STATE OF ARIZONA v. DIONDRA SHARRELLE HOWARD (2025)

OPINION

¶1 Defendant Diondra Sharelle Howard appeals her conviction for second-degree murder, arguing: (1) the court erroneously instructed the jury on self-defense; (2) the trial judge was biased; and (3) the judge who sentenced Howard after the trial judge recused herself abused his discretion by failing to read the trial transcript before sentencing Howard. We reject Howard's first two claims of error and affirm her conviction, but remand for resentencing because the sentencing judge did not review the record as Arizona Rule of Criminal Procedure 19.4 requires.

FACTS AND PROCEDURAL HISTORY

A. Howard Confronted Two Men Who Stole Her Purse, Shooting and Killing One of Them in an Alleyway.

¶2 On October 9, 2015, Howard prepared to celebrate her birthday with her two sisters. The group of three stopped at the house of a man they all regard as an uncle to finish getting ready before going out. Uncle owned a camera which monitored movement outside his house. Someone noticed movement on the camera. Minutes later, everyone went outside, and Howard discovered her purse was missing from her car where she had previously left it.

¶3 Uncle walked the neighborhood looking for people related to the theft. He saw two men in a ramada at a neighborhood park. Uncle saw one man holding a backpack and the other holding a “weird bag.” Uncle asked the men about Howard's purse, which one man eventually handed to Uncle. Uncle returned home and gave Howard her purse. Howard became upset when she saw the bag was empty. Uncle described the two men and told Howard where he saw them.

¶4 Howard got into a car with her sisters. After a drive, she encountered and approached the two men from the park in a nearby alleyway. Howard got out of the car and began yelling at the men to return her things. She later explained one of the men was coming towards her in an odd manner and she thought he was reaching for something. Howard thus pulled out a gun and shot the man, who died as a result. The State charged Howard with one count of second-degree murder.

B. Howard Requested and Obtained an Incorrect Self-Defense Instruction.

¶5 Judge Jennifer Ryan-Touhill presided over a seven-day jury trial. On the fourth day of trial, Howard rested, and the parties settled final jury instructions with the court. Both sides agreed to include the correct instruction on self-defense that requires the State to prove beyond a reasonable doubt that a defendant did not act in self-defense. See Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim. 4.05 (“Justification for Self-Defense Physical Force”) (5th ed. 2019). However, Howard also requested an affirmative defense instruction that does not apply in cases where a defendant asserts self-defense, because, as a matter of law, self-defense is a justification defense and not an affirmative defense. See A.R.S. §§ 13-205(A), -404(A); State v. King, 225 Ariz. 87, 89 ¶ 6 (2010). The court gave the proper self-defense instruction, placing the burden on the State to disprove self-defense, but engrafted onto it the incorrect instruction on the affirmative defense Howard requested:

The State has the burden of proving beyond a reasonable doubt that the defendant did not act with [ ] justification. If the State fails to carry this burden then you must find the defendant not guilty of the charge. The defendant has raised the affirmative defense[ ] of self-defense with respect to the charged offense of second-degree murder.

The burden of proving each element of the offense beyond a reasonable doubt always remains on the State. However, the burden of proving the affirmative defense of self-defense is on the defendant. The defendant must prove the affirmative defense of self-defense by a preponderance of the evidence.

If you find the defendant has proven the affirmative defense of self-defense by a preponderance of the evidence, [you] must find the defendant not guilty of the offense of second-degree murder.

(Emphasis added).

¶6 After the court read the final instructions to the jury, Howard's counsel reiterated the incorrect self-defense instruction in closing argument. Howard's counsel explained that “by asserting an affirmative self-defense defense, the burden shifts to the defense to prove to you, the trier of fact, by a preponderance of the evidence that self-defense was necessary for the defendant to exhibit in this case.”

C. The Court Commented on Howard's Failure to Appear for the Reading of the Jury's Verdict.

¶7 The jury finished deliberating on the seventh day of trial. Although the court waived Howard's appearance at the start of that day's proceedings, it did not waive her appearance for the verdict. Despite that, Howard was not present and was fifteen to twenty minutes away when the jury was ready to read its verdict. The court asked Howard's counsel to tell Howard that the court would hear the verdict whether Howard arrived or not. Outside of the presence of the jury, the court also commented on Howard's failure to appear:

The Court is disinclined to wait any further for the defendant. The Court is cognizant that the defendant's daughter was graduating from eighth grade. The Court surmised that the defendant felt it was more important to do what she chose to do this morning rather than following the orders of the Court. The Court finds that to be disrespectful to this process given the seriousness of it.

Despite Howard's absence, the court then received the jury's verdict. Although not finding Howard guilty of second-degree murder, the jury did find Howard guilty of manslaughter by sudden quarrel or heat of passion.

D. After the Victim's Mother Testified at the Aggravation Hearing, the Trial Judge Embraced the Victim's Mother, Leading to a Judicial Conduct Complaint.

