State of Vermont v. Jay Orost
SUPREME COURT DOCKET NO. 2017-391
Supreme Court of Vermont
NOVEMBER TERM, 2017
2017 VT 110
Trial Judge: Thomas Z. Carlson
APPEALED FROM: Superior Court, Lamoille Unit, Criminal Division; DOCKET NOS. 357/362/363/364-10-17 Lecr
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
¶
¶ 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
¶ 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
¶ 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.”
¶ 5. In making a bail determination under
¶ 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).
¶ 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
¶ 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
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.
¶ 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
¶ 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 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
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