State v. Horcasitas

IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. GABRIEL PAUL HORCASITAS, Appellant. No. 1 CA-CR 25-0191 FILED 09-30-2026 Appeal from the Superior Court in Maricopa County No. CR2021-142720-001 The Honorable Todd F. Lang, Judge AFFIRMED IN PART; VACATED AND REMANDED IN PART COUNSEL Maricopa County Public Defender’s Office, Phoenix By Kristen Reller Counsel for Appellant Arizona Attorney General’s Office, Phoenix By Gracynthia Claw Counsel for Appellee Arizona Voice for Crime Victims, Phoenix By Colleen Clase, Jessica Gattuso, Thomas E. Lordan Counsel for Crime Victims  STATE v. HORCASITAS Opinion of the Court OPINION Presiding Judge D. Steven Williams delivered the Court’s opinion in which Judge Anni Hill Foster and Vice Chief Judge David D. Weinzweig joined. W I L L I A M S, Judge: ¶1 Defendant Gabriel Paul Horcasitas shot and killed the victim during a road rage confrontation. A jury rejected his claim of self-defense and convicted him of manslaughter. At sentencing, the superior court heard and relied on an artificial intelligence (“AI”) video rendering of the victim speaking to his family, the court, and Horcasitas, which the court characterized as “genuine” and “speaki[ng] from his heart.” We affirm the conviction, rejecting Horcasitas’s argument that the court erred in precluding text messages obtained from the victim’s phone. We vacate the manslaughter sentence and remand for resentencing because the AI video was not reliable. FACTUAL AND PROCEDURAL BACKGROUND ¶2 While stopped behind a truck at a red light in a busy intersection, Horcasitas repeatedly honked his car’s horn. State v. Horcasitas, 1 CA-CR 23-0215, 2024 WL 1463390, at *1, ¶ 2 (Ariz. App. Apr. 4, 2024) (mem. decision) (prior appeal affirming order granting Horcasitas a new trial). In response, the victim stepped out of the truck, raised his arms, and began yelling as he approached Horcasitas’s vehicle. Id. Within seconds, Horcasitas shot and killed the victim. Id. ¶3 During an interview with police the day of the shooting, Horcasitas recounted that the victim had charged toward his car, repeatedly threatened to kill him, and grabbed the frame of his open driver’s-side window, causing him to fear for his life. Contrary to Horcasitas’s account, several eyewitnesses reported that the victim had not advanced beyond the rear of his truck when Horcasitas shot him, and no eyewitness saw the victim touch or reach into Horcasitas’s car. ¶4 The State charged Horcasitas with first-degree felony murder (Count 1), second-degree murder (Count 2), drive-by shooting (Count 3), and three counts of endangerment (Counts 4-6, with different alleged 2  STATE v. HORCASITAS Opinion of the Court victims). Id. at ¶ 3. Before trial, Horcasitas disclosed several defenses, including justification and self-defense. Id. ¶5 Mid-trial, defense counsel learned, through his cross- examination of a detective, that police had conducted a forensic analysis of the victim’s cell phone. Id. at ¶ 4. During a subsequent sidebar conference, defense counsel challenged the State’s failure to disclose the victim’s cell phone records. Id. The next morning, the State moved for a protective order addressing the victim’s cell phone. Id. at ¶ 5. As part of its motion, the State acknowledged that: (1) Arizona Rule of Criminal Procedure (“Rule”) 15.1 compelled the State to disclose the victim’s cell phone records, and (2) those records may contain exculpatory evidence implicating Brady v. Maryland, 373 U.S. 83 (1963). Horcasitas, 1 CA-CR 23-0215, at *1, ¶ 5. But explaining that “the victim’s identifying and/or locating information [could not] be redacted,” the State requested “a protective order limiting disclosure of the victim’s identifying information.” Id. ¶6 “After discussing the possibility of a mistrial, the superior court granted the motion for protective order, found a discovery violation by the State and deferred appropriate sanctions.” Id. at *2, ¶ 8. At the close of trial, the jury rendered split verdicts, finding Horcasitas: (1) not guilty of first-degree felony murder, (2) not guilty of second-degree murder but guilty of the lesser-included offense of manslaughter, (3) not guilty of drive- by shooting, and (4) guilty of one count of endangerment (Count 5) and not guilty of the other two endangerment counts. Id. at ¶ 9. ¶7 Horcasitas timely moved for a new trial, asserting that forensic analysis of the victim’s phone had revealed exculpatory evidence not previously disclosed by the State, “including texts relating to the victim’s mental state and tendency to ‘snap’ while