NOT FOR PUBLICATION

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

MEMORANDUM DECISION

SWANN, Judge.

¶1 Defendant Tammi Peters Smith appeals her convictions for forgery and conspiracy to commit custodial interference. Smith contends that the evidence was insufficient to support her convictions, and that the superior court erred by admitting evidence of "other acts," by precluding expert testimony, and by denying her motion for mistrial. We agree with Smith (and the state concedes) that the evidence was insufficient to support her conviction for the type of forgery charged in this case. We therefore vacate her conviction and probation term for forgery, and, by consequence, hold that the state's cross-appeal regarding sentencing is moot. We affirm Smith's conviction and probation term for conspiracy to commit custodial interference.

FACTS AND PROCEDURAL HISTORY

¶2 Smith sought to adopt an infant from an unwed mother ("Mother"). The baby's father ("Father") informed Mother he would not agree to an adoption and initiated legal proceedings to obtain full custody of the baby. Smith assisted Mother in the custody proceedings by, among other things, helping her to prepare and file a response that contained false information concerning the baby's paternity. While the custody matter was pending, Mother fled Arizona with the baby. She later told Father by phone and text message that she was in Texas and had killed the baby. When law enforcement officers eventually apprehended Mother in Florida, the baby was not with her. Evidence suggests that the baby was alive several days before Mother claimed responsibility for his death, but no one has reported having seen the baby since.

¶3 Based on Smith's actions with Mother during these events, the state charged Smith with forgery and conspiracy to commit custodial interference. After a lengthy trial, a jury found Smith guilty on both counts. The trial court suspended the imposition of sentence and placed Smith on concurrent three-year probation terms for each count. The court further ordered that Smith spend 30 days in jail in 2012 as a term of probation for the conspiracy conviction, and an additional 30 days in jail in 2013 for the forgery conviction. Smith appeals, and the state cross-appeals.

DISCUSSION

I. SMITH'S APPEAL

¶4 Smith makes multiple arguments in support of reversing her convictions. We address each of these arguments in turn.

A. The Evidence Was Sufficient To Support Smith's Conviction for Conspiracy To Commit Custodial Interference, but Was Insufficient To Support Her Conviction for Forgery.

¶5 We first address Smith's contention that the evidence was insufficient to support her convictions. "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). "To set aside a jury verdict for insufficient evidence it must clearly appear that under no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). In our review of the record, "[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). We resolve any conflict in the evidence in favor of sustaining the verdict and resolve all reasonable inferences against the defendant, but we do not weigh the evidence. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Here, the evidence presented at trial showed the following.

¶6 In May 2009, when Mother and Father's baby was several weeks old, Smith encountered Mother and the baby in an airport while they waited to board the same return flight to Phoenix. During their wait and the ensuing flight, Smith and Mother discussed the possibility of Smith adopting the baby, and Mother took down Smith's contact information. Mother eventually gave the baby to Smith on December 8, 2009.

¶7 The next day, December 9, Mother contacted Father and told him that she wanted to put the baby up for adoption. Father responded that he would not agree to an adoption and would instead seek full custody of the baby. That same day, Mother signed a document that identified Smith and Smith's husband as the baby's temporary guardians. The next day, Smith and Mother both told a police officer that Smith and her husband were going to adopt the baby.

¶8 Several days later, on December 14, Father initiated custody proceedings in family court in Arizona. Smith, knowing that Father had initiated the proceedings, determined that she would help Mother find a way to convince Father to cede full custody to Mother or sign the documents necessary to allow adoption. Using a form provided by the court, Smith helped Mother prepare and file Mother's response to Father's petition to establish custody. Smith personally wrote on the form that there were two possible fathers of the baby, one of whom was Smith's cousin, a man who had never met Mother, and was not the baby's father. Smith also asked a friend, D.A., for permission to identify D.A.'s husband in the response as a possible father, but D.A. refused. Smith told D.A. that if she identified several different possible fathers in Mother's response, it would delay the proceedings, create confusion, and allow Smith more time to figure out a way to adopt the baby. Smith also told Mother that the more difficult and expensive she could make it for Father to seek custody, the greater the chances were that Father would simply give up and give full custody to Mother, who would in turn allow Smith to adopt the baby.