¶8 After the return of the guilty verdict and with Howard still absent, the trial court held an evidentiary hearing on the State's alleged aggravating factor of emotional harm to the victim's immediate family. The victim's mother testified about the pain of her son's death, which she called “the worst thing that could have happened[,]” explaining, “[she] couldn't function.” After the victim's mother stepped down and walked back to her seat, the court read a verdict form explaining the aggravating circumstances to the jury. The jury then left the courtroom to deliberate.

¶9 While the jury deliberated, the trial judge stepped off the bench and approached the victim's mother. The trial judge “offer[ed] condolences and an embrace” to the victim's mother. The trial judge later acknowledged saying words to the effect of “I am terribly sorry for your loss and the pain you have suffered.” After the embrace and Howard's arrival, the jury found three aggravating factors proven.

¶10 Howard's mother reported the trial judge's embrace of the victim's mother to the Commission on Judicial Conduct (“the Commission”), alleging bias against Howard. The Commission reprimanded the trial judge, finding her conduct “created an appearance of bias in violation of Rule 1.2 and 2.3(b) of the Code” of Judicial Conduct. The Commission further found “[t]he Complainant could understandably believe that the defendant, her daughter, did not receive fair and impartial treatment over the course of the trial” given the trial judge's actions. Howard lodged with this Court the Commission's order reprimanding the trial judge and its attachments. Both parties discussed these materials in their briefs without objection. We treat these uses of the order and its attachments as a joint request for judicial notice of them, which we grant. See Ariz. R. Evid. 201(b)(2).

E. The Trial Judge Recused Herself, After Which the Successor Judge Declined to Read the Trial Record Before Sentencing Howard to Eighteen Years in Prison.

¶11 On July 20, 2022, the trial judge recused herself from the case without explanation, and the case was reassigned to the successor judge, Judge Chuck Whitehead. Judge Whitehead reset sentencing, which had been scheduled for August 4, 2022, for August 30, 2022, given the State's unavailability on August 4.

¶12 On August 11, 2022, Howard moved for a new trial, arguing the trial judge's unexplained recusal implied bias or unfairness in the trial. The State responded that Howard's motion did not present facts justifying a new trial and was untimely.

¶13 At the case status conference on August 30, 2022, the successor judge denied the motion for a new trial and reset the sentencing to October 2022 because Howard's counsel needed more time to review the jail calls. At the same case status conference, Howard's counsel raised the following question, “how are you going to prepare for not being the trial judge? That seems kind of odd to me to put somebody in the sentencing position having not had the opportunity to sit through trial. Are you – will you be reviewing transcripts or anything of that nature?” The successor judge responded by saying he would “look at the presentence report, any sentencing memorandums filed by either side” but that he “didn't plan on going back and reviewing the trial transcript.” The successor judge said “[i]f either party thinks that that is necessary, let me know, and I'll certainly do that.”

¶14 Howard's counsel raised the issue again at sentencing. Her counsel explained:

[A]t this point, having read the State's recommendation, which I didn't receive until yesterday afternoon, I think some liberties were taken at describing evidence and such, and I think it's fundamentally unfair if my client gets sentenced by a judge that did not have the benefit of having sat through a trial and knowing what is accurate and what's not accurate.

¶15 In response, the successor judge asked Howard's counsel how counsel would reconcile his position with cases, such as a death penalty case, in which different judges oversee different parts of the trial. Howard's counsel stated it was likely new judges “would read transcripts and watch FTR recordings so that they're knowledgeable about what happens when it comes time for sentencing.”

¶16 After some back and forth, the successor judge asked Howard's counsel what they thought the State's recommendation was going to be. At this point Howard's counsel explained “[i]t's not so much the recommendation itself, Your Honor. It's the material that the State is representing as truth, as being how it happens at trial.” Ultimately, the successor judge explained he would not read the transcript and that Howard's counsel could contradict the State's representations and “give the defense's point of view, and I'll weigh both equally in determining what I think is the appropriate sentence.” The successor judge read the State's presentence report, Howard's psychological evaluation, Howard's mitigation report, and letters from various people on Howard's side.

¶17 The successor judge heard the State's position, including testimony from the victim's sister, the victim's stepmother, the victim's mother, and the victim's younger brother. Additionally, Howard's counsel presented her position, and Howard testified. The successor judge sentenced Howard to an aggravated term of 18 years.

¶18 Howard timely appealed. We have jurisdiction under Article VI, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

I. Howard Invited Error When She Requested an Incorrect Jury Instruction on Self-Defense.

¶19 The State noted in its answering brief that the superior court gave the wrong self-defense jury instruction. On that basis, Howard asks us in her reply brief to reverse her conviction. But parties are not entitled to relief on appeal from an error they invite. State v. Logan, 200 Ariz. 564, 565 ¶ 8 (2001) (“We have long held that when a party requests an erroneous instruction, any resulting error is invited and the party waives his right to challenge the instruction on appeal.”). And there is no question Howard requested the incorrect instruction. While Howard correctly notes in her reply brief that neither the court nor the State “caught the mistake” in the trial court, that is the wrong question. The invited error doctrine presupposes an error induced by an appellant that gets by the court and counsel in the first place. See id. We commend the State for raising the issue for our review, but given that Howard invited the error, we decline to reverse based on the incorrect self-defense jury instruction.

