State v. Wooten

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BYRON TRENELL HAMPHILL WOOTEN, Appellant.

No. 1 CA-CR 17-0136
FILED 4-19-2018

Appeal from the Superior Court in Maricopa County
No. CR2016-119929-001
The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell
joined.

M c M U R D I E, Judge:

¶1 Byron Trenell Hamphill Wooten appeals his 13 convictions of
sex trafficking, Class 2 felonies, one conviction of unlawful imprisonment,
a Class 1 misdemeanor, and the resulting sentences. Wooten’s counsel filed
a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State
v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the
record, he found no arguable question of law that was not frivolous.
Wooten was given the opportunity to file an initial supplemental brief but
failed to follow length and form requirements. See ARCAP 14(a); Ariz. R.
Crim. P. 1.6(b)(E). Wooten’s brief was stricken, and he was given an
opportunity to file a brief in accordance with length and form requirements.
Wooten then filed a conforming supplemental brief. Counsel asks this court
to search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75
(1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing
the record, we affirm Wooten’s convictions and sentences.

FACTS 1 AND PROCEDURAL BACKGROUND

¶2 A.A. contacted Wooten, a friend from high school, after losing
her home sometime between February and March of 2016. Wooten agreed
to help A.A., allowed her to move into his home, and brought her to San
Diego. Soon after moving in, Wooten instructed A.A. that she would need
to prostitute herself to make money to assist in paying bills.

¶3 A.A. did not wish to prostitute herself, but feared she would
lose her place to stay if she did not. Wooten instructed A.A. on the rules of
prostitution including whom to talk to, where to go, how to dress, and what
to charge. Wooten created online advertisements soliciting sexual services

1 We view the evidence in the light most favorable to sustaining the
convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293
(1989).

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from A.A. Wooten also set the amount of money A.A. was to make each
night and kept all the money.

¶4 Wooten first brought A.A. to Phoenix in March 2016, with the
intention of testing the Phoenix prostitution market, and later brought A.A.
back to Phoenix with another woman. Phoenix police made first contact
with A.A. while she was working and told her they would assist her if she
wanted to get out of prostitution. A.A. remained fearful of Wooten but
accepted a detective’s contact information. The next day A.A. contacted the
detective and told her she wanted to get out of prostitution. A.A. and the
detective met and faked A.A.’s arrest to remove her from Wooten without
suspicion. A.A. assisted the police in investigating Wooten, and the police
took her to a domestic violence shelter.

¶5 After being brought to the domestic violence shelter, A.A.
contacted Wooten in an attempt to retrieve her belongings from him.
Wooten refused to give A.A. her belongings unless she left the shelter with
him, and A.A. agreed. Shortly after leaving with Wooten, A.A. was able to
contact police, and police again removed her from the situation. Wooten
was arrested soon after.

¶6 Wooten was indicted on 13 counts of sex trafficking and two
counts of kidnapping. After a 10-day jury trial, Wooten was found guilty
on 13 counts of sex trafficking, Class 2 felonies, and one count of unlawful
imprisonment, a Class 1 misdemeanor. The jury found as aggravating
factors that the offenses were committed in consideration for the receipt, or
in the expectation of the receipt, of pecuniary value and the offenses caused
physical, emotional, or financial harm to the victim for Counts 1–7 and
Count 14. Additionally, the jury found that the offense involved the
infliction or threatened infliction of serious physical injury and the
defendant committed the offenses in an especially heinous, cruel, or
depraved manner for Counts 8-13.

¶7 The court sentenced Wooten to seven concurrent aggravated
terms of 10 years’ imprisonment for Counts 1 through 7, with 303 days of
presentence incarceration credit. The court sentenced Wooten to six
concurrent aggravated terms of 18.5 years’ imprisonment for Counts 8
through 13. The court ordered the sentences for Counts 8 through 13 to run
consecutive to Counts 1 through 7. The court sentenced Wooten to a term
of six-months’ imprisonment for Count 14 for unlawful imprisonment, to
run concurrent to Counts 1 through 7. Wooten timely appealed, and we
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
12-120.01(A)(1), 13-4031, and -4033(A).

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DISCUSSION

¶8 We have read and considered counsel’s brief and have
reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We
find none.

¶9 In his supplemental brief, Wooten raises the following issues:
multiplicitous charging and sentencing, violation of Wooten’s Sixth
Amendment right to a speedy trial, multiple violations of the Arizona Rules
of Evidence, improper or insufficient jury instructions, improper racial
representation on the jury, sufficiency of the evidence, imposition of unduly
harsh sentences, prosecutorial misconduct, and that the cumulative effect
of errors at and before trial deprived Wooten of due process.

