                                                                            FILED
                                                                       May 05 2020, 8:51 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      William D. Dillon                                         Curtis T. Hill, Jr.
      Dove & Dillon, P.C.                                       Attorney General
      North Vernon, Indiana                                     Sierra A. Murray
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      John Yeager,                                              May 5, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A-CR-121
              v.                                                Appeal from the
                                                                Jefferson Circuit Court
      State of Indiana,                                         The Honorable
      Appellee-Plaintiff                                        Donald J. Mote, Judge
                                                                Trial Court Cause No.
                                                                39C01-1911-F3-1322



      Vaidik, Judge.



                                           Case Summary
[1]   The State charged John Yeager with four Level 3 felony offenses, alleging that

      he battered the two-year-old son of his girlfriend. After the trial court set bail at

      $250,000 cash only, Yeager filed a motion to reduce his bail. Although the

      Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020                            Page 1 of 10
      pretrial director recommended that Yeager be released to pretrial supervision

      with the added condition of electronic monitoring and Yeager presented

      evidence that he had no criminal history besides underage drinking, lived in the

      area his whole life, lived in the same house (which he was buying) for twelve

      years, had a job to which he could return, and had a good relationship with his

      family (who also lived in the area and was supportive of him), the court denied

      his motion. Yeager now appeals.


[2]   Because Yeager presented evidence of substantial mitigating factors showing

      that he recognizes the court’s authority to bring him to trial and there is no

      evidence that Yeager poses a risk to the physical safety of the victim or the

      community, we find that the trial court abused its discretion in denying

      Yeager’s motion to reduce his $250,000 cash-only bail. We therefore reverse

      the trial court and remand with instructions that Yeager be released to pretrial

      supervision with the added condition of electronic monitoring.



                             Facts and Procedural History
[3]   On November 14, 2019, the State charged Yeager with Level 3 felony

      aggravated battery, Level 3 felony battery on a child less than fourteen years

      old, Level 3 felony domestic battery, and Level 3 felony neglect of a dependent,

      accusing him of battering J.G., the two-year-old son of his girlfriend. The trial

      court issued a warrant for Yeager’s arrest and ordered that he be held without

      bail until his initial hearing.



      Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020             Page 2 of 10
[4]   The initial hearing was held on November 18. According to the Jefferson

      County Pretrial Assessment Report filed that day, Yeager’s Indiana Risk

      Assessment Score (IRAS) was “0 (Low).” Appellant’s App. Vol. II p. 40. The

      Jefferson County Pretrial Director recommended that Yeager “be released to

      pretrial supervision with the added condition of electronic monitoring.” Id.

      The trial court, however, set Yeager’s bail at “$250,000 cash only.” Id. at 55.

      The court also issued a no-contact order for J.G. Id. at 48-49.


[5]   The next day, Yeager filed a motion to reduce his bail. At the bail-reduction

      hearing held on December 30, Yeager, who was thirty-five years old, testified

      that he had lived in Jefferson County and neighboring Jennings County his

      “entire life” and that he had lived in the same house in Madison (Jefferson

      County) for twelve or thirteen years. Tr. p. 10. Yeager said he was buying the

      house. Yeager said he had a good relationship with his parents, who were

      married and lived in Jennings County, and his sister (his only sibling), who was

      living in his house while he was incarcerated. In addition, Yeager testified that

      he worked at McCubbin Motors in Madison before he was arrested and that his

      job was still available for him if he was released on bail. Yeager said the only

      other time he had been in trouble with the law was for underage drinking when

      he was twenty years old. According to Yeager, he never missed a court hearing

      and paid a fine. Yeager agreed with the issuance of the no-contact order and

      said there was no reason for him to have contact with J.G. or his family.

      Yeager told the court that he would like to be released on bail so he could work

      to pay for his defense counsel and hire an expert. Yeager said if the court


      Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020           Page 3 of 10
      ordered him to be on electronic monitoring, he could pay that cost. Finally,

      Yeager’s mother testified that she and her husband would make sure that

      Yeager attended his court hearings. The State did not dispute any of this

      evidence. Instead, the State presented photographs of the injuries to J.G.,

      evidence that medical staff believed J.G.’s injuries were non-accidental, and

      evidence that J.G. was in Yeager’s care at the time of his injuries.


