                                                                            FILED
                                                                    Nov 29 2018, 7:14 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                      Curtis T. Hill, Jr.
Columbus, Indiana                                         Attorney General of Indiana
                                                          Caroline G. Templeton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony J. Johnson,                                       November 29, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1753
        v.                                                Appeal from the Bartholomew
                                                          Circuit Court
State of Indiana,                                         The Honorable Kelly S. Benjamin,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          03C01-1803-F3-1704



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018                           Page 1 of 8
                                           Case Summary
[1]   Anthony J. Johnson (“Johnson”) appeals the trial court’s order increasing his

      bail bond from $175,000 to $500,000. Johnson raises one issue on appeal

      which we restate as whether the trial court abused its discretion when it

      increased his bail bond.


[2]   We affirm.



                            Facts and Procedural History
[3]   On March 28, 2018, a detective with the Columbus Police Department

      (“CPD”) filed a probable cause affidavit in which he swore as follows. On

      January 30, 2018, and February 28, 2018, the CPD used a confidential

      informant (“CI”) to conduct controlled buys of methamphetamine from

      Johnson. The CI conducted two more controlled buys of heroin from Johnson

      on March 21, 2018, and March 22, 2018. During the latter buy, Johnson forced

      the CI to remove her clothes so he could check for a wire. Initially, the CI

      removed only her shirt and bra, but Johnson forced her to remove her pants.

      Johnson forcibly put his fingers in the CI’s vagina and pulled her towards him.

      The sergeant conducting the strip search of the CI afterwards noticed blood in

      the CI’s underwear that was not there before the buy. The CI reported that

      Johnson scratched her vagina. She was then transported to the hospital for a

      sexual assault exam. Johnson was arrested on March 23, 2018, and after




      Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018       Page 2 of 8
      transporting him to the jail, the officer found methamphetamine and heroin in

      the back of his police car.


[4]   The State charged Johnson on March 28, 2018, with rape, as a Level 3 felony;1

      two counts of dealing methamphetamine, as Level 3 felonies;2 two counts of

      dealing in a narcotic drug, as Level 5 felonies;3 possession of

      methamphetamine, as a Level 5 felony;4 and possession of a narcotic drug, as a

      Level 5 felony.5 On May 14, 2018, Johnson filed a motion to reduce his bail

      bond, which had been set at $175,000, and the court held a hearing on that

      motion on May 17.


[5]   Johnson testified at the hearing as follows. He is 39 years old and has lived in

      Indiana for thirteen or fourteen years. His mother still lives in Brooklyn, New

      York, but he has four children who live in Columbus, Indiana. Johnson is

      ordered to pay child support but owes an unknown amount in arrearage.

      Johnson was last employed in 2017 and held that job for approximately one

      month. Before that job, he did not have consistent employment and worked at

      a series of temporary jobs. Johnson’s girlfriend’s sister had promised him a job

      upon his release from jail. Johnson has arrests or convictions in Kentucky,




      1
          Ind. Code § 35-42-4-1(a).
      2
          I.C. § 35-48-4-1.1(a), (d).
      3
          I.C. § 35-38-4-1(a)(1).
      4
          I.C. § 35-48-4-6.1(a), (b).
      5
          I.C. § 35-48-4-6(a), (b).


      Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018    Page 3 of 8
      New York, and Delaware, in addition to previous convictions in Indiana. In

      addition, in the past Johnson has failed to appear for two hearings in two

      different Indiana criminal cases.


[6]   Detective Kelly Hibbs (“Det. Hibbs”) of the CPD testified as follows at the

      bond reduction hearing. After Johnson’s arrest, the CI was assaulted by three

      people, sustaining injury to her head and a black eye. Det. Hibbs listened to

      recorded phone calls made by Johnson from the Bartholomew County Jail and

      was able to connect Johnson’s communications to the assault of the CI.

      Johnson used the code words “wine stain” in reference to the CI and stated

      that, if the “wine stain” was “cleaned up” before his trial, he would be “good.”

      Tr. at 24. Two of the perpetrators of the assault were in custody at the time of

      the bond hearing, while the police continue to search for the other perpetrator.


