971 cease and desist order vacated. The company asserted that the order was “needless” because recission offers had been made to all shareholders who bought stock before the 1971 order was entered and all stock sold thereafter was within the A.R.S. § 44-1844(1) exception. Vacation of the order was requested because stock reports on Polaris listed the order as being in force which damaged Polaris’ business reputation. Polaris claimed that problems in its negotiations with other companies and investors were directly linked to the continued existence of the cease and desist order. In August or September of 1975, the Tucson Police Department and Pima County Attorney’s Office began to investigate Polaris in earnest. The record is replete with affidavits of Polaris shareholders who state that they were dragged away from their jobs by investigators but told the investigators that they were not dissatisfied with their investments in Polaris which were made with the knowledge that they were high risk investments. On May 21, 1976, a search warrant was executed against Polaris and all of its business records were seized. The warrant was based in part on an affidavit by a Commission agent that Polaris alleges contained false statements. A deputy county attorney took the case to a grand jury in October, 1976, but the grand jury was dismissed before it could vote on whether to return an indictment. In November, 1976, a criminal complaint was filed against appellants charging them with violating Arizona’s securities laws and the Commission’s 1971 order. On appellants’ motion, the complaint was dismissed without prejudice on June 2, 1977 for failure to sufficiently specify the time during which the alleged offenses took place. Polaris and sixty shareholders then filed a civil suit in Pima County in the summer of 1977 to enjoin the City of Tucson and the Pima County Attorney from further investigating Polaris. Apparently, the suit was settled when the defendants in that suit agreed to cease the investigation. The defendants, however, sent all the material acquired during the investigation to the Commission for further action. During the fall of 1975, Polaris and various persons on its behalf attempted informally and formally to have the Commission hold a hearing on the Polaris controversy. Polaris attempted again to obtain hearings in 1977 (informally) and in 1978 (formally). These requests were also in vain. The 1978 request was denied by a formal Commission order dated October 13, 1978 and also bearing Docket No. S-1343-I. Polaris’ attorneys have avowed that the first time anyone associated with the company saw this order was when appellees attached it as an exhibit to their Motion to Dismiss in this case. During 1978 and 1979, the Commission had issued several subpoenas duces tecum to gather information from Polaris and its bank. Polaris continued its contacts with the Commission in 1979 and 1980 and offered to give the Commission the information it requested and have Polaris’ officers testify before the Commission if the Commission would grant Polaris a hearing and promptly (within six months) conclude the investigation. Polaris filed a civil complaint against the Commission on September 28, 1978. The complaint requested that a subpoena issued by the Commission on September 14, 1978 be quashed, that any further investigation of Polaris by the Commission be enjoined until the Commission could show a need for further inquiry, that the Commission be ordered to grant a formal hearing on whether to vacate the 1971 order, and that certain statutes be declared unconstitutional. The trial court entered judgment which denied Polaris any relief except that the Commission’s further investigation under the subpoena in issue was ordered to be for a reasonable time only. The instant case was commenced by civil complaint filed May 14, 1979. From a grant of appellees’ Motion to Dismiss, appellants brought this appeal to raise the issues whether their complaint states a proper claim for declaratory judgment and whether Polaris was denied due process in the sense of the right to appeal when the Commission failed to send Polaris a copy of its October 13, 1978 order denying Polaris a hearing. These issues are considered separately below. DECLARATORY JUDGMENT Parties may bring actions under A.R.S. § 12-1831 et seq. to obtain a declaration of their rights or status vis-a-vis a statute or administrative order. A.R.S. § 12-1842 states that the declaratory judgment article is remedial and should be liberally construed and administered. “But even though the act is remedial and is to be liberally construed, it is well settled that a declaratory judgment must be based on an actual controversy which must be real and not theoretical. * * * A ‘justiciable controversy’ arises where adverse claims are asserted upon present existing facts, which have ripened for judicial determination.” Planned Parenthood Center of Tucson, Inc. v. Marks, 17 Ariz.App. 308, 310, 497 P.2d 534, 536 (1972) (citations omitted). Appellees have argued here and below that appellants are not entitled to declaratory judgment relief because appellants do not allege a present, actual controversy but rather seek an advisory opinion. Appellees also assert that appellants have failed to exhaust their administrative remedies. We must examine these arguments in the context of each request for relief raised by appellants. 1. VALIDITY OF CEASE AND DESIST ORDER Appellants seek to have declared void the Commission’s Cease and Desist Order of March 26, 1971. They argue that: (1) the wording of the order prohibits Polaris from making any stock sales; (2) the Legislature, subsequent to the order, amended A.R.S. § 44-1844 to allow the type of sales in which Polaris wishes to engage; and (3) therefore, the order is void because it prohibits what the Legislature expressly allows. Appellants seek this relief so that they cannot be prosecuted under A.R.S. § 44-2036 (which provides a penalty for violation of Commission orders) if they make a stock sale within the A.R.S. § 44-1844(1) exemption. We agree with appellees that appellants have yet to exhaust their administrative remedies in this regard. Because it is the Commission’s order that is involved, the Commission is in the best position to interpret that order in light of the 1972 amendment to A.R.S. § 44-1844. Allowing the Commission to review its order before judicial intervention permits it to correct any mistakes there might be and thereby possibly avoids litigation over the order. Herzberg v. David, 27 Ariz.App. 418, 555 P.2d 677 (1976). It is true that Polaris unsuccessfully has informally and formally sought to have the Commission review its order. For example, on September 11, 1978, appellants filed a formal notice for a hearing to allow them to supply information regarding Polaris and to have the Commission vacate the cease and desist order. We hold that due process requires that appellants still be allowed to appeal the Commission’s October 13, 1978 denial of that request. Appellants will not have exhausted their administrative remedies concerning the order until it is deter mined if the Commission must conduct a hearing, and, if so, until the Commission acts on the request to vacate the order. At this time, declaratory judgment relief concerning the cease and desist order would be premature. 2. CONSTITUTIONALITY OF A.R.S. § 44-1841. A.R.S. § 44-1841(A) forbids the sale of nonexempt, unregistered securities within or from the State of Arizona. Appellants contend that to the extent the statute regulates the sale of securities outside Arizona, it conflicts with the federal Commerce Clause, U.S. Const. Art. I, § 8. If this were true, at least that portion of the statute would be unconstitutional under the federal Supremacy Clause, U.S. Const. Art. VI. Appellants do not allege how they are affected by the portion of the statute to which they object. There is no evidence that they have sold or will sell nonexempt securities from Arizona to some other place. Thus, appellants raise a “mere difference of opinion as to the constitutionality of legislation” which is an insufficient interest to obtain a declaratory judgment. Manning v. Reilly, 2 Ariz.App. 310, 314, 408 P.2d 414, 418 (1965). 3. VALIDITY OF STOCK SALES POST-JANUARY 1, 1973 Appellants seek to have all of their sales of stock since January 1,1973 declared valid as within an exemption of A.R.S. § 44-1844. If appellants’ sales are not within the exemptions of A.R.S. § 44-1844, they may be subject to criminal prosecution under A.R.S. § 44-1841 for selling nonexempt, unregistered securities. To support their claim that a declaratory judgment is appropriate, appellants rely on the following quotation from Planned Parenthood Center of Tucson, Inc., supra. “To require statutory violation and exposure to grave legal sanctions; to force parties down the prosecution path, in effect compelling them to pull the trigger to discover if the gun is loaded, divests them of the forewarning which the law, through the Uniform Declaratory Judgments Act, has promised. Begrudging availability of the declaratory vehicle is inconsistent with the Act’s expressed remedial tenor directed to the elimination of uncertainty and insecurity and the settlement of controversy. Whenever facts are present justifying prosecution, prosecution will serve to test the statute and tell the whole story. A declaratory judgment in such case is ordinarily as superfluous as medicjne administered to a corpse. Violation of a criminal statute as a prerequisite to testing its validity invites disorder and chaos and subverts the very ends of law. The court will not indulge in the fomentation of lawlessness.” 17 Ariz.App. at 312-13, 497 P.2d at 538-39. The Planned Parenthood Center of Tucson, Inc. case is quite different from the instant case. The plaintiffs in Planned Parenthood sought to determine the constitutionality of several criminal statutes proscribing abortions. There was no question that if the plaintiffs engaged in their planned conduct, they would be in violation of the statutes. Also, the local county attorney had made it clear that the statutes would be enforced. The only question raised by plaintiffs was whether the state could constitutionally prohibit the conduct in question. If the plaintiffs asserted what they believed to be their constitutional rights, they were faced with certain prosecution. In that context, the Court of Appeals held that the declaratory judgment statutes could be used to settle in a civil context an actual controversy over essentially a question of constitutional law. The alternative would have been to force the plaintiffs to break the law and then to have subjected them to criminal penalties if they were unsuccessful on their constitutional challenge. Appellants here are situated differently. Although they have been investigated, they have not been threatened with certain prosecution. The question they raise has no constitutional underpinnings. The validity of A.R.S. § 44 — 1844 is not challenged. Rather, appellants seek advice on what is essentially a factual question — whether the sales they have conducted since January 1, 1973 came within the exemptions provided in A.R.S. § 44-1844. Appellants do not face the immediate threat to their constitutional liberties that were faced by the plaintiffs in Planned Parenthood. The declaratory judgment statutes cannot be used to make the courts a fountain of advice for the future conduct of our citizens. While we commend appellants for seeking to determine the legality of their conduct before they embark on a particular course, under the facts of this case, the courts are not the appropriate forum for that determination. 4. REASONABLENESS OF THE INVESTIGATION Appellants’ complaint requests that the Commission’s investigation of them be declared unreasonable as to time and manner and that the Commission be restrained from further investigation. As to this allegation, the complaint does state a claim for which relief could be granted. The Commission derives its power to investigate both from the state constitution, Ariz. Const. Art. 15, § 4, and from statutes, A.R.S. §§ 44-1822 to 44-1825. These provisions give the Commission broad powers to conduct public or private investigations to determine whether any person or corporation has violated or is about to violate Arizona’s securities laws. The United States Supreme Court has said that the investigatory powers of administrative agencies are analogous in their breadth to those of the grand jury. United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950). An appropriately empowered agency “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” Id. at 642-43, 70 S.Ct. at 364, 94 L.Ed. at 411. Hence, courts have given agencies wide berth in reviewing the conduct of administrative investigations. In fact, although courts have examined the issuance of subpoenas for material or testimony by agencies and have occasionally refused to enforce them, our research has failed to uncover any case in which a court interceded and halted an agency’s investigation altogether. But we do not believe the courts are without authority under any circumstances to limit or stop an agency’s investigation. In discussing the federal agency that investigates securities cases, the Second Circuit Court of Appeals opined in dictum, “It is true that while the S.E.C. is entitled to great freedom in conducting its investigations, it is not at liberty to act unreasonably, and in appropriate circumstances the court may inquire into the reasons for an investigation and into its effects.” S.E.C. v. Brigadoon Scotch Distributing Co., 480 F.2d 1047, 1056 (2d Cir.1973). Courts must have the power to curb administrative investigations in appropriate instances. The great freedom provided by our democratic system , is possible only because our federal and state constitutions have created a government controlled by checks and balances. We have vested our officials with extensive powers to enable them to govern us, but we have also designed the system so that no branch of government has unlimited powers. Neither the federal nor state executive branch and its administrative agencies can expand their powers beyond their constitutional or statutory limits and begin an untramelled interference with our liberties because our constitutions allow the legislature and the judiciary to check the executive exercise of power. When an Arizona administrative agency unreasonably infringes on the liberties of a corporation, its officers, and its shareholders, it is the Arizona courts who must be able to curb the abuse of power. The Corporation Commission has been treated as a fourth branch of government in Arizona. Arizona Corporation Commission v. Superior Court, 105 Ariz. 56, 459 P.2d 489 (1969); Selective Life Insurance Co. v. Equitable Life Assurance Society, 101 Ariz. 594, 422 P.2d 710 (1967). However, the system of checks and balances does not rely solely on one branch to restrain its own agents within the proper constitutional limits. The legislature deals with broad issues effecting large segments of the population, and it may not enact a local or specific law. Ariz. Const. Art. 4, Part 2, § 19. It is the courts that have the function of protecting our constitutional liberties by upholding them in individual cases or controversies. Being receptive to an individual’s claim of unfair treatment by the state or federal government is part of the American judiciary’s heritage. Thus, if an administrative agency’s investigation becomes a tool of harassment and intimidation rather than a means to gather appropriate information, the appropriate court may intrude and stop the incursion into the constitutional liberties of the parties under investigation. We find instruction in Shasta Minerals & Chemical Co. v. S.E.C., 328 F.2d 285 (10th Cir.1964). At issue in Shasta Minerals was a subpoena issued by the S.E.C. to a company. When the company refused to comply, the S.E.C. brought a court action to enforce the subpoena. Both parties moved for summary judgment. The S.E.C. relied only on its investigative power to demand enforcement of the subpoena and declined to give any explanation for its actions. The company filed affidavits “showing a systematic persecution and harassment of [the company] and of its president.” 328 F.2d at 287. The affidavits also stated that the S.E.C. had told the company that it would never be allowed to register under the federal securities laws. Because the S.E.C. had not controverted these allegations nor offered an explanation for its actions, the allegations were presumed true for purposes of the summary judgment motion. The appellate court held that in such circumstances, granting summary judgment in favor of the S.E.C. was improper because the allegations supported a claim that the S.E.C. had acted arbitrarily and beyond its authority. The Shasta Minerals case is distinguishable from the case in question because it involved the enforcement of a subpoena which requires court approval whereas an administrative investigation in general does not. But the central issue in Shasta Minerals is identical to the one presented here by appellants — can an agency use its investigative powers to harass a company and, for reasons unrelated to the agency’s legitimate purposes, obstruct or destroy its ability to conduct its business? Appellants have alleged a lengthy and intrusive course of harassment by the Commission’s representatives accomplished under the guise of a securities investigation. The length and intensity of the investigation, the allegedly false statements made about Polaris, and the refusal of the Commission to hear Polaris’ side of the case either formally or informally are all evidence from which it might be inferred that the Commission is acting arbitrarily and beyond its authority. In the record, the following portion of a newspaper article appears: “ ‘The state can make it tough to impossible for a company to issue securities simply by restrictions and policies,’ said a[n] [Arizona corporation] commission source. ‘It’s a good way to keep out promoters.’ “ ‘If you make it tough enough for a promoter long enough, maybe he’ll go away; but [appellant] Concannon didn’t go away,’ said the official who concurred with the assessment that the commission’s investigation was unnecessarily delayed.” The Arizona Republic, Pima Probe of Firm Unfair, ‘Little Guy’ Says, Oct. 3, 1976, at A — 4, cols. 2-3. If appellants’ allegations are true, and we must assume they are for purposes of reviewing the granting of a motion to dismiss for failure to state a claim, the Commission has acted at least as arbitrarily and as far beyond its authority as did the S.E.C. in Shasta Minerals, supra. The Commission is empowered to investigate for purposes of enforcing the securities laws; the Commission has no authority to determine on a basis other than compliance with the securities laws those persons or corporations who may conduct business in Arizona. The Commission may not constitutionally use its investigatory powers to harass, intimidate, and defame a business into leaving the state. If the Second Circuit Court of Appeals was correct in Brigadoon Scotch Distributing Co., supra, that there are cases where an agency’s actions are so unreason able that a court may inquire into them, then appellants surely allege such a case. The trial court erred in dismissing appellants’ complaint for summary judgment as to this claim. DUE PROCESS Appellants argue for the first time on appeal that they were denied due process when the Commission failed to notify them that it had denied on October 13, 1978 appellants’ formal request for a hearing. Appellants’ attorneys avow that the first time anyone associated with Polaris had notice of the denial was when appellees attached a copy of it to their motion to dismiss in the instant case. If this allegation is true, appellants were denied due process. Under either the version of A.R.S. § 44-1981 in effect in 1978 or the amended version enacted in 1980, appellants have a right to appeal any final order of the Commission. Both statutes contain a time limit within which an appeal must be filed. The right to appeal is meaningless if the time for appeal could run before the appellant received notice that there is an order from which to appeal. The current version of A.R.S. § 44-1981 incorporates A.R.S. § 12-904 which expressly provides that the time for appeal does not begin to run until the appealable decision is served on the party adversely affected. Due process notions of fundamental fairness require us to construe the prior version of A.R.S. § 44-1981 similarly. Thus, appellants have or had twenty days from the service of the order on them to appeal the order. If on remand the trial court finds that the order has never been served, it should require the Commission to serve the order on appellants who would then have twenty days in which to file a notice of appeal. The trial court’s grant of appellees’ Motion to Dismiss is affirmed as to all of appellants’ claims except the claims that the Commission’s investigation has become unreasonable. As to the unreasonable investigation claims, the trial court is reversed and the case is remanded for further proceedings consistent with this opinion. Appellants’ claim of a denial of due process by infringement of the right to appeal is also remanded for further proceedings. HAYS and CAMERON, JJ., concur. . We note that Polaris attached a number of conditions to these offers, several of which the Commission could reasonably find objectionable. The Commission simply declined the offers, however, without negotiating over the conditions.

JACK G. MARKS, Superior Court Judge (Retired): This matter was commenced on February 24, 1981, when a complaint was issued by the State Bar of Arizona Local Administrative Committee No. 5F to respondent Paul W. Mercer alleging four counts of professional misconduct. At the conclusion of the hearing held March 31, April 27 and 28, 1981, at which the respondent and his counsel appeared, Counts Two, Three and Four were dismissed. Findings of Fact, Conclusions of Law and Recommendations were issued May 28, 1981, concerning Count One. Disbarment was recommended. The respondent filed objections August 5, 1981, and requested a hearing before the State Bar Disciplinary Board. A hearing was held September 19, 1981, by the Disciplinary Board at which the respondent was represented by counsel. Mr. Mercer did not appear at this hearing. The decision of the Board affirmed the Committee’s Findings of Fact and Conclusions of Law except as to an aspect of the Findings of Fact relating to a $17,500 “brokerage fee” or “legal fee” and Conclusions of Law numbered 4 and 5. The Committee’s findings are summarized below. Mercer developed a professional relationship with Robert E. Stock and his wife Anna in which Mercer performed “legal, business, accounting and tax reporting services.” The Stocks decided to sell the Georgian Court Nursing Home, a piece of Phoenix property they owned. When the best offer a real estate broker could find was $195,000, Stock asked Mercer to help them sell the property. Mercer was a general partner in L. & M. Investments. He arranged for his partnership to buy the nursing home. Mercer claimed to have fully disclosed his relationship with L. & M. Investments to the Stocks, but Stock testified that he presumed Mercer had some relationship with the partnership without being sure of the exact nature of the relationship. The parties agreed to a sale for a price of $250,000. The down payment was $5,000 and annual payments of $50,000 were to be made until the full balance was paid. The agreement was embodied in a document entitled “Security Agreement” which was prepared by Mercer. Thus, Mercer represented both the sellers and the buyer. He testified that he advised Stock to seek independent counsel but believed Stock did not do so because L. & M. Investments’ price far exceeded the next best offer. The Local Administrative Committee found the Security Agreement to be “vague, ambiguous, and uncertain.” Although Mercer testified that the agreement absolved the partners in L. & M. Investments of personal liability and allowed the partnership to unilaterally reduce its $50,-000 annual payment, the Committee found that the agreement did “not say this at all.” Upon sale of the nursing home, the Stocks found themselves in an unfavorable tax situation and turned to Mercer for assistance. To set up a deduction, Mercer created a $40,000 debt for legal fees owed to him by the Stocks. The Stocks “paid” the fee to Mercer who then “lent” the Stocks $40,000 evidenced by a promissory note secured by a mortgage. The parties agreed that the $40,000 would be deducted from the final payment owed by L. & M. Investments for the purchase of the nursing home. Within a few months thereafter, Mercer advised the Stocks to create a trust using as corpus the proceeds from the nursing home sale. The Stocks agreed and Mercer drafted the necessary papers. The Local Administrative Committee found that the trust articles were “incompetently and unintelligibly drafted” and allowed Mercer to assume “irreconcilable conflicts of interest.” For example, Mercer was named a trustor, a beneficiary, and the trustee and was authorized to exercise his judgment to “pay off all sums due to [himself as beneficiary] and to beneficiary L. & M. Investments.” The trust agreement also provided that the Stocks were to be paid only $24,000 annually despite the terms of the Security Agreement obligating L. & M. Investments to make $50,000 annual payments. Mercer testified that he believed the Security Agreement authorized him to unilaterally reduce the partnership’s annual payments from $50,000 to $24,000. Stock apparently disagreed and since the trust was created during 1977 he has demanded, unsuccessfully, payment of $50,000 per year from L. & M. Investments which has continued to pay only $24,000 annually. Mercer claimed to have made full disclosure of his position and interests to the Stocks before each of these transactions. The Local Administrative Committee doubted whether this was true but found in any case that full disclosure could not have avoided the “inescapable conflicts of interest” that Mercer “deliberately created” and did so “without any mitigating circumstances.” The Committee concluded that Mercer violated DR 5-104(A) and 5-105(A) and (B). DR 5-104(A) states: “A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.” DR 5-105 provides: “(A) A lawyer shall decline preferred employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C). “(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).” If Mercer’s prior suspension could be considered, see In re Mercer, 126 Ariz. 274, 614 P.2d 816 (1980), the three members of the Committee unanimously recommended disbarment. The Disciplinary Board rejected the Committee’s recommendation and voted six to three to recommend to this Court that Mercer be suspended from the practice of law for a period of two years. The dissenting three board members believed that a more severe penalty should have been recommended. Pursuant to Ariz.R.S.Ct. 37(a), Mercer filed objections to the decision of the Disciplinary Board on October 26, 1981. Oral argument was heard June 10, 1982. We approach this proceeding as the trier of facts and the law. In re Kleindienst, 132 Ariz. 95, 644 P.2d 249 (1982). Our supervisory power concerning the conduct of members of the State Bar is “to protect the public, the profession and the administration of justice and not to punish the offender.” In re Kastensmith, 101 Ariz. 291, 294, 419 P.2d 75, 78 (1966). Furthermore, our purpose includes deterrence of “other lawyers from the temptation to violate their ethics.” In re Peterson, 108 Ariz. 255, 257, 495 P.2d 851, 853 (1972). To justify discipline against an alleged offender, this Court must be satisfied by clear and convincing evidence, In re Kleindienst, supra, that the alleged offender has violated one or more of the Disciplinary Rules of the Code of Professional Responsibility, Ariz.R. S.Ct. 29(a). In the American Bar Association Code of Professional Responsibility Preliminary Statement, the Disciplinary Rules were declared to be “mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.” A.B.A.Code of Professional Responsibility and Code of Judicial Conduct at 1 (1976) (amended August, 1977). We are satisfied that the evidence adduced before the Local Administrative Committee, as affirmed by the Disciplinary Board, fully supports the findings and conclusions, having met the test of clear and convincing evidence. There can be no doubt that the interests of Mercer and the Stocks were differing as used in DR 5-104(A), supra, in accordance with the definition in our Code of Professional Responsibility as follows: “ ‘Differing interests’ include every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.” Ariz.R.S.Ct. 29(a), Definition (1). Mercer admitted he drafted the Security Agreement and the Trust Agreement. Although he acknowledged that he was acting as Stocks’ attorney when he prepared both agreements, examination of both documents reveals their terms were more for the protection of Mercer and L. & M. Investments than for the Stocks. As trustee, Mercer did not carry out his duties toward his clients. Twenty-six thousand dollars per year was not paid by L. & M. Investments to the trustee during the first three years subsequent to the sale because L. & M. Investments “didn’t have the money. The business was losing money. It — it isn’t — it wasn’t available to the trust,” according to Mercer. It is our opinion, in view of the way the sale of the nursing home developed, Mercer had a duty not to proceed with the sale until the Stocks had obtained independent legal advice. Cf. Goldman v. Kane, 3 Mass. App. 336, 329 N.E.2d 770 (1975). DR 5-105(C) allows an attorney to represent multiple clients in situations covered by DRs 5-105(A) and (B) if he or she can obviously represent the interests of each client without compromising the exercise of his or her independent professional judgment and if each client consents to the representation after full disclosure of the situation. We have examined this case in light of DR 5-105(C) to determine if the exception for situations covered by DR 5-105(A) and (B) is applicable to this proceeding. It is our opinion that DR 5-105(0) is inapplicable because Mercer could not and did not exercise his independent professional judgment in behalf of his clients. In disciplinary proceedings, an attorney objecting to the findings and recommendation of the Disciplinary Board has the burden “to show that they are not supported by the evidence or that they are erroneous or unlawful.” In re Haggard, 123 Ariz. 27, 28, 597 P.2d 180, 181 (1979) (citations omitted). Mercer has failed to sustain his burden. Paul W. Mercer was found by the Disciplinary Board to be guilty of unethical professional conduct with respect to his clients Robert B. Stock and Anna Stock concerning the Georgian Court Nursing Home transaction. The record of this proceeding mandates our affirmance of the decision of the Disciplinary Board. The Disciplinary Board recommended that the respondent Paul W. Mercer be suspended from the practice of law for two years. Serious consideration has been given by this Court, as authorized by Ariz.R.S.Ct. 38(a)(4), to Mercer’s prior suspension for a period of two months, In re Mercer, 126 Ariz. 274, 614 P.2d 816 (1980), and to the recommendation of the Disciplinary Board and the findings and recommendation of the Local Administrative Committee. See In re Lurie, 113 Ariz. 95, 546 P.2d 1126 (1976). However, we alone have the authority to determine the discipline to be imposed although it be more severe than that which was recommended by the Disciplinary Board. See In re Steward, 96 Ariz. 49, 391 P.2d 911 (1964); Heavey v. State Bar, 17 Cal.3d 553, 131 Cal.Rptr. 406, 551 P.2d 1238 (1976). We hold that, because of the seriousness of the conduct of Mercer as well as his prior disciplinary proceeding, the recommendation of the Local Administrative Committee is more appropriate. See In re Conduct of Gant, 293 Or. 130, 645 P.2d 23 (1982). It is, therefore, ordered that the respondent, Paul W. Mercer, be disbarred. GORDON, Y.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur. Note: Chief Justice WILLIAM A. HOLO-HAN did not participate in the determination of this matter. The Honorable JACK G. MARKS, Retired Judge of the Superior Court of Pima County was assigned to assist this Court in the disposition of this matter. . One purpose of the trust appears to have been to “protect” the proceeds from a $70,000 judgment against the Stocks that had been or was about to be rendered in an unrelated lawsuit. . If the prior suspension could not be considered, two committee members recommended disbarment and one recommended a one-year suspension.

OPINION BIRDSALL, Judge. The only question raised in this appeal concerns the sentence of 22 years for armed robbery, with two prior felony convictions. Pursuant to a plea agreement, appellant pled guilty to three class one misdemeanors and armed robbery. He admitted the allegation of two prior felony convictions. Other charges and the allegations of a dangerous nature were dismissed. The parties agreed that the following sentences would be imposed: time served for the three misdemeanors and 22 years for the armed robbery with priors. As to the latter sentence, the plea agreement stated in parentheses “15 years flat.” Appellant challenges the legality of the 22-year sentence and the court’s failure to include a provision that he serve no more than 15 years, as provided in the plea agreement. The attack on the 22-year term is without merit. Armed robbery, a class two felony, requires imprisonment for seven years for a first offense. A.R.S. § 13-701(B). Since appellant admitted two prior convictions, the maximum lawful sentence was 28 years. A.R.S. § 13-604(D). The agreed-upon sentence was therefore lawful. The transcript of the change of plea hearing supports appellant’s contention that the parties had agreed that he was to be imprisoned for no more than 15 years. In other words, the Department of Corrections, to whose custody he would be committed, was to be ordered to release him regardless of whether the department thought he qualified for release. This the sentencing court could not do. The legislature has defined the penal discipline for proscribed conduct and has distributed the authority to control the sentence so that the court, the department of corrections and the parole board each serves its purpose, and within its specified sphere of competence, individualizes the sentence. State v. O’Donnal, 110 Ariz. 552, 521 P.2d 984 (1974). Courts have power to impose sentences only as authorized by statute and within the limits set down by the legislature. Whether or not a prisoner is eligible for release on parole or absolute discharge is not for courts to decide — it is within the control of the board of pardons and paroles, A.R.S. § 31-402, or the department of corrections. See A.R.S. §§ 41 — 1604.06 and 1604.07. The court could not place an outer limit on appellant’s release, but could only sentence him to a definite term of years in prison. Since it appears that appellant’s guilty plea was based on the mistaken belief that he would be released no later than 15 years from the date his sentence commenced, he should be afforded an opportunity to withdraw his guilty plea. We affirm the sentence of 22 years with directions to the trial court to permit appellant, if he so desires, to withdraw his guilty plea. HOWARD, C. J., and HATHAWAY, J., concur.

HOLOHAN, Chief Justice. The Court of Appeals affirmed the conviction of appellant on 45 counts involving violations of law relating to the fraudulent sale of securities. State v. Barber, 133 Ariz. 572, 653 P.2d 29 (App.1982). We granted the Petition for Review. From our review of the decision of the Court of Appeals, we are satisfied with the reasoning and disposition made by that court; therefore, the opinion of the Court of Appeals is approved, and the judgment of the trial court is affirmed. GORDON, Y.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.

OPINION CORCORAN, Judge. The primary issue on this appeal is whether a factual issue was raised precluding summary judgment against Bache Halsey Stuart Shields, Inc. (Bache) for conversion of a forged check with a forged endorsement. We affirm. The pertinent facts, briefly stated, which give rise to this litigation are as follows. In January, 1981 appellee Rose Ickes (Mrs. Ickes) was introduced to Roger Giles by her nephew and subsequently rented Giles a room in her home. Giles studied the stock market and on several occasions advised Mrs. Ickes to purchase stock. Mrs. Ickes’ confidence in Giles led her to open a brokerage account at Charles Schwab & Co., Inc. (Schwab) and execute a Limited Special Power of Attorney allowing Giles to buy and sell for this account. The power of attorney did not authorize Giles to receive money from the account nor to endorse her name on checks. On February 17, 1981 Giles purchased 1000 shares of Tandy stock for Mrs. Ickes’ account at Schwab. Approximately ten days later, when Mrs. Ickes was out of town, Giles directed Schwab to sell the stock which resulted in a $40,192.55 credit to the account. On March 6, 1981 Schwab issued and apparently mailed a check for this amount with “Rose Ickes” as payee. Although the record is unclear as to Giles’ precise actions, Giles obtained this check without authority and without the knowledge of Mrs. Ickes. On March 9, 1981 Giles took the check to the Bache office in Scottsdale, Arizona where he had a personal securities account and requested that it be deposited to his account. The check had a forged endorsement of Mrs. Ickes’ signature on its reverse side. The Bache branch manager, Melvin Selbst, noted that the depositor was not the payee and asked Giles about this discrepancy. Giles informed Selbst that he had a power of attorney from Rose Ickes. Mr. Selbst was not shown the Limited Special Power of Attorney; neither did he attempt to contact Mrs. Ickes to verify her signature. See generally Restatement (Second) of Agency § 167 (1958). Selbst did inform Giles that Bache required a note from Mrs. Ickes authorizing the deposit and directed another Bache employee to inform Giles of the contents required in a written authorization. This employee dictated the verbiage required in the note. Giles returned the same day with a note scribbled on Bache’s own note pad with another forged signature of Mrs. Ickes. Bache did not require any guarantee or notarized proof of the endorsement for the signature on the check or the note but simply compared the signature on the note with the signature on the check. Further, Bache did not require Giles to endorse the check below Mrs. Ickes’ forged signature. The check was accepted by Bache and the monies deposited to Giles’ account. Subsequently, Giles removed all funds from this account and disappeared. Rose Ickes brought suit against Bache and others on June 4, 1981. On September 3, 1981 the trial court granted a motion brought by Mrs. Ickes for summary judgment against Bache for conversion of the check. Bache timely appealed the judgment. We affirm the trial court. This matter is governed by the commercial code, specifically by A.R.S. § 44-2556 (UCC § 3-419(3)) which provides in part: A. An instrument is converted when: 3. It is paid on a forged indorsement. C. Subject to the provisions of this chapter concerning restrictive indorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands. Bache contends that summary judgment was improper because a factual issue exists concerning whether it acted in a commercially reasonable manner in depositing the check to Giles’ account. In support of this contention, appellant cites authority including Continental Bank v. Wa-Ho Truck Brokerage, infra note 1, for the general proposition that what constitutes commercial standards must be decided on a case-by-case basis in the context of specific facts. However, where the material facts are undisputed, it is a question for the court. Further, A.R.S. § 44-2556 makes good faith and commercial reasonableness affirmative defenses to conversion. Bache, therefore, had the burden of proving that its actions were commercially reasonable. Citizens State Bank v. National Surety Corp., 612 P.2d 70 (Colo. 1980). See also Continental Bank v. Wa-Ho Truck Brokerage, supra; Robert A. Sullivan Construction Co. v. Wilton Manors National Bank, 290 So.2d 561 (Fla.App.1974); National Bank of Georgia v. Refrigerated Transport Co., 147 Ga.App. 240, 248 S.E.2d 496 (1978); Berkheimers, Inc. v. Citizens Valley Bank, 270 Or. 807, 529 P.2d 903 (1974). In Continental Bank this court reversed summary judgment against a defendant bank for conversion of over 100 checks having unauthorized endorsements. Plaintiffs were companies whose bookkeeper had diverted checks made payable to the plaintiffs by using a rubber stamp endorsement entrusted to him by plaintiffs. The bookkeeper had deposited these checks to an account for which the signature card indicated he was doing business as the plaintiffs. In opposition to the plaintiffs’ motion for summary judgment the bank presented affidavits of two expert witnesses familiar with banking practices concerning third-party checks bearing unrestricted endorsements. The affiants stated that their review of the record led them to conclude that the bank had acted in accordance with reasonable commercial standards. This court held that: We are not prepared to say, especially in view of the Bank’s affidavits on the subject, that as a matter of law, the Bank, under these circumstances, acted contrary to reasonable commercial standards. The most we are prepared to say is that a factual issue on this subject has been raised. 122 Ariz. at 420, 595 P.2d at 212. Unlike the expert testimony presented by the defendant in Continental Bank, Bache’s response to the motion for summary judgment was limited to an affidavit of its branch manager stating that Bache had initially refused to accept the check until it was made aware that Giles had a power of attorney and lived at the same residence as Mrs. Ickes. The affidavit further stated that Bache accepted a note purportedly from Mrs. Ickes authorizing the deposit of the check. Further, in contrast to the facts in Continental Bank, no assertion was made in the instant case that Mrs. Ickes’ conduct constituted negligence substantially contributing to the forgeries. See A.R.S. § 44-2543 (UCC § 3-406). Mrs. Ickes presented evidence that Bache had made payment on a forged instrument and that the note also was forged. To defeat her motion for summary judgment it was necessary for Bache to produce appropriate proof of its affirmative defense, i.e., that it had acted in accordance with reasonable commercial standards applicable to a brokerage firm dealing with a check on behalf of one who was not the true owner. See Robert A. Sullivan Construction Co. v. Wilton Manors National Bank, supra. Bache presented no evidence to demonstrate what constitutes a commercially reasonable standard for a brokerage firm when its customers present checks for deposit naming third parties as payees; nor did it present any evidence that Bache’s conduct met that standard. The opponent to a motion for summary judgment must show that evidence is available which justifies going to trial. See, e.g., Portonova v. Wilkinson, 128 Ariz. 501, 627 P.2d 232 (1981). Under the circumstances of this case we are of the opinion that the trial court could properly conclude as a matter of law that Bache failed to sustain its burden that there was a factual issue with respect to the commercial reasonableness of its actions. Appellee, Mrs. Ickes, has requested attorneys’ fees alleging that this appeal is “groundless and not made in good faith.” A.R.S. § 12-341.01(0). We cannot say that such a conclusion is supported by “clear and convincing evidence” as required by that subsection. We find that appellant raised a debatable issue concerning the sufficiency of its defense pursuant to A.R.S. § 44-2556(C). We therefore decline to award attorneys’ fees. Judgment affirmed. OGG, P.J., and FROEB, J., concur. . Bache asserts and Mrs. Ickes inferentially assumes that Bache was a “representative” for purposes of this statute. A.R.S. § 44-2208(35) (UCC § 1-201) defines “representative” as: an agent, an officer of a corporation or association, and a trustee, executor or administrator of an estate, or any other person empowered to act for another. As in Continental Bank v. Wa-Ho Truck Brokerage, 122 Ariz. 414, 595 P.2d 206 (1979), we assume, without deciding, that the defense based on this subsection is available to Bache under the facts of this case. Mrs. Ickes has argued without citation to authority that the defense of commercial reasonableness is available only to intermediary or collecting banks which do not deal directly with the forger. The language of the statute does not support this contention. . Without directly addressing the issue, numerous jurisdictions have implicitly held “commercial reasonableness” to be a question of law by determining whether defendants have established a defense pursuant to UCC § 3^119(3). See, e.g., Tubin v. Rabin, 389 F.Supp. 787, 789-90 (N.D.Tex.1974), aff'd, 533 F.2d 255 (5th Cir. 1976); Cooper v. Union Bank, 9 Cal.3d 371, 107 Cal.Rptr. 1, 507 P.2d 609 (1973); Salsman v. National Community Bank, 102 N.J.Super. 482, 246 A.2d 162 (1968); Belmar Trucking Corp. v. American Trust Co., 65 Misc.2d 31, 316 N.Y. S.2d 247 (Civ.Ct.N.Y.1970); Bank of the West v. Wes-Con Dev. Co., 15 Wash.App. 238, 548 P.2d 563 (1976). . Mrs. Ickes does not contend that Bache acted in bad faith and therefore we consider only the issue of commercial reasonableness. . We note that failure of a bank to authenticate a signature of a non-customer payee has been held as a matter of law to preclude a defendant from raising the affirmative defense of commercial reasonableness. See Tubin v. Rabin, supra; Twellman v. Lindell Trust Co., 534 S.W.2d 83 (Mo.App.1976); Belmar Trucking Corp. v. American Trust Co., supra; Sherriff-Goslin Co. v. Cawood, 91 Mich.App. 204, 283 N.W.2d 691 (1979). We do not reach the issue of what would be reasonable for a brokerage firm under these circumstances because we find Bache’s failure to raise a factual issue concerning the existence of standards of commercial reasonableness and its compliance with such standards to be dispositive of this appeal.

OPINION OGG, Presiding Judge. The question presented in this case is whether Rule 32, Rules of Criminal Procedure, 17 A.R.S., may be interpreted to provide relief to a criminal defendant in the form of a delayed appeal, where there is no showing that the defendant’s failure to prosecute an appeal from his original conviction and sentence was without fault on his part. We hold that Rule 32 does not authorize the grant of such relief and reverse the trial court order granting respondent Tapp a delayed appeal. William Logan Tapp was charged by indictment with two counts of sexual conduct with a minor, a class 2 felony , and one count of criminal trespass, a class 6 felony. An allegation of a prior conviction was subsequently filed. The criminal trespass count was severed and the remaining counts proceeded to trial before a jury. Tapp did not appear and was tried in absentia. He was found guilty on both counts of sexual conduct with a minor and the allegation of the prior conviction was found to be true. Following entry of judgment of guilt, Tapp was sentenced in absentia to the presumptive term of ten and one-half years on each count, these sentences to run concurrently. The criminal trespass count of the original indictment was dismissed. Following his sentencing, Tapp’s retained counsel filed a notice of appeal, and then was granted the right to withdraw from the case. The trial court appointed the office of the Maricopa County Public Defender to represent Tapp on appeal. However, as the trial court had made no determination as to Tapp’s indigency, the public defender’s office moved this court for a determination of counsel. In State v. Tapp, 1 CA-CR 4430, we allowed the public defender’s office to withdraw as attorney of record for Tapp and set a date of May 15,1980 for the filing of Tapp’s opening brief. We further stated that the appeal would be subject to dismissal without further notice if the brief were not timely filed. Copies of all correspondence and orders were sent to Tapp’s last known address by certified mail and received by a duly authorized agent. No opening brief was ever filed, and we dismissed the appeal on June 12, 1980. On September 28, 1980, Tapp was apprehended in Hawaii and taken into custody. He appeared before the sentencing judge in Maricopa County on October 30, 1980, and his original sentence was confirmed. When offered an opportunity to explain his absence from trial and sentencing, Tapp elected to make no explanation. Tapp was determined to be indigent by the trial court, and the Maricopa County Public Defender’s Office was appointed to represent him when he appeared before the superior court in October 1980. Subsequently, a motion to reinstate the appeal was denied by this court. On January 7, 1981, we denied Tapp’s motion for rehearing, without prejudice to his filing a petition for post-conviction relief. On January 20,1981, the Arizona Supreme Court denied his petition for review of our action. Appointed counsel began these proceedings by filing a petition for post-conviction relief with the trial court, pursuant to Rule 32. The petition sought relief in the form of the right to file a delayed appeal, as provided in Rule 32.1: Rule 32.1 Scope of remedy Subject to the limitations of Rule 32.2, any person who has been convicted of, or sentenced for, a criminal offense may, without payment of any fee, institute a proceeding to secure appropriate relief on the ground or grounds that: ****** f. The petitioner’s failure to appeal from the judgment, sentence, or both within the prescribed time was without fault on his part; (emphasis added) ****** Tapp’s petition contended that the failure to pursue the appeal was “without fault on his part”, but did not offer any excuse for the failure to be present for trial, sentencing, or during the appeal period. The trial court did not find that the failure to. pursue the appeal was without fault on Tapp’s part, but entered the following order: The Court having reviewed the pleadings and having considered everything presented, finds that there are what could be some substantial issues in the case and that the best interests of the public and the effective administration of justice dictate that a delayed appeal should be granted, therefore, IT IS ORDERED that the Petition for Post Conviction Relief is granted and defendant is granted a delayed appeal. This ruling was made without an eviden-tiary hearing on the matter. See Rule 32. The state’s timely motion for rehearing was denied, and the matter is before this court on the filing of the state’s timely petition for review pursuant to Rule 32.9. The state contends that the trial court erred in granting a delayed appeal without any evidence that the failure to prosecute the appeal previously was without fault on defendant’s part. We agree. The United States Constitution contains no absolute guaranty of the right to an appeal from a criminal conviction or sentence. However, due process and equal protection considerations contained within the Fourteenth Amendment require that when a state chooses to make an appellate system available, the system must be equally available to all those convicted, regardless of indigent status. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The Arizona Constitution, art. 2, § 24 provides “the right to appeal in all cases” in criminal prosecutions. But the constitutional right to appeal in Arizona may be waived. See State v. Williams, 122 Ariz. 146, 593 P.2d 896 (1979). See also 17 A.R.S., Rules of Criminal Procedure, Rules 26.11(a) and 31.3. Further, we see no distinction between the failure to timely file an appeal and the failure to timely prosecute an appeal. See Rule 31.15(b). While the right to a trial requires no affirmative action from the accused, the appellate right of necessity requires some affirmative action, including timely filing the notice of appeal and diligently prosecuting the appeal as required by our rules. The purpose of post-conviction relief under Rule 32 is to provide a remedy for matters which do not have a sufficient record to provide appellate review. State v. Cabrera, 114 Ariz. 233, 560 P.2d 417 (1977); State v. Bell, 23 Ariz.App. 169, 531 P.2d 545 (1975). In developing these factual matters, the petitioner has the burden of proving them by a preponderance of the evidence. Rule 32.8(c). Additionally, the substantive grounds in the rules specifying grounds for relief must be strictly complied with, and the petitioner must assert grounds which bring him within the provisions of the rule in order to be entitled to any relief. State v. Salazar, 122 Ariz. 404, 595 P.2d 196 (App. 1979); Rule 32.1. The problem in this proceeding is that petitioner never pled any specific reason why he failed to prosecute his appeal, although he pled that his failure to do so was without fault. Further, there was no Rule 32.8 evidentiary showing whatsoever that he was in fact without fault within the meaning of Rule 32.1(f). We are aware of the decision in State v. Goldsmith, 112 Ariz. 399, 542 P.2d 1098 (1975), holding that the constitutional right to appeal in Arizona will not be denied where an appellant is not apprehended as of the date his appeal is filed. However, Goldsmith did not deal with a Rule 32 proceeding. The right to a delayed appeal should be pursued through the provisions of Rule 32, State v. Mitchell, 27 Ariz.App. 309, 554 P.2d 905 (1976), and a delayed appeal may be permitted only where the failure to appeal was without fault on the part of the petitioner. State v. Stice, 23 Ariz.App. 97, 530 P.2d 1130, supplemental opinion, 24 Ariz.App. 516, 540 P.2d 135 (1975). The trial court’s conclusion that defendant Tapp was entitled to relief in the form of a delayed appeal was incorrect, and its order granting the right to file a delayed appeal is set aside. We also note that after the motion to file a delayed appeal in this matter was granted, respondent Tapp filed an appeal designated as 1 CA-CR 5296. This appeal has been stayed pending disposition of this Rule 32 petition for post-conviction relief. Consistent with this opinion setting aside the trial court’s order authorizing the filing of such a delayed appeal, we hereby dismiss the appeal in 1 CA-CR 5296. Review granted; relief granted to the petitioner, State of Arizona. FROEB, J., concurs. . A.R.S. §§ 13-1405, 13-1401. . A.R.S. §§ 13-1504(A)(1) and (B), 13-1501. , Tapp had suffered a prior conviction in Indiana for assault and battery with intent to gratify sexual desires. . The right to appeal may not be waived prior to imposition of sentence; public policy requires that the right not be negotiable in plea bargaining. State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979).

OPINION BIRDSALL, Judge. The appellant juvenile was adjudicated delinquent. At the end of his disposition hearing the court entered the following order, which is the subject of this appeal: “IT IS ORDERED that John Paul Anderson is placed on official probation until his 18th birthdate under the following conditions: 1. That the minor obey all laws. 2. That the minor report to the Pima County Juvenile Court Detention Center at 5:00 p. m. every Friday until 6:00 a. m. every Monday for a period of six consecutive weekends commencing with Friday, 2 April 1982, and ending with Friday, 2 May 1982. The minor will remain in the care, custody and control of the Pima County Juvenile Court Detention Center for the purpose of effective counseling and probation services to effectuate the minor’s rehabilitation during the counseling program from 5:00 p. m. Friday night until 6:00 a. m. Monday morning for those six consecutive weekends, at which time, the minor will be released to attend his job, to attend school or home. 3. That the minor be housed at the convenience of the Pima County probation staff in the Pima County Juvenile Court Detention Center in such facilities as may be available during the minor’s stay in the care of the probation staff. IT IS ORDERED that this minor’s parents are responsible for transporting the minor to and from the Juvenile Court Detention Center for the aforementioned weekends.” We interpret this order to be an award of the child to the care of his parents, subject to the supervision of the probation department. See A.R.S. § 8— 241(A)(2)(a). The power of the juvenile court to make a disposition of a delinquent child is limited to those dispositions specifically enumerated in the statute, A.R.S. § 8-241(A)(2). See State v. Collins, 122 Ariz. 550, 596 P.2d 385 (App.1979); In re Appeal in Maricopa County, Juvenile Action No. J-74275, 117 Ariz. 317, 572 P.2d 451 (App.1977). The disposition order of the juvenile court should follow the language of the statute. See In re Appeal in Pinal County, Juvenile Action No. J-169, 131 Ariz. 187, 639 P.2d 377 (App.1981). When the court makes disposition under A.R.S. § 8-241(A)(2)(a), as we find it did here, the court may also order that the juvenile be placed on probation. In re Appeal in Maricopa County, Juvenile Action No. J-72752, 21 Ariz.App. 414, 520 P.2d 327 (1974). The court may then order certain conditions of probation to control the behavior of the child. This is an inherent power of the court arising out of the need to attempt the rehabilitation of the child and to protect society from further delinquent acts. We find that this power, the ability to impose conditions of probation, exists even though it is not specifically set forth in the statute. This appeal questions the power of the court to impose the weekend confinement as a condition of probation. This question has been considered in California where such a condition has been upheld. See e.g., In re John S., 83 Cal.App.3d 285, 147 Cal. Rptr. 771 (1978) (juvenile required to spend between five and ten days custodial time); In re Ricardo M., 52 Cal.App.3d 744, 125 Cal.Rptr. 291 (1975) (requirement that minor spend not less than five nor more than 20 days in juvenile hall as determined by hall’s staff); In re Bacon, 240 Cal.App.2d 34, 49 Cal.Rptr. 322 (1966) (minor required to spend four weekends at the probation department’s training academy, subject to reduction to two weekends in discretion of probation officer); In re Junior B., 273 Cal. App.2d 607, 78 Cal.Rptr. 436 (1969) (commitment to juvenile hall for 12 weekends). Compare In re Debra A., 48 Cal.App.3d 327, 121 Cal.Rptr. 757 (1975) (successive weekend commitment to juvenile hall, not as a condition of probation, invalidated). A condition of probation which does not violate basic fundamental rights and bears a relationship to the purpose of probation will not be disturbed on appeal. State v. Smith, 118 Ariz. 345, 348, 576 P.2d 533 (App.1978). Appellant has been in the juvenile justice system since 1979. He has been in several residential and non-residential programs, and at the time of the instant disposition was on parole from the Department of Corrections. The juvenile court will no longer have jurisdiction over him after January 8, 1983, his eighteenth birthday. He had been making some progress in a structured setting where he had the benefit of counseling. It was not unreasonable, therefore, for the juvenile court to require the six weekends at the detention center in the hope of maintaining the progress and minimizing appellant’s exposure to detrimental influences. This condition clearly bears a reasonable relationship to possible rehabilitation. We find no abuse of discretion. Affirmed. HOWARD, C.J., and HATHAWAY, J., concur.

CAMERON, Justice. This is an appeal from the summary judgment granted by the trial court in favor of appellee, Catherine M. Hogan. The effect of the summary judgment was to establish Hogan’s right to a parking easement on appellant Dunlap Investor’s real property. From that judgment, Dunlap appeals. We have jurisdiction pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure, 17A A.R.S. We must answer the following questions on appeal: 1. Was the description of the easement in the instant case so vague as to be unenforceable against an innocent third party? 2. Does knowledge by the title insurance company or escrow agent of the easement estop Dunlap from claiming that it did not have notice of the encumbrance? The facts necessary for a determination of these issues are not in dispute. The controversy concerns two adjoining parcels of land located on the southwest corner of the intersection of 35th Avenue and Dunlap in Phoenix, Arizona. In 1963, title to one parcel was held by Lane Title Company as trustee. The beneficial owner was Marco Investment Corporation, but they were not shown as the owner of record. Marco Investment was the record owner of a second adjoining parcel. Marco conveyed the second parcel to Catherine M. Hogan who erected a tavern on the lot. As a part of the transaction, Marco conveyed, by warranty deed, an easement which would allow Hogan and her patrons the right to park on the adjoining parcel of land in which Marco held a beneficial interest. The pertinent portion of the deed provided: “ * * * Marco Investment Corp., an Arizona corporation, hereinafter referred to as Grantor, and Catherine M. Hogan, wife of Thomas J. Hogan, dealing with her sole and separate property, hereinafter referred to as Grantee, do covenant and agree that no fences or walls of any nature whatsoever shall be constructed between the property conveyed to Grantee herein and any adjoining property owned by Grantor at the date hereof, either by direct ownership or as beneficiary of a real estate trust, and Grantor and Grantee hereby further covenant and agree that there will be uninhibited flow of parking between the subject property conveyed to Grantee and said remaining, adjoining property of Grantor, for a period of 99 years, unless modified by mutual agreement of the parties hereto. It is the intent of Grantor and Grantee to provide a 99 yr. easement for parking for the benefit of the subject property upon the remaining adjoining property owned at the date of this deed by Grantor, and to provide an easement for parking for a period of 99 yrs. for the benefit of said adjoining property of Grantor upon the property conveyed herein to Grantee, * * * » Between 1963 and 1970, Marco remained the beneficial owner of the servient estate burdened by the parking easement. Legal title to the servient estate passed through a series of trustees until 20 November 1970 when the title holder of record, Transameri-ca Title Insurance Company, conveyed the title to Marco Investments. At that time, the legal and equitable interests in the ser-vient property merged in the party who had encumbered the property in the first instance, Marco Investment. Ownership of the servient property then passed through a series of persons until, on 20 June 1977, the property was conveyed to Park West Development Company. Title was insured by Transamerica Title Insurance Company which also acted as escrow agent. There is uncontroverted evidence that the grant of the easement was in a “base file” maintained by Transamerica and which Transamerica used in its search and in insuring the servient property. Park West was not informed by Transamerica, however, of the parking easement. Park West entered into a contract to sell property to appellant Dunlap Investors Limited, and Transamerica insured the title. A down payment was made and the remaining payments were to be made as the construction progressed. When construction started on the disputed property, Park West received actual notice from Hogan’s attorney that a parking easement burdened the property. Dunlap brought suit to quiet title to the property and to have the parking easement declared null and void. From the granting of summary judgment in favor of Hogan, Dunlap appeals. WAS THE DESCRIPTION VOID AS TO INNOCENT THIRD PARTIES BECAUSE OF VAGUENESS? The trust agreement between Marco and its original trustee, Lane Title Company, is not part of the record. Absent an agreement to the contrary, Lane Title held bare legal title to the property with Marco holding all other rights. As the owner of equitable title, Marco’s interest constitutes a vested interest in the property itself and not merely a chose in action or a right to profits. See 76 Am.Jur.2d Trusts § 103 (1975); Bowen v. Chase, 94 U.S. 812, 24 L.Ed. 184 (1876). As a beneficiary, Marco could freely encumber or alienate any or all of his interest in the trust res. Annot., 34 A.L.R.2d 1335 (1954); 76 Am.Jur.2d Trusts § 107 (1975); Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465 (1937). There is no question that as between Marco and Hogan there existed a valid and enforceable parking easement on Marco’s property. At the time of the deed, however, Marco was not the legal owner of the property because its interest was not of record, and the property to be burdened by the easement was not otherwise described. A third party searching the record would not have been able to determine that the property in question was burdened with a parking easement. Even after the legal and beneficial interests were merged, it was still not apparent to a person searching the record as to the location of the parking easement. As the North Carolina court has stated: “While no particular words are necessary for the grant of an easement, the instrument must identify with reasonable certainty the easement created and the dominant and servient tenements.” Oliver v. Ernul, 277 N.C. 591, 597, 178 S.E.2d 383, 396 (1971). See also Vrabel v. Donahoe Creek Watershed Authority, 545 S.W.2d 53 (Tex.Ct.Civ.App.1976). In the instant case, the servient estate was not identified with reasonable certainty, and at the time of the grant of the easement, Marco was not the record owner of the property. It might be different if the deed had contained a legal description of the servient property. This might put a person searching the record on notice as to the property to be burdened. This was not done in this case, however. The deed conveyed an easement and land that was at the time neither described by the grantor or in which the grantor held legal title. We agree with the Texas Court of Civil Appeals: “The rule relating to the sufficiency of descriptions of easements is the same as that required in conveyances of land (citations omitted) * * * The description requires a certainty such that a surveyor can go upon the land and locate the easement from such description. * * * ” Vrabel v. Donahoe Creek Watershed Authority, supra, 545 S.W.2d at 54. See also Keeler v. Haky, 160 Cal.App.2d 471, 325 P.2d 648 (1958); Miller v. Snedeker, 257 Minn. 204, 101 N.W.2d 213 (1960). In the instant case, even if the person searching the record came across the grant of easement, they could not, from the instrument, identify the land involved. We believe that the easement is void as to third parties because of vagueness. We note also that the general recording statute in Arizona provides: “A. No instrument affecting real property is valid against subsequent purchasers for valuable consideration without notice, unless recorded as provided by law in the office of the county recorder of the county in which the property is located.” A.R.S. § 33-411. (emphasis added) Because of the vagueness of the description of the easement in the Marco-Hogan grant, subsequent purchasers of the Marco parcel could not, even by searching back to the original grantor, have discovered the easement and were therefore “without notice,” constructive or otherwise, of the encumbrance. ACTUAL KNOWLEDGE OF THE EASEMENT But Hogan contends that Dunlap had constructive, if not actual, notice of the easement. The evidence indicates that the easement was in Transamerica’s “base file,” and since Dunlap employed Transamerica to insure the title and to act as escrow agent in the transaction, Dunlap had constructive, if not actual, notice of the easement. The trial court stated: “It is the Court’s opinion that the Hogan easement, which was clearly set forth in the Transamerica ‘base’ file, supplied to the title company notice of the Hogan easement to the land presently possessed by Dunlap Investors Limited. It is therefore clear that any subsequent pruchaser of the land purchased by Dunlap took subject to the easement of Hogan, (i.e. Park West and Dunlap had constructive notice of the easement and cannot claim the rights of bona fide purchasers for value.)” We do not agree. Transamerica was not Dunlap’s agent for the purpose of the escrow and title search. Transamerica was acting merely as a contractor and insurer of the disputed property, and Transamerica is not charged with the affirmative duty to Dunlap and Park West, its principals, to disclose everything in its files. Transamerica may have been aware of the Marco-Hogan deed title because it was once the legal owner of the property when acting as trustee for the grantor of the easement, but Transameri-ca’s knowledge of encumbrances in other files and other chains of title is not imputed to Dunlap and Park West, the parties to the escrow and for whom titles are insured. The summary judgment in favor of Hogan is set aside, and the matter is remanded to the trial court for further proceedings consistent with this opinion. HOLOHAN, C. J., and FELDMAN, J., concur.

OPINION MEYERSON, Judge. This appeal concerns the applicability of A.R.S. § 23-392 (Supp.1981) to overtime compensation claimed by former employees of the Mohave County Sheriff’s Department. Twelve deputy sheriffs brought suit seeking payment from Mohave County (County) for overtime worked but for which no payment was received. The County, pursuant to its personnel policies, limited payment to each terminating employee to no more than eighty hours of accrued compensatory time. Summary judgment was granted on behalf of the County and this appeal followed. We must decide whether the appellants’ claim is governed by the County’s personnel policies or A.R.S. § 23-392 (Supp.1981). During the relevant period, the County had a policy which limited compensation for terminating employees to, among other things, payment for accrued compensatory time limited to eighty hours. The appellants worked overtime, at the direction of their employer, and accumulated in excess of eighty hours of compensatory time; they were denied compensation for all overtime worked in excess of eighty hours. They contend that the County’s policy conflicts with A.R.S. § 23-392 (Supp. 1981) and is therefore void. We agree. The issue of overtime compensation for law enforcement personnel in Arizona should be considered in light of the Boykin trilogy of cases. In State v. Boykin, 18 Ariz.App. 365, 502 P.2d 166 (1972) (Boykin I), the court held that employees of the Department of Public Safety could not recover compensation for overtime absent an enabling state statute. The opinion was vacated in State v. Boykin, 109 Ariz. 289, 508 P.2d 1151 (1973) (Boykin II), where our supreme court held that while overtime pay could not be authorized absent a state statute, compensatory time could be awarded because “it seems clearly unfair to require the law enforcement officers to work longer without some compensatory measure. To do so unfairly enriches the state without the benefit to the officers affected thereby.” Id. at 294, 508 P.2d at 1156. On remand, the trial court not only authorized compensatory time for those currently employed but also awarded payment for overtime worked for employees no longer on the payroll. Such employees, of course, could no longer benefit from compensatory time. The supreme court found that the trial judge’s order was inconsistent with its holding in Boykin II. State v. Boykin, 112 Ariz. 109, 538 P.2d 383 (1975) (Boykin III). “To grant employees no longer on the payroll pecuniary compensation would violate A.R.S. § 38-601 because it would permit payment of a salary in excess of that provided by law. This would in effect allow payment of pecuniary overtime compensation without the necessary legislative authorization.” Id. at 113, 538 P.2d at 387. The necessary legislative authorization was provided upon the enactment of A.R.S. § 23-392 (Supp.1981). That statute provides in relevant part as follows: A. Any person engaged in law enforcement activities shall be compensated, for each hour worked in excess of forty hours in one work week, at the option of such employer either at a rate of: 1. One and one-half times the regular rate at which he is employed; or 2. One hour of compensatory time off in lieu of cash payment. Deputy sheriffs, such as the appellants, are considered persons engaged in law enforcement activities under Section B. A.R.S. § 23-392.B (Supp.1981). Thus, the statute requires that covered law enforcement personnel receive compensation for overtime work. Compare A.R.S. § 23-392.A. (Supp. 1981) with A.R.S. § 23-391.A. (Supp.1981). The employer is given the option, however, of meeting that obligation either through payment of time and one half or the granting of compensatory time off. Particularly in light of Boykin III, A.R.S. § 23-392 (Supp.1981) clearly reflects the legislature’s desire to insure that law enforcement personnel receive compensation, either in the form of payment or compensatory leave, for overtime worked. The County’s arbitrary limitation which restricts that compensation to only eighty hours of accrued compensatory leave therefore conflicts with the statute. We hold that A.R.S. § 23-392 (Supp.1981) supersedes the County’s personnel policies because the subject of compensation to law enforcement personnel is of “statewide concern, and the legislature has appropriated the field by enacting a statute pertaining thereto, ...” Phoenix Respirator and Ambulance Service, Inc. v. McWilliams, 12 Ariz.App. 186, 188, 468 P.2d 951, 953 (1970). Our courts have consistently held that the subject of compensation for public employees is a matter of statewide policy. E.g., City of Phoenix v. Kidd, 54 Ariz. 75, 92 P.2d 513 (1939); State v. Jay J. Garfield Bldg. Co., 39 Ariz. 45, 3 P.2d 983 (1931). It is also well established that a county “must act not only within the limits of the power granted it by the legislature, but must also comply with the statutory requirements prescribed by the legislature.” Mohave County v. Mohave-Kingman Estates, Inc., 120 Ariz. 417, 420, 586 P.2d 978, 981 (1978). E.g., Davis v. Hidden, 124 Ariz. 546, 548, 606 P.2d 36, 38 (1979) (“[T]he law-making powers of counties are entirely derivative.”); County of Maricopa v. Anderson, 81 Ariz. 339, 343, 306 P.2d 268, 271 (1957) (“A county is a creature of the state ....”). Thus, we find that the matter of compensation to law enforcement personnel in Arizona is one of statewide concern and we further find that the legislature has appropriated the field by virtue of A.R.S. § 23-392 (Supp.1981). The County’s policy of limiting payment for overtime to eighty hours of accrued compensatory time to terminating employees conflicts with A.R.S. § 23-392 (Supp.1981), which contains no such limitation, and is therefore void as it applies to law enforcement personnel. The trial court, in granting the County’s motion for summary judgment, relied upon Lim v. Motor Supply, Ltd., 364 P.2d 38 (Hawaii 1961). In Lim, the employee was hired as a department manager for an indefinite period and his contract of employment stated the usual company policy of annual vacations of two weeks would apply. After several years, he was discharged at which time he had accumulated vacation leave. The court held that he had no right to receive payment for his accumulated vacation time. The court found that there was an “obvious distinction between a privilege to accumulate vacation time from year to year, and a right to be paid for the accumulated vacation if not enjoyed.” Id. at 43. As opposed to the appellants here, the plaintiff in Lim “was not under the protection of any wage and hour law .... ” Id. at 44. Thus, the holding in Lim cannot govern the instant case because here there is an express statutory requirement that law enforcement personnel receive some form of compensation, including monetary compensation, for hours worked in excess of forty per week. This court has recently held that “public employees’ benefits are not gratuities but are vested rights in the nature of deferred compensation.” Godbey v. Roosevelt School District No. 66 of Mari-copa County, 131 Ariz. 13, 638 P.2d 235, 243 (Ct.App.1981). The Arizona Legislature gave appellants the express right to be compensated for their overtime work in service to the public. Mohave County cannot take that away. The Arizona Legislature has mandated that law enforcement personnel receive compensation for overtime worked. In the case of a terminating employee, where it is not possible to grant compensatory time, such employee must be paid at time and one-half. The County’s arbitrary limitation restricting pay to eighty hours of accrued compensatory time conflicts with the foregoing statewide policy as expressed in A.R.S. § 23-392 (Supp.1981). The judgment of the trial court is reversed and this matter is remanded for further proceedings consistent with this opinion. KLEIN SCHMIDT, Acting P. J., and GREER, J., concur. . The County’s policy also provided that “[n]o employee shall be eligible for compensatory time unless authorized by pertinent State and Federal statute.” . Our holding will not prevent the County from limiting compensatory time which can be accrued. The Arizona State Personnel Board has adopted such a rule. Ariz.Admin.R. & R. R2-5-601.K. The County’s personnel policies established no guidelines with respect to the amount of compensatory time which could be accrued. As a result, deputy sheriffs could accumulate unlimited compensatory time, with the implicit approval of the County, but be deprived of compensation for their overtime work because the County restricted payment upon termination to only eighty hours.

OPINION CONTRERAS, Judge. At issue is whether the administrative law judge properly dismissed petitioner’s untimely request for a hearing to contest alleged occupational safety violations, and whether the respondent Board erred in its order affirming that dismissal. We find no error and affirm the dismissal. BACKGROUND Between November 12 and November 18, 1980, respondent Division conducted a general schedule inspection at the business premises of the petitioner in Phoenix. The inspection disclosed multiple safety viola tions. On December 5, 1980, in Case No. 72-210-81, respondent issued: I) Citation 1, Items 1-4, alleging serious violations and imposing a penalty of $1,120, and II) Citation 2, Items 1-6, alleging non-serious violations and imposing no penalty. The two citations, together with an explanatory cover letter, were received by petitioner on December 9, 1980. The letter stated, inter alia: You are hereby notified, or will soon be notified, whether or not penalty(ies) will be proposed as a result of the cited violation^). You have the right to contest any or all parts of either the citation(s) or the proposed penalty(ies) pursuant to A.R.S. Section 23-420. If you do contest, you should submit a letter to the Director at the address shown above within 15 working days after receipt of the certified mail notice regarding proposed pen-altyes). If you fail to contest within the 15 working day period, the citation(s) and the penalty(ies) as proposed, shall be deemed to be a final order of the Commission and not subject to review by any court or agency. Petitioner did not contest either of the above citations within 15 working days. On January 29,1981, respondent conducted a reinspection. On February 23, 1981, respondent issued: III) Notification of Failure to Correct Alleged Violation (Citation 2, Item 3), with an additional penalty of $700, IV) Citation 1, Items 1-2, alleging repeated violations and imposing a penalty of $140, and V) Citation 2, Item 1, alleging a non-serious violation and imposing no penalty. The notification and citations, together with another cover letter, were received by petitioner on February 24, 1981. On March 4, 1981, petitioner filed its notice of contest and requested a hearing on items I, III, IV and V above. The notice was filed within 15 working days after the receipt of the second set of citations, and was timely as to items III, IV and V, which are of no further relevance to the disposition of this appeal. Respondent Division moved to dismiss the notice of contest and request for hearing as it pertained to Citation 1 issued on December 5, 1980 (item I) on the ground that petitioner had failed to request a hearing within 15 working days of receipt of the citation and notification of penalty, as required by A.R.S. § 23-417(B). The administrative law judge dismissed that portion of the request, and the Board affirmed. Petitioner then filed this special action pursuant to A.R.S. § 23-423(1). CONSTITUTIONALITY A.R.S. § 23 — 417 is part of the Arizona Occupational Safety and Health Act of 1972, and provides, in pertinent part: § 23 — 417. Enforcement procedure A. If the director, following an inspection or investigation, issues a citation pursuant to § 23-415 he shall, within a reasonable time after termination of the inspection or investigation, notify the employer by mail of any penalty proposed to be assessed pursuant to § 23-418 and that the employer has fifteen working days within which to notify the director in writing if he wishes to contest the citation or proposed assessment of penalty. If the employer fails to notify the director in writing within fifteen working days of receipt of the notice that he intends to contest the citation or penalty and no notice is filed by any employee or representative of employees pursuant to subsection D of this section within such time, the citation and the assessment, as proposed, shall be a final order of the commission and not subject to review by any court or agency. B. The period permitted for correction of a violation shall not begin to run until the entry of a final order in the case of any review proceedings pursuant to this section initiated by the employer in good faith and not solely for delay or avoid- anee of penalties. If the division has reason to believe an employer has failed to correct a violation for which a citation has been issued within the period permitted, the director shall notify the employer by mail of such failure, of the penalty proposed to be assessed pursuant to § 23-418 and that the employer has fifteen working days within which to notify the director in writing if he wishes to contest the notification or proposed assessment of penalty. If the employer fails to notify the director in writing within fifteen working days of receipt of the notice that he intends to contest the notice or penalty, the notice and assessment, as proposed, shall be deemed a final order of the commission and not subject to review by any court or agency. Petitioner argues that the 15-day finality provision operates to deprive it of property without due process of law. Petitioner raises several related contentions, while candidly admitting “... through inadvertence Highway Products failed to contest the alleged violations within 15 working days.” First, petitioner argues that the penalties cannot be imposed and allowed to become final if an employer is given no opportunity at all for a hearing. The short answer is that an opportunity for a hearing is provided. A.R.S. § 23 — 420 provides: § 23-420. Hearing rights and procedures A. Subject to the provisions of § 23-417 an interested party may request a hearing. B. A request for hearing shall be made in writing, signed by or on behalf of the interested party and including his address, stating that a hearing is desired, and mailed to the commission. The request shall also state with particularity the violation, abatement period or penalty which is being protested. Any violation, abatement period or penalty not protested within the time limit specified on the citation or penalty notice will be deemed admitted. C. The commission shall refer the request for hearing to the administrative law judge division for determination as expeditiously as possible.... Since an opportunity for hearing is explicitly provided by statute, petitioner’s reliance on Bennett v. Arizona State Board of Public Welfare, 95 Ariz. 170, 388 P.2d 166 (1963), and Camerena v. Department of Public Welfare, 9 Ariz.App. 120, 449 P.2d 957 (1969), is misplaced. Second, petitioner apparently argues that the statutory plan is in effect an outright denial of an opportunity for a hearing, since the time period within which to request such a hearing is short and “an employer’s inadvertent failure to file a timely notice operates as an absolute prohibition of any inquiry into the merits of the alleged violation.” We agree that such is the practical effect of the statutory plan but disagree that petitioner is thereby denied due process of law. Petitioner concedes that federal courts have held that the equivalent federal statute does not deny the due process guaranteed by the fifth and fourteenth amendments to the United States Constitu tion. McLean Trucking Co. v. Occupational Safety and Health Review Commission, 503 F.2d 8 (4th Cir. 1974); Brennan v. Winters Battery Mfg. Co., 531 F.2d 317 (6th Cir. 1975), cert. denied sub nom Winters Battery Mfg. Co. v. Usery, 425 U.S. 991, 96 S.Ct. 2202, 48 L.Ed.2d 815 (1976). Petitioner contends, however, that more due process should be accorded under Article II, § 4 of the Arizona Constitution, and that the statutory plan here in question fails to meet the higher state standard. Petitioner offers no authority for such a proposition and we decline to adopt it. We conclude that the statutory plan satisfies the due process requirements of the Arizona Constitution as well as those of the United States Constitution. Under the provisions of the Act, [petitioner] had an opportunity for a due process hearing before an Administrative Law Judge and the Commission, and the right to judicial review before this court. It forfeited that right by failing to give notification to contest within fifteen working days. Although it may be argued with logic that the time period is too short, this is a matter for determination by [the legislature], Yakus v. United States, 321 U.S. 414, 433, 64 S.Ct. 660 [671], 88 L.Ed. 834 (1944). The controlling fact is that [petitioner] had a right to a due process hearing, which it failed to exercise. We find no deprivation of due process. Brennan v. Winters Battery Mfg. Co., supra, 531 F.2d at 324-325. Third, petitioner apparently argues that since the statutory plan makes no provision for relief comparable to that afforded from default judgments in civil cases by Rule 60(c), Arizona Rules of Civil Procedure, the statutory plan denies due process. Again, petitioner offers no authority for the proposition that Rule 60(c) is of constitutional stature or that some equivalent avenue of relief in these proceedings is constitutionally mandated. A holding to the contrary is at least implicit in the federal cases sustaining, against due process challenges, the federal statute which likewise affords no relief on the ground of inadvertence or excusable neglect. We find no deprivation of due process. Finally, petitioner argues that the inadvertent failure to file a written contest cannot constitute an informed and voluntary waiver of petitioner’s constitutional rights. It is not clear to which specific constitutional rights petitioner is referring. If petitioner is referring to the due process right to a hearing, we have already held that petitioner waived that right by failure, inadvertent or intentional, to timely file a written protest. On the other hand, petitioner characterizes these proceedings as “quasi-criminal”, cites the rights guaranteed to an accused in a criminal prosecution, and states that any waiver must be intelligently and voluntarily made. Respondent asserts, and we agree, that the constitutional rights of a criminal defendant have nothing to do with proceedings before administrative agencies which may result in the imposition of civil penalties. Employer claims of rights to jury trial and counsel, and rights against self-incrimination and unreasonable searches and seizures have been uniformly rejected by the federal courts. Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977); Brennan v. Winters Battery Mfg. Co., supra, and cases cited therein. Again, petitioner offers no authority for the proposition that a different result should obtain under Arizona law. Petitioner’s claim to the constitutional rights afforded a criminal defendant is without merit. For the foregoing reasons, the decision of the Review Board is affirmed. EUBANK and FROEB, JJ., concur. . The parties seem to agree that subsection B is applicable, but it appears to us that subsection A is applicable. Petitioner challenges the finality of a citation and assessment, not the notification of failure to correct a violation and assessment. . 29 U.S.C. § 659. Enforcement procedures. (a) If, after an inspection or investigation, the Secretary issues a citation under section 658(a) of this title, he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 666 of this title and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) of this section within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency. . When an Arizona statute is derived from a federal statute, the construction given by federal courts will be persuasive. Arizona Civil Rights Division v. Olson et al., 132 Ariz. 20, 643 P.2d 723 (App. 1982); State v. Moses, 123 Ariz. 296, 599 P.2d 252 (App. 1979). We believe that federal decisions regarding the constitutionality of the federal statute are entitled to the same consideration. . Petitioner phrases its argument thus: In order to achieve substantial justice, the approach taken by Rule 60(c), which allows relief from a judgment by default, where there has been some inadvertence, mistake, or newly discovered evidence, with a meritorious defense, is appropriate. Respondent, on the other hand, suggests that the serious question before this Court is whether Rule 60(c), A.R.C.P. provides Petitioner any basis upon which to urge that the Administrative Law Judge erred when he granted Respondent’s Motion to Dismiss Petitioner’s Request for Hearing. We do not perceive this to be the thrust of petitioner’s argument, and decline to offer an opinion on the literal applicability of Rule 60(c) to proceedings such as these before the Industrial Commission.

CAMERON, Justice. Petitioner, Pamela Marie Hare, brings this special action proceeding to challenge the trial court’s refusal to consider the plea agreement she reached with the Pima County Attorney. We accepted jurisdiction pursuant to Rule 8, Rules of Procedure for Special Actions, 17A A.R.S., and Ariz.Const. art. 6, § 5, because it is a matter of concern in the administration of justice and because there is no plain, speedy, or adequate remedy by appeal. The sole issue which we must decide is whether the Pima County Superior Court exceeded its jurisdiction by adopting a rule that after the first trial date, no plea agreements would be accepted by the court except those which result in pleas to the charges contained in the indictment. The facts necessary for a determination of this action are the following. In January of 1982, the Pima County Superior Court instituted the Automated Calendaring Project, with the twin goals of trial certainty and delay reduction. In order to gauge the success of the experiment, the Pima County Superior Court adopted certain guidelines. Among these is Guideline B, which states: “After the first trial date, no pleas will be accepted except to the charges in the Indictment and any attached allegations. If, however, more than one case is pending against a defendant, a plea will be accepted up to the first trial date on the latest case, provided all cases pending against the defendant are disposed of by the plea.” . In practice, the “first trial date” acts as a deadline for segregating those cases to be resolved by negotiated plea or other non-trial dispositions from those which are to proceed to trial, which are subsequently assigned a “second” (or firm) trial date, usually some 30 days later than the first trial date. Some exceptions to Guideline B are allowed, but only when the judge assigned to the case and the presiding judge agree that an exception is necessary. In the instant case, after petitioner was indicted on one count of unlawful sale of marijuana, A.R.S. § 13-3405(A)(3), the State made two plea offers. The petitioner rejected both on the grounds that because this was a first and isolated offense, the fines connected with the offers were excessive. The “first trial date” was set and the case was assigned to the Honorable John Hawkins to hear. At a prehearing conference with Judge Hawkins prior to the first trial date, defense counsel stated that the excessive amount of the fine compelled petitioner to go to trial, and a “second” trial date was set for 22 June 1982. During the week before the second trial date and after a more complete investigation by the Pima County Attorney’s Office, the State made a third plea offer entailing a greatly reduced fine, which petitioner accepted. The parties then informed Judge Hawkins of the terms of the plea agreement, which the judge found acceptable. ■ Judge Hawkins, however, ruled that before he could vacate the trial and accept the plea, he had to obtain the assent of the presiding judge. After a hearing with the presiding judge, at which time the State explained its reasons for the late plea offer with its reduced fine, the presiding Judge, on 17 June 1982, refused to allow Judge Hawkins to accept the plea agreement. After a denial of a petition for special action by the Court of Appeals, a petition for special action was filed in this court. The Automated Calendaring Project and the supporting guidelines adopted by the Pima County Superior Court were not proposed as part of the local rules of the Pima County Superior Court and were not submitted for approval to this court. A rule of court prescribes a procedural course of conduct that litigants are required to follow, the failure to comply with which may deprive the parties of substantial rights. These “guidelines” prescribe a course of conduct for certain aspects of the criminal practice in Pima County Superior Court. They are, in effect, local rules of criminal procedure which parties to criminal actions in Pima County must follow or lose substantial rights, in this case the right to have a plea bargain considered by the court. As rules of court, the Project guidelines must fall for two reasons. First, they were adopted by the Pima County Superior Court in excess of its jurisdiction, and second, they are in conflict with the existing Arizona Rules of Criminal Procedure, 17 A.R.S., adopted by this court. Following the adoption of the amended 1960 state constitution, this court was given exclusive power to make rules relative to all procedural matters in any court. Ariz. Const., art. 6, § 5, Subsec. 5, added 1960; State v. Blazak, 105 Ariz. 216, 462 P.2d 84 (1969). We have held that this rule-making power may not be supplemented or superseded by a Superior Court. Anderson v. Pickrell, 115 Ariz. 589, 566 P.2d 1335 (1977). We reenforced this constitutional position when we adopted Rule 36, Arizona Rules of Criminal Procedure, 17 A.R.S. (1973): “Any court may make and amend rules governing its practice not inconsistent with these rules. No such rule shall become effective until approved in writing by the Supreme Court.” This rule allows adoption of local rules of practice and procedure, but only with our approval. Since we did not approve the guidelines, they did not become effective. Rule 36, supra. Secondly, the guidelines conflict with existing rules sanctioned by this court. Rule 17.4 states: “Rule 17.4. Plea negotiations and agreements “a. Plea Negotiations. The parties may negotiate concerning, and reach an agreement on, any aspect of the disposition of the case. The court shall not participate in any such negotiation. ****** “d. Acceptance of Plea. After making such determinations, the court shall either accept or reject the tendered negotiated plea. The court shall not be bound by any provision in the plea agreement regarding the sentence or the term and conditions or probation to be imposed, if, after accepting the agreement and reviewing a presentence report, it rejects the provision as inappropriate. “e. Rejection of Plea. If an agreement or any provision thereof is rejected by the court, it shall give the defendant an opportunity to withdraw his plea, advising him that if he permits his plea to stand, the disposition of the case may be less favorable to him than that contemplated by the agreement. ****** “g. Automatic Change of Judge. If a plea is withdrawn after submission of the presentence report, the judge, upon request of the defendant, shall disqualify himself, but no additional disqualification of judges under this rule shall be permitted.” Rule 17.4(a), (d), (e) & (g), Arizona Rules of Criminal Procedure, 17 A.R.S. Rule 17.4, supra, recognizes not only the right to engage in plea negotiation and agreement, but provides for the procedure by which the judge rejects or accepts a plea agreement. Rules 17.4(d) & (e) allow the judge to exercise his discretion when a plea agreement is presented for approval. Under Guideline B, the court is prohibited from exercising that discretion (unless the presiding judge approves). Thus Guideline B conflicts with the rules of this court and exceeds the limit imposed upon the Superior Court by Rule 17.4(a). We note also that the guideline is an improper intrusion upon the prosecutorial function in our criminal justice system. We previously have alluded to the broad discretion which our legal system vests in prosecuting attorneys, particularly in the exercise of plea bargaining negotiations. State v. Morse, 127 Ariz. 25, 617 P.2d 1141 (1980). As United States Supreme Court Justice Powell stated: “The plea-bargaining process, as recognized by this Court, is essential to the functioning of the criminal-justice system. * * * And if the system is to work effectively, prosecutors must be accorded the widest discretion, within constitutional limits, in conducting bargaining.” Bordenkircher v. Hayes, 434 U.S. 357, 372, 98 S.Ct. 663, 672-73, 54 L.Ed.2d 604, 616-17 (1978) (Powell, J., dissenting). The petitioner has also challenged the validity of Guideline B on several constitutional grounds. Since determination of the constitutional questions is not necessary to decide the merits of the action, School Dist. No. 26 (Bouse Elementary) of Yuma Co. v. Strohm, 106 Ariz. 7, 469 P.2d 826 (1970), we will not discuss the constitutional questions at this time. We hold that the Pima County Superior Court’s Automated Calendaring Project Guideline B conflicts with Rule 17.4(a), Arizona Rules of Criminal Procedure, 17 A.R.S., and was adopted in excess of the jurisdiction granted to the Superior Courts to make rules (Rule 36). Nothing we say here should discourage courts, through the adoption of local rules, to carry out experiments which may improve the judicial process. Indeed, these efforts should be encouraged. But local rules must first be approved by this court before they are effective. The matter is remanded to the Superior Court for consideration of the plea agreement entered into between the petitioner and the State. Relief granted. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and FELDMAN, JJ., concur.

HAYS, Justice. In 1962, Ariel M. and Opal C. Bowcut (hereinafter “sellers”) sold a dairy consisting of real property, cattle and equipment to John and Nellie Jaarsma (hereinafter “buyers”). The parties executed escrow instructions with Guarantee Title and Trust Company in March of 1962 for the sale of the property at a price of $110,000. In April the parties signed an agreement for sale which required a down payment of $50,000 with the remaining $60,000 to be paid in monthly installments to sellers through the escrow company. On September 19, 1977, the escrow company, Continental Service Corporation (hereinafter “Continental”) sent buyers a Notice of Strict Performance indicating that one payment of $501.16 and a “past due service fee” were in arrears. Sellers had requested Continental to send the notice because buyers had become repeatedly delinquent in paying their installments which were due on the 18th day of each month. On October 14, 1977, buyers paid $500, representing the September 1977 installment. The October, November and December 1977 installments were paid on December 19, 1977. The January, February and March 1978 installments were paid on April 12, 1978. The April, May and June 1978 installments were paid on June 30, 1978. Thus, despite receipt of the Notice of Strict Performance, buyers continued for nine months to make delinquent installment payments. After the June 30, 1978 payment, buyers made no additional payment from July 1978 through March 1979. In March 1979 sellers requested Continental to institute forfeiture proceedings. Continental refused for two reasons. First, because the sale included personal property, Continental said it was unable to calculate the portion of the sales price allocable to the real and personal property. Because it could not determine what portion of the real-property purchase price had been paid, it could not calculate the applicable grace period under A.R.S. § 33-741. Second, personal property could not be forfeited under the real estate forfeiture procedure. Buyers again made no payment prior to the April 18, 1979 payment due date. Because no payment had been received for ten months, sellers, through their attorney, mailed a Notice of Forfeiture on April 19, 1979. The April 19, 1979 notice stated in pertinent part: “This forfeiture is based upon the buyers [sic] failure to pay those installments of $500.00 becoming due on the 18th day of July, 1978, and a like sum on the 18th day of each month thereafter. “That by reason of the foregoing the buyers have been in default in their payments since July 18, 1978, plus any unpaid taxes due on said realty, if any. “The Notice is given pursuant to the terms and provisions of Arizona Revised Statutes section 33-741 and the above numbered escrow and the aforesaid agreement....” Prior to or on May 10, 1979 Continental received from buyers a check dated April 25, 1979 in the amount of $4,012.00. However, the amount of the check was insufficient to bring the account current, and Continental returned it. At the same time, Continental requested a check for $5,516.60 representing ten past-due payments plus the upcoming May 18, 1979 payment. On May 10,1979 buyers delivered a check for $6,524.35 to Continental. That same day Continental informed sellers’ attorney that the check had arrived. The attorney verbally instructed Continental not to accept the check and confirmed this instruction in a letter dated May 11, 1979. Sellers brought an action to quiet title. Buyers counterclaimed to set aside the forfeiture and joined Continental as a third-party defendant alleging the failure of Continental to protect buyers in the forfeiture proceeding. Continental cross-claimed against buyers. The trial judge dismissed all complaints with prejudice and ordered each party to bear its own costs and attorney fees. He ordered the reinstatement of the sales contract pending payment by the buyers of $6,524.35. Sellers and Continental appealed the decision of the trial court. We have jurisdiction pursuant to A.R.S. § 12-2101 and 17A A.R.S., Rules of Civil Appellate Procedure, rule 19(e). Two issues are presented on appeal. 1. Was sellers’ forfeiture notice sufficient to terminate automatically buyers’ rights under the sales contract? 2. Was Continental entitled to indemnification for its attorney fees? Additional facts pertinent to the resolution of these issues will be discussed as necessary. FORFEITURE Sellers maintain that former A.R.S. § 33-741 permits a seller to effect a forfeiture by so notifying the buyer without giving the buyer additional time to remedy the default through payment. Section 33-741 provides: “A. Forfeiture of the interest of a purchaser in default under a contract for conveyance of real property may be enforced only after expiration of the following periods after the default: “1. When the purchaser has paid less than twenty per cent of the purchase price, thirty days. “2. When the purchaser has paid twenty per cent, or more, but less than thirty per cent of the purchase price, sixty days. “3. When the purchaser has paid thirty per cent, or more, but less than fifty per cent of the purchase price, one hundred and twenty days. “4. When the purchaser has paid fifty per cent, or more, of the purchase price, nine months.” The grace periods defined in the statute run from the date of default and not from the date of the termination notice. Glad Tidings Church of America v. Hinkley, 71 Ariz. 306, 226 P.2d 1016 (1951); Alger v. Brighter Days Mining Corp., 63 Ariz. 135, 160 P.2d 346 (1945). Thus, after the requisite period of time under the statute had passed without a single payment being made, the property was subject to forfeiture. In the instant case, ten months had passed without payment from buyers. Under the statute, sellers were not required to grant additional time in which to redeem the property after the notice of forfeiture. In the instant case, however, our inquiry does not end with the statute. Sellers and buyers executed two separate contracts anticipating or relating to the sale of a dairy farm — Escrow Instructions and an Agreement for Sale. The sellers and buyers executed Escrow Instructions on March 27,1962. The Escrow Instructions provided in pertinent part: “26. If Buyer is in default under such agreement, Seller may . . . enforce a forfeiture thereof in any lawful manner, including but not limited to, forfeiture by notice as hereinafter provided, but only after the expiration after such default of the following periods [which are the same time periods as listed in A.R.S. § 33-741]. “28. If Seller elects to forfeit such agreement by notice, ... Escrow Agent shall, within three days thereafter, send a copy of said declaration to Buyer .... If Buyer fails to comply with the terms of such agreement to the date of such compliance before the expiration of ten days from the date said copy was deposited in the United States mail ... Escrow Agent is authorized to deliver to Seller the documents and money deposited under these instructions or under such agreement.” Thus, under the terms of the Escrow Instructions, buyers had ten days from the date the written declaration of forfeiture was mailed to comply with the terms of the agreement. The Agreement for Sale executed by sellers and buyers on April 17, 1962, stated in pertinent part: “Should Buyer default in making any payment, or in fulfilling any obligation hereunder, Seller may, ... enforce a forfeiture of the interest of Buyer, in any lawful manner, including but not limited to forfeiture by notice as provided in the escrow instructions or supplemental escrow instructions.... ” Sellers maintain that the language of the Agreement for Sale read in conjunction with the Escrow Instructions — “including, but not limited to forfeiture by notice”— means that the seller shall not be limited to the method of forfeiture by notice provided in the escrow instructions as long as the forfeiture is carried out by the seller in any lawful manner. We agree. The sellers had a Notice of Strict Performance sent to the buyers and, after the statutory period, A.R.S. § 33-741, notified the buyers as to the forfeiture. This was in conformity with the Agreement of Sale. INDEMNIFICATION The trial court ordered each party to pay its own costs and attorney fees. Continental appeals that portion of the judgment denying its claim for costs and attorney fees, and argues that it has a contractual right to indemnification from buyers and sellers. Continental points to the provision in the Agreement for Sale signed by buyers and sellers on April 17, .1962 which states in pertinent part: “Seller and Buyer, and each of them, promise to pay promptly, and to indemnify and hold harmless Escrow Agent against all costs, damages, attorney fees, expenses and liabilities which, in good faith, and without fault on its part, it may incur or sustain in connection with this agreement and in connection with any court action arising out of this agreement.” Continental also quotes a portion of paragraph 9 of the Escrow Instructions signed by buyers and sellers on March 27, 1962, which provides: “Seller and Buyer will indemnify and save harmless Escrow Agent against all costs, damages, attorney’s fees, expenses and liabilities, which it may incur or sustain in connection with these instructions or the escrow or any court action arising therefrom and will pay the same upon demand.” The trial court made Findings of Fact and Conclusions of Law. The Conclusions of Law relating to Continental’s duties to the buyers and sellers were: “1. CONTINENTAL SERVICE CORPORATION was within its rights in not conducting a forfeiture on behalf of the BOWCUTS. “2. CONTINENTAL SERVICE CORPORATION had no obligation to JAARS-MAS to conduct a forfeiture by notice on behalf of the BOWCUTS.” Continental contends it was not at fault and is therefore entitled to indemnification for its costs and attorney fees. Unless a trial court’s findings of fact are clearly erroneous, an appellate court is bound by them. Kazal v. Kazal, 98 Ariz. 173, 178, 402 P.2d 1001, 1004 (1965). However, legal conclusions drawn from the facts are subject to review. See Bennett v. Baker’s Estate, 27 Ariz.App. 596, 557 P.2d 195 (1976); Fendler v. Texaco Oil Co., 17 Ariz.App. 565, 499 P.2d 179 (1972). We do not agree that Continental was within its rights in not conducting a forfeiture. In its brief, Continental relies heavily on the previously cited portions of the Escrow Instructions and the Agreement for Sale to support its claim to a contractual right to attorney fees. Continental, however, ignores paragraph 28 of the Escrow Instructions which states: “If Seller elects to forfeit such agreement by notice, Seller shall do so through Escrow Agent by delivering to Escrow Agent a written declaration of forfeiture directed to Buyer together with Escrow Agent’s established fee for services rendered in connection with forfeitures. Escrow Agent shall, within three days thereafter, send a copy of said declaration to Buyer in the manner provided herein for the mailing of Notices, Demands or Declarations. If Buyer fails to comply with the terms of such agreement to the date of such compliance before the expiration of ten days from the date said copy was deposited in the United States mail as herein provided, Escrow Agent is authorized to deliver to Seller the documents and money deposited under these instructions or under such agreement.” (Emphasis added). . According to this provision, Continental, as the escrow agent, has a contractual obligation to forward the declaration of forfeiture to the buyer within three days after receiving instructions from the seller. Continental refused to forward a notice of forfeiture because, according to Continental, it was impossible to determine what portion of the purchase price applied to the real property. Special instructions were attached to the escrow instructions. These special instructions provided for Bills of Sale covering all the personal property located on the premises. “ITEM 43: “A Bill of Sale covering all cattle, 98 head cows, 33 head heifers and 3 bulls, will be given to Buyer at close of escrow. Also, dairy milk base # 3187 will be transferred to Buyer at the close of escrow by Seller executing the proper instruments outside of escrow. “HOWEVER, the Bill of Sale on dairy equipment and the following items will be retained by Escrow Agent and delivered to Buyer when the Agreement for Sale has been paid in full: 2 Ford Tractors harrows 7500 W. Power Plant 2 Scrapers float mower rake plow 3 trailers • ” The Bill of Sale contained in the record indicates the parties agreed on a price to cover the transfer of ownership of the following items of personal property: tractors, scrapers, mower, plow, harrows, float, rake, trailers, 7500 W. power plant. If the personal property could be valued for purposes of Bills of Sale, it could be valued for determining what portion of the sales price applied to personal property. Even were we to accept Continental’s contention that it was impossible to determine precisely the value of the remaining personal property (cattle), the fact remains that at the time sellers requested Continental to forward a Notice of Forfeiture, buyers had already paid the principal to the extent of 69% of the purchase price. Under former A.R.S. § 33-741, the longest grace period available to a purchaser who has paid fifty per cent of the purchase price was nine months. In all likelihood, the value of the remaining personal property (cattle) did not exceed 19% of the total property value — real and personal. In any event, nothing precluded Continental from selecting the longest grace period available and forwarding the notice as required by the Escrow Instructions. “An escrow agent is held to strict compliance with the terms of the escrow agreement, and is liable for all damages resulting from any deviation.” Tucson Title Insurance Co. v. D’Ascoli, 94 Ariz. 230, 383 P.2d 119 (1963); Malta v. Phoenix Title & Trust Co., 76 Ariz. 116, 259 P.2d 554 (1953). Continental’s second reason for refusing to forward the notice of forfeiture was that the forfeiture statute, former A.R.S. § 33-741 applied only to real property. We agree that personal property was not subject to forfeiture under the statute. This statutory provision, however, did not preclude Continental from carrying out its contractual obligation with respect to the real property which was the subject of the escrow instructions. We uphold the decision of the trial court dismissing Continental’s claim for costs and attorney fees. Remanded for proceedings consistent with the foregoing opinion. GORDON, V.C.J., and CAMERON, J., concur. . Continental Service Corporation succeeded to the interest of Guarantee Title and Trust Company. . Section 33-741 was renumbered as 33-742 and amended in 1981. . The remaining principal to be paid was $34,-163.17 or 31%. 69% of the $110,000 purchase price had already been paid. . Section 33-741 as renumbered and amended provides for the forfeiture of personal property. Present § 33-742(B) provides: “B. The interest of a purchaser in any personal property included in a contract is subject to forfeiture or foreclosure in the same manner as the real property, except that forfeiture or foreclosure does not affect or impair the rights of a holder of a security interest whose interest in the personal property is not subordinate to that of the seller.”

