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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         ADAM BARFIELD, Appellant.

                              No. 1 CA-CR 17-0199
                                FILED 10-2-2018


            Appeal from the Superior Court in Maricopa County
                         No. CR2014-002527-002
                  The Honorable Danielle J. Viola, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Brown & Little, P.L.C., Chandler
By Matthew O. Brown
Counsel for Appellant
                           STATE v. BARFIELD
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Diane M. Johnsen joined.


C R U Z, Judge:

¶1             Adam Barfield appeals his conviction and sentence for money
laundering in the second degree. Barfield argues the superior court erred
when it: 1) denied his motion to sever; 2) denied his motion for judgment
of acquittal; 3) allowed the State to play recordings of testimony in closing
argument; and 4) determined that he could not receive presentence
incarceration credit for time he was imprisoned on a prior charge. For the
following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY1

¶2           Detectives believed that Robert McLaughlin, Stephen Lacy,
and Barfield were using a purported modeling studio, “Club Lace,” to
operate a house of prostitution. In an undercover investigation, detectives
learned that the club contained a series of private rooms where the
“models” performed sex acts for money, Lacy acted as the “hiring
manager,” and the club’s management received a split of all profits.

¶3            Detectives obtained multiple search warrants for the club,
Lacy’s home, and McLaughlin’s home, and found evidence of prostitution.
Detectives also discovered various items connecting Barfield’s name to the
club, including the contract for the ATM machine, the trade name, and the
business credit card.

¶4            During the investigation, detectives learned that Barfield was
serving a term of imprisonment in the Arizona Department of Corrections
(“DOC”). In recorded phone calls from the DOC, Barfield spoke with Lacy
and McLaughlin regarding the club’s credit card machine, ATM machine,
advertisements, door fees, and employee contracts. Barfield also spoke
with his brother, Cary Barfield (“Cary”), and told him to place money


1      We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).



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                            STATE v. BARFIELD
                            Decision of the Court

received from Lacy and McLaughlin in his prison account. DOC
documentation confirmed that Cary placed money in Barfield’s prison
account. Cary admitted to detectives that he had done so, that he suspected
the club was used for more than modeling, and he told Barfield not to accept
the money.

¶5            Two former employees admitted that they engaged in
prostitution at the club, it was structured like a “brothel,” and they worked
with multiple other women.2 They stated that Lacy and McLaughlin ran
the club and received 40 percent of all profits. One of the employees saw
Barfield’s name on the club’s business license and believed Barfield to be a
“co-owner.”

¶6           The State charged Barfield and Cary with one count of money
laundering in the second degree (Count 5); and Lacy and McLaughlin with
conspiracy to commit illegal control of an enterprise, illegal control of an
enterprise, money laundering in the first degree, and operating or
maintaining a house of prostitution (Counts 1-4).

¶7             The jury found Barfield, Lacy, and McLaughlin guilty as
charged, but found Cary not guilty. The jury found that two aggravating
factors applied to Barfield’s offense. The superior court found that Barfield
had one prior felony conviction and sentenced him to the minimum term
of 4.5 years’ imprisonment with 82 days of presentence incarceration credit.

¶8            Barfield filed a timely appeal and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).

                               DISCUSSION

    I.   Motions to Sever

¶9            Barfield argues the superior court abused its discretion when
it denied his motions to sever.

¶10            We typically review a superior court’s ruling on a motion to
sever for a clear abuse of discretion. State v. Cruz, 137 Ariz. 541, 544 (1983)
(citation omitted). If the motion to sever is not properly renewed during
trial, however, the issue is waived on appeal, Ariz. R. Crim. P. 13.4(c), and



2     A detective testified that the club was a “one-on-one establishment”
with “private rooms . . . like a brothel.”


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                            STATE v. BARFIELD
                            Decision of the Court

we review for fundamental error only. State v. Laird, 186 Ariz. 203, 206
(1996).

¶11              Barfield filed two pretrial motions to sever, arguing that his
case should be severed from that of his codefendants and his count severed
from all other counts. Barfield claimed that joinder was improper under
Arizona Rule of Criminal Procedure 13.3(a) and evidence offered on his
codefendants’ cases would unfairly prejudice his defense. The superior
court denied the motions, holding that evidence regarding the overall
operation of the club was relevant to Barfield’s case and joinder was
appropriate. The court, however, ordered the sanitization of any
statements made by Barfield’s codefendants that would be prejudicial,
cumulative, irrelevant, or barred under Bruton v. United States, 391 U.S. 123,
126 (1968). Because Barfield did not renew his motions to sever, we review
for fundamental error. See State v. Harris, 151 Ariz. 236, 238 (1986) (defining
fundamental error as “such error as goes to the foundation of the case or
takes from the defendant a right essential to the defense [or] error of such
dimensions that it cannot be said it is possible for a defendant to have had
a fair trial.”) (internal quotation and citation omitted).

¶12            None of the defendants testified at trial, and, in closing
arguments, each of them argued the State failed to prove they engaged in
or profited from an illegal business and any statements made by Cary were
coerced. On multiple occasions, the court instructed the jury to consider
the defendants’ charges, conduct, and statements as if they were tried
separately.

