State v. Howell Barnes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIES AZRON HOWELL BARNES, Appellant.

No. 1 CA-CR 23-0412
FILED 06-04-2024

Appeal from the Superior Court in Apache County
Nos. S0100CR202200284
S0100CR202300022
The Honorable Michael D. Latham, Judge

AFFIRMED

COUNSEL

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

Hamblin Law Office, PLC, Eagar
By Bryce M. Hamblin
Counsel for Appellant
 STATE v. HOWELL BARNES
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.

B A I L E Y, Judge:

¶1 Aries Azron Howell Barnes appeals the superior court’s order
revoking his probation after the court found he violated a condition of
probation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the evidence in the light most favorable to affirming
the superior court’s finding of a probation violation. State v. Tatlow, 231
Ariz. 34, 39–40, ¶ 15 (App. 2012).

¶3 In February 2023, Barnes pled guilty to credit card theft, and
the superior court placed him on probation for three years (CR 2022-00284,
“first case”). That same day, he also pled guilty to third-degree burglary of
the local middle school, and the court placed him on a concurrent term of
probation for four years (CR 2023-00022, “second case”). In each case,
Barnes signed a uniform conditions of supervised probation form which
required that he “obey all criminal laws.”

¶4 In July 2023, Barnes’ probation officer petitioned to revoke his
probation in both cases, alleging that Barnes committed public sexual
indecency under Arizona Revised Statutes (“A.R.S.”) section 13-1403(A)(1).

¶5 In August 2023, the superior court held a contested revocation
hearing for the first and second cases and a contested preliminary hearing
for the § 13-1403(A)(1) violation.

¶6 The State called Police Chief Lance Spivey as a witness.
Spivey testified that in June 2023, he responded to a 9-1-1 call from the local
public swimming pool supervisor. The supervisor reported that a man at
the pool was “making inappropriate sexual-type gestures while in the
swimming pool, [and] following around the swimmers.” She identified the
man as the same person arrested for burglary at the local middle school and
reported he was wearing a fedora. Spivey had investigated the middle

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Decision of the Court

school burglary, and thus knew the supervisor was describing Barnes.
Spivey also knew that “Mr. Barnes has a fedora that he wears all the time.”

¶7 Spivey interviewed the supervisor, the on-duty lifeguard, and
other pool-goers present that day. Spivey recorded the interviews on his
body-worn camera and asked the witnesses to complete witness
statements. The supervisor and lifeguard told Spivey that a mother of a
young girl at the pool noticed Barnes engaging in concerning behavior and
notified the supervisor. The supervisor then asked the lifeguard to watch
Barnes. In his witness statement, the lifeguard reported:

While the girl was getting out and walking back toward the
board, he then started rubbing his penis over his clothes with
his left hand, while his right hand was making the gesture of
masturbating. When he was done, he swam to the other side
of the pool. I then reported what I saw to my supervisor[.]

¶8 Later that same day, Spivey saw Barnes at a Circle K. Barnes
was wearing swim trunks, which Spivey believed matched the supervisor’s
description of the trunks Barnes was wearing at the pool. Spivey
confronted Barnes with another officer, and the interaction was recorded
on the other officer’s body camera. Barnes admitted to being at the public
swimming pool earlier that day. He denied the acts the lifeguard reported
but admitted to having his hands by the waist of his swim trunks. The
officers then arrested him.

¶9 Barnes’ mother and girlfriend testified that they had not
known Barnes to be sexually inappropriate in public. Barnes also testified.
He denied the public sexual indecency allegations and stated he “put [his]
thumb on the inner part of [his] waistband to adjust it.” He also contended
he had been a “model probationer.”

¶10 After taking judicial notice of the signed uniform conditions
of supervised probation forms, the superior court found by a
preponderance of the evidence that Barnes had violated a condition of his
probation. The court revoked his probation and sentenced him to the
presumptive 1.5 years imprisonment for the first case and a concurrent term
of 2.5 years imprisonment for the second case, applying a 104 days’ credit.

¶11 Barnes timely appealed, and we have jurisdiction under
Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) and 13-4031.

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DISCUSSION

¶12 Barnes asserts the revocation hearing’s identification
procedure violated his due process rights and that insufficient evidence
supported the superior court’s finding that he violated a condition of
probation.

