State v. Mott

931 P.2d 1046, 187 Ariz. 536, 234 Ariz. Adv. Rep. 7, 1997 Ariz. LEXIS 4

Opinions

OPINION

TOCI, Vice Chief Judge

Footnotes

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Shelly Kay Mott (“defendant”) was convicted of two counts of child abuse and first- degree murder. The trial court precluded defendant from introducing expert psychological testimony that as a battered woman, she was unable to form the requisite mental state necessary for the commission of the charged offenses. The court of appeals, division two, relying on State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981), and State v. Gonzales, 140 Ariz. 349, 681 P.2d 1368 (1984), reversed the trial court and held that the evidence was admissible to challenge an element of the crime. State v. Mott, 183 Ariz. 191, 192, 901 P.2d 1221, 1222 (App.1995).

We hold that the proffered evidence was inadmissible as an attempt to prove defendant’s diminished capacity. We vacate the court of appeals’ opinion. Furthermore, we overrule Gonzales to the extent that it permitted evidence of diminished capacity as a defense to the crime charged. Because we reverse the court of appeals, we decide defendant’s remaining claims of error and affirm the trial court.

I. FACTS AND PROCEDURAL BACKGROUND

On January 1, 1991, at approximately 9:00 p.m., defendant left her two young children with her boyfriend, Vincent Near. When she returned home less than an hour later, she found Near standing over her two-and-one-half-year-old daughter, Sheena, fanning her with a towel. Near told defendant that Sheena had fallen off the toilet and hit her head.

At 10:15 p.m., Hank Gnatowsky, a former paramedic, stopped by defendant’s home and found Near reading a first aid book and defendant sitting by some child-care pamphlets titled “Your Baby’s Safety” and “Your Baby and Crying.” Near told Gnatowsky that Sheena had fallen off the toilet. Gnatowsky responded that Sheena should go to a hospital and offered to take her. Near declined the offer, and Gnatowsky went into Sheena’s room to check on her. He found that she was having trouble sleeping, her eyes were fluttering, and her hands were moving as if she were dreaming. He spoke to her, but she did not respond. He told defendant twice more before he left that Sheena should be taken to a hospital. Each time, Near refused.

At approximately 8:00 a.m. the next morning, defendant went to the home of a friend, Erin Scott, crying that Sheena would not wake up. Defendant told Scott what had allegedly happened. Scott asked why defendant had not sought help sooner, and defendant replied that she was worried that the authorities would take Sheena from her because of Sheena’s bruises. Defendant went home and returned to Scott’s with Sheena. Scott noticed that the back of Sheena’s head was very soft, there was some bruising on her face, and she was exhibiting spasms. Scott called 911.

Upon Sheena’s admission to the hospital, Dr. Richard Lemen diagnosed her as being in cardiopulmonary arrest with extreme trauma, non-accidental. Dr. Lemen found a large hemorrhage in the brain, resulting in the death of the right side of Sheena’s brain. Because of the severity of injury, he noted Sheena’s chances of survival as hopeless and that the cause was non-accidental. Sheena died January 9.

At trial, Dr. Lemen stated that Sheena’s injury could not have resulted from falling off a toilet seat. He also found numerous bruises and abrasions, including cigarette burn marks between Sheena’s fingers. Dr. James Dunn, another emergency room physician, testified that Sheena’s injury would have required a fall in excess of twelve feet, the equivalent of a major car accident, or repeated blows to Sheena’s head with a hard object. Dr. Anna Binkewicz, a pediatrician, found a “branding” burn on the bottom of Sheena’s foot, a series of whip marks on her upper thigh and buttocks, and bruising on her head and body.

In an interview with police, defendant admitted that, over the few months before Sheena’s death, she had confronted Near five or six times about bruising on Sheena. Defendant said that Near had told her that Sheena had fallen but that she did not believe him. She stated that she had been trying to leave Near because she did not want Sheena to get hurt. She never reported Near’s abuse because she did not want him to get in trouble, and she dressed Shee na to hide the bruising. Defendant also admitted that she did not take Sheena to the hospital the night of her fatal injury because she did not want anyone to see the bruises.

The Pinal County grand jury indicted defendant on January 9 on two counts of child abuse under circumstances likely to produce death or serious bodily injury, class 2 felonies, and on one count of first-degree murder, a class 1 felony. Defendant disclosed as a defense that she “lacked the capacity to act due to the Battered Woman Syndrome.” The state moved to preclude the use of the battered-woman syndrome as a defense, claiming that such a defense was only admissible in self-defense cases in which the victim had battered the defendant. Defendant then filed a motion to admit the testimony of Dr. Cheryl Karp, Ph.D., to prove that defendant was unable to form the requisite intent to have acted knowingly or intentionally.

