MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                           Aug 20 2018, 10:20 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Robert W. Hammerle                                       Curtis T. Hill, Jr.
Hackman Hullet LLP                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bradley Back,                                            August 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-583
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Jonathan N.
Appellee-Plaintiff.                                      Cleary, Judge
                                                         Trial Court Cause No.
                                                         15D01-1704-F2-12



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018                Page 1 of 13
[1]   Bradley Back appeals the trial court’s denial of his Verified Motion to Reduce

      Bail. We affirm.


                                      Facts and Procedural History

[2]   On April 18, 2017, the State charged Back with: Count I, manufacturing or

      possessing a destructive device as a level 5 felony; Count II, attempting to

      manufacture a destructive device as a level 5 felony; and Count III, criminal

      recklessness while armed with a deadly weapon as a level 6 felony. An entry in

      the chronological case summary (“CCS”) dated April 20, 2017, provides: “Bail

      Order - Bail set in amount of $250,000 Cash and $500,000 Surety.” Appellant’s

      Appendix Volume II at 4. On April 25, 2017, the State filed a motion for leave

      to amend the charging information to add a charge of possessing a destructive

      device as a level 2 felony, to be numbered as Count I, and to renumber the

      remaining counts, and the court granted the motion.


[3]   On May 3, 2017, Back filed a motion for reduction of bond in which he

      requested that he be released on home detention to live with his parents and

      stated that he would be under constant supervision by a family member. Five

      days later he filed a supplement stating that his father was offering to post a

      property bond consisting of his home and 23.42 acres valued at approximately

      $350,000, and that his mother was offering to post a property bond consisting of

      21.348 acres valued at approximately $125,000. That same day the State filed a

      motion to increase bond stating that the charges had been amended to level 2

      felony status.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 2 of 13
[4]   On May 9, 2017, the court held a bail hearing. On May 15, 2017, the court

      issued a Second Bail Order which included the following findings:


              6. Defendant does not have a criminal record or history of
              failure to appear.

              7. Defendant had a gallbladder surgery on February 24, 2017
              and still receives medication for this medical procedure.

              8. The Court considers that a support group consisting of over
              twenty people have come to court to support the Defendant on
              multiple occasions.

              9. Defendant was employed at Equipment Depot in Erlanger
              Kentucky at the time of his arrest.

              10. Defendant owns a home in Dearborn County with equity
              over $40,000.00.

              11. Defendant’s Mother and Father own real property in
              Franklin County, Indiana valued [at] over $475,000 without any
              mortgages.

              12. Defendant has recently received treatment from numerous
              mental health providers including the Lindner Center in
              Cincinnati Ohio and a hospital in West Chester Ohio. At the
              May 9, 2017 hearing, a future treatment plan was not in place but
              the Court was advised the family would continue to assist the
              Defendant in obtaining help. In documents filed after the
              hearing a more detailed plan was provided.

              13. Prior to April 1, 2017, Defendant had overdosed on
              medications.

              14. The Court was advised Defendant’s Mother, Father, and
              other family and friends had been staying with Defendant and
              desperately attempting to help him in weeks leading up to the
              alleged explosion.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 3 of 13
        15. The Court was advised that an individual with felony
        convictions for Dealing Cocaine as well as Possession of
        Methamphetamine and Cocaine, was a tenant and friend at his
        Mother’s home, but all parties agreed he could reside elsewhere.

        16. On April 1, 2017, Defendant’s family sought the help of the
        Indiana State Police when rubber gloves, a handgun, rope, zip
        ties, and duct tape were located in Defendant’s belongings.
        Dearborn County Deputy Sheriff David Jones testified this was
        characterized as an “abduction kit” through his training and
        experience. Defense counsel argued this evidence was consistent
        with suicidal ideations. Deputy Jones testified Defendant
        showed no signs of suicide on that day but that the Defendant
        did not like his physician so the group assembled of family and
        law enforcement was trying to find a different health provider.