¶9 Mother eventually admitted to the family court that Father was the father of the baby, and the family court awarded custodial rights to Father. Smith returned the baby to Mother the next day. Promptly thereafter, Mother withdrew all the money from her bank account and fled with the baby to Texas. After Mother fled, Smith called Father and told him that she and Mother wanted him to sign the paperwork necessary to permit Smith to adopt the baby. Smith told Father that if he signed the documents, she would provide them to Mother. Father responded that he wished to raise the baby himself and did not want Smith to adopt the baby. Smith then sent Father a text message stating that Mother would return to Arizona with the baby only if Father signed the adoption paperwork.

¶10 Smith relayed Father's responses to Mother and suggested that Mother take the baby to Tennessee. Smith believed that if Mother initiated custody proceedings in Tennessee, this would delay and perhaps eliminate Father's ability to retain custody of the baby. Smith also believed that it would be difficult and expensive for Father to fight proceedings in another state, which could cause him to simply give up and allow Smith to adopt the baby. Smith told Mother that she and her husband owned a home there where Mother could hide, and stated that she knew a person in Tennessee who could produce a false birth certificate for the baby that would show he was born in a home in Tennessee on a day other than his birthday. Mother then called Smith's contact in Tennessee.

¶11 On December 27, Mother sent Father a text message that read: "I killed him." Mother then spoke to Father by phone and told him that she had killed the baby. A police officer went to Smith's residence to see if the baby was with Smith. Neither Mother nor the baby were there, and Smith told the officer that she had not seen the baby since December 18. Smith and her husband also stated that they were trying to "help" Mother, had had custody of the baby, and wanted to adopt the baby. Shortly after the officer left Smith's residence, Smith sent a text message to Mother telling her that the police had just left.

¶12 Police found Mother's car abandoned in San Antonio, Texas, and on December 30 apprehended Mother in Miami Beach, Florida. She did not have the baby. She claimed that she had left the baby with a couple in a park in San Antonio, and had told Father that she killed the baby just to upset him. Evidence suggested that the last time the baby was seen, he was alive in San Antonio on December 22. Smith ultimately admitted that she had helped Mother hide the baby from Father, but denied that she had helped Mother hide the baby from "authorities." Police determined that Smith had phone conversations with Mother as late as December 26 and had text-message conversations with her as late as December 27.

¶13 On January 4, 2010, Smith called the family-court judge who was presiding over the custody matter and left a voice message in which she stated that Mother had contacted her through another person. Smith also stated: "I know she will tell me where the baby is but she needs to make sure that he is going to be safe before she tells me and I'd really like to speak to [the judge] in order to get some kind of an order . . . would really like to speak to [the judge] in order to get the baby, um, she will tell me where the baby is, I, you know, she just signed the temporary guardianship over to us. . . ." Smith then queried whether the baby could stay with Smith and her husband while the parents "get their acts together," explaining that she had taken care of the baby "for a few weeks prior." Upon hearing this voice message, the family-court judge instructed his staff to call the police.

1. The Evidence Was Sufficient To Support Smith's Conviction for Conspiracy To Commit Custodial Interference.

¶14 A person commits conspiracy to commit custodial interference if she conspires to take, entice or keep from lawful custody any child entrusted by authority of law to the custody of another person, and knows or has reason to know that she has no legal right to do so. A.R.S. § 13-1302(A)(1). The element of conspiracy requires that the defendant, with the intent to promote or aid the commission of the offense, agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense, and one of the parties commits an overt act in furtherance of the offense. A.R.S. § 13-1003(A).