II. Howard Fails to Demonstrate Error Owing to the Trial Judge's Claimed Bias, or Prejudice from the Claimed Bias.

¶20 When the issue is preserved, we review whether a judge was biased at trial for an abuse of discretion. See State v. Ramsey, 211 Ariz. 529, 541 ¶ 37 (App. 2005). However, we review claims of bias for fundamental error when they were not raised in the superior court. State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018). Either way, appellants must show the asserted error – here, the trial judge's asserted bias – was prejudicial to them. See Ramsey, 211 Ariz. at 541-42 ¶¶ 37-38 (applying abuse of discretion and finding defendant did not meet his burden to show prejudice); Escalante, 245 Ariz. at 142 ¶ 21 (“If the defendant establishes fundamental error ․ [they] must make a separate showing of prejudice[.]”). We presume a trial judge acts without bias, but a defendant may prove bias and resulting prejudice by a preponderance of the evidence. Ramsey, 211 Ariz. at 541 ¶ 38 (internal citation omitted). Because Howard's trial counsel claims not to have known of the uncontested embrace of the victim's mother, we treat this issue as preserved by Howard's untimely motion for new trial and analyze her claim of bias for abuse of discretion.

¶21 Howard argues the trial judge was biased because: (1) the Commission reprimanded her for “creat[ing] an appearance of bias in violation of” Rules 1.2 and 2.3 of the Code of Judicial Conduct; and (2) the trial judge described as disrespectful Howard's absence from court when the jury was ready to return its verdict. But Howard identifies no resulting prejudice, which is required to reverse her conviction.

¶22 First, the Commission's conclusions do not have preclusive effect in this court. Indeed, the Code of Judicial Conduct says the opposite. See Ariz. R. Sup. Ct. 81, Scope (“This code is not designed or intended as a basis for civil or criminal liability. Neither is it intended to be the basis for litigants to seek collateral remedies against each other or to obtain tactical advantages in proceedings before a court.”). And Howard cites no law to the contrary.

¶23 Second, the Commission did not find the trial judge biased; rather, it found the appearance of bias. The Commission found “the Complainant could understandably believe that the defendant, her daughter, did not receive fair and impartial treatment over the course of the trial because of Judge Ryan-Touhill's actions.” The Commission also found “Judge Ryan-Touhill's actions created an appearance of bias,” which properly led the trial judge to recuse. But a reasonable belief in bias or the appearance of bias is not the same as actual bias. The Code of Judicial Conduct requires recusal where “the judge's impartiality might reasonably be questioned.” Ariz. R. Sup. Ct. 81, Rule 2.11(A). The Code then provides specific examples where such questioning is conclusively presumed. See Ariz. R. Sup. Ct. 81, Rule 2.11(A)(1)-(5). Given that our law requires disqualification for even the appearance of bias, it would overstate the order reprimanding the trial judge to read its finding of the appearance of bias as conclusively establishing actual bias. For this reason too, we reject Howard's claim of actual bias from the fact of the reprimand – which is most of her argument.

¶24 Third, we reject Howard's argument that the trial judge showed bias by describing as disrespectful Howard's absence from the jury's reading of its verdict in her murder trial. Howard's absence from court could reasonably be viewed as disrespecting the jurors who had spent seven days in a complex murder trial, as well as the court staff and the court. There was no indication that Howard could not be in court for the return of the verdict; rather, the record indicates she decided to be elsewhere voluntarily. The trial judge displayed no animus toward Howard by explaining why she would receive the jury's verdict rather than wait further for the absent Howard. See Liteky v. United States, 510 U.S. 540, 555–56 (1994) (explaining judge shows bias through “a deep-seated favoritism or antagonism that would make fair judgment impossible[ ]” and that “expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display” do not establish bias); see also State v. Henry, 189 Ariz. 542, 546 (1997) (applying Liteky, 510 U.S. at 555-56, in Arizona).

¶25 Fourth, Howard bore the burden to identify prejudice from the purported bias, but pointed to none. See Ramsey, 211 Ariz. at 541-42 ¶¶ 37-38 (holding that defendant “failed to meet his burden of showing prejudice” when he alleged judge was biased). Indeed, the trial judge made no ruling of which Howard complains after the embrace for which she was reprimanded. We thus reject Howard's claim that the court abused its discretion through bias and affirm her conviction.

III. The Superior Court Did Not Review the Record as Arizona Rule of Criminal Procedure 19.4 Requires, Even When Howard Requested the Court Review the Record, Requiring Remand for Review of the Record and Resentencing.

