THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

WINTHROP, Judge.

¶1 Gerry Shaps ("Appellant") appeals his conviction for forgery. Appellant argues the trial court abused its discretion by precluding the admission into evidence of several documents filed in family court regarding child custody matters between Appellant and the victim, his ex-wife ("J.M."). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 In January 2006, Appellant and J.M. divorced and were given joint custody of their three minor children ("the children"). On June 24, 2009, J.M. and Appellant engaged in a heated telephone conversation, during which J.M. claimed that the government was suing her for child support, and she threatened to sell the children's phones as reimbursement.2 The next day, J.M. filed a petition to modify custody in family court. In the petition, she sought sole custody of the children and also maintained that Appellant had falsely claimed to be the sole custodial parent in an effort to receive financial assistance from the government. The family court appointed a "parenting coordinator" in an attempt to resolve the custody dispute between J.M. and Appellant. The court initially allocated eighty percent of the parenting coordinator cost to Appellant and twenty percent to J.M., requiring J.M. to pay approximately $400 of the cost.3

¶3 On August 13, 2009, Appellant opened an on-line credit account of approximately $4,000 with Huppins/G.E. Money Bank, which he used to purchase a 55-inch television and entertainment system. Appellant used J.M.'s former married name, date of birth, social security number, and former e-mail address, as well as his own address and phone number to obtain the line of credit. After J.M. discovered that the line of credit had been opened in her name without her authorization, she contacted the Maricopa County Sheriff's Office. When contacted by a sheriff's deputy, Appellant admitted he had purchased a television, but he initially denied having used J.M.'s information to obtain the credit to do so.

¶4 In October 2009, the Maricopa County Attorney's Office filed a direct complaint against Appellant, and on November 24, 2009, a grand jury issued an indictment, charging Appellant with Count I, taking the identity of another, and Count II, forgery, each a class four felony. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-2008 (2010), -2002 (2010).4 On November 23, 2009, J.M. filed a motion to amend the June 25 family court petition and a "First Amended Petition to Modify Custody, Parenting Time, and Child Support/Request to Relocate" ("the first amended petition"), seeking sole custody of the children and permission to relocate to Texas, citing in part the criminal charges against Appellant and the possibility that Appellant might be incarcerated.5

¶5 Appellant's criminal case proceeded to a jury trial on May 4, 2010. Before jury voir dire on the first day of trial, the State moved in limine to preclude from evidence several documents filed in family court in 2009 regarding the child custody matters between Appellant and J.M. Appellant argued that the documents went to J.M.'s possible bias and motive to pursue criminal charges against him. The trial court ultimately ruled that Appellant could cross-examine J.M. about the information contained in the documents, and could use them to refresh her recollection, but could not introduce the actual documents into evidence.

¶6 At the conclusion of the trial, the jury found Appellant guilty of Count II, forgery, but not guilty of Count I, taking the identity of another. Appellant moved for judgment of acquittal or a new trial, pursuant to Rules 20 and 24.1, Ariz. R. Crim. P., based primarily on his argument that the trial court erred in precluding admission of the family court documents into evidence. The trial court denied Appellant's motion, suspended imposition of sentence, and placed Appellant on probation for two years.

¶7 Appellant filed a timely notice of appeal. We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033 (2010).

ANALYSIS

¶8 Appellant argues that the trial court's decision to preclude the family court documents from evidence constituted reversible error. He maintains that, because J.M. was the complaining witness in his criminal case and also seeking sole custody of the children in the couple's family court case, the documents were relevant to demonstrate that J.M. had a motive to lie and that he was denied the opportunity to present a complete defense.

¶9 We review a trial court's evidentiary rulings for an abuse of discretion. State v. Davis, 205 Ariz. 174, 178, ¶ 23, 68 P.3d 127, 131 (App. 2002). In general, an abuse of discretion occurs when the record fails to provide substantial support for the court's decision or the court commits an error of law in reaching its decision. State v. Cowles, 207 Ariz. 8, 9, ¶ 3, 82 P.3d 369, 370 (App. 2004) (citation omitted). "[T]he United States Constitution affords criminal defendants `a meaningful opportunity to present a complete defense,' not a partial one." State v. Machado, 224 Ariz. 343, 364, ¶ 67, 230 P.3d 1158, 1179 (App. 2010) (citations omitted), aff'd, 226 Ariz. 281, 246 P.3d 632 (2011). If we conclude that the trial court erred in excluding evidence, we must also determine whether the error was harmless. State v. Fish, 222 Ariz. 109, 114, ¶ 8, 213 P.3d 258, 263 (App. 2009). Error is harmless if we can say beyond a reasonable doubt that the error did not contribute to or affect the verdict. Id.; accord State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993).

