MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Dec 10 2015, 9:26 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
William J. Cohen                                        Gregory F. Zoeller
Cohen Law Offices                                       Attorney General of Indiana
Elkhart, Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brent N. Draime,                                        December 10, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A04-1505-CR-380
        v.                                              Appeal from the Elkhart Superior
                                                        Court
State of Indiana,                                       The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable George W.
                                                        Biddlecome, Senior Judge
                                                        Trial Court Cause No.
                                                        20D03-1501-FA-5



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015     Page 1 of 10
[1]   Brent N. Draime appeals the denial of his motion for bond reduction, raising

      the following consolidated and restated issue: whether the trial court abused its

      discretion in denying his request to reduce his bond, which alleged that bail in

      the amount of $750,000 was excessive under the facts and circumstances of this

      case.1


[2]   We reverse and remand.


                                      Facts and Procedural History
[3]   From 1996 through 2003, N.P.2 lived in Elkhart County with her mother

      (“L.P.”) and L.P.’s boyfriend, Draime. On January 20, 2015, the State charged

      Draime with eight counts of Class A felony child molesting,3 one count for each

      of the years from 1996 through and including 2003. Each count alleged that

      Draime, “a person at least twenty-one (21) years of age, did knowingly submit

      to deviate sexual conduct with N.P., a child under fourteen (14) years of age.”

      Appellant’s App. at 47-48.4 That same day, the State filed an Affidavit to Show




      1
        This appeal comes to us following the trial court’s denial of a motion to correct error. We review a trial
      court’s denial of a motion to correct error for an abuse of discretion. Ott v. State, 997 N.E.2d 1083, 1084 (Ind.
      Ct. App. 2013). Draime, however, frames his appeal as if he were appealing directly from the denial of his
      motion for bond reduction. A trial court’s denial of a motion to reduce bond is likewise reviewed for an
      abuse of discretion. Lopez v. State, 985 N.E.2d 358, 360 (Ind. Ct. App. 2013). Because the standard of review
      is the same regardless of how the issue is framed, we address the issue as Draime presents it and determine
      whether the trial court abused its discretion in denying his motion for bond reduction.
      2
       N.P. is now known as N.H.; however, in this decision we will refer to her as N.P. because the alleged acts
      occurred while she was still known by that name.
      3
          See Ind. Code § 35-42-4-3(a)(1).
      4
        We note that Draime filed an amended two-volume appendix; however, for ease of reference, we will refer
      to that document merely as, “Appellant’s App.” Likewise, we will not refer to each volume number because

      Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015             Page 2 of 10
      Probable Cause (“Affidavit”), in which a detective with Elkhart County

      Sheriff’s Department (“ECSD”) averred that, in August 2014, N.P. reported to

      ECSD that Draime had molested her from the time she was six years old until

      she was about thirteen. Although N.P. had reported the abuse in 2004 and

      2005, her mother, L.P., had not believed her, and no charges were filed.


[4]   After examining the Information and Affidavit, the trial court found that

      probable cause existed to issue a warrant for Draime’s arrest and, without a

      hearing, set bail at $750,000. Id. at 44. The trial court issued an arrest warrant,

      which allowed Draime to post only a “Personal Surety Bond or Corporate

      Surety Bond.” Id. at 42. The trial court also issued a no contact order, to

      prevent Draime from being in contact with N.P. upon his release from custody.

      Id. at 2. Once Draime discovered there was a warrant for his arrest, he

      voluntarily turned himself in to ECSD.


[5]   On February 13, 2015, Draime filed “Defendant’s Motion for Bond Reduction”

      and a supporting affidavit. Id. at 36-40. Draime argued that he was sixty-two

      years old, was a lifelong resident of Elkhart County, was employed as a

      maintenance man at the time of his arrest, had lived together with L.P. as

      husband and wife for over twenty years, and had turned himself in to ECSD.

      Id. at 38-39. He also insisted that he was not a danger to anyone or a flight risk

      and that he was financially unable to bond out with a bail amount of $750,000.




      the second volume, which contained mostly confidential information, was paginated to reflect where those
      documents would otherwise have been placed in the first volume.

      Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015       Page 3 of 10
      Id. at 36, 38, 39. Draime maintained that, pursuant to the local rules of Elkhart

      County, the bond should be $150,000. Id. at 39; see Elkhart County Rules of

      Court (“ECRC”) LR20-CR00-CRBS-13(A).


