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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     BRANDY LEE BRENTS, Appellant.

                             No. 1 CA-CR 16-0506
                               FILED 8-31-2017


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201400846
            The Honorable Donna J. Grimsley, Judge, Retired

                                  AFFIRMED


                                   COUNSEL

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

Coronado Law Firm, PLLC, Lakeside
By Kai M. Henderson, Eduardo H. Coronado
Counsel for Appellant
                            STATE v. BRENTS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Peter B. Swann joined.


J O H N S E N, Judge:

¶1            Brandy Lee Brents appeals his convictions and sentences for
three counts of aggravated assault. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Shortly after midnight one night in October 2014, Navajo
County Jail officers responded to a report that Brents had threatened to
injure a fellow inmate.1 After defusing the situation and "calm[ing] [Brents]
down," the officers left Brents in his cell. Approximately an hour later, one
of the officers received a report that Brents had covered his cell window
with paper, obscuring officers' view inside his cell. Because jail personnel
are required to periodically check on inmates to ensure their welfare,
several officers asked Brents to remove the window covering. Rather than
comply, Brents threatened to harm anyone who entered his cell.

¶3             Given this threat, officers assembled to open Brents's cell
door. When they entered, they saw Brents was holding a blanket in front
of him and standing "in a boxing stance." Upon seeing the officers, Brents
dropped the blanket and "started swinging," striking Officer J.T.'s face with
a closed fist. After hitting J.T., Brents swung at Officer J.L. J.L. dodged
Brents's punches, grabbed his neck, and placed him in a headlock. Brents
still managed to strike J.L.'s head with a closed fist, injuring him. At that
point, J.T. used a Taser on Brents, and he immediately became compliant.

¶4             The State charged Brents with three counts of aggravated
assault. The first charge alleged he intentionally, knowingly or recklessly
caused physical injury to J.L. while knowing or having reason to know he
was acting in his official capacity as an employee of the Navajo County Jail.
The other two charges alleged Brents knowingly touched J.L. and J.T. with
the intent to injure, insult or provoke while knowing or having reason to


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


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                            Decision of the Court

know each was an employee of the Navajo County Jail acting in an official
capacity. The State also alleged Brents had historical prior felony
convictions.

¶5            Taking the stand in his own defense, Brents testified he had
covered his cell window for privacy because a detention officer had taunted
him and because he wanted privacy. According to Brents, when the officers
entered his cell shortly thereafter, he asked, "What's going on?" and the
officers immediately "attacked" him, repeatedly hitting his face and chest.
He said that once he was shot with the Taser, he fell to the floor. On cross-
examination, the prosecutor asked Brents about a jail altercation he had
with two officers two years before. Brents acknowledged that in that earlier
incident, he had claimed the officers struck his face and choked him, and
admitted that a jail video recording proved those allegations false.

¶6             After a two-day trial, the jury convicted Brents of all three
charges. The superior court found Brents had two historical prior felony
convictions and sentenced him to presumptive concurrent five-year terms
of incarceration. Brents timely appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2017), 13-
4031 (2017), and -4033(A)(1) (2017).2

                               DISCUSSION

A.     Alleged Double Jeopardy Violation.

¶7           Brents contends the two aggravated-assault convictions
concerning J.L. violated the constitutional proscription against double
jeopardy.

¶8            As charged in this case and set forth in A.R.S. § 13-1203 (2017),
a person commits assault under subsection (A)(1) by intentionally,
knowingly or recklessly causing physical injury to another person, or,
under subsection (A)(3), by knowingly touching another person with the
intent to injure, insult or provoke such person. Conduct violating either
subsection constitutes an aggravated assault when the perpetrator is
imprisoned in a county jail and knows or has reason to know that the victim
is acting in an official capacity as an employee of the jail. A.R.S. § 13-
1204(A)(10) (2017).



2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


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¶9             The Double Jeopardy Clause protects against multiple
punishments for the same offense. State v. Jurden, 239 Ariz. 526, 529, ¶ 10
(2016). This protection "may be triggered . . . if the same conduct is held to
constitute a violation of two different criminal statutes." Id. When the same
act "constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not."
Blockburger v. United States, 284 U.S. 299, 304 (1932).

¶10           Here, Brents argues that under Blockburger, the State
presented evidence that he touched J.L. only once, and contends that a
single contact cannot support convictions under both aggravated assault
subsections. The evidence at trial, however, contained evidence sufficient
to support convictions based on separate contacts by Brents with J.L.
Evidence that Brents punched J.L. plainly satisfied his conviction under §
13-1203(A)(1). In addition to punching J.L., Brents also struggled
vigorously with J.L. as the officer sought to pull him to the floor of his cell.
In struggling against J.L., Brents was so forceful that officers needed to
deploy a Taser to subdue him. Viewing the record in the light most
favorable to sustaining the verdicts, footnote 1 supra, the jury reasonably
could have concluded that Brents's continued struggle with J.L. constituted
a touching in violation of A.R.S. § 13-1203(A)(3).

B.     Admission of Other-Act Evidence.

¶11          Brents next argues the superior court improperly admitted
evidence of other acts in violation of Arizona Rules of Evidence 403 and
404.