OPINION JACOBSON, Presiding Judge. The defendant appeals from her conviction of one count of conspiracy and one count of promoting, offering or granting participation in a pyramid scheme following a trial by jury. The imposition of sentence was suspended, and the defendant was placed on two years probation and was fined $240. The defendant was also required to reimburse Maricopa County in the amount of $240 as and for attorney’s fees. She timely filed a notice of appeal and raises three issues for our consideration: (1) whether A.R.S. § 44-1731 is unconstitutionally vague and overbroad; (2) whether A.R.S. § 44-1731 is unlawful because it is a strict liability statute; (3) whether the trial court improperly admitted into evidence extrajudicial statements of various co-conspirators against the defendant. We affirm. This case is a companion case to State v. Hill, 1 CA-CR 5168, Memorandum Decision issued this date. Defendants Hill and Ly-cett were charged with identical counts arising out of the same transaction and were tried jointly. The evidence at trial revealed that on February 22, 1980, Sandy Gantner, who testified under a grant of immunity, went to a meeting of the Business Men’s Venture Club. Hill and Lycett were both present at that meeting. At the meeting, Jack Musgrave used a pyramid chart to explain how each person would pay $1,000 to put his name on the chart. Of that $1,000, $500 would go to the person directly above his name on the chart who recruited him to sign up, and $500 would go to the person at the top of the pyramid chart. Each person who had paid his $1,000 then would recruit two more people to sign up, and those two people would pay $500 to the person who recruited them and $500 to the person on the top line. Each person who paid his $1,000 would start his own chart, the object being for each person’s chart to be filled by recruiting others who would then in turn recruit others. Ultimately, if 128 people were recruited the initial investor would make $64,000. Mus-grave also explained that of the $64,000, $500 would be paid to the recording secretary for taking care of the books and money. Musgrave told people at the meeting not to mail checks to the recording secretary because “it would be like mail fraud.” The defendants Hill and Lycett were both present when Musgrave made the statement. Hill stated that she came to Arizona from Kansas to get her sister, Lycett, involved. When the formal presentation was complete, the persons attending the meeting broke up into small groups, and at that time Hill explained the charts to people and indicated where their names would go on their charts and how many people they needed in order to hit their “pay line.” Hill told Gantner that she had made a lot of money with the Business Men’s Venture Club in Missouri and that the charts had worked well for her. On February 29,1980, another meeting of the Business Men’s Venture Club was held at the Gantner home. Sandy Gantner testified that both defendant Lycett and Hill were present at that meeting and that Bill Musgrave, the brother of Jack Musgrave, made a presentation similar to the presentation at the meeting on February 22,1980. Musgrave introduced Hill and Lycett saying that they would be the recording secretaries for the Business Men’s Venture Club in Phoenix. Lycett gave people her phone number at that meeting and explained the charts to people after they had broken into small groups. Sandy Gantner testified that she attended another meeting on March 4, 1980, at which both defendants were present. Alice and Bill Musgrave made presentations at that meeting. Alice Musgrave said that the pyramid scheme was “like committing adultery or running three [sic] red lights as long as nobody complained” there was nothing to worry about. At this meeting, both Hill and Lycett explained the charts to other persons attending the meeting. Additionally, Gantner testified that Lycett collected money from participants at the meeting, and that she was assisted by defendant Hill. Sandy Gantner testified that she held another meeting on March 7, 1980, at her home. Alice Musgrave called Gantner prior to that meeting and said she had found out that it was illegal and that she wanted to call the meeting off because the press might be there. The meeting proceeded nevertheless, and both Hill and Lycett were present. The defendants once again helped explain the charts to persons present at the meeting. It was Gantner’s opinion that Hill was promoting the Business Men’s Venture Club at that meeting. Gerald Newhouse, an investigator for the Attorney General’s office, testified that he also attended the meeting on March 7,1980, in an undercover capacity. He tape recorded a major portion of the meeting, and the tape recording was transcribed. Both the tape recording and the transcription were introduced at trial over the defendant’s objections. When Newhouse first arrived at the meeting, he heard Hill tell two women that they were not doing anything illegal and not to worry about the legality of the operation. Jack Musgrave made the presentation at this March 7 meeting, and described how much money could be made by the scheme, his personal financial experience with the plan and the financial rewards he experienced. He stated that Sara Hill could vouch for everything he said. He also said that he was putting his children on a chart and setting up a trust fund for them, and that he intended to “get on a chart” in Las Vegas. He told the group that the important thing was for them to get on a chart as soon as possible. He pointed out that the persons organizing the Business Men’s Venture Club were his two brothers and Hill. Newhouse testified that during Musgrave’s presentation, Hill stated encouraging things: that it was the greatest thing that had happened to her, that she made an investment for her children, and that she would like to invest in Las Vegas. During this presentation, Musgrave, Hill and Lycett all mentioned that the investors were not to put their checks in the mail because it would be like mail fraud. Mus-grave introduced Lycett as the recording secretary, and she told the group to call ahead when they had the cashier’s check and make an appointment with her. After the meeting broke into small groups, New-house, who did not invest any money in the Business Men’s Venture Club, received his own chart from a Mr. Garcia, who in turn got it from Lycett. Lycett told Garcia the names to fill out above Newhouse’s on his chart, and those names were: J.C. Mus-grave, D. Musgrave, S. Hill, B.J. Musgrave, N. Lycett, R. Garcia. Newhouse observed other charts that night with the names S. Hill and N. Lycett on them. Hill questioned Newhouse during the meeting about who his sponsor was and whether or not he was invited to be there. Hill also told New-house that the Business Men’s Venture Club was a “very good thing and avery [sic] good way of making some money” and that he had a potential of making $64,000. Based upon their participation, in Newhouse’s opinion, both Hill and Lycett were promoting the Business Men’s Venture Club to make money for themselves. Shortly after the March 7 meeting, Hill, Lycett and the Musgraves were arrested. All of the defendants, with the exception of Hill and Lycett pled guilty. However, prior to trial, the defendants filed a motion to dismiss on the grounds that the case was based on discriminatory enforcement, that the statute defining pyramid scheme was void for vagueness, and that the statute should be stricken because it was a strict liability statute. Those motions were denied by the trial court. Hill and Lycett also filed a motion in limine to preclude the admission of hearsay statements and acts by co-conspirators. This motion was denied by the trial court during trial. Finally, the state called as an expert witness, Dr. Dennis L. Young, Associate Professor of Mathematics at Arizona State University, who testified that in order for the first 255 people on a pyramid chart to obtain $64,000, 32,512 investors would need to be recruited. For those 32,512 investors to earn their $64,000, more than 4 million investors would be required, and for the 4 million investors to make their $64,000, 532 million investors would have to be recruited, and for those 532 million investors to receive a $64,000 return, 68 billion investors would be necessary. Dr. Young testified that approximately 50 per cent of all investors would never receive their initial $1,000 back, and that slightly less than one per cent would ever make $64,000. CONSTITUTIONALITY OF A.R.S. § 44-1731 For her first argument on appeal, the defendant asserts that A.R.S. § 44-1731 is unconstitutionally vague and overbroad. A.R.S. § 44-1731 reads as follows: A. It is illegal and prohibited for any person or his or its agent or employee to promote, offer or grant participation in a chain or pyramid distributor scheme. B. In this article, a “chain distributor scheme” or a “pryamid distributor scheme” is a sales device whereby a person, upon condition that he make an investment, is granted a license or right to solicit or recruit for profit or economic gain one or more additional persons who are also granted such license or right upon condition of making an investment and may further perpetuate the chain of persons who are granted such license or right upon such condition. C. In this article, “investment” means any acquisition, for a consideration other than personal services, of property, tangible or intangible, and includes without limitation franchises, business opportunities and services. It does not include sales demonstration equipment and materials furnished at cost for use in making sales and not for resale. D. A limitation as to the number of persons who may participate, or the presence of additional conditions affecting eligibility for such license or right to recruit or,solicit or the receipt of profits therefrom, does not change the identity of the scheme as a chain or pyramid distributor scheme. In analyzing a claim of unconstitutionality for vagueness and overbreadth, this court has a duty to construe a statute in such a manner that it will be constitutional. Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963). There is a strong presumption supporting the constitutionality of statutes, and the party challenging the validity of the statute has the burden of establishing the invalidity of the statute beyond a reasonable doubt. Rochlin v. State, 112 Ariz. 171, 540 P.2d 643 (1975). Moreover, “the Legislature possesses broad discretion in defining criminal offenses, so long as the classification of an act is not totally arbitrary or capricious.” State v. Leeman, 119 Ariz. 459, 462, 581 P.2d 693, 696 (1978). In State ex rel. Purcell v. Superior Court, 111 Ariz. 582, 535 P.2d 1299 (1975), the Arizona Supreme Court defined the difference between a claim of unconstitutional vagueness and unconstitutional overbreadth as follows: A statute is too vague when it fails to give fair notice of what it prohibits. It is overbroad when its language, given its normal meaning, is so broad that the sanctions may apply to conduct which the state is not entitled to regulate. 111 Ariz. at 584, 535 P.2d at 1301. The underlying principle for the requirement that statutes be sufficiently definite to give a person notice that his contemplated conduct is forbidden “is that no person should be required, at the risk of his liberty, to speculate as to the meaning of a criminal statute.” State v. Limpus, 128 Ariz. 371, 375, 625 P.2d 960, 964 (App. 1981). The defendant’s argument that the statute is unconstitutionally vague is based on the very nature of the investment in a pyramid scheme, that is, one who invests money in the scheme must encourage other people to join it or else lose his own money, and that therefore, the statute refers to both victims and perpetrators as a single class. She states that all who invest as victims exhibit an attempt to violate subsection A of the statute, and that therefore it is unclear what behavior is intended to be proscribed, the promoting and granting, or the investing. She also asserts that subsection C of the statute is incomprehensible because “acquisition” is not defined and is therefore vague. The language of the statute is clear on its face that a pyramid scheme involves a person making an investment, who is then given the opportunity to find other people to make the same investment, who, in turn, are granted the same opportunity to get other people involved, all in the hope that each person will receive a profit by getting the other people involved. Under subsection A of § 44-1731, in order for a person to be criminally liable under the statute, a person must promote, offer or grant participation in a pyramid scheme. Even if it is true that most people who join the scheme would attempt to exercise their license to get others involved, the statute makes it clear that the state would have to prove beyond a reasonable doubt that a person charged with an offense under the statute did, in fact, encourage others to join, and thus proof of mere investing would not be enough to sustain a conviction under A.R.S. § 44-1731. We therefore hold that A.R.S. § 44-1731 is not void for vagueness in failing to distinguish between promoters and investors. Defendant’s argument that the statute is also vague because it fails to define the word “acquisition” in subsection C of the statute, also fails. Subsection B of the statute defines the “pyramid scheme” as a “sales device whereby a person, upon condition that he make an investment” is granted a license to solicit others. Subsection C defines “investment” as “any acquisition, for a consideration other than personal services” of tangible or intangible property. In context, the term “acquisition” refers to the consideration that the investor parts with for the privilege of being allowed to participate in the scheme. We therefore reject the defendant’s argument that the “acquisition” is the mere hope of the investor making $64,000. We find the statute is not void for vagueness. Defendant next contends that subsection D is overbroad because it declares all pyramid schemes illegal despite any limitations as to the number of persons who may participate or the presence of conditions as to eligibility. She contends that it prescribes pyramid schemes “even among family members, social acquaintances, and without regard to the degree of sophistication of the participants.” In order to sustain a challenge on overbreadth grounds, a defendant must show that he or she is being punished for some protected expressive activity or is a member of the class whose innocent conduct is being persecuted. State ex rel. Purcell v. Superior Court, supra; State v. Schoner, 121 Ariz. 528, 591 P.2d 1305 (App. 1979). The rationale behind the enactment of the comprehensive pyramid scheme statute is understandable when the nature of a pyramid scheme is understood. A pyramid scheme is made illegal by the legislature because, by its very nature, it’s an inherent fraud in that all of the later investors in this scheme must lose their entire investment. A cursory review of the charts of the Business Men’s Venture Club indicates that the number of participants on the chart must be constantly doubled in order for persons to recover their original investment. As Professor Young testified, for the first 255 people on the pyramid chart to obtain the promised return of $64,000, 32,-512 investors would need to be recruited. For these 32,512 investors to get their return, an additional 4 million investors are required; then 532 million investors, and then 64 billion investors. It is clear that the number of individuals who would lose their money under such scheme becomes greater as the scheme is allowed to spread. A.R.S. § 44-1731 serves a legitimate public interest by imposing criminal liability on those who would encourage other persons to join the scheme, because unless the promo-tors are stopped, they will enlarge the number of people who must ultimately lose their money in the scheme. The state is entitled to regulate such inherently fraudulent conduct, even among family members and social acquaintances and without regard to the degree of sophistication of the participants. Clearly the defendant’s conduct fell within the parameters of the conduct prohibited by the statute. Further A.R.S. § 44-1731 does not begin to encroach on any constitutionally protected activities. In this case, the speech and conduct proscribed by § 44-1731 which encourages others to join a pyramid scheme is what is specifically made illegal under the terms of the statute, and does not amount to constitutionally protected speech: [I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691,93 L.Ed. 834, 843-44 (1949). Finally, the defendant contends that there is a denial of equal protection because there is no rational basis for the exception in A.R.S. § 44-1731(C) for sales demonstration equipment and materials furnished at cost for use in making sales. We conclude, as the state points out, that there is a rational difference “between the legitimate business practice of putting up money to demonstrate a product in the hope that it will be purchased, and enticing people to ‘invest’ cash in exchange for the right to entice others into parting with their cash, with the inevitable end result that 50 percent of the participants will lose their cash outlay.” We find no denial of equal protection. STRICT LIABILITY The defendant next asserts that we should find that A.R.S. § 44-1731 is void simply because it is a strict liability statute. The defendant concedes that the state has the power to enact criminal statutes that do not require a criminal intent, and the question here is whether § 44-1731 is the type of strict liability statute which may be enacted by the legislature. In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the United States Supreme Court held that strict liability statutes may be enacted to protect the public health, safety and welfare. A.R.S. § 44-1731 is a regulatory statute passed by the legislature in the exercise of its police powers designed to protect society from the automatic loss attributable to pyramid schemes. It is enacted to protect the public safety and welfare from the loss that must occur if pyramid schemes are initiated. In Morissette, the Supreme Court noted that strict liability statutes are becoming more prevalent in modern society, and that society has caused regulations which heighten the duty of care imposed upon individuals in particular activities, stating: This has confronted the courts with a multitude of. prosecutions, based on statutes or administrative regulations, for what have been aptly called “public welfare offenses.” These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. 342 U.S. at 255-56, 72 S.Ct. at 246, 96 L.Ed. at 296-97. It is clear that the legislature enacted A.R.S. § 44 — 1731 to protect the public from the loss that must occur if pyramid schemes are initiated. Because such schemes are inherently fraudulent, the legislature defined them as malum prohibi-tum, and we hold that the legislature acted appropriately in so doing. The defendant also claims that the comments by R. Gerber to A.R.S. § 13-202(B) demonstrates that the legislature did not intend for the pyramid scheme statute to be a strict liability statute. A.R.S. § 13-202(B) provides: If the statute defining an offense does not expressly prescribe a culpable mental state that is sufficient for commission of the offense, no culpable mental state is required for the commission of such offense, and the offense is one of strict liability unless the proscribed conduct necessarily involves a culpable mental state. If the offense is one of strict liability, proof of a culpable mental state will also suffice to establish criminal responsibility. Gerber’s comments on Subsection B as follows: Subsection (B) apparently establishes some limitation on strict liability legislation so that an appropriate mental state will be judicially read into statutes which “necessarily involve” a culpable mental state. The Code’s only clearly designated strict liability statutes are new A.R.S. § 13-1105 on felony-murder and new A.R.S. § 13-1603 prohibiting littering. R. Gerber, Criminal Law of Arizona 29 (1978). This comment to Section 13-202(B), refers only to those crimes contained in the new criminal code, A.R.S. §§ 13-101 to 4221, not to offenses defined in other parts of the Arizona Revised Statutes. Nothing in these comments to A.R.S. § 13-202(B) could be construed as a statement that the legislature did not intend A.R.S. § 44-1731 to be a strict liability statute. It is the legislative intent which is determinative of whether a criminal statute is malum prohib-itum or malum in se. State v. Burrow, 13 Ariz.App. 130, 474 P.2d 849 (1970). ADMISSION OF CO-CONSPIRATORS’ STATEMENTS For her last argument on appeal, the defendant contends that the trial court erred in admitting the tape recordings and the transcript of the tape recording containing statements of the co-conspirators. Concerning the statements admitted in the trial which constitute extra judicial statements by co-conspirators, 17A A.R.S., Rules of Evidence, Rule 801(d)(2)(E), excludes from hearsay the statements made by a co-conspirator of a party “during the course and in furtherance of the conspiracy.” It is further clear that while there must be sufficient independent proof of the conspiracy to render such statements admissible, the trial court may vary the order of proof and admit the declarations of co-conspirators subject to the subsequent production of the independent proof of the conspiracy. State v. Ferrari, 112 Ariz. 324, 541 P.2d 921 (1975); State v. Speerschneider, 25 Ariz.App. 340, 543 P.2d 461 (1975). 17A A.R.S., Rules of Evidence, Rule 104(a), provides that preliminary questions concerning the admissibility of evidence shall be determined by the court, and Rule 104(b) provides that the court may permit introduction of the evidence “subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” The defendant asserts that the trial court should apply a preponderance of the evidence standard to the proof of the conspiracy before determining that the co-conspirators’ acts and statements are admissible. However, the Arizona Supreme Court has most recently held that the record must reveal “sufficient reliable evidence of a conspiracy” for the declarations to be admissible. State v. Baumann, 125 Ariz. 404, 411, 610 P.2d 38, 45 (1980). We therefore must determine whether the state introduced “sufficient reliable evidence” of the conspiracy and the defendant’s participation therein (independent of the statements of the co-conspirators) to make admissible the tape recordings and transcripts. The evidence independent of the tape recording and the transcript indicates that the defendant Lycett gave people her phone number and explained charts to the members at the meeting of February 29, 1980. At the meeting on March 4, she collected money from people and filled in names on their charts. At the meeting on March 7, 1980, she showed Garcia how to fill out a chart for Newhouse, and that chart had her name on it as a person who would receive money. She introduced herself at the meeting and told all persons there not to put their checks in the mail in order to avoid mail fraud charges, and she also told people to spell names correctly on the cashier’s checks. This evidence of defendant’s actions alone is sufficient to establish the existence of a conspiracy and her participation in it. Moreover, she contends only that the tape recording and the transcript of it were inadmissible. Therefore, the testimony of Sandy Gantner and of Newhouse concerning the explanations of the pyramid chart and the occurrences at the meetings establishes the existence of a conspiracy beyond a reasonable doubt. The defendant also argues that the statements were improperly admitted without a cautionary instruction to the jury that they were “conditionally admitted.” First, there was no request for such an instruction, and therefore the claim of error was waived for purposes of appeal. Moreover, the defendant has cited no Arizona authority for the proposition that the trial court must preliminarily instruct the jury to disregard statements of the co-conspirators until the jury is satisfied that the state has proven the existence of a conspiracy by independent evidence. In United States v. James, 590 F.2d 575 (5th Cir. 1979), the court, interpreting Rule 104 of the Federal Rules of Evidence, concluded that the trial court alone had the duty to determine the admissibility of co-conspirator’s statements. The court there specifically stated, “[t]he jury is to play no role in determining the admissibility of the statements.” 590 F.2d at 580. To that end, the court held that the trial court should whenever practicable require that the conspiracy and the connection of the defendant with the conspiracy be established by independent proof before admitting declarations of a co-conspirator. In cases where it is not reasonably practicable to require such a showing, the Fifth Circuit noted that the trial court may admit the co-conspirator’s statement subject to it being connected by the prosecution. Thus, the question of whether sufficient independent proof of the conspiracy had been presented, and the order of proof were questions for the trial court and not for the jury. We adopt this rule for Arizona. 17A A.R.S., Rules of Evidence, Rule 104(a), provides that preliminary questions concerning the admissibility of evidence shall be determined by the court. We hold that this rule requires the trial court to determine whether sufficient independent proof of the conspiracy and the defendant’s connection therewith has been shown in order to render the co-conspirators’ statements admissible. In the instant case, we have already concluded that the state presented sufficient independent proof of the conspiracy and the defendant’s connection therewith in order to render the tape recording and the transcript thereof admissible. We conclude therefore that the tape recording and the transcript were properly admitted into evidence. For the foregoing reasons, the judgment and sentence are affirmed. GRANT, J., and RICHARD M. DAVIS, J. Pro Tern., concur. . The defendant herein does not claim that she is being innocently ensnared by an overbroad statute. In a similar case, Division 2 of this court recently held that a defendant has no standing to challenge a statute on grounds of overbreadth, unless the legislation regulates the exercise of First Amendment rights. State v. Carruth, Hawkins and Brown, 132 Ariz. 368, 645 P.2d 1282 (1982). Defendant’s First Amendment argument is dealt with later in this opinion. . For a general discussion of pyramid plans, see Annot. 54 A.L.R.3d 217 (1973).

GORDON, Vice Chief Justice: We have consolidated these three cases because they involve similar issues and the same parties. No. 15991 is an appeal from a superior court special action order granting Kenneth R. McNutt [hereinafter petitioner] a dismissal of a driving while intoxicated [DWI] charge under A.R.S. § 28-692. No. 15957-SA is a special action taken from the superior court’s affirmance of petition er’s reVoked probation based on the same DWI charge. Petitioner also appealed that affirmance in No. 5555. We have jurisdiction of Nos. 15991 and 5555 pursuant to Ariz.Const.Art. 6, § 5(3) and Ariz.R.Civ.App.P. 19(e); jurisdiction in No. 15957-SA is based on Ariz.Const.Art. 6, § 5(1). We affirm the superior court’s decision in No. 15991; we grant petitioner’s requested relief in No. 15957-SA; and we dismiss No. 5555. Each case is considered separately below. No. 15991 Petitioner was arrested for suspicion of DWI on September 2, 1980. After being taken to the police station and apprised of his Miranda rights, petitioner requested that he be allowed to telephone his attorney. The police, without apparent reason, refused the request. Petitioner also informed the police of his desire to take an independent blood test after the police gave him a chemical breath test, and no action was taken on this request. At petitioner’s urging, the arresting officer subsequently did call petitioner’s former wife. The police released petitioner to his former wife about two to two and one-half hours after the initial stop. Petitioner immediately called his attorney who advised him that too much time had passed since the stop to obtain an independent blood test of any evidentiary value. Petitioner’s case was filed in the City Court of Phoenix. He filed a motion to dismiss in that court claiming a violation of his rights to counsel and a fair trial under Ariz.R.Crim.P. 6.1 and the Sixth Amendment to the United States Constitution. His argument was that by denying him the opportunity to telephone his attorney when he made the request, the State denied him the right to gather exculpatory evidence (by means of an independent blood test) while the evidence still existed. Presumably, the attorney could have arranged for the independent blood test petitioner requested at a time sufficiently close to when the state conducted its blood alcohol test. The city court denied the motion to dismiss. Petitioner then filed a special action in superior court challenging the city court’s denial of his motion to dismiss. That court found a violation of petitioner’s right to counsel and remanded the case to the city court with an order to dismiss it. The state brought this appeal from the superior court’s order. We agree with the superior court that the case should be dismissed. A.R.S. § 28-692(F) and constitutional standards of due process give a DWI suspect the right to obtain an independent blood test. See Smith v. Cada, 114 Ariz. 510, 562 P.2d 390 (App.1977). In the instant case, petitioner indicated a desire to take such a test but could not personally arrange for it near in time to when the state took its test because he was in custody. The state denied him the chance to have his attorney arrange for the test. This action by the state clearly violated petitioner’s “right to consult in private with an attorney * * * as soon as feasible after a defendant is taken into custody” guaranteed by Ariz.R.Crim.P. 6.1(a). We agree with the Court of Appeals of New York, which said, “[L]aw enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand.” People v. Gursey, 22 N.Y.2d 224, 227, 239 N.E.2d 351, 352, 292 N.Y.S.2d 416, 418 (1968); see State ex rel. Webb v. City Court, 25 Ariz.App. 214, 542 P.2d 407 (1975). In the instant case, the state offered no justification for denying petitioner’s request to call his attorney, the attorney was available by telephone, and petitioner’s call would not have unduly de layed the DWI investigation and arrest. The state’s action resulted in petitioner not being able to attempt to gather evidence exculpating him on the issue of intoxication. Dismissal of the case with prejudice is the appropriate remedy because the state’s action foreclosed a fair trial by preventing petitioner from collecting exculpatory evidence no longer available. See Smith v. Cada, 114 Ariz. 510, 562 P.2d 390 (App. 1977). We affirm the superior court’s order remanding the case to city court with instructions to dismiss the complaint against petitioner. No. 15957-SA Petitioner was previously convicted of DWI on April 23, 1980. He was given a short jail sentence and two years supervised probation. A condition of that probation was that petitioner would “[a]t all times be a law abiding citizen.” The state filed a petition to revoke the probation grounded on the subsequent September 2, 1980 DWI incident. A hearing on the petition to revoke probation was held in the City Court of Phoenix. Petitioner filed a motion to dismiss on the basis that the ground for revoking probation was tainted by the state’s denial of his right to counsel at the time of the September 2, 1980 arrest. The motion was denied, probation was revoked, and petitioner’s sentence was modified to 100 days in jail. Petitioner appealed to the Superior Court of Maricopa County. That court affirmed the probation revocation and sentence modification. Petitioner brought this special action challenging the superior court’s failure to remand the case to city court with instructions to dismiss the probation revocation petition. We find that petitioner’s probation cannot be revoked based on the September 2, 1980 incident. As discussed in connection with No. 15991, the state’s denial of petitioner’s right to consult with his attorney precluded any possibility of a fair trial on the eharge because petitioner was thereby denied the right to gather exculpatory evidence. Although the standards of proof in the proceedings differ, the central issue to the DWI charge and the probation revocation is whether petitioner was driving while intoxicated on September 2, 1980. Because the state’s actions prevented petitioner from gathering exculpatory evidence relevant to this issue, it also denied him the right to a fair hearing on the petition to revoke probation. Due process must be afforded at probation revocation hearings, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and the right to a fair probation revocation hearing is a fundamental ingredient of due process. Therefore, we remand the petition to revoke probation in this case to the superior court with instructions to remand the case to the city court with an order to dismiss the petition. No. 5555 In addition to the No. 15957-SA special action in the probation revocation case, petitioner also appealed the superior court’s denial of his motion to dismiss and affirmance of the city court’s actions. Although petitioner raises other issues in that appeal, he would be entitled to no greater relief than that rendered in No. 15957-SA. The state argues that there is no jurisdiction to consider the appeal because of A.R.S. § 22-375. We need not consider whether we lack jurisdiction or if the case is moot because the end result must be dismissal of the appeal. No. 15991 is affirmed. No. 15957 — SA is remanded to the superior court with instructions to remand the petition to revoke probation to the city court with an order to dismiss the petition. No. 5555 is dismissed. HOLOHAN, C. J., and HAYS, CAMERON and FELDMAN, JJ., concur. . Alcohol in the blood decomposes by enzyme action as the blood passes through the liver. An independent blood test would be exculpatory only if the state’s test was in error, but when an independent reading is taken substantially later than the state’s reading, one cannot determine whether the state’s higher reading was in error or was due to decomposition of the alcohol. . We note that in a DWI investigation, it is crucial for both the state and the defendant to gather evidence relevant to intoxication close in time to when the defendant allegedly committed the crime. Otherwise, any alcohol that may have been in the blood will have decomposed before the blood can be tested. Therefore, a defendant has no right to delay by demanding to consult with counsel before being required to choose between a blood alcohol test or possible driver’s license suspension as provided for in A.R.S. § 28-691. Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971). If after taking or refusing to take the test a defendant demands to contact a lawyer, he should promptly be given that opportunity. If the lawyer cannot be reached by telephone or cannot promptly appear where the defendant is, the state may continue with its detention procedures. See Gursey, supra. If the defendant is indigent and cannot afford an attorney, the state need not wait until one is appointed before continuing its detention procedures. The state should, however, allow the indigent defendant a reasonable opportunity to contact a relative or friend who could also arrange for an independent blood test. . Thus, the instant case is fundamentally different from State v. Alfaro, 127 Ariz. 578, 623 P.2d 8 (1980). At issue in Alfaro was whether the exclusionary rule should be applied to probation revocation hearings. Alfaro pointed out that the primary purpose of the exclusionary rule is deterrence of fourth amendment violations. The fourth amendment exclusionary rule is not intended to insure (and in fact hinders) the validity of the fact-finding process. Balancing the harm to the rehabilitative goals of probation revocation hearings against the minimal benefit to be gained by applying the exclusionary rule to such hearings, we declined to require the use of the exclusionary rule in these hearings. But in the instant case, at stake is the probationer’s right to present his or her version of the events at issue — a due process fourteenth amendment right. This right goes to the heart of insuring the validity of the fact-finding process.

CAMERON, Justice. This is a special action brought by the State of Arizona from a decision by the City of Phoenix Municipal Court which ordered a police officer to appear, testify and fully cooperate in an oral deposition. We have jurisdiction pursuant to Rule 8, Arizona Rules of Procedure for Special Actions, 17A A.R.S. The issue presented for review is whether the city court may require a witness to be deposed and to have the testimony memorialized by tape recorder or by other accepted methods for preserving testimony. The events that preceded this petition for special action are as follows. On 23 October 1981, defendant-real party in interest, Marilyn Schuette, was charged with driving while under the influence of alcohol and passing a vehicle within 100 feet of an intersection. In November of 1981, Schuette filed a motion to take the deposition of Phoenix Police Officer Andrew Harrison, a material witness who had agreed to participate in an interview about the events in question but refused to allow the interview to be tape-recorded. Officer Harrison’s stated reason for refusing to have the interview recorded was his desire not to be impeached at trial as had occurred on other occasions. In denying the motion, Judge Kaplan stated that he felt bound by precedent from Division Two of the Court of Appeals, State v. City Court of Tucson, 129 Ariz. 132, 629 P.2d 99 (App.1981), review denied 21 July 1981; State v. DeRose, 128 Ariz. 299, 625 P.2d 362 (App.1981); State v. Deddens, 26 Ariz.App. 241, 547 P.2d 512 (1976), review denied 11 May 1976. Schuette then filed a petition for special action in the Superior Court, and Judge Hertzberg accepted jurisdiction and issued an order directing Judge Kaplan to “exercise his discretion in the matter of the use of a tape recording device by Schuette’s counsel during the interview of Officer Harrison.” On 12 April 1982, Judge Kaplan entered an order finding that Officer Harrison’s refusal to allow the interview to be recorded was being non-cooperative within the meaning of Rule 15.3(a)(2), Arizona Rules of Criminal Procedure, 17 A.R.S., and ordered him to submit to a deposition wherein his sworn testimony would be preserved by a tape-recording device. The State’s petition for special action to this court followed. Rule 15.3, Arizona Rules of Criminal Procedure, 17 A.R.S., reads as follows: “Rule 15.3 Depositions “a. Availability. Upon motion of any party or a witness, the court may in its discretion order the examination of any person except the defendant upon oral deposition under the following circumstances: (1) A party shows that the person’s testimony is material to the case and that there is a substantial likelihood that he will not be available at the time of trial; (2) A party shows that the person’s testimony is material to the case or necessary adequately to prepare a defense or investigate the offense, that he was not a witness at the preliminary hearing, and that he will not cooperate in granting a personal interview; or, (3) A witness shows that he is incarcerated for failure to give satisfactory security that he will appear to testify at trial or hearing.” (Emphasis added.) This court has held that a party is entitled to discovery in the city court “as a matter of fairness and not under the specific provisions of Rule 15 or 16, Rules of Criminal Procedure. * * * Where the defendant is not entitled to a trial de novo on appeal, the spirit of the Rules of Criminal Procedure must be applied to ensure fairness to the parties. * * * ” State ex rel Purcell v. City Ct. of City of Phoenix, 112 Ariz. 517, 518, 543 P.2d 1146, 1147 (1975). In the instant case, because the party could not obtain a trial de novo in the Superior Court if she did not prevail in the city court, as a matter of fairness she is entitled to take the officer’s deposition. Purcell, supra. Even though Rule 15 does not require the deposition, Purcell, supra, the rules do provide the standard that we will apply in determining whether or not the officer was cooperating. When our Court of Appeals first had occasion to consider whether a prosecution witness who refused to allow his pretrial testimony to be tape-recorded was non-cooperative within the meaning of Rule 15.-3(a)(2), supra, it held that the rule did not require a witness to have his testimony memorialized against the witness’s wishes. State v. DeRose, supra. The Court of Appeals stated: “Defense counsel makes much of the fact that the witness refused to have the interview tape-recorded and that the prosecutor would not permit the defendant to be present during the interview. We have held that a witness is being uncooperative within the meaning of Rule 15.3 where the witness ‘attaches such conditions to an interview that it makes the situation untenable for defense counsel to discover needed material.’ (citation omitted) We do not consider the witness’s objection to a tape recorder at the interview to be an improper stricture as it does not inhibit defense counsel’s ability to discover needed material. The rule does not provide that the interview may be tape-recorded.” State v. DeRose, supra, 128 Ariz. at 300, 625 P.2d at 363. Three months later, the same Court of Appeals reaffirmed its position in State v. City of Tucson, supra. By denying review in State v. City Court of Tucson, supra, and State v. Deddens, supra, this court has added weight to the position of the Court of Appeals. We now believe that the prior decisions are incorrect. The purpose of allowing pretrial discovery in criminal cases is based on the principle that both the prosecution and the accused should be in possession of all relevant and reasonably accessible information prior to trial. The Rules of Criminal Procedure facilitate the exchange of information between the State and an accused in order to avoid surprise, delay, and to sharpen and narrow the issues for trial. In most cases, a defendant’s right to accurate information will be adequately protected by access to grand jury transcripts and examination of witnesses at preliminary hearings. Indeed, a defendant’s ability to compel depositions of a specific witness is specifically precluded where that witness has testified at a preliminary hearing. Rule 15.3(a)(2), supra. In this case, no preliminary hearing was held. There was no recorded testimony of the officer available, and the defendant had to rely upon an interview in order to prepare for trial. For this purpose, a tape recording of the officer’s remarks would be helpful, if not necessary, in reviewing the officer’s statements prior to trial. The State points out that Officer Harrison was willing to submit to an interview and answer any questions that defense counsel would ask. By agreeing to answer questions, the State contends, Officer Harrison would provide the defendant with all the relevant information and was not being non-cooperative by refusing to allow his remarks to be taped. We do not agree. When a material witness refuses to allow his interview to be tape-recorded or otherwise preserved, the attorney is placed on the horns of a dilemma. The attorney must rely upon the witness’s testimony at trial or take the stand to dispute a witness’s testimony when it differs from what was given at the time of the interview. This should not be required of counsel, especially when, at no inconvenience to the witness, the testimony can be accurately preserved both for the protection of the witness as well as for the benefit of the trier of fact in determining the truth. We believe that under the circumstances of this case, the Superior Court did not abuse its discretion in finding that Officer Harrison was being non-cooperative. The experience of other states that allow trial courts to grant discovery depositions in criminal cases belies fears that this procedure will be abused. See e.g., Tex.Code Crim.Pro.Ann. art. 39.02 (Vernon 1979); Vt. R.Crim.Pro. 15 (1974). See also, Langrock, Vermont’s Experiment in Criminal Discovery, 53 A.B.A.J. 732 (1967); Comment, Depositions as a Means of Criminal Discovery, 7 U. San Fran.L.Rev. 245 (1973). In holding as we do, we do not limit the officer to having his testimony memorialized by a tape recording. Other options such as a stenographic record by a court reporter, video tape, or qualified verbatim shorthand notes are acceptable so long as a properly certified transcript can be prepared for trial of the case. The decision of the Superior Court ordering the Municipal Court of the City of Phoenix to exercise its discretion in ordering the deposition of Officer Harrison is affirmed. The prior Court of Appeals’ opinions holding to the contrary are, by this opinion, overruled. Relief denied. HOLOHAN, C. J., GORDON, V. C. J., and HAYS and FELDMAN, JJ., concur.

OPINION HATHAWAY, Judge. Appellant’s appeal, which has been consolidated. with his Rule 32 petition, challenges the denial of credit for time spent in an out-of-state jail awaiting extradition to Arizona. There is no error. On November 4, 1980, appellant pled guilty to attempted third-degree burglary. On November 13, appellant was reported missing and a bench warrant issued. On November 18, he was arrested in Ohio for an alleged offense there and the Arizona authorities placed a hold on him. Three days later, he was extradited to Georgia for charges there, where a bond was established. Arizona again placed a hold on him, preventing his release even assuming he could have made the Georgia bond. On April 15, the Georgia charges were dismissed and appellant was transported from Georgia, arriving in Arizona on April 22, 1981. Appellant argues that a period of 155 days, from November 18, 1980, to April 22, 1981, in which appellant remained in out-of-state custody pursuant to an Arizona hold, should be credited against his sentence. On June 2,1981, he was sentenced to an aggravated term of 1.875 years, with credit for 52 days of presentence incarceration prior to his change of plea. Appellant requested that the trial court grant him credit for his presentence incarceration in Ohio and Georgia, but the court refused, due to the fact that he had absconded. The trial court did give appellant credit for seven days between April 15 and April 22, 1981, but refused to give any credit for the time the Ohio and Georgia charges were in effect. The Arizona hold was irrelevant to the time in Georgia and Ohio custody. The Arizona hold never came into play because appellant was not able to satisfy the conditions for any other release that had been placed on him. There is no showing, therefore, that his custody was time spent “pursuant to” his Arizona offense under A.R.S. § 13 — 709(B), and there is no reason to credit him with the time. State v. Mahler, 128 Ariz. 429, 626 P.2d 593 (1981), is inapposite since no local charges were involved in that case and all time in custody out of state was because of the Arizona fugitive warrant. We have reviewed the entire record before us for fundamental error and have found none. Appellant’s petition for post-conviction relief is denied. However, as to the sentence imposed, we note that the sentence should have been for commitment to the custody of the Arizona Department of Corrections for imprisonment. As modified, appellant’s sentence is affirmed. HOWARD, C.J., and BIRDSALL, J., concur.

OPINION BIRDSALL, Judge. The appellant, Kenneth A. Vinall, D.D.S., P.C., an Arizona professional corporation, was the plaintiff in the trial court. The issue raised in its complaint became moot, but the appellees/defendants, Jon A. Hoffman and wife, prevailed on a counterclaim. The trial court granted their motion for summary judgment, and ordered the appellant to purchase appellee’s stock in the corporation. We will refer to the appellees in the singular, as appellee, since Mrs. Hoffman was a party only because of the community nature of appellee’s claim. The appellant contends the trial court erred in concluding that it was required to purchase the appellee’s stock when he resigned as an employee of the corporation. We agree with this contention and reverse. Cross motions for summary judgment were presented to the trial court on stipulated facts. Those facts material to this appeal may be summarized as follows: 1. The appellant has been an Arizona professional corporation since June 1975, with its only purpose being the practice of dentistry. 2. Appellee was employed as a dentist for the appellant since 1975. 3. Appellee was also an officer and director of the corporation. 4. Appellee owns stock in the corporation. 5. On or about December 5, 1978, all the stockholders, employees, officers and di rectors entered into an agreement entitled “Stock Restrictions and Purchase Agreement.” 6. On October 25, 1979, appellee resigned as an employee of the appellant and offered his stock to the corporation pursuant to the stock restrictions and purchase agreement. 7. The corporation refused to purchase appellee’s shares of stock. 8. Appellee was at the time of his resignation, and still is, licensed to practice dentistry in the State of Arizona. The articles of incorporation, the “Stock Restriction and Purchase Agreement” and appellee’s letter terminating his employment and offering his stock were incorporated by reference. The trial court concluded that the corporation was legally obligated to purchase appellee’s shares when he resigned from his employ. That ruling was based upon a provision of the Arizona Professional Corporation Act (the Act), A.R.S. § 10-901 et seq. The particular provision involved is A.R.S. § 10-909(D), which provides: “Within ninety days following the death, insanity, bankruptcy, retirement, resignation, expulsion or other legal disqualification of a shareholder, all of the shares of such shareholder shall be transferred to or acquired by persons qualified to own such shares or by the corporation. Until such transfer is effected such shares shall not be entitled to be voted. Either in its articles of incorporation or its bylaws, the corporation shall fix the price or method of computing the same together with the schedule of payment therefor, for acquiring such shares, in the event the shares are not otherwise acquired within said ninety days by persons qualified to own the same.” (emphasis added) The trial court construed the word “resignation,” as used in the statute, to refer to the resignation of a shareholder from employment by the corporation. We disagree with that interpretation. In construing this provision, we look to the statute itself, to the surrounding provisions, and to the history of the Act. The word “resignation” appears in a list of specific contingencies ending with the general words “or other legal disqualification.” This indicates that the “resignation” mentioned in the statute must amount to a “legal disqualification.” Unfortunately, the latter term is also without express definition in the Act. The immediately preceding subsection, A.R.S. § 10-909(C), however, refers to shareholders and others who “[become] legally disqualified to render the category of professional service for which the professional corporation was organized.” That phrase, we believe, describes “legal disqualification” for purposes of subsection D. We do not believe that such similar terms, appearing in such proximity in the same statute, could have been intended by the legislature to have different meanings. This leads us to conclude that the kind of “resignation” mentioned in subsection D is one that renders the shareholder “legally disqualified to render the category of professional service ... ” — in other words, a resignation from the profession, not a resignation from employment by the corporation. In support of the trial court’s construction, appellee relies upon the well established rule that words in a statute should be given their ordinary, common meanings unless they are obviously used in a technical sense, or unless such construction would result in an absurdity. Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18 (1970). Although agreeing that the rule provides guidance in this case, we believe it requires a different construction than was adopted by the trial court. In ordinary usage, “resignation” refers to a voluntary, unilateral surrender of an office or position. The term presupposes that the office or position is one capable of such a surrender. The statute under discussion, however, is concerned with corporate shareholders. Unless the Act has created something less similar to a corporation than we believe was intended, the position of a corporate shareholder is not one that ordinarily is voluntarily and unilaterally surrendered. It becomes evident, therefore, that the word “resignation,” applied as it is to a corporate shareholder, simply has no ordinary, common meaning. Furthermore, the construction urged by appellee would lead to an absurd result, in light of other provisions of the Act. The Act provides for the organization of corporations for the purpose of rendering certain professional services. Its only prescribed qualification for the ownership of shares in those corporations is that the shareholders be duly licensed to render the category of professional service for which the corporation was organized. A.R.S. §§ 10-902(4), 10-907(C). Nothing in the Act requires a shareholder to be an employee of the corporation. Since non-employees may own stock in a professional corporation, why would the legislature require the corporation to purchase an employee’s shares simply because the employee resigns from employment? In further defense of the trial court’s construction, appellee points to the unfortunate result that will flow from an interpretation of the statute that does not require the corporation to purchase his shares. He will be left with shares that represent a sizeable investment, but for which there is no ready market. We realize that the lack of a market for shares in professional corporations creates a substantial risk for departing shareholders of such corporations. We also recognize a concomitant risk to the remaining shareholders: that the departing shareholder may sell his shares to an outsider who is “unacceptable” to the remaining shareholders and who might become a disruptive influence in the conduct of corporate affairs. Both of these risks are inherent hazards of operating in the corporate form. Protection against these hazards has not been imposed by the legislature. Shareholders may, however, protect themselves. The second of the hazards, that of share transfers to “unacceptable” outsiders, was anticipated by the legislature when it adopted A.R.S. § 10-908(6), which provides that a professional corporation shall: “Permit shares to be transferable to persons duly licensed to perform the same category of professional service as that for which the professional corporation was organized, or to the professional corporation itself, provided that this shall not be construed to prohibit such further lawful restrictions thereon upon which the shareholders may agree.” (emphasis added) This provision of the statute allows shareholder agreements, such as the agreement tangentially involved in this case, that protect against the hazard of sales to outsiders. Similar agreements, although not so expressly authorized by statute, may be used to protect against the hazard of being saddled with unmarketable shares. See e.g., Williams and Mathews, “Effective Estate Planning for Shareholders in Professional Corporations,” 36 Journal of Taxation 269 (May, 1972); Jacobs, “Stock Ownership Control Agreements for Professional Corporations,” 45 Fla. Bar Journal 336 (June, 1971). Unfortunately for appellee, and perhaps for those remaining shareholders who may someday find themselves in similar straits, the agreement made in this case does not fully protect departing shareholders from that risk. The agreement gives the corporation or the remaining shareholders an option to purchase the shares. A binding “buy and sell” agreement would have required the purchase. A.R.S. § 10-909(D) cannot be interpreted to provide that protection, since that was not the intention of the legislature. The wording of the statute provides a clue to the legislature’s real intent. The list of specific contingencies, “death, insanity, bankruptcy, retirement, resignation, expulsion,” appears to be unique to the Arizona statute on this subject. This list was taken almost verbatim from one of the so-called “Kintner Regulations,” Treas.Reg. § 301.-7701-1 et seq., 1960-2 Cum.Bull. 409, which were in effect when the Act was passed. Those regulations listed the characteristics of an organization that would be recognized as a “corporation” for federal income tax purposes. One of these characteristics was “continuity of life.” Elaborating upon that requirement, Treas.Reg. § 301.7701-2(b)(l) provided: “An organization has continuity of life if the death, insanity, bankruptcy, retirement, resignation, or expulsion of any member will not cause a dissolution of the organization.” (emphasis added) This leads us to conclude that the true purpose of § 909(D) was to assure that professional corporations would have “continuity of life,” by establishing a mandatory procedure to be followed after the occurrence of an event that might lead to the dissolution of the corporation. That purpose would not be served by requiring the corporation to purchase shares owned by a resigning employee, since the employee’s resignation poses no threat to the continued life of the corporation. A shareholder’s resignation from the profession, on the other hand, would pose such a threat. The Act explicitly requires all shareholders to be “duly licensed,” and a lengthy continuation of corporate business after such a resignation would therefore subject the corporation to involuntary dissolution in an action brought by the attorney general under A.R.S. § 10-094. We hold, then, that the list of contingencies appearing in A.R.S. § 10-909(D) is intended to be a list of events that leave shares in the hands of persons not legally qualified to render the category of professional service for which the corporation was organized. The word “resignation” therefore refers to resignation from the profession, not to resignation from employment by the corporation. Since appellee remains duly licensed to practice dentistry in Arizona, appellant was not required to purchase appellee’s stock. The judgment is reversed and remanded with directions to enter judgment in favor of appellant. HOWARD, C. J., and HATHAWAY, J., concur. . Similar statutes in most other states require the corporation to purchase only the shares of shareholders who are “deceased or disqualified.” See generally CCH Professional Corporations Handbook, ¶ 5001 et seq.

OPINION R. PORTER MURRY, Judge (Retired). Paul Anderson and Dusty Ellington appealed from the granting of a summary judgment in favor of State Farm Mutual Insurance Company. This appeal challenges the right of State Farm to limit its liability under its uninsured motor vehicle coverage to exclude damages caused by an unidentified vehicle which has caused another vehicle to be propelled into the insured’s vehicle. The facts in this case are undisputed. On February 15, 1978, appellants Paul Anderson and Dusty Ellington were occupying a motor vehicle which was stopped in traffic at the intersection of Dobson Road and State Route 360 when their vehicle was rearended by another vehicle owned by the Purolator Courier Corporation and driven by its employee. The Purolator employee claimed that he was struck from behind by a third vehicle which left the scene before anyone could identify it. There was affirmative evidence found by the investigating police officer indicating that the rear of the Purolator vehicle had been contacted by a third vehicle. At no time was there ever any contact between the unidentified third vehicle and the vehicle occupied by appellants. Appellants filed suit against appellee State Farm for recovery of uninsured motorist policy benefits provided in an auto mobile liability policy carried by Dusty Ellington. Under the uninsured motor vehicle coverage of its policy, State Farm agrees to pay the insured: all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle .... (Emphasis in original). The insurance policy further defines uninsured motor vehicle as including “a hit- and-run motor vehicle.” A hit-and-run motor vehicle is then defined in the policy as follows: Hit-and-Run Motor Vehicle — means a land motor vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such hit-and-run motor vehicle; (Emphasis in original). In order to fall within the definition of hit-and-run motor vehicle, this provision requires that there be “physical contact” of the unidentified vehicle with the insured or with the vehicle which the insured was occupying at the time of the accident. The parties filed cross motions for summary judgment. Appellants contended that the collision initiated by physical contact between the “hit-and-run" vehicle and the Purolator van, which in turn collided with appellants’ vehicle, substantially satisfies the purpose and intent of the previously quoted uninsured motorist provisions of the policy. State Farm’s motion for summary judgment asserted that since the uncontested facts established that there was no physical contact between the unidentified vehicle and the insured’s vehicle, the unidentified vehicle did not fall within the definition of “hit-and-run motor vehicle” of the policy and was, therefore, not within the definition of “uninsured motor vehicle.” On January 3, 1980, the trial court entered an order granting State Farm’s motion for summary judgment and denying appellants’ motion for summary judgment. Appellants filed a motion for new trial which was denied and this appeal was taken. We affirm the trial court. Appellants concede that Balestrieri v. Hartford Accident & Indemnity Insurance Co., 112 Ariz. 160, 540 P.2d 126 (1975) specifically held that a “physical contact” requirement in a “hit-and-run” provision of an automobile liability insurance policy was not in derogation of Arizona’s uninsured motorist statute nor was it void as against public policy. However, appellants attempt to distinguish Balestrieri on the basis that, unlike the instant case, Balestrieri did not involve contact between an intervening vehicle and the insured’s vehicle. Appellants argue that the intent of A.R.S. § 20-259.01 is to protect innocent persons and that the “physical contact” requirement is primarily designed as a matter of proof to prevent fraudulent claims. Appellants then point out that evidence of the unidentified vehicle’s physical contact with the Purolator van supports the bona fide nature of their claim. Thus, they conclude that the policy reasons in Balestrieri for denying recovery for accidents allegedly caused by “phantom vehicles” are not present in the instant case. However, our supreme court’s opinion in Balestrieri is not limited to upholding the physical contact requirement in an uninsured motorist policy because it is designed to prevent fraudulent claims. Rather, the court stated: Of the states in this legislative category [states with uninsured motorists statutes similar to that of Arizona] which have considered the issue before us, two divergent lines of authority appear to have developed. One view is that the physical contact restriction is in conflict with the uninsured motorist statute and is viola-tive of the state’s public policy. [Citations omitted]. ****** Other courts have held under identical statutes, however, that the physical contact rule is consistent with both the uninsured motorist statute and public policy. [Citations omitted]. Central to their reasoning is the determination that the statute was intended to apply only when the negligent party actually is without insurance coverage. Since no presumption of lack of insurance may arise in instances where the negligent party remains unidentified, the statutory definition of uninsured vehicle cannot encompass “phantom” vehicles. Although our courts have said that the Arizona uninsured motorist statute is to be liberally construed in accordance with its remedial purposes, [citations omitted] it also has been noted that “uninsured” within this section means literally “not insured.” [Citations omitted]. ****** The fact that the phrase “unknown motorist” was deleted from the statute in its enacted form indicates a conscious legislative design to exclude unidentified motorists from the act’s coverage. Furthermore, our legislature has not recognized the need to amend the term “uninsured motor vehicles” notwithstanding the judicial controversy surrounding its meaning. ****** Because the hit-and-run provision is neither required nor prohibited by the Arizona uninsured motorist statute, the physical contact requirement is a matter of contract between the insurer and insured which we will not disturb. (Emphasis added). 112 Ariz. at 162-163, 540 P.2d at 128-129. See also Gardner v. Aetna Casualty & Surety Co., 114 Ariz. 123, 559 P.2d 679 (App. 1976). The dissent in this matter takes the position that the insurance clause in question is ambiguous (an issue not raised by either party). Not only does the dissent fail to point out where the ambiguity lies, it relies only upon the case of Johnson v. State Farm Mutual Automobile Ins. Co., 70 Wash.2d 587, 424 P.2d 648 (1967), for this conclusion, which suffers from the same deficiency in analysis. The cases from other jurisdictions cited in the dissent (from California and New York) are based upon statutory requirements and the ascertaining of legislative intent based upon public policy considerations. Both jurisdictions found the “physical contact” provision of their statutes were intended by the legislature to limit fraudulent claims by “phantom” automobiles and that if the fraudulent claim concern was satisfied, (by proving that the unidentified vehicle struck a known vehicle which struck the insured) then the legislative intent was satisfied. See Motor Vehicle Acc. Indem. Corp. v. Eisenberg, 18 N.Y.2d 1, 271 N.Y.S.2d 641, 218 N.E.2d 524 (1966); Inter-Insurance Exchange of Auto Club of So. Cal. v. Lopez, 238 Cal.App.2d 441, 47 Cal.Rptr. 834 (1966). We are not here dealing with legislative enactments and public policy, but as Bales-trieri makes clear, a private contract. While legislature may enact “physical contact” hit-and-run legislation in order to avoid fraudulent claims, private parties may write such insurance on actuarial considerations dealing with risk of loss and cost recovery. It may well be that insurance companies are willing to write hit-and-run insurance coverage, where not statutorily required, because studies may have shown that where the unidentified vehicle actually strikes the insured, the risk that the unidentified vehicle will “run” and thus remain unidentified, is minimal. To change the parties’ legitimate contract expectations, under the guise of ambiguity, may simply force insurance companies to delete such voluntary coverage to avoid judicial rewriting of their contracts. The contract between the parties to this litigation requires “physical contact of such vehicle [the unidentified vehicle] with the insured or with a vehicle which the insured is occupying at the time of the accident. ...” (Emphasis added). This language is plain and unambiguous and a majority of this court will not rewrite the contract between the parties. We conclude that the trial court correctly granted summary judgment in this matter. Judgment affirmed. JACOBSON, P.J., concurs. . Appellants also filed separate actions against Purolator Courier Corporation and its employee driver. These actions are not involved in this appeal.

OPINION CONTRERAS, Judge. Appellant, convicted of multiple felonies following his guilty pleas, challenges the sentences imposed by the trial court. Appellant contends 1. that the sentence for escape from pre-trial confinement should not run consecutive to sentences imposed for crimes committed before the escape; 2. that aggravated sentences could not be imposed because appellant presented some mitigating circumstances; and 3. that the maximum sentences imposed are excessive. We reject each contention, and affirm the convictions and sentences. BACKGROUND In 1976, Jerry Lee Henderson was convicted and imprisoned for one charge of sale of narcotics and three charges of armed robbery. Maricopa County Cause Nos. CR-92172, CR-93997, CR-94051, and CR-94075. In March 1980, he was released by the Department of Corrections on work release (also referred to as work furlough). While on work release, on May 14, 1980, Henderson allegedly committed two counts of armed robbery. The indictment filed in the instant Cause No. CR-112701 charged Henderson with these two counts as class 2 dangerous felonies. While the charges in Cause No. CR-112701 were pending, Henderson was held in confinement at the Avondale Detention Center. On July 15, 1980, Henderson and two companions escaped from the Avondale Center and committed various crimes which led to the filing of a nine-count indictment against all three in Cause No. CR-113813. The eight counts pertaining to appellant included one count of dangerous or deadly assault by a prisoner, one count of first degree escape, two counts of theft, two counts of kidnapping, and two counts of armed robbery. An allegation of two prior armed robbery convictions was filed in each case. Pursuant to the terms of written plea agreements in both cases, Henderson entered pleas of guilty as follows: in Cause No. CR-112701, he pled guilty to one count of armed robbery, one count was dismissed, and the state agreed not to file two more potential charges; in Cause No. CR-113813, he pled guilty to one count of theft, two counts of kidnapping, one count of armed robbery, and the escape charge, and all other counts were dismissed. In both cases, he admitted the allegations of the two prior armed robbery convictions. The state agreed not to present aggravating evidence, and following a mitigation hearing and entry of judgment of guilt, Henderson was sentenced as follows: for the armed robbery in CR-112701, 35 years; on the charges in CR-113813, 10 years for the theft, 25 years for one kidnapping charge, 35 years for the other kidnapping charge, 35 years for the armed robbery, and 5 years for the escape. The sentences on all counts in both cases were ordered to run concurrently from the date of sentencing and concurrently with the unexpired portion of the 1976 sentences, except for the escape count, which was consecutive to the term imposed in CR-112701 and to the 1976 terms. A timely notice of appeal was filed in each case, and the cases have been consolidated in this court sua sponte. CONSECUTIVE SENTENCE FOR ESCAPE Appellant first contends that the trial court erred in ordering the escape sentence to run consecutive to the sentences on the instant charges, rather than consecutive to the original 1976 sentences on which he had been granted work release. The statute in question is A.R.S. § 13-2504, which provides as follows: § 13-2504. Escape in the first degree; classification A. A person commits escape in the first degree by knowingly escaping from custody or a correctional facility by: 1. Using or threatening the use of physical force against another person; or 2. Using or threatening to use a deadly weapon or dangerous instrument against another person. B. Escape in the first degree is a class 4 felony and the sentence imposed for a violation of this section shall run consecutively to the original sentence or sentences for which the defendant was confined. (emphasis supplied). Appellant argues that the emphasized portion of subparagraph B mandates that the escape sentence should run consecutive to the sentences imposed on his 1976 convictions. We do not agree. On July 15,1980, when appellant committed the crime of first degree escape, he was confined at the Avondale Center because of the offenses committed on May 14, 1980— not because of the crime for which he was imprisoned in 1976. Therefore, the “original sentence or sentences” for which appellant was confined at the time of the escape would have been those for the armed robberies in CR-112701, even though sentencing took place on May 14, 1981 — approximately ten months after the actual day of the escape. We believe this interpretation is consistent with the legislative intent that a prisoner suffer additional punishment for an escape beyond the punishment imposed for the crime which originally resulted in the confinement. This interpretation also comports with A.R.S. § 13-709(B), which requires presen-tence confinement credit against a sentence for all time actually spent in custody until such time as a defendant is actually sentenced on an offense. It is apparent that the legislature intended to make certain that all custodial confinement, not just confinement after sentencing, is credited to a defendant’s sentence. Thus, the present criminal code provides that the moment a defendant is “confined”, the defendant in effect begins serving any sentence that is later pronounced. Finally, we note that the plea agreements in these cases contain the following provisions, of which appellant was aware: (CR-113813) Parties stipulate sentences on the counts in this case as well as CR-112701 shall run concurrent with each other, except Ct II Escape which will be consecutive to the maximum sentence imposed in CR 112701. (CR-112701) Parties stipulate the sentence in this case be concurrent with sentence in CR 113813 (except Ct II Escape which is consecutive). State agrees not to hold an aggravation hearing. It thus appears that appellant in this case got exactly what he bargained for, with regard to the consecutive nature of the escape sentence. Appellant’s first contention is without merit. AGGRAVATING AND MITIGATING CIRCUMSTANCES Appellant next contends the trial court abused its discretion in the sentencing process, first because the legislature does not permit a trial court to balance aggra vating and mitigating circumstances and then impose an aggravated term. The statute in question is A.R.S. § 13-702(C), which provides as follows: C. The upper or lower term imposed ... may be imposed only if the circumstances alleged to be in aggravation or mitigation of the crime are found to be true by the trial judge upon any evidence or information introduced or submitted to the court prior to sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing. At the time of sentencing, the trial court made the following findings: I have considered all the circumstances presented to the Court and have determined that the aggravating circumstances are true and sufficiently substantial to call for a greater term, and that the mitigating circumstances are not sufficiently substantial to call, for a lesser term of imprisonment than that authorized by law. I have determined that the following aggravating circumstances are those which call for a greater term: I believe you have as many as four prior convictions in addition to the two that you admitted to. You threatened the infliction of bodily harm on people. In each offense that you committed there was the presence of an accomplice. I find that you are a dangerous person, Mr. Henderson, and that you are a danger to society. And the sentence that I am going to impose is designed to protect society from people like you that go out with a gun and threaten people with a gun. I find it extremely aggravating that you were serving a sentence at the time you committed the armed robbery in 112701. And even after your apprehension in that case, that you would then escape incarceration, your double incarceration, really, because at that time you were being held not only to the prison sentence that you were serving, but on the charge that you were pending [sic]. And I can assure you that it is only because of the plea agreement in this case that the sentences that I’m going to impose would not be made to be consecutive sentences. I feel very strongly about the things that you did. I think you are an extremely dangerous person, and I think you just might do them over again. And I am not going to give you that opportunity for as long a period of time as I can prevent it. The trial court made no specific findings as to what he considered to be mitigating circumstances but, based on the record, including presentence reports and the mitigation hearing, appellant points to the following factors which were before the trial court: appellant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired at the time he committed the armed robbery, as he was under the influence of alcohol and drugs; he was under substantial or unusual duress because he committed the armed robbery to obtain money to support his drug habit; he committed the kidnapping because he was under severe depression in feeling that he was going back to prison for a long term for the armed robbery and felt that his only choice was between death and escape; no gun would have been used in the hostage situation but for the fact that the victim originally pulled the gun on the appellant; appellant’s previous record had not been one of causing physical injury to others; a mental health expert did not consider appellant antisocial or capable of actually committing violence on another person, notwithstanding any threats he may have made; appellant had been severely punished by self-inflicted wounds in a suicide attempt immediately before his apprehension; and the criminal justice system failed the appellant. Assuming that both aggravating and mitigating circumstances were presented, appellant then argues that, because of textual differences between A.R.S. § 13-702(E) and § 13-702(D), a balancing of circumstances cannot result in an aggravated sentence. Subsection E provides: E. For the purpose of determining the sentence pursuant to subsections A and B of this section, the court shall consider the following mitigating circumstances: In determining what sentence to impose, the court shall take into account the amount of aggravating circumstances and whether the amount of mitigating circumstances is sufficiently substantial to call for the lesser term. From the concluding paragraph of subsection E, it is clear that when both aggravating and mitigating circumstances are present, a mitigated sentence is possible. In contrast, subsection D merely lists possible aggravating circumstances without a concluding paragraph analogous to that in subsection E. Appellant argues that, had the legislature intended that an aggravated sentence be possible, in the face of mitigating circumstances, it would have enacted the following concluding paragraph to subsection D: In determining what sentence to impose, the court shall take into account the amount of mitigating circumstances and whether the amount of aggravating circumstances is sufficiently substantial to call for the greater term. Giving the statutory terms their “fair meaning”, A.R.S. § 13-104, we do not believe that such restrictive interpretation of the statute is warranted. Under appellant’s interpretation, a defendant, faced with all the aggravating circumstances listed in subsection D, could, by presenting a single mitigating circumstance, assure himself of no more than the presumptive sentence. We seriously doubt that the legislature intended such a result. Rather, we believe that the legislature intended that the sentencing judge should consider all circumstances, both aggravating and mitigating, weigh them and balance them, and impose a just sentence anywhere within the range authorized by statute. In State v. Marquez, 127 Ariz. 3, 617 P.2d 787 (App. 1980), we held that where the record revealed both mitigating and aggravating circumstances, and where the trial court stated the aggravating factors which were found to be true and which were used to enhance punishment, and further stated that he had considered all other circumstances, he had complied with the statute and an aggravated sentence was proper. We stated: The balancing of the aggravating and mitigating circumstances in determining a sentence is not based upon mere numbers of aggravating or mitigating circumstances. 127 Ariz. at 7, 617 P.2d at 791. We are convinced that the trial court should balance all circumstances qualitatively, and not just quantitatively and then, in its discretion, determine whether there should be a deviation from the presumptive term within the statutory limits. It is apparent from the record that this is precisely what the trial court did in the instant case. Appellant’s second contention is without merit. MAXIMUM SENTENCES Appellant next contends that the imposition of the maximum terms on each count of the counts was an abuse of discretion, and should be reduced under our authority in A.R.S. § 13-4037. However, our authority to modify a sentence under this section will not be exercised if the sentences are within the statutory limits, as they are here, unless it clearly appears from the circumstances that the sentences were an abuse of the trial court’s discretion. State v. LaMountain, 125 Ariz. 547, 611 P.2d 551 (1980). In this consolidated appeal, the record discloses that the trial court was presented with an individual who had an extensive felony record. His last series of offenses, which resulted in a nine-count indictment, included a day-long hostage confrontation with police, wherein an innocent man and his wife were held at gunpoint for hours. Appellant’s potential total criminal liability for all the charges exceeded 100 years. However, through the competent services of court-appointed counsel, he succeeded in having all sentences, other than the escape sentence, run concurrently. The trial judge indicated that were it not for the plea agreement, he would be inclined to order that all the sentences be served consecutively. In view of the serious danger that this appellant presented to society, even while he was under the jurisdiction of the Department of Corrections, we are unable to find any abuse of discretion of the sentencing authority whatsoever. Appellant’s third contention is without merit. Since we have found no error, the judgments of conviction and the sentences are affirmed. EUBANK and HAIRE, JJ., concur. . As stated above, the trial court actually ordered the escape term to run consecutively to both the 1976 terms and the term in CR-112701. However, since the term in CR-112701 (35 years) will expire much later than any of the 1976 sentences (5-20 years total), the net effect is as alleged by appellant. . § 13-709. Calculation of terms of imprisonment B. All time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment otherwise provided for by this chapter.

GORDON, Vice Chief Justice: This case concerns the distribution of assets because of a marriage dissolution. We accepted the petition for review by appellee Dorothy Honnas to review a memorandum decision of the Court of Appeals, Division Two, No. 2 CA-CIV 3975 (filed November 19,1981). We have jurisdiction under Ariz. Const. Art. 6, § 5(3) and Ariz.R.Civ.App.P. 23. We vacate only that portion of the memorandum decision pertaining to Dorothy’s participation in the value of the family residence and remand the matter to the superior court for a redetermination of her interest and reconsideration of the spousal maintenance award in light of the revised distribution. The parties were married in June, 1974. Prior to the marriage, Raymond Honnas owned what became the family residence. The home was improved and appreciated in value from $55,000 to $130,000 during the marriage. Two rooms were added to the residence while the couple resided there. Some of the monies for this improvement came from community funds. Dorothy worked with the contractor and did the painting and wallpapering on the addition. Dorothy also contributed substantial maintenance work on other parts of the house. During the marriage $6,092 paid on the mortgage was from community funds. The Court of Appeals held: “There was no showing that either party’s efforts enhanced the value of this property [the family residence]. In the absence of such showing, the community cannot have a valid claim. [Citation omitted.] The increase in value was largely the result of inflation. Although even appellant [Raymond] admitted that the improvement to the home also increased its value, there is no evidence from which the amount of increased value attributable to this improvement can be determined. Since the increase in value was primarily due to its inherent nature rather than the personal efforts of the community, the entire increase was separate property. Cockrill v. Cockrill, 124 Ariz. 50, 601 P.2d 1334 (1979).” (Emphasis added.) The Court of Appeals awarded one-half of the community funds expended as mortgage payments and improvements to Dorothy, but disallowed her participation in the increased value of the residence. We disagree with the Court of Appeals’ application of Cockrill. In Cockrill, the husband owned a farm prior to the marriage; therefore, it was separate property. The net worth of the farm increased in value during the marriage. The issue was if the increase in the value of the property was because of its inherent nature and, therefore, separate property or if the increase was attributable to community efforts and, therefore, community property. In Cockrill we held that “[s]eldom will the profits or increase in value of separate property during marriage be exclusively the product of the community’s effort or exclusively the product of the inherent nature of the separate property. Instead * * * there will be evidence that both factors have contributed to the increased value or profits.” Cockrill, 124 Ariz. at 53, 601 P.2d at 1337. Recognizing that appreciation of property could be due to multiple factors, we discarded the “all or none rule” and held that “profits, which result from a combination of separate property and community labor, must be apportioned accordingly.” Id. at 54, 601 P.2d at 1338. In the instant case the Court of Appeals misconstrued Cockrill when it said that because the increased value of the residence was due primarily to its inherent nature, the entire increase was separate property. We agree that much of the increase in value is likely due to inflation. As the Court of Appeals notes, however, even Raymond acknowledged that the addition to the home increased its value. Further, we cannot say that Dorothy’s contribution of labor to permanent improvements has not also added to the appreciation of the property. We emphasize that Dorothy’s interest in the property does not alter its characterization as separate or community. Property takes its character as separate or community at the time it is acquired and retains this character even if there is a subsequent marriage. Cockrill, supra; Nace v. Nace, 104 Ariz. 20, 448 P.2d 76 (1968); Lawson v. Ridgeway, 72 Ariz. 253, 233 P.2d 459 (1951). The Honnas’ residence remains Raymond’s separate property and Dorothy’s interest is not one of title. Community funds and labor, however, were used for the benefit of the separate property, and the community is entitled to share in the enhanced value of the property due to this expenditure of funds and labor. We recognize that litigants and scholars have been confused about which formula should be utilized to reimburse the community for community funds expended for the benefit of separate property. Hanrahan v. Sims, 20 Ariz.App. 313, 512 P.2d 617 (1973); W. Reppy & W. De Funiak, Community Property in the United States, 244—45 (1975). In Rothman v. Rumbeck, 54 Ariz. 443, 96 P.2d 755 (1939), the wife was permitted reimbursement of one-half life insurance premiums paid and denied a proportionate part of policy proceeds. But see Everson v. Everson, 24 Ariz.App. 239, 537 P.2d 624 (1975). We do not decide which formula, amount-spent or value-at-dissolution, is the more desirable in cases involving insurance. We do reaffirm the value-at-dissolution formula for real property cases adopted in Lawson v. Ridgeway, 72 Ariz. 253, 233 P.2d 459 (1951). See also Tester v. Tester, 123 Ariz. 41, 597 P.2d 194 (App. 1979). We vacate the portion of the Court of Appeals memorandum decision inconsistent with the foregoing and remand the matter to the trial court for a redetermination of Dorothy’s interest in the residence. The trial court may reexamine the spousal maintenance award and choose to adjust it in light of our holding. HOLOHAN, C. J., and HAYS, CAMERON and FELDMAN, JJ., concur.

HOLOHAN, Chief Justice. This appeal is brought from an action for conversion of money. Appellants challenge an award of attorney’s fees in the judgment entered after a jury trial on the merits. This court assumed jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S. We affirm. Appellee Larry White met and began dating appellant Laurie Kaufmann, the daughter of appellants Lorenze and Marian Kaufmann, in June 1978. At the time White was in the process of obtaining a dissolution of his marriage. As part of the dissolution settlement it was agreed that White would pay his wife $5,000.00 in August of 1978. White testified that shortly before payment was due he had only a few hundred dollars, so he borrowed $10,000.00 from his mother. On August 18, 1978 White received a money order for $10,000.00 from his mother, presented it at the Valley National Bank, and in exchange received 100 hundred dollar bills. On the same day, Marian Kauf-mann, Laurie’s mother, deposited $9,000.00 in hundred dollar bills in their joint account at Western Savings. These transactions were amply documented. White explained that he entrusted Laurie Kaufmann with $9,000.00 in hundred dollar bills to put in an account for him for safekeeping. White feared what he believed were adverse community property ramifications if he placed the money in an account in his own name. Laurie was to withdraw money for White as he directed. On August 21, 1978 Laurie Kaufmann withdrew $750.00 from Western Savings and White deposited that same amount into his checking account. This money was then given to White’s ex-wife as partial payment of the $5,000.00 dissolution settlement. On August 22, 1978, the Western Savings account was reduced by $4,250.00 for a money order made out to White’s ex-wife, and by $500.00 cash which White used to pay bills. Shortly thereafter Laurie Kaufmann and White rather abruptly ended their relationship. White testified that Laurie then refused to return the balance of his money to him. On September 11 and 12,1978, Laurie and Marian Kaufmann were sent letters demanding return of White’s funds. On September 16,1978, Laurie closed the Western Savings account, withdrawing the entire balance, but no money was given to White. The Kaufmanns vigorously disputed the truth of White’s story at trial. They claimed they received $9,000.00 during a trip to Illinois to visit relatives. The Kauf-manns testified that Lorenze Kaufmann’s sister gave them the money to invest in some unspecified apartments they anticipated building. With this money Laurie and Marian opened the joint account at Western Savings. On August 21, 1978, they withdrew $750.00 to pay for improvements to a bathroom in their home. They testified that this money was neither withdrawn at White’s request nor given to him. Laurie testified that on August 22, she loaned White $4,750.00 out of the account without her parents’ knowledge, so he could pay his ex-wife pursuant to the dissolution settlement. She stated that White was to repay the money but refused to do so after they broke up. White brought suit against the Kauf-manns alleging conversion of money and requesting attorney’s fees. The jury returned a verdict in favor of White and against the Kaufmanns for actual damages of $3,517.42 and exemplary damages in the amount of $4,750.00 against Laurie Kauf-mann and $15,000.00 against Marian and Lorenze Kaufmann. The trial court entered judgment in these amounts plus $6,000.00 for attorney’s fees and $478.90 in taxable court costs. The Kaufmanns raise the following issues for our determination: I. Did White fail to properly state or preserve his claim for attorney’s fees? II. Was there sufficient evidence to support the award of attorney’s fees? III. Does the award of attorney’s fees pursuant to A.R.S. § 12-341.01(0) in addition to the jury verdict awarding punitive damages constitute impermissible double punishment? The appellee in his complaint alleged that he was entitled to attorney’s fees, but appellants contend that White failed to preserve his claim for attorney’s fees by not citing the statutory authority for his claim in the complaint and by not listing it as an issue in the pre-trial statement. This argument fails when raised in connection with an A.R.S. § 12-341.01(0) award of attorney’s fees, such as was made here. That subsection provides: C. Reasonable attorney’s fees shall be awarded by the court in any contested action upon clear and convincing evidence that the claim or defense constitutes harassment, is groundless and not made in good faith. In making such award, the court may consider such evidence as it deems appropriate and shall receive this evidence during trial on the merits of the cause, or separately, regarding the amount of such fees as it deems in the best interest of the litigating parties. It is obviously impossible for a plaintiff to make a claim for attorney’s fees under the above subsection in pretrial pleadings. One cannot be expected to assert that a defense is groundless, not made in good faith and constitutes harassment before the defense is known. We emphasize that this case deals with a § 12-341.01 subsection C award of attorney’s fees and not a subsection A “arising out of contract” award of attorney’s fees. By the language of the statute, subsection C is triggered only when the trial court, upon clear and convincing evidence, specifically finds that the claim or defense constitutes harassment, is groundless and not made in good faith. Once such a finding has been expressly made, as was done here, the award of reasonable attorney’s fees is mandatory. Appellants contend that they received insufficient notice that subsection C fees were being sought by appellee. Appellee filed an affidavit for attorney’s fees following trial. The court heard arguments on the issue. At the hearing appellants asserted that they had received their copies of appellee’s motion and affidavit only the day before, and that this was the first notice they had that the basis of the motion was A.R.S. § 12-341.01(0). Appellants did not ask for a continuance in order to prepare further. Instead they competently argued their opposition to the motion at that time. We do not find insufficient notice. No specific time limit for bringing the issue of attorney’s fees is set forth in the statute; therefore, the time within which notice must be given that fees are claimed under A.R.S. § 12-341.01(0) is largely within the discretion of the trial court. Appellants next contend that insufficient evidence exists to support the amount of attorney’s fees awarded. The rule is well established that an appellant may not question the sufficiency of the evidence to support the trial court’s judgment without bringing before the appellate court all of the evidence which formed the basis of the trial court’s decision. E.g., U.S. Manganese Corp. v. Schuster, 84 Ariz. 31, 323 P.2d 5 (1958); Evans v. Scottsdale Plumbing Co., 10 Ariz.App. 184, 457 P.2d 724 (1969). Appellants urged the trial court to consider the trial testimony in relation to reasonableness of attorney’s fees (R.T. 8-21-79 at 11-12), and the record indicates that the trial court did so. Appellants, however, have not provided the full record of the proceedings in the trial court. The transcripts of the two-day trial have not been provided. We, therefore, must presume that the evidence was sufficient to support the trial court’s finding that “an award of $6,000.00 for attorney’s fees would be reasonable and in the best interest of the litigating parties.” See, e.g., Floral Lakes, Inc. v. Patton, 20 Ariz.App. 383, 513 P.2d 672 (1973). Appellants’ final argument is that an award of attorney’s fees pursuant to A.R.S. § 12-341.01(C) is punitive in nature and serves the same function as exemplary damages. Both were awarded in this case and that, appellants contend, constitutes double punishment. Appellee responds that attorney’s fees are awarded as compensation and reimbursement rather than as punishment. We need not determine the precise purpose for which the legislature enacted the subject statute. Assuming, without deciding, that § 12-341.01(0) is purely punitive in purpose, we nevertheless recognize that it is entirely within the power of the legislature to provide for additive punishments or deterrences in such cases. Furthermore, we find no evidence in the record before us to support appellants’ contention that the jury considered attorney’s fees in determining the amount to be awarded as exemplary damages. The judgment of the superior court is affirmed. CAMERON and FELDMAN, JJ., concur.

FELDMAN, Justice. Appellant, Master Records, Inc., filed suit against appellee, Backman, a former officer and director of appellant, alleging breaches of Backman’s fiduciary duties. The trial court, sitting without a jury, rendered judgment against Master Records, and this appeal followed. Findings of fact and conclusions of law were waived, and none were made. This court has jurisdiction pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S. The pertinent facts, viewed in the manner most favorable to uphold the judgment, Neal v. Neal, 116 Ariz. 590, 592, 570 P.2d 758, 760 (1977), are as follows. Appellee Backman was employed by Ro-vinsky & Co. as a securities salesman. In April of 1977, Elliot Rovinsky, president of Rovinsky & Co., approached Backman with the possibility of pursuing a business venture for the sale of master tapes as tax shelter investments. The concept of the venture was that Backman, who had experience in the recording business, would obtain master tapes from artists and recording studios; these would be marketed as tax shelter investments, primarily to customers of Rovinsky & Co. Backman would continue in the employ of Rovinsky & Co. as a securities salesman, but would also be in charge of the day-to-day operations of Master Records. Rovinsky was to provide the capital. Back-man testified that he basically believed he would be working for Mr. Rovinsky and was unaware he was later made an officer or director. Nevertheless, after Backman agreed to the venture, Master Records, Inc. was incorporated and came into existence on June 20, 1977. Mr. Rovinsky and Mr. Backman were the sole officers and directors of Master Records. Contemporaneously with the incorporation of appellant, Backman and appellant entered into an employment contract. Its operative provisions read: 1. Bernard Backman will acquire master recordings from local artists which are of acceptable quality and new for Master Records. 2. From the records acquired by Bernard Backman for Master Records a 20% commission will be paid on the net profits after expenses and before salaries on a monthly basis. 3. Bernard Backman will coordinate and run the daily operations of Master Records. The contract was signed by Rovinsky and Backman, as president and vice-president of appellant, respectively. Rovinsky requested Backman to sign a covenant not to compete, but Backman refused, and no such covenant was put in the contract. Pursuant to this arrangement, Backman contacted recording studios and purchased master tapes for Master Records, which were then sold to investors. Backman’s business relationship with Rovinsky soon deteriorated. According to Backman, whose testimony we must now accept, he had a meeting with Rovinsky some time in mid-July. At this meeting, Rovinsky informed Backman that he was not pleased with Backman’s past performance and felt Backman was not suited for the business conducted by Rovinsky & Co. Backman was given to understand he had no future with Rovinsky & Co. Rovinsky also intimated that Backman’s future with Master Records depended on Backman’s subsequent performance. Backman also testified that at a later meeting in July he told Rovinsky that he wanted to produce new tapes and was precluded from doing so by Rovinsky’s insistence that Backman not pay more than $250.00 for the tapes Backman purchased from the studios. In addition, Backman felt that a master stamper should be sold with the master recordings so as to market a “finished product” capable of generating a profit for the investors. Backman feared that unless the product Master Records was selling had the actual potential of generating profit, the tax shelter investment would not withstand scrutiny by the tax officials. As a result of his dissatisfaction with Rovinsky, Backman claims that he told Ro-vinsky he would leave Master Records and would do no more than “wind-up” the business already commenced in July. Backman formed his own company, Artzona, which he incorporated contemporaneously with the July meeting with Rovinsky. On September 5, 1977, Rovinsky sent a letter to Backman, requesting his resignation from Master Records. Backman responded by a letter dated September 12, 1977, in which he made his resignation effective September 9, 1977, the date Backman received Ro-vinsky’s letter. Soon after, Master Records filed the present action against Backman. COMPETING BUSINESS During August of 1977, Backman, through Artzona, engaged in what he termed “substantially the same business” as Master Records. The record reflects that five sales of master tapes were made by Artzona during this month which resulted in gross profits of $16,000. Appellant contends that Backman was a director and an officer of Master Records during this month and, therefore, the sales constituted a breach of Backman’s fiduciary duties to appellant. In reviewing the propriety of Back-man’s actions, we first note that because neither party requested findings of fact pursuant to Rule 52(a), Rules of Civil Procedure, 16 A.R.S., and the trial court made none, we must presume that the trial court found every fact necessary to support its judgment, and we must sustain those presumptive findings if they are justified by any reasonable construction of the evidence. Neal v. Neal, 116 Ariz. at 592, 570 P.2d at 760. Turning now to the merits of this action, we are first guided by the well established rule that In Arizona a director of a corporation owes a fiduciary duty to the corporation and its stockholders.... This duty is in the nature of a trust relationship requiring a high degree of care on the part of the director. . . . [A] director does not breach his fiduciary duty so long as he acts honestly and in good faith and breaches no specific duty owing to the corporation.... . .. [Furthermore] [i]t is not the fact of engaging in a competing business that gives rise to liability. It is the additional circumstances which show a course of conduct of causing deliberate injury to the business and reputation of the corporation that supports a finding of bad faith and resulting liability. Atkinson v. Marquart, 112 Ariz. 304, 306, 541 P.2d 556, 558 (1975). Thus, to hold Backman liable for breach of his fiduciary duties toward appellant, appellant had to show, first, that Backman was a director of appellant at the time he engaged in a competing business through Arizona and, second, that Backman engaged in a course of conduct causing deliberate injury to Master Records’ business and reputation. Upon a reasonable construction of the evidence, we find support for the trial court’s presumptive finding that appellant did not meet its burden of showing that Backman was a director and officer of Master Records during August, when the five sales at issue were made by Arizona. Appellant contends that Backman’s resignation from Master Records was effective in September, when he submitted his written resignation to Rovinsky. Backman testified, however, that he told Rovinsky that he would no longer procure or deliver any more master tapes for Master Records after July; that he would merely “wrap-up” the existing orders which had come in during July. Backman’s version is supported by the testimony of Ms. Schuler, a client of Rovinsky & Co. She had a meeting with Mr. Rovinsky on August 1, 1977, at which time she inquired about Backman, with whom she had usually done business. According to Ms. Schuler, Rovinsky told her that he had let Backman go and also said “[s]omething about he’s going into business for himself.” The record therefore is sufficient to support the trial court’s presumptive findings that during the month of August Backman had effectively resigned from Master Records, that Rovinsky was aware of such resignation and, therefore, Backman did not owe any fiduciary duties to Master Records after the month of July. The fact that Rovinsky requested and Backman provided a written letter of resignation in September was seemingly a mere formality which did not alter the fact that an effective resignation had taken place earlier. The general rule in this regard has been stated as follows: In the absence of express provision, a resignation need not be in any particular form. It may be either oral or in writing, though putting a resignation in writing is the more orderly and proper mode of procedure; but whatever method is adopted it must clearly show an intent to resign. In any event, whether a director has resigned is a question of fact to be determined from the circumstances of each case. 2 W. Fletcher, Cyclopedia of the Law of Private Corporations § 346 (rev.perm.ed. 1982) (footnotes omitted). Furthermore, “[n]o notice of the resignation to creditors of the corporation or to the public is generally necessary. And no acceptance or record of the resignation is necessary.” Id. § 347. And, finally, In the absence of charter or statutory provisions to the contrary, the resignation of a corporate officer becomes complete, and his office becomes vacant the moment the resignation is made to the proper officer or body . . . and it is not necessary that the resignation be accepted or that it be entered on the corporate minutes or that someone be elected to take his place, in order to make the resignation effective. . . . Accordingly, the officer’s resignation is complete when it is tendered. It is not necessary for him to do more . . . nor may his motives or intention in resigning be litigated or inquired into upon the trial, because no reasons need be assigned by the officer for resigning. The basis of ... [this rule] is that where a director thus resigns, the inaction or refusal of a board of directors should not impose upon him a future liability or responsibility which he does not desire to undertake. Id. § 349. Here, Backman testified that he had never been informed that he was a director of the corporation, that it was a “shell,” that in July he had notified Rovin-sky that he would wind-up and leave. There was corroborating evidence from a customer that Rovinsky “got the message” and knew that Backman had left the company’s employ as of August 1. For the reasons stated above, we uphold the trial court’s presumptive finding that Backman was not an officer or director of Master Records during August of 1977. Therefore, after August 1, Backman owed no fiduciary duties to Master Records and was free to engage in a competing business through Arizona. We need not reach the questions of whether Master Records met its burden of showing that Backman, while a director and officer of Master Records, realized “secret profits,” appropriated business opportunities or engaged in a course of conduct causing deliberate injury to appellant’s business and reputation because appellant alleged Backman’s breach of fiduciary duties only with respect to the five Artzona sales consummated in August. MISAPPROPRIATION OF CORPORATE ASSETS In its sales of master recordings, appellant used a form of sales contract prepared for it by legal counsel. Appellant expended $2,000 in legal fees for this purpose. Back-man admitted using the same form for the sales documents which he had printed for Artzona, substituting only Artzona’s name for appellant’s name in the documents. Appellant contends Backman’s use of the documents constituted an actionable misappropriation of appellant’s corporate assets for which it is entitled to recover the $2,000 expended in their preparation. At the outset, we recognize that The fiduciary relation of the corporate officers to the corporation . . . imposes upon them the obligation to serve the purpose of their trust with fidelity, and forbids the doing of any act by them, or by any one of them, by which the assets of the corporation are wrongfully diverted from corporate purposes. There is little or no controversy as to the liability in general of directors or other corporate officers for misappropriation, diversion or conversion of corporate assets. Such a liability exists and may be enforced by the corporation .... 3A W. Fletcher, Cyclopedia of the Law of Private Corporations § 1102 (rev.perm.ed. 1975) (footnotes omitted). Nevertheless, upon examination of the record before us, we agree with the trial court’s presumptive finding that appellant failed to show that a misappropriation of a “corporate asset” occurred in this case. Here, appellant failed to show that its form contract was indeed an asset of the corporation. An asset, corporate or otherwise, is generally defined as “property of any kind, whether real or personal, tangible or intangible, legal or equitable, which can be made available for the payment of debts.” E.g., Harris v. United States, 431 F.Supp. 1173, 1178 (E.D.Va.1977); accord In re Bichel Optical Laboratories, Inc., 299 F.Supp. 545, 546 (D.Minn.1969); Citizens Bank, Drumright v. Satcher, 521 P.2d 819, 821 (Okla.1974). By way of example, we note the following items which have been held to be “assets”: “logos, credit and goodwill,” Brennan v. Sindicato Empleados de Equipo Pesado, Etc., 370 F.Supp. 872, 879 (D.P.R.1974); “patents,” Dairy Foods Inc. v. Farmers Co-Operative Creamery, 298 F.Supp. 774, 777 (D.Minn.1969); “accounts receivable,” Spagnola v. Iowa Employment Security Commission, 237 Iowa 645, 647, 23 N.W.2d 433, 435 (1946); “leasehold interests,” Martin v. Stires, 171 S.W. 836, 838 (Tex.Civ. App.1914). Appellant’s theory is that appellee appropriated a corporate asset by using the wording which appellant paid its counsel to prepare. The appropriation claimed is not the taking of tangible pieces of paper, but rather of the knowledge or words contained in or imprinted on the paper. The same problem would be presented if the employee had memorized the words of the contract and had then dictated the forms after leaving employment. We recognize that knowledge may be protected property in the form of a trade secret, but the knowledge here is not of that nature. Although the sales contract was prepared specially for appellant, it contained no concepts or ideas which are not in the public domain. “Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret.” Wright v. Palmer, 11 Ariz.App. 292, 295, 464 P.2d 363, 366 (1970). Further, appellant cites no authority, and our independent research reveals none, establishing that use of the wording in a corporation’s sales documents constitutes an actionable misappropriation of corporate assets by a prior officer or director of the corporation where such documents are not protected by copyright, where no contract between the corporation and the director restricted the latter’s use of such docu ments, where the director did not come upon the documents by any wrongful means, and where no injury to the corporation is shown to have resulted from the director’s use of the documents. Viewed in this light, we must affirm the court below. An employee does not become liable for actionable appropriation of a corporate asset simply because in his new job he uses knowledge which he got in his old job. See Wright v. Palmer, 11 Ariz.App. at 296, 464 P.2d at 367. Knowledge, as such, is not synonymous with the term “asset.” LOSS OF GOOD WILL Rovinsky testified that Backman’s conduct resulted in loss of good will to appellant. Rovinsky valued the damage to the corporation at $5,000. ' In support of this allegation, Rovinsky stated that appellant could not follow up on its clients because Backman refused to turn over necessary documents in his possession. Backman acknowledged that Rovinsky had requested documents from him and that he had asked Rovinsky to specify what documents he needed, but stated that Rovinsky never responded to this request. Rovinsky also alleged that he had received a complaint from one client that Backman had not given him the quality of recording that was represented to him. We recognize that the loss of good will to a corporation need not be proved with mathematical precision, and that only the best possible evidence of damages is required. Atkinson v. Marquart, 112 Ariz. 304, 306, 541 P.2d 556, 558 (1975). We also acknowledge that Rovinsky, as an officer of appellant, could testify regarding the alleged loss of good will to appellant. Id. at 307, 541 P.2d at 559. Nevertheless, in light of the record before us we cannot say the trial court’s presumptive finding that appellant did not suffer loss of good will due to Backman’s actions was error. The record reveals that soon after Baekman’s departure appellant employed a substitute for Backman and that the new employee was able to continue the sales operations and generate profit for appellant. It is also noteworthy that Backman’s tenure with appellant lasted only one month, and, therefore, the trial court might well have found that appellant’s calculations of its alleged damages due to Backman’s actions were too speculative. The judgment of the trial court is affirmed. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and CAMERON, JJ., concur. . A master tape is an original recording. The master is used to produce recordings which are then retailed to the public. A purchaser of a master tape from appellant would acquire an exclusive license to sell and distribute any reproductions made from the master. A major incentive for the purchase of master tapes from appellant was their tax shelter potential. . A master stamper is a mechanical device (a stamp or a plate) used to press records. The master tapes sold by appellant are used to make master stampers.

