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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   PATRICK DANIEL BARNES, Appellant.

                              No. 1 CA-CR 17-0171
                              No. 1 CA-CR 17-0500
                                (Consolidated)
                                FILED 8-30-2018


            Appeal from the Superior Court in Maricopa County
                       No. CR2016-105613-001 DT
             The Honorable Peter C. Reinstein, Judge (Retired)

                                   AFFIRMED


                                    COUNSEL

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

Maricopa County Office of the Legal Advocate, Phoenix
By Kerri L. Chamberlin
Counsel for Appellant

Patrick D. Barnes, San Luis
Appellant
                            STATE v. BARNES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Kent E. Cattani joined.


W I N T H R O P, Judge:

               Patrick Daniel Barnes appeals his convictions and sentences
for arson of an occupied structure; attempt to commit fraudulent schemes
and artifices; and for presenting a false, incomplete, or misleading
insurance claim. Barnes’ counsel filed a brief in accordance with Smith v.
Robbins, 528 U.S. 259 (2000), Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297 (1969), stating she has searched the record for
error but failed to identify any “arguable question of law that is not
frivolous.” Barnes’ counsel therefore requests that we review the record for
fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999)
(stating that this court reviews the entire record for reversible error). This
court allowed Barnes to file a supplemental brief in propria persona, and he
has done so, raising various arguments we address herein.

                FACTS AND PROCEDURAL HISTORY1

               In the early morning hours of January 25, 2016, a 9-1-1 caller
alerted authorities to a home on fire in Gilbert, Arizona. When firefighters
arrived on scene minutes later, the home was “fully involved” and in
flames. The first police officer on the scene evacuated nearby homes
because “[t]here was enough brush between the houses that . . . the fire
might travel to a different residence.” Homes to the north and south were
evacuated. Although there was a “sale pending” sign in the front yard,
firefighters observed doors ajar and open windows on the south side of the
involved home. A gate at the back of the property that lead to a vacant
property was also open.

               After working to suppress the fire from the exterior,
firefighters entered the home to extinguish the remaining hotspots. Before
entering the home, one of the firefighters smelled gasoline. A K-9 accelerant


1      We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Barnes. See State v.
Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).


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                             STATE v. BARNES
                            Decision of the Court

detective dog also alerted to potential accelerants in the home. Upon
additional examination, fire investigators discovered what looked like
crowbar markings on one of the windows, indicating forced entry. After
investigation, fire investigators concluded that the fire had been
deliberately set.

               Investigators determined the home belonged to Barnes and
his ex-wife. A court had recently ordered the sale of the home in connection
with divorce proceedings. The proceeds of the sale were to be split twenty-
five percent to Barnes and seventy-five percent to his ex-wife. The court-
appointed realtor changed the locks on the home and checked the home on
an almost daily basis to ensure no doors or windows had been opened and
no vandalism occurred. Several weeks before the fire, Barnes made a
comment to neighbors, who he was unaware were a police officer and
firefighter, that he had a plan to ensure his ex-wife would not receive any
proceeds from the sale of the house. He also told his ex-wife “that he would
burn the house down before [she] ever saw a red cent from the house.”

             According to cell phone records, Barnes’ phone was near the
home at about the time of the fire, but he left before the arrival of emergency
crews. Barnes’ cell phone was within proximity to the home until 4:17 a.m.
“and then it migrated back west toward[] Chandler,” where Barnes had
recently rented an apartment. Video surveillance obtained from a
neighboring home showed a white Chevy pickup with a ladder rack
driving toward the home in the early morning hours on the day of the fire
with the truck’s headlights turned off. The video showed the white truck
had a brake light out. Barnes owned a white Chevy pickup truck with a
ladder rack and burned-out brake light.

              Police officers stopped Barnes in close vicinity to the home the
morning of the fire. Barnes had a crowbar and a cannister of linseed oil, an
accelerant, in his truck when he was stopped. When later examined,
Barnes’ socks worn the day of the fire tested positive for gasoline. A t-shirt
and pants taken from Barnes tested positive for fatty acids, which can be a
byproduct of an accelerant, including linseed oil.