        17. In short, the State argues for purposes of bail that Defendant
        is homicidal and suicidal and Defense argues for purposes of bail
        that Defendant is suicidal only.

        18. On April 2, 2017, Defendant was released from the mental
        health treatment that his mother had taken him to the day before.
        On April 2, 2017, Defendant came to his father’s home to get his
        stuff. Deputy Jones testified that his father stated to him that the
        Defendant asked for a gun. At the second bail hearing,
        Defendant’s father testified that he only assumed Defendant
        wanted a gun. Defendant’s father then called the police after he
        had not had any further communication with the Defendant after
        he left his home for three to four more hours and he became very
        worried. A countywide broadcast was issued to look for the
        Defendant.

        19. Indiana State Police Trooper Daniel W. Smith testified that
        he responded from three hours away on Easter Sunday as a
        member of the ISP Explosive Ordinance Disposal (EOD) Unit
        Team on April 16, 2017 when an explosion occurred in Dearborn
        County. Trooper Smith advised that shrapnel in the form of
        metal nuts were located as well as a gift bag near the explosion.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 4 of 13
        He testified that shrapnel was used as means of intimidation and
        injury. He further testified that if someone would have been in
        close proximity to the device it could have been fatal.

        20. The State presented evidence that first responders including
        firemen and law enforcement were put in grave danger when
        they bravely responded to the home and entered the home
        without fulling [sic] knowing what may still be active inside at
        that time, to protect the community.

        21. The explosion at 2567 Ledgestone Dr. in West Harrison,
        Dearborn County, Indiana was so severe that walls of the home
        were moved over four (4) inches. These shocking gaps in walls
        were illustrated in photographs submitted at the second bail
        hearing.

        22. Dearborn County Deputy Sheriff Detective Garland Bridges
        testified that a search of Defendant’s tablet revealed the following
        internet searches: cold cases, mob hits, how gas engines work,
        temperature that ignitor fluid ignites, homemade explosives,
        SUV fuel tank location, pressure cooker bombs, phone tracker
        searches, and firearm searches.

        23. Detective Bridges testified that the tablet search revealed
        repeated, continual trolling and searches of his ex-girlfriend,
        Tracy Henderson’s Facebook account. Also, that Defendant had
        made numerous attempts for Ms. Henderson’s Facebook account
        to be sent directly to him, he had left letters on Ms. Henderson’s
        car at her work; Defendant came to Ms. Henderson’s work, and
        Defendant gave Ms. Henderson’s Children Easter cards after the
        break up.

        24. Detective Bridges testified the Defendant had numerous
        smart phone apps such as Hover Watch, Bluff, and Spoof that
        could be used to locate or track someone and make a phone
        number look like it was a different phone number.

        25. The Court was advised that the Defendant and Ms.
        Henderson had recently broken up.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 5 of 13
              26. The Court was advised that a previous Defendant suicide
              attempt occurred in Delhi, Ohio, near Ms. Henderson’s home.

              27. In a Memorandum filed May 12, 2017, Defendant advised
              that he did not contest an Order of Protection entered in
              Hamilton County Ohio for Tracy Henderson against the
              Defendant. In the Order of Protection Affidavit Ms. Henderson
              stated the Defendant had been harassing her electronically and
              had left notes on her car at work, that Defendant has followed
              her home from work and left cards at her house, and Defendant
              is messaging her children.

              IT IS THEREFORE ORDERED, ADJUDGED, AND
              DECREED the Court finds by clear and convincing evidence
              that the defendant poses a significant risk to the physical safety of
              the community and that he is a significant risk to not appear at
              future hearings. The Court denies the Defendant’s Motions to
              Modify and Reduce Bail and the State’s Motion to Increase Bail.


      Id. at 72-75. On May 24, 2017, Back filed a Motion to Amend Bail Order

      requesting that bail be set to reflect either a $250,000 cash bond or a $500,000

      surety bond, and the court denied the motion.


