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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        DAMIEN BARNES, Appellant.

                             No. 1 CA-CR 16-0059
                               FILED 3-2-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-001963-001
               The Honorable Michael D. Gordon, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
                              STATE v. BARNES
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.


N O R R I S, Judge:

¶1            Appellant Damian Barnes appeals from his conviction and
sentence for third-degree burglary, a class four felony. On appeal, Barnes
argues that the superior court, over his objection and without evidentiary
basis, improperly instructed the jury on voluntary intoxication as follows:

              It is no defense that the defendant was not
              aware of the existence of conduct—or
              circumstances solely because of voluntary
              intoxication.

(the “voluntary intoxication instruction”). We agree with Barnes the
superior court should not have given the voluntary intoxication instruction
because there was no evidentiary basis for it. On this record, however, the
voluntary intoxication instruction was harmless.

              FACTS AND PROCEDURAL BACKGROUND

¶2             At trial, the victim testified in the State’s case-in-chief that on
November 15, 2013, he drove his truck to 7th Street and Indian School Road
to give his employees their paychecks. He was giving his employees their
checks when one of his employees told him someone was in his truck. At
that point, the victim and his employee told the man to get out of the truck,
which the man did. After the man got out of the truck, the victim called 9-
1-1 and described the man who had been in his truck to the 9-1-1 operator.
Two police officers detained Barnes near the scene because he matched the
description the victim gave to the 9-1-1 operator. A third police officer
drove the victim to where the police had detained Barnes and the victim
positively identified Barnes as the man who had been in his truck. When
the prosecutor asked the victim whether he had any doubt in his mind that
the man he identified near the scene was the same person who had been in
his truck, the victim responded, “It was him, yeah. He was—he was pretty
high, yeah.”




                                        2
                            STATE v. BARNES
                           Decision of the Court
¶3            Through counsel, Barnes immediately objected and the court
sustained the objection, struck the comment “he was pretty high” and
instructed the jury not to consider the comment for any purpose. Shortly
after, a juror submitted a question asking, “Was there any substance
(alcohol or otherwise) that could have potentially clouded the
defend[a]nt[’]s judgment or caused confusion?” The court did not pose the
juror’s question to any of the trial witnesses.

¶4            After the close of evidence, when the court and counsel were
settling the jury instructions, the prosecutor, pointing to the victim’s
comment, “he was pretty high,” and the juror’s question, asked the court to
give the voluntary intoxication instruction because he was concerned the
jury might find Barnes not guilty if it speculated Barnes was under the
influence and then incorrectly concluded intoxication was a defense.
Barnes’s counsel conceded the voluntary intoxication instruction would not
prejudice Barnes but objected to the instruction because there was no
evidence of intoxication and, given this, the instruction would confuse the
jury. Barnes’s counsel also filed a written objection to the voluntary
intoxication instruction and requested the court give an involuntary
intoxication instruction if it instructed the jury on voluntary intoxication.
The court decided to give the voluntary intoxication instruction, but did not
give the involuntary intoxication instruction.

¶5            In its closing rebuttal, the State discussed the voluntary
intoxication instruction:

             It is no defense that the defendant was not
             aware of the existence of conduct or
             circumstances solely because of voluntary
             intoxication. That’s not a defense . . . .

Barnes’s counsel objected and moved for a mistrial but after a brief bench
conference, the court overruled the objection and allowed the State to
continue:

             [I]f I commit a crime or if anyone commits a
             crime, if they’re under the influence, that is not
             a defense as the judge has told you.

The jury convicted Barnes of third-degree burglary.

                              DISCUSSION

¶6           As Barnes argued in the superior court, neither party
presented evidence of intoxication at trial and the court struck the victim’s


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                             STATE v. BARNES
                            Decision of the Court
comment about intoxication and ordered the jury to disregard it. Generally,
jury instructions must be predicated on a theory that can be found in the
evidence and, if not, the instruction should not be given. State v. McIntyre,
106 Ariz. 439, 445, 477 P.2d 529, 535 (1970) (citation omitted). Accordingly,
the court should not have given the voluntary intoxication instruction.

