author: FOX, Justice.

text:
    JonMichael GUY, Appellant (Plaintiff), v. The WYOMING DEPARTMENT OF CORRECTIONS, BY AND THROUGH Robert O. LAMPERT, individually and in his official capacity as Director of the Wyoming Department of Corrections; Julie Tennant-Caine, individually and in her official capacity as a Deputy Administrator of the Wyoming Department of Corrections; and The State of Wyoming, Appellees (Defendants).
    JonMichael Guy, Appellant (Plaintiff), v. Robert O. Lampert, individually and in his official capacity as Director of the Wyoming Department of Corrections; Julie Tennant-Caine, individually and in her official capacity as a Deputy Administrator of the Wyoming Department of Corrections; and Wyoming Department of Corrections, by and through Robert O. Lampert, and the State of Wyoming, Appellees (Defendants).
    S-18-0231 S-18-0263
    Supreme Court of Wyoming.
    July 9, 2019
    Representing Appellant: Steve C.M. Aron and Alexander J. Mencer, Aron & Hennig, LLP, Laramie, Wyoming. Argument by Mr. Aron.
    Representing Appellees: Bridget L. Hill, Attorney General; Michael J. McGrady, Deputy Attorney General; Daniel E. White, Senior Assistant Attorney General. Argument by Mr. White.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   FOX, Justice.

[¶1] JonMichael Guy, an inmate in the custody of the Wyoming Department of Corrections (WDOC), sued the WDOC under 42 U.S.C. § 1983, seeking to require that it recognize Humanism as a religion. He sought declaratory and injunctive relief, and also sought monetary damages from the WDOC's Director, Robert O. Lampert, and its Deputy Administrator, Julie Tennant-Caine, in their individual capacities. After he filed his complaint, the WDOC officially recognized Humanism as a religion. As a result, the district court dismissed Mr. Guy's complaint. In addition, the district court denied Mr. Guy's motion for attorney fees under 42 U.S.C. § 1988 because Mr. Guy was not a "prevailing party." We affirm.

ISSUES

[¶2] We rephrase Mr. Guy's issues:

1. Does the voluntary cessation exception to the mootness doctrine apply in Wyoming?
2. Does the district court's conclusion that Mr. Guy failed to exhaust his administrative remedies require reversal?
3. Were Mr. Lampert and Ms. Tennant-Caine entitled to qualified immunity?
4. Did Mr. Guy preserve his argument that the Defendants' certificate of service, attached to their motion to dismiss, was invalid?
5. Was Mr. Guy a "prevailing party" under 42 U.S.C. § 1988 ?

FACTS

[¶3] Mr. Guy is a WDOC inmate housed at the Wyoming Medium Correctional Institution (WMCI) in Torrington. On December 8, 2017, Mr. Guy and the American Humanist Association (AHA) filed a complaint under 42 U.S.C. § 1983 against the Wyoming Department of Corrections. He also sued the Director of the WDOC, Robert O. Lampert, and his Deputy Administrator, Julie Tennant-Caine, in their official and individual capacities. Mr. Guy alleged that the WDOC refused to allow practicing Humanists to "form a Humanist study group to meet on the same terms that Defendants authorize inmates of theistic religious traditions, and other religions, to meet; and ... to allow inmates to identify as Humanists for assignment purposes." He claimed that the WDOC's refusal violated the First and Fourteenth Amendments to the United States Constitution, and Article I, Sections 2, 6, 7, 18, and 19, of the Wyoming Constitution. He sought "injunctive and declaratory relief and [monetary] damages[.]"

[¶4] Mr. Guy raised two claims that are relevant to this appeal. In the first claim, he sought monetary damages against Mr. Lampert and Ms. Tennant-Caine in their individual capacities. He sought $120,000 for violation of his civil rights, unspecified additional damages for "emotional distress, shame, humiliation, loss of enjoyment of life and mental anguish," and "exemplary and punitive damages."

[¶5] In his second claim, Mr. Guy sought declaratory and injunctive relief. He requested an injunction to preclude the Defendants from:

• Depriving him of his freedom of religion;
• Preventing him from associating with other Humanist practicing inmates; and
• Favoring some religions over others.

In addition, he asked the district court to order that the Defendants recognize Humanism as a religion, permit a Humanist study group, and prohibit discrimination against all Humanist inmates. Finally, Mr. Guy sought a declaratory judgment affirming his right to practice Humanism, declaring that exclusion of Humanism violates the constitution, and declaring that the Defendants violated Mr. Guy's constitutional rights.

[¶6] On December 29, 2017, after Mr. Guy had filed his complaint, the WDOC executed a "Director's Executive Order" that formally recognized Humanism as a religion and added Humanism to the WDOC's "Handbook of Religious Beliefs and Practices." It also recognized three Humanist holidays. On January 23, 2018, the Defendants filed a motion to dismiss the complaint. They argued the executive order mooted Mr. Guy's claims seeking recognition of Humanism. They also argued his "allusions" to specific Humanist practices, such as fire ceremonies, a Humanist diet, and a Humanist study group, in addition to being improperly pleaded, were not ripe for review because Mr. Guy did not request that the WDOC permit these practices before filing suit. Finally, Mr. Lampert and Ms. Tennant-Caine argued they were entitled to qualified immunity as to Mr. Guy's claim for monetary damages.

[¶7] The district court granted the Defendants' motion. The court relied on the WDOC's executive order that added Humanism to the list of recognized religions to find Mr. Guy's claims were moot. It concluded the mootness doctrine extinguished Mr. Guy's request for declaratory and injunctive relief and his demand for monetary damages against Mr. Lampert and Ms. Tennant-Caine. The court rejected Mr. Guy's argument that the voluntary cessation exception to the mootness doctrine applied because that exception had not been adopted in Wyoming. It did not address whether Defendants were entitled to qualified immunity on Mr. Guy's claim for monetary damages because of its conclusion that this claim was also moot.

[¶8] After the court dismissed his complaint, Mr. Guy sought to recover his attorney's fees under 42 U.S.C. § 1988(b). That statute permits the "prevailing party" in a case under § 1983 to recover "a reasonable attorney's fee." The district court denied the motion because Mr. Guy was not a "prevailing party." Mr. Guy appealed both of the court's orders. We consolidated his appeals for argument and decision.

DISCUSSION

[¶9] The majority of Mr. Guy's complaint has been remedied by the WDOC's executive order, which recognizes Humanism as a religion. The question, however, is whether the district court correctly dismissed all of Mr. Guy's claims for relief.

STANDARD OF REVIEW

[¶10] We evaluate a district court's decision on a motion to dismiss de novo. Wyo. Guardianship Corp. v. Wyo. State Hosp., et al. , 2018 WY 114, ¶ 16, 428 P.3d 424, 432 (Wyo. 2018). We also apply de novo review to determine whether an issue is moot, In Interest of DJS-Y , 2017 WY 54, ¶ 6, 394 P.3d 467, 469 (Wyo. 2017), and to determine whether a state official is entitled to qualified immunity. Abell v. Dewey , 870 P.2d 363, 367 (Wyo. 1994).

I. The voluntary cessation exception to the mootness doctrine has not been adopted in Wyoming

[¶11] The crux of Mr. Guy's complaint was his request for an injunction that required the WDOC to recognize Humanism as a religion. Because the WDOC did just that when it issued its executive order, the district court concluded that Mr. Guy's complaint was moot. It then concluded that the voluntary cessation exception to the mootness doctrine, which may apply in federal court, did not apply because this Court has never adopted that exception.

[¶12] On appeal, Mr. Guy contends that the district court erred when it concluded that the voluntary cessation exception to mootness does not apply in Wyoming state courts. He does not, however, address the district court's conclusion that the exception has never been adopted in Wyoming. Instead, he simply asserts that the "State and Federal Standards for Mootness are Consistent." He then goes on to cite to numerous federal opinions that have applied the voluntary cessation exception in federal court. "[T]he central question in a mootness case is 'whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties.' " Williams v. Matheny , 2017 WY 85, ¶ 15, 398 P.3d 521, 527 (Wyo. 2017) (quoting In re Guardianship of MEO , 2006 WY 87, ¶ 27, 138 P.3d 1145, 1153-54 (Wyo. 2006) ). "However, there are three exceptions to the operation of that doctrine which relate to issues of great public importance, issues with respect to which it is necessary to provide guidance to state agencies and lower courts, and controversies capable of repetition while evading review." City of Casper v. Simonson , 2017 WY 86, ¶ 16 n.7, 400 P.3d 352, 355 n.7 (Wyo. 2017) (citations omitted).

[¶13] Mr. Guy did not rely on any of these exceptions in the district court. Instead, in his response to the Defendants' motion to dismiss, he made a passing reference to the voluntary cessation exception which applies in federal courts. (citing Am. Humanist Ass'n v. United States, et al. , 63 F. Supp. 3d 1274 (D. Or. 2014) ). In federal court: "It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite v. Aladdin's Castle , 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982). However, mootness doctrine in federal court arises from constitutional Article III limitations on jurisdiction. See, e.g. , Powell v. McCormack , 395 U.S. 486, 496 n.7, 89 S.Ct. 1944, 1950 n.7, 23 L.Ed.2d 491 (1969). Article III limitations on federal courts, and any applicable exceptions to those limitations, do not apply in state court: "We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law, as when they are called upon to interpret the Constitution or, in this case, a federal statute." ASARCO Inc. v. Kadish , 490 U.S. 605, 617, 109 S.Ct. 2037, 2045, 104 L.Ed.2d 696 (1989) (citations omitted) (emphasis added); Allred v. Bebout , 2018 WY 8, ¶ 35, 409 P.3d 260, 269 (Wyo. 2018) (recognizing state standing analysis "should not be governed by federal law").

