2023 UT App 134

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

BRENT E. TAYLOR,

Appellant.

Opinion

No. 20230534-CA

Filed November 2, 2023

Fourth District Court, American Fork Department

The Honorable Roger W. Griffin

No. 181101530

Margaret P. Lindsay and Douglas J. Thompson, 

Attorneys for Appellant

Sean D. Reyes and William M. Hains,

Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

LUTHY, Judge:

¶1 The district court revoked Brent E. Taylor’s pretrial release 

after determining that he had been exaggerating his health 

problems to avoid trial. We are asked to decide whether the court 

abused its discretion by declining to postpone a scheduled 

pretrial status hearing and whether it erred by determining that 

there had been a material change in circumstances justifying a 

change in Taylor’s pretrial release status. Because we determine 

that Taylor had a sufficient opportunity to present evidence 

contesting his pretrial release revocation at the scheduled hearing, 

we conclude that the district court did not abuse its discretion 

when it declined to grant a continuance. While we are not 

convinced that the court’s finding of a material change in 
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circumstances based on Taylor’s nonappearance at scheduled 

proceedings is supported by the record, we affirm the finding of 

a material change in circumstances on the alternative ground that 

Taylor’s malingering indicated that he was an increased flight 

risk.

BACKGROUND

¶2 Taylor was charged with forcible sodomy, a first-degree 

felony, in November 2018. The district court released Taylor 

pending trial and allowed him to reside in Colorado, but the court 

imposed several pretrial release conditions. Specifically, the court 

required him to (1) place a sign on his home in Colorado 

indicating that youth were not allowed inside, (2) receive weekly 

random home visits by a probation provider, (3) wear a GPS ankle 

monitor, (4) not leave his house without being accompanied by 

someone over the age of eighteen, and (5) provide a letter from his 

religious leader notifying the court of the leader’s knowledge of 

the charges against Taylor.

¶3 After his release, Taylor filed regular reports of the 

probation provider’s weekly random visits through March 16, 

2021, but he provided no monitoring reports after that time, even 

though the court never removed or modified that condition. In 

May 2021, Taylor asked the court for permission to remove his 

ankle monitor, asserting that he is diabetic and was suffering from 

swelling in his leg. The court ordered that the monitor be removed 

but instructed that it be put back on once Taylor recovered from 

his swelling. But there is no evidence that Taylor ever put the 

monitor back on.

¶4 Trial was initially scheduled for July 2021. However, in 

May 2021, Taylor requested that the trial dates be stricken due to 

his alleged poor health, and the court set new trial dates for 

October 2021. In September 2021, Taylor succeeded in postponing 
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20230534-CA 3 2023 UT App 134

trial a second time, again citing health concerns, and trial was 

rescheduled for April 2022. 

¶5 At a status hearing in October 2021, the court asked Taylor 

to provide medical records within thirty days to substantiate his 

claim that he was physically and mentally unable to participate in 

trial and assist in his defense. Taylor did not provide those 

records. Over the next several months, however, defense counsel 

continued to assert that Taylor was suffering from severe health 

problems and that she could therefore not consult with him to 

prepare his defense. At a pretrial conference in March 2022, the 

court again postponed trial, this time until October 31–November 

4, 2022, because defense counsel had a conflict with another trial. 

Counsel represented at that time that Taylor’s health remained 

poor and that he could not participate in trial. Counsel had by 

then provided some medical records from Taylor, but the court 

was apparently not convinced that the health concerns identified 

in the records would prevent Taylor from participating in trial.

