Anatomy of an arson conviction

An Arizona appellate court has affirmed a defendant’s conviction for arson of an occupied structure. The decision illustrates the kinds of steps that the authorities take when investigating a suspected arson and the evidence that prosecutors can use to persuade a jury that the defendant is guilty.

The case

In the early morning hours of Jan. 25, 2016, a 911 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 led to a vacant property also was open.

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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 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 the investigation, fire investigators concluded that the fire had been deliberately set.

Investigators determined that the home belonged to Patrick Daniel Barnes and his ex-wife. A court had ordered the sale of the home in connection with divorce proceedings. The proceeds of the sale were to be split 25% to Barnes and 75% 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.

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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 canister 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 had purchased the linseed oil for a friend who did 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 Jan. 24, 2016, at 2:28 p.m., approximately 12 hours before the arson. The surveillance also showed Barnes getting into a white Chevy 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 felony; and
• Count 6, presenting a false, incomplete, or misleading insurance claim, a class 6 felony.

Prosecutors filed an allegation of prior convictions for sentencing purposes.

The case proceeded to an eight-day trial. After the prosecution’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 sentenced Barnes to a presumptive term of 10.5 years’ imprisonment for count 1; three years’ probation for count 5; and three 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. It ordered him to pay $170,262.31 to the insurance company and $10,255.86 to his ex-wife.

Barnes appealed, arguing among other things that the evidence was not sufficient to find him guilty.

The appellate court’s decision

The appellate court affirmed.

In its decision, the appellate court explained that, with respect to Barnes’ conviction on count 1, a person committed “arson of an occupied structure by knowingly and unlawfully damaging an occupied structure by knowingly causing a fire.” The appellate court added that an “occupied structure” was any building in which one or more human beings either was or was likely to be present or so near as to be in equivalent danger at the time the fire occurred.

The appellate court ruled that prosecutors had presented sufficient evidence for the jury to convict Barnes of arson of an occupied structure.

It reasoned that:

• Cell phone data that demonstrated that 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;
• 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; and
• Even if no one was in the home at the time of the fire, prosecutors had presented testimony that someone was likely to be present or in such proximity as to be in danger.

The appellate court also found sufficient evidence to affirm Barnes’ conviction on the other counts. It explained that:

• 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; and
• 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.

After rejecting Barnes’ contention that the statute under which he was convicted of arson of an occupied structure was vague, overbroad, and violative of the Due Process Clause of the Fourteenth Amendment, the circuit court affirmed Barnes’ conviction.

The case is State v. Barnes, Nos. 1 CA-CR 17-0171, 1 CA-CR 17-0500 (Ariz. Ct.App. Aug. 30, 2018).

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Steven A. Meyerowitz, Esq., (smeyerowitz@meyerowitzcommunications.com) is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc.