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 Michael L. Truitt ("Appellant") appeals his convictions for forgery and tampering with a public record. In addition to raising evidentiary and constitutional issues, he argues the prosecutor engaged in misconduct requiring reversal. He further contends the trial court should have granted his motion for acquittal based on the State's failure to prove the underlying offenses occurred in Maricopa County. For the reasons that follow, we affirm.

BACKGROUND1

¶2 James Shively is a Phoenix-area attorney who represented Chrysler Financial ("Chrysler") in replevin matters. In early March 2007, Chrysler contacted Shively and forwarded a copy of a temporary restraining order ("TRO") Appellant handed Chrysler's "repo guys" when they attempted to repossess Appellant's Dodge truck.2 The TRO had the same superior court case number as the February 21, 2007 lawsuit Appellant filed seeking to preclude Chrysler from repossessing his truck.3

¶3 After reviewing the TRO, Shively detected several irregularities; notably, the signature of Judge "Ed Burke," dated February 22, 2007, "didn't look like it fit."4 Shively called Judge Burke's chambers and discovered the TRO was never filed and had not been signed by Judge Burke. At a subsequent status conference on Appellant's civil action, the assigned judge quashed the TRO.5

¶4 The State charged Appellant with one count of forgery, a class four felony, in violation of Arizona Revised Statutes ("A.R.S.") section 13-2002 (2010),6 and one count of tampering with a public record, a class six felony, in violation of A.R.S. § 13-2407 (2010). Appellant was found incompetent to stand trial on November 17, 2008, and ordered into restoration treatment. The parties stipulated on July 23, 2009 that Appellant was competent to stand trial. He subsequently disclosed that he would seek to prove he was guilty except insane pursuant to A.R.S. § 13-502 (2010).

¶5 At trial, Appellant's expert, Dr. Michael Bayless, opined that Appellant suffered from dementia and a psychotic disorder that prevented him from understanding "his behavior was [] wrong at the time of the offense."7 The State's expert, Dr. James Seward, testified that Appellant was malingering. Also, Dr. Seward was unable to conclude that Appellant suffered from a mental disease or defect that prevented him from knowing his actions were wrong at the time of the offenses.

¶6 The jury found Appellant guilty as charged and rejected his affirmative defense of guilty except insane. Appellant was sentenced to a mitigated term of four years' imprisonment for the forgery conviction, to run concurrently with the presumptive term of 1.75 years' imprisonment for the conviction for tampering with a public record. Appellant unsuccessfully moved for a new trial. This timely appeal followed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010).

ANALYSIS

I. Appellant's Statement: Alleged Violation of the Confrontation Clause and Hearsay Violation

¶7 At trial, Shively testified he could not remember if he told the investigating officer, Deputy Macklin of the Maricopa County Sheriff's Office, whether he had talked with Appellant. Later, over Appellant's hearsay objection, Deputy Macklin testified Shively told him Appellant had stated "the judge signed the order" because Judge Burke purportedly told Appellant "what Chrysler [] was doing to him was wrong."8

¶8 Appellant argues the trial court committed reversible error in allowing Deputy Macklin to testify about his statement because the evidence violated his right to confrontation under the Sixth Amendment to the United States Constitution and Article 2, Section 24, of the Arizona Constitution,9 and also constituted inadmissible hearsay.

¶9 Regarding Appellant's confrontation challenge, we review evidentiary rulings based on constitutional law or statutory construction de novo. Far West Water & Sewer, 224 Ariz. at 195, ¶ 76, 228 P.3d at 931. In this case, our review is for fundamental error because Appellant did not object to Deputy Macklin's testimony on this basis. See State v. Alvarez, 213 Ariz. 467, 469, ¶ 7, 143 P.3d 668, 670 (App. 2006). To obtain relief under fundamental error review, Appellant has the burden to show that error occurred, the error was fundamental, and he was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22, 115 P.3d 601, 607-08 (2005).