A. The Superior Court Did Not Impose Multiplicitous Sentences.

¶10 Wooten first argues his convictions for Counts 1 through 13
were multiplicitous, and therefore violate double jeopardy. The Double
Jeopardy Clause of the Fifth and Fourteenth Amendments “protects against
multiple punishments for the same offense.” Ohio v. Johnson, 467 U.S. 493,
498 (1984); Lemke v. Rayes, 213 Ariz. 232, 236, ¶ 10 (App. 2006). “[I]f multiple
violations of the same statute are based on the same conduct, there can be
only one conviction.” State v. Jurden, 239 Ariz. 526, 529, ¶ 11 (2016). “We
review de novo whether double jeopardy applies.” State v. Powers, 200 Ariz.
123, 125, ¶ 5 (App. 2001).

¶11 Wooten claims Counts 1 through 13, all convictions for sex
trafficking, were all for a single offense despite acknowledging that each
count alleged an offense committed at different times. There was no error.
In closing argument, Wooten’s attorney explained to the jury the distinction
between the dates and that the jury must find that Wooten’s “conduct was
present on that day for that act[.] . . .” Additionally, in the jury instructions,
the superior court specifically instructed, “[the jury] must decide each count
separately on the evidence with the law applicable to it, uninfluenced by
your decision on any other count.”

¶12 To determine whether error has occurred, “we may consider
the jury instructions as given, the evidence at trial, the parties’ theories, and
the parties’ arguments to the jury.” State v. Felix, 237 Ariz. 280, 285, ¶ 16
(App. 2015). We presume that jurors follow the instructions provided to
them. State v. Payne, 233 Ariz. 484, 518, ¶ 151 (2013). The acts supporting
Counts 1 through 13 were separate and distinct from one another, and
Wooten’s attorney properly explained to the jury that separate acts had to

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be found to convict Wooten on the respective counts. Wooten’s convictions
and sentences were separate and distinct, and, accordingly, Wooten’s
convictions and sentences for Counts 1 through 13 did not constitute
multiplicitous sentences.

B. The Superior Court Did Not Violate Wooten’s Sixth Amendment
Right to a Speedy Trial.

¶13 Wooten contends his Sixth Amendment right to a speedy trial
was violated because his trial was continued past its initial final day. Under
Rule 8.5, the superior court may grant a continuance for either party upon
a finding of “extraordinary circumstances . . . and that delay is
indispensable to the interests of justice.” “When it is alleged that the
superior court improperly granted a Rule 8 continuance ‘[w]e will not
disturb a ruling . . . absent a clear abuse of the trial court’s
discretion.’” Snyder v. Donato, 211 Ariz. 117, 119, ¶ 7 (App. 2005) (alteration
in Snyder) (quoting State v. Lukezic, 143 Ariz. 60, 68 (1984)).

[T]he trial court is the only party in a position to judge the
inconvenience of a continuance to the litigants, counsel,
witnesses, and the court, and further is the only party in a
position to determine whether there are “extraordinary
circumstances” warranting a continuance and whether
“delay is indispens[a]ble to the interests of justice.”

State v. Hein, 138 Ariz. 360, 368 (1983) (quoting Ariz. R. Crim. P. 8.5(b)).

¶14 Wooten’s initial last day to begin trial was set for October 9,
2016, 150 days after Wooten’s arraignment. Wooten’s trial was continued
three times until it finally began on December 12, 2016, 64 days after the
initial last day. However, while the State moved to continue the trial the
initial two times, Wooten moved to continue the trial into December.

¶15 The superior court granted both of the State’s motions to
continue trial as “indispensable to the interests of justice” because of the
prosecutor’s trial conflict and to accommodate Wooten’s request to
interview out-of-state victims pretrial. The record fails to indicate the
superior court abused its discretion by granting the State’s motions to
continue trial.

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C. The Superior Court Did Not Violate Rule 404 By Admitting Jail
Calls as Evidence.

¶16 Wooten contends that the superior court abused its discretion
by admitting his jail calls under Arizona Rule of Evidence 404(b). Before
trial, the State moved to introduce Wooten’s jail calls. The superior court
held a hearing and ultimately granted the motion.

¶17 We review a court’s admission of evidence pursuant to Rule
404(b) for an abuse of discretion. State v. Lehr, 227 Ariz. 140, 147, ¶ 19 (2011).
Evidence of prior acts is not admissible to prove the character of a person
to show action in conformity with the previous conduct. Ariz. R. Evid.
404(b). However, prior acts may be admissible if the evidence is offered for
another proper purpose. Id. Prior to admitting such evidence, the court
should conduct a hearing to determine its admissibility.