[7]   During the jail phone calls Det. Hibbs heard Johnson express a concern for his

      girlfriend’s safety and arrange for her to obtain a gun. CPD officers executed a

      search warrant for Johnson’s residence and found several firearms. Det. Hibbs

      testified that Johnson’s “access to firearms is apparently readily available,” and,

      based on Johnson’s phone calls from jail, Det. Hibbs did not believe that

      Johnson “will do anything legally when he gets out.” Tr. at 22.


[8]   At the conclusion of the hearing, the State asked the court to consider an

      increase in Johnson’s bail bond. After summarizing the testimony, the trial

      court granted the State’s request, stating:




      Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018     Page 4 of 8
              The Court is concerned regarding safety to the community and
              the C.I. who was involved in this case and also the alleged victim
              of the rape. The Court is concerned with the phone
              conversations that have been discussed here today between Mr.
              Johnson and other people in this community. The Court is not
              going to stand for any type of initiation or contribution to people
              being harmed in this community and finds that type of action a
              sincere threat to the community.


              The Court does not believe that a bond reduction is appropriate.
              I’m going to deny that. In fact, I think given the circumstances
              that have been set forth here today, the Court is going to raise the
              bond to Five Hundred Thousand or Ten Percent cash.


      Tr. at 27. This appeal ensued.



                                 Discussion and Decision
[9]   The amount of bail is within the sound discretion of the trial court and will be

      reversed only for an abuse of discretion. Cole v. State, 997 N.E.2d 1143, 1145

      (Ind. Ct. App. 2013). 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. The Indiana Constitution prohibits excessive bail. IND. CONST.

      art. 1, § 16. Bail is excessive if it is set at an amount higher than reasonably

      calculated to ensure the accused party’s presence in court. Cole, 997 N.E.2d at

      1145. The inability of the accused to procure the amount necessary is not a

      factor that, on its own, renders the amount unreasonable. Lopez v. State, 985

      N.E.2d 358, 361-62 (Ind. Ct. App. 2013) (citing Mott v. State, 490 N.E.2d 1125,

      1128 (Ind. Ct. App. 1986)), trans. denied.

      Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018          Page 5 of 8
[10]   The Indiana Code provides 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” if the court finds that the

       defendant poses a risk to the physical safety of either another person or the

       community. I.C. § 35-33-8-4(b) (emphasis added). The statute further provides

       a non-exhaustive list of factors for the trial court to consider:


               (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 18A-CR-1753 | November 29, 2018             Page 6 of 8
                (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.


       I.C. § 35-33-8-4. The trial court may increase bail where the State provides clear

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

       another person or the community. I.C. § 35-33-8-5(b) (emphasis added). Moreover,

       a court “may not reduce bail if the court finds by clear and convincing evidence

       … that the defendant otherwise poses a risk to the physical safety of another

       person or the community.” I.C. § 35-33-8-5(c) (emphasis added).


[11]   Here, the trial court did not abuse its discretion by increasing Johnson’s bail

       because the State requested such an increase6 and provided clear and

       convincing evidence that Johnson posed a risk to the physical safety of the CI.

       Det. Hibbs’s testimony established that, after Johnson’s incarceration, he

       arranged for the assault of the CI who he is accused of raping. At Johnson’s

       direction, three people assaulted the CI, resulting in two stitches on the back of




       6
         This fact distinguishes Johnson’s case from Cole v. State, where the State never requested an increase in bail
       and the State failed to present evidence to support such an increase. 997 N.E.2d at 1146-47.

       Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018                                Page 7 of 8
       her head and a black eye. And Johnson had ready access to firearms, as

       indicated by his arrangement for his girlfriend to obtain a gun and the firearms

       the police found when they searched his residence. The trial court did not

       abuse its discretion when it credited Det. Hibbs’s assessment that Johnson was

       unlikely to obey the law upon release from jail. Given Det. Hibbs’s

       testimony—in addition to the facts that Johnson had a spotty employment

       history, had a criminal history in four different states including Indiana, had a

       history of failing to appear for other criminal proceedings, and faced significant

       criminal charges—we cannot say the trial court’s decision was against the logic

       and effect of the facts and circumstances before it. I.C. § 35-33-8-4(b), (c); Cole,

       997 N.E.2d at 1145.


[12]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018       Page 8 of 8