¶15 The evidence was more than sufficient to permit a reasonable jury to find beyond a reasonable doubt that Smith committed conspiracy to commit custodial interference. After the family court awarded Father custodial rights, Smith offered to help Mother initiate custodial proceedings in Tennessee using false information, offered aid to Mother after she fled Arizona, informed Mother of a police visit, and told Father that the only way Mother would return with the baby was if Father allowed Smith to adopt the baby. Though some of the evidence was circumstantial, "Arizona law makes no distinction between circumstantial and direct evidence," State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993), and criminal conspiracy is often proved by circumstantial evidence, see State v. Willoughby, 181 Ariz. 530, 540, 892 P.2d 1319, 1329 (1995); Arredondo, 155 Ariz. at 317, 746 P.2d at 487. Further, while some of the evidence may have been contradictory, it was for the jury to weigh the evidence and assess the credibility of the witnesses. State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995).

2. The Evidence Was Insufficient To Support Smith's Conviction for Forgery.

¶16 In supplemental briefing provided at this court's request, the state concedes that the evidence was insufficient to support Smith's conviction for forgery as charged. Smith was charged with forgery under A.R.S. § 13-2002(A)(1). Section 13-2002(A)(1) provides that a person commits forgery if, with intent to defraud, she "[f]alsely makes, completes or alters a written instrument." To "falsely complete" or "falsely alter" a written instrument, the defendant must act "without the permission of anyone entitled to grant it" to make the instrument "falsely appear[ ] or purport[ ] to be in all respects an authentic creation of its ostensible maker or authorized by him." A.R.S. § 13-2001(5), (6). Similarly, to "falsely make" a written instrument that purports to be an authentic creation of a real person, the defendant must act without the authority of the ostensible maker. A.R.S. § 13-2001(7).

¶17 Here, the evidence showed that Smith wrote information she knew to be false on Mother's response to the petition to establish child custody. But the state concedes, and we agree, that "[t]he most reasonable inference from the record is that [Mother] authorized [Smith] to include [the] false information." Because there was no evidence Smith acted without Mother's permission, the evidence was insufficient to support her conviction for forgery under A.R.S. § 13-2002(A)(1).1 We therefore must vacate her conviction and probation term for forgery.

B. The Admission of "Other Acts" Evidence Was Not Error.

¶18 Smith next contends that the court erred when it admitted evidence of "other acts" pursuant to Ariz. R. Evid. 404(b). Evidence of certain types of prior acts is admissible if relevant and admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, Ariz. R. Evid. 404(b), or for any other proper purpose, see State v. Wood, 180 Ariz. 53, 62, 881 P.2d 1158, 1167 (1994). Further, for the evidence to be admissible, there must be clear and convincing evidence that the defendant committed the other acts. State v. Prion, 203 Ariz. 157, 163, ¶ 37, 52 P.3d 189, 195 (2002). We review the admission of evidence under Rule 404(b) for abuse of discretion. State v. Van Adams, 194 Ariz. 408, 415, ¶ 20, 984 P.2d 16, 23 (1999).

¶19 Smith contends that the court should not have admitted evidence that: (1) Smith asked her friend D.A. for permission to name D.A.'s husband as a possible father of the baby in Mother's response to Father's petition to establish custody; (2) Smith asked D.A. if D.A.'s husband would donate sperm with which to artificially inseminate a surrogate mother; and (3) D.A. and Smith discussed how Smith could obtain a child through artificial insemination and surrogacy. Smith contends that these acts were inadmissible under Rule 404(b) because there was insufficient evidence that they had occurred, and they "did not constitute bad or illegal acts."

¶20 The superior court did not abuse its discretion by admitting the evidence. As an initial matter, Rule 404(b) is not limited to "bad or illegal acts" — it contemplates the admission of "crimes, wrongs, or acts." (Emphasis added.) Further, the court acted within its discretion by finding that Smith's prior acts were relevant to show her intent, motive, plan, and lack of mistake. D.A.'s testimony was relevant to show that Smith conspired with Mother to interfere with Father's custodial rights to such a degree that he would allow Smith to adopt the baby. Further, D.A.'s testimony was sufficient to establish by clear and convincing evidence that the previous acts occurred, and the issue of her credibility was for the jury to decide. Soto-Fong, 187 Ariz. at 200, 928 P.2d at 624. The court acted within its discretion by finding that the testimony was admissible under Rule 404(b). And there is nothing to suggest that the court abused its discretion by finding that the testimony was admissible under Ariz. R. Evid. 403.