Before admitting prior bad act evidence, a trial court should
determine that: (1) the evidence is proffered to show
something other than conduct in conformity with the prior
acts, pursuant to rule 404(b); (2) the evidence is legally and
logically relevant under rule 402; (3) the probative value of the
evidence substantially outweighs the risk of unfair prejudice
under rule 403; and (4) defendant has not been denied an
appropriate limiting instruction under rule 105.

State v. Hyde, 186 Ariz. 252, 276 (1996).

¶18 The State presented evidence of Wooten’s own statements in
the form of jail calls, along with testimony from the lead detective and
expert in the case, which included information related to the investigation
and the statements of other witnesses and the victim. The calls
demonstrated that Wooten continued to instruct other women on how to
prostitute themselves and evade police detection while he was in jail. The
State presented the jail calls to show Wooten’s knowledge, planning, and
intent to continue his prostitution ring. The State did not present the jail
calls to demonstrate Wooten’s character as an individual who commits sex
trafficking offenses. Considering the testimony and evidence presented at
the hearing, the superior court did not abuse its discretion by granting the
State’s motion to introduce Rule 404(b) evidence.

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D. The Superior Court Did Not Violate the Rule Against Hearsay by
Admitting the Jail Calls as Evidence.

¶19 Wooten contends the superior court violated the rule against
hearsay by allowing his jail calls into evidence. Wooten failed to object on
this ground before or during trial. When a defendant fails to object at trial
to the introduction of evidence, we review only for fundamental error. See
State v. Marlow, 163 Ariz. 65, 69 (1989); see also State v. Henderson, 210 Ariz.
561, 567, ¶ 19 (2005).

¶20 Fundamental error is “rare” and is an “error going to the
foundation of the case, error that takes from the defendant a right essential
to his defense, and error of such magnitude that the defendant could not
possibly have received a fair trial.” Henderson, 210 Ariz. at 567, ¶ 19
(quoting State v. Hunter, 142 Ariz. 88, 90 (1984)); see also State v. Morris, 215
Ariz. 324, 337, ¶ 59 (2007). The defendant has the burden to prove error,
that the error was fundamental, and that the error caused
prejudice. Henderson, 210 Ariz. at 567−69, ¶¶ 19, 23−24, 26.

¶21 Rule 801(c) defines hearsay as a statement, other than one
made by the declarant while testifying at the trial or hearing, “offer[ed] in
evidence to prove the truth of the matter asserted.” However, Rule 801(d)(2)
provides that such statements are “not hearsay” if they were made by one
party and offered by the opposing party. Here, Wooten’s statements in the
jail calls were offered against him by the State. Therefore, the jail calls do
not constitute hearsay. State v. Buccheri-Bianca, 233 Ariz. 324, 333, ¶ 33 (App.
2013) (defendant’s recorded statement admitting guilt properly admitted as
a statement by a party opponent).

E. The Superior Court Did Not Err by Determining the Probative
Value of the Jail Calls Was Not Outweighed by a Danger of Unfair
Prejudice.

¶22 Wooten contends the superior court abused its discretion by
determining the probative value of the jail calls outweighed any unfair
prejudice. Ariz. R. Evid. 403. Wooten claims that any indication he was
incarcerated before the trial should have been precluded from trial.

¶23 All relevant evidence is admissible if the law does not
otherwise prohibit it. Ariz. R. Evid. 402; State v. Kiper, 181 Ariz. 62, 65
(App. 1994); see also Ariz. R. Evid. 403 (although relevant, evidence may be
excluded “if its probative value is substantially outweighed by a danger of
. . . unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”). In

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conducting a Rule 403 analysis, the superior court should first “assess the
probative value of the evidence on the issue for which it is offered.” State v.
Gibson, 202 Ariz. 321, 324, ¶ 17 (2002). This assessment is then weighed
against potential unfair prejudice to the opposing party. Girouard v. Skyline
Steel, Inc., 215 Ariz. 126, 129, ¶ 11 (App. 2007).