[6]   The trial court denied Yeager’s motion to reduce his bail because (1) the nature

      and gravity of the alleged offenses was “serious,” and Yeager faced a sentence

      up to thirty-two years1 and (2) it was not “confident public safety c[ould] be

      reasonably assured if [Yeager’s] bail were to be reduced.” Appellant’s App.

      Vol. II pp. 100-01.


[7]   Yeager now appeals.



                                   Discussion and Decision
[8]   Yeager appeals the trial court’s denial of his motion to reduce bail. The amount

      and manner of executing bail is a matter within the sound discretion of the trial

      court and is reviewed only for an abuse of that discretion. Perry v. State, 541

      N.E.2d 913, 919 (Ind. 1989); Sneed v. State, 946 N.E.2d 1255, 1260 (Ind. Ct.




      1
        The trial court arrived at thirty-two years by running the sentences consecutively. In doing so, the court did
      not take into account “double jeopardy concerns under Richardson v. State, 717 N.E.2d 32 (Ind. 1999).”
      Appellant’s App. Vol. II p. 100. We believe that there may be double-jeopardy considerations at play and
      therefore have doubts that Yeager’s maximum sentence is thirty-two years.

      Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020                                     Page 4 of 10
       App. 2011). An abuse of discretion occurs when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before it.

       Sneed, 946 N.E.2d at 1257.


[9]    Yeager argues that “the bail as set was excessive. The trial court’s decision

       refusing to lower it and fashion a reasonable method for posting was an abuse

       of discretion.” Appellant’s Br. p. 12. The Indiana Constitution prohibits

       excessive bail. Ind. Const. art. 1, § 16. “A decision upon the question of

       excessiveness must be based upon two basic and related considerations: (1) The

       object of bail itself, and (2) the financial ability of the accused to provide the

       required amount of bail.” Samm v. State, 893 N.E.2d 761, 766 (Ind. Ct. App.

       2008) (quotation omitted). “The object of bail is not to effect punishment in

       advance of conviction.” Id. “Rather, it is to ensure the presence of the accused

       when required without the hardship of incarceration before guilt has been

       proved and while the presumption of innocence is to be given effect.” Id.


[10]   Indiana Code section 35-33-8-5 governs the modification of bail and provides in

       part:


               (a) Upon a showing of good cause, the state or the defendant
               may be granted an alteration or revocation of bail by application
               to the court before which the proceeding is pending. . . .


                                                      *****


               (c) When the defendant presents additional evidence of
               substantial mitigating factors, based on the factors set forth in
               [Indiana Code section 35-33-8-4(b)], which reasonably suggests

       Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020               Page 5 of 10
        that the defendant recognizes the court’s authority to bring the
        defendant to trial, the court may reduce bail. However, the court
        may not reduce bail if the court finds by clear and convincing
        evidence that the factors described in IC 35-40-6-6(1)(A) and IC
        35-40-6-6(1)(B) exist or that the defendant otherwise poses a risk
        to the physical safety of another person or the community.


Section 35-33-8-4(b) sets forth these factors:


        (1) the length and character of the defendant’s residence in the
        community;


        (2) the defendant’s employment status and history and the
        defendant’s ability to give bail;


        (3) the defendant’s family ties and relationships;


        (4) the defendant’s character, reputation, habits, and mental
        condition;


        (5) the defendant’s criminal or juvenile record, insofar as it
        demonstrates instability and a disdain for the court’s authority to
        bring the defendant to trial;


        (6) the defendant’s previous record in not responding to court
        appearances when required or with respect to flight to avoid
        criminal prosecution;


        (7) the nature and gravity of the offense and the potential penalty
        faced, insofar as these factors are relevant to the risk of
        nonappearance;




Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020             Page 6 of 10
               (8) the source of funds or property to be used to post bail or to
               pay a premium, insofar as it affects the risk of nonappearance;


               (9) that the defendant is a foreign national who is unlawfully
               present in the United States under federal immigration law; and


               (10) any other factors, including any evidence of instability and a
               disdain for authority, which might indicate that the defendant
               might not recognize and adhere to the authority of the court to
               bring the defendant to trial.


[11]   Here, Yeager presented evidence of substantial mitigating factors showing that

       he “recognizes the court’s authority to bring [him] to trial,” as required by

       Section 35-33-8-5(c). Yeager has no criminal history besides underage drinking

       and has never failed to appear at a court proceeding. In addition, Yeager has

       lived in the Jefferson County/Jennings County area his entire life and in the

       same house for twelve years. Yeager had a steady job to which he could return

       and was paying for his house. Yeager’s family also lives in the same area and is

       supportive of him. Although Yeager faces four Level 3 felony charges for

       allegedly battering a two-year-old (and a potentially lengthy sentence if he is

       convicted), this does not mean that Yeager presents a risk of not appearing.

