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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      IAN SCOTT PARKER, Appellant.

                             No. 1 CA-CR 15-0510
                              FILED 7-21-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-458979-001
                 The Honorable Jo Lynn Gentry, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By John Champagne, Tennie B. Martin
Counsel for Appellant
                           STATE v. PARKER
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Maurice Portley joined.


D O W N I E, Judge:

¶1          Ian Scott Parker appeals his conviction and sentence for
possession or use of dangerous drugs. For the following reasons, we
affirm.

                FACTS AND PROCEDURAL HISTORY

¶2          Police officers searched Parker and his backpack after they
arrested him for shoplifting at a JC Penney store, discovering a bag of
methamphetamine in his pocket and a methamphetamine pipe in the
backpack.      Parker was indicted for possession or use of
methamphetamine, a dangerous drug, and possession of drug
paraphernalia.

¶3           A jury acquitted Parker of the drug paraphernalia charge but
found him guilty of possession or use of methamphetamine. Parker was
sentenced to eight years in prison. He timely appealed. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1), 13-4031, and -4033(A).

                             DISCUSSION

I.    Suppression Motion

¶4          Parker contends the trial court erroneously denied his
suppression motion, arguing the State did not establish the pipe’s lawful
seizure.1 We review a ruling on a suppression motion for an abuse of


1     Although Parker was acquitted of the drug paraphernalia charge,
we address the suppression issue because the State relied on the
paraphernalia to buttress the drug possession charge at trial, arguing:

      The pipe was in the pocket of the bag that Mr. Parker had.
      The methamphetamine was found in the pocket of the



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                            STATE v. PARKER
                           Decision of the Court
discretion, considering the facts presented at the suppression hearing in
the light most favorable to sustaining the ruling. State v. Wilson, 237 Ariz.
296, 298, ¶ 7 (2015). We give deference to the trial court’s factual findings,
but review de novo whether a Fourth Amendment violation occurred. See
State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118 (1996).

¶5           Parker’s motion sought to suppress “all evidence gathered
from his pockets.” It did not challenge the search of the backpack. At the
evidentiary hearing, both the prosecutor and defense counsel confined
their questioning of the testifying officer to the search of Parker’s person.

¶6             A defendant who files a motion to suppress has the burden
of producing “sufficient preliminary evidence” before the State is
required to proceed with its evidence. State v. Hyde, 186 Ariz. 252, 266
(1996); see also Ariz. R. Crim. P. 16.2(b) (“[T]he prosecutor’s burden of
proof shall arise only after the defendant has come forward with evidence
of specific circumstances which establish a prima facie case that the
evidence taken should be suppressed.”).           Issues concerning the
suppression of evidence that are not properly raised in the trial court are
waived on appeal. State v. Tison, 129 Ariz. 526, 535 (1981) (refusing to
consider grounds for suppression not raised at suppression hearing).

¶7             Because the suppression motion challenged only the search
of Parker’s person — a search not challenged on appeal — we affirm the
denial of the suppression motion.2

II.   Use of Restraints

¶8            Parker next contends the trial court failed to make specific
findings before allowing him to be restrained at trial and by limiting him
to use of a small pencil. He filed a pretrial notice objecting to any
restraints, “to include: stun belt and/or vest; leg brace; shackles; and
unusually sized writing utensils,” specifically “a markedly short pencil,

      sweatpants Mr. Parker was wearing . . . It’s the same thing as
      if -- one and two go together.
2      Waiver aside, the suppression hearing evidence established that no
search occurred — of either Parker or the backpack — until after Parker
had been arrested for shoplifting. A police officer may conduct a
warrantless search of an arrestee incident to arrest, United States v.
Robinson, 414 U.S. 218, 235 (1973), as well as areas or items within the
arrestee’s immediate control. Chimel v. California, 395 U.S. 752, 763 (1969).



                                      3
                             STATE v. PARKER
                            Decision of the Court
reserved for the miniature golf course[.]” The court overruled the
objection, reasoning that the sheriff’s office had developed restraint
policies over the years to ensure the safety of all trial participants.