driving in the weeks leading up to the shooting.” Id. at ¶ 10. After oral argument on the motion, the superior court “found the State had violated its disclosure obligations under both Brady and Rule 15.1(b)(8)” by withholding the text messages from the victim’s cell phone that “bolstered Horcasitas’ self-defense and related justifications.” Id. at ¶ 11. Pointing to Horcasitas’s right “to put on a complete defense,” the court granted the motion for new trial, vacated the guilty verdicts, and entered a judgment of acquittal on the first-degree felony murder, second-degree murder, and drive-by shooting charges as well as two of the endangerment counts (Counts 4 and 6). Id. ¶8 The State timely appealed. On review, this court affirmed the superior court’s order. Id. at *5, ¶ 26. 3  STATE v. HORCASITAS Opinion of the Court ¶9 During the months leading up to the second trial, Horcasitas disclosed his intent to call the victim’s brother-in-law to testify concerning the victim’s propensity for violence. The State moved to preclude Horcasitas from introducing any propensity evidence, whether testimonial or from the victim’s cell phone, arguing such evidence was inadmissible under Arizona Rules of Evidence (“Evidence Rule”) 403 and 404. Horcasitas countered that Evidence Rules 404(a)(2) and 405(a) allowed him to present reputation and opinion evidence concerning the victim’s character for violence, including text messages sent by the victim’s brother-in-law during the weeks before the shooting. According to Horcasitas, evidence of the text messages was also admissible under Evidence Rule 404(b) to show the victim’s “intent, motive, and absence of mistake.” ¶10 After hearing argument, the superior court granted the State’s motion in part, precluding the text messages under Evidence Rule 404(b) because the victim’s other acts were unknown to Horcasitas at the time of the shooting. Additionally, the court found the text messages inadmissible under Evidence Rule 403, explaining their probative value was “negligible” given: (1) the numerous eyewitnesses who would testify that the victim initiated the confrontation with Horcasitas, and (2) the substantial possibility the text messages would confuse and mislead the jurors. ¶11 Despite repeated attempts, Horcasitas was unable to serve the victim’s brother-in-law with a criminal subpoena. But undeterred by the superior court’s preclusion order, Horcasitas noticed his intent to introduce the text messages at trial under Evidence Rule 807, the residual exception to the rule against hearsay. The court denied the notice of intent, finding the text messages were supported by sufficient guarantees of trustworthiness but characterizing their probative value as “quite low.” ¶12 Before trial, Horcasitas pled guilty to a count of endangerment, Count 5 of the original indictment. A second jury then found him guilty of manslaughter, a dangerous offense. ¶13 The superior court sentenced Horcasitas to a presumptive term of 10.5 years’ imprisonment on the count of manslaughter and a concurrent, presumptive term of 2.25 years’ imprisonment on the count of endangerment. Horcasitas timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1). DISCUSSION I. Preclusion of the Text Messages 4  STATE v. HORCASITAS Opinion of the Court ¶14 Horcasitas argues the superior court improperly precluded certain text messages retrieved from the victim’s cell phone, and in doing so, infringed on his constitutional right to present a complete defense. ¶15 We review a superior court’s evidentiary rulings for an abuse of discretion. State v. Zaid, 249 Ariz. 154, 157, ¶ 5 (App. 2020). But we interpret the rules of evidence de novo. Id. ¶16 We will affirm the superior court’s ruling if “legally correct for any reason.” State v. Carlson, 237 Ariz. 381, 387, ¶ 7 (2015) (quoting State v. Perez, 141 Ariz. 459, 464 (1984)). But if the court erred in excluding evidence, we will uphold the verdict only if “we can say beyond a reasonable doubt that the error did not contribute to or affect the verdict.” State v. Fish, 222 Ariz. 109, 114, ¶ 8 (App. 2009). ¶17 First, Horcasitas argues the superior court’s evidentiary ruling violated the “law of the case” doctrine. Despite conceding that the first trial court, and this court on review, “considered the text messages” only within “the context of discovery rather than admissibility,” Horcasitas contends that the “logical underpinnings” of the discovery determination are “binding on the issue of admissibility.” ¶18 “’Law of the case’ concerns the practice of refusing to reopen questions previously