[¶14] Turning to Wyoming mootness doctrine, we are unable to find any case where we have cited, let alone adopted, the voluntary cessation exception. Moreover, Mr. Guy presents no argument why we should adopt the exception now. See Lemus v. Martinez , 2019 WY 52, ¶ 43, 441 P.3d 831, 841 (Wyo. 2019) (refusing to consider appellate argument not supported by cogent argument) (citation omitted). We affirm the district court's decision that Mr. Guy's claim for injunctive relief is moot.

II. The district court's conclusion that Mr. Guy failed to exhaust his administrative remedies does not require reversal

[¶15] We now turn to Mr. Guy's argument that the district court improperly dismissed his complaint "for failure to exhaust administrative remedies." It is true that, in its order, the district court faulted Mr. Guy for failing to exhaust his administrative remedies under the Prison Litigation Reform Act of 1995 (the PLRA). See Chapman v. Wyo. Dept. of Corr. , 2016 WY 5, ¶ 16, 366 P.3d 499, 508 (Wyo. 2016) ("The Prison Litigation Reform Act of 1995 requires inmates to exhaust administrative remedies available to them before they can file a civil rights action pursuant to 42 U.S.C. § 1983.") (internal footnote omitted). Mr. Guy spends considerable space in his brief arguing that a court cannot dismiss a § 1983 complaint under the PLRA for failure to exhaust because that is an affirmative defense and not a basis to dismiss at the pleading stage. (citing Jones v. Bock , 549 U.S. 199, 212, 127 S.Ct. 910, 919, 166 L.Ed.2d 798 (2007) ). We read the district court's dismissal for failure to exhaust as an alternative basis to its mootness decision. ("Further, the Court finds [Mr. Guy] did not exhaust administrative remedies, precluding [Mr. Guy's] civil rights action."). Even if the court improperly concluded that Mr. Guy failed to exhaust, that does not affect its mootness decision, and would, therefore, not require reversal. See W.R.A.P. 9.04 ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court.").

III. Mr. Lampert and Ms. Tennant-Caine were entitled to qualified immunity

[¶16] Mr. Guy sought $120,000 from Mr. Lampert and Ms. Tennant-Caine in their individual capacities; as well as unspecified damages for "emotional distress, shame, humiliation, loss of enjoyment of life, and mental anguish," and "exemplary and punitive damages." In their motion to dismiss, Mr. Lampert and Ms. Tennant-Caine argued that they were entitled to qualified immunity. The district court concluded that, because it was dismissing Mr. Guy's complaint as moot, it did not need to reach the question of qualified immunity.

[¶17] On appeal, the Defendants concede that the district court's mootness decision did not dispose of Mr. Guy's claim for monetary relief. Nevertheless, they argue that we can affirm the district court's decision to dismiss Mr. Guy's damages claim because this Court may "affirm a district court's action on appeal if it is sustainable on any legal ground appearing in the record even if the legal ground or theory articulated by the district court is incorrect."

[¶18] Before we can address the merits of the issue, we must first determine if it is appropriate in this case for us to decide an issue that the district court did not directly address. Generally, we will not consider an argument for the first time on appeal. See, e.g. , Meiners , 2019 WY 39, ¶ 25 n.4, 438 P.3d at 1270 n.4. However, Mr. Lampert and Ms. Tennant-Caine raised the issue of qualified immunity, and Mr. Guy addressed qualified immunity in his response. This is not a case where there is no reviewable order in the record or where the district court deferred its decision on an issue. See generally Mantle v. North Star Energy & Construction LLC , 2019 WY 54, ¶¶ 20-24, 441 P.3d 841, 847-48 (Wyo. 2019). Rather, the district court recognized the Defendants' qualified immunity argument, but concluded, albeit erroneously, that its mootness decision disposed of the claim for monetary damages. We have repeatedly held that we may affirm a district court's ultimate decision on any basis appearing in the record, even if that basis was not relied upon by the district court in its decision. See, e.g. , Peterson v. Johnson , 46 Wyo. 473, 28 P.2d 487, 490 (1934) ("Counsel argue further that the preliminary injunction should not have been issued. It is evident, however, in so far as that injunction is concerned, that we could not reverse the case, if error was committed in issuing it, if the ultimate decision rendered herein is correct, for the error would then be without prejudice .") (citations omitted) (emphasis added); Heilig v. Wyo. Game & Fish Comm'n , 2003 WY 27, ¶ 8, 64 P.3d 734, 737 (Wyo. 2003). Given the procedural posture of this case, (i.e., the facts as alleged in Mr. Guy's complaint are presumed true), whether Defendants were entitled to qualified immunity is a purely legal question. See Abell , 870 P.2d at 367. Thus, we will address the Defendants' argument that they are entitled to qualified immunity.

[¶19] "Qualified immunity protects government officials from civil liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wyo. Guardianship Corp. , 2018 WY 114, ¶ 19, 428 P.3d at 433 (citations and quotation marks omitted). "To survive a motion to dismiss based on qualified immunity, a plaintiff must allege sufficient facts showing: (1) that the defendant's actions violated a constitutional right; and (2) that the right was clearly established at the time of the alleged misconduct." Id. (citations omitted).

[¶20] A court has the discretion to decide the "clearly established" prong first. See Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). To overcome qualified immunity, the alleged right at issue must be "clearly established," such that it is "beyond debate." See, e.g. , Dist. of Columbia v. Wesby , --- U.S. ----, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018). "The dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Hernandez v. Mesa , --- U.S. ----, 137 S.Ct. 2003, 2007, 198 L.Ed.2d 625 (2017) (citation and quotation marks omitted). "This demanding standard protects 'all but the plainly incompetent or those who knowingly violate the law.' " Wesby , --- U.S. at ----, 138 S.Ct. at 589 (quoting Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) ). To that end, the United States Supreme Court has emphasized the level of specificity a court must use to ascertain the alleged right at issue:

Today, it is again necessary to reiterate the longstanding principle that "clearly established law" should not be defined "at a high level of generality." Ashcroft v. al-Kidd , 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). As this Court explained decades ago, the clearly established law must be "particularized" to the facts of the case . Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Otherwise, "[p]laintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." Id. , at 639, 107 S.Ct. 3034.

White v. Pauly , --- U.S. ----, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam) (emphasis added).

[¶21] We must first define the "right" at issue to determine if that right was clearly established at the time of the alleged constitutional violation. We turn to the allegations in Mr. Guy's complaint. He attempted to overcome qualified immunity by defining the "right" at issue in general terms:

49. At all relevant times, the right of Guy to freedom of religion was a clearly established legal principle that was well known to Lampert and Tennant-Caine.
50. At the time of the violations set forth herein, the prohibition against establishing or favoring one religion over another was a clearly established legal principle that was well known to Lampert and Tennant-Caine.
51. At the time of the violations set forth herein, the prohibition by which Guy was denied the same and equal treatment accorded to members of the WDOC Recognized Religions, and to the equal protection of the law was a clearly established principle that was well known to Lampert and Tennant-Caine.

(Emphasis added.) This type of generalization has been expressly rejected by the United States Supreme Court. See White , --- U.S. ----, 137 S.Ct. at 552. Mr. Guy's complaint focused on the Defendants' alleged refusal to allow him "to form a Humanist study group to meet on the same terms that Defendants authorize inmates of theistic religious traditions, and other religions, to meet; and Defendants' refusal to allow inmates to identify as Humanists for assignment purposes." Thus, we conclude that the "right" at issue is Humanism's status as a "religion" for purposes of the First Amendment. We will assume, without deciding, that Humanism is a "religion" for purposes of the First Amendment.

[¶22] Having defined the "right" at issue, we now turn to what authority a court may consider to ascertain whether that "right" was "clearly established" at the time of Defendants' conduct. We begin by determining whether there is United States Supreme Court precedent on point. See Wesby , --- U.S. ----, 138 S.Ct. at 591 n.8. The law is not settled on whether a court may look to a lower tribunal to answer the question. Id. ("We have not yet decided what precedents-other than our own-qualify as controlling authority for purposes of qualified immunity.") (citing Reichle v. Howards , 566 U.S. 658, 665-66, 132 S.Ct. 2088, 2094, 182 L.Ed.2d 985 (2012) ). Nevertheless, even if we may look to courts other than the United States Supreme Court for guidance, those decisions must put the question "beyond debate." Wesby , --- U.S. at ----, 138 S.Ct. at 589 ; Brown v. Montoya , 662 F.3d 1152, 1171 (10th Cir. 2011) ("[F]or the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.") (citation omitted) (emphasis added). To defeat qualified immunity, Mr. Guy must demonstrate that the question of whether Humanism is a religion, for First Amendment purposes, has been placed "beyond debate." We conclude that he failed to carry his burden.

[¶23] In response to Defendants' motion to dismiss, Mr. Guy argued that "[t]he essence of a qualified immunity claim is factual" and that whether a right was "clearly established ... is a factual determination." To the contrary, the United States Supreme Court has established the "point that the appealable issue is a purely legal one : whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law." Mitchell v. Forsyth , 472 U.S. 511, 528 n.9, 105 S.Ct. 2806, 2816 n.9, 86 L.Ed.2d 411 (1985) (emphasis added).