OPINION OGG, Presiding Judge. This appeal has been accelerated by this court because of the unusual posture of the case. The appellant/defendant is now incarcerated at the Arizona State Prison in Florence, Arizona under a plea agreement that is acknowledged to be defective by the appellee State of Arizona. All parties agree that the trial court erred in advising the defendant that his “Alford” pleas would not prevent him from appealing the trial court’s prior denial of his motion to suppress. The defendant was charged with two counts of second degree burglary. He moved to suppress certain evidence (items of stolen property) that were located by officers in his automobile at the time of his arrest. The defendant contended that there were no grounds for probable cause for his initial arrest and for the search of his automobile. The trial court denied the motion to suppress and the defendant thereafter entered into a plea agreement. At the time of the plea agreement, the defendant entered an “Alford” plea in an effort to preserve his right to appeal the denial of his motion to suppress. In substance, he denied his guilt, but acknowledged that the evidence was so overwhelming against him that he believed it was in his best interest to enter into the plea agreement. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). At the June 12,1981 change of plea hearing, the defendant asked the court if his pleas under the terms of the plea bargain would prevent him from challenging on appeal the trial court’s prior order denying his motion to suppress. After being advised by counsel for the state and counsel for the defendant that such pleas would not affect the defendant’s right to appeal the suppression order, the court then stated: THE COURT: That would be my understanding. But in the event that you appeal and for some reason or other the Appeals Court rules that the Motion to Suppress should have been granted, then that case will come back here for trial, and the fact that you’re entering into an Alford plea wouldn’t preclude you from raising that on appeal, the Motion to Suppress. That’s my understanding. THE DEFENDANT: Thank you. The defendant was later sentenced upon the basis of the plea agreement to ten year terms on each second degree burglary count with a prior felony conviction, with the sentences to run concurrently. The trial court was led into error. It is the opinion of this court that an “Alford” plea is in effect a guilty plea and that such a plea waives all non jurisdictional defenses. In State v. Arnsberg, 27 Ariz.App. 205, 553 P.2d 238 (1976), this court held that pleas of guilty and pleas of no contest have similar consequences, and that a defendant who entered a plea of no contest waived his right to appeal the trial court’s order denying his motion to suppress. We can find no logical distinction between a no contest plea and an “Alford” plea that would entitle the “Alford” plea to preserve a right to appeal from an order denying a motion to suppress. When the trial court erred in advising the defendant as to his rights of appeal, however, the pleas made in reliance of such information cannot be characterized as voluntary, knowing and intelligent pleas. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Owens, 127 Ariz. 252, 619 P.2d 761 (App. 1980). This matter is remanded to the trial court with directions that the defendant be given an opportunity to withdraw his pleas. If such pleas are withdrawn, his convictions and sentences shall be vacated, and the prosecution may then proceed accordingly. If the defendant elects not to withdraw his pleas, the convictions and sentences are affirmed. FROEB and CORCORAN, JJ., concur.

GORDON, Vice Chief Justice: On March 23, 1978 petitioners John and Tri-Thi McHazlett filed suit against respondent Otis Engineering Corporation (Otis), two other named defendants, and five fictitious defendants designated as “John Does and Jane Does 1-5.” Otis was the only defendant served with process. Petitioners undertook discovery, sending interrogatories to Otis and taking depositions of several Otis employees. Petitioners filed a motion to set and certificate of readiness in which petitioners’ counsel certified that the issues in the ease had been joined and that the parties had completed, or would have had a reasonable opportunity to complete, pre-trial discovery prior to five days before the pre-trial conference. Petitioners made no attempt to serve any defendant other than Otis or to substitute real persons for the John and Jane Doe defendants. On March 13,1981 the trial court granted Otis’ motion to dismiss for lack of personal jurisdiction, and on March 25,1981 an order of dismissal was entered. The order of dismissal made no mention of the other named defendants or the fictitious defendants. Furthermore, it did not include a determination that there was no just reason for delay in entering the order or an express direction that the order be entered. Petitioners appealed the order to the Court of Appeals. On September 1, 1981 the Court of Appeals dismissed the appeal on the grounds that the notice of appeal was untimely and failed to comply with Rule 8(c) of the Arizona Rules of Civil Appellate Procedure. Petitioners did not seek review of that decision. On October 19, 1981 the trial court, at petitioners’ urging, issued a second order dismissing the claim against Otis for lack of personal jurisdiction. This second order included a determination that there was no just reason for delay in entering the order and directed that the order be entered. Petitioners appealed this order to the Court of Appeals. The Court of Appeals dismissed the second appeal holding that petitioners’ first appeal had been taken from a final order and therefore petitioners are foreclosed from again seeking review. Accepting review pursuant to Ariz.Const. Art. 6, § 5(3) and Ariz.R.Civ.App.P. 23 we approve the dismissal of the appeal. Rule 54(b) of the Arizona Rules of Civil Procedure provides that in a case involving multiple parties an order or judgment that adjudicates the rights of fewer than all the parties is not appealable unless the trial court determines that there is no just reason for delay and directs entry. Snell v. McCarthy, 130 Ariz. 315, 636 P.2d 93 (1981); Dean v. Powell, 111 Ariz. 219, 526 P.2d 1241 (1974). Petitioners argue that the instant case involves multiple defendants. Therefore the trial court’s first order dismissing only the claim against Otis, was not appeal-able because it did not include a Rule 54(b) determination. Consequently, the Court of Appeals was without jurisdiction to hear the appeal from that order. Furthermore,, petitioners argue, the trial court’s second dismissal order which did contain a Rule 54(b) determination was the first appeala-ble order in the case, and therefore the appeal from that order was properly before the Court of Appeals and should not have been dismissed. The resolution of this case turns on the question of whether the unserved named defendants and the fictitious defendants are “parties” within the meaning of Rule 54(b). If not, the case does not involve multiple parties, Rule 54(b) is inapplicable, and the trial court’s first dismissal order was appealable. In Stevenson v. Celaya, 10 Ariz.App. 203, 457 P.2d 743 (1969), the Arizona Court of Appeals held that unserved fictitious defendants are “parties” for purposes of Rule 54(b). In contrast, several Federal Courts of Appeals construing Rule 54(b) of the Federal Rules of Civil Procedure, which is the same as Arizona’s Rule 54(b), and several state courts construing similar rules have held that unserved “parties” are not “parties” within the rules. See Leonhard v. United States, 633 F.2d 599 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); United States v. Studivant, 529 F.2d 673 (3d Cir.1976); Siegmund v. General Commodities Corp., 175 F.2d 952 (9th Cir.1949); Tidewater Insurance Associates, Inc. v. Dryden Oil Company, Inc., 42 Md.App. 415, 401 A.2d 178 (Ct.Spec.App.1979); State For Use and Benefit of Moak v. Moore, 373 So.2d 1011 (Miss.1979); Rae v. All American Life and Casualty Co., 95 Nev. 920, 605 P.2d 196 (1979); Gumpp v. Philadelphia Life Insurance Co., 562 S.W.2d 885 (Tex.Civ.App.1978). We believe these latter cases reflect the better view. The purpose of Rule 54(b) in requiring a determination that there is no just reason for delay in entering judgment is to prevent piecemeal appeals. Tarrazes v. Superior Court, 112 Ariz. 434, 543 P.2d 120 (1975); Edler v. Edler, 9 Ariz.App. 140, 449 P.2d 977 (1969). To hold that the unserved defendants in the instant case are “parties” for purposes of the rule would in no way serve that purpose. In the three year period between the filing of petitioners’ original complaint and the trial court’s first order dismissing the claim against Otis, petitioners made no attempt to serve the other defendants or to substitute real persons for the fictitious defendants. All discovery conducted by petitioners was directed at Otis. It appears from the record that as of March 23,1981 petitioners intended to proceed to trial in mid-April only against Otis. In light of these facts there is no reason to believe that there will be any adjudications in this case other than the one involving Otis. Consequently, holding that Otis is the only defendant for purposes of Rule 54(b) does not create a danger of piecemeal appeals. Accordingly, we hold that the unserved named defendants and the fictitious defendants in this case are not “parties” within the meaning of Rule 54(b) and therefore the trial court’s first dismissal order was final and appealable. To the extent Stevenson v. Celaya, supra, is inconsistent, it is overruled. Because the trial court’s first dismissal order was appealable, petitioners’ first appeal was properly before the Court of Appeals. That court’s decision in the matter became final and non-reviewable when petitioners failed to petition this Court for review. Furthermore, once petitioners’ first appeal was perfected the trial court lost any jurisdiction to act in the case. American Smelting & Refining Co. v. Arizona Air Pollution Control Hearing Board, 113 Ariz. 243, 550 P.2d 621 (1976); Burkhardt v. Burkhardt, 109 Ariz. 419, 510 P.2d 735 (1973). As a result, the trial court lacked jurisdiction to enter its second dismissal order. If a lower court has no jurisdiction to issue an order an appeal from that order gives the appellate court no jurisdiction except to dismiss the appeal. Rojas v. Kimble, 89 Ariz. 276, 361 P.2d 403 (1961); Ex Parte Coone, 67 Ariz. 299, 195 P.2d 149 (1948). The Court of Appeals therefore properly dismissed petitioners’ second appeal. The order of the Court of Appeals dismissing petitioners’ appeal is approved. HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.

HAYS, Justice. The appellees, El Paso Natural Gas Company (“El Paso”) and The Atchison, Topeka & Santa Fe Railway Company (“Santa Fe”) are Mohave County taxpayers. Both parties filed separate actions challenging the legality of the 1978-79 Mohave County budget. Summary judgment was entered in favor of El Paso. The judgment specifically provided that the 1978-79 Mohave County budget was illegal and that El Paso was entitled to judgment in the amount of $39,826.00 with interest. Partial summary judgment was entered in favor of Santa Fe in the amount of $24,459.88 with interest. Mohave County appealed both judgments. We have consolidated the two cases on appeal because they involve the same issues. We have jurisdiction pursuant to 17A A.R.S. Rules of Civil Appellate Procedure,' rule 19(e), and A.R.S. § 12-2101(B). Mohave and El Paso stipulated to the existence of certain facts at the trial level which we rely on for purposes of this appeal. The Arizona budget laws in existence at the time El Paso and Santa Fe brought suit required the governing board of each county to prepare annually a complete statement of the financial affairs of the county, an estimate of the dollar amounts required to meet county expenses, and a budget for the current fiscal year. In addition, the governing board was to determine and fix the tax rate upon all taxable property located in the county. After preparing the required statement and estimates, the Board of Supervisors of Mohave County (“Board”) adopted a budget in the amount of $19,152,920 for the 1978-79 fiscal year. This budget contained an estimated receipt of revenue from sources other than direct taxation in the amount of $844,080. This amount was entitled “In Lieu Funds.” These funds represented the estimated amount of payments to be received pursuant to Public Law 94-565, 31 U.S.C.A. §§ 1601 et seq., from the United States Government for certain federal lands located in the county. Under the Arizona budget law in existence at the time, the estimated total amount of expenditures proposed for the fiscal year could not exceed by more than ten percent the estimated total amount of expenditures for the previous fiscal year, excluding certain specifically enumerated expenditures. The Board did not include the expenditures to be made from the “In Lieu Funds” in its estimate of the total expenditures for the 1978-79 fiscal year. As a result, the Board determined and fixed the tax rate at $2.3248 per $100 valuation. If, as the trial court stated, the “In Lieu Funds” were legally required to be included in the amounts proposed for expenditure, the funds would be subject to the ten-percent limitation. As a consequence, the county tax rate would have been $1.9094 per $100 valuation. El Paso paid, under protest but before delinquent, the property taxes due for the first half of the tax year 1978. This payment included county taxes in the amount of $111,224.03. Had the “In Lieu Funds” expenditures been included in the ten-percent limitation, El Paso’s Mohave County taxes would have been $39,826 less than the sum levied pursuant to the budget adopted by the Board. Two questions are presented on appeal: 1. Are expenditures of “In Lieu Funds” received from the federal government pursuant to Public Law 94-565, 31 U.S.C.A. §§ 1601 et seq., included within the ten-percent limitation on expenditures established by Arizona’s budget law, A.R.S. §§ 42-302, 303 and 304? 2. Does application of the ten-percent limitation on increases in expenditures conflict with congressional intent regarding the use of “In Lieu Funds” by the counties? TEN-PERCENT LIMITATION On August 7, 1978 the Board adopted a budget for Mohave County for the 1978-79 fiscal year. At the time the Board estimated upcoming expenditures and set the budget, its actions were governed by A.R.S. Title 42 on Taxation. The Board estimated the sum of $844,080 as the amount of tax-free money to be received from the United States Government under Public Law 94-565, 31 U.S.C.A. §§ 1601 et seq. This amount of “In Lieu Funds” was apportioned among three categories to be spent as follows: (A) “In-Lieu of Taxes Fund” Sheriff’s automobiie $100,000 Screening plant 50,000 Airplane 30,000 Building purchases 104,879 $284,879 (B) “General Fund” Fire and liability insurance $440,000 Annex expenses 27,000 Courthouse utilities 22,758 $489,758 (C) “Road Fund” Engineering $ 69.443 $ 69,443 TOTAL $844,080 The Board excluded the entire sum of $844,-080 from the amounts subject to the ten-percent limitation under A.R.S. §§ 42-302(D), 42-303(C) and 42-304(B). These were the portions of the budget law relating to the ten-percent limitation in effect at that time. Section 42-302 dealt with the preparation and publication of the estimated county expenditures for the current fiscal year. Subsection (D) provided: D. The total of amounts proposed for expenditure in the estimates shall not exceed by more than ten per cent the total of amounts proposed for expenditure in the budget adopted for the previous fiscal year, excluding in each case expenditures for school, bond, special assessment, district levy, primary, general or special election purposes, municipal cemeteries, hospitals of a municipal corporation, the amount of increase in salaries of public officials whose salaries are set or limited by state law, or municipal utility undertaking as defined in § 9-521. Section 42-303 required the Board to hold a hearing following the publication of the estimated proposed expenditures and subsequently to adopt the estimates of the proposed expenditures. Said expenditures constituted the budget of the county. Section 42-303(C) provided: C. The total amounts in the budget proposed for expenditure shall not exceed the total of amounts proposed for expenditure in the published estimates, nor shall the total of amounts in the budget proposed for expenditure exceed by more than ten per cent the total of amounts proposed for expenditure in the budget adopted for the previous fiscal year, excluding expenditures for school, bond, special assessment and district levy, primary, general or special election purposes, municipal cemeteries, the amount of increase in salaries of public officials whose salaries are set or limited by state law, or municipal utility undertaking as defined in § 9-521. Section 42-304 instructed the Board to fix, levy and assess the amount to be raised by direct taxation. This amount, in addition to all other estimated sources of revenue including unencumbered balances from the previous fiscal year, were to “equal the total of amounts proposed to be expended in the budget for the current fiscal year.” Subsection 42-304(B) specifically provided: B. The budget estimate as finally adopted shall not exceed by more than ten per cent the total amount proposed for expenditure in the budget adopted for the previous year, after excluding expenditures for school, bond, special assessment and district levy, primary, general or special election purposes, municipal cemeteries, search and rescue equipment, facilities and supplies, medical clinics as defined by § 36-2351, the amount of increase in salaries of public officials whose salaries are set or limited by state law, and municipal utility undertaking as defined in § 9-521. Thus, § 42-302(D) dealt with estimated proposed expenditures, while § 42-303(C) applied to the expenditures included in the proposed and subsequently adopted budget. Under these sections the only expenditures which did not need to be included for purposes of computing the ten-percent limitation were those designated for the following purposes: school, bond, special assessment and district levy, elections, municipal cemeteries, salaries of certain public officials, and municipal utilities. Section 42-304(B) applied to the budget estimate as finally adopted. This section likewise excluded the above-listed expenditures from the ten-percent budget limitation. Moreover, § 42-304(B) additionally excluded search and rescue equipment, facilities and supplies, and medical clinics from the ten-percent limitation. The Board did not include in its calculation of the ten-percent limitation expenditures for a sheriff’s automobile, a screening plant, an airplane, building purchases, fire and liability insurance expenses, courthouse utilities, and engineering expenses. None of these items appear in any of the categories of expenditures that could be excluded in calculating the ten-percent limitation. The budget portion of the taxation statutes plainly states that during all stages of the budgeting process the expenditures may not exceed by more than ten percent the expenditures in the budget adopted the prior year unless the expenditures fall within an exclusion. Mohave County nevertheless argues that when construing a statute, a court is required to ascertain the true intent of the legislature at the time it enacted the statute. It cites Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1974), in support of this proposition. Mohave County maintains that the legislative objective was “[t]o compel local governments in Arizona to operate on a cash basis by restricting the level of revenue — and by logical extension, the level of expenditure — which could be raised by county taxation in any given year.” It additionally asserts that the legislature’s concern in enacting the budget law was to prevent indebtedness beyond local taxpayers’ capacity to pay. It concludes that none of these objectives is advanced by requiring “In Lieu Funds” from the federal government to be included in the calculation of the ten-percent limitation. Mohave County does not assert that the language of the budget law is ambiguous although it urges the court to consider the legislature’s intent and objective in enacting the statutes. We agree that the cardinal rule of statutory interpretation involves ascertaining and deferring to the legislature’s intent. Ernst v. Collins, 81 Ariz. 178, 181, 302 P.2d 941, 943 (1956); Garrison v. Luke, 52 Ariz. 50, 55, 78 P.2d 1120, 1122 (1938). However, when the statutory language is plain and unambiguous, the rules of statutory construction are inapplicable. See Long v. Dick, 87 Ariz. 25, 28, 347 P.2d 581, 583 (1959); State v. Airesearch Manufacturing Co., 68 Ariz. 342, 348, 206 P.2d 562, 567 (1949). Mohave County would have this court ignore the plain and unambiguous language of the statute to superimpose Mohave County’s interpretation of the legislature’s intent in enacting the budget law. We can only interpret the laws in conformity with the language used unless such an interpretation would lead to an impossibility or absurdity. Marquez v. Rapid Harvest Co., 89 Ariz. 62, 64, 358 P.2d 168, 170 (1960); Mayberry v. Duncan, 68 Ariz. 281, 284, 205 P.2d 364, 366 (1949). The language of the statutes is clear and unambiguous. “In Lieu Funds” are not exempt from the ten-percent expenditure limitation. The refusal of this court to create a judicial exemption for “In Lieu Funds” does not work to undermine the legislature’s intent, as set forth by Mohave County, to avoid overburdening the taxpayer or overusing debt. In fact, inclusion of “In Lieu Funds” in the ten-percent expenditure limitation would decrease the tax load on individual taxpayers. We are not free to extend the clear meaning of the statute even though the result may be harsh or involve mistaken policy. Ernst v. Collins, supra; Garrison v. Luke, supra. PREEMPTION Appellant, Mohave County, contends that subjecting federal “In Lieu Funds” to the ten-percent limitation of Arizona’s budget law would defeat the intent of Congress in enacting Public Law 94-565, 31 U.S.C.A. §§ 1601 et seq. Mohave County therefore concludes that this “federal regulatory scheme” has preempted application of the Arizona budget law. Federal law can preempt state law in several situations: where an express provision for preemption exists; where Congress has occupied the field by adoption of an all-embracing federal plan of control; where state laws would obviously frustrate congressional purpose. Maryland v. Louisiana, 451 U.S. 725, 747, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230-31, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). The latter situation, appellant contends, is the case here. Preemption does become a distinct possibility if state law or policy produces results inconsistent with the objectives of the federal statute. Hill v. Florida, 325 U.S. 538, 542, 65 S.Ct. 1373, 1375, 89 L.Ed. 1782 (1945); Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Thus, a review of the purpose and objectives behind Public Law 94-565 is necessary to ascertain the validity of Mohave’s preemption claim. The Senate’s intent when it passed Public Law 94-565 was “[t]o provide for certain payments to be made to State or local governments by the Secretary of the Interi- or based upon the amount of certain public lands within the boundaries of such State or locality....” S.R.Rep.N0.94-1262, 94th Cong., 2nd Sess. 1, reprinted in [1976] U.S. Code Cong. & Ad.News 5968. The legislative history of the Act includes a section-by-section analysis of Public Law 94-565. This analysis states in part: “Subsection (a) [of Section 1] directs that, beginning October 1, 1976, ... the Secretary [of the Interior] must make annual payments, on a fiscal year basis, to each unit of local government in which are located the public lands identified in section 4 (called ‘entitlement lands’). These payments may be used for any governmental purpose.” U.S.Code Cong. & Ad.News, supra at 5978. Mohave County is considered a “unit of local government” for purposes of this appeal. It contains “entitlement lands” within its borders. Under the applicable statute, Mohave County was to receive $.75 from the federal government for each acre of entitlement land. A report by the Public Land Review Commission prompted the ultimate passage of Public Law 94-565. The Commission noted a trend or policy of disposal of public (federal) lands by the states. The Commission recommended that the burden of reversing this trend and retaining lands in federal ownership should not be borne solely “by those states and governments in whose areas the lands are located. Therefore, the federal government should make payments to compensate state and local governments for the tax immunity of federal lands.” U.S.Code Cong. & Ad.News, supra at 5969. The purpose underlying passage of Public Law 94-565 was “to recognize the burden imposed by the tax immunity of Federal lands by providing minimum Federal payments to units of local government within the boundaries of which these lands lie.” U.S.Code Cong. & Ad.News, supra. Because federal lands within state and local boundaries are exempt from state or local taxation, various federal statutory provisions in the past had attempted to alleviate the tax burdens imposed on the remaining non-federal (and non-tax-exempt) lands. This was accomplished by sharing with the affected state or local governments the revenue or fees received from federal lands within their boundaries. These revenues or fees were given to the states in the form of payments which could be used only for designated purposes. In many cases these funds were not returned by the state to the local governments in amounts proportionate to the volume of federal land located within the local governments’ jurisdiction. As a result, some local governments were forced to tax the remaining non-federal lands at a higher rate to meet necessary expenses. Moreover, because many of the funds ultimately received by the local governments were earmarked under the various federal statutes for specific purposes, the local governments were often precluded from utilizing the funds where they were needed most. Public Law 94-565, 31 U.S.C.A. §§ 1601 et seq. as finally enacted alleviated these problems. Section 1601 provided that: “[T]he Secretary is authorized and directed to make payments on a fiscal year basis to each unit of local government in which entitlement lands (as defined in section 1606 of this title) are located. Such payments may be used by such unit for any governmental purpose. . . . ” Section 1602(d) provided: “In the case of a smaller unit of local government all or part of which is located within another unit of local government, entitlement lands which are within the jurisdiction of both such units shall be treated for purposes of this section as only within the jurisdiction of such smaller unit.” Thus, under the new law, if entitlement lands were located in a state and a county, the county would receive the funds instead of the state. The county could use these funds for any governmental purpose. Mohave County argues that Arizona’s statutory budget limitation attempts to regulate the use and budgeting of federal monies received by Arizona counties — an area only the federal government can regulate. Although we agree that Congress has attempted to define how federal “In Lieu Funds” can be spent, i.e., for any governmental purpose, we find that the Arizona budget law neither prevents nor interferes with this use. Mohave County can spend the “In Lieu Funds” for any governmental purpose it chooses. What the county cannot do is tax county property owners at a higher rate because the Board has failed to include “In Lieu Funds” as a source of revenue under A.R.S. § 42-304. The intent of Congress in authorizing “In Lieu Funds” was to reduce the burden on taxpayers arising from federal lands located in their taxing jurisdiction. Mohave County’s interpretation would increase the burden. Arizona’s ten-percent limitation on expenditures does not conflict with congressional intent regarding “In Lieu Funds.” The summary judgments granted by the trial court are affirmed. HOLOHAN, C. J., and STRUCKMEYER, CAMERON and FELDMAN, JJ., concur. Note: Justice FRANK X. GORDON, Jr., did not participate in the determination of this matter. Retired Justice FRED C. STRUCKMEYER, Jr., sat in his stead. . In its statement of facts, Mohave County refers to two different figures: $2.3248 and $2.3258 per $100 valuation. . House Bill 2142 became effective on May 1, 1979. Section 3 of the Bill provided: Sec. 3. Exclusion of federal funds from budget and tax levy limitations for fiscal year 1979-1980 Notwithstanding any other law to the contrary, for fiscal year 1979-1980 all federal funds on hand or received by a county, city or town shall be excluded from the budget adopted for the previous fiscal year and from the estimated budget and adopted budget for the current fiscal year for the purpose of computing the limitations under §§ 42-302, 42-303 and 42-304 on the amounts proposed for expenditure or to be raised by direct taxation in the estimated budget or the adopted budget of such county, city or town. . In 1980 § 42-302(D) was amended to read: “D. The total of amounts proposed for expenditure in the estimates shall not exceed the expenditure limitation established for such county, city or town.” . Effective July 1, 1982, § 42-303(C) read: “C. The total amounts in the budget proposed for expenditure shall not exceed the total of amounts proposed for expenditure in the published estimates.” . After the 1980 amendment, § 42-304(B) read: “B. The governing body shall not fix, levy and assess an amount of primary property taxes in excess of the maximum amount permitted to be levied, fixed or assessed by § 42-301.

GORDON, Vice Chief Justice: Petitioner Drew filed this petition asking that we review the decision of the Court of Appeals, Division Two, 133 Ariz. 165, 650 P.2d 467 (1981). The Court of Appeals, reversing the order of the Juvenile Court, held that the seven Drew children should be declared dependent. One of the Drew children had died and Mrs. Drew has stated she would not seek medical care for any of the remaining children in the future. We have jurisdiction pursuant to Ariz.Const. Art. 6, § 5(3) and Ariz.R.Civ.App.P. 23. We vacate the decision of the Court of Appeals and affirm the dismissal of respondent-state’s petition for the declaration of dependency. The issue we must decide is if there was sufficient evidence to warrant state interference with the fundamental right of a parent to the custody and control of his or her child, particularly to “monitor” the health of the child when there is no known medical danger and when providing medical care is contrary to the parent’s religious beliefs. On March 20, 1981, Mrs. Drew took her six-year old son, Therial, to the emergency room of the Copper Queen Community Hospital in Bisbee, Arizona. Therial was pronounced “dead on arrival,” and an autopsy revealed that the cause of death was “septicemia and peritonitis secondary to perforation of a strangulated inguinal hernia.” This condition occurs when a part of the intestine protrudes out through a defective part of the abdominal wall. The intestine may and often does slip back into place. If the intestine gets caught, however, the blood supply to the area will be cut off, the tissue will die, and the bowel will become obstructed, eventually causing a rupture. Upon rupture the materials in the digestive tract spill into the abdominal cavity causing infection and possibly leading to cardiac arrest and death. Because of the circumstances of Therial’s death the physician who performed the autopsy contacted the Arizona Department of Economic Security [D. E. S.]. Two D. E. S. caseworkers visited the Drew residence on March 31, 1981 and interviewed Mrs. Drew for twenty minutes. In response to questioning, Mrs. Drew explained that she had faith that miracles would safeguard her children and she would not seek medical help if any of the remaining children became ill. D. E. S. subsequently filed a petition requesting that the seven Drew children be adjudged dependent. A dependency hearing was held on July 23, 1981. After hearing testimony from two physicians, a superintendent of schools, and the two D. E. S. caseworkers, the court declined to adjudge the children dependent as defined in A.R.S. § 8-201(10). The juvenile court found that “the children are apparently well fed, neatly clothed, * * * attend school with some degree of regularity and they have a home which is clean and well kept.” The Court of Appeals reversed the juvenile court and found there was sufficient evidence upon which to declare the seven Drew children dependent. We must first decide, in light of Santosky v. Kramer, - U.S. -, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the standard of proof courts must apply in declaring children dependent. In Santosky the Supreme Court held that parents’ right to the care and custody of their children could only be terminated by a standard of proof more strict than a preponderance of the evidence. Adopting a “clear and convincing” evidence test, the court noted that this “standard of proof strikes a fair balance between the rights of the natural parents and the State’s legitimate concerns.” Santosky, - U.S. at -, 102 S.Ct. at 1402, 71 L.Ed.2d at 617. Arizona has complied with Santosky and instituted the clear and convincing standard. In re Pima County Juvenile Action No. S-919, 132 Ariz. 377, 646 P.2d 262, (1982). It is the opinion of this Court, however, that the Santosky mandate of the “clear and convincing” standard of proof is limited to parental severance cases and is not applicable in the present case, a dependency petition. “Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.” Santosky, - U.S. at -, 102 S.Ct. at 1392, 71 L.Ed.2d at 603. The Santosky Court reasoned that “in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.” Santosky, - U.S. at -, 102 S.Ct. at 1395, 71 L.Ed.2d at 607. In the instant case the state was not seeking permanent termination of all parental rights. Termination is an irrevocable decision. The permanency of termination dictates that it be resorted to in only the most extreme cases. The determination of dependency, however, is not an irreversible decision. It does not sever all contacts between child and parent, nor does it destroy all rights forever. Using the formula of the Supreme Court, the risk of error and the weighing of the private and public interests convinces us that the preponderance of the evidence standard is the proper standard of proof in dependency proceedings. See Ariz.R.P.Juv.Ct. 17(a)(2). Therefore, we must decide if the state has proved by a preponderance of the evidence that interference with the Drew family was warranted. The Court of Appeals found dependency because there is “no parent or guardian willing to exercise” care, the Drew children are “not provided with the necessities of life,” and the “home is unfit * * * by reason of abuse [or] neglect.” The Court of Appeals found that the threatened passive conduct involved here (the possible failure to maintain reasonable care by not providing medical care in the future) constituted present abuse as contemplated by the statutes. The Court of Appeals failed to note that the Legislature had changed the definition of abuse. The Court of Appeals cited: “8-201(2.) ‘Abuse’ means the infliction of physical or mental injury or the causing of deterioration of a child and shall include failing to maintain reasonable care and treatment or exploiting or overworking a child to such an extent that his health, morals or emotional well-being is endangered.” On April 30, 1981 the Legislature changed the definition of abuse to: “8.201(2.) ‘Abuse’ means the infliction of physical injury, impairment of bodily function or disfigurement or the infliction of serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior and which emotional damage is diagnosed by a medical doctor or psychologist as provided in § 8-223 and shall include inflicting or allowing sexual abuse as provided in § 13-1404, sexual conduct with a minor as provided in § 13-1405, sexual assault as provided in § 13-1406, molestation of a child as provided in § 13-1410, sexual exploitation of a minor as provided in § 13-3552, commercial sexual exploitation of a minor as provided in § 13-3553 or incest as provided in § 13-3608.” It is noteworthy that the current definition of abuse lacks the phrase “failing to maintain reasonable care” upon which the Court of Appeals relied in deciding the Drew children were abused children. Under Arizona case law and § 8-201 we find the Drew children are not abused. This oversight of the Court of Appeals, however, does not answer the issue of the case, for a dependent child can also be a child “whose parent is not willing to exercise parental care” or who is “not provided with the necessities of life.” It is not disputed that parents owe certain duties to their children. It is incumbent on a parent to provide “necessaries” for a child. The definition of necessaries is not a fixed term. What is necessary for the well-being of a child may be defined differently in different cultures or economic and social groups, and may change with the times. Although we recognize the term “necessary” is flexible, the state may impose a minimum threshold of care a parent must provide any child. In general, a parent must provide a child with a place to live, clothing, an education, attention, and medical care as may be required. By necessity these are fluid terms and may depend on the financial wherewithal of the parents, cultural mores, etc. See Branham v. State, 33 Ariz. 170, 263 P. 1 (1928). Accordingly, when we discuss the rights of the parent, the state, and the child, we must weigh and balance the interests of each. Hard and fast judicial rules are sometimes desirable because they increase predictability. But an inelastic rule would not further justice when, as here, we are concerned with a right so important and sensitive as that of parenting a child. Not only must these rights be balanced, but it must also be recognized that a great deal of discretion is vested in the trial court and in the administrative body, here the D. E. S., which feeds information to the court. Just as “what is necessary” is not a rigid definition, neither is the definition of “neglect,” see In re Pima County Juvenile Action No. J-31853, 18 Ariz.App. 219, 501 P.2d 395 (1972), nor of “abuse.” The United States Supreme Court has consistently declared the significance of the family unit in American society. The right to raise one’s family is essential, see Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1925), and the right to procreate is one of the “basic rights” of all persons. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (1944). The Supreme Court has adopted the concept of family privacy acknowledging that there are certain aspects of our lives into which the government cannot intrude. See Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (government cannot intrude on choices concerning family living arrangements); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (state law proscribing abortion infringes on an individual’s right of personal privacy); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (state law presuming unmarried fathers unsuitable parents violated the natural father’s interest in his children); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (state law proscribing the use of contraceptives unconstitutionally intrudes upon a person’s right to marital privacy). The Court recently reaffirmed the parents’ fundamental liberty interest “in the care, custody, and management of their child.” Santosky, - U.S. at -, 102 S.Ct. at 1394, 71 L.Ed.2d at 606. We have stated that “[b]ecause the child has attained a favored beneficient status in our social and legal systems does not detract from the well-settled rule that the right of parents to the custody of minor children is both a natural and legal right.” Arizona State Dept. of Public Welfare v. Barlow, 80 Ariz. 249, 252, 296 P.2d 298, 300 (1956). See also In re Winn, 48 Ariz. 529, 63 P.2d 198 (1936); Harper v. Tipple, 21 Ariz. 41, 184 P. 1005 (1919). Arizona recognizes that the right to control and custody of one’s children is fundamental. In re Pima County Juvenile Action No. S-111, 25 Ariz.App. 380, 543 P.2d 809 (1975). The rights of parents to the custody of their children, however, is not absolute. Barlow, supra. The state has an interest in the welfare and health of children. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). If the interest of the state is great enough — that is, if the welfare of the child is seriously jeopardized— the state may act and invade the rights of the parent and the family. Of no little concern in this balancing process are the rights of the child. The bundle of rights a child may have does not lend itself to a comprehensive list. But the child is entitled to have his or her basic needs cared for. If the parent fails to furnish these needs, the state may and should act on behalf of the child. In a case involving the custody of children, our paramount interest is always the best interest of the child. In re Marriage of Gove, 117 Ariz. 324, 572 P.2d 458 (App.1977). The Court of Appeals read our juvenile statutes as demanding that “every child in Arizona is entitled to a home where the parent or guardian is willing to seek medical attention for him [or her] should he [or she] become sick or injured." 133 Ariz. at 166, 650 P.2d at 468 (emphasis added). We agree with this reading of our statutes. At this juncture we depart from the analysis of the appellate court because the Drew children are not known to be sick or injured, and, therefore, there is no known need of medical attention. The evidence from the dependency hearing indicates that after Therial’s death, two D.E.S. caseworkers went to the Drew home. The caseworkers identified themselves and Mrs. Drew invited them into her home. They discussed Therial’s death and Mrs. Drew explained to the caseworkers that the other seven children were in good health. During the twenty-minute interview the caseworkers observed several well-dressed and well-fed children, presumably the Drew children, dash in and out of the house apparently at play. The caseworkers did not interview or ask to speak with any of the children. In fact, the caseworkers did not even know the names of the Drew children. The names had to be obtained from the superintendent of schools, who testified that the children have good attendance records. It is on the basis of this twenty-minute interview that D.E.S. now seeks to declare these children abused, neglected, and dependent on the state. We cannot and will not say that a woman’s statement that she will not seek future medical care for her children who appear physically fit is not exercising parental care. We emphasize that this would be a different case were any of these children known to be ill. A known illness would cause us to agree with the Court of Appeals that passive conduct, the failure to procure medical attention, may amount to unwillingness to exercise parental care. We do not pass upon the question whether Therial was neglected or abused as it is not he but the seven other Drew children who are the subject of this appeal. This Court takes notice that there may be a psychology of abuse, that is to say, a parent who abuses one child is likely to abuse a second child. The Court of Appeals held that the failure to acquire medical attention for Therial endangered the other Drew children. Among the cases cited by the court are: In re Maria Anthony, 81 Misc.2d 342, 366 N.Y.S.2d 333 (1975) (the mother was diagnosed as a schizophrenic catatonic type who did not have the capacity to care for the child); In re Baby Boy Santos, 71 Misc.2d 789, 336 N.Y.S.2d 817 (1972) (older child had been beaten and hospitalized; parents were not cooperative, and the court determined it could not expose a newborn child to “imminent risk”); In re Miller, 40 Wash.2d 319, 242 P.2d 1016 (1952) (court found that the father was a brutal and sadistic person, not capable of rearing any child). These cases are distinguishable. The circumstances of this case require that a distinction be made between active and passive abuse. We do not have a disorganized home where children are dirty or ill-clothed. See In re Appeal in Pima County, Adoption of B-6355 and H-533, 118 Ariz. 127, 575 P.2d 326 (App.1977) vacated, 118 Ariz. 111, 575 P.2d 310, cert. denied, 439 U.S. 848, 99 S.Ct. 149, 58 L.Ed.2d 150 (1978). Nor is this a home where children are being beaten. This Court was not provided with statistics on the frequency of strangulated hernias among children. The state’s expert testified that he has seen only six deaths from this malady in over thirty years, and these were not limited to children. The cases cited by the Court of Appeals are distinguishable as these cases and other cases uncovered by our research involve instances where the state interfered in the parent-child relationship because of a present need of medical attention. In re Karwath, 199 N.W.2d 147 (Iowa 1972) (child’s health endangered if tonsils not removed); Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978) (child had leukemia and was in need of chemotherapy); State v. Perricone, 37 N.J. 463, 181 A.2d 751 (child suffered from chronic oxygen lack), cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962); In re Sampson, 29 N.Y.2d 900, 328 N.Y.S.2d 686, 278 N.E.2d 918 (1972) (child had psychological impairment, although not life threatening); In re Ray, 95 Misc.2d 1026, 408 N.Y.S.2d 737 (1978) (child diagnosed as requiring psychiatric treatment); In re Rotkowitz, 175 Misc. 948, 25 N.Y.S.2d 624 (1941) (child suffering from an emotional disturbance); Mitchell v. Davis, 205 S.W.2d 812 (Tex.Civ.App.1947) (child seriously ill and life was endangered); In re Welfare of Price, 13 Wash.App. 437, 535 P.2d 475 (1975) (children diagnosed as having tuberculosis and malnourishment and generally not cared for). These cases are a far cry from the one before us where the state seeks to take legal custody of presumably healthy children from their parents because if the children become ill sometime in the future, medical attention will not be provided. We further do not understand the emphasis that D.E.S. and the Court of Appeals place on the state requesting only legal custody and not physical custody of the Drew children. As we understand the meaning of legal custody, the state could come into the home at any time, monitor any and all activities of the children, veto any actions of the natural parent, prescribe behaviors, food, clothing, and administer discipline, etc. Legal custody would give the state all the rights of parenthood and virtually make the natural parents’ home a foster home from which the children could be removed if cause were found by the caseworker. We turn now to the element of religious freedom in the instant case. Dur ing the single interview of Mrs. Drew, she stated that she believed in miracles and that God’s will should be done. She said that if any of the other Drew children got sick she would not take them to a doctor. It is Mrs. Drew’s religious beliefs that would prevent her from procuring medical attention for the children. The first amendment to the United States Constitution and Ariz.Const. Art. 20 guarantee religious freedom. Perfect religious toleration is qualified by Ariz.Const. Art. 2, § 12. Beliefs are absolutely protected, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), whereas practices are not absolutely protected. “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children * * Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645, 654 (1944). But as Prince indicates, when discussing religious freedoms and the state’s interest in providing for the welfare of children, the “accommodation between these freedoms [of religion] and an exercise of state authority always is delicate.” 321 U.S. at 165, 64 S.Ct. at 441, 88 L.Ed. at 652. The Prince court concluded that its ruling did not extend beyond the facts of the case. If there is a direct collision of a child’s right to good health and a parent’s religious beliefs, the parent’s rights must give way. See In re Sampson, supra. All the evidence indicates that the Drew children are in good health. There is not a direct collision of rights and, therefore, no need to supersede the religious practices of the Drew family. D.E.S. concedes that it should not and does not consider religion in instituting dependency proceedings. In the instant case D.E.S. is seeking to have only the Drew children declared dependent. Yet the D.E.S. caseworker admitted not knowing if the state intends to request dependency status for all the children who live in Miracle Valley. Indeed, the initial plan refers to all the “members of the group [who] have signed forms with the school stating that medical treatment would not be permitted” for their children. In balancing the interests of religious freedom, see Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), we will not interfere with a parent’s fundamental right to the custody of his or her child if providing medical care is contrary to the parent’s religious beliefs and there is no known medical danger. It is noteworthy that our Legislature has expressly provided that the failure of Christian Scientists to follow traditional medical procedures is not to be interpreted as abuse. We cannot imagine that the Legislature would give preferential treatment to one religion over another because one is perhaps more established and thus more acceptable than another. Again we emphasize that if we were faced with an actual illness of one of the Drew children, the scales would have tipped and religious freedoms would be forced to yield. Because of the delicate nature of these cases, we add that other factors may weigh in favor of the state in inducing us to declare these children dependent. Had there been a genetic predisposition to an illness or the strong suggestion that other children would fall ill, In re Heinemann’s Appeal, 96 Pa. 112, 42 Am.Rep. 532 (1880), the state may have won the day. Each case must by necessity be decided on its own facts. In re Karwath, 199 N.W.2d 147 (Iowa 1972). The Pennsylvania Supreme Court has addressed the issue of state procurement of medical attention over parental religious objections. A child who suffered from curvature of the spine lived with his mother. The child was unable to stand or ambulate and could become totally bedridden as time passed. The child’s mother was a Jehovah Witness and would not consent to the child undergoing a corrective operation. The Pennsylvania court found that although the operation was not necessary to save the child’s life, it would have been beneficial and held: “that as between a parent and the state, the state does not have an interest of sufficient magnitude outweighing a parent’s religious beliefs when the child’s life is not immediately imperiled by his physical condition.” In re Green, 448 Pa. 338, 348, 292 A.2d 387, 392 (1972) (emphasis in original). We cannot say that if we were presented with these facts we would deny dependency. The facts in Green are certainly more compelling than those before us and illustrate the reluctance of courts to permit state intrusion. We further note the Green case calls into question the vitality of In re Heinemann’s Appeal, 96 Pa. 112, 42 Am. Rep. 532 (1880), cited by the Court of Appeals. We emphasize that the state is not without remedy in this matter. D.E.S. has broad supervisory powers. As this case demonstrates, D.E.S. may investigate a family if there is reason to believe a child may be endangered. In this instance, D.E.S. was alerted by Therial’s death to a possible problem concerning the welfare of the other children. D.E.S. properly visited the Drew residence to asséss the situation and determine whether the other children were fed, clothed, and adequately supervised. D.E.S. retains this supervisory power. It may continue to keep a close eye on the progress of the Drew children. Because of the special circumstances of this case, D.E.S. may be prompted to investigate by something less than would be necessary in a typical situation. An absence from school, a teacher’s notification, or a report from a neighbor or other source may permit D.E.S. to inquire further into protecting the welfare of the children. If D.E.S. does compile more information warranting state intrusion into the Drew family, it may again institute dependency proceedings. We agree with Judge Hathaway’s dissent in the Court of Appeals’ opinion, 133 Ariz. 169, 650 P.2d 471 (Hathaway, J., dissenting), that the holding of the majority would have been subject to possible misuse. We find that the evidence is not sufficient for a finding of dependency. We vacate the opinion of the Court of Appeals and affirm the juvenile court’s dismissal of the state’s petition. HOLOHAN, C. J., and HAYS, CAMERON and FELDMAN, JJ., concur. . “ ‘Dependent child’ means a child who is adjudicated to be: “(a) In need of proper and effective parental care and control and has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control. “(b) Destitute or who is not provided with the necessities of life, or who is not provided with a home, or suitable place of abode, or whose home is unfit for him by reason of abuse, neglect, cruelty or depravity by either of his parents, his guardian, or other person having custody or care. * * * ” . “Burden of Proof “(a) The burdens of proof in juvenile proceedings, other than transfer hearings, shall be: “(1) Beyond a reasonable doubt, as to a delinquency matter involving criminal offenses and incorrigibility; and “(2) By preponderance of the evidence, as to all other types of actions.” . See Note 1, supra. . The miscitation by the Court of Appeals is understandable. A.R.S. § 8-201 was amended by the Legislature twice within two days. . This Court recognizes that the word “family” is also a fluid term. In light of the increasing number of divorces and remarriages the definition of “family” is changing. . We do not think a twenty-minute interview would satisfy A.R.S. § 8-546.01(C)(3)(b) which requires “a prompt and thorough investigation.” (Emphasis added.) . It is not part of the record before this Court if criminal charges have been brought against Mr. or Mrs. Drew because of Therial’s death. . See A.R.S. § 8-531(8). Although this definition appears under the article entitled “Termination of Parent-Child Relationship” it offers us guidance on what the Legislature intended legal custody to encompass. . We do not frown on the arrangement of leaving physical custody with the parents where state intrusion into the privacy of a family is warranted. . This Court is not ignoring Mr. Drew. Apparently on the only visit to the Drew residence Mr. Drew was not home. . “First. Toleration of religious sentiment “First. Perfect toleration of religious sentiment shall be secured to every inhabitant of this State, and no inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same.” . “§ 12. Liberty of conscience; appropriations for religious purposes prohibited; religious freedom “Section 12. The liberty of conscience secured by the provisions of this Constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State. No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment. No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.” . After investigating a case D.E.S. prepares an “initial plan” which states the reason for their services to a family, the family’s background, the plan to provide services to the family, and recommendations. . A.R.S. § 8-201.01: “Prohibition “Notwithstanding any other provision of this chapter, no child who in good faith is being furnished Christian science treatment by a duly accredited practitioner shall, for that reason alone, be considered to be an abused, neglected or dependent child.”

GORDON, Vice Chief Justice: Petitioner David J. Korman brings this special action from a contempt finding against him by the respondent judge. Having taken jurisdiction under Ariz. Const. Art. 6, § 5(1), we vacate the jail sentence imposed on petitioner. Petitioner’s wife filed for a dissolution of their marriage in February, 1981. In connection with the dissolution proceeding, she made several discovery requests with which petitioner did not comply. Petitioner’s wife then obtained court orders compelling discovery, but petitioner failed to fully comply with these orders. Finally, petitioner’s wife filed a motion to compel discovery and requested sanctions against petitioner. The respondent judge granted the motion on March 10, 1982 and ordered petitioner to pay his wife $500 for attorney’s fees incurred in bringing the motion. Respondent gave petitioner until April 30, 1982 to pay the money. Petitioner did not pay, and his wife petitioned on May 10,1982 for an order to show cause why he should not be held in contempt for nonpayment. A hearing took place on June 2, 1982. Respondent found petitioner in contempt and ordered him to serve a 30 day jail sentence. When asked by petitioner’s counsel if the contempt could be purged by payment of the $500 due, respondent replied, “The time to purge was when I ordered him to pay.” Respondent then added, “I made that order * * * not as a hammer to get $500.00,1 made it because of the offense to this Court, not [petitioner’s wife’s counsel], not [petitioner’s wife], but the dignity of this Court. The time to pay it was when he was ordered to pay it.” Petitioner was allowed to bring a motion for rehearing on June 3. It is uncontested that petitioner did pay the $500 on June 2. At the June 3 rehearing, respondent made the following remarks concerning petitioner’s attempt to purge himself of the contempt: “I found yesterday, and I still find today that there was an order entered that was clear in its terms requiring a specific act to be performed by a specific time; that act was the payment of money. I found further that as of yesterday that act hadn’t been done. “And I further found yesterday and find today that the act wasn’t done, despite in my view of the evidence the ability to do the act. And I specifically found yesterday that Mr. Korman had the ability to pay $500; to obtain that amount of money by that time. “Now as a result I found that he was in contempt. And that is an indirect civil contempt. “In consequence of that I ordered that he serve a term in the County Jail, and did not in my discretion give him the option of purging himself, because it is not my judgment that I should be a bill collector. And I imposed that term as a punitive measure clearly. And I reiterate, it is not my intention it be remedial, except to the extent that punishment may have some remedial effect. But clearly I intended it as punishment. * * * * * # “Yesterday was the day to bite that apple once. Today is the day to bite the bullet. I don’t give you another bite of the apple. ****** “ * * * I don’t think I have to grant a right to purge as a matter of law. I think I have discretion to do what I did. “If it will assist you, and I suspect it will assist you, I did what I did, because I believe I have a right to do it. I made the findings I made. It is a civil contempt, an indirect contempt.” (Emphasis added.) (Reporter’s Transcript). Respondent stayed the commencement of the sentence to allow petitioner to bring a special action. Petitioner did so arguing that because the contempt was a civil contempt, he had an absolute right to purge himself. We agree. Before addressing the merits of petitioner’s claim, we note that his wife has been improperly named as the real party in interest as she has no legally cognizable interest in this special action. Because she has received the $500 petitioner was ordered to pay, she no longer has a legal interest in petitioner’s incarceration for civil contempt. If the contempt was criminal, she would still have no interest in this action as the petitioner’s release from criminal incarceration would not affect any right of hers. Thus, she should not have been named as real party in interest, and a response should not have been filed on her behalf to oppose petitioner’s petition. Returning to the merits of the case, this Court stated in Ong Hing v. Thurston, 101 Ariz. 92, 416 P.2d 416 (1966): “Contempt has been broken down into four classifications: criminal contempt is the commission of a disrespectful act directed at the court itself which obstructs justice, * * * civil contempt is the diso-beyance of a court order directing an act for the benefit or advantage of the opposing party to the litigation, * * * direct contempt is an act committed in the presence of the court or so near thereto as to obstruct the administration of justice, * * and constructive or indirect contempt is an act committed outside the presence of the court, * * *.” Id. at 98, 416 P.2d at 422. A failure to pay attorney’s fees owed as a result of a court order to the opposing party is a constructive contempt. In re Quan, 39 Ariz. 13, 3 P.2d 522 (1931). Such a contempt, as is often the case, may be civil and/or criminal depending on the facts of the case. See Ong Hing, supra. In the instant case, there is no doubt that the respondent judge held petitioner for an indirect, civil contempt. The facts would support a finding of civil contempt, and respondent twice expressly stated in the quoted excerpt that he had found an indirect, civil contempt. Although respondent made some remarks consistent with a finding of criminal contempt, we have no reason to doubt that he was aware what he was doing when he characterized the contempt as civil in nature. The distinction between criminal and civil contempt is essential to a resolution of this case. “[Ijmprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court’s order. “For example: If a defendant should refuse to pay alimony, * * * he could be committed until he complied with the order. * * * If imprisoned, as aptly said in Re Nevitt, 54 C.A.A. 622, 117 Fed. 451, ‘he carries the keys of his prison in his own pocket.’ He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 442, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806 (1911) (emphasis added). A criminal contempt is found solely for punishment purposes, Gompers, and nothing the contemnor can do will free him or her before the term of confinement imposed has run. It is apparent from reading the last paragraph of respondent’s quoted June 3 remarks that he believed that he had the discretion to continue imprisonment in a civil contempt case even though the contemnor obeyed the relevant court order when faced with a jail sentence. A continued sentence under such circumstances would be punitive only. But the purpose of finding a person in civil contempt is to coerce that person to do or refrain from doing some act. If the means of the coercion, either a jail term or a cumulative fine, cannot be removed by compliance with the court’s order, the coercive effect of a civil contempt finding will be weakened. A contemnor who cannot change his or her position by complying with the court’s order will have no motive to comply. Therefore, we will continue to follow the rule of Gompers, i.e., a civil contemnor is always purged of the civil contempt and coercive force when he or she complies with the court’s order. A contempt finding intended solely for the purpose of imposing punishment must be a criminal contempt finding. In the instant case, then, petitioner purged himself of the civil contempt and jail sentence when he paid the $500 as previously ordered by the court. Because petitioner was found to be in civil contempt, respondent cannot require petitioner to serve the jail term solely for punitive purposes. Of course, nothing we have said in this opinion would preclude a criminal contempt prosecution against petitioner under Ariz.R.Crim.P. 33. In an indirect, criminal contempt case however, petitioner would have additional rights, e.g., the right to notice that he faces a criminal rather than a civil charge and the right to require the proof against him to be beyond a reasonable doubt. The prayer for relief is granted and the jail sentence is vacated. HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.

OPINION OGG, Judge. This is a wrongful death action arising out of an accident which occurred when Koy Grant was electrocuted while working for Kensington West-Mayo Construction Company at a City of Phoenix storm sewer construction site. Death was caused when a fellow employee inadvertently pulled a tag line from a crane into contact with a high voltage line of the appellant/defendant, Arizona Public Service Company (APS). Koy Grant was killed when the electric current ran down the crane’s cable to where Grant was working in contact with the cable at the bottom of the excavation site. Appellee/plaintiff, Sharon Grant, the surviving spouse, on behalf of herself and her two sons, filed a complaint against APS. The case was tried to a jury and the court entered judgment on the verdict in the amount of $1,000,000 in favor of Sharon Grant and $250,000 to each of her two sons. The motions of APS for a directed verdict and for a new trial were denied, and APS filed this appeal. APS submits the following issues for review: (1) Whether it was reversible error to deny APS’ motion for a directed verdict. (2) Whether it was reversible error to give certain instructions and to refuse to give a contributory negligence instruction and others. (3) Whether reversible error was committed in the admission and rejection of evidence. (4) Whether pervasive misconduct of plaintiff’s counsel deprived defendant of a fair trial. (5) Whether, under the circumstances of this case, the failure to require plaintiff to identify her exhibits in advance of trial was error. We find the cumulative error was sufficient to deny APS a fair trial and we reverse and remand for a new trial. APS’ MOTION FOR A DIRECTED VERDICT APS contends that its motion for summary judgment made before trial and motions for directed verdicts made at the close of the plaintiff’s case and at the close of all testimony should have been granted. APS argues that where it was given no notice that the crane would be set up at the accident location, it had no duty to de-energize the lines. APS presents a further argument that the proximate cause of the accident was the action of the contractor and the crane crew when all were aware of the dangers of the energized line but nevertheless moved the crane into close proximity to the line without any protective steps. In this appellate review, we must view the evidence and the inferences to be drawn therefrom in the light most favorable to sustaining the jury verdict and judgment of the trial court. Lane Title and Trust Co. v. Brannan, 103 Ariz. 272, 440 P.2d 105 (1968). This court, in the recent, similar case of Mason v. Arizona Public Service Co., 127 Ariz. 546, 622 P.2d 493 (App.1980), set out the duty of a distributor of electric power as follows: A distributor of electric power must take precautions commensurate with the dangers involved whenever it is to be reasonably anticipated that persons may come into contact with its lines. ... A warning alone may not be sufficient. (Citations omitted) 127 Ariz. at 551-52, 622 P.2d at 498-99. In the case of Arizona Public Service v. Brittain, 107 Ariz. 278, 486 P.2d 176 (1971), the Arizona Supreme Court held that the duty of a distributor of electric power is established by the foreseeability of harm. Applying these legal principles to the facts, we find no error in the trial court’s refusal to grant the APS motions for summary judgment and for a directed verdict. The extensive exhibits and volumes of testimony produced by Grant in presenting plaintiff’s case furnished an adequate foundational basis for the testimony of Dr. Robert Nabours, industrial engineer. This foundational testimony together with the testimony of this expert witness was sufficient to warrant the submission of this case to the jury. Dr. Nabours testified that in his expert opinion, APS knew of the hazard and did not fulfill its duty to protect against it. He specifically stated that: “It is my opinion that the handling of the difficulty with regard to the construction at 15th Avenue and Watkins was not responsive to a safe and reasonable approach to the satisfaction of the public utility in regard to de-energizing or rubbering-up or rerouting its lines in order to reduce the hazard.” INSTRUCTIONS ISSUE APS alleges error in the giving or failure to give numerous instructions. Jury instructions will not be considered “piecemeal” on appeal but must be considered as a whole, the test being whether, upon the whole jury charge, the jury was given proper rules of law to reach a correct decision. Arizona Public Service Company v. Brit-tain, supra. Viewing the instructions as a whole, we find error. It appears the instructions submitted by both parties to the trial court were somewhat slanted as is often the case in hotly-contested negligence actions. We will not attempt to go through all the instructions but will concentrate our analysis on two important instruction issues. Initially we examine the instruction on the basic duty of APS in this case. This instruction, given over the objection of APS, is from the court’s instruction sheet 18 and reads as follows: Arizona Public Service Company in the distribution of high voltage electrical current by means of uninsulated lines suspended above the public streets of the City of Phoenix where the public and others in performance of their work have the right to and may reasonably be expected to go, is under a duty to safeguard the public against injury arising from its operations to the extent of requiring reasonable care to correct or remove the cause of danger if reasonably foreseeable and known to the company. A power company must anticipate and guard against events which may reasonably be expected to occur. A power company must exercise reasonable care for the protection of the lives of others, and to do that which would give reasonable promise of preserving life regardless of the difficulty or expense. In the observance of such duties the degree of care increases as the danger increases. While this instruction has some correct statements of law, it is misleading. That portion of the instruction, “where the public and others in the performance of their work have the right to and may reasonably be expected to go” is not an accurate statement of the law as applied to the facts. The public and others normally have no right to be 35 feet above the ground in close proximity to energized APS power lines without prior notice to APS. The comment in the instruction that a power company must “do that which would give reasonable promise of preserving life regardless of the difficulty or expense” (emphasis added), has no basis in Arizona law and was prejudicial to APS. A power company is not an insurer against accidents or injuries resulting from contact with its transmission wires. Salt River Valley Water Users Association v. Compton, 39 Ariz. 491, 8 P.2d 249 (1932). In the retrial of this case, the general duty as set forth in the cases of Arizona Public Service v. Brittain, supra, and Mason v. Arizona Public Service, supra, would be more appropriate guidelines in formulating a basic duty instruction. The second instruction issue we will discuss is the failure of the court to give the APS proposed RAJI instructions designated as Defendant’s Instructions 4, 6, 7 and 14, all dealing with contributory negligence. The trial court did instruct on assumption of risk but refused to instruct on the doctrine of contributory negligence. Grant argues there is no evidence of contributory negligence, and further, that APS’ defense theory was adequately presented to the jury by the instructions given on assumption of risk. APS argues that under the Arizona Constitution, art. 18, § 5, the court erred in not presenting such an issue to the jury. Article 18 § 5 reads: “The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.” If there is any basis for a finding of contributory negligence, such issue must go to the jury. Scott v. Scott, 75 Ariz. 116, 252 P.2d 571 (1953). Where there is no basis in the evidence on the issue of contributory negligence, the issue should not be submitted to the jury. Humphrey v. Atchison, Topeka and Santa Fe Ry., 50 Ariz. 167, 70 P.2d 319 (1937); Pinewood Dev. Co. v. Truman, 20 Ariz.App. 544, 514 P.2d 497 (1973). Initially, we note that although the defenses of contributory negligence and assumption of risk frequently overlap, such defenses are not synonymous or mutually exclusive, but are rather independent, separate and distinct defenses. The distinction between the two defenses is that the assumption of risk defense rests upon the voluntary consent of the plaintiff to encounter the risk and take his chances, while contributory negligence rests upon his failure to exercise the care of a reasonable, prudent man. Where the plaintiff voluntarily consents to an unreasonable risk, both defenses may be available to the defendant. See Restatement, Second, Torts § 496A, comment d. It is clear that the distinction embodied in the Restatement between such defenses has been recognized by the Arizona appellate courts. McGriff v. McGriff, 114 Ariz. 323, 560 P.2d 1230 (1977); Hildebrand v. Minyard, 16 Ariz.App. 583, 494 P.2d 1328 (1972). From our review of the transcripts, we find it was error for the court to refuse to instruct on contributory negligence. The record is clear that the deceased and all members of the crane crew were aware of the extreme danger in operating a crane pile-driving operation in close proximity to the power line. The decedent voluntarily engaged in work activities when the crane was in close proximity to the energized line, and knew that such work involved direct contact with metal sheets being lifted by the crane. There was no evidence presented that the decedent or the crew used adequate safety precautions; that the decedent ever suggested that the work cease until safer conditions were furnished; or that he refrained from contact with the metal structure during the time the crane apparatus was moving near the energized line. There was sufficient evidence to go to the jury that decedent did not act as a reasonable, prudent man, and the issue of contributory negligence should have been presented to the jury. ADMISSION AND REJECTION OF EVIDENCE ISSUE APS contends that it was error to admit Plaintiff’s Exhibit 22 into evidence over the defendant’s objection. Exhibit 22 is a letter from APS employee Fred Lindy to a fellow employee, Dennis O’Reilly, containing a summary of incidents wherein contact had been made with the company’s power lines. APS now argues that the exhibit was irrelevant because there was no evidence about how or where the incidents occurred. APS alleges the report included contacts with electrical lines above and below ground by rods, poles, pipes, crane or high-rise equipment, antennas, airplanes and other miscellaneous contacts under a variety of unexplained circumstances. APS contends there was never a proper foundation laid to show these 124 incidents occurred under similar circumstances or that they involved cranes, accidents or acts of negligence. See Slow Development Company v. Coulter, 88 Ariz. 122, 353 P.2d 890 (1960). APS further complains that the error in admitting Exhibit 22 was compounded by repeated reference to 124 “accidents” or “acts of negligence” by plaintiff’s counsel. Although there appears to be merit in the argument now made on appeal,- the only objection made at trial to the admission of Exhibit 22 was: “I object, Your Honor, irrelevant.” There was no objection made pointing out what specific incidents were not relevant. It is clear that some of the similar crane-wire contacts were relevant to establish the knowledge of APS to the dangers involved in this case, and such evidence was therefore admissible on the issue of foreseeability. Slow Development Company v. Coulter, supra. A trial court has broad discretion in determining the relevancy and admissibility of evidence. City of Phoenix v. Boggs, 1 Ariz.App. 370, 403 P.2d 305 (1965). Error on appeal cannot be predicated except on grounds urged in the objection. Pioneer Constructors v. Symes, 77 Ariz. 107, 267 P.2d 740 (1954), and if error is not raised below, it cannot be raised on appeal. Cooper v. Holder, 24 Ariz. 415, 210 P. 690 (1922). We find no reversible error in this issue. Although we find no error in the admission of Exhibit 22, we do find error in the manner in which plaintiff’s counsel used the contents of the exhibit in argument to the jury. This matter will be discussed later under the misconduct of counsel issue. APS next argues that it was error and highly prejudicial for the trial court to admit Plaintiff’s Exhibit 119 into evidence. Exhibit 119 was the financial statements of APS showing the substantial assets and wealth of APS. APS contends there was no evidence of willful and wanton misconduct that would justify the imposition of punitive damages. Appellee Grant argues that where willful and wanton conduct is shown, the defendant’s financial condition then becomes relevant on the issue of punitive damages. Grant contends there was sufficient evidence to submit such an issue to the jury and in any event, such issue is moot because the jury did not award any punitive damages. In general, the purpose of punitive damages is to punish a wrongdoer. The wealth or financial status of the wrongdoer therefore becomes relevant to enable the jury to impose a proper punishment. Nielson v. Flashberg, 101 Ariz. 335, 419 P.2d 514 (1966). To determine wanton negligence, the acts of a defendant must be considered as a whole, and although each of several acts standing alone might not exceed the bounds of ordinary negligence, such acts when taken together may establish wanton negligence. Where the evidence discloses several acts of negligence, it is a matter for the jury to determine whether gross or wanton negligence has been established. Southern Pacific Transportation Company v. Lueck, 111 Ariz. 560, 535 P.2d 599 (1975). It is not necessary that wanton negligence be established conclusively but evidence on such issue must be more than slight and may not border on conjecture. De Elena v. Southern Pacific Company, 121 Ariz. 563, 592 P.2d 759 (1979). In applying these legal concepts to the facts, we find this to be a close question. There was evidence that APS was aware of a dangerous situation and that APS failed to adequately monitor the work and take proper precautions to prevent the contact with energized wire at the construction site. We cannot say the trial judge erred in submitting the issue of wanton negligence to the jury. MISCONDUCT OF COUNSEL ISSUE During this three week trial, there were repeated motions for a mistrial based upon the misconduct of plaintiff’s counsel, Charles M. Brewer, and there are eighty-nine separate assignments of misconduct alleged during the closing arguments of plaintiff’s counsel. For the purposes of this appeal, we will concentrate upon what we consider to be the most important and flagrant assignments of misconduct that occurred in the closing arguments of plaintiff’s counsel. Initially, appellee Grant argues that most of the alleged instances of misconduct should not be reviewed because APS waived such conduct by a failure to make a timely objection. Where counsel does not make a timely objection or ask for a mistrial until after the verdict is rendered, counsel has been deemed to have waived any objection as to misconduct of counsel in closing arguments. Collins v. Dilcher, 104 Ariz. 221, 450 P.2d 679 (1969); Bruno v. San Xavier Rock & Sand Co., 76 Ariz. 250, 263 P.2d 308 (1953). Our review of the record discloses that APS properly preserved a record on this issue. Near the beginning of plaintiff counsel’s closing argument to the jury, he inferred that this accident was only one of a family of 124 accidents. At that point, counsel for APS objected as follows: Excuse me, Your Honor. That is improper. There is nothing in the record to indicate in 1969 or concerning anything other than— THE COURT: Overruled. There will be no further interruptions during closing argument. The rules prohibit it. From that point on, counsel for APS understandably sat silent rather than antagonize the court and jury. Immediately at the close of plaintiff counsel’s oral argument, counsel for APS moved for a mistrial, citing numerous specific instances of misconduct now raised on appeal. Under such facts, we find no waiver. In reviewing such allegations of misconduct, reversals are sparingly granted, based upon improper argument to the jury. Counsel may not only argue the facts presented by the evidence, but also any reasonable inferences to be drawn from such facts. Pelayo v. Bell, 13 Ariz.App. 418, 477 P.2d 537 (1971). Courts of Arizona allow wide latitude to counsel in arguing their case to the jury. City of Phoenix v. Boggs, 1 Ariz.App. 370, 403 P.2d 305 (1965). On the other hand, the introduction of evidence or the pursuit of a line of argument which has no bearing on the alleged wrong but which serves only to prejudice the jury, has been held to be grounds for reversal. Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967). The court in Elledge stated: “... we find it is imperative that the defense be offered an opportunity for a trial free from the admission of irrelevant and highly prejudicial evidence, improper questions and remarks.” 102 Ariz. at 340, 429 P.2d at 452. See also Sanchez v. Stremel, 95 Ariz. 392, 391 P.2d 557 (1964). Applying these principles of law, we will now proceed to examine some of the specific instances of alleged misconduct. There was evidence presented in trial indicating that during a certain time period, there had been 124 prior incidents of all kinds where contacts had occurred with energized power lines. These incidents ranged from contact with electric lines by antennas to airplanes and some contacts of an unexplained nature. Some of the contacts resulted in injury and some involved fatalities. There was no showing that all of such contacts were similar, were in fact “accidents”, or were caused by the negligence of APS. Yet plaintiff’s counsel re peatedly emphasized such matters and referred to such incidents as: “. .. a hundred twenty-four accidents, I imagine 140 now . . . “And the reason I’m going to 1969 with these figures and forward was because of these contacts, contacts, acts of negligence”; “I want you to straighten these people out once and for all so they don’t have number 125”; “A hundred twenty-four deaths”; “But I want to penalize them and stop them from doing this so there won’t be 125 or 126.” We find nothing in the evidence or reasonable inferences to be drawn therefrom that would justify such statements. The record is also replete with instances where counsel for the plaintiff expressed personal opinions with no evidence of such matters in the record. As an example of this type of misconduct, plaintiff’s counsel, while referring to the widow Sharon Grant, commented: “This woman has never had a date, never going to get married.” Such a comment is highly prejudicial in such a wrongful death action where a defendant is prohibited from delving into any prospects for a remarriage. Another such example is the following statement: “These are the people with the billion dollars. But they said it ain’t dangerous do it.” (emphasis added). There is nothing in the evidence to justify the underlined portion of such a statement, and it is in fact a misstatement of the evidence. In assessing the total impact of such misconduct together with the other error set forth in this opinion, we find that the defendant APS was denied a fair trial. FAILURE TO TIMELY IDENTIFY EXHIBITS ISSUE As to the final issue, APS argues that it was denied a fair trial because plaintiff was not required to comply with the rules of procedure and identify all trial exhibits pri- or to trial. At this point in time, all parties are now familiar with the exhibits, and this issue should not arise again in retrial. We therefore will not lengthen this opinion by further discussion of this issue. Reversed and remanded. ROBERT J. CORCORAN, Judge, concurs. NOTE: The Honorable ROBERT J. COR-CORAN was authorized to participate in this case by the Chief Justice of the Arizona Supreme Court pursuant to Ariz. Const, art. VI, § 3. . Rule 51(d), Arizona Rules of Civil Procedure, reads: “Interruption of counsel in argument will not be permitted, except for the purpose of raising a question of law.”

OPINION BROOKS, Judge. This is an appeal from a juvenile court order which severed the parental rights between appellant and her two minor children. The termination order was based upon the trial court’s finding that appellant, the natural mother, had abandoned her children and had made no effort to maintain a parental relationship with the children in accordance with A.R.S. § 8-533(B)(1). On appeal, the mother argues that the statutory ground of abandonment was not satisfied where she consistently asked for the return of her children and where the finding of abandonment was based upon her refusal to submit to the terms of the integration plan designed to return the children from a foster home to her custody. She also contends that the trial court erred in admitting, over objection, a previously dismissed dependency petition together with various reports and photographs relating to that petition. Finally, she argues that the trial court’s order of termination was not supported by the evidence. Extensive findings of fact were entered by the trial court which, with some amplification from the record, succinctly frame the issues on appeal. They reflect that appellant is Korean and was living in Korea when she married an American serviceman and bore their first child, a daughter, on December 6, 1973. They moved to Glendale, Arizona, where their son was born on December 29, 1975. Marital difficulties ensued and they were divorced in 1977. On January 28, 1977, a dependency petition was filed as to the daughter based upon an alleged incident where the mother beat the daughter with a wooden toy. On May 2, 1977, the child was found to be dependent, was made a ward of the court and was committed to the care, custody and control of the Arizona Department of Economic Security. In January of 1978, the daughter was returned to appellant and on July 24, 1978, the petition was dismissed with home monitoring to be conducted by the Department of Economic Security. On April 3, 1979, a dependency petition was filed as to each of the children alleging emotional difficulties of the mother which constituted risks to the children. On November 8, 1979, the children were made wards of the court and were placed in the care, custody and control of the Department of Economic Security which then placed them in a licensed foster home. When the children were taken from the mother in April, 1979, they had to be removed by the police who were held off by the mother armed with a hatchet and knives, for more than an hour. As a result of this incident, the mother was placed on probation but her probation was revoked and she was incarcerated from approximately December, 1979 until December, 1980. During that period, she was given psychiatric evaluations which, as described by the trial court, varied in diagnosis from “adjustment to adult reaction” to “full blown psychosis.” Finally, she was given medication which produced a dramatic positive effect in her mental condition and led to her release from the Maricopa County Hospital. During this time, however, she had developed a deep distrust of psychologists, psychiatrists and social workers which, with limited exceptions, led to a total refusal to see them or cooperate with them during 1980 and early 1981 in their attempt to make evaluations of her ability to be reunited with her children. In January, 1981, appellant was evaluated by Dr. Bencomo, a psychiatrist, who found that she suffered no mental disorder or emotional disturbance which would impair her ability to parent two normal children. Dr. Benco-mo advised her to cooperate with the Department of Economic Security caseworkers in a plan for returning the children. The psychologist who had evaluated the children found that the daughter’s personality was “fragile” based, in large part, upon a significant fear of her mother, and that the son did not remember his mother. A reintegration plan was developed in March of 1981 between the caseworkers, the children’s psychologist and the attorney for the Department of Economic Security. This plan was designed as a “minimal plan” to protect the children from eminent psychological harm which would be caused by merely thrusting them back into their mother’s custody without safeguards. The plan consisted of the following requirements: 1. The mother was to visit the children before their return on as many occasions as necessary to reacquaint the parties and ease the daughter’s fears; 2. The mother was to meet with a caseworker and the children’s therapist prior to the return of the children to discuss and orient her to the children’s present status and needs; 3. The mother was to involve herself and the children with the children’s therapist after their return so as to ease and monitor reorientation; 4. There was to be regular, in-home monitoring by the caseworker after the children’s return; 5. There was to be regular contact between the mother and a member of her choosing of the Korean community to alleviate isolation and provide support; and 6. The natural mother was to provide a home and support for the children. This plan was communicated to the mother through her attorney and a conference was arranged for May 5,1981 in order that the trial court could explain the plan. The conference was held but the mother refused to submit to the plan and demanded the immediate and unconditional return of her children. She had not seen the children since March, 1980 and had made no attempts whatsoever to make contact with them. Based upon the mother’s refusal to cooperate, the Department of Economic Security filed a petition to terminate her parental rights, alleging abandonment and failure to maintain a parental relationship with the children. A three day hearing was held on the petition at which time evidence supporting the above facts was presented. The court concluded that the allegations of the petition were satisfied and terminated the parental relationship pursuant to A.R.S. § 8 — 533(B)(1) by order dated November 9, 1981 and this appeal followed. Appellant’s first argument is that the trial court could not find abandonment based upon the mother’s mere refusal to acquiesce in the plan prepared by the Department of Economic Security. She claims that because she attended all court hearings and consistently asked for the return of her children, the requisite showing of an intentional relinquishment of her parental claims or a conscious disregard of the obligations owed by a parent to a child were not established. Under the facts of this case, we disagree. Unquestionably, parents have a fundamental liberty interest in the care, custody and management of their children. Santosky v. Kramer, - U.S. -, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). However, this right is not absolute and, where the welfare of a child is seriously jeopardized, the state must act on behalf of the child. In the Matter of the Appeal in Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 650 P.2d 459 (1982). A.R.S. § 8-533 establishes the grounds for termination of parental rights in Arizona. Included in the grounds for termination is evidence that the parent has abandoned the child or that the parent has made no effort to maintain a parental relationship with the child. “Abandoned” is defined in A.R.S. § 8-201(1) as “the failure of the parent to provide reasonable support and to maintain regular contact with the child, including the providing of normal supervision.” The definition goes on to state that “[fjailure to maintain a normal parental relationship with the child without just cause for a period of six months shall constitute prima facie evidence of abandonment.” Terms such as “reasonable support” and “normal parental relationship” are of necessity imprecise and the concept of “abandonment” has been judicially recognized to be somewhat elastic. Ultimately, questions of abandonment and intent are questions of fact for resolution by the trial court. Anonymous v. Anonymous, 25 Ariz.App. 10, 540 P.2d 741 (1975). The gravaman of the statute is whether the evidence shows “intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.” 25 Ariz.App. at 12, 540 P.2d at 743; accord, In the Matter of the Appeal in Pima County, Juvenile Action No. S-139, 27 Ariz.App. 424, 555 P.2d 892 (1976); Matter of Appeal in Maricopa County, Juvenile Action No. JS-4130, 132 Ariz. 486, 647 P.2d 184 (App.1982). Here, although appellant expressed a subjective desire for the return of her children, she refused for a period of more than six months to have any contact with the children or to cooperate in any way with the children’s psychologist or the social worker in protecting the mental health of the children during the attempted reintegration process. While the Department of Economic Security had the responsibility to make all reasonable efforts to preserve the family relationship, Arizona State Department of Economic Security v. Mahoney, 24 Ariz.App. 534, 540 P.2d 153 (1975), its responsibility was not without limits and at some point the mother was required to make a good faith effort to reunite the family. In the Matter of the Appeal in Pima County, Severance Action No. S-110, 27 Ariz.App. 553, 556 P.2d 1156 (1976). Both the children’s psychologist and the mother’s psychiatrist testified that the plan was the minimal state involvement necessary for the mental well-being of the children. This was not a case of potential future harm to healthy children. Rather, the involved children’s mental health was in eminent danger if returned without controls. See In the Matter of the Appeal in Cochise County Juvenile Action No. 5666-J, supra. As was stated in Hernandez v. State ex rel. Arizona Department of Economic Security, 23 Ariz.App. 32, 36, 530 P.2d 389, 393 (1975): In some cases there comes a time when failure to restore the parent-child relationship has to be recognized and it is in the best interest of the child to terminate this relationship and give the child the opportunity to be nurtured in the warmth and security of a loving home. The trial judge found that the state’s plan was necessary, that the mother refused to cooperate and that severance was compelled. We agree that the mother’s conduct constituted abandonment. In this regard, the trial judge stated: There is no question in the Court’s mind that the mother will stubbornly refuse to agree to any of these terms and will do so for the indefinite future. Consequently, the children will have to remain in foster care literally until they are 18 because of her stubbornness. This simply is not in the best interest of the children.... Appellant’s second argument is that the trial court erred in admitting into evidence a prior dismissed dependency petition together with various reports and photographs. As indicated by appellee, however, the only report admitted into evidence to which the mother objected was Exhibit 1, the report of Dr. Allen, the children’s psychologist. Foundation for this exhibit as required by Rule 703, Rules of Evidence, was supplied by Dr. Allen, who testified at the hearing and was cross-examined extensively by appellant’s counsel. The only other objection was to photographs of the daughter taken in January, 1977. The caseworker who was present when the photographs were taken testified at the hearing, identified the photographs, and stated that they fairly depicted the child as she appeared on that day. The photographs were clearly relevant to Dr. Allen’s testimony of the daughter’s fear of her mother and the ultimate need for a reintegration plan. Finally, appellant argues that there was not clear and convincing evidence of abandonment in that neither the court nor the children’s psychologist adequately considered the cultural background of the mother and the children and the mother’s ability to understand the plan. Although Santosky v. Kramer, supra, had not been decided at the time the trial court issued its ruling, the trial court specifically stated that it based its finding on clear and convincing evidence. This court will uphold the trial court’s finding in termination cases unless clearly erroneous. Matter of Juvenile No. J-2255, 126 Ariz. 144, 613 P.2d 304 (App.1980). Here, Dr. Allen was extensively cross-examined as to the cultural background of the children and the mother and concluded that the cultural factors did not alter his conclusion. There was an interpreter present for the mother, she was represented by counsel, and the trial court made every reasonable effort to insure the mother’s understanding of the proceedings. We have reviewed the record and find that the evidence supports the trial court’s findings. Affirmed. JACOBSON, P.J., and CONTRERAS, J., concur. . A.R.S. § 8-533(B)(l) states: Evidence sufficient to justify the termination of the parent-child relationship shall include any one of the following, and in considering any of the following grounds, the court may also consider the needs of the child: 1. That the parent has abandoned the child or that the parent has made no effort to maintain a parental relationship with the child. It shall be presumed the parent intends to abandon the child if the child has been left without any provision for support and without any communication from such parent for a period of six months or longer. If in the opinion of the court the evidence indicates that such parent has made only token efforts to support or communicate with the child, the court may declare the child abandoned by such parent.

HAYS, Justice. Following a jury trial, appellant Frank Nunez Garcia was convicted of first degree murder and sentenced to life imprisonment without possibility of parole for 25 years. Taking jurisdiction pursuant to A.R.S. § 13 — 4031, we affirm the judgment of conviction and the sentence. Garcia was convicted of the murder of Ernest Sanchez. Near midnight on June 7, 1981, Sanchez, somewhat inebriated, was walking to a friend’s home after a Phoenix police officer had told him not to drive his car. En route he was struck repeatedly on the head with a piece of iron water pipe. Sanchez was found by the same officer in a park in the vicinity of 18th Street and Van Burén and taken to Maricopa County Hospital where he died a few hours later. Money which the officer had earlier seen in Sanchez’s wallet was gone. The questions we consider are: 1. Did the trial judge err in issuing a bench warrant to compel Steve Henderson’s testimony at Garcia’s trial? 2. Did the trial judge abuse his discretion in ordering appellant to be fingerprinted during the trial? 3. Was appellant’s trial counsel ineffective? 4. Was it reversible error to admit allegedly hearsay evidence over defense counsel’s objection? Appellant claims the trial court erred and prejudiced him by allowing the state to produce its chief witness in court by means of a bench warrant. He argues the procedure used was illegal and its disturbing effect on the witness, a 15-year-old boy, makes the boy’s truthfulness suspect. We see no merit in this position and appellant cites no authority in support of it. We note that the record indicates that a bench warrant issued but was never executed. It appears to us that the procedure used by the state was completely appropriate. A.R.S. § 12-2211(B) authorizes the issuance of an arrest warrant for a witness who, summoned, fails to appear. It is a long-standing principle that it is essential that courts be able to compel the appearance and testimony of witnesses. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). Even assuming an impropriety in the procedure, we do not see how appellant has standing to raise the question here. If any liberty rights were violated, they were those of Steve Henderson, the prosecution witness, not those of Frank Garcia. Garcia says Steve Henderson’s compelled presence prejudiced him because the circumstances surrounding his testimony might have impugned Henderson’s credibility. The credibility of the witness was for the jury to decide and their determination will not normally be disturbed on appeal. State v. Pike, 113 Ariz. 511, 557 P.2d 1068 (1976). There was no error in the production and presentation of Steve Henderson’s testimony. Appellant urges that the trial judge erred in granting the state’s oral motion to order appellant to give fingerprint exemplars during the trial. He cites 17 A.R.S. Rules of Criminal Procedure, rule 15.2(a)(3), and State v. Asbury, 124 Ariz. 170, 602 P.2d 838 (App.1979), as requiring the state to make a written request for the fingerprints. These authorities concern pretrial discovery and are not applicable here. The fingerprints were sought as identification evidence at the trial, had probative value for that purpose and were, therefore, admissible. State v. Tamplin, 126 Ariz. 175, 613 P.2d 839 (App.1980). The order compelling the fingerprints was not error. Garcia contends he was not given effective assistance of counsel. In Arizona we judge counsel’s performance by determining whether it was so ineffective that the proceedings were reduced to a farce, sham or mockery of justice. State v. Williams, 122 Ariz. 146, 593 P.2d 896 (1979). We have adhered to this standard despite the urging of some that we adopt the “reasonably effective assistance of counsel" test, see Williams, supra, but here, judging by either standard, we do not find ineffective assistance of counsel. Garcia cites two shortcomings of his trial lawyer’s performance. First, he asserts that the lawyer’s cross-examination of Steve Henderson, the state’s chief witness, resulted in an in-court identification of defendant as the killer. The prosecutor, on direct examination, had attempted to elicit the identification from Steve, but Steve seemed nervous and would not identify Garcia. On cross-examination, Garcia’s attorney apparently thought there was a good chance Steve would say Garcia was not the killer. This did not happen, though, and on redirect, the prosecutor finally convinced Steve to say it was Garcia. Steve said he had hesitated since Garcia looked different because his hair had grown. The pipe found at the crime scene bore fingerprints matching Garcia’s. This evidence was already before the jury, so counsel could legitimately have decided there was little advantage to be lost and potentially great advantage to be gained in attempting to have Steve disavow recognition of Garcia. Second, trial counsel did not move to strike the testimony of another state’s witness for lack of foundation. Steve Henderson’s friend, Billy Thompson, testified he also had seen Garcia commit the murder, but he later admitted that, while he had seen the incident, he had been too far away to see who killed Sanchez. Billy said Steve had told him it was Garcia. By not moving to strike Billy’s testimony, defense counsel may have hoped to avoid drawing the jury’s attention closer to it. He may also have wanted to be able to argue in closing that the jury should discredit Billy’s testimony since he could not see who the killer was. In any event, this also was a tactical move which could arguably have had good results. The failures appellant assigns to counsel are both decisions of a tactical nature. Tactical decisions, be they mistakes or not, are not evidence of incompetency. State v. Farni, 112 Ariz. 132, 539 P.2d 889 (1975). In every other respect, counsel’s representation was adequate and competent. He effectively cross-examined, made successful objections and presented a convincing closing argument. There was no ineffective assistance of counsel. Appellant contends his conviction must be reversed because hearsay testimony was erroneously admitted over his objection. The testimony appellant complains of was elicited by the state on redirect examination of Phoenix police officer Klettinger. Officer Klettinger had participated in investigation of Sanchez’s killing and had received a telephone call concerning the crime through the police department’s Silent Witness program. This call provided information making Garcia a suspect. On direct examination of Officer Klet-tinger, the prosecutor asked if information concerning Sanchez’s death had been received through “Silent Witness.” When Klettinger answered affirmatively, defense counsel asked for a bench conference. The conference took place, but was not recorded. Following the conference, defense counsel cross-examined, developing the subject of the “Silent Witness” call. His questions brought out much of the information identifying Garcia as the murderer and also brought out the identity of the caller. On redirect, however, when the prosecutor asked Klettinger to state the exact words spoken by the caller, defense counsel objected that it would be hearsay. The court overruled the objection and the testimony was admitted. Defense counsel apparently had a tactical motive in bringing out the testimony about the “Silent Witness” caller. He had introduced the subject earlier in the trial in cross-examination of another detective, Officer Ontiveros. During that questioning, when the prosecutor objected that it was irrelevant, defense counsel explained the examination was foundation for further questioning. While he did not say so at the time, his later questions indicate he had intended to discredit the “Silent Witness” information by showing it was given in return for a monetary reward. Objections to admission of testimony may be waived, either by failure to assert them or by conduct implying waiver. Where the whole field of examination is opened by defense counsel, he opens the door to further inquiry and may not assign its fruits as error on appeal. State v. Arrio-la, 99 Ariz. 332, 409 P.2d 37 (1965). Here, defense counsel’s conduct in extensively developing the subject of information obtained from the “Silent Witness” caller opened the door for the caller’s exact statement to come in. He thus waived objection to the admissibility of the statement. There was no error in admitting the alleged hearsay testimony. In accordance with A.R.S. § 13 — 4035, we have reviewed the record for fundamental error and have found none. The judgment of conviction and the sentence are affirmed. HOLOHAN, C.J., GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.

GORDON, Vice Chief Justice: Appellant stands convicted of first degree murder, A.R.S. § 13-1105, and first degree burglary, A.R.S. § 13-1508. The trial court sentenced him to death for the murder and to ten years imprisonment for the burglary. We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and A.R.S. § 13-4031. Because of jury misconduct, we reverse the conviction and sentences and remand for a new trial. Other issues likely to recur on retrial are also addressed. The charges are premised on a felony murder at a liquor store in Scottsdale, Arizona. One night, Edgar Kuykendall came out of the back room of the store where he had been cleaning. Across the store, he saw appellant pointing a gun at the victim who was standing behind the register. Kuykendall heard the victim say, “Give me a little time,” as the victim tried to open the cash register. Within a few seconds, appellant fired one shot at the victim which fatally wounded him. Appellant rushed out of the store and ran to a self-service car wash north of the store. Witnesses saw him run from the store, gun in hand, to a truck waiting for him in a car wash bay. He jumped into the passenger side of the truck which was being driven by his accomplice Donald K. Nelson. See State v. Nelson, 129 Ariz. 582, 633 P.2d 391 (1981). The truck pulled out of the car wash and headed north. Two witnesses riding together in a vehicle followed the truck long enough to obtain its license plate number. The witnesses returned to the store and relayed the plate number to Kuykendall who was already on the telephone talking to the police. A description of appellant, his jacket and gun, the truck, and the license plate number was broadcast over the police radio. Within a few minutes, a police officer spotted the truck and stopped it. Appellant and Nelson were returned to the store parking lot. No one recognized Nelson, but the witnesses identified appellant as the man they had seen in or running from the store. Appellant was tried separately from Nelson. Appellant’s defense was temporary insanity brought on by hypoglycemia and the use of alcohol and drugs. This appeal follows from his convictions. JURY MISCONDUCT The jury deliberated over two days. During the night between the two sessions, one juror was told by an unidentified third party that if appellant was found not guilty by reason of insanity, he would go free. This juror passed along this information to the rest of the jury at the next day’s deliberations. A new trial may be granted whenever a juror commits misconduct by “[rjeceiving evidence not properly admitted during the trial.” Ariz.R.Crim.P. 24.-l(c)(3)(i). In this context, “evidence” means any information likely to be considered by the jury in determining the guilt or innocence of the defendant. Thus, the rule encompasses both information received by the jury that could generally be admissible but was not admitted at the trial in question and information that is always in- admissible because it is legally irrelevant, too prejudicial, or the subject of an exclusionary rule or statute. We need first determine whether the instant case fits within the bounds of Rule 24.1(c)(3)(i). In appellant’s case, the information received concerned punishment and the disposition of appellant should he be found insane. Under Arizona law, this information is always inadmissible. See State v. Jensen, 111 Ariz. 408, 531 P.2d 531 (1975). Appellant’s defense was temporary insanity, and a form of verdict for not guilty by reason of insanity was given to the jury. The information came from outside the jury. Under these circumstances, the information received by the juror and transmitted to the rest of the jury is of the type likely to be considered in the guilt-innocence determination. The case, therefore, falls within Rule 24.1(c)(3)(i). When a case falls within Rule 24.-l(c)(3Xi), “the defendant is entitled to a new trial if it cannot be concluded beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict.” State v. Poland, 132 Ariz. 269, 283, 645 P.2d 784, 798 (1982). We cannot say beyond a reasonable doubt that the information concerning the effect of an acquittal by reason of insanity did not contribute to the verdict. This Court in Poland held that a jury receiving extraneous information as to prior federal convictions arising out of the same acts for which a defendant is now on trial in state court is “inherently prejudicial.” We now hold that it is also inherently prejudicial to a defendant when a jury receives information that the defendant will go unpunished and untreated if found not guilty by reason of insanity. The probability is too great that a jury will rely on such legally irrelevant information to convict a defendant, regardless of sanity at the time of the crime, so that his or her crime will not go unpunished. The jury was instructed, “In deciding whether the defendant is guilty or not guilty, do not consider the possible punishment.” The state argues that because of this instruction, the jury would not have considered what would happen to appellant if it acquitted him because of insanity. The burden on the state is to prove beyond a reasonable doubt that the evidence improperly received did not contribute to the verdict. Poland, supra. It is quite possible that the jury would have interpreted the “punishment” instruction to apply only to the punishment imposed if appellant was convicted and not to the “nonpunishment” the jury believed appellant would receive if he was acquitted by reason of insanity. If the jury did believe the instruction would apply, the fact that one juror relayed to the other jurors the extraneous information about a not guilty by reason of insanity verdict implies that the instruction was not followed. The state has not carried its burden. For these reasons, a reversal of appellant’s conviction and a remand for a new trial is necessary in this matter. Appellant argues that he should have received an instruction correctly stating what would have happened had he been acquitted by reason of insanity (civil commitment proceedings would have begun under Ariz.R.Crim.P. 25) and that this would have avoided the problem caused by the juror misconduct. We disagree and adhere to our decisions in State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977); State v. Jensen, 111 Ariz. 408, 531 P.2d 531 (1975); and State v. Peats, 106 Ariz. 254, 475 P.2d 238 (1970). The disposition of a defendant upon the jury’s verdict has nothing to do with the defendant’s guilt or innocence and should never be considered by the jury in its deliberations. ISSUES PREVIOUSLY DETERMINED Appellant raises objections to: (1) the destruction of the tape recordings of the police radio broadcasts concerning his case; (2) the warrantless search of his codefend-ant’s truck; and (3) the “show up” identification of him at the liquor store parking lot. We dealt with these issues previously when we affirmed his codefendant’s convictions. State v. Nelson, 129 Ariz. 582, 583, 633 P.2d 391 (1981). Appellant has not persuaded us that we should change our Nelson rulings that thé destruction of the tapes and the warrantless search were not error. In Nelson, we stated in dictum that the show up identification procedure used in this case was proper. We now hold it was proper as applied to appellant. This Court has consistently held that show up identification procedures are permissible if they take place near in time to criminal offense or at the scene of the crime. State v. Hicks, 133 Ariz. 64, 649 P.2d 267 (1982); State v. Daniels, 106 Ariz. 224, 474 P.2d 815 (1970). Such a procedure allows the police to either have the culprit identified while the witness has a fresh mental picture of him or her or else release an innocent person and continue searching for the culprit before he or she escapes detection. State v. Gastelo, 111 Ariz. 459, 532 P.2d 521 (1975). A show up identification will be admissible if reliable, and the factors to examine in determining reliability are: (1) the amount of time elapsed between the observation and the identification; (2) the accuracy of description given by the witness before the show up; (3) the degree of the witness’ certainty as to the accuracy of the identification; (4) the witness’ opportunity to view the culprit at the time of the crime; and (5) the witness’ degree of attention at the time of the crime. Hicks, supra. There was no undue suggestion in the instant case. The witnesses were not grouped together in the parking lot but were scattered around it. The show up occurred within minutes of the crime and at the location of the crime. Appellant generally fit the description given by the witnesses. All of the witnesses were first shown Nelson, the driver, whom none could identify. Then the witnesses were shown appellant whom Kuykendall identified as the assailant in the store and whom the other witnesses identified as the man they saw run from the store to the truck parked at the car wash. Although none of the witnesses had an opportunity to view the culprit for long, they all had a reason to have their attentions riveted on him. The procedure was properly conducted and was sufficiently reliable. PROSECUTOR’S CLOSING ARGUMENT Appellant argues that the following portion of the prosecutor’s closing argument deprived him of a fair trial because it “pandered to the juror’s fears as to the defendant’s dangerousness” if he was acquitted by reason of insanity and released: “I am glad that Mr. McLoughlin isn’t a more professional robber than he turned out to be. I am glad he is not walking the streets right now, because if he is, I would hope he would have more than 31 cents in his pocket, because if he doesn’t, he is liable to shoot somebody for it.” Appellant has taken this quotation out of context; we disagree with his characterization of it. One of the defense psychiatrists stated several times that appellant must have been insane at the time of the crime because no sane, “professional” robber would have committed the crime the way he did. The basis for this opinion was that appellant did not take the appropriate steps to conceal his identity and he shot the victim without apparent motive. Before the prosecutor made the remarks in question, he argued that the fact appellant was “caught red-handed” did not make him insane and that the shooting of the victim was a product of appellant’s antisocial personality. There had also been evidence that appellant and his codefendant had 31 cents between them when arrested. The remarks in question, taken in context, were intended to express relief that appellant was not so professional as to escape detection and to show that his financial condition provided a motive for the crime. These thoughts were based on the evidence and were appropriate in closing argument. Nevertheless, the remarks could also be construed to refer to future conduct. Although we do not find these remarks to be error, we suggest that if they are used again, the prosecutor take care to choose words that cannot be construed to refer to future conduct. COURT’S INQUIRY INTO JURY VOTE After the jury had deliberated for one and one-half days, the trial judge sent a note to the jury requesting the numerical vote of each ballot the jury had taken (without indicating whether the votes were for guilty or not guilty). This Court recently eschewed the practice of inquiring into the numerical division of a deliberating jury for any reason. State v. Roberts, 131 Ariz. 513, 642 P.2d 858 (1982). Presumably, the trial court will follow the dictates of Roberts when appellant is retried. USE OF DR. GRAY Dr. Howard Gray, a psychiatrist, testified on behalf of the state as an expert witness. When the state moved to have him appointed as an expert, it was discovered that he had treated appellant for about six months when appellant was fifteen years old (about five years before the present offenses). Over appellant’s objections, Dr. Gray was appointed as an expert, he examined appellant, and he testified at trial. The state avoided mention of the prior treatment in its direct examination of Dr. Gray and avowed that his testimony was not based at all on the prior treatment of appellant. Appellant argues that the use of Dr. Gray violated his confrontation clause rights under the Sixth Amendment to the United States Constitution and his due process rights under the Fourteenth Amendment. To show Dr. Gray’s bias and to impeach his testimony, appellant contends he was forced to waive the physician-patient privilege, A.R.S. § 13-4062(4), and cross-examine based on the prior treatment. On the other hand, standing on the privacy interest protected by the physician-patient privilege would have meant foregoing cross-examination on the prior treatment despite its potential to rebut Dr. Gray’s testimony. Thus, the use of Dr. Gray placed appellant in a position where he could not simultaneously assert his constitutional right of confrontation and protect his statutory privacy interest created by the physician-patient privilege. Although a jury is entitled to have the entire picture of a defendant who pleads insanity, State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980), this Court has not held that the plea of insanity negates the physician-patient privilege. The state has not argued that Dr. Gray was the only available psychiatrist it could find or that he had some special expertise. Also, the state avowed that it did not wish Dr. Gray to rely on the prior treatment in reaching his current opinion as to appellant’s sanity. Appellant vigorously objected to Dr. Gray’s appointment as an expert. Because we have reversed this case and remanded it for a new trial, we need not decide at this juncture whether Dr. Gray testifying would infringe appellant’s constitutional and statutory rights in all instances. But having considered the state's failure to show a special need for Dr. Gray’s testimony and the serious confrontation right issues raised by the state’s use of him, we suggest that the state seek another expert witness on retrial. THE INSANITY INSTRUCTION Based on Recommended Arizona Jury Instruction (Criminal) 5.02, the trial court instructed the jury as follows: “The state must prove beyond a reasonable doubt that the defendant was sane. “If you determine that the defendant did not know right from wrong, or if you determine that the defendant did not know the nature and probable results of his act, then he was not sane. “If you determine that you are not convinced beyond a reasonable doubt that the defendant was sane, you must find him not guilty by reason of insanity.” Appellant asserts that the instruction unconstitutionally shifted the burden of proof on insanity to the defense. The instruction is a correct statement of the law and does not place the burden of proof on the defense. Moreover, the prosecutor reminded the jury in closing argument that the state has the burden of proof on insanity, the proof must be beyond a reasonable doubt, and the burden never shifts. But the wording of the instruction could be confusing, and we recommend the following instruction be used: “The State must prove beyond a reasonable doubt the defendant was sane. “If you are not satisfied beyond a reasonable doubt that the defendant did know right from wrong and that the defendant did know the nature and results of his acts, then the state has not borne its burden of proof to show that the defendant was sane. “If you are not convinced beyond a reasonable doubt that the defendant was sane, you must find him not guilty by reason of insanity.” LESSER INCLUDED INSTRUCTIONS Appellant offered instructions on second degree murder, manslaughter, and negligent homicide, but the trial court refused them. Appellant contends that Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), requires lesser included instructions in any capital case, even felony murder. This argument was rejected in State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982), and we adhere to the holding in that case. OTHER ISSUES Appellant presents several other issues in his briefs. We decline to consider them at this time as a resolution of them is unnecessary to a new trial. The convictions and sentences are reversed and the case is remanded for a new trial. HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur. . The witnesses reported the license plate number as 2 NT-837, but it was mistakenly broadcast as 2 NP-837. . It must be remembered that the rule applies only when the jury receives information from an outside source during the course of the trial or during deliberations. Jurors may rely on their common sense and experiences during deliberations. Even though this information was not admitted at trial, it is discoverable during voir dire. If some action need be taken because of a juror’s background, the juror can be stricken for cause or an attorney can use a peremptory strike. But when a juror receives outside information after being impanelled, that juror is no longer the person approved for jury duty by the voir dire process. . See note 2, supra. . For instance, appellant’s trial attorney questioned Dr. Gray about the nature of appellant’s illness at the time Dr. Gray treated him and about the fact that Dr. Gray prescribed for appellant doses of major tranquilizers at the high end of the moderate dosage scale during his 5-6 week hospital stay.