[5]   On May 25, 2017, a $250,000 cash bond and a $500,000 surety bond were

      posted on Back’s behalf and he was released from custody.


[6]   On February 9, 2018, Back filed a Verified Motion to Reduce Bail. Back

      argued that his bail is excessive because it is significantly greater than an

      amount that would be reasonably calculated to assure his presence at trial. He

      further stated that he had been “diagnosed with autism/Asperger’s and has

      been seeing a therapist on a weekly basis for many months” and that he “has at

      all times timely appeared for his court hearings and is in no danger of fleeing to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 6 of 13
      avoid prosecution.” Id. at 84-85. The motion stated: “In order to post the

      $250,000.00 cash bond, [Back’s] family had the good fortune to receive help

      from family members. A loan was also secured from a local bank. Finally, 42

      acres of their personal property . . . was put up as collateral for the surety

      bond.” Id. at 85. He stated that, since he has been out on bond, he has

      complied with all conditions set by the court and has demonstrated respect for

      the court’s authority and ability to appear at all required proceedings. He

      requested that the court reduce his bail to a surety bond only, in the alternative

      to reduce his cash bond to no more than $25,000, or to set the matter for a

      hearing.


[7]   On February 21, 2018, the court issued an order denying Back’s motion based

      upon the reasons provided in the Second Bail Order.


                                                  Discussion

[8]   Back claims that the trial court erred in denying his motion to reduce bail. The

      amount of bail is within the sound discretion of the trial court. Cole v. State, 997

      N.E.2d 1143, 1145 (Ind. Ct. App. 2013) (citing Sneed v. State, 946 N.E.2d 1255,

      1257 (Ind. Ct. App. 2011) (citing Perry v. State, 541 N.E.2d 913, 919 (Ind.

      1989))). 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.


[9]   The Indiana Constitution prohibits excessive bail. IND. CONST. art. 1, § 16.

      The purpose of bail is to ensure the presence of the accused when required

      without the hardship of incarceration before guilt has been proved and while

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 7 of 13
       the presumption of innocence is to be given effect. Hobbs v. Lindsey, 240 Ind. 74,

       78, 162 N.E.2d 85, 88 (1959). The object of bail is not to effect punishment in

       advance of conviction. Id. The right to freedom by bail pending trial is of

       special significance to the accused who must prepare his defense in the interim.

       Id. at 79, 162 N.E.2d at 88. Bail is excessive if set at an amount higher than

       reasonably calculated to ensure the accused party’s presence in court. Cole, 997

       N.E.2d at 1145 (citing Sneed, 946 N.E.2d at 1257 (citing Hobbs, 240 Ind. at 79-

       81, 162 N.E.2d at 88-89 (“Having thus made a prima facie case of

       excessiveness, the petitioner could rest and the burden then shift to the state to

       show the necessity or justification for the unusual amount of bail required.”))).


[10]   Ind. Code § 35-33-8-4(b) provides in part 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 by clear and convincing evidence that the defendant poses a risk to the

       physical safety of another person or the community.” The statute also provides

       that, in setting bail, the judicial 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 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;
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 8 of 13
               (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;

               (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.


       Ind. Code § 35-33-8-4(b).


[11]   Ind. Code § 35-33-8-5 governs the alteration of bail and provides:


               (a) Upon a showing of good cause, the state or the defendant
               may be granted an alteration or revocation of bail by application
               to the court before which the proceeding is pending. . . .

               (c) 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. However, the court may not
               reduce bail if the court finds by clear and convincing evidence
               that the factors described in IC 35-40-6-6(1)(A) and IC 35-40-6-
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 9 of 13
                  6(1)(B)[1] exist or that the defendant otherwise poses a risk to the
                  physical safety of another person or the community.


