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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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 “handto-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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¶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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¶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
STATE v. ALEXANDER

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“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 
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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 
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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. 
STATE v. ALEXANDER

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CONCLUSION

¶24 Defendant’s convictions and sentences are affirmed.