[¶24] Mr. Guy attempts to prove that the right at issue was "clearly established" by citing Am. Humanist Ass'n , 63 F. Supp. 3d 1274, a case from the United States District Court for the District of Oregon. There, the district court denied the defendants' qualified immunity defense where the defendants had refused the inmate's request to form a "Humanist study group or an Atheist study group, or to recognize Humanism as a religious assignment." Id. at 1278. It relied on a footnote from Torcaso v. Watkins , 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), in which "the Supreme Court ... referred to 'Secular Humanism' as a religion." Am. Humanist Ass'n , 63 F. Supp. 3d at 1286 (citing Torcaso , 367 U.S. at 495 n.11, 81 S.Ct. at 1684 n.11 ). That single case does not represent the great weight of authority that has placed the question beyond debate, as demonstrated by the D.C. Circuit Court of Appeals' discussion:

The Court's statement in Torcaso does not stand for the proposition that humanism, no matter in what form and no matter how practiced, amounts to a religion under the First Amendment. The Court offered no test for determining what system of beliefs qualified as a "religion" under the First Amendment. The most one may read into the Torcaso footnote is the idea that a particular non-theistic group calling itself the "Fellowship of Humanity" qualified as a religious organization under California law. See Grove v. Mead Sch. Dist. No. 354 , 753 F.2d 1528, 1537 (9th Cir. 1985) (Canby, J., concurring) (quoting Malnak [v. Yogi ], 592 F.2d [197], 206, 212 [ (3d Cir. 1979) ] ). See also Alvarado v. City of San Jose , 94 F.3d 1223, 1228 & n.2 (9th Cir. 1996) (citing cases supporting the limited scope of the Torcaso footnote); Peloza v. Capistrano Unified Sch. Dist. , 37 F.3d 517, 521 (9th Cir. 1994) ("[N]either the Supreme Court, nor this circuit, has ever held that evolutionism or secular humanism are 'religions' for Establishment Clause purposes.").

Kalka v. Hawk , 215 F.3d 90, 99 (D.C. Cir. 2000).

[¶25] We need not resolve whether Humanism is a recognized religion for First Amendment purposes. Rather, our only task is to determine whether "clearly established" law places the question "beyond debate." Because it does not, we conclude Mr. Lampert and Ms. Tennant-Caine were entitled to qualified immunity as to Mr. Guy's claim for monetary damages.

IV. Mr. Guy did not preserve his argument that the Defendants' certificate of service was invalid

[¶26] In a single sentence of his response to the motion to dismiss, Mr. Guy stated: "As a separate, procedural matter, Defendants' Motion and Memorandum have not been properly served on the Plaintiffs in accordance with the express provisions of the applicable Wyoming Uniform Rules of the District Courts." In a footnote, the district court declined to address Mr. Guy's assertion because he "fail[ed] to present a specific rule Defendants violated or any facts to support [his] allegation."

[¶27] On appeal, Mr. Guy attempts to augment his argument by citing to the certificate of service the Defendants attached to their motion to dismiss, which was signed by a paralegal rather than their attorney. Mr. Guy then appears to argue that this certificate of service violated W.R.C.P. 5(d)(1), which requires a party to attach a certificate of service to "[a]ny paper [filed] after the complaint," and Rule 302(a)(3) of the Uniform Rules for District Courts, which requires the attorney "for the party making service" to sign the certificate of service.

[¶28] Mr. Guy did not raise his argument that the service violated W.R.C.P. 5 below, and we therefore decline to address it here. See Meiners , 2019 WY 39, ¶ 25 n.4, 438 P.3d at 1270 n.4. With respect to the alleged violation of U.R.D.C. 302, Mr. Guy presents no argument other than a citation to the rule. He does not contend that the allegedly defective certificate caused him any prejudice, nor could he, as he received the WDOC's filings and responded to them without asserting that the service affected his ability to respond in a timely manner. See W.R.A.P. 9.04.

V. Mr. Guy was not a "prevailing party" under 42 U.S.C. § 1988

[¶29] After the district court dismissed his complaint, Mr. Guy filed a motion to recover attorney's fees under 42 U.S.C. § 1988. Because it dismissed his complaint as moot, the district court concluded that Mr. Guy was not a "prevailing party."

[¶30] In a § 1983 case, a court may award reasonable attorney fees to the "prevailing party." 42 U.S.C. § 1988(b). Whether a litigant is a "prevailing party" is a question of law that we review de novo. Kansas Judicial Watch v. Stout , 653 F.3d 1230, 1235 (10th Cir. 2011) ; Morris v. CMS Oil & Gas Co. , 2010 WY 37, ¶ 36, 227 P.3d 325, 335 (Wyo. 2010). Mr. Guy argues that he is a prevailing party because he improved his position by the litigation in that the WDOC granted him the relief requested in his complaint via the executive order recognizing Humanism as a religion. The State asserts that Mr. Guy did not carry his burden of establishing prevailing party status because he did not show that his lawsuit was causally linked to the WDOC's executive order or that he "received any form of judicial relief on the merits of his claims."

[¶31] Mr. Guy relies on the "catalyst theory" which "posits that a plaintiff is a 'prevailing party' if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct."

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. , 532 U.S. 598, 601, 121 S.Ct. 1835, 1838, 149 L.Ed.2d 855 (2001). Prior to the United States Supreme Court's decision in Buckhannon , nearly all federal courts of appeals recognized that a showing that the plaintiff's suit served as the catalyst for the defendant's remedial action qualified the plaintiff as a prevailing party. Id. ; see also, e.g. , MacLaird v. Werger , 723 F. Supp. 617, 618-19 (D. Wyo. 1989).

[¶32] In Buckhannon , the Court overturned "legions of federal-court decisions," id. at 628, 121 S.Ct. at 1853 (Ginsburg, J., dissenting), holding that "the 'catalyst theory' is not a permissible basis for the award of attorney's fees[.]" Id. at 610, 121 S.Ct. at 1843. There, the plaintiff sought declaratory and injunctive relief against West Virginia, two of its agencies, and 18 individuals under the Fair Housing Amendments Act (FHAA) and the Americans with Disabilities Act (ADA). Id. at 601, 121 S.Ct. at 1838. Less than a month after the federal district court denied the state's summary judgment motion, the state legislature repealed the statute challenged in the litigation. Id. at 624, 121 S.Ct. at 1850. The defendants moved to dismiss the case as moot, and the plaintiffs sought attorney's fees as the "prevailing party" under the FHAA, 42 U.S.C. § 3613(c)(2), and the ADA, 42 U.S.C. § 12205. Id. at 624, 121 S.Ct. at 1850-51. The Court affirmed the judgment denying the plaintiff's motion for attorney's fees, holding the term "prevailing party" does not include "a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Id. at 600, 121 S.Ct. at 1838.

[¶33] Mr. Guy would have this Court ignore that holding and instead rely on state fee-shifting statutes. See Schaub v. Wilson , 969 P.2d 552, 561 (Wyo. 1998) (interpreting "prevailing party" in Wyo. Stat. Ann. § 1-14-124 ); Morris , 2010 WY 37, ¶¶ 35-46, 227 P.3d at 334-37 (interpreting "prevailing party" in Wyo. Stat. Ann. § 30-5-303(b) ). However, these cases do not control interpretation of "prevailing party" in 42 U.S.C. § 1988(b). Instead, this Court, "like the lower federal courts, [is] bound by the supremacy clause of the federal Constitution" to follow the United States Supreme Court's interpretation of section 1988. See Martin A. Schwartz & John E. Kirklin, Sec. 1983 Litig. Stat. Att'y Fees § 1.07 (4th ed. 2019-1 Supp.), Westlaw. It is the United States Supreme Court's "responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law." James v. City of Boise, Idaho , --- U.S. ----, 136 S.Ct. 685, 686, 193 L.Ed.2d 694 (2016) (per curiam) (reversing the Idaho Supreme Court's conclusion that it was not bound by the Supreme Court's interpretation of § 1988 ) (quoting Nitro-Lift Technologies, L.L.C. v. Howard , 568 U.S. 17, 20, 133 S.Ct. 500, 503, 184 L.Ed.2d 328 (2012) (per curiam)). Because the United States Supreme Court has decided the meaning of "prevailing party" in 42 U.S.C. § 1988, we are bound by that interpretation- Buckhannon governs. Mr. Guy did not obtain a judgment on the merits, a court-ordered consent decree, or any other form of judicial relief. The WDOC's "voluntary change in conduct, although perhaps accomplishing what [Mr. Guy] sought to achieve by the lawsuit, lacks the necessary judicial imprimatur " to make him a prevailing party under the statute. Buckhannon , 532 U.S. at 605, 121 S.Ct. at 1840.

[¶34] Other cases Mr. Guy cites are distinguishable. For example, Balla v. Idaho , 677 F.3d 910, 914 (9th Cir. 2012), held that reasonable attorney's fees could be awarded when the plaintiffs' contempt motion quickly brought the defendants into compliance with an existing injunction, even though the court denied the contempt motion. However, there, the plaintiffs "had long ago won their injunction ... and they did not have to win further judicial relief to get paid for their lawyers' work." Id. at 919-20. The court reasoned that Buckhannon "speaks to the case where there never has been judicially ordered relief," but not to cases where there has been judicial relief that may require additional monitoring and enforcement. Id. at 918. Mr. Guy's case is distinguishable, and according to Balla's reasoning, is controlled by Buckhannon because "there never has been judicially ordered relief."

