                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 19-0163
                               FILED 2-4-2020


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201500543
               The Honorable Michael D. Latham, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Weagant Law Offices PLC, Florence
By Megan Weagant
Counsel for Appellant
                            STATE v. BRENTS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined.


M O R S E, Judge:

¶1             Brandy Lee Brents appeals his convictions and sentences for
two counts of aggravated assault. He argues that the trial court abused its
discretion by denying his motion for a competency examination pursuant
to Rule 11 of the Arizona Rules of Criminal Procedure. He further contends
that the trial court erred by denying his additional request for a court-
appointed expert to examine his mental condition at the time of the offense
for a legal insanity defense. For the reasons that follow, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2              Brents was incarcerated in the Navajo County Jail. Brents
became "angry" and "really upset" when the jail changed his meal plan from
diabetic to regular. In protest, he refused to return his meal tray, covered
his cell window and undertook additional acts to prepare himself and his
cell for a fight with the guards. When a detention officer ultimately entered
his cell to retrieve the tray, Brents shoved and threatened the officer.

¶3            Detention officers moved Brents to another cell later that day.
After Brents threatened to harm himself, the same detention officer entered
Brents's new cell to check on his welfare and Brents "spit" in the officer's
face.

¶4             The State charged Brents with two counts of aggravated
assault, class 5 felonies. Following a two-day trial, a jury convicted Brents
as charged, and the trial court ultimately sentenced him to concurrent terms
of five years' imprisonment for each count, consecutive to the prison
sentence he was already serving. Brents timely filed a notice of appeal. We




1      We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Brents. State v. Payne,
233 Ariz. 484, 509, ¶ 93 (2013).


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                             STATE v. BRENTS
                            Decision of the Court

have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1), 13-4031, and
-4033(A)(1).2

                               DISCUSSION

    I.    Competency Examination

¶5            Brents argues the trial court erred by denying his motion for
a Rule 11 competency examination. We review the trial court's denial of a
competency examination for abuse of discretion. State v. Amaya-Ruiz, 166
Ariz. 152, 162 (1990).

¶6            In his motion, filed on July 17, 2017, counsel for Brents
asserted that he had "concern about [Brents's] mental health." The motion
stated that Brents had been receiving care in the psychiatric unit in the
Department of Corrections and that "[a]t this time, counsel can only
speculate about [Brents's] mental and physical health." The trial court held
oral argument on the motion on August 3, 2017.

¶7             During oral argument, the trial court clarified that "nobody is
denying that Mr. Brents may have some significant mental illnesses," but
based upon its experience with Brents in previous cases, the court noted
that those illnesses had not prevented Brents from assisting in his defense
in the past. The court then asked defense counsel if Brents could assist with
his defense. After explaining communication difficulties with Brents,
counsel stated, "[i]f I could keep him focused, I think he could be a help, but
it's hard for me to keep him focused." The trial court stated that its present
observations of Brents were similar to what the court saw in the prior cases
and did not raise sufficient concern that Brents was incompetent to stand
trial. The court found that, as in previous cases, Brents understood his
rights and his attorney's role.

¶8           The court continued, however, that it would reconsider its
decision if Brents supplied additional medical records or information
supporting his request. Trial began on November 13, 2018, and Brents did
not provide any new or supplemental information about his mental
condition. He also did not file another Rule 11 motion.

¶9             A defendant has a due process "right not to be tried or
convicted while incompetent." Amaya-Ruiz, 166 Ariz. at 161 (quoting Drope
v. Missouri, 420 U.S. 162, 172 (1975)). Rule 11 protects that right by allowing

2      Absent material changes from the relevant date, we cite current
versions of statutes and rules.


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                             STATE v. BRENTS
                            Decision of the Court

a defendant an examination of his competency to stand trial when
"reasonable grounds for an examination exist." Ariz. R. Crim. P. 11.2(a)(2)-
(d) (2017); see also A.R.S. § 13-4503(C), -4505(A). "Reasonable grounds exist
if there is sufficient evidence to indicate that the defendant is not able to
understand the nature of the proceedings against [the defendant] and to
assist in [the] defense." State v. Salazar, 128 Ariz. 461, 462 (1981) (citations
omitted); see Ariz. R. Crim. P. 11.1(a)(2), (b). A competency examination is
required only if "there was or should have been a good faith doubt about
the defendant's ability . . . to participate intelligently in the proceedings."
State v. Delahanty, 226 Ariz. 502, 505, ¶ 8 (2011) (quoting State v. Cornell, 179
Ariz. 314, 322-23 (1994)); see A.R.S. § 13-4503(C); Ariz. R. Crim. P. 11.2(a),
(c). The trial court may rely upon its own observations to determine
whether reasonable grounds exist. State v. Moody, 208 Ariz. 424, 443, ¶ 48
(2004).

¶10            We conclude that the trial court did not err. Defense counsel
represented that he was experiencing difficulties communicating with
Brents at certain times concerning particular topics and said he could only
"speculate" about Brents's mental-health condition. Counsel for Brents did
not avow, however, that Brents was unable to understand the nature of the
proceedings or to assist in his defense. See State v. Taylor, 160 Ariz. 415, 418
(1989) (citing State v. Roper, 140 Ariz. 459, 463 (App. 1984)). Defense counsel
did not challenge the court's assertion that Brents understood his rights and
the roles of counsel and the court. The trial court remarked that defense
counsel's experience resembled what the court had observed with Brents in
prior cases, and it saw no present behavior indicating a need to order the
Rule 11 examination. See Moody, 208 Ariz. at 443, ¶ 48.

