Court of Appeals of Arizona, First Division, Department E
Not for Publication Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-005789-001 The Honorable Dawn M. Bergin, Judge
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section William Scott Simon, Assistant Attorney General Attorney for Appelle.
James Haas, Maricopa County Public Defender Phoenix By Terry Reid, Deputy Public Defender Attorney for Appellant.
KENT E. CATTANI, Judge
¶1 Irma Ann Tittle appeals from her convictions of three counts of custodial interference and the resulting sentences of probation. Tittle argues reversal is warranted because of prosecutorial misconduct in the form of arguing facts not in evidence and appealing to the sympathy of the jurors. We disagree and therefore affirm.
FACTS AND PROCEDURAL BACKGROUND 
¶2 Tittle and the victim (hereinafter "Father") were married to each other until 2003. The two had four children together -- an older son and three daughters -- when Father filed for dissolution of marriage. The May 2003 dissolution decree gave Tittle sole custody of the children, with Father to have parenting time each week.
¶3 Tittle moved to Texas approximately six months later, taking the children with her. Tittle did not inform Father of the move and listed a Phoenix post office box on the change-of-address form she filed with the family court.
¶4 Father lost contact with the children and Tittle for over five years. After Father eventually found the children in Texas, he petitioned the family court to modify custody. In a January 2010 custody order, the family court ordered Tittle and Father to share joint legal custody of the children, allowed the children's primary residence to remain with Tittle in Texas, and ordered reunification services and visitation for Father.
¶5 Over the following months, Father remained unsatisfied with Tittle's compliance with reunification services and with fostering contact between the children and Father. Father requested another modification of custody, prompting a September 2010 hearing that proceeded without Tittle present. After this hearing, the family court issued a civil arrest warrant for Tittle for failure to appear with the children and issued an ex parte order awarding Father temporary sole custody of the children and ordering the children returned to Arizona. Tittle thereafter faxed the court a motion to quash the arrest warrant.
¶6 Meanwhile, Father returned to Texas to take custody of the children. Father collected the two youngest children and withdrew them from school in preparation for their move to Arizona, made contact with his oldest daughter and arranged to pick her up at the end of the week. When the end of the week arrived, Father temporarily returned the youngest children to Tittle to pack their belongings, with the understanding Tittle would pick up the oldest daughter and return with all three children to a neutral meeting place for the change of custody. Tittle did not return and instead fled with the children to a friend's house; the children did not return to school for one to two months. The children remained with Tittle until her arrest in May 2011.
¶7 The State charged Tittle with three counts of custodial interference in violation of Arizona Revised Statutes ("A.R.S.") section 13-1302(A)(1) "on or between the 1st day of October, 2003 and the 9th day of October, 2010, " one count pertaining to each remaining minor child. Before trial, the superior court precluded Tittle's attempt to use alleged domestic violence by Father against Tittle as a statutory defense to the charges. See A.R.S. § 13-1302(C) (domestic violence threatening immediate danger to the children may be a defense to custodial interference under subsection (A)(2)). The court additionally restricted any testimony from Tittle regarding alleged domestic violence by Father against Tittle as irrelevant to the custodial interference charges. In recognition of this restriction, the court allowed only minimal trial testimony -- from Father as well as Tittle -- about the troubled relationship between Tittle and Father.
¶8 After a five-day trial, a jury found Tittle guilty of each count as charged. The court suspended sentence and imposed concurrent terms of four ...