¶9            A trial court abuses its discretion by allowing visible
restraints at trial without making a particularized inquiry into their
necessity. Deck v. Missouri, 544 U.S. 622, 629 (2005); State v. Gomez, 211
Ariz. 494, 502–03, ¶¶ 40–41 (2005). We agree with Parker that the trial
court failed to make an independent inquiry and issue findings regarding
the use of restraints at trial. Any error in this regard is harmless, though,
because nothing in the record suggests Parker was restrained in a manner
visible to the jury or that restraints impaired his ability to consult with
counsel or present his defense. See State v. Dixon, 226 Ariz. 545, 552,
¶¶ 29–30 (2011) (noting lack of evidence jurors saw brace or stun belt
defendant was required to wear at trial).

¶10           Requiring a defendant to use a particular writing implement
is not a “restraint” within the meaning of Deck. Moreover, Parker has not
established that jurors observed the shorter pencil, much less that they
inferred he was using it because he was considered dangerous. Nor does
the record suggest Parker’s presentation of his defense was hampered in
any way by use of the pencil.

III.   Dismissal of Juror

¶11           Parker next contends the trial court erred by dismissing
Juror 23 for cause. That prospective juror responded to a question about
cases involving possession of drugs and drug paraphernalia by stating, “I
am a recovered drug addict. So I had a history of all that stuff. And I do
not believe that I could be fair.” She later advised that she did not believe
she could judge the credibility of each witness by the same standard
because she was biased “towards drug addicts.” She also stated her
ability to be fair might be affected because she had “two misdemeanors
for shoplifting and one for trafficking in stolen property.” Outside the
presence of other prospective jurors, Juror 23 explained: “I just think I’m
bias[ed] in favor of drug addicts in general,” and confirmed she would be
“[l]ike way sympathetic . . . [b]ecause I used to be like that.” In terms of
evaluating each witness’s testimony by the same standard, she stated:
“Again, that’s where I would be more in favor of the defendant.” She
also advised, though, that she did not think she would believe the
defendant more than other witnesses. Finally, she agreed that if there
was “just testimony about drugs in general” and no evidence that “the
person is or is not a drug addict,” she would be able to be fair and
impartial.


                                     4
                            STATE v. PARKER
                           Decision of the Court
¶12          The court struck Juror 23 for cause over Parker’s objection.
We review that decision for an abuse of discretion. See State v. Medina,
193 Ariz. 504, 511, ¶ 18 (1999).

¶13           “When there is reasonable ground to believe that a juror
cannot render a fair and impartial verdict, the court, on its own initiative,
or on motion of any party, shall excuse the juror from service in the case.”
Ariz. R. Crim. P. 18.4(b). The trial court is in the best position “to assess
whether prospective jurors should be allowed to sit,” State v. Blackman,
201 Ariz. 527, 533, ¶ 13 (App. 2002), because “the trial judge has the
opportunity to observe the juror’s demeanor and the tenor of his or her
answers first hand.” State v. Cook, 170 Ariz. 40, 54 (1991). “[E]ven if a
juror is sincere in his promises to uphold the law, a judge may still
reasonably find a juror’s equivocation about whether he would take his
personal biases in[to] the jury room sufficient to substantially impair his
duties as a juror, allowing a strike for cause.” State v. Ellison, 213 Ariz.
116, 137, ¶ 89 (2006).

¶14            Given the totality of Juror 23’s statements, we find no abuse
of discretion. Moreover, even if the juror should not have been excused,
we would not reverse Parker’s conviction “unless the record affirmatively
shows that defendant was not tried by a fair and impartial jury.” State v.
Thomas, 133 Ariz. 533, 537 (1982); State v. Walden, 183 Ariz. 595, 609 (1995)
(error in striking juror for cause does not require reversal absent showing
that a fair and impartial jury was not secured), disapproved on other
grounds by State v. Ives, 187 Ariz. 102, 108 (1996). A defendant is not
entitled to a particular jury, but only a fair one. State v. Arnett, 119 Ariz.
38, 50 (1978).

IV.    Batson Challenge

¶15          Parker argues the court erroneously rejected his Batson
challenge to four prospective jurors. The Equal Protection Clause of the
Fourteenth Amendment prohibits peremptory strikes based on race.
Batson v. Kentucky, 476 U.S. 79, 89 (1986). A Batson challenge involves
three steps:

       First, a defendant must make a prima facie showing that a
       peremptory challenge has been exercised on the basis of
       race; second, if that showing has been made, the prosecution
       must offer a race-neutral basis for striking the juror in
       question; and third, in light of the parties’ submissions, the
       trial court must determine whether the defendant has shown
       purposeful discrimination.