The trial court initially ordered that Dr. Karp could testify regarding her opinions of defendant’s “mental and emotional make-up and capabilities.” Upon hearing Dr. Karp testify at trial, however, the trial court found that the testimony regarding the battered-woman syndrome was an attempt to establish a diminished capacity defense. The court ruled the testimony was inadmissible.

On Count Two, based upon the defendant’s leaving Sheena with Near, the jury found defendant guilty of the lesser-included offense of child abuse of a person under fifteen under circumstances other than those likely to produce death or serious bodily injury. On Count Three, based on the failure to take Sheena to the hospital, the jury found defendant guilty of knowing or intentional child abuse likely to produce death. On Count Four, felony murder, the jury returned a verdict of guilty.

The trial court sentenced defendant to the presumptive term of four years on Count Two, a mitigated term of twelve years on Count Three, and thirty-five years without possibility of parole for first-degree felony murder. The court ordered sentences on the latter two counts to run concurrently with each other, but consecutively to Count Two. The trial court credited defendant with 389 days of presentence incarceration and ordered her to pay a $300 felony assessment fee.¹ Defendant appealed to the court of appeals.

The court of appeals reversed defendant’s conviction, finding that the trial court’s preclusion of defendant’s proffered testimony regarding battered-woman syndrome violated due process. State v. Mott, 183 Ariz. 191, 195, 901 P.2d 1221, 1225 (App.1995). Relying on Christensen and Gonzales, the court held that Dr. Karp’s testimony on the character traits of battered women and the presence of those traits in defendant provided probative evidence that, if believed by the jury, negated the element of knowledge or intent. Mott, 183 Ariz. at 194, 901 P.2d at 1224. It found that precluding the testimony denied defendant the opportunity to present essential evidence in her defense. Id. at 195, 901 P.2d at 1225. Consequently, the court of appeals reversed and remanded for a new trial. Id. The state petitioned for, and we granted, review in this court.

II. DISCUSSION

A. Expert Testimony

Defendant offered the expert testimony of Dr. Karp to challenge the element of knowledge or intent on the child abuse counts. Defendant made an offer of proof before trial to the trial court regarding Dr. Karp’s testimony. Additionally, the trial court allowed the doctor to testify at the mitigation hearing after the trial to make a further record of the proffered testimony.

Dr. Karp had concluded that defendant was a battered woman and that being a battered woman was relevant to her ability to protect her children. According to the doctor, a battered woman forms a “traumatic bond” to her batterer. She does not feel that she can escape her environment; she is hopeless and depressed. Furthermore, the battered woman cannot sense danger or protect others from danger. She is inclined to believe what the batterer tells her and will he to protect him. Dr. Karp concluded that defendant’s history of being abused, in conjunction with her limited intelligence,² prohibited her from being able to decide to take Sheena to the hospital. Prior to trial, defendant’s counsel offered the evidence to “explain to the jury why [defendant] lacked the capacity to defy [Near.]”

As a threshold issue, the state claims that defendant has waived any claim of error because she withdrew the battered-woman syndrome defense. Though defendant withdrew the syndrome as a defense, she continued to argue that evidence of the syndrome and her own history of being abused were relevant evidence of her decision-making process and her inability to form the requisite mental state for the charged offenses. Consequently, we find that defendant has not waived her claim that the trial court erred by precluding the proffered testimony.³

Defendant’s purpose in offering Dr. Karp’s testimony was to demonstrate that defendant was not capable of forming the requisite mental state of knowledge or intent.⁴ Thus, the evidence of defendant’s history of being battered and of her limited intellectual ability was not offered as a defense to excuse her crimes but rather as evidence to negate the mens rea element of the crime. Courts have “referred to the use of expert psychiatric evidence to negate mens rea as a ‘diminished capacity’ or ‘diminished responsibility’ defense.” United States v. Pohlot, 827 F.2d 889, 896 (3rd Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 660 (1988). Such evidence is distinguishable from an affirmative defense that excuses, mitigates, or lessens a defendant’s moral culpability due to his psychological impairment. United States v. Cameron, 907 F.2d 1051, 1062-63 (11th Cir.1990); United States v. Fazzini, 871 F.2d 635, 641 (7th Cir.1989), cert. denied, 493 U.S. 1095, 110 S.Ct. 1173, 107 L.Ed.2d 1075 (1990).