[¶35] Likewise, Nat'l Rifle Ass'n of Am. v. City of Chicago, Ill. , 646 F.3d 992 (7th Cir. 2011), does not support Mr. Guy's position. There, the court held the plaintiffs qualified as the prevailing party despite repeal of ordinances that rendered the plaintiffs' case moot. Id. at 993-94. However, the repeal was a direct result of a United States Supreme Court decision holding that the Second Amendment applies to states and municipalities and reversing dismissal of the plaintiffs' claims. Id. In contrast to Buckhannon , the plaintiffs "achieved a decision that alter[ed] 'the legal relationship of the parties' " because the central issue in the litigation had been conclusively established. Id. at 994. The court concluded that "[b]y the time defendants bowed to the inevitable, plaintiffs had in hand a judgment of the Supreme Court that gave them everything they needed. If a favorable decision of the Supreme Court does not count as 'the necessary judicial imprimatur ' on the plaintiffs' position ..., what would?" Id. (citing Buckhannon , 532 U.S. at 605, 121 S.Ct. at 1840 ). Here, Mr. Guy has not obtained any favorable court decision.

[¶36] Other cases Mr. Guy cites precede Buckhannon , which overturned "legions of federal-court decisions" relying on the catalyst theory. Leroy v. City of Houston , 831 F.2d 576, 579 (5th Cir. 1987) ; Love v. Mayor, City of Cheyenne , 620 F.2d 235 (10th Cir. 1980) ; MacLaird , 723 F. Supp. 617 ; Texas State Teachers Ass'n v. Garland Indep. Sch. Dist. , 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). See also Skinner v. Uphoff , 324 F. Supp. 2d 1278 (D. Wyo. 2004) (awarding § 1988 attorney's fees after the court granted summary judgment in the plaintiff's favor); Silverman v. Villegas , 894 N.E.2d 249, 256 (Ind. App. 2008) (holding plaintiffs were prevailing parties under section 1988 because the court entered summary judgment in their favor on their state law claim that arose out of the common nucleus of operative fact implicated by their constitutional claims).

[¶37] Because the district court dismissed Mr. Guy's complaint as moot, and we conclude that Mr. Lampert and Ms. Tennant-Caine were entitled to qualified immunity, Mr. Guy has not obtained the "judicial imprimatur " necessary to qualify as the "prevailing party." We affirm the district court's denial of his attorney's fees.

CONCLUSION

[¶38] For the reasons discussed above, we affirm both of the district court's orders. The voluntary cessation exception to the mootness doctrine has not been adopted in Wyoming, and Mr. Lampert and Ms. Tennant-Caine were entitled to qualified immunity. Finally, Mr. Guy was not a "prevailing party" under 42 U.S.C. § 1988. Affirmed.

      After the WDOC recognized Humanism as a religion, AHA chose not to appeal. As Mr. Guy recognizes in his brief in S-18-0263, the "Director's Executive Order ... granted the majority of the injunctive and declaratory relief sought by Guy only in Count II, and substantially all the relief sought by Plaintiff AHA." Thus, we refer only to Mr. Guy as the plaintiff and the appellant in this case.

      In his complaint, Mr. Guy alleges: "Humanism adheres to a broad world view that includes a non-theistic view on the question of deities; an affirmative naturalistic outlook; an acceptance of reason, rational analysis, logic, and empiricism as the primary means of attaining truth; an affirmative recognition of ethical duties; and a strong commitment to human rights."

      Mr. Guy also raised a third claim, in which he attempted to bring a "direct action" against the State of Wyoming and the WDOC "for violation of the Wyoming Constitution." However, he has abandoned that claim on appeal.

      We have referred to the mootness doctrine as an aspect of standing. See Williams , 2017 WY 85, ¶ 15, 398 P.3d at 527 ("This doctrine represents the time element of standing by requiring that the interests of the parties which were originally sufficient to confer standing persist throughout the duration of the suit.") (citations omitted).

      The closest exception we have to voluntary cessation is when the issue is capable of repetition yet evades review. See Operation Save America v. City of Jackson , 2012 WY 51, ¶ 23, 275 P.3d 438, 449 (Wyo. 2012). Under this exception, "two requirements must be met: First, the duration of the challenged action must be too short for completion of litigation prior to its cessation or expiration. Second, there must be a reasonable expectation that the same complaining party will be subjected to the same action again." Circuit Court of Eighth Judicial Dist. v. Lee Newspapers , 2014 WY 101, ¶ 15, 332 P.3d 523, 528 (Wyo. 2014) (citations and quotation marks omitted). Mr. Guy did not argue below and has not argued on appeal that this exception applied. See, e.g. , Meiners v. Meiners , 2019 WY 39, ¶ 25 n.4, 438 P.3d 1260, 1270 n.4 (Wyo. 2019).

      We have previously said that "[a] clearly established right is one recognized by either the highest state court in the state where the case arose, a United States Court of Appeals, or the United States Supreme Court." Park Cnty. v. Cooney , 845 P.2d 346, 352 (Wyo. 1992) (citing Robinson v. Bibb , 840 F.2d 349, 351 (6th Cir. 1988) ). However, in Cooney , we failed to recognize that the Robinson court was itself unsure what constituted "clearly established law." Robinson , 840 F.2d at 351 ("[W]e have had no specific Supreme Court guidance in deciding when an issue becomes clearly established."). We do not need to resolve this question for purposes of this case. Mr. Guy has not cited to any case from this Court or the Tenth Circuit that would place the "right" at issue "beyond debate." As discussed further below, we are satisfied that, no matter what authority we look to, Mr. Guy has failed to overcome qualified immunity on the "clearly established" prong.

      We take no position on whether the certificate of service violated either W.R.C.P. 5 or U.R.D.C. 302.

      Although the case was not decided under 42 U.S.C. § 1988(b), the Court applied precedent interpreting 42 U.S.C. § 1988(b) and observed that it approaches these "nearly identical" civil rights fee-shifting provisions consistently. Id. at 603 n.4, 121 S.Ct. at 1839 n.4.

      That is not to say that our interpretation of "prevailing party" in Wyo. Stat. Ann. § 1-14-126(b) (LexisNexis 2019) and Wyo. Stat. Ann. § 30-5-303(b) (LexisNexis 2019) is no longer sound. State courts are the final arbiters of the meaning of state law.


source: Caselaw Access Project

author: BY THE COURT:

license: Public Domain

text:
    Trever L. ROSS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-19-0058, S-19-0059
    Supreme Court of Wyoming.
    July 17, 2019
    ORDER AFFIRMING THE DISTRICT COURT'S "SENTENCE ON PROBATION REVOCATION AND ORDER OF PROBATION" AND ORDER AFFIRMING THE DISTRICT COURT'S "SENTENCE AND PROBATION ORDER"
    [¶ 1] This matter came before the Court upon its own motion following notification that Appellant has not filed a pro se brief within the time allotted by this Court. Pursuant to a plea agreement, Appellant resolved two district court cases. In S-19-0058, Appellant challenges the district court's February 1, 2019, "Sentence on Probation Revocation and Order of Probation." In that order, the district court revoked Appellant's probation, which stemmed from a conviction for felony property destruction. Wyo. Stat. Ann. § 6-3-201(b)(iii). Appellant admitted he violated his probation by committing the offense at issue in S-19-0059. The district court imposed the underlying 5 to 7-year sentence, then suspended it in favor of three years of supervised probation. In S-19-0059, Appellant challenges the district court's February 1, 2019, "Sentence and Probation Order." Pursuant to the plea agreement, Appellant entered an unconditional guilty plea to one count of sexual abuse of a minor in the third degree. Wyo. Stat. Ann. § 6-2-316(a)(iv). The district court imposed a 5 to 12-year sentence, which was suspended in favor of three years of supervised probation. The district court ordered the sentences and the two probationary terms to be served consecutively.
    [¶ 2] On May 17, 2019, Appellant's court-appointed appellate counsel filed, in these consolidated appeals, a "Motion to Withdraw as Counsel," pursuant to Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). The next day, this Court entered an "Order Granting Motion for Extension of Time to File Pro Se Brief." This Court ordered that, on or before July 5, 2019, Appellant "may file with this Court a pro se brief specifying the issues he would like the Court to consider in this appeal." This Court also provided notice that, after the time for filing a pro se brief expired, this Court would "make its ruling on counsel's motion to withdraw and, if appropriate, make a final decision" on these appeals. This Court notes that Appellant did not file a pro se brief or other pleading in the time allotted.
    [¶ 3] Now, following a careful review of the records and the " Anders brief" submitted by appellate counsel, this Court finds that appellate counsel's motion to withdraw should be granted and the district court's "Sentence on Probation Revocation and Order of Probation" and its "Sentence and Probation Order" should be affirmed, subject to correction of both orders regarding the amount of credit for time served. It is, therefore,
    [¶ 4] ORDERED that the Wyoming Public Defender's Office, court-appointed counsel for Appellant, Trever L. Ross, is hereby permitted to withdraw as counsel of record for Appellant; and it is further
    [¶ 5] ORDERED that, with respect to docket S-19-0058, the district court's February 1, 2019, "Sentence on Probation Revocation and Order of Probation" be, and the same hereby is, affirmed, subject to this correction. Appellant should receive credit for 609 days served, rather than 599 (Sentencing/Disposition Transcript, Dec. 17, 2018, p. 10); and it is further
    [¶ 6] ORDERED that, with respect to docket S-19-0059, the district court's February 1, 2019, "Sentence and Probation Order," be, and the same hereby is, affirmed, subject to this correction. Appellant should be awarded credit for 306 days served, rather than 245. In its oral pronouncement, the district court awarded 306 days of credit. (Sentencing/Disposition Transcript, Dec. 17, 2018, p. 13) "A long-recognized rule of this Court is that where there is conflict between the sentence as articulated at sentencing, and the written sentence, the oral sentence prevails." Pinker v. State , 2008 WY 86, ¶ 7, 188 P.3d 571, 574 (Wyo. 2008) ; Medina v. State , 2013 WY 119, 309 P.3d 1247 (Wyo. 2013).
    [¶ 7] DATED this 17th day of July, 2019.
   BY THE COURT:

/s/ MICHAEL K. DAVIS

Chief Justice


author: JUSTICE TIMMER, opinion of the Court:

text:
    STATE of Arizona, Appellee, v. Stephen Jay MALONE Jr., Appellant.
    No. CR-18-0431-PR
    Supreme Court of Arizona.
    Filed July 17, 2019
    Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Michael T. O'Toole (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona
    James L. Fullin, Pima County Legal Defender, Jeffrey Kautenburger (argued), Assistant Legal Defender, Pima County Legal Defender's Office, Tucson, Attorneys for Stephen Jay Malone Jr.
    David J. Euchner, Tucson, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice
    JUSTICE TIMMER authored the opinion of the Court, in which VICE CHIEF JUSTICE BRUTINEL and JUSTICES BOLICK, GOULD, LOPEZ, and PELANDER (Retired) joined. CHIEF JUSTICE BALES dissented in part and concurred in the judgment.
   JUSTICE TIMMER, opinion of the Court:

¶1 Although a defendant cannot use evidence of a mental disease or defect to show he did not form a crime's requisite mental state (mens rea), see State v. Mott , 187 Ariz. 536, 541, 931 P.2d 1046, 1051 (1997) ; State v. Schantz , 98 Ariz. 200, 212-13, 403 P.2d 521, 529-30 (1965), he may use evidence of a character trait for impulsivity to cast doubt on the existence of premeditation, see State v. Christensen , 129 Ariz. 32, 35, 628 P.2d 580, 583 (1981), which forms part of the mens rea for first degree murder under A.R.S. § 13-1105(A)(1), see State v. Boyston , 231 Ariz. 539, 549 ¶ 50, 298 P.3d 887, 897 (2013). Here, we decide whether a defendant who introduces expert evidence of a character trait for impulsivity to challenge premeditation may also introduce evidence of brain damage to corroborate the existence of that trait. We hold he cannot.

BACKGROUND

¶2 Stephen Jay Malone Jr. and A.S. lived together in a tumultuous romantic relationship. On June 9, 2013, A.S. left Malone, moving from their home with their three children. Two evenings later, A.S., along with her sister, E.S., and two of the children, drove to the home to return a gift to Malone. On the way, A.S. spoke to Malone by phone and told him that despite his threats, she was leaving him. When A.S. arrived, Malone came up to the car, took the returned gift, and asked her to stay so his mother, who was in the house, could see the children. A.S. refused and drove away; Malone quickly followed in another car. After a five-to-six-minute chase, during which Malone blocked A.S.'s car twice, Malone jumped from his car and fired multiple gunshots into A.S.'s car, killing A.S. and injuring E.S.

¶3 The State indicted Malone on several charges, including premeditated first degree murder, see § 13-1105(A)(1), the only charge at issue here. Before trial, the State moved to preclude expert testimony from psychologist James Sullivan, Ph.D, that Malone's performance on neuropsychological assessment tests was "consistent with significant and permanent diffuse brain damage," meaning Malone was "more likely to have a character trait for impulsivity." (Dr. Sullivan did not obtain an MRI scan or like evidence to bolster his assessment that Malone had brain damage.) While acknowledging that Christensen permitted Dr. Sullivan to testify that Malone had a character trait for impulsivity, the State argued that Mott precluded evidence that brain damage made the existence of this trait more likely. Over defense objection, the trial court granted the motion and precluded Dr. Sullivan from offering an opinion at trial regarding brain damage.

¶4 At trial, Malone rebutted the State's allegation that he premeditated A.S.'s murder by introducing evidence suggesting he had acted impulsively. To that end, Dr. Sullivan testified that, based on his observations and psychological tests, Malone had a character trait for impulsivity. Dr. Sullivan explained that people with this character trait are compromised in their ability to think through the consequences of their actions before acting, although they are capable of doing so. The State did not contest that Malone had a character trait for impulsivity but nevertheless maintained he premeditated A.S.'s murder. The jury agreed and found Malone guilty as charged.

¶5 In a split decision, the court of appeals concluded the trial court erred by precluding Dr. Sullivan's testimony concerning brain damage. State v. Malone , 245 Ariz. 103, 107 ¶ 16, 425 P.3d 592, 596 (App. 2018). The court nevertheless found the error harmless and therefore affirmed. Id . at 108-09 ¶ 22, 425 P.3d at 597-98.

¶6 We granted Malone's petition for review (challenging harmless error) and the State's cross-petition for review (challenging error) because they involve a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5 of the Arizona Constitution.

DISCUSSION

I.

¶7 We review the trial court's preclusion of Dr. Sullivan's brain-damage testimony for an abuse of discretion. See State v. Leteve , 237 Ariz. 516, 524 ¶ 18, 354 P.3d 393, 401 (2015). "An error of law committed in reaching a discretionary conclusion may, however, constitute an abuse of discretion." State v. Wall , 212 Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006).

II.

¶8 Before addressing the admissibility of Dr. Sullivan's brain-damage testimony, we set forth general legal principles underlying the issue. First, apart from insanity, Arizona does not permit a defendant to introduce evidence of a mental disease or defect as either an affirmative defense or to negate the mens rea element of a crime. See Mott , 187 Ariz. at 540-41, 931 P.2d at 1050-51 ; Schantz , 98 Ariz. at 212, 403 P.2d at 529 ; see also A.R.S. § 13-502(A) ("A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong."). Thus, for example, in Mott this Court held that the trial court properly excluded evidence that the defendant suffered from battered-woman syndrome because it was offered to negate the mens rea element for child abuse (knowledge or intent). 187 Ariz. at 539, 544-45, 931 P.2d at 1054-54. And in Schantz we held that the trial court properly refused a jury instruction that would have permitted the jury to consider expert evidence that the defendant killed his wife "without his deliberate volitional conscious awareness" to contest the mens rea element for second degree murder (malice aforethought). 98 Ariz. at 204-06, 213, 403 P.2d at 523-24, 529.

¶9 Using mental disease or defect evidence to refute the mens rea element of a crime is commonly referred to as a "diminished capacity" or "diminished responsibility" defense. Mott , 187 Ariz. at 540, 931 P.2d at 1050 ; see Leteve , 237 Ariz. at 524 ¶ 20, 354 P.3d at 401. Such evidence does not provide a complete defense to a crime or excuse it but "establish[es], by negating the requisite intent for a higher degree of the offense, that in fact a lesser degree of the offense was committed." McCarthy v. State , 372 A.2d 180, 182 (Del. 1977) (quoting C.T. Drechsler, Annotation, Mental or Emotional Condition as Diminishing Responsibility for Crime , 22 A.L.R. 3d 1228, 1238 (1968) ). As mentioned, Arizona does not permit this defense. See Mott , 187 Ariz. at 540-41, 931 P.2d at 1050-51 ; Schantz , 98 Ariz. at 212, 403 P.2d at 529.

¶10 Second, evidence of a defendant's behavioral tendencies is not diminished capacity evidence and may be admitted to challenge the mens rea of premeditation for a first degree murder charge. See Christensen , 129 Ariz. at 35-36, 628 P.2d at 583-84. The defendant in Christensen was charged with premeditated first degree murder and sought to elicit a psychiatrist's testimony that, based on interviews and diagnostic testing results, the defendant "had difficulty dealing with stress and in stressful situations his actions were more reflexive than reflective." Id. at 34, 628 P.2d at 582. The trial court precluded the testimony as diminished capacity evidence. Id. This Court reversed, reasoning that the testimony evinced a character trait that "tend[ed] to establish that [the defendant] acted impulsively" and would have assisted jurors in determining whether the defendant acted with premeditation. Id . at 35, 628 P.2d at 583 ; see also Ariz. R. Evid. 404(a)(1) (authorizing admission of character trait evidence offered by an accused); Ariz. R. Evid. 405(a) (stating that character trait evidence can be offered as an opinion). The Court cautioned, however, that an expert witness could not opine as to whether a defendant was acting reflectively or reflexively at the time of the murder. Christensen , 129 Ariz. at 35-36, 628 P.2d at 583-84.

¶11 The United States Supreme Court in Clark v. Arizona , 548 U.S. 735, 757, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006), coined the term "observation evidence" to describe the type of character trait evidence permitted in Christensen. See also State v. Richter , 245 Ariz. 1, 8 ¶ 33, 424 P.3d 402, 409 (2018) ; Leteve , 237 Ariz. at 524 ¶ 21, 354 P.3d at 401 ¶ 21. "Observation evidence" is a slight misnomer, however, as the psychiatrist's opinion in Christensen , like Dr. Sullivan's proffered brain-damage testimony here, depended on results from diagnostic tests administered to the defendant as well as the psychiatrist's personal observations of him. See Christensen , 129 Ariz. at 34, 628 P.2d at 582. A more accurate term for the evidence deemed admissible in Christensen is "behavioral-tendency evidence," which is admissible to show a character trait. See Mott , 187 Ariz. at 544, 931 P.2d at 1054 (describing Christensen as involving "evidence about [the defendant's] behavioral tendencies"); see also Ariz. R. Evid. 404(a)(1) (permitting evidence of an accused's pertinent character trait).

