MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
                                                                       FILED
the defense of res judicata, collateral                           Feb 10 2017, 5:43 am

estoppel, or the law of the case.                                      CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bart M. Betteau                                          Curtis T. Hill, Jr.
Betteau Law Office, LLC                                  Attorney General of Indiana
New Albany, Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darius T. Sutton,                                        February 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         31A01-1603-CR-618
        v.                                               Appeal from the Harrison Superior
                                                         Court
State of Indiana,                                        The Honorable Joseph L.
Appellee-Plaintiff.                                      Claypool, Judge
                                                         Trial Court Cause No.
                                                         31D01-1602-F3-90



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 31A01-1603-CR-618 | February 10, 2017    Page 1 of 9
                                          Case Summary
[1]   On February 16, 2016, Appellant-Defendant Darius T. Sutton was charged with

      Level 3 felony rape and Level 6 felony sexual misconduct with a minor. The

      trial court conducted an initial hearing on February 17, 2016. At the

      conclusion of this hearing, the trial court set Sutton’s bail at $10,000. The trial

      court denied Sutton’s subsequent request for a reduction of the bail amount.


[2]   On appeal, Sutton contends that the $10,000 bail set by the trial court was

      excessive and that the trial court erred in denying his request for a reduction of

      the bail amount. Concluding otherwise, we affirm.



                            Facts and Procedural History
[3]   On February 16, 2016, Sutton was charged with Level 3 felony rape and Level

      6 felony sexual misconduct with a minor. The affidavit for probable cause

      which was filed in connection to these charges indicated the following:

              On Tuesday, February 2, 2016, fifteen (15) year old G.F. …
              disclosed in a forensic interview conducted at the Comfort House
              that her eighteen (18) year old cousin, [Sutton,] tried to have sex
              with her on Friday November 27, 2015, while they were staying
              the night at their grandparents’ home[.]

              G.F. stated that on November 27, 2015, she woke up with
              [Sutton] on top of her. G.F. stated that [Sutton] had unbuttoned
              her shirt and had pulled off her shorts and underwear. [Sutton]
              started trying to kiss her and was touching her bare breast. G.F.
              stated that [Sutton] inserted his fingers into her vagina. G.F.
              described that [Sutton] was trying to put his penis in her vagina.

      Court of Appeals of Indiana | Memorandum Decision 31A01-1603-CR-618 | February 10, 2017   Page 2 of 9
              She said she was able to feel his penis touching her vagina but it
              never penetrated inside. At one point G.F. stated that [Sutton]
              grabbed her hand and tried to force her to touch his penis but she
              pulled her hand back.

              G.F. stated that she kept telling [Sutton], “No, no I don’t want to
              do this, I want this to stop” and was trying to push him away but
              she was unable to get out from under him. G.F. stated that while
              this was going on she was crying.


      Appellant’s App. Vol. II, p. 7.


[4]   Also on February 16, 2016, the trial court issued a “Finding of Probable Cause

      for Issuance of Warrant for Arrest” in which it found that there was probable

      cause to believe that the Indiana Criminal Code had been violated and that a

      warrant for Sutton’s arrest should be issued. This order also indicated that

      upon arrest, Sutton should be held with “no bond.” Appellant’s App. Vol. II,

      p. 8. The arrest warrant issued later that day also indicated that Sutton should

      be held without bond and that he should “thereafter without unnecessary

      delay” be brought before the trial court. Appellant’s App. Vol. II, p. 9.


[5]   Sutton was arrested either on the evening of February 16, 2016 or on the

      morning of February 17, 2016. He was soon thereafter brought before the trial

      court for an initial hearing which began at 9:58 a.m. on February 17, 2016.

      During this initial hearing, Sutton argued that his bail should be set at zero and

      that he should be immediately released on his own recognizance, claiming that

      he would be unable to post bail in any amount. The trial court decided

      otherwise and set Sutton’s bail at $10,000, “full cash.” Initial Hr. Tr. p. 17.

      Court of Appeals of Indiana | Memorandum Decision 31A01-1603-CR-618 | February 10, 2017   Page 3 of 9
      The trial court noted that this amount was a standard bail for a Level 3 felony.