C. The Denial of Smith's Motion for Mistrial Was Not Error.

¶21 Smith next contends that the superior court deprived her of a fair trial by denying her motion for mistrial, arguing that the prosecutor engaged in "flagrant misconduct" by "deliberately ignor[ing]" a limiting order when questioning D.A. about Smith's "conversation concerning insemination."

¶22 Mistrial "is appropriate only when justice will be thwarted if the current jury is allowed to consider the case." State v. Lamar, 205 Ariz. 431, 439, ¶ 40, 72 P.3d 831, 839 (2003) (citation omitted). The trial court has broad discretion in ruling on motions for mistrial. The denial of a motion for mistrial is error only if it was a clear abuse of discretion, and we will reverse only if the denial was "palpably improper and clearly injurious." State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995) (citation omitted). We find no abuse of discretion here.

¶23 In view of Smith's representations on appeal, we first clarify the record. The state sought to admit evidence that Smith and D.A. discussed how Smith might artificially inseminate a surrogate mother in Smith's office. The court ruled that reference to "insemination in the office" was excluded under Rule 403. To clarify the scope of the ruling, the prosecutor asked the court, "the state is precluded from eliciting any testimony regarding [Smith] doing any artificial insemination in her office?" The court responded, "Correct." The court then instructed D.A., "You're not to testify that there was an insemination or discussion about an insemination that would occur in her home." D.A. asked the court, "I can talk about it as long as I don't specify where it happened or where it was discussed?" The court responded, "You can't say it was ever discussed that it would be in her home or at her office."

¶24 On direct examination, the prosecutor asked D.A., without objection, "If you can tell us what that first conversation was in 2009 about insemination?" D.A. responded, "That [Smith] had found some person, a female, that was willing to be inseminated by [Smith] in order to carry a baby to give to [Smith]." Smith immediately objected, and the court struck the answer and instructed the jury to disregard it. The court explained to counsel that in its view, the prosecutor and D.A. should have understood that its exclusion order was meant to exclude evidence of any insemination to be performed by Smith herself, and D.A.'s answer could be interpreted to suggest that Smith would perform the insemination herself. The court denied Smith's motion for mistrial, however, finding that any violation of the court's order was unintentional, nonegregious, and minimally prejudicial.

¶25 The court's denial of mistrial was not an abuse of discretion. The trial judge was in the best position to evaluate the circumstances surrounding the incident, the manner in which the objectionable statement was made, and its possible effect on the jury and the outcome of the trial. See State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983). Even Smith's trial counsel admitted that D.A. "technically . . . was following [the court's] ruling." Further, the court struck the answer and instructed the jury to disregard it. "Juries are presumed to follow their instructions." State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996).

D. The Preclusion of Expert Testimony Was Not Error.

¶26 Smith next contends that the superior court erred by precluding testimony that Smith sought to admit through a psychologist. We review a ruling on the admission of expert testimony for clear abuse of discretion. State v. Hyde, 186 Ariz. 252, 276, 921 P.2d 655, 679 (1996).

¶27 Smith initially sought to admit the psychologist's testimony as a pertinent character trait offered by an accused under Ariz. R. Evid. 404(a)(1). In her response to the state's motion to preclude the evidence, Smith argued, "A key part of the defense will be to show that [Smith] has a character trait which causes her to act impulsively and without reflection where children are involved due to her unstable childhood and her personality. This character trait is due to her mental health and social background. [The psychologist] has evaluated [Smith] and intends to focus her testimony on this character trait."

¶28 At the hearing on the state's motion to preclude, the psychologist testified she had met with Smith for a total of five hours over the course of three days in October 2011. During those meetings, the psychologist measured Smith's personality function, conducted "personality inventor[ies]" to assess Smith's "psychopathology," and measured Smith's "intellectual functioning" and I.Q. When counsel asked the psychologist if Smith "is likely to act impulsively," the psychologist responded that Smith is the type of person who acts in a manner that "may not be well thought out, without all of the relevant information." The psychologist further stated that she believed her testimony would benefit the jury because "looking at how someone tended to view the world, how they thought about the world, how they interacted with the world, how abstract versus concrete their — both emotional and thought process[es] were, would be relevant." She also believed her testimony would benefit the jury because "whether or not [Smith] had some emotional issues that had to be dealt with and whether she had good insight into her own emotions would be useful information," and "[w]hether or not she had strong intellectual capacity to be involved in making decisions about complicated and difficult situations, all might be things the jury would wish to consider."