A. The State and Howard Are Correct that Rule 19.4 Applies.

¶26 Rule 19.4 governs when a new judge is substituted into a criminal proceeding after the first judge becomes incapacitated. When interpreting this procedural rule, we must look to its plain meaning. Fann v. State, 251 Ariz. 425, 434 ¶ 25 (2021); State v. Hansen, 215 Ariz. 287, 289 ¶ 7 (2007) (citation omitted). We are required to give meaning to the words and commands in the rule. Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019) (“A cardinal principle of statutory interpretation is to give meaning, if possible, to every word and provision so that no word or provision is rendered superfluous.”). Rule 19.4 provides:

If the judge who is hearing or trying a criminal proceeding becomes ill or is otherwise incapacitated, that judge may be replaced by another judge of the same court․ If the new judge believes after reviewing the record that continuing the proceeding would be unduly prejudicial, the judge must order a new trial or proceeding. The judge should consider the manifest necessity of declaring a mistrial over the objection of the defendant before ordering it.

Ariz. R. Crim. P. 19.4. The plain meaning of ”criminal proceeding” includes sentencing. See Gardner v. Florida, 430 U.S. 349, 358 (1977) (“[T]he sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel.”); Criminal Proceeding, Black's Law Dictionary (12th ed. 2024) (“A judicial hearing, session, or prosecution in which a court adjudicates whether a person has committed a crime or, having already fixed guilt, decides on the offender's punishment; a criminal hearing or trial.”).

¶27 The parties concede Rule 19.4 applies, and we agree. The trial judge was incapacitated by the appearance of bias and she properly recused after embracing the victim's mother. See Incapacity, Black's Law Dictionary (12th ed. 2024) (defining incapacity as “[l]ack of physical or mental capabilities”); Emotional Incapacity, Black's Law Dictionary (12th ed. 2024) (defining emotional incapacity of a witness as “hostility or partiality rooted in bias, corruption, or interest”); In re Grand Jury Investigation, 916 F.3d 1047, 1055 (D.C. Cir. 2019) (“Our understanding of Congress's use of the word ‘disability’ in [28 U.S.C. § 508] accords with courts’ interpretations of Rule 25(a) of the Federal Rules of Criminal Procedure[,]” which “provides that if a judge cannot proceed to preside at trial due to ‘death, sickness, or other disability,’ another judge may complete the trial. Courts have interpreted ‘disability’ to include recusal.” (cleaned up)). She was then replaced by the new judge, as Rule 19.4 contemplates. Rule 19.4’s plain language thus obliged the new judge to “review[ ] the record” sua sponte to determine whether “continuing the proceeding would be unduly prejudicial,” and, if so, to “order a new trial or proceeding.” Ariz. R. Crim. P. 19.4.

¶28 Our dissenting colleague contends Rule 19.4 does not apply because the trial judge did not become incapacitated during a criminal proceeding. See Dissent, ¶ 50. But that argument conflicts with Black's Law Dictionary, see ¶ 26, and plain meaning. The trial judge became incapacitated during a proceeding in open court during which the court accepted and considered testimony to determine a defendant's sentencing. That is a “criminal proceeding” under any commonly understood use of the phrase. See id.

¶29 Any interpretation of “criminal proceeding” that excuses the new judge from getting their hands around the record before sentencing also ignores our supreme court's intentional choice in Rule 19.4 not to adopt Federal Rule of Criminal Procedure 25. The federal rule differs from Rule 19.4 because it distinguishes successor judges during trial—who must review transcripts—from successor judges for sentencing, who need not do so. Compare Ariz. R. Crim. P. 19.4 (referring to judge overseeing criminal proceeding generally) with Fed. R. Crim. P. 25 (referring separately to judge overseeing trial or sentencing). The Arizona Supreme Court knew about the federal rule in 1993 when it drafted Rule 19.4 and chose not to adopt it. Ariz. R. Crim. P. 19.5 (2017) cmt. (noting that Rule 19.5, now 19.4, was derived, in part, from Federal Rule of Criminal Procedure 25). We interpret Rule 19.4 in light of these chosen differences. See Hounshell v. White, 220 Ariz. 1, 6 ¶ 22 (App. 2008) (where legislature knows how to do something but omits to do it, “we can only conclude that its choice ․ was intentional[ ]”). A comparison of Rule 19.4 to Federal Rule of Criminal Procedure 25 thus suggests that Rule 19.4 reflects a conscious choice to treat an entire criminal proceeding as a unitary event within which substituted judges must always review the record. Id.; State v. Sweet, 143 Ariz. 266, 271 (1985) (explaining meaning may be determined by looking at development of the rule or statute) (citing authority).

¶30 The dissent insists our reasoning is inconsistent because we do not order a retrial of the aggravation phase. See Dissent, ¶ 49. But that argument ignores the difference between actual bias and the appearance of bias. See ¶ 23. We rejected Howard's arguments that the trial judge exhibited bias in particular decisions or conduct before recusing, as did the dissent. See Section II, ¶¶ 20-25; Dissent, ¶ 45. There is no inconsistency between Rule 19.4’s command that successor judges review the case record and Rule 19.4’s silence on the process a judge, incapacitated by the appearance of impropriety, must follow in recusing.