¶13            A joint trial is proper if evidence pertaining to the counts or
defendants would be admissible if tried separately. Ariz. R. Crim. P.
13.3(a)-(b), 13.4(b); see also State v. Murray, 184 Ariz. 9, 25 (1995). However,
severance is required if joinder would hinder a fair determination of a
defendant’s guilt or innocence. Ariz. R. Crim. P. 13.4(a). “In making this
determination, the trial court is to consider . . . any antagonism between the
respective defenses or any prejudicial impact certain evidence admitted
against one defendant may have on another.” State v. Flythe, 219 Ariz. 117,
119, ¶ 5 (App. 2008) (citation omitted). The court must also consider
whether a codefendant’s confession that inculpates another defendant is
prohibited under Bruton. 391 U.S. at 126; but see Richardson v. Marsh, 481
U.S. 200, 211 (1987) (upholding the admission of a non-testifying
codefendant’s confession if it is sanitized and a limiting instruction is
provided).




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                           STATE v. BARFIELD
                           Decision of the Court

¶14           Barfield and his codefendants presented harmonious
defenses and we find no issues regarding the cross-admissibility of the
evidence presented at trial. Barfield’s codefendants did not testify, their
statements were properly sanitized, and limiting instructions were
provided. As sanitized, the codefendants’ statements were relevant to
show the illegal nature of the business, which was an element of the charge
against Barfield. Nothing in the record indicates that joinder prevented the
jury from making a fair determination as to Barfield’s guilt. The superior
court did not commit fundamental error in denying Barfield’s motions to
sever.

 II.   Motion for Judgment of Acquittal

¶15           Barfield argues the superior court erred when it denied his
motion for judgment of acquittal based on insufficiency of the evidence. We
review a superior court’s denial of a motion for judgment of acquittal de
novo, viewing the evidence in the light most favorable to sustaining the
verdict. State v. Bible, 175 Ariz. 549, 595 (1993).

¶16           Before the verdict, Barfield moved for judgment of acquittal.
See Ariz. R. Crim. P. 20(a)(1). The superior court denied the motion, finding
the State presented substantial evidence Barfield committed the charged
offense. After the verdict, the motion was renewed and denied. See id.
(b)(1).

¶17           In determining whether the superior court properly denied a
motion for judgment of acquittal, the relevant question is whether there was
substantial evidence to support the jury’s verdict.           See id. (a)(1).
“‘Substantial evidence’ is evidence that reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt beyond
a reasonable doubt.” State v. Jones, 125 Ariz. 417, 419 (1980). We make no
distinction between direct or circumstantial evidence. See State v. Jensen,
106 Ariz. 421, 423 (1970).

¶18             A person commits money laundering in the second degree if
he “[a]cquires or maintains an interest in, transacts, transfers, transports,
receives or conceals the existence or nature of racketeering proceeds
knowing or having reason to know that they are the proceeds of an
offense.” A.R.S. § 13-2317(B)(1). “Racketeering” is defined as any act that
is chargeable under state or federal law and committed for pecuniary gain.
Id. (F)(3)(c). An “offense” is defined as conduct that is punishable by a term
of imprisonment or a fine under state or federal law. A.R.S. §§ 13-105(27),
-2317(G)(1).



                                      5
                            STATE v. BARFIELD
                            Decision of the Court

¶19           The evidence presented at trial showed that Barfield assisted
in managing the club, he and his codefendants used the club to operate a
house of prostitution, and his codefendant Cary placed money in his prison
account from club profits. The State presented sufficient evidence to
support Barfield’s conviction for money laundering. The superior court did
not err in denying the motion for judgment of acquittal.

III.   State’s Closing Argument

¶20           Barfield argues the superior court erred when it allowed the
State to play recordings of testimony from the court’s recording system,
known as “For the Record” (“FTR”), in its closing argument. Barfield
contends that the State’s ability to “cherry pick” FTR recordings placed
undue influence on particularly incriminating testimony and he could not
present his own “competing montage” in closing argument.

¶21            Because Barfield objected to the State’s closing argument at
trial, we review the superior court’s trial rulings for an abuse of discretion.
See State v. Davis, 226 Ariz. 97, 104, ¶ 11 (App. 2010). “A trial court has
broad discretion to limit the . . . scope of closing arguments.” Id. at 105,
¶ 18.

¶22           One week before the close of testimony, the State emailed all
parties a copy of the PowerPoint presentation it planned to use in closing
argument. The emailed copy contained icons “that indicated that sound
would be played.” At the close of testimony, Barfield objected to the State’s
use of FTR recordings embedded in the PowerPoint presentation, arguing
he did not have instant access to the same recordings and it left him at a
“substantial” and “tactical disadvantage.” The State argued Barfield could
have ordered his own recordings, the recordings at issue were only two
minutes in length, and playing the recordings was akin to citing to
testimony during closing argument. Overruling the objection, the superior
court stated that the State gave notice that recordings of some kind would
be used in its closing argument and Barfield had enough time to order his
own recordings.3 During closing argument, the State played a total of four




3      The court stated that it would have taken Barfield “24 hours at most”
to order and receive FTR recordings.




                                      6
                            STATE v. BARFIELD
                            Decision of the Court

short FTR recordings.4 The court instructed the jury that statements made
by counsel in closing argument were not evidence.