¶10 Before the start of trial, the State objected to several family court documents that Appellant sought to admit into evidence, including the June 25 petition to modify child custody, an affidavit of J.M.'s financial information, and the November 23 motion to amend the petition to modify custody and first amended petition (collectively, "the documents"). Appellant argued the documents could be used to demonstrate possible bias and motive on the part of J.M. Specifically, Appellant argued that J.M. had a motive to be untruthful "because she has an interest in the outcome of the still pending petition to modify her child custody," and the documents were necessary to show J.M.'s motive because J.M., "in the defense['s] opinion, had previously consented [to Appellant's purchase of the television and entertainment system in her name] and now has withdrawn that consent in order to file this criminal matter."

¶11 The State argued that the exhibits should be precluded from evidence on the grounds of relevance, see Ariz. R. Evid. 401, unfair prejudice to J.M. and confusion of the jury, see Ariz. R. Evid. 403, and hearsay. See generally Ariz. R. Evid. 802. The State noted that at least one of the documents went "into extraneous information regarding neglect, addiction, [and] adequate parenting" and suggested that the information should be brought in only through impeachment on cross-examination. See Ariz. R. Evid. 608(b).6

¶12 The trial court initially concluded that the documents were extrinsic and contained information "which could reflect upon the character of the [victim] and is hearsay as to that issue and would be prejudicial to the [victim]." The court ruled that Appellant could cross-examine J.M. about the information contained in the documents and show J.M. the documents on cross-examination to refresh her recollection, but could not introduce the actual documents into evidence.

¶13 After a recess for lunch, Appellant renewed his argument, claiming State v. Gertz, 186 Ariz. 38, 918 P.2d 1056 (App. 1996), supported the admissibility of the family court documents. In Gertz, the defendant sought to prove that the alleged victim ("JS") was planning to file a civil suit against him and that JS's testimony was tailored to serve that purpose. Id. at 40, 918 P.2d at 1058. On cross-examination, however, JS denied having discussed filing a civil lawsuit with his attorneys. Id. Much of the closing argument centered on JS's possible motive to lie, and the prosecutor emphasized that no evidence existed to show such a motive. Id. at 41, 918 P.2d at 1059. After closing arguments but before jury deliberations, outside the presence of the jury, a process server delivered a summons and complaint to Gertz, naming him as a defendant in a civil damages suit brought by JS. Id. Gertz sought to reopen his case for the limited purpose of testifying that JS had sued him and to offer the summons and complaint as evidence. Id. The trial court denied the motion, and Gertz was convicted. Id. On appeal, this court held that the trial court should have allowed Gertz to reopen his case to present evidence that JS had filed a civil damages lawsuit against him because Gertz did not offer evidence of the impending lawsuit merely to impeach JS's testimony, but also to affirmatively prove that JS was motivated by financial interest. Id. at 41-42, 918 P.2d at 1059-60. Further, the debate whether JS's testimony was tainted by an ulterior motive was skewed by his denial that he had even discussed the possibility of a lawsuit and the absence of any evidence contrary to his testimony. Id. at 42, 918 P.2d at 1060. Accordingly, this court could not say beyond a reasonable doubt that exclusion of the evidence did not affect or contribute to the verdict. Id.

¶14 After reviewing Gertz, the trial court in this case affirmed its ruling. The court surmised that the documents were collateral "impeachment evidence" that, although they went to J.M.'s possible motive or bias and thus her credibility, did not go to an element of the offense as charged against Appellant. The court also distinguished Appellant's case from Gertz, stating, "This is different because at this point [d]efense counsel does have the right to cross-examine the witness and show [her] the documents and impeach [her] in that manner. Everybody agrees [to] the existence of this family court case. So I see a difference [from Gertz]." The trial court held that Appellant could cross-examine J.M. regarding the facts of the pending family court petitions, "and show them to her to discuss with her," but could not introduce the actual documents into evidence.7

