                                      ENTRY ORDER

                        SUPREME COURT DOCKET NO. 2014-091

                                     APRIL TERM, 2014

State of Vermont                                 }    APPEALED FROM:
                                                 }
   v.                                            }    Superior Court, Bennington Unit,
                                                 }    Criminal Division
Ryan J. McCauley                                 }
                                                 }    DOCKET NO. 148-2-14 Bncr
                                                 }
                                                      Trial Judge: Nancy Corsones

                        In the above-entitled cause, the Clerk will enter:

        This is a bail appeal filed pursuant to 13 V.S.A. § 7556(d). On April 4, 2014, the
undersigned, sitting as a single justice, conducted a de novo evidentiary hearing. The parties
stipulated to the court’s consideration of the transcript of the evidence heard by the criminal
division, the probable cause affidavits, the photos offered below, a DVD showing defendant’s
processing at the Vermont State Police station and a letter written by a Veteran’s Administration
counselor.

                                             FACTS

        For purposes of the bail issue only, defendant has stipulated that he has been charged
with a violent crime and that the evidence of his guilt is great. The evidence submitted to the
court, including the transcript, shows the following.

         On February 21, 2014, defendant became involved in an argument with his girlfriend.
Both had been drinking. He pushed her down inside the apartment. He then pulled at her legs.
In the struggle, he pulled off her pants. She ran out of the apartment and called her mother for
help. Defendant then came out of the apartment and pushed complainant down the first flight of
stairs to a landing. He pulled her to her feet and attempted to push her down the second flight of
stairs. He fell down the stairs with her. Her arm was broken in the fall. She was heavily
bruised.

        Complainant called 911. When the police arrived, defendant was belligerent and
obstructed their attempts to help complainant. He continued to be verbally abusive during his
arrest, transport, and processing at the police station. The DVD shows that defendant was
alternatively offensive and apologetic to the officers supervising his initial incarceration and
medical treatment.

      Defendant was charged with aggravated domestic assault, interference with access to
emergency services, impeding a public officer, and resisting arrest. He was held without bail
pursuant to 13 V.S.A. § 7553a. Following a bail review hearing, the criminal division continued
the hold without bail order. This appeal followed.

        Defendant is 31 years old. He is a veteran of the Iraq War. There are indications of a
mental disturbance, such as strong mood swings. His prior criminal record consists of one
conviction for driving under the influence of alcohol. He is eligible for consideration for an
inpatient alcohol treatment unit at the Veterans Administration hospital in White River Junction,
Vermont. His father, a former police officer, is willing to take him into his home and provide
supervision. Defendant’s father lives in a different town than complainant.

       Defendant and complainant have been involved in two prior incidents of domestic
violence involving the police. Neither resulted in an arrest of either party. On one occasion,
defendant’s nose was bleeding when the police arrived.

                                            ANALYSIS

       The State has the burden of proof by clear and convincing evidence of two factors:

       1. That defendant’s release would pose a substantial threat of physical violence to any
          person; and

       2. That no condition or combination of conditions of release will reasonably prevent the
          physical violence.
13 V.S.A. § 7553a. Based on the evidence available at this stage of the case, the Court
concludes that the State has met its burden of proof with respect to proof of a substantial threat of
physical violence to the complainant. If defendant returns to the residence without conditions,
there is a substantial risk that he will strike or push complainant again. The indications of
alcohol abuse and a potential mood disorder support a prediction by the Court that, left untreated
and unrestricted by conditions, defendant will continue to engage in the behavior which led to
complainant’s bruising and fractured arm.

        The closer question is whether there are conditions which will reasonably prevent further
violence. The evidence is strong that defendant is the type of person who will respect court
orders when sober. He has a military background and followed orders in that setting. Both his
father and complainant testified that he is likely to follow court orders. He has recently spent
over a month in prison and will understand that a violation of conditions of release could return
him to jail.

    The Court concludes that the State has not met its burden of proof by clear and convincing
evidence on this issue. There are a number of conditions available which will reasonably prevent
violence in the future. These include residence at defendant’s father’s house or at an inpatient
treatment facility. The risk of violence decreases sharply if defendant no longer resides with
complainant. In addition, defendant could be required to participate in treatment through the VA,
including residential treatment if accepted.




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        The account of defendant’s conduct on February 21 clearly indicates that he suffers from
potentially treatable conditions including alcohol abuse and a mood disorder. He does not have a
significant prior criminal history. There is a strong likelihood that treatment directed at an acute
alcohol problem and some form of mood or emotional disorder will greatly reduce the type of
violent incident which led to these charges. The Court finds that defendant should be released
subject to the following conditions:

       1. No contact with the complainant.

       2. No alcohol (standard condition 12).

       3. Standard conditions 1, 2, and 3, 14 and 15 (defendant shall not contact or harass
          complainant Christine Sherman), 31 (stay away from 969 Vt. Route 7A, Shaftsbury,
          VT), 32 (defendant shall submit to alcosensor upon request of law enforcement), and
          17.

       4. Release into the custody of defendant’s father, Doug McCauley.

       5. 24-hour curfew at Doug McCauley’s address except for medical and legal
          appointments and counseling or treatment, including residential treatment if accepted.

       6. Defendant shall attend residential treatment at the VA if accepted, and return to Doug
          McCauley’s home upon completion.

                                             CONCLUSION

       The court orders that defendant be released on the above-listed conditions at this time.


                                                 FOR THE COURT:



                                                 Geoffrey W. Crawford, Associate Justice




       
           Defense counsel seeks unspecified additional relief due to the delay in completion of
the bail review hearing before the criminal division. This is not an issue which this justice will
address in a single-justice opinion.


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