¶10 Additionally, we review for an abuse of discretion the trial court's ruling on the admissibility of evidence over a hearsay objection. State v. Chavez, 225 Ariz. 442, 443, ¶ 5, 239 P.3d 761, 762 (App. 2010). If we conclude that the trial court erred in admitting 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). We will not reverse if evidentiary error is harmless. See Ariz. R. Evid. 103(a).

¶11 We find no violation of Appellant's right to Appellant had the opportunity to cross-examine both Shively and Deputy Macklin. Further, "[a]lthough the Confrontation Clause applies to statements made by a witness against a defendant, a defendant does not have the right to confront his own statements." Far West Water & Sewer, 224 Ariz. at 195, ¶ 78, 228 P.3d at 931 (citing United States v. Moran, 759 F.2d 777, 786 (9th Cir. 1985) (holding that a defendant cannot claim a Confrontation Clause violation if the defendant's own out-of-court statements are admitted at trial); United States v. Rios Ruiz, 579 F.2d 670, 676-77 (1st Cir. 1978) (same)) (additional citations omitted).

¶12 Additionally, a party's own statements offered against him at trial are not hearsay. See Ariz. R. Evid. 801(d)(2)(A). Thus, Appellant's statement to Shively was admissible through Shively. Further, even assuming without deciding that the statement was offered to prove the truth of the matter asserted and no hearsay exception existed with regard to Deputy Macklin's recounting of Shively's statement, we find any possible error in the admission of the statement harmless. Appellant contends the statement regarding his purported conversation with Judge Burke was prejudicial because the statement was "the only direct evidence linking [him] to knowledge of the purportedly forged order," and that the evidence prejudiced his affirmative defense because the statement shows he lied in an attempt to exculpate himself, thereby exhibiting his consciousness of guilt. We disagree with Appellant's contention because the challenged statement was cumulative to other overwhelming evidence connecting Appellant to the TRO and showing he knew the TRO was forged when he presented it to Chrysler's agents.10

¶13 In this case, Appellant told the presiding civil judge he gave the TRO to the court clerk, who then purportedly returned it signed by Judge Burke. Judge Burke testified he did not sign the TRO and that he signs TROs only after hearing from the opposing party — which did not happen in this case. Appellant's clearly admissible statement sufficiently connects him to the TRO and evidences his consciousness of guilt. Further, Dr. Seward testified that during an interview, Appellant stated he would "obey the voices," and "the voices told him to sign the judge's signature." These statements also connect Appellant to the TRO, and in conjunction with Dr. Seward's opinion that Appellant was malingering, show Appellant was aware of his actions' wrongfulness in connection with the TRO. Finally, the TRO had the same case number and sought similar relief as Appellant's civil suit against Chrysler. And the TRO indicates it was purportedly signed by Judge Burke the day after Appellant filed his civil action, which is inconsistent with Appellant's explanation that the court clerk returned the signed TRO to him the day he filed the civil suit and concurrent request for the TRO.

¶14 We thus conclude beyond a reasonable doubt that the admission of Shively's statement to Deputy Macklin regarding Appellant's conversation with Judge Burke did not affect the verdict because the statement was cumulative to and consistent with the other evidence of Appellant's guilt and his awareness that his actions were wrongful. Accordingly, any purported error in its admission was harmless, and Appellant was not prejudiced. See, e.g., State v. Shearer, 164 Ariz. 329, 340, 793 P.2d 86, 97 (App. 1989) (finding that the introduction of inadmissible evidence was harmless error because the evidence was cumulative to and consistent with other trial testimony). Consequently, we find no reversible error.

II. Preclusion of the Expert's Written Report

¶15 Appellant next argues the court committed prejudicial error in precluding Dr. Bayless's written report. The report contains Dr. Bayless's opinion that Appellant "is unaware that his behavior is wrong," and, as a basis for this opinion, the report summarizes Appellant's medical records and other psychological evaluations.

¶16 As noted, we review the trial court's admission or exclusion of evidence for an abuse of discretion. State v. Davis, 205 Ariz. 174, 178, ¶ 23, 68 P.3d 127, 131 (App. 2002).