decided in the same case by the same court or a higher appellate court.” State v. Whelan, 208 Ariz. 168, 171, ¶ 8 (App. 2004) (quoting Davis v. Davis, 195 Ariz. 158, 162, ¶ 13 (App. 1999)). As Horcasitas correctly points out, on review, this court upheld the first trial court’s finding that evidence of the text messages “was material to Horcasitas’ self-defense claim” and therefore subject to mandatory disclosure. Horcasitas, 1 CA-CR 23-0215, at *5, ¶ 25. But neither the first trial court nor this court addressed the admissibility of such evidence, a separate question. See Mittelstadt v. Burgess, 259 Ariz. 192, 197, ¶ 12 (App. 2025) (explaining the scope of discoverable evidence is greater than the scope of admissible evidence: “[E]vidence need not be admissible to be discoverable.”). Because not all material evidence is admissible, see Ariz. R. Evid. 402, and the admissibility of the text messages remained an unresolved issue, the superior court’s evidentiary ruling in the second trial did not implicate the law of the case doctrine. ¶19 Next, Horcasitas argues that the text messages sent to the victim by his brother-in-law were admissible to: (1) establish the victim’s character trait for aggression, (2) prove who was the initial aggressor, and (3) corroborate Horcasitas’s overall account of the shooting. 5  STATE v. HORCASITAS Opinion of the Court ¶20 To address this claim, we first review the relevant rules of evidence. Evidence Rule 404 governs character evidence. Subsection (a) generally precludes evidence of a person’s character or trait “for the purpose of proving action in conformity therewith on a particular occasion.” But as relevant here, subsection (a)(2) provides an exception, permitting an accused to present evidence “of a pertinent trait of character of the victim.” The victim exception is not unbounded, however. Subsection (b) precludes evidence of “other crimes, wrongs, or acts” for propensity purposes, permitting other-act evidence only to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid. 404(b)(1), (2). Evidence Rule 405 further delineates the permissible methods of presenting character evidence. “When evidence of a person’s character or character trait is admissible” under Evidence Rule 404, Evidence Rule 405(a) strictly limits the form of such evidence to “testimony about the person’s reputation” or opinion “testimony.” “On cross-examination of the character witness,” however, “the court may allow an inquiry into relevant specific instances of the person’s conduct.” Ariz. R. Evid. 405(a). Likewise, “[w]hen a person’s character or character trait is an essential element of a charge, claim, or defense, . . . the character or trait may also be proved by relevant specific instances of the person’s conduct.” Ariz. R. Evid. 405(b). ¶21 Before trial, Horcasitas sought to admit the following text messages sent from the victim’s brother-in-law to the victim: [Y]ou perceive everything [as] aggressive. Look at how many times you snap in your truck alone. Stop being so aggressive. Only every single argument you have is the other guy’s fault. Look at your steering wheel. That’s your brain assuming the world is attacking you. ¶22 Applying the governing evidentiary rules, these texts were inadmissible. See State v. Connor, 215 Ariz. 553, 558–59, ¶ 13 (App. 2007) (explaining that a defendant may offer “proof of the victim’s reputation for violence,” but “only in limited ways” (quoting State v. Zamora, 140 Ariz. 338, 341 (App. 1984))). First, none of the texts recounts a specific, isolated event. Instead, they are general, vague assessments of the victim’s character and tendencies. Accordingly, they do not constitute “other acts” as 6  STATE v. HORCASITAS Opinion of the Court contemplated under Evidence Rule 404(b), and Horcasitas’s reliance on Fish for the proposition that the texts could have been used for a non-propensity purpose is misplaced. See Fish, 222 Ariz. at 114, 126, ¶¶ 9, 54 (holding that “evidence of specific acts” of a victim’s past violence were relevant to corroborate the defendant’s description of the events at issue, subject to “an appropriate” Evidence Rule 403 balancing test, even though the defendant was not aware of those specific acts). ¶23 Second, while opinion evidence that a victim has a character trait for aggression or a tendency to misperceive others’ actions as a personal attack may be admissible, Evidence Rule 405(a) plainly restricts the form of such evidence to “testimony.” Connor, 215 Ariz. at 560, ¶ 18 (explaining that a defendant may prove a victim’s character trait only “by testimony