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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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 

2

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). 
STATE v. WOOTEN 

Decision of the Court 

3

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). 
STATE v. WOOTEN 

Decision of the Court 

4

¶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. 
STATE v. WOOTEN 

Decision of the Court 

5

¶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. 
STATE v. WOOTEN 

Decision of the Court 

6

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. 
STATE v. WOOTEN 

Decision of the Court 

7

¶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.