¶6 On October 17, 2022, Taylor filed a motion to continue trial 

again or, alternatively, to hold an evidentiary hearing regarding 

his health to determine whether he would be “able to be present 

and effectively assist counsel at trial.” The court considered the 

motion at a hearing on October 18. Defense counsel indicated at 

the hearing that she had spoken to several of Taylor’s physicians, 

who she represented had indicated that it would be difficult for 

Taylor to participate in a four-day trial, but counsel was not able 

to provide any medical documentation in support of her

representations. The court stated that if counsel could obtain more 

definitive medical documentation, it would hold an evidentiary 

hearing. When counsel was unable to obtain the necessary 

documentation, the court ordered Taylor to undergo an 

independent medical examination “to determine his fitness to 

participate in a criminal trial, to travel, and to determine whether 

a secure facility could adequately address his needs were he in 
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custody.” The court again postponed trial pending the outcome 

of the medical examination. 

¶7 A jointly retained physician who was selected by the 

defense reviewed Taylor’s medical records and performed a 

physical examination. Taylor arrived at the examination on a 

gurney, transported by “EMTs or similar personnel.” After 

reviewing Taylor’s medical records and examining Taylor, the 

examining physician provided the following opinions:

• “Taylor is currently capable of attending and participating 

in a four-day jury trial, in Utah.”

• Taylor should be able to “tolerate sitting for two or three 

hours at a time,” “listen to the proceedings attentively and 

participate in his defense including by consultation with 

his defense counsel,” and “testify coherently if the need 

arises.”

• Taylor “had been capable of attending a four-day jury trial 

previously and up to the present day.”

• Taylor may need accommodations such as use of a 

reclining chair, access to his oxygen tank, and a fifteenminute break “every hour or so.”

• “[A] jail or prison would be and should be able to 

accommodate any health needs that [Taylor] has.”

• Taylor could “travel by air or by [private] land vehicle to 

Utah.”

¶8 After the medical exam was completed, the district court 

scheduled a status hearing for May 16, 2023, which was to be 

“conducted remotely.” At the May 16 hearing, the State requested 

“an in-person hearing to discuss [Taylor’s] custody status.” The 

court orally granted the motion and set the requested hearing for 
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20230534-CA 5 2023 UT App 134

June 13, 2023. It then confirmed that setting by a written order 

dated May 25, 2023.

¶9 The State filed a motion on May 26, 2023, asking the court 

to revoke Taylor’s pretrial release. The State asserted that receipt 

of the examining physician’s report constituted a material change 

in circumstances sufficient to justify revocation of Taylor’s pretrial 

release because Taylor had “inflated his medical condition over 

the past four and a half years to avoid trial” and because Taylor 

had not complied with the court’s orders requiring weekly 

random home visits by a probation provider and the wearing of a 

GPS ankle monitor. Taylor filed a response on June 7, 2023, 

arguing that the findings in the report did not constitute a 

material change in circumstances and that there was no basis for 

altering his pretrial release status.

¶10 At the June 13, 2023 hearing, the court considered the 

State’s motion. Taylor appeared remotely at the hearing, rather 

than in person as ordered, claiming he was “too ill to attend.” 

Defense counsel argued that there had not been a change in 

circumstances that would warrant taking Taylor into custody and 

requested an evidentiary hearing to get the examining physician

to testify, along with Taylor’s doctors if counsel could “get any of 

[them] to actually respond.”

¶11 The court declined defense counsel’s invitation to schedule 

an additional evidentiary hearing. Instead, after reviewing the 

parties’ filings and hearing argument, it ruled on the State’s 

motion that day, revoking Taylor’s pretrial release and issuing a 

warrant to have him extradited from Colorado. A few days later, 

the court issued a written order outlining Taylor’s history of 

obtaining continuances based on purported illness and his failure 

to provide medical documentation of his illness. The court found 

that Taylor had “ample opportunity” to present evidence at the 

June 13 pretrial status modification hearing but did not produce 

anything to contradict the examining physician’s report that 
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Taylor was capable of standing trial. The court found the 

examining physician’s report to be a material change in 

circumstances indicating that Taylor had been malingering to 

avoid trial. The court determined that Taylor’s “continued 

assertions of medical issues on the eve of scheduled trial dates” 

were unjustifiable, and it construed them as demonstrating a 

“history of willful failures to appear without cause.” 

