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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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 
STATE v. PARKER

Decision of the Court

3

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).
STATE v. PARKER

Decision of the Court

4

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.
STATE v. PARKER

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¶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.
STATE v. PARKER

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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. 
STATE v. PARKER

Decision of the Court

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¶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.