              When questioned, Barnes stated he purchased the linseed oil
for a friend who does woodworking. That friend, however, stated he had
never used linseed oil and had never asked Barnes to purchase any for him.
Video surveillance from a Lowe’s store showed Barnes purchasing linseed
oil on January 24, 2016, at 2:28 p.m., approximately twelve hours before the
arson. The surveillance also showed Barnes getting into a white Chevy




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                            STATE v. BARNES
                           Decision of the Court

truck with ladder racks and a burned-out brake light after he completed his
purchase.

               A grand jury indicted Barnes on six counts: count 1, arson of
an occupied structure, a class 2 dangerous felony; counts 2, 3, and 4,
endangerment, class 6 dangerous felonies; count 5, attempt to commit
fraudulent schemes and artifices, a class 2 felony2; and count 6, presenting
a false, incomplete, or misleading insurance claim, a class 6 felony. The
State filed an allegation of prior convictions for sentencing purposes.

               The case proceeded to an eight-day trial. After the State’s
case-in-chief, Barnes moved for a judgment of acquittal pursuant to Arizona
Rule of Criminal Procedure 20. The motion was denied. The jury found
Barnes guilty of count 1, arson of an occupied structure; count 5, attempt to
commit fraudulent schemes and artifices; and count 6, presenting a false,
incomplete, or misleading insurance claim. The jury found Barnes not
guilty of counts 2, 3, and 4, each a separate charge of endangerment for
three firefighters who responded to the arson.

             The trial court conducted the sentencing hearing in
compliance with Barnes’ constitutional rights and Arizona Rule of Criminal
Procedure 26. The court sentenced Barnes to a presumptive term of 10.5
years’ imprisonment for count 1; 3 years’ probation for count 5; and 3 years’
probation for count 6 with the probation terms to begin upon Barnes’
release from prison on count 1. Barnes received credit for 401 days of
presentence incarceration. The trial court held a separate restitution
hearing. Barnes waived his presence at the hearing. The court ordered
Barnes to pay $170,262.31 to the insurance company and $10,255.86 to his
ex-wife.

             Barnes timely appealed. We have appellate jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A).3
Finding no reversible error, we affirm Barnes’ convictions and sentences.




2      The indictment incorrectly classified count 5 as a class 2 felony.
Upon agreement by the court and the parties, count 5 was changed to a class
3 felony at the sentencing hearing.

3      Absent material revisions after the date of an alleged offense, we cite
a statute’s current version.


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                             STATE v. BARNES
                            Decision of the Court

                                 ANALYSIS

             In his supplemental brief, Barnes raises four issues: (1)
sufficiency of the evidence; (2) whether A.R.S. § 13-1701(2) is
unconstitutionally vague and overbroad; (3) prosecutorial misconduct; and
(4) whether his sentences are illegal.

       I.     Sufficiency of the Evidence

               Barnes challenges the sufficiency of the evidence, arguing that
the State failed to prove each element of the offenses beyond a reasonable
doubt. “When reviewing the sufficiency of the evidence, an appellate court
does not reweigh the evidence to decide if it would reach the same
conclusions as the trier of fact.” State v. Guerra, 161 Ariz. 289, 293 (1989).
We will affirm if “substantial evidence” supports the guilty verdict. Id.
Substantial evidence is “[m]ore than a scintilla and is such proof as a
reasonable mind would employ to support the conclusion reached.” Id.
(quoting State v. Tison, 129 Ariz. 546, 553 (1981)). When evaluating the
sufficiency of the evidence, we test the evidence “against the statutorily
required elements of the offense.” State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App.
2005). The record here contains sufficient evidence, recounted above, to
support Barnes’ convictions.

              As relevant to Barnes’ conviction on count 1, “[a] person
commits arson of an occupied structure by knowingly and unlawfully
damaging an occupied structure by knowingly causing a fire.” A.R.S. § 13-
1704(A). In pertinent part, an “occupied structure” is any building “in
which one or more human beings either is or is likely to be present or so
near as to be in equivalent danger at the time the fire . . . occurs. The term
includes any dwelling house, whether occupied, unoccupied or vacant.”
A.R.S. § 13-1701(2), (4).