¶11           Further, the trial court made clear that its decision to deny the
motion was based upon the information presented at that time. The trial
court informed Brents's counsel that it would consider any additional
information that might change the court's decision, including medical
reports from the mental health professionals Brents had seen at the
Department of Corrections. Our supreme court has held that in the absence
of additional evidence, the trial court does not abuse its discretion by
denying a Rule 11 competency request based only upon defense counsel's
asserted concerns regarding a defendant's "peculiar behavior." State v.
Williams, 122 Ariz. 146, 153-54 (1979); see also State v. Verdugo, 112 Ariz. 288,
289 (1975) (affirming denial of competency evaluation where motion was
based on "only the statements of counsel relating to defendant's low
intelligence, moodiness, confusion, and inability to clearly relate the facts
involved."). Moreover, Brents's conduct at trial, including his testimony
discussed, infra ¶ 18, removed any concern about his competence to stand


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                            STATE v. BRENTS
                           Decision of the Court

trial. See Cornell, 179 Ariz. at 323 ("Doubts about a defendant's competence
may be removed by his conduct at trial.") (citation omitted). The trial court
therefore did not abuse its discretion.

   II.    Mental Health Examination for an Insanity Defense

¶12           Brents also argues the trial court erred by denying his
simultaneous request for a court-ordered mental-health examination for the
purpose of a possible insanity defense. We review the trial court's denial of
a motion to appoint a mental health expert for such purpose for abuse of
discretion. State v. Schurz, 176 Ariz. 46, 54 (1993).

¶13           Brents filed a "Notice of Defenses and Defense Disclosure" on
July 13, 2017, asserting the affirmative defense of guilty except insane. In
his Rule 11 motion, Brents also requested the appointment of a mental
health expert to explore a guilty except insane defense. The trial court
addressed this issue during oral argument on August 3rd and denied the
request.

¶14            The trial court cited several reasons for its decision (reasons
similar to those the court cited in denying Brents's request for a competency
examination), including its prior experiences with him. The court stated
that, in a previous trial, Brents raised an insanity defense that was
"extensively litigated" and rejected by the jury. The court stated that
because "all of those records and examinations were contemporaneous with
this particular offense" and the present offenses occurred "very close in time
to the previous offenses," Brents had not met the initial threshold for an
insanity plea. The court further explained, however, that it would
reconsider its decision if Brents presented the court with "different" or
"additional" information.

¶15            A trial court may appoint a mental-health expert to examine
a defendant and provide a screening report concerning his mental
condition at the time of an offense when "a reasonable basis exists to
support the plea of insanity." A.R.S. § 13-4506(A); see Ariz. R. Crim. P.
11.2(a) (2017). "A person may be found guilty except insane if, at the time
of the commission of the criminal act, the person was afflicted with a mental
disease or defect of such severity that the person did not know the criminal
act was wrong." A.R.S. § 13-502(A).

¶16          Although the prior rejection of an insanity defense by a jury
in another case is not particularly relevant to whether the defense is
properly raised in this case, the trial court did not err in finding defense
counsel's motion was insufficient. Brents's counsel did not assert in his


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                               STATE v. BRENTS
                              Decision of the Court

motion or at the oral argument that a mental disease or defect prevented
Brents from knowing his criminal acts were wrong; he stated only that the
video recording of the incident reflected behavior that was "beyond [a]
rational reaction." On appeal, Brents contends that the trial court failed to
consider several factors concerning his legal sanity: his history of mental
illness, his attempt to self-harm, and the possibility that the diet change
affected his behavior. None of the conditions he describes satisfies the
definition for legal insanity. Id. ("Conditions that do not constitute legal
insanity include . . . momentary, temporary conditions arising from . . .
circumstances . . . passion growing out of anger . . . or other motives in a
person who does not suffer from a mental disease or defect . . . manifested
only by criminal conduct."); see State v. Tamplin, 195 Ariz. 246, 248-49, ¶ 12
(App. 1999) (holding that "wrong" for an insanity defense is defined by
community standards of morality and not personal beliefs). Consequently,
Brents failed to allege facts sufficient to establish a preliminary showing
under A.R.S. § 13-502(A). See Ake v. Oklahoma, 470 U.S. 68, 74, 82-83 (1985)
(holding that a defendant's right to a psychiatric evaluation arises if the
defendant makes a preliminary showing that sanity at the time of the
offense will be a significant factor at trial); see also State v. Williams, 166 Ariz.
132, 139 (1987) (holding that due process clause requires the appointment
of a mental health expert only when reasonably necessary following a
minimal showing of insanity).

¶17           Furthermore, the trial court specified that Brents could renew
his request with new, supplemental, or additional information, and
referred again to obtaining a mental health report from the Department of
Corrections. Brents did not do so for the following fifteen months that
preceded trial.

¶18            At trial, Brents testified, and he admitted that he shoved the
officer. He claimed he did so because he was angry and "to keep [the
officer] from pepper spraying" him. He also stated that he did it as a protest
against the Department of Corrections changing his diet. Brents denied
spitting on the officer, stating, instead, that he had "some stuff in [his]
mouth" from the cell. Brents did not provide any evidence sufficient to
establish an insanity defense that he did not know the spitting conduct was
"wrong". Tamplin, 195 Ariz. 246, 248-49, ¶ 12. Nor did he ask for a jury
instruction regarding the affirmative defense of guilty except insane.

¶19           Although the trial court invited Brents to offer additional
evidence to support his request for a screening examination, he did not offer
such evidence, nor did he pursue the issue of his mental condition at trial



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                            STATE v. BRENTS
                           Decision of the Court

or sentencing. See State v. Herrera, 176 Ariz. 21, 32 (1993) (citing Ake, 470
U.S. at 82-83). Accordingly, the trial court did not abuse its discretion.

                               CONCLUSION

¶20          We affirm Brents's convictions and sentences.




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




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