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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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.”
STATE v. BARNES

Decision of the Court

3

¶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 
STATE v. BARNES

Decision of the Court

4

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. 
STATE v. BARNES

Decision of the Court

5

¶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.