State v. Taylor

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
State v. Taylor

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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State v. Taylor

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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State v. Taylor

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 fifteen-
minute 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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State v. Taylor

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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State v. Taylor

¶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.

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