              The State presented cell phone data that demonstrated Barnes
was in the vicinity of the arson during the time of its commission. Video
surveillance captured an image of a white Chevy work truck with a ladder
rack and a burned-out brake light immediately before the fire; Barnes
owned a white Chevy work truck with a ladder rack and a burned-out
brake light. When tested, certain items of Barnes’ clothing from the day of
the arson tested positive for gasoline or ignitable liquids. Barnes had a
partially used can of linseed oil, an ignitable liquid, in his truck when he
was taken into custody. Even if, as Barnes argues, there was no one in the
home at the time of the fire, the State presented testimony that someone
was likely to be present or in such proximity as to be in danger. First



                                       5
                             STATE v. BARNES
                            Decision of the Court

responders observed both open doors and windows, suggesting the home
was not vacant. Nearby homes were evacuated because there existed a
possibility that the fire would spread. The State presented sufficient
evidence for the jury to convict Barnes of arson of an occupied structure.

                A person is guilty of attempted fraudulent schemes and
artifices if, “pursuant to a scheme or artifice to defraud, knowingly obtains
any benefit by means of false or fraudulent pretenses, representations,
promises or material omissions.” A.R.S. § 13-2310(A). In the context of
section 13-2310(A), “a scheme or artifice is some plan, device, or trick to
perpetrate a fraud.” State v. Henry, 205 Ariz. 229, 232, ¶ 12 (App. 2003)
(quoting State v. Haas, 138 Ariz. 413, 423 (1983) (internal quotation
omitted)). A “benefit” under § 13-2310(A) is “anything of value or
advantage, present or prospective.” A.R.S. § 13-105(3).

              An employee from Barnes’ insurance company testified that
Barnes called the insurance company at 10:30 a.m. the day of the arson to
make a claim under his insurance policy, claiming he had no knowledge of
the cause of the fire. Barnes also stated that he wanted to ensure that only
his name was on any check issued for the claim made on the policy although
Barnes’ ex-wife was also insured under the policy. Barnes had previously
attempted to remove his ex-wife as an insured under the insurance policy,
but he was not able to do so because she was a co-owner of the property.
The State presented sufficient evidence for the jury to convict Barnes of
attempted fraudulent schemes and artifices.

             A person commits presenting a false, incomplete, or
misleading insurance claim if he:

       [p]resent[s], cause[s] to be presented or prepare[s] with the
       knowledge or belief that it will be presented an oral or written
       statement . . . to or by an insurer . . . that contains untrue
       statements of material fact or that fails to state any material
       fact with respect to . . . [a] claim for payment or benefit
       pursuant to an insurance policy.

A.R.S. § 20-463(A)(1)(c).

              As previously noted, Barnes called his insurance company the
day of the arson and filed a claim for the loss of the home. He claimed he
had no knowledge of what may have caused the fire. Barnes made the
“statement knowing that it contained false, incomplete, or misleading
information that was material to the claim.” The State presented sufficient



                                      6
                             STATE v. BARNES
                            Decision of the Court

evidence for the jury to convict Barnes of presenting a false, incomplete, or
misleading insurance claim.

             On this record, we conclude that the State presented sufficient
evidence that Barnes committed the offenses for which he was convicted.

       II.    Section 13-1701(2)

               Barnes contends that the statute under which he was
convicted of arson of an occupied structure is vague, overbroad, and
violative of the Due Process Clause of the Fourteenth Amendment. Barnes
claims that, because “near” is not defined in the statutory definition of
“occupied structure,” this court should “interprete [sic] the statute so it
mandates human presence in the home, or likely in the home.” We decline
to do so.

               As relevant here, an “occupied structure” is “any building
. . . used for lodging, business, transportation, recreation or storage”
wherein “one or more human beings either is or is likely to be present or so
near as to be in equivalent danger at the time the fire or explosion occurs.
The term includes any dwelling house, whether occupied, unoccupied or
vacant.” A.R.S. § 13-1701(2), (4). The plain language of the statute does not
require physical presence in a structure for it to be “occupied.” We decline
to interpret the statute contrary to its plain language.