OPINION HATHAWAY, Judge. The defendant was tried to a jury and convicted of two counts of theft in violation of A.R.S. § 13-1802. The charges arose from the defendant’s use of his parents’ Master Charge card to obtain goods and services. He has raised seven issues on appeal, none of which requires reversal. The record, viewed in support of the verdict, discloses that the defendant, while working for a trucking firm that was about to fail, went to his parents’ home in Houston. They were away on vacation; he broke a window and entered the house. He stated that he had notified the police of his entry, but his father’s attempt to confirm the police contact revealed no record of it. While in the house, the defendant took a Master Charge card issued in his mother’s name, but with his father’s signature. He used the card to fly to Colorado, for a motel and other travel expenses, and for various other charges. When the defendant’s parents returned home and discovered the taking of the card, they reported to the police that they believed the credit card had been stolen by the defendant. The theft was also reported to Master Charge. The defendant was arrested in Sierra Vista when a suspicious clerk initiated a check on the validity of the card and discovered that it was listed as stolen. The defendant had credit card receipts in his possession and other credit card transactions were discovered. First City National Bank, the institution which issued the Master Charge card, was listed alternatively as a victim, a question at trial being whether a loss had been sustained, and if so, by whom. The question was complicated in light of the defendant’s father’s willingness to pay the minimum charges on the account until the defendant could make the payments; this was raised by the defense to mean that there was no loss, hence no crime. The main defense was that the defendant believed he had authority to use the card. Prosecution was initiated through an indictment under cause number 10414, which included eight counts of credit card violations. The grand jury had returned a “no bill” under the theft statutes, and eventually prosecution under the indictment was dismissed on motion of the prosecution, it apparently having been determined that prosecution under the theft statutes was preferable. Prosecution was reinstated by means of an information as cause number 10441. The information contained only two counts, charging felony theft. Eight misdemeanor counts were split off and tried in justice court as number 2479 J.P., resulting in convictions on all counts. A motion to dismiss based upon “vindictive prosecution” arose from the reformulated charges and was denied by the trial court. The defendant’s father attempted to work out a plea agreement whereby the defendant would be placed on probation and would make restitution for the credit charges. Additionally, the defendant’s father brought a civil action for the charges and the defendant agreed to a consent judgment being entered wherein he admitted liability. Motions in limine evolved from these proceedings as to what could and could not be admitted. The defendant was tried in absentia and convicted on both counts. Because of a prior felony conviction, he received an enhanced presumptive sentence on each count, six years, to run concurrently. He raises the following issues on appeal: I. Was the verdict supported by the evidence? II. Was prosecution exhibit 28 improperly admitted because of references in it to uncharged misconduct? III. Was the defense improperly denied its right to make effective closing argument? IV. Should a mistrial have been declared because of improper closing argument by the prosecution? V. Should the defendant’s amended jury instruction number 12 have been given? VI. Was it error to deny the pretrial motion to dismiss for vindictive prosecution? VII. Was it error not to dismiss for other grounds supporting vindictive prosecution? I The defendant was charged generally under A.R.S. § 13-1802 and the jury was instructed on the elements of A.R.S. § 13-1802(A)(3), which provides: “A. A person commits theft if, without lawful authority, such person knowingly: ****** 3. Obtains property or services of another by means of any material misrepresentation with intent to deprive him of such property or services .... ” Appellant contends that for proof of theft there must be established a liquidated loss to each victim and that the loss must be actual and not threatened. With respect to the use of the credit card to purchase a citizen’s band radio from Rand’s Radio Shack, it is argued that Rand’s suffered no loss and the bank had not charged off any loss to itself, but was merely planning to charge off the loss later in the month after trial. In addition, the defendant’s father was willing to continue making minimum monthly credit card payments to the bank for the radio charge until the defendant could begin making payments. It is contended that with reference to the Tunder-mountain Inn count, no loss was established since the bank had never been charged for the transaction and the defendant was arrested after he had checked in and before he had any opportunity to check out or otherwise settle his bill. A “liquidated” loss is not an element of theft by false pretenses. Our supreme court rejected such an argument in State v. Mills, 96 Ariz. 377, 396 P.2d 5 (1964), a case discussing the predecessor statute: “Although there is authority for the proposition that an actual financial loss is necessary to constitute the crime of theft by false pretenses [citations omitted], we think the better rule is that there is no requirement that the victim suffer a pecuniary loss so long as he has parted with his property [citations omitted]. The defendants focus on the wrong part of the transaction. They direct attention to what the victim obtains. The gist of the offense, however, is concerned with what the defrauder obtains. Once the victim has parted with his property in reliance on a false representation, it is immaterial whether whatever he got in return is equal in exchange value to that with which he parted.” 96 Ariz. at 381, 396 P.2d 5. Regardless of whether the victims ultimately suffered a loss, or whether they were protected through the Master Charge program or through reimbursement from the defendant’s father, they parted with property in reliance upon the defendant’s false representation, i.e., that he lawfully possessed the credit card and was authorized to use it. Cf., State v. Joseph, 20 Ariz.App. 70, 510 P.2d 69 (1973). The defendant argues that the statute is void for vagueness, contending that the word “obtain” is too vague. So long as the statute is couched in terms that men of average intelligence can understand and gives sufficient warning “so that men may conform their conduct to its dictates,” it meets constitutional standards for clarity. State v. Darby, 123 Ariz. 368, 373, 599 P.2d 821, 826 (App.1979). Webster’s Third International Dictionary, at 1559 (1971), defines the word “obtain” as follows: “Obtain — to gain or attain possession or disposal of, usu. by some planned action or method.” We do not find the term so vague that men of average intelligence could not understand it in the context of the statute. II The defendant complains about the introduction of a transcribed interview with the defendant on the basis that it contains references to other transactions involving his use of the credit card. This evidence would appear to have been properly admissible under the “common scheme or plan” exception to the rule precluding evidence of uncharged bad acts, Arizona Rules of Evidence, Rule 404(b). No objection was made to the exhibit. Indeed, the record discloses that defense counsel read the transcript as edited by the prosecutor and consented to its admission. III The defendant contends that the trial court, in giving instructions to counsel prior to closing argument, erroneously limited defense counsel’s right to argue vindictive prosecution to the jury. The instructions given by the court were directed to avoiding counsel’s becoming involved in personalities during argument. The court emphasized that counsel should limit their arguments to the facts and reasonable deductions from the facts. We do not see in the court’s instructions how counsel were unduly hampered. Defense counsel posed the following objection with reference to the trial court’s instructions concerning closing arguments: “MR. CODY: I am going to have to state a problem for the record. I am going to try to, to the best of my belief and intent, I am not going to attempt to get anything in in front of the jury relating to what the court has instructed me to leave out. The problem in objection, although I think the court is considerably qualified, Mr. Lusk’s position on the subject by permitting to make arguments based on principle, as long as they can be reference to specific testimony or specific introduced facts. I think the court has cut off the defense counsel at a point a little bit prior to what he should have been cut off at, and more specifically, that goes to, in arguing, that a case should not be brought or in arguing in generalized principles, arguing in generalized principles based upon facts or testimony that a case should not be brought, in drawing upon commonly known facts or general knowledge or otherwise, that specific reference can be made to the specific prosecutor in a case. I really don’t know how to express that objection any better. I don’t think I expressed it very well, but I think the line that was drawn here has been drawn a little short of what would be necessary in order to ensure the constitutional right of every defendant to a fair trial to make arguments, and I refer more specifically to State versus Cooley, and Judge Riley’s decision there to permit what I considered to be more personal arguments pertaining to a particular prosecutor or prosecutors or particular prosecutor’s actions in going to the jury as an issue of fact or as a generalized argument, which they can consider in determining guilt or innocence.” We are unable to discern what ruling defense counsel was soliciting from the trial court and we find the objection insufficient to preserve any issue on appeal. Counsel’s complaint that the court’s instructions were too confusing to follow was not preserved by objection, nor was there a request for clarification. The matter not having been preserved will not be considered on appeal. IV Defendant contends that the trial court erred in denying his motion for mistrial based upon improper prosecutorial closing argument referring to civil pleadings which the defendant had introduced as evidence. Pursuant to the civil case, he had admitted his civil liabilities as a contractual matter to his father, the bank and Thunder-mountain Inn for charges against the credit card and had agreed to repay the charges pursuant to a specific repayment schedule. In referring to the civil action and repayment agreement during closing argument, the prosecutor challenged the arrangement and referred to it as a “smoke screen” and a “sweetheart plea agreement” calculated to keep the defendant out of jail. A general objection to the line of argument was made and overruled. After the jury retired to deliberate and without requesting curative instructions with reference to the argument complained of, counsel moved for a mistrial and the trial court denied the motion. Counsel has a responsibility to request corrective action at the earliest opportunity; waiting until corrective action cannot be taken may be too late. See State v. Jamar-illo, 110 Ariz. 481, 520 P.2d 1105 (1974). A motion for mistrial obviously involves a serious remedy and its use is left to the sound discretion of the trial court, which will not be reversed unless its discretion is plainly abused. State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981). We find no error in the trial court’s refusal to grant a mistrial. We find that the argument with reference to the drafting of the pleadings was fairly supported by inference from the evidence. As to the enforceability of the agreement’s being with the defendant’s father and not with others, it would appear that its enforceability by anyone else was legitimately questionable. The defendant’s father had testified that the terms of the arrangement had been worked out with defendant’s counsel, who had submitted the proposition to him as an alternative way of making appellant pay the debts. It appears that the prosecution was not aware of the civil arrangement until the criminal trial was in progress. It does not appear that the First City National Bank or Thundermountain Inn were apprised of the civil proceedings. It is contended that the prosecutor’s remarks went too far and were disparaging to defense counsel, thus having the effect of chilling counsel’s zealous representation of the accused and that the remarks violated the trial court’s instructions and that the prosecutor’s accusations were unethical and perverted the American system of justice by implying immorality and illegality in defending a criminal client. It is contended that the argument shows the “in-bred perverse and subversive notions of this particular prosecutor as to what our system of criminal justice is and should be.” Our review of the arguments by the prosecution and the defense convinces us that counsel on both sides were vigorous and zealous in their advocacy. In denying the defense motion for mistrial, the trial court stated: “The Court: Gentlemen, with regard to the order I made limiting the extent of instruction, I realized at the time I did it that we were going to have some problems. It’s very difficult in a case such as this, where much evidence was brought in that, in my opinion, was immaterial, and I want to compliment both attorneys. I think you have followed the orders of the court on closing argument as closely as possible. I think there may have been a technical violation. I do not consider it serious, because I think it’s reasonable comment as to the character of the agreement made, and I didn’t consider that, when I made my order, and I think counsel for the state handled it appropriately. I was a little sensitized to the reference to ‘you know who,’ but in any event, it was kept at a minimum. I don’t consider it a serious violation. I consider it within the realm of proper argument.” We defer to the trial court’s coign of vantage in the courtroom in his assessment of counsel’s arguments. We find nothing from the record with reference to argument which compels us to the conclusion that the trial court abused its discretion in denying the motion for mistrial. V The trial court gave the defendant’s requested instruction number 12, which provided: “The state has alleged that the defendant used a credit card without authorization, to commit a theft at Rand’s Radio Shack and attempted to use that card without authorization at the Thunder Mountain Inn. Thus, to find the defendant guilty of either of the charged crimes, you must find that he did not have the reasonable belief that he had either of his parents’ consent or authority to use their Master Charge card.” Defense counsel requested that the instruction be amended to delete the word “reasonable,” but the trial court denied the request. It is argued that prejudicial error occurred in denying the requested amendment to the instruction. The argument is based on the contention that the defendant believed he had a right to use the credit card and that his belief did not have to be “reasonable” by objective standards but that the state was required to prove intent subjectively. Accepting arguendo the standard contended for by counsel, no evidence of claim of right was adduced and the evidence is to the contrary. Since the defendant was entitled to no claim of right instruction, he could not have been prejudiced by the one given. VI The defense contends that the trial court erred in denying its pretrial motion to dismiss with prejudice for vindictive prosecution. A number of arguments are raised, the first being that the prosecutor pursued the defendant through a preliminary hearing after the Cochise County grand jury had returned a “no bill” on the same charges. It has been held that an indictment may be obtained after probable cause has been found lacking via a preliminary hearing. State v. Woods, 114 Ariz. 385, 561 P.2d 306 (1977); Wilson v. Garrett, 104 Ariz. 57, 448 P.2d 857 (1969). The same result should follow where probable cause is determined through a preliminary hearing after the grand jury has returned a “no bill.” It is contended that “family-type” offenses would not be prosecuted as double felonies by a reasonable prosecutor. We must conclude that the discretion to prosecute in the instant case properly lay with the state and not with the defendant’s parents. That duty is linked with the state’s responsibility to protect the public. Complaint is made that the prosecutor sought to prosecute the defendant with three criminal cases, totaling about 18 counts, to make sure that the defendant would be convicted of something. The record indicates that there was a lag in the dismissal of some charges with the institution of new charges. No vindictive motive appears as the basis; rather, the prosecution appears to have gone through some revising and tailoring of its case in preparation for the final prosecution. That numerous counts evolved is attributable to the nature of the transactions and not to prose-cutorial vindictiveness. VII Complaint is also made that the state attempted to have defense counsel removed in the justice court proceedings. The record in those proceedings is not before us and we will not consider the matter further. Other complaint is made attributing a malicious attitude toward the defendant because of his nationality, lack of Arizona residency and his defense counsel. It is clear from the record that heated advocacy sparked controversy between counsel from time to time. We do not glean from the record, however, that vindictive measures and prosecution resulted. Some selectivity as to the best means of going forward with the prosecution is left to the discretion of the prosecuting authorities. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Vindictiveness is a matter of concern, as appears in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), where the court held that the record must reflect reasons for a heavier sentence imposed by the same judge upon retrial. In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the concern for vindictiveness was that the defendant should be permitted to pursue his appeal without the apprehension of facing a prosecutor’s retaliation on retrial through substitution of a more serious charge. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), where the prosecutor admitted acting vindictively by obtaining a second more serious charge after the defendant refused to plead guilty to the original one, the court held the practice to be permissible as part of the plea bargaining process. In discussing the subject of vindictiveness in the pretrial setting, the New Mexico Supreme Court in State v. Stevens, 96 N.M. 627, 633 P.2d 1225 (1981), stated: “We are sensitive both to a defendant’s due process rights and to the need for full prosecutorial discretion in seeking indictments. We would not hesitate to impose a presumption of vindictiveness if we felt that such a presumption were necessary to protect defendants, in a pretrial setting, from deprivations of due process. We do not feel that such a presumption is necessary, however. At the pretrial stage the prosecutor has not gone through the effort of a trial and therefore has less at stake and less motive to act vindictively. As pointed out by Judge Merritt, many actions taken by a prosecutor prior to conviction might appear vindictive yet are required by our system of criminal justice. We do not find at the pretrial stage the type of motivation sufficient to presume vindictiveness. Imposition of a pretrial presumption of vindictiveness would interfere with proper prosecutorial discretion. Prosecutors would be required to justify actions properly taken as adversaries but which may appear vindictive, adding additional burdens to the criminal justice system. Prosecutors might feel compelled to press the severest charges possible at the outset, to the detriment of defendants. If a prosecutor acts vindictively before trial, the defendant still retains the protection of a jury trial. Situations may arise where egregious conduct on the part of a prosecutor could extinguish the protections afforded by a jury trial. Even though a defendant does not have the benefit of a presumption at the pretrial stage, he may present evidence of vindictiveness and request relief from the court. However, such conduct is not present in this case.” 633 P.2d at 1228-29. We find the foregoing statements from the New Mexico Supreme Court apropos of the situation before us. There being no presumption of vindictiveness, the burden was upon the defendant to establish it. We conclude that he has not done so. The state contends that claims of vindictiveness are handled in the federal system through interlocutory appeals and should be handled by means of special actions before proceeding to trial, otherwise the issue should be deemed waived. In support of this argument, Blackledge v. Perry, supra, is cited for the proposition that the due process right against vindictive prosecution “is the right not to be haled into court at all.” We have difficulty with the state’s argument, because in Blackledge, the defendant had pled guilty when faced with a trial de novo on the more serious charges and was sentenced as a felon as contrasted to the initial misdemeanor charge. The court had no difficulty in finding that pros-ecutorial vindictiveness required a reversal. Affirmed. HOWARD, C.J., and BIRDSALL, J., concur.

FELDMAN, Justice. Sharon Grant brought this action to recover damages for the wrongful death of her husband, Koy Grant. The trial court entered judgment in favor of the plaintiffs on a jury verdict of $1,000,000 in favor of Ms. Grant and $250,000 to each of her two children. The court of appeals reversed, Grant v. Arizona Public Service, 133 Ariz. 475, 652 P.2d 548 (App.1981). We granted Grant’s Petition for Review and now vacate the opinion of the court of appeals and affirm the judgment of the trial court. This court has jurisdiction pursuant to A.R.S. § 12-120.24. Grant died on February 3, 1976, as the result of electrocution. At the time of his death, he was a carpenter employed by Kensington West-Mayo Construction Company (Kensington). Kensington was the prime contractor for the City of Phoenix in the construction and installation of a new storm sewer. The construction work involved use of a backhoe to excavate a large trench in 15th Avenue, which runs in a north-south direction, and the use of a crane to lift sections of 6-foot diameter storm sewer pipes from the ground drop and set them in the trench. The crane operated on the east side of the trench with its boom extending to the west, and moved north along the east side of the trench as the work proceeded from south to north. After the crane had laid the pipe in a section of trench, the trench was closed with earthmovers and the men and equipment proceeded north to the next section of work, where the process was repeated. Power lines under the control of respondent Arizona Public Service (APS) ran in a north-south direction on the west side of 15th Avenue, 35 feet above ground level. Thus, they were parallel to and at the west edge of the sewer line excavation. The lines were uninsulated and carried 12,000 volts. At various points along 15th Avenue, branches from the main north-south power line on the west side of 15th Avenue ran east, crossing the street and the trench excavation. The diagram below, similar to Exhibit 340 in evidence, depicts the excavation site: By December of 1975, work had progressed to a point near the intersection of 15th Avenue and Watkins Road. At this intersection, a “special construction feature” (de scribed below in more detail) required that the trenching excavation be made considerably wider and deeper. A subcontractor, Lester Construction Company (Lester), was engaged to install sheet piling for shoring to prevent the cave-in of the west excavation wall. Lester was using a crane, no larger than the Kensington crane, to raise the pieces of metal sheet piling from the ground, position them over the excavation, lower them into the hole and hold them in a vertical position next to the west bank, while the workmen in the hole anchored the lower end of the piling to a frame positioned at the bottom of the excavation. Like the Kensington crane, the Lester crane was positioned at the east side of the excavation, with the boom extended above and to the west of it, at an angle of approximately 60° from the ground. As the crane hook, lines and sheet piling descended from the top end of the crane boom to the bottom of the excavation, the crane lines passed within a few feet of APS power lines at the edge of the west bank. At the time of the accident, Grant was in the bottom of the excavation doing his assigned work of attaching the piling to the excavation wall. A fellow employee was standing on the ground above the west side of the excavation holding a tag line. He inadvertently pulled the tag line so that it came into contact with the power lines. High-voltage electricity traveled down the crane lines, electrocuting Grant. The trial court denied APS’ motion for a directed verdict, sent the case to the jury on the theory of negligence and instructed the jury on punitive damages. The jury awarded compensatory damages but did not make an award of punitive damages. The court of appeals found that the cumulative effect of errors at trial was prejudicial and denied APS a fair trial. It therefore reversed and remanded for a new trial. The various issues raised by APS will be considered separately and additional facts will be given where appropriate. APS’ MOTION FOR A DIRECTED VERDICT APS argues that the trial court erred by denying its motions for summary judgment and for a directed verdict. We agree with the court of appeals that denial of these motions was not error. As the court of appeals indicated, the law requires a distributor of electric power to take precautions reasonably commensurate with the dangers involved whenever the distributor can reasonably anticipate that persons may come into contact with its lines. Mason v. Arizona Public Service, 127 Ariz. 546, 551-52, 622 P.2d 493, 498-99 (App.1980). APS argues that it neither had knowledge of the specific danger nor opportunity to take steps to avoid injury to plaintiff. APS cites many cases holding both that a public utility has no “duty” to anticipate that a contractor or its workmen in the vicinity of high-voltage lines will use a crane that may come into contact with the lines, and that a utility which has no reason to foresee that workmen on the ground are endangered by lines high above ground level cannot be held negligent for simply maintaining such lines. This argument, although correct in principle, is not applicable to the facts of this case. The plans here called for the construction of a box culvert at the intersection of 15th Avenue and Watkins, and it was during the construction of that box culvert that the contact between the crane cable and the power lines occurred. This “special construction feature” was detailed on the plans which were given Arizona Public Service; in fact, APS’ gas division had removed its underground gas lines from the utility easement shared with the power lines and had relocated the gas line a distance of some feet to the west. In addition, there was evidence that Kensington’s construction superintendent, Clarke, and APS’ safety liaison officer discussed use of a crane to set piles on the west side of the excavation. Testimony also indicated that on December 16, 1975, APS warned the contractor about the hazards of a crane working near the high-voltage lines located at Watkins and 15th Avenue. The city inspector who was present at a meeting between the APS representative and the construction superintendent on December 19, 1975, made a diary entry as follows: APS said they could remove the [branch] lines . . . that service Starlight Company [on the east side of the excavation] but could not do anything with the [main] lines on the west side, but they will continue to brace the poles as needed. In addition, the inspector testified regarding a conversation he heard about de-energizing the lines in order to protect the workmen in case there was contact with the crane. That testimony was as follows: [W]hat did Mr. Clarke tell Mr. Miller [the APS representative]? A. Mr. Clarke told him to the effect that he had to build something down under the big line, which wasn’t exposed at that time, and that he was also going to have to drive some piling in that area. Q. Do you remember, does anything else stick in your mind as to what Mr. Clarke told Mr. Miller on that occasion at this vicinity? A. Well, they were still discussing, which, I couldn’t hear every word of the conversation, I was getting ready to leave. But, I heard Mike holler, or kind of holler, raise his words, and he says, “Well, can’t you kill the God damn thing?” I don’t talk like that, I’m sorry, but, that’s what he said, couldn’t he kill [de-energize] the damn thing. Q. Pointing to these lines running on the west side of 15th Avenue? A. Yes, sir. Clarke claimed that APS told him that “nothing could be done” because of the need to continue service to downstream power customers. APS claimed it told Clarke it could take precautions if he made a proper request. Because we must view the evidence in the light most favorable to sustain the verdict and judgment, Lane Title & Trust Co. v. Brannan, 103 Ariz. 272, 279, 440 P.2d 105, 112 (1968), we assume the jury properly accepted Clarke’s version. In addition to the testimony that would have allowed the jury to conclude that APS was aware of the actual danger, there was ample testimony from which the jury could have concluded that APS should have been aware of the danger even without direct knowledge. Evidence established that APS’ program of safety included study of construction plans of projects in the vicinity of high-voltage lines, walking the construction site to check the plans against the lines, meetings with contractors and regulatory officials to determine what procedures would be undertaken by the contractor that might present dangers, and similar matters. Thus, the jury could easily have concluded that APS not only foresaw the type of dangers which existed in this case, but had established a safety policy which required it to ascertain and evaluate such dangers in order to take appropriate action to minimize accidents. With all this in mind, it is apparent that plaintiffs made a strong case of negligence. APS may not have known that the particular crane was to be used on the day and at the particular site in question. Undoubtedly, however, there were facts from which the jury could have concluded that APS knew or should have known that a crane was being used on the job to set the storm sewer pipe and that a crane would be used on the job at the Watkins Road intersection to set piling to be used for shoring. APS knew that a serious danger was presented and even threatened at one point to enjoin further construction near the lines in question. Its version of the facts was that it had told Kensington that it would not de-energize or move those lines unless the contractor requested such action. Since no request was made, APS argues that it did not receive actual notice of the immediacy of the danger. The contractor’s version, which we must now accept, was that the APS representative said there was nothing APS could do about the danger because it could not discontinue electrical service to its downstream customers and that, therefore, the contractor concluded that the appropriate action was to continue with the project, being careful to keep the crane away from the lines. There was also evidence that promptly after Grant’s death APS re-routed the lines, thus establishing the existence and feasibility of obviating the danger. Evidence of such remedial measures is ordinarily excluded, but is admissible for a variety of other purposes. See Rule 407, Arizona Rules of Evidence, 17A A.R.S.; 1 M. Udall & J. Livermore, Law of Evidence § 87, at 194-96 (2d ed. 1982). APS has not claimed that the court erred in admitting evidence of these remedial measures. Under either view of the evidence, the jury could have found the danger foreseeable and APS negligent for failing on its own initiative to remedy that danger. See Restatement (Second) of Torts §§ 447, 449 (1965). See also Annot., Electric Power Company — Liability, 69 A.L.R.2d 93, 97, 98 (1960). The editor extracts the following principles of law from the cases cited in the annotation: If it was apparent that danger to someone having a right to be near the wires existed, the [electric power] company may be held liable; if the likelihood of such danger was not apparent, liability will generally be denied. Where it is or should be evident to a power company that a dangerous condition with regard to its wires exists, it is generally held a question for the jury as to whether the company has taken reasonably prompt measures to eliminate the danger. This rule obtains notwithstanding the contractor’s alleged failure to take precautions to protect its workmen. See Restatement (Second) of Torts §§ 447, 449 (1965). The foreseeable, subsequent negligence of others is not a defense if the negligence of the defendant has also been one of the causes of the accident. Id.; Brand v. J.H. Rose Trucking Co., 102 Ariz. 201, 205, 427 P.2d 519, 523 (1967); City of Phoenix v. Camfield, 97 Ariz. 316, 321, 400 P.2d 115, 119 (1965). Further, while APS might not have foreseen that the injury would come about while a new crane, no more dangerous than the old, was used to set piles, it is uncontroverted that APS knew that a crane would operate on the east bank of the excavation and that there was a wider excavation at this point in the project. A party is not insulated from liability merely because it has not foreseen the exact manner in which the injury eventually occurs. See Restatement, supra § 435; W. Prosser, Law of Torts § 43, at 268-70 (4th ed. 1971). In this case, then, the jury could find that APS failed to take precautions commensurate with the dangers reasonably to be anticipated. Mason v. Arizona Public Service, supra; Cronk v. Iowa Power & Light Co., 258 Iowa 603, 611-12,138 N.W.2d 843, 847-48 (1966). Accordingly, we hold that, when viewed in the light most favorable to sustaining the verdict, the evidence was sufficient to support a verdict against Arizona Public Service, and the trial court did not err in refusing to direct a verdict for APS. THE CONTRIBUTORY NEGLIGENCE ISSUE One of the main issues raised in this appeal is whether the trial court erred in refusing APS’ proposed instructions on contributory negligence. Grant argues that there was no evidence of contributory negligence and that APS’ defense theory was essentially assumption of the risk, which was the subject of instructions to the jury. The court of appeals held this case did present an issue of contributory negligence and that the trial court therefore erred in refusing the instructions. We disagree. The essence of APS’ argument on the contributory negligence issue is that: Koy Grant, plaintiff’s decedent, was aware that the power lines were energized, . . . that contact ... would be very dangerous, and he nevertheless worked with the crane so close in proximity to the power lines that contact occurred resulting in his death .... Of course, APS does not contend that Grant, himself, was working “with the crane” in the sense that he was operating it or was responsible for its movements or placement. The argument simply is that Grant was aware of the position in which the crane was placed, of the location of the power lines, that they were energized, that they carried high-voltage electricity, and that if the crane came in contact with the power lines electricity would be transmitted to everyone in contact with a conductor. The record clearly supports these factual positions. Kensington’s supervisor also had told the crew that he had asked APS to de-energize the lines and that APS had said nothing could be done. He therefore instructed his crew to be careful working with the crane in order to keep it from coming into contact with the power lines. There is no question that the crew, including Grant, understood the danger. Nevertheless, the crew kept working, their “consent” thereby arguably creating an issue of implied assumption of the known risk. See Hildebrand v. Min-yard, 16 Ariz.App. 583, 585, 494 P.2d 1328, 1330-31 (1972); Restatement (Second) of Torts § 496(C) (1965). However, the trial court did instruct on assumption of risk and the jury did not find for defendant on that issue; or, if it did, it exercised its prerogative to disregard the defense, as it may do in this state with regard to both contributory negligence and assumption of the risk. Ariz.Const. art. 18, § 5; Chavez v. Pima County, 107 Ariz. 358, 361, 488 P.2d 978, 981 (1971); Layton v. Rocha, 90 Ariz. 369, 370-71, 368 P.2d 444, 445 (1962); Menendez v. Bartlett, 125 Ariz. 48, 50-51, 607 P.2d 31, 33-34 (App.1980). The issue here is whether the facts support instructing the jury on both assumption of risk and contributory negligence. Occasionally, the two defenses overlap. There is considerable authority for the proposition that where plaintiff’s conduct in encountering a known danger is unreasonable, it may not only manifest a willingness to assume the risk but it may also violate the objective standards applied to determine reasonable care and thus also constitutes contributory negligence. See, e.g., Menendez v. Bartlett, 125 Ariz. at 50, 607 P.2d at 33; Hildebrand v. Minyard, 16 Ariz.App. at 586, 494 P.2d at 1331; Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959); W. Prosser, supra, at 440 — 41; Restatement (Second) of Torts, supra, § 496(A), comment d; Annot., Distinction Between Assumption of Risk and Contributory Negligence, 82 A.L.R.2d 1218 (1962). The above authorities indicate that in such circumstances it may make little difference what the defense is called and Meistrich, supra, holds that there is therefore no error in instructing on only one of the defenses since they represent the same basic legal principle regardless of the label used. However, we need not consider here whether this rule applies in Arizona because we hold that there was no evidence to support an instruction on contributory negligence, and therefore the trial court did not err in refusing the instruction. To support an instruction on contributory negligence, APS had to show that Grant’s conduct fell below the standard of care of a reasonable person. As noted above, Grant had nothing to do with the placement or operation of the crane, nor with its eventual contact with the power line. He was 20 feet below ground level, working on the pilings. The workmen had been warned to be careful to keep the boom and cables away from the power lines, and there is no evidence that Grant had any knowledge that care was not being used in this regard. George Ferruccio, engineering inspector for the City of Phoenix, who had the power to shut the job down if he found any undue danger, testified that he, too, was aware of the danger. He had cautioned the crew to stay away from the power lines. He watched the operation of the crane and of the pile driving crew, was aware of the OSHA requirement of a 10-foot clearance between the crane boom and cable and the power line, and felt there was enough clearance so that the operation was not overly dangerous. In light of the undisputed evidence in the record, APS’ contention that Grant “was aware that the power lines were energized” and dangerous, and that he “nevertheless worked with the crane so close in proximity to the power lines that contact occurred resulting in his death" is no more than an assertion that Grant was contributorily negligent for reporting to work on the day of the accident and going about his assigned duties with knowledge that if one of his co-employees failed to maintain sufficient clearance between the crane and the power line, then anyone near a conductor of electricity would be in danger. Other courts faced with similar facts have refused to conclude that reporting,.for or failing to stop work under such circumstances constitutes the type of unreasonable conduct necessary, to warrant an instruction on contributory negligence. In Chaney v. Brupbacher, 242 So.2d 627 (La.App.1970), the decedent was electrocuted when the boom of a crane which was being used to unload steel beams from a truck came into contact with overhead power lines. The decedent did nothing himself to cause the contact. The court held: The test for negligence is reasonableness. While it may be true that the reasonable man would wish to avoid the known risk here, an employee is not entirely free to do so. He cannot simply decline to do the work, because he would then subject himself to loss of his job, his means of support for self and family. It would not have helped [the decedent] to point out the danger to [his employer], because [the employer] already knew it. Nor could [the employee] tell the [employer] how to run the job. It cannot be fairly said that [the employee] elected to work under the dangerous conditions (the danger not being an intrinsic feature of [the employee’s] work). Thus, as we see the question, it is whether the reasonable laborer . . . would quit his job or expose himself to being fired without any immediate prospect of another job, rather than work in the presence of a danger which his job did not necessitate and which he had never previously been called on to tolerate. We simply cannot answer that question affirmatively. We believe [the employee’s] conduct measured by the reasonable man standard was not negligent, and the defense of contributory negligence therefore fails. Id. at 632. Accord Etienne v. Home Indemnity Co., 307 So.2d 654 (La.App.1975). While the words of the Louisiana Court of Appeals are somewhat dramatic, the essence of the holding is simply that a workman is not contributorily negligent for reporting to work on a job which presents a known risk of injury in the event a subcontractor, a fellow employee or someone else does something to cause an accident. If such were the law, then every construction worker at the site in question would have been contributorily negligent; similarly, every member of a construction crew building a bridge or skyscraper, every miner, and hosts of other workmen would be automatically guilty of contributory negligence. We reject such a rule. It is only when the workman in question, himself, has done something to bring about the accident which caused his injury that the question of. contributory negligence arises. Contributory negligence on the part of the decedent is not established merely by showing that he worked in a place of known danger, but it also must be shown that his conduct was negligent in the face of the danger. In other words, the basic test is whether the decedent as a reasonably prudent man was in the exercise of ordinary care in doing his work under the circumstances. Cronk v. Iowa Power & Light Co., 258 Iowa at 614, 138 N.W.2d at 849 (emphasis added) (workman laying water pipe electrocuted by current which arced from uninsulated power line to crane which came into close proximity of line). See also Restatement (Second) of Torts § 473, which reads as follows: “If the defendant’s negligence has made the plaintiff’s exercise of a right or privilege impossible unless he exposes himself to a risk of bodily harm, the plaintiff is not guilty of contributory negligence in so doing unless he acts unreasonably.” We acknowledge that the courts have not uniformly agreed on whether the defense of contributory negligence is available to a defendant under circumstances similar to those before us in this case. See Annot., Electric Power Company — Liability, supra. Nevertheless, we feel that the rule which we here adopt for Arizona is the better rule. Contributory negligence must be based on some conduct by or attributable to the plaintiff which the finder of fact could determine was less than that which would have been adopted by a reasonable person under the same circumstances. It requires, essentially, a finding that the plaintiff was at fault, so that his conduct helped produce his own injury. We hold, as a matter of law, that the defense of contributory negligence may not, however, be applied to a workman whose only contribution to his injury is that he reported for work in the morning. The record here contains no evidentiary support for the contention that Grant’s conduct helped cause the accident. In its reply brief, APS argues that Grant failed to wear protective gloves or insulated boots. The court of appeals mentioned these alleged omissions in concluding that the trial court should have given the instruction on contributory negligence. However, these omissions were not called to the trial court’s attention when instructions were offered and discussed, nor is there any evidence in the record that the workmen had been instructed to wear such equipment, that it was appropriate for that type of danger, or that APS had recommended its use. Furthermore, APS did not offer any expert evidence that if such equipment had been worn the injury would have been avoided. The argument simply comes too late when made for the first time in appellant’s reply brief. The remainder of APS’ argument on Grant’s alleged contributory negligence illustrates the very reason why we adopt the rule that contributory negligence must be based on some conduct other than just reporting for work. In arguing that a contributory negligence instruction should have been given, APS describes Grant’s allegedly negligent conduct as follows: [He] voluntarily engaged in work activities wherein a crane was located within ten foot ... of an energized [line]; and worked in contact with a metal structure .... [He] did not require the use of a trained electrical observer to verify distance between metal apparatus and the power lines; did not require or recommend the use of any insulating material .. .; did not demand the work be ceased until a safer method could be devised; ... did not recommend the grounding of the metal structure ...; did not perform the work in a method whereby no one would be touching the metal structure . . .; did not ... ad infinitim [sic]. The answer to this contention has been put as follows: [T]he obligation of compliance [with safety precautions required by statute] cannot be that of the [employee] because he has no authority to act for his employer in negotiating with [the utility company] and no authority to bind his employer ... in an agreement to pay the expenses for any work to be done in [clearing the wires]. Ringo v. Gulf States Utilities Co., 569 S.W.2d 31, 34 (Tex.Civ.App.1978). We disagree with the court of appeals’ holding that reasonable men could find that Grant was contributorily negligent for going to work with the knowledge that the crane was in proximity to the power line or for not suggesting that the “work cease until safer conditions were furnished,” or for not having refused to work while the crane was moving near the line. In effect, this would enable the jury to find that the workman must give up his job until his employer manages to convince the prime contractor, the landowner, the local utility and others that major safety precautions should be taken different from or in addition to those already undertaken. Such a rule is not reasonable. Common experience tells us that employees will work under dangerous conditions rather than give up their jobs, even though it involves some exposure to serious injury. More simply, we will not find the carpenter negligent for having failed to tell the general contractor how to run the construction project. We cannot close our eyes to the realities of the work place. INSTRUCTIONS APS claims that the trial court erred with respect to numerous instructions. The first allegation of error pertains to the following instruction given by the trial court: Arizona Public Service Company in the distribution of high-voltage electrical current by means of uninsulated lines suspended above the public streets of the City of Phoenix, where the public and others in the performance of their work have the right to and may reasonably be expected to go, is under a duty to safeguard the public against injury arising from its operations to the extent of requiring reasonable care to correct or remove the cause of danger if reasonably foreseeable and known to the company. A power company must anticipate and guard against events which may reasonably be expected to occur. APS first complains that the instruction improperly sets forth the degree of care which it must observe. This contention is incorrect. We have previously held that an electric utility must exercise the degree of care which is “commensurate with the danger to be apprehended from contact with [high-voltage] wires or the escape of electricity therefrom .... ” Salt River Valley Water Users’ Ass’n v. Compton, 39 Ariz. 491, 495, 8 P.2d 249, 250 (1932), overruled on other grounds, Macneil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958). [T]he duty of providing insulation or safeguards for such lines is limited to the points or places where there is reason to apprehend that persons may come in contact with the wire, and the law does not compel electric companies to protect their wires everywhere, but only at places where people may legitimately go for work, business, or pleasure; that is, where they may reasonably be expected to go. Id. at 498, 8 P.2d at 251 (emphasis in original). To this extent, then, the instruction in question is a correct statement of the law and was properly given. But APS next argues, and the court of appeals agreed, that the instruction was incorrectly applied to the facts of this case because the power lines in question were 35 feet above ground level and “the public and others normally have no right to be 35 feet above the ground in close proximity to energized APS power lines without prior notice to APS.” We feel that this view is improperly restrictive. The key to the concept of duty and the consequent obligation to use reasonable care is the foreseeability of harm. Thus, we have ruled that the requirement of due care with respect to utilities is “commensurate with the danger to be apprehended.” Salt River Valley Water Users’ Ass’n v. Compton, supra. The argument that APS could not expect people to come into contact with lines 35 feet above ground level is not persuasive. The record contains evidence from which the jury could have found not only that APS could have foreseen, but evidently did foresee that there was danger to the workmen who were legitimately present on the premises. The fact that Grant’s electrocution did not come about from direct contact between his body and the lines, but rather through contact between the power line and a cable attached to a crane boom, is irrelevant. APS was well aware that electricity travels through conductive material and that all those in proximity to a conductor which may contact uninsulated lines are within a zone of danger. APS was aware of the use of a crane at various times and at various points along the length of the project. Whether the lack of knowledge respecting the use of this crane at this location on the date of the accident made the possibility of harm unforeseeable was for the trier of fact. See Arizona Public Service v. Brittain, 107 Ariz. 278, 280, 486 P.2d 176, 178 (1971). APS then urges that the court erred in instructing as follows: The power company may exercise reasonable care for the protection of lives of others, and to do that which would give reasonable promise of preserving life regardless of the difficulty or expense. In the observance of such duties, the degree of care increases as the danger increases. [Emphasis added.] Among its multiple attacks on this instruction, APS argues that the instruction “is an improper statement of the law.” We agree. The court of appeals correctly noted that the emphasized portion of the instruction has no basis in Arizona law. The “difficulty or expense” in taking preventive measures may be relevant in determining whether the defendant acted reasonably in any particular situation, but the utility is not an insurer against accident or injury to others. Salt River Valley Water Users’ Ass’n v. Compton, 39 Ariz. at 495, 8 P.2d at 250. We hold, therefore, that the trial court erred in giving this instruction. However, we do not believe that this error requires or permits reversal. First, APS failed to object to the wording in question; its only objection was that the instruction was an “improper statement of the law.” Such a general objection is not sufficient to call the trial court’s attention to the precise defect in the instruction and was not, therefore, a sufficient predicate for appeal. Rule 51(a), Arizona Rules of Civil Procedure, 16 A.R.S. ■ Next, the ques tion of feasibility was not an issue in the case. APS did not argue that it had failed to take measures to prevent the accident because of either technical or economic un-feasibility. In fact, the evidence showed that the cost of the measures which APS took to shoofly or re-route the lines after the accident was relatively negligible. There was also uncontradicted expert testimony that the lines could have been de-en-ergized. Rather, APS’ defense to the negligence charge was primarily directed to the theory that without actual notice that the crane “was going to operate dangerously close to its wires, no further duty to plaintiff existed from APS.” Since the objection to the words in question was not specific, and since the precise issue covered by the erroneous words was not truly in question in the case, the incorrect statement in the instruction does not warrant reversal. Upon the whole charge, the jury was given proper rules to be applied in arriving at a correct decision. Kauffman v. Schroeder, 116 Ariz. 104, 106, 568 P.2d 411, 413 (1977); Arizona Public Service v. Brittain, 107 Ariz. at 281, 486 P.2d at 179. APS next argues that the trial court erred in refusing its instruction No. 11 on the duty of employers and employees under A.R.S. §§ 23 — 403, -404. These statutes impose upon employers a duty to provide a workplace free from recognized hazards and require employers and employees to comply with occupational safety and health regulations. The regulations accompanying the proffered instruction pertain to use of cranes near power lines. We believe the trial court was correct in refusing the instruction. Assuming that at the time of the accident the crane was operated in violation of the 10-foot minimum clearance prescribed by OSHA, that violation was not chargeable to Koy Grant. Grant was not operating the crane, did not participate in directing its operation, was not an employee of the company operating the crane, and had not been assigned to signal the crane or observe clearance of the equipment from the power line. At the time of the accident, he was in a hole, 20 feet below ground level and out of eye contact with the worker directing the crane operator and the crane operator himself. Assuming that Clarke, the job superintendent for Grant’s employer, had negligently violated the OSHA regulations, we are cited to no law which would impute that negligence to Grant. The trial court did not err in refusing an instruction which was not supported by the evidence and therefore was not applicable to the facts of this case. See DeElena v. Southern Pacific Co., 121 Ariz. 563, 569, 592 P.2d 759, 765 (1979). APS next contends that the evidence was insufficient to warrant the instruction on wilful and wanton negligence. The court of appeals disagreed, with one judge dissenting from that conclusion. Since the jury did not award punitive damages and we are affirming the award of compensatory damages, any error which might exist in submitting the issue of wanton negligence or in the wording of the instruction itself is irrelevant and need not be discussed. APS further argues that the trial court erred in refusing to give its requested instruction No. 17A, to the effect that any duty to warn owed by it would be fulfilled by the warning given to Grant’s supervisor. Assuming, without deciding, that the instruction is a correct statement of the law, there was no error in the trial court’s refusal because the warning instruction requested was abstract. The workmen were warned. The case turns not on failure to warn, but on failure to take action to prevent injuries which could be foreseen despite the crew’s knowledge of danger. APS then claims that the court erred in refusing its instruction No. 99, which postulated that APS would not be liable “to members of the public” if the condition which caused the injury was “known or obvious to such persons.” The authorities relied upon by APS for this contention are Pruett v. Precision Plumbing, 27 Ariz.App. 288, 554 P.2d 655 (1976), and Citizens Utility v. Livingston, 21 Ariz.App. 48, 515 P.2d 345 (1973). Both of these cases concern situations in which liability was sought to be imposed on owners or occupiers of land under Restatement (Second) of Torts § 343 (1965). These principles are inapposite to the situation before us, which involves the duty of a utility to take measures to prevent injury to workmen foresee-ably endangered by uninsulated power lines. Even in premises cases there is liability where the possessor of the land might reasonably expect that invitees will be unable to protect themselves against the danger. Pruett v. Precision Plumbing, 27 Ariz.App. at 290, 554 P.2d at 657. APS then complains of the court’s refusal of its requested instruction No. 106, which would have informed the jury that APS’ compliance with the National Electric Safety Code satisfies the “minimum construction and maintenance standards applicable to the construction and operation” of a utility. Ordinarily, a utility’s compliance with codes is some evidence of due care. Cronk v. Iowa Power & Light Co., 258 Iowa at 612, 138 N.W.2d at 848. However, this requested instruction is abstract and not relevant to the facts here under consideration. There was no claim that the lines were built too low to the ground or had been allowed to sag, nor that any other feature of general construction or operation of the power lines failed to comply with the code. The issue, rather, was whether APS had failed to take measures to de-energize or re-route the lines when it knew or should have known that there was danger to workmen in the area. APS did not provide the trial court — or us — with any citation to a portion of the code which would apply under the circumstances of this case. The refusal of the instruction was therefore proper. APS next complains that the trial court gave plaintiffs’ requested instruction 22, which read as follows: If a party does not present evidence which is available to him or it, which he would naturally be expected to bring before the court, and which is not available to the other party, you may infer, if it seems reasonable to you to do so, that this evidence would have been unfavorable to him. The only objection made by APS at the trial was that there was “nothing in this trial that occurred which would justify giving that instruction.” APS’ representative at the trial was Mr. Coeanour, a managing agent of APS. He sat at APS’ table throughout the trial and had been listed as a witness. Mr. Coeanour was called for cross-examination by plaintiff. APS then advised the court that it was deferring direct examination of Mr. Coeanour and would examine him later. It never called him to the stand. In addition, in its answers to interrogatories, APS had named over 100 witnesses, including several electrical engineers. Only two witnesses were called. Where a party fails to call a witness under his control, ... or where he fails to call a seemingly available witness, whose testimony he would naturally be expected to produce if it were favorable to him, it is not improper for counsel on the other side, in argument, to comment on such failure. Ray Korte Chevrolet v. Simmons, 117 Ariz. 202, 208, 571 P.2d 699, 705 (App.1977). Since APS made no objection to the instruction other than the lack of factual support, the principle of the Korte case concerning propriety of argument is equally applicable to the propriety of instructing on the subject. EVIDENTIARY ISSUES APS complains of three evidentiary rulings by the court below. The first objection is directed toward plaintiffs’ failure to identify trial exhibits with sufficient specificity. APS alleges that plaintiffs made sweeping, broad descriptions of the contents of exhibits. Thus, APS claims that it was unable to review the exhibits before trial in order to make meaningful objections or to discuss them with its witnesses before they were examined about them. The matter was brought to the trial court’s attention at the beginning of the trial. The court discussed the problems with counsel and imposed specific corrective measures to be taken by plaintiffs’ counsel. The trial judge is vested with great discretion in the conduct and control of the trial. Packard v. Reidhead, 22 Ariz.App. 420, 423, 528 P.2d 171, 174 (1974); Hales v. Pittman, 118 Ariz. 305, 313, 576 P.2d 493, 501 (1978). APS has not claimed any specific prejudice which occurred because of its alleged unfamiliarity with the exhibits used by plaintiff and our review of the record indicates that APS’ examination and cross-examination of witnesses with regard to plaintiffs’ trial exhibits was thorough. We find no abuse of discretion in the trial court’s ruling with regard to plaintiffs’ lack of specificity in describing exhibits in the pretrial statements required by Rules VI(a)(l), (6) of the Uniform Rules of Practice of the Superior Court and Rule XVI(c)(l), (6) of the rules relating to Maricopa County. APS then argues that the court erred in admitting plaintiffs’ exhibit No. 119. This exhibit constituted APS’ financial statements, showing assets in the area of $1,700,000,000, a fact mentioned by plaintiffs’ counsel during final argument. Of course, a defendant’s financial statements are irrelevant in the ordinary case, but are admissible to show wealth or financial status of the wrongdoer where an issue regarding punitive damages is submitted to the jury. Nielson v. Flashberg, 101 Ariz. 335, 341, 419 P.2d 514, 520 (1966). Since an issue of punitive damages was submitted to the jury in this case, the trial court admitted the evidence pertaining to defendant’s financial status. As noted above, the jury did not assess punitive damages and, therefore, we have not considered the propriety of submission of that issue. We note, however, that even if the punitive damages issue, and thus the financial evidence, should not have been permitted, the record does not support a conclusion that the compensatory damage verdict was “tainted” by the jury’s knowledge of defendant’s worth. The compensatory damages, although substantial, do not appear excessive. Defendant has not raised that issue on appeal. It is common knowledge that Arizona Public Service is the largest utility in the state. It serves much of the state, including the City of Phoenix, where the trial was held and the jurors resided. We must assume that, even in the absence of information showing APS’ exact wealth, the jury would have been well aware that the company to which they pay their monthly utility bills is a very large corporation with hundreds of millions of dollars in assets. THE “PRIOR ACCIDENTS” ISSUE APS objected to the admission of plaintiffs’ exhibit No. 22. The exhibit is a letter from APS’ senior safety analyst to APS’ safety supervisor, containing a summary, by type and number, of accidents which occurred through contact with APS’ energized power lines for the years 1972 through 1974. Examination of the exhibit shows that some of the 124 incidents described did involve contact between a crane and an overhead energized power line. These incidents were at least prima facie relevant. First, they were relevant because the list was part of the information which APS had compiled and which went into the formulation of APS’ safety program applicable to construction situations. According to plaintiff, APS had violated its own program standards in this case. Second, the list was relevant to show APS’ knowledge of the danger involved in the use of cranes near overhead lines and, thus, to establish that APS’ safety department should have foreseen danger in the situation present in this case. The occurrence of other accidents having some degree of similarity to the one under consideration was admissible to prove that the defendant was “aware of something that made [its] subsequent behavior careless . . .. ” See M. Udall & J. Livermore, Law of Evidence § 85, at 188 (2d ed. 1982). Such evidence is relevant to prove “knowledge or notice of [the dangerous] condition, or negligence in allowing the condition to continue.” Burgbacher v. Mellor, 112 Ariz. 481, 483, 543 P.2d 1110, 1112 (1975) (citing Slow Development Co. v. Coulter, 88 Ariz. 122, 125, 353 P.2d 890, 892 (1960)). It is true that many of the other incidents on the summary were not similar to the accident involving Grant and include such things as overhead contacts between power lines and antennae, underground contacts with subsurface lines, and the like. “Other accidents” are usually inadmissible without a proper foundation showing some similarity between the accident under consideration and the prior event. See Slow Development Co. v. Coulter, 88 Ariz. at 125-26, 353 P.2d at 892; M. Udall & J. Livermore, supra at 189. We are thus faced with the admission of an exhibit which contained information which was relevant but which also contained much information of questionable relevancy absent additional foundation. However, as the court of appeals correctly noted, the only objection made was “irrelevant.” Defendant’s counsel did not raise the lack of foundation showing similarity and did not make a specific objection to that portion of the exhibit which would not be admissible. General objections, such as “irrelevant, immaterial, and incompetent,” are insufficient to raise the issue on appeal. Tucson Federal Savings & Loan Ass’n v. Aetna Investment Corp., 74 Ariz. 163, 173-74, 245 P.2d 423, 430 (1952). An objection that evidence is irrelevant, without specifying “how or why” it is irrelevant, does not raise an issue on appeal where, under any possible circumstance, all or part of the evidence would have been relevant. See Rush v. French, 1 Ariz. 99, 126, 25 P. 816, 823 (1874). The purpose of the rule requiring specificity of objection is to enable the adversary to obviate the objection if possible and to permit the trial court to make an intelligent ruling and rectify error if possible. State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 901 (1955). Further, where part of an exhibit contains admissible evidence, and part inadmissible evidence, the court is not under an obligation to separate the “sheep from the goats" and commits no error in overruling the objection. Cf. Powell v. Langford, 58 Ariz. 281, 288, 119 P.2d 230, 233 (1941) (requested instruction). Therefore, we find no error in the admission of plaintiffs’ exhibit No. 22. The more important question here, however, pertains to the use of the exhibit during argument by plaintiffs’ counsel. ALLEGED MISCONDUCT OF COUNSEL IN FINAL ARGUMENT Defendant urges that plaintiffs’ counsel was guilty of misconduct during the closing arguments. Numerous incidents of such alleged misconduct are assigned. Essentially, APS’ complaints on this issue fall into three categories of improper argument. The first is the argument which plaintiffs’ counsel based on exhibit No. 22 and which can best be characterized as drawing improper inferences from evidence admitted at the trial. We acknowledge that during the argument trial counsel is allowed to submit to the jury any reasonable inference which may be drawn from the facts admitted in evidence. Pelayo v. Bell, 13 Ariz.App. 418, 419-20, 477 P.2d 537, 538-39 (1970). However, in arguing the punitive damages issue plaintiffs’ counsel used the summary of the prior accidents to draw inferences far beyond those which were legitimate. For instance, on several occasions reference was made to “124 overhead serious incidents,” to “124 deaths,” to “124 acts of negligence” by APS, to the need for a punitive damage award which would prevent the 125th death, and similar comments explicitly pertaining to the contention that APS had been guilty of gross negligence and that the jury should award punitive damages. Under no stretch of the imagination could it be said that exhibit No. 22 contains information indicating 124 deaths, 124 cases of negligence, or even 124 accidents involving contact with overhead lines, and counsel’s argument was not a legitimate inference from the evidence. The second category of improper argument by plaintiffs’ counsel concerns the interjection of facts which were not in evidence. This, of course, is impermissible. Heimke v. Munoz, 106 Ariz. 26, 30, 470 P.2d 107, 111 (1970). An example of this was counsel’s comment that the jury should consider that Mrs. Grant had not had a “date” and would not remarry. No evidence supported this speculation and such comments were impermissible, both because they were not supported by the evidence and because evidence of the likelihood of remarriage is irrelevant and therefore inadmissible in a wrongful death case. See State v. Cress, 22 Ariz.App. 490, 496, 528 P.2d 876, 882 (1974); Hing v. Youtsey, 10 Ariz.App. 540, 543, 460 P.2d 646, 649 (1969). The third category of improper argument which APS calls to our attention pertains to counsel’s repeated interjection of his personal views and comments, e.g., “I knew that [testimony] wasn’t true.” This type of comment was repeated on several occasions during final argument. It is improper for attorneys to argue their personal beliefs in their client’s case. Frontier Motors, Inc. v. Horrall, 17 Ariz.App. 198, 201, 496 P.2d 624, 627 (1972). APS properly preserved the issue by attempting to object during argument, and upon being advised by the court that such objections were not permissible under Rule 51(d), Arizona Rules of Civil Procedure, 16 A.R.S., waited to be heard at the conclusion of plaintiffs’ opening argument. At that time, APS pointed out the specific items to which they objected in the argument and made the appropriate motion for a mistrial. This motion was denied. We agree with the court of appeals that the argument was improper, constituted misconduct of counsel, and that APS did not waive objection. We disagree with the court’s conclusion that “[i]n assessing the total impact of such misconduct together with the other error set forth in this opinion, ... the defendant APS was denied a fair trial.” We do not feel that the misconduct during final argument, viewed alone, or in conjunction with the improper wording of the instruction setting forth APS’ required standard of care, are sufficient to enable us to conclude that the trial court erred in denying APS’ motions for a mistrial and for a new trial. The granting or denial of a new trial on the grounds of misconduct of counsel is a matter within the trial court’s discretion. Mayo v. Ephrom, 84 Ariz. 169, 172, 325 P.2d 814, 816 (1958). A new trial on grounds of misconduct is never granted “as a disciplinary measure but only to prevent a miscarriage of justice.... or, as stated in our Rules of Civil Procedure, Rule 59(a), 16 A.R.S., for a cause ‘materially affecting [the] rights ... ’ of the aggrieved party.” Zugsmith v. Mullins, 86 Ariz. 236, 238, 344 P.2d 739, 740 (1959) (citation omitted). In deciding whether the trial court abused its discretion by denying APS’ motion, the prime factor to consider is whether the record clearly establishes that the improper conduct caused the jury to return a verdict which was the result of passion and prejudice. See Frontier Motors, Inc. v. Horrall, 17 Ariz.App. at 201-02, 496 P.2d at 627-28. From the bare record here we cannot make an independent finding that the verdict was influenced by any prejudice engendered by the improper conduct. We note that the main thrust of the improper argument pertained to exhibit 22 and was specifically and explicitly directed to the question of punitive damages. If the jury had agreed with plaintiffs’ counsel that exhibit 22 established that APS negligently caused 124 deaths or serious injuries through contact with APS’ power lines, they would undoubtedly have done what counsel suggested — prevent the 125th by awarding punitive damages. Their rejection of this demand is an indication that they were aware that the argument was unsupported. Conflicting inferences to be drawn from items in evidence, such as exhibit 22, are often the subject of argument and it is often the case that opposing counsel have radically divergent views of what inferences may be legitimately drawn from the facts. On these questions, the common sense of jurors is our best protection. Admittedly, the argument went beyond the boundary of legitimate inference and into speculation unsupported by the evidence. However, this is immediately apparent from looking at exhibit 22 and was called to the jury’s attention by defense counsel in his argument. It is difficult under the facts of this case to conclude that the jurors were misled by the argument, especially when they refused to award plaintiff the punitive damages for which the argument was the explicit predicate. We have also reviewed the record to determine whether the improper argument might have caused the jury to award more in compensatory damages than was fair and reasonable. However, the verdict is well within the boundaries of reason. At the time of his death, Grant was 26 years of age, gainfully employed, with earnings of $27,000 a year for the two years before his death. He left two young children and a wife who was so profoundly upset by his death that she required psychiatric treatment. There was uncontroverted evidence that Grant was a skilled, diligent and ambitious workman, that he worked overtime and weekends, at various types of work in order to increase his earnings. There was testimony that because of his skill and diligence he was in line for promotion and could expect various business opportunities. The evidence indicated that the items of special damage, including loss of earnings and earning capacity, were approximately $500,000. Under these circumstances, we conclude that the experienced trial judge did not abuse his discretion in concluding that the misconduct relating to exhibit 22 did not prejudice defendant by increasing the compensatory damages. We also find no evidence that the jurors were misled or prejudiced by the remark that Ms. Grant would not remarry. Though the issue of remarriage is inadmissible in Arizona, such common sense questions are often the subject of speculation in the jury room and, in the absence of even an arguable injustice with respect to the amount of damages, we must conclude that the jurors were not prejudiced by counsel’s speculations on the subject. One further factor compels the conclusion that the misconduct does not warrant reversal. In those few cases in which the appellate court has concluded that the trial court abused its discretion in denying a motion for mistrial or new trial grounded upon a claim of misconduct, almost invariably the misconduct has been combined with other, serious error, the cumulative effect of which is to compel the conclusion that there was prejudice. Ordinarily, we are most anxious to defer to the conclusion of the trial judge in determining whether he has abused his discretion. This is so because of his greater opportunity and advantage to observe all the parties and witnesses involved. But such an advantage does not exist where there is a question whether the jury was properly instructed on the law. The trial judges and this court stand on relatively similar levels in determining such an issue. County of Maricopa v. Maberry, 555 F.2d 207, 223 (9th Cir. 1977) (reversing because of the combination of an erroneous instruction on a fundamental issue, and counsel’s misconduct in asking a grossly improper question). See also Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967) (granting a new trial). In Elledge, there was both misconduct during final argument and admission of highly prejudicial evidence, consisting of a letter to the State Department of Liquor Licenses and Control which suggested that defendant’s bar was a meeting place for homosexuals. In the case at bench, the court of appeals found that the “total impact” of misconduct by plaintiffs’ counsel, when combined with the other errors set forth in their opinion, denied APS a fair trial. We have found no substantial other error and conclude that the trial court did not abuse its discretion in finding that the misconduct of plaintiffs’ counsel did not deny APS a fair trial. In reaching this conclusion, however, we do not underestimate the problem. Final argument is no place for departing from the record, drawing illegitimate inferences, arguing facts not in the record or stating counsel’s personal conclusions. The trial court should give counsel wide latitude in making arguments, should use Rule 51(d) to minimize interruptions, but should feel free to entertain objections on legal issues which may be raised under that rule, and should impose restraints upon counsel once it appears that argument is proceeding past legitimate boundaries. It is difficult for us to express adequately our displeasure with the type of argument shown in this record. Wisely, the law does not permit the judgment to be reversed as a disciplinary measure. Zugsmith v. Mullins, supra. If that which counsel sought by the improper argument — an award of punitive damages — had resulted, we would have no hesitation in concluding that the misconduct probably influenced the jury. If the compensatory damages verdict appeared at all excessive, we would reach the same conclusion. If, in the absence of any of the foregoing factors, the trial court had nevertheless decided in its discretion that there was prejudicial misconduct, we also would have no hesitation in affirming. In the absence of any of this, we cannot conclude from the bare record that the misconduct influenced the result and must therefore affirm despite the impropriety. The opinion of the court of appeals is vacated and the judgment of the trial court is affirmed. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and CAMERON, JJ., concur. SUPPLEMENTAL OPINION FELDMAN, Justice. Arizona Public Service has directed its motion for rehearing solely to that portion of the opinion dealing with misconduct of counsel. In addition, many prominent members of the trial bar in this state have sought and been granted permission to appear as amici in support of the motion for rehearing. In view of the important issues raised and because of what appears to be some misunderstanding of our holding on the question of misconduct, we have decided to supplement the opinion. The arguments advanced by APS and the amici may be summarized as follows: 1. The opinion adopted a “new rule” to the effect that misconduct is not ground for reversal unless the record clearly establishes the verdict arises from passion and prejudice. This, it is claimed, improperly creates a presumption that serious acts of misconduct did not prejudice the verdict. 2. Such a “presumption” should not be indulged when the trial court has “abdicated its responsibility” to control counsel’s conduct; the burden should be upon the party guilty of misconduct to establish that there was no prejudice. 3. The opinion has established a rule that an order denying a motion for a new trial made upon the ground of misconduct is to be reversed only when that misconduct was accompanied by other, serious error. 4. The consequences of adopting the “new rule” or “presumption” will result in ■lowering the “moral tone” of the bar, lessening the deterrent against misconduct by counsel, inviting the trial bar to cross the line of propriety and making trial courts reluctant to exercise their power to control misconduct. 5. Explicitly argued in APS’ memorandum and implicit in the brief of the amici is the further contention that this court should rule that reversal in the absence of prejudice is appropriate where the reason for so doing is to ensure ethical practice by the trial bar. THERE IS NO “NEW RULE” CREATING A PRESUMPTION OF HARMLESS ERROR Omitting some of the citations, we reemphasize the points made in our original opinion (at 524). The grant or denial of a motion for a new trial on the ground of misconduct is a matter within the trial court’s discretion; in exercising that discretion, the trial court must decide whether the misconduct has materially affected the rights of the aggrieved party. In its motion for rehearing, APS argues that we should hold that when misconduct “tends” to influence the verdict improperly, a new trial should be granted. We disagree. By definition, most acts which constitute error or misconduct are of the type which tend to exert an improper influence on the result; it is for that reason that they are considered to be error or misconduct. If a mere tendency to influence the result were the test, then almost every trial court error would be ground for reversal. The law is to the contrary. No error ... in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict ... unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. Rule 61, Rules of Civil Procedure, 16 A.R.S. (emphasis supplied). A similar rule is contained in the Arizona Constitution. Ariz. Const, art. 6, § 27. These principles are reflected in the case law. Reversal will be required only when there has been error or misconduct and it appears probable that the misconduct “actually influenced the verdict.” Sanchez v. Stremel, 95 Ariz. 392, 395, 391 P.2d 557, 559 (1964). A new trial will be granted only for a cause “materially affecting the rights . . . of the aggrieved party.” Zugsmith v. Mullins, 86 Ariz. 236, 238, 344 P.2d 739, 740 (1959). We decline to depart from this rule and, indeed, are constrained to follow it by Rule 61, supra. Thus, the issue before us is how to determine whether the misconduct influenced the decision. APS argues persuasively that this court cannot be certain that the misconduct did not influence the jury and that since the denial of a motion for a new trial imports greater finality than an order granting a new trial, any doubt regarding prejudicial effect should be resolved in favor of the party aggrieved. See Sadler v. Arizona Flour Mills Co., 58 Ariz. 486, 121 P.2d 412 (1942). We agree with both contentions. At the time the original opinion was written, this court was not certain that the misconduct had not influenced the verdict. We are no more certain now. If we had the initial determination of this issue and were to apply the Sadler rule, we might well grant APS’ motion for a new trial on the ground of misconduct. It is at this point that the amici misconstrue the meaning of the opinion. We did not hold that the record must clearly establish that the improper conduct caused the jury to return the verdict. The initial determination of this issue is to be made by the trial court. It is a factual determination and no presumption of prejudice or the lack of prejudice should be applied, except, of course, if the misconduct is serious, the trial judge should resolve any doubt regarding prejudice in favor of the party aggrieved. Sadler v. Arizona Flour Mills Co., supra. Our language from page 35 of the original opinion does state that the “prime factor to consider is whether the record establishes that the improper conduct cáused the jury to return a verdict which was the result of passion and prejudice.” But the first half of that sentence states explicitly that this rule is to be applied by us “[i]n deciding whether the trial court abused its discretion by denying ...” the motion for a new trial. Thus, no “new rule” has been adopted at all. The trial court must make a factual determination of whether the misconduct has affected the result; as with most factual determinations, this is a matter within its discretion. We do not reverse that discretionary, factual finding unless the record clearly establishes that the trial court was incorrect. This analysis is not new or peculiar to motions for a new trial on the ground of misconduct; it is the usual rule applied to all discretionary, factual findings by the trial court. Its specific application to motions for new trial is set forth in Taylor v. Southern Pacific Transportation Company, 130 Ariz. 516, 637 P.2d 726 (1981). APS claims that the decision in the case at bench is directly contrary to the Taylor case, but we think quite the opposite is true. In Taylor, we affirmed the grant of a new trial upon the trial court’s finding that the misconduct had procured a verdict which was the result of “passion and prejudice on the part of the jury.” In this case, we affirm the trial court’s finding that the misconduct had not influenced the result. The reasons given to justify the result in Taylor are the reasons which justify the result here. As we said in Taylor: In reviewing a decision to grant a new trial, an appellate court will not reverse the trial court unless there is a clear abuse of discretion. The reason for the broad discretion granted trial judges in these matters has been stated as follows: “The judge sees the witnesses, hears the testimony, and has a special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record. For this reason he is accorded broad discretion in granting a new trial. * * * ****** “Due to his unique position, the trial judge has become the primary buffer against unjust verdicts. He performs an indispensable function without which our system of justice could not hold out the promise of [a] uniform application of the law.” Taylor v. Southern Pacific Transportation Company, 130 Ariz. at 521, 637 P.2d at 731 (quoting from Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978)). The trial court heard extensive argument on the misconduct issue, and was made aware in some detail of each instance of alleged misconduct. Nevertheless, the court found no prejudice, and our task was merely to determine whether that finding by an experienced trial judge was an abuse of discretion. The term “abuse of discretion” is one which is often used by appellate courts but seldom defined. One possible definition is that a trial court acts within its discretion when it reaches a conclusion which pleases the appellate court, and abuses its discretion when the conclusion is one with which the appellate court disagrees. We consider this definition unsatisfactory. We set forth in the original opinion, and repeat, those factors which seem relevant for use by the appellate court in determining in this and similar cases whether there has been an abuse of discretion by the trial court. With some additions, they are: 1. Where there has been an error of law committed in the process of reaching the discretionary conclusion. See Brown v. Beck, 64 Ariz. 299, 169 P.2d 855 (1946). 2. Where the discretionary conclusion was reached without consideration of the evidence. Knollmiller v. Welch, 128 Ariz. 34, 623 P.2d 823 (App.1980). 3. Where other, substantial error of law has occurred as part of or in addition to the misconduct, we may conclude that the trial court abused its discretion. Those few Arizona cases in which the trial court’s denial of a motion for a new trial on the ground of misconduct has been reversed on appeal fit into this category. See County of Maricopa v. Maberry, 555 F.2d 207 (9th Cir. 1977) (applying Arizona law); Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967); Sisk v. Ball, 91 Ariz. 239, 371 P.2d 594 (1962). These cases involved introducing new theories of liability (Sisk), bringing implications of defendant’s homosexual activities before the jury (Elledge), and erroneous instructions on an important legal issue in addition to counsel’s misconduct (Maberry). Contrary to the fear expressed by the amici, we did not hold that the trial court must find other, serious error before misconduct may justify a new trial. We do hold that the presence of such other error, combined with misconduct, may well enable us to conclude that the trial court abused its discretion in denying the motion, even though either factor, considered alone, might not be sufficient. 4. Our review of the record may convince us that there is no substantial basis for the trial court’s discretionary finding. However, this is not a holding that the trial court must find the record affirmatively establishes prejudice, but merely a rule that the appellate court may find an abuse of discretion if the record fails to provide substantial evidence to support the trial court’s finding. This is not a new rule. Martin v. Rossi, 18 Ariz.App. 212, 501 P.2d 53 (1972). Thus, as we indicated in the original opinion, if the improper argument which was explicitly directed toward punitive damages had been successful, or if the compensatory damage award had appeared unreasonable, we could then find that the record did not provide substantial support for the trial court’s finding of lack of prejudice. Cf. Stone v. Foster, 106 Cal.App.3d 334, 355, 164 Cal.Rptr. 901, 913 (1980) (punitive damages awarded); Koufakis v. Carvel, 425 F.2d 892 (2d Cir. 1970) (compensatory damages excessive). However, neither of these factors is present, and we found and find no basis for concluding that the record establishes that the trial court was incorrect in its factual determination. We are urged to follow a line of cases which hold that prejudice must be presumed even when it cannot be demonstrated because the trial court failed to admonish the jury to disregard the misconduct. These cases, however, were situations in which, for one reason or another, the trial court seems to have lost control over the entire trial, so that the reviewing court must conclude that the trial proceedings were a virtual mockery of the concept of a fair and impartial trial. In Love v. Wolf, 226 Cal.App.2d 378, 38 Cal.Rptr. 183 (1964), the appellate court detailed counsel’s misconduct from opening statement through final argument, characterizing the misconduct as “egregious beyond any in our experience or that related in any reported case . .. . ” Id. at 382, 38 Cal.Rptr. at 184. The court found the trial judge’s “loss of . . . control” of the case “very puzzling.” Id. at 391, 38 Cal.Rptr. at 190. See also Simmons v. Southern Pacific Transportation Company, 62 Cal.App.3d 341, 133 Cal.Rptr. 42 (1976). Our review of this record does not permit the conclusion that the trial judge “lost control” of the case, nor that the court permitted counsel to engage in conduct which precluded a fair trial. Hopefully such a case will not arise; if it does come before us, we shall have no hesitancy in finding that denial of a motion for a new trial was an abuse of discretion. We are left here with a case in which the record could justify either a conclusion of prejudice or no prejudice. Therefore, the rule of Taylor v. Southern Pacific Transportation Company, supra, is applicable, and the trial court’s discretionary finding must be affirmed. Thus, as we previously indicated, if the trial court had granted a new trial, we would have no hesitancy in affirming. On the other hand, since the record also supports the contrary finding, we must affirm the order denying a new trial, unless some reason exists for departing from the usual rule. APS claims that the need to deter misconduct by counsel in order to ensure ethical practice by the trial bar provides an adequate reason to depart from the usual rule. THE DISCIPLINE QUESTIONS APS states that the “effect of the court’s opinion is to promote disrespect for the judicial system.” In essence, the argument is that by allowing counsel to “get away” with misconduct, we will encourage others to indulge in such actions in order to attract clients. The amici urge that lawyers with contingent fee contracts will be given a “powerful incentive ... to increase the size of [their] fee by inflaming the jury with improper argument.” Thus, we are asked to safeguard the integrity of the system by departing from the traditional rule that the verdict will not be disturbed merely to punish the lawyer. Zugsmith v. Mullins, 86 Ariz. 236, 237, 344 P.2d 739, 740 (1959). This rule has most recently been expressed in the following words: “Misconduct alone will not cause reversal, as a new trial should not be granted to punish counsel.” State v. Cannon, 133 Ariz. 216, 650 P.2d 1198 (1982) (quoting State v. Ramirez, 116 Ariz. 259, 265, 569 P.2d 201, 207 (1977)). As APS points out, Zugsmith did not involve serious misconduct; however, Cannon, a first degree murder case in which the prosecutor failed to reveal a substantial change in the condition of the murder weapon, involved very serious misconduct. In our first opinion, we declined to depart from the Zugsmith rule. APS argues that our decision declares “... open season on integrity in our judicial system and [exposes] it to the rape and repetitive ravages of those few who are willing to compromise truth in search of ever increasing verdicts. If the tactic is successful, it is tempting to repeat it again and again.” Dismayed as we are by such an Orwellian prospect, we are not persuaded. Where the trial court has determined that the trial was fair and the result not influenced by the misconduct, then reversal to punish the lawyer has the necessary effect of punishing the client in order to discipline the profession. Even if such a procedure were permissible, it should certainly be avoided unless absolutely necessary. APS and the amici claim such a procedure is necessary here. They cite several other cases which allegedly prove that the lawyer in question has established a pattern of misconduct; they argue that misconduct in this case is not an isolated episode prompted by the pressure of the case, zeal for the client’s cause, the tactics of the opposition or any of the other factors which occasionally lead even ethical trial lawyers to conduct themselves improperly. This lawyer, they argue, is among the small group who customarily use improper techniques and can only be deterred by the most draconian of measures. The vice in this argument is that this court cannot make a summary adjudication with regard to any lawyer’s customary method of practice in or out of court. We think it is obvious that the lawyer has the right to be heard with regard to the occurrences in this and the other cases. Trial of hotly contested issues such as those presented by this case produces few candidates for canonization on either side. Circumstances not apparent on the face of the record must often be considered. Lawyers are entitled to be heard before being branded as unethical practitioners. More important, we disagree with APS’ assertion that by affirming for lack of prejudicial error we are “. . . declaring open season on integrity .... ” We do no such thing. Where misconduct has affected the verdict, the verdict should be set aside. Where it has not affected the verdict, the verdict should stand. The way to deal with those who “constantly practice close to the line” (Amici Brief) or whose “repetitive” transgressions put them among “those few who are willing to compromise truth in search of ever increasing verdicts” (APS’ wording) is to follow the disciplinary procedures which are contained in the rules of this court. Since we must sit in final decision-making capacity with regard to breach of disciplinary rules, we do not ordinarily initiate disciplinary proceedings where the facts which may justify such action are within the knowledge of those who have both the opportunity and means to do what the rules require and permit in such cases. If the lawyer here merits discipline, a question on which we have formed and express no opinion, the forum for that is provided in the rules. With the foregoing clarifications, the original opinion will stand. The motion for rehearing is denied. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and CAMERON, JJ., concur. . The box culvert was necessitated because at the Watkins Road intersection the storm sewer had to pass under an existing large pipeline which was 20 feet below the surface. Therefore, at this intersection, excavation would be required to a depth of 31 feet below ground surface, and the width of the excavation was to be much greater than at other points in the project, thus bringing the construction equipment closer to the power lines on the west side of 15th Avenue. Also, because of this increased depth and width (and some soil problems), it was necessary to shore the sides of the excavation by installation of the sheet piling. . The west edge of the excavation was so close to the power poles on the west side that there was a danger that the earth might give way, and possibly cause the poles and the lines to fall into the trench. . Comment c of § 473 gives the following example: “[W]hen a public utility maintains its facilities in a dangerous condition, its patrons may without contributory negligence use them although the risk in so doing is obvious and substantial.” Thus, mere exposure to the known danger is not contributory negligence, unless the plaintiff fails to exercise such care as is possible in confronting the danger. Id., comment e. . Cf. Restatement (Second) of Torts § 476. . APS submitted a total of 118 instructions to the trial court. Plaintiff also submitted a large number of requests. Since their publication and approval in 1974, the “Recommended Arizona Jury Instructions” (RAJI) have generally been used in our trial courts. RAJI not only covers instructions of the “stock” variety, but also contains instructions on many substantive issues in various types of cases. One of the objectives contemplated by our order approving the RAJI instructions was to relieve court and counsel from the task of drafting and considering a great number of instructions, thus hopefully producing fewer chances for error in the instruction process. Of course, each party is free to submit additional instructions where the RAJI instructions require correction or supplementation. However, counsel should not consider themselves free to submit a large number of unnecessary, conflicting or repetitive instructions in the hope that the volume of words may induce error, thus providing “insurance” against an adverse verdict. The trial court has much to do without having to spend precious time in settling the wording of a multitude of instructions which are unnecessary in light of the fairly complete coverage provided by the easily comprehended RAJI instructions. Hopefully the trial bar will see to it that such problems do not continue to occur. If they do, this court may well consider the submission of so large a number of instructions a waiver of error with regard to the trial court’s rulings on any but the most fundamental of such instructions. . According to a summary prepared by APS (plaintiffs’ exhibit 22 in evidence), other prior incidents involving contact between cranes and overhead lines had occurred. This evidence was admitted to show notice of the danger. Other issues pertaining to the exhibit are discussed below. . The rule provides in part: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto, before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” (Emphasis added.) An objection to an instruction on the ground that it is “an incorrect statement of the law applicable to the facts of this case” is insufficient under Rule 51(a). Sult v. Bolenbach, 84 Ariz. 351, 355-56, 327 P.2d 1023, 1027 (1958); Purcell v. Zimbelman, 18 Ariz.App. 75, 91, 500 P.2d 335, 351 (1972). . The difficulty of de-energizing the lines or otherwise obviating the hazard presented by those lines at the site of the accident was at issue in this case only insofar as it concerned the alleged reason why the project superintendent, Clarke, failed to notify APS prior to commencing work with the crane at the particular portion of the jobsite where the accident occurred. Clarke contended that APS’ representative told him that the lines could not be de-en-ergized. APS’ version of the conversation is that its representative informed Clarke that the lines “could not just be turned off’ and that some kind of bypass system would have to be built in order to maintain power to customers served by those lines. The problem or expense of shooflying the lines was not in question. The issue was notice. That issue was properly presented to the jury. . For example, exhibit 30 was listed as “City of Phoenix files re 15th Avenue storm job.” . This case, decided by Arizona’s Territorial Supreme Court, provides an excellent disquisition on the proper mode of raising objections at trial. Its analysis and instructive exhortations to trial counsel retain vitality even though they were made more than 100 years ago. The case is also worth reading for entertainment . The rule reads as follows: “Interruption of counsel in argument will not be permitted except for the purpose of raising a question of law.” . See supra, p. 519. . This was the main argument advanced in APS’ Motion for New Trial. . The objection that counsel was arguing facts not in the record is an objection “raising a question of law” under Rule 51(d). . If, as alleged by APS, the lawyer in question has been guilty of impropriety in previous cases, we have difficulty in understanding why the bar has waited to initiate those procedures which are designed to assist in the discipline of the profession. We do not mean by this to recommend that any action is necessarily indicated against this particular lawyer. . Interesting examples of reasons for this con- elusion are present in this case. For instance, the opinion of the court of appeals indicates that APS argues that the erroneous admission of exhibit 22 was compounded by use of the contents of that exhibit during argument by plaintiffs’ counsel. Indeed, APS does argue in its brief (p. 33) that counsel “made the most of exhibit 22, especially in final argument.” The court of appeals states (slip op. at 9) that it “findjs] error in the manner in which plaintiffs’ counsel used the contents of the exhibit in argument to the jury.” Our opinion calls counsel to task for the argument that he “based on exhibit No. 22.” Exhibit 22 is a letter from an APS employee pertaining to incidents where contact had been made with the company’s power lines. It contains nothing which would support an argument about 124 serious accidents. However, as plaintiffs’ counsel points out, exhibit No. 22 was never mentioned in final argument; the argument specifically referred to exhibits 23 and 29. These exhibits do show 124 previous accidents resulting from overhead contact and leading to serious injury or death. Although exhibit 22 was not misused, the comments in our original opinion must still stand because, although the exhibits 23 and 29 justify an inference that there may have been 124 accidents of some type, they do not provide a basis for inferences that there had been 124 deaths, 124 cases similar to the Grant case, or 124 previous negligent acts. To this extent, the argument was improper. In justice to counsel, and supportive of the trial court’s finding of no prejudice, we should note that interspersed with the inaccurate comments were comments which properly interpreted the exhibits. (See, for example, Transcript XIV at 50, 66-67, in which counsel finally got the facts straight and indicated to the jury that of the 124 previous incidents, 17 involved crane contacts with overhead lines.) Counsel for plaintiffs also attempts to justify the portion of his argument relating to remarriage by reference to the testimony of the psychiatrist who had treated Mrs. Grant for depressive neurosis caused by her husband’s death. Without objection, that psychiatrist testified that Mrs. Grant had not remarried. Counsel did not limit his argument to this comment. He argued that Mrs. Grant “[is] never going [to] get married.” Id. at 144. This comment was speculative and injected a damage issue which was not relevant. Nevertheless, it is hardly possible to rule summarily that a statement that someone will never marry is misconduct deserving punishment of both lawyer and client when there are facts in evidence that the person has not married.

GORDON, Vice Chief Justice: We accepted review of this appeal to answer the question whether a professional corporation is required to purchase the interest of a shareholder when he or she resigns from practicing with the corporation. Specifically we must decide whether the Legislature intended for the word “resignation” in A.R.S. § 10-909(D) to mean resignation from a professional corporation or resignation from a profession altogether. In 1975 Jon Hoffman, a dentist, joined Kenneth A. Vinall, D.D.S., P.C., a professional dental corporation, as an employee, stockholder, officer, and director. In 1978 the stockholders entered into a “Stock Restriction and Purchase Agreement.” The agreement gave the corporation the option of buying back a resigning stockholder’s shares but did not require the corporation to do so. Hoffman resigned as an employee of the corporation in October, 1979 and offered his stock to the corporation pursuant to the stock purchase agreement. The corporation refused to purchase Hoffman’s stock. The corporation later sued Hoffman and Hoffman counterclaimed to require the corporation to buy his stock. The trial court dismissed the corporation’s claim, it having become moot, and granted summary judgment for Hoffman on the counterclaim. The court based its ruling on A.R.S. § 10-909(D) of the Arizona Professional Corporation Act [The Act] which reads, “Within ninety days following the death, insanity, bankruptcy, retirement, resignation, expulsion or other legal disqualification of a shareholder, all of the shares of such shareholder shall be transferred to or acquired by persons qualified to own such shares or by the corporation.” (Emphasis added.) The corporation appealed. In its decision the Court of Appeals noted that the trial court had construed the word “resignation” in § 10-909(D) to mean resignation of a shareholder from the corporation. The Court of Appeals reversed the trial court, holding that the term “resignation” meant resignation from the practice of the profession. We accepted the petition for review and have jurisdiction under Ariz.Const.Art. 6, § 5(3) and Ariz.R.Civ.App.P. 23. The decision of the Court of Appeals is vacated and we affirm the ruling of the trial court. The Court of Appeals reached its decision deducing that the language “or other legal disqualification” in A.R.S. § 10-909(D) indicated that all of the preceding occurrences enumerated in that paragraph must also be legal disqualifications. The Court looked to A.R.S. § 10-909(C) for a definition of legal disqualification which indicates that to become legally disqualified is to become unable “to render the category of professional service for which the professional corporation was organized.” The Court then reasoned that resignation from a corporation was not a legal disqualification but that resignation from a profession was. We disagree with the Court of Appeals’ conclusion. We believe that A.R.S. § 10-909(C) describes when a professional corporation is required to terminate the employment of an individual, that is, when he or she becomes legally disqualified to practice the profession. A.R.S. § 10-909(D) then requires that in the event of some occurrences (retirement, bankruptcy, etc.) which may permit the corporation or employee to terminate the employment, or in the event a professional is no longer able to “render the category of professional service,” which requires the corporation to terminate the employment, the corporation shall acquire the professional’s shares. The Court of Appeals’ opinion states, “Unless the Act has created something less similar to a corporation than we believe was intended, the position of a corporate shareholder is not one that ordinarily is voluntarily and unilaterally surrendered.” 133 Ariz. at 332, 651 P.2d at 860. In response to this statement, we answer that the Act has created not “something less” than a corporation but a hybrid of a corporation and partnership to accommodate the special needs of the professional who chooses to associate and practice his or her profession. Evidence of this is that shareholders in professional corporations are jointly and severally responsible for liability arising from services rendered. Also the primary reason for creating the profes sional corporation was to permit professionals to take advantage of various federal tax provisions available to a corporation and its employees but not available to self-employed persons or partnerships. B. Friedman, Professional Corporations for Attorneys IV (1970). See generally G. Ray, Incorporating the Professional Practice (1972). Another reason for passing the Act was to insure the continuity of life of the professional corporation. Our reading of the legislature’s intent does not jeopardize the continuity of life concept. A.R.S. § 10-908(3) provides that a professional corporation shall not cease to exist unless it is voluntarily or involuntarily dissolved or upon the death of the last surviving shareholder. To construe the statute as the Court of Appeals did would lead to an illogical result. Under the Court of Appeals’ reasoning Dr. Hoffman may very well be left with unmarketable shares of uncertain value. This leaves Dr. Hoffman with an ownership interest in a professional corporation where he no longer works, where he no longer is notified of meetings or policy decisions, from which he no longer gets reports, and where he is no longer permitted to vote. Dr. Hoffman might also remain liable for the actions of those still practicing in the corporation. Further, professional corporations rarely, unless they have accumulated large capital surpluses, declare dividends. Instead they dispose of most of the profits as salary. Thus, if the Court of Appeals’ reasoning was followed, Dr. Hoffman would own an interest in a professional corporation over which he exercises no control and from which he will likely receive no dividends. Absurdities could result because of this unique position. Our holding requiring a corporation to redeem the shares of the resigning shareholder is equitable to the corporation. Otherwise, a withdrawing shareholder could refuse to sell his or her shares back to the corporation and possibly subject the remaining shareholders to liability for his or her malpractice or negligence after leaving the corporation at a time when the corporation has no supervisory control over the practitioner. See A.R.S. § 10-905. Ethical considerations require the result we reach today. Principle 1-(I) of the Principles of Ethics and Code of Professional Conduct of the American Dental Association provides that “Dentists shall not accept or tender ‘rebates’ or ‘split fees.’ ” See A.R.S. §§ 32-1297.07(A)(l) and 32-1201(10)(n). In Arizona a professional corporation cannot do what the person licensed to practice cannot do. A.R.S. § 10-909(A). Although the Washington Court of Appeals did not have to reach this precise issue it offered guidance when it stated, “Ethical considerations may require, when one member of a service corporation voluntarily leaves that service corporation, that he [or she] be compensated at a fair value.” Melby v. O’Melia, 93 Wis.2d 51, 55, 286 N.W.2d 373, 375 (App.1979). If the corporation paid a dividend to Dr. Hoffman when he did not work there it could be subject to sanctions for splitting a fee for work not performed. The Court of Appeals noted that “[i]n ordinary usage, ‘resignation’ refers to a voluntary, unilateral surrender of an office or position.” 133 Ariz. at 332, 651 P.2d at 860. In applying the rule of common sense meaning in interpreting words we believe the term “resignation” was intended to mean resignation from a professional corporation and not from a profession. We conclude that it was the legislative intent to provide for the orderly liquidation of withdrawing shareholders from professional corporations and that the term resignation as used in A.R.S. § 10-909(D) means resignation from a professional corporation. We vacate the opinion of the Court of ■ Appeals and affirm the judgment of the trial court. HOLOHAN, C. J„ and HAYS, CAMERON and FELDMAN, JJ., concur. . We recognize that A.R.S. § 10-909(D) allows the ownership interest of a withdrawing shareholder to be acquired by other persons qualified to own such shares. This phrase is not at issue before the court and we do not address it. . A.R.S. § 10-905 provides: "Professional Relationship and Responsibility “Nothing in this chapter shall be construed to alter any law applicable to the relationship between persons furnishing and receiving professional service, including but not limited to liability arising therefrom, and the shareholders of the corporation shall be and remain jointly and severally responsible for such liability.” . We do not and cannot on the record before us determine what the actual value of Dr. Hoffman’s shares are. The valuation of Dr. Hoffman’s interest is a question of fact and is not for us to decide.