The Arizona legislature, however, declined to adopt the defense of diminished capacity when presented with the opportunity to do so. Arizona’s criminal code was based on the Model Penal Code. See State v. Willoughby, 181 Ariz. 530, 538, 892 P.2d 1319, 1327 (1995). The 1962 version of the Model Penal Code allowed the admission of “[e]vidence that the defendant suffered from a mental disease or defect ... whenever it [wa]s relevant to prove that the defendant did or did not have a state of mind that is an element of the offense.” Model Penal Code § 4.02(1) (1962). This section was written in recognition of the existence of “degrees of mental disease or defect that fall short of that required for invoking the defense of irresponsibility, but that may be put in evidence as tending to show that the defendant lacked the specific mens rea required for the commission of the offense charged.” Model Penal Code and Commentaries § 4.02(1) cmt. 2 (1985). The legislature’s decision not to adopt this section of the Model Penal Code evidences its rejection of the use of psychological testimony to challenge the mens rea element of a crime.

Moreover, this court considered and rejected the defense of diminished capacity in State v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965), cert. denied, 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 530 (1966). There, we recognized that the legislature is responsible for promulgating the criminal law and that it “has not recognized a disease or defect of mind in which volition does not exist ... as a defense to a prosecution for [a crime.]” Id. at 212, 403 P.2d at 529. Furthermore, we found that this Court does not have the authority to adopt the diminished capacity defense. 98 Ariz. at 212-13, 403 P.2d at 529.

Because the legislature has not provided for a diminished capacity defense, we have since consistently refused to allow psychiatric testimony to negate specific intent. State v. Ramos, 133 Ariz. 4, 6, 648 P.2d 119, 121 (1982); State v. Laffoon, 125 Ariz. 484, 486, 610 P.2d 1045, 1047 (1980); State v. Briggs, 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975). Instead, the legislature has provided the M’Naghten test “as the sole standard for criminal responsibility.” Ramos, 133 Ariz. at 6, 648 P.2d at 121.⁵ This test provides:

A person is not responsible for criminal conduct by reason of insanity if at the time of such conduct the person was suffering from such a mental disease or defect as not to know the nature and quality of the act or, if such person did know, that such person did not know that what he was doing was wrong.

A.R.S. § 13-502(A). Consequently, Arizona does not allow evidence of a defendant’s mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.

Defendant and the dissent contend, however, that precluding a defendant from introducing psychological testimony to challenge the mens rea element of a crime violates due process. The United States Supreme Court addressed this question in Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946). There, the trial court refused to instruct the jury that it could consider the defendant’s mental deficiencies, which did not rise to the level of insanity, in determining the elements of premeditation. Id. at 470, 66 S.Ct. at 1321-22. The Supreme Court noted that the law of the District of Columbia did not permit such an instruction. Id. at 471, 66 S.Ct. at 1322. The Court stated that, contrary to the defendant’s request, it would not “force” the District of Columbia to adopt a requirement that criminal defendants be allowed to present evidence of a mental deficiency to determine the elements of premeditation and deliberation. Id. at 476, 66 S.Ct. at 1325.

The Court went on to state:

We express no opinion upon whether the theory for which petitioner contends should or should not be made the law of the District of Columbia. Such a radical departure from common law concepts is more properly a subject for the exercise of legislative power or at least for the discretion of the courts of the District. The administration of criminal law in matters not affected by Constitutional limitations or a general federal law is peculiarly of local concern.

Id. (emphasis added). Thus, Fisher stands for the proposition that state legislatures, without violating the constitution, may preclude defendants from offering evidence of mental and psychological deficiencies to challenge the elements of a crime.

More recently, several of the federal circuits have held that “a state is not constitutionally compelled to recognize the doctrine of diminished capacity and hence a state may exclude expert testimony offered for the purpose of establishing that a criminal defendant lacked the capacity to form a specific intent.” Muench v. Israel, 715 F.2d 1124, 1144-45 (7th Cir.1983), cert. denied sub. nom Worthing v. Israel, 467 U.S. 1228, 104 S.Ct. 2682, 81 L.Ed.2d 878 (1984); see also Haas v. Abrahamson, 910 F.2d 384, 398 (7th Cir.1990); Welcome v. Blackburn, 793 F.2d 672, 674 (5th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1985, 95 L.Ed.2d 825 (1987); Campbell v. Wainwright, 738 F.2d 1573, 1581 (11th Cir.1984), cert. denied, 475 U.S. 1126, 106 S.Ct. 1652, 90 L.Ed.2d 195 (1986); and Wahrlich v. Arizona, 479 F.2d 1137, 1138 (9th Cir.), cert. denied, 414 U.S. 1011, 94 S.Ct. 375, 38 L.Ed.2d 249 (1973).

