                                         ENTRY ORDER

                                             2017 VT 7

                          SUPREME COURT DOCKET NO. 2017-006

                                     JANUARY TERM, 2017

 State of Vermont                                   }    APPEALED FROM:
                                                    }
                                                    }
    v.                                              }    Superior Court, Chittenden Unit
                                                    }    Criminal Division
                                                    }
 Myron Bullock                                      }    DOCKET NO. 4273-11-16 Cncr

                                                         Trial Judge: James R. Crucitti

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

       ¶ 1.   Defendant appeals the trial court’s order holding him without bail under 13 V.S.A.
§ 7553. We hold that the State met its burden to show that it will have sufficient admissible
evidence of guilt at trial on two of the charges against defendant. Thus, we affirm.

        ¶ 2.     The State charged defendant with three counts: (1) human trafficking, knowingly
obtaining a person through coercion for the purpose of having that person engage in commercial
sex, in violation of 13 V.S.A. § 2652(a)(2); (2) aggravated sexual assault causing serious bodily
injury in violation of 13 V.S.A. § 3253(a)(1); and, (3) kidnapping with the intent to sexually assault
in violation of 13 V.S.A. § 2405(a)(1)(D). Each charge carries a potential sentence of life in prison.
The State moved to hold defendant without bail under 13 V.S.A. § 7553 and the trial court held an
evidentiary hearing on the State’s motion. At the hearing, the State introduced an audio recording
of the alleged victim giving a statement to two state police troopers. One of the troopers
administered an oath to the alleged victim at the beginning of the statement, and the alleged victim
swore to speak truthfully. See V.R.E. 603 (“[E]very witness shall be required to declare that he
will testify truthfully, by oath or affirmation administered in a form calculated to awaken his
conscience and impress his mind with his duty to do so.”).

        ¶ 3.   Defendant objected to admission of the alleged victim’s sworn statement, arguing
that because the statement would not be admissible at trial, it should not be admissible in the trial
court’s hearing on the State’s motion to hold without bail under 13 V.S.A. § 7553. The trial court
admitted the statement, conceding that the statement lacked foundation but deciding that the
statement was nonetheless admissible for the purposes of the § 7553 hearing because it included a
sworn oath. The trial court then concluded that the State presented sufficient evidence to support
holding defendant without bail on both the aggravated sexual assault and kidnapping with intent
to sexually assault charges, and that there were no conditions under which the defendant could be
released. See 13 V.S.A. § 7554(b) (listing factors trial court must consider when determining
whether defendant can be released).

        ¶ 4.   Defendant now appeals the trial court’s ruling. He renews his argument below, and
asks us to hold that evidence inadmissible at trial is likewise inadmissible in a § 7553 hearing.

        ¶ 5.    The Vermont Constitution provides that “[a] person accused of an offense
punishable by . . . life imprisonment may be held without bail when the evidence of guilt is great.”
Vt. Const. ch. II, § 40(1). This particular provision is implemented through 13 V.S.A. § 7553,
which provides that “[a] person charged with an offense punishable by life imprisonment when
the evidence of guilt is great may be held without bail.” While the trial court has broad discretion
in its initial determination of whether a defendant shall be held without bail, we review the
evidence relied on by the trial court de novo. State v. Hardy, 2008 VT 119, ¶ 10, 184 Vt. 618, 965
A.2d 478 (mem.).

        ¶ 6.    In State v. Duff, we incorporated Vermont Rule of Criminal Procedure 12(d) as the
standard required to hold a defendant without bail under § 7553. 151 Vt. 433, 440, 563 A.2d 258,
263 (1989). Rule 12(d) governs dismissal for lack of a prima facie case and requires the State to
establish “by affidavits, depositions, sworn oral testimony, or other admissible evidence that it has
substantial, admissible evidence as to the elements of the offense.” A motion for failure to make
a prima facie case under Rule 12(d) must be dismissed if, taking the evidence in the light most
favorable to the State and excluding all modifying evidence, the State’s evidence can fairly and
reasonably support a finding that defendant is guilty. Duff, 151 Vt. at 439, 563 A.2d at 263.

       ¶ 7.   Defendant interprets our holding in Duff to require the State to present admissible
evidence at a § 7553 hearing sufficient to defeat a 12(d) motion. This interpretation
misunderstands the standard we adopted in Duff and places too high a burden on the State at a
§ 7553 hearing.

         ¶ 8.   As we explained in Duff, application of the 12(d) determination in a § 7553 hearing
involves two distinct analyses: “(1) that substantial, admissible evidence of guilt exists, and (2) the
evidence can fairly and reasonably convince a fact-finder beyond a reasonable doubt that defendant
is guilty.” 151 Vt. at 440, 563 A.2d at 263 (emphasis removed). The first of these analyses requires
the State to demonstrate that there is “substantial, admissible” evidence that can be presented at
trial. But the State is not required under this standard to actually present such evidence during the
course of the § 7553 hearing. The § 7553 hearing is not a trial. The State’s burden is to
demonstrate that it has evidence that will be admissible at trial, not to have it lawfully admitted at
the hearing as if it were a trial.

       ¶ 9.    The Vermont Constitution, as discussed above, includes no presumption of bail for
defendants charged with offenses punishable by life imprisonment. See Vt. Const. ch. II, § 40(1).
Our Duff analysis was anchored to this lack of a constitutional presumption. See 151 Vt. at 436-
37, 563 A.2d 261. And the standard we adopted reaches a middle ground between the burden
required for conviction and the burden required to demonstrate probable cause. It neither requires
the State to show sufficient admissible evidence to find defendant guilty beyond a reasonable
doubt, which would be duplicative of the State’s burden at trial, nor does it allow a trial court to
hold a defendant without bail when the State merely has sufficient evidence to show probable


                                                  2
cause, which would minimize a defendant’s liberty interest and the presumption of innocence. Id.
at 440, 563 A.2d at 263.

        ¶ 10. In this case, the State introduced an oral recording of the alleged victim giving a
sworn statement to two state police troopers. The victim’s statement includes facts which, if true,
would satisfy each element of two of the charges brought against defendant. Thus, if the alleged
victim testifies at trial, the same statement would be admissible evidence and a jury could
reasonably find defendant guilty of the charged offenses. For this reason, we hold that the State
has met its burden under 13 V.S.A. § 7553 and Duff to show that “substantial, admissible evidence
of guilt exists [that] can fairly and reasonably convince a fact-finder beyond a reasonable doubt
that defendant is guilty.” Id. at 440, 563 A.2d at 263 (emphasis removed).

        ¶ 11. The sworn oral statement demonstrates that the State has admissible evidence of
defendant’s guilt that it can use at trial, namely the content of the statement that will be provided
by a live witness at trial. The testimony contained in this statement, including the representation
that the person making the statement is the victim of the criminal actions described in it, is
sufficient to meet the requirements of Rule 12(d).

       Affirmed.


                                                 BY THE COURT:



                                                 Paul L. Reiber, Chief Justice

   Publish
                                                 John A. Dooley, Associate Justice
   Do Not Publish

                                                 Beth Robinson, Associate Justice




                                                 3