CAMERON, Justice. On 3 January 1980, a summary judgment was granted in favor of defendant State Farm Mutual Automobile Insurance Company in an action to recover for injuries suffered in an automobile accident. The Court of Appeals affirmed. Anderson v. State Farm Mutual Automobile Insurance Company, 133 Ariz. 483, 652 P.2d 556 (1982). Paul Anderson and Dusty Ellington, plaintiffs below, filed a petition for review by this court. We have jurisdiction pursuant to A.R.S. § 12-120.24. We must answer only one question: Does an automobile collision which occurs when a hit-and-run driver propels a second vehicle into the plaintiffs’ car satisfy the “physical contact” requirement of plaintiffs’ “uninsured motorist” insurance coverage? The facts necessary to a determination of this appeal are as follows. While stopped at a traffic light, Dusty Ellington’s vehicle was “rear-ended” by a Purolator Courier van. Ellington and his passenger, Paul Anderson, suffered personal injuries. The evidence indicates that the Purolator van had been struck and pushed into Ellington’s car by a third vehicle, which had sped away from the scene of the accident before anyone could identify it or the driver. It is undisputed that the third vehicle never came in direct contact with Ellington’s car. Anderson and Ellington filed a claim with State Farm Mutual Automobile Insurance Company under the uninsured motorist provision of State Farm’s policy. Under the policy, an uninsured motor vehicle includes a hit-and-run automobile. A hit-and-run automobile is defined by the policy as “ * * * an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident * * * ” and the identity of the operator or owner of such “hit-and-run automobile” cannot be ascertained. When State Farm denied coverage, Anderson and Ellington filed suit against State Farm, as well as Purolator Courier Company and the driver of the Pu-rolator van. The trial court granted summary judgment in favor of State Farm. The Court of Appeals affirmed, finding that there had been no physical contact between the hit-and-run vehicle and Ellington’s car that would trigger the uninsured motorist provisions of the policy. The Court of Appeals reasoned that the requirement of physical contact was a matter of private contract. Since the provision did not violate public policy, the court declined to modify it. Balestrieri v. Hartford Accident & Indemnity Insurance Company, 112 Ariz. 160, 540 P.2d 126 (1975). Judge Sarah Grant dissented, urging that the majority had not adequately addressed the question of whether there had been physical contact between the vehicles which would satisfy the requirement of the policy. She concluded that where there is indisputable evidence that a third vehicle existed and caused the collision, indirect impact qualifies as “physical contact” within the terms of the policy. Because we agree with the dissent, we granted plaintiffs’ petition for review of the Court of Appeals decision and opinion. The standard provision for coverage in an accident involving a hit-and-run vehicle requires that the injury result from “physical contact” of the hit-and-run vehicle with the insured or with the vehicle the insured was occupying at the time of the accident. R.G. Notman, A Decennial Study of the Uninsured Motorist Endorsement, 43 Notre Dame Lawyer 5 (1967); 25 A.L.R.3d 1299 (1969). The requirement of physical contact was designed to prevent fraudulent claims, such as when a driver fabricates a hit-and-run car to collect insurance for an accident actually caused by his own negligence. A. Widiss, A Guide to Uninsured Motorist Coverage, 1981 Supplement, § 2.41. In Balestrieri v. Hartford Accident & Indemnity Insurance Company, supra, we upheld the physical contact requirement in private insurance contracts, finding that it was not in derogation of Arizona’s uninsured motorist statute nor void as against public policy. In Balestrieri, supra, we pointed out that even though insurance carriers are required to include uninsured motorist coverage in the motor vehicle liability policies they write, A.R.S. § 20-259.01, hit- and-run coverage is a matter of contract between the insurance company and its insured. We also held that the requirement of physical contact is not an unreasonable limitation on uninsured motorist coverage. Balestrieri v. Hartford Accident & Indemnity Insurance Company, supra. However, we did not, in Balestrieri, determine what was “physical contact” under the policy. The vast number of factual situations in which injury is caused by an unidentified vehicle has lead jurisdictions to interpret “physical contact” in very different ways. For example, the Court of Appeals of Indiana found that a rock which was thrown from the wheels of an unidentified vehicle and struck the windshield of a car, killing the passenger, was enough to constitute physical contact. The court reasoned there was a “substantial nexus between the hit- and-run vehicle and the intermediate object” and that the transmitted force was “continuous and contemporaneous” and concluded that there was physical contact within the meaning of the policy. Allied Fidelity Insurance Company v. Lamb, 361 N.E.2d 174, 178 (Ind.App.1977). On the other hand, the Court of Appeals of New York found no physical contact in the impact of snow and ice which dislodged from an unidentified tractor-trailer and struck the plaintiff’s car, shattering the windshield and injuring the plaintiff. The court acknowledged that physical contact need not be direct, but held that it must originate in collision. Its rule therefore excluded objects cast off or cast up by the unidentified vehicle. Smith v. Great American Insurance Company, 29 N.Y.2d 116, 324 N.Y.S.2d 15, 272 N.E.2d 528 (1971). Physical contact was found in Inter-Insurance Exchange of the Automobile Club of Southern California v. Lopez, 238 Cal. App.2d 441, 47 Cal.Rptr. 834 (1965), where a hit-and-run vehicle struck another ear, which crossed the median and hit the plaintiff’s oncoming car. The Court of Appeals of California reasoned that this was a direct application of force which qualified as physical contact. The court drew a parallel to common law tort, under which an unwanted touching by the defendant or an article set in motion by the defendant (“trespass vi et armis”) was distinguishable from injury caused by colliding with an object already in place (“trespass on the case”). The court concluded that the former, direct contact, which included injury from any intermediate object, was physical contact within the meaning of the statute. The Court of Appeals of New York reached a similar conclusion in Motor Vehicle Indemnification Corporation v. Eisenberg, 18 N.Y.2d 1, 271 N.Y. S.2d 641, 218 N.E.2d 524 (1966), where a vehicle crossed the median and hit the insured’s car after being struck by a hit-and-run driver. The court found this accident to be equivalent to actual contact, since the car crossing the median was merely an involuntary intermediary. The court indicated that the same principle would operate to extend coverage if a hit-and-run car were to strike a telephone pole and push it onto another car; or if a hit-and-run vehicle struck a motorcycle whose rider was thrown onto a passer-by. See also Springer v. Government Employees Insurance Company, Inc., 311 So.2d 36 (La.1975), for a proximate cause analysis of injury caused by a car that crossed the median. A number of courts have been faced with a “chain reaction” situation where an intermediate vehicle transmits the impact from a hit-and-run car to the insured’s car. Citing sources as diverse as Sir Isaac Newton and the Restatement (2d) of Torts, courts have held that the interference of an intermediate object does not negate physical contact. Lord v. Auto-Owners Insurance Company, 22 Mich.App. 669, 177 N.W.2d 653 (1970); Latham v. Mountain States Mutual Casualty Company, 482 S.W.2d 655 (Tex.App. 1972); Ray v. DeMaggio, 313 So.2d 251 (La. 1975); Johnson v. State Farm Mutual Automobile Insurance Company, 70 Wash.2d 587, 424 P.2d 648 (1967); see also the discussion in Inter-Insurance Exchange of the Automobile Club of Southern California v. Lopez, supra. As these cases illustrate, courts have not read the requirement of physical contact as an unambiguous limitation of liability. Rather, the trend is to construe “physical contact” broadly in order to effectuate the purposes of uninsured motorist protection. J.A. Appleman, Insurance Law and Practice, § 5095.25; Notman, A Decennial Study of the Uninsured Motorist Endorsement, supra; Inter-Insurance Exchange of the Automobile Club of Southern California v. Lopez, supra; Motor Vehicle Accident Indemnification Corporation v. Eisenberg, supra. In the instant case, it is evident that there was a vehicular collision with the hit-and-run car, and that the force of the unidentified car hitting the Purolator van was the cause of the collision between the van and the plaintiff’s car, from which the injuries resulted. Under these circumstances, we have no difficulty concluding that the injuries were the result of physical (albeit indirect) contact with the hit-and-run vehicle. Where force has been exerted from an unidentified vehicle through an intermediate object and where this fact may be verified in such a way to provide safeguards against fraud, we find that the physical contact requirement of the policy has been satisfied. See Allied Fidelity Insurance Company v. Lamb, supra; Motor Vehicle Accident Indemnification Corporation v. Eisenberg, supra. In the instant case, the insurance contract did not clearly express an intention to exclude indirect contact cases from coverage. We have stated: “Where the language employed [in insurance policies] is unclear and can be reasonably construed in more than one sense, an ambiguity is said to exist and such ambiguity will be construed against the insurer.” Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 534, 647 P.2d 1127, 1132 (1982). See also Allied Fidelity Insurance Company v. Lamb, supra. State Farm contends, however, that this interpretation is contrary to the principles of Balestrieri v. Hartford Accident & Indemnity Insurance Company, supra. Although in Balestrieri we discussed various interpretations of the standard hit-and-run provision, we stated that: “The legal issue presented for our decision is narrow and can be precisely phrased — whether the ‘physical contact’ requirement in the ‘hit-and-run’ provision of the automobile liability insurance policy here under consideration is in derogation of the Arizona “uninsured motorist statute and is void as against public policy.” Balestrieri v. Hartford Accident & Indemnity Insurance Company, supra, 113 Ariz. at 161, 540 P.2d at 127. Balestrieri did not decide the question that faces us today of what constitutes “physical contact.” It was clear in Balestrieri that there was no physical contact — the plaintiff swerved to avoid an unidentified car and struck a light pole. In other words, it was a “miss-and-run” case in which there was no collision by the unidentified vehicle on which a claim of “physical contact” could be based. In contrast, the instant case was a chain reaction in which the hit-and-run ve- hide actually struck another car and propelled it into the plaintiffs’ car. The holding in Balestrieri does not preclude us from finding that “physical contact” occurred in the instant case. Reversed and remanded for further proceedings consistent with this opinion. HOLOHAN, C.J., GORDON, V.C.J., and HAYS, J., concur.

OPINION EUBANK, Judge. The issue presented in this special action review of an Industrial Commission award for compensable claim and temporary disability is whether there is reasonable evidence to support the finding by the administrative law judge that respondents were injured by accident occurring in the course of their employment. We find sufficient evidence and affirm the award. Respondent employees George A. Webb and David W. Butler (respondents) worked as diesel mechanics for petitioner employer Johnson Stewart Mining Company, Inc. (petitioner employer). Three or four days pri- or to July 15, 1980, respondents were requested by their foreman, Lewis Crockett, to attend an educational seminar, after working hours, sponsored by the manufacturer of equipment used by the petitioner employer. Respondents, along with Mr. Crockett, went together in a car driven by Gary Kirkpatrick. They were picked up from their homes in Chandler and Mesa and driven to the Rodeway Inn in Phoenix, the site of the seminar. On their way home, after the seminar, the car collided with another car and both respondents suffered serious injuries. Respondents filed Workmen’s Compensation claims, which were denied by separate notices of claim status and respondents filed timely requests for a hearing. A consolidated hearing for both claims was held on March 11, 1981. Following the hearing, the administrative law judge issued his award finding compensable claims and awarding temporary benefits to both respondents. The award was based, primarily, upon the testimony of Respondent Webb and Mr. Crockett. The administrative law judge affirmed his decision upon administrative review, and special action review to this court followed. Petitioners’ argument on review is that the educational seminar was primarily for the benefit of the respondents rather than for the employer, and thus the injuries sustained while returning from the seminar were not compensable. Petitioners further argue that the employer’s authorization or permission to attend the seminar is not sufficient to make the injuries compensable. They contend that the employer must have required, or at least specifically urged, the employee’s attendance at the seminar. For an industrial injury to be compensable, it must arise out of, and occur in the course of, the applicant’s employment. Royall v. Industrial Commission, 106 Ariz. 346, 476 P.2d 156 (1970). The term “arising out of” is said to refer to the origin or the cause of the injury, while “in the course of” refers to the time, place and circumstances of the accident in relation to the employment. Peter Kiewit Sons' Company v. Industrial Commission, 88 Ariz. 164, 354 P.2d 28 (1960). Although not clearly stated by petitioners, we understand petitioners’ argument to be that the injury did not occur “in the course of” respondents’ employment. Petitioners correctly assert that the appellate courts of Arizona have never had occasion to directly address the issue of compensability where an employee has been injured after normal working hours while engaging in educational pursuits arranged by the employer. Petitioners assert the principle of law that an employee who undertakes educational or training programs which incidentally enhance his proficiency in his work, generally does so primarily to benefit himself, and injuries sustained in the course of such activities are not com-pensable. In support of this proposition, petitioners quote from 1A Larson’s Workmen’s Compensation Law, § 27.31(a), at 5-281 to 5-282: [Sjelf-improvement is primarily the employee’s own concern; obviously the ambitious clerk who is burning the midnight oil studying to become an accountant cannot expect workmen’s compensation if his lamp blows up. Petitioners, however, overlook the next sentence which states: In some situations, however, it may be found that, either by the contemplation of the contract or by custom, the educational activity is part of the employment. Id. at 5-282. In addition, Professor Larson’s treatise subsequently states: Employment connection may be supplied by varying degrees of employer encouragement or direction.... Connection with the employment may also be bolstered by the showing of a specific employer benefit, as distinguished from a vague and general benefit, as when the attendance of an automobile mechanic at an examination given by the manufacturer permitted the dealer to advertise “factory-trained mechanic.” Id. § 27.31(c), at 5-293 to 5-296. The two factors listed by Larson, i.e., employer involvement and employer benefit, are among the factors listed in the course of employment test set forth by this court in Truck Insurance Exchange v. In dustrial Commission, 22 Ariz.App. 158, 524 P.2d 1331 (1974). In that ease, we stated the relevant factors as being: “Did the activity inure to the substantial benefit of the employer? ... Was the activity engaged in with the permission or at the direction of the employer? ... Did the employer knowingly furnish the instrumentalities by which the activity was to be carried out? ... Could the employee reasonably expect compensation or reimbursement for the activity engaged in? ... Was the activity primarily for the personal enjoyment of the employee?” Id., 22 Ariz.App. at 160, 524 P.2d at 1333. The administrative law judge explicitly recognized the above tests in his findings and then applied them in finding of fact number 6 as follows: Whether or not mandatory language was used, it is clear that the symposium was for the primary benefit of the employer by increasing the employees’ skills; that the attendance in Phoenix made the trip necessary; and that the attendance was authorized and permitted by the employer. These facts constitute sufficient work connection to bring the auto accident and injuries sustained within the course and scope of the applicants’ employment with the defendant employer. Thus, the administrative law judge found that the first two tests were met and, inferentially, that the last test was also met. He then based his decision upon those findings. The thrust of petitioners’ argument on review is that educational activities, as a class, are primarily for the benefit of the employee, rather than for the employer. We do not, however, think such a broad generalization can be drawn from such activities and that each case must be determined on its own facts. In the case at bar, we find sufficient evidence that the seminar training was reasonably, substantially, and indeed primarily, for the benefit of the employer. The direct and specific benefit to the company clearly appears from the testimony of Mr. Crockett: [By Mr. McLaws] Q. All right. The purpose of the seminar was to educate mechanics in ways to do their job better? A. [Mr. Crockett] Yes, sir. Q. There were people that would lecture, that would have illustrations or movies or any number of educational helps there— A. Yes, sir. Q. —to help the employees. Is that true? A. Yes, sir. Q. Would an employee that would attend the seminar, would he be rated in your organization in any manner for having attended such a seminar over an employee that didn’t attend such a seminar? A. Well, when you got new types of equipment out, especially on the mixers, I took a lot of them to them. They were new styles and" I didn’t have anybody there myself to work on them, so I took George Webb and I think Dave Butler at the time, so I had somebody else to rely on to do some repair work on them when I didn’t have the time. Q. So Johnson-Stewart had equipment that needed special care and attention, and would these employees that were skilled in taking care of this certain type of equipment that the seminar would certainly help with; is that true? A. I feel it benefits the company— Q. All right. A. —in sending these men to it, on new equipment. * * * * * * Q. so it was a direct benefit to Johnson-Stewart if the mechanics attended the seminar; is that true? A. Yes, sir. There was absolutely no testimony that the seminar would benefit the respondents in seeking other employment or in obtaining a better job within the company. We con- elude, therefore, that respondents’ ability to repair the machinery used by their employer was an “integral part of the Employer’s business plan”. See Lawrence v. Industrial Commission, 78 Ariz. 401, 404, 281 P.2d 113, 115 (1955). Indeed, under the authority of Lawrence, such a plan would itself be sufficient for compensation. Petitioners imply, however, that educational activities can benefit either the employer or the employee, but not both. We disagree. Even if there were evidence in the record that the employees received a substantial personal benefit from the training, the evidence that there was a substantial benefit to the employer is sufficient to support compensability. Where an injury is suffered by an employee performing an act for the mutual benefit of the employer and the employee, such injury is compensable if, in fact, it occurs in the course of employment and arises out of the employment. A.R.S. § 23-1021. See, e.g., Westinghouse Electric Corporation v. Department of Labor and Industries, 25 Wash.App. 103, 604 P.2d 1334 (1980) Aff’d. 94 Wash.2d 875, 621 P.2d 147 (1980); 99 C.J.S., Workmen’s Compensation, § 221 at 730-32. In Blair v. Shaw, 171 Kansas 524, 233 P.2d 731 (1951), the survivors of decedent mechanic employees filed a claim for death benefits. The record showed that General Motors Corporation gave an annual examination for automobile mechanics employed in various Chevrolet agencies. A mechanic passing the written test received a certificate, which was commonly displayed in the shop where the employee worked. Several Chevrolet employees died in an auto accident occurring on their way home after taking the examination. The court noted that: It is generally recognized that a mechanic who has passed these tests is better able to secure employment, and, at the same time, the employer is thus able to advertise that it has “factory-trained mechanics.” Id. at 525, 233 P.2d at 732. The court then went on to state: It is true that in passing the examination benefit would accrue to the mechanic, but it is also true that it resulted in considerable benefit to the employer. In this day and age such matters are of common knowledge. Id. at 528, 233 P.2d at 734. The court concluded that decedents sustained their fatal injuries while engaged in the course of their employment. While the facts sub judice are slightly different than in Blair, we find the reasoning in Blair helpful. The award sub judice is supported by reasonable evidence that the employer was benefited by respondents’ presence at the seminar. Petitioners’ second argument is that mere authorization or permission by the employer to attend the seminar is not sufficient to support compensation. This argument appears to be premised upon petitioners’ first argument, which we have rejected above. However, we do not say that benefit to the employer alone would sustain the finding of compensability here. We do not think compensability may rest solely upon the fact that an employer, who does not sponsor, approve or urge employee participation in an activity, merely receives some benefit from the activity. As stated in Tally v. J.J. Newberry Company, 30 A.D.2d 898, 899, 291 N.Y.S.2d 950, 952 (1968): There must be at least some action on the part of the employer to connect the trip to employment, some sponsorship, some approval, some employer action must be present. In the instant case, the administrative law judge specifically found that the activity was authorized or permitted by the employer. Petitioners do not contest this finding. From the record it is clear that the respondents were at least strongly urged to attend the seminar. We hold that considering the evidence in its totality, there is sufficient indicia of employment-related activity to support the finding that the respondents sustained their injuries while in the course of their employment. See Lawrence v. Industrial Commission, supra; Annot. 47 A.L.R.3d 566. The cases cited by petitioners are inapplicable to the case at bar. In Hildebrand v. McDowell Furniture Company, 212 N.C. 100, 193 S.E. 294 (1937), the employee of a furniture factory accompanied his supervisor in traveling to a furniture exposition. In that case, the exposition had nothing to do with the employee’s job. In the case at bar, the seminar taught respondents to repair machinery that was used by the employer, certainly an integral part of the respondents’ jobs. In Whitely v. King Radio Corporation, 190 Kansas 439, 375 P,2d 593 (1962), the employer was engaged in the business of manufacturing and developing aircraft radio equipment. The employee was a design engineer. The employer indicated that it might be desirable for the company from the standpoint of prestige if the engineers were aircraft pilots themselves; however, the specifications for design engineers did not require that they be pilots and becoming a pilot was not a condition of employment. The claimant was killed in an airplane accident while taking flying lessons paid for by the employer. The Kansas Supreme Court affirmed the award and held that the accident was not a compensable event because, inter alia, flying was not a requirement or a condition of his job. In the case at bar, knowing how to properly maintain and repair machinery used by the employer was certainly a requirement of respondents’ job. Atkison v. Industrial Commission, 26 Ariz.App. 6, 545 P.2d 968 (1976), involved the drowning death of an employee during a picnic outing sponsored by the employer. The activity was clearly a recreational and social activity. Although the dinner and drinks were provided in the seminar, in the case at bar, petitioners have not contended that the seminar was a recreational or social activity. Ordinarily, in the recreational and social activity cases, the employer does not derive a substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale. See 1A Larson’s Workmen’s Compensation Law, § 22.00 at 5-71; Annot. 47 A.L.R.3d 566. In these cases, because the recreation or social activity is not a direct benefit to the employer, the courts have focused on whether the employer has directly or subtly compelled the employee to attend a recreational or social activity. If he has, the employer has expanded the employment such as to include the social and recreational activity. See Larson, supra, § 22.22 at 5-83 to 5-84; Lawrence v. Industrial Commission, supra. The award is affirmed. HAIRE and CONTRERAS, JJ., concur. . Respondent Butler could not remember anything that happened before the accident. Therefore, both respondents relied on the testimony of Respondent Webb. . The Lawrence Court held that where claimant was injured returning from a Tucson luncheon held for the winners of the sales contest, involving the employer, that there was no need to prove compulsion for claimant to attend since the luncheon was part of the business plan.

OPINION BIRDSALL, Judge. The appellant was convicted of second degree burglary, A.R.S. § 13-1507, a class 3 felony, and sentenced to 11.25 years imprisonment to run consecutively to other sentences he was serving. The arguments on appeal are: 1) The trial court erred in refusing to admit his jail medical record as an exhibit; 2) Arizona Rules of Criminal Procedure are unconstitutional since they provide a different standard of review for a defendant indicted by the grand jury from one bound over by a magistrate; 3) His trial attorney could not waive his presence for the exercise of peremptory challenges of veniremen; and 4) The trial court failed to give a reason for the consecutive sentence. We affirm the conviction, but remand for resentencing. JAIL MEDICAL RECORDS The appellant’s defense was insanity. To show instances of bizarre behavior, he offered a medical record compiled while he was in the Pima County Jail. The trial court refused to admit the entire exhibit since portions were irrelevant; for example, complaints of headache, chest congestion and diarrhea; dental problems; venereal warts; a request for tennis shoes; an ankle injury; observations that he was a malingerer and probable drug abuser. The trial judge directed the appellant to select those parts of the exhibit that were relevant so those could be admitted. This was never done. That ruling was undoubtedly correct and the appellant cannot now complain. REVIEW OF GRAND JURY INDICTMENT VS. INFORMATION RESULTING FROM PRELIMINARY HEARING The appellant was indicted by the Pima County grand jury. He filed a motion for new finding of probable cause, Rule 12.9, Rules of Criminal Procedure, 17 A.R.S. It was denied. The only grounds provided in that rule for such relief are denial of a substantial procedural right or lack of a sufficient number of qualified grand jurors. He claims that the review provided under this rule should also include the ground that no credible evidence of guilt was adduced as in Rule 5.5 providing for relief from a magistrate’s order binding the defendant over for trial after a preliminary hearing. The appellant contends the rules deny him equal protection and violate due process. We need not consider these contentions since the appellant has now been convicted of the crime. The unanimous verdict of the jury, the finding of guilt beyond a reasonable doubt, and the judgment of the court preclude our consideration of this argument. State v. Verive, 128 Ariz. 570, 627 P.2d 721 (App.1981). EXERCISE OP PEREMPTORY CHALLENGES The voir dire examination of the jury concluded at about noon. The trial judge directed the 20 qualified veniremen to return at 2:00 p. m. The appellant, who was in custody, was taken from the courtroom and not brought back until about 2:00 p. m. In his absence, commencing sometime after a lunch break, counsel for the state and the appellant each struck six veniremen from the panel, leaving the eight jurors who formed the trial jury. The trial judge did not return to the courtroom until after this was completed, again at about 2:00 p. m. Appellant’s counsel did not request that the appellant be returned for this procedure, nor did he or the appellant urge any objection to this procedure until it was raised as an issue in the appellant’s motion for new trial. Under this record the trial court implicitly found that defense counsel had waived the appellant’s presence, and denied the new trial motion. The resolution of this issue requires consideration of the following questions: 1) Did the appellant have a right to be present at the exercise of peremptoiy challenges? 2) Must the appellant personally make a knowing, voluntary waiver of this right, or can his attorney waive his presence? THE RIGHT TO BE PRESENT This exact question is one of first impression in Arizona. Our supreme court has recently held that a defendant’s right to be present at every critical stage of the trial, as guaranteed by the 6th and 14th Amendments to the U. S. Constitution and Article 2, Sec. 24 of the Arizona Constitution, includes the right to be present during the selection of the jury. State v. Tudgay, 128 Ariz. 1, 623 P.2d 360 (1981). Rule 19.2, Rules of Criminal Procedure, 17 A.R.S. provides: “The defendant has the right to be present at every stage of the trial, including the impaneling of the jury, the giving of additional instructions pursuant to Rule 22, and the return of the verdict.” (emphasis added) But no Arizona appellate court has determined whether this includes the exercise of peremptory challenges. This right to be present has been held to mean the right to be present at every “critical stage” of the trial. State v. Armenta, 112 Ariz. 352, 541 P.2d 1154 (1975). In State v. Christensen, 129 Ariz. 32, 38, 628 P.2d 580, 586 (1981), our supreme court held that this constitutional right to be present applies “whenever the presence has a relation, reasonably substantial, to the fullness of his opportunity to defend.” (quoting Snyder v. Massachusetts, infra) Other state courts have considered this question. In State v. Carver, 94 Idaho 677, 496 P.2d 676 (1972) the Idaho Supreme Court held that the defendant had a right to be present during voir dire and selection of the jury. It reversed a conviction where the defendant was involuntarily absent. In discussing this right the opinion observes, “The defendant may wish to challenge a particular prospective juror for any one of several valid reasons, one of which may be a negative visceral reaction.” 496 P.2d at 679. The Montana Supreme Court rejected the reasoning of the Idaho court in State v. Hart, 625 P.2d 21 (Mont.1981). In Hart the court was faced with the exact question presented here — the defendant was present for all but the acts of peremptory challenge. Although recognizing a defendant’s right to be present at all stages of the proceeding where fundamental fairness might be thwarted by the defendant’s absence, Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Montana court held that the exercise of peremptory challenges does not come within that category. The opinion reasons that the act of peremptory challenge is a “wholly legal exercise”— “a pro forma execution of the decisions formulated during questioning,” therefore the absence of the defendant is not injurious to due process or confrontation rights. See Also Montgomery v. State, 461 S.W.2d 844 (Mo.1971); Tatum v. United States, 330 A.2d 522 (D.C.App.1974). We agree that due process and confrontation rights are not involved. The exercise of peremptory challenges, however, is anything but a wholly legal exercise. If it were the pro forma execution of challenges already conclusively determined, it might be a legal exercise, but that is surely not the record in this case. At the motion for new trial the appellant and his trial counsel both testified that the defendant did not communicate his desires to counsel before the strikes were made. Under Arizona Rules of Criminal Procedure, 17 A.R.S., the defendant in a non-capital felony case has a right to six peremptory challenges, Rule 18.4(c)(1). The prosecutor is required to exercise the state’s challenges first, Rule 18.5(g). The defendant does not know which veniremen will be stricken by the state. It would be most difficult to have a prearranged plan. We hold that the exercise of peremptory challenges, a right given the defendant by our criminal rules, is a critical stage of the proceeding at which he has the right to be present. We believe the defendant’s presence has a reasonably substantial relationship to the fullness of the opportunity to defend. See Annot, 26 A.L.R.2d 762 (1952). WAIVER BY COUNSEL Although we disagree with the holding in State v. Hart, supra, that the peremptory challenge exercise is “wholly legal” and with the reasoning of that opinion that such challenges are always determined during voir dire, we hold that counsel may waive this right and that the trial court may rely on counsel’s waiver without requiring personal waiver by the defendant. We find support for this position in State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980). In Rodriguez the question presented was whether the defendant’s right to present a defense or testify himself could be controlled by his counsel absent his own request to the court that he be permitted to take the witness stand. Over the defendant’s objection at trial, counsel rested for the defendant. In holding that counsel could generally control trial strategy, the court repeated the statement made in State v. Jones, 110 Ariz. 546, 550, 521 P.2d 978, 982 (1974) that: “[I]t is well established that the accused is bound by the trial strategy, misconduct and mistakes of counsel so long as counsel’s assistance at trial was not reduced to a mere ‘farce or sham.’ ” The court also quoted at length from Lanier v. State, 486 P.2d 981 (Alaska 1971). After quoting that portion of the opinion which recognizes that the attorney acts on behalf of his client, the quotation goes on to say: “Second, there is a strong interest in promoting the efficient administration of justice. Any rule of law which would operate to frustrate this policy would be a disservice to the courts, attorneys, and ultimately to the litigants — including criminal defendants — who appear in court. It might be feared that a rule requiring an attorney to consult with his client before the client’s rights may be waived would unduly interfere with trials. Not only would it hamper the attorney, it might force the trial judge to interrupt the proceedings whenever a waiver might be oceuring in order to protect the record on appeal. If the judge did not do so, the defendant could later challenge his conviction by asserting that he had not consented to the waiver.” That reasoning is dispositive of the argument here. Unless the circumstances are exceptional, a defendant is bound by his counsel’s waiver of his constitutional rights. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); State v. Rodriguez, supra; Winters v. Cook, 489 F.2d 174 (5th Cir. 1973). Henry specifically holds that such rights may be waived without a showing that there was consultation with the accused. CONSECUTIVE SENTENCE The trial court did not state the reasons for the consecutive sentence. A.R.S. § 13-708. We are compelled to remand for resentencing, and if the sentence imposed is again made consecutive to other sentences the trial court must comply with the statute. Judgment of conviction affirmed; sentence vacated and remanded for resentenc-ing. HOWARD, C. J., and HATHAWAY, J., concur.

OPINION CONTRERAS, Judge. The sole issue is whether evidence supports the administrative law judge’s finding that respondent Tighe was an “employee” within the meaning of our Workmen’s Compensation statutes, of petitioner Flamingo Motor Inn (Flamingo) at the time he was injured. We find that it does, and affirm the award. BACKGROUND During 1979 and 1980, respondent Tighe had been hired to work on a part-time, as-needed basis at the motel and restaurant operated by petitioner Flamingo. He had performed maintenance work, such as cleaning, painting, moving furniture, moving equipment, and scrubbing kitchen walls. On April 17, 1980, respondent Tighe, although he had not been assigned to work that day, went to the premises of petitioner Flamingo to pick up his wife, who was then working full time at the motel. While respondent Tighe was sitting in the bar waiting for his wife, he and several others were asked by Jim Wooley, the maintenance man at the motel, to help move a large, heavy Chinese wok stove into the restaurant kitchen. Petitioner Flamingo was at that time in the process of converting the existing restaurant into a Chinese restaurant. The owner of Flamingo had placed Mr. Wooley in charge of converting the restaurant and had authorized him to get additional help when needed. Wooley offered to compensate each helper with several drinks from the bar. While helping to move the stove, respondent Tighe injured his back. On April 24, 1980, respondent Tighe filed an industrial accident claim, which was denied by petitioner carrier. Respondent Tighe filed a request for hearing. Following the hearing, the administrative law judge issued, and later affirmed on review, a Decision upon Hearing and Findings and Award for Compensable Claim. The decision included the following findings, which petitioners challenge in this special action— Industrial Commission: 9. In the instant case the applicant was requested to perform services of a very limited nature, i.e., assist in moving a stove and in exchange he would receive a round of drinks for his labor. In the instant case the nature of the employment as well as the duration thereof is of little consequence in arriving at a determination that the applicant had been hired and was an employee of the defendant employer herein. 10. The evidence establishes that the applicant sustained a personal injury by accident arising out of and occurring in the course and the scope of his employment with the defendant employer herein on April 17, 1980. 11. The applicant is entitled to medical, surgical, hospital and/or compensation benefits as provided for by law from April 17, 1980 until such time as his condition is determined to be medically stationary. EMPLOYEE We start with the principles that (1) the Workmen’s Compensation Act as a whole is remedial in character and is to be construed liberally, S.H. Kress & Co. v. Industrial Commission, 38 Ariz. 330, 299 P. 1034 (1931), and (2) that the definition of “employee” is to be given liberal interpretation in order to properly effectuate the purposes of the Workmen’s Compensation Act. DeVall v. Industrial Commission, 118 Ariz. 591, 578 P.2d 1020 (App. 1978). A.R.S. § 23-901(4)(b) defines an “employee”: § 23-901. Definitions 4. “Employee”, “workmen” and “operative” means: (b) Every person in the service of any employer subject to the provisions of this chapter, including aliens and minors legally or illegally permitted to work for hire, but not including a person whose employment is casual and not in the usual course of trade, business or occupation of the employer. Because of the conjunctive wording of the exclusion, both requirements must be met before a person will be excluded from the term “employee”. Kress, supra; Modern Trailer Sales of Ariz. v. Industrial Commission, 17 Ariz.App. 482, 498 P.2d 556 (1972). Thus, even if his employment was “casual”, respondent would be an “employee” covered by workmen’s compensation if his employment was “in the usual course of trade, business or occupation of the employer.” USUAL COURSE OF BUSINESS The issue presented is essentially whether a person, while engaged in installing equipment, as part of the remodeling of business premises, is engaged “in the usual course of trade, business or occupation of the employer” so as to be an “employee” covered by workmen’s compensation. That precise issue has not been addressed previously, but other similar activities have been held to be within the usual course of an employer’s business. Construction of a building in which to carry on the business is in the usual course of business. Greenway Baptist Church v. Industrial Commission, 130 Ariz. 482, 636 P.2d 1264 (App. 1981), and cases cited therein. Repair of a building in which business is carried on is in the usual course of business. Kress, supra. Repair of equipment used in the business is in the usual course of business. Carnes v. Industrial Commission, 73 Ariz. 264, 240 P.2d 536 (1952). Transporting materials to the place of business is in the usual course of business. Employers Mut. Liability Ins. Co. of Wis. v. Industrial Commission, 18 Ariz.App. 403, 502 P.2d 1080 (1972). Servicing inventory at the place of business is in the usual course of business. Modern Trailer Sales, supra. In other jurisdictions, the great majority of decisions have held that remodeling and incidental construction are within the usual course of business. 1C A. Larson, Workmen’s Compensation Law, § 51.23 (1980). CONCLUSION In accord with the principle of liberal construction and the authorities cited above, we hold that the moving and installation of kitchen equipment which will be used in the employer’s restaurant business is employment “in the usual course of trade, business or occupation of the employer” and that the administrative law judge properly found that respondent Tighe was an “employee” of petitioner covered by workmen’s compensation. The award is affirmed. EUBANK, J., concurs. . Mr. Tsang-Chi-Chen was the owner of the motel and the restaurant. Although the restaurant portion of the operation had been previously leased to and operated by a third party, it is clear from the record that on April 17, 1980, Mr. Chen was operating the restaurant. . The pertinent statutory reference at the time of the alleged injury and the administrative law judge’s decision was A.R.S. § 23-90 l(4)(b). Subsequently the statute was amended, and the identical provision is now set forth in A.R.S. § 23-901(5)(b). . Petitioners do not contend that respondent Tighe was an independent contractor, i.e., that petitioner Flamingo did not have the right to control the method by which he did his work. Cf. Kress, supra, Greenway, infra. . The issue in Greenway was not the precise issue posed here, but instead whether the activity was “in the usual trade, business, profession or occupation of an employer” so as to make the employer subject to the workmen’s compensation act. A.R.S. § 23-902(A). We do not believe that distinction is significant. . The issue in Modem Trailer Sales was not the precise issue posed here, but instead whether the employer had enough “employees” so as to make it subject to the workmen’s compensation act. A.R.S. § 23-902(A). We do not believe that distinction is significant. It is our opinion that where there is a scheme or plan or periodic need for extra short-term employees in the usual course of the business of the employer, then such extra short-term employees are to be counted in determining the presence of three or more employees regularly employed thus necessitating the securing of workmen’s compensation insurance. 17 Ariz.App. at 486, 498 P.2d at 560. . Representative of such activities are the construction of additional booths in a restaurant, J.P.O. Sandwich Shop, Inc. v. Papadopoulos, 105 Ind.App. 165, 13 N.E.2d 869 (1938), and the remodeling of a dilapidated building for use as a beer parlor, Colosimo v. Giacomo, 199 Minn. 600, 273 N.W. 632 (1937).

OPINION JACOBSON, Presiding Judge. The sole substantive issue raised by this appeal is whether the preindictment delay in this case resulted in a denial of due process. Corollary to the substantive issue is whether the state has the right to appeal the dismissal in this case so as to call into question the ruling on the substantive issue. On January 6,1981, the Maricopa County Grand Jury returned an indictment against appellee/defendant Robert R. Van Arsdale charging him with the offenses of grand theft by embezzlement, fraudulent schemes and artifices, fraud in the sale of securities, sale of unregistered securities and sale of securities by an unregistered dealer and salesman. The indictment alleged that the offenses occurred between October, 1977 and June, 1978. Because of the lapse of time between the alleged offenses and the indictment, the defendant filed a pretrial motion to dismiss, claiming undue preindictment delay. A hearing was held on the issue on June 10, 1981. Thereafter, on June 18, 1981, the trial court granted defendant’s motion to dismiss the indictment. The state then filed a timely notice of appeal on June 24, 1981, appealing from the trial court’s dismissal order pursuant to A.R.S. § 13-4032(1). Before reaching the state’s argument that the trial court erred in granting the motion to dismiss, we must first address the jurisdictional question presented in the defendant’s answering brief. The defendant claims that the state’s right to appeal should be governed by former A.R.S. § 13-1712, the statute in effect at the time of the commission of the alleged crimes, and not by A.R.S. § 13-4032(1), the statute in effect when the state’s appeal was taken. The defendant argues that under the former statute the state was without authority to appeal from an order dismissing an indictment when the dismissal was based upon preindictment delay. See State v. Lopez, 26 Ariz.App. 559, 550 P.2d 113 (1976), approved State v. Fayle, 114 Ariz. 219, 560 P.2d 403 (1976). We assume that by this argument the defendant is contending that application of the appeal statute in effect at the time of judgment, which was not in effect at the time the crime was committed, constitutes a violation of the ex post facto provision of the United States Constitution. We disagree. First, as a general proposition, appeals are governed by statutes in effect at the time that judgments are entered. See 4 C.J.S. Appeal and Error § 3 (1957) at page 68; Glidden v. State, 301 A.2d 539 (Me., 1973). Second, and more importantly, in order for a law to be ex post facto, it must either (1) make criminal that which was innocent when committed, (2) increase the punishment or aggravate any crime previously committed or (3) alter the rules of evidence by receiving less or different proof than required at the time of the commission, or (4) deprive the accused of a substantial right or immunity possessed at the time of commission. Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896). Legislative granting or withholding of the right to appeal to the state affects none of these factors. Moreover, a defendant does not have a vested right in the remedies and methods of procedure in criminal trials, including the granting of the right to appeal to the state, and the change in such right does not operate as an ex post facto law. Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (1901). The state’s right to appeal is governed by A.R.S. § 13-4032(1), as amended, Laws, 1980, and since the defendant does not question the right of the state to appeal under this statute, we hold that the state’s appeal in this case is properly before us. Turning to the merits of the appeal, the state argues that the defendant failed to show: (1) that the preindictment delay was intentionally designed to give the prosecutor a tactical advantage or to harass the defendant and, (2) that the delay caused the defendant actual and substantial prejudice. These factors, the state claims, must be proven by a defendant before a prosecution may be dismissed based upon preindictment delay. In support of this argument, the state cites United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), State v. Hall, 129 Ariz. 589, 633 P.2d 398 (1981) and State v. Torres, 116 Ariz. 377, 569 P.2d 807 (1977). While there is language in Hall and Torres suggesting that both of these factors must be established by a defendant to prevail on an argument of preindictment delay, it is clear from a closer reading of Lovasco and United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), that the ultimate question is whether there has been a violation of fundamental due process. See United States v. Walker, 601 F.2d 1051 (9th Cir., 1979). Nevertheless, we agree with state that the record does not support the trial court’s order of dismissal. In Lovasco, the Court noted that statutes of limitation are the primary guard against stale prosecutions. In discussing the limited role of the due process clause, the Court stated: [Pjroof of prejudice is generally a necessary but not sufficient element of a due process claim, and . . . the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused. 431 U.S. at 790, 97 S.Ct. at 2048-49, 52 L.Ed.2d at 759. The court went on to hold that an 18 month delay between the time of the offense and the indictment did not violate Lovasco’s right to due process where the delay was based upon additional investigation of other potential defendants even though Lovasco’s defense might have been somewhat prejudiced by the lapse of time. In the case at bar, as noted by the state, the defendant’s indictment was issued more than 20 months before the expiration of the statute of limitations on any count. See A.R.S. § 13-106(B). The only potential prejudice shown by the defendant resulting from the delay was the unavailability of a witness named Charlie Brown. The defendant claimed that Brown could have testified that the defendant was not present when one of the alleged fraudulent misrepresentations was made. The defendant’s other claim of prejudice because of the death of John Lewis, another alleged favorable witness, was negated by agent Cottrell’s affidavit showing that Lewis died approximately three months before the crimes were reported. All other alleged prejudice, such as faded memories, were natural incidents of delay. This minimal prejudice, as in Lovasco, is insufficient to support a dismissal of the prosecution when considered in light of the reason for delay; that is a continuing investigation. Agent Cottrell testified that he first became involved in the investigation against Van Arsdale in late 1978, and first personally interviewed the victim, John Ydrem, in February, 1979. His participation in the case required reviewing over 100 pounds of documents in a complex prosecution involving satellite investigations of other potential defendants. He further testified that although his review of the documents in relation to the defendant Van Arsdale was completed after approximately one year, the analysis of the documents in relation to the potential co-defendants was still continuing at the time of the hearing. Additionally, during 1979 and 1980 he was involved in various meetings with prosecutors, subpoenaed bank records and prepared flow charts on the cases. This testimony was unrebutted as was his testimony that there was no intentional delay on his part nor any requests for delay by the prosecutor. Under these facts, we find that the minimal prejudice when weighed against the reasons for and length of delay does not amount to a violation of the “ ‘fundamental conceptions of justice which lie at the base of our civil and political institutions’ [citations omitted] and which define ‘the community’s sense of fair play and decency.’ [citation omitted].” United States v. Walker, supra at 1055. The order dismissing the indictment is reversed and this matter is remanded to the trial court for further proceedings. GRANT, J., and RICHARD M. DAVIS, J. pro tern., concur. Note: The Honorable RICHARD M. DAVIS, a Judge pro tempore of a court of record, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const, art. VI, § 20. . The Court reiterated in United States v. Lo-vasco, 431 U.S. at 796-97, 97 S.Ct. at 2052, 52 L.Ed.2d at 763-64: In Marion we conceded that we could not determine in the abstract the circumstances in which preaccusation delay would require dismissing prosecutions. [Citation omitted]. More than five years later, that statement remains true. Indeed, in the intervening years so few defendants have established that they were prejudiced by delay that neither this Court nor any lower court has had a sustained opportunity to consider the constitutional significance of various reasons for delay. We therefore leave to the lower courts, in the first instance, the task of applying the settled principles of due process that we have discussed to the particular circumstances of individual cases. . In United States v. Marion, 404 U.S. at 325-26, 92 S.Ct. at 466, 30 L.Ed.2d at 482, the Court noted: Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment.

OPINION HOWARD, Chief Judge. This is an appeal from an order summarily denying appellant’s petition for a writ of habeas corpus. The petition filed December 31, 1981, alleged that the petitioner was an inmate of the Arizona State Prison and being held in intensive custody; that he had been held in this status for about a month after his arrest on charges which were still pending and then transferred to maximum custody; and that he had been returned to intensive custody after about a week. No response was filed nor did the trial court require one and on January 5, 1982, the petition was denied. Appellant paid no filing fee in the lower court. Appellant contends that he should have been afforded a hearing on his habeas corpus petition, citing our decision in Peru v. Raines, 130 Ariz. 44, 633 P.2d 453 (App. 1981). In Peru, we indicated that it is not inappropriate to construe a pro se habeas petition attacking executive discretion in prison administration matters as a petition for special action when a prison inmate complains of deprivation of significant privileges or confinement in maximum security for disciplinary reasons without certain required procedural safeguards. Our supreme court has treated pro se habeas corpus petitions as petitions for special actions both in proceedings originating in that court, e.g., Brown v. State, 117 Ariz. 476, 573 P.2d 876 (1978); Pickett v. Boykin, 118 Ariz. 261, 576 P.2d 120 (1978), and on appeal from denial of habeas corpus in superior court, Stevenson v. Arizona Board of Pardons and Paroles, 109 Ariz. 412, 510 P.2d 384 (1973). However, the court recently held in Tahtinen v. Superior Court, Pinal County, 130 Ariz. 513, 637 P.2d 723 (1981), that indigent prisoners are not entitled to a waiver of filing fees in civil actions or civil appeals. The right to waiver of filing fees applies only to an appeal from a criminal conviction, a habeas corpus petition challenging the legality of the petitioner’s incarceration, or a lawsuit within the doctrine of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). Our decision in Peru v. Raines, supra, antedated the Tahtinen case. We therefore believe that the superior court may not construe a pro se habeas corpus petition as a petition for special action without the payment of a filing fee. Since appellant’s petition does not attack the validity of his custody nor fall within the Boddie exception, the trial court’s summary disposition was proper. Affirmed. HATHAWAY and BIRDSALL, JJ., concur. . In Tahtinen, the petitioner’s special action complained of a denial of procedural due process in a prison disciplinary proceeding. . If a habeas corpus petition does state a claim for extraordinary relief, the superior court may elect to treat it as a petition for special action upon payment of the required civil filing fee.

GORDON, Vice Chief Justice: Appellant was convicted of one count of aggravated assault and one count of sexual assault. The jury also found to be true the allegation of dangerous nature on each count, see A.R.S. § 13-604, and the court sitting alone found true the allegations of two prior convictions. The trial judge sentenced appellant to these consecutive terms: twenty years for the aggravated assault; twenty-eight years for the sexual assault. Taking jurisdiction pursuant to Ariz.Const. Art. 6, § 5(3) and Ariz.R.S.Ct. 47(e)(5), we affirm the sexual assault conviction and sentence but reverse and remand for a new trial the aggravated assault conviction. FACTS On December 20, 1979, Michelle Childs was accosted by a man with a knife near 51st Avenue and Mountain View in Glendale, Arizona. The man held the knife to her throat and threatened to kill her if she screamed, but she managed to escape. On January 16, 1980, a fourteen year old girl walking near 51st Avenue and Olive in Glendale was grabbed by a man who held a knife to her throat and threatened to kill her if she screamed. The attacker undressed her, raped her, sodomized her, and then ran. Both victims gave the police general descriptions of their assailant. Then on January 19, 1980, three days after the second attack, the police asked both victims to come to the police station to be hypnotized. The purpose of the hypnotic sessions was to obtain a more detailed description of the assailant. The sessions were conducted separately. While under hypnosis, Ms. Childs described her attacker to a police artist who drew a picture from the description. The police tried to hypnotize the fourteen year old victim, but she testified at the Dessureault hearing that she never entered a hypnotic state. Her description during and after the time of the attempted hypnosis was the same as her description before the hypnosis. She did see the picture resulting from Ms. Childs’ session, however, and she stated that it looked like the man who had assaulted her. Three days later, Ms. Childs’ brother spotted appellant walking along Mountain View at 50th Avenue. He immediately noticed that appellant looked like the person in the picture drawn during his sister’s hypnotic session. Appellant was arrested, and a knife and other physical evidence were eventually seized. Appellant raises only one issue on appeal. He argues that the testimony at trial of both victims should have been excluded under State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981). We consider each case separately. THE AGGRAVATED ASSAULT Before trial, Ms. Childs was hypnotized and questioned about the identity of her attacker. In State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981), we held that a witness in a criminal trial is incompetent to testify as to either posthypnotic recall or prehypnotic statements. We modified Mena concerning prehypnotic statements in the rehearing opinion in State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982), but added in the original Collins opinion that Mena and State ex rel. Collins would be applied prospectively only, State ex rel. Collins v. Superior Court, supra (original opinion filed January 7, 1982). In cases where the hypnosis and subsequent testimony preceded our decision in Mena, we will not reverse if introduction of the testimony amounted to harmless error. State ex rel. Collins, supra (original opinion). In the instant case, the hypnosis and the posthypnotic testimony occurred preMena. Ms. Childs could not precisely describe or identify her attacker until after she had been hypnotized. No precautions were taken to safeguard against suggestibility in the hypnotic session. At trial, she testified as to her posthypnotic recall. Ms. Childs was the only witness to her assault. Appellant’s defense was alibi and misidentification. Under these circumstances, we cannot say introduction of Ms. Childs’ posthypnotic testimony was harmless error. Her testimony was the major source both of direct proof against appellant and rebuttal of his defense. Therefore, appellant’s conviction for aggravated assault must be reversed and remanded for a new trial. THE SEXUAL ASSAULT We find that Mena and State ex rel. Collins do not apply to the sexual assault case. Appellant in his brief assumes that the victim had been hypnotized, but the record does not support this assumption. It is true that some people who have been hypnotized sincerely believe that they never did enter a hypnotic state. Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L. Rev. 313, 330 n. 82. But nothing in the record in the instant case contradicts the victim’s Dessureault hearing testimony that despite the police efforts, she was never successfully hypnotized. The police attempted to use a light hypnotic trance to relax the victim and allow her to concentrate. The session took place only three days after the brutal attack upon her, however, and she stated that she was still too upset to relax. Moreover, her general description of her attacker remained the same before, during, and after hypnosis. We do not at this time establish a burden of proof for the state to meet when it asserts that one of its witnesses subjected to a hypnotic session was in fact never hypnotized. We encourage the state to avoid such situations because of the difficulty of proving when someone subjected to hypnosis has or has not entered a hypnotic trance (although we note the attempted hypnosis in this case occurred before we established the prospective only rule of Mena and State ex rel. Collins). In the instant case, however, the record is uncon-tradicted in establishing that the victim was not hypnotized. Appellant has also argued that all evidence that was derived from the police artist’s conception of Ms. Childs’ assailant was tainted by the hypnosis that helped produce the picture and, therefore, should be suppressed. We disagree. As we noted in the original opinion in State ex rel. Collins, supra, evidence obtained from leads developed from a hypnotic session is not susceptible to the unreliability problems connected with posthypnotic testimony, so long as the evidence is not a posthypnotic statement of the person hypnotized. Such evidence cannot be suggested or confabulated; nor is it subject to any of the other dangers of hypnosis. Therefore, there was no taint on the evidence obtained as a result of the police artist’s drawing of a suspect from Ms. Childs’ hypnotically induced description. Pursuant to A.R.S. § 13-4035, we have searched the record for fundamental error but have found none. The sexual assault conviction and sentence is affirmed; the aggravated assault conviction is reversed and remanded for a new trial. CAMERON and FELDMAN, JJ., concur. . A defendant in a criminal trial has a right to a hearing to determine whether a pretrial identification was so unduly suggestive that a subsequent in-court identification should be suppressed. State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970).

CAMERON, Justice. Defendant, David Samuel Goldston, was convicted of dangerous and deadly assault by an inmate in custody, A.R.S. § 13-1206, and possession of a deadly weapon by an inmate in custody, A.R.S. §§ 31-232(A) and 13-701. He was sentenced to life imprisonment without possibility of parole for 25 years, to be served consecutively to the sentence he was serving at the time of the offense, and 4 years for possession of the deadly weapon, also to run consecutively to the sentence being served. From these convictions he appeals to this court. We have jurisdiction under A.R.S. §§ 13^031 and 13-4035. The issues we must answer on appeal are: 1. Did the trial court err in denying the defendant’s motion for a mistrial after a juror was dismissed for cause following the prosecutor’s opening statement? 2. Did the prosecutor improperly refer to the condition of the victim’s shirt in his rebuttal argument, contrary to procedure and stipulation? JUROR BIAS AND MISTRIAL Following challenges and peremptory strikes by both sides, thirteen jurors were selected and sworn. After the prosecution’s opening statement and a recess for lunch, one juror told the trial judge in chambers that, upon reflection, he felt he was prejudiced and desired to be disqualified from further service. The judge advised the parties of this discussion, and of his intent to excuse the juror. Defendant’s attorney agreed to the juror’s removal but later moved for a mistrial. The court denied the motion. The defendant contends on appeal that the trial court committed reversible error when it denied his motion for a mistrial after the juror was dismissed for cause. Defendant claims that had the juror admitted his bias on voir dire, counsel would have employed the peremptory strikes in a different fashion. In other words, the juror’s silence impaired the exercise of counsel’s peremptory strikes, denial of which requires reversal of defendant’s conviction under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). We do not agree. Curtailment of the exercise of peremptory challenges may be a cause for reversal. United States v. Allsup, 566 F.2d 68 (9th Cir.1977); United States v. Turner, 558 F.2d 535 (9th Cir.1977); Hines v. Enomoto, 658 F.2d 667 (9th Cir.1981). We do not find in the instant case, however, that defendant was curtailed in the exercise of his peremptory challenges. The defense was able to, and did, use all of its peremptory challenges. The fact that one more juror was later excused did not affect the exercise of his peremptory challenges. But defendant contends that the jury composition would have been altered by a different exercise of the peremptory strikes. That may be. Defendant, however, is not entitled to be tried by any particular jury. State v. Hilliard, 89 Ariz. 129, 359 P.2d 66 (1961). He is only entitled to a fair and impartial jury. In the instant case, the defendant has not shown or even alleged that the twelve final jurors were not fair and impartial. We find no error. PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT During the introduction of the assault victim’s clothing into evidence, the prosecutor and defense counsel entered into a stipulation. The stipulation pointed out that the clothing, and particularly the shirt, had been perforated in the DPS crime laboratory. The parties stipulated as follows: “MR. COOK: Your Honor, we have just entered into a stipulation. There are some markings on the clothing that are perhaps — some holes in the clothing that were not — they were not in the clothing when they were turned into the DPS Crime Lab, but were done in fact by the crime lab themselves, and they can be identified by basically circles around an area, and then if there is a hole in that area, that would have been a hole from the DPS Crime Lab. ****** * * * and our stipulation is, our agreement basically is a stipulation, and it is an agreement between the two attorneys, is that these holes are not necessarily to be considered as anything that happened in connection with the incident, that they could have been there before or after or whatever, but the jury is basically not to worry about these. Is that sufficient? “MR. CALLAHAN: That is correct. We have no explanation at all as to what those are. We assume that they are not related to the offense.” In his initial closing argument, the prosecutor made no reference to the victim’s clothing. Defense counsel did not mention the shirt in his closing, but on rebuttal the prosecutor did discuss the holes in the shirt: “MR. COOK: * * * Just because somebody says it, you don’t have to believe it. You can match up the holes in this the same way. “MR. CALLAHAN: Excuse me, Your Honor, I believe we stipulated that these holes have been tampered with by the Crime Lab. We weren’t really sure what value the size of the holes would have in this case. “MR. COOK: Your Honor, I believe that goes to the weight the jury wants to give it. “THE COURT: I don’t really recall what the exact stipulation was. Maybe the twelve of you will remember the stipulation.” The prosecutor then discussed the stipulation further: “MR. COOK: * * * Even if you — whatever the stipulation was on the holes, the DPS may have examined them, that they made other holes, there is no doubt about that. When you start looking at some of them, there is a piece missing over here, there appears to be obviously a cut out circled section, whatever, and there is just a piece missing here, and there is a place that no stab wound was described, so you can consider the marks on it.” Defendant argues that the trial judge abused his discretion by allowing the prosecutor to comment about the holes in the victim’s clothing in a manner inconsistent with the prior stipulation. We do not agree. To begin with, it is questionable whether the prosecutor’s closing arguments were inconsistent with the stipulation. Even if they were, there is no showing that the remarks prejudiced the jury. We have stated: “The best rule for determining whether remarks made by counsel in criminal cases are so objectionable as to cause a reversal of the case is, Do the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by these remarks.” Sullivan v. State, 47 Ariz. 224, 238, 55 P.2d 312, 317 (1936). The prosecutor made it clear after the defense objection that some of the holes were made by the DPS crime lab. We have examined the shirt in evidence and it is apparent which holes were made by the DPS crime lab and which holes could have been made by the shank. We do not believe the jury was “probably influenced” by the remarks. Sullivan, supra. We find no error. Defendant further contends that since his counsel did not discuss the meaning of the holes in the shirt in the closing argument, the prosecutor prejudicially exceeded the permissible scope of rebuttal argument. Again we do not agree. Whether the remarks were proper rebuttal or not, State v. Randall, 8 Ariz.App. 72, 443 P.2d 434 (1968); State v. Adams, 1 Ariz.App. 153, 400 P.2d 360 (1965), there is no indication that the jury was confused or misled by the prosecutor’s statements. We find no prejudice and no error. We have reviewed the record pursuant to A.R.S. § 13-4035; State v. Powell, 5 Ariz.App. 51, 423 P.2d 127 (1967), and find no reversible error. The judgment of the trial court is affirmed. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and FELDMAN, JJ., concur.

OPINION HOWARD, Chief Judge. The issue in this case is the propriety of the trial court awarding additional fees after the issuance of our mandate. Summary judgment was granted in ap-pellee’s favor on October 1980. The judgment, inter alia, awarded appellee attorney’s fees in the sum of $2,030. On December 8, 1980, appellee made a request for additional attorney’s fees in the trial court for the attorney’s expenses incurred in post-judgment motions. The motion was set for hearing on January 2, 1981. However, on December 29, 1980, appellant filed a notice of appeal thus depriving the trial court of jurisdiction to consider the request. In Cause No. 2 CA-CIV 3965, we issued a memorandum decision affirming the summary judgment of the trial court and issued our mandate which commanded the superi- or court to comply with the memorandum decision. We awarded appellee $1,500 attorney’s fees on appeal but made no ruling on the- $420 incurred in the trial court since we were not requested to do so. After the record was sent back to the trial court, it entered a judgment for additional attorney's fees in the sum of $420, a sum which it had previously found to have been just and reasonable. Appellant contends that the trial court lacked jurisdiction to make this award since it would be deviating from the terms of our mandate, conduct which is prohibited by the Arizona cases. See Standard Accident Insurance Company v. Alien, 38 Ariz. 173, 298 P. 406 (1931); State of Arizona v. Griffith, 54 Ariz. 436, 96 P.2d 752 (1939). We do not agree. Rule 21(c), Arizona Rules of Civil Appellate Procedure, states: “When attorney’s fees are recoverable by statute or contract, the claim for such fees in connection with the prosecution or defense of an appeal may be included in the statement of costs prescribed by Rule 21(a). The claim for attorney’s fees for the prosecution or defense of the case in the superior court may also be included, provided that the superior court has not previously awarded such fees.” (Emphasis added) The foregoing rule does not require the prevailing party to include attorney’s fees incurred in the superior court in the statement of costs upon the penalty of forfeiting them if it does not do so. Furthermore, the trial court is not varying, altering or failing to follow our mandate by the entry of an order on the additional fees. It has not amended the judgment which we affirmed but made an additional order and entered an additional judgment for these attorney’s fees. Affirmed. HATHAWAY and BIRDSALL, JJ., concur.

CAMERON, Justice. We granted claimant Cook’s petition for review of a memorandum decision of the Court of Appeals affirming a decision of the administrative law judge. We have jurisdiction pursuant to A.R.S. § 12-120.24 and Rule 23, Arizona Rules of Civil Appellate Procedure, 17A A.R.S. We must answer only one question on review: Did the administrative law judge err in finding that there was no jurisdiction to consider claimant Cook’s request for review because it had been filed 5 days late? The facts necessary to a determination of this issue are as follows. On 27 September 1979, Cook suffered an injury at work for which he was granted workmen’s compensation benefits. After hearings, the administrative law judge entered an award determining Cook’s average monthly wage. Cook disagreed with this determination and requested a review of that award. Cook’s request for review of the award was filed 5 days after the 30 day filing limit. A.R.S. § 23-942(D). A hearing was held to inquire into the reasons for the late filing. The evidence showed that the error was made by a temporary secretary who was working for Mr. Cook’s attorney while the usual secretary was on vacation. Under the procedure used in the attorney’s office, it was the job of the secretary to record deadlines and remind the attorneys of them. The time limit for requesting review was erroneously noted by the secretary as “Cook request for hearing.” Because there were two cases in the office with the name Cook and because the notation indicated it was a request for hearing rather than a request for review, both the attorney and the full-time secretary overlooked it. (A motion for hearing should be made within 90 days as compared to the shorter 30 days for a rehearing. A.R.S. §§ 23-942, 23-947.) A request for review was filed the day the error was discovered. The administrative law judge found that Cook had offered no meritorious excuse for the late filing and that the Industrial Commission therefore had no jurisdiction to review the award. The Court of Appeals affirmed in a memorandum decision and Cook appeals. We note at the outset that the purpose of workmen’s compensation is remedial. Provisions should be construed liberally so as to effectuate the purposes of the Act. “ * * * proceedings before [the Industrial Commission] are not adversary proceedings and * * * it is as much the duty of the Commission to encourage and evaluate proper claims fairly as it is to expose and reject improper claims. The intention of the Workmen’s Compensation Act was to provide benefits for workmen injured in the course and scope of their employment, and to do so by a relatively informal administrative procedure which would be less cumbersome and time consuming than formal court action. When a hearing is held it should be inclusive of all pertinent data available as of the date of the hearing * * *.” Lugar v. Industrial Commission, 9 Ariz.App. 44, 49, 449 P.2d 61, 66 (1966). See Allen v. Industrial Commission, 87 Ariz. 56, 347 P.2d 710 (1959). Also, whenever possible, cases should be tried on the merits and not dispensed with on procedural motions. In re Trull, 21 Ariz.App. 511, 520 P.2d 1188 (1974). In accordance with the policy of applying the Workmen’s Compensation Act to effectuate its purpose, we have held that time limits imposed by the Act may be waived. Where the facts appear to warrant relief, and where the delay is not excessive or unfair, the Commission may, in the interests of justice, waive the timeliness of filing. Parsons v. Bekins Freight, 108 Ariz. 130, 493 P.2d 913 (1972). Rule 60(c), Arizona Rules of Civil Procedure, 16 A.R.S., sets forth the standard for excusable neglect in civil cases. The rule states: “60(c) Mistake, inadvertence; surprise; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect;” Arizona case law has long recognized that the error of a secretary can excuse an untimely filing. For example, the inadvertent failure of a secretary to notify an attorney of a deadline can warrant setting aside a default on the grounds of excusable neglect. See Wilshire Mortgage Corp. v. Elmer Shelton Concrete Contractor, Inc., 97 Ariz. 65, 397 P.2d 50 (1964), where the secretary neglected to enter a summons because she was called away from work by an illness and subsequent death in the family; and Cocon-ino Pulp & Paper Co. v. O. F. Marvin, 83 Ariz. 117, 317 P.2d 550 (1957), where the secretary who was responsible for preparing calendar sheets for all the attorneys in the office failed to deliver a calendar to one attorney, who missed a deadline. Similar facts to those in the case at bar are found in Kohlbeck v. Handley, 3 Ariz.App. 469, 415 P.2d 483 (1966), where a new secretary failed to advise the attorney of a deadline. In each of these cases, it was held on appeal that the secretaries’ errors constituted excusable neglect within the meaning of Rule 60(c) and warranted setting aside the defaults. The rationale behind treating a secretary’s mistake as excusable applies equally to criminal cases. In State v. Pope, 130 Ariz. 253, 635 P.2d 846 (1981), we held that the “big firm rule” can apply to the public defenders’ office when the mistake of a secretary causes an attorney to miss a deadline. We stated: “Allowing a late filing under the circumstances of this case does not, we believe, constitute a threat to the rights of others nor unduly burden the court. There is no indication that the State was prejudiced by the delay in the filing of the motion for rehearing, or that the trial court was deprived of a ‘last chance to correct any errors or omission.’ (citation omitted)” State v. Pope, supra, 130 Ariz. at 255, 635 P.2d at 848. And it has been specifically held that a secretary’s error can justify waiver of timely filing in Industrial Commission cases. In In re Trull, supra, where confusion and delays were caused by the fact that the claimant was living out of state, the Court of Appeals ruled that the applicant be relieved of the consequences of a late filing, and the Court of Appeals reached a similar conclusion in Andrew v. Industrial Commission, 118 Ariz. 275, 576 P.2d 134 (App.1977), where the late filing was due to miscalculation of the deadline by the attorney. The court stated: “Clearly, whether the reasons argued in support of a ‘meritorious position’ are valid will have to be determined on a case by case basis and when there are any facts to support the Commission’s findings or where material facts are in dispute, we will defer to the hearing officer’s conclusion. However, the facts are not in conflict here and merely reflect the frailties of human nature. * * * If ‘meritorious position’ has any equation with equity then the facts in this case demand relief.” Andrew v. Industrial Commission, supra, 118 Ariz. at 277, 576 P.2d at 136. We believe that a substitute secretary’s inaccurate notation warrants waiver of the timely filing requirement. We are unpersuaded by the Industrial Commission’s attempt. to distinguish Andrew by noting that the delay here is five days, rather than one day as in Andrew, and the fact that Mr. Cook was not completely forclosed from relief. Five days is by no means excessive, particularly where the claimant acted immediately to assert his rights once the oversight was discovered. As we have stated: “It is apparent from what we said in Janis that short delays are the least important aspect of this test. What is important is that the facts appear to warrant relief and that the delay is not unfair in its consequences to the carrier in that the carrier was not in some way damaged to his prejudice.” Chavez v. Industrial Commission, 111 Ariz. 364, 365-6, 529 P.2d 1181, 1182-3 (1974). In the instant case, the delay was not excessive, and the Commission has been unable to show that it was prejudicial. Parsons v. Bekins Freight, supra. We believe Cook’s untimely filing was excusable as a matter of law, and that it was an abuse of discretion to deny Cook a rehearing. The Court of Appeals opinion in Cook v. Industrial Commission is vacated, the award is set aside, and the matter is remanded for rehearing. HOLOHAN, C. J., GORDON, V. C. J., and HAYS and FELDMAN, JJ., concur.

HAYS, Justice. In October of 1979 the defendant, William Logan Tapp, was tried and convicted in absentia of two counts of sexual conduct with a minor, having voluntarily absented himself from both the trial and the sentencing. On November 5, 1979, defendant was sentenced to IOV2 years on each count, to run concurrently from the date of his apprehension. A bench warrant for his arrest was issued on that same day. We took jurisdiction pursuant to A.R.S. § 12-120.24 and 17 A.R.S. Rules of Criminal Procedure, rule 31.19. Defendant claims relief under 17 A.R.S. Rules of Criminal Procedure, rule 32.1(f). The appropriateness of this remedy to defendant’s situation gives rise to the first issue before us. After defendant’s conviction, counsel for the defendant filed a timely notice of appeal on November 13,1979. Counsel subsequently filed a Motion to Withdraw as Attorney of Record and to Appoint the Public Defender for Purposes of Appeal and Order. The judge of the Superior Court allowed the motion and ordered the public defender to represent the defendant on appeal. The public defender then discovered in initial investigation for the purpose of the appeal that the defendant had never been determined indigent and moved to withdraw. The Court of Appeals granted the motion, State v. Tapp, 1 CA-CR 4430, and set a date of May 15, 1980, for the filing of Tapp’s opening brief. The court stated that the appeal would be subject to dismissal without further notice if the brief were not timely filed. No brief was ever filed, and on June 12, 1980, the court dismissed the appeal. On September 28, 1980, the defendant was apprehended in Hawaii and brought back to Arizona. The Superior Court determined the defendant to be indigent and, once again, appointed the public defender to represent him. At this time, the defendant requested the Court of Appeals to reinstate his earlier appeal. The Court of Appeals denied both that motion and defendant’s subsequent Motion for Rehearing, stating: “IT IS ORDERED denying appellant’s motion for rehearing, without prejudice to the appellant filing a petition for post conviction relief.” The Supreme Court denied review. Defendant next sought relief under Rule 32.-1(f), Arizona Rules of Criminal Procedure, petitioning the trial court for a delayed appeal. The trial court granted the request on April 8, 1981, and defendant filed an appeal pursuant thereto. The state, however, moved the appellate court for review of grant of Rule 32 relief. On March 2, 1982, the appellate court reversed the trial court’s ruling, causing defendant to file a subsequent Motion for Rehearing and the instant Petition for Review. Ariz.App., 653 P.2d 10. The Court of Appeals reasoned that defendant Tapp should not have been granted Rule 32 relief because there had been no showing that the failure to prosecute his original appeal was without fault on his part. The court saw no distinction between the failure to appeal and the failure to prosecute an appeal. Because we conclude that Rule 32 is inappropriate where an appellant has failed to prosecute his appeal, we do not reach the issue of defendant’s fault. Rule 32.1(f), Arizona Rules of Criminal Procedure, permits a criminal defendant appropriate relief where “[t]he petitioner’s failure to appeal from the judgment, sentence or both was without fault on his part.” Initially, we must determine whether defendant has “failed to appeal” within the meaning of Rule 32.1(f) above. State v. Canedo, 125 Ariz. 197, 608 P.2d 774 (1980). Our analysis focuses on the construction to be given the phrase “failure to appeal” and on whether there is a meaningful distinction between the failure to appeal and the failure to prosecute an appeal. Rule 32.1(f) specifically refers to the “failure to appeal” and does not, on its face, extend post-conviction relief to an appellant who has filed an appeal but failed to prosecute it. The comments to Rule 32.1(f) state that the scope of the rule is intended to be the same as that of the old rule, 17A A.R.S., Rules of the Supreme Court, rule 16(a), upon which it is based. “[The scope] includes the situation in which the defendant fails to appeal because the trial court, despite the requirements of Rule 26.11, did not advise him of his appeal rights, and the situation in which the defendant intended to appeal and thought timely appeal had been filed by his attorney when in reality it had not.” (citations omitted). Research of meritorious petitions for post-conviction relief under Rule 32.1(f), Arizona Rules of Criminal Procedure, and under Rule 16(a), Arizona Rules of Supreme Court, provides us with guidelines of the scope of Rule 32.1(f). No case extends Rule 32 relief to a defendant whose appeal was dismissed for want of prosecution. Examination of Rule 31.15(b), Arizona Rules of Criminal Procedure, provides additional support for this conclusion. Rule 31.-15(b) provides for the involuntary dismissal of an appeal “for want of prosecution.” Whereas Rule 32.1(f) speaks of the failure to appeal, Rule 31.15(b) addresses the failure to prosecute an appeal. To extend the scope of Rule 32.1(f) to encompass the failure to prosecute an appeal is to create overlap between the relief offered by the two rules. We find it unnecessary to so broaden the scope because relief is available under Rule 31.15(b). Having decided that relief under Rule 32.1(f) is inappropriate, we consider now whether the dismissal of defendant’s original appeal was proper. 17 A.R.S. Arizona Rules of Criminal Procedure, rule 31.-15(b), as to involuntary dismissal of criminal appeals, provides: “The Appellate Court, upon motion of the appellee, or upon its own initiative after notice to all parties, may dismiss an appeal for want of prosecution, unless there is a showing of good cause why the appeal should not be dismissed. If the appellant was a defendant at trial, the court shall give notice to the appellant. No appeal shall be dismissed if the record on appeal is sufficient to enable the Appellate Court to decide the appeal on its merits, or when the appeal is taken automatically after the defendant has been sentenced to death.” (emphasis added). Comments to 31.15(b) provide: “This section is based on Ariz.Sup.Ct.R. 21.... As under Ariz.Sup.Ct.R. 21(b), a criminal appeal cannot be involuntarily dismissed when the court is able to decide the case on its merits from the record .... ” (emphasis added). Since research reveals no relevant cases decided under Rule 31.15(b), Arizona Rules of Criminal Procedure, we look to the cases decided under Rule 21(b), Arizona Rules of Supreme Court, for guidance. In State v. Houston, 80 Ariz. 86, 292 P.2d 1077 (1956), appellant, after filing his notice of appeal, filed no brief. A reporter’s transcript was prepared and sent to the clerk of the Supreme Court, along with the court minutes and complete copies of the lower court files. The court ordered the case submitted for a decision on the record in accordance with the mandate of Rule 21(b). “Notwithstanding the appellant’s failure to prosecute his appeal and point out specifically wherein the trial court erred, we have, in order to discharge our duty as outlined above, care fully examined the entire record for fundamental error.” 292 P.2d at 1079. This interpretation of the duty imposed by Rule 21(b), Arizona Rules of Supreme Court, was affirmed in State v. Cooper, 108 Ariz. 289, 496 P.2d 589 (1972). Rule 31.15(b), Arizona Rules of Criminal Procedure, clearly extends this duty to the appellate courts to decide the appeal on its merits where the record on appeal is sufficient to enable the courts to do so. Counsel for defendant Tapp timely filed a notice of appeal on November 13, 1979, and was subsequently allowed to withdraw as attorney of record. Meanwhile, the transcripts of the trial and other proceedings were forwarded to the clerk of the Court of Appeals, along with other documents and exhibits, the court minutes and a copy of the trial court file. Since no brief was ever filed, the Court of Appeals dismissed the appeal. We find that the record on appeal was as complete as in Houston and Cooper. The Court of Appeals should have determined whether the record was sufficient to decide the case on the merits and acted accordingly. The Court of Appeals is ordered to vacate the order of dismissal in Cause No. 1 CA-CR 4430 and reinstate the appeal. Accordingly, the petition for post-conviction relief in the form of a delayed appeal is denied. HOLOHAN, C.J., GORDON, V.C.J., and FELDMAN, J., concur. . 17A A.R.S. Arizona Rules of Supreme Court, rule 21(b), provides: “No criminal appeal shall be dismissed if sufficient matter or substance is contained in the record to enable this court to decide the appeal on its merits, but the appeal may be dismissed if it is not taken within the time prescribed by law or rules of court, or if the matter or substance contained in the record is not sufficient to enable the court to decide upon the law or the merits of the action.”

HAYS, Justice. After a jury trial, appellant Cruz Oscar Ramos was found guilty of theft of property pursuant to A.R.S. § 13-1802(A)(5) and was sentenced to a term of eight years. The Court of Appeals reversed and remanded. After denial of its motion for rehearing, the state filed a timely petition for review which we granted. We take jurisdiction pursuant to A.R.S. § 12-120.24 and 17 A.R.S. Rules of Criminal Procedure, rule 31.19. The question presented is whether A.R.S. § 13-503, as amended, is violative of due process. Because we hold that the statute is not unconstitutional, we also address appellant’s contention that his sentence is excessive. The opinion of the Court of Appeals is vacated. Appellant’s conviction stems from the theft of a Ford Bronco from a Tucson restaurant parking lot. Police attempted to stop appellant near the Mexican border for exceeding the speed limit. A registration check of the Ford Bronco indicated it had been reported as stolen. Following a high-speed chase, appellant was apprehended. He was intoxicated at the time. At trial appellant requested that the court instruct the jury pursuant to A.R.S. § 13-503, as amended, that it could consider the effects of intoxication upon appellant’s culpable mental state. The statute provides: “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act.” (Emphasis added). The trial court refused to give the requested instruction. Prior to April 23, 1980, the jury could consider the fact that an accused was intoxicated in determining whether he had the required mental state to commit the act. Today the jury may consider such intoxication only if the crime charged requires the culpable mental state of intentionally or with the intent to. CONSTITUTIONALITY OF STATUTE Appellant was charged with theft pursuant to A.R.S. § 13-1802(A)(5) which provides: “A. A person commits theft if, without lawful authority, such person knowingly : 5. Controls property of another knowing or having reason to know that the property was stolen; ...” (Emphasis added). Appellant contends the jury could not consider his intoxication to determine whether he committed the crime “knowingly”; therefore, the state was relieved of proving an element of the crime charged. A divided Court of Appeals held that A.R.S. § 13-503, as amended, was an unconstitutional violation of the due process clause of the fourteenth amendment. We find the statute to be constitutional. An act of the legislature is presumed constitutional, and where there is a reasonable, even though debatable, basis for enactment of the statute, the act will be upheld unless it is clearly unconstitutional. State v. Murphy, 117 Ariz. 57, 61, 570 P.2d 1070, 1074 (1977). In the instant case, the prosecution is not relieved of the ultimate burden of persuasion. Perhaps the state of mind which needs to be proven here is a watered down mens rea; however, this is the prerogative of the legislature. The legislature has wide latitude in promulgating state substantive criminal law. The United States Constitution reserves to the states considerable freedom in defining crimes, including mental elements required, and in establishing penalties for the crimes defined. See Powell v. Texas, 392 U.S. 514, 535-36, 88 S.Ct. 2145, 2156, 20 L.Ed.2d 1254 (1968). Judge Hathaway, in his well-reasoned dissent, draws an analogy to the insanity defense. Arizona has adopted the M’Naghten test for sanity as the sole standard for criminal responsibility. State v. Christensen, 129 Ariz. 32, 35, 628 P.2d 580, 583 (1981); A.R.S. § 13-502. The defenses of diminished capacity and irresistible impulse have been rejected by the legislature even though they might be relevant to the accused’s state of mind. Psychiatric testimony to negate specific intent has consistently been excluded. State v. Laffoon, 125 Ariz. 484, 486, 610 P.2d 1045, 1047 (1980). Here, even though intoxication might be relevant to appellant’s culpable mental state, the legislature has chosen not to allow evidence of intoxication to negate such mental state. It may have been more consistent had the legislature also excluded evidence of intoxication for crimes requiring the culpable mental state of intentionally, or had it included both knowingly and intentionally in the statute. We must, however, interpret the law as written. O’Mal-ley Lumber Co. v. Riley, 126 Ariz. 166, 169, 613 P.2d 629, 631 (App.1980); Ernst v. Collins, 81 Ariz. 178, 181, 302 P.2d 941, 943 (1956). In the instant case, appellant contends ' that A.R.S. § 13-503 creates a presumption that the crime was committed knowingly. We disagree. The jury was not instructed to presume the element of knowledge. It was instructed that the state must prove each element of the charge beyond a reasonable doubt. Additionally, it was instructed that the crime required, inter alia, the culpable mental state of knowingly. The state introduced evidence by the owner of the truck that the truck was taken without his permission and that the ignition was tampered with, making use of a key unnecessary. Evidence was also presented regarding the arresting officer’s attempts to stop the truck, the subsequent chase, and appellant’s control of the vehicle when it was stopped. Intent to commit theft or any felony can be shown by circumstantial evidence. State v. Brooks, 126 Ariz. 395, 399, 616 P.2d 70, 74 (App.1980); State v. Taylor, 25 Ariz.App. 497, 499, 544 P.2d 714, 716 (1976). The jury could properly infer the requisite mental state from the proffered evidence. Evidence, even though relevant, may sometimes be excluded for reasons of policy. See generally State ex rel. Pope v. Superior Court, 113 Ariz. 22, 545 P.2d 946 (1976). In this ease, public policy dictates that one who voluntarily seeks the influence of alcohol should not be insulated from criminal responsibility. Furthermore, evidence of intoxication is not necessarily relevant. “The great majority of moderately to grossly drunk or drugged persons who commit putatively criminal acts are probably aware of what they are doing and the likely consequences. In the case of those who are drunk, alcohol may have diminished their perceptions, released their inhibitions and clouded their reasoning and judgment, but they still have sufficient capacity for the conscious mental processes required by the ordinary definitions of all or most specific mens re a crimes.” State v. Stasio, 78 N.J. 467, 478, 396 A.2d 1129, 1134 (1979) (citing Murphy, “Has Pennsylvania Found a Satisfactory Intoxication Defense ?, 81 Dick.L.Rev. 199, 208 (1977)). Additionally, if one trusts in the adage “in vino veritas” the law allows conviction of those whose acts while intoxicated have exposed their true nature. The legislature has made a policy decision which resulted in passage of A.R.S. § 13-503. The state still has the burden of proving each element of the crime charged beyond a reasonable doubt. EXCESSIVE SENTENCE Because we find the statute is not unconstitutional, we must address appellant’s contention that his sentence to a term of eight years is excessive. A sentence imposed within the statutory limits will not be reduced unless a clear abuse of discretion is demonstrated. State V. Gray, 122 Ariz. 445, 448, 595 P.2d 990, 993 (1979). An abuse of discretion will not be found absent a decision characterized by arbitrariness, capriciousness, or failure to conduct adequate investigation into facts relevant to sentencing. State v. Gordon, 125 Ariz. 425, 428, 610 P.2d 59, 62 (1980). The statutorily presumptive term of imprisonment for the crime for which appellant was found guilty is five years. A.R.S. § 13-701(B)(2). A presumptive sentence may, however, be increased or decreased by the trial court if aggravating or mitigating circumstances are present. A.R.S. § 13-702(B). The trial court conducted a presentence hearing and found that the behavior exhibited by appellant as he attempted to elude police was of a dangerous nature. Appellant drove at very high speeds through a residential area. He also tried to force the police vehicle off the road. The court further noted appellant’s lack of respect for the law and property of other people, as well as his previous misdemeanor convictions for attempted burglary. The only mitigating circumstance the court found was appellant’s age — 23 years old. Our review of the record fails to disclose any actions of the trial court amounting to abuse of discretion. We find no error. The opinion of the Court of Appeals is vacated. The judgment of conviction and the sentence are affirmed. HOLOHAN, C. J., GORDON, V. C. J., and CAMERON and FELDMAN, JJ., concur. . Prior to April 23, 1980, A.R.S. § 13-503 stated: “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of any particular culpable mental state is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act.” (Emphasis added). . Under the new criminal code the terms "general” and “specific intent” are no longer used. They have been replaced by the concept of “culpable mental state” which is comprised of intentionally, knowingly, recklessly, and with criminal negligence. A.R.S. § 13-105(5) as amended.

OPINION THOMPSON, Presiding Judge. The juvenile seeks special action relief from the denial of his request for a peremptory change of judge. He claims that the judge misconstrued the juvenile rule relating to a peremptory change of judge and erred in concluding that the right to such a change had been waived. We accept jurisdiction and deny relief. In 1993, the state petitioned to have the juvenile adjudicated delinquent in Mohave County Cause No. 93-J-105. The state and the juvenile entered into a plea agreement and the juvenile admitted the allegations of delinquency. The juvenile judge, James E. Chavez, accepted the plea and, consistent with the agreement, placed the juvenile on intensive probation. In July 1996, a petition to revoke probation was filed. The juvenile admitted the probation violations as alleged, and entered into a disposition agreement with the state. Again, Judge Chavez accepted the agreement and reinstated the juvenile on intensive probation. Later in 1996, another petition to revoke probation was filed. The juvenile attended an advisory hearing on October 17, 1996 before Judge Chavez. At this hearing, the juvenile was notified that the state had filed a new petition to adjudicate him delinquent in Mohave County Cause No. J-96-560. The allegations of both petitions were read to the juvenile, and he was advised of his rights. Thereafter, on October 22, 1996, the juvenile appeared before Judge Chavez for an adjudicatory hearing on both petitions and was granted a continuance. Later that same day, the juvenile filed a “Notice of Change of Judge” in J-96-560, pursuant to Juv. Ct. R. 20.1(c) (Rule 20.1(c)). Following oral argument on the issue, Judge Chavez denied the juvenile’s request for a change of judge. This special action followed. Judge Chavez then severed the petition for delinquency from the petition to revoke probation and stayed further proceedings on the petition for delinquency. This is an appropriate case for the exercise of special action jurisdiction. See JV-13232U v. Superior Court, 181 Ariz. 337, 890 P.2d 632 (App.1995) (denial of peremptory change of judge impacts important procedural right and is not otherwise appealable). Rule 20.1(c) provides that any party is entitled to a change of judge upon timely request and further specifies: 4. Waiver. (ii) A party loses the right to a change of judge upon request when the party participates before that judge in any contested matter or hearing. Such waiver shall apply to all successive petitions or supplemental petitions filed with respect to the same juvenile____ Judge Chavez denied the request because he interpreted the rule to mean that a waiver results from participation in any hearing, contested or uncontested. He believed that the word “contested” applied only to “matter” and not to “hearing.” Since the juvenile had participated in adjudication, disposition and revocation hearings in connection with the original delinquency petition, the judge concluded that the right to a change of judge had been waived. The word “contested,” in the context of the rule, can arguably be read to modify either “matter” alone, or “matter or hearing” together. We must therefore construe it. See State ex rel. Corbin v. Marshall, 161 Ariz. 429, 778 P.2d 1325 (App.1989). To do so, we look to the rule’s “context, language, effects and consequences, spirit and purpose.” Devenir Assoc. v. City of Phoenix, 169 Ariz. 500, 503, 821 P.2d 161,164 (1991). The context and structure of the language suggest that a waiver occurs when one participates either in a matter that is contested or a hearing that is contested. If the Arizona Supreme Court had intended that a waiver result from participation in all hearings, contested or uncontested, it could easily have worded the phrase as “any hearing or contested matter.” The state argues that the juvenile took part in both adjudication and disposition hearings in connection with the first delinquency petition filed against him, and that it is the intent of the rule that once this has occurred the juvenile cannot obtain a change of judge in a new petition. That is indisputably true if either the adjudications or the dispositions were contested, but is it true where the matters were disposed of on stipulation? To resolve that question, we look first to the factors that militate in favor of the conclusion that the proceedings in which the juvenile participated were not contested. The juvenile cites case law interpreting a predecessor to Rule 20.1, namely, Ariz. R. Civ. P. 42(f). See, e.g., Lewis v. Kelliher, 171 Ariz. 228, 829 P.2d 1274 (App.1992); Sarchett v. Superior Court, 168 Ariz. 321, 812 P.2d 1139 (App.1991). In those cases, we held that various civil hearings were not contested because the parties entered into stipulations on all issues presented and thus no dispute existed between them. Id. The juvenile claims that this definition of contested is controlling here because nothing was disputed between the juvenile and the state in the hearings before Judge Chavez. In essence, the juvenile argues that there was no reason to exercise the peremptory right to a change of judge because there was no dispute to be decided by Judge Chavez. The cases cited by the juvenile do not control, however, because they fail to account for the inherent discretion that a juvenile judge has in determining the disposition of a delinquent. Judge Chavez had “ ‘broad power to make a proper disposition’” of the petitions. In Matter of Maricopa County Juvenile Action No. JV-510312, 183 Ariz. 116, 118, 901 P.2d 464, 466 (App.1995) (quoting Maricopa County Juvenile Action No. J-72918-S, 111 Ariz. 135, 137, 524 P.2d 1310, 1312 (1974)). The judge was certainly bound to consider the stipulations in determining the appropriate disposition of the juvenile, but the judge was not required to accept the stipulations, and his discretion was not limited by their submission. A disposition hearing, even where the parties have stipulated to the outcome, is never merely ministerial. See State v. Holstun, 139 Ariz. 196, 197, 677 P.2d 1304, 1305 (App.1983). Thus, while there may have been no dispute between the parties, the discretion afforded to the judge at the disposition hearings puts those hearings within the spirit of the rule precluding a change of judge. Once Judge Chavez exercised his discretion in the first delinquency proceeding by accepting a stipulation at the all-important disposition hearing, the parties had reason to know how he felt about the juvenile and the merits of the case. See Flagel v. Southwest Clinical Physiatrists, 157 Ariz. 196, 755 P.2d 1184 (App.1988) (interpreting Rule 42(f) and holding that once the party has reason to know how a judge feels about the merits, any right to a peremptory change of judge is lost). Under Rule 20.1, the waiver in the first delinquency proceeding applies to “all successive petitions or supplemental petitions” filed against the same juvenile. The juvenile’s request for a change of judge in the second delinquency proceeding was properly denied. Our conclusion is consistent with the rehabilitative purpose of juvenile proceedings because juveniles will have the benefit of continuity in appearing before the same judge once an initial disposition has been made. This decision is limited to the determination that disposition hearings are contested hearings. We make no such determination regarding adjudication hearings. GRANT, J., concurs.

