                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

               FRANCISCO MATOS IZQUERDO, Appellant.

                             No. 1 CA-CR 15-0777
                               FILED 10-27-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-424604-001
               The Honorable Roger E. Brodman, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                           STATE v. IZQUERDO
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge John C. Gemmill1 joined.


C A T T A N I, Judge:

¶1            Francisco Matos Izquerdo (“Matos”) appeals his convictions
and sentences for possession of narcotic drugs for sale, possession of
dangerous drugs for sale, and possession of drug paraphernalia. For
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In May 2013, police officers responded to a report of a man
with a gun, later identified as D.W. When the officers located D.W., he told
them that he wanted to “burn bridges” with his drug dealer, a man he knew
as “Cuba” and who was later identified as Matos. D.W. called Matos on his
cell phone, and, with the officers listening in, arranged to purchase heroin
and methamphetamine at Matos’s apartment.

¶3           At the apartment, officers saw Matos—who had a tattoo
reading “Cuba” visible across his stomach—walk out of the complex and
toward D.W. As the officers approached him and identified themselves,
Matos ran away, throwing bags containing what was later determined to
be methamphetamine and heroin over a wall. The officers caught Matos,
and he was arrested and charged with the drug offenses set forth above.

¶4            Before trial, Matos sought to preclude evidence of D.W.’s
statement to the officers that Matos had sold him drugs, arguing (as
pertinent here) that the statement was improper propensity evidence, and
thus inadmissible under Arizona Rule of Evidence 404(b). The court denied
the motion, reasoning that D.W.’s statement was necessary to provide
context for the initial phone call to Matos. The court sanitized the evidence,
however, by limiting it to a statement that D.W. “wanted to turn in his drug
dealer,” with no further elaboration or specific reference to past drug deals


1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


                                      2
                            STATE v. IZQUERDO
                            Decision of the Court

or Matos’s reputation for selling drugs. The State complied with this
restriction at trial, asking each officer only if D.W. stated “that he essentially
wanted to burn bridges with an individual that sold him drugs?”

¶5            The jury found Matos guilty as charged. Matos timely
appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) § 13-4033.2

                                DISCUSSION

¶6             Matos argues that the court erred by permitting evidence of
D.W.’s statement that Matos had sold him drugs. Matos contends that this
statement was impermissible under Rule 404(b) because the State failed to
prove the prior drug sale(s) had occurred and because the State offered the
evidence to show actions on the occasion of the charged offenses in
conformity with prior drug dealing. We review the superior court’s ruling
regarding other acts evidence for an abuse of discretion. See State v.
Villalobos, 225 Ariz. 74, 80, ¶ 18 (2010).

¶7            Under Rule 404(b), evidence of other acts is not admissible “to
prove the character of a person in order to show action in conformity
therewith,” but may be admissible if offered for a different purpose,
including “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” See also State v. Hargrave, 225
Ariz. 1, 8, ¶ 10 (2010). The State must show by clear and convincing
evidence that the defendant committed the other act; additionally, the act
must be offered for and relevant to a proper purpose, the probative value
of the other act must not be substantially outweighed by the danger of
unfair prejudice, and the court must give an appropriate limiting
instruction upon request. See State v. Anthony, 218 Ariz. 439, 444, ¶ 33
(2008).

¶8           Matos asserts that the State did not prove by clear and
convincing evidence that he had previously sold drugs to D.W. Because
Matos did not raise this objection before the superior court, we review only
for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567,
¶¶ 19–20 (2005).

¶9            Clear and convincing evidence is that which shows a high
probability that the contention is true, State v. Roque, 213 Ariz. 193, 215, ¶ 75
(2006), and this evidentiary burden may be satisfied by the testimony of a

2     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                        3
                             STATE v. IZQUERDO
                             Decision of the Court

single witness. See State v. Vega, 228 Ariz. 24, 29 n.4, ¶ 19 (App. 2011). Here,
after telling officers Matos was his drug dealer, D.W. called Matos, asked to
buy heroin and methamphetamine, and arranged to meet, and Matos
subsequently arrived with the requested drugs. Given these circumstances,
the State offered an adequate basis to support D.W.’s statement.

¶10             Matos next argues that the State offered the other act evidence
for an improper propensity purpose: to show that because Matos had sold
D.W. drugs in the past, he was guilty of selling drugs on this occasion. But
completing the story of the offense to avoid confusing the jury is a proper
purpose for other act evidence. See State v. Ferrero, 229 Ariz. 239, 244, ¶ 23
(2012); State v. Cook, 150 Ariz. 470, 472 (1986); State v. Ferguson, 120 Ariz. 345,
347 (1978). Here, the State specified that it was offering the evidence to
provide context for the investigation leading to D.W.’s phone call to Matos,
and the court carefully limited the scope of the admissible evidence to only
the statement providing background for why the call was made (D.W.’s
desire to turn in someone who had sold him drugs). Moreover, Matos
never suggested an alternative line of questioning that could serve the
proper purpose without mentioning D.W.’s prior experience with Matos.
Accordingly, because the evidence served a proper purpose, the superior
court did not err on this basis.

¶11             Matos also argues that the probative value of D.W.’s
statement that Matos had sold him drugs was outweighed by unfair
prejudice. But “[e]vidence is unfairly prejudicial only when it has an undue
tendency to suggest a decision on an improper basis such as emotion,
sympathy, or horror.” State v. Connor, 215 Ariz. 553, 564, ¶ 39 (App. 2007)
(citation omitted); see also Ariz. R. Evid. 403. The superior court has broad
discretion to assess the balance between the probative value and potential
prejudice of other act evidence. State v. Sparks, 147 Ariz. 51, 56 (1985); see
also State v. Salamanca, 233 Ariz. 292, 296, ¶ 17 (App. 2013).

¶12           Here, the court expressly weighed the probative value of the
evidence against the potential for unfair prejudice and carefully tailored the
admissible evidence to only the statement explaining how the investigation
progressed to a call by D.W. to Matos (the proper purpose), and limited
potential prejudice by prohibiting any further description of specific prior
drug deals or Matos’s reputation as a drug dealer.

¶13           Finally, in light of the fact that officers heard Matos arrange
to sell drugs and saw him throw bags containing drugs over a wall as he
attempted to flee, there is no indication that the brief mention of other act
evidence led to an improper basis for the jury’s decision. Accordingly, the


                                        4
                          STATE v. IZQUERDO
                          Decision of the Court

superior court did not abuse its discretion by allowing limited evidence of
D.W.’s statement to officers that Matos had previously sold him drugs.

                             CONCLUSION

¶14          The convictions and sentences are affirmed.




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




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