¶12           Before trial, the State moved in limine to introduce evidence
that Brents previously "threatened" and "attacked" detention officers "in
order to prove [Brents's] intent to harm detention officers" in the 2014
incident and to rebut Brents's noticed claim of self-defense. At an
evidentiary hearing on the motion, Brents argued the jury might
improperly view the prior acts as character evidence and urged the court to
preclude the evidence as unfairly prejudicial. In the alternative, he
requested a limiting instruction. The court granted the State's motion,
concluding that the other acts were admissible to prove Brents's intent and
to disprove his claim of self-defense, and that the probative value of the
other-act evidence outweighed any attendant prejudice.

¶13           At trial, J.L. testified that while Brents was jailed in 2013,
detention officers entered his cell to conduct a welfare check because he had



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                             STATE v. BRENTS
                            Decision of the Court

threatened suicide. According to J.L., as they entered, Brents "became
combative," bit one of the officers, disarmed another officer of his Taser,
pointed the Taser at J.L., and kicked J.L. in the face. In addition, a sergeant
testified that during an occasion earlier in 2014 in which Brents had covered
his cell window, when officers entered to remove the covering, Brents used
his mattress as a shield and engaged in an "altercation" with the officers.
Finally, two officers testified that on another occasion in 2014, when several
officers attempted to move Brents for safety reasons, Brents refused to
comply, threatened to assault the officers, and attempted to bite and kick
them.

¶14          In its final instructions to the jury, the superior court
addressed this evidence:

       You have heard evidence that the Defendant was involved in
       acts on dates other than October 4th, 2014. This evidence is
       admitted only for the limited purposes of helping you
       determine whether the Defendant acted with the intent as to
       the alleged crimes of October 4th, 2014, and helping you
       determine whether the Defendant acted in self-defense on
       October 4th, 2014. Therefore you must consider it only for
       those limited purposes and not for any other purpose.

¶15           We review a superior court's ruling on a motion in limine for
abuse of discretion. State v. Gamez, 227 Ariz. 445, 449, ¶ 25 (App. 2011). We
also review a court's admission of other-act evidence for abuse of discretion.
State v. VanWinkle, 230 Ariz. 387, 392, ¶ 18 (2012).

¶16            "Although evidence of a person's character generally is not
admissible to show conduct in conformity therewith, Ariz. R. Evid. 404(a),
evidence of other acts may be admissible under Rule 404(b) to show 'proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.'" VanWinkle, 230 Ariz. at 393, ¶ 21 (quoting
Ariz. R. Evid. 404(b)). Before admitting other-act evidence, the court must
find that the evidence is offered "for a proper purpose under Rule 404(b), is
relevant under Rule 402, and that its probative value is not substantially
outweighed by the potential for unfair prejudice under Rule 403." State v.
Mott, 187 Ariz. 536, 545 (1997). The court also must provide an appropriate
limiting instruction if requested under Rule 105. Id.

¶17             When a defendant claims to have acted in self-defense, the
State is "entitled to present evidence of other indiscriminate acts of violence
to rebut this claim." VanWinkle, 230 Ariz. at 393, ¶ 22 (evidence that



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                             STATE v. BRENTS
                            Decision of the Court

defendant previously "attacked others at the jail facility without
justification supported the State's argument that [the defendant] did not act
in self defense" when he committed the charged act). Likewise, the State
may present other-act evidence to show the defendant acted with intent. Id.

¶18            Applying these principles here, Brents does not dispute that
the prior-act evidence was relevant, nor that the State sought to introduce
it for a proper purpose, namely, to demonstrate his intent and rebut his
claim of self-defense. He contends, however, that the State also used the
prior acts as propensity evidence to prove he has a "trait of responding
without provocation." This contention is not supported by the record.
Although the testifying officers denied provoking Brents during any of the
prior incidents, the prosecutor did not argue that Brents had a propensity
to act violently without provocation and did not reference any of the
challenged evidence during closing argument. See VanWinkle, 230 Ariz. at
393, ¶ 24 ("State did not belabor [defendant's] past violence in arguments to
the jury"). Indeed, the only uncharged act the prosecutor addressed in his
closing argument was the 2012 altercation and Brents's assertion there that
a sergeant and a detention officer had struck his face and choked him. The
prosecutor urged the jury that in evaluating Brents's credibility, it should
consider his admission at trial that those allegations were false.

¶19           Likewise, Brents's argument that the other-act evidence was
unfairly prejudicial is not well-founded. Although the evidence was
unfavorable to the defense, it did not suggest the jury should render its
"decision on an improper basis, such as emotion, sympathy, or horror."
Mott, 187 Ariz. at 545. Further, the superior court gave the jury a limiting
instruction, admonishing jurors that the evidence could be considered only
for purposes of evaluating Brents's intent. See State v. Newell, 212 Ariz. 389,
403, ¶ 68 (2006) ("We presume that the jurors followed the court's
instructions."). Therefore, because the other-act evidence was relevant,
offered for a proper purpose, probative, and not unfairly prejudicial, the
superior court did not abuse its discretion by admitting it.

