MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Jan 12 2016, 8:48 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
Noah T. Williams                                         Gregory F. Zoeller
Bloomington, Indiana                                     Attorney General of Indiana
                                                         Indianapolis, Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Enemias Mezo-Reyes,                                      January 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         53A01-1508-CR-1059
        v.                                               Appeal from the Monroe Circuit
                                                         Court II
State of Indiana,                                        The Honorable Marc R. Kellams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         53C02-1501-F1-81



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1059 | January 12, 2016    Page 1 of 7
[1]   Enemias Mezo-Reyes appeals the denial of his motion for bond reduction. He

      contends the trial court abused its discretion by maintaining an excessive bond

      amount in the face of evidence that the amount was originally based on false or

      misleading testimony by a State’s witness.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On January 22, 2015, the State charged Mezo-Reyes with four counts of child

      molesting, one as a Level 1 felony and three as Level 4 felonies. The alleged

      victims were his eleven-year-old twin stepdaughters. At the initial hearing,

      Mezo-Reyes’s bond was set at $50,000 surety and $500 cash. Mezo-Reyes was

      remanded to the Monroe County Correctional Center (MCCC). While in

      MCCC’s custody, the Department of Homeland Security filed an immigration

      detainer on Mezo-Reyes.


[4]   The State filed a Motion to Increase Bail on March 19, 2015, alleging

      “additional evidence relevant to high risk of nonappearance, specifically

      Defendant’s intent and explicitly stated plan to flee the jurisdiction and flee the

      country.” Appellant’s Appendix at 29. At the bond review hearing the next day,

      the State presented the testimony of Josefa Luce, an employee of the Monroe

      County Prosecutor’s Office who is fluent in Spanish. Luce had listened to a

      number of Mezo-Reyes’s telephone conversations made from MCCC to his

      wife and brother. Based on several of these recorded conversations, Luce

      testified that Mezo-Reyes intended to post bond and then flee to Mexico where

      Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1059 | January 12, 2016   Page 2 of 7
      he had family. According to Luce, Mezo-Reyes intended to avoid dealing with

      the charges in this case by returning to Mexico.


[5]   At the conclusion of the hearing, the trial court determined that the State had

      established clear and convincing evidence of a high risk of flight should Mezo-

      Reyes post bond. The court noted Mezo-Reyes’s resident status, the nature and

      gravity of the charges, and his stated intention to leave the country to avoid

      prosecution. Accordingly, the court increased bond to $200,000 surety and

      $5000 cash.


[6]   On July 21, 2015, Mezo-Reyes filed a Motion for Bond Review/Alteration of

      Bond. At the subsequent bond review hearing, Luce was called as a witness by

      the defense to clarify that Mezo-Reyes never used the word “flee” during the

      recorded conversations. The State conceded this point. Rather than fleeing,

      Mezo-Reyes spoke repeatedly about wanting to return to Mexico and posting

      bond so he could be deported. In his conversations, he indicated a preference

      to be deported. He stated that he could see his daughters in Mexico, that he did

      not want to be in prison all of his life, and that there was nothing else for him to

      do here. Luce testified that based on everything she heard, she believed Mezo-

      Reyes was planning to “leave to Mexico.” Transcript at 20. She clarified her

      interpretation of the conversations further, “whether it’s leave or flee, his goal is

      to not be here, not be in jail, and to be in Mexico.” Id. at 24.


[7]   Mezo-Reyes also testified at the hearing. He indicated that he is a citizen of

      Mexico and came to the United States nineteen years ago at the age of ten. He


      Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1059 | January 12, 2016   Page 3 of 7
      acknowledged that if he were in Mexico, he would have difficulty returning for

      trial because he does not “have papers to come back here.” Id. at 46. Mezo-

      Reyes testified that his wife, brother, and uncles live in Indiana, that he has

      never failed to appear for court before, and that he has worked at the same

      place for the last nine years. During cross examination, the defense stipulated

      that Mezo-Reyes’s wife had indicated her willingness to return to Mexico with

      him and the children.


[8]   At the conclusion of the hearing, the trial court noted the seriousness of the

      charges involving two child victims and Mezo-Reyes’s “apparent illegal status”.