       Indeed, the Jefferson County Pretrial Director found no risk.


[12]   As for the trial court’s finding that Yeager poses a risk to the physical safety of

       J.G. and the community, Yeager claims that the fact that he “has merely been

       accused, cannot constitute clear and convincing evidence that he is a danger to

       the alleged victim or the community.” Appellant’s Reply Br. p. 7. We agree.


       Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020              Page 7 of 10
       As Yeager points out, besides the accusations themselves, no evidence was

       presented “as to how he could possibly constitute a threat to anyone.” Id. The

       only evidence the State cites in its brief to show that Yeager is a danger to J.G.

       and the community is J.G.’s injuries. See Appellee’s Br. p. 11. But this violates

       the presumption of innocence to which Yeager is entitled. See Samm, 893

       N.E.2d at 766. Again, the Jefferson County Pretrial Director recommended

       that Yeager be released to pretrial supervision with the added condition of

       electronic monitoring. Without any evidence to show that Yeager is a danger,

       we conclude that the trial court abused its discretion in denying Yeager’s

       motion to reduce his $250,000 cash-only bond. We therefore reverse the trial

       court and remand with instructions that Yeager be released to pretrial

       supervision with the added condition of electronic monitoring. See Ind. Code §

       35-33-8-11(a). The no-contact order shall remain in place. See Ind. Code § 35-

       33-8.3.6.


[13]   We note this result is consistent with the new evidence-based risk-assessment

       system that Indiana has adopted. Effective January 1, 2020, Indiana Criminal

       Rule 26(A) and (B) provides:


               (A) If an arrestee does not present a substantial risk of flight or
               danger to themselves or others, the court should release the
               arrestee without money bail or surety subject to such
               restrictions and conditions as determined by the court except
               when:


                        (1) The arrestee is charged with murder or treason.


       Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020                Page 8 of 10
                  (2) The arrestee is on pre-trial release not related to the
                  incident that is the basis for the present arrest.


                  (3) The arrestee is on probation, parole or other
                  community supervision.


         (B) In determining whether an arrestee presents a substantial risk
         of flight or danger to self or other persons or to the public, the
         court should utilize the results of an evidence-based risk
         assessment approved by the Indiana Office of Court Services, and
         such other information as the court finds relevant. The court is
         not required to administer an assessment prior to releasing an
         arrestee if administering the assessment will delay the arrestee’s
         release.[2]


(Emphasis added). See also Ind. Code §§ 35-33-8-3.8, 0.5. According to the

executive director of the Indiana Office of Court Services, which oversaw the

development of the new evidence-based risk-assessment system, “Under

Criminal Rule 26, counties will use the IRAS Pretrial Assessment Tool to assess

risk of failure during the pretrial period.” Mary Kay Hudson, Smart on Crime:

Stakeholders Attend Pretrial Summit, Indiana Court Times, Dec. 20, 2019,

http://indianacourts.us/times/2019/12/smart-on-crime-stakeholders-attend-

pretrial-summit/[https://perma.cc/36L8-24JC]. The purpose of this new

system is “maximizing public safety, maximizing court appearance, and

maximizing pretrial release.” Ind. Office of Court Servs., About,




2
  Indiana Criminal Rule 26(A) and (B) went into effect in 2016 for eleven counties that were selected to pilot
the pretrial services program. Jefferson County was one of these counties.

Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020                                    Page 9 of 10
       https://www.in.gov/judiciary/iocs/3900.htm [https://perma.cc/BP54-

       DQRA].


[14]   Notwithstanding Indiana Appellate Rule 65(E), this opinion is effective

       immediately, and the trial court need not await a certification of this opinion by

       the Clerk of Courts before releasing Yeager to pretrial supervision with the

       added condition of electronic monitoring. See Ind. Appellate Rule 1 (“The

       Court may, upon the motion of a party or the Court’s own motion, permit

       deviation from these Rules.”); see also Town of Ellettsville v. Despirito, 87 N.E.3d

       9, 12 (Ind. 2017) (making opinion effective immediately notwithstanding

       Appellate Rule 65).


[15]   Reversed and remanded.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-121 | May 5, 2020             Page 10 of 10