      The trial court also ordered that an Indiana Risk Assessment System (“IRAS”)

      risk assessment should be completed to determine the risk that Sutton would

      commit another offense. The trial court further ordered that the matter be

      scheduled “for an immediate hearing after [the IRAS was completed] to

      determine a reduction of [bail] at that time.” Initial Hr. Tr. p. 15.


[6]   Later that afternoon, at Sutton’s counsel’s request, the trial court conducted a

      bail reduction hearing after the IRAS risk assessment was completed. During

      this hearing, the trial court noted that the IRAS risk assessment found that

      Sutton was a “Low” risk to re-offend. Appellant’s App. Supp. App. Vol. I, p. 6.

      The trial court expressed that the bail reduction hearing may be being held “too

      quick[ly].” Bond. Hr. Tr. p. 3. The trial court further indicated the following:

              Okay. In the event of this I’ve done some research on it on my
              own in regard to the bond and also done some soul searching on
              what I can do in regard to this matter and of the bond reduction.
              You know, at this point, even with the Risk Assessment I need
              some more information about, about the defendant prior to
              releasing him out on his own recognizance or lowering the [bail]
              from $10,000 full cash. Things such as his, you know, his high
              school record, you know, things, you know, going you know, I,
              I, I need something to show that he’s not gonna be a risk to the
              community in going -- This is a very serious felony. It’s one
              with his – involved a maybe a distant family member but a family
              member. And I feel very uncomfortable in, in lowering the bond
              in this matter at this point. I understand he is still in high
              school.… And I just have a real difficult time in having you go
              back to that at this point[.] … The seriousness of the crime itself
              in, in my mind, at this point, does make you – even though you
              haven’t had any, what’s been testified this morning, have any
      Court of Appeals of Indiana | Memorandum Decision 31A01-1603-CR-618 | February 10, 2017   Page 4 of 9
              prior criminal record, there’s, there’s an issue that you may be a
              flight risk at this point too. So I need some more information
              before I can do this. I’m going to do some, some studying on my
              own in regard to this matter.


      Bond Hr. Tr. pp. 6-8. The trial court indicated that it would not, at that time,

      reduce the bail, but indicated that it “may call this again Sua Sponte once it

      ha[d] more information in regard to the defendant and the situation with the

      schools and things of this nature.” Bond Hr. Tr. p. 8. The next day, Sutton

      signed the conditions of his release and his mother posted the $10,000 cash

      bond to secure his release.



                                 Discussion and Decision
[7]   As an initial matter, we note that Sutton contends that the trial court abused its

      discretion in ordering in its finding of probable cause and arrest warrant that

      Sutton should be held “without bond.” We need not decide the merits of

      Sutton’s argument in this regard as we conclude that the issue is now moot.

      The record reveals that Sutton was held “without bond” for less than twenty-

      four hours before his bail was set at $10,000. Sutton did not take the steps

      necessary to file an interlocutory appeal in those few hours between when he

      was arrested and his bail was set. Thus, to the extent that the order finding

      probable cause and the arrest warrant constituted preliminary orders relating to

      Sutton’s bail, these orders are no longer in effect. As such, the propriety of

      these orders is not properly before this court in the instant appeal.



      Court of Appeals of Indiana | Memorandum Decision 31A01-1603-CR-618 | February 10, 2017   Page 5 of 9
[8]    Sutton also contends that the trial court erred in denying his request for a bail

       reduction. Specifically, Sutton argues that the $10,000 bail was excessive and

       beyond the amount necessary to ensure his appearance at future proceedings.

       In making this argument, Sutton claims that the circumstances indicate that his

       bail should have been set at zero and that he should have been released on his

       own recognizance. We disagree.


[9]    “[T]he setting of the amount of bail is within the discretion of the trial court and

       will be reversed only for an abuse of that discretion.” Lopez v. State, 985 N.E.2d

       358, 360 (Ind. Ct. App. 2013) (citing Winn v. State, 973 N.E.2d 653, 655 (Ind.

       Ct. App. 2012)). “We therefore review the trial court’s denial of a defendant’s

       motion to reduce bail for an abuse of discretion.” Id. (citing Winn, 973 N.E.2d

       at 655). “‘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.’” Id.