C.     Preclusion of Hearsay Evidence.

¶20           Brents next argues the superior court improperly excluded
portions of his testimony as inadmissible hearsay. He also contends, for the
first time on appeal, that the State's "barrage" of hearsay objections
"fundamentally undermine[d] [his] ability to testify on his own behalf."

¶21          At trial, Brents testified regarding the events that unfolded
before the charged incident. He claimed a detention officer repeatedly



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                             STATE v. BRENTS
                            Decision of the Court

kicked his door, called Brents "a rat," and told him he was "going to get
really messed up" for reporting the officer. The prosecutor raised a hearsay
objection to this testimony, which the court sustained. Moments later,
defense counsel asked Brents whether he had relayed some concerns
regarding another inmate to detention officers. When the State objected on
hearsay grounds, defense counsel withdrew the question. Defense counsel
then again elicited Brents's testimony that a detention officer kicked his cell
door and "call[ed] [Brents] a rat" on the day in question. After the
prosecutor objected based on hearsay, the court struck the portion of
Brents's testimony referencing an out-of-court statement.

¶22            Without objection, Brents testified that an officer ordered him
to remove the covering from his cell window, but the court sustained the
prosecutor's hearsay objection when Brents attempted to recount the
precise "derogatory language" the officer purportedly used. Nonetheless,
Brents was permitted to testify that the officer spoke to him in a loud and
aggressive tone. Without objection, Brents testified that the team of officers
threatened to "[expletive] him up" as they entered his cell, and then
"attacked" him without provocation, repeatedly hitting his face and chest.
Brents stated he could not breathe when J.L. held him in a headlock, and
claimed he pled with the other officers for "help," to no avail. He testified
that, without warning, a detention officer then Tased him and his body
stiffened, before falling to the floor. Brents testified that as he lay on the
floor of his cell, he told the officers he just "want[ed] to go to sleep." The
court sustained the prosecutor's hearsay objection to this testimony. Later,
the prosecutor raised another hearsay objection when Brents attempted to
recount that officers had warned him not to move after he was Tased, and
the court sustained the objection.

¶23           At that point, the court held a bench conference, at which
defense counsel argued he was not attempting to elicit the out-of-court
statement to prove the truth of the matter asserted. The court nonetheless
found the testimony constituted "self-serving" hearsay and told defense
counsel the testimony was inadmissible absent a recognized exception. In
response, defense counsel asserted that Brents's testimony qualified as a
"present sense impression." Because Brents was not recounting a statement
that described or explained events as they were perceived, the court found
the proffered exception inapplicable. Later, the court sustained yet another
hearsay objection when Brents attempted to testify that an inmate
threatened to harm his children.

¶24         Abandoning his contention that any out-of-court statement
was admissible as a present sense impression, Brents argues for the first


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                              STATE v. BRENTS
                             Decision of the Court

time on appeal that the precluded statements were admissible as statements
by an opposing party.

¶25             In general, out-of-court statements offered to prove the truth
of the matter asserted are inadmissible unless grounded in a hearsay
exception. See Ariz. R. Evid. 801(c), 802. Before considering whether an
exception to the hearsay rule applies, however, the court must decide
whether the statement is hearsay to begin with, which requires it to
consider whether the statement was offered for the truth of the matter
asserted. See Ariz. R. Evid. 801(c)(2); State v. Rogovich, 188 Ariz. 38, 42 (1997)
("Testimony not admitted to prove the truth of the matter asserted by an
out-of-court declarant is not hearsay and does not violate the confrontation
clause."); State v. Chavez, 225 Ariz. 442, 443, ¶ 6 (App. 2010) (statements were
non-hearsay when not offered for the truth of the matter asserted).

¶26            As Brents eventually argued at trial, the challenged
statements were not offered to prove the matter asserted, but to
demonstrate Brents's state of mind at the time of the incident. For example,
when Brents testified that an officer had called him a "rat," that testimony
was not offered to show that Brents indeed was a rat (or that he had "ratted
on" another prisoner), but to show the effect the officer's statement had on
Brents's mental state—why Brents might have been angry at the officer.
Accordingly, the superior court erred in sustaining the State's hearsay
objections to the testimony.

¶27           Notwithstanding the erroneous exclusion of these statements,
however, Brents was permitted to testify that: (1) a detention officer taunted
and "provoked" him on the day in question; (2) a sergeant loudly and
aggressively ordered him to remove his window coverings; (3) a team of
officers threatened to hurt him as they entered his cell; (4) a detention
officer, unprovoked, hit him multiple times in his face and chest; and (5) a
detention officer Tased him while he was held in a headlock. Thus, the
record demonstrates that Brents had a full opportunity to argue he was
targeted and attacked by the detention officers, and only struck them
because he feared for his safety. Because he therefore was able to present
the substance of his defense, we cannot say the superior court prejudiced
him when it erroneously excluded the statements.




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                          Decision of the Court

                             CONCLUSION

¶28          For the foregoing reasons, we affirm Brents's convictions and
sentences.




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




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