MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this                           Dec 29 2017, 11:41 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                         CLERK
                                                                       Indiana Supreme Court
purpose of establishing the defense of res judicata,                      Court of Appeals
                                                                            and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ross G. Thomas                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Gregory A. Traylor,                                      December 29, 2017

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         03A01-1709-CR-2017
        v.                                               Appeal from the Bartholomew
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelly Benjamin,
                                                         Judge
Appellee-Plaintiff.
                                                         Trial Court Cause No. 03C01-1708-
                                                         F2-4359




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CR-2017 | December 29, 2017       Page 1 of 9
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Gregory Traylor (Traylor), appeals the trial court’s Order

      denying his motion for reduction of bail.


[2]   We reverse and remand with instructions.


                                                   ISSUE
[3]   Traylor raises one issue on appeal, which we restate as: Whether the trial court

      abused its discretion by denying his motion to reduce his bail of $5,000,000.


                      FACTS AND PROCEDURAL HISTORY
[4]   On August 3, 2017, an investigator with the Indiana State Police obtained and

      executed a search warrant for Traylor’s home located at 7650 West State Road

      46, in Bartholomew County, Indiana. During the search, one ounce of

      methamphetamine, fifteen pounds of marijuana, and four grams of heroin were

      recovered. Because there were copious amounts of pseudoephedrine in

      Traylor’s home, the methamphetamine suppression unit was summoned for

      assistance. The methamphetamine unit seized several items linked to the

      manufacturing of methamphetamine, including organic solvents, drain

      cleaners, and containers. The Indiana State Police also recovered at least

      seventy firearms. Lastly, agents from the Bureau of Alcohol, Tobacco,

      Firearms, and Explosives (ATF) located numerous improvised explosive

      devices on Traylor’s property.




      Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CR-2017 | December 29, 2017   Page 2 of 9
[5]   On August 9, 2017, the State filed an Information, charging Traylor with Count

      I, manufacturing of methamphetamine, a Level 2 felony; Count II, dealing in

      methamphetamine, a Level 2 felony; Count III, possession of a narcotic, a

      Level 5 felony; Count IV, possession of a destructive device, a Level 5 felony;

      and Count V, dealing in marijuana, a Level 5 felony. A bench warrant for

      Traylor’s arrest was issued on the same day, and the trial court set Traylor’s

      bond at “$5,000,000 or 10% CASH.” (Appellant’s App. Vol. II, p. 12).

      Pursuant to Traylor’s request, on August 31, 2017, the trial court conducted a

      bond review hearing to reduce his bond. At the close of the hearing, the trial

      court denied Traylor’s request.


[6]   Traylor now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[7]   Traylor appeals the trial court’s denial of his motion to reduce bail, contending

      that the $5,000,000 bail was excessive and beyond the amount necessary to

      protect the community and to ensure his appearance at future proceedings. The

      amount of bail is within the discretion of the trial court and will be reversed on

      appeal 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 logic and effect of the facts and circumstances

      before it.” Sneed v. State, 946 N.E.2d 1255, 1257 (Ind. Ct. App. 2011). We will

      not reweigh the evidence, and we consider any conflicting evidence in favor of

      the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App.


      Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CR-2017 | December 29, 2017   Page 3 of 9
      2005), trans. denied. “The amount [of bail] is to be determined by consideration

      of the circumstances of each case and is to be set only in an amount necessary

      to assure the presence of the accused at an appropriate time and his submission

      to the authority of that court.” Mott v. State, 490 N.E.2d 1125, 1127 (Ind. Ct.

      App. 1986).


[8]   The Indiana Constitution prohibits excessive bail. See 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).

              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.


      Id. (citations omitted).


[9]   In setting a reasonable amount of bail, Indiana Code Section 35-33-8-4(b)

      specifically requires the court to 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;

      Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CR-2017 | December 29, 2017   Page 4 of 9
               (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.


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

       which states: “[w]hen 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.” Even

       though the statute governing motions to reduce bail implicitly places the burden

       on the defendant to establish that the trial court’s setting of bail was excessive,

       Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CR-2017 | December 29, 2017   Page 5 of 9
       the statute does not by its terms require a showing of changed circumstances in

       order for the trial court to reduce bail. Rather, I.C. § 35-33-8-5(c) refers to the

       same statutory factors relevant to the initial setting of bail. See Sneed, 946

       N.E.2d at 1258-59. “While there is a conceptual and legal distinction between

       the review of the trial court’s decision in initially setting bail and review of its

       discretion in declining to reduce bail, the two inquiries substantially overlap.”

       Id. at 1258.


[11]   Here, in considering Traylor’s motion to reduce bail, the trial court conducted a

       hearing and received evidence, considering the statutory factors listed in

       Indiana Code Section 35-33-8-4(b). Applying the statutory factors, we

       recognize that most of the factors favor a bond reduction. At the hearing,

       Traylor presented uncontroverted evidence of his close ties to the community.