       III.   Prosecutorial Misconduct

             Barnes argues that several instances of alleged prosecutorial
misconduct warrant reversal. Specifically, he claims that the prosecutor
asked a witness to comment on Barnes’ post-arrest silence and asked
questions of witnesses intended to elicit “prohibited” testimony.

               Prosecutorial misconduct warrants reversal only if “(1)
misconduct is indeed present; and (2) a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby denying [the]
defendant a fair trial.” State v. Moody, 208 Ariz. 424, 459, ¶ 145 (2004)
(citation omitted). Absent actual prejudice, prosecutorial misconduct is
harmless error. State v. Hughes, 193 Ariz. 72, 80, ¶ 32 (1998). We will not
reverse a conviction based on prosecutorial misconduct unless the conduct
is “so pronounced and persistent that it permeates the entire atmosphere of
the trial.” State v. Lee, 189 Ariz. 608, 616 (1997) (quoting State v. Atwood, 171
Ariz. 576, 611 (1992)). Conduct that amounts to prosecutorial misconduct
“is not merely the result of legal error, negligence, mistake, or insignificant
impropriety, but, taken as a whole, amounts to intentional conduct which


                                       7
                             STATE v. BARNES
                            Decision of the Court

the prosecutor knows to be improper and prejudicial, and which he pursues
for any improper purpose with indifference to a significant resulting
danger of mistrial.” State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11 (App. 2007)
(quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)).

              Barnes alleges that the prosecutor drew “an inference of
consciousness of guilt” because he exercised his right to remain silent post-
arrest. Under the Fifth Amendment and as a matter of due process, a
person in police custody has the right to remain silent in response to
interrogation, and, at trial, a prosecutor for the State generally cannot refer
to or comment on a defendant’s decision to exercise that right. Miranda v.
Arizona, 384 U.S. 436, 474, 478-79 (1966).

              At trial, the prosecutor engaged in the following colloquy
with one of the officers who questioned Barnes after his arrest:

       Q: So then after he was placed under arrest, was he
       Mirandized again?

       A: Yeah. He was transported back to the Gilbert police
       headquarters into an interview room and I read him his
       Miranda rights.

       Q: And, again, did Mr. Barnes indicate to you that he
       understood those rights?

       A: He did.

       Q: And did he still wish to speak to you?

       A: At first he said he wanted his lawyer because the
       charges --

Barnes’ attorney objected and approached the bench for a sidebar.
Although he indicated he was going to move for a mistrial, Barnes’ attorney
conceded that, “[e]ventually, [Barnes] agreed to speak voluntarily.” One
who speaks voluntarily after receiving Miranda warnings has not remained
silent. Anderson v. Charles, 447 U.S. 404, 408 (1980). Barnes received his
Miranda rights, he acknowledged that he understood his rights, and then
proceeded to speak with officers. The prosecutor did not comment on
Barnes’ right to remain silent—Barnes voluntarily spoke with officers.

            Barnes also argues that the prosecutor continued his
“campaign of the introduction of evidence that was prohibited by law”



                                      8
                             STATE v. BARNES
                            Decision of the Court

during the testimony of various State witnesses. Barnes recites certain
witness statements that he claims demonstrate the prosecutor intended to
prejudice him and deprive him of his right to a fair trial.

              During Barnes’ trial, some witnesses’ testimony touched on
aspects of Barnes’ divorce. For example, the court-appointed real estate
agent noted that the process of changing the locks on the home was
coordinated “with the Gilbert Police Department.” The agent also testified
that, once an offer was received on the home, he “communicated that to Mr.
Barnes’ next attorney.” Barnes’ attorney objected to these statements and
the court either instructed the jury to disregard them or instructed the
prosecutor to move on to his next question.

               Other witnesses made comments that were not relevant. For
example, one witness testified that Barnes stated he had a “tax guy [that]
could alter numbers.” The witness to whom Barnes made a statement about
having a “surprise” for his ex-wife regarding the proceeds of the house
testified that she thought Barnes was a “strong investigative lead” when
she learned of the arson. When explaining how uncomfortable she was
with her conversation with Barnes, she stated the conversation became
“unusual” when he commented that “he had been trespassed from his
daughter’s school.” Again, Barnes’ attorney objected to these comments
and the court either sustained the objection or advised the prosecutor to
move to his next question.

