                                        ENTRY ORDER

                                           2017 VT 110

                          SUPREME COURT DOCKET NO. 2017-391

                                    NOVEMBER TERM, 2017

 State of Vermont                                 }   APPEALED FROM:
                                                  }
                                                  }
    v.                                            }   Superior Court, Lamoille Unit,
                                                  }   Criminal Division
                                                  }
 Jay Orost                                        }   DOCKET NOS. 357/362/363/364-10-17 Lecr

                                                      Trial Judge: Thomas Z. Carlson

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

       ¶ 1.    Defendant appeals the trial court’s October 16, 2017 and October 26, 2017
decisions to deny bail under 13 V.S.A. § 7553. We affirm in part, and reverse and remand in part.

        ¶ 2.    Defendant is charged with numerous offenses under four dockets.1 Defendant was
arraigned on the Docket 357 charges in the Lamoille Superior Court on October 16, 2017. The
charges included seven offenses, three of which were punishable by life imprisonment: two counts
of sexual assault of a victim under the age of eighteen entrusted to defendant’s care in violation of
13 V.S.A. § 3252(d), and one count of aggravated sexual assault in violation of 13 V.S.A.
§ 3253(a)(9). On the same date, the State requested that defendant be held without bail because
defendant was “charged with an offense punishable by life imprisonment, and . . . evidence of guilt
[was] great.” 13 V.S.A. § 7553 (“A person charged with an offense punishable by life
imprisonment when the evidence of guilt is great may be held without bail.”). At the arraignment
hearing, the trial court considered: the potential life sentences associated with the charges; the
nature, extent, and severity of the alleged abuse; and the lack of indicia that the allegations were
unreliable. The court held defendant without bail, pending a weight-of-the-evidence hearing.

        ¶ 3.   The trial court held a weight-of-the-evidence hearing on October 26, 2017, and
issued a written decision on the same day, holding defendant without bail pursuant to 13 V.S.A.
§ 7553. Before beginning the weight-of-the-evidence hearing, the trial court arraigned defendant
on the additional charges against him in the three other dockets: Dockets 362, 363, and 364. Of
the various charges asserted in each of those dockets, Docket 364 included two additional charges

         1
           Docket No. 357-10-17 Lecr (filed 10/16/17); Docket No. 362-10-17 Lecr (filed
10/26/17); Docket No. 363-10-17 Lecr (filed 10/26/17); and Docket No. 364-10-17 Lecr (filed
10/26/17). We refer to the respective dockets by the first three digits of the docket number for
ease of reading.
punishable by life imprisonment.2 None of the charges in Dockets 362 or 363 carried potential
life imprisonment penalties; however, Docket 362 included an obstruction-of-justice charge,
alleging that defendant “offer[ed] K.O. . . . $100,000 to drop charges against him, in violation of
13 V.S.A. § 3015.” At the hearing, the court examined whether an affidavit from defendant’s
minor daughter K.O.—the target of the alleged sexual abuse—was admissible and sufficient
evidence of defendant’s guilt, and whether the court should exercise discretion and allow bail
despite the seriousness of the charges and the additional charges in the newly arraigned dockets.
Ultimately, the court held defendant without bail in all dockets. Defendant appealed the October
16, 2017 and October 26, 2017 decisions to this Court, pursuant to 13 V.S.A. § 7556(e) and
Chapter II, § 40 of the Vermont Constitution.

        ¶ 4.    In Docket 357, we affirm the trial court’s denial of bail. An individual may be held
without bail when that person is “charged with an offense punishable by life imprisonment [and]
the evidence of guilt is great.” 13 V.S.A. § 7553. In these cases, “[a] trial judge has the discretion
to allow bail even where, pursuant to 13 V.S.A. § 7553, a defendant is not entitled to it.” State v.
Falzo, 2009 VT 22, ¶ 6, 185 Vt. 616, 969 A.2d 694 (mem.). Docket 357 contained three charges
carrying possible life imprisonment sentences, triggering analysis under 13 V.S.A. § 7553.
Recognizing this, the trial court properly conducted two lines of inquiry to determine: (1) whether
the evidence of defendant’s guilt was great; and (2) whether the court should exercise discretion
in granting bail under the circumstances. We will consider these conclusions in turn.