OPINION WEISBERG, Judge. Eric L. (“the juvenile”) appeals the orders of the juvenile commissioner adjudicating him delinquent and ordering him to pay restitution to the victim. We affirm in part and reverse in part. FACTUAL AND PROCEDURAL HISTORY On February 5, 1996, the state filed a delinquency petition against the juvenile alleging that he had committed two counts of burglary, two counts of theft, and one curfew violation. At the adjudication hearing, the juvenile agreed to admit to one count of attempted burglary and one count of theft. He also agreed to pay restitution to the victim in an amount to be determined by the court, not to exceed $1000. In exchange, the state agreed to drop the remaining charges. The juvenile commissioner’s minute entry reflects that the juvenile was advised of his constitutional rights and agreed to waive them. It also reflects that the juvenile wished to enter into the proposed agreement, that he admitted the factual basis for the crimes, and that his admission was not the result of any threats, coercion, or undue promises. Accordingly, the juvenile was adjudicated delinquent and a time was set for the disposition hearing. At the disposition hearing, the juvenile was placed on probation in the physical custody of his mother and stepfather and the protective custody of a probation officer. Special term eleven of probation, regarding restitution, was to “remain open” pending a restitution hearing. At the restitution hearing, the commissioner ordered the juvenile to reimburse the victim for her economic losses caused by the theft. The juvenile filed his notice of appeal and argues here that his plea was not voluntarily and intelligently entered because the commissioner failed to adequately inform him of his constitutional rights. He further argues that the commissioner abused her discretion in ordering restitution. In response, the state argues that the juvenile’s notice of appeal was untimely as to the adjudication and disposition hearings, and therefore any issue related to the juvenile’s admission must be dismissed. In the alternative, the state argues that the juvenile’s admission was voluntarily and intelligently made and that the commissioner did not abuse her discretion in ordering restitution. I. Notice of Appeal The commissioner entered the adjudication order on March 11, 1996. At the disposition hearing on April 25, 1996, the juvenile .was placed on probation, but the restitution issue was continued. On May 28, 1996, the restitution order was entered. A notice of appeal from all three orders was filed on June 11, 1996. The state maintains that, while the notice of appeal was timely as to the restitution order, it was untimely as to the adjudication and disposition orders. We disagree. A notice of appeal must be filed within 15 days after the final order of the juvenile court is filed by the clerk. Ariz. R.P. Juv. Ct. 25(a) (“Rule(s)”). In In re Maricopa County Juvenile Action No. J-74222, 20 Ariz.App. 570, 571, 514 P.2d 741, 742 (1973), this court held that the “final order” for purposes of Rule 25(a) is the disposition order because it is the “one that disposes of all issues ... before the Juvenile Court.” Consequently, a notice of appeal filed 15 days after entry of the disposition order would be timely as to both the adjudication order and the disposition order. Id. Furthermore, to avoid piecemeal appeals, the disposition order was held to be the only final order, rendering adjudication orders no longer separately appealable. Id. Ten years after J-74222 was decided, the legislature amended the statute that is now designated Ariz.Rev.Stat. Ann. (A.R.S.) section 8 — 241(D). See 1983 Ariz. Sess. Laws ch. 257, § 2. That amendment made the hitherto discretionary restitution order a mandatory part of a juvenile disposition. See id (substituting “shall” for “may”); In re Mari-copa County Juvenile Action No. JV-503009, 171 Ariz. 272, 274, 830 P.2d 484, 486 (App. 1992) (“After considering the specified criteria, a juvenile court is statutorily obligated to order a juvenile who has been adjudicated delinquent to pay either full or partial restitution to the victim of the offense.”). The statute now reads, in relevant part: D. The court shall, after considering the nature of the offense and the age, physical and mental condition and earning capacity of the child, order the following dispositions for a delinquent child, either as exclusive dispositions or in addition to the dispositions provided by subsection A, paragraph 2 of this section: 1. To make full or partial restitution to the victim of the offense for which the child was adjudicated delinquent. A.R.S. § 8-241(D)(1). Thus, since the 1983 amendment, the order denominated “disposition” is necessarily interlocutory in nature when restitution remains an unresolved issue. The juvenile’s disposition is therefore not final until restitution has been considered and ruled upon. Consequently, applying the reasoning of J-74222, we hold that, when restitution remains at issue, the final order for purposes of Rule 25(a) is the restitution order. Until that order has been entered, no appeal may be taken. And, when the notice of appeal is filed, it encompasses all previous orders entered by the juvenile court. This practical result will reduce the number of documents required to be filed with the court, reduce the amount of counsel’s paperwork, and avoid piecemeal appeals. See J-74222, 20 Ariz. App. at 571, 514 P.2d at 742. We therefore conclude that the juvenile’s notice of appeal was timely because it was filed within 15 days of the restitution order. II. Voluntary and Intelligent Admission After the petition was filed against the juvenile, he signed an affidavit stating that he understood that he had the following rights: to remain silent, to be represented by counsel, to a hearing to determine his guilt or innocence, and to call witnesses on his own behalf and cross examine the witnesses against him. He also signed an “Invocation of Fifth and Sixth Amendment Rights,” which gave notice that he was exercising his “Fifth Amendment right not to incriminate [himjself ... and all rights to which [he was] entitled under Article II, §§ 10 and 24 of the Arizona Constitution.” When the juvenile admitted to two charges at the adjudication hearing, the following exchange took place between him and Commissioner Verdin: Court: Eric, the attorneys are telling me that you wish to admit to some charges today. Is that true? Juvenile: Yeh. Court: If you admit today, there will not be a trial. Do you know what a trial is? Juvenile: Yes. Court: If you admit, you are giving up your right to a trial, but you’re also giving up your right to remain silent. That means you have to tell me in your own words what it is you did wrong. Do you understand that? Juvenile: Yes. Court: Is that what you would like to do? Juvenile: Yes. Court: If you admit today, there will be another hearing in the future called a Disposition Hearing. At a Disposition Hearing, you get a consequence for your inappropriate behavior. That consequence could include being placed on probation at home or outside of your home, but you could also be sent to the State Department of Juvenile Corrections until you turn 18. You could be detained here. You could be ordered to pay a fine. You could be ordered to do community service work. You could be ordered to go to drug testing, to counseling, or some other type of educational program. You might also be ordered to pay restitution. Restitution means paying someone back for damages that you may have done. Do you understand the things that could happen to you? Juvenile: Yes. Court: Has anybody threatened you in any way in order to make you admit? Juvenile: No. The juvenile then gave the commissioner a factual basis for his admissions and the commissioner found “that the juvenile has knowingly, intelligently, and voluntarily entered into an admission of Count I and Count II.” The juvenile now argues that his admissions were not voluntary and intelligent because the commissioner failed to properly advise him of his right to remain silent and his right to confront his accusers. We disagree. In order that a juvenile’s admission to a charge be voluntary and intelligent, he or she must be aware of the rights that are waived by entering into the admission. In re Maricopa County Juvenile Action No. J-86715, 122 Ariz. 300, 302-03, 594 P.2d 554, 556-57 (App.1979); see also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Those rights include: 1. The right against self-incrimination, 2. The right to confront one’s accusers, 3. The right to a trial in the form of an adjudication hearing, and 4. The potential dispositions. J-86715, 122 Ariz. at 303, 594 P.2d at 557. Furthermore, the record of the admission proceeding must affirmatively show that the juvenile was aware of these rights. Such awareness may not be presumed from a silent record. Id. at 302-03, 594 P.2d at 556-57. The “record,” however, is not limited to the hearing transcripts. State v. Darling, 109 Ariz. 148,152, 506 P.2d 1042,1046 (1973). It includes the instruments filed with the trial court and the minute entries. See id. In this case, the record is not silent. The juvenile signed an affidavit stating that he was aware of and understood his rights, including his rights to remain silent and to confront his accusers. Later, with the aid of counsel, he also signed a document invoking his Fifth Amendment right to remain silent and his rights under the Arizona Constitution, which include the right to remain silent and the right to confront witnesses. Our supreme court has rejected the notion that an accused, in making his plea, must be deemed aware only of the rights about which the trial court has informed him: We take judicial notice that defendants know many things which are not told to them by the judge, and if the record will support a finding that the defendant did, in fact, know [his rights], we will not reverse merely because he did not hear it from the judge. Id. We will not presume, as the juvenile asks us to, that he signed the documents informing him about and invoking his rights, yet remained uninformed about the extent of those rights or the effect of their waiver. In addition, we ought to afford some deference to the commissioner’s finding of volun-tariness when it was she who personally spoke with and observed the juvenile while he was making the admission. See State v. Reynolds, 106 Ariz. 47, 50, 470 P.2d 454, 457 (1970). In such proceedings, our supreme court has acknowledged that there are only general guidelines and that the trial court’s interrogation “must necessarily vary from case to case.” Id. So long as the trial court is satisfied that a defendant’s constitutional rights have been safeguarded and there is adequate basis in the record to support that finding, we will not disturb a trial court’s acceptance of a plea. Cf. id. Accordingly, based upon this record, we conclude that the juvenile was adequately informed of his rights and understood them at the time he entered his admission. III. Restitution At the restitution hearing, Commissioner Bacher ordered the juvenile to pay a total of $654.10, which consisted of $434.10 for damages to the victim’s car, $88.00 for her loss of one day of work while she waited for car repairs, $88.00 for her loss of another day of work while attending the adjudication hearing, and $44.00 for her loss of one half day of work while attending the disposition hearing. Although the juvenile makes several arguments as to why the restitution award was improper, we need only address the first argument because it is dispositive. As reflected by the transcript of the restitution hearing, the commissioner seems to have been operating under the mistaken belief that she had no discretion to adjust or reduce the amount of restitution due the victim: Court: [A]ll right. How old are you? Juvenile: Thirteen. Court: Thirteen? When will you be sixteen? Stepfather: March of ’99. He just turned 13 in March. Court: March 17 of ’99. All right. (Indecipherable) the legislature enacted laws providing that we can order restitution at the current time (indecipherable) juvenile. The legislature, however, never explained to this court, nor do I imagine it could explain, how, uhm, the court can, since its powers are limited to ordering restitution from the juvenile, how this court can possibly make a 13-year-old pay this kind of money since a 13-year-old cannot be employed, uh, in most situations, and so the court is faced with [the] practical problem including, uh, I can order restitution but it’s going to be really hard for me to, uhm, expect that the juvenile is going to pay it until such time if he were just 16. Now, Eric, here’s the deal. You don’t get off probation until you pay the money. Normally probation is a year. So, you need to either see if you can do some odd jobs for the neighbors and start working on paying this money off, or (indecipherable) remain on probation until you pay it off. Juvenile: Okay. Court: So that’s the situation. Stepfather: Your Honor, isn’t that kind of unfair. Being on probation for three years and uh, I mean, (indecipherable) we could pay the money, but we just don’t have it, it’s not that we don’t want to pay it and I mean I thought it was (indecipherable) the person last (indecipherable) that was the first time he ever got in trouble. You know? Court: I don’t make the rules. Stepfather: Yeah. Court: I just carry them out and, uhm, I am required to order, uh, restitution as appropriate, uhm, I’m not necessarily saying it’s fair, but it’s the law. Uhm, so now, he may be eligible for some JTPA Programs next year. There’s a lot of summer programs, uhm, that employ kids in the 14 to 16 and do pay them, but whether he’d be eligible or not I don’t know, so I can’t order him to do that. Stepfather: But, I don’t want him missing, to fall (indecipherable) in high school and junior high, (indecipherable) in school you know, cuz ... Court: I understand that. But it’s a practical matter. There’s not much I can do. While the restitution order is mandatory, see A.R.S. § 8-241(D), it may provide for either full or partial restitution, depending on the court’s consideration of the juvenile’s “age, physical and mental condition and earning capacity.” Id. Thus, the commissioner’s ability to deal with the “practical problem” of ordering a thirteen-year-old to pay full restitution was not as limited as she believed. See In re Maricopa County Juvenile Action No. JV-503009, 171 Ariz. 272, 274, 830 P.2d 484, 486 (App.1992) (“After considering the specified criteria, a juvenile court is statutorily obligated to order a juvenile who has been adjudicated delinquent to pay either full or partial restitution to the victim of the offense.”). We therefore reverse the restitu tion order and remand for reconsideration based upon the factors set out in A.R.S. section 8-241(D). CONCLUSION We affirm that the juvenile’s notice of appeal was timely filed and that the juvenile was adequately advised of his constitutional rights. We reverse the restitution order and remand it for further consideration consistent with this opinion. VOSS, J., concurs. . A.R.S. section 8-241 was originally enacted in 1970. See 1970 Ariz. Sess. Laws ch. 223, § 2. Subsection (C), relating to payment of restitution, was added in 1979. See 1979 Ariz. Sess. Laws ch. 92, § 1. The subsection was redesignated as (D) in 1994. See 1994 Ariz. Sess. Laws ch. 201, § 8.

OPINION EHRLICH, Presiding Judge. John C., a juvenile, appeals from the adjudication that he violated probation and the disposition imposed. He complains that he was not instructed in writing that he was to live at a facility designated by his legal custodian and, therefore, that his probation may not be revoked for running away from that shelter. For the reasons which follow, we affirm. FACTUAL AND PROCEDURAL HISTORY John was placed on probation on February 8,1996, under the protective supervision of a probation officer, in the legal custody of the Arizona Department of Economic Security (“DES” or “ADES”) and in the physical custody of a residential treatment center. After violating his probation, John, on April 23, was continued on probation under the protective supervision of a probation officer and in the custody of DES. On both occasions, the first term of probation, signed by John, required that he “will live with ADES until further court order, obey the rules and directives of [his] custodian and not run away;____” He was further ordered to “cooperate with services provided by DES/Com-Care.” On September 1, 1996, John was arrested on a charge of disorderly conduct, released to DES custody and placed at Safe Haven Shelter. On September 9, Safe Haven informed John’s probation officer that he had run away two days earlier. John was found, returned to Safe Haven and charged with violating his probation by committing disorderly conduct and running away. At the adjudication hearing, the parties stipulated to those facts as well as to the fact that there was no document signed by John nor court order either placing John in Safe Haven or requiring him to stay there. The juvenile court dismissed the disorderly-conduct charge but it found that, by running away from Safe Haven, John had violated term 1 of his probation. The court further said: While in the best of all worlds we might have a system which allowed everyone to come back to Court and put in writing the name and address of the specific facility that the juvenile was to live in through DES each time, as a practical matter DES often has to change placement, and I believe that ordering that the juvenile live with a[sic] ADES is sufficient notice to the juvenile that he is expected to live in whatever placement is arraigned [sic] by his case manager. Therefore I do not believe that [In re Appeal in Maricopa County Juvenile Action No. JV-5084-88, 185 Ariz. 295, 915 P.2d 1250 (App.1996),] prevents the Court under these circumstances from finding that there was a violation of probation because I believe that the direction to quote — the direction, quote, “... will live with ADES until further Court order, comma, obey the rules and directives of your custodian and not run away,” close quote, is sufficient written notice to the juvenile. At the disposition hearing, the court ordered that John’s probation be continued under the protective custody of a probation officer, in the legal custody of DES and in the physical custody of ComCare at a designated treatment center. John appealed. DISCUSSION John argues that the juvenile court erred in finding that he violated his probation because he was never advised in writing that he was to reside at and not run away from Safe Haven Shelter. He relies on In re Appeal in Maricopa County Juvenile Action No. JV-508488, 185 Ariz. 295, 300, 915 P.2d 1250, 1255 (App.1996). In JV-508488, id. at 300, 915 P.2d at 1255, the court relied on State v. Robinson, 177 Ariz. 543, 546, 869 P.2d 1196,1199 (1994). In turn, the rationale of Robinson was based upon Ariz. R.Crim. P. (“Rule”) 27.7(c)(2), which provides, in pertinent part that “[p]robation shall not be revoked for violation of a condition or regulation of which the probationer has not received a written copy.” As one of the conditions of Robinson’s probation, he had been required to “(participate and cooperate in and successfully complete any program of assistance, counseling or therapy, whether outpatient or residential, as directed by the probation officer.” In accordance with this written directive, Robinson’s probation officer orally told Robinson to participate in a specific counseling program. Robinson did not and his probation officer petitioned the superior court to revoke his probation. The superior court found that Robinson had violated probation and this court affirmed because Robinson had admitted to having notice. However, the supreme court held that Rule 27.7(c)(2) prohibited the revocation of probation because Robinson had no written notice. 177 Ariz. at 544-46, 869 P.2d at 1197-99. “[I]f an order is important enough to warrant a revocation petition, the order first must be reduced to writing and given to probationer.” Id. at 546, 869 P.2d at 1199. In JV-508488, the juvenile was required by a written term of his probation to “attend school as required by law.” When he failed to attend Valley Vocational Services (“WS”) as directed by his probation officer, the probation officer petitioned the juvenile court to revoke probation. The court found that the juvenile had violated the terms of his probation but this court reversed the decision. It concluded that the juvenile’s failure to attend WS as orally directed by the probation officer did not violate the written term that he “attend school as required by law” because it was unclear that WS was a “school” in the intended sense or that he was “required by law” to attend that institution. 185 Ariz. at 301, 915 P.2d at 1256. Heeding Robinson, it said that an order of sufficient consequence to warrant a revocation petition first must be reduced to writing and given to the probationer. Id. The juvenile in this case asserts that, similar to the situations in JV-508488 and Robinson, he was not instructed in writing that he was to live at Safe Haven and, therefore, his probation may not be revoked for running away from that shelter. We, as did the juvenile court, disagree. This case is more like State v. Alves, 174 Ariz. 504, 851 P.2d 129 (App.1992), than like JV-508488 or Robinson. As a condition of Alves’ probation, he had to successfully complete a shock-incarceration program. When he was dismissed from the program for his failure to abide by its rules and regulations, Alves contended that his probation could not be revoked because he was not given a written copy of those directives. Like Robinson, he premised his argument on Rule 27(c)(2), to which this court responded: ... [A] probationer cannot be revoked for violating a term or condition of probation which has not been provided to the probationer in writing. This rule, however, does not extend so far as to require that the rules and regulations of any program in which a probationer is required to participate be furnished in writing. Id. at 505-06, 851 P.2d at 130-31. John was a ward of the court. Legal custody was placed with DES under the supervision of a probation officer, and John was required by the written terms of his probation to “live with ADES until further court order,” to “obey the rules and directives of your custodian [DES]” and to “not run away.” These terms were sufficient notice to John that he was obliged to participate in any program for which DES, his custodian, arranged. In JV-508488 and Robinson, there was no issue of custodial direction and the probation officer was free to broadly implement the written terms of probation. In this case, the discretion was given to the juvenile’s legal custodian, DES, and not to his probation officer. The distinction between the guidance of a probation officer and that of a custodian is critical; the former advisor possesses less legal authority than the latter, making the requirement of Rule 27.7(c)(2) of specific direction appropriate because of legal status and responsibility. Ariz.Rev.Stat. Ann. § 8-201(7). By running away from the facility chosen by DES, John violated the written terms of his probation requiring that he obey the “rules and directives of [his] custodian.” CONCLUSION John’s adjudication and disposition are affirmed. WEISBERG and GRANT, JJ., concur.

OPINION SULT, Judge. Joseph Pompa appeals from the entry of a default judgment against him on a RICO claim filed by Gabriel Encinas. In this opinion, we address the issue of the trial court’s subject matter jurisdiction over a RICO claim under Arizona Revised Statutes Annotated (“A.R.S.”) section 13-2314.04(H) (Supp. 1996). We hold that the trial court had subject matter jurisdiction because this statute, in conditioning jurisdiction on compliance with procedural requirements specified therein, impermissibly conflicts with court rules governing procedure. In a separate, unpublished decision issued this date, we address the remaining issues raised by Pompa. See Fenn v. Fenn, 174 Ariz. 84, 85, 847 P.2d 129,130 (App.1993). BACKGROUND Encinas worked for Pompa at Pompa’s La Perla Cafe from 1980 until 1994. On December 17, 1994, Encinas severely injured his hand while at work. Pompa did not provide workers’ compensation insurance for his employees and Encinas filed a complaint in Superior Court against Pompa alleging gross negligence, conspiracy to commit tax and workers’ compensation insurance fraud, and RICO violations. Encinas did not serve the Attorney General with notice and a copy of his complaint within thirty days, as required by section 13-2314.04(H) for all civil pleadings alleging a RICO violation. Pompa moved for judgment on the pleadings alleging, inter alia, that Encinas’ failure to timely notify the Attorney General deprived the trial court of subject matter jurisdiction over the RICO claim, pursuant to the express language of section 13-2314.04(H). The trial court rejected this contention, finding that it did have subject matter jurisdiction. Pompa timely appealed. DISCUSSION The question of a trial court’s subject matter jurisdiction is one of law and one which we review de novo. Hughes v. Creighton, 165 Ariz. 265, 267, 798 P.2d 403, 405 (App.1990). Section 13-2314.04(H) provides in relevant part: A person who files an action under this section [a private RICO claim] shall serve notice and one copy of the pleading on the attorney general within thirty days after the action is filed with the superior court. This requirement is jurisdictional. The initial question is whether section 13-2314.04(H) is procedural in nature or whether it creates or defines a substantive right. This inquiry is necessary because, while the Arizona Constitution gives the legislature the power to originate substantive law, that document also grants the Arizona Supreme Court the exclusive power to enact procedural rules of court. Ariz. Const, art. 6, § 5(5). See State v. Birmingham, 96 Ariz. 109, 110, 392 P.2d 775, 776 (1964). Consequently, if the legislature intrudes into the procedural realm, a question implicating the separation of powers doctrine is raised. Ariz. Const, art. 3; Pompa v. Superior Court, 187 Ariz. 531, 533, 931 P.2d 431,433 (App.1997). Upon a careful reading of the statute, we conclude that it does not create or define a substantive right. Rather, the substantive right of a private party to bring a RICO action and the substantive right of the Attorney General to intervene in that action are found elsewhere. See A.R.S. §§ 13-2314.04(A), 13-2314.04(1) (Supp.1996). The function served by section 13-2314.04(H) is to regulate the method by which these substantive rights are enforced. This is the classic definition of a procedural rule. Daou v. Harris, 139 Ariz. 353, 358, 678 P.2d 934, 939 (1984) (“The procedural law prescribes the method by which a substantive law is enforced or made effective.”). That a statute creates a procedural rule does not automatically render it invalid as a violation of the separation of powers provision. As our Supreme Court noted in State ex rel. Collins v. Seidel, 142 Ariz. 587, 591, 691 P.2d 678, 682 (1984), the legislature may enact procedural rules so long as they merely supplement, but do not contradict, existing court-made rules. It is the role of the courts to review a legislatively created rule to determine whether it meets the test enunciated in Seidel or, conversely, impermissibly infringes on the constitutional power vested in our Supreme Court. Id. We now undertake our review of section 13-2314.04(H) to determine what conflicts, if any, exist with court rules and whether all or any part of the statute can be upheld. State, ex rel. Woods v. Filler, 169 Ariz. 224, 227, 818 P.2d 209, 212 (App.1991) (where statutory rule is reasonable and workable, courts will enforce it). As noted, section 13-2314.04(H) is a procedural aid to the Attorney General in exercising his right to intervene in a private RICO action. That substantive right is granted in a companion provision, section 13-2314.04(1) (Supp.1996), which permits the Attorney General, on timely application, to intervene in a RICO action if he deems it to be “of special public importance.” Once involved, the Attorney General may assert any available claim and is entitled to any relief he could have obtained if he had instituted a separate action. Id. For the Attorney General to avail himself of this substantive right, it is a sine qua non that he know such an action is pending. Moreover, if the Attorney General is to have an adequate opportunity to shape and direct the prosecution of the RICO claim, it is important that he have notice at the earliest stage of the RICO litigation. Consequently, we find that the statute’s requirement that notice be given by making service of the RICO pleading within thirty days of the filing thereof is a reasonable and workable supplement to court rules governing notice and service of process. Seidel, 142 Ariz. at 591, 691 P.2d at 682. It is a different matter, however, with the statute’s provision that compliance with its procedural directives is “jurisdictional.” We read this provision as attempting to deprive the trial court of subject-matter jurisdiction over the RICO claim if the party asserting the claim fails to timely serve the Attorney General with the RICO pleading. In conditioning subject-matter jurisdiction on compliance with a procedural rule, the legislature has created a clear conflict with both the letter and the purpose of the Arizona Rules of Civil Procedure. As a general rule, the subject-matter jurisdiction of a trial court is to be determined from sources other than procedural rules. See 12 Wright & Miller, Federal Practice and Procedure, § 3141 at 210-11 (1973). In Arizona, this principle is codified in Rule 82, Arizona Rules of Civil Procedure, thus: These Rules shall not be construed to extend or limit the jurisdiction of superior courts or venue of actions therein. By intertwining subject-matter jurisdiction with a procedural directive, section 13-2314.04(H) violates this fundamental precept. In this statute, the legislature imposes a limitation on a trial court’s jurisdiction, not by exercising its power to enact substantive law, which is permissible, but by engaging in rule making. Just as an Arizona court cannot extend or limit jurisdiction in enacting procedural rules, so is the legislature likewise circumscribed when it enters this field. The jurisdictional component of section 13-2314.04(H) also operates contrary to the notions of flexibility and discretion embodied in the Rules of Civil Procedure. The primary purpose of our procedural rules is to “secure the just, speedy, and inexpensive determination of every action,” preferably on its merits. Rule 1, Ariz. R. Civ. P. See Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962) (it is contrary to the spirit of the rules of procedure for decisions on the merits to be avoided on the basis of technicalities). To this end, the rules as a whole place considerable discretion in the trial judge to construe the rules in a manner that will secure their objectives. In commenting on the Federal Rules of Civil Procedure, after which our procedural rules are patterned, Professors Wright and Miller make the following observation: It is not an exaggeration to say that the keystone to the effective functioning of the federal rules is the discretion of the trial court. The rules grant considerable power to the judge and only provide general guidelines as to the manner in which it should be exercised. [The court’s] discretion often must be used to relieve counsel or parties from the consequences of excusable error or neglect. The rules will remain a workable system only as long as trial court judges exercise their discretion intelligently on a case by case basis; application of arbitrary rules of law to particular situations only will have a debilitating effect on the overall system. 4 Wright & Miller, Federal Practice and Procedure, § 1029 at 120 (2d ed. 1987). It is clear that section 13-2314.04(H) fails the test required of a procedural rule, namely that it avoid the imposition of an arbitrary rule to a particular situation. For example, the statute would deprive the trial court of the power to relieve a party of his failure to serve the Attorney General within the time prescribed, even though service might be made on the thirty-first day, or even though the failure to timely serve is due to excusable neglect. The statute would also require permanent dismissal of a claim, even though the claim may be well-founded in fact and deserving of reparation. By contrast, existing court rules would permit the trial court, on an appropriate showing, to excuse the failure to timely serve. Rule 6(b), Ariz. R. Civ. P. Moreover, the trial court would not be required to permanently dismiss the claim with prejudice if the Attorney General were not timely served, Rule 4(i), Ariz. R. Civ. P. Even if the Attorney General were deemed a necessary party, the trial court could permit the action to proceed in his absence if required by “equity and good conscience.” Rule 19(b), Ariz. R. Civ. P. In stripping the trial court of subject-matter jurisdiction for a violation of its procedural directives, section 13-2314.04(H) imposes an arbitrary, one-shoe-fits-all, enforcement mechanism which is clearly antithetical to the purpose of procedural rules. Moreover, it impermissibly impacts superior court jurisdiction by limiting such jurisdiction under the guise of a procedural rule, a direct conflict with Rule 82, Ariz. R. Civ. P. For these reasons, we find the jurisdictional component of section 13-2314.04(H) void. Pompa, 187 Ariz. at 535, 931 P.2d at 435; State v. Fowler, 156 Ariz. 408, 412-13, 752 P.2d 497, 501-02 (App.1987). CONCLUSION We affirm the trial court’s conclusion that it had jurisdiction to entertain Enemas’ RICO claim. Given our disposition of the remaining issues in our memorandum decision issued this date, we deny both parties’ requests for attorneys’ fees under section 13-2314.04(A). FIDEL, P.J., and PATTERSON, J., concur. . Such service was eventually accomplished. . Pompa is a prior special action proceeding in this case, where another panel of this court considered A.R.S. section 13-2314(M) (Supp.1996), which requires service on the Attorney General of copies of the notice of appeal and appellant’s opening brief as a jurisdictional condition in an appeal involving a RICO claim. The court found the statute was in conflict with existing court rules governing appeals and ruled the jurisdictional condition unconstitutional. 187 Ariz. at 533-35, 931 P.2d at 433-35. . This substantive right granted to the Attorney General is significant. While the RICO statutes are written primarily to impact criminal behavior, the law also authorizes the Attorney General and county attorneys to bring an action to obtain civil remedies against an offender. A.R.S. § 13-2314(A) (Supp.1996). It is certainly conceivable that the Attorney General may have an important interest in a private RICO action where, for example, a critical issue of statutory interpretation may affect his ability to pursue civil RICO remedies. The Attorney General may also wish to intervene in order to take advantage of the discovery product generated in the civil action for use in a possible criminal proceeding.

OPINION GRANT, Judge. This appeal brought by Mohave Electric Cooperative (“Mohave”) concerns an action to recover damages caused by the alleged unlawful conduct of Alvin H. Carpenter (“Carpenter”) and Susan H. Byers (“Byers”). Carpenter and Byers were Mohave’s former general manager and assistant general manager, respectively. Prior to trial, Carpenter died and his estate settled with Mohave for a substantial amount of damages. The trial court entered partial summary judgment against Mohave precluding Mohave from introducing evidence of Byers’s misconduct and of her joint and several liability. The trial court also issued four rulings which effectively eviscerated most of Mohave’s claims against Byers prior to trial. The court subsequently found Byers guilty of fraud, awarding a very small percentage of Mohave’s claimed damages. The court then ruled that Byers was the prevailing party and awarded her attorney’s fees. For the reasons set forth below, we reverse the trial court’s award of partial summary judgment to Byers and we remand this case for a trial on the merits. We therefore vacate the trial court’s judgment awarding Byers attorney’s fees. PROCEDURAL HISTORY AND FACTS I. Procedural History Mohave is a member-owned, non-profit cooperative located in Bullhead City, Arizona, which provides electrical power to its members/consumers. This case involves Mohave’s claims of fraud, negligence, breach of fiduciary duties and contract, embezzlement, forgery, unjust enrichment, and racketeering. Mohave seeks damages caused by the allegedly unlawful conduct of Carpenter and Byers. Mohave filed its Complaint against Byers and Carpenter on December 23, 1991. Carpenter died prior to trial, and both Carpenter’s estate and the defendants in a related separate action (Mohave’s previous accountants) settled with Mohave, collectively paying Mohave more than $500,000. This appeal centers on four rulings by the trial court which Mohave maintains were erroneous. The first two rulings related to Byers’s Motion for Summary Judgment. On March 1, 1995, the trial court granted Byers partial summary judgment dismissing Mohave’s claims based on 1,157 packets of credit card and expense transactions which were developed during an audit of Mohave, and finding that Byers was not jointly and severally liable for most of Carpenter’s misdeeds. In so holding, the trial court ignored Mohave’s claims against Byers for her independent negligence and breach of her fiduciary duties. In that ruling, the trial court also held that Mohave failed to present specific evidence on 1,157 of 1,200 separate acts of fraudulent expenses which had been evaluated in an audit of Mohave. The latter ruling ignored that Mohave had presented an auditing expert’s report concerning the 1,200 credit card and expense transactions. The order granting partial summary judgment to Byers reduced Mohave’s claims from $368,-000, before trebling for racketeering, to less than $50,000, consisting primarily of the remaining expense transactions. Mohave also contests the trial court’s order granting Byers’s Motion to Dismiss claims based on most of the remaining 43 credit card and expense transactions. On May 17, 1995, following a bench trial, the trial court granted Byers’s Motion for Dismissal pursuant to Rule 41(b) of the Arizona Rules of Civil Procedure, dismissing most of Mohave’s remaining claims based on the Statute of Limitations. In that ruling, the trial court found Byers guilty of fraud in the amount of $1,943.68. Mohave maintains the trial court erred in issuing that order because the court ignored Mohave’s evidence that Byers and Carpenter wrongfully concealed their misconduct from Mohave. Mohave also maintains that the court misapplied the law pertaining to fraudulent concealment tolling the Statute of Limitations. That ruling left less than $2,000 in damages. On August 16, 1995, following a bench trial, the trial court entered a judgment for $1,943.68 against Byers on Mohave’s claims for fraud and breach of fiduciary duty, but found for Byers on the remaining claims. Despite that judgment, the trial court found that Byers was the prevailing party and awarded her more than $100,000 in attorney’s fees and costs. On August 31,1995, Mohave filed a Motion for New Trial and to Vacate the Judgment (Motion for New Trial), and a Motion to Alter or Amend the Judgment. The trial court issued an amended judgment denying those motions, reducing the judgment against Byers to $615.25 (again based on the Statute of Limitations), and awarding Byers additional attorney’s fees. Mohave filed a timely Notice of Appeal from both the August 16,1995 judgment and the amended judgment. This court has jurisdiction pursuant to Arizona Revised Statutes Annotated (“A.R.S.”) sections 12-2101(B), 12-2101(0), 12-2101(F)(1) and 12-120.21(A). II. Pertinent Facts The majority of Mohave’s claims and damages were dismissed by the trial court on summary judgment. On appeal of that order, the evidence is viewed in the light most favorable to Mohave. AROK Constr. Co. v. Indian Constr. Servs., 174 Ariz. 291, 293, 848 P.2d 870, 872 (App.1993). A. Mohave’s Corporate Structure and Byers’s Employment with Mohave Mohave is an Arizona non-profit cooperative governed by an elected board of directors (“the board”). Carpenter, who was Mohave’s general manager for 18 years, from 1972 to late 1990, ran the cooperative on a daily basis. The evidence at trial established that Carpenter operated Mohave as if it were his own business and he controlled, or at a minimum, strongly influenced, the board. Carpenter formally retired on January 31, 1991. The evidence established that the policies of the board provided: (1) that Carpenter was selected by, reported to, and was overseen by, the board; (2) that Carpenter was authorized to “interpret policy, exercise judgment, establish a supervisory organization, determine administrative and operating procedures and execute them by delegating functional activities to subordinates”; and (3) that Carpenter had “wide latitude in the selection and management of personnel and the termination of the services of personnel,” and that he was responsible for “the proper maintenance of accounting records.” In October 1986, Carpenter created the position of assistant general manager and appointed Byers to that position. She remained in that position until March 1991. Byers had very little experience to qualify her for such a position. She had previously worked for Mohave as a meter reader and secretary. She only had a high school diploma and had graduated from beauty school. It is uncontested that Byers and Carpenter had a personal romantic relationship. Byers admitted in her responses to requests for admission that she had authority to sign on Carpenter’s personal bank account, and that she and Carpenter dined, socialized and went on vacation together. Mohave County records document that Carpenter and Byers had purchased a home together as joint tenants with right of survivorship. Mohave asserts a conspiracy claim against Byers, maintaining that the close relationship between Carpenter and Byers motivated Carpenter to appoint Byers as the assistant manager and enabled Carpenter and Byers to collaborate to defraud Mohave. Mohave also maintains that Carpenter and Byers paid for much of their relationship with Mohave credit cards and funds. During her tenure as assistant general manager, Byers directly reported to Carpenter. In her deposition, Byers testified that as assistant general manager she supervised department heads, including the heads of the accounting and finance departments, called meetings with those department heads, and also reported directly to the board. She and others testified that during Carpenter’s rather frequent absences, Byers operated Mohave on a daily basis. Mohave presented evidence that Mohave had written policies requiring the general manager to: (1) provide general oversight, care, and management of the company’s assets; (2) exercise control over accounting procedures and records; and (3) comply with all laws. Mohave also presented evidence that Byers had a duty to comply with those written policies, both when she performed her duties as assistant general manager and when she served as acting general manager during Carpenter’s significant absences. Mohave alleges that from at least 1986, when Byers became assistant general manager of Mohave, Carpenter and Byers filed false credit card charges and expense vouchers with Mohave, converted Mohave’s funds and equipment for their personal use, and mismanaged Mohave to benefit both themselves and their families and friends. As assistant general manager, Byers was issued credit cards to use for business-related expenses, including meals and travel. She could obtain cash advances and reimbursement for out-of-pocket business expenses ' by submitting expense vouchers. The requirement to submit vouchers for reimbursement for business expenses applied to other company employees. Periodically, Byers submitted receipts for reimbursement. Byers and other employees, including Carpenter, submitted credit card receipts and vouchers to Monika Colby, head of Mohave’s accounting department. B. The MMI Audit The key document in this ease is an investigative audit completed on August 31, 1992, by Murphy & Maconachy, Inc., a certified public accounting and management consulting firm specializing in white collar criminal investigations. When Mohave appointed a new general manager to replace Carpenter in late 1990, Mohave’s members requested a financial audit (“the initial audit”) so that the new general manager could begin his term with a “clean set of books.” In April 1991, the members of Mohave voted for an exhaustive financial investigative audit (“MMI audit”) to determine the legality of all expenditures because the initial audit uncovered some improprieties that the auditors believed could be used as a basis to file a fidelity insurance claim. The MMI audit culminated in an audit report which Mohave used to document its insurance claim. The MMI audit discussed the personal relationship between Byers and Carpenter, their extensive misconduct and their concealment of that misconduct. The MMI audit reported that the financial investigation was hampered because Byers oversaw the destruction of more than two large dumpsters of Mohave’s financial documents during 1990. Byers admitted in her deposition that in 1990, she oversaw the destruction of the financial records. Mohave maintains that she destroyed those documents to conceal her financial misconduct; whereas Byers maintains the documents were destroyed in compliance with Mohave’s record retention policies. However, Byers admits that Mohave had never destroyed any records until 1990, after the initial audit commenced. Despite Byers’s destruction of some of Mohave’s financial documents, the MMI audit revealed several acts of misconduct by Byers and Carpenter: (1) wrongful use of Mohave’s credit cards for personal expenses, including restaurants, hotel stays, travel, jewelry, candy and underwear; (2) intentional filing of false or incomplete expense reports; (3) the acquisition of cash advances to obtain double recovery for such expenses, or to pay for other personal expenses; (4) providing assistance to certain customers in the construction of power lines, thereby violating Mohave’s policies and regulations; (5) the conversion of insurance policies on Byers and Carpenter’s fives, and the forgery of names and the misleading of the board to convert such policies; (6) use of Mohave’s funds to purchase vehicles and equipment for Carpenter’s friends, and for Byers’s father; and (7) use of Mohave personnel and equipment both during business hours and for personal tasks at Byers and Carpenter’s homes. Using financial records which Byers did not destroy, the MMI audit reconstructed 1,200 packets of credit card charges and expense vouchers (“the packets”) filed by Byers and/or Carpenter. The MMI audit compared those packets with Byers and Carpenter’s calendars and with other documents, and could find no business purpose for transactions evidenced by the 1,200 packets. The packets amounted to more than $71,000 in fraudulent use of credit cards, more than $45,000 in unsupported and improper expense advances, and more than $34,000 in falsified expense reports. Many of the expenses were incurred by Byers and Carpenter on trips and for dinners. The audit also revealed that on at least 23 occasions, Carpenter charged an expense on a Mohave credit card and Byers then submitted a receipt for the same expense to obtain a separate reimbursement from Mohave. The audit also revealed that in 1989, Byers and Carpenter purchased a water truck and backhoe using Mohave funds. Both during her deposition, and in her answers to interrogatories, Byers admitted asking Carpenter to buy a water truck for her father with Mohave funds. Byers signed the Mohave check in the amount of $10,022.50 for that purchase. Byers and Carpenter immediately sold the truck and another Mohave backhoe to Byers’s father for $9,358.89. While Byers’s father reimbursed Mohave for most of the expenses incurred by Mohave in acquiring the truck and backhoe, the MMI audit concluded that Mohave had regularly used that backhoe and that Mohave incurred unreimbursed expenses because Mohave had recently repaired the backhoe which was sold to Byers’s father. The audit also concluded that the used backhoe Byers purchased for Mohave with Mohave funds as a replacement was of little value to Mohave. At trial, Mr. Maconachy, an expert witness who conducted the MMI audit, testified that, as Mohave’s second highest ranking employee, Byers had a fiduciary duty to correct and report any improper employee conduct, including Carpenter’s. Based upon his audit, Maconachy testified at his deposition that Byers and Carpenter appeared to be in collusion with each other, and that, if Byers had performed her duty to discover and report both her own and Carpenter’s defalcations, Mohave would not have incurred all the damages it sustained. The expert’s opinion that there was collusion is supported not only by Byers and Carpenter’s fraudulent use of credit cards, charges for personal trips and dinners, and purchases of the water truck and backhoe, but also by the fact that Byers repeatedly submitted false expense reports to Mohave for reimbursement for items which Carpenter had charged on Mohave’s credit cards. The MMI audit also concluded that Mohave did not discover Byers and Carpenter’s misconduct earlier because for approximately ten years Mohave’s annual certified financial audits were done by a Texas accounting firm which Carpenter had recommended to the board. The MMI audit also found that Mohave’s former accountants may have been negligent in not properly examining Mohave’s equipment purchases, expense reports and credit card expenses. Finally, the MMI audit confirmed that Byers may have concealed her misconduct even after the audit began by intentionally ordering at least two dumpsters full of financial documents to be destroyed. C. Mohave’s Claims Against Byers Based upon the MMI audit, Mohave brought this action against Byers and Carpenter in December 1991. Mohave maintains that the total damages it incurred due to the misconduct are estimated to be $368,-627.96, before trebling for racketeering, and not including either the cost of the MMI audit itself, or Mohave’s attorneys’ fees and costs. Mohave claimed that Byers was jointly and severally liable with Carpenter, and also that Byers breached her independent duty to uncover and to report Carpenter’s misdeeds to the board. Mohave also brought a separate action against its former accountants. D. Evidence Presented by Mohave to Refute Byers’s Motion for Summary Judgment In moving for summary judgment, Byers contended that her failure to report expenses was excusable because Mohave did not have policies requiring such reporting, or alternatively, that if there were such policies, Mohave did not enforce them. In its effort to survive summary judgment, Mohave presented evidence that Mohave had policies, although they were not written, and that Mohave had periodically enforced those policies. Mohave presented evidence and testimony that: (1) Carpenter had specifically directed Monika Colby, Mohave’s finance director, to require Byers and other employees to document expenses and charges; (2) Mohave never authorized Carpenter to charge his personal expenses to Mohave; (3) Mohave’s written policies required Byers and Carpenter to comply with all laws, including the Internal Revenue Code’s requirement that Mohave compile and retain documentation of all employees’ business-related expenses; and (4) Mohave published forms for reimbursement and required its employees to complete such forms. Finally, Mohave introduced evidence that Byers occasionally filed expense reports. Mohave also introduced other evidence developed during discovery. First, it introduced the MMI audit’s finding that, on at least 23 occasions, Carpenter charged an expense on a Mohave credit card and also submitted a receipt for that same expense to Mohave to obtain a separate reimbursement. In her Answer to Mohave’s Complaint, Byers admitted that she sometimes submitted incorrect receipts for expenses. In her answer to interrogatories, Byers admitted that she intentionally submitted false receipts for expenses, rather than failing to submit receipts. In her deposition, Byers also testified that it was better to file false reports than no reports at all. During her deposition, Byers also testified that in her opinion, any expense that she charged on her Mohave credit card was an appropriate business expense: Q. It’s your understanding that anything that was ever charged to the MEC (Mohave) credit card was an appropriate business expense. A. That’s correct. During her deposition, Mohave presented Byers with a sampling of 43 packets of the 1,200 expense vouchers and credit card receipts. Those packets were used to demonstrate the different types of misappropriations committed by Byers and Carpenter against Mohave. In her deposition, Byers was also presented with her and Carpenter’s calendars corresponding to the dates on the receipts in the 43 packets. She admitted that she could not see any business purpose for any of those expenses. For example, she admitted that in 1989, she and Carpenter took a vacation over the Labor Day weekend, and that she charged their hotel costs and other expenses to Mohave. In her deposition, Byers also admitted that in 1988 she stayed in the same hotel room with Carpenter on a trip to Texas, and that Carpenter charged the expenses to Mohave. Byers claimed that Carpenter made the trip to meet with a manager of another electric cooperative. However, she acknowledged that she had no legitimate business purpose to join Carpenter. E. The Trial Court’s Dismissal of Mohave’s Claims, the Judgment for Mohave, the Denial of Mohave’s Motion-far New Trial and the Award of Byers’s Attorney’s Fees The trial court dismissed most of Mohave’s claims for damages caused by the fraudulent credit card charges and expense vouchers. It also found that there was insufficient evidence to show Byers was jointly and severally liable for most of Carpenter’s misconduct, thereby reducing Mohave’s claims for compensatory damages from more than $360,000, before trebling for racketeering, to less than $50,000, consisting primarily of the expense transactions developed in the audit. By the time of trial, the amount of remaining compensatory damages against Byers was $6,410.15. The trial court also granted Byers’s Motion to Dismiss pursuant to Rule 41(b) of the Arizona Rules of Civil Procedure, ruling that most of Mohave’s claims based on the remaining allegedly wrongful financial packets set forth in the 43 packets were precluded by the Statute of Limitations. Mohave maintains that ruling was erroneous because it ignored Byers and Carpenter’s wrongful concealment of their misconduct, which should have tolled the Statute of Limitations until at least 1990, when the initial audit commenced, if not until 1991, when the MMI audit was conducted. That ruling further reduced the amount of compensatory damages to less than $2,000. After a bench trial on Mohave’s remaining claims of fraud, breach of fiduciary duty, negligence and for money had and received, the trial court found Byers liable for fraud in the amount of $1,943.68, which the court later reduced to $615.25, again based on the Statute of Limitations. Despite finding that Byers acted fraudulently, the trial court found that Byers was the prevailing party and awarded Byers attorney’s fees of $100,-936.02. The court denied Mohave’s Motion for New Trial and Motion to Vacate the Judgment on all of the issues presented below. ISSUES The following issues are presented in this appeal: 1. Did the trial court err in the summary judgment proceedings by refusing to consider the MMI audit report and the expert’s testimony concerning the MMI audit as to the 1,157 transactions? 2. Did the trial court err in granting Byers partial summary judgment on the 1,157 fraudulent expense packets because Mohave did not submit specific evidence of Byers’s fraud or of her breach of fiduciary duty as to each of the 1,200 packets, but instead relied upon expert testimony that the sampling of 43 packets showed Byers and Carpenter’s pattern of fraud as to all 1,200 packets? 3. Did the trial court err in granting Byers partial summary judgment relating to all misconduct other than the 43 expense packets by (a) isolating each aspect of the conspiracy and then requiring specific evidence of a conspiratorial agreement as to each act of misconduct; (b) ignoring its own finding that there was sufficient evidence to show a conspiracy to defraud Mohave as to expenses; and (e) ignoring evidence as to Byers’s negligence and her breach of her independent duty to uncover and report any such types of misconduct to the board? 4. Did the trial court err in finding that there were no genuine issues of fact concerning whether Byers was jointly liable pursuant to A.R.S. section 12 — 2506(D)(1) for Carpenter’s fraudulent expense vouchers and charges, and whether Byers had breached her independent duty to uncover such misconduct and to report it to the board? 5. Did the trial court err in finding that Byers could not be liable for failure to document expenses solely because Mohave had no written policies on reimbursement procedures? 6. Did the trial court err in ruling that the Statute of Limitations barred claims based on most of the 43 fraudulent expense packets where there was evidence that until at least 1990 Carpenter and Byers fraudulently concealed their misconduct? 7. Did the trial court err in denying Mohave’s Motion for New Trial and to Vacate the Judgment? 8. Did the trial court err in finding that Byers was the prevailing party and in awarding her more than $100,000 in attorney’s fees and costs? DISCUSSION I. The Admissibility of the MMI Audit The trial court did not err in considering both the MMI report and the experts’ testimony concerning the MMI report. Byers asserts evidentiary arguments which she claims justify the trial court’s ruling granting her partial summary judgment, and entitle her to an order from this court reversing the judgments which Mohave obtained below with regard to her fraud and breach of fiduciary duty. As to her second claim, we note that to accept Byers’s argument would require this court to grant Byers further relief by ordering dismissal of all claims which were supported by the MMI audit. Byers cannot seek such relief because she never crossappealed. Ariz. R. Civ.App. P. 13(b); Bowman v. Bd. of Regents, 162 Ariz. 551, 557, 785 P.2d 71, 77 (App.1989) (holding a party cannot attack judgment or seek to expand scope of judgment without filing a cross appeal). However, to provide instruction to the trial court upon retrial, we address Byers’s three evidentiary arguments. First, Byers argues that Mohave failed to establish the authenticity of the MMI audit. The trial court has broad discretion in determining the admissibility of expert opinion evidence. McGuire By and Through McGuire v. DeFrancesco, 168 Ariz. 88, 92, 811 P.2d 340, 344 (App.1990). These principles apply to questions of the admissibility of evidence in summary judgment proceedings. Gonzalez v. Satrustegui, 178 Ariz. 92, 96, 870 P.2d 1188, 1192 (App.1993). This court deferentially reviews the evidentiary rulings of the trial court and affirms unless it finds clear abuse of discretion or legal error, and prejudice. Gasiorowski v. Hose, 182 Ariz. 376, 382, 897 P.2d 678, 684 (App.1994). Here, neither factor was present. Applying the above concepts, we now review the trial court’s admission of the MMI audit. First, in considering whether to grant Byers summary judgment, the trial court had to consider facts contained in Mohave’s verified complaint, any deposition testimony and any formal or informal admissions made by Byers and by her counsel. Ariz. R. Civ. P. 56(c); Choisser v. State ex rel. Herman, 12 Ariz.App. 259, 261, 469 P.2d 493, 495 (1970) (A court should consider a verified complaint in determining whether fact issues preclude summary judgment.); King v. Dogan, 31 F.3d 344, 345 (5th Cir.1994); Peacock v. Samaritan Health Servs., 159 Ariz. 123, 125, 765 P.2d 525, 527 (App.1988) (A party need not attach documents in support of representations opposing summary judgment where an opposing party does not contest the accuracy of statements concerning such documents.). Here, Mohave’s verified complaint incorporated the findings of the MMI audit and attached copies of exhibits. Mohave also attached deposition testimony of its expert, Maconachy, to substantiate his firm’s audit report. It also presented Byers’s own deposition testimony concerning the MMI audit. Byers herself relied upon the MMI audit to support her Statement of Facts in Support of Summary Judgment. All of those facts suffice to substantiate the authenticity of the MMI report. We note that although we hold there is not an authenticity problem with the MMI audit, even if such a problem existed, absent prejudice, the trial court’s admission of the report was not erroneous. Gasiorowski, 182 Ariz. at 376, 897 P.2d at 684. The evidence established that Byers had long been aware of the MMI audit; therefore she was not prejudiced. Byers’s second argument concerning the admissibility of the MMI audit asserts that there was no foundation for the audit because there is no evidence that it met recognized professional auditing standards. We reject that argument because it was not raised below. A Uberti and C. v. Leonardo, 181 Ariz. 565, 568, 892 P.2d 1354, 1357, cert. denied, — U.S. -, 116 S.Ct. 273, 133 L.Ed.2d 194 (1995) (The failure to make a specific evidentiary objection waives the objection for purposes of appeal of summary judgment.); Eguia v. Tompkins, 756 F.2d 1130, 1136 (5th Cir.1985). Additionally, Byers does not cite any case requiring an investigative audit to meet generally accepted accounting standards. Ness v. Western Sec. Life Ins. Co., 174 Ariz. 497, 503, 851 P.2d 122,128 (App.1992) (A court will not consider a contention on appeal unsupported by authority.). In any event, Byers’s argument ignores the record because the audit itself establishes in detail how it was conducted and its reliability. Byers asserts a third attack on the admissibility of the MMI audit, arguing that the audit relied upon hearsay statements, and that therefore, the audit’s conclusions are inadmissible unless the statements themselves are in evidence at trial. Byers mischaracterizes both the content of the MMI audit and the material which the auditors relied upon. The MMI audit was directly supervised by Mohave’s expert. The MMI audit was primarily a document investigation wherein the auditors studied thousands of receipts and documents. The audit’s reliance on the statements of others dealt mostly with tangential things such as Byers and Carpenter’s relationship, not with the underlying foundation of the audit’s conclusions pertaining to the document review. Byers also relies on Lynn v. Helitec Corp., 144 Ariz. 564, 568, 698 P.2d 1283, 1287 (App. 1984), in support of her claim that the MMI audit is not admissible based on hearsay. Helitec held that expert opinion testimony at trial, which was based on hearsay statements not introduced at trial, was not admissible. Id. Here, while the MMI audit discussed the statements of witnesses, it was based on the investigative review of documents kept in Mohave’s business records and on Byers’s own admissions. Therefore, Helitec is inap-posite. The MMI audit is admissible under Rule 703 of the Arizona Rules of Evidence, as being based on facts and business records received by an expert. Id. Rule 703 permits wide latitude in expert testimony to allow explanation of the facts underlying an opinion. Therefore, we hold that the trial court correctly admitted the MMI audit. Finally, we reject Byers’s fourth evidentia-ry argument pertaining to the admissibility of the MMI audit. Byers contends that the audit cannot be introduced unless the underlying facts are admissible, or are of the type reasonably relied upon by experts in the auditing field. Byers maintains that unless the underlying facts relied upon by the expert are admissible, the expert cannot testify to such facts except to illustrate the basis of his opinion. First, Byers fails to articulate what supposed hearsay statements either the MMI audit or the expert relied upon. To the extent the audit’s conclusions are premised upon Mohave’s business records, those underlying records are admissible under Rules 803(6) and 803(7) of the Arizona Rules of Evidence. If Byers is arguing that the audit is not admissible because it discusses Byers and Carpenter’s romantic relationship, that argument is specious because the audit never concluded that Mohave’s records substantiated such a relationship, nor did most of the audit’s conclusions rely on such statements. Indeed, the auditors reviewed Carpenter and Byers’s daily calendars, which also are business records and which showed that they took vacations together at Mohave’s expense. Therefore, the MMI audit was admissible. We next discuss the trial court’s fundamental errors: (1) the erroneous dismissal of Mohave’s claims based on the 1,157 credit card transactions due to the trial court’s misapplication of both the law governing summary judgment, and the law governing conspiracy, and (2) the misapplication of the standard pertaining to fraudulent concealment tolling the Statute of Limitations. II. The Trial Court Improperly Granted Partial Summary Judgment to Byers The trial court granted partial summary judgment to Byers, issuing three separate rulings in its March 21, 1995, minute entry. An order granting summary judgment is reviewed de novo, applying the same test used for summary judgment by the trial court. United Bank of Arizona v. Allyn, 167 Ariz. 191,195, 805 P.2d 1012,1016 (App.1990). All evidence and the record presented at the time of the order must be viewed in the light most favorable to the nonmovant. AROK Constr., 174 Ariz. at 293, 848 P.2d at 872. Summary judgment is appropriate only when one inference can be drawn from the undisputed facts, and those facts show that the moving party is entitled to judgment as a matter of law. Pritchard v. Arizona, 163 Ariz. 427, 433, 788 P.2d 1178, 1184 (1990). All inferences must be construed in favor of the non-moving party, both at trial and on appeal. Id.; see also Orme School v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d 1000,1008-09 (1990). Mohave maintains that the trial court erred in granting partial summary judgment to Byers, and that the court’s order erroneously prohibited Mohave from introducing evidence both as to Byers’s liability for Carpenter’s various acts of wrongdoing and her independent liability for the 1,157 fraudulent expense packets. Mohave asserts that the court’s error was threefold, and that the error entitles Mohave to a new trial. We agree and discuss each of the three erroneous rulings in turn. III. The Trial Court Erroneously Dismissed Mohave’s Claims Based Upon the 1,157 Packets Concerning Misconduct Mohave alleges that there were various acts by Byers and/or Carpenter which support Mohave’s claims of fraud, negligence, breaches of duty and racketeering, including the 1,200 packets of materials developed in the MMI audit which reflect specific instances of Byers and Carpenter’s fraudulent expense vouchers and credit card charges. A defendant can obtain summary judgment when the plaintiff is unprepared to establish a prima facie case. Orme School, 166 Ariz. at 310, 802 P.2d at 1009. To do so, however, the defendant must “point out by specific reference to the relevant discovery that no evidence exist[s] to support an essential element of the claim.” Id.; accord Hy-droculture, Inc. v. Coopers & Lybrand, 174 Ariz. 277, 283, 848 P.2d 856, 862 (App.1992). In her Motion for Summary Judgment, Byers argued that Mohave failed to meet its burden to establish that the credit card transactions were unauthorized by Mohave, that Byers committed fraud, that Byers was liable for Carpenter’s transactions, and that she participated in Carpenter’s alleged misconduct. In that motion, Byers stated that she relied on Mohave’s Rule 26.1 Disclosure Statement and on Mohave’s responses to her discovery to “point out by specific reference to the relevant discovery” the issues on which Mohave cannot meet its burden of proof. Byers simply stated that there was “no evidence” in the record upon which Mohave could meet its burden. Byers misstates the record because the MMI audit had already been produced. Moreover, Byers herself relied on part of the MMI audit report to obtain summary judgment and Byers incorporated portions of the MMI audit in her Statement of Facts in Support of her Motion for Summary Judgment. More importantly, the trial court actually rejected Byers’s limited contentions that the MMI audit report was not admissible when the court considered the audit in denying in part Byers’s summary judgment motion. As discussed above, we affirm the trial court’s admission of the MMI audit report. The trial court decided to treat each of the 1,200 packets of fraudulent credit card and expense voucher submissions as separate claims. The court held that even though the MMI report concluded that there was no business purpose for any of the 1,200 packets of charges and vouchers, and that such vouchers were fraudulent, Mohave’s failure in its response to Byers’s motion for summary judgment to introduce specific evidence as to each and every one of the 1,200 transactions required summary dismissal of the 1,157 packets for which specific evidence was not presented. Therefore, the court dismissed Mohave’s claims of fraud, negligence, breach of contract, breach of fiduciary duty, debt and racketeering based upon the 1,157 packets showing acts of wrongdoing. The court errroneously ruled that Mohave was limited to introducing evidence at trial relating to 43 alleged incidents of fraud and negligence because Mohave only attached 43 packets to its response to Byers’s motion for summary judgment. Rule 56(e) of the Arizona Rules of Civil Procedure, governing summary judgment, does not require a plaintiff to come forward with proof as to every single act of wrongdoing to prevent summary judgment on claims alleging an ongoing practice of fraud, negligence, breaches of duty and racketeering. In opposing summary judgment, a party does not have to present its entire case. That is the purpose of a full trial. Rather, the party must only present sufficient facts to show a genuine factual dispute which a jury might reasonably believe. See generally, Lowther v. Hopper Truck Lines, 92 Ariz. 344, 346, 377 P.2d 192, 193 (1962); Ainsa v. Salt River Valley Water Users Ass’n, 6 Ariz.App. 290, 432 P.2d 149 (1967). All inferences from such evidence must be made in favor of the non-moving party. Orme School, 166 Ariz. at 310, 802 P.2d at 1009. A party can present conclusions of experts to survive summary judgment. Continental Bank v. Wa-Ho Truck Brokerage, 122 Ariz. 414, 418, 595 P.2d 206, 210 (App.1979) (An expert’s affidavits at least raised an issue of fact concerning commercial reasonableness to require a full trial.). Here, Mohave offered its expert’s opinion concerning the pattern of fraud committed by Carpenter and Byers. The expert set forth the basis of his opinion and Mohave presented 43 examples of the type of conduct alleged. An expert can rely on samples of tests or audits it conducted to oppose summary judgment. Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 24 (2d Cir. 1994) (A party may present expert affidavits based on summarizing the applicable documents to resist summary judgment.); see also Garnac Grain Co. v. Blackley, 932 F.2d 1563, 1567 (8th Cir.1991) (The trial court erred in refusing to consider an expert accountant’s report filed in opposition to a motion for summary judgment where the expert based his opinion on a full review of the plaintiff’s books to determine the failure of the defendant accounting firm to discover employee embezzlement.); see also United States v. Affleck, 776 F.2d 1451, 1457-58 (10th Cir.1985) (The district court properly admitted testimony of an expert in a securities fraud ease to testify concerning review of financial records and interviews with employees regarding the defendant’s insolvency.). In this case, Mohave presented the full report of its experts who conducted the MMI audit of Mohave’s books. In conducting the MMI audit, the auditors reviewed Byers and Carpenter’s calendars and all relevant depositions and pleadings, and also interviewed Mohave’s employees. Based upon those documents and interviews, the auditing experts identified 1,200 transactions which they concluded showed the unauthorized use of credit cards and expense vouchers without a business purpose, the submission to Mohave of false receipts for reimbursement, and insufficiently documented expenses. Mohave offered 43 examples of those transactions to resist summary judgment. The examples demonstrated some of Byers’s conduct which constituted negligence and other breaches of duty. That evidence was accompanied by Byers’s own deposition testimony admitting her close relationship with Carpenter. That evidence was sufficient to avoid preclusion of evidence concerning the remaining transactions. See Iacobelli, 32 F.3d at 26. To hold otherwise would lead to the absurd result that the longer a person embezzles from a corporation or breaches his or her managerial duties to stop such misconduct by others, the easier the person can avoid a judgment for such negligence. Thus, if the embezzlement continued for a long time, the employer would have to meet the burden at summary judgment of presenting evidence as to each act, i.e., if the conduct occurred over many years and included several thousand specific negligent acts, evidence as to each of those several thousand acts would have to be proven to avoid summary judgment. This is contrary to common sense. A plaintiff need not prove each specific act of negligence or fraud at the time of summary judgment. Byers next argues that the trial court properly granted summary judgment on the 1,157 credit card transactions on the basis that Mohave’s records and the MMI audit were inadmissible to raise a factual dispute concerning whether those expenses were for business or personal reasons. Byers erroneously construes the record. Byers maintains that Mohave did not require the recording of a business purpose for expenses, and that therefore the lack of any stated business purpose could not comply with Rule 803(7) of the Arizona Rules of Evidence. The evidence presented by Mohave at the time of summary judgment showed: (1) that Mohave had and enforced a requirement for accurate reporting of expenses; (2) Mohave required Byers and Carpenter to comply with all laws, including Internal Revenue Service regulations requiring employers to accurately and completely document valid employee expense reports; and (3) Mohave required completion of forms for reimbursement. Moreover, Byers admitted in her deposition that she intentionally submitted false receipts rather than failing to submit any receipts. Therefore, the evidence of the 1,157 packets is admissible under Rule 803(7) of the Arizona Rules of Evidence. Byers erroneously contends that the only basis for the MMI audit’s conclusion that there was no business purpose for the transactions reflected in the 1,157 packets was the lack of any stated purpose in the records. In opposing summary judgment, Mohave produced 43 examples of expenses, having no business purpose, such as expenses Byers and Carpenter charged on vacations. Moreover, Byers admitted that she could not identify any business purpose for the 43 examples discussed during her deposition. Next, Byers argues that for Mohave to avoid summary judgment on the 1,157 packets, Mohave either had to produce evidence concerning the lack of business purpose as to each of the 1,157 packets, or had to demonstrate that its sampling was valid. Both contentions are incorrect. First, an expert can provide a summary of his or her conclusions, indicating the facts upon which he based those conclusions. See, e.g., Iacobelli, 32 F.3d at 25. Additionally, Byers’s argument is illogical because it treats each separate act of fraud as a different count of the complaint, entirely ignoring Mohave’s claim of a conspiracy between Byers and Carpenter. Here, Mohave presented its full audit report and all of the facts supporting the conclusions in the audit. Therefore, the MMI audit stated a conclusion fully setting forth the specific facts upon which it was based. Cf., Florez v. Sargeant, 185 Ariz. 521, 526, 917 P.2d 250, 255 (1996) (Expert affidavits of psychologists which were submitted by individuals who alleged they had been sexually and physically abused several years prior to bringing their complaint were conclusory and did not set forth specific facts to support the psychologists’ opinions.). Finally, Byers contends that the 43 packets were inadmissible to show the personal nature of the other 1,157 expenses because there was no evidence demonstrating the validity of the sampling. Byers’s argument confuses the use of sampling and the use of examples to illustrate an expert’s findings. A true sampling of a set of facts relies solely on the sample itself to prove the validity of the conclusion as to the remaining facts which were not sampled. Whereas, in this case, the auditors examined each and every expense report and examined more than 2,000 instances of financial transactions involving Byers and Carpenter. The MMI audit found no business purpose for 1,200 of the transactions the auditors reviewed. The 43 packets served as examples at Byers’s deposition to show types of instances involving financial transactions by Byers and/or Carpenter involving Mohave funds which had no legitimate business purpose. If Mohave had been allowed to proceed to trial on the other 1,157 packets, Mohave would have had the opportunity to prove the lack of business purpose as to all the transactions. To require Mohave to introduce specific evidence of the lack of a business purpose as to all 1,157 transactions would improperly require Mohave to put forward all of its evidence to defeat summary judgment. Byers does not cite nor can we find any authority requiring a litigant to prove its entire case to defeat a motion for summary judgment. Ness, 174 Ariz. at 503, 851 P.2d at 128 (The court will not consider a contention on appeal that is unsupported by authority.). In any event, Byers’s argument does not prevail because, as discussed below, we hold that the trial court fundamentally erred when it misconstrued the applicable law concerning both when fraudulent concealment tolls the Statute of Limitations and conspiracy. Moreover, the trial court ignored Mohave’s claim that Byers was independently liable for failing to fulfill her duty of good faith and fair dealing to Mohave. These mistakes permeated the flawed reasoning used by the trial court in ruling that in order to defeat summary judgment, Mohave had to introduce specific evidence of the lack of business purpose for each of the 1,157 transactions. IV. The Trial Court Erroneously Dismissed Mohave’s Claims Against Byers for her Negligence in Failing to Stop Carpenter’s Defalcations In determining whether Mohave was pursuing Byers for Carpenter’s defalcations solely on principles of joint and several liability through a conspiracy, the trial court found that Byers could not be liable for acts solely committed by Carpenter. The court therefore dismissed claims based on Carpenter’s illegal aid to a construction project which was partially owned by a close friend of Carpenter’s who was a member of the board. The trial court also dismissed Mohave’s claims concerning Carpenter’s expense advances and mileage to professional membership meetings, Carpenter’s changes to the insurance policy, the fuel delivered to Carpenter’s ranch, and the purchase of a truck bed trailer. The trial court erred in dismissing Mohave’s claims because in its complaint, Mohave contended that Byers should be held liable for those acts by Carpenter based upon a conspiracy, agency or acting-in-concert theory, as well as for her own negligence. While the trial court held that the issue of Byers’s liability for conspiracy was left for trial, without any explanation, the court erroneously concluded that there was no basis to hold Byers liable for any of Carpenter’s wrongdoing. Mohave presented both lay deposition testimony and expert opinion concerning the personal relationship between Carpenter and Byers. There was sufficient evidence to overcome summary judgment that Byers acted in concert with Carpenter, including: (1) the trial court held that Byers was liable for fraud as to other improper transactions; (2) there was evidence of Carpenter and Byers expending Mohave’s funds for joint vacations and other socializing; (3) there was evidence that Carpenter and Byers lived together and jointly owned property; and (4) there was evidence that Byers and Carpenter collaborated to expend Mohave’s monies to purchase a truck for Byers’s father. As noted above, all inferences from such circumstantial evidence, including Carpenter and Byers’s personal relationship, their other acts of misconduct, and the evidence in the audit’s fraudulent expense packets, should have been made in favor of Mohave. Orme School, 166 Ariz. at 310, 802 P.2d at 1009; Pritchard, 163 Ariz. at 433, 788 P.2d at 1184. Here, if all such evidence had been submitted to a jury, as demanded, the jury could have found a conspiracy extending to Carpenter’s other acts. Instead, the trial court erroneously dismissed claims against Byers as to such other misdeeds on summary judgment. The existence of a conspiracy may be inferred from the nature of the acts, the relationship of the parties, “the interests of the conspirators, or other circumstances,” and “express agreement or tacit concert will, if proven, suffice to create liability.” In re American Continental Corp./Lincoln Savings and Loan Secs, Litigation, 794 F.Supp. 1424,1437 (D.C.Ariz.1992). We therefore reverse the trial court’s order granting Byers partial summary judgment because a litigant can proffer circumstantial or inferential evidence to prove that parties were acting in concert. There was at least a fact issue that Byers and Carpenter were acting as each other’s agents, or were intentionally acting pursuant to a common course of conduct to wrongfully use Mohave funds for personal gain. A.R.S. §§ 12-2506(D) and (F)(1) (Supp.1995). In so doing, we also hold that the trial court erroneously ruled that evidence of a conspiracy as to one aspect of fraudulent conduct (the expense packets developed in the MMI audit) could not be used to show an agreement as to other kinds of fraud, i.e., the insurance policy, reimbursement of expenses to Carpenter for attending professional organization meetings, and the use of company employees and fuel for personal profit. The trial court’s compartmentalization of proof and conspiracy was erroneous as a matter of law because such compartmentalization of a defendant’s allegedly wrongful conduct can result in the incongruous result of a court viewing several improper acts in isolation and finding nothing wrong with each act when viewed as unrelated to all other acts. In Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 698-99, 82 S.Ct. 1404,1410, 8 L.Ed.2d 777 (1962), the United States Supreme Court held: It is apparent from the foregoing that the Court of Appeals approached Continental’s claims as if they were ... completely separate and unrelated lawsuits. We think this was improper. In cases such as this, plaintiffs should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each---- [T]he character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole— [A]nd in a case like the one before us, the duty of the jury was to look at the whole picture and not merely at the individual figures in it. (Internal citations omitted.) The trial court erroneously compartmentalized each facet of the alleged conspiracy between Carpenter and Byers. Therefore, the court erroneously concluded that a jury could not infer that if Byers and Carpenter were shown to have conspired to defraud Mohave as to expenses, that Byers and Carpenter also conspired to defraud Mohave through Carpenter’s other acts. We next discuss Mohave’s entitlement to a trial concerning Byers’s direct liability for allegedly negligently fulfilling her job responsibilities. V. The Trial Court Erred in Ruling That Mohave Was Not Entitled to Trial on its Direct Claim Against Byers for Her Negligence Mohave is entitled to proceed to trial and to prove that Byers, as Mohave’s assistant general manager and supervisor of the accounting department, directly and proximately permitted and participated in dishonest transactions. See, e.g., Terry v. Lincscott Hotel Corp., 126 Ariz. 548, 551-52, 617 P.2d 56, 61 (App.1980) (holding negligence includes both acts and omissions that breach standards of care). Summary judgment for Byers was therefore incorrect pursuant to Orme School and Pritchard. The trial court erred because it ignored Mohave’s separate claim that Byers was negligent in failing to stop Carpenter’s defalcations, e.g., (1) that as the assistant general manager who supervised the accounting and finance departments, Byers breached her independent fiduciary duty to Mohave, and (2) she also breached her employment contract. Carpenter and Byers, as general manager and assistant general manager, respectively, owed Mohave and its members fiduciary duties including honesty, loyalty, fair play, fair dealing and good faith. McCallister Co. v. Kastella, 170 Ariz. 455, 457, 825 P.2d 980, 982 (App.1992). Carpenter and Byers also were contractually obligated both to act honestly, fairly and in good faith in their dealings with Mohave, and to comply with Mohave’s policies. Graham v. Asbury, 112 Ariz. 184, 185, 540 P.2d 656, 657 (1975) (When a party fails to keep the agreements, he is liable for damages for his failure to perform.). At trial, the expert who conducted the MMI audit testified that, as Mohave’s second highest employee, who often acted in Carpenter’s stead, Byers had an independent duty of good faith and fair dealing to Mohave and also a duty to report any defalcations, including Carpenter’s misdeeds, to Mohave’s board. He testified that as the accounting supervisor, Byers was responsible for ensuring Mohave was in compliance with state and federal laws concerning the proper tracking of expenses. Mohave maintains that by her careless, reckless and negligent conduct, Byers breached her duties to Mohave, and that, as a result, Mohave was directly and proximately damaged in an amount to be determined at trial. Ontiveros v. Barak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). As assistant general manager, often acting as the general manager, Byers had to comply with Mohave’s written policies requiring the general manager to provide oversight, care and management of the company’s assets, and to exercise control over accounting procedures and records, and to comply with all laws. 3 SEYMOUR D. THOMPSON & JOSEPH W. THOMPSON, THOMPSON ON CORPORATIONS § 1615 (3rd ed. 1927) (The corporate vice president is required to undertake the duties of the president in the president’s absence.); see also 19 C.J.S. Corporations § 469 (1990). William Kelley, who was one of the members of the board during Byers’s tenure as the assistant general manager, testified in his deposition that Byers had an independent fiduciary duty to Mohave. He testified that Carpenter was absent from Mohave between 40% to 50% of the time due to business-related travel, and that during Carpenter’s absence, Byers was responsible for Mohave’s day-today operations, including running the board’s meetings. During the bench trial, Mohave’s counsel preserved this issue for appeal, and correctly argued that Byers had a non-delegable, separate and independent duty to be honest; not to self-deal and not to steal Mohave’s money. Therefore, Mohave submitted specific facts to the trial court in support of its direct claim against Byers for her negligence. The evidence was clearly sufficient to require denial of summary judgment. In Wa-Ho Truck Brokerage, Wa-Ho’s bookkeeper had taken checks written to and by Wa-Ho, and diverted them to his own account both through unauthorized endorsements and by having Wa-Ho issue duplicate checks to persons whom Wa-Ho had already paid and then endorsing them to his own account. 122 Ariz. 414, 416, 595 P.2d 206, 208. Wa-Ho sued the bank for both conversion and breach of warranty. The bank moved for summary judgment in part on the basis of expert affidavits indicating the experts were familiar with banking practices concerning such checks, had reviewed various pleadings and discovery, and it was their opinion that in accepting the checks for deposit, the bank acted in good faith and in accordance with reasonable commercial standards. Despite those affidavits, the trial court granted summary judgment for Wa-Ho. 122 Ariz. at 418, 595 P.2d at 210. This court reversed, holding that the opinions were sufficient for Rule 56 purposes under Rules 703, 704 and 705 of the Arizona Rules of Evidence, that experts could testify without giving any reasons and without prior disclosure of the underlying facts, and that experts could testify to ultimate facts. Id. We held that the affidavits at least raised an issue of fact concerning commercial reasonableness to require a full trial. Id. at 420-21, 595 P.2d at 212-13. In this case, Mohave offered specific evidence of Byers’s duty as assistant general manager, of her negligent failure to fulfill that duty, and of the resulting harm to Mohave. Despite this evidence, the trial court erroneously refused to allow Mohave to go forward and prove such negligence at trial regardless of whether there was a conspiracy. Under Orme School and Wa-Ho, Mohave produced evidence which created genuine disputes of material fact relating to both Byers’s duty to find and prevent Carpenter’s misconduct and her breach of that duty. We therefore reverse the trial court’s ruling. VI. The Trial Court Incorrectly Issued Rulings which were Contrary to the Record and which Ignored Byers’s Breach of Her Independent Duties to Mohave The trial court made several findings which ignored Byers’s alleged breach of her independent duties to Mohave. A trial court’s general factual conclusions are reversed if they are clearly erroneous. Ariz. R. Civ. P. 52(a). However, where a court applies a theory of liability to facts, its ruling is a mixed question of law and fact which is reviewed de novo. Lee Dev. Co. v. Papp, 166 Ariz. 471, 476, 803 P.2d 464, 469 (App.1990). Byers maintains that summary judgment was proper with regard to her alleged joint and several liability for the misdeeds of Carpenter because the official policies of the board vested broad power and discretion in the general manager, and because only Carpenter used those powers and discretion. Byers also reasons that she cannot be jointly and severally liable for Carpenter’s actions because she had no authority or ability to exercise any control over Carpenter. Byers argues that it was Carpenter’s job to enforce the rules, not hers. In arguing to the trial court, Byers’s counsel stated: “What she [Byers] was doing was simply to take the low road to business expenses reporting. And the evidence will show that road had been well traveled by her superiors at the cooperative before her.” Clearly, those arguments do not prevail because, as noted above, Byers had an independent duty to Mohave and could not rely upon the fact that Carpenter and others had failed to fulfill their own independent duties to Mohave. Byers also argued to the court that the board had no formal written policy concerning what expenses could be paid on the corporation account or what activities Carpenter or his subordinates should report and account as their reimburseable expenses. The MMI audit determined that from 1988 to 1990, Carpenter received cash advances on approximately 100 occasions but only turned in six expense reports. Essentially, Byers maintained that it was Mohave’s business practice not to turn in expense accounts. However, three witnesses, the expert who conducted the MMI audit and authored the audit report, Monika Colby, the accountant, and Lyn Borah, a member of the board, testified concerning the policies and procedures in place at the time Byers admittedly submitted false requests for reimbursement. They all explained that Mohave required all employees to submit expense reimbursement reports demonstrating the business purpose relating to expenditures. While Borah testified that Mohave did not have formal written policies concerning that requirement in place at the time, Colby testified that she had been given guidelines from Carpenter to require detailed expense vouchers. Moreover, Borah testified that Byers told her that she had to submit detailed expense vouchers. Finally, Byers admitted in her deposition that she had to submit receipts for expenses and testified that occasionally she had submitted such detailed expense vouchers on Mohave reimbursement forms and that she had also submitted false requests for reimbursement. When an erroneous ruling has been made, the trial court must prevent a “miscarriage of justice” and order a new trial. King v. Superior Court, 138 Ariz. 147, 152, 673 P.2d 787, 792 (1983); see also Smith v. Moroney, 79 Ariz. 35, 38, 282 P.2d 470, 472 (1955) (If the verdict is contrary to the weight of evidence, it is the court’s duty to set aside the verdict and grant a new trial.). Clearly, the trial court erroneously ruled that Mohave had no policies applicable to finance and accounting for funds. That portion of the court’s ruling, based on the erroneous finding that no accounting policies were in place, must be vacated and a new trial must be granted. The trial court’s conclusion that Byers could not be held jointly and severally liable for Carpenter’s actions was also infected by its earlier summary judgment ruling that Mohave was precluded from introducing evidence regarding the 1,157 expense packets which the MMI audit examined, but which were not specifically documented in Mohave’s response to Byers’s motion for summary judgment. Consideration of that evidence could have resulted in the court and a jury concluding that Byers bore responsibility, individually and/or jointly for the fraud, either as Carpenter’s agent or due to her acting in concert with Carpenter. A.R.S. §§ 12-2506(D) and (F). VII. The Trial Court Erroneously Barred Mohave’s Claims Under the Statute of Limitations The trial court ruled that the Statute of Limitations barred many of Mohave’s claims relating to the 43 transaction packets which Mohave was allowed to address at trial. The court also applied the Statute of Limitations to bar all claims based on negligence and breach of fiduciary duty prior to December 23, 1989, and claims in fraud and oral contract prior to December 23, 1988. The court held that Mohave was “on notice of the actions of Carpenter and office business practices prior to the formal investigation,” and that the Statute of Limitations began to run regardless of whether employees considered accepted or known business procedures to be fraudulent. The court accepted Byers’s argument in moving to dismiss claims based on the Statute of Limitations that Mohave, as the principal, had imputed knowledge for Carpenter and Byers’s wrongdoing through the knowledge of its agents, Colby and the Texas accountant. Mohave argues that in dismissing its claims based on the Statute of Limitations, the trial court erred as a matter of law because it applied the wrong standard for fraudulent concealment. While the trial court’s factual findings as to the Statute of Limitations would normally be reviewed for clear error, that rule does not apply where there is a mixed finding of fact and law, or where there is a clear error of law. In those cases, the findings are reviewed de novo. Arizona Bd. of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257, 806 P.2d 348, 351 (1991). Generally, wrongful concealment will toll the Statute of Limitations. Ulibarri v. Gerstenberger, 178 Ariz. 151, 159, 871 P.2d 698, 706, (App.1994). To avoid the issue of fraudulent concealment, Byers argued that Mohave, as the principal, had imputed knowledge of Byers and Carpenter’s wrongdoing through the knowledge of its agents, Colby and the Texas accountant. That argument was premised upon the general rule that knowledge acquired by an agent in the course of employment is imputed to a principal. In re Estate of Milliman, 101 Ariz. 54, 65, 415 P.2d 877, 888 (1966); Restatement (Second) of Agency § 275 (1958); see also Ulibarri, 178 Ariz. at 159, 871 P.2d at 705 (A positive act to conceal a wrong will toll the Statute of Limitations.). However, given the facts in the record, such a “positive act to conceal wrong” tolls the Statute of Limitations. Ulibarri, 178 Ariz. at 159, 871 P.2d at 705. At trial, Colby testified that in January 1987, she was suspicious of Carpenter and Byers’s embezzlement. Colby testified that she knew she would be fired if she went to either Byers, her immediate supervisor, or to Carpenter regarding her concerns. Therefore, she reported her concerns to Mohave’s Texas accountant, who was hand-picked by Carpenter. The trial court ruled that Mohave had imputed knowledge of the misconduct in January 1987, when Colby first reported her suspicions to the Texas accountant. Therefore, the court dismissed all claims based on negligence and breach of fiduciary duty occurring prior to December 23, 1989, as those claims are governed by AR.S. section 12-542 which provides for a two-year Statute of Limitations. Similarly, the trial court ruled that the Statute of Limitations barred all claims of fraud and oral contract occurring prior to December 23, 1988, as those claims are based on a threeyear Statute of Limitations pursuant to A.R.S. section 12-543. The trial court’s ruling that the Statute of Limitations commenced in January 1987 was erroneous under the facts in the record. Colby testified that as early as January 1987, she talked to Mohave’s outside accountants about Carpenter using his company credit card on weekends for possible personal purposes and his not reporting cash advance expenses. When Colby went to the accountant concerning her suspicions about Carpenter, the accountant, whose firm had been hired by the board at Carpenter’s request, told her that he would go to either Carpenter or to the board to discuss her concerns. The evidence is undisputed that the accountant never went to the board. It is unclear from the record whether the accountant went to Carpenter, who presumably could have told him the expenses were authorized, and who could have then continued to conceal his alleged previous embezzlement. It is unclear whether the accountant took any action at all. Therefore, viewing the facts most favorably for Mohave, there is a question of fact regarding whether Carpenter continued to engage in more embezzlement before he left Mohave in late 1990. The accountant’s knowledge could not be imputed to Mohave because neither he nor Carpenter, one of the employees allegedly guilty of misconduct, informed the board of the problem and because the other employees who suspected wrongdoing were precluded from personally reporting to the board. The trial court erred because imputed negligence does not trigger the Statute of Limitations when (1) the agent is acting adversely to the principal, or (2) the information continues to be actively concealed. In Manley v. Ticor Title Ins. Co., 168 Ariz. 568, 572-73, 816 P.2d 225, 229-30 (1991), the Ari zona Supreme Court held that the rule of imputed notice does not apply when the agent notified of the information may actually be serving his own purposes by acting adversely to the principal: The rule that notice to the agent is notice to the principal is premised on the presumption that the agent will perform his obligation to give his principal knowledge relevant to the principal’s protection and interest____ However, the presumption ... ‘will not prevail where it is certainly to be expected that the agent will not perform his duty, as where the agent ... is in reality acting in his own or another’s interest and adversely to that of his principal.’ In such cases the presumption is that the agent will conceal any facts which might be detrimental to his own interests, rather than that he will disclose it. Id. at 572, 816 P.2d at 229 (internal citations omitted). Under the facts in the record, Byers cannot successfully rely on Colby’s suspicions to commence the running of the Statute of Limitations. It was undisputed that the board’s policy prohibited Colby from reporting directly to the board. She had to communicate with the board through either Byers or Carpenter. Under the Restatement (Second) of Agency section 275 (1994), Mohave cannot have imputed knowledge of Colby’s knowledge where Colby had no duty or ability to inform the board and where, indeed, Carpenter and Byers were able to prevent her knowledge from ever reaching the board. Finally, absent notice of alleged misconduct, Mohave’s directors did not have a duty to review the details of Mohave’s financial records department to uncover Byers and Carpenter’s misconduct. The directors were entitled to rely upon the integrity of their general and assistant general managers, both not to defraud Mohave, and to report any misconduct. See Dotlich v. Dotlich, 475 N.E.2d 331 (Ind.App.1985) (Fiduciary relationship among directors relieves innocent directors from having to exercise diligence to guard against guilty director’s misappropriation of assets through an independent study of the corporate books.). Corporate directors are therefore not required to micromanage the day-to-day operation of a company if they have no knowledge or notice of any possible misconduct. The trial court concluded that the evidence relating to the fraudulent concealment did not support Mohave’s claim that the fact that financial irregularities existed was unknown until the MMI audit was conducted. That conclusion is contrary to the evidence in the record. It was undisputed that the board was not informed of the fraudulent expense vouchers and use of the credit card at least until 1990 or 1991. For sufficient notice to begin the Statute of Limitations, the plaintiff must have knowledge of both “what” and “who” caused its damage. Lawhon v. L.B.J. Inst. Supply, Inc., 159 Ariz. 179, 181, 765 P.2d 1003, 1005 (App.1988) (A plaintiff must have sufficient knowledge concerning both what and who caused the injury; plaintiff did not have sufficient knowledge of which distributor caused injury where she was told that one or more distributors may have caused injury to the deceased.). Here, Byers admitted in her Motion to Dismiss pursuant to Rule 41(b) of the Arizona Rules of Civil Procedure, that Colby testified that she went to the Texas accountant about Carpenter’s weekend credit card charges, but that she had not said anything to the accountant “specifically about Mrs. Byers.” Colby testified: “We spoke about credit card charges for Mr. Carpenter and Sue Byers. She [Byers] did not have an account on the statement under her name [rather she only had] a card.” Thus, the outside accountant was not aware of Byers’s unauthorized credit card use or of her fraudulent expense vouchers anymore than the plaintiff in Lawhon was aware that a particular defendant had injured her husband when she was told that the distributor of the product causing the injury was one of several companies. Moreover, when the evidence and all inferences therefrom is viewed in a light most favorable to Mohave, Byers continued to fraudulently conceal her defalcations. It was undisputed that when Byers submitted false expense vouchers, she would change the amounts of those expenses so that they could not be compared to those same expenses appearing on the credit card statement. Such actions by Byers fraudulently concealed her conduct. Therefore, we reverse the trial court’s ruling that the Statute of Limitations precluded Mohave from introducing evidence probative of its claims against Byers based on negligence and breach of fiduciary duty prior to December 23, 1989, and on evidence probative of its claims of fraud and breach of oral contract against Byers prior to December 23, 1988. VIII. The Trial Court Erred in Denying Mohave’s Motion for New Trial Mohave filed a Motion for New Trial, or in the alternative, a Motion to Vacate the Judgment. Each of the arguments which Mohave made in its Motion for New Trial was also set forth in Mohave’s Motion for Summary Judgment. The trial court denied both motions. A trial court’s denial of a motion for new trial is reviewed for an abuse of discretion. Cano v. Neill, 12 Ariz.App. 562, 567-68, 473 P.2d 487, 492-93 (1970). In determining whether the trial court abused its discretion, thereby necessitating a new trial, this court is guided by three primary principles: (1) This court can substitute its judgment for that of the trial court. Ulibarri, 178 Ariz. at 164, 871 P.2d at 711 (“[I]n ruling on a motion to vacate a judgment the exercise of the trial court’s discretion must be supported by facts or sound legal policy and the appellate court can ‘look over the shoulder’ of the trial court and substitute its judgment for that of the trial court ... [w]hen the record reveals circumstances that this court believes warrants relief. ...”). (2) If the trial court applied an erroneous legal standard, the litigant is entitled to a new trial. Brown v. Superior Court, 137 Ariz. 327, 332, 670 P.2d 725, 728 (1983). (3) This court construes all facts most favorably for upholding the decision below. Beal v. State Farm Mut. Auto. Ins. Co., 151 Ariz. 514, 516, 729 P.2d 318, 320 (App. 1986). In denying the Motion for New Trial, the trial court again erroneously ignored Mohave’s claim that Byers breached her independent duty to uncover and report any malfeasance in business expense transactions to the board. As discussed above, the trial court also erroneously ruled that Mohave was precluded from submitting evidence on Byers and Carpenter’s pattern of fraud because, in contesting Byers’s Motion for Summary Judgment, Mohave did not submit specific evidence of fraud or breach of fiduciary duty as to each of the 1,200 MMI audit packets. In so ruling, the trial court again erroneously treated each separate expense count as a separate count in the complaint and improperly compartmentalized each separate aspect of the alleged general conspiracy between Byers and Carpenter. In considering the Motion for New Trial, the court again erred in ruling that Byers was entitled to partial summary judgment on almost all misconduct other than the conduct addressed in the 43 expense packets. In so doing, the court again improperly isolated each aspect of the conspiracy (those relating to expense packets and those relating to all other alleged misdeeds). Finally, in denying Mohave’s Motion for New Trial and to Vacate the Judgment, the court also erred in ruling that the Statute of Limitations barred claims based as to most of the 43 expense packets because the court again misapplied the standard of fraudulent concealment. Therefore, we reverse the trial court’s rulings and remand this case for a new trial as to all claims against Byers consistent with this opinion. IX. Attorneys’ Fees Because the judgment is reversed and a new trial is required, the award of attorneys’ fees must also be reversed as premature because neither party is the “successful party” as required by A.R.S. section 12-341.01. See U.S. Insulation, Inc. v. Hilro Constr. Co., Inc., 146 Ariz. 250, 259, 705 P.2d 490, 499 (App.1985). We deny Byers’s request for attorney’s fees incurred in this appeal. CONCLUSION For the reasons stated above, we reverse and remand this case for a new trial on all claims against Byers. We also reverse the trial court’s award of attorney’s fees to Byers as premature. Finally, we decline to award attorney’s fees incurred by Byers on this appeal. THOMPSON, P.J., and GERBER, J., concur. . Because Byers was represented by a sole practitioner, we use the singular possessive of attorney's fees throughout this opinion. . We note that Byers did not object to the MMI audit report’s authenticity until her reply memorandum on summary judgment. The trial court apparently did not consider Byers’s arguments concerning authenticity. State v. Oakley, 180 Ariz. 34, 36, 881 P.2d 366, 368 (App.1994) (holding a court should not consider arguments made for the first time in a reply memorandum); see also Pima County v. INA/Oldfather 4.7 Acres Trust #2292, 145 Ariz. 179, 182, 700 P.2d 877, 880 (App. 1984). . Rule 56(c) of the Federal Rules of Civil Procedure (which corresponds to Rule 56(c) of the Arizona Rules of Civil Procedure), provides that admissions on file which can be considered on summary judgment are not limited to formal admissions pursuant to Rule 36. 6 of the Federal Rules of Civil Procedure; 6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 56.11 [1. — 5] (2d ed.1988). In construing the Arizona Rules of Civil Procedure, Arizona gives great weight to constructions of the Federal Rules of Civil Procedure. Edwards v. Young, 107 Ariz. 283, 284, 486 P.2d 181, 182 (1971).