[6]   In anticipation of a bond reduction hearing, the probation department prepared

      a “Bail Review Report.” Id. at 4. Following a hearing on the motion, the trial

      court summarily denied Draime’s motion for bond reduction. Appellant’s App.

      at 12. Draime filed a motion to correct error. The trial court summarily denied

      that motion.5 Draime now appeals.6


                                        Discussion and Decision
[7]   Draime appeals the trial court’s denial of his motion for bond reduction,

      contending that the $750,000 bail was excessive and beyond the amount

      necessary to protect the community and ensure his appearance at future

      proceedings. As a general matter, the setting of the amount of bond 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). “‘An

      abuse of discretion occurs when the trial court’s decision is clearly against the




      5
       In his brief, Draime notes that he filed a motion to dismiss. That motion, however, is not at issue here.
      Appellant’s Br. at 1.
      6
        “Both our [S]upreme [C]ourt and this court have held that the denial of a motion to reduce bail is a final
      judgment appealable as of right.” Winn v. State, 973 N.E.2d 653, 655 (Ind. Ct. App. 2012) (citing State ex rel.
      Peak v. Marion Criminal Court Div. One, 246 Ind. 118, 121, 203 N.E.2d 301, 302 (1965); Sneed v. State, 946
      N.E.2d 1255, 1256 n.1 (Ind. Ct. App. 2011)).



      Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015            Page 4 of 10
      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)).


[8]   The Indiana Constitution prohibits excessive bail. Ind. Const. art. 1, § 16. Bail

      is “a traditional and cherished right,” the goal of which is not to punish in

      advance of conviction but to assure the defendant’s appearance in court. Fry v.

      State, 990 N.E.2d 429, 434 (Ind. 2013); see Samm v. State, 893 N.E.2d 761, 766

      (Ind. Ct. App. 2008) (object of bail is not to effect punishment in advance of

      conviction but to ensure presence of accused before guilt has been proved and

      while presumption of innocence is to be given effect).

              The right to freedom by bail pending trial is an adjunct to that
              revered Anglo-Saxon aphorism which holds an accused to be
              innocent until his guilt is proven beyond a reasonable doubt.
              Unless that right is preserved, the presumption of innocence,
              secured only after centuries of struggle, will lose its meaning.


      Fry, 990 N.E.2d at 434 (citations omitted) (internal quotation marks omitted).


[9]   Our General Assembly has determined that “[b]ail 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.” Ind.

      Code § 35-33-8-4(b). As to the latter factor, the trial court must find by clear

      and convincing evidence that the defendant poses a risk to the physical safety of

      another person or the community. Id. Indiana Code section 35-33-8-4(b)

      specifically requires that in setting and accepting an amount of bail, the judicial




      Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015   Page 5 of 10
officer shall take into account all facts relevant to the risk of nonappearance,

including


        (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.

Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015   Page 6 of 10
       Further, pursuant to the Elkhart County Rules of Court, “Unless otherwise

       ordered by a court,” bail for a Class A felony “shall be . . . $150,000.” ECRC

       LR20-CR00-CRBS-13(A).7


[10]   Motions to reduce bail are provided for by Indiana Code Section 35-33-8-5(c),

       which states: “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 that the defendant recognizes the court’s

       authority to bring the defendant to trial, the court may reduce bail.” In

       reviewing the trial court’s exercise of discretion, we look to the same factors

       relevant to setting the amount of bail. See Sneed, 946 N.E.2d at 1260.


[11]   The trial court held a hearing on Draime’s motion for bond reduction, at the

       start of which Draime admitted that the information in the Bail Review Report

       was correct. During the hearing both parties introduced evidence pertinent to

       the factors listed in Indiana Code section 35-33-8-4(b). The trial court,

       however, neither acknowledged nor expressly considered most of the listed

       statutory factors, and, without comment, summarily denied Draime’s motion

       for bond reduction. As our court has noted:


               It is possible that the trial court’s internal calculus took all of the
               factors into account, but without statements on the record we




       7
        That rule, however, also makes clear, “This Bail/Bond Schedule is advisory. It shall be within the
       discretion of any court to set a bond which is higher or lower than that recommended by the schedule in any
       given case. Any bail setting shall be reviewable at the instance [sic] of any party.” ECRC LR20-CR00-
       CRBS-13(C).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015         Page 7 of 10
               cannot assume that it did so. Therefore, we conclude that by
               failing to acknowledge uncontroverted evidence on several of the
               factors listed in Indiana Code section 35-33-8-4, the trial court
               abused its discretion.