¶31 The dissent errs by suggesting that when a judge presides over a case beyond their “point of incapacity” until a moment when court is recessed, Rule 19.4 somehow becomes inoperative. See Dissent, ¶¶ 50-51. Were that so, the rule would mean that successor judges must review the record if their predecessor judge died during testimony in open court, but not if the predecessor died when the court had received testimony toward sentencing but not yet sentenced the defendant, because that would be during “no ongoing criminal proceeding.” See Dissent, ¶ 50. But rules don't work that way. The rule governs incapacity generally – all situations in which a “judge who is hearing or trying a criminal proceeding becomes ill or otherwise incapacitated.” Rule 19.4 cannot turn on and off based upon the happenstance of how and when incapacity manifests. Our approach is more faithful to the rule's text and purpose, and reads the rule in a sensible, coherent manner.

¶32 The dissent's approach also fails because it makes the parallel civil and criminal rules – Arizona Rule of Civil Procedure 63, Judge's Inability to Proceed, and Rule 19.4, A Judge's Death, Illness, or Incapacity – work in starkly different fashions (and operate more harshly upon criminal defendants, whose liberty is at stake). The civil rule allows a successor judge to step into a case only “upon certifying familiarity with the record and determining that the action may be completed without prejudice to the parties.” Ariz. R. Civ. P. 63. That's exactly what this Opinion says Rule 19.4 requires – reviewing the record to make sure the criminal defendant's matter may be concluded by the successor judge without prejudice.

¶33 While the parallel civil rule does not control our interpretation, we often read civil and criminal rules in harmony, so it provides some support for our approach here. See State v. Tillmon, 222 Ariz. 452, 454 ¶ 8, 456 ¶¶ 15-16 (App. 2009) (“We interpret rules of procedure by their plain meaning[,] and we read them ‘in conjunction with each other and harmonize [ ] [them] whenever possible.’ ”) (construing Arizona Rules of Criminal Procedure in context with Arizona Rules of Civil Procedure) (cleaned up); State ex rel. Thomas v. Gordon, 213 Ariz. 499, 504 ¶ 31 (App. 2006) (interpreting Arizona Rule of Criminal Procedure “in the same manner as its civil equivalent”); State v. Ingram, 239 Ariz. 228, 231 ¶ 8 (App. 2016) (citing Taliaferro v. Taliaferro, 186 Ariz. 221 (1996)) (looking to caselaw interpreting Arizona Rules of Criminal Procedure to interpret Arizona Rules of Civil Procedure). The dissent's reading of Rule 19.4, which would allow a successor judge taking the bench after a criminal trial to sentence someone for second-degree murder without attempting any familiarity with the record first, does violence to that principle. And contrary to the dissent's suggestion, nothing in the supreme court's 2018 restyling of Rule 19.4, which effected no substantive change to the rule, adopted the dissent's restrictive view of its operation. See Dissent, ¶ 54.

¶34 The civil rule also provides a ready answer for the dissent's assertion that recusal here, because it did not occur during testimony, does not trigger Rule 19.4. See Dissent, ¶ 50. The civil rule applies in the event of recusals. Davis v. Davis, 195 Ariz. 158, 162-63 ¶¶ 15-16, 19 (App. 1999). Judge Ryan-Touhill recused herself because of the appearance of impropriety, just like the judge in Davis. Id. After that, Rule 19.4 applies, like its civil analog. See id.

¶35 Importantly, our supreme court has reminded us that when liberty is at issue, as here, the need for procedural protections is higher than in civil contexts, where liberty is not in jeopardy. See, e.g., Beck v. Neville, 256 Ariz. 415, 423-24 ¶ 27 (2024) (explaining that when monetary interest is at stake “a standard of the preponderance of the evidence generally suffices” but where an “individual's liberty interest is at stake ․ we require proof beyond a reasonable doubt” (citations omitted)).

B. The Harmless Error Standard Applies, and It Does Not Require Prejudice.

¶36 The State asks us to review for fundamental error whether the successor judge erred by not reading the trial transcripts or watching the FTR before sentencing Howard. The State urges that Howard did not preserve the issue because she did not expressly reference Rule 19.4 in the superior court. The State's argument fails for two reasons. First, the plain language of Rule 19.4 requires sua sponte review without the necessity of a motion, as the State concedes. Second, if the successor judge needed a request to review the record to avoid waiver, Howard made one. At the sentencing hearing, Howard asked the court to read the transcript because “it's fundamentally unfair if my client gets sentenced by a judge that did not have the benefit of having sat through a trial and knowing what is accurate and what's not accurate.” Indeed, Howard's request was not a formalistic request to review the record, but instead embodied the very concern at the heart of Rule 19.4 - whether the new judge can fairly judge the proceeding based on their level of knowledge of it.