III.

A.

¶12 Turning to this case, the dispute is whether Dr. Sullivan's proffered brain-damage testimony was inadmissible diminished capacity evidence under Schantz and Mott , as the trial court ruled, or admissible behavioral-tendency evidence under Christensen , as the court of appeals concluded. We quickly reject Malone's assertion that Mott could not apply here because it only considered psychological conditions, not brain damage, as mental diseases or defects underlying prohibited diminished capacity defenses. Nothing in Mott draws this fine distinction. Significantly, in overruling State v. Gonzales , 140 Ariz. 349, 681 P.2d 1368 (1984), which had approved use of expert testimony that a defendant's "low intelligence and probable organic brain damage affected his ability to reason" and made him unable to form the mens rea for rape, Mott necessarily considered brain damage as a mental defect by characterizing the expert's testimony in Gonzales as diminished capacity evidence. Mott , 187 Ariz. at 544, 931 P.2d at 1054. Dr. Sullivan's precluded brain-damage testimony constitutes the type of mental-defect evidence addressed by Mott .

¶13 Malone next argues that mental disease or defect evidence is only inadmissible under Mott if that disease or defect rendered the defendant entirely incapable of forming the requisite mens rea. Thus, because Dr. Sullivan's proffered brain-damage testimony purportedly would have shown only that Malone was impulsive and therefore less likely to premeditate but not incapable of doing so, Mott is inapplicable. The State counters that Mott precluded all mental disease or defect evidence unless used to show legal insanity under § 13-502, meaning the brain-damage evidence here was properly precluded.

¶14 We do not view Mott as precluding only mental disease or defect evidence that renders a defendant incapable of forming mens rea. Malone relies on language in Mott that, in isolation, supports his interpretation. See Mott , 187 Ariz. at 544, 931 P.2d 1046 (distinguishing Christensen by noting that the evidence there "was not that [Christensen] was incapable , by reason of a mental defect, of premeditating or deliberating but that, because he had a tendency to act impulsively, he did not premeditate the homicide. Because he was not offering evidence of his diminished capacity, but only of a character trait relating to his lack of premeditation, the defendant was not precluded from presenting the expert testimony."). But the disputed evidence in Mott was expert testimony that the "defendant was not capable of forming the requisite mental state of knowledge or intent," so it is not surprising the Court focused on incapability when distinguishing Christensen . See id. at 540, 931 P.2d at 1050.

¶15 Elsewhere in Mott , the Court indicated that prohibited mental disease or defect evidence included anything affecting a defendant's actions, excepting evidence of legal insanity. See id. at 540, 544, 931 P.2d at 1050, 1054 (describing prohibited diminished capacity evidence as "negat[ing] the mens rea" and concluding that evidence "affect[ing] the defendant's capacity" to decide whether to get medical help for her child is inadmissible as diminished capacity evidence (emphasis removed)). And significantly, Mott overruled Gonzales , which had concluded that evidence of impaired cognitive functioning that affected the defendant's judgment was relevant to whether he acted with the requisite mens rea and therefore admissible. See Mott , 187 Ariz. at 544, 931 P.2d at 1054 ; Gonzales , 140 Ariz. at 350, 352-53, 681 P.2d at 1369, 1371-72.

¶16 This Court's pre- Mott decisions are in accord with our view. See, e.g. , State v. Ramos , 133 Ariz. 4, 6, 648 P.2d 119, 121 (1982) ("Psychiatric testimony to negate specific intent has consistently been excluded."); State v. Briggs , 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975) ("Arizona does not permit psychiatric evidence of a mental disease or defect negativing a state of mind."); State v. Malumphy , 105 Ariz. 200, 202, 461 P.2d 677, 679 (1969) (concluding that the trial court properly "refus[ed] to instruct the jury that it could consider evidence of defendant's mental condition in determining whether defendant, in fact, entertained premeditation and deliberation" as that instruction "embodies the precept commonly referred to as the doctrine of 'diminished responsibility,' " which Arizona rejects); Schantz , 98 Ariz. at 207-08, 403 P.2d at 525-26 (describing diminished responsibility evidence as permitting a jury to "consider defects in the volitional processes to determine the lack of deliberation and premeditation" or "the lack of malice aforethought").

¶17 Mott 's focus on the adoption of our criminal code further illuminates the Court's view that prohibited diminished capacity evidence includes a mental disease or defect that reduces the likelihood that a defendant formed the requisite mens rea. The Court noted that the legislature "declined to adopt the defense of diminished capacity" set forth in the 1962 version of the Model Penal Code ("MPC") § 4.02(1) : "Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the offense." 187 Ariz. at 540, 931 P.2d at 1050 ; see also Schantz , 98 Ariz. at 212-13, 403 P.2d at 529-30 (declining to adopt then-draft MPC § 4.02(1) "piecemeal" and deferring to the legislature whether to adopt or reject it as part of article 4 of the draft MPC). According to the Court, "[t]his section was written in recognition of the existence of degrees of mental disease or defect that fall short of that required for invoking the defense of irresponsibility [legal insanity], but that may be put in evidence as tending to show that the defendant lacked the specific mens rea required for the commission of the offense charged." Mott , 187 Ariz. at 540, 931 P.2d at 1050 (internal quotation marks omitted) (quoting MPC and Commentaries § 4.02(1) cmt. 2 (1985)). By omitting § 4.02(1) from our code, the Court reasoned, the legislature rejected "use of psychological testimony to challenge the mens rea element of a crime." Id. In other words, mental disease or defect evidence falling short of demonstrating legal insanity cannot be admitted to challenge the mens rea element of a charged offense. See Clark , 548 U.S. at 762, 126 S.Ct. 2709 ("[W]e understand that Mott is meant to confine to the insanity defense any consideration of characteristic behavior associated with mental disease."); Leteve , 237 Ariz. at 524 ¶ 20, 354 P.3d at 401 (reaffirming that diminished capacity evidence cannot be used to negate mens rea and describing such evidence as a "mental disorder short of insanity" (citing Mott , 187 Ariz. at 541, 931 P.2d at 1050 )); State v. Jacobson , 244 Ariz. 187, 193 ¶ 21, 418 P.3d 960, 966 (App. 2017) (stating expert evidence that hormonal changes "could affect planning, thinking, mental state, judgment, insight, perception and memory" was diminished capacity evidence prohibited by Mott ).

¶18 The court of appeals acknowledged that Dr. Sullivan's proffered brain-damage testimony was diminished capacity evidence. See Malone , 245 Ariz. at 106 ¶¶ 7, 9, 425 P.3d at 595, 597. But the court viewed Mott 's differentiation of Christensen as authorizing admission of mental disease or defect evidence for the purpose of showing a behavioral tendency that negates mens rea. Id. at 106-07 ¶¶ 10-12, 425 P.3d at 595-96. Because Dr. Sullivan's test results "were offered to demonstrate a brain condition that rendered it less likely" that Malone premeditated the murder, the evidence was deemed admissible "to corroborate the defendant's claims that he had a character trait of impulsivity." Id. ¶ 11. The court noted that the trial court could have facilitated proper use of the evidence with a limiting instruction or other measures. See id. at 107 ¶ 15, 425 P.3d at 596.

¶19 We reject the court of appeals' purpose-oriented standard for admitting mental disease or defect evidence to negate mens rea. As previously discussed, see supra ¶ 17, Arizona has not adopted MPC § 4.02(1), which would have permitted Dr. Sullivan's brain-damage testimony as relevant to the existence of mens rea. Consequently, mental disease or defect evidence, whether introduced to show a defendant's inability to form mens rea or a likelihood he failed to do so, cannot be used to negate mens rea.

¶20 We are not persuaded to reach a different result because the proffered brain-damage testimony corroborates the existence of a behavioral tendency. We agree with the court of appeals' dissent that, regardless of the corroborating character of this evidence, it was inescapably offered to refute premeditation and is therefore inadmissible under Schantz and Mott . Malone , 245 Ariz. at 111 ¶ 38, 425 P.3d at 600 (Brearcliffe, J., concurring in part and dissenting in part). To conclude otherwise would circumvent Arizona's longstanding jurisprudence, including those cases, by permitting defendants to introduce evidence of a behavioral tendency and then "corroborating" its existence by providing mental disease or defect evidence to explain the cause for that behavior. For example, under this standard, the expert in Mott could have first testified that the defendant had a character trait of not sensing danger (part of the excluded evidence) and then corroborated it with evidence of battered woman syndrome. See Mott , 187 Ariz. at 539-40, 931 P.2d at 1049-50. Although behavioral-tendency evidence is permissible to negate mens rea, linking that behavior to a mental disease or defect, whether directly or under the guise of corroboration, is impermissible. Cf. Richter , 245 Ariz. at 9 ¶ 36, 424 P.3d at 500 (stating that an expert's opinion cannot be used "to serve as a mere conduit for otherwise inadmissible testimony"). (The prosecution here did not contest that Malone has a character trait for impulsivity. Thus, the parties have not addressed whether the defense can introduce mental disease or defect evidence to corroborate behavioral-tendency evidence when the prosecution challenges the latter. We leave that issue for a future case.)

¶21 In sum, mental disease or defect evidence cannot be admitted to show that a defendant was less likely to have formed the mens rea element of a crime even if that evidence corroborates behavioral-tendency evidence. Here, the trial court correctly precluded Dr. Sullivan from testifying that Malone suffered from brain damage even if that impairment made it more likely that he had a character trait for impulsivity.