as to reputation or by testimony in the form of an opinion” (quoting Ariz. R. Evid. 405(a))). Had the victim’s brother-in-law testified at trial, defense counsel could have asked his opinion of the victim’s character for aggression or tendency to misperceive others’ conduct as attacks, consistent with the text messages. But such opinion evidence may be introduced only through a testifying witness, not extrinsic evidence. Id. at 559, ¶ 13 (noting that when “evidence of a character trait is admissible[,] such evidence is limited on direct examination to reputation or opinion evidence”). Because the text messages are inadmissible under the applicable rules of evidence, the superior court did not abuse its discretion by precluding them at trial. 1 ¶24 Lastly, Horcasitas argues the superior court improperly excluded a text message sent by the victim. According to Horcasitas, the text message provides vital evidence concerning the victim’s state of mind—evidence that, inferentially, demonstrates the reasonableness of Horcasitas’s belief that he needed to respond to the victim’s aggression with deadly physical force. ¶25 At trial, defense counsel asked a police sergeant whether he discovered anything on the victim’s cell phone suggesting that the victim “was troubled in the days prior” to the shooting. The prosecutor objected to the line of questioning, citing the superior court’s prior ruling denying 1 To the extent Horcasitas argues that the text messages sent to the victim by his brother-in-law were admissible, alternatively, under Evidence Rule 807, such a contention is unfounded. Evidence Rule 807 provides a residual exception to the general rule against hearsay, Ariz. R. Evid. 802, not an exception to the rules strictly limiting character evidence, Ariz. R. Evid. 404, 405. 7  STATE v. HORCASITAS Opinion of the Court defense counsel’s motion to compel disclosure of the victim’s mental health records. The court agreed with the prosecutor, stating that defense counsel was precluded from “going into [the victim’s] mental health.” As relevant here, defense counsel then made the following offer of proof concerning a text message sent by the victim three days before the shooting: [I]f you leave me be, my broke [expletive] who sleeps in his truck while painfully looking for and trying . . . to fight for my child, I’m trying like hell to fix me instead of blowing my brains out. Defense counsel argued that evidence of the victim “expressing suicidal ideation and desperation . . . [was] absolutely relevant . . . [to] the reasonableness of [Horcasitas’s] fear.” While agreeing with defense counsel that the evidence was relevant, the court sustained the State’s objection to the text message, concluding that “under [Evidence Rule] 403, it’s—it’s [probative value is] vastly outweighed by the danger of confusing the . . . jurors.” Horcasitas challenges the superior court’s admissibility determination on several fronts. ¶26 First, he implicitly argues that the proffered text did not run afoul of the court order denying his motion to compel disclosure of the victim’s mental health records. We agree. Although defense counsel referenced other text messages in his offer of proof that arguably fell within the ambit of the court’s order—such as a text from the victim stating he was not taking his prescribed medications—the text message at issue does not refer to the victim’s mental health treatment. ¶27 Second, Horcasitas contends that the proffered text was admissible as a statement of the victim’s then-existing state of mind. Again, we agree. In general, an out-of-court statement offered “to prove the truth of the matter asserted” is inadmissible under the rule against hearsay. Ariz. R. Evid. 801(c), 802. “To be admissible, a court must find that the out-of- court statement fits within one of the many exceptions to the rule against hearsay.” State v. Tucker, 205 Ariz. 157, 165, ¶ 41 (2003). Under Evidence Rule 803(3), a declarant’s statement of his then-existing state of mind or emotional condition is excepted from the general rule against hearsay. “The rationale for [Evidence] Rule 803(3) rests on two assumptions: (1) [a] declarant’s statements have special reliability due to spontaneity and probable sincerity; and (2) because [a] declarant’s knowledge of his or her state of mind is inherently superior to any external, circumstantial account, there is a ‘fair necessity’ to use the declarant’s statements.” State v. Fulminante, 193 Ariz. 485, 495, ¶ 31 (1999) (citation modified). 