¶12 Having determined that there had been a material change 

in circumstances to justify a modification of its pretrial status 

order, the court then addressed the standard factors for 

determining whether pretrial release should be denied: whether 

there was substantial evidence to support the offense charged; 

whether Taylor was likely to flee the jurisdiction of the court or 

posed a risk to an individual or the community if released; and 

whether there were available conditions of pretrial release that 

could reasonably ensure public safety, Taylor’s appearance in 

court, and the furtherance of the criminal justice process. See Utah 

Code § 77-20-201(1)(c); Randolph v. State, 2022 UT 34, ¶ 29, 515 P.3d 

444. The court determined that these factors weighed in favor of 

revoking pretrial release, and it therefore ordered Taylor’s pretrial 

release revoked and for Taylor to be taken into custody. Taylor 

now appeals that order.

ISSUES AND STANDARDS OF REVIEW

¶13 Taylor first asserts that the district court violated the 

requirements of Utah’s bail—i.e., pretrial release—statute by 

refusing to continue the scheduled pretrial status modification 

hearing. “We review a district court’s denial of a motion for a 

continuance for an abuse of discretion.” Mackin v. State, 2016 UT 

47, ¶ 21, 387 P.3d 986. “An error of law by the district court, 

however, would be an abuse of discretion.” Goggin v. Goggin, 2011 

UT 76, ¶ 26, 267 P.3d 885.
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¶14 Taylor also argues that the court erred in finding a material 

change in circumstances justifying a modification of the court’s 

pretrial status order. The parties agree that this is a mixed 

question that is more fact-like than law-like and that we should 

therefore review it deferentially. See Randolph v. State, 2022 UT 34, 

¶ 24, 515 P.3d 444.1

ANALYSIS

¶15 In considering whether to modify a pretrial status order, a 

court may base its ruling “on evidence provided at the hearing so 

1. The State asserts that the two issues raised by Taylor are moot 

because Taylor did not challenge an “independent basis for [the 

court’s] decision”—that Taylor violated his pretrial release 

conditions by never replacing the GPS monitor and by not 

regularly reporting visits from a probation provider after March 

16, 2021. See Living Rivers v. Executive Dir. of the Utah Dep’t of Env’t 

Quality, 2017 UT 64, ¶ 33, 417 P.3d 57 (“When a party appeals one 

basis for a lower court’s or agency’s disposition, but does not 

challenge the court’s or agency’s separate basis for its decision, the 

issue on appeal is considered moot because the requested judicial 

relief cannot affect the rights of the litigants.” (cleaned up)). While 

the court did find that Taylor had failed to comply with these 

conditions and that the violations contributed to the court’s 

concerns regarding whether Taylor was a danger or a flight risk, 

the court did not clearly identify these violations as an 

independent basis for its determination that there had been a 

material change in circumstances. Because a finding of a material 

change in circumstances is a prerequisite to modifying a pretrial 

status order, see Utah Code § 77-20-207(1), and because the court 

did not specifically find that the violations standing alone 

constituted a material change in circumstances, we cannot say 

that the violations were an independent basis for the revocation 

order.
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long as each party is provided an opportunity to present 

additional evidence or information relevant to pretrial release.” 

Utah Code § 77-20-207(4)(b). Taylor argues that he was denied the 

opportunity to present evidence on whether to modify the pretrial 

status order because the district court declined to continue the 

scheduled hearing to allow him to question the examining 

physician and call additional witnesses. We disagree.

¶16 On May 16, 2023, the court orally ordered a hearing on June 

13, 2023—four weeks later—“to discuss [Taylor’s] custody 

status.” It then issued a written order confirming that setting. 