¶15 Even assuming Appellant is correct that Gertz supports his argument that the documents may more properly be characterized as substantive evidence of motive, see Ariz. R. Evid. 404(b),8 than collateral impeachment evidence, see Ariz. R. Evid. 608(b), and the trial court abused its discretion in precluding their admission, we conclude that our holding in Gertz does not compel reversal in this case. In Gertz, the State argued that the excluded evidence, even if admissible to prove motive or bias, was cumulative and did not prejudice the defendant (Gertz) because he was able to cross-examine the victim (JS) and adequately argue the motive and bias associated with the evidence. 186 Ariz. at 42, 918 P.2d at 1060. This court acknowledged that "[t]hese arguments might be persuasive if JS had admitted the prospect of a lawsuit or acknowledged his intentions in retaining private counsel. But JS denied that he had discussed even the possibility of a lawsuit." Id. Because the critical debate whether JS's testimony was tainted by an ulterior motive was skewed by his untruthful denial that he had discussed the possibility of a civil lawsuit with his private counsel and the absence of evidence that he had indeed filed such a lawsuit, however, we could not say beyond a reasonable doubt that the exclusion of the evidence did not affect or contribute to the verdict. Id.

¶16 In this case, as in Gertz, the complaining witness was a crucial witness whose testimony was a key element in the State's case. Unlike the defendant in Gertz, however, Appellant was fully able to raise and present his defense, including specifically his assertion that J.M. had a motive to lie, and he was not confronted with the situation presented in Gertz, where the complaining witness lied about his possible ulterior motive and the only evidence that could be used to apprise the jury of the lie was precluded. Because Appellant was able to fully raise the issue of the family court proceedings and related documents throughout the entire trial, we are able to say beyond a reasonable doubt that exclusion of the evidence in this case was harmless.

¶17 Here, the focus of Appellant's defense was that J.M. had given her consent for him to use her information and credit and then lied about it. Appellant highlighted that premise in his opening argument when he stated that J.M. had given her "consent to the use of her personal information" and then had "motive to later lie about that consent."

¶18 After J.M. testified that she had not given Appellant permission to use her information to open a credit account for the purpose of purchasing the television and entertainment system, Appellant was able to fully cross-examine J.M. about her motives, her petitions to modify custody, and other family court matters. Appellant questioned J.M. at length about her June 24 telephone conversation with Appellant, and J.M. admitted filing a document in family court the next day. Appellant also elicited J.M.'s admission that, as a result of the family court proceedings, J.M. hired an attorney, a parenting coordinator was appointed, and J.M. faced possible additional costs for the parenting coordinator. Appellant further elicited from J.M. that she had attempted to "negotiate" with Appellant in July 2009 to avoid the mounting legal fees and other costs associated with the family court proceedings, and that afterward, sometime in August 2009, Appellant had used her information to order the television and entertainment system. J.M. also admitted that sometime after contacting the police, she filed another document in family court stating that she "wanted to relocate with the children to Texas," and a basis for filing the petition was because Appellant was facing criminal charges. J.M. further conceded that she sought to relocate in part due to financial difficulties.9

¶19 Appellant also testified at length regarding J.M.'s alleged consent and motive to lie based on the family court proceedings. In doing so, he discussed the documents filed by J.M. and J.M's potential financial liability for repayment of his cash assistance. At the close of the defense's case, Appellant moved for a directed verdict pursuant to Rule 20, Ariz. R. Crim. P., arguing that "the heart of the case is whether [J.M.] consented and whether she had motive to lie and I think we have firmly established that through [J.M.'s] testimony and through [Appellant's] testimony." In his closing argument, Appellant again argued that J.M. had given her consent for him to use her information and had motive to lie about giving that consent:

¶20 Thus, through the extensive cross-examination of J.M. and his own testimony, as highlighted in his opening and closing arguments, Appellant was able to fully raise the issue of J.M.'s motive to lie. Further, contrary to his argument on appeal, Appellant has not identified any relevant information in the precluded documents that he was unable to present through cross-examination of J.M. Appellant was afforded the opportunity to testify as to the relevant evidence included in the precluded documents, and because the trial court allowed Appellant to establish all of the relevant facts and circumstances surrounding the family court matters, Appellant was not denied a meaningful opportunity to present a complete defense. See Machado, 224 Ariz. at 364, ¶ 67, 230 P.3d at 1179. We conclude that, even if the trial court's decision might be characterized as an abuse of discretion, any possible error was harmless.

CONCLUSION

¶21 Appellant's conviction, suspended sentence, and placement on probation are affirmed.

MAURICE PORTLEY, Presiding Judge, and SHELDON H. WEISBERG, Judge. Concurring.