¶7            Because Barnes objected to the voluntary intoxication
instruction, we apply harmless error analysis. See State v. Henderson, 210
Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005); State v. Dann, 205 Ariz. 557,
565, ¶ 18, 74 P.3d 231, 239 (erroneous jury instruction subject to harmless
error review) (citation omitted). An error is harmless if we can conclude,
beyond a reasonable doubt, that the error did not affect the jury’s verdict.
Id. Based on the record before us, we reach that conclusion here.

¶8             First, the court instructed the jury at the beginning of the case,
and again in its final jury instructions, that it was only to consider the
evidence presented in court and was not to consider any evidence stricken
from the court record. The court also instructed the jury that as it
determined the facts, it might find that some instructions were no longer
applicable and, in that situation, it would need to consider the instructions
that were applicable together with the facts it found existed. These
instructions, taken together and considered in context, informed the jury
that it was entitled to disregard inapplicable instructions and was not to
render a guilty verdict based on facts not supported by the evidence. Our
supreme court has instructed that we are to presume juries follow their
instructions. State v. Manuel, 229 Ariz. 1, 6, ¶ 24, 270 P.3d 828, 833 (2011)
(citation omitted). Accordingly, we must presume the jury found that the
voluntary intoxication instruction was inapplicable and, further, found
Barnes guilty based only on facts supported by the evidence.

¶9             Second, the voluntary intoxication instruction did not suggest
to the jury, as Barnes argues on appeal, that he was, in fact, “high and,
therefore, likely to have intended to steal the truck.” Instead, the voluntary
intoxication instruction, along with the other instructions given by the court
regarding “intent” and “knowingly,” simply informed the jury that a
defendant may not rely on voluntary intoxication to dispute that he was
unaware of his conduct or the circumstances.

¶10           Third, the voluntary intoxication instruction did not suggest
to the jury that the superior court judge believed Barnes was intoxicated
and, consequently, the jury should believe that Barnes was intoxicated.
Instead, as discussed above, the instruction informed the jury that a
defendant may not rely on voluntary intoxication to dispute that he was
unaware of his conduct or the circumstances.


                                       4
                              STATE v. BARNES
                             Decision of the Court
¶11             Further, contrary to Barnes’s argument, the facts in this case
are not at all similar to the facts presented in Glenn v. Chenowth, 71 Ariz. 271,
226 P.2d 165 (1951). In Glenn, the plaintiff sued the defendant and accused
him of unlawfully and wantonly attacking him. Id. at 272, 226 P.2d at 166.
The supreme court held the superior court should not have instructed the
jury that a person ordinarily has no duty to retreat when attacked because
neither party relied on self-defense. Id. at 273, 226 P.2d at 166. The supreme
court also explained the instruction may have suggested to the jury that the
trial judge had concluded the defendant was the attacker even though the
trial evidence demonstrated the plaintiff had been the first party to “square
off” and had not been surprised by the defendant’s actions. Id. at 273, 226
P.2d at 167. Thus, the court concluded the instruction could have affected
the jury’s consideration of the evidence. Id. That, however, is not the
situation here. As discussed, the voluntary intoxication instruction did not
suggest to the jury that the superior court had made a factual finding that
Barnes was intoxicated when he entered the victim’s truck.

¶12            Finally, the State presented overwhelming evidence of
Barnes’s guilt. See State v. Carbajal, 128 Ariz. 306, 309, 625 P.2d 895, 898
(1981). As discussed above, the victim and one of his employees saw Barnes
in the victim’s truck. The victim testified he did not know Barnes before the
incident, thus implying Barnes did not have permission to be in his truck.
The victim positively identified Barnes shortly after the officers had
detained him, and the victim’s employee testified at trial that he saw Barnes
holding keys when he was in the victim’s truck.

                                CONCLUSION

¶13          For the foregoing reasons, therefore, we affirm Barnes’s
conviction and sentence for third-degree burglary.




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




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