       Reeves v. State, 923 N.E.2d 418, 421 (Ind. Ct. App. 2010) (quoting Samm, 893

       N.E.2d at 768).


[12]   Here, the evidence supported factors weighing in favor of both the State’s and

       Draime’s positions. Specifically, corresponding to the ten factors of Indiana

       Code section 35-33-8-4(b), the following uncontroverted evidence was

       presented. At the time of Draime’s arrest: (1) he was sixty-two years old, had

       been a lifelong resident of Elkhart County, and had lived in the same house for

       at least ten years; (2) he had been working for the same company for five to six

       years before he was arrested, but was unable to post bond; (3) he had ties to

       L.P., with whom he had lived for over twenty years, and he had two sons and

       two sisters, all of whom live in Elkhart County; (4) while not specifically

       designated as a habit, Draime admitted that he drank every night, but claimed

       he did not drink to the point of intoxication; (5) Draime’s criminal history

       consisted of having been charged in 2003 with operating while intoxicated

       (Class C misdemeanor), leaving the scene of a personal property accident (Class

       B misdemeanor), and operating with a blood alcohol content of .08 or more

       (Class A misdemeanor); (6) Draime pleaded guilty to the Class A misdemeanor

       (the other two charges were dismissed) and he was satisfactorily discharged

       from probation; (7) the nature of the charged offenses and gravity of the

       potential penalty were significant, but were alleged to have occurred ten years

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015   Page 8 of 10
       prior; (8) no evidence was introduced regarding the source of funds for posting

       bond; (9) Draime was not unlawfully present in the United States; and (10)

       Draime would comply with authority of the trial court because he voluntarily

       turned himself in to ECSD. Tr. at 6-8; Appellant’s App. at 33-34. Draime

       maintained that he was not a danger to the community and that his bail should,

       at the most, be $150,000 as designated in the local rules. Draime noted, “The

       purpose of the bond is to set an amount that would ensure the defendant’s

       appearance at trial,” to which the trial court added, “And to protect the

       community from [Draime].” Id. at 7. Draime maintained that harm to N.P.

       was unlikely because she lived in a different state, and an order had been issued

       for her protection.


[13]   The State refuted Draime’s claim that he was law abiding by noting that he

       pleaded guilty to operating with a blood alcohol content of .08 or more. The

       State also highlighted that, in 2003, Draime had been charged with operating

       while intoxicated and leaving the scene of a property accident, the former of

       which suggested danger to society, and the latter of which suggested Draime’s

       inability to remain under court authority. Id. at 9. The State also noted

       Draime’s admission that he consumed alcohol every night. From this, the State

       suggested that, based on the nature of the charges and alcohol’s tendency to

       lower inhibitions, Draime could threaten the safety of the community. Id. at 8-

       9; Appellant’s App. at 33-34.


[14]   The trial court recognized that Draime had been charged with eight counts of

       child molesting and that one of the purposes of bail is “to protect the

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015   Page 9 of 10
       community [from the offender],” tr. at 6, 7; however, the trial court failed to

       discuss or explain the nexus between these factors and the bail amount.8

       Moreover, the trial court did not specifically “find by clear and convincing

       evidence that the defendant poses a risk to the physical safety of another person

       or the community.” Ind. Code § 35-33-8-4(b). While each party submitted

       evidence relevant to the factors in Indiana Code section 35-33-8-4(b), at no time

       did the trial court discuss how these factors were relevant to Draime’s risk of

       nonappearance, or how Draime was, in fact, a danger to the community.

       Therefore, we conclude that by failing to acknowledge uncontroverted evidence

       on several of the factors listed in Indiana Code section 35-33-8-4, the trial court

       abused its discretion. Reeves, 923 N.E.2d at 421.


[15]   Having concluded that the trial court abused its discretion when it denied

       Draime’s motion for bond reduction, we reverse the judgment of the trial court

       and remand with instructions for the trial court to set a reasonable bail amount

       and explain how that amount is related to the relevant statutory factors.9


[16]   Reversed and remanded.


       Najam, J., and Barnes, J., concur.




       8
         While noting that the bond could be $1.2 million, $150,000 per count, the trial court failed to explain what
       factors were considered in arriving at the bail amount of $750,000.
       9
         Bail should be established by the trial court and not by this court on appeal. Lopez, 985 N.E.2d at 362 n.2
       (citing Reeves v. State, 923 N.E.2d 418, 422 (Ind. Ct. App. 2010)).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1505-CR-380 | December 10, 2015           Page 10 of 10