        ¶ 5.    In making a bail determination under 13 V.S.A. § 7553, the trial court applies the
standard of proof articulated in Rule 12(d) of the Vermont Rules of Criminal Procedure. State v.
Duff, 151 Vt. 433, 440, 563 A.2d 258, 263 (1989) (“[T]he State must show that facts exist that are
legally sufficient to sustain a verdict of guilty.”). To establish a prima facie case that evidence
meets the constitutional threshold set by Rule 12(d), the court will “consider whether substantial,
admissible evidence of guilt, taken in the light most favorable to the State, can fairly and
reasonably convince a fact-finder beyond a reasonable doubt that defendant is guilty.” State v.
Hardy, 2008 VT 119, ¶ 10, 184 Vt. 618, 965 A.2d 478 (mem.). On appeal, this Court
independently determines whether the standard has been met. Id. ¶ 11 (“Because the standard for
assessing the weight of the evidence is an objective one, this Court must determine whether
substantial, admissible evidence of guilt, taken in the light most favorable to the State, can
reasonably and fairly convince a fact-finder beyond a reasonable doubt that the defendant is
guilty.”).

        ¶ 6.   Once the weight of the evidence has been found to be great, we review the trial
court’s decision on whether to deny bail in accordance with the 7554(b) factors for an abuse of
discretion. State v. Pellerin, 2010 VT 26, ¶ 13, 187 Vt. 482, 996 A.2d 204. At this stage, “where
the constitutional right [to bail] does not apply, the presumption is switched so that the norm is
incarceration and not release.” State v. Blackmer, 160 Vt. 451, 458, 631 A.2d 1134, 1139 (1993).



       2
          Docket 364 charged defendant with one count of sexual assault on a minor under the age
of sixteen in the care of defendant in violation of 13 V.S.A. § 3252(e)(1), and one count of sexual
assault of a victim under the age of eighteen entrusted to defendant’s care in violation of 13 V.S.A.
§ 3252(d). Both carry potential life imprisonment penalties.


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        ¶ 7.    First, the court did not err in finding that the evidence of defendant’s guilt was great.
The trial court denied bail based on information by the state’s attorney, affidavits from the
Lamoille County Sheriff’s Department, a sworn affidavit from K.O., and the additional
information and charges against defendant at the October 26 arraignment. K.O.’s affidavit was
particularly persuasive in the court’s assessment. This evidence, taken in the light most favorable
to the State, satisfies the Rule 12(d) standard; the court properly found that evidence of guilt was
great.

        ¶ 8.    Defendant argues that K.O.’s affidavit was inadmissible and insufficient to support
the court’s conclusion. However, this Court’s precedent runs contrary to defendant’s assertions;
affidavits are admissible evidence at bail hearings. See State v. Bushey, 2009 VT 12, ¶ 5, 185 Vt.
597, 969 A.2d 119 (mem.) (holding that sworn oral interview, like affidavit, was admissible at
bail-review hearing); State v. Turnbaugh, 174 Vt. 532, 534, 811 A.2d 662, 665 (2002) (mem.)
(explaining that court has repeatedly considered affidavits offered by both parties in assessing
admissibility for bail hearings); Blackmer, 160 Vt. at 454, 631 A.2d at 1134 (explaining that state
must establish “by affidavits, depositions, sworn oral testimony, or other admissible evidence that
it has substantial, admissible evidence as to the elements of the offense.” (quotation omitted)
(emphasis added)). Thus, the court did not err in allowing K.O.’s affidavit as evidence in
defendant’s bail hearing or in relying on it in determining the evidence of guilt was great.

        ¶ 9.    Second, defendant contends that K.O.’s affidavit was insufficient because it was
not specific enough to support the charges against defendant. We do not agree. Defendant argues
that K.O.’s allegations lacked specific dates and times for particular instances of abuse, rendering
the affidavit insufficient to meet the Rule 12(d) standard. Under Rule 12(d), the trial court must
consider whether the evidence, taken in the light most favorable to the State, “can fairly and
reasonably convince a factfinder beyond a reasonable doubt that the defendant is guilty.” State v.
Baker, 2015 VT 62, ¶ 2, 199 Vt. 639, 116 A.3d 1192 (mem.). It is not the role of the trial court to
judge the State’s case, but to determine “whether the facts adduced by the State, notwithstanding
contradiction of them by defense proof, warrant the conclusion that if believed by a jury they
furnish a reasonable basis for a [guilty] verdict.” Turnbaugh, 174 Vt. at 534, 811 A.2d at 665
(quotation omitted) (alteration in original). In this case, defendant is charged with multiple counts
of sexual assault of his minor child in violation of 13 V.S.A. §§ 3252(d) and 3253(a)(9). K.O.’s
affidavit states that her father engaged in sexual contact with her numerous times since she was
ten, and provides the locations, as well as estimates regarding the extent and duration, of this
activity over the past seven years. The affidavit details defendant engaging in sexual activities,
such as manual stimulation, oral sexual contact, and digital vaginal penetration, with K.O., his
minor daughter. These statements, if believed by a jury, would be sufficient to support a conviction
on these charges. Therefore, the affidavit was sufficient to satisfy Rule 12(d), and the trial court’s
reliance on K.O.’s affidavit was without error; the court properly denied bail under 13 V.S.A.
§ 7553.