       (quoting Sneed v. State, 946 N.E.2d 1255, 1257 (Ind. Ct. App. 2011)).


[10]   “The Indiana Constitution prohibits excessive bail.” Id. (citing Ind. Const. art.

       1, § 16). With respect to bail, Indiana Code section 35-33-8-4(b) provides as

       follows:

               Bail may not be set higher than that amount reasonably required
               to assure the defendant’s appearance in court or to assure the
               physical safety of another person or the community if the court
               finds by clear and convincing evidence that the defendant poses a
               risk to the physical safety of another person or the community.
               In setting and accepting an amount of bail, the judicial officer
               shall take into account all facts relevant to the risk of
               nonappearance, including:

       Court of Appeals of Indiana | Memorandum Decision 31A01-1603-CR-618 | February 10, 2017   Page 6 of 9
                        (1) the length and character of the defendant’s
                        residence in the community;
                        (2) the defendant’s employment status and history
                        and his 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 him 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;
                        (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 him to
                        trial.


                I. Initial Order Setting Sutton’s Bail at $10,000
[11]   The trial court set Sutton’s bail at $10,000 during Sutton’s initial hearing on

       February 17, 2016. In setting Sutton’s bail at $10,000, the trial court noted that

       $10,000 is the local standard amount imposed for a Level 3 felony. The trial

       court also noted the seriousness of the offenses with which Sutton was charged.


       Court of Appeals of Indiana | Memorandum Decision 31A01-1603-CR-618 | February 10, 2017   Page 7 of 9
       The trial court, however, acknowledged Sutton’s claimed lack of resources and

       indicated that it would consider a reduction of the bail amount after it received

       more information about Sutton’s circumstances. Given the serious nature of

       Sutton’s offense, we cannot say that the standard $10,000 bail amount was

       excessive. As such, we conclude that the trial court did not abuse its discretion

       in this regard.


                 II. Denial of Sutton’s Request to Reduce Bail
[12]   Later on February 17, 2016, the trial court, at Sutton’s request, conducted a

       hearing during which it considered Sutton’s request for a reduction of his bail

       amount. During this hearing, the trial court noted that the IRAS risk

       assessment found that Sutton was a “Low” risk to re-offend. Appellant’s App.

       Supp. App. Vol. I, p. 6. The trial court also again acknowledged Sutton’s

       claimed lack of resources. The trial court, however, further noted concerns

       regarding whether Sutton might represent a flight risk. In addition, given the

       fact that Sutton was alleged to have committed the charged offenses against a

       young family member, the trial court indicated that it was not comfortable

       reducing the amount of Sutton’s bail until it obtained additional information

       relating to Sutton’s school and family circumstances. The trial court again

       indicated that it would consider a reduction of Sutton’s bail once it had had the

       opportunity to review the additional information. However, before the trial

       court received this additional information, Sutton’s mother posted the $10,000

       cash bond to secure his release.



       Court of Appeals of Indiana | Memorandum Decision 31A01-1603-CR-618 | February 10, 2017   Page 8 of 9
[13]   Given the nature of the charged offenses, it seems reasonable that the trial court

       would seek more information regarding Sutton’s family and school

       circumstances before reducing Sutton’s bail or releasing Sutton on his own

       recognizance. Sutton was charged with Level 3 felony rape and Level 6 felony

       sexual misconduct with a minor stemming from an incident involving his

       younger cousin. It seems completely appropriate that the trial court would seek

       additional information regarding Sutton’s family and school circumstances to

       determine whether Sutton, who at the time was still in high school, would be

       welcome at school pending trial or whether Sutton might constitute a flight risk.

       The reasonableness of the trial court’s request for additional information is

       highlighted by its stated willingness to re-consider its order once it received

       additional information relating to Sutton’s circumstances. Again, given the

       serious nature of Sutton’s alleged crimes, we cannot say that the trial court’s

       denial of Sutton’s request for a bail reduction was clearly against the logic and

       effect of the facts and circumstances before it. As such, we conclude that the

       trial court did not abuse its discretion in this regard.


[14]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 31A01-1603-CR-618 | February 10, 2017   Page 9 of 9
