State v. Brooks

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 15-0227
FILED 3-8-2016

Appeal from the Superior Court in Maricopa County
No. CR2013-440567-001
The Honorable Alfred M. Fenzel, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant

Damien Eugene Brooks, Tucson
Appellant
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MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.

T H U M M A, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Damien
Eugene Brooks has advised the court that, after searching the entire record,
counsel has found no arguable question of law and asks this court to
conduct an Anders review of the record. Brooks was given the opportunity
to file a supplemental brief pro se, and has done so. This court has reviewed
the record and has found no reversible error. Accordingly, Brooks’
convictions and resulting sentences are affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 In August 2013, Brooks and a woman entered a Kohl’s
Department Store in Glendale. Loss prevention staff became suspicious
because the pair carried an empty backpack and placed expensive jeans and
shoes, as well as other high-theft items, in a courtesy bag. Loss prevention
staff monitored Brooks’ behavior from the store’s security office using
closed-circuit television cameras. After filling the courtesy bag with more
than $600 worth in merchandise, Brooks left the store with the bag and
without paying for the merchandise.

¶3 After seeing Brooks leave the store without paying for the
merchandise, M.B.2 and two other loss prevention officers left the security
office to apprehend Brooks. They caught up with Brooks in the parking lot
and identified themselves as Kohl’s loss prevention officers. Brooks turned
towards M.B., pulled out a knife and said, “I got something for you.” M.B.

1This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588-89 (1997).

2Initials are used to protect the victims’ privacy. State v. Maldonado, 206
Ariz. 339, 341 n.1 ¶ 2 (App. 2003).

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and the others then backed away from Brooks, and Brooks dropped the bag
of merchandise and ran away.

¶4 Brooks ran into the street, heading for a car that was stopped
at a traffic signal. A.T., the driver of the car, saw Brooks coming towards
her and locked her doors. Brooks approached A.T.’s door, holding the knife
where A.T. could see it, and tried to open A.T.’s door. When Brooks was
unable to open the locked door, he began pounding on the roof of the car.
Frightened by Brooks, A.T. began driving her car forward against the traffic
signal.

¶5 Brooks then ran across the street and into the parking lot of a
nearby bank. As Brooks rounded the building to the rear of the bank, he
saw a car with its door open at the drive-up ATM. Brooks ran at the car with
his knife in his hand and yelled, “Get out of the car. Get out of the car now.”
After recovering from the initial scare of being told at knife-point to get of
her car, T.S., the owner and driver of the car, grabbed her purse and got out
of her car. Brooks immediately got in the car and drove away.

¶6 A short while later, a Phoenix police officer spotted the stolen
car. The officer pulled behind the stolen car and activated her lights and
siren, but Brooks refused to pull over. After a short chase, Brooks lost
control and rolled the stolen car while trying to evade police. Brooks was
arrested at the scene and police found a knife in his possession.

¶7 Brooks was charged with three counts of aggravated assault,
Class 3 dangerous felonies; shoplifting with an artifice or device, a Class 4
felony; attempted armed robbery, a Class 3 dangerous felony; armed
robbery, a Class 2 dangerous felony; and theft of a means of transportation,
a Class 3 felony. The superior court appointed counsel for Brooks, but
Brooks expressed concerns with his representation. Brooks moved for new
counsel, claiming his original attorney was ineffective. The court granted
the motion and replaced his original attorney with a second attorney.
Approximately two months later, Brooks again moved for new counsel,
claiming his second attorney had “done nothing” and “told [Brooks] he was
guilty.” After two more motions for change of counsel, the court granted
the motion and replaced his second attorney with a third attorney, who
represented Brooks through the remainder of the case. During that time,
Brooks submitted three separate motions for his third attorney to be
replaced because she did not meet with him often enough, did not submit
motions Brooks felt would benefit him, and did not ask trial witnesses
questions Brooks suggested. With his third motion to replace his third
attorney, filed after trial, Brooks also filed a complaint with the State Bar of

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Arizona and claimed that complaint created a conflict of interest. The
superior court denied Brooks’ motions to have his third attorney replaced.

¶8 The State withdrew the theft of a means of transportation
charge, but Brooks was convicted at trial of the remaining six charges. At
sentencing, the superior court found the State had proven that Brooks had
six prior felony convictions. At the State’s request, the court did not
sentence Brooks under the dangerous offenses statutes, although the jury
had found Brooks guilty of dangerous crimes. Rather, the court sentenced
Brooks for non-dangerous offenses as a category three repetitive offender.
See Ariz. Rev. Stat. (A.R.S.) § 13-703 (2016).3 The court sentenced Brooks to
presumptive prison sentences of 11.25 years for counts 1, 3, 4 and 6; 10 years
for count 2; and 15.75 years for count 5. Sentences for counts 1, 2, 3 and 4
were imposed concurrently with each other, with 577 days of presentence
incarceration credit, while sentences for counts 5 and 6 were imposed
concurrently with each other but consecutive to the sentences for counts 1
through 4. After a hearing, the superior court ordered Brooks to pay
restitution in the amount of $250 to T.S. and $15,611.93 to T.S.’s insurance
company. Brooks timely appealed his convictions and resulting sentences
and restitution. This court has jurisdiction pursuant to A.R.S. §§ 12–
120.21(A)(1), 13-4031, and -4033.