                                      5
                             STATE v. PARKER
                            Decision of the Court
Snyder v. Louisiana, 552 U.S. 472, 476–77 (2008).

¶16           Defense counsel challenged the peremptory strikes of Jurors
33, 2, 13, and 24, arguing that “[f]our of the State’s six strikes were for
minority jurors.” The prosecutor responded that Juror 24 “identif[ied]
himself as white” and advised that his comments about being charged
with a DUI prompted the strike. The prosecutor explained that she
struck Juror 2 because of a prior DUI, his experience of being assaulted,
and because he “believed that some drugs should be legalized.” She said
Juror 13 “thought some drugs should be decriminalized. . . . Also his son
was involved in a previous possession of marijuana and possession of
drug paraphernalia.” The prosecutor noted that Juror 33 was currently a
judge and failed to “give any further information in regards to what her
previous employment was.” The prosecutor also emphasized that four
members of a minority group remained on the jury panel. The trial court
denied the Batson challenge, finding that “the State has been able to offer
a non racial reason for each of those strikes.”

¶17           We review rulings regarding the motive for a peremptory
strike for clear error. State v. Murray, 184 Ariz. 9, 24 (1995). “We give
great deference to the trial court’s ruling, based, as it is, largely upon an
assessment of the prosecutor’s credibility.” State v. Roque, 213 Ariz. 193,
203, ¶ 12 (2006).

¶18           We find no abuse of discretion. The defendant bears the
burden of proving purposeful discrimination. Roque, 213 Ariz. at 204,
¶ 15. Parker did not carry his burden. He did not argue that the State’s
race-neutral reasons were a pretext for purposeful discrimination.
Moreover, as the prosecutor noted, four members of a minority group
remained on the jury panel after peremptory strikes. “Although not
dispositive, the fact that the state accepted other minority jurors on the
venire is indicative of a nondiscriminatory motive.” Id.

V.     Continuance Request

¶19          Finally, Parker argues the court erred in denying his
continuance request based on statements an individual made to his
counsel shortly before trial, indicating she placed the drugs and pipe in
Parker’s backpack. In making the oral continuance request, defense
counsel stated she “would like more time to review the statements”
because the defense to date was “not based on her statements that she
had the drugs and that she placed the drugs in Mr. Parker’s backpack.”
The court noted that defense counsel had known of this witness for a long
time and denied the continuance.


                                      6
                           STATE v. PARKER
                          Decision of the Court


¶20           A trial court must grant a continuance “only upon a
showing that extraordinary circumstances exist and that delay is
indispensable to the interests of justice.” Ariz. R. Crim. P. 8.5(b). A
motion for continuance “must be in writing and state with specificity the
reason(s) justifying the continuance.” Ariz. R. Crim. P. 8.5(a). We review
the denial of a continuance request for an abuse of discretion, “which we
will find only if the defendant demonstrates prejudice.” State v. Forde,
233 Ariz. 543, 555, ¶ 18 (2014).

¶21           We find no error. As a threshold matter, Parker did not file
a written motion, as required by Rule 8.5(a). He also failed to establish
the existence of “extraordinary circumstances” or prejudice arising from
the court’s ruling. As the trial court noted, Parker knew about the
witness. Moreover, the witness ultimately invoked her Fifth Amendment
right not to incriminate herself, and the court precluded her testimony
and found her to be an unavailable witness. After extensive argument,
the court denied Parker’s motion to admit her prior statements at trial as
statements against penal interest under Arizona Rule of Evidence
804(b)(3), finding “there’s just nothing to corroborate or indicate
trustworthiness of anything she said.” Moreover, Parker was acquitted of
possessing the drug paraphernalia found in the backpack, and the record
does not suggest the witness would have testified that she placed the
methamphetamine in Parker’s pants pocket. Under these circumstances,
the trial court did not abuse its discretion in denying the last-minute
continuance request.

                            CONCLUSION

¶22           For the foregoing reasons, we affirm Parker’s conviction
and sentence.




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