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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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.
STATE v. IZQUERDO

Decision of the Court

3

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. 
STATE v. IZQUERDO

Decision of the Court

4

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 
STATE v. IZQUERDO

Decision of the Court

5

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.