8  STATE v. HORCASITAS Opinion of the Court ¶28 Within the proffered text, the victim expressed a sense of despair and disclosed a contemplation of self-harm. This declaration of the victim’s then-existing mental and emotional state falls squarely within the Evidence Rule 803(3) exception to the rule against hearsay. ¶29 While the State correctly notes that defense counsel did not cite Evidence Rule 803 as a basis for admitting the victim’s text, the prosecutor did not challenge the text’s admission on hearsay grounds. ¶30 Having found that the proffered text message was admissible under Evidence Rule 803(3), we consider whether the superior court nonetheless properly excluded the text under Evidence Rule 403. Under that rule, relevant evidence may be excluded if its probative value “is substantially outweighed” by, among other things, a danger of unfair prejudice, confusion of the issues, or the needless presentation of cumulative evidence. Ariz. R. Evid. 403. We defer to the court’s “balancing determination under [Evidence] Rule 403 . . . [and] review such decisions for an abuse of discretion.” State v. Parkinson, 258 Ariz. 601, 609, ¶ 28 (App. 2024). ¶31 Horcasitas contends that evidence of the victim’s mental instability and emotional turmoil substantiates his defense that the victim confronted him in an aggressive and threatening manner. In other words, Horcasitas argues that insight into the victim’s state of mind—as revealed in the text—supports an inference that he reasonably feared for his physical safety and justifiably used deadly physical force to stave off the victim’s imminent attack. See id. at ¶ 25 (concluding the superior court erroneously precluded the defendant from offering evidence that tended to support his “version” of the events). ¶32 The victim’s state of mind three days before the shooting was arguably (at least marginally) relevant to Horcasitas’s defense and the sole issue before the jury—whether Horcasitas reasonably believed (under an objective standard), at the time he discharged his firearm, that he immediately needed to use deadly physical force to protect himself against the victim’s use or attempted use of unlawful physical force against him. A.R.S. §§ 13-404 (self-defense), -405 (justification). But ample, more pertinent evidence was presented at trial concerning the victim’s mental, emotional, and physical state immediately before the shooting and the threat he posed. See Fulminante, 193 Ariz. at 496, ¶ 34 (“[Evidence] Rule 803(3) can only be used if the declarant’s state of mind is probative of an ultimate issue in the case.”). Numerous eyewitnesses described the victim as “angry,” “upset,” “mad,” and “visibly agitated” when he got out of his 9  STATE v. HORCASITAS Opinion of the Court truck. The eyewitnesses also uniformly recounted that the victim aggressively gestured and shouted as he advanced toward Horcasitas’s car. In fact, multiple eyewitnesses testified that the victim’s disturbing demeanor and behavior prompted them to lock their car doors. Given these consistent and uncontroverted accounts, no question remained concerning the victim’s role as the initial aggressor in the confrontation. Therefore, on this record, the superior court acted within its discretion by precluding the victim’s text message as more prejudicial than probative under Evidence Rule 403. II. Presentation of Video Generated by Artificial Intelligence During Sentencing ¶33 Horcasitas challenges the presentation of certain victim impact evidence at the sentencing hearing. Specifically, he contends that he was denied due process when the sentencing judge heard and expressly relied on an AI-generated video that recreated the victim’s appearance and voice. ¶34 Because Horcasitas did not object to the AI video at sentencing, we review only for fundamental error. State v. Rose, 231 Ariz. 500, 510, ¶ 43 (2013). Victim impact evidence is permitted at sentencing “unless it is so unduly prejudicial that it renders” the sentencing procedure “fundamentally unfair.” Id. at ¶ 45 (citation modified); see also State v. Flowers, 159 Ariz. 469, 472 (App. 1989) (“Where a defendant has been denied an essential component of due process, such denial constitutes fundamental error.”). ¶35 At the sentencing hearing, numerous friends and family members of the victim spoke. They described the victim as compassionate, loving, kind, selfless, peaceful, brave, and heroic. They recounted fond memories from his life and detailed the “immense and unrelenting” pain caused by his death. Several speakers asked the sentencing judge to impose the maximum sentence allowed by law, which, because the State alleged no