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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     THOMAS E. WOOTEN, Appellant.

                             No. 1 CA-CR 15-0415
                               FILED 4-19-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-438498-001
                 The Honorable Jo Lynn Gentry, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant

Thomas E. Wooten, San Luis
Appellant
                             STATE v. WOOTEN
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.


N O R R I S, Judge:

¶1              Thomas E. Wooten timely appeals from his conviction and
sentence for misconduct involving weapons, a class 4 felony. After
searching the record on appeal and finding no arguable question of law that
was not frivolous, Wooten’s counsel filed a brief in accordance with Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v.
Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record
for fundamental error. This court granted counsel’s motion to allow
Wooten to file a supplemental brief in propria persona, and Wooten did so.
We reject the arguments raised in Wooten’s supplemental brief and, after
reviewing the entire record, find no fundamental error. Therefore, we
affirm Wooten’s conviction and sentence.

             FACTS AND PROCEDURAL BACKGROUND1

¶2           On March 20, 2013, Wooten sold a Draco pistol to a Maricopa
County, Arizona pawnshop. He gave his identification to the clerk and
signed the pawn ticket. He also placed his right-index fingerprint on the
pawn ticket’s upper right corner.

¶3             About two months later, the Phoenix Police Department
received a list of sellers and buyers of firearms from local pawnshops, ran
background checks to look for prohibited possessors, and discovered
Wooten’s sale. Based on this information, Detective M.C. interviewed
Wooten, after warning him of his Miranda rights.2 Wooten first told the
detective a stranger outside the pawnshop had asked him to help make the
sale because the stranger did not have the necessary identification. Wooten
also told the detective he never touched the pistol. After further



              1We   view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Wooten.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

              2Miranda   v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

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                           STATE v. WOOTEN
                           Decision of the Court
questioning, however, Wooten said, “[The stranger] set it on the counter,”
and “I handed it to the [pawnshop clerk].”

¶4             At trial, the owner of the pawnshop testified that, as part of
his procedures, he always asks for the identification, signature, and a
fingerprint of the person he sees “with the gun.” A fingerprint examiner
then testified Wooten’s fingerprint was on the pawn ticket. The State also
introduced into evidence exhibits showing Wooten was a prohibited
possessor because of prior felony convictions. In his case-in-chief, Wooten
testified he knew the person trying to sell the pistol but he had never
touched the gun. Because the person selling the gun did not have
identification, Wooten simply was the “middleman.”

¶5             Based on the foregoing evidence, a jury found Wooten guilty
of one count of misconduct involving weapons. As we discuss further
below, see infra ¶ 13, the superior court sentenced Wooten to a presumptive
term of ten years as a category three repetitive offender and awarded
Wooten 32 days of presentence incarceration credit.

                              DISCUSSION

I.    Supplemental Brief

¶6            As we construe his supplemental brief, Wooten first argues
the superior court improperly admitted his interview with the detective
into evidence even though the detective continued to question him after he
had asked for an attorney. Wooten did not raise this Miranda argument in
the superior court, and thus we review for fundamental, prejudicial error.
State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08
(2005). Before Wooten’s pretrial interview, Detective M.C. read Wooten his
Miranda rights and Wooten responded that he understood his rights. At
trial, Wooten testified he eventually asked for an attorney during the
interview. Following Wooten’s testimony, his counsel asked to admit a
less-redacted version of the interview that would have included the
request. Although the superior court granted the request, ultimately
defense counsel decided not to present a less-redacted version of the
interview. The record, thus, does not reflect when, during the interview,
Wooten made this alleged request for an attorney or what the surrounding
circumstances were. Thus, we cannot determine what statements should
have been suppressed even if there was a Miranda violation. Therefore, on
the record before us, Wooten has failed to show fundamental, prejudicial
error. Id. (appellant bears the burden of proving fundamental, prejudicial
error).



                                     3
                            STATE v. WOOTEN
                            Decision of the Court
¶7            Wooten next argues the “prosecutor knew the truth” and
engaged in prosecutorial misconduct by proceeding with the trial despite
evidence that another person had sold the pistol and despite allegedly
knowing the police had lied about how they acquired evidence against
Wooten.3 We reject both arguments. The record does not reflect any
evidence of prosecutorial or police misconduct, and the State presented
substantial evidence that Wooten had possessed the pistol, see supra ¶¶ 2-4.

¶8            Even so, Wooten argues the superior court improperly denied
his Rule 20 motion despite a lack of physical evidence connecting him to
actual possession of the pistol. Although the State did not test the gun for
DNA or fingerprints and did not present any witnesses who testified seeing
Wooten with the pistol, it was under no obligation to do so. See State v.
Torres, 162 Ariz. 70, 76, 781 P.2d 47, 53 (App. 1989) (“Police generally have
no duty to seek out and obtain potentially exculpatory evidence.”) (citation
omitted); see also State v. Kuhs, 223 Ariz. 376, 382, ¶ 24, 224 P.3d 192, 198
(2010) (appellate court reviews sufficiency of the evidence by determining
whether jury’s findings are supported by substantial evidence; that is,
evidence that is adequate to support a reasonable person’s conclusion of
defendant’s guilt beyond a reasonable doubt); State v. Henry, 205 Ariz. 229,
232, ¶ 11, 68 P.3d 455, 458 (App. 2003) (substantial evidence may be direct
or circumstantial; denial of Rule 20 motion reviewed for abuse of
discretion).