      Id. at 53. The court concluded, “there’s enough uncertainty about the

      defendant’s appearance to support the increased bail.” Id. at 58. Accordingly,

      the court denied Mezo-Reyes’s request. Mezo-Reyes now appeals.1


                                            Discussion & Decision


[9]   The amount of bond is within the discretion of the trial court and will be

      reversed on appeal only for an abuse of that discretion. Lopez, 985 N.E.2d at

      360. “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 v.

      State, 946 N.E.2d 1255, 1257 (Ind. Ct. App. 2011). Generally, bond is




      1
       The denial of a motion to reduce bond is a final judgment appealable as of right. Lopez v. State, 985 N.E.2d
      358, 360 (Ind. Ct. App. 2013), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1059 | January 12, 2016            Page 4 of 7
       considered excessive if it is set at an amount higher than reasonably calculated

       to ensure the accused’s presence in court. Lopez, 985 N.E.2d at 360.


[10]   In setting the amount of bond, the trial court is required to consider all facts

       relevant to the risk of nonappearance, including the following factors listed in

       Ind. Code § 35-33-8-4(b):


               (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…;

               (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



       Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1059 | January 12, 2016   Page 5 of 7
               might not recognize and adhere to the authority of the court to
               bring him to trial.

[11]   I.C. § 35-33-8-5 provides the State and a defendant with the opportunity to seek

       alteration of bond. Subsection (c) of the statute states in relevant part: “When

       the defendant presents additional evidence of substantial mitigating factors,

       based on the factors set forth in section 4(b) of this chapter, which reasonably

       suggests that the defendant recognizes the court’s authority to bring the

       defendant to trial, the court may reduce bail.”


[12]   Although our review of an initial setting of bond and our review of a trial

       court’s denial of a motion to reduce are conceptually and legally distinct, the

       two inquiries substantially overlap. Lopez, 985 N.E.2d at 361. In determining

       whether to reduce bond, the trial court considers the same statutory factors

       relevant to the initial setting of bail. Id.


[13]   In considering Mezo-Reyes’s request to reduce bond, the trial court held a

       hearing and received evidence. Although Luce acknowledged that Mezo-Reyes

       never used the word flee, she testified that during the recorded calls, Mezo-

       Reyes consistently spoke of returning to Mexico. Mezo-Reyes indicated in

       these calls that he did not want to be in prison all of his life, that there was

       nothing else for him to do here, and that he could be with his daughters in

       Mexico. There was also evidence presented that Mezo-Reyes’s wife agreed to

       return to Mexico with the children. Further, based upon Mezo-Reyes’s own

       testimony and the statements of his counsel, it could be reasonably inferred that

       he was an undocumented immigrant.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1059 | January 12, 2016   Page 6 of 7
[14]   Based upon the evidence presented at the July 2015 hearing, the trial court

       concluded that enough uncertainty remained with respect to the risk of

       nonappearance to support the increased bail ordered at the conclusion of the

       March 2015 hearing. While Mezo-Reyes presented evidence of his ties to

       Indiana,2 these ties were countered by his own stated desire to return to Mexico

       with his wife and daughters and by indications that he was in the United States

       illegally. The trial court also noted the seriousness of the charges.


[15]   In light of the evidence presented, it was within the trial court’s discretion to

       find that Mezo-Reyes posed a heightened risk of nonappearance based upon his

       recorded statements to family. The trial court did not abuse its discretion by

       denying the motion for bond reduction and maintaining the bond at $200,000

       surety and $5000 cash.3


[16]   Judgment affirmed.


[17]   Robb, J., and Barnes, J., concur.




       2
        He had lived in Indiana for nineteen years, had family (wife, daughters, and other relatives) in Indiana, and
       had worked for the same employer for nine years before his arrest.
       3
         Mezo-Reyes cites two cases for his argument that the bond amount is excessive. These cases are inapposite
       because they involved cash-only bonds with no evidence that the defendants were flight risks beyond the
       severity of their charges. See Winn v. State, 973 N.E.2d 653, 656 (Ind. Ct. App. 2012) (severity of the charges
       supported the amount, but the absence of other factors indicating the defendant was a flight risk lead the
       court to conclude the trial court should have granted his request for the option of a surety bond); Sneed, 946
       N.E.2d at 1260 (same).

       Court of Appeals of Indiana | Memorandum Decision 53A01-1508-CR-1059 | January 12, 2016             Page 7 of 7