OPINION THOMPSON, Judge. This appeal involves a third party insurance bad faith claim. Following our opinion in a previous appeal in this case, Lloyd v. State Farm Mut. Auto. Ins. Co., 176 Ariz. 247, 860 P.2d 1300 (App.1992) (Lloyd I), the trial court ruled that we established, as law of the case, that there was no contract out of which a bad faith claim could arise. It granted the defendant-insurance company’s motion for summary judgment. We reverse. Contrary to the appellee’s argument, we did not decide that issue in the prior appeal. There is an insurance contract at the heart of this case and thus there could be a viable bad faith claim. FACTS AND PROCEDURAL HISTORY For purposes of this appeal, the facts are not disputed and can be extracted from our previous opinion: On April 12, 1986, Virginia Lloyd was struck by a midget race car while in the pit area at Manzanita Speedway in Phoenix. She suffered massive injuries resulting in quadriplegia. The car was partly owned by George and Sharon Lane. The Lanes had an automobile policy with State Farm for their Cadillac as well as a homeowners policy with State Farm Fire & Casualty. They purchased both policies through the same State Farm agent. They did not attempt to obtain insurance coverage on the midget car. They knew they had no insurance on it, and they understood that they could not get coverage for it because it was a race car. The Lloyds filed suit against the Lanes. Mr. Lane was served with the summons and complaint on November 10, 1987. He ignored the service, thinking the papers were from a previous suit in which he was not a party. On December 28, 1987, the Lloyds filed an application for entry of default against the Lanes. They sent a copy of the default application to the Lanes and to State Farm, both of whom received their copies on December 29, 1987. The default was to be effective January 12, 1988. Upon receiving the application for default, Mr. Lane called the Lloyds’ attorney who advised him to call his insurer. Lane then called his State Farm agent, who in turn advised him to call the State Farm claims department. Lane contends that he called the claims department no later than January 1,1988 regarding the default. He testified that somebody told him over the telephone that State Farm would “take care of it.” Lane said that he took these words to mean that State Farm would take care of the case, including the pending default, and that he need do nothing further. ... The default against Lane became effective on January 12, 1988, well before an answer was filed. Ten days later, on January 22, 1988, State Farm hired attorney Robert Beltz to defend the Lanes. State Farm sent the Lanes a reservation of rights letter for the first time on January 28, 1988, and a second letter on February 16, 1988, advising the Lanes that it had hired Beltz to represent them but still reserved the right to deny coverage. The letter also stated that State Farm would begin its investigation into whether coverage existed. This letter warned the Lanes that there was a possibility of judgment in excess of coverage and that they could employ their own attorney to look after their personal interests. State Farm also simultaneously informed Beltz that it was reserving its rights and that, after it investigated, it would advise him of its decision on coverage. Beltz filed an answer on the Lanes’ behalf on January 27, 1988, thinking that he had an understanding with the Lloyds’ attorney that the Lloyds would not enforce the default. On April 22, 1988, Beltz filed a motion to set aside the January 12 default, which the trial court eventually denied on July 20,1988. Meanwhile, on April 8, 1988, the Lloyds’ attorney served on Beltz a settlement demand for the amount of any insurance policy. The offer was made to expire May 8, 1988. The parties conceded that this was, in essence, an offer to settle for $50,-000. Beltz forwarded this offer to State Farm on April 13, noting that this was his first indication that the Lloyds planned to enforce the default. Neither Beltz nor State Farm sent a copy of this settlement demand to the Lanes. Beltz did not do so immediately because he had not yet communicated with the Lanes and had been unable to contact Mr. Lane. Beltz did eventually discuss the settlement letter with the Lanes on a date not later than April 22, 1988. The extent of their discussion is unknown. ... On April 22, 1988, the State Farm claim committee recommended that State Farm formally deny the claim because it concluded that there was in fact no coverage. On May 6,1988, State Farm rejected the $50,000 settlement demand and instructed Beltz to withdraw and simultaneously advised the Lanes to obtain their own counsel. The Lanes received this letter after the May 8, 1988 expiration of the Lloyds’ $50,000 settlement demand. On July 20, 1988, the trial court denied Beltz’s motion to set aside the default. The result was that the Lloyds took default judgment against the Lanes in the amount of $10,000,000 plus costs. The Lanes eventually assigned to the Lloyds their rights against State Farm. The Lloyds and Lanes then filed suit against State Farm. The parties filed cross-motions for summary judgment on issues related to assumption of the duty to defend. The court granted State Farm’s motion and denied the plaintiffs’ motion. The Lloyds appeal-ed____ 176 Ariz. at 248-49, 860 P.2d at 1301-02. In support of the summary judgment, State Farm argued that as a matter of law it can have no liability for assumption of a duty to defend in the absence of an insurance policy covering the accident. It asserts, further, that no negligence action lies against an insurer for assuming a duty to defend when, as here, there is in fact no coverage at all. 176 Ariz. at 250, 860 P.2d at 1303. This court reversed the judgment. We held that, even though it was conceded that the Lanes’ automobile policy did not cover the accident, there were facts from which a jury could find that State Farm had assumed the defense and had been deficient in that defense. Id. at 251, 860 P.2d at 1304. We stated: “When a person voluntarily undertakes an act, even when there is no legal duty to do so, that person must perform the assumed duty with due care and is hable for any lack of due care in performing it.” Id. at 250, 860 P.2d at 1303 (citing, inter alia, Restatement (Second) of Torts § 323 (1965)); but see Miel v. State Farm Mut. Auto. Ins. Co., 185 Ariz. 104, 109-11, 912 P.2d 1333, 1338-40 (App.1995), review granted, (March 19,1996) (no cause of action in negligence for insurer’s handling of a claim against its insured). We found no reason to except insurance companies from this rule, even when the pertinent policy did not cover the accident. 176 Ariz. at 251, 860 P.2d at 1304. However, we rejected the Lloyds’ argument that State Farm was estopped to deny coverage by attorney Beltz’s actions, as in Parsons v. Continental Nat’l Am. Group, 113 Ariz. 223, 550 P.2d 94 (1976), where the supreme court held that the insurer was estopped from asserting an intentional act exclusion. We stated: “The Lloyds cannot use estoppel to create policy coverage when none in fact exists under the policy. Estop-pel is not a substitute for insurance coverage.” 176 Ariz. at 253, 860 P.2d at 1306. We also denied the Lanes’ request for attorneys’ fees under A.R.S. § 12-341.01(A). Id. On remand, State Farm moved for partial summary judgment seeking to dismiss the breach of contract and bad faith claims, arguing that Lloyd I established as law of the case that the Lloyds’ claims did not arise out of any contract. The trial court agreed with State Farm: The Court of Appeals in [Lloyd I] ruled that Defendant herein assumed a duty to defend, when no policy coverage existed, and may have acted negligently in the exercise of that duty. The Court of Appeals went on to hold that “This suit arises not from contract but from an asserted gratuitous assumption of duty ...” At 253, 860 P.2d at 1306 i.e. a tort cause of action. This is the law of the case and this Court is bound accordingly. Further, the parties in the instant motions do not dispute the fact that no policy of insurance contract for the automobile in question existed. Thus, Plaintiff cannot maintain a breach of contract cause of action. There simply was no contract to breach. Given the absence of a contract, the Court is persuaded that the relevant case law establishes that the cause of action for breach of the implied covenant of good faith and fair dealing, which alleges a tort of bad faith, cannot stand. In this regard the Court finds Deese v. State Farm, 172 Ariz. 504, 506, 838 P.2d 1265, 1267 (1992) controlling: “In Noble v. National Life Insurance Company, 128 Ariz. 188, 624 P.2d 866 (1981), this Court first recognized a tort of bad faith. We concluded “That there is a legal duty implied in an insurance contract that the insurance company must act in good faith in dealing with its insured on a claim, and a violation of that duty of good faith is a tort.” at 506, 838 P.2d at 1267 “In short the implied covenant of good faith and fair dealing requires that an insurer treat its insured fairly in evaluating claims. “The insurance contract and the relationship it creates contain more than the company’s bare promise to pay certain claims when forced to do so; implicit in the contract and the relationship is the insurer’s obligation to play fairly with its insured.” ” at 507, 838 P.2d at 1268 emphasis added. No contractual relationship ever existed between the Lanes and Defendant State Farm with regard to the automobile in question. The Court finds that the presence of an insurance contract is a fundamental prerequisite for a tort bad faith claim. That fundamental prerequisite is absent here. The court entered formal judgment on the partial summary judgment, which it certified final pursuant to Rule 54(b), Ariz. R. Civ. P. The Lloyds timely appealed. DISCUSSION A. Subject Matter Jurisdiction As a preliminary matter, we question whether this court has subject matter jurisdiction over the appeal in 1 CA-CV 95-0140, although neither party has raised this issue. See Musa v. Adrian, 130 Ariz. 311, 312, 636 P.2d 89, 90 (1981) (this court must examine its jurisdiction sua sponte). A judgment made substantively final by operation of Rule 54(b) is statutorily appealable pursuant to A.R.S. § 12-2101(B). Pulaski v. Perkins, 127 Ariz. 216, 217, 619 P.2d 488, 489 (App.1980). However, not all partial summary judgments can be made appealable by Rule 54(b) certification; that rule requires that the partial judgment dispose of “at least one separate claim of a multi-claim action.” Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304, 812 P.2d 1119, 1122 (App.1991). We review de novo the trial court’s determination whether a judgment is “final” for Rule 54(b) purposes in that it disposes of one distinct “claim.” Id. The question in this case is whether the trial court’s partial summary judgment on the bad faith count disposed of a separate claim when the negligence count was still pending trial. If not, the partial summary judgment could not be made “final” and appealable simply by insertion of Rule 54(b) language. Id. at 305, 812 P.2d at 1123. In Davis, we concluded that we had no subject matter jurisdiction over a Rule 54(b) partial summary judgment dismissing a strict liability claim “when a negligence claim arising from the same conduct remained.” Id. Similarly, in this ease, we conclude that the Rule 54(b) certification of finality was also erroneous. The facts underlying both the bad faith and negligence counts have significant overlap. Furthermore, plaintiffs would be limited to a single recovery for their core compensatory damages if both counts were presented to a jury. Under these circumstances, the bad faith count was not a single “claim,” but “a separate, alternative theory of recovery.” Id. As such, the bad faith count could not be considered a separate “claim” that would become final by Rule 54(b) certification. When this court raised the jurisdictional issue at oral argument in this case, the parties responded that, even if the Rule 54(b) certification of finality were erroneous in this case, that defect was cured by entry of final judgment and the subsequent appeal in 1 CA-CV 95-0358 that was consolidated with the original appeal in 1 CA-CV 95-0140. The parties analogized this situation to cases in which a premature notice of appeal is filed from an unsigned minute entry, and this court obtains jurisdiction over the appeal by the subsequent filing of a signed, formal written judgment. See Rule 58(a); Eaton Fruit Co. v. California Spray-Chemical Corp., 102 Ariz. 129, 426 P.2d 397 (1967). The parties also contended that, because any interlocutory orders “merge” into a final judgment, the filing of the second appeal gives us jurisdiction over the first. See A.R.S. § 12-2102(A). However, we conclude that these principles do not apply in this case, for several reasons. First, the Eaton Fruit reasoning has been limited to appeals from formally unappeala-ble orders, as opposed to substantively unap-pealable orders. Pulaski v. Perkins, 127 Ariz. at 217-18, 619 P.2d at 489-90 (“no opinion of either our supreme court or this court holds that the suspension and revesting process [of appellate jurisdiction under Eaton Fruit ] is appropriate in a case where finality is lacking by reason of multiple claims or parties.”) In Pulaski, we made the following observations about the differences between formal and substantive defects in appeals: In our opinion, there are sufficient distinctions between an attempted appeal which is imperfect by reason of a Rule 58(a) deficiency and an appeal which is invalid by reason of a Rule 54(b) deficiency so that Eaton Fruit should be held inapplicable to cases such as the present one. The 58(a) deficiency made curable by Eaton Fruit is a defect only in the form of a presumably substantive appealable order. A 54(b) deficiency, on the other hand, is a defect of substance because A.R.S. § 12-2101(B) makes appealable only “final” judgments and, unless the particular judgment in question is otherwise appealable, there would be no statutory basis for bringing the appeal. Id. at 218, 619 P.2d at 490 (footnote omitted). Therefore, we do not use the Eaton Fruit analogy to cure the defect in this case by the filing of the final judgment. Second, we note that the appeal from final judgment was not filed by the same parties as the first appeal. In CV 95-0140, plaintiffs appealed from entry of partial summary judgment; in CV 95-0358, defendants appealed from the final judgment. In the latter appeal, plaintiffs cross-appealed, but specifically limited our jurisdiction in that cross-appeal to the question whether interest should have been awarded on the final judgment. Thus, this is not a case in which we might have obtained proper subject matter jurisdiction over the partial summary judgment by a timely amended notice of appeal or a new cross-appeal by plaintiffs from the final judgment on that basis. See A.R.S. § 12-2102(A). We therefore conclude that we do not have appellate jurisdiction on any of these alternative bases. Because Rule 54(b) certification of the partial summary judgment on the bad faith count was improper in this case, this court does not have appellate subject matter jurisdiction over the appeal from the partial summary judgment. We therefore must dismiss the appeal in CV 95-0140. We note, however, that the parties properly raised the bad faith issue in the prior appeal, and this court failed to address it on the merits. See Lloyd I, 176 Ariz. at 250, 860 P.2d at 1303. Thus, the parties no longer have an adequate remedy by appeal on this issue. See Rule 1, Arizona Rules of Procedure for Special Actions. Furthermore, we believe that the issue presented is one of first impression and statewide importance. Therefore, in the exercise of our discretion, we have elected to treat this appeal as a petition for special action, despite our lack of appellate jurisdiction, and to accept special action jurisdiction. See Brown v. State, 117 Ariz. 476, 477, 573 P.2d 876, 877 (1978) (court may grant relief by special action even though motion or writ is inappropriately titled); State v. Perez, 172 Ariz. 290, 292, 836 P.2d 1000,1002 (App.1992) (“[although we do not have appellate jurisdiction to review this issue, it is within our discretion to consider the matter as a special action”); A.R.S. § 12-120.21(A)(4) (expanding court’s jurisdiction to include special actions without regard to appellate jurisdiction). We therefore address the merits of the issues raised in CV 95-0140. B. Law of the Case State Farm argues that in Lloyd I we held that there was no insurance contract involved in this matter, and that this ruling is law of the case. As a consequence, there could be no cause of action for breach of contract, nor for bad faith, because such claims arise out of a violation of the insurance contract’s implied covenant of good faith and fair dealing. E.g., Noble v. National Life Ins. Co., 128 Ariz. 188,190, 624 P.2d 866, 868 (1981). Under the doctrine of law of the case, if an issue has been finally decided by an appellate court, the decision “binds the trial court (and the appellate court) in subsequent proceedings in the same action.” Dunlap v. City of Phoenix, 169 Ariz. 63, 66, 817 P.2d 8, 11 (App.1990). Law of the case is inapplicable here. Our prior opinion did not hold that the insurance policy played no role in this case. It cannot be disputed that a contract — the Lanes’ automobile insurance policy with State Farm — formed the context for this litigation. Indeed, when George Lane was presented with the papers threatening the entry of a default judgment against him, he did not call just any insurance company; he called the agent who sold him his State Farm policy. The agent, in turn, instructed him to call the State Farm claims department. Further, State Farm referred to the automobile policy in its letters informing the Lanes that it had hired counsel for them under a reservation of rights. In assuming this defense, however, State Farm questioned whether the claim was covered under the Lanes’ policy: Since the vehicle involved in this accident is not the described vehicle for this policy, we are questioning that any coverage at this time exists. This policy states that coverage is for a 1981 Cadillac Eldorado. The vehicle involved in this accident meets none of the definitions in your policy. 1. Since you are part owner of this vehicle, it does not appear that coverage under your non-owned vehicle portion of your policy applies. 2. This does not fit the definition of a substitute vehicle. Because of the questionability of coverage, State Farm reserved its right to deny coverage under the policy: [Y]ou are hereby advised any action heretofore or hereafter taken by this Company or any of its agents, claim representatives, or employees investigating, adjusting, or negotiating for settlement, or litigating any of the matters arising as a result of the above accident shall not be deemed a waiver of any of the rights of the Company under a contract of insurance nor the rights of this Company to deny insurance coverage at any time for reasons known or unknown at this time. State Farm’s letter informing the Lanes that it had hired an attorney to represent them reiterates the connection with their automobile policy: We have forwarded a copy of your claim file to Robert R. Beltz.... We have asked this attorney to proceed with your defense in the lawsuit brought against you by Viriginia [sic] M. Lloyd and Willie Lee Lloyd.... Under the terms of your policy, the attorney is entitled to your com- píete cooperation throughout the handling of this litigation____ As we have previously advised you, we specifically reserve our right to deny coverage to you (and anyone claiming coverage under the policy). Based on the information available to us at this time, it is questionable that the vehicle involved in the accident at Manzanita Speedway in April, 1986, qualifies for coverage under your policy as a temporary substitute car, newly acquired car, or non-owned car. The defense of this action by the attorney we have selected on your behalf is not to be considered a waiver of such policy defense or any policy defense which may be involved in this case---- Clearly, then, a contract is involved in this matter. The pertinent question is whether the Lanes’ claims against State Farm arose out of that contract. Under a liability policy, the insurer assumes two main express responsibilities: the duty to indemnify and the duty to defend. See, e.g., State Farm Mutual Auto. Ins. Co. v. Peaton, 168 Ariz. 184, 192, 812 P.2d 1002, 1010 (App.1990). These two duties are separate obligations. Paulin v. Fireman’s Fund Ins. Co., 1 Ariz.App. 408, 410-11, 403 P.2d 555, 557-58 (1965). However, just because a claim is made against the insured does not mean that the insurer must automatically defend. “[T]he insurer is under an obligation to defend only if it would be held bound to indemnify the insured in case the injured person prevailed upon the allegations of his complaint.” Id. at 410, 403 P.2d at 557 (quoting C. T. Drechsler, Annotation, Allegations in Third Person’s Action Against Insured as Determining Liability Insurer’s Duty to Defend, 50 A.L.R.2d 458, 464 (1956)). Thus, if the insurer determines that the claim is not covered, it has the option of not accepting the defense. Kepner v. Western Fire Ins. Co., 109 Ariz. 329, 332, 509 P.2d 222, 225 (1973). Here, it is clear from State Farm’s letters to the Lanes that State Farm was aware of facts that called into question whether the Lanes’ policy covered the accident. State Farm therefore had the option to decline the defense. Although it eventually did exercise this option, State Farm initially accepted the defense. This assumption was “gratuitous” because, as it turns out, the policy does not cover the accident. The fact that State Farm gratuitously assumed the defense does not mean that the duty to defend is unconnected to the policy. Rather, that term was used because under the circumstances the policy itself did not require State Farm to assume the defense. Indeed, we did not hold in our previous opinion that the contract was irrelevant in this case; we were not asked to consider that issue. State Farm had been granted judgment on the basis that “as a matter of law it can have no liability for assumption of a duty to defend in the absence of an insurance policy covering the accident.” Lloyd I, 176 Ariz. at 250, 860 P.2d at 1303 (emphasis added). To defeat summary judgment, the Lloyds argued that they could prevail on a gratuitous assumption theory. In order to gain reversal of the summary judgment, all the Lloyds had to do was demonstrate a triable issue; they did not have to prove their entire case. See Rule 56(c), Ariz. R. Civ. P. (summary judgment to be granted if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law”). State Farm’s motion did not argue that the Lloyds lacked evidence to establish an element of their claim. Cf. Orme School v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990). Thus, the fact that we decided the case on negligence grounds did not preclude the Lloyds from pursuing other theories. We specifically “address[ed] only those issues which are dispositive of this appeal.” Lloyd I, 176 Ariz. at 250, 860 P.2d at 1303. In , so doing, we consistently noted that the insurance contract did not cover the accident, but we did not state that there was no contract. We also did not hold that State Farm could not be held liable for bad faith. The essence of the prior opinion was that State Farm could be held liable for derelictions in its assumed defense of the Lanes even though there was no actual coverage under the policy. 176 Ariz. at 248, 860 P.2d at 1301. It has consistently been held that an insurer can be held liable for bad faith even when it does not violate any express provision of the insurance contract. Taylor v. State Farm, 185 Ariz. at 176, 913 P.2d at 1094; Deese v. State Farm Mut. Auto. Ins. Co., 172 Ariz. 504, 508, 838 P.2d 1265, 1269 (1992); Rawlings v. Apodaca, 151 Ariz. 149, 157, 726 P.2d 565, 573 (1986). Failure to perform the express covenant to pay the claim is not the sine qua non for an action for breach of the implied covenant of good faith and fair dealing. The implied covenant is breached, whether the carrier pays the claim or not, when its conduct damages the very protection or security which the insured sought to gain by buying insurance. Rawlings, 151 Ariz. at 157, 726 P.2d at 573. The core of the duty of good faith and fair dealing is that the insurer act reasonably towards its insured. We grant that security from financial loss is a primary goal motivating the purchase of insurance. That security flows from the express covenants of the insurance agreement. However, the insured also is entitled to receive the additional security of knowing that she will be dealt with fairly and in good faith. That security comes not from the express contractual terms, but from the implied covenant of good faith and fair dealing. Deese, 172 Ariz. at 508, 838 P.2d at 1269 (emphasis in original) (citations omitted). See also Parsons v. Continental Nat'l Am. Group, 113 Ariz. at 229, 550 P.2d at 100 (although intentional act exclusion would have applied and thus incident was not covered, insurer was estopped to assert the exclusion; by placing its own interests before those of the insured while defending the action, it had not acted in good faith and was liable for the entire judgment entered against insured). The covenant of good faith and fair dealing can be breached even if the policy does not provide coverage. Judah v. State Farm Fire & Casualty Co., 266 Cal.Rptr. 455, 463-65 (1990), review dismissed as moot, 281 Cal.Rptr. 766, 810 P.2d 998 (1991). Thus, State Farm could be found hable for bad faith despite the fact that, under the circumstances, the policy did not require it either to defend or indemnify the Lanes. C. Attorneys’Fees State Farm argues that our attorneys’ fees ruling established that the Lloyds had no contract cause of action. It is true that we denied the Lloyds’ request for attorneys’ fees stating that “[t]his suit arises not from contract but from an asserted gratuitous assumption of duty, and hence A.R.S. § 12-341.01(A) is inapplicable,” 176 Ariz. at 253, 860 P.2d at 1306, but State Farm takes this statement too far. That appeal was decided on negligence grounds, and thus A.R.S. § 12-341.01(A) was inapplicable. The use of the word “suit” instead of “appeal,” although possibly imprecise, should not be interpreted to mean that no contract was involved. There is indeed a contract involved in this case: the Lanes’ automobile policy with State Farm. It was within the context of that contract that State Farm undertook the Lanes’ defense in the first place. The issue we addressed in the previous appeal was whether State Farm could be held liable for negligently performing a gratuitously-assumed duty to defend. We were not asked in that appeal to decide whether the insurance policy was a basis upon which the Lloyds could prevail against State Farm. Having not been asked, we made no decision on that issue and our prior opinion therefore cannot be law of the case on that issue. See Holcomb v. United States, 622 F.2d 937, 940 (7th Cir.1980) (law of the case applies only to issues that the appellate court considered and resolved); Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 279, 860 P.2d 1328,1332 (App.1993) (doctrine does not apply “if the prior decision did not actually decide the issue in question, if the prior decision is ambiguous, or if the prior decision does not address the merits”). Moreover, even if A.R.S. § 12-341.01(A) was applicable to the prior appeal, the holding was correct: attorneys’ fees were properly denied because the Lloyds were not yet the “successful party,” as § 12-341.01(A) requires. CONCLUSION The Lanes had an automobile policy with State Farm. They were sued when an automobile they owned injured another. Reserving its right to deny coverage, State Farm initially assumed the defense, but committed “derelictions” in the defense. It later denied coverage and withdrew its defense, having decided (correctly) that the policy did not cover the accident because the automobile was a race car not covered by the policy. The Lloyds claim that State Farm’s conduct towards its policyholders, the Lanes, and their legal predicament, was bad faith. The Lloyds should have been allowed to proceed with their bad faith claim. The partial summary judgment is therefore reversed, State Farm’s request for attorneys’ fees pursuant to A.R.S. § 12-341.01 is denied, and we remand for further proceedings. CONTRERAS, P.J., and PATTERSON, J., concur. . To be fair to counsel, we note that the parties had no notice prior to oral argument that this court was concerned about its appellate jurisdiction. Thus, they did not have an opportunity to research this issue before argument. . In their opening brief, the Lloyds expressly abandoned their breach of contract claim. . Examples from the opinion bear this out: "The main issue we are asked to determine in this appeal is the liability of an insurance company for assuming a defense when no policy coverage truly existed. In summary, we hold that an insurer’s voluntary assumption of the duty to defend may give rise to a cause of action for derelictions in that defense even when there is no actual coverage. 176 Ariz. at 248, 860 P.2d at 1301. [State Farm] asserts, further, that no negligence action lies against an insurer for assuming a duty to defend when, as here, there is in fact no coverage at all. Id. at 250, 860 P.2d at 1303. The Lloyds cannot use estoppel to create policy coverage when none in fact exists under the policy. Estoppel is not a substitute for insurance coverage. Id. at 253, 860 P.2d at 1306. An insurer may assume a duty to defend even when there is, in fact, no policy coverage and may act negligently in exercising that duty.” Id. (All emphases added.) . The fourth issue the Lloyds raised in the prior appeal was whether State Farm was guilty of bad faith in its defense of the Lanes. 176 Ariz. at 250, 860 P.2d at 1303. Stating that ”[w]e address only those issues which are dispositive of this appeal,” id.., we did not address bad faith. Our supreme court has recently reiterated that bad faith tort actions are based in the underlying contract. Taylor v. State Farm Mutual Auto. Ins. Co., 185 Ariz. 174, 176, 913 P.2d 1092, 1094 (1996). . The Lloyds claim that State Farm acted in bad faith in failing to take action to set aside the default entered against the Lanes, refusing to settle or otherwise give due consideration to the Lanes’ interests in settlement, misleading the Lanes as to its settlement posture, and failing to properly communicate its coverage decisions. The factual sufficiency of the Lloyds’ bad faith claim is not an issue in this appeal, and we express no opinion as to its merits. . Although there are circumstances in which a party can receive fees for a reversal of summary judgment, Wagenseller v. Scottsdale Mem. Hosp., 147 Ariz. 370, 393-94, 710 P.2d 1025, 1048-49 (1985), the Lloyds were not in that position.

OPINION GERBER, Judge. The Marriott Corporation and its successor Marriott Management Services Corporation (collectively Marriott) appeal from the tax court’s ruling that Marriott was not entitled to a refund of restaurant transaction privilege taxes. Marriott claims that the payments it received from the Theodore Roosevelt Council of the Boy Scouts of America (Council) were tax deductible because providing, preparing, and serving food to the Council’s camps constituted, in its view, “[sjales to a person engaged in business classified under the restaurant classification if the items sold are to be resold in the regular course of the business.” Ariz.Rev. Stat. Ann. (A.R.S.) § 42-1310.14(B)(l) (1991). We need to resolve which entity— Marriott or the Council — is the “restaurant” in the broad sense of operating dining or lunch rooms. FACTUAL AND PROCEDURAL HISTORY From August 1, 1988 through July 30, 1992, which both sides call the refund period, the Council operated two camps in Arizona, Camp Gerónimo and the R-C Scout Ranch. The Council, a nonprofit organization, charged each camper and group leader fixed fees for attending the camps. The Council used these fees, in addition to other revenues, to provide meals for most of its staff and campers. It maintained dining halls with tables and chairs and also kitchens equipped with industrial grade cooking appliances. It did not prepare the food. Instead, it contracted with Marriott to provide and prepare the food and to furnish all or most of the employees and services necessary to feed both camps. For its part, Marriott provided its own employees who lived and worked at the camps; it maintained food and beverage inventories to which it retained title; it provided the necessary silverware; it prepared and served twenty camper meals each week; it provided scheduled snacks and it performed the cleaning and sanitation of cooking and eating areas. Marriott charged the Council weekly per-person fees on a sliding scale reflecting the number of campers attending Camp Geróni-mo. During the 1992 season the weekly charge was $49.59 per person when there were 751 to 800 attendees and $60.44 per person when there were 101 to 150 attendees. Marriott charged the Council a flat per-person three-day fee for food services at the R-C Scout Ranch. In the 1992 season that fee was $28.04. During the refund period, Marriott collected restaurant transaction privilege taxes and remitted them to the Department of Revenue (DOR). The total remitted for the refund period was $75,726.62. Marriott unsuccessfully sought a refund of this sum from DOR. After exhausting its administrative remedies before DOR and Division Two of the Arizona Board of Tax Appeals, Marriott commenced this refund action in the tax court. On cross-motions for summary judgment the tax court ruled that Marriott “does not qualify for exemption under A.R.S. § 42-1310.14(B) or 42-1382(C)(4).” It granted DOR’s motion for summary judgment and denied Marriott’s cross motion. Marriott now appeals the tax court’s ruling. We have jurisdiction in the appeal pursuant to A.R.S. section 12-2101(B). The appeals are assigned to Department T of this court pursuant to A.R.S. sections 12-120.04(G) and 12-170(C). DISCUSSION For Marriott to qualify for the refund, the Council itself must constitute a restaurant which resells food to its campers as part of its normal business operations. See A.R.S. § 42-1310.14(B)(l). Marriott argues that it merely sold food to the Council which, acting as a restaurant, or dining room, resold the food as meals to the campers. Marriott claims that the Council is in the business of benefiting its members and part of that benefit is receiving food. Marriott stresses that during the refund period the campers received more than 500,000 meals. The Council, it argues, provided dining rooms, tables, chairs, fully-equipped kitchens, and campers to assist in kitchen duties. The Council also had the final approval over the menus and the meal times. Marriott characterizes its own role as a subcontractor, owing duties only to the Council, not to the campers. Marriott misconstrues the roles that it played. Under the parties’ contract, Marriott was an independent contractor with the exclusive right to manage and operate the food service, including placing the food as complete meals before the campers. Marriott provided necessary employees, inventories, silverware, and maintained the kitchen area and equipment. It retained ownership and actual possession of the food inventory and only transferred title and possession of the food at the point of consumption. Because neither title nor possession of the food passed to the Council, Marriott never “sold” the meals to the Council within the meaning of A.R.S. sections 42-1301(13) and 42-1310.14(B)(1). Instead, it retained undiluted ownership and possession of the meals until it transferred them directly to their ultimate consumers. Its gross receipts on its contracts with the Council were properly taxable as direct sales to the ultimate consumers made in the regular course of Marriott’s business under the restaurant classification. See Stillwell Grand Prix Motors v. City of Tucson, 168 Ariz. 560, 815 P.2d 929 (App.1991) (auto dealer who acted as its customers’ conduit for purchase orders and payments for European cars for delivery in Europe transferred neither title nor possession of cars to customers and was not liable for city business taxes on full gross sale prices). In doing its cooking for the Council, Marriott acted like a caterer hired to serve meals, food, and drinks on the premises of another. Those who eat the food often pay the catering bill indirectly. For instance, at a charity banquet a person may pay the charity and the charity may pay the caterer. In such instances, a caterer cannot avoid tax liabilities by claiming that the charity is the restaurant. Similarly, Marriott cannot avoid its tax responsibilities by claiming that the Council is the restaurant. Marriott also misconstrues the role of the Council. Marriott compares the present case to Arizona Dept, of Revenue v. Phoenix Lodge No. 708, Loyal Order of the Moose, Inc., 178 Ariz. 275, 872 P.2d 679 (Tax Ct.1994). Marriott argues that under Moose the Council would constitute a restaurant. 178 Ariz. at 276-77, 872 P.2d at 680-81. But Moose is factually dissimilar. In Moose, the lodge itself operated its own restaurant without a third-party provider for the meals; dues did not pay for the meals but, instead, diners paid singly for each meal; and the lodge provided its own menu, waitress, and full-time cook, and hired others to take care of some of the restaurant chores. The court properly concluded that the lodge was in the business of operating a restaurant. Unlike Moose, the Council hired Marriott to provide food services; those services were paid for by the campers’ dues; and the Council did not employ full time staff to operate the food services. Further, the Council exercised minimal day-to-day control over the food services operations; primary supervision was Marriott’s responsibility. Marriott also argues that because one of the camps allowed the campers to opt out of most of the meal plan to save money, the food services were not essential to the camp operation. This argument is unpersuasive because fewer than one percent of the campers took advantage of this option. As a practical matter the camps had no choice but to offer a food service for the vast majority of campers. DOR argues that the Council was not engaged in a business within the restaurant classification because it actually sold indivisible, unitary “camping packages,” and did not prepare food or provide food services. We agree. Our recent decision in City of Phoenix v. Arizona Rent-A-Car Systems, Inc., 182 Ariz. 75, 893 P.2d 75 (App.1995) and the Arizona Supreme Court’s decision State Tax Commission v. Holmes & Narver, 113 Ariz. 165, 548 P.2d 1162 (1976) illustrate how we view the Council’s role. Arizona Rent-A-Car Systems held that the taxpayer’s receipts from charges for refueling rental cars returned by its customers with less than a full tank constituted part of its gross receipts from the taxable short-term car rental business and not separate, non-taxable charges. In contrast, Holmes & Narver held that the taxpayer’s receipts from performing design and engineering services on a job where it was also the prime contractor were not part of its gross income from the taxable contracting business. To determine whether an activity is taxable independently from the company’s other activities, both cases applied the three-part analysis in Holmes & Narver: Where it can be readily ascertained without substantial difficulty which portion of the business is for non-taxable professional services (design and engineering), the amounts in relation to the company’s total taxable Arizona business are not inconsequential, and those services cannot be said to be incidental to the contracting business, the professional services are not merged for tax purposes into the taxable contracting business and are not subject to taxation. 113 Ariz. at 169, 548 P.2d at 1166. Marriott argues that the Holmes & Narver test is inapplicable. While the present case differs in minor respects, the Holmes & Nar-ver test helps identify the nature of the parties’ business activities. The Council’s food service activities are certainly an essential part of the Council’s principal business activity of operating recreational and educational camps. While a member of the Moose Lodge could well be a bona fide Moose without ever eating in its restaurant, the Boy Scouts at the Council’s camps could . not readily participate in the camping experience without the availability of food. These camps could not operate without a food service. That a sizeable portion of the costs of the camps is attributable to food expenses does not mean the Council constitutes a restaurant or runs a dining hall. For example, hiring a full-time nurse or doctor for the campers’ medical needs would not place the Council in the business of providing health care, which would simply be a necessary and essential step subordinate to the larger camping goal. Similarly, the Council’s arranging for a third party to provide food for its camp attendees does not alter the purpose of the Council nor transform it into a dining hall or lunch room for tax purposes. The Council hired Marriott precisely so the Council could avoid running a food service. Marriott’s on-the-seene involvement reinforces the conclusion that the Council is not a “restaurant business” for tax purposes. CONCLUSION For the reasons stated above, the tax court properly granted summary judgment for DOR. NOYES, P.J., and EHRLICH, J., concur.

OPINION NOYES, Judge. This is a special action review of an Arizona Industrial Commission award and decision upon review for apportionment under Ariz.Rev.Stat.Ann. (“AR.S.”) section 23-1065(C) (1995). The issue is whether a written record stating “wounded in combat Nam” established the employer’s knowledge that the worker had a “psychoneurotic disability following treatment in a recognized medical or mental institution” within the meaning of section 23-1065(C)(3)(n). Because we conclude that the written record is insufficient to establish that knowledge, we set aside the award and decision upon review. I. Respondent Employer (“St. Charles”) manufactures kitchen cabinets. In May 1988 Respondent Employee (“Claimant”) applied to work at St. Charles as a serviceman. He completed two written forms; one was an employment application and the other was an information form. On the application, Claimant wrote “no” in answer to the question, “Do you have any physical, mental, or emotional limitations which would limit your ability to perform the position applied for?” He also checked the box indicating that the lifting he could do was “Heavy (over 50 lbs).” Claimant wrote on the information form that he was in the U.S. Army from 1969 to 1980 and that “yes” he did have a “service related disability.” In explaining his “yes” answer, Claimant wrote four words: “wounded in combat Nam.” St. Charles’ human resources manager, Randal Dickason, interviewed Claimant and hired him. Over four years later, in October 1992, Claimant had an industrial back injury followed by a workers’ compensation claim and surgery. Respondent Carrier (“Liberty Mutual”) closed the claim with permanent impairment and it then applied for relief from the Special Fund Division pursuant to the apportionment statute, AR.S. section 23-1065(C). During the hearing process, Liberty Mutual submitted a 1986 Veteran’s Administration (“VA”) decision rating Claimant with a 30 percent disability for post-traumatic stress disorder (“PTSD”). This decision related that Claimant was in a helicopter crash in Vietnam in 1970 and was awarded the Purple Heart and other medals; that he had back surgery in 1983; that he was diagnosed with PTSD in 1984; and that his PTSD symptoms included sleep disturbance, withdrawal, and stinted social abilities. Although Claimant said he gave a copy of this decision to a supervisor at St. Charles, there was no copy of it in the St. Charles files. The Special Fund Division stipulated that Claimant’s PTSD was a preexisting psycho-neurotic disability which equaled a ten percent permanent impairment and qualified for apportionment under A.R.S. section 23-1065(C)(3)(n). At the apportionment hearing, the only contested issue was whether Liberty Mutual could satisfy the “written records” requirement of A.R.S. section 23-1065(C)(2). This subsection adds the following essential element to an apportionment claim: “The employer establishes by written records that the employer had knowledge of the permanent impairment at the time the employee was hired, or that the employee continued in employment after the employer acquired such knowledge.” Liberty Mutual bases its apportionment claim solely on Claimant’s PTSD and it does not claim that the VA decision satisfies the written records requirement. The relied-upon written record is the one containing the words “wounded in combat Nam.” Liberty Mutual supplemented this written record with testimony. Claimant testified at the hearing that: I just didn’t want to do inside work. The type of work I did was outside. I was alone probably 95 percent of the time and didn’t have to deal with people. [I]f I get around four or five people, I start getting real nervous and edgy, and it’s just — I’m better off out alone. Claimant testified that he told his supervisors at St. Charles of his need to work outside and alone and they accommodated him. Dickason testified that, before hiring Claimant, he asked him about “wounded in combat Nam” and learned about his helicopter crash and his bad back. Dickason said he accepted Claimant’s statement that he could do the lifting required of a serviceman. When asked whether Claimant had said he could not work indoors because he had PTSD, Dickason ambiguously replied, “Yes. Well, I don’t recall the exact words. I remember that he did not want to work in the high volume production environment in the kinds of deadlines that were required in the manufacturing plant.” The Administrative Law Judge (“ALJ”) issued a decision which awarded apportionment on grounds that: The ALJ affirmed the award on administrative review. The Special Fund Division then brought this special action. II. The Special Fund Division is jointly liable for cases of unscheduled disability compensation which meet all requirements specified in A.R.S. section 23-1065(C). See A.R.S. § 23-1065(C). The only issue in this case is whether Liberty Mutual met the “written records” requirement of subsection (C)(2). This subsection has generated six recent opinions from this Court. Three opinions address the sufficiency of written records to meet the statutory requirement. See Country Wide Truck Serv. v. Industrial Comm’n, 181 Ariz. 410, 412-13, 891 P.2d 877, 879-80 (App.1994); Special Fund Div. v. Industrial Comm’n (Morin), 182 Ariz. 341, 346-47, 897 P.2d 643, 648-49 (App.1994); Schuff Steel v. Industrial Comm’n, 181 Ariz. 435, 445-46, 891 P.2d 902, 912-13 (App.1994). Two opinions interpret the statute’s “continued in employment” language. See Special Fund Div. v. Industrial Comm’n (Pete King), 184 Ariz. 363, 365-68, 909 P.2d 430, 432-35 (App.1995); Fremont Indem. Co. v. Industrial Comm’n, 182 Ariz. 405, 408-09, 897 P.2d 707, 710-11 (App.1995). One opinion allowed the Special Fund Division to waive the written-records requirement by stipulating to the employer’s knowledge of the employee’s partially-amputated left leg. Transporting Renewable Resources, Inc. v. Industrial Comm’n, 185 Ariz. 543, 544-45, 917 P.2d 272, 273-74 (App.1996). In Country Wide, the employer had a written record in which a doctor reported that the worker had a lumbar laminectomy and a posterior cervical fusion. The court concluded that this established the employer’s knowledge that the worker had a “preexisting disabling condition” regarding his back and neck. 181 Ariz. at 412-13, 891 P.2d at 879-80. The court set aside an award denying apportionment. Id. at 413, 891 P.2d at 880. In Special Fund Div. (Morin), the employer had a written record in which the worker reported that she had “knee problems,” “knee surgery” and a “laminectomy.” 182 Ariz. at 347, 897 P.2d at 649. The ALJ found that this established the employer’s knowledge that the worker had a ruptured disc and degenerative joint disease. Id. This Court affirmed, stating “We believe that these are the type of injuries that permit an inference that [employer] knew of applicant’s preexisting permanent impairment and decided to hire her despite the fact that she might have difficulty performing her tasks.” Id. We now come to cases which are more like the present one. In Schuff Steel, the ALJ found that written records referring to “cervical arthritis” did not establish the employer’s knowledge of the worker’s bilateral hand arthritis. 181 Ariz. at 445, 891 P.2d at 912. This Court affirmed an award denying apportionment and agreed with the ALJ that “the records establishing that Schuff Steel knew of Claimant’s impairment from cervical arthritis do not establish that it knew of his impairment from bilateral hand arthritis.” Id. The court also rejected an argument that the hearing transcript satisfied the written records requirement; the court found that such an argument “totally eviscerates the written records requirement.” Id. at 446, 891 P.2d at 913. In Special Fund Div. (Pete King), the employer obtained written records after the employee suffered an industrial injury. 184 Ariz. at 364, 909 P.2d at 431. This Court interpreted the “continued in employment” language in subsection 23-1065(C)(2) to refer to the period between the date of hire and the date of injury. Id. at 365-68, 909 P.2d at 432-35. The court in part reasoned that interpreting the requirement to apply to records obtained after the industrial injury “would render the statutory requirements pointless.” Id. at 367, 909 P.2d at 434 (citing Schuff Steel). In Fremont, the employer had a written record establishing knowledge of the worker’s hearing impairment but not her diabetes. 182 Ariz. at 407, 897 P.2d at 709. The carrier contended that the statute was satisfied by a written record of continued employment coupled with oral evidence that the employer knew of the diabetes. Id. at 407-08, 897 P.2d at 709-10. This Court rejected that argument, finding that it “trivializes the statutory written records requirement.” Id. at 408-09, 897 P.2d at 710-11. We publish this seventh opinion on the written records requirement to clarify dictum in Schuff Steel, which stated that, “[w]hether a general reference will satisfy the written records requirement will depend on the facts presented in each case.” 181 Ariz. at 445, 891 P.2d at 912. This dictum should not be construed to allow testimonial supplementation of written records. The facts in question are those contained in the written records. Section 23-1065(0(2) requires that the ultimate fact — the employer’s knowledge of the permanent impairment — be established by written records. Liberty Mutual contends that oral evidence can explain a general written record and that “wounded in combat Nam” inspired Dickason to ask questions and to learn about Claimant’s helicopter crash, his bad back and his PTSD. We conclude, however, that the only way “wounded in combat Nam” can be said to establish knowledge of “permanently impaired by PTSD” is to interpret the statute to allow apportionment if the employer establishes by written records its knowledge of any permanent impairment. We think that such an interpretation changes the meaning of the statute and is therefore an amendment which the legislature might enact but the court should not. The statute is clear as written. It requires that the employer establish by written records that it had knowledge of the permanent impairment on which the apportionment claim is based. The written records in this case are like those in Schuff Steel and Fremont; they establish the employer’s knowledge of an impairment other than the one on which the apportionment claim is based. We think it obvious that “wounded in combat Nam” is a general reference to a physical injury, that PTSD is a mental impairment, that there is no necessary connection between the two, and that many veterans have one without the other. We hold that “wounded in combat Nam” does not establish by written records the employer’s knowledge that Claimant was permanently impaired by PTSD. “ ‘[Wlhether a particular inference can be drawn from the evidence is a question of law.’ ” Bennett v. Industrial Comm’n, 163 Ariz. 534, 538, 789 P.2d 401, 405 (App.1990) (quoting Helton v. Industrial Comm’n, 85 Ariz. 276, 280, 336 P.2d 852, 854 (1959)). The award and decision upon review are set aside. McGREGOR, J., concurs.

OPINION SULT, Presiding Judge. On November 2,1990, A.H. (“appellant”), a minor, was injured in an accident involving her mother’s car and a car driven by Thomas Sroka. Both appellant’s mother and Sroka were negligent in causing the accident. Old Hickory Casualty Insurance Company (“Old Hickory”), domiciled in Louisiana, insured appellant’s mother with liability and underin-sured motorist policy limits of $15,000 per person. Great Plains Insurance Company (“Great Plains”), domiciled in Nebraska, insured Sroka with liability policy limits of $15,000 per person. Appellant obtained a final judgment declaring that her total damages were $65,000, for which Sroka was 60% at fault ($89,000) and appellant’s mother was 40% at fault ($26,000). After the accident, a Nebraska court declared Great Plains insolvent. Pursuant to Arizona Revised Statutes Annotated (“A.R.S.”) sections 20-661, et seq., the Arizona Property and Casualty Insurance Guaranty Fund (“the Fund”) succeeded Great Plains. The Fund paid appellant the $15,000 limit on the Great Plains policy for Sroka’s liability. On August 19,1991, an Old Hickory claims adjuster offered appellant the $15,000 liability policy limit to settle appellant’s claim against her mother. On August 22, 1991, three days after Old Hickory’s settlement offer, a Louisiana court placed Old Hickory in conservatorship, entering an injunction which prohibited Old Hickory and its officers, directors, agents, and employees, and anyone professing to act on its behalf, from “disposing of any of the property or assets of [Old Hickory] and from the transaction of the business of [Old Hickory] except with the concurrence of the Commissioner of Insurance until further written order from this Court.” On October 17, 1991, the Louisiana court entered a consent order which, inter alia, incorporated the prohibitions of the injunction. Nineteen days after the August 22 injunction, appellant attempted to accept Old Hickory’s settlement offer for her mother’s liability policy limits. Appellant’s counsel contacted the same Old Hickory claims representative who had made the offer. Following a discussion, counsel communicated an acceptance of the offer. On March 15, 1994, appellant filed this action against the Fund, seeking enforcement of her settlement agreement with Old Hickory. The matter first went to arbitration, where appellant was granted summary judgment and awarded the $15,000 policy limit on her mother’s liability coverage, as well as attorneys’ fees, costs, and prejudgment interest. The Fund appealed the arbitrator’s decision to superior court. The Fund also filed an amended answer containing a counterclaim seeking a declaration that A.R.S. section 20-673(B) (1990) prevented appellant from recovering further from the Fund under both the liability and the underinsured motorist coverage on the Old Hickory policy. Appellant filed a reply to the counterclaim as well as her own “Compulsory Counterclaim,” seeking the $15,000 policy limit for her mother’s underinsured motorist coverage, in addition to the $15,000 liability coverage. Both parties filed motions for summary judgment. After oral argument, the trial court found for the Fund, holding that: (1) there was no enforceable settlement agreement between appellant and Old Hickory, and (2) section 20-673(B) required that appellant’s previous recovery of $15,000 from the Fund under the Great Plains policy be offset against any recovery due from the Fund under the liability and underinsured motorist coverages of the Old Hickory policy. The court also awarded the Fund $10,108 in attorneys’ fees and costs. Appellant timely appealed. ISSUES 1. Did the trial court err in holding that the agreement settling appellant’s claim for her mother’s liability coverage was unenforceable? 2. Did the trial court err in holding that A.R.S. section 20-673(B) requires that any recovery from the Fund, under ei ther mother’s liability coverage or under-insured motorist coverage, be reduced by the $15,000 the Fund has already paid to appellant pursuant to the Great Plains policy? 8. Did the trial court err in awarding the Fund attorneys’ fees pursuant to A.R.S. section 12-341.01? DISCUSSION I. Settlement The Fund is required to honor settlement agreements reached by an insurer before insolvency. Betancourt v. Arizona Property & Casualty Ins. Fund, 170 Ariz. 296, 299, 823 P.2d 1304, 1307 (App.1991). In the present case, however, although Old Hickory had made an offer of settlement before it was declared insolvent, the trial court found that, at the time appellant attempted to accept Old Hickory’s offer, the injunction prevented Old Hickory from disposing of assets and transacting business without the concurrence of the insurance commissioner. The court then found that because the insurance commissioner never concurred in the settlement, the attempted acceptance was ineffective and no enforceable agreement arose. Appellant presents two theories in support of her argument that the trial court erred. She first argues that in Guarisco v. Haskins, 640 So.2d 575 (La.App.1994), a Louisiana appellate court found enforceable a settlement agreement between Old Hickory and another policy claimant entered into while the same injunction was in effect. Appellant urges that since Louisiana was enforcing Old Hickory settlement agreements without regard to the injunction, we should do likewise. As the Fund points out, however, the Guarisco court never mentioned the Louisiana injunction. For all we know, the injunetion may not have been an issue, the insurance commissioner may have concurred in the settlement, or perhaps the party opposing the settlement never spotted the issue. For these reasons, Guarisco is of no assistance in resolving the instant case. Appellant next attacks the trial court’s finding that the insurance commissioner never concurred in the settlement. Appellant asserts that the injunction required the insurance commissioner to take possession of Old Hickory’s business and conduct its affairs. Because the same agent that had made the original offer was still in the office when appellant accepted the offer, appellant argues that the trial court should have presumed that the agent was acting with the commissioner’s consent or at least have found a triable issue on this point. The Fund, however, produced an affidavit from Robert Carter, an employee of the Louisiana Department of Insurance. Carter is the estate manager assigned to Old Hickory, acting “on behalf of the Louisiana Commissioner of Insurance who has been appointed to liquidate the assets of Old Hickory.” In his affidavit, Carter averred that he was personally familiar with the legal proceedings initiated by the insurance commissioner against Old Hickory. He further averred that the commissioner had never concurred in the settlement with appellant. Appellant produced no evidence controverting Carter’s affidavit. She instead attacks its admissibility. She claims that the affidavit, which was served as part of the Fund’s motion for summary judgment, was the first official notice of the Fund’s intent to use Carter as a witness at trial. She argues that Carter’s testimony would not be admissible at trial, however, because the Fund failed to timely disclose Carter as a witness. See Ariz.R.Civ.P. 26.1(e) (the court shall exclude at trial any evidence not timely dis closed). Because Carter’s testimony is inadmissible at trial, she reasons, the court should not have considered his affidavit in ruling on the Fund’s motion for summary judgment. See Ariz.R.Civ.P. 26.1(c). The Fund responds that Rule 26.1(b) requires that a party make an initial disclosure of witnesses the party expects to call at trial. If “new or different information is discovered or revealed,” only then is a party required to amend such disclosure to reveal a new witness. Here, the Fund claims that it offered the Carter affidavit after appellant suggested in her motion papers that the insurance commissioner had concurred in the purported settlement. Since this was the first time that appellant made lack of concurrence by the commissioner a disputed issue, the Fund argues that the disclosure of Carter was timely. We agree with the Fund. Cf. Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 896 P.2d 254 (1995). Moreover, we note that if the timing of the disclosure prejudiced appellant, she had a ready remedy via a motion for continuance under Rule 56(f), Arizona Rules of Civil Procedure. Appellant concedes this but argues that she did request a continuance from the trial judge in order to depose Carter. However, appellant argues, the trial judge improperly denied the motion. In Lewis v. Oliver, 178 Ariz. 330, 873 P.2d 668 (App.1993), rev. denied, cert, denied, 513 U.S. 929, 115 S.Ct. 319,130 L.Ed.2d 280 (1994), we set forth the requirements for a proper Rule 56(f) motion: [T]he moving party must present an affidavit informing the court of: (1) the particular evidence beyond the party’s control; (2) the location of the evidence; (3) what the party believes the evidence will reveal; (4) the methods to be used to obtain it; and (5) an estimate of the amount of time the additional discovery will require. Id. at 338, 873 P.2d at 676. In the trial court, appellant requested a continuance in her written reply in support of her motion for summary judgment. She did this by stating, “If Mr. Carter were to be allowed to testify, Plaintiff should be allowed an opportunity to depose and cross-examine this witness regarding the ‘personal knowledge’ he claims to have.” At the oral argument, appellant’s counsel addressed the court, “If you are going to consider his affidavit then we would like the opportunity to depose Mr. Carter or conduct additional discovery, if need be, in Louisiana.” At no time, however, did appellant file an affidavit in compliance with Rule 56(f) and Lewis. We therefore find appellant’s request for a continuance was properly denied. Finally, appellant attacks the foundation for Carter’s factual averments. Appellant notes that, while Carter claimed he was “personally familiar” with the legal proceedings initiated against Old Hickory, Carter incorrectly stated that the injunction “remained in effect at all times from August 22, 1991, until October 31,1991 when Old Hickory was declared insolvent and placed in liquidation.” Appellant argues that since the Louisiana court’s consent order of October 17, 1991 superseded the injunction, this shows that Carter did not have the personal knowledge he claimed and his affidavit should have been given no weight. See Ariz.R. Civ.P. 56(e) (affidavits supporting summary judgment must be based on the affiant’s personal knowledge). We do not draw the same conclusion as appellant. The October 17 order merely served to make the relevant portions of the August 22 injunction permanent. While Carter may have misstated which order was in effect after October 17, it is of much greater significance that he correctly set forth the legal effect of both orders; namely, that Old Hickory was enjoined from disposing of assets between August 22, 1991 and October 31, 1991 when Old Hickory was declared insolvent and placed in liquidation. Additionally, Carter’s information was supported by the fact that, as an employee of the Louisiana Department of Insurance in charge of liquidating Old Hickory’s assets, he was in a position to have personal knowledge regarding whether the commissioner had consented to the settlement. We find that the trial court did not err in considering the Carter affidavit. When a party opposing a summary judgment motion fails to produce facts controverting the other party’s affidavit, the facts alleged in that affidavit may be considered true. Sato v. Van Denburgh, 123 Ariz. 225, 228, 599 P.2d 181, 184 (1979). Here, appellant produced no facts controverting the Carter affidavit and we find the affidavit dispositive. At the time appellant attempted to accept the Old Hickory offer, appellant’s power of acceptance had been terminated by the injunction. See Restatement (Second) of Contracts, § 36, comment (c) (1981) (the power of acceptance may be terminated by supervening legal prohibition). Moreover, the power to accept had not been revived by the Louisiana Insurance Commissioner consenting to the settlement. In sum, there is no genuine issue of material fact that an enforceable settlement agreement ever arose and the trial court was correct in so finding. Orme School v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000,1004 (1990). II. A.R.S. Section 20-673 Offset We now turn to the trial court’s ruling that A.R.S. section 20-673(B) requires that appellant’s prior $15,000 recovery from the Fund under the Great Plains policy be offset against the Fund’s $15,000 obligation under the limits of both the liability and underinsured motorist coverages of the Old Hickory policy. The purpose of the Fund is to assume, to the extent of its own statutory limits, the “obligations of the insolvent insurer” as if the insurer had not become insolvent. Arizona Property & Casualty Ins. Guar. Fund v. Herder, 156 Ariz. 203, 205, 751 P.2d 519, 521 (1988). Pursuant to A.R.S. section 20-664(A)(1) (1990), the Guaranty Fund Board shall “[i]nvestigate claims brought against the fund and adjust, compromise, settle and pay covered claims to the extent of the fund’s obligation.” A “covered claim” is an “unpaid claim ... which arises out of and is within the coverage of an insurance policy” issued by an insolvent insurer. A.R.S. § 20-661(3) (1990). Payment of covered claims may be limited by the nonduplication of recovery provisions in A.R.S. section 20-673. A nonduplication provision often operates as an “other insurance” clause for guaranty funds. The original purpose of “other insurance” clauses was to protect an insurer from fraudulent recovery and to discourage insureds from overinsuring against a particular loss. State Farm Mut. Auto. Ins. Co. v. Bogart, 149 Ariz. 145, 717 P.2d 449 (1986). These goals have been carried over into the guaranty context, preventing double recovery when multiple policies cover the same loss. Herder, 156 Ariz. at 207, 751 P.2d at 523. The issue here is whether any of appellant’s claims pose a danger against which the nonduplication provisions of section 20-673 are designed to protect; that is, does section 20-673 place any limitation on the Fund’s obligation to appellant. The first possible limitation on appellant’s recovery is based on subsection (B). The parties submitted this issue to the trial court on the apparent assumption that subsection (B) was applicable. Their arguments primarily disputed the proper interpretation of the offset provision of this subsection. Appellant argued that the recovery should be limited only by the total damages, while appellee argued that a limit-against-limit analysis should be used. However, we conclude that the facts in this case do not implicate subsection (B) at all. The subsection states, in pertinent part: Any person having a claim which may be recovered under more than one insurance guaranty fund or its equivalent or who is insured under more than one policy, shall seek recovery first from the fund of the place of residence of the insured ... or shall first exhaust coverage under such other policy. Any recovery pursuant to this article shall be reduced by the amount of recovery from any other insurance guaranty fund or its equivalent or under another policy. The first sentence of subsection (B) indicates that it applies to “[a]ny person having a claim which may be recovered under more than one insurance guaranty fund or its equivalent or who is insured under more than one policy.” Under this language, subsection (B) applies to three scenarios: (1) a person has a claim which may be recovered under the guaranty funds of more than one state; (2) a person has a claim which may be recovered under more than one “equivalent” to a guaranty fund; and (3) a person is insured under more than one policy. Here, appellant clearly does not have a claim which may be recovered under the fund of more than one state; rather, both the Old Hickory and Great Plains policies come under Arizona’s guaranty fund. Appellee does not argue otherwise. Appellee does assert, however, that the second scenario applies. Appellee argues that the language “or its equivalent” should be interpreted as follows. When a claimant recovers from the Arizona fund under one insolvent insurer’s policy, this then renders the fund the “equivalent” of another state’s fund when the claimant seeks recovery for the same covered incident under another insolvent insurer’s policy. Claimant’s attempted recovery under this second policy would be precluded under the nonduplication language of subsection (B). Appellee rationalizes this interpretation by arguing that while this case does not involve guaranty funds of two states, it “easily could have.” We do not find appellee’s argument either legally or logically compelling. Rather, the logical explanation for the phrase “or its equivalent” is that when Arizona first created its fund, not all states had such guaranty funds. Moreover, different states had different names for the funds that were created. Thus, the word “equivalent” appears to have been included simply to encompass the various state funds either already created or to be created under whatever name might be given a particular fund. We conclude, therefore, that this phrase does not bring appellant’s claims within subsection (B). Appellee next argues that this case falls under the “other insurance policy” language of subsection (B). We again disagree with appellee. This part of the subsection applies the offset to “[a]ny person ... who is insured under more than one policy.” An “insured” is “any person covered by the insurance policy, including the named insured.” State Farm Mut. Auto. Ins. Co. v. Lindsey, 180 Ariz. 456, 885 P.2d 144 (App.1994), vacated on other grounds, 182 Ariz. 329, 897 P.2d 631 (1995). Here, appellant may be an “insured” only with respect to the underinsurance coverage. The other two coverages under which she seeks recovery, that of Sro-ka’s liability policy and her mother’s liability policy, are third-party liability claims. Therefore, she is not a person “insured” as to the liability provisions of the respective policies. We conclude that subsection (B) does not apply. Consequently, we turn our analysis to subsection (C), the only other subsection with possible applicability. This subsection states: Where more than one policy may be applicable, a policy issued by the insolvent insurer shall be deemed to be excess coverage. The claimant shall be required to exhaust all rights under other applicable coverage or coverages. Any amount payable on a covered claim shall be reduced by the amount of such recovery under other applicable insurance. It appears that one purpose of the “excess coverage” language in subsection (C) is to protect the fund by prioritizing coverage. Under this subsection, primary insurance coverage of a solvent insurer retains its character as primary, and any Fund coverage is treated as excess. Essentially, this part of the subsection dictates the order of recovery. We also note, however, that the first clause of subsection (C) does appear to encompass the situation we have here; namely, more than one applicable policy. We acknowledge that this reading is not unambiguously clear and requires an interpretative process to determine whether such a conclusion is plausible. We turn now to that process, keeping in mind that our primary function in construing statutes is to attempt to ascertain the intent of the legislature. State v. Korzep, 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990). In so doing, we consider the statute’s spirit and purpose, the language used, its effects and consequences, and the context of the statute itself. Id. If we find that a part of a statute is susceptible to more than one construction, we will adopt that which is consistent with the general import of the statute. City of Prescott v. Randall, 67 Ariz. 369, 377, 196 P.2d 477, 482 (1948). Our consideration of these principles of construction leads us to conclude that the legislature did intend the first clause of the subsection to include the scenario presented here. First, the language “[w]here more than one policy may be applicable” is easily susceptible to that reading. Second, we think it fair to presume that the legislature, in enacting the guaranty fund statutes, intended to include all possible combinations of parties, insurers, and insurance coverages to accomplish its overall goal of protecting its citizenry against insurer insolvency. In such a context, it is easier to use “catch-all” phraseology, as here, rather than attempt to detail all possible variations. The alternative to reading the subject phrase as inclusive is to read our scenario as being completely outside the scope of the nonduplication clause. The Fund would still be liable for payment of claims presented under our scenario, pursuant to section 20-664(A)(1), yet would be deprived of the protection to its financial integrity that the non-duplication clause affords. While the numbers in the instant ease obviously pose no threat of this nature, we include in our construction of the “effects and consequences” of a statute the future impact our construction may have, not just the impact it may have on the particular facts presented. Viewed in this light, we readily conclude that the legislature did intend subsection (C) to implicate the nonduplication mechanism when the policies of two insolvent insurers apply to a covered claim. We turn now to the operation of the nonduplication mechanism in this case. No analysis is required to find that the trial court erred in determining that appellee was entitled to a limit-against-limit offset. Such an offset scheme was expressly rejected by the Herder court when it determined that subsection (C) required an offset against the “total amount payable as damages for the claimant’s injuries caused by the covered occurrence,” rather than an offset against policy limits. 156 Ariz. at 207, 751 P.2d at 523. Since the total damages here exceed the combined policy limits, no duplication of recovery is possible and the Fund is liable to appellant under both policies. Because we have found subsection (C) applicable, we anticipate on remand a question as to how the “excess coverage” mechanism of the subsection may affect the Fund’s liability to appellant. The same question was addressed in a non-guaranty context by the Ninth Circuit in Weekes v. Atlantic Nat’l Ins. Co., 370 F.2d 264 (9th Cir.1966). There, the tortfeasor was covered by two insurance policies which both contained “excess clauses.” The court determined that, when two applicable policies contain excess clauses, these clauses “offset each other” and “each insurer must bear its portion of the loss in proportion to the limits of the policy.” Id. at 274. We see no reason not to apply this same rationale here. Prior to their respective insolvencies, Great Plains and Old Hickory were both primary insurers under their respective liability coverages for this incident. Upon insolvency, each became excess, but only to any other applicable policy written by a solvent insurer. Since there is no such insurer, each now occupies primary status and must, through the Fund, bear* its respective portion of the loss in proportion to the policy limits. Ordinarily, since the limits on each policy are the same, each policy would bear 50% of the loss up to policy limits. Here, however, there easts a prior fault apportionment of 60%, or $39,000, against Sroka under the Great Plains policy and 40%, or $26,000, against appellant’s mother under the Old Hickory policy. This percentage of fault apportionment will substitute for the policy limits comparison calculation and govern the loss bearing responsibility of the respective policies. III. Attorneys’ Fees The attorneys’ fees awarded in this case were based on the alleged settlement agreement. The Fund requested $20,929.50 in attorneys’ fees pursuant to A.R.S. section 12-341.01(A) for its defense of appellant’s breach of contract claim. Appellant argued to the trial court that the request was improperly inflated and asked the court to reduce the amount requested to reflect “reasonable” fees. The trial court awarded the Fund $10,000 as “a contribution towards attorney fees.” On appeal, appellant argues that the trial court should have denied the Fund’s request for attorneys’ fees altogether based on the factors set forth in Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 394, 710 P.2d 1025, 1049 (1985). However, appellant has not indicated how the trial court abused its discretion in its award. We find that, based on the factors enumerated in Wagenseller, the trial court’s award was appropriate. CONCLUSION We affirm the trial court’s order finding that there was no enforceable settlement agreement between appellant and Old Hickory. We reverse the trial court’s order which found that section 20-673(B) is applicable to appellant’s claim and remand for proceedings consistent with this decision. Because the Fund remains the prevailing party on the contract issue, we affirm the award of attorneys’ fees pursuant to section 12-341.01. In the exercise of our discretion, and after considering the factors set forth in Wagenseller, we deny appellee’s request for attorneys’ fees incurred in the defense of this appeal. VOSS and EHRLICH, JJ., concur. . The fund actually paid appellant $15,000 less the $100 statutory fee prescribed by A.R.S. section 20-667(B). The statutory fee calculation will be hereafter omitted. . As with Great Plains, the Fund succeeded Old Hickory after it was declared insolvent. . Appellant also claims that the Fund did not produce "[s]ubsequent orders from the Louisiana court, communications from the Louisiana Insurance Commissioner to Old Hickory regarding claim settlements, and the Old Hickory claim file itself." She argues that because this information was readily available to the Fund, the trial court should have presumed the information would be adverse to the Fund. However, appellant had an equal opportunity to secure such evidence herself from Louisiana. Moreover, if she thought the Fund had the material, she could have moved the trial court to compel the Fund to disclose the documents pursuant to Rule 37(a), Arizona Rules of Civil Procedure. However, she failed to do either. In these circumstances, then, no factual presumption adverse to the Fund is appropriate. . An issue which will have to be addressed by the trial court on remand concerns how payment, if any, under the underinsurance clause of the Old Hickory policy is to be made. For a discussion of the problems arising under nonduplication statutes and underinsurance clauses, see Note, Insurance Company Insolvencies and Insurance Guaranty Funds: A Look at the Nonduplication of Recovery Clause, 74 Iowa L.Rev. 927 (1989). . See Note, supra, note 4, at 929. . Appellee argues that appellant raises Wagensel-ler for the first time on appeal. This is incorrect. Appellant raised the issue at the trial court in her reply in support' of objection to appellee’s application for attorney's fees. . While we reverse the trial court’s award of summary judgment based on the offset interpretation, this does not necessitate vacating the award of attorneys’ fees. The right to insurance payment is based on contract principles; the right to payment of a claim by a guaranty is statutory. 19A J. Appleman, Insurance Law and Practice, section 10,801, at 364 (Supp.1995). By virtue of our decision upholding the trial court’s grant of summary judgment regarding the settlement agreement, the Fund remains the prevailing party on that issue.

OPINION NOYES, Presiding Judge. Appellant was adjudicated delinquent on a charge of criminal trespass in the third degree in violation of Arizona Revised Statutes Annotated (“A.R.S.”) section 13-1502(A)(1) (1989). She was adjudicated on another charge as well, but appeals only the trespass charge, arguing that it should be dismissed because she had a bona fide claim of right to be on the property in question. Because the commissioner did not decide whether Appellant had a bona fide claim of right to be on the property, we reverse and remand. I. On the evening of July 26, 1995, the sixteen-year-old Appellant, with her sister and a friend, climbed over a locked gate and walked down the driveway of Appellant’s neighbor, John Lee. Lee confronted Appellant and told her that she was not allowed to cross his property. Appellant said she was going to the horses on her parents’ property and that she could come through Lee’s property as she pleased. Lee told her that she was wrong. Appellant walked away and Lee called the Mesa Police Department. An officer went to Appellant’s home and cited her for criminal trespass. Appellant told the officer that she was using Lee’s driveway to get home in response to a bathroom emergency. The State filed a delinquency petition and Appellant filed a motion to dismiss the trespass charge. According to avowals by counsel and statements by witnesses at the hearing on the motion to dismiss, the basic facts are these: Lee purchased his property in 1994 from the Gunnells. Ten years before that, the Gunnells had sold an adjoining parcel to Appellant’s parents, the Courys, who kept horses on it. The horse property was accessible by vehicle only through the Gun-nells’ driveway, although it was accessible by foot in other ways. In Mr. Coury’s opinion, part of the consideration for the price he paid for the horse property was his unrestricted use of the Gunnells’ driveway. Mr. Coury and Mr. Gunnells had an oral agreement regarding Coury’s use of the driveway, but they now dispute the extent of that agreement. Lee was unaware of the Courys’ alleged easement until after Lee bought the property from the Gunnells. At some point, Lee put a locked gate at each end of his driveway and posted “No trespassing” signs. Lee gave Coury a key to the gate, but claims that Mr. Coury’s use of the driveway was limited to caring for the horses. Mr. Coury denies that his use of the driveway was so limited. The Courys divorced some years ago and Mr. Coury moved away from the area, taking the key to Lee’s gate. At times relevant here, Appellant’s mother was able to get to the horses by vehicle only when Lee was there to open the gate for her. II. Appellant argues that this criminal trespass case is essentially a property dispute over the Courys’ right to use Lee’s driveway; that the criminal trespass statute cannot be used to resolve civil property disputes; and that Lee should have litigated this matter in a civil proceeding rather than using the resources of the State to settle it. Although Arizona has no case law on this issue, Appellant has cited cases which support her argument and with which we agree. In Indiana, for example, “[i]t is the well-settled law in this state, and of many other states, that it is an abuse of the penal statute relating to criminal trespass to use it to try disputed rights in real property.” Steele v. State, 191 Ind. 350, 132 N.E. 739, 740 (1921) (citations omitted). Courts in other states have similarly ruled. See State v. Larason, 143 N.E.2d 502, 504 (Ohio Ct.Comm.Pl.1956) (concluding that it was an abuse of an Ohio penal statute relating to criminal trespass to use it to try disputed rights in real property); People v. Miller, 344 Ill.App. 574,101 N.E.2d 874, 877 (1951) (citing Steele and holding that an Illinois penal statute relating to criminal trespass could not be invoked to try disputed rights of title); People v. Johnson, 16 Mich. App. 745, 168 N.W.2d 913, 915-16 (1969) (stating that a Michigan criminal trespass statute would be inapplicable in determining the question of title or right to possession where the act was a good faith one under claim of right). See also 75 Am.Jur.2d, which notes that “[cjriminal trespass statutes do not afford a substitute for adequate civil remedies for trespass,” and further states that “[i]t is an abuse of a penal statute relating to criminal trespass to use it to try disputed rights in real property. 75 Am. Jur. 2d Trespass § 166 (1991). In United States v. Miller, 659 F.2d 1029, 1031 (10th Cir.1981), a Wyoming rancher who was using a road on Indian land to get to his summer pasture, as his family had done for about fifty years, was convicted of violating Wyoming’s criminal trespass statute after the government decided to put a stop to this use. Id. The appellate court stated that “the basic issue in the case is whether Miller had a right of access across the reservation to get to his property.” Id. Because the rancher asserted a “colorable claim of right to use the road to get to his property,” the court cited Steele, Larason, Miller and Johnson and concluded that a criminal trespass prosecution was inappropriate. Id. at 1031-34. The Miller court stated that the government “should have brought a civil action” and that “it is an abuse of process when a legal procedure is perverted to accomplish an ulterior purpose for which it was not designed.” Id. at 1033 (citing Prosser, Law of Torts § 21, at 856 (4th ed.1971); Tappen v. Ager, 599 F.2d 376 (10th Cir.1979); and 1 Harper and James, The Law of Torts § 4.9, at 332 (1956)). The Miller court concluded that “[tjhe criminal trespass statute was never designed to resolve civil property disputes,” and it remanded the case with directions to vacate the conviction and dismiss the charge. Id. at 1033-34. A conviction for criminal trespass “cannot be upheld if ownership of the property is disputed between the complaining witness and the defendant.” 75 Am. Jur. 2d Trespass § 184 (1991) (citing Hann v. State, 771 S.W.2d 731 (Tex.App.1989)). “[Tjhe claim need not be one of title or ownership, but it must rise to the level of authorization.” Reed v. Commonwealth, 6 Va.App. 65, 366 S.E.2d 274, 278 (1988). As the court stated in Miller: It is not a matter of who owns the property. The dispute is over the exercise of a right to enter on the property to get to Miller’s lands. In order for the court to determine whether Miller’s right is supported by law, it is going to have to resolve the relative rights. Miller, 659 F.2d at 1033. The State cites no contrary authority, and it declines to address the out-of-state and federal eases cited by Appellant, claiming that they are irrelevant. The State huffs that “[t]he notion that either the juvenile court or the state has the time or resources to litigate civil land disputes in juvenile court is ludicrous.” On this point, we agree with the State. We also agree with Appellant that the case arises out of a civil land dispute. The State essentially stipulated that the Courys had a bona fide claim of right to use Lee’s driveway: the State avowed that “we are not disputing hay and feed to the horses.” The State’s position was that any such claim of right was limited to Mr. Coury caring for the horses. That, then, was the issue on which the motion to dismiss should have turned: Whether the Courys’ bona fide claim of right to use Lee’s driveway was limited to caring for the horses, or whether their bona fide claim of right was broader. In denying the motion to dismiss, the commissioner’s ultimate finding was that “the use of the driveway by the juvenile was not necessary for reasonable access to the juvenile’s home.” In other words, the denial of Appellant’s motion to dismiss was based on an implicit conclusion that the Courys’ easement was limited to caring for the horses. To prevail on the motion to dismiss, however, Appellant did not have to prove the existence of an easement broader than caring for the horses; she merely had to show a bona fide claim of right to be on the property on the occasion in question. If such a claim was shown, the criminal trespass count should have been dismissed. The commissioner did not answer the bona fide claim-of-right question and the record is ambiguous on it. The adjudication on the criminal trespass charge is therefore reversed and the matter is remanded for further proceedings consistent with this opinion. FIDEL and GARBARINO, JJ., concur.

GORDON, Vice Chief Justice: We previously held in this case that one issue presented by the parties should not have been dismissed on appeal as moot. Fraternal Order of Police Lodge 2 v. The Phoenix Employee Relations Board, 133 Ariz. 126, 650 P.2d 428 (1982). We retained jurisdiction pursuant to Ariz.Const. Art. 6, § 5(3) and Ariz.R.Civ.App.P. 19(e) to consider whether § 2.21 of the Rules and Regulations of the Phoenix Employee Relations Board [PERB] is valid. The trial court held by minute entry dated January 31, 1979 that the rule is void, and we affirm. The City of Phoenix has adopted a “meet and confer” ordinance, one of the purposes of which is to: “promote the improvement of employer-employee relations by providing a uniform basis for recognizing the right of public employees to join, or refrain from joining, organizations of their own choice and be represented by such organizations in their employer-employee relations and dealings with the City in accordance with the provisions of this ordinance.” Phoenix, Arizona, Code § 2-209(4) (adopted 1975). Sections 2-210 et seq. of the Code provide the structure to implement the purposes of § 2-209. The PERB was created by Code § 2-211 and was given the task of administering the plan. One of the PERB’s duties is to conduct elections for authorized representa tives for units of employees. Code § 2-217. Paragraphs (C) and (D) of § 2-217 state that the PERB need not conduct an election to determine the authorized representative of an employee unit or consider certification of such a representative if a valid election or certification for that unit has occurred in the last twelve months. This is known as the “election bar” rule. Code § 2-217(F) empowers the PERB to “promulgate such rules and regulations as may be appropriate to carry out the provisions of this section, said rules subject to the approval of the [Phoenix City] Council.” Similarly, Code § 2-211(F)(l) allows the PERB to adopt any rule or regulation “necessary to the proper discharge of its responsibilities” provided the Council approves. Pursuant to this authority, the PERB drafted Rule 2.21, the rule in question; the Council approved the rule on November 7, 1978. The rule, known as the “contract bar” rule, provides that a memorandum of understanding precludes an authorized representative election for the shorter of: (1) the term of the memorandum; or (2) three years. Intervenor Phoenix Law Enforcement Association [PLEA] was the authorized representative for the Phoenix City Police. Appellee Fraternal Order of Police Lodge 2 [FOP] challenged PLEA’s status and requested the PERB to order an authorized representative election. All the groups eventually became party to this lawsuit in which the validity of Rule 2.21 arose as a central issue. The trial court found Rule 2.21 invalid as a usurpation of legislative power because its three year election ban conflicted with Code § 2-217’s one year ban. We also find Rule 2.21 invalid but only because the proper procedure was not followed in adopting it. The PERB is an administrative agency. In Arizona, administrative agencies have no common law powers; an agency’s authority is circumscribed by the law creating it. Kendall v. Malcolm, 98 Ariz. 329, 404 P.2d 414 (1965); Cox v. Pima County Law Enforcement Merit System Council, 27 Ariz.App. 494, 556 P.2d 342 (1976). Thus, the PERB’s rules can be valid only if they are adopted in accordance with the laws of the City of Phoenix. Both §§ 2-211(F)(l) and 2-217(F) of the Phoenix City Code empower the PERB to adopt rules to supplement the meet and confer ordinance if the city council approves them. The council did approve Rule 2.21. But the council’s approval was improper under the Phoenix City Charter. Rule 2.21 is inconsistent with Code § 2-217. The PERB’s contract bar rule extends up to three years the one year moratorium on authorized representative elections legislated by the council’s election bar rule. Code § 2-217 is a city ordinance. Sections 15 and 16 of chapter 4 of the Phoenix City Charter allow revision, amendment, or repeal of an ordinance only by the same method used for adoption of ordinances (as prescribed in Phoenix City Charter ch. 4, §§ 8-18). Rule 2.21 revised, amended, or repealed Code § 2-217(C) and (D). Although the council approved the rule, it did not do so by the method prescribed for adopting ordinances. The council is free to abandon the one year election bar of Code § 2-217(C) and (D) in favor of the PERB’s three year bar, but it must do so in a manner consistent with the Phoenix City Charter. Therefore, Rule 2.21 is invalid because it was improperly enacted. The judgment of the trial court declaring invalid § 2.21 of the PERB’s Rules and Regulations is affirmed. HOLOHAN, C. J., and HAYS, CAMERON and FELDMAN, JJ., concur. . Code § 2-212 designates an employee as a member of a specified labor unit based on the nature of the employee’s work. . The PERB certifies the winner of the election as the authorized representative for the relevant employee unit. Code § 2-217(B). The certified representative is the authorized meet and confer agent for that unit. Code § 2-217(E). . A memorandum of understanding may apply to “matters regarding wages, hours and working conditions.” Code § 2-215(A). . When a legislative body delegates to an administrative agency the authority to supplement legislation with rules, the legislative body must give the administrative agency definite guidelines to follow in exercising that authority. State Compensation Fund v. De La Fuente, 18 Ariz.App. 246, 501 P.2d 422 (1972). By reserving final approval of any rule the PERB proposes, the council assured a proper delegation of its legislative power. . Because the council approved Rule 2.21 by a 7-2 vote, the only serious departure from the ordinance adoption method was in phrasing, recording, and publicizing the rule.

OPINION HAIRE, Judge. In this review of an award entered by the respondent Commission in a workmen’s compensation proceeding, the sole issue is whether the administrative law judge properly excused an untimely request for hearing. We affirm the award. The petitioner employer (hereinafter employer) is self-insured, and matters relating to its workmen’s compensation claims are administered by its agent, Merchants Insurance Agency, Inc. The claims administration agent and the employer are sometimes hereinafter collectively referred to as “employer.” Since approximately April 1980 and continuously thereafter, the respondent employee (hereinafter claimant) has lived in a four unit apartment complex. Each unit is identified with a letter designation. On August 27, 1980, the claimant was injured on the job. She promptly reported the injury to her employer on a form supplied by the employer. She included her apartment’s letter designation as part of her mailing address. From this initial report, the employer prepared an employer’s report of injury and filed it with the Commission. See generally A.R.S. §§ 23-908(F), 23-1061(E). This report also included the apartment’s letter designation. Shortly thereafter, two workman’s and physician’s reports of injury were prepared for and signed by the claimant and filed with the Commission. These reports did not include the apartment’s letter designation. On September 15, 1980, the employer issued a notice of claim status accepting the claim for benefits. This notice did not include the apartment’s letter designation. This notice was admittedly received by claimant. On September 30, 1980, the employer mailed a notice of claim status terminating temporary total compensation to the claimant. Although this notice also did not include the apartment’s letter designation, claimant admitted receiving it. Claimant consulted an attorney on October 2,1980. Approximately one week later, she gave him all correspondence she had received from the employer relating to the claim. On October 28, 1980, the attorney filed a letter notifying the employer that he had been retained as counsel and also filed a hearing request protesting the September 30, 1980 notice. On that same day, October 28, 1980, the employer mailed claimant a notice of claim status terminating temporary compensation without permanent impairment. A copy of this notice of claim status was not sent to claimant’s attorney. More than 90 days later, while preparing for the hearing on the September 30, 1980 notice of claim status, claimant’s attorney discovered the existence of the October 28, 1980 notice. He promptly filed a hearing request to protest it. A hearing was then scheduled to consider only the question of whether the untimely filing of the request for hearing should be excused. At the scheduled hearing, the claimant and the employer’s claims representative appeared. The claimant testified that although she could not recall whether or not she received the October 28,1980 notice, she could recall giving her attorney every notice she had received from the claims agent. She did not give him the October 28, 1980 notice. On cross-examination, when asked about a prior admission that she had received this notice, she explained that she made this admission because she had mistakenly believed that the October 28, 1980 notice was among those she had given to her attorney. The claims representative testified about the agent’s mailing procedures. Although the agent ordinarily did not keep written documentation of mailing, the copy of the October 28, 1980 notice mailed to the Commission was received by the Commission and the copy mailed to claimant was not returned. The claims representative further testified that the agent’s record of the claimant’s mailing address included the apartment’s letter designation, but that this designation was omitted from the October 28, 1980 notice because of clerical error. The hearing judge thereafter issued an award excusing the untimely filing of the request for hearing. The dispositive findings supporting this award were that clear and convincing evidence established that claimant did not receive the October 28, 1980 notice of claim status and also that this notice was not mailed to claimant’s last known mailing address or place of residence because the address omitted the apartment’s letter designation. On this review, the employer contends that the evidence in this case fails to satisfy the standard imposed by A.R.S. § 23-947. This statute, as amended in 1980, applies to all notices and determinations issued after July 31, 1980. See Laws 1980, Ch. 246, § 41. This case presents the first opportunity to interpret the amended section, which provides as follows: “A. A hearing on any question relating to a claim shall not be granted unless the employee has previously filed an application for compensation within the time and in the manner prescribed by § 23-1061, and such request for a hearing is filed within ninety days after the notice sent under the provisions of subsection F of § 23-1061 or within ninety days of notice of a determination by the commission, insurance carrier or self-insuring employer under § 23-1047 or § 23-1061 or within ten days of all other awards issued by the commission. “B. As used in this section, ‘filed’ means that the request for hearing is in the possession of the commission. Failure to file with the commission within the required ninety days by a party means that the determination by the commission, insurance carrier or self-insuring employer is final and res judicata to all parties. The industrial commission or any court shall not excuse a late filing unless any of the following apply: “1. The person to whom the notice is sent does not request a hearing because of justifiable reliance on a representation by the commission, employer or carrier. “2. At the time the notice is sent the person to whom it is sent is suffering from insanity or legal incompetence or incapacity, including minority. “3. The person to whom the notice is sent shows by clear and convincing evidence that the notice was not received. “C. The late filing shall not be excused under subsection B of this section if the person to whom the notice is sent or his legal counsel knew or, with the exercise of reasonable care and diligence, should have known of the fact of the notice at any time during the filing period. The late filing shall not be excused under subsection B of this section if it is shown by clear and convincing evidence that the notice was sent by mail or delivered personally to the last known mailing address or place of residence of the person to whom it is addressed and to his legal counsel, as shown on the records of the commission.” (Emphasis added). The employer’s first argument is that the evidence of nonreceipt was not clear and convincing. This argument confuses the level of proof required to convince the trier of fact with the standard of review applicable on appeal. “The purpose of the ‘clear and convincing’ standard is to guide the trier of fact in the consideration of the evidence. It is not a test to be applied by an appellate court in passing on the sufficiency of the evidence.. .. Therefore the finding of the trier of fact should be sustained if the evidence furnishes reasonable or substantial support therefor. ****** “[I]n reviewing the sufficiency of the evidence to support the hearing officer’s findings here, we must resolve all questions of credibility and state all inferences in the light most favorable to sustaining the award. Considered in such light, the question of whether the evidence offered ... is clear and convincing is for the hearing officer to decide. As long as there is reasonable and substantial evidence in support of the result reached by the hearing officer, this Court must affirm that result.” Hopper v. Industrial Commission, 27 Ariz.App. 732, 734-35, 558 P.2d 927, 929-30 (1976); accord, Groth v. Martel, 126 Ariz. 102, 612 P.2d 1065 (App.1979); Stevenson v. Stevenson, 132 Ariz. 44, 643 P.2d 1014 (1982). As we recently explained in another case involving the clear and convincing burden of proof: “If an appellate court were to apply different standards of review depending on the burden of proof required for the particular proceeding, it would be substituting its resolution of factual issues for that of the trier of fact. Therefore, no matter what the burden of proof required in the proceedings below, we can only review the evidence to determine if there is substantial evidence to support the conclusion of the trier of fact.” In Re Appeal in Maricopa County, Juvenile Action, 132 Ariz. 486, 647 P.2d 184 (App.1982). In the present case, although the claimant did not directly deny receiving the notice, the hearing judge accepted her indirect denial which consisted of her testimony that she gave to her attorney every notice she had received and her explanation of her prior admission. Given the uncontradicted evidence that she did not give the October 28, 1980 notice to her attorney, there was evidence from which the hearing judge could reasonably infer that claimant failed to receive it. We therefore find substantial evidence to support his conclusion. The employer also contends that the hearing judge erroneously found that the employer had not shown by clear and convincing evidence that it had mailed the notice to the last known address of the claimant as provided in A.R.S. § 23-947(C). In this regard, the administrative law judge found in paragraph five of the award: “Since the NOTICE OF CLAIM STATUS did not contain the entire mailing address or place of residence there was no clear and convincing evidence that the appropriate 10/28/80 NOTICE OF CLAIM STATUS was mailed to [the] last known mailing address or place of residence.” This finding is supported by substantial evidence and the administrative law judge therefore did not err in refusing to find that the notice was properly mailed. The petitioner employer for the first time raises other arguments in its reply brief in regard to the sufficiency of compliance with A.R.S. § 23-947(C). Such arguments are not properly raised in a reply brief, see Rule 13(c), Arizona Rules of Civil Appellate Procedure, 17A A.R.S., and will not be considered. Camelback Contractors, Inc. v. Industrial Commission, 125 Ariz. 205, 608 P.2d 782 (App.1980); United Bank v. Mesa N.O. Nelson Company, Inc., 121 Ariz. 438, 590 P.2d 1384 (1979). For the foregoing reasons, we conclude that there was sufficient evidence to support the award excusing the late filing of the hearing request. The award is therefore affirmed. EUBANK and CONTRERAS, JJ., concur.

OPINION CORCORAN, Judge. The question raised in this appeal is whether the filing of a complaint tolls the statute of limitations regarding a counterclaim that is brought after the applicable time period has expired. A brief factual and procedural history of this appeal is as follows: On July 18,1978, appellees were having a birthday party at their residence in Scottsdale, Arizona. Sometime that day appellant Thomas Star, a Scottsdale police officer, came to appellees’ residence apparently in response to a noise complaint. Exactly what occurred at that time is in dispute, but appellees Dallas Duhammel, Sr., and his son were subsequently arrested. On July 18, 1979, exactly one year later, appellees filed a complaint against appellants and others. The complaint alleged, among other things, false arrest, assault and battery, and civil rights violations, all stemming from the incident at appellees’ residence. A first amended complaint was filed on August 2,1979, which was substantially similar to the original complaint. On August 23, 1979, appellants filed an answer and a counterclaim against appel-lees. The counterclaim alleged counts of libel, slander, intentional infliction of emotional distress, and invasion of privacy. According to the counterclaim, the basis for these allegations was that appellees made false statements of police brutality against appellant Thomas Star by leading a card-carrying demonstration around the Scottsdale City Council building on July 25, 1978, and by appearing before the Council on that date and verbalizing such accusations. The counterclaim also alleges further false accusations made against appellant Thomas Star by appellee Dallas Duhammel, Sr., to local newspapers on July 25 and 26, 1978. In response to the counterclaim, appellees filed a motion for judgment on the pleadings pursuant to rule 12(c), Rules of Civil Procedure, arguing that because the counterclaim was filed more than one year after the allegations occurred, the counterclaim was barred by the statute of limitations. The lower court granted appellees’ motion and this appeal followed. We affirm the decision of the lower court. Appellants first argue that where commencement of an action is within the statute of limitations, the filing of a compulsory counterclaim pursuant to rule 13(a) is not barred by the running of the statutory time thereafter, and cases are cited which uphold that general proposition. Although there is a split of authority regarding this question, the law in Arizona does not appear to support appellants’ position. In W.J. Kroeger Co. v. Travelers Indemnity Co., 112 Ariz. 285, 541 P.2d 385 (1975), our Supreme Court stated: If a claim would be barred originally by a statute of limitation, it is barred as a counterclaim even if it arises from the same transaction except as it falls within the principles of recoupment. 112 Ariz. at 287, 541 P.2d at 387. Similarly, Division 2 of the Court of Appeals has held that “[a] party is not entitled to a set-off or counterclaim unless he is entitled to relief in a direct action.” Ness v. Greater Arizona Realty, Inc., 117 Ariz. 357, 360, 572 P.2d 1195, 1198 (App.1977). The court then reiterated the principles regarding recoupment expressed in W.J. Kroeger. This court has followed both W.J. Kroe-ger and Ness in Aetna Finance Co. v. Pas-quali, 128 Ariz. 471, 626 P.2d 1103 (App. 1981). Aetna Finance held: Under both federal and Arizona law, a statute of limitations is not a bar to a recoupment defense.... A recoupment defense survives as long as plaintiff’s claim can be asserted, even though defendant’s claim would be barred by the statute of limitations if brought as an affirmative action. 128 Ariz. at 473, 626 P.2d at 1105. W.J. Kroeger, Ness and Aetna Finance leave little doubt that where a counterclaim is filed beyond the applicable statute of limitations it will be barred unless the counterclaim is in the nature of a recoupment, even if the counterclaim is a compulsory counterclaim. However, appellants argue that an earlier case, Tom Reed Gold Mines Co. v. Brady, 55 Ariz. 133, 99 P.2d 97, 127 A.L.R. 905 (1940), supports their position that the filing of a complaint suspends the operation of the statute of limitations with regard to a counterclaim, and that since Tom Reed has not been overruled in subsequent cases it is the controlling authority. We do not agree. Although the court in that case did make a statement that, standing alone, might be interpreted to support appellants’ position, other language in the decision indicates a position consistent with the later cases. For example, the court stated that: Of course defendant could not, after the statute had run, maintain an independent action against plaintiff for these wrongs. These same causes of action, however, it could use as defensive instruments when it was sued by plaintiff.... 55 Ariz. at 139, 99 P.2d at 100 (emphasis added). The court in Tom Reed also referred to defendant’s claim as an “existing debt,” and it appears quite clearly from a review of the facts of the case that the court was simply applying the recoupment principle. We do not find any conflict among these authorities. Appellants, however, argue further and alternatively request us to treat the counterclaim as if it were a recoupment. Re-coupment has been defined as “an equitable doctrine which can be used to reduce or eliminate a judgment, but not for affirmative relief.” Ness, supra, 117 Ariz. at 360, 572 P.2d at 1198. The term describes a species of defense that oftentimes arises in an action in contract because of the violation of some duty. Nogales Service Center v. Atlantic Richfield Co. 119 Ariz. 552, 582 P.2d 642 (App.1978) (“[rjecoupment is confined to the contract on which plaintiff sues, ...” 119 Ariz. at 554, 582 P.2d at 644.) 20 Am.Jur.2d. Counterclaim, Recoupment, and Set-Off § 1 at 228 (1965); 36A Words and Phrases, Recoupment (1962). Clearly, recoupment is available only in a defensive as opposed to an offensive manner. In their counterclaim, appellants request affirmative relief, not merely a reduction of appellees’ damages. The counterclaim contained four separate tort counts which do not fall within the principles of recoupment. Counts I and II of the counterclaim deal with libel and slander which are governed by a one-year statute of limitations. A.R.S. § 12-541. With the exception of that portion of Count II that alleges a libel on December 14, 1978, Counts I and II were filed more than one year after the cause of action accrued, and the lower court was correct when it dismissed those counts. Count III is an allegation of intentional infliction of emotional distress, which both parties concede is governed by a two year statute of limitation. A.R.S. § 12- 542. Appellees argue that none of the acts alleged in the counterclaim rose to the level of outrageousness required to sustain this particular tort and, therefore, the lower court’s order dismissing the counterclaim with respect to Count III should be upheld on that basis. Appellants contend that this argument was never raised before the trial court, which precludes it from being heard now. We note that appellees did raise this argument in the lower court in response to appellants’ joinder in a motion for reconsideration. Moreover, we will affirm the lower court whenever the record supports any legal theory which will sustain the judgment. In re Estate of Taylor, 5 Ariz.App. 144, 424 P.2d 186 (1967). In the alternative, appellants maintain that the acts complained of were sufficient to support their claim for emotional distress. We do not agree. As “society’s conscience,” the court has a duty in the first instance to examine the acts complained of to determine whether there are allegations of outrageous conduct which state a claim for relief. Cluff v. Farmers Insurance Exchange, 10 Ariz.App. 560, 460 P.2d 666 (1969); Davis v. First National Bank, 124 Ariz. 458, 605 P.2d 37 (App.1979). The test is set forth in Restatement (Second) of Torts § 46 (1965): (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Comment d to that section adds the following: Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.... The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. ... [Pjlaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.. .. We find that the conduct complained of failed to meet the test necessary to state a claim for intentional infliction of emotional distress. Basically, the allegations upon which appellants rely for their claim of emotional distress are the following: Appellee Dallas Duhammel, Sr., made false statements against appellant Thomas Star to the Scottsdale City Council and to various newspaper reporters; he led a demonstration around the Scottsdale City Council building, and the demonstrators carried signs which falsely accused appellant Thomas Star. We do not find that this conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Were we to hold otherwise, every demonstration, statement to the news media, or letter to the editor would give rise to a claim alleging the intentional infliction of emotional distress. Finally, appellants contend that Count IV which alleged an invasion of privacy was also governed by the two-year statute of limitations and, therefore, it was incorrect to dismiss that count from the counterclaim. Assuming arguendo that appellants’ contention is correct, we find, according to Davis, supra, that appellants’ invasion of privacy claim cannot be maintained because appellants have failed to plead a claim for intentional infliction of emotional distress. In Davis, we noted the “striking similarity” between the claims for invasion of privacy and intentional infliction of emotional distress, and that “guarantees” exist in the latter tort to protect defendants from unwarranted lawsuits, i.e., there must be a showing of extremely outrageous conduct. 124 Ariz. at 462-63, 605 P.2d at 41-42. We then determined that those same safeguards should be applied in connection with the tort of invasion of privacy. Although Davis involved an allegation of invasion of privacy through intrusion into plaintiff’s private affairs, we see no reason not to retain those safeguards in the present case, which involves allegations that publicity placed the plaintiff in a false light in the public eye. See Prosser, Privacy, 48 Calif.L.Rev. 383, 389 (1960). Otherwise, there would exist little if any reason to distinguish this particular tort from libel or slander. For all of the reasons stated above, the judgment of the lower court is affirmed. OGG and FROEB, JJ., concur. . Count II of the counterclaim also alleged a libel occurring on December 14, 1978. Since the counterclaim was filed timely with respect to that allegation, it is not the subject of this decision. . “If, ... a counterclaim or set-off is not barred at the commencement of the action in which it is pleaded, it does not become so afterward, during the pendency of that action....” 55 Ariz. at 139, 99 P.2d at 100.