[12]   Back maintains that a review of the statutory factors found in Ind. Code §§ 35-

       33-8-4(b) and 35-33-8-5(c) weigh heavily in favor of a reduction in bail. He

       argues the State filed no responsive pleading in objection to his February 9,

       2018 motion and that his motion presented significant additional evidence of

       substantial mitigating factors beyond what was presented at the May 9, 2017

       hearing. He points to the fact that he had been diagnosed with Asperger’s

       syndrome and has been receiving treatment for many months, that he was

       present at every court hearing since his release and was fully in compliance for

       almost nine months at the time he filed the motion, and that his parents are the

       source of the funds used to post his cash and surety bonds and, even with the

       reduction of the cash portion of his bond, they would risk losing their home and

       forty-two acres of land if he failed to appear for trial.


[13]   The State argues the court did not abuse its discretion in denying Back’s third

       request to reduce his bail because it found by clear and convincing evidence that

       he poses a significant risk to the physical safety of the community. The State




       1
           Ind. Code § 35-40-6-6(1)(A) and (B) provide:

                  (A) that an act or threat of physical violence or intimidation has been made against the
                  victim or the immediate family of the victim; and

                  (B) that the act or threat described in clause (A) has been made by the defendant or at the
                  direction of the defendant; . . . .


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018                        Page 10 of 13
       argues that “Back rightly does not challenge any of the trial court’s findings of

       fact as clearly erroneous because they are well-supported by the record.”

       Appellee’s Brief at 16. The State also maintains that Back failed to meet his

       burden to present additional evidence of substantial mitigating factors, the

       claimed financial struggles of Back’s parents is not evidence of a substantial

       mitigating factor and the court is not required to reduce bail to a level that Back

       or his family can easily afford, and Back’s Asperger’s syndrome is not

       additional evidence of a substantial mitigating factor because Back’s mental

       health status was known when his bail was initially set. It also notes Back is

       charged with four felonies including a level 2 felony which carries a maximum

       sentence of thirty years.


[14]   We note that Back does not challenge the factual findings set forth in the court’s

       Second Bail Order. According to the court’s findings, Back had recently

       received treatment from mental health providers; prior to April 1, 2017, Back

       had overdosed on medications; on April 1, 2017, Back’s family sought the help

       of police when rubber gloves, a handgun, rope, zip ties, and duct tape were

       located in Back’s belongings which law enforcement characterized as an

       “abduction kit”; defense counsel argued for purposes of bail that Back was

       suicidal only; on April 16, 2017, an explosion occurred at 2567 Ledgestone Dr.

       which was so severe that walls of the home were moved over four inches; law

       enforcement advised that shrapnel in the form of metal nuts were located as

       well as a gift bag near the explosion; there was testimony that a search of Back’s

       tablet revealed searches including “temperature that ignitor fluid ignites,”


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 11 of 13
       “homemade explosives,” “pressure cooker bombs,” and a “phone tracker,” that

       the tablet revealed “repeated, continual trolling and searches of his ex-

       girlfriend,” and that Back had numerous phone applications that could be used

       to locate or track a person; and the court was advised that Back had previously

       attempted suicide near his ex-girlfriend’s home. Appellant’s Appendix Volume

       II at 73-74. Back has been charged with several crimes including possessing a

       destructive device as a level 2 felony. In addition to finding that he was a risk

       to not appear at future hearings, the court found by clear and convincing

       evidence that Back poses a significant risk to the physical safety of the

       community. See Ind. Code § 35-33-8-5(c) (providing the court may not reduce

       bail if it finds by clear and convincing evidence that the defendant poses a risk

       to the physical safety of another person or the community). Even in

       consideration of the length of time Back had been out on bond and in

       compliance with the terms of his release, his Asperger’s syndrome diagnosis

       and treatment, and the source of funds used to post or secure his bond, we

       cannot conclude that the trial court abused its discretion in declining to find

       that Back has made a showing of good cause to support the alteration or

       reduction of the amount of his cash bond or in finding that Back poses a risk to

       the physical safety of another person or the community.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm the trial court’s February 21, 2018 order.


[16]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 12 of 13
Altice, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-583 | August 20, 2018   Page 13 of 13