DISCUSSION

¶9 This court has reviewed and considered counsel’s brief and
appellant’s pro se supplemental brief and has searched the entire record for
reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999).
Searching the record and briefs reveals no reversible error. The record
shows Brooks was represented by counsel at all relevant stages of the
proceedings. The evidence admitted at trial constitutes substantial evidence
supporting Brooks’ convictions. From the record, all proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure.
The sentences imposed were within the statutory limits and permissible
ranges. Brooks raises several arguments in his pro se supplemental brief,
which this court addresses in turn.

I. Sufficient Evidence Supported Brooks’ Convictions.

¶10 Brooks argues that his convictions for aggravated assault,
armed robbery and attempted armed robbery were improper because he

3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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never injured anyone or verbally threatened the victims. On appeal, this
court looks for “substantial evidence from the entire record from which a
rational trier of fact could have found guilt beyond a reasonable
doubt.” State v. Routhier, 137 Ariz. 90, 99 (1983). “Substantial evidence is
evidence that reasonable persons could accept as sufficient to support a
guilty verdict beyond a reasonable doubt.” State v. Cox, 217 Ariz. 353, 357 ¶
22 (2007) (citation omitted). If “viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt,” substantial
evidence supports the conviction. Id. at 357 ¶ 22 (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).

¶11 Evidence at trial showed that Brooks pulled out a knife then
said to M.B., “I got something for you.” He then ran at A.T., still
brandishing the knife, tried to open her car door and then pounded on the
roof of her car. Finally, he yelled at T.S. to get out of her car while still
holding the knife where T.S. could plainly see it. All of the victims testified
they were scared by the knife. On this record, sufficient evidence existed to
support the jury’s verdicts.

¶12 Brooks also claims T.S. “perjured” herself because her trial
testimony did not exactly match the statement she gave to police. Brooks,
however, cross-examined T.S. regarding these alleged inconsistencies and
it is for the jury, not for this court, to assess the credibility of witnesses. See
State v. Roberts, 139 Ariz. 117, 121 (App. 1983). Moreover, this court will not
reweigh evidence on appeal. State v. Rodriquez, 205 Ariz. 392, 397 ¶ 18 (App.
2003).

II. Brooks’ Sentences Do Not Constitute Cruel And Unusual
Punishment.

¶13 Brooks claims, without any supporting authority, that a 25-
year prison sentence is considered a life sentence in Arizona, that his
punishment is disproportionate to his crimes and accordingly violates the
Eighth Amendment to the United States Constitution. The Eighth
Amendment “’does not require strict proportionality between crime and
sentence’ but instead forbids only extreme sentences that are ‘grossly
disproportionate to the crime.’” State v. Berger, 212 Ariz. 473, 476 ¶ 13 (2006)
(quoting Ewing v. California, 538 U.S. 11, 23 (2003)). To determine whether a
sentence is so lengthy as to be cruel and unusual under the Eighth
Amendment, this court “first determines if there is a threshold showing of
gross disproportionality by comparing the gravity of the offense and the
harshness of the penalty.” Id. at 476 ¶ 12 (citation omitted). “A prison

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sentence is not grossly disproportionate, and a court need not proceed
beyond the threshold inquiry, if it arguably furthers the State’s penological
goals and thus reflects a rational legislative judgment, entitled to
deference.” Id. at 477 ¶ 17 (citation omitted). A sentencing enhancement
based on repeat offenses has the legitimate penological goal of
“incapacitating and deterring recidivist felons.” Ewing, 538 U.S. at 29. Given
these legitimate interests evidenced by statutory enactments, Brooks has
not shown his presumptive 15.75-year sentence set to run consecutive to his
11.25-year presumptive sentence is cruel and unusual under the Eighth
Amendment.

III. The Superior Court Did Not Violate Brooks’ Sixth Amendment
Right to Counsel.

¶14 Brooks argues the superior court violated his Sixth
Amendment right to counsel by denying his motions to change counsel.
This court reviews the denial of a request to substitute counsel for an abuse
of discretion. See Martel v. Clair, 132 S. Ct. 1276, 1287 (2012). Brooks does not
specify how the superior court’s denial violated his rights, but instead lists
a number of court cases without explaining how they apply or showing
how the superior court abused its discretion. Brooks has not shown that his
attorney was impeded by a conflict of interest, or by prejudice or bias, or
that there was a breakdown of communication they could not overcome.
Moreover, because Brooks had already expressed dissatisfaction with all
three attorneys appointed for him, there was reason for the superior court
to believe that the appointment of yet another attorney would not resolve
the issues Brooks raised. Brooks has not shown that the court abused its
discretion in refusing to appoint a fourth attorney.