The dissent relies on Montana v. Egelhoff, — U.S. -, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), to argue that precluding a defendant from offering evidence that he was unable to form the requisite intent because of a mental defect is unconstitutional. Egelhoff, however, did not address the constitutionality of precluding evidence of diminished capacity to challenge the mens rea element of a crime. Instead, it resolved the constitutionality of precluding a defendant from offering evidence of his voluntary intoxication to negate the mens rea element of an offense. Id. at -, 116 S.Ct. at 2016. The court concluded that barring such evidence of voluntary intoxication does not violate the constitution. Id. at-, 116 S.Ct. at 2024. Thus, Egelhoff lends little support to the dissent’s argument. Furthermore, in Fisher, the Supreme Court upheld the constitutionality of precluding a defendant from offering psychological testimony to rebut mens rea. Until such time as the Court overrules Fisher, it resolves the due process issue raised by defendant and the dissent.

Additionally, for a state’s regulation of its criminal procedures to violate the Due Process Clause, it must “offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977) (quoting Speiser v. Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 1340-41, 2 L.Ed.2d 1460 (1958)). The practice of barring defendants from offering diminished capacity evidence to negate the mens rea element of a crime does not violate a fundamental principle. To the contrary, as the Supreme Court noted in Fisher, requiring states to allow such evidence “would involve a fundamental change in the common law theory of responsibility.” 328 U.S. at 476, 66 S.Ct. at 1325; see also id. (referring to such a change as “a radical departure from common law concepts”). Furthermore, the fact that many jurisdictions⁶ still do not allow the use of diminished capacity evidence to negate mens rea is “plainly worthy of considering in determining whether rejection of the doctrine offends due process.” Muench, 715 F.2d at 1142.

The dissent argues that several federal circuit court cases have considered “the precise issue raised in this ease” and have allowed the introduction of evidence rebutting the element of mens rea. The cited cases, however, address the question whether the United States Congress intended to abolish the diminished capacity defense by the Insanity Defense Reform Act of 1984,18 U.S.C. § 17. See Cameron, 907 F.2d at 1061; United States v. Bartlett, 856 F.2d 1071, 1079-81 (8th Cir.1988); United States v. Twine, 853 F.2d 676, 678 (9th Cir.1988); Pohlot, 827 F.2d at 897. These cases do not address the constitutionality of precluding a defendant from introducing evidence of diminished capacity to challenge the element of specific intent. Consequently, they do not support the dissent’s assertion that due process requires Arizona to admit evidence of mental abnormality to negate mens rea.

Furthermore, we note in passing that most of the federal courts that explicitly recognize that evidence of mental abnormality is admissible on the issue of mens rea, prohibit the type of testimony offered by defendant in this case. See Pohlot, 827 F.2d 889; Cameron, 907 F.2d 1051; but see Twine, 853 F.2d 676 (mental defect evidence admissible on whether defendant possessed mental capacity to form specific intent).

In Cameron, the defendant claimed that schizophrenia “ ‘rendered her incapable of forming the specific intent necessary to commit the crimes charged.’ ” 907 F.2d at 1067. She argued that the jury should have been allowed to consider evidence of her mental defect in determining whether she possessed the mental capacity to intend to distribute drugs. Id. In rejecting this argument, the court observed that when a defendant claims to have psychiatric evidence that she was “incapable” of forming the intent necessary for the crime charged, “most often that defendant is speaking of an incapacity to reflect or control the behaviors that produced the criminal conduct. Such evidence is not ‘psychiatric evidence to negate specific intent’ and should not be admitted.” Id. at 1066. The court noted that otherwise, as Congress feared, “‘the insanity defense [will be] improperly resurrected in the guise of ... “diminished responsibility” or some similarly asserted state of mind which would serve to excuse the offense and open the door, once again, to needlessly confusing psychiatric testimony.’” Id. (quoting S.Rep. No. 98-225, 98th Cong.2d Sess. 229 (1984), reprinted in 1984 U.S.Code Cong. & Ad. News, 3182, 3411).

Similarly, the Third Circuit has recognized that “only in the most extraordinary circumstances could a defendant actually lack the capacity to form mens rea as it is normally understood in American law. Even the most psychiatrically ill have the capacity to form intentions, and the existence of intent usually satisfies any mens rea requirement.” Pohlot, 827 F.2d at 903 (citation omitted). Commentators have argued that “permitting evidence and arguments about a defendant’s capacity to form mens rea distracts and confuses the jury from focusing on the actual presence or absence of mens rea.” Id. at 903-04. “Because psychiatric evidence (1) will only rarely negate specific intent, (2) presents an inherent danger that it will distract the jury’s [sic] from focusing on the actual presence or absence of mens rea, and (3) ‘may easily slide into wider usage that opens up the jury to theories of defense more akin to justification,’” Cameron, 907 F.2d at 1067 (quoting Pohlot, 827 F.2d at 904-05), such evidence is inadmissible in the federal courts unless it would “‘support a legally acceptable theory of lack of mens rea.’” Id. (quoting Pohlot, 827 F.2d at 906).

In evaluating a defendant’s criminal responsibility, the federal courts look at a defendant’s conscious awareness. See Pohlot, 827 F.2d. at 906. “Mens rea is generally satisfied ... by any showing of purposeful activity, regardless of its psychological origins.” Id. at 904. “[PJurposefid activity is all the law requires.” Id. at 907. Here, Dr. Karp’s testimony was offered to establish that, because of her limited intelligence and abusive history, defendant was not capable of forming the specific intent required for knowing or intentional child abuse. This is not, according to Pohlot and Cameron, a legally acceptable theory of lack of mens rea.

The defendant was capable of recognizing that her child was injured and that she needed medical attention. Indeed, when defendant found Sheena unconscious, she was aware that Sheena needed medical help. Defendant stated that she was confused and that she did not take Sheena to the hospital for fear that someone would see Sheena’s bruises and that Near would harm her if she took any action to help the child. Her actions were clearly purposeful, thus satisfying the mens rea requirement. Most federal courts would not, under the theory that defendant lacked mens rea, excuse the defendant’s conscious failure to act simply because she was motivated by unconscious influences that were the product of her genes or her environment. See Pohlot, 827 F.2d at 906.

We now turn to the Arizona cases, Christensen, 129 Ariz. at 32, 628 P.2d at 580, and Gonzales, 140 Ariz. at 349, 681 P.2d at 1368, relied upon by defendant and the court of appeals as support for the argument that due process requires the trial court to admit defendant’s proffered testimony. As we have concluded above, however, precluding this testimony does not violate due process. Moreover, Christensen is distinguishable, and Gonzales is wrongly decided.

In Christensen, this court held that to challenge the element of premeditation, a psychology expert could testify that the defendant reacted impulsively to stress. Christensen, 129 Ariz. at 34-35, 628 P.2d at 582-83. We found that the trial court erred by excluding the proffered testimony because it prevented the defendant from offering evidence to dispute an element of the charge against him. Id. at 36, 628 P.2d at 584. The holding was limited, however, in that the expert could not testify specifically whether the defendant was acting impulsively at the time of the homicide. Id. at 35-36, 628 P.2d at 583-84.

Christensen is distinguishable from the present case because the evidence offered by the defendant in that case was not evidence of his diminished mental capacity. Rather, the defendant merely offered evidence about his behavioral tendencies. He attempted to show that he possessed a character trait of acting reflexively in response to stress. Id. at 34, 628 P.2d at 582. The proffered testimony was not that he was incapable, by reason of a mental defect, of premeditating or deliberating but that, because he had a tendency to act impulsively, he did not premeditate the homicide. Because he was not offering evidence of his diminished capacity, but only of a character trait relating to his lack of premeditation, the defendant was not precluded from presenting the expert testimony.

In Gonzales, on the other hand, a defendant charged with sexual assault and kidnapping attempted to introduce testimony of his diminished mental capacity. 140 Ariz. at 350, 681 P.2d at 1369. He offered expert testimony that his low intelligence and probable organic brain damage affected his ability to reason, to show that he “did not and could not have the specific intent to commit the rape,” and to aid the jury in assessing credibility. Id. at 350-51, 681 P.2d at 1369-70 (emphasis added). We held that the trial court erred in excluding the proffered testimony because it was relevant to the defendant’s “mere presence” defense and provided the jury with information essential to the assessment of credibility. Id. at 351, 681 P.2d at 1370.

To the extent that Gonzales held that expert testimony regarding a defendant’s mental capacity is admissible to challenge the requisite mental state of a charged crime,⁷ it is incorrect. To convict the defendant in Gonzales of unlawful imprisonment, “the jury had to find beyond a reasonable doubt that the defendant was aware or of the belief that his actions or omissions were in the nature of a restriction on [the victim’s] movements.” Id. at 352, 681 P.2d at 1371. We found that the proffered evidence of the defendant’s mental condition was probative of his mental state and that the trial court erred in failing to admit it. Id. at 353, 681 P.2d at 1372. We neglected to recognize, however, that the evidence was essentially expert testimony on the defendant’s cognitive ability to form the requisite mental state. As such, it was evidence of diminished capacity and inadmissible under Schantz, 98 Ariz. at 200, 403 P.2d at 521. Accordingly, we overrule Gonzales to the extent it allowed evidence of a defendant’s diminished mental capacity as a defense to a charged crime.