¶24 “Because this is a weighing of factors that cannot easily be
quantified, substantial discretion is accorded the trial judge.” Gibson, 202
Ariz. at 324, ¶ 17 (internal quotations omitted); see also Sprint/United Mgmt.
Co. v. Mendelsohn, 552 U.S. 379, 387 (2008) (“[Q]uestions of relevance and
prejudice are for the District Court to determine in the first instance.”). The
Rule 403 balancing process is a specific function of the superior court that
this court reviews only for an abuse of discretion. Girouard, 215 Ariz. at 129,
¶ 10; see Mendelsohn, 552 U.S. at 384 (“Under this deferential standard,
courts of appeals uphold Rule 403 rulings unless the district court has
abused its discretion.”). Further, in reviewing the superior court’s
evidentiary ruling, we must view “the evidence in the light most favorable
to the proponent, maximizing its probative value and minimizing its
prejudicial effect.” Kiper, 181 Ariz. at 66.

¶25 Given the testimony and evidence discussed above, the
superior court did not abuse its discretion by determining the probative
value of Wooten’s jail calls outweighed their potential unfair prejudicial
affect.

F. The Superior Court Did Not Err by Qualifying the State’s Expert
Witness and Instructing the Jury on How to Consider Expert
Testimony.

¶26 Wooten contends the superior court abused its discretion by
qualifying Detective Decoufle as an expert witness. “Whether a particular
witness possesses sufficient qualifications to qualify as an expert is . . .
within the trial court’s discretion, and such a determination will not be
upset on appeal in the absence of a clear abuse of discretion.” State v. Mosley,
119 Ariz. 393, 400 (1978).

¶27 Arizona Rule of Evidence 702(a) states “if . . . specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue,” a witness “qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion
or otherwise.” “The test of whether a person is an expert is whether a jury
can receive help on a particular subject from the witness.” State v. Davolt,
207 Ariz. 191, 210, ¶¶ 70, 73–76 (2004) (a detective who had attended crime

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scene management and homicide investigation classes, as well as watched
two training videos, was qualified to testify on blood spatter analysis;
although his training was not extensive, it was more than a lay person
receives and was enough to permit him to testify as an expert). An expert is
not required to have the “highest possible qualifications” to be qualified to
testify about a particular matter; “the extent of training and experience of
an expert goes to the weight, rather than the admissibility, of his
testimony.” Mosley, 119 Ariz. at 400.

¶28 Decoufle, at the time of trial, had worked for the Phoenix
Police Department for 16 years and completed detective, undercover,
interview, and human trafficking training prior to the instant case.
Furthermore, Decoufle was the primary or secondary detective for between
40 and 50 investigations and holds a master’s degree in human services
focusing on psychology. Considering Decoufle’s extensive experience and
training, we cannot say that the superior court abused its discretion by
qualifying her as an expert witness. 2

G. The Empaneled Jury Consisted of Wooten’s Peers.

¶29 Wooten contends the jury empaneled for his trial did not
consist of his peers and the practice of selecting alternate jurors through
random draw is unacceptable as a matter of policy. To prove an equal
protection violation associated with jury selection,

The first step is to establish that the group is one that is a
recognizable, distinct class, singled out for different treatment
under the laws, as written or as applied. Next, the degree of
underrepresentation must be proved, by comparing the
proportion of the group in the total population to the
proportion called to serve as grand jurors, over a significant
period of time . . . . Finally, . . . a selection procedure that is
susceptible of abuse or is not racially neutral supports the
presumption of discrimination raised by the statistical
showing.

Castaneda v. Partida, 430 U.S. 482, 494 (1977) (citations omitted).

2 Wooten contends that because Decoufle should not have been
qualified as an expert, the superior court’s instructions regarding expert
witnesses were improper. Because the superior court did not abuse its
discretion by qualifying Decoufle as an expert, this contention is moot.

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¶30 Wooten has failed to establish the prima facie case of an equal
protection violation associated with jury selection process because he failed
to assert how Arizona law has singled out a distinct class to which he
belongs and failed to prove the degree of underrepresentation by
comparing the proportion of the group in the total population to the
proportion called as jurors, “over a significant period of time.” Id. (emphasis
added).

¶31 Additionally, Wooten contends choosing alternate jurors
through a random drawing is unacceptable as a matter of policy. The
process used to determine which jurors are alternates is known as simple
random sampling, whereby “we select a group of subjects (a sample) . . .
from a larger group (a population).” YALE UNIV. DEP’T OF STATISTICS AND
DATA SCI., http://www.stat.yale.edu/Courses/1997-98/101/sample.htm
(last visited Apr. 13, 2018). Every empaneled juror has an equal chance of
being selected as an alternate (or conversely a deliberating juror). See id.