When a court sets a pretrial detention or pretrial status 

modification hearing—i.e., a hearing to discuss the defendant’s 

custody status—for a date that gives counsel a reasonable time to 

prepare, then counsel must be ready, unless otherwise notified by 

the court, to present at that hearing both the arguments and 

evidence counsel wishes the court to consider on the issue of 

pretrial detention. See id. § 77-20-206(4) (“At the pretrial detention 

hearing . . . the judge shall give both parties the opportunity to 

make arguments and to present relevant evidence or information

. . . .” (emphasis added)). 

¶17 Here, Taylor had four weeks after the court set the pretrial 

status modification hearing to gather evidence and subpoena 

witnesses, and he had been on notice since October 2021 that the 

court expected medical evidence to support his claims of inability 

to participate in a trial. Yet there is no indication that Taylor made 

any effort to gather evidence or subpoena witnesses, including the 

examining physician, during the month preceding the hearing, 

and there is no apparent reason why he could not have done so. 

Moreover, to obtain “a continuance to procure the testimony of an 

absent witness,” the requesting party must show “that the witness 

could actually be produced, that the witness could be produced 

within a reasonable time, and that due diligence has been 

exercised before the request for a continuance.” Mackin v. State, 

2016 UT 47, ¶ 33, 387 P.3d 986 (cleaned up). There is nothing to 
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indicate that scheduling an additional evidentiary hearing at a 

later date would have allowed Taylor to present evidence from 

his own doctors. Defense counsel had struggled to obtain 

statements from Taylor’s doctors in the past and, in fact, 

expressed skepticism at the June 13 hearing regarding whether 

she could “get any of [them] to actually respond.” In short, the 

court’s refusal to further delay the case by scheduling yet another 

hearing did not deprive Taylor of the opportunity to present 

evidence. Thus, the court did not abuse its discretion by denying 

the request for a continuance.

¶18 We next turn to the question of whether the district court 

erred in determining that there had been a material change in 

circumstances to justify modification of the pretrial status order. 

See Utah Code § 77-20-207(1) (“A party may move to modify a 

pretrial status order . . . only upon a showing that there has been 

a material change in circumstances.”). Under the governing 

statute, a material change in circumstances includes “a willful or 

repeated failure by the defendant to appear at required court 

appearances” or “any other material change related to the 

defendant’s risk of flight or danger to any other individual or to 

the community if released.” Id. § 77-20-102(10)(a)(iv)–(v). 

¶19 The district court found that “the availability of [the 

examining physician’s] opinion [was] a material change in 

circumstance” because it demonstrated that Taylor was 

“deliberately malingering to avoid the criminal process.” The 

court was particularly unimpressed by the fact that Taylor 

showed up for the independent medical examination on a gurney 

and accompanied by “EMTs or similar personnel.” Given the 

examining physician’s findings regarding Taylor’s capabilities, 

the district court considered this to be further evidence of 

malingering and an attempt to manipulate the examining 

physician. The court concluded that because Taylor had “always 

[been] able to attend court proceedings according to [the 

examining physician], . . . [his] continued assertions of medical 
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issues on the eve of scheduled trial dates, and his failure to appear 

when ordered at the . . . custody re-evaluation hearing were 

willful and lacked good cause and were not otherwise justifiable 

as reasonable or justifiable neglect.” Noting that “a history of 

nonappearance at required court hearings is a specified factor” for 

finding a material change in circumstances, see id. § 77-20-

102(10)(a)(iv), the court then construed Taylor’s “continued 

assertions of medical issues on the eve of scheduled trial dates” 

and his failure to appear in person as ordered at the pretrial status 

modification hearing to be “willful failures to appear without 

cause” and, thus, “sufficient grounds to revoke bail.”