The dissent asserts that because the defendant was not attempting to argue the affirmative defense of diminished capacity as an excuse for criminal responsibility, the trial court should not have precluded evidence that her mental condition prevented her from acting with specific criminal intent. We disagree. As the dissent notes, Dr. Karp would have provided the jury with information that fear, low intelligence, and psychological trauma resulting from abuse affected the defendant’s capacity to make the decision to take her child to the hospital. Dissent at 35. This is, of course, diminished responsibility. We have previously “rejected the theory of diminished responsibility which allows evidence of mental disease or defect, not constituting insanity under M’Naghten, to be admitted for the purpose of negating criminal intent.” State v. Laffoon, 125 Ariz. 484, 486, 610 P.2d 1045, 1047 (1980).

Dr. Karp’s testimony was offered to demonstrate that defendant’s mental incapacity negated specific intent. Her testimony was not admissible for this purpose. The testimony did not meet the standards of the one test for criminal responsibility — the M’Naghten test — that Arizona does follow. Furthermore, if we adopted the defendant’s position and allowed expert testimony such as this to negate specific intent, the result would be, as we said in Schantz, to compel juries to “release[ ] upon society many dangerous criminals who obviously should be placed under confinement.” Accordingly, we hold that the trial court did not err by precluding Dr. Karp’s testimony regarding the battered-woman syndrome. Consequently, we vacate the court of appeals’ decision.

B. Evidence of Prior Bad Acts

Defendant claims that the trial court erred in admitting evidence of her prior bad acts in violation of Rule 404(b), Arizona Rules of Evidence. The evidence presented was of defendant’s relations with her daughter one to one-and-a-half years prior to the incident. The evidence was that defendant (1) left Sheena with her in-laws from the age of two months until she was approximately two years old; (2) struck the child; (3) said she hated Sheena and wished she were dead; and (4) was an outgoing, expressive individual who could stand up for herself. We find that the trial court’s admission of this evidence was not an abuse of discretion.

We review a trial court’s admission of evidence of prior bad acts under Rule 404(b) for abuse of discretion. State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853, 858 (1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1025, 112 L.Ed.2d 1107, cert. denied sub nom. Washington v. Arizona, 498 U.S. 1127, 111 S.Ct. 1091, 112 L.Ed.2d 1195 (1991). To admit evidence of prior bad acts, the trial court must find that the evidence is admitted for a proper purpose under Rule 404(b), is relevant under Rule 402, and that its probative value is not substantially outweighed by the potential for unfair prejudice under Rule 403. The court must give an appropriate limiting instruction if requested under Rule 105. State v. Atwood, 171 Ariz. 576, 638, 832 P.2d 593, 655 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). Defendant claims that the evidence satisfied none of these requirements.

First, she contends that there was no proper purpose for admitting the prior acts. Rule 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, [or] intent____” The trial court found the prior acts were admissible to show motive and credibility and as rebuttal to defendant’s proffered testimony regarding battered-woman syndrome. Because the court’s finding that the evidence was probative on defendant’s motive is supported by the relationship between the evidence and the theory of the state’s case, we do not consider the other two grounds. The prior acts demonstrated defendant’s lack of concern or actual dislike for her child, which could reasonably be construed as a motive for the charged offenses.

Second, the evidence of defendant’s prior acts was relevant to the issues at trial. “In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.” Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988) (adopted in Atwood, 171 Ariz. at 638, 832 P.2d at 655); see also Ariz.R.Evid. 104(b) (relevancy conditioned on fact). We find that the jury reasonably could have concluded that defendant committed the alleged acts.

Third, the potential for unfair prejudice presented by the prior acts must not substantially outweigh its probative value. Rule 403. The state claims that defendant has waived any claim of prejudice by failing to urge it in the trial court. Review of the record, however, shows that defendant did object on the ground of prejudice, but the trial court failed to explicitly address the necessary balancing.

The trial court should exclude relevant evidence if it is unfairly prejudicial. Ariz.R.Evid. 403. Unfair prejudice results if the evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror. State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162, cert. denied, 510 U.S. 1026, 114 S.Ct. 640, 126 L.Ed.2d 598 (1993). Not all harmful evi dence, however, is unfairly prejudicial. Id. Defendant’s arguments of prejudice relate to her claim that the evidence was not admitted for a proper purpose under Rule 404(b). She has pointed to nothing that suggests that the evidence was unfairly prejudicial. See State v. Gonzales, 181 Ariz. 502, 511, 892 P.2d 838, 847 (1995), cert. denied, — U.S. -, 116 S.Ct. 720, 133 L.Ed.2d 673 (1996). We find that the probative value of these acts was not substantially outweighed by the danger of unfair prejudice.