              In the final jury instructions, jurors were instructed regarding
the evidence to be considered: “If the court sustained an objection to a
lawyer’s question, you must disregard it and any answer given. Any
testimony stricken from the court record must not be considered.” We
presume that the jury followed the instructions. State v. Newell, 212 Ariz.
389, 403, ¶ 68 (2006). Barnes has presented nothing showing that the
prosecutor intended to prejudice him. Moreover, he has not shown that,
absent the prosecutor’s actions and the subject witness testimony, he would
have received different verdicts. Accordingly, this argument fails.
Considering the record as a whole, and in particular the instructions given
by the trial court, the testimony elicited does not rise to the level of
prosecutorial misconduct, let alone constitute fundamental error.

       IV.    Illegal Sentences

               Barnes claims the trial court erred in considering aggravating
circumstances when it sentenced him, resulting in illegal sentences. The
State filed an allegation of a 27-year-old conviction for sentencing purposes,



                                      9
                             STATE v. BARNES
                            Decision of the Court

but the court did not consider the prior conviction as an aggravating
circumstance. The court stated it only considered the emotional effect on
Barnes’ ex-wife as an aggravating circumstance. The court considered
statements made by Barnes’ family and his lack of prior violent felony
convictions as mitigating factors. Ultimately, the court determined that
“[a]s to count 1 . . . any factors that are aggravating and any factors that are
mitigating do not outweigh each other. The Court finds that the presumed
sentence, which is the presumptive sentence is appropriate.”

                A trial court has “discretion to consider various factors related
to the offense and the offender when it imposes a sentence within the range
of punishment prescribed by the statute.” State v. Tschilar, 200 Ariz. 427,
432, ¶ 18 (App. 2001). The court sentenced Barnes to a presumptive
sentence for count 1, arson of an occupied structure, and it did not sentence
Barnes to any prison time for counts 5 or 6, attempt to commit fraudulent
schemes and artifices, and presenting a false, incomplete, or misleading
insurance claim, respectively. Barnes’ sentences are within the permissible
statutory ranges for the offenses of which he was convicted. See State v.
Myers, 117 Ariz. 79, 90 (1977) (“Within statutory limitations, the sentence is
left to the discretion of the trial judge.”).

              Barnes additionally argues that, because the court could not
consider aggravating circumstances and he presented mitigating
circumstances, he should be sentenced to mitigated sentences. A “trial
court need only consider evidence offered in mitigation; it need not find the
evidence mitigating.” State v. Long, 207 Ariz. 140, 148, ¶ 41 (App. 2004). We
have previously held that “even when only mitigating factors are found,
the presumptive term remains the presumptive term unless the court, in its
discretion, determines that the amount and nature of the mitigating
circumstances justifies a lesser term.” State v. Olmstead, 213 Ariz. 534, 535,
¶ 5 (App. 2006) (upholding a presumptive sentence where no aggravating
factors were found). The trial court did not err when it sentenced Barnes.

       V.     Review of the Record

              The record reflects Barnes received a fair trial. He was
represented by counsel or advisory counsel at all stages of the proceedings
against him and was present at all critical stages. The State presented both
direct and circumstantial evidence sufficient to allow the jury to convict
him. The jury was properly comprised of twelve members. The court
properly instructed the jury on the elements of the charges, the State’s
burden of proof, and the necessity of a unanimous verdict. The jury
returned a unanimous verdict, which was confirmed by juror polling. The


                                       10
                             STATE v. BARNES
                            Decision of the Court

court received and considered a presentence report, addressed its contents
during the sentencing hearing and imposed legal sentences for the crimes
of which Barnes was convicted.

                               CONCLUSION

             We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300. Accordingly, we affirm Barnes’
convictions and sentences.

               After the filing of this decision, defense counsel’s obligations
pertaining to Barnes’ representation in this appeal have ended. Counsel
need do no more than inform Barnes of the status of the appeal and of his
future options, unless counsel’s review reveals an issue appropriate for
petition for review to the Arizona Supreme Court. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). Barnes has thirty days from the date of this
decision to proceed, if he desires, with a pro per motion for reconsideration
or petition for review.




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




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