                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   DAVID LEE ALEXANDER, Appellant.

                             No. 1 CA-CR 15-0683
                               FILED 12-13-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-105034-001
               The Honorable Michael D. Gordon, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Stephen L. Crawford PLLC, Phoenix
By Stephen L. Crawford
Counsel for Appellant
                          STATE v. ALEXANDER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.


G O U L D, Judge:

¶1             David Lee Alexander (“Defendant”) appeals his convictions
and sentences for two counts of possession of dangerous drugs and
possession of narcotic drugs, one count of possession or use of marijuana,
and two counts of possession of drug paraphernalia. Defendant argues the
court erred in denying his motion to suppress, and he challenges the court’s
decision to allow the State to impeach him with an unsanitized prior felony
conviction. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            On May 30, 2012, police officers observed multiple people
enter and exit rooms 240 and 241 at a motel. After Officer Linker observed
a man walk out of room 241 and engage in what appeared to be a “hand-
to-hand” drug transaction, he proceeded to the motel’s office to inform
management of the suspicious activity. Based on the officer’s report, the
motel manager requested Officer Linker’s assistance in removing the
occupants from rooms 240 and 241. Officer Linker returned to watching
the rooms, and he observed Defendant in front of room 241 opening the
door. Officer Linker approached Defendant and asked whether he could
enter the room to speak with him. Defendant consented.

¶3            Officer Linker entered the room with Defendant and advised
him about the suspicious activity he observed outside the room. Defendant
denied having any illegal drugs, and he granted Officer Linker’s request to
search the room. Officer Linker immediately observed a marijuana pipe on
top of a nightstand. Defendant admitted the pipe belonged to him and that
he smokes marijuana.




1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (internal citation omitted).


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                          STATE v. ALEXANDER
                           Decision of the Court

¶4             With Defendant’s consent, Officer Linker continued to search
the room. Officer Linker discovered a one-inch piece of marijuana, which
Defendant admitted was his.             Officer Linker also found a
methamphetamine pipe, a plastic baggie containing methamphetamine, a
crack pipe along with several rocks of crack cocaine, and two baggies of
pills that subsequently were determined to be Oxycodone and Alprazolam.
Defendant admitted all these items belonged to him, and explained that he
sold drugs “to get by and to make money.”

¶5            Defendant was charged with two counts of possession of
dangerous drugs for sale, two counts of possession of narcotic drugs for
sale, two counts of possession of drug paraphernalia, and one count of
possession or use of marijuana. At trial, the jury found Defendant guilty on
both the marijuana and paraphernalia offenses. As for the remaining
charges, the jury found Defendant guilty of the lesser-included offenses of
possession of dangerous drugs and possession of narcotic drugs. The court
imposed concurrent presumptive prison terms, the longest of which is 10
years. Defendant timely appealed.

                               DISCUSSION

I.     Motion to Suppress

¶6            Defendant moved to suppress the evidence Officer Linker
obtained from the motel room, arguing Officer Linker’s warrantless and
nonconsensual entry into the room was unconstitutional. The court held
an evidentiary hearing and denied the motion, finding Defendant
consented to the search of the motel room. Defendant challenges the court’s
finding of consent.

¶7             In reviewing the denial of a motion to suppress, we review
only the evidence submitted at the suppression hearing, and we view those
facts in the manner most favorable to upholding the trial court’s ruling.
State v. Blackmore, 186 Ariz. 630, 631 (1996). The trial court determines the
credibility of witnesses. State v. Ossana, 199 Ariz. 459, 461, ¶ 7 (App. 2001).
We defer to the trial court’s determinations of the credibility of testifying
officers and the reasonableness of the inferences they drew. State v.
Gonzalez–Gutierrez, 187 Ariz. 116, 118 (1996). But we review the trial court’s
legal decisions de novo. Id. A trial court’s ruling on a motion to suppress
will not be reversed on appeal absent “clear and manifest error,” the
equivalent of an abuse of discretion. State v. Newell, 212 Ariz. 389, 396 n.6,
¶ 22 (2006).