The final requirement for the admission of evidence of prior acts is that the trial court must give an appropriate limiting instruction if the opponent of the evidence requests one. Atwood, 171 Ariz. at 638, 832 P.2d at 655. In this case, the state included a limiting instruction on the prior act evidence with its requested instructions. The trial court found it confusing and stated that it preferred not to give the instruction. The prosecutor informed the trial court that it was required to give the instruction if the defendant requested it. The court noted that the defendant had not requested a limiting instruction and, consequently, declined to give one. Defendant’s counsel was present during this exchange. At no time did she request a limiting instruction or object to the trial court’s refusal of the state’s instruction. It is clear from these facts that defendant waived any such claim on review.

Therefore, we hold that the trial court did not abuse its discretion in admitting evidence of defendant’s prior acts. The evidence was relevant to defendant’s motive. The jury could have reasonably found the prior acts to have occurred. No unfair prejudice outweighed the probative value. Finally, defendant did not request a limiting instruction and, hence, none was required.

C. Proximate Causation Instruction

Defendant next contends that the trial court erred in refusing to give her proffered instruction on proximate cause. Defendant claims that she was entitled to an instruction on proximate cause as an element of felony murder where the cause of death is an issue. She cites State v. Wiley, 144 Ariz. 525, 540, 698 P.2d 1244, 1259 (1985), overruled on other grounds, State v. Superior Ct., 157 Ariz. 541, 544, 760 P.2d 541, 544 (1988), and State v. Smith, 160 Ariz. 507, 510, 774 P.2d 811, 814 (1989).

Wiley merely held that a proximate cause instruction was not improper. 144 Ariz. at 540, 698 P.2d at 1259. In Smith, we stated, “in felony murder cases in which causation is in issue, a proximate cause instruction should be given if it would be helpful to the jury.” 160 Ariz. at 510, 774 P.2d at 814. This was dicta, however, as we held that it was not fundamental error for the trial court not to give a proximate cause instruction sua sponte when causation was not at issue in the trial. Id. Moreover, the quoted language does not require such an instruction even when causation is an issue.

A trial court is not required to give a proposed instruction when its substance is adequately covered by other instructions. Wiley, 144 Ariz. at 540, 698 P.2d at 1259. Here, the trial court refused the proffered instruction because it would confuse the jury. It did instruct the jury on the elements of the crime, including causation. The instructions, considered in their entirety, adequately reflect the law. State v. Gallegos, 178 Ariz. 1, 10, 870 P.2d 1097, 1106, cert. denied, 513 U.S. 934, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994). Furthermore, both the state and defendant’s counsel argued causation to the jury in closing arguments. See State v. Rodriguez, 114 Ariz. 331, 334, 560 P.2d 1238, 1241 (1977) (taking into account the closing arguments of counsel in assessing the adequacy of instructions). We find that the trial court did not err in refusing defendant’s jury instruction on proximate causation.

D. Voir Dire

Defendant next argues that the trial court erred by informing the jurors during voir dire that, if convicted, defendant would not be sentenced to the death penalty. Defendant contends that such comments encouraged the jury to convict her on a lesser quantum of evidence than they might otherwise require. We disagree.

In State v. Koch, 138 Ariz. 99, 105, 673 P.2d 297, 303 (1983), this court held that an instruction stating that the defendant would not be subject to the death penalty should not have been given. We found, however, that the instruction was not prejudicial because it did not suggest that, if convicted, the defendant would be treated with leniency. Id. Here, the court did not mention leniency and instructed the jury at the end of trial not to consider possible punishment. We find no prejudice to the defendant.

Additionally, in State v. Dawson, 162 Ariz. 429, 783 P.2d 1221 (App.1989), the court of appeals found that there was “no error, fundamental or otherwise” in instructing jurors during voir dire that the defendant would not be subject to the death penalty. Id. at 430, 783 P.2d at 1222. The trial court sought to alleviate the possibility that concern over the death penalty might destroy jurors predisposed against capital punishment. Id. The trial court also wanted to avoid the risk that those opposed to the death penalty would seek to be excused from jury service in order to avoid a life-or-death decision. Id. The court of appeals approved the instruction and comments. In this case, the trial court voiced similar concerns in instructing the jury, but because the defendant was not prejudiced and Dawson encourages the type of instruction given, we find no error.