¶29 At the conclusion of the psychologist's testimony, Smith acknowledged that she was neither presenting a diminished-capacity defense nor arguing that she did not have the mental capacity to form the requisite mens rea. The court found that the psychologist's testimony was not relevant to any issue the jury had to decide, and precluded it. The court further held that the proffered evidence could confuse jurors and possibly cause them to make a decision based on sympathy or prejudice. Smith then raised another argument: that the psychologist's testimony was admissible to rebut the state's "other acts" evidence. The court rejected this argument.

¶30 At trial, Smith again sought to introduce the psychologist's testimony. When cross-examining D.A., defense counsel asked D.A. a series of questions regarding what Smith told her about meeting Mother in the airport, eventually asking, "In fact, you thought this sounds like another Tammi thing?" D.A. answered, "Yep." On redirect, the state asked D.A. to explain what she meant by "Tammi thing." The prosecutor then referenced the phrase "Tammi thing" several more times, with D.A. ultimately testifying that "Tammi thing" referred to Smith's "obsessed behavior over trying to get a baby."

¶31 The week after the "Tammi thing" testimony, Smith moved the court to reconsider its preclusion of the psychologist's testimony. Smith argued that the prosecutor and D.A.'s repeated references to "Tammi thing" was evidence of a character trait and behavior that Smith should be allowed to rebut with the psychologist's testimony. Smith also reasserted her argument that the psychologist's testimony was admissible to rebut the state's "other acts" evidence. The court denied the motion to reconsider, holding that its analysis of the testimony's admissibility had not changed. The court held that evidence related to Smith's alleged "obsession" was not new, and that the psychologist's testimony was still not relevant to the issues before the jury.

¶32 We hold that the preclusion of the psychologist's testimony was not error. In the absence of an insanity defense, expert testimony regarding a defendant's mental capacity is not admissible to challenge mens rea. State v. Wright, 214 Ariz. 540, 543, ¶ 10, 155 P.3d 1064, 1067 (App. 2007). To be sure, a mental health professional may offer "observation evidence" even when an insanity defense is not raised. Id. at 544, ¶ 15, 155 P.3d at 1068. "Observation evidence includes evidence of a defendant's behavior, statements, and expressions of belief around the time of the offense." Id. But though observation evidence may sometimes be admissible, the court may exclude such evidence when it is not sufficiently linked to the mens rea of the charged offense. See id. at 545, ¶¶ 16-17, 155 P.3d at 1069.

¶33 Here, the court correctly found that the psychologist's testimony would simply explain why Smith decided to act as she did, which was irrelevant to any decision the jury had to make. The jury was tasked with deciding whether Smith conspired with Mother to keep the baby from Father's custody knowing or having reason to know that she had no right to do so, and whether she intended fraud by her contribution to Mother's response to the petition to establish custody. See A.R.S. §§ 13-1003(A), -1302(A)(1), -2002(A)(1). Smith's individual motivations for these acts were not relevant to the question of her culpability. The court therefore properly precluded the expert's opinion regarding the nature of Smith's thought processes, worldview, emotional issues, and decision-making capabilities.

II. STATE'S CROSS-APPEAL

¶34 On cross-appeal, the state contended in its opening and reply briefs that the court erred by finding that Smith committed conspiracy to commit custodial interference and forgery "on the same occasion" for sentencing purposes. The state now concedes that because the evidence was insufficient to support the forgery conviction, its cross-appeal is moot. We agree.

CONCLUSION

¶35 For the reasons set forth above, we affirm Smith's conviction and probation term for conspiracy to commit custodial interference, but vacate her conviction and probation term for forgery.