¶23             In criminal cases, counsel is given “wide latitude” in closing
argument, State v. Comer, 165 Ariz. 413, 426 (1990), and may “comment on
the evidence and argue all reasonable inferences therefrom.” State v.
McDaniel, 136 Ariz. 188, 197 (1983). Similarly, counsel’s use of a
demonstration is permissible if it is used to explain admitted evidence and
its probative value outweighs the danger of unfair prejudice. See State v.
King, 226 Ariz. 253, 256, ¶ 7 (App. 2011); cf. State v. Dann, 220 Ariz. 351, 363,
¶¶ 49-50 (2009). Moreover, the State is not required to provide a play-by-
play description of every item it plans to use for demonstration purposes.
See State v. Patterson, 230 Ariz. 270, 276, ¶¶ 22-24 (2012) (finding no abuse of
discretion in allowing the prosecutor to use a PowerPoint presentation
disclosed the day of closing argument).

¶24           A week prior to closings, the State notified Barfield that it
intended to use a PowerPoint presentation with audio recordings during
its closing argument. In the interim period before closing arguments,
Barfield could have asked for assistance in opening the recordings in the
State’s PowerPoint and/or ordered his own FTR recordings. Moreover, the
recordings were only two minutes in length, and on appeal, Barfield does
not describe the substance of any of the testimony they contained. The
record does not show that the State’s use of FTR recordings as a tool for
commenting on the evidence during closing argument caused Barfield
unfair prejudice. Thus, we find no abuse of discretion.

IV.    Presentence Incarceration Credit

¶25         Barfield contends that the superior court erred when it
determined that, pursuant to A.R.S. § 13-711(B), he could not receive
presentence incarceration credit for time he was incarcerated on his
undischarged term of imprisonment in a prior case.

¶26           A superior court’s imposition of a statutorily permissible
sentence will not be disturbed absent a clear abuse of discretion. State v.
Bojorquez, 111 Ariz. 549, 557 (1975).

¶27          When the State filed charges in this case, Barfield was serving
a term of imprisonment in Maricopa County Superior Court cause number

4     The State’s PowerPoint presentation with the FTR recording was not
included in the record on appeal. However, it does not appear that the
recordings specifically focused on Barfield.


                                       7
                             STATE v. BARFIELD
                             Decision of the Court

CR2007-112319-001 (“2007 case”). After the State filed charges, Barfield was
transported from the DOC to the county jail and release conditions were
set. Over one year later, Barfield completed his term of imprisonment in
the 2007 case and was released on bail. After the verdict, the superior court
revoked Barfield’s bail and ordered him into custody to await sentencing.
Almost two months later, the court sentenced Barfield to 4.5 years’
imprisonment with 82 days of presentence incarceration credit.5 The court
determined that Barfield was only entitled to credit for time spent in
custody after his release date in the 2007 case. The court reasoned that
A.R.S. § 13-711(B) applied, requiring the undischarged term of
imprisonment in the 2007 case to run consecutively to the sentence in this
case.

¶28          The State concedes that A.R.S. § 13-711(B) does not apply to
the sentence in this case because Barfield already completed the term of
imprisonment in the 2007 case before he was sentenced in this case. We
agree. Thus, Barfield did not have an undischarged term of imprisonment
and A.R.S. § 13-711(B) did not apply. We further agree with the State,
however, that the superior court reached the proper outcome.

¶29            Pursuant to A.R.S. § 13-712(B), a defendant is entitled to credit
for “[a]ll time actually spent in custody pursuant to an offense.” We have
held that a defendant who commits a new offense while serving a term of
imprisonment in a prior case can only receive incarceration credit from the
earliest release date in the prior case. See, e.g., State v. Verdugo, 180 Ariz.
180, 186 (App. 1993); State v. Bridgeforth, 156 Ariz. 58, 59-60 (App. 1986); State
v. San Miguel, 132 Ariz. 57, 60-61 (App. 1982).

¶30            Barfield was only entitled to credit for time spent in custody
after his release date in the 2007 case. Although the superior court
incorrectly applied A.R.S. § 13-711(B) to the sentence, it did not abuse its
discretion in calculating Barfield’s presentence incarceration credit.




5       The court incorrectly added the day of sentencing to Barfield’s
presentence incarceration credit. “[W]e will not correct sentencing errors
that benefit a defendant, in the context of his own appeal, absent a proper
appeal or cross-appeal by the state.” State v. Kinslow, 165 Ariz. 503, 507
(1990).


                                        8
                        STATE v. BARFIELD
                        Decision of the Court

                           CONCLUSION

¶31         For the foregoing reasons, we affirm the conviction and
sentence.




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




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