Defendant argues that a recent United States Supreme Court case, Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), requires that if one sentencing circumstance favorable to the state was mentioned (that the death penalty was not being sought), the jury must be informed of one sentencing circumstance favorable to the defendant. Simmons, however, is inapposite. It involved a sentencing jury, not an instruction to a jury charged with determining guilt. In Arizona, the trial judge determines punishment. State v. Allie, 147 Ariz. 320, 326, 710 P.2d 430, 436 (1985).

E. Cruel and Unusual Punishment

Finally, defendant argues that her sentence is grossly disproportionate to her degree of involvement in Sheena’s death and thus constitutes cruel and unusual punishment in violation of the Arizona and United States Constitutions. She asserts that her limited intelligence and history of abuse also militate against the sentence. We disagree.

A sentence is cruel and unusual only when there is gross disproportionality between the offense and the sentence. State v. DePiano, 187 Ariz. 27, 926 P.2d 494 (1996). In this case, the defendant was convicted of two counts of child abuse and first-degree murder. By any measure, no inference of gross disproportionality could possibly arise for these offenses. Because there is no inference of gross disproportionality, no intra- or inter-jurisdictional analysis is required.

F. Cross-Appeal

The state cross-appeals, contending that the trial court erred in instructing the jury on the elements of the crime. Because we have resolved all issues against the defendant, this issue is moot.

III. CONCLUSION

For the foregoing reasons, we vacate the court of appeals’ opinion and affirm defendant’s conviction. Additionally, we overrule State v. Gonzales, 140 Ariz. 349, 681 P.2d 1368, to the extent it is inconsistent with this opinion.

MOELLER and MARTONE, JJ., concur.

Philip E. Toci, Vice Chief Judge of the Arizona Court of Appeals was designated by the Chief Justice of the Arizona Supreme Court to participate in this matter pursuant to Ariz. Const, art. VI, § 3.

1

. The fee was included in the court's sentencing order to which defendant affixed her fingerprint but was not included in the transcripts of the sentencing hearing. Because defendant acknowledged her presence at the imposition of sentence by virtue of her fingerprint, we find no violation of Rule 26.9, Arizona Rules of Criminal Procedure (defendant must be present at sentencing). See State v. Powers, 154 Ariz. 291, 295, 742 P.2d 792, 796 (1987).

2

. At trial, Dr. Karp was permitted to testify at length regarding defendant’s limited intellectual abilities. Dr. Karp testified that defendant had a verbal I.Q. of 78, which is on the “borderline mentally defective range of intelligence." Consequently, defendant possessed "extremely limited abilities” and was learning disabled. Dr. Karp further testified that defendant was "concrete." This meant that defendant was unable to make complex decisions or to abstract solutions from one situation to the next.

3

. Evidence of battered-woman syndrome is ordinarily offered in self-defense cases. It has been used to aid the jury in assessing the reasonableness of the defendant’s apprehension and the imminency of death or serious bodily injury. Ex Parte Haney, 603 So.2d 412, 414 (Ala.1992); State v. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970, 973 (Oh.1990); Bechtel v. State, 840 P.2d 1, 9 (Okla.Crim.App.1992). In this case, however, defendant did not offer the evidence for these purposes and we need not address the admissibility of battered-woman-syndrome evidence in self-defense cases.

4

. Contrary to one of the dissent’s arguments, defendant did offer this evidence in an attempt to demonstrate that she did not have the capacity to form the requisite mental state. She made this claim, through her counsel, both at a pretrial hearing and at trial.

5

. Voluntary intoxication negating the culpable mental state of knowledge or intent was at one time an available defense. Ariz.Rev.Stat.Ann. ("A.R.S.”) § 13-503 (1989). As of January 2, 1994, however, the legislature has removed it as a "defense for any criminal act or requisite state of mind.” A.R.S. § 13-503 (Supp.1995).

6

. Bates v. State, 386 A.2d 1139, 1143-44 (Del.1978); Chestnut v. State, 538 So.2d 820 (Fla.1989); Dennis v. State, 170 Ga.App. 630, 317 S.E.2d 874, 876 (1984); Cardine v. State, 475 N.E.2d 696, 698 (Ind.1985); State v. Thompson, 665 So.2d 643, 647 (La.App.1995); State v. Bouwman, 328 N.W.2d 703, 704-05 (Minn.1982); State v. McCray, 103 Ohio App.3d 109, 658 N.E.2d 1076, 1082 (1995); Thomas v. State, 886 S.W.2d 388, 391 (Tex.App.1994); Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682, 688 (1985); Price v. State, 807 P.2d 909, 915 (Wyo.1991).

7

. An alternative ground for finding that the trial court erred in precluding the expert testimony was that such testimony would have aided the jury in assessing the defendant’s credibility as a witness. Gonzales, 140 Ariz. at 350, 681 P.2d at 1369.