¶17 Appellant contends the written report was admissible under Arizona Rules of Evidence 702 and 703, which address the admissibility of expert opinion testimony and the "facts or data" that form the bases for the expert's opinion.11 Even assuming arguendo that Appellant can overcome any possible hearsay barrier, see Ariz. R. Evid. 802, and Rule 703 would support admission of the report, we find no error. Appellant acknowledges that the trial court "specifically allowed [Appellant] unfettered discretion to elicit testimony from Dr. Bayless on any and all information, facts and data that Dr. Bayless reviewed and on which he relied and based his opinion despite that information coming from other medical and forensic experts," and "Dr. Bayless testified at great length regarding the facts and data he considered from the evaluations and records of the other forensic experts and medical physicians."12 We therefore fail to discern any abuse of discretion, much less an abuse of discretion that could be characterized as anything but harmless. Appellant's speculation that the "jury simply got it wrong here" because "they were confused by the scientific evidence and the burden[, and t]hat confusion would have been clarified if they had been presented Dr. Bayless's written report" is insufficient to find reversible error. See State v. Doerr, 193 Ariz. 56, 61, ¶ 18, 969 P.2d 1168, 1173 (1998) (declining to "indulge in [] guesswork" based on the defendant's speculative assertion of error); see also Birch v. State, 19 Ariz. 366, 370, 171 P. 135, 137 (1918) ("Cases may be reversed in this court only where the record affirmatively shows error prejudicial to some substantial right of a defendant . . . .").

III. Constitutionality of A.R.S. § 13-502(C)

¶18 Appellant next contends A.R.S. § 13-502(C) violated his state and federal constitutional rights to due process and equal protection. See A.R.S. § 13-502(C) ("The defendant [who raises a guilty except insane defense] shall prove the defendant's legal insanity by clear and convincing evidence."). We disagree. The Arizona Supreme Court has consistently rejected such constitutional challenges to § 13-502(C). See State v. Roque, 213 Ariz. 193, 215, ¶ 77, 141 P.3d 368, 390 (2006); State v. King, 158 Ariz. 419, 421-25, 763 P.2d 239, 241-45 (1988); State v. Moorman, 154 Ariz. 578, 586, 744 P.2d 679, We are bound to follow our supreme court's decisions. State v. Sullivan, 205 Ariz. 285, 288, ¶ 15, 69 P.3d 1006, 1009 (App. 2003) (citation omitted). Accordingly, we do not address this argument further.

IV. Alleged Prosecutorial Misconduct

¶19 Appellant next argues that several instances of prosecutorial misconduct denied him a fair trial. Appellant did not object at trial to the purported misconduct; therefore, we review for fundamental error.13 See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. We find no error, much less fundamental error.

¶20 "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that `(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial.'" State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004) (citation omitted). "Prosecutorial misconduct requiring reversal must have so permeated the trial that it probably affected the outcome and denied defendant his due process right to a fair trial." State v. Blackman, 201 Ariz. 527, 541, ¶ 59, 38 P.3d 1192, 1206 (App. 2002) (citations omitted).

¶21 Appellant first points to various instances of the prosecutor eliciting testimony that Appellant now claims was inadmissible hearsay.14 Appellant does not claim, however, that the prosecutor elicited testimony the trial court ruled was inadmissible; rather, he merely asserts the prosecutor "knew or should have known the facts and strength of his case. He knew or reasonably should have known what evidence his witnesses could present and what they could not." Assuming Appellant's assertion is true, we fail to see how the prosecutor engaged in misconduct on this basis. See Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984) (stating that prosecutorial misconduct "is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial").

¶22 Appellant next argues that, during closing arguments, the prosecutor improperly referred to facts not in evidence and shifted the burden of proof by improperly commenting on Appellant's Fifth Amendment right to remain silent. We disagree.

¶23 Regarding the prosecutor's alleged improper factual references, Appellant points to two:15 the "financial history of the purchase and financing of the truck allegedly owned by [Appellant],"16 and the statement, "There is no other Judge Edward Burke."