¶37 Because Howard objected, we apply harmless error review. See State v. Henderson, 210 Ariz. 561, 567 ¶ 18 (2005). Under that standard, “the burden [is] on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence.” Id.

¶38 The State did not meet its burden here. In a single paragraph of its briefing, the State asserts in passing that “even assuming error, any error was harmless” because the sentencing judge sentenced Howard based on statutory aggravators only. This assertion does not begin to demonstrate how the judge's failure to comply with Rule 19.4 did not “contribute to or affect” Howard's sentence. See State v. Yazzie, 232 Ariz. 615, 618 ¶ 11 (App. 2013) (finding the State failed to carry its burden under harmless error review where it did not explain why the jury's verdict was not the result of error). Because we review for harmless error, not fundamental error, prejudice plays no role in our analysis. See id. We thus reject the dissent's and the State's position that Howard was required to show prejudice. See Dissent, ¶¶ 57-58.

C. The State's Argument that the Court Complied with Rule 19.4 Fails.

¶39 The State argues that because Rule 19.4 does not expressly direct the successor judge to review trial transcripts (or to watch the FTR), “the review required by the rule is left to the discretion of the substituting judge.” The State thus reasons that the successor judge complied with Rule 19.4 by reviewing the State's presentencing memorandum and inviting Howard's counsel to dispute any particular statement in it. We disagree with the State's interpretation of the rule and each illustration the State offers in support of it.

¶40 First, to argue Rule 19.4 does not require reviewing the trial transcript, the State emphasizes that the Comment to Rule 19.4 states that “a court reporter need not transcribe notes if the new judge prefers an alternative method of reviewing the record.” Ariz. R. Crim. P. 19.4 cmt. While true, this cuts against the State's position in two ways. It endorses the proposition that a court reporter's transcription of their notes provides material sufficient to constitute a “review[ ] [of] the record.” Id. Moreover, the only “alternative method” to achieve that scope of review is to watch the FTR record of the trial, which the successor judge did not do. The successor judge declined to perform either such review, stating, “I didn't plan on going back and reviewing the trial transcript. I don't think that that's necessary.” When Howard expressly requested that review before her sentencing, the successor judge did nothing to modify his prior statement that such a review was not necessary. Given that the successor judge explained that reviewing the trial transcript, which is the measure of the record in the Comment to Rule 19.4, was not “necessary,” the successor judge declined to conduct the scope of review of the record Rule 19.4’s Comment suggests. This was error.

¶41 Second, the State's interpretation of Rule 19.4 conflicts with the rule's plain meaning. The superior court already has an obligation to review filings the State and the defendant file at sentencing. To treat the review of these sentencing filings as fulfilling the requirement of “reviewing the record” makes surplusage of that phrase in Rule 19.4. This we cannot do. Nicaise, 245 Ariz. at 568 ¶ 11 (“A cardinal principle of statutory interpretation is to give meaning, if possible, to every word and provision so that no word or provision is rendered superfluous.”).

¶42 Third, the successor judge rejected the argument that Rule 19.4 required him to review any of the record. Rather than embracing an “alternative method” of reviewing the record, as suggested by Rule 19.4’s Comment, the successor judge asked Howard to reconcile her request that he review the trial record with death penalty cases in which new judges rotate in. The successor judge explained that he would listen to what both sides presented at the sentencing hearing. Again, hearing oral argument on sentencing motions is not “reviewing the record,” and the successor judge did not present it as such. Nor does the dissent, in explaining what the successor judge reviewed, claim that the successor judge reviewed any of the original trial record. See Dissent, ¶ 59. We see no merit in the position that the successor judge need not review any of the record.

¶43 Fourth, the State relies on several cases that did not apply Rule 19.4 to argue that our courts “without referencing Rule 19.4 ․ have never required review of transcripts prior to sentencing.” See State v. Fuqua, No. 1 CA-CR 16-0289, 2017 WL 3599760, at *6 ¶ 29 (Ariz. App. Aug. 22, 2017) (mem. decision) (explaining it was not fundamental error when court reviewed presentence report, sentencing memoranda, and heard both counsel's arguments before the sentencing but did not review transcript); State v. King, No. 1 CA-CR 17-0094, 2017 WL 4369429, at *2 ¶¶ 12-13 (Ariz. App. Oct. 3, 2017) (mem. decision) (explaining it was not fundamental error when court reviewed the file and presentence report before sentencing but did not review transcript). But that argument does not support the State's position because, unlike here, Rule 19.4 did not apply in those cases. Moreover, Fuqua and King are unpublished and only to be cited for their persuasive value, not as precedent. See Ariz. R. Sup. Ct. 111(c). Finally, Fuqua and King don't apply because they are fundamental error cases, in which a party failed to preserve an objection in superior court. Unlike Fuqua or King, Howard's trial counsel implored the successor judge to review the record, arguing it was necessary to fundamental fairness in sentencing. These cases do not help us construe “reviewing the record” in Rule 19.4.