¶32 There is no state or federal guarantee to a jury consisting of
jurors perfectly representative of a given state or county. A simple random
sampling to determine which jurors are alternates ensures all jurors have
an equal probability of being chosen as an alternate. See YALE UNIV. DEP’T
OF STATISTICS AND DATA SCI., http://www.stat.yale.edu/Courses/1997-
98/101/sample.htm. Thus, choosing jurors as alternates randomly is
acceptable as a matter of policy.

H. The Evidence Presented at Trial Was Sufficient to Convict.

¶33 Wooten contends the State presented insufficient evidence at
trial to convict him for Counts 1 through 14. We review the sufficiency of
the evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We view
the evidence in the light most favorable to upholding the verdicts and
resolve all conflicts in the evidence against Wooten. See State v. Girdler, 138
Ariz. 482, 488 (1983). We do not reweigh the evidence or determine the
credibility of witnesses. State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004).

¶34 We will not reverse unless “there is a complete absence of
probative facts to support the conviction[s].” State v. Scott, 113 Ariz. 423,
424–25 (1976). “To set aside a jury verdict for insufficient evidence it must
clearly appear that upon no hypothesis whatever is there sufficient
evidence to support the conclusion reached by the jury.” State v. Arredondo,
155 Ariz. 314, 316 (1987). Sufficient evidence may be either direct or
circumstantial, and may support differing reasonable inferences. State v.
Anaya, 165 Ariz. 535, 543 (App. 1990).

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¶35 Here, the evidence summarized above was sufficient to
support the jury’s verdicts. The victim, as well as multiple investigators,
detectives, and experts all testified at trial. The jury found the testimony of
witnesses and exhibits admitted credible and convicted Wooten of Counts
1 through 14. There is sufficient evidence to support the conclusion reached
by the jury.

I. Wooten’s Sentences Were Not Unduly Harsh.

¶36 Wooten contends there is no statutory basis to impose a $20
probation assessment upon his release from prison. Under A.R.S.
§ 12-114.01(A), “in addition to any other penalty, fine, fee, surcharge or
assessment authorized by law, a person shall pay [a probation] assessment
of twenty dollars on conviction for a criminal offense . . . .”

¶37 Wooten further contends that his sentences should all run
concurrently because Counts 1 through 14 were really the same crime, the
superior court’s reason for imposing consecutive sentences was not
supported by the record, the superior court should not have sentenced
Wooten for repetitive offenses, and the aggravating factors found by the
jury were not supported by the record.

¶38 “A trial court has broad discretion in sentencing and, if the
sentence imposed is within the statutory limits, we will not disturb the
sentence unless there is a clear abuse of discretion.” State v. Ward, 200 Ariz.
387, 389, ¶ 5 (App. 2001).

¶39 As noted above, Counts 1 through 13 were committed
multiple times on different days. Count 14 was a wholly separate crime.
Considering the testimony and evidence presented at trial, the superior
court did not abuse its discretion by sentencing Wooten to seven concurrent
aggravated terms of ten years’ imprisonment for Counts 1 through 7, six
concurrent aggravated terms of 18.5 years’ imprisonment for Counts 8
through 13, to run consecutively to Counts 1 through 7, and a term of six-
months’ imprisonment for Count 14 for unlawful imprisonment, to run
concurrent to Counts 1 through 7. 3

3 Wooten contends the prosecutor committed prosecutorial
misconduct by overcharging him with thirteen counts of sex trafficking.
Because we find the evidence supports the convictions, we find the
contention meritless.

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J. Wooten Was Not Deprived of a Fair Trial or Due Process of Law.

¶40 Wooten contends the cumulative error occurring at and
before his trial constituted fundamental error depriving him of due process
of law. If any “incidents contributing to a finding of misconduct are
identified, we must evaluate their cumulative effect on the trial.” State v.
Roque, 213 Ariz. 193, 228, ¶ 155 (2006), abrogated on other grounds by State v.
Escalante-Orozco, 241 Ariz. 254 (2017). Because we are unable to find any
errors in the record, we reject Wooten’s contention.

¶41 Wooten was present and represented by counsel at all stages
of the proceedings against him. The record reflects the superior court
afforded Wooten all his constitutional and statutory rights, and the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdicts. Wooten’s sentences fall within the range
prescribed by law, with proper credit given for presentence incarceration.

CONCLUSION

¶42 Wooten’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Wooten’s
representation in this appeal will end after informing Wooten of the
outcome of this appeal and his future options, unless counsel’s review
reveals an issue appropriate for submission to the Arizona Supreme Court
by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984).

AMY M. WOOD • Clerk of the Court
FILED: AA

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