B.

¶22 Although neither the parties nor the court of appeals challenged the oft-cited statements in Schantz and Mott that evidence of a mental disease or defect cannot be admitted to negate mens rea, our dissenting colleague does. He asserts that Schantz 's rejection of then-draft MPC § 4.02(1), which makes mental disease or defect evidence admissible if relevant to whether a defendant acted with the requisite mens rea, was dicta that Mott mistakenly repeated. See infra ¶¶ 32, 36. We disagree. The defendant in Schantz raised the issue to this Court by arguing that then-draft MPC § 4.02(1) supported the propriety of his requested jury instruction, and this Court thoroughly discussed and resolved the issue by declining to adopt that provision. 98 Ariz. at 208-13, 403 P.2d at 526-29 ; see also Town of Chino Valley v. City of Prescott , 131 Ariz. 78, 81, 638 P.2d 1324, 1327 (1981) (defining dictum as "a court's statement on a question not necessarily involved in the case"). And even if Schantz 's rejection of then-draft MPC § 4.02(1) was dicta, this Court has followed it in other cases, making it precedential. See, e.g. , Mott , 187 Ariz. at 541, 931 P.2d at 1051 ("[T]his court considered and rejected the defense of diminished capacity in State v. Schantz ." (Citation omitted.)); Malumphy , 105 Ariz. at 202, 461 P.2d at 679 ("We rejected the doctrine [of diminished responsibility] in State v. Schantz after an extensive discussion of the subject." (Citation omitted.)).

¶23 The dissent also argues that Schantz and Mott wrongly conflated the issues of whether Arizona recognizes a diminished responsibility defense (excusing criminal acts) with whether mental disease or defect evidence is admissible to challenge the prosecution's proof of mens rea. See infra ¶¶ 34, 38. We agree that the substantive viability of a diminished responsibility defense is different from the evidentiary admissibility of diminished responsibility evidence to refute mens rea. But for our purposes, this distinction is meaningless. As previously explained, this Court in Schantz , Mott , and other cases concluded that mental disease or defect evidence cannot be used to refute mens rea. See supra ¶¶ 15-17.

¶24 Finally, the dissent asserts that Mott incorrectly reasoned that the legislature's refusal to adopt MPC § 4.02(1) evidences its rejection of that provision. See infra ¶ 39 ("The legislature fails to do things for many reasons."). The dissent then implies that any such rejection would violate separation of powers as this Court is empowered by the Arizona Constitution to develop rules of evidence. Id. This implication is incorrect.

¶25 First, legislative history reflects that the legislature considered and rejected the evidentiary rule set forth in MPC § 4.02(1). In 1983, the legislature reformed the insanity defense in the wake of two high-profile acquittals in murder cases. See Renée Melançon, Note, Arizona's Insane Response to Insanity , 40 Ariz. L. Rev. 287, 296-97 (1998). As part of that effort, the Senate Judiciary Interim Subcommittee on the Insanity Defense recommended changes. Id . at 296. The subcommittee identified two mutually exclusive approaches to improving the insanity defense, including the "mens rea approach," which reflected MPC § 4.02(1) :

This approach provides that mental disease or defect does not constitute a separate defense to a criminal charge, but provides for the introduction of expert evidence on the defendant's ability or inability to form the culpable mental state required to be convicted of the crime. Thus, the focus is on the question of whether or not the defendant acted with the requisite culpable mental state....

See Final Report of the Senate Judiciary Interim Subcommittee on the Insanity Defense , 13, 17 (1982) (hereinafter "Report"). The subcommittee remarked that this approach had been adopted in Idaho and Montana and, as noted in the legislative history for the Insanity Defense Reform Act of 1984, Pub. L. 98-473, 98 Stat. 2057 (1984) (codified as amended at 18 U.S.C. § 17 ), at the federal level. Report at 17. The legislature quite clearly, albeit implicitly, rejected the mens rea approach by adopting the alternative approach currently set forth in § 13-502(A).

¶26 Second, although MPC § 4.02(1) is an evidentiary rule within this Court's authority to enact, the dissent overlooks that we have declined to do so in the fifty-four years since Schantz . There, the Court expressed "hesitan[ce]" about adopting then-draft MPC § 4.02(1) without the legislature first adopting the entirety of MPC article 4 which, among other things, contained involuntary commitment provisions:

If we accept defendant's proposal and decide that psychiatric evidence of a mental disease or defect is relevant to prove that a defendant did not have a state of mind which is an element of the offense, the jury would be put to the compulsion of releasing upon society many dangerous criminals who obviously should be placed under confinement.

98 Ariz. at 212-13, 403 P.2d at 529-30. The Mott Court similarly declined to adopt MPC § 4.02(1) after considering legislative policy. 187 Ariz. at 541, 931 P.2d at 1051 ("Because the legislature has not provided for a diminished capacity defense, we have since consistently refused to allow psychiatric testimony to negate specific intent."); see also State v. Laffoon , 125 Ariz. 484, 486, 610 P.2d 1045, 1047 (1980) ("Since the legislature has not seen fit to provide for a defense of diminished responsibility, we have consistently declined to allow psychiatric testimony to negate specific intent.").

¶27 Although this Court is constitutionally empowered to promulgate evidentiary rules, we can elect to defer to legislative policy. See Readenour v. Marion Power Shovel, a Div. of Dresser Indus., Inc. , 149 Ariz. 442, 446, 719 P.2d 1058, 1060 (1986) ("Under our constitutional rule-making power we cannot let the legislature define what is relevant; however, when it is appropriate we may defer to legislative decisions regarding the use or exclusion of relevant evidence to promote substantive goals of public policy such as accident prevention."). For decades, this Court has deferred to perceived legislative policy to not permit the admission of mental disease or defect evidence to refute mens rea. Unlike the dissent, we decline to reexamine those cases here when the parties have failed to brief or argue the issue, and any change would not result in reversible error. See, e.g. , State ex rel. Brnovich v. City of Tucson , 242 Ariz. 588, 599 ¶ 45, 399 P.3d 663, 674 (2017) ("We generally do not reach out to decide important constitutional issues or to upset established precedent when no party has raised or argued such issues.").

CONCLUSION

¶28 We vacate the court of appeals' opinion and affirm Malone's convictions and sentences.

BALES, C.J., dissenting in part and concurring in the judgment.

¶29 I agree with the court of appeals that, based on our decision in State v. Christensen , 129 Ariz. 32, 628 P.2d 580 (1981), and Arizona Rule of Evidence 404, a defendant may offer evidence of brain damage to support a claim that he has a character trait for impulsivity. Thus, I respectfully dissent from the majority's holding that such evidence is categorically barred by our decisions in State v. Mott , 187 Ariz. 536, 931 P.2d 1046 (1997), and State v. Schantz , 98 Ariz. 200, 403 P.2d 521 (1965). Because I also agree with the court of appeals that any error in precluding such evidence here was harmless, I concur in the judgment affirming Malone's convictions and sentences.

¶30 Our decisions regarding the admissibility of impulsivity evidence are, as the court of appeals charitably noted, "nuanced." State v. Malone , 245 Ariz. 103, 107 ¶ 12, 425 P.3d 592, 596 (App. 2018). Our caselaw in this area is opaque, largely because Mott and Schantz were poorly reasoned and confusingly worded. We should take this opportunity to clarify the scope of Mott and Schantz instead of using their rickety foundation to erect a barrier to relevant evidence.

¶31 Setting aside Mott and Schantz , the evidentiary issue in this case would be straightforward. Rule 404(a) allows a defendant to offer evidence of a pertinent character trait, and since Christensen we have recognized that this rule allows a defendant to show that he possesses a trait of acting impulsively, and thus it was less likely that he acted with premeditation. See 129 Ariz. at 34-35, 628 P.2d at 584-85. Subject to Rules of Evidence 702 through 705, experts - including mental health experts - may present evidence to support a defendant's claim that he possesses a character trait for impulsivity. See State v. Leteve , 237 Ariz. 516, 524 ¶ 24, 354 P.3d 393, 401 (2015). Evidence that a defendant has brain damage of a type that makes it more likely he acted impulsively is obviously relevant to whether he has the character trait, and would be admissible under Rules 401 (defining "relevant" evidence) and 402 (noting general rule of admissibility), unless it is precluded by other applicable law or its probative value is substantially outweighed by the danger of confusing the issues, misleading the jury, or other concerns noted in Rule 403.

¶32 The issue thus becomes whether Schantz or Mott bars the admission of proof of brain damage to support a defendant's claim to have a character trait for impulsivity. Neither case decided this issue and we should not extend their dicta to preclude such evidence.

¶33 In Schantz , the defendant argued that the jury should have been instructed to acquit on a charge of second degree murder unless it was "satisfied beyond a reasonable doubt that the accused ... was mentally capable of entertaining, and did entertain," an intent to kill. 98 Ariz. at 205 n.1, 403 P.2d at 524 n.1. Because the crime of second degree murder did not necessarily require proof of an intent to kill, id. at 211-12, 403 P.2d at 528-29, the defendant instead urged the Court to require this instruction based on the "diminished capacity defense" and then-draft § 4.02(1) of the Model Penal Code (MPC), which allowed the admission of evidence of mental disease or defect when relevant to prove whether the defendant had "a state of mind which is an element of the offense," id. at 208, 403 P.2d at 526. The requested instruction would have directed an acquittal if the jury was convinced the defendant lacked the mental capacity to form an intent to kill. Id. at 205 n.1, 403 P.2d at 524 n.1.

