                                       ENTRY ORDER

                        SUPREME COURT DOCKET NO. 2013-192

                                       May TERM, 2013

State of Vermont                                  }    APPEALED FROM:
                                                  }
                                                  }
   v.                                             }    Superior Court, Orange Unit,
                                                  }    Criminal Division
Stephen Messier                                   }
                                                  }    DOCKET NO. 164-5-13 Oecr
                                                  }
                                                       Trial Judge: Timothy Tomasi

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

        Defendant appeals the denial of his motion to review bail, arguing that he cannot afford
the bail imposed and that other, nonmonetary conditions would suffice to ensure his appearance
in court. Recognizing this Court’s highly deferential standard of review in these cases, I affirm.

       Defendant is currently charged with attempted lewd and lascivious conduct with a child
and lewd and lascivious conduct with a child, both in violation of 13 V.S.A. § 2602. At his
arraignment, on May 9, 2013, the State requested bail in the amount of $75,000. The court
imposed a series of conditions not subject of this appeal and set bail at $10,000 to encourage
appearance, noting defendant’s residence in a short-term hotel at the time of his arrest, lack of
employment, and allegations that defendant indicated he hoped to move to Florida to get away
from his problems.

       Unable to post the required bail, defendant on May 13 moved the court to review bail. In
response to concerns about defendant’s residence, defendant’s grandmother testified that she
would be willing to have defendant live in her house, which is located on the same parcel as
defendant’s mother’s home. Defendant’s counsel also reiterated that defendant, because of his
emotional and cognitive difficulties, lacked the independent monetary or experiential resources
to make good on any purported plan to move to Florida.

        On review, the court observed that defendant did not have a significant criminal record,
had no escape or failure-to-appear charges, has family in the area, and participates in ongoing
medical and psychiatric counseling, requiring weekly appointments. The court nevertheless
concluded that cash bail in some amount remained appropriate because it perceived some risk of
flight. In support of this conclusion, the court noted that defendant faces two felony charges,
each of which carry a penalty of up to fifteen years in prison; defendant’s professed interest in
relocating to Florida offered some insight into defendant’s mental state; the evidence, at least as
recounted in the State’s affidavit of probable cause, was strong; and, finally, that defendant’s
grandmother would not be able to provide supervisory oversight adequate to ensure defendant’s
appearance in court.

        Defendant timely appealed the trial court’s denial of his motion to review bail. At oral
argument, defense counsel maintained that his grandmother’s home would afford a stable
location that defendant would lack the resources to depart the jurisdiction, in part, because his
mother is the payee for the Social Security payments that constitute his sole source of regular
monthly income. Defense reiterated that defendant had never handled his own affairs, did not
have a driver’s license, and relied entirely on a case worker for his transportation needs.

       On appeal, this Court reviews bail conditions under a highly deferential standard. See 13
V.S.A. § 7556(b) (“Any order so appealed shall be affirmed if it is supported by the proceedings
below.”); State v. Weller, 152 Vt. 8, 8 (1989) (“Our review is limited to whether the order
appealed from is supported by the proceedings below.) (quotation omitted). It is, thus, not for
this Court to reweigh the facts but rather to serve as a check, determining whether adequate
support exists in the record for a trial court’s bail determination.

         Our bail statute indicates that where the court is not satisfied that personal recognizance
or an unsecured appearance bond are sufficient to ensure a defendant’s later appearance in court,
it must impose the least restrictive condition or combination of conditions that will reasonably
assure defendant’s appearance. See 13 V.S.A. § 7554(a). The statute identifies an increasingly
restrictive list of possible conditions. These conditions can include placing a defendant in the
supervisory custody of a person or organization. Id. § 7554(a)(1)(A). They may also include the
imposition of a cash or surety bond in a specified amount. Id. § 7554(a)(1)(E). A surety bond or
cash bail may not be imposed solely for the purpose of keeping a defendant in custody. See
State v. Duff, 151 Vt. 433, 436 (1989) (purpose of bail to assure court appearance).
Nevertheless, bail is not excessive or unjustified merely because a defendant cannot afford it. Id.
In isolation, the severity of the charges would not provide a sufficient evidentiary basis for a
court’s conclusion that a defendant poses a flight risk requiring the imposition of bail. See Duff,
151 Vt. at 436 (“If that alone were sufficient to set a high cash bail amount, the constitutional
right to bail would be a nullity for all defendants charged with serious crimes.”). The potential
threat of incarceration is a factor that must, however, be considered. § 7554(a) and (b). When
setting those conditions, the court is specifically required to take into consideration: the nature
and circumstances of the alleged crime, the weight of the evidence, family ties, employment,
financial resources, character and mental condition, length of residence in the community,
convictions and appearance track record. 13 V.S.A. § 7554(b).

        I find that the record reflects adequate support for the trial court’s conclusions and that
the court’s decision to impose a cash bail to assure appearance is not unreasonable. See Weller,
152 Vt. at 10 (affirming trial court bail determination where reasonable in light of record and
conclusions). First, as the trial court noted, defendant faces two charges which carry the risk of
significant jail time if convicted and this was not the sole basis for its imposition of cash bail. Cf.
Duff, 151 Vt. at 436. Second, the evidence as outlined in the affidavit of probable cause appears
to be strong in light of potentially incriminating statements defendant allegedly made to an
investigating officer. The trial court could logically infer that a greater possibility of conviction
increases the incentive to flee, even if, as defense counsel argues, defendant’s apparent
cooperation with police might also suggest a lack of desire to abscond. Third, although it is far


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from clear that defendant’s purported profession of an intent to relocate to Florida relates directly
to the pending charges or that such a move would be logistically or financially feasible for
defendant, the statements nevertheless might be taken to indicate a mental state focused on
evasion. Lastly, the trial court expressly considered but rejected the less restrictive option of
appointing defendant’s grandmother to supervise defendant. In deciding to maintain the cash
bail, the court expressed doubt that grandmother would be able to provide adequate supervision
to ensure defendant’s appearance in court.* The record reasonably supports that conclusion.
Defendant’s grandmother testified that she works as a nurse and would therefore be absent about
nine and a half hours a day, five days a week. The grandmother indicated that during her
absence, defendant’s mother could supervise him. It would not be unreasonable for the court to
conclude that this arrangement would provide inadequate oversight to ensure court appearances,
particularly given the fact that the circumstances under which defendant initially moved out of
his mother’s home are not clear from the record. Moreover, defendant’s grandmother also
indicated that it had been three years since he lived with her and that she was not particularly
close with him.

        In sum, the record contains sufficient support for the trial court’s conclusion that
defendant posed an unreasonable flight risk absent the imposition of a cash bail requirement
because of the severity of the charges, weight of the evidence, and defendant’s own professed
intent to relocate to Florida to get away from his problems, whether those related to pending
allegations or not.

       Affirmed.


                                                 FOR THE COURT:



                                                 Paul L. Reiber, Chief Justice




       *
          The trial court also concluded that grandmother’s supervision would be insufficient to
ensure defendant did not have contact with minor children. While this is not an observation
appropriately bearing directly on the amount of bail to set, the court may properly consider this
factor in determining that the house provided an inappropriate setting for defendant’s conditional
release and therefore rendered the grandmother’s supervision in lieu of bail impracticable.


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