CONCLUSION

¶44 We thus affirm Howard's conviction but vacate her sentence and remand to the superior court to review the transcripts or the FTR of the trial, and then to resentence Howard.

¶45 I do not agree that Howard is entitled to resentencing and so I dissent from part III. I otherwise concur in the majority opinion.

¶46 In part III, the majority addresses whether a sentencing judge who did not preside over the trial must review the trial transcript before sentencing the defendant. A visceral response is that of course the sentencing judge should have the benefit of reviewing at least some of the trial record before determining the appropriate sentence. And we can all agree that would be the better course. But the question we confront is narrower and more precise: does Rule 19.4 require the sentencing judge to sua sponte review the trial transcript when he replaced the trial judge after the trial adjourned, before sentencing, and when neither party accepted his invitation to ask him to review the transcript? While the parties agree that Rule 19.4 applies here, we are not bound by their agreement. Parties may stipulate the facts, but the court is tasked with correctly applying the law. First Fin. Bank, N.A. v. Claassen, 238 Ariz. 160, 164, ¶ 21 (App. 2015).

¶47 Based on its plain text, Rule 19.4 does not apply to the facts and circumstances of this case:

If the judge who is hearing or trying a criminal proceeding becomes ill or is otherwise incapacitated, that judge may be replaced by another judge of the same court. If no other judge is available, the clerk or bailiff must recess the court and notify the presiding judge or, if unavailable, the Supreme Court Chief Justice, who will enter an order continuing the trial until selection of another judge to resume the proceeding. A court of appeals judge or a judge pro tempore may be appointed as a substitute. If the new judge believes after reviewing the record that continuing the proceeding would be unduly prejudicial, the judge must order a new trial or proceeding. The judge should consider the manifest necessity of declaring a mistrial over the objection of the defendant before ordering it.

Ariz. R. Crim. P. 19.4 (emphasis added). Rule 19.4 only applies when a judge becomes incapacitated during an ongoing proceeding. The supreme court's 2017 amendment to this rule underscores this conclusion; the rule previously applied when “the judge before whom a trial or other criminal proceeding is pending” died or became incapacitated. The recent amendment clarified the requirement of an ongoing proceeding at the point of incapacity for this rule to apply. The rule then (1) explains who will replace the incapacitated judge and (2) instructs the replacement judge to review the record for the limited purpose of determining whether continuing the proceeding would be unduly prejudicial. Id.

¶48 Even the majority's authority tells us that “criminal proceeding” could refer to either the whole action or a discrete component of the action. Majority, ¶ 26. The complete text of the rule, as emphasized above, demonstrates that in this context, it must be the latter. The rule thus applies if the judge became incapacitated during an ongoing proceeding.

¶49 The majority identifies the point of incapacity, without explanation, as the moment in time the trial judge hugged the victim's mother. Majority, ¶ 27. The hug occurred during the jury's deliberation on the State's proposed aggravating factors. Under the majority's analysis, this “appearance of bias,” Majority, ¶ 27, “during a proceeding in open court,” Majority, ¶ 28, incapacitated the trial judge at that moment. But after the hug, the judge continued to preside over the aggravation phase of the trial. The majority does not direct the retrial of the aggravation phase despite its apparent view that an incapacitated judge presided over that phase. It offers no explanation for this inconsistency.

¶50 The judge's later recusal is a clearer point of incapacity—recusal truly renders a judge unavailable, thus requiring a replacement. But the judge recused after the court adjourned the trial and before the sentencing hearing—at that juncture, there was no ongoing criminal proceeding. Because the judge did not become unavailable during an ongoing criminal proceeding, Rule 19.4 does not apply.

¶51 Even if the replacement occurred mid-proceeding, Rule 19.4 only requires a “review[ ] [of] the record” for the limited purpose of determining whether a proceeding disrupted by a judge's illness or incapacity may continue or must be started anew. Ariz. R. Civ. P. 19.4. (“If the new judge believes after reviewing the record that continuing the proceeding would be unduly prejudicial, the judge must order a new trial or proceeding.”) (emphasis added). But neither Howard nor the majority argue the replacement judge should review the record to determine whether to “order a new trial or proceeding”—the actual purpose of reviewing the record under Rule 19.4. Instead, both assert that the judge should have reviewed the record before imposing Howard's sentence. The majority unduly expands the limited scope of Rule 19.4’s record-review requirement by concluding the rule mandated the replacement judge to review the record to aid in his sentencing decision. In doing so, the majority imputes the record-review requirement to a situation not contemplated by the rule.

¶52 And the majority has failed to explain the requisite scope of that record review. It concludes the judge must review the trial transcript, but does not clarify whether a partial review is sufficient, or if the judge must review the entire transcript—including jury selection, motions, etc.—to comply with the rule. And it does not explain why transcripts from proceedings other than trial (more than ten in this case), which also make up “the record,” need not be part of that mandatory review. The majority then states at the end of its decision, without any discussion, that reviewing the FTR in lieu of the trial transcripts would be sufficient. Majority, ¶ 44.