aggravating factors, was the presumptive term of 10.5 years in prison. See A.R.S. § 13-704(A). As part of his prepared remarks, the victim’s brother read a lengthy statement the victim had “penned,” which conveyed, in the victim’s actual words, his spiritual beliefs, values, goals, and hopes for the future. Lastly, the victim’s sister spoke. She stated, in relevant part: We’ve heard [the victim] write what he wanted his future to look like, but what would he have said if he could have taken my place today? I’m in his spot. He deserved this. What 10  STATE v. HORCASITAS Opinion of the Court would [the victim] have thought about all of this? That’s the one intrusive thought that I can’t stop from hearing. This whole thing is about him, and he’s not even here to tell us what he would think about it, but I imagine it constantly because I know he would say everything I would absolutely never be able to say myself. (Emphasis added). ¶36 At that point, an AI video, which depicted the “victim” speaking to the camera, was played. The video began with the AI victim explaining that the video was a “version” of himself “recreated through AI that use[d] [his] picture and [his] voice profile.” Then, a “real” video of the victim, embedded within the AI video, played, in which the victim conveyed his faith and spiritual beliefs to an unidentified individual. When the video of the victim ended, the AI victim reappeared and stated that the AI video “is a true representation of who [he] was . . . not how the courtroom portrayed [him].” (Emphasis added). After the AI victim thanked the court and his friends and family in attendance, he addressed Horcasitas—stating in part, “I believe in forgiveness and in God who forgives.” The AI victim then ended his remarks by conveying his love for his friends and family and assuring them he would see them “on the other side,” while what appears to be another embedded “real” video showed him fishing. ¶37 After a short recess, the attorney representing the victim’s family spoke. She asked the sentencing judge to “weigh the victim impact as rebuttal to any mitigation” presented by Horcasitas and impose “the maximum sentence authorized by the jury verdict.” ¶38 The prosecutor then addressed the sentencing judge. Acknowledging the mitigating circumstances Horcasitas offered up, including the absence of any criminal history, she asked the sentencing judge to impose a slightly mitigated sentence of 9 years’ imprisonment. ¶39 Three people spoke on Horcasitas’s behalf, requesting leniency and the minimum sentence. Horcasitas then spoke. He apologized to the victim’s family and stated that the “events that transpired that day are undoubtedly the most frightening and regrettable five seconds of my life.” ¶40 Finally, defense counsel spoke and stressed the mitigating circumstances outlined in his sentencing memorandum, particularly noting the absence of any criminal history, and asked the sentencing judge to find 11  STATE v. HORCASITAS Opinion of the Court that the mitigating circumstances substantially outweighed “all other evidence” and impose a mitigated term of 7 years’ imprisonment. ¶41 Following those remarks, the sentencing judge addressed the courtroom. The judge noted that the victim’s family and Horcasitas’s family had suffered and would continue to suffer a great loss. The judge then spoke to the victim’s family directly, in relevant part: Does that mean I think that Mr. Horcasitas, because of the loss to the family should get the maximum sentence or I think that he should get the minimum sentence? It doesn’t matter what I think. Whether I think he should get 40 years or 1 year. I have to follow the law. .... Under the legal standards we will never compensate the [victim’s] family for their loss, never. .... I loved that AI. Thank you for that, and as angry as you are and justifiably angry as the family is, I heard the forgiveness and I know Mr. Horcasitas appreciated it, but so did I. As I said, I’d like to think I would do that. I don’t know that I would, but I love the beauty in what [victim’s first name]— and I call him [victim’s first name]. I always call people by their last names. It’s a formality of the Court, but I feel like calling him [victim’s first name] as we’ve gotten to know him today. I feel that that was genuine; that his obvious forgiveness of Mr. Horcasitas reflects the character I heard about today, but it also says something about the family because you told me how angry you were and you demanded the maximum sentence, and even though that’s what you wanted you allowed [victim’s first name] to