¶34 The defendant's argument conflated two separate issues. The first - and the only issue presented in Schantz - was whether Arizona recognizes a substantive defense of diminished capacity. One version of that defense, as Schantz recognized, was reflected in draft MPC § 4.01(1), as it relieves a defendant of criminal responsibility not only if he is insane under the M'Naghten test, but also if he "lacks substantial capacity ... to conform his conduct to the requirements of the law" due to a mental disease or defect. Whether to recognize such a defense, however, is distinct from the second issue - the admissibility of evidence of mental disease or defect to prove whether the defendant acted with the mental state required for the offense, an issue addressed in MPC § 4.02(1). See United States v. Pohlot , 827 F.2d 889, 897 (3d Cir. 1987). Unfortunately, this Court echoed the defendant's confusion of these issues in its opinion in Schantz and would do so again in Mott .

¶35 Schantz recognized that the "diminished capacity" defense as reflected in the MPC focuses on whether "an accused lacks the capacity to conform his conduct to the requirements of law," 98 Ariz. at 208, 403 P.2d at 526, and expressly held that we "do not accept § 4.01 of the [MPC ] as the test for criminal responsibility in this state," 98 Ariz. at 210-11, 403 P.2d at 527-28. The Court noted that the defendant's proposed instruction could place the jury in "an almost unresolvable dilemma," as it would instruct them to acquit if they found the defendant incapable of forming an intent to kill, while the court would otherwise instruct them that they need not find such an intent to convict. Id. at 212, 403 P.2d at 529.

¶36 In dicta, the Court also rejected the defendant's reliance on MPC § 4.01(2), observing that article 4 of the MPC is a "comprehensive scheme" and that the Court lacked constitutional authority to adopt it as Arizona law. Id. at 212-13, 403 P.2d at 529-30 ; cf. id. at 216, 403 P.2d at 531 (McFarland and Udall, JJ., specially concurring) (noting discussion of MPC was unnecessary to ruling). The Court concluded by noting that "[i]f we accept defendant's proposal and decide that psychiatric evidence of a mental disease or defect is relevant to prove that a defendant did not have a state of mind which is an element of the offense, the jury would be put to the compulsion of releasing upon society many dangerous criminals who obviously should be placed under confinement." Id. at 213, 403 P.2d at 530. The "proposal" referenced in these remarks was the requested instruction that "permit[ted] the jury to find the defendant not guilty of second degree murder if he was suffering from a mental impairment, defect, disorder, or deficiency so as to be incapable of entertaining malice aforethought, the intent to kill." Id. at 207, 403 P.2d at 525.

¶37 Schantz was correct as to the issue it decided - Arizona does not recognize a defense of "diminished responsibility" that relieves a defendant of criminal responsibility if a mental disease or defect renders him incapable of forming a mental state. Similarly, the Court was correct in suggesting that evidence of a mental disease or defect is not admissible to show a defendant lacks the capacity to form a requisite mental state, as allowing such evidence would be tantamount to allowing a diminished capacity defense. Indeed, the rejected instruction in Schantz would have told the jury it could consider such evidence "to negate the accused's capacity to entertain the required malice aforethought, specific intent or knowledge." Id. at 205 n.1, 403 P.2d at 524 n.1 (emphasis added). Only in this respect did Schantz suggest that evidence of mental disease or defect is inadmissible to "negate" a required mental state.

¶38 Mott followed Schantz both in rejecting a defense of diminished capacity and in confusing that issue with the admissibility of evidence to show whether a defendant acted with a requisite mental state. In Mott , the Court upheld the exclusion of expert testimony regarding "battered woman syndrome" offered to establish that the "defendant was not capable of forming the requisite mental state of knowledge or intent." 187 Ariz. at 539-40, 931 P.2d at 1049-50 ; see also id. at 538, 931 P.2d at 1048 (noting proffered testimony was that "as a battered woman, she was unable to form the requisite mental state"); id. at 540 n.4, 931 P.2d at 1050 n.4 (noting that defendant had offered evidence "to demonstrate that she did not have the capacity to form the requisite mental state"); id. at 543, 931 P.2d at 1053 (noting evidence was offered to show "defendant was not capable of forming the specific intent required"). Mott , like Schantz , characterized such evidence as being offered "to negate the mens rea element of the crime." Id. at 540, 931 P.2d at 1050. Significantly, when Mott overruled State v. Gonzales , 140 Ariz. 349, 681 P.2d 1368 (1984), "to the extent it allowed evidence of a defendant's diminished mental capacity as a defense to a charged crime," the Court emphasized that Gonzales involved expert testimony that a defendant, as result of brain damage, "did not and could not have " the specific intent required for the crime. 187 Ariz. at 544, 931 P.2d at 1054 (quoting Gonzales , 140 Ariz. at 350-51, 681 P.2d at 1369-70 ). Rejecting evidence of a mental disease or defect when offered to show a defendant lacks the capacity to form a requisite mental state is, as noted above, logically consistent with rejecting a diminished capacity defense. If incapacity is not a substantive defense, then evidence offered to prove incapacity is irrelevant and inadmissible for that purpose.

¶39 Mott , like Schantz , said more than was needed to resolve the issue before the Court, and some of its extraneous comments were unclear or simply wrong. Noting that Arizona's legislature had declined to adopt the defense of diminished capacity as reflected in the MPC, the Court then observed that this action implied a decision "not to adopt" MPC § 4.02(1), which in turn "evidences its rejection of the use of psychological testimony to challenge the mens rea element of a crime." 187 Ariz. at 540, 931 P.2d at 1050. This passing observation has multiple flaws. It once again confuses recognition of the diminished capacity defense with the issue of admissibility. See Pohlot , 827 F.2d at 897 (noting that "[p]roperly understood, [ MPC § 4.02 ] is therefore not a defense at all but merely a rule of evidence"). It also incorrectly suggests that rejecting the defense implies a general bar on admissibility, and while Mott (like Schantz ) correctly recognizes that it is the legislature's province to define crimes and recognize substantive defenses, these opinions overlook that the Arizona Constitution empowers this Court to develop rules of evidence. Ariz. Const. art. 6, § 5 (5); see also State ex rel. Collins v. Seidel , 142 Ariz. 587, 590, 691 P.2d 678, 679 (1984). The legislature fails to do things for many reasons, and its failure to adopt MPC § 4.02 does not imply that it intended prospectively to categorically bar certain types of evidence relevant to whether a defendant acted with the mental state the legislature has said is necessary for the commission of an offense.

¶40 In short, neither Schantz nor Mott addresses the admissibility of evidence of mental disease or defect to show that a defendant has a character trait for impulsivity as distinct from the use of such evidence to show that a defendant lacked the capacity to form a requisite mental state. Barring the latter does not require also barring the former. Although Mott contains some vague language about rejecting the use of psychological evidence to challenge or "negate" mens rea, 187 Ariz. at 540, 544, 931 P.2d at 1050, 1054, these statements were made in the context of precluding evidence that a defendant lacked the capacity to form a specific intent. If those statements were applied more broadly, they would suggest that the expert testimony allowed in Christensen and Leteve should have been barred.

¶41 The majority does not identify good reasons for extending Schantz and Mott to preclude evidence of brain damage when offered to support a claim that the defendant has an impulsive character. Though the Court now recognizes that we have previously conflated a defense of diminished capacity with the use of mental defect evidence more broadly, it declines to alter course. See supra ¶¶ 22, 26. We should not infer from the legislature's rejecting a defense of diminished capacity - or its not adopting an evidentiary rule - some implicit intent generally to preclude evidence relevant to whether a defendant acted with a requisite mental state.

¶42 If defendants can offer evidence that they have an impulsive character trait, there is no logical reason to categorically bar them from offering evidence of brain damage that is associated with such a trait. Excluding such evidence would be particularly unfair when the prosecution challenges the defendant's claim to have an impulsive character. Moreover, because our understanding of the relation between brain physiology and behavior (including "character traits") is incomplete and still evolving, instead of relying on Schantz and Mott to categorically bar brain damage evidence, I would trust our trial judges to decide its admissibility and jurors to assess its weight under our Rules of Evidence.

¶43 Our evidentiary rules expressly contemplate the admission of evidence that can be considered for some purposes but not others. Ariz. R. Evid. 105. Thus, concerns about jurors considering the evidence for purposes other than proof of a trait for impulsivity can be addressed through limiting instructions, and we generally presume that jurors can and will follow such instructions. State v. Ovante , 231 Ariz. 180, 186 ¶ 24, 291 P.3d 974, 980 (2013). If such evidence raises substantial concerns about confusing or misleading the jury, it may be excluded pursuant to Rule 403.

¶44 Although I do not support the majority's blanket bar on brain damage evidence to support a claimed character trait for impulsivity, it is not necessary here to decide whether the evidence of Malone's brain damage was properly excluded under Rule 403 or for other reasons. As noted by the court of appeals, any error in excluding this evidence was harmless, given the other admitted evidence showing that Malone had a character trait for impulsivity and the fact that the State did not challenge this evidence or the existence of the character trait. Accordingly, I concur in the Court's judgment.

      Idaho and Montana, unlike Arizona, currently follow the MPC § 4.02(1) approach. See Idaho Code § 18-207 (providing that "[m]ental condition shall not be a defense to any charge of criminal conduct" but "[n]othing herein is intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense, subject to the rules of evidence"); Mont. Code. Ann. § 46-14-102 ("Evidence that the defendant suffered from a mental disease or disorder or developmental disability is admissible to prove that the defendant did or did not have a state of mind that is an element of the offense.").