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                          STATE v. ALEXANDER
                           Decision of the Court

¶8            The Fourth Amendment protects people from unreasonable
searches and seizures. Scott v. United States, 436 U.S. 128, 137 (1978).
Generally, a warrantless search is per se unreasonable under the Fourth
Amendment. State v. Branham, 191 Ariz. 94, 95 (App. 1997) (citing State v.
Castaneda, 150 Ariz. 382, 389 (1986)). One exception to the warrant
requirement is a consensual search. See Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973). The State has the burden of proving by a preponderance of
the evidence that a defendant’s consent was “freely and voluntarily given.”
State v. Valenzuela, 239 Ariz. 299, 302, ¶ 11 (2016) (quoting Schneckloth, 412
U.S. at 222).

¶9             Defendant does not argue his consent was involuntary;
rather, he contends he never gave consent to Officer Linker. As a result, the
State was required to show, by a preponderance of the evidence, that
Defendant consented to the search. See State v. Swanson, 172 Ariz. 579, 583
(App. 1992) (“The trial court’s factual determinations on the issue of giving
consent will not be overturned unless clearly erroneous.”).

¶10          The record supports the superior court’s ruling that
Defendant consented to the search of his room. Officer Linker testified that
when he approached room 241 and first made contact with Defendant,
Defendant “was standing basically halfway inside the door.” Officer
Linker further testified:

       When I got there at [Defendant’s] room, I basically asked him
       for his permission to enter the room so I could talk to him
       about some things that I had observed. He basically told me
       it was okay, to come inside the room. He gave me his consent.
       He did not tell me, no, in any way. He did not put his body in
       front of the door, and say he wished I would not come inside.
       He was actually, was very cooperative and allowed me inside
       the room.

       I don’t remember the exact words that he used, whether it be,
       yes, or come on in, but he allowed me inside the room. I didn’t
       have to push my way in. I didn’t have to use an authoritative
       tone or anything. I basically just asked him if he was on board
       so I could come inside and speak to him about what I had
       observed, and he told me it was okay.

¶11          Officer Linker testified that he entered the room and spoke
with Defendant about the suspicious activity he observed outside the room.
Officer Linker asked whether anything illegal was in the room, Defendant
answered there was not, and Officer Linker then asked whether he could

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                          STATE v. ALEXANDER
                           Decision of the Court

“take a quick look around just to make sure.” Defendant said “that would
be fine.” Each time Officer Linker found a suspicious drug-related item, he
would confront Defendant with the discovery and ask permission to
continue searching.       And each time, according to Officer Linker’s
testimony, Defendant either did not object or he responded affirmatively.

¶12           Officer Linker’s testimony shows that Defendant consented to
his entry and the search of the motel room. However, Defendant argues
Officer Linker’s testimony that “[Defendant] basically told me it was okay,
to come inside the room[]” (emphasis added) is insufficient to show consent
because this testimony did not constitute “clear and positive evidence in
unequivocal words or conduct” expressing consent. In support of this
argument, Defendant relies on State v. Canez, 202 Ariz. 133 (2002) and State
v. Kananen, 97 Ariz. 233 (1965).

¶13          Defendant’s reliance on Canez and Kananen is misplaced.
Both Kananen and Canez were abrogated by the adoption of Arizona Rule
of Criminal Procedure 16.2(b), which replaced the “clear and positive
evidence” standard set forth in Kananen with the current “preponderance
of evidence” standard. See Valenzuela, 239 Ariz. at 302-03 n.1, ¶ 11.

¶14            Defendant also claims that Officer Linker’s testimony was
insufficient because he prepared conflicting reports in this case. Defendant
claims that in Officer Linker’s original report, he stated that Defendant “did
not decline [Officer Linker’s request to enter the motel room.]” However,
in Officer Linker’s supplemental reported submitted several months later,
Officer Linker stated that “[Defendant said] okay” to the entry and search
of the room.

¶15          Defendant’s argument goes to the credibility and weight of
Officer Linker’s testimony. These are matters solely within the province of
the superior court; we do not reweigh the evidence or the credibility of
witnesses on appeal. See State v. Toney, 113 Ariz. 404, 408 (1976).

¶16            The superior court’s finding that Defendant consented to
Officer Linker’s search of the motel room is supported by the record. We
find no error.

II.    Prior Felony Conviction

¶17            Pursuant to Rule 609, the State sought to admit two historical
felony convictions for impeachment purposes should Defendant testify at
trial. The first felony was Defendant’s Arizona conviction for the sale or
transportation of narcotic drugs (“2006 Conviction”), and the second was a


                                      5
                         STATE v. ALEXANDER
                          Decision of the Court

Nevada conviction for possession of a controlled substance with intent to
sell (“2014 Conviction”).