        ¶ 10. Additionally, the court determined in the exercise of its discretion not to grant
defendant bail. Falzo, 2009 VT 22, ¶ 6 (“A trial judge has the discretion to allow bail even where,
pursuant to 13 V.S.A. § 7553, a defendant is not entitled to it.”). In reaching this conclusion, the
court examined the factors listed under 13 V.S.A. § 7554(b). In the exercise of its discretion, “a
trial court may look to the factors listed in 13 V.S.A. § 7554(b) to decide whether a defendant
should be granted bail regardless of the presumption of incarceration.” State v. Henault, 2017 VT


                                                   3
19, ¶ 4, __ Vt. __, 167 A.3d 892 (mem.) (applying the factors listed in 13 V.S.A. § 7554(b) to a
13 V.S.A. § 7553 appeal, even though the text of the section only addresses appeals of conditions
of release). These factors include:

               the nature and circumstances of the offense charged, the weight of
               the evidence against the accused, the accused’s family ties,
               employment, financial resources, character and mental condition,
               the length of residence in the community, record of convictions, and
               record of appearance at court proceedings or of flight to avoid
               prosecution or failure to appear at court proceedings.

Id.; 13 V.S.A. § 7554(b).

        ¶ 11. Here, the judge considered the seriousness of the numerous charges against
defendant across all four dockets, the charges that defendant violated outstanding protective
orders, the obstruction-of-justice charge, the fact that five of the charges involved potential life
imprisonment, and defendant’s family ties. Based on these factors, the court denied bail. The
judge stated:

               [W]e’re now looking at a total of twenty-one charges, four or five
               punishable by life in prison and several of which involve violations
               of outstanding court orders and what appears to be—at least, if you
               accept the allegations as true—an attempt to persuade his daughter
               to recant by way of offering her cash, his leaving the jurisdiction,
               and taking other extreme measures and trying to use her mother to
               persuade her to do that on the ground that this was all going to ruin
               the family economically.

The judge did not credit defendant’s family ties as sufficient to bind him to the community and
appear in court. The various sexual allegations by defendant’s daughter, alongside defendant’s
attempts to manipulate K.O. and her mother into recanting these allegations by applying financial
pressure, “undercut the question of family ties.” Prior to K.O.’s allegations, defendant lived with
K.O. and her mother, his former stepdaughter. Following the charges, defendant’s wife filed for
an annulment of their marriage. Defendant is no longer permitted to have contact with K.O. and
has limited contact with other family members. These factors further support the court’s concern
regarding defendant’s nonappearance in court due to the change in family circumstances. Due to
the nature and severity of the charges, the additional charges brought against the defendant, and
the sudden change in defendant’s family dynamics, the court denied bail. While the trial court
could have provided a more detailed analysis of the 13 V.S.A. § 7554(b) factors, its discussion of
the multiple significant factors that were central to its analysis was sufficient in this case, and we
therefore affirm.

       ¶ 12. Regarding the additional charges brought before the trial court at the October 26
hearing, we reverse and remand the court’s denial of bail in Dockets 362 and 363. Looking to the
proceedings below, the court’s order to hold defendant without bail in these dockets, based on its
decision to grant the hold-without-bail order in Docket 357, was error. The bail order in these two
dockets must be reversed because: (1) these dockets contain no charges carrying potential penalties


                                                  4
of life imprisonment; (2) the State has not clearly asked for the court to hold defendant without
bail in either of these dockets pursuant to 13 V.S.A. § 7553a; and (3) the court has not made the
required findings under 13 V.S.A. § 7553a. Because Docket 364 contains charges punishable by
potential life imprisonment, the hold-without-bail analysis employed in Docket 357 is equally
applicable in this docket. Applying that analysis, we agree the evidence of guilt is great in that
docket as well. Accordingly, we affirm the hold-without-bail orders in Dockets 357 and 364, and
we reverse and remand in Dockets 362 and 363 for determination of bail in those dockets.3

        The bail orders in Docket Nos. 357-10-17 Lecr and 364-10-17 Lecr are affirmed. The
orders pertaining to Docket Nos. 362-10-17 Lecr and 363-10-17 Lecr are reversed and remanded.



                                                BY THE COURT:



                                                Paul L. Reiber, Chief Justice

   Publish
                                                Beth Robinson, Associate Justice
   Do Not Publish

                                                Harold E. Eaton, Jr., Associate Justice




       3
         Because the hold-without-bail orders do not apply to all dockets upon which defendant
has been arraigned, the issue of bail remains relevant in Dockets 362 and 363 insofar as it may
impact defendant’s credit for time served in the event he is convicted on charges in these dockets.


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