MELVYN T. SHELLEY, Superior Court Judge: In July and August of 1977, the plaintiff, hereinafter called appellant, and Sun Lodge, Inc., hereinafter called Lodge, entered into two contracts for the lease of two outdoor advertising signs. The contracts were signed by an officer on behalf of appellant and on behalf of the Lodge by Rex E. Bishop, President. The contracts provided that a person signing on behalf of a corporation would be severally liable under the contract. The Lodge defaulted on the monthly payments required by the contracts and appellant filed suit against the Lodge and Rex E. and Mona Bishop, hereinafter called appel-lees. Appellant filed a Motion for Summary Judgment. Appellees filed a Counter-Motion for Summary Judgment. The Court granted partial summary judgment in favor of appellant. Default was entered against the Lodge, but the record does not reveal that a default judgment was entered against it. After the trial of the case, the Court found in favor of appellees and against appellant and entered judgment against appellant, awarding attorney fees to appellees in the amount of one thousand five hundred ($1,500.00) dollars. From this judgment appellant filed this appeal. Appellant contends that the partial summary judgment granted by the court limited the trial only to the issue of the amount of appellant’s damages. This was not the intent of the order granting partial summary judgment. The preamble to the order refers to the provision of the contracts having to do with personal liability of persons signing for the corporation. Based thereon, the court ordered “Defendants REX E. BISHOP and MONA BISHOP are personally liable for any damage which may be ultimately determined at the trial.” By no stretch of the imagination can this be construed to exclude liability issues. Said partial summary judgment merely provides that if judgment is entered in favor of appellant, the Bishops would be personally liable with the Lodge for payment of the judgment. Appellant contends that the trial court erred in granting judgment in favor of appellees, and/or, in allowing testimony and evidence on appellees’ claim that the contracts were void as against public policy inasmuch as appellees failed to plead affirmative defenses as required by Ariz.R. Civ.P. 8(d) and 12(i). Appellees did not allege in their answer that the contracts were illusory, unconscionable, penal, void, and against public policy; however, the penalty issue was clearly articulated in appellees’ countermotion for summary judgment, and the trial memorandum filed by appellees eleven days before the trial clearly raised all of said defenses. Although appellant alleges it objected at trial to this defense, it did not object in its reply to appellees’ countermotion for summary judgment, and it noticed the penalty defense as an issue for trial in paragraph (4)(A) of its pretrial statement. In addition, the issues so raised were based upon the clear and unambiguous terms of the contracts. Ariz.R.Civ.P. 15(b) states: “If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.” This Court in referring to Rule 15(b) said: “Failure to formally amend the pleadings will not affect a judgment based upon competent evidence. If an amendment to conform the pleadings to the proof should have been made, an appellate court will presume that it was so made to support the judgment.” Electrical Advertising, Inc. v. Sakato, 94 Ariz. 68, 71, 381 P.2d 755, 756-57 (1963). The trial court did not err in receiving evidence relevant to the above mentioned affirmative defenses. The court reasonably could have determined that appellant was not prejudiced by the amendment and justice would be served by allowing the amendment. Appellant contends that the court erred in failing to direct a verdict in its favor and in failing to grant a new trial. The contracts contained a provision perpetually waiving the statute of limitations. The trial court made only one conclusion of law, holding that the contracts were void because of the provision perpetually waiving the statute of limitations. Appellant submits that because the lawsuit was filed well within the permissible limits of the statute of limitations, that the waiver provision was immaterial. We agree. Such a provision is unenforceable. However, we hold it does not void the contracts in these cases because suit was filed before the expiration of the period set forth in the statute of limitations, A.R.S. § 12-548. The trial court will be affirmed when it reaches the correct conclusion even if it does so for an incorrect reason. Certified Collectors, Inc. v. Lesnick, 116 Ariz. 601, 570 P.2d 769 (1977); Komarek v. Cole, 94 Ariz. 94, 381 P.2d 773 (1963). There are other cogent reasons for sustaining the judgment of the trial court in favor of appellees. This Court is not bound by conclusions of law reached by the trial court. Park Central Development Co. v. Roberts Dry Goods, Inc., 11 Ariz.App. 58, 461 P.2d 702 (1969); Owen v. Mecham, 9 Ariz.App. 529, 454 P.2d 577 (1969). Therefore, we may independently determine the validity of the contracts. One portion of the contracts that gives us concern is as follows: “It is understood and agreed that should we default in these payments for two successive months, Gary Outdoor Advertising shall have the right to discontinue service on the bulletins covered by this contract and sell them to other advertisers, and the rental for the remainder of the term covered by this contract shall at once become due and payable as liquidated damages, and deferred payments will bear interest at ten per cent per annum. The undersigned purchaser(s) hereby perpetually waive(s) the Statute of Limitations.” The above quoted provision eliminates the requirements of mitigation of damages inasmuch as it provides that the entire contractual amount must be paid in the event of default for two successive months. Said provision has no reasonable relation to actual damages — it is penal in nature. The case of Vincent v. Grayson, 30 Cal. App.3d 899, 106 Cal.Rptr. 733 (1973), is very similar to the ease at bar, as it deals with an outdoor billboard and the plaintiff prayed for the total unpaid balance of the contract as damages. The court held that when the plaintiff seeks the unpaid contract price in a suit for a total breach of the contract and fails to prove actual damages resulting from the total breach, the award of the unpaid contract price cannot stand as a matter of law. The court stated that an acceleration clause which provides for the full unpaid contract price without proof of actual damages would be unenforceable as a forfeiture. In the case at bar, the contract allows appellant to retake the advertising space, sell such space to other advertisers, and collect the entire unpaid rental provided for in the contracts from the defaulting party for the remainder of the term. Each contract covers a 36-month period. It is very clear that during this 36-month period appellant would have costs of maintenance and upkeep plus other overhead requirements in carrying out its part of the contracts as well as the potential for additional rent if a new tenant could be found (which indeed occurred). However, the contracts do not provide for any offsets in mitigation of damages, and appellant is relieved of all duty to mitigate damages. “The plaintiff seeks to recover as liquidated damages an amount greater than it would receive had there been no default. These payments were to be made monthly over a period of forty-one months. Under clause (4) of the contract 90 per cent, thereof becomes payable immediately upon breach. The present value of the monthly payments for that period of time, based on the legal rate of interest, would be less than 90 per cent, thereof. Plaintiff would therefore obtain more than the present value of the rentals of the thing leased, and be relieved of the expense and burden of maintenance which, by the testimony of its manager, is estimated at from 8 to 12 per cent, of the amount of rentals. “The amounts specified as liquidated damages in clause (4) of the contract, under the evidence and law, must be considered as a penalty or forfeiture. It is not reasonable.” Electrical Products Corporation v. Ziegler Drug Stores, 141 Or. 117, 125, 15 P.2d 1078, 1081 (1932). In Aztec Film Productions, Inc. v. Quinn, 116 Ariz. 468, 569 P.2d 1366 (App.1977), Division Two of the Court of Appeals stated the rule that when a contractual provision dictates a fixed sum for damages regardless of the actual harm that occurs, the provision may be construed as penal in nature. The court concluded: “It is well settled that in determining whether a particular clause calls for liquidated damages or for a penalty, the name given to the clause by the parties is not conclusive, and the controlling elements are the intention of the parties and the special circumstances of the case. Miller Cattle Co. v. Mattice, [38 Ariz. 180, 298 P. 640 (1931)]; Weatherford v. Adams, 31 Ariz. 187, 251 P. 453 (1926). “Under the foregoing rules, it is our opinion that the agreement between the parties provided for a penalty, rather than liquidated damages, and appellant therefore was entitled to recover only the actual damages proved to have resulted from the breach of the covenant not to compete.” Id. 116 Ariz. at 470, 569 P.2d at 1368. The term liquidated damages as used in the contracts in this case is a misnomer because the contracts actually provide for a penalty. The damages provision is unenforceable. This does not invalidate the entire contract because the general rule of law in such cases still permits the collection of actual damages. Miller Cattle Co. v. Mattice, 38 Ariz. 180, 298 P. 640 (1931); Aztec Film Productions, Inc., supra. However, in this case appellant failed to present proof as to the amount of actual damages. From the undisputed testimony we find: (1) during the 36 months of each contract appellant would have had maintenance costs, taxes, and insurance, etc. on the signs provided for in the contracts; (2) one of the contracts was entered into on the 1st day of July, 1977 and the other on the 8th day of August, 1977; appellees were in default in the monthly payments in January, 1978; (3) one of the signs was relet by appellant effective February 20, 1978; both signs were sold by appellant in August of 1978 for more than appellant thought they were worth; the reletting therefore occurred 28 months prior to the expiration of that con tract and the sale of the two signs occurred 22 to 23 months respectively prior to the expiration of the contract terms. Appellant did not present any evidence on which the court could base a finding of actual damages. Appellant based its claim on the provisions of the contract heretofore quoted providing for full payment of all rental called for therein for the full term of each contract. In the case of Owen v. Mecham, 9 Ariz.App. 529, 454 P.2d 577 (1969), the Court of Appeals held, “We are not bound, however, by the trial court’s conclusions of law and may draw our own legal conclusions from the undisputed facts.” Id. at 531, 454 P.2d at 579 (emphasis added). Because the undisputed facts reveal that appellant failed to prove actual damages, this Court may consider that defect in the proof, even though it was not mentioned by the trial court. Therefore, we conclude that the trial court did not err in failing to direct a verdict for appellant nor in failing to grant a new trial because an award in appellant’s favor would have been improper for failure of proof of actual damages. The judgment of the trial court is affirmed. GORDON, V. C. J., and FELDMAN, J., concur. NOTE: The Honorable MELVYN T. SHELLEY, Presiding Judge of the Superior Court of Navajo County was assigned to assist this Court in the disposition of this matter.

OPINION FROEB, Judge. This case involves the application of A.R.S. § 28-324 upon the liability of the owner of a rental car for the negligence of the renter. The opinion focuses specifically upon the meaning of the portion of A.R.S. § 28-324(B) which makes the rental car owner “jointly and severally” liable with the renter for damages caused by the negligence of the renter. We also deal with the procedure by which such liability was established in the present case. Glen Jackson (Jackson) rented a car from Trans Rent-A-Car, Inc. (Trans Rent) and on February 28, 1978, collided with a car driven by Geneva Mosley (Mosley). Two separate lawsuits were thereafter to follow. On June 12, 1978, Mosley filed a complaint against Jackson for damages arising out of negligence. Trans Rent was not named as a party defendant. Jackson did not respond and his default was taken. On March 8, 1979, a default judgment was entered in favor of Mosley against Jackson in the amount of $15,000, plus costs. The second lawsuit gives rise to the present appeal. In this suit, Mosley sued Trans Rent for damages arising out of the accident described earlier, basing her case upon the negligence of Jackson, the renter, and the legal effect of A.R.S. § 28-324(B). During the proceedings, Mosley was granted summary judgment for $15,000, plus costs, against Trans Rent. By reason of A.R.S. § 28-324(A), Trans Rent was required to carry liability insurance to insure the renter against liability arising from negligence in the operation of the rental car or, in the alternative, to furnish the Motor Vehicle Division of the Arizona Highway Department satisfactory proof of its ability to respond in damages. Trans Rent did not carry liability insurance but satisfied the requirements for the statutory alternative. A.R.S. § 28-324(B) provides as follows: The owner of a motor vehicle who rents it to another without a driver, otherwise than as a bona fide transaction involving sale of the vehicle, without having procured the required public liability insurance, shall be jointly and severally liable with the renter for damages caused by the negligence of the renter operating the motor vehicle. Trans Rent argues that the trial court erred in granting summary judgment against it based solely upon the prior judgment against Jackson. It acknowledges that A.R.S. § 28-324(B) provides for joint and several liability with the negligent driver, but it contends that it is entitled to defend against the asserted negligence in a suit in which it is named as a defendant. Trans Rent argues that the judgment against the driver Jackson in the prior case to which it was not a party is not conclusive as to any liability it may have based upon A.R.S. § 28-324(B). Mosley responds that (1) Trans Rent received a notice of the earlier suit and is estopped to deny it had an opportunity to defend, and (2) Trans Rent is bound by the earlier judgment because it is an insurer and an insurer need not be named a defendant in an action in order to be responsible for paying the judgment. We find Trans Rent is correct. We address first the basic question of whether Trans Rent can be bound to the first judgment in which it is not a party. Preliminarily we note that if Trans Rent had been covered by insurance, the insurance company would have to pay a judgment taken against the renter. See Sandoval v. Chenoweth, 102 Ariz. 241, 428 P.2d 98 (1967). However, Trans Rent would not necessarily be liable as the bailor of the car unless it negligently entrusted it to the renter. By choosing the statutory alternate to obtaining insurance, Trans Rent became liable “jointly and severally” for the negligence of the renter. A.R.S. § 28-324(B). Thus, the absence of liability insurance imposes upon Trans Rent a liability it may not have had with liability insurance. It is incorrect for Mosley to argue that A.R.S. § 28-324(B) makes Trans Rent “an insur er.” The statute makes Trans Rent directly liable for the negligence of the renter. Persons who are jointly and severally liable to another may be sued jointly or separately in satisfaction of the claim. A.R.S. § 44-141. A judgment against one does not terminate the claim against the other or others. A.R.S. § 44 — 141. Restatement, Second, Judgments, § 49. However, a person who is not a party to an action is not bound by the rules of res judicata (with certain exceptions not here applicable). Restatement, Second, Judgments, § 34(3). Therefore, in the present case, Mosley may not use the judgment offensively to impose liability upon Trans Rent. Mosley still has a claim against Trans Rent, but it must be established in the trial court, as with any other claim, in order to reduce it to judgment. In support of the summary judgment, Mosley relies upon American National Rent-A-Car v. McNally, 104 Ariz. 301, 451 P.2d 882 (1969). That case involved similar facts but different court proceedings. In McNally, the rental car driven by Bowman collided with the truck driven by McNally. McNally brought suit for damages against both Bowman and the rental car company, American National Rent-A-Car. The claim against Bowman was for negligent driving. The claim against American National was for negligent entrustment of the rental car to Bowman. During the proceedings, Bowman failed to appear for a deposition and his answer was stricken, followed by an entry of default judgment against him. McNally moved for and was granted judgment against American National on the basis of A.R.S. § 28-324. American National appealed on two grounds: (1) that the judgment by default against Bowman did not alone justify entry of judgment against American National on the basis of A.R.S. § 28-324 and (2) the judgment against American National could not be justified on a different theory and set of facts from those alleged in McNally’s complaint. The Arizona Supreme Court rejected both contentions and affirmed the judgment against American National. The important difference between this case and McNally is that here the car rental company was never made a party to the suit whereas it was a party in McNally. By reason of the trial court proceedings which occurred in McNally, the rental car company was in a position to contest the negligence of the renter but did not do so. The record in that case justified summary judgment imposition of liability against the rental car company on the ground that it was jointly and severally liable under A.R.S. § 28-324(B). Finally, the remaining issue is the assertion by Mosley that Trans Rent received notice of the claim by way of a copy of correspondence addressed to a third party and should therefore be bound by the judgment resulting in the suit against Jackson. Apart from the fact that there is no sufficient showing in the record of such notice, it would not, even if shown, subject Trans Rent to liability in a case to which it was not named and served as a party defendant. For the reasons stated, the summary judgment is reversed and the ease remanded to the trial court for further proceedings. OGG, P. J., and CORCORAN, J., concur.

OPINION BROOKS, Judge. The sole issue presented by this appeal is whether the trial court erred in granting the defendant-appellee’s motion for acquittal after the jury had reached guilty verdicts on all counts submitted. We reverse the judgment with directions to reinstate the guilty verdicts. The facts necessary for our determination are as follows. Leonard G. Paoletto, hereafter referred to as defendant, was charged by indictment with four class 2 dangerous nature felonies including kidnapping, armed robbery, sexual assault (oral contact) and sexual assault (sexual intercourse). The offenses allegedly occurred in the early morning hours of July 4, 1980. A first jury trial ended in a mistrial when a police witness inadvertently referred to the use of photographs of the defendant taken from police files. On retrial, the defense moved for a judgment of acquittal on four different occasions pursuant to Rule 20(b), Rules of Criminal Procedure, 17 A.R.S. The first motion, made after the state had rested its case, was denied by the trial court. The second motion, after the defense had rested its case, was also denied. A third motion for judgment of acquittal was made immediately after the jury rendered its guilty verdicts. This motion was also denied, with the trial judge commenting that there were time limits within which such motions could be made with supporting memoranda. A fourth and final motion for judgment of acquittal was timely made approximately one week after the jury verdict was entered. Eight days after its filing, the trial court granted the defense motion and entered judgment of acquittal. The defendant had prior convictions for attempted lewd and lascivious acts, Marico-pa County Cause Number CR-100081, and for possession of dangerous drugs, Cause Number CR-100964. He had received periods of probation on both offenses. The probation period had expired on CR-100081 and the state attempted to revoke his probation only on CR-100964. Two violations were alleged based on the events of July 4, 1980: that defendant had violated term one of his conditions of probation by committing the alleged criminal acts and that he had violated term twelve by possessing or controlling a firearm. The parties stipulated to the simultaneous hearing on the probation violation allegations by the court during the course of the jury trial on the new indictment. At the conclusion of all evidence in the jury trial, but prior to the jury’s returning the guilty verdicts, the trial judge announced that he had found that term one had not been violated, because he disbelieved the victim’s testimony. Subsequently, the court found the defendant in violation of probation as to term twelve only (possession of a firearm). On the same day, oral argument was held on defendant’s final motion for judgment of acquittal and motion for new trial. On the following day, the motion for judgment of acquittal was granted. The defendant was reinstated on probation at the disposition hearing, with jail time being imposed as an additional condition. Oral argument was also held on the state’s motion for rehearing as to the judgment of acquittal. The court then detailed its reasons for granting the motion for judgment of acquittal and denied the state’s motion for rehearing. On that date, the state filed a timely notice of appeal from the granting of the judgment of acquittal. A.R.S. § 13-4032(8). At trial, the alleged victim testified that she was having marital difficulties with her husband and had a date with one Michael Cox on the night of July 3, 1980. After leaving his home in the early morning hours of July 4th, she ran out of gas near an intersection in Scottsdale. She testified that she was about to cross the street to a public pay phone and call Mr. Cox when the defendant appeared in a vehicle, put a small handgun to her head and told her to get in his car. He told her that she should not think about screaming or running because he was very proficient with the gun. They drove to a residence where he obtained a gas can. They proceeded to a gas station in Scottsdale and with the gun still in his hand, defendant forced the victim to give him money for gas. He then told her not to run or scream because he was a good shot and would not hesitate to shoot her. Upon leaving the station, defendant drove to the Tempe Butte area in Tempe and stopped at the top of a hill along a dirt road. At that location defendant forced her to perform fellatio and later sexual intercourse. Throughout the entire incident he kept the gun in his hand. The victim further testified that although several people came near the car, she made no sound because she feared for her life. She told the defendant during this incident that she would not be able to go to the police because she could never explain to her husband why she was in that location, rather than with a girlfriend in Glendale as she had told him órigi-nally. Defendant took her back to her car, helped her get it started, showed her the clip from the gun with bullets in it and let her go. The victim noted the defendant’s license number as he drove away. Michael Cox testified that when he next saw the victim on July 4th, she was crying and shaking very badly and indicated to him that she had just been sexually assaulted. Cox told her to call the police and she returned home and did so. The first officer to observe her at the beginning of the investigation noticed that she was very upset, her eyes were red and watery and there were tear streaks on her face. She gave him information on the assault including the assailant’s license number. Another investigator testified that on November 19,1980, when the victim had to return to the scene with him to direct the taking of some photos for the trial, she became noticeably upset as they approached the general area. She began crying and for a time refused to go to the immediate area of the assault. After a few minutes she calmed down and did direct the taking of. the photos. The father of defendant testified that on the night in question he heard someone come into the house, and later found doors and a side gate of his residence standing open and unlocked. He noticed that the gas can was missing from where it was normally kept. The defendant also testified. He admitted having sexual relations at the location in question but claimed that they were consensual. He stated that the gun came into view at one point for a brief moment when the car came to an abrupt halt and it slid forward from underneath the front seat. He indicated that he never showed the gun to the victim and that their sexual activities occurred after he had stopped to help her. As indicated previously, the trial court set forth on the record its reasons for granting the motion for judgment of acquittal and for denying the state’s motion for reconsideration. The court made the following comments: It was pursuant to the State’s stipulation with the defense that this Court consider the testimony at the trial on the probation violation pending before this Court. The Court thus became legally obligated to be a finder of fact, and thereby necessarily determine the credibility of the witnesses. It appears from the State’s position that the State has and is requesting that the Court abdicate that duty legally imposed by the State’s stipulation. Of course this Court cannot abdicate any legal responsibility imposed upon this Court. Since the Court was obligated to be a fact finder and a judge of the credibility of witnesses, at the end of the trial the Court was entitled to take some time after the evidence had been completed to consider the factual determinations which this Court was obligated to make, just as the jury was entitled to take some time for their determinations. It was a somewhat unusual situation in that both were determining their facts from the same evidence presented. The court then noted the following portions of the victim’s testimony which supported his finding that her testimony was not believable: the defendant was concerned about getting gas for her car; the victim did not attempt to escape while the defendant picked up a gas container and filled it at a gas station; she did not attempt to alert others of her situation; the defendant readily admitted to the police that he had been with the victim and that they had engaged in sexual acts which he termed consensual; and that the defendant testified that the victim told him about her marital problems while the victim had never testified that she had told him of those problems. The court then concluded as follows: Based on those determinations and the Court’s observations of this victim during her testimony, the Court determined that there was not credible evidence to believe the defendant had committed the alleged offenses. * * * * * * Again, since the State required this Court to become a finder of fact and therefore to determine the credibility of witnesses, this Court having fulfilled that obligation and set forth its reasons, some of which have been repeated here today, it is ordered denying the motion for reconsideration. Our review of the record discloses that the trial judge was under the impression that the consolidation of the probation violation hearing with the jury trial on the substantive charges made the trial court the finder of fact in both actions. The record clearly establishes that the trial judge’s decision to grant a judgment of acquittal was based on an evaluation of the credibility of the two principal witnesses, and that he reached different factual conclusions than did the jury. Rule 20, Arizona Rules of Criminal Procedure, 17 A.R.S., provides as follows: RULE 20. JUDGMENT OF ACQUITTAL a. Before Verdict. On motion of a defendant or on its own initiative, the court shall enter a judgment of acquittal of one or more offenses charged in an indictment, information or complaint after the evidence on either side is closed, if there is no substantial evidence to warrant a conviction. The court’s decision on a defendant’s motion shall not be reserved, but shall be made with all possible speed. b. After Verdict. A motion for judgment of acquittal made before verdict may be renewed by a defendant within 10 days after the verdict was returned. (Emphasis supplied.) Thus, the trial court has no duty to order an acquittal where there is substantial evidence that a defendant has committed the crime charged, and a directed verdict should not be granted if the evidence is such that reasonable minds may differ on the inferences to be drawn therefrom. State v. Mosely, 119 Ariz. 393, 581 P.2d 238 (1978). “Substantial evidence” is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt. State v. Jones, 125 Ariz. 417, 610 P.2d 51 (1980). In a jury trial, the credibility of witnesses and weight to be given their testimony are to be determined by the jury and not by the judge. State v. Hickle, 129 Ariz. 330, 631 P.2d 112 (1981); State v. Pieck, 111 Ariz. 318, 529 P.2d 217 (1974). We find that reasonable minds could differ on the inferences to be drawn from the testimony at trial and that substantial evidence existed from which reasonable persons could conclude that defendant was guilty beyond a reasonable doubt. Accordingly, we find that the trial court erred in invading the province of the jury by granting the defendant’s motion for acquittal based on his belief that the victim’s testimony was not credible. We believe that our decision is further supported by State ex rel. Hyder v. Superior Court, 128 Ariz. 216, 624 P.2d 1264 (1981). In that case, our Supreme Court held that where a trial court denies a motion for acquittal before verdict under Rule 20(a), Rules of Criminal Procedure, 17 A.R.S., the court may not properly grant a motion for acquittal after a verdict of guilty absent a change in position on prior evidentiary rulings. The court stated: To find that the evidence was sufficient before the jury got the case, but not after, can be justified only on the basis of a mistake of law on the part of the court and not fact on the part of the jury. 128 Ariz. at 224, 624 P.2d at 1272. In the case before us the trial judge has clearly set forth his reasons for setting aside the jury verdict of guilt. The reasons are all based on factual disagreements with the jury as to the credibility of the victim and the defendant, as opposed to a previous mistake of law in failing to grant the Rule 20 motions prior to verdict. This is not proper. Defendant contends that the distinguishing feature in this case, as opposed to State ex rel. Hyder v. Superior Court, supra, is that defendant’s probation violation hearing was being simultaneously conducted in which the judge was the trier of fact. Indeed, the trial judge’s comments show that he himself considered this to be a key element in his decision to overrule the verdicts of the jury in order that the result might coincide with his fact-finding on the alleged probation violation. We know of no authority, nor has any been cited, which would suggest that by consolidating a probation violation hearing with a jury trial on the substantive charges, the jury’s verdict is in some way rendered advisory. Our review of the record discloses that the trial judge was correct when he repeatedly denied defendant’s motions for a directed verdict of acquittal prior to the jury returning their verdicts of guilty on all counts. There was clearly substantial evidence of guilt which would only be rendered unsubstantial if one chose to disbelieve the alleged victim’s testimony. This was the prerogative of the jury, not the trial judge. The jury obviously chose tó believe the victim and rendered their verdicts accordingly. Rule 20(a) does not permit the trial judge to set aside a judgment of guilt simply because he may disagree with the jury’s fact-finding. State ex rel. Hyder v. Superior Court, supra. Accordingly, we find that the trial judge abused his discretion by vacating the jury verdict of guilt. One other point must be addressed, which, although not raised by the parties before this court, was briefly alluded to by the trial court in its narration of the reasons for originally granting the motion for judgment of acquittal. It is arguable that the trial court’s finding of no probation violation prior to the jury verdict of guilt, based on the same evidence adduced at the same proceeding, might have collateral es-toppel or res judicata effect so as to bar the judgment on a jury verdict. However, since our supreme court’s decision in State v. Williams, 131 Ariz. 211, 639 P.2d 1036 (1982), it is clear that a trial court’s decision on a probation violation proceeding cannot have such collateral estoppel or res judicata effect. The judgment of the trial court is reversed and the case is remanded with directions to reinstate the jury verdicts of guilt and for proceedings, including sentencing, not inconsistent with this opinion. JACOBSON and GRANT, JJ., concur. . The particular subsection under which the state has brought this appeal was added by Laws 1980, Ch. 50, § 6.

OPINION HOWARD, Chief Judge. The determinative issue here is whether the trial judge abused his discretion in not setting a hearing for appellant’s petition for change of custody. A.R.S. § 25-339 states: “A party seeking a modification of a custody order shall submit an affidavit or verified petition setting forth detailed facts supporting the requested modification and shall give notice, together with a copy of his affidavit, or verified petition to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motions unless it finds that adequate cause for hearing the motion is established by the pleadings, in which case it shall set a date for hearing on why the requested modification should not be granted.” (Emphasis added) Appellant’s verified petition stated: “Since the dissolution of the marriage, the Petitioner has failed to provide a proper environment and home life for the children. At the present time, the children are living with their mother in a trailer that is located behind a truck stop, next to the freeway where the traffic makes it dangerous for children to be and where there are no playmates of suitable age for the children. That although the Respondent is paying Three Hundred Dollars ($300.00) per month as and for child support, the children are not properly clothed and their clothing is torn and dirty. The children’s mother has not maintained steady employment and the amounts that are paid as and for child support are spent not only on the support of the children, but upon the support of the Petitioner. Furthermore, the Petitioner indicates that she will be moving from the State of Arizona to take up residence in the State of Minnesota. It is submitted that this is not in the best interest and welfare of the children as most of the family resides in the State of Arizona, including both maternal and paternal grandparents. At the present time, the Respondent has the children from Friday afternoon until Sunday night. That the children look forward to being with Respondent on these weekends and that the Respondent is able and willing and capable of providing a steady home environment for the children.” Appellee filed a verified response to the petition for modification. In this petition she stated that she has remarried and she and her present husband have been planning to move to Bagley, Minnesota, where her present husband owns a 160-acre farm; that they plan to take the children with them and this fact had been known for many months to the father; that she and her husband have purchased a three-bedroom mobile home which they plan to move to the farm; that she and appellant had made arrangements for the custody of the children during the summer months and that appellant had agreed to it; that appellant had paid the ordered child support only since January 1981 and on occasion when the children would beg him for something; that they were ready to leave for Minnesota when the papers were served on them; that the children are properly dressed and that their clothing is not tom and dirty; that she has not been steadily working because her husband has been supporting her; that the maternal grandparents are planning to leave Arizona and probably move to Minnesota; and that if the custody would be awarded to the father, the children would live in a home where the father and the “live-in girlfriend” do not get home until 5 p. m. In conclusion, appellee stated that the only reason the father was requesting the change of custody is to prevent her from moving to Minnesota and he had made no effort to do anything about a change of custody until he was informed that appellee had chosen a definite date to leave Tucson. After filing her response, appellee moved the court to accelerate its review of the file. Appellant also filed a pleading asking the court to shorten the time for hearing the matter. The trial court reviewed the pleadings, as required by A.R.S. § 25-339, and concluded that no adequate cause had been shown for hearing the matter. It therefore denied the petition for modification. Appellant first contends that the trial court erred in denying his petition without giving him an opportunity to reply to appellee’s allegations contained in her verified response. We do not agree. The procedure which governs the pleading here is set forth in A.R.S. § 25-339. The statute does not provide for a reply to the opposing affidavit of the respondent. Appellant next contends that the trial court erred in denying him a hearing. We do not agree. A.R.S. § 25-339 states that the court shall “... deny the motion unless it finds that adequate cause for hearing the motion is established by the pleadings .... ” There is necessarily wide discretion resting with the trial court in its determination as to whether or not there is adequate cause for hearing. Reviewing the allegations of appellant’s petition, we are unable to conclude that no reasonable judge would have denied the petition without a hearing. The trial court, therefore, did not abuse its discretion or act in an arbitrary or capricious manner. Appellant also contends the trial court erred in deciding the issue prior to the expiration of the time periods set forth in Rules 8.4(f)(4) and (5) of Uniform Rules of Practice of the Superior Court, Pima County. We do not agree. Rule 8.4(f)(4) does not even apply to appellant. It gave appellee fifteen days to file controverting affidavits. Appellee did so prior to the fifteen-day period. Rule 8.4(fX5) provides that five days after the time permitted for the filing of controverting affidavits the court administrator shall bring the matter to the attention of the presiding judge of the domestic relations division or his designee. Here the file was reviewed by the trial judge two days after appellee filed her verified response. The purpose of the five-day period set forth in the rule is simply to place a time limit on the period within which it is to be referred to the trial court. It is not for the purpose, as suggested by appellant, of giving time to the petitioner to file a reply to any controverting affidavits. Appellant also argues that shortening of the five-day period deprived him of notice which would have given him an opportunity to file a notice of change of judge under Rule 42(f), Arizona Rules of Civil Procedure, 16 A.R.S. This contention is without merit. Rule 8.4(fX5) does not contain any provision requiring the court administrator to notify the parties that it has brought the matter to the attention of the court. Absent such a requirement, appellant cannot complain that he did not get notice. Affirmed. HATHAWAY and BIRDSALL, JJ., concur.

HOLOHAN, Chief Justice. Appellant, Ernest Floyd Hicks, was convicted after trial by a jury of first degree murder. Appellant was sentenced to life imprisonment. This court has jurisdiction of this appeal pursuant to A.R.S. § 13 — 4031. We affirm. The essential facts are that the appellant and the victim had both been drinking at the Club 37, a bar in Tucson. Both men were regular patrons of the tavern. At about 11:00 P.M. appellant left the bar and went outside. The bartender, seeing that appellant had left his coat, called after him. Appellant said he would return shortly for his coat. A few minutes later, the victim left the bar. Mrs. Hatfield and Mrs. Cox, also bar patrons, left a few minutes after the victim’s departure. As the women reached their car, they heard the sound of a shot and watched a man walk from the victim’s dump truck carrying a long-barreled gun to appellant’s car. The man put the gun in the open trunk, closed it and drove away. The women alerted the occupants of the bar who found the victim in his truck, slumped forward in the driver’s seat with a gunshot wound in the back of his head behind his left ear. The police were notified and appellant was arrested several minutes later at the nearby trailer of a friend, Cathy Barrow. Appellant raises six issues on appeal: (1) Did the police employ an unlawful procedure by producing appellant for identification at a one-man show-up? (2) Should evidence of the victim’s good character have been excluded? (3) Did the introduction into evidence of two photographs of the victim constitute error? (4) Did a witness’ reference to appellant’s “known fingerprints” amount to reversible error? (5) Was appellant denied a fair trial by the preclusion of expert testimony concerning alcoholic black-outs? (6) Was appellant denied his constitutional rights by the introduction of a statement he made while intoxicated? SHOW-UP IDENTIFICATION Following his arrest, appellant was returned to the parking lot of Club 37. The two witnesses were brought individually to the squad car where appellant was being held. Police officers asked the witnesses to view the appellant to see whether he was the man they saw about an hour earlier walking from the victim’s truck with a gun. One witness positively identified appellant as the man in the bar and the man with the gun in the parking lot. The other witness was unsure if he was the same man seen in the parking lot. Appellant challenged the show-up procedure in a pretrial motion below and now raises the issue on appeal. The trial court denied the motion to suppress identification on the basis that no improper police conduct had been shown. Recent cases have consistently held that a one-man show-up at the scene of the crime or near the time of the criminal act is permissible police procedure. State v. Nelson, 129 Ariz. 582, 633 P.2d 391 (1981); State v. Kelly, 123 Ariz. 24, 597 P.2d 177 (1979). Although suggestiveness is inherent in a one-man show-up, a show-up identi fication is admissible if the identification is reliable. State v. Tresize, 127 Ariz. 571, 623 P.2d 1 (1980); State v. Trujillo, 120 Ariz. 527, 587 P.2d 246 (1978). The factors used to determine whether an identification is reliable were adopted from Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). State v. Tresize, supra; State v. Trujillo, supra. They are: (1) the opportunity the witness had to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description; (4) the level of certainty demonstrated by the witness at the identification; and (5) the length of time between the crime and the confrontation. The identifying witness had ample opportunity to view the man with the gun as he walked from the victim’s truck, placed the shotgun in the trunk of a car and looked around before getting in the car. The parking lot was well lit. The witness stated that her attention had been drawn to the man by the sound of the shot, and she was intent upon watching him leave. The witness testified that she positively recognized the man with the gun to be the same man she had seen inside the Club 37 minutes before. She was positive in her identification of appellant in the squad car. The show-up confrontation occurred only about an hour after the crime and in the same place that the observations were originally made. In the totality of the circumstances, we find that the identification was reliable. There was no error in the trial court’s refusal to suppress the evidence obtained at the show-up identification shortly after the murder. EVIDENCE OF VICTIM’S CHARACTER The appellant claims that there was error in the admission of evidence showing the peacefulness of the victim. The state argues that objection to the evidence was waived and the defense raised' the issue initially. Defense counsel did remark to the jury in his opening statement that: Cathy Barrow knew [the victim], had had problems with him in the past. He was a loudmouth. She characterized him as obnoxious, a cutting-type person. The prosecution apparently sought to anticipate a defense of self-defense. The prosecutor asked four witnesses, all patrons or employees of the Club 37, whether the witnesses had ever seen the victim quarrel or engage in physical violence with anyone at the bar. Defense counsel allowed all but the third inquiry to pass without objection, and his relevancy objection to the third inquiry was overruled. All of the witnesses testified that they had never seen the victim become physically violent, and only one witness had seen him argue with people in the bar. The defense counsel’s objection to the testimony of the third witness concerning the character of the victim should have been sustained. Rule 404(a), Rules of Evidence, 17A A.R.S. sets forth the limited circumstances when the character of the victim is relevant. It provides in part: Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor[.] In the instant case, the defense had introduced no evidence of the victim’s character for the state to rebut. Whatever the defense counsel had in mind by the reference to the victim’s nature was never developed in the defense case. We do not believe this remark opened the door for the state to present evidence on the issue. The defense did not follow up with any evidence tending to support the remark in the opening statement. Self-defense was not raised at trial and there was no evidence that the victim was the first aggressor. We therefore hold that it was error to permit the prosecution to present evidence of the victim’s peaceful character. The state urged that the defense waived its objection because on cross-examination, defense counsel asked the fourth witness whether she had ever seen the victim or the defendant fight or argue with anyone at the bar. The state contends that this question waived the previous objection. We disagree. Once an objection has been made and overruled, defense counsel must attempt as best he can to minimize any harm that might flow from the erroneous admission of unfavorable evidence. To do so by asking a question concerning the objected-to evidence does not thereby waive the objection. See State v. Noble, 126 Ariz. 41, 612 P.2d 497 (1980); State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980). Although the testimony was irrelevant and should have been excluded pursuant to rule 404(a), we do not believe that any prejudice to appellant resulted from admission of the testimony. The first two witnesses who testified on the issue did so without objection, so the evidence came before the jury in the first instance without defense objection. We do not believe that the additional evidence from the later witnesses caused any prejudice. In fact, defense counsel used the questioned evidence to appellant’s advantage during closing argument. The state’s argument, on the other hand, made no reference to the testimony. Furthermore, the testimony was not such that it was likely to evoke sympathy from the jurors. Appellant challenges, on the same ground, the admission, over objection, of testimony by a homicide detective on redirect examination that he “found no evidence that anyone had a serious beef or anything with [the victim].” This statement followed vigorous cross-examination of the detective which elicited that no motive on the part of the appellant could be found. The prime thrust of appellant’s defense was that somebody else killed the victim. Under these circumstances, the state could offer evidence in rebuttal to show that no motive for anyone else to kill the victim was uncovered. See State v. Hawkins, 260 N.W.2d 150 (Minn.1977); Kelly v. Commonwealth, 259 Ky. 770, 83 S.W.2d 489 (1935). PHOTOGRAPHS Appellant asserts that two color photographs of the victim’s injury were improperly admitted in evidence because they were so gruesome as to inflame the passions of the jury. The first picture showed the victim as he was found in his truck, slumped forward with the gunshot wound behind his ear. The second picture, taken during the autopsy, is a close-up of the entry wound with a ruler laid next to it to show the size and shape. Neither picture is particularly bloody nor gruesome, and in our opinion, they were not so inflammatory as to prejudice the average person. The trial court has broad discretion to admit or exclude arguably gruesome photographs. State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981). Inflammatory photographs that have probative value are admissible, State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), as long as the probative value is not substantially outweighed by the potential to prejudice the jury. State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981). Admission is proper where the photograph aids the jury in understanding the testimony or shows the location of the mortal wounds. State v. Schad, 129 Ariz. 557, 633 P.2d 366 (1981). Here, the pictures were relevant to the issue of premeditation. They illustrated how the victim was shot from behind at close range while seated normally in his truck. The pictures were helpful to the jury in understanding expert testimony about the distance of the barrel of the shotgun from the victim’s head, the angle of entry, and the peculiar configuration of' the wound. The trial court expressly found that the probative value of these two photographs outweighed any possible prejudice. We note that the trial court excluded nu merous other photographs it found to be cumulative or more likely to arouse the passions of the jury. The trial court exercised its discretion in a sound and proper manner. REFERENCE TO KNOWN FINGERPRINTS During defense counsel’s cross-examination of the police identification technician the following exchange took place: Q. You found this particular print in your dusting? A. Yes, sir. Q. And you compared it, I think, to the fingerprints that you obtained from Mr. Hicks after he had been arrested; is that correct? A. No, sir. I believe it was just known prints. Q. Okay. So you compared it and you found that the print on the truck of [the victim’s] vehicle [s/c] did not match the print that you had of Mr. Hicks; is that right? [DEFENSE COUNSEL]: I would like to reserve a legal matter, if I may, for later. THE COURT: Certainly. Defense counsel moved for a mistrial on the ground that the response he elicited from the officer allowed the jury to infer that Hicks had a criminal record. The trial court denied the motion reasoning that there are many common contexts other than criminality in which a person’s fingerprints may be recorded, such as military service or employment matters. Hicks asserts that the trial court’s ruling was reversible error. We cannot agree. Although the general rule is that evidence which shows that the defendant may have committed other crimes is inadmissible, State v. Thompson, 126 Ariz. 3, 612 P.2d 54 (1980), we do not find the testimony that the latent prints were compared to appellant’s “known prints”, without more, to be indicative of a prior criminal record. The record does not disclose whether the “known prints” were in fact obtained as the result of an arrest. Appellant would have us equate evidence of “known prints” with “mug shot” evidence which we have previously held to be error because of the prejudicial effect it could have on the jury. State v. Kelly, 111 Ariz. 181, 526 P.2d 720 (1974), cert. denied, 420 U.S. 935, 95 S.Ct. 1143, 43 L.Ed.2d 411 (1975); State v. Cross, 123 Ariz. 494, 600 P.2d 1126 (App.1979). This we refuse to do because of the fundamental difference between “mug shots” and “known prints”. The term “mug shot” is synonymous with post-arrest picture, whereas fingerprints, as the trial judge observed, may be “known” for a number of reasons not associated with criminality. Here, the jury was made aware that appellant had been in the Air Force. No mention was made of any prior arrest except that appellant himself told the jury that he thought he had been arrested for “another D.W.I.” It is reasonable to assume that the “known prints” were not obtained because of any prior criminal conduct on the part of appellant other than that he disclosed himself. Therefore we find no error. See State v. McGuire, 113 Ariz. 372, 555 P.2d 330 (1976); State v. Finn, 111 Ariz. 271, 528 P.2d 615 (1974). Furthermore, the testimony was responsive and initiated by defense counsel’s questioning; thus any error, had there been any, might well be considered invited and not grounds for reversal. State v. Lawrence, 123 Ariz. 301, 599 P.2d 754 (1979); State v. Stoneman, 115 Ariz. 594, 566 P.2d 1340 (1977). EXPERT TESTIMONY Appellant challenges the ruling of the trial court which precluded the defense from offering psychiatric testimony concerning the effect of alcohol on the defendant’s state of mind. The legislature has established the parameters for the use of evidence of a defendant’s voluntary intoxication. A.R.S. § 13-503 provides: No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act. We have previously held that the effect of alcohol intoxication is an area within the common knowledge and experience of the jury, and therefore, no expert testimony is needed to assist the trier of fact. State v. Laffoon, 125 Ariz. 484, 610 P.2d 1045 (1980); State v. Means, 115 Ariz. 502, 566 P.2d 303 (1977). Thus, it is proper for a trial court to preclude psychiatric testimony relating to the effect of alcohol upon the ability to form specific intent. Id. Appellant would have us find that Laf-foon does not control where the intoxication is related to chronic alcoholism and there is evidence that the accused may have suffered a black-out at the time of the crime. Instead, appellant asserts that susceptibility to alcoholic black-outs is a character trait making relevant psychiatric testimony admissible under State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981). Christensen allows expert testimony only where it assists the trier of fact to recognize a character trait of the particular defendant. Such testimony may only be used as evidence that the defendant possesses such a trait and it must be left to the jury to determine whether and how the trait affected the defendant’s specific intent at the time of the alleged crime. In the instant case, expert testimony would add nothing to the existing evidence that appellant might have had an alcoholic black-out at the time of the shooting. Appellant had a blood alcohol level of .26 percent three or four hours after the shooting. Witnesses testified to having seen him drink large amounts of alcohol on the day and night in question. He testified that he had been a chronic alcoholic for many years. No expert is needed to establish that appellant may have had an alcoholic black-out on the night of the shooting. Indeed, the psychiatrists themselves base their opinions that a black-out is possible on appellant’s professed inability to remember anything of the night. Our examination of the psychiatrists’ reports reveals only that the experts concluded that appellant’s ability to form specific intent may have been impaired. A.R.S. § 13-503 does as much. None of the psychiatrists stated that alcoholic black-outs preclude premeditation of an intent to kill. Given the statutory directive of A.R.S. § 13-503, all that remains is a fact question for the jury: was appellant’s mental state less than intentional, or were his acts less than premeditated at the time of the shooting, by reason of his severe intoxication. The jury must decide this question in the same way a psychiatrist would have to decide it; that is, by looking at the facts surrounding the shooting. The record contains ample evidence from which the jury, which was properly instructed, could have found that appellant acted with premeditation and with the intent to kill notwithstanding his inability to remember so doing. We hold that State v. Laffoon, supra, is controlling and the trial court properly denied appellant’s very general request for psychiatric proof on the issue of alcoholic black-outs as it relates to specific intent under Arizona law. Appellant claims that federal constitutional guarantees mandate admission of psychiatric testimony which negates specific intent. That argument was considered and rejected in Wahrlich v. State of Arizona, 479 F.2d 1137 (9th Cir. 1973), cert. denied, 414 U.S. 1011, 94 S.Ct. 375, 38 L.Ed.2d 249 (1973) where the court stated: Among the considerations that we have taken into account in refusing to accept Wahrlich’s argument are these: (1) in the interest of harmonious federal-state relations, federal courts should not unnecessarily interfere with the state’s trial of criminal cases; (2) courts should be extremely reluctant to constitutionalize rules of evidence; (3) the state of the developing art of psychiatry is such that we are not convinced that psychiatric testimony directed to a retrospective analysis of the subtle gradations of specific intent has enough probative value to compel its admission. Id. at 1138. The Wahrlich court also deemed the effect of intoxicants upon state of mind to be part of common human experience which factfinders can understand and apply without expert assistance. APPELLANT’S STATEMENT Prior to trial appellant filed a motion to suppress the statement he made to police officers on the night of the shooting. A voluntariness hearing was held in which the trial court heard the evidence concerning the taking of appellant’s statement. Included in the evidence presented to the trial court were two tape cassettes used to record the interrogation between the defendant and the police. The tapes were played in their entirety at the hearing so the trial judge could hear what actually occurred at the interview with the defendant. After hearing the evidence, the trial court denied the motion to suppress, expressly finding that in spite of appellant’s intoxication, his statement was voluntary and he knowingly and intelligently waived his constitutional rights. Appellant alleges error on two grounds. First, he claims that his intoxication rendered him incompetent to validly waive his constitutional rights. Secondly, appellant contends that the police interrogation involved violated the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is a denial of due process to admit an incriminatory statement into evidence that is involuntary by reason of extreme intoxication. State v. Porter, 122 Ariz. 453, 595 P.2d 998 (1979). Proof that the accused was intoxicated at the time he made the statement will not, without more, prevent the admission of his statement. Before such a statement will be held to be inadmissible, it must be shown that the accused was intoxicated to such an extent that he was unable to understand the meaning of his comments. State v. Laffoon, 125 Ariz. 484, 610 P.2d 1045 (1980); State v. Porter, supra; State v. Clark, 102 Ariz. 550, 434 P.2d 636 (1967). Of course, the jury may consider intoxication in determining whether the statements are true or false. State v. Laffoon, supra. Appellant had a .26 percent blood alcohol level just after the interrogation. The rather high level of alcohol in his system is not, by itself, determinative. We have previously held that certain confessions made while the accused had a high blood alcohol level were admissible. State v. Magby, 113 Ariz. 345, 554 P.2d 1272 (1976) (.26 percent blood alcohol); State v. Clark, supra (.38 percent blood alcohol). Blood alcohol level is just one factor to consider in the totality of the circumstances. Appellant had suffered from chronic alcoholism for over 20 years. The record before us contains the testimony of an expert witness to the effect that an alcoholic develops “a greater capacity ... to tolerate greater and greater amounts” of alcohol. Therefore, we need not assume that a blood alcohol level of .26 percent would affect appellant the same way it would a less practiced drinker. In the course of the interrogation, appellant expressed his perceptions about his own state of intoxication. That portion of the statement reads: Q. How intoxicated are you tonight? A. Not that God damn intoxicated. Q. Could you tell me what do you mean by that? Just clarify it to me what you mean by that statement? A. I know I’m talking to you but my hands are sticky. You got a tape recorder here. You got a white shirt with blue stripes. You got a blue jacket with maroon lining. He have a police uniform. There’s a circle here, there’s a box here. A light switch over there. You wanta know anymore? Q. So what you’re saying is you’re pretty sober? A. I think I am, yes. Q. You think you’re sober enough to drive? A. I know I’m sober enough to drive. Q. So right now if you were out driving around the car you wouldn’t feel like you were drunk driving? A. No, I won’t say that either. What I’m saying ... is that without you people around, I can get home. But if I got stopped, yes, I think I would be stopped for drunken driving. But I live close enough to the 37 Club, that normally I don’t worry about it. Q. OK, would you ... So in other words you consider yourself pretty much in control of your coordination? A. Yeah, I ... I ... I consider myself pretty much in control of my facilities [sic]. The above exchange is indicative of appellant’s ability to understand his statements. He was able to draw a distinction between what the police consider to be “drunk driving” and what he considers to be “drunk driving.” He was aware of his surroundings, cooperative, and responsive to questioning in an appropriate manner. We note that appellant had some difficulty answering certain questions; for example, he could not remember his address and at one point he confused his name with that of the victim. Nonetheless, appellant’s understanding of the meaning as well as the importance of his answers is illustrated by a consideration of the matters presented in his complete statement. A trial court’s ruling on a motion to suppress will not be disturbed on appeal absent clear and manifest error. State v. Smith, 123 Ariz. 231, 599 P.2d 187 (1979). Considering the totality of the facts and circumstances, we find no such error. Appellant next contends that his statement should have been suppressed as taken in violation of his so-called Miranda rights. In particular, appellant claims that his right to remain silent was not honored because the interrogation continued after he had expressed a desire to invoke his fifth amendment right. The complained-of portion of the statement is as follows: Q. Now weve got some people that saw it happen, OK? A. I’m gonna tell you something and I’m gonna tell you one time and one time only. I’m a small son-of-a-bitch. But I don’t shoot nobody. You either accept it or you reject it. And that’s that, I ain’t gonna go no farther. I ain’t saying a fucking word from now on. It’s as simple as that. I don’t have to shoot nobody. I got too God damn many friends. I got too many friends that beat the ... I got friends that beat JERRY’S [the victim’s] ass in a minute. I don’t have to worry about JERRY. I don’t like him. But I don’t dislike him enough to kill him. Now, you can accept this or you can reject it. And I have no scruples about it. You can believe me or you can disbelieve me, it’s up . . . it’s up to you. And personally I could care less. Now it’s up to you guys. I have no further words to say. No ... I won’t even say that. Now you want ... you ... you wanta nail me? Go ahead, it’s cool. I wanna go . . . I have no reason to kill nobody. If I got a reason, you’ll never find out about it, I’ll tell you that right now. This I can guarantee. If I have reason to killing anybody, you’ll never find out. Now, you wanta talk to me? Q. I’ll talk to you, you said you don’t wanta talk to me anymore. A. Or you want .. . you want . . . you wanta believe me or you wanta nail me? Q. I want to talk to you. A. No, you wanta nail me. Q. It’s up to you. You don’t have to talk to me. A. What you wanta do is you wanta nail me, right? Q. I want to get your side of the story and find out what your involvement is in this situation? A. I don’t like JERRY. I ... I ... I’ll tell you the truth. I don’t like this dude. Him and me’s coming in so God damn .. . But that don’t mean I’m gonna kill him. Q. Do you want to keep talking about this or not? A. What did I kill him with? Q. I’m asking you a question, do you want to keep talking about it or not? A. I'm gonna tell you something. I own a 32-20. It’s an antique. I hang on to this God damn gun because it’s worth a thousand bucks in the street. It’s worth a thousand bucks. Now if I shot him with that ... if he got killed with a 32-20, well, apparently I did it. But if he got killed with anything else, I didn’t do it. But I own a 32-20. It’s not registered which I don’t know if they have to be registered or ... if it’s a state law or not. But I own a 32-20. It’s an antique. That’s the only God damn reason I ain’t hanging on to that son-of-a-bitch is because I was offered a thousand bucks the othe[r] day for that God damn 32-20. And I’m waiting for ... for 1500, I’m going 1500 and then I’ll take it. Other than that, you can kiss my ass when it comes to that God damn gun. Now you wanta go .. go and confiscate my gun? Q. Where is it? A. I ain’t saying shit. Q. Do you want me to ask you some more questions or you want me not to ask you anymore questions? A. Go ahead, ax [sic] me more questions. It is generally true that if an individual undergoing custodial interrogation indicates that he wishes to remain silent, the interrogation must cease. Miranda v. Arizona, supra. Once an individual has invoked his right to silence, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The admissibility of statements obtained after the individual in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The record shows that the interrogating detective did scrupulously honor appellant’s right to remain silent. The detective merely attempted to ascertain whether appellant intended to invoke his right to remain silent. In so doing the interrogator made it clear that it was entirely appellant’s choice whether he wished to continue and that he had no obligation to speak. Appellant’s conduct shows no intention to invoke his right to remain silent. His incessant rambling in the face of the detective’s express willingness to terminate the interrogation shows that appellant retained the right to cut off questioning, and merely chose not to exercise it. The questioning that follows the excerpted portion of appellant’s statement was initiated by appellant himself. This is not a case where the police failed to honor a decision of a person to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in efforts to force him to change his mind. Rather, this is a case where appellant did not clearly invoke his right to remain silent, but instead himself initiated further interrogation. Miranda does not require the police to force an accused to remain silent or to turn a deaf ear toward an accused who insists upon talking. We hold that the trial court did not err in admitting appellant’s statement. The judgment of conviction and sentence is affirmed. GORDON, V. C. J„ and HAYS, CAMERON and FELDMAN, JJ., concur.

ORIGINAL PROCEEDING FOR DISCIPLINARY ACTION HOLOHAN, Chief Justice. This is an original proceeding for disciplinary action against a member of the State Bar of Arizona, Respondent Pete Manuel Rubi. The proceeding was initiated before the local Administrative Committee of the State Bar. Following an evidentiary hearing, the committee made findings of fact and conclusions (“findings”), and recommended that Respondent be suspended from the practice of law for 10 years and one day. Subsequently, the matter was reviewed by the Disciplinary Board of the State Bar. The Board rejected certain findings of fact and one conclusion as not supported by clear and convincing evidence and recommended a reduced suspension period of one year. This court heard the matter pursuant to Rule 36(d), Rules of the Supreme Court, 17A A.R.S. We are guided by certain well-established principles in considering a disciplinary proceeding against an attorney for professional misconduct. Evidence of misconduct must be clear and convincing to justify disciplinary action, although it need not be beyond a reasonable doubt. In re Swartz, 129 Ariz. 288, 630 P.2d 1020 (1981). The recommendations and findings of fact of the local Administrative Committee and the Disciplinary Board are entitled to serious consideration, In re Lurie, 113 Ariz. 95, 546 P.2d 1126 (1976), especially where the credibility of witnesses who testified in person before the committee is at issue. Of course this court has the responsibility of determining the ultimate facts in disciplinary matters. In re Moore, 110 Ariz. 312, 518 P.2d 562 (1974). An examination of the record in this matter indicates that Respondent represented Luis Estrada, the complainant herein, in a dissolution proceeding in the Pima County Superior Court. Estrada, an illiterate laborer over 60 years of age, had been Respondent’s friend for many years prior to the dissolution action. As part of the dissolution decree, Estrada was ordered to pay his former wife spousal maintenance of $75.00 per month. Since Estrada did not know the whereabouts of his former wife, he began making payments to Respondent, believing Respondent would make appropriate arrangements. Estrada paid Respondent $37.50 twice a month, without fail, from November 10, 1977, through March 16, 1979. At no time subsequent to November 10, 1977, did Respondent pay over Estrada’s money to the Family Support Unit of the Superior Court Clerk’s Office or to Estrada’s ex-wife. Neither did he maintain Estrada’s money in a client’s trust account. Rather, until July, 1978, Respondent kept the money in a lockable filing cabinet in an office he shared with another attorney. In July, 1978, $675.00 in accumulated payments was stolen from the filing cabinet by one of Respondent’s employees. Thereafter Respondent placed the payments in his own personal checking account at Valley National Bank. At the time the payments stopped in March, 1979, Respondent had received $1,275.00 from Estrada. Estrada and Respondent had some contact over the next few months concerning the return of Estrada’s money. In August or September, 1979, Estrada asked a friend to write a letter to Respondent on his behalf requesting the return of his money. Respondent received the letter but did not reply. Finally, on November 9,1979, Estrada went to the Pima County Bar office for assistance in recovering his money. Robert Finn, on behalf of the Pima County Bar Association, began collection procedures against Respondent on November 20, 1979. Respondent contested the amount due Estrada, stating that his calculations indicated a sum of $1,150.00 was due. After several telephone conversations concerning the amount due, Respondent acknowledged on January 10, 1980, that the amount he had received from Estrada was $1,275.00. It was not until January 24, 1980, that partial payment of $700.00 was made. Respondent paid the balance of $575.00 on approximately February 11, 1980. Respondent denied that he used any of Estrada’s funds on deposit in his bank account, but the bank records showed several instances in which he did use Estrada’s money. That is, the account balance fell below the amount of Estrada’s money that had been deposited in the account. In fact, during nine different months the account balance dropped below the amount that Respondent owed Estrada. Respondent filled out a State Bar Questionnaire on trust accounts and returned it as required by Rule 29(f)(3). He stated in his Questionnaire that he had read Rule 29(f), Rules of the Supreme Court, D.R. 9-102, Arizona Code of Professional Responsibility, and the Trust Account Guidelines of the State Bar and was in full compliance therewith. He stated that he maintained a separate trust or escrow or bank account for funds held in a fiduciary capacity, including his clients’ funds, but that at the time he had no such accounts. The record reveals that these statements were false. Respondent raises two questions: (1) Is the Disciplinary Board’s recommended discipline of a one-year suspension too harsh as a matter of law? (2) Did the Board erroneously reject Respondent's application for presentation of additional evidence? Respondent’s first question involves whether there is clear and convincing evidence to support certain findings of fact and conclusions of the local Administrative Committee which were upheld by the Disciplinary Board. In this regard Respondent contests the following findings of fact: that Respondent denied having had trust accounts for client’s money in the past; that Respondent failed to maintain records showing the total amount of payments made by Estrada; that Respondent misled Estrada into believing that Respondent would handle disbursements of his payments to his ex-wife through the Family Support Unit of the Superior Court Clerk’s Office; that Respondent acknowledged to Finn a visit by Estrada in April, 1979, to ask for his money; that Respondent and the witnesses he produced on his behalf lacked credibility; that Respondent avoided repaying Estrada until he learned that Estrada could prove the payments by producing copies of the receipts; and that Respondent attempted to mislead the committee by voluntarily turning over to the committee only the first page of his bank statement, knowing that the “low balance” figure appears at the end of the statements. Respondent also contests certain conclusions reached by the Local Committee and Disciplinary Board. He argues that the conclusions are not based on clear and convincing evidence. We find it unnecessary to enter into an extensive analysis of the challenged findings and conclusions where, as here, the uncontested facts amply establish professional misconduct which warrants the recommended discipline of suspension for one year. Considering only the uncontested findings, the following conclusions are justified by clear and convincing evidence: (1) Respondent made false statements to the State Bar in violation of D.R. 1-102(A)(4). (2) Respondent failed to reveal information to the State Bar as required by Rule 29(f), Rules of the Supreme Court, 17A A.R.S. in violation of that rule and D.R, 7-102(A)(3). (3) Respondent initially failed to place funds of a client in a bank account and when he did so he commingled those funds with his own in violation of D.R. 9-102(A)(1) and (2). (4) Respondent failed to maintain complete records of the handling, maintenance and disposition of a client’s funds which came into his possession, in violation of D.R. 9-102(B)(3). (5) Respondent failed to deliver the funds promptly although requested to do so by letter in August or September, 1979, in violation of D.R. 9-102(B)(3) and (4), and Rule 29(b)(6), Rules of the Supreme Court, 17A A.R.S. (6) Respondent converted funds of his client to his own use in violation of D.R. 1 — 102(A)(3). Absent extenuating circumstances, violations of this nature would warrant disbarment of the violator. In re Couser, 122 Ariz. 500, 596 P.2d 26 (1979); In re Moore, 110 Ariz. 312, 518 P.2d 562 (1974); In re Campbell, 108 Ariz. 200, 495 P.2d 131 (1972). The objective of disciplinary proceedings against an attorney is to protect the public and not to punish the offender. In re Lurie, supra; In re Kastensmith, 101 Ariz. 291, 419 P.2d 75 (1966). Because it appears that this was an isolated incident and restitution was made in full, it is unnecessary to disbar Respondent for the protection of the public. However, even isolated instances of such conduct must be deterred. Respondent came into possession of Estrada’s money in the first place because he was attempting to provide a convenience to his client. This does not, of course, relieve him of the duty to manage these funds according to the standard of professional responsibility imposed upon all members of the State Bar of Arizona. Respondent questions the Disciplinary Board’s action in denying his application to present additional evidence. The evidence Respondent sought to present consisted of testimony that his net worth was considerable, that his reputation in the legal community was good, and that he had rendered substantial charitable services in the past. Rule 36(a), Rules of the Supreme Court, 17A A.R.S. states that an application for presentation of additional evidence shall be supported by affidavit stating the reason why the evidence was not presented to the local Administrative Committee. Respondent has not provided us with any reason why such evidence was not presented to the committee. Even if we assume that such a reason existed, we are compelled to find that the Disciplinary Board acted properly in denying Respondent’s application. The deposition of Richard L. Keefe, a former associate of Respondent, was introduced into evidence. Keefe testified that Respondent’s reputation in the legal community was good. The record contains no evidence to the contrary. Respondent’s reputation was considered in our determination of an appropriate disciplinary measure. Additional evidence to the same effect would be merely cumulative and would have no bearing on the result. Respondent classifies as “more important” his desire to show his net worth. His affluence, he argues, shows that he did not need to use Estrada’s money for his own benefit. Respondent would have us believe that it was mere sloppiness that caused him to commingle his client’s funds with his own, and it was inattention to trivial detail that caused him to convert his client’s funds to his own use. Since his motive was not a desire to use his client’s funds, Respondent suggests that protection of the public need not be a concern here as it was in In re Campbell, supra, and In re Moore, supra. The respondents in Campbell and Moore had converted clients’ funds to their own uses because of economic pressures upon them. We stated our concern that: “. . . if similar economic pressures were placed upon [them] again, the same misconduct might result.” 108 Ariz. at 201, 495 P.2d at 132. We do not read these cases to suggest that it is more ethical to convert a client’s funds to one’s own use if one does not need the money. Such a suggestion is preposterous. The public requires protection from attorneys’ extreme sloppiness and inattention just as it does in cases of purposeful conversion. It is ordered that Respondent, Pete M. Rubi, be suspended from the practice of law in this state for one year commencing upon the issuance of the mandate. It is further ordered that Respondent pay costs in the sum of $2,116.63 pursuant to Rule 37(g), Rules of the Supreme Court, 17A A.R.S. Respondent is directed to comply with the provisions of Rule 37(h), Rules of the Supreme Court, 17A A.R.S. GORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ.

OPINION HOWARD, Chief Judge. The issue in this case is whether McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), applies retroactively to a divorce judgment which became final some seven years prior. Pursuant to Rule 11(d), Arizona Rules of Civil Appellate Procedure, 17A A.R.S., the parties have filed an agreed statement in lieu of a transcript. It discloses that on October 11, 1974, in a contested divorce action, superior court judge Harry Gin signed and entered a judgment which awarded appellant 40 percent of her husband’s gross monthly Air Force retirement benefits and a 1962 Chevrolet automobile. He also awarded appellee the balance of the retirement benefits and a 1972 Chevrolet. On August 10, 1981, appellee requested the trial court, on the basis of McCarty, to strike that part of the judgment entered in 1974 which gave appellant a share of his retirement benefits. The trial court did so, concluding that McCarty, which held that federal law precludes a state court from dividing military pension pursuant to state community property law, should be given retroactive effect and therefore application to the facts here. We do not agree. The resolution of this issue rests on the doctrine of res judicata. As was observed in Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), “... [T]he res judicata consequences of a final, unappealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. [Citations omitted]” 101 S.Ct. at 2427. This principle of res judicata was recognized in the California case of In re Marriage of Fellers, 125 Cal.App.3d 254, 178 Cal.Rptr. 35 (1981), which involved a final judgment entered in 1976 giving the wife a share of the husband’s military retirement pension. Three years later the husband filed for an order modifying the judgment to declare his pension rights his sole and separate property. The trial court denied relief and he appealed. McCarty was decided when the appeal was pending. The California appellate court, in denying retroactive effect to McCarty, stated: “Federal courts have held in many decisions, both criminal and civil, that a decision should not be applied retroactively where a final judgment has been rendered on the issue, [citations omitted] In California, there appears to be some authority for the proposition that in unusual circumstances, a court may refuse to apply res judicata when to do so would constitute a manifest injustice but our high court has specifically ruled that a judgment will not be denied res judicata effect just because the law on which it was based has since been changed, [citation omitted] ****** Public policy requires an end to litigation and even erroneous final judgments must be honored in order to continue the ‘well-ordered functioning of the judicial process.’ [citations omitted]” 178 Cal.Rptr. at 37. In the case of In re Marriage of Sheldon, 124 Cal.App.3d 371, 177 Cal.Rptr. 380 (1981), the court narrowly applied McCarty to a case not final on appeal where the federal preemption issue was argued by the service member-spouse in the trial court and where the issue was raised on appeal, but held that McCarty was inapplicable when the property rights in the military pension had been determined by a dissolution judgment which became final before the filing of the United States Supreme Court’s opinion. Additionally, in the case of Erspan v. Bad-gett, 659 F.2d 26 (5th Cir. 1981), the court, in discussing the retroactivity of McCarty, stated: “. .. Nothing in McCarty suggests that the Supreme Court therein intended to invalidate, or otherwise render unenforceable, prior valid subsisting state court judgments. Absent some indication of such an intent, we decline to do so.” 659 F.2d at 28. We agree with the California court in Fellers. To permit adjudications which have become final to be reopened so as to award military retirement pay to the husband as his separate property would flout the rule of res judicata, and upset settled property distributions on which parties have planned their lives and be devastating, not only from the standpoint of the litigants, but in terms of the workload of the courts. McCarty may not be given retroactive application in cases where the issue of the community nature of a military pension was adjudicated and the judgment has become final prior to the date of the McCarty decision. The case of Sandoval v. Sandoval, 130 Ariz. 117, 634 P.2d 405 (1981), is not applicable here since Sandoval did not involve a judgment which was final but rather involved an appeal from an award granting the wife a share of the military retirement pension benefits. McCarty was decided while the Sandoval case was on appeal and the Court of Appeals, Division One, in essence, treated the issue the same as the California court did in Sheldon. The order of the trial court is vacated and set aside. BIRDSALL and HATHAWAY, JJ., concur. . We note that neither the California cases nor the Fifth Circuit case had been published at the time that the trial court here rendered its order. See also the recent case of Wilson v. Wilson, 667 F.2d 497 (5th Cir. 1982), which relied on Erspan, supra.

OPINION GRANT, Judge. This is the second time this case has been before us. In State v. Porras, 125 Ariz. 490, 610 P.2d 1051 (App.1980), we reversed the conviction of Guadalupe Najera Porras and remanded the case for retrial. In that case Porras “was charged and convicted, after a trial to the court, of the misdemeanor offense of leaving the scene of an accident involving injury to another person in violation of A.R.S. § 28-661.” Id. She had appealed “contending that the trial court failed to consider her defense that the evidence did not establish that she knew or had reason to know the accident in which she was involved resulted in injuries.” Id. The facts of the case are set forth in that opinion, in which we said the following: From numerous comments in the record, it is apparent that the trial court found that the state had sustained its burden of proving appellant knew she had hit something in the road, but that the state did not prove beyond a reasonable doubt that appellant had actual knowledge she had struck and injured a person. He * * * * * We note that the court did not address the subject of whether the state had shown beyond a reasonable doubt that appellant had knowledge which would lead to a reasonable anticipation of personal injury. Id. at 491, 610 P.2d at 1052. We held that criminal liability attaches to a driver who knowingly leaves the scene of an accident if he or she actually knew of the injury, or if he or she knew that the accident was of such a nature that one would reasonably anticipate a resultant injury to a person. This reasoning was adopted from People v. Holford, 63 Cal.2d 74, 45 Cal.Rptr. 167, 403 P.2d 423 (1965). We then stated: “we are convinced the trier of fact did not consider this crucial issue.” 125 Ariz. at 493, 610 P.2d at 1054 (footnote omitted). On remand, the case was not retried because court and counsel agreed that no new evidence could properly be presented. The defendant moved to dismiss on the grounds that double jeopardy prohibited a retrial. The motion to dismiss was denied by the trial court. The matter then proceeded with the trial court announcing that it had read the transcripts of the previous trial and would apply the standards set forth in our opinion to the evidence previously presented. However, the court did allow counsel to make statements which were in the nature of closing arguments. The defendant was present when this occurred. In fact the defendant was allowed to argue in her own behalf to the judge. The court concluded with: I think the state has proved beyond a reasonable doubt that you have the facts within your knowledge that would lead you to the belief or a reasonable person to believe that you had injuried [sic] someone, or if you did not, and you can’t say beyond a reasonable doubt on the basis of this record that you had those facts, but if you did not have those facts, the only reason that you did not, in my finding, is that you had too much to drink. So I find you guilty of a violation of Arizona Revised Statute 28-661, the offense occurring in Maricopa County on or about April the 20th, 1978. Following entry of judgment of guilt, sentence was suspended, and appellant was placed on two years’ probation. One condition of probation required incarceration for thirty days in the Maricopa County Jail, with work release permitted. The execution of incarceration was stayed pending disposition of this appeal. Appellant’s sole argument before this court is that her second conviction, based on the application of a standard that had been urged by her and rejected at the first trial, violates the prohibition against double jeopardy. The fifth amendment to the United States Constitution prohibits one from being tried twice for the same crime. This prohibition against double jeopardy applies to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In addition, the Constitution of the State of Arizona contains a similar prohibition. Ariz. Const, art. 2, § 10, 1 A.R.S. The double jeopardy clause does not act as a bar to the retrial of a defendant who has successfully appealed a conviction unless the conviction was reversed on the grounds of insufficient evidence. Tibbs v. Florida, - U.S. -, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Ortiz, 120 Ariz. 384, 586 P.2d 633 (1978). In Burks v. U.S., supra, the Supreme Court held that the double jeopardy clause precludes a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain a verdict. Greene v. Massey, supra, specifically applies the Burks standard to a state criminal proceeding. See State v. Ortiz, supra. Like directed verdicts of acquittal before a case is given to the jury, such reversals amount to acquittals on the merits. It is just such a determination that the double jeopardy bar was created to protect. We must therefore consider whether the original case, State v. Porras, supra, was reversed on grounds tantamount to insufficiency of evidence as the defendant contends. Specifically, the defendant claims that knowledge was an essential element of the charged offense under Arizona law, and that in the first trial the state failed to prove this beyond a reasonable doubt. See State v. Lee, 53 Ariz. 295, 88 P.2d 996 (1939); State v. Cutting, 15 Ariz.App. 311, 488 P.2d 667 (1971). However, at the original trial the court specifically found that the state proved the appellant knew she had been involved in an accident, failing only to consider whether, under the same facts, the appellant knew she had injured another person or whether a reasonable person under the same circumstances would have known that the accident had resulted in injuries. Therefore, our previous reversal of this case was due to an improper standard applied by the trial court, it was not due to insufficiency of the evidence. Our remand was exactly for the purpose of determining whether, under the correct standard, sufficient evidence had been presented to support a conviction. For that reason double jeopardy did not bar retrial. Tibbs v. Florida, supra. The situation on remand is analogous to a remand for retrial following an appellate determination that the jury had been improperly instructed as to the law. The issue which concerns us more, however, is whether upon remand the defendant waived her right to trial by jury and whether the case was properly submitted to the trial court on the record of the first trial. This issue was raised sua sponte by the court and supplemental briefing by both parties has occurred. The Arizona Supreme Court has held that when a defendant submits his case to the trial court on a written record, he must be informed of the rights he waives by submission. These rights include: 1. The right to a trial by jury where he may have representation of counsel; 2. The right to have the issue of guilt or innocence decided by the judge based solely upon the record submitted; 3. The right to testify in his own behalf; 4. The right to be confronted with the witnesses against him; 5. The right to compulsory process for obtaining witnesses in his favor; 6. The right to know the range of sentence and special conditions of sentencing. State v. Avila, 127 Ariz. 21, 24-25, 617 P.2d 1137, 1140-41 (1980). In addition, Avila requires that it appear from the record that the waiver of these rights was knowingly, intelligently and voluntarily made. Such a waiver cannot be presumed from a silent record. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Rule 18.1, Arizona Rules of Criminal Procedure, 17 A.R.S. The state concedes in its supplemental answering brief that there was no such waiver in this case following remand. The state would have us hold that the waiver of jury entered prior to the first trial carries forward to the second trial after appeal. This we cannot do. Nor would this cure the failure to waive other rights enumerated in Avila. The conviction is reversed and the matter remanded for a new trial consistent with this opinion. JACOBSON, J., concurs.

OPINION EUBANK, Presiding Judge. Petitioner Eleanor Griebel filed a claim for widow’s benefits alleging that the death of her husband on March 6, 1980, was com-pensable under the Arizona Workmen’s Compensation Act. Because no insurance carrier was involved, the Industrial Commission undertook the initial evaluation of petitioner’s claim. An award was issued denying compensability. This award was protested, and formal hearings were held. On May 29, 1981, an award was issued denying compensation on the grounds that Mr. Griebel’s employer was not covered by the compensation act. Alternatively, the administrative law judge found that Mrs. Griebel’s claim was foreclosed because she had settled a claim for third party liability without approval of the Industrial Commission. The record shows that Mr. Griebel was employed as a groundskeeper and handyman for the Morning Star ranch of Mr. and Mrs. Rector. After Mr. Rector’s death, Mr. Griebel continued his duties at Morning Star, although Mrs. Rector had moved into a townhouse in the city. Mr. Griebel assisted Mrs. Rector with the moving, and also assisted Mrs. Rector’s daughter when she moved to Phoenix. Since Mr. Griebel was such a fine groundskeeper and handyman, Mrs. Rector allowed him free reign in his upkeep of the Morning Star ranch, and occasionally requested his services at the other properties owned by the Rector family- After Mr. Rector’s death, Mrs. Rector had become engaged to Mr. Dayton, who is now her husband. Mr. Dayton was renovating an old ranch on a leased mining claim, and requested Mr. Griebel’s assistance on an electrical problem. Mr. Griebel agreed to help, but on the third day of this project, he was killed in an automobile accident in transit from the Morning Star ranch. It is unclear whether Mr. Griebel’s destination was the mining claim or Mrs. Rector’s townhouse, but in any event, there is no question that Mr. Griebel was killed within the course and scope of his employment for Mrs. Rector. The only question for our consideration is whether Mrs. Rector was an “employer” of Mr. Griebel within the meaning and coverage of the Workmen’s Compensation Act, A.R.S. § 23-902(A). The administrative law judge correctly concluded that it was petitioner’s burden to show the “employer” status of Mrs. Rector under A.R.S. § 23-902(A). See Lewis v. Industrial Commission, 93 Ariz. 324, 326, 380 P.2d 782, 783 (1963). A.R.S. § 23-902(A) reads as follows: A. Employers subject to the provisions of this chapter are the state, each county, city, town, municipal corporation, school district and every person who has in his employ any workmen or operatives regularly employed in the same business or establishment under contract of hire, except domestic servants. Exempted employers of domestic servants may come under the provisions of this chapter by complying with its provisions and the rules and regulations of the commission. For the purposes of this section “regularly employed” includes all employments, whether continuous throughout the year, or for only a portion of the year, in the usual trade, business, profession or occupation of an employer. (Emphasis added). Based on the requirements of this statute, the administrative law judge made two findings of fact. First, that Mrs. Rector was not engaged in any trade, business, profession or occupation. Second, that Mr. Griebel was a “domestic servant.” The sufficiency of either finding precludes petitioner’s recovery of a widow’s benefit. Petitioner takes exception to both of these findings. She contends that her husband was not a “domestic servant” such as a maid or housekeeper. Furthermore, she contends that Mrs. Rector and Mr. Dayton were in the “business” of holding properties for their appreciating values. Because we believe that these issues are intertwined both in fact and in law, we shall address them conjunctively. Although a term of common usage, “domestic servant” has been subject to varying and inconsistent definitions. Some authorities have attempted to define it by virtue of the employee’s residence; that is, whether the employee lives within or without the master’s residence. See Toole Furniture Co. v. Ellis, 5 Ga.App. 271, 274, 63 S.E. 55, 57 (1908) (negligence action involving the master-servant relationship; citing Bouvier’s Law Dictionary); Black’s Law Dictionary (Rev. 4th ed. 1968). Of this concept, the Minnesota supreme court stated: This distinction dates back to Blackstone and other ancient authorities on the common law of England. It was said that a domestic servant must live “intra moe-nia” or “within the walls.” It had its origin in feudal conditions which no longer exist, and which never have existed in Minnesota. Anderson v. Ueland, 197 Minn. 518, 520, 267 N.W. 517, 518 (1936). Certainly, the same thing can be said about Arizona. Cf. Johnson v. Industrial Commission, 5 Ariz.App. 185, 424 P.2d 833 (1967). Similarly, contentions have been raised that “domestic servant” should be defined according to the nature of the work done. Such is the case of Barres v. Watterson Hotel Co., 196 Ky. 100, 244 S.W. 308 (1922), wherein a hotel maid filed a claim for workmen’s compensation and the hotel defended on the grounds that a maid was a “domestic servant.” The court stated: She was, to be sure, engaged in an employment or occupation similar in many of its aspects to that generally pursued by domestics in the home. We apprehend, however, that the business of running a hotel is industrial in its nature and not domestic in the general meaning of that word. Id. at 101-02, 244 S.W. at 309. See also, Fitzpatrick v. Crestfield Farm Inc., 582 S.W.2d 44 (Ky.App.1978). These cases, we believe, show the fallacy of drawing distinctions based on antiquated definitions of domestic service. We agree that a “domestic servant” must be employed in or about the home or residence (although not necessarily within the walls), performing domestic tasks such as handymen, yardmen, gardeners, maids and so forth. See Torres v. Industrial Commission, 10 Ariz.App. 210, 457 P.2d 750 (1969); Johnson v. Industrial Commission, supra. For workmen’s compensation purposes, however, we believe the most important inquiry is the use to which the master puts his servant’s labor. As stated in Jack v. Belin’s Estate, 149 Pa.Super. 531, 534, 27 A.2d 455, 457 (1942): Agricultural workers are those who are engaged in an enterprise conducted by the employer for his profit. House servants merely contribute to the personal needs and comfort of the employer. Between the two groups are the outser-vants, who in strictness do not fall within either class. And yet there is much better reason for excluding gardeners, caretakers and the like, than agricultural workers, for they are not engaged in commercial enterprise and their services all relate to the home life. Our conclusion, in construing the act, is that the place where the services are performed does not determine the nature of the em ployment. Cooks and house maids are domestic servants, not because they work indoors, but because they serve the needs of the household. Similarly, one who drives an automobile in bringing supplies from market or in disposing of waste materials or who raises vegetables and produce for use on the estate is a domestic servant in the broader sense contemplated by the act. Growing flowers for the delight and pleasure of the family of the owners is the same kind of service. Where, as here, the grounds, though extensive, are maintained as the curtilage to the mansion house and for the comfort and pleasure of the occupants, they who thus minister to the needs of the owners, according to the standard of living established by them, are domestic servants within the purview of the act. See also, Gunter v. Mersereau, 7 Or.App. 470, 491 P.2d 1205 (1971) (concluding that a live-in nurse’s aide was excluded from coverage as a domestic servant); 1C Larson, Workmen’s Compensation Law §§ 50.21, 50.30 (grouping domestic service with other “nonbusiness” employments, and explaining the policy reasons for exclusion from Workmen’s Compensation coverage). We believe the rule to be that if the master is regularly using his servant’s labor in a commercial enterprise, that is, attempting to profit in an entrepreneurial capacity from the labor of the servant, then the master is an “employer” within the A.R.S. § 23-902(A) definition, supra, notwithstanding the place where the servant works or the nature of his duties. On the other hand, if the master is the sole consumer of the servant’s labor, and that labor is directed to the construction, maintenance or repair of the master’s private properties or care of the master’s family, and that labor is not within the usual trade, business, profession or occupation of the master, then the servant is a “domestic servant” under the A.R.S. § 23-902(A) exemption. This conclusion, we believe, is mandated by the familiar principle that the purpose of workmen’s compensation is to place the burden of injury from industrial causes upon industry. See Lewis v. Industrial Commission, 93 Ariz. 324, 327, 380 P.2d 782, 783-84 (1963). Thus, in Lewis, a servant hired to remodel the master’s residence for aesthetic pleasure and not for resale was held to be excluded from compensation coverage. Also, in Cooper v. Industrial Commission, 74 Ariz. 351, 355, 249 P.2d 142, 145 (1952), a parttime yardman was not counted as an “employee” in determining his employer’s status under the compensation law. In Stephens v. Industrial Commission, 26 Ariz.App. 192, 194, 547 P.2d 44, 46 (1976), a master who hired a servant to build a prefabricated personal residence was held not to be an “employer” under A.R.S. § 23-902(A). In Torres v. Industrial Commission, supra, a domestic servant was held exempt even though she worked several days a week at her employer’s business. Finally, in Johnson v. Industrial Commission, supra, we affirmed an award finding that the employee with both inside and outside duties was an exempt domestic servant under the statute. It is upon the spirit of these cases that we rely for our definition of “domestic servant.” Having defined domestic service in this manner, we turn to the evidence of record presented herein. All testimony indicates that Mrs. Rector had no trade, business or occupation. She was simply a wealthy woman whose financial circumstances allowed her to own several personal residences. She employed her handyman as needed about these residences with no intent to exploit his labor by reselling the homes at a profit. Under these circumstances, we hold that the evidence supported the administrative law judge’s determination that Mr. Griebel was a “domestic servant” under this exemption. Petitioner contends that the mere fact that Mrs. Rector loaned her servant to her fiance Mr. Dayton was enough to take Mr. Griebel out of the domestic servant category. This might be true, if Mr. Dayton had intended to exploit Mr. Griebel’s labor for financial gain. The record shows, however, that Mr. Dayton’s mining claim was not even a saleable piece of property; it had no value except as a recreational home for the Daytons. Thus, Mr. Griebel was no less a domestic servant in Mr. Dayton’s service than in Mrs. Rector’s. Further, the evidence did not establish that Mr. Griebel was traveling to Mr. Dayton’s mining claim at the time he was killed. On review, we find that the findings of the administrative law judge were supported by the evidence and the law of Arizona. Therefore, the award is affirmed. CONTRERAS and FROEB, JJ„ concur. . The legislative history indicates that this section was adopted from Utah. We note that Utah recently removed “domestic servant” as an exemption and substituted a basis of hours worked and wages paid the employee. U.C.A. § 35-1-42 (Supp.1981). . Larson, in his treatise, considers the following cases: The courts have consistently held that compensation acts do not apply in such instances. The examples that can be drawn from decided cases cover a range as varied as the hypothetical cases just suggested: a carpenter helping to build or remodel the employer’s own residence; a practical nurse called in to look after the employer’s husband; a handyman working on a country estate; a plasterer redecorating the employer’s home; a carpenter building a chicken coop on the employer’s residential premises; a caretaker looking after a summer home for the owner; a horse trainer working for an owner of a private stable; a chauffeur repairing the owner’s car; a repairman fixing a leak in the roof of the employer’s house; a man sawing logs for the use of himself and his neighbors; a man helping a farmer store ice for the farmer’s own use; a painter painting a barn on the employer’s residential premises; and a gamekeeper employed by the lessee of hunting privileges to guard against poaching. (Footnotes omitted). . Because of our disposition of this appeal, we need not address the alternative finding that Mrs. Griebel waived her right to workmen’s compensation by the unauthorized settlement of third party liability.

CAMERON, Justice. On 2 July 1981, Kenneth Cannon was convicted of first degree murder pursuant to A.R.S. § 13-1105 and subsequently sentenced to life imprisonment with no possibility of parole for 25 years pursuant to A.R.S. § 13-703. We have jurisdiction of this appeal pursuant to A.R.S. §§ 13 — 4031 and 13-4033. Defendant raises the following issues on appeal: 1. Did the trial court err in refusing to grant a new trial for prosecutorial misconduct? 2. Were the jury instructions regarding first degree murder and lesser included offenses erroneous? 3. Did the trial court err in its jury instructions on self defense? The facts necessary for a determination of this appeal are as follows. On the evening of 23 July 1980, a party was held at a residence in Tempe, Arizona. The party stragglers were still at the residence at about 4:00 o’clock the next morning when Don Peters returned to find Steven Al-dridge and the defendant forcing George Monsour to clean up his vomit near the front door. Once the job was completed, the group moved to the front yard, where the argument continued. Don Peters inter-” vened and persuaded Monsour, who was still extremely intoxicated, to go home. Monsour was unarmed and dressed only in a pair of shorts. He left, on foot, and Peters went to bed. Shortly afterward, Aldridge and Cannon started out on bicycles looking for Monsour. When they caught up with him a few blocks away, the argument resumed. The evidence suggests that Mons-our began to run toward Cannon. Cannon removed a revolver he had been carrying and fired a number of shots. Cannon later testified that he was afraid of Monsour because Monsour had beaten him up on previous occasions and because he believed Monsour knew karate. He stated that he had not intended to kill Monsour, but had shot at his legs to stop him from running toward him. Monsour fell, then crawled off to a nearby yard. He was pronounced dead on arrival at the hospital. Monsour suffered 3 gunshot wounds, to the left chest, back and lower abdomen, and elbow. The pathologist who conducted the autopsy testified at trial that two of the shots were fatal. The wound in the chest was located 19 inches below the top of the victim’s head and just to the left of the central midline. The wound in the back entered the middle of the back and traveled downwards through the body and lodged just below the left hipbone. The victim’s blood alcohol level upon arrival at the hospital was .28 grams per hundred milliliters. Defendant claimed self defense and lack of intent to kill. From a jury verdict and judgment of guilt, defendant appeals. PROSECUTORIAL MISCONDUCT At the time the gun was seized and tested, it could not be fired in single action mode, that is, by cocking the hammer and pulling the trigger. It would fire only in double action mode, in other words, by simply pulling the trigger. By the time of trial, the trigger had become broken and tended to jam. The prosecutor discovered this defect while testing the mechanism of the gun during a recess in the trial, but did not inform the defense. When the defendant took the stand, the prosecutor cross examined the defendant in regard to the gun: “Q Now can you tell me with bangs, how fast the bangs went? “A I don’t know, just bang, bang, it misfired a couple of times and it went bang — I don’t know. “Q How were you firing the gun, double or single action? “A What do you mean? “Q Well, were you cocking it and pulling the trigger or just pulling the trigger? “A Just pulling the trigger. “Q Take a look at the gun; go ahead and pull the trigger five or six times. “A It’s stuck. “Q You have to pull the trigger out, then pull it again, don’t you? Was the gun doing that that night? “A No, sir. “Q Do you remember testifying about cocking the gun? Could you cock the gun that night? “A What do you mean, ‘Could you cock it’? “Q Could you pull the hammer back this night when you were standing outside the residence? “A If you pull it back just like you did, I guess so. “Q Your testimony is the gun is not working now the way it did that night? On that night, you could crank off, ‘boom, boom, boom’ as fast as you could pull it. This would bob right in turn? “A I shot them off, I know that. “Q Did you have any problems with the trigger sticking? “A No. “Q It never would stick back there like that? “A No, sir.” When defense counsel discovered the trigger had been broken, he moved, in chambers, for a mistrial on the basis that the prosecutor had failed to disclose the changed condition of the gun and had tried to impeach the defendant with the deceptive, changed evidence. The motion for a mistrial was denied. To rehabilitate the defendant, the defense called Kenneth Kowalski, the criminalist who originally tested the weapon. He testified: “BY MR. STEINER: “Q At the time you previously testified when the prosecutor asked you to come forward, was the gun operating in the same manner that it had when you tested it? “A Yes, I believe so. “Q Is it operating in the same fashion today? “A No.” The same witness indicated that the gun was old and worn and could have been broken by someone merely pulling the trigger. Defense counsel renewed the motion for a mistrial, which was denied. The defense then called Detective Palmer who had seized and examined the gun. He testified: “Q There is no question that this gun, were the jury to examine it right now, does not operate the way it did when you recovered it in the Cannon residence? “A It does not operate in the same manner as it did.” The defendant now urges that the prosecutor’s misconduct in failing to disclose the change and impeaching the defendant on the condition of the gun is grounds for a new trial. It was improper for the prosecutor to cross examine the defendant on the working of the gun without first disclosing the change in the gun to the defense. Evidence of the operation of the gun was relevant to a determination of the facts at issue. The gun’s capacity to fire quick, successive shots was a consideration concerning premeditation. The prosecution had a duty to disclose the change in the gun’s condition to the defense. Rule 15.6, Arizona Rules of Criminal Procedure, 17 A.R.S.; Rule 29(a), Rules of the Supreme Court, 17A A.R.S.; American Bar Association Code of' Professional Responsibility, DR 7-102(A)(3) & (4), 7-103(B), and EC 7-13 & 7-25. We need not reverse, however. The fact that the gun had been broken after the arrest was brought to the jury’s attention. After the defendant’s statement, the crimi-nalist and Detective Palmer were both questioned as to the changed condition of the gun. The testimony left no question that the gun did not operate as it had on the night of the killing. While we do not condone the prosecutor’s failure to disclose the changed condition of the gun or his cross examination of the defendant, we do not believe the defendant has been prejudiced. “Misconduct alone will not cause a reversal, as a new trial should not be granted to punish counsel.” State v. Ramirez, 116 Ariz. 259, 265, 569 P.2d 201, 207 (1977). We find no error. State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980); Rule 15.7, Arizona Rules of Criminal Procedure, 17 A.R.S. WERE THE JURY INSTRUCTIONS REGARDING FIRST DEGREE MURDER AND LESSER INCLUDED OFFENSES ERROR? The jury was instructed on the elements of first degree murder, second degree murder, and manslaughter. Noting that reckless conduct is part of the element of intent for either manslaughter or second degree murder and could serve to reduce first degree murder to these lesser included offenses, defendant urges that the trial judge improperly excluded instructions on recklessness. Further, he urges that the instructions are internally inconsistent regarding the intent required for a finding of guilt. Defendant concludes that the confusing instructions and the absence of instructions on recklessness constitute reversible error. We do not believe that the record supports a finding of recklessness. The record shows that the defendant, armed with a gun, went in search of the victim, who was already on his way home. When defendant caught up with him, an argument ensued, and the victim allegedly ran toward the defendant. Defendant testified that he shot the victim in self defense. “Recklessly” is defined by statute: “ ‘Recklessly’ means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.” A.R.S. § 13-105(5)(c). The defendant in the instant case did more than disregard a “substantial and unjustifiable risk.” Defendant’s own testimony indicates that he intentionally shot his victim. Although defendant testified that he intended to hit the victim’s legs, we do not believe that this would reduce his conduct to recklessness, as the shooting itself was still intentional. Defendant was not entitled to a reckless instruction. State v. Dalglish, 131 Ariz. 133, 639 P.2d 323 (1982). The trial court included the element of intent as to each offense. The instructions taken as a whole were proper under the facts. See State v. Rhymes, 129 Ariz. 56, 628 P.2d 939 (1981). We do not believe that they were confusing or internally inconsistent as defendant contends. We would note, however, that even if they were, that would not necessarily be error as long as the jury was instructed as to each and every offense reasonably supported by the evidence. State v. Ramos, 108 Ariz. 36, 492 P.2d 697 (1972). Because facts are often conflicting, instructions will also often be inconsistent, if not conflicting. Insofar as they are not unduly confusing, the fact that the instructions appear inconsistent will not be considered as grounds for error. We find no error. DID THE TRIAL COURT ERR IN ITS INSTRUCTIONS ON SELF DEFENSE? The court instructed the jury as to self defense stating: “A person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other’s use or attempted use of unlawful physical force.” The defendant urges that this instruction on self defense was inadequate and deprived him of the right to have his version of the incident considered by the jury. He contends the jury should have been instructed that “actual danger is not necessary to justify the use of physical force in self defense. It is enough if a reasonable person in defendant’s situation would have believed that he was in immediate physical danger." The instruction requested by defendant on the matter of self defense was adequately covered by the instructions actually given. The defendant is not entitled to his instruction if another instruction adequately covers the same theory. The jury in the instant case was accurately instructed on the law of self defense. The jury was told that his actions were justified if a “reasonable man” would have believed that force was necessary under the circumstances. We believe that that is sufficient. State v. Pickett, 121 Ariz. 142, 589 P.2d 16 (1978); State v. Rhymes, supra. We find no error. Affirmed. HOLOHAN, C. J., GORDON, V. C. J., and HAYS and FELDMAN, JJ., concur.