       He was born in Jasper, Indiana and has lived in Bartholomew County since he

       was fifteen years old. Traylor’s mother, his two siblings, and Traylor’s three

       adult children reside in the County. He testified that he maintains close family

       contact and two of his children were present in his support at the bail reduction

       hearing. Traylor advised the court that he owned a home in Columbus,

       Indiana, where he would reside pending trial. He did not object to being placed

       on pre-trial home detention as a condition of bail.


[12]   In addition, Traylor informed the court that he had worked as a city employee

       for the City of Columbus for approximately twenty years, until 1997. Since

       1997, he has cashed in his retirement and worked in construction, doing

       remodeling work as a contractor. As to Traylor’s criminal history, evidence

       Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CR-2017 | December 29, 2017   Page 6 of 9
       indicates that he pleaded guilty to a misdemeanor conviction for operating

       while intoxicated in 1987, for which he successfully completed probation. He

       never missed a court hearing, nor is there any evidence suggesting a disdain for

       the court’s authority to bring him to trial. In short, factors 1, 2, 3, 5, 6, 8, 9, and

       10 favor Traylor’s request to reduce bail.


[13]   However, factor 7 directs us to consider the gravity of the charges and the

       potential penalties Traylor faces. At his bond review hearing, the trial court

       noted that if Traylor was convicted for his offenses, he potentially faced thirty-

       year sentences for each of his two Level 2 felonies, and six years for each of his

       three Level 5 felony offenses. The trial court also noted the seriousness of

       Traylor’s offenses and stated:

               You look at the probable cause affidavit as well as State’s Exhibit
               Number 2, which was admitted here today in regard to the types and
               quantities of alleged controlled substances and alleged [drug] processes
               that were going on in the home where Mr. Traylor allegedly lived. But
               the [c]ourt cannot ignore that either and the [c]ourt does find that it is
               significant in regard to posting bond or setting bond in this matter as to
               the safety of other persons and the community. I’m not going to
               ignore the heightened depths in the past year that we have experienced
               in this community. The heightened community crisis that we are in
               surrounding drugs. It is serious, it is real and it is here.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CR-2017 | December 29, 2017   Page 7 of 9
       (Tr. Vol. II, p. 34). 1


[14]   Nevertheless, Traylor’s bail of $5,000,000 is high in comparison to cases where

       defendants facing similarly severe charges have challenged their bail as

       excessive. See, e.g., Wertz v. State, 771 N.E.2d at 680-82 (affirming bail of

       $1,000,000 for defendant charged with one Count of Class A felony dealing in

       cocaine, when trial court found defendant posed a risk to safety of others and

       defendant had a history of failing to appear in court); Custard v. State, 629

       N.E.2d 1289, 1292 (Ind. Ct. App. 1994) (affirming bail of $275,000 for

       defendant charged with one Count of Class A felony dealing in cocaine);

       Sherelis v. State, 452 N.E.2d 411, 414 (Ind. Ct. App. 1983) (holding $1,000,000

       bail was excessive; defendant was charged with five Counts of delivery of a

       controlled substance, including four as Class A felonies, but had strong

       community ties and reputation and no criminal history).


[15]   Mindful of the statutory factors and the record, it becomes apparent that the

       bail amount set by the trial court is unreasonably high. Traylor is a long-

       established resident of Bartholomew County, with strong family and

       community contacts. He has real estate investments in the State and is without




       1
        No evidence was presented on factor 4, i.e., evidence of Traylor’s character, reputation, habits, and mental
       conditions. See I.C. § 35-33-8-4(b).

       Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CR-2017 | December 29, 2017           Page 8 of 9
       a relevant criminal record. While we acknowledge the seriousness of the

       charges brought against Traylor, the trial court’s statement alluding to the

       present heightened community crisis due to the presence of drugs leads us to

       believe that the bail amount was set as a punishment rather than to secure

       Traylor’s appearance in court. See Fry, 990 N.E.2d at 434. As “bail should be

       tailored to the individual in each circumstance,” we conclude Traylor’s bail of

       $5,000,000 to be excessive, we reverse the trial court’s decision and remand to

       the court with instructions to set a reasonable bond. See Samm v. State, 893

       N.E.2d 761, 766 (Ind. Ct. App. 2008).


                                             CONCLUSION
[16]   Based on the foregoing, we hold that the trial court abused its discretion in

       denying Traylor’s motion to reduce his bond amount of $5,000,000 and remand

       with instructions for the trial court to set a reasonable bond amount based on

       the relevant statutory factors.


[17]   Reversed and remanded with instructions.


[18]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CR-2017 | December 29, 2017   Page 9 of 9