speak from his heart as you saw it. I didn’t hear him asking for the maximum sentence. So, that brings us to sentencing. I do find the following mitigating circumstances: Mr. Horcasitas has spent his entire 12  STATE v. HORCASITAS Opinion of the Court life as a law-abiding citizen. He made a dreadful error of judgment, but that is mitigating. I did hear remorse. However, the loss I’ve heard from the [victim’s] family, as I said could not be more profound. It’s not an aggravator but it reduces the effectiveness or power of the mitigating fact that Mr. Horcasitas has led a lawful life. For that reason I find the presumptive term [of 10.5 years in prison] is appropriate. That’s more than the State asked for. (Emphasis added). Horcasitas argues he was deprived of due process because the sentencing court heard and relied on the AI video. ¶42 The Arizona Victims’ Bill of Rights affords victims the right to “be heard at any proceeding involving . . . sentencing.” Ariz. Const. art. 2, § 2.1(A)(4); see also A.R.S. § 13-4426(A), (B) (affording victims the right to “address the court” regarding “opinions that concern . . . the sentence . . . at any . . . sentencing proceeding”). Because victims do not appear as witnesses in those circumstances, they are not required to disclose their statements to the State, the defendant, or the court. A.R.S. § 13-4426.01. They do not take an oath before making statements to the court, nor are their statements subject to cross-examination. See id. ¶43 Victims’ rights “are to ‘be liberally construed,’” Lynn v. Reinstein, 205 Ariz. 186, 188, ¶ 7 (2003) (quoting A.R.S. § 13-4418), but their “right to speak is not unlimited,” id. at 191, ¶ 17. Victims have a constitutional right to speak concerning “the harm caused by the defendant’s criminal acts,” but their statements cannot infringe on the defendant’s constitutional rights, including the right to due process. See id. ¶44 In general, a “sentencing judge can exercise wide discretion in the sources and types of evidence used to assist . . . in determining the kind and extent of punishment to be imposed within the limits fixed by law.” State v. Ross, 144 Ariz. 154, 156–57 (App. 1984); State v. Conn, 137 Ariz. 148, 149 (1983) (“[A] sentencing judge has wide discretion to consider information in imposing sentence.”). But “[t]here is no simple, mechanical test to determine when [victim impact evidence] crosses the line between permissible and unduly prejudicial.” Rose, 231 Ariz. at 510, ¶ 46. Accordingly, our supreme court has “caution[ed] prosecutors and victims not to venture too close to the line,” and “encourage[ed] judges . . . to screen and, if necessary, limit” a victim impact presentation “that is so unduly prejudicial that it renders the trial fundamentally unfair.” Id. at 511, ¶ 47 (citation modified). 13  STATE v. HORCASITAS Opinion of the Court ¶45 Because the “rules governing the admissibility of evidence at trial do not apply” at a sentencing hearing, “[a]ny reliable, relevant evidence” generally “may be introduced at the sentencing hearing to show aggravating or mitigating circumstances.” Conn, 137 Ariz. at 149–50; see also Ariz. R. Crim. P. 26.7(b) (stating that any party at a presentencing hearing “may introduce any reliable, relevant evidence, including hearsay, to show aggravating or mitigating circumstances”). To be clear, however, “the relaxation in the traditional evidentiary rules and procedures . . . is not unlimited.” Conn, 137 Ariz. at 150. “To give substance to the protection afforded by the Due Process Clause,” only evidence bearing a “minimal indicia of reliability” may be considered at sentencing. State v. McGill, 213 Ariz. 147, 160, ¶ 56 (2006) (citation modified). In other words, “defendants have a due process right to a fair sentencing procedure which includes the right to be sentenced on the basis of accurate information.” State v. Grier, 146 Ariz. 511, 515 (1985); see also Conn, 137 Ariz. at 150 (“[A] defendant has a legitimate interest in the character of the procedure which leads to the imposition of [a] sentence even if he may have no right to object to a particular result.”). When a “defendant can demonstrate that false information formed part of the basis for the sentence,” the “sentence must be set aside.” Grier, 146 Ariz. at 515. ¶46 Horcasitas argues the AI video was inadmissible and carried “undue emotional weight.” Specifically, he contends the “lifelike AI recreation of the victim conveyed an authority and authenticity” that had a “psychological impact” on the sentencing judge. More broadly, he argues that “[a]llowing