¶53 The majority attempts to bolster its proposed construction of Rule 19.4’s plain text by importing language from Arizona Rule of Civil Procedure (“Civil Rule”) 63. Majority, ¶¶ 32–33. And it suggests previous caselaw from this Court would support such an approach. Not so. The cases cited do not support lifting an affirmative obligation existing in a civil procedure rule—i.e., certifying familiarity with the record—and importing it into a criminal procedure rule that lacks such language. Two of the majority's cases involved the interpretation of analog criminal and civil rules with identical or near identical language. State ex rel. Thomas v. Gordon, 213 Ariz. 499 (App. 2006) (interpreting identical language contained in both Criminal Rule 10.4(b) (now Rule 10.2(f)) and Civil Rule 42(f)(1)(E) (now Rule 42.1) the same); State v. Tillmon, 222 Ariz. 452 (App. 2009) (Criminal Rule 16.1(b) language “no later than 20 days prior to trial” interpretated the same as Civil Rule 42(f)(1)(C) language “timely if filed 20 or more days before the date set for trial”). And the majority's third case did not involve the interpretation of language in a procedural rule; rather, the court considered the means of obtaining appellate review of the denial of a notice of change of judge. State v. Ingram, 239 Ariz. 228 (App. 2016) (whether a Criminal Rule 10.2 ruling must be challenged by special action or can be reviewed on direct appeal).

¶54 Beyond the distinguishable authority it cited, the majority's reliance on Civil Rule 63 ignores that our supreme court adopted the differing language between it and Rule 19.4 decades ago, and declined to align the language during its more recent restyling of both rule sets. In other words, the supreme court in 2016 chose to retain the language of Civil Rule 63, and in 2017 chose to update the language for Rule 19.4 without incorporating the Civil Rule 63 certification requirement. “Because we presume the supreme court was aware of the content of its own pre-existing rules” when it updated Rule 19.4, Hornbeck v. Lusk, 217 Ariz. 581, 564 (App. 2008), I believe we should assume the rules’ differing language was intentional.

¶55 By wrapping the inapplicable language of Rule 19.4 around a situation not covered by the rule's text, the majority has imposed a largely unexplained requirement on replacement judges in circumstances such as these. I cannot agree with such a result.

¶56 In my opinion, we should evaluate a replacement judge's review of the record (or lack thereof) for an abuse of discretion on a case-by-case basis. Even when Rule 19.4 does not apply, a sentencing judge must be sufficiently familiar with the case to impose sentence. A sentencing judge who did not preside over the trial may abuse his discretion by failing to review some or all of the record—including the trial transcript or recording—depending on the circumstances presented. Cf. United States v. Spinney, 795 F.2d 1410, 1413–14 (9th Cir. 1986) (sentencing judge who did not preside over the trial did not abuse his discretion by failing to read the trial transcript when he otherwise demonstrated sufficient familiarity with the case).

¶57 And, as is the case in our review of other trial-related issues, the complaining party must demonstrate prejudice to establish an abuse of discretion. See, e.g., State v. VanWinkle, 230 Ariz. 387, 390, ¶ 7 (2012) (“We will not find an abuse of discretion [for the denial of motions to continue] unless [the defendant] demonstrates prejudice.”); State v. Lee, 185 Ariz. 549, 555–56 (1996) (“A defendant seeking to demonstrate an abuse of [the court's] discretion [to impose sanctions] should be prepared to show some prejudice from surprise or delay [caused by the State's late notice of intent to seek the death penalty].”); State v. Romero, 258 Ariz. 237, 246, ¶ 20 (App. 2024) (to establish court erred in denying severance motion, defendant must show that at the time he moved “he had proved that his defense would be prejudiced absent severance” (quoting State v. Murray, 184 Ariz. 9, 25 (1995))).

¶58 Howard did not, and cannot, establish prejudice here. She failed to identify any portion of the trial transcript that should have informed or, importantly, would have changed, the court's sentencing decision. And she does not contend that the trial involved evidence supporting mitigation that was not presented during the sentencing hearing.

¶59 The sentencing judge reviewed: the presentence investigation report; the State's sentencing recommendation; a psychological report to support Howard's claim of suffering from Post-Traumatic Stress Disorder; nearly 20 letters submitted on Howard's behalf; and a mitigation report. And he heard testimony and argument offered during the sentencing hearing. The judge credited the jury's verdict on aggravators and imposed an aggravated sentence. But he also accounted for mitigating evidence by rejecting the State's request for a maximum sentence, instead imposing a lower, but still aggravated, sentence.

¶60 While reviewing the trial transcripts would have been the better practice, Rule 19.4 does not compel such a review in this case. On this record, I see no abuse of discretion and would affirm the sentence.

JACOBS, Judge:

Presiding Judge Andrew M. Jacobs delivered the opinion of the Court, in which Judge David D. Weinzweig joined. Judge Jennifer M. Perkins concurred in part and dissented in part.