IV. Brooks’ Rights Under The Fifth Amendment Due Process Clause
Were Not Violated.

¶15 Brooks argues his due process rights were violated because
officers testified before the grand jury that Brooks pounded on A.T.’s
window with his knife and physically pulled T.S. out of her car although
the statements those victims gave officers did not reflect those details.
Brooks claims his rights were further violated because the prosecutor had a
duty to notify the court of the perjury and did not do so.

¶16 Procedurally, Brooks failed to timely press this argument
with the superior court. See Ariz. R. Crim. P. 12.9(a). Substantively, Brooks
has failed to show that any erroneous evidence provided to the grand jury
was material. See A.R.S. § 13-2701(1). Although A.T. did not testify that

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Brooks pounded on her window with a knife, she did testify that she saw
him running at her with a knife, that he tried to open her door and then
pounded on her roof. Those facts are sufficient to support the charges
involving A.T. Similarly, although T.S. did not testify that Brooks pulled
her out of the car, she did testify that Brooks told her to get out of her car at
knife point. Again, those facts are sufficient to support the charges
involving T.S. Had the officers recounted the details of the victims’
statements to the grand jury exactly as they testified at trial, that evidence
was sufficient to support the relevant charges. Accordingly, Brooks has
shown no due process violation.

V. The Superior Court Did Not Give An Erroneous Jury Instruction.

¶17 On the aggravated assault charges, the superior court
instructed the jury that the “crime of assault requires the proof that the
defendant intentionally put another person in reasonable apprehension of
imminent physical injury” and “was aggravated by the defendant using a
dangerous instrument.” Citing Territory v. Hancock, Brooks asserts the court
was required to instruct the jury that to be guilty of aggravated assault, the
defendant must act “with a premeditated design.” 4 Ariz. 154, 155 (1894).
Hancock, however, was issued before the adoption of Arizona’s criminal
code and was interpreting a superseded penal code provision that defined
aggravated assault as acting “with a premeditated design.” Id. Brooks was
convicted under A.R.S. §§ 13-1203-04, which has no such premeditation
requirement. The language used in the jury instruction was accurate and
reflects the statutory requirements applicable to these charges.
Accordingly, the jury instruction on aggravated assault was not erroneous.

VI. The Superior Court Did Not Err In Ordering Brooks to Pay
Restitution.

¶18 Brooks argues that his accomplice should be responsible for
half of the restitution amount, meaning the court erred in ordering him to
pay $15,861.93 in restitution. “If more than one defendant is convicted of
the offense that caused the loss, the defendants are jointly and severally
liable for the restitution.” A.R.S. § 13-804(F). A defendant “may be held
responsible for all of the damage or loss caused to a victim where criminal
conduct was undertaken in concert with others.” State v. Lewis, 222 Ariz.
321, 327 ¶ 18 (App. 2009) (citation omitted). Accordingly, Brooks has shown
no error in the restitution order.

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VII. Brooks’ Sentences Do Not Constitute Double Punishment.

¶19 Brooks argues that his convictions on count 3, attempted
armed robbery against A.T., and count 4, aggravated assault against A.T.,
and resulting concurrent sentences violate the prohibition of double
punishment in A.R.S. § 13-116. He makes the same argument for his
convictions and concurrent sentences on count 5, armed robbery against
T.S., and count 6, aggravated assault against T.S. An “act or omission which
is made punishable in different ways by different sections of the laws may
be punished under both, but in no event may sentences be other than
concurrent.” A.R.S. § 13-116. Because the relevant convictions were under
different sections of the law and the relevant sentences were concurrent --
counts 3 and 4 as to A.T. and counts 5 and 6 as to T.S. -- Brooks has shown
no violation of A.R.S. § 13-116.

VIII. Brooks Was Not Sentenced Under An Ex Post Facto Law.

¶20 The United States Constitution prohibits Congress or any
state from passing any “ex post facto law.” Art. I § 9 cl. 3. An ex post facto
law is one that makes illegal, or increases the punishment for, conduct that
was taken before the passing of the law. See Lynce v. Mathis, 519 U.S. 433,
441 (1997). Brooks does not argue that the law was changed after he
committed the acts for which he was convicted. Instead he argues the State
violated his rights by electing to sentence him as a repeat offender under
A.R.S. § 13-703, rather than as a first time dangerous offender under A.R.S.
§ 13-704. Because Brooks was sentenced under A.R.S. § 13-703 as it existed
at the time of his offenses, he has shown no ex post facto violation.
Moreover, the superior court properly may select between the dangerous
and repetitive sentencing schemes for sentencing where both properly
apply to a defendant. State v. Trujillo, 227 Ariz. 314, 322 ¶ 37 (App. 2011).

CONCLUSION

¶21 This court has read and considered counsel’s brief and
Brooks’ pro se supplemental brief and has searched the record provided for
reversible error and has found none. Leon, 104 Ariz. at 300; Clark, 196 Ariz.
at 537 ¶ 30. Accordingly, Brooks’ convictions and resulting sentences are
affirmed.

¶22 Upon filing of this decision, defense counsel is directed to
inform Brooks of the status of his appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Brooks

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shall have 30 days from the date of this decision to proceed, if he desires,
with a pro se motion for reconsideration or petition for review.

:ama

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