¶20 Taylor argues that obtaining multiple continuances of trial, 

even if based on exaggerated symptoms, did not constitute a 

failure to appear at required court appearances. We agree. Apart 

from the pretrial status modification hearing itself, at which 

Taylor appeared remotely rather than in person as ordered, the 

record does not indicate that Taylor failed to appear at any 

required hearing.2 Requesting and obtaining continuances—even 

on false pretenses—is simply not the same thing as failing to 

appear at scheduled hearings. Thus, the court’s finding that 

Taylor had repeatedly failed to appear at scheduled hearings was 

clearly erroneous. See Brown v. State, 2013 UT 42, ¶ 37, 308 P.3d 

486 (explaining that a factual finding is clearly erroneous “only if 

it is against the clear weight of the evidence, or if we otherwise 

2. Although a willful failure to appear at a single hearing could 

theoretically constitute a material change in circumstances, the 

court’s findings do not suggest that its ruling was based only on 

Taylor’s failure to appear in person at the pretrial status 

modification hearing. Instead, the court took issue with Taylor’s 

“history of willful failures to appear” and made clear that its 

primary concern was Taylor’s “continued assertions of medical 

issues on the eve of scheduled trial dates.”
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reach a definite and firm conviction that a mistake has been 

made” (cleaned up)).

¶21 Nevertheless, we affirm the district court’s determination 

that there was a material change in circumstances justifying a 

modification of the pretrial status order because the court made 

findings that support a determination that there had been a 

“material change related to the defendant’s risk of flight . . . if 

released.” Utah Code § 77-20-102(10)(a)(v). See generally Bailey v. 

Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (“It is well settled that an 

appellate court may affirm the judgment appealed from if it is 

sustainable on any legal ground or theory apparent on the record, 

even though such ground or theory differs from that stated by the

trial court to be the basis of its ruling or action . . . .” (cleaned up)).

¶22 The court found that the examining physician’s report 

indicating that Taylor was malingering to avoid trial raised 

concerns that Taylor was a flight risk, a concern that “was 

substantiated by [Taylor] failing to personally appear . . . as 

ordered at the custody re-evaluation hearing.” The court found 

that there had been “at least three instances where trial dates were 

postponed to defer to [Taylor’s] alleged needs and condition,” 

indicating that Taylor was using his exaggerated condition to 

avoid prosecution. Moreover, the court found that Taylor had 

“evaded” the GPS monitoring requirement and the home visit 

reporting requirement by asserting exaggerated medical obstacles

and, thus, that the court could not “even say with a great deal of 

confidence where [Taylor] is living in Colorado.”

¶23 These findings support a determination of a material 

change in circumstances with respect to Taylor’s risk of flight.

Indeed, a court may conclude, in appropriate cases where

supported by the record, that a defendant who has engaged in 

persistent deception to avoid trial will be at an increased risk of 

flight when his deception is unveiled and his case proceeds 

relatively apace. In this case, that increased risk of flight is 
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amplified by Taylor’s out-of-state residence and the district 

court’s unchallenged finding that it can no longer “even say with

a great deal of confidence where [Taylor] is living in Colorado.”3

Accordingly, we uphold the district court’s finding of a material 

change in circumstances justifying a modification in Taylor’s 

pretrial detention status.

CONCLUSION

¶24 Because Taylor could have gathered evidence and 

subpoenaed witnesses prior to the pretrial status modification 

hearing, we conclude that he was given an adequate opportunity 

to present evidence at that hearing. Thus, the district court did not 

exceed its discretion in declining to continue the matter.

Additionally, we uphold the court’s determination that a material 

change in circumstances justified a modification of Taylor’s 

pretrial detention status, although we do so on a different basis 

than that identified by the court. Accordingly, we affirm the 

court’s order revoking Taylor’s pretrial release.

3. The court’s determination that Taylor’s malingering increased 

the risk that he might flee to avoid trial has apparently been borne 

out in this case: At a pretrial conference held while the pretrial 

release issues were pending on appeal, Taylor did not appear, and 

his trial counsel reported that they had “not had any contact with 

[him].” There is currently an outstanding warrant for Taylor’s 

arrest.