¶9            Wooten further argues the superior court improperly denied
his Rule 20 motion because the State failed to present evidence that the
pistol worked at the time of sale. Operability is not an element of the
offense, and thus the State was not obligated to demonstrate the gun was
operable. Ariz. Rev. Stat. (“A.R.S.”) § 13-3101(A)(4) (Supp. 2012) (“Firearm
does not include a firearm in permanently inoperable condition.”); see also
A.R.S. §§ 13-3101(A)(8), -3102(A)(3) (Supp. 2012). Instead, permanent
inoperability is an affirmative defense, which means that Wooten bore the
burden of proving it. State v. Young, 192 Ariz. 303, 307, ¶ 16, 965 P.2d 37, 41
(App. 1998). Nevertheless, the State presented testimony both from the
buyer of the pistol that he had fired it two to three weeks after buying it,
and from the pawnshop operator that he checks weapons to make sure they
are “in working condition.”



              3Wooten     has not argued the superior court should have
informed the jury that the third person had invoked his Fifth Amendment
right not to incriminate himself in refusing to testify at Wooten’s trial. Thus,
this issue is not before us and we express no opinion on it.

                                       4
                             STATE v. WOOTEN
                             Decision of the Court
¶10            Finally, Wooten argues the superior court improperly
instructed the jury on possession because “[c]onstructive possession is not
the law.” Because Wooten failed to object to the court’s instruction, we
review for fundamental error and find none. Ariz. R. Crim. P. 21.3; State v.
Morales, 198 Ariz. 372, 374, ¶ 6, 10 P.3d 630, 632 (App. 2000). As relevant
here, the court instructed the jury: “‘Constructive possession’ means the
defendant, although not actually possessing an object, knowingly exercised
dominion or control over it, either acting alone or through another person.”
On its face, the instruction was proper, as it closely tracked the language of
A.R.S. § 13-105(35) (Supp. 2012).

II.    Anders Review

¶11          We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Wooten received a fair
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.

¶12           The jury was properly comprised of eight members, and the
court properly instructed the jury on the elements of the charge, Wooten’s
presumption of innocence, the State’s burden of proof, and the necessity of
a unanimous verdict.4 The superior court received and considered a
presentence report, Wooten was given an opportunity to speak at
sentencing and did so, and the superior court imposed a sentence within
the range of acceptable sentences for his offense as a category 3 offender.
A.R.S. § 13-703(J) (Supp. 2012).

¶13           At the sentencing hearing and in the sentencing minute entry,
the superior court clearly identified one of the historical prior felony
convictions it relied on in sentencing Wooten under A.R.S. § 13-703(J)—a




               4We  note, however, that in its preliminary instructions, the
superior court improperly instructed the jury to “accept [stipulated facts]
as the truth.” In the final instructions, however, the superior court correctly
informed the jury that it must treat stipulations “as any other evidence. You
are free to accept it or reject it, in whole or in part . . . .” State v. Allen, 223
Ariz. 125, 127, ¶ 11, 220 P.3d 245, 247 (2009) (“[S]tipulations do not bind the
jury, and jurors may accept or reject them.”). Thus, any confusion caused
by the preliminary instruction was harmless. See Henderson, 210 Ariz. at
567, ¶ 18, 115 P.3d at 607.




                                         5
                            STATE v. WOOTEN
                            Decision of the Court
felony offense committed in 1994 (FVW94WF1073).5 It did not, however,
clearly identify the second historical prior felony conviction it relied on. It
should have done so. Cf. State v. Price, 217 Ariz. 182, 184, ¶ 4 n.3, 171 P.3d
1223, 1225 n.3 (2007) (“A trial court should identify the statutory authority
for each aggravating circumstance.”) (citing State v. Anderson, 211 Ariz. 59,
60, ¶ 4 n.1, 116 P.3d 1219, 1220 n.1 (2005)). Wooten, however, raised no
objection to the superior court’s failure to identify the second historical
prior felony conviction with specificity, and, therefore, our review is for
fundamental, prejudicial error. Henderson, 210 Ariz. at 567-68, ¶¶ 19-20, 115
P.3d at 607-08. Because the record demonstrates Wooten had a second
historical prior felony conviction—misconduct involving weapons,
committed in 2002 (CR 2002-0099498)—we find no fundamental, prejudicial
error. Id.

¶14           At sentencing, the superior court also informed Wooten that
he “will pay for any costs associated with the DNA testing.” The court may
not order a defendant to pay for DNA testing. See State v. Reyes, 232 Ariz.
468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013). The sentencing minute entry
does not, however, require Wooten to pay for DNA testing.

                              CONCLUSION

¶15           We decline to order briefing and affirm Wooten’s conviction
and sentence.

¶16           After the filing of this decision, defense counsel’s obligations
pertaining to Wooten’s representation in this appeal have ended. Defense
counsel need do no more than inform Wooten of the outcome of this appeal
and his future options, unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).




              5At  the sentencing hearing, Wooten stipulated that the
superior court could use this offense as a historical prior conviction. Ariz.
R. Crim. P. 17.6. After questioning Wooten regarding his willingness to
enter into the stipulation in accordance with Arizona Rule of Criminal
Procedure 17.2, the superior court accepted the stipulation.

                                      6
                           STATE v. WOOTEN
                           Decision of the Court
¶17            Wooten has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Wooten 30 days from the date of this decision to
file an in propria persona motion for reconsideration.




                                 :ama




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