¶13 A probation violation hearing “does not take on the character
of a criminal prosecution when the alleged violation involves breaking a
particular law.” State v. Jurado, 157 Ariz. 215, 217 (App. 1988) (citation
omitted); see also State v. Sanchez, 19 Ariz. App. 253, 254 (1973) (“The
revocation of probation is not subject to the limitations of a formal trial.”
(citation omitted)). “[I]f there is reasonable cause to believe that a
probationer has violated a written condition or regulation of probation,” a
defendant’s probation officer may petition the court to revoke probation.
Ariz. R. Crim. P. 27.6. At a violation hearing, the superior court’s sole
inquiry is whether a preponderance of the evidence supports a finding that
the defendant violated the condition. See Ariz. R. Crim. P. 27.8(b)(3); Jurado,
157 Ariz. at 217.

¶14 As to Barnes’ argument that he was denied fair identification
procedures, he offers no legal authority supporting entitlement to certain
identification procedures in a probation violation hearing. In any event, the
record shows that Spivey identified Barnes as the man in the pool based on
his prior investigation of and interactions with Barnes. Spivey testified that
the pool supervisor identified Barnes “by a fedora and the fact that he broke
into the middle school.” When officers confronted Barnes at the Circle K,
he admitted he had been at the pool earlier that day and that while at the
pool, his hands were by his waist. And during the violation hearing, Spivey
identified Barnes in the courtroom. We reject Barnes’ arguments that he
was not properly identified.

¶15 “The purpose of the probation violation hearing is to enable
the [superior court] to determine whether there is sufficient evidence to
support a factual finding that the allegations of the petition to revoke
probation are true.” Jurado, 157 Ariz. at 216–17 (citation omitted). The State
must prove the violation by a preponderance of the evidence. Ariz. R. Crim.
P. 27.8(b)(3); Tatlow, 231 Ariz. at 233, ¶ 15. During a violation hearing, [t]he
court may receive any reliable evidence, including hearsay, that is not
legally privileged.” Ariz. R. Crim. P. 27.8(b)(3). To revoke probation, it is
enough for the superior court to have “reason to believe” that the defendant
violated the conditions of his probation or engaged in criminal practices.
See Tatlow, 231 Ariz. at 233, ¶ 15 (citation omitted).

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¶16 With few exceptions, “the revocation of probation has always
been deemed to lie within the sound discretion of the [superior] court.”
Sanchez, 19 Ariz. App. at 254 (citation omitted). We will affirm the superior
court’s ruling “unless [it] is arbitrary or unsupported by any theory of
evidence,” bearing in mind that the superior court is in the best position to
determine the credibility of witnesses. State v. Thomas, 196 Ariz. 312, 313,
¶ 3 (App. 1999) (citation omitted).

¶17 Barnes’ probation conditions required him to “obey all
criminal laws.” The revocation petition alleged that Barnes had breached
this condition by violating § 13-1403(A)(1). Under § 13-1403(A)(1), “[a]
person commits public sexual indecency by intentionally or knowingly
engaging in . . . [a]n act of sexual contact.”

¶18 Spivey testified that the pool supervisor’s 9-1-1 call was to
report that Barnes was “making inappropriate sexual-type gestures while
in the swimming pool, [and] following around the swimmers.” He read
aloud the lifeguard’s written witness statement, which Spivey said was
“probably the most detailed witness statement [he’s] ever had as a police
officer.” The lifeguard’s statement included that he saw Barnes “rubbing
his penis over his clothes with his left hand, while his right hand was
making the gesture of masturbating,” and “[w]hen he was done, he swam
to the other side of the pool.” Spivey also testified that he conducted video-
recorded interviews with other pool employees and pool-goers regarding
Barnes’ behavior, and that they completed witness statements. Barnes
admitted to the police officers that he was at the pool that day and his hands
had been by his waist.

¶19 It is “not the province” of this court to reexamine witnesses’
credibility, and we defer to the superior court’s credibility determinations.
See State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013) (citation
omitted). On this record, the superior court could properly infer that
Barnes committed an act of sexual contact. We therefore conclude that a
preponderance of the evidence supports the court’s finding that Barnes had
violated a condition of his probation.

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CONCLUSION

¶20 We affirm.

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

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