¶18           The court denied the State’s request to admit the 2014
Conviction on the grounds it was unfairly prejudicial under Rule 403.
Regarding the 2006 Conviction, the court granted the State’s request to
impeach Defendant with a sanitized version of the conviction, e.g., the State
could not reference the fact the conviction was for sale or transportation of
drugs. In clarifying its ruling, the court stated:

      So, therefore, [the 2006 Conviction] will just be [a] felon[y]
      with no reference to crimes unless the defendant says he
      would never sell drugs in which case -- and I’m going to go
      make this clear -- in which case – I’m not saying defendant
      would do this, but if he does say, I would never sell drugs, the
      2014 comes in too because that’s exactly the same thing and
      so then all bets are off, because I can't allow him to present
      false testimony to the jury.

      So I just want to make it very clear, everything is redacted and
      the 2014 is not coming in, but if he opens the door, it’s coming
      in. Okay? I just want everyone to understand my ruling
      before we go down that road. Okay?

¶19            Defendant testified. During his redirect examination, defense
counsel asked, “Mr. Alexander, are you a drug dealer?” Defendant
answered, “No.” At a subsequent sidebar conference, the parties argued
about whether Defendant “opened the door” in light of the court’s ruling
regarding the admissibility of the 2014 Conviction. The court agreed with
the State that Defendant had opened the door. The court ultimately ruled,
however, that evidence of the 2014 Conviction was unduly prejudicial
under Rule 403, but allowed the State to impeach Defendant with the fact
the 2006 Conviction was for sale or transportation of narcotic drugs.

¶20           Defendant argues the court erred in determining he “opened
the door” to the unsanitized 2006 Conviction. Defendant contends his
testimony that he is not a drug dealer did not violate the court’s
admonishment. Thus, according to Defendant, he did not testify falsely,
and the court erred in permitting the State to impeach him with additional
information regarding the 2006 Conviction. We review for an abuse of
discretion. State v. Green, 200 Ariz. 496, 498, ¶ 7 (2001).

¶21            We find no abuse of discretion. Defendant did not specifically
testify that he “would never” sell drugs. However, he made the assertion


                                     6
                          STATE v. ALEXANDER
                           Decision of the Court

that he is not a drug dealer, when in fact he was convicted in 2006 for a
crime involving the sale and transportation of drugs. Additionally,
Defendant’s denial that he was a drug dealer directly contradicted Officer
Linker’s testimony that Defendant told him at the motel room he “sold
drugs[.]”

¶22            Defendant’s testimony opened the door to evidence
concerning his truthfulness about his prior drug sales/dealings. As a
result, the court acted within its discretion in allowing the State to impeach
Defendant with his 2006 Conviction, which was probative on this issue. See
Ariz. R. Evid. 609(a)(1)(B) (evidence of a defendant’s felony conviction must
be admitted to attack his or her character for truthfulness if the probative
value of the evidence outweighs its prejudicial effect); State v. Martinez, 127
Ariz. 444, 447 (1980) (stating “[t]he fact that the trial court previously ruled
the evidence was inadmissible as prejudicial, does not mean the prejudice
continues to outweigh its probative value throughout the trial,” and when
a defendant “opens the door by denying certain facts which the evidence,
previously excluded, would contradict, he may not rely on the previous
ruling that such evidence will remain excluded.”); State v. Cook, 172 Ariz.
122, 124‒25 (App. 1992) (upholding the admission of otherwise
inadmissible testimony when the defendant opened the door, making the
evidence “highly relevant and admissible,” and the testimony was “elicited
solely for the purpose of rebutting” the misimpression created by the
defendant).

¶23           Moreover, the court properly instructed the jury not to
consider Defendant’s prior convictions as substantive evidence of his guilt
of the charged crimes. Not only do we presume jurors follow their
instructions, Newell, 212 Ariz. at 403, ¶ 68, but the record reflects the jury
did indeed follow the foregoing instruction; the jury did not convict
Defendant of the charged “possession for sale” offenses, returning guilty
verdicts only for the lesser-included offenses of possession of illegal drugs.




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                 STATE v. ALEXANDER
                  Decision of the Court

                      CONCLUSION

¶24   Defendant’s convictions and sentences are affirmed.




                 AMY M. WOOD • Clerk of the Court
                 FILED: AA




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