¶24 We find the challenged statements are either recitations of the trial evidence or reasonable inferences therefrom. See State v. Morris, 215 Ariz. 324, 336, ¶ 51, 160 P.3d 203, 215 (2007) ("Prosecutors have `wide latitude' in presenting their arguments to the jury . . . [and are] permitted to argue `all reasonable inferences from the evidence,' but cannot `make insinuations that are not supported by the evidence.'" (citations omitted)). In any event, the statements were not unduly prejudicial and did not contribute to the jury's verdict because the trial court advised the jury before the closing arguments that the lawyers' comments are not evidence. See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006) (stating that, as part of the standard jury instructions, the trial court instructed the jury that statements made during closing arguments are not evidence). We presume that jurors follow the court's instructions. Id.

¶25 Regarding Appellant's contention that the prosecutor improperly commented on Appellant's constitutional right to remain silent, Appellant refers to the following statement: "And you have heard no testimony that [the civil pleadings] weren't filed by the defendant."17 The prosecutor, however, did not make this statement to highlight for the jury Appellant's invocation of his right to not testify. Rather, the statement was a remark about the general lack of testimony contradicting the trial evidence showing Appellant did file the pleadings. Accordingly, the prosecutor's comment was not improper. See State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160, 735 P.2d 767, 770 (1987) (stating that a prosecutor may comment on the defendant's failure to produce evidence, as long as the comment is not regarding the defendant's silence); State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (same); State v. McKinley, 157 Ariz. 135, 138, 755 P.2d 440, 443 (App. 1988) (holding that the burden of proof did not shift to the defendant when the State disclosed to the jury that the defendant failed to test semen samples despite having the opportunity to do so); State v. Martinez, 130 Ariz. 80, 82, 634 P.2d 7, 9 (App. 1981) (noting a prosecutor's comment on a defendant's failure to present evidence "is objectionable if such reference is calculated or intended to direct the jury's attention to the fact that a defendant has chosen to exercise his fifth amendment privilege"). In sum, we find no prosecutorial misconduct, much less misconduct resulting in fundamental, prejudicial error.

V. Jurisdiction

¶26 Finally, Appellant argues he was entitled to judgment of acquittal, see Ariz. R. Crim. P. 20, based on the State's failure to provide evidence that the offenses were committed in Maricopa County.18 In support of his argument, he points to the State's failure to specifically inquire during its case presentation whether the crime occurred in Maricopa County, and he notes no evidence showed from where Chrysler, located in Detroit, received the faxed TRO. We reject this argument.

¶27 The facts elicited at trial support the clear inference that Appellant's crimes occurred in Maricopa County. As we have recognized, for example, Shively is a Phoenix-area attorney, and Judge Burke was a Maricopa County Superior Court judge.

¶28 Additionally, Appellant cites to no authority for the proposition that venue is a question for the jury to decide when determining guilt. See State v. Mohr, 150 Ariz. 564, 566, 724 P.2d 1233, 1235 (App. 1986) ("In a criminal case, proper venue is a jurisdictional requirement." (citation omitted)). And the crimes of forgery and tampering with a public record do not contain elements related to geographical location. Further, Appellant points to no evidence of record affirmatively challenging the trial court's jurisdiction in this case. See State v. Willoughby, 181 Ariz. 530, 538-39, 892 P.2d 1319, 1327-28 (1995) ("In the absence of evidence contradicting jurisdiction, [ ] only the issues pertaining to criminality must go to the jury." (citation omitted)). Accordingly, we cannot conclude that the court abused its discretion in denying Appellant's Rule 20 motion on this basis. See State v. Carlos, 199 Ariz. 273, 276, ¶ 7, 17 P.3d 118, 121 (App. 2001) (stating that the denial of a Rule 20 motion is reviewed for an abuse of discretion).

CONCLUSION

¶29 Appellant's convictions and sentences are affirmed.

MAURICE PORTLEY, Presiding Judge, SHELDON H. WEISBERG, Judge, concurring.