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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

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
STATE v. BROOKS 

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2

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. 

 

1 This 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). 

2 Initials are used to protect the victims’ privacy. State v. Maldonado, 206 

Ariz. 339, 341 n.1 ¶ 2 (App. 2003). 
STATE v. BROOKS 

Decision of the Court 

3

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 
STATE v. BROOKS 

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4

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

 

3 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated. 
STATE v. BROOKS 

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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 
STATE v. BROOKS 

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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 
STATE v. BROOKS 

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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. 
STATE v. BROOKS 

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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 
STATE v. 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.