AI-generated statements . . . dilutes the constitutional requirement that sentencing evidence possess minimal indicia of reliability.” ¶47 The State disagrees. It argues the AI video was reliable because: (1) it reflects what the victim’s sister “believed” the victim “would have said,” had he spoken at the sentencing hearing; (2) the victim and his sister shared a “close familial relationship,” allowing for the reasonable inference that “the sentiments conveyed by [the] AI [victim] were probably accurate”; and (3) the AI video is “consistent” with the victim’s written account of his beliefs and values, as read at the sentencing hearing by the victim’s brother. ¶48 No Arizona case has addressed the admissibility of an AI- generated depiction of a victim offered as victim impact evidence. In analyzing this novel issue, we are guided by our supreme court’s analysis in Rose, which addressed victim impact information provided to a jury in 14  STATE v. HORCASITAS Opinion of the Court the penalty phase of a case in which the State sought the death penalty. Rose, 231 Ariz. at 509–13, ¶¶ 40–62. ¶49 In Rose, the supreme court considered, among other things, whether two photographs taken of a homicide victim’s young sons at his gravesite were improperly admitted as victim impact evidence. Id. at 511–12, ¶¶ 48, 50–52. At the outset of its analysis, the supreme court pointed to “Arizona’s constitution, statutes, and court rules,” which guarantee victims the right to speak at sentencing. Id. at 511, ¶ 51. While the right of victims to speak “about the effect” criminal conduct “has had on them” is largely unfettered, the supreme court noted that the presentation of photographs as victim impact evidence is reviewed on an ad hoc basis. Id. at 511–12, ¶¶ 50–52. “Given their marginal relevance, the danger of unfair prejudice their admission posed, and the extensive, clearly permissible” victim impact evidence that already had been presented, the supreme court determined that had the superior court excluded “the two photographs in question,” it “would have acted well within its discretion.” Id. at 512, ¶ 52 (citation modified). But despite describing the victim impact evidence, including the photographs, as “troubling,” and characterizing their presentation as “uncomfortably close” to “cross[ing] the line between permissible and unduly prejudicial,” the supreme court concluded that the trial court did not err by considering them, reasoning that even “without the photographs,” it was evident “that the murder caused the two boys to suffer a devastating loss.” Id. at 510, 512, ¶¶ 46, 52. ¶50 By contrast, the AI video crossed that line. Unlike the photographs in Rose, which captured a particularly poignant moment for the young surviving victims, the AI video here (excluding the embedded “real” videos of the victim) does not reflect actual events. Indeed, rather than documenting an event or recording a particular moment, the AI video presents a depiction of the victim and his thoughts created from the imaginings of the victim’s sister. ¶51 Moreover, despite the explanations concerning the genesis of the AI video, it presents the statement (including non-verbal communications made through facial expressions and the like) as coming directly from the victim. It erases the interpretive distance between the family’s belief about what the victim would have said and the victim’s own voice and opinions. Indeed, the AI victim stated, “this here is a true representation of who I was, you know, not how the courtroom portrayed me.” No disclaimer could cure that error. 15  STATE v. HORCASITAS Opinion of the Court ¶52 And it clearly impacted the sentencing judge, who said he “loved” the video and felt it “was genuine,” pointing to the AI victim’s “obvious forgiveness” of Horcasitas, which he characterized as coming from the AI victim’s “heart.” While the record does not reflect precisely how the AI video factored into the sentencing calculus, there is no question it played a role. ¶53 In sum, while the embedded “real” video footage of the victim was permissible, allowing the presentation of the AI video constituted fundamental error. And on this record, the judge’s consideration of the AI video so prejudiced Horcasitas as to render the sentencing procedure fundamentally unfair. Accordingly, we vacate the sentence for manslaughter and remand for resentencing. CONCLUSION ¶54 For the foregoing reasons, we affirm the manslaughter conviction but vacate the sentence for manslaughter, and remand for resentencing. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 16