FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN GREGORY F. ZOELLER

Lawrenceburg, Indiana Attorney General of Indiana

CYNTHIA L. PLOUGHE

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

ADOLFO LOPEZ, )

)

Appellant-Defendant, )

)

vs. ) No. 15A01-1212-CR-550

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE DEARBORN CIRCUIT COURT

The Honorable James D. Humphrey, Judge

Cause No. 15C01-1209-FC-89

April 8, 2013

OPINION - FOR PUBLICATION

CRONE, Judge
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Case Summary

Adolfo Lopez appeals the trial court’s denial of his motion for bond reduction. Lopez 

and 108 other individuals were charged with numerous nonviolent crimes involving a chain 

of Acapulco Mexican restaurants co-owned by Lopez. Specifically, Lopez was charged with 

six class C felonies and four class D felonies. The trial court set Lopez’s bond at $3,000,000 

surety plus $250,000 cash. On appeal, Lopez asserts the trial court abused its discretion in 

denying his motion for bond reduction. Finding the bond excessive, we conclude that the 

trial court abused its discretion when it denied the motion for reduction. Therefore, we 

reverse and remand. 

Facts and Procedural History

In 2010, Indiana State Excise Police Officer Timothy Sutton began investigating a 

chain of Acapulco Mexican restaurants after he became aware that the restaurants may not 

have been reporting or documenting all sales. In addition to conducting undercover 

surveillance, Sutton and Indiana Department of Revenue Agent Rick Albrecht reviewed cash 

register receipts, payroll records, income statements from the restaurants, and bank deposits,

which all indicated an underreporting of gross sales. They also ran employees’ social 

security numbers through a state database and discovered fraudulent numbers. The

subsequent execution of a search warrant on various safety deposit boxes owned by Lopez 

resulted in the seizure of cash in excess of $3,000,000. 

On September 24, 2012, the State charged Lopez and 108 other individuals with 

numerous crimes. Specifically, the State charged Lopez with one count of class C felony 
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corrupt business influence, one count of class C felony conspiracy to commit corrupt 

business influence, and four counts of class C felony forgery. The State also charged Lopez 

with four counts of class D felony perjury. These charges involve allegations of failure to 

properly report restaurant sales, failure to pay state sales taxes, falsification of tax forms, and 

the use of false social security numbers. The trial court set bond at $3,000,000 surety plus 

$250,000 cash.

On October 31, 2012, Lopez filed a motion to reduce bond alleging that his bond was 

unconstitutionally excessive and contrary to Indiana Code Section 35-33-8-4(b). Following a 

hearing, the trial court denied Lopez’s motion on November 21, 2012. This appeal ensued.

Discussion and Decision

As a general matter, the setting of the amount of bail is within the discretion of the 

trial court and will be reversed only for an abuse of that discretion. Winn v. State, 973 

N.E.2d 653, 655 (Ind. Ct. App. 2012). We therefore review the trial court’s denial of a 

defendant’s motion to reduce bail for an abuse of discretion. Id. “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). The 

denial of a motion to reduce bail is a final judgment appealable as of right. Id. at 1256 n.1.

The Indiana Constitution prohibits excessive bail. Ind. Const. art. 1, § 16. Bail is 

excessive if set at an amount higher than reasonably calculated to ensure the accused party’s 

presence in court. Sneed, 946 N.E.2d at 1257 (citing Hobbs v. Lindsey, 240 Ind. 74, 79, 162 

N.E.2d 85, 88 (1959) and Ind. Code § 35-33-8-4(b)). When setting and accepting an amount 
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of bail, the trial court is required 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;

(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 of 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.

Ind. Code § 35-33-8-4(b). 

While our review of a defendant’s challenge to the trial court’s initial setting of bail 

and our review of a defendant’s challenge to the trial court’s denial of a motion to reduce bail 

are conceptually and legally distinct, the two inquiries substantially overlap. Sneed, 946 

N.E.2d at 1257-58. In deciding whether to exercise its discretion to reduce bail, the trial 
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court considers the same statutory factors relevant to the initial setting of bail provided in 

Indiana Code Section 35-33-8-4(b). See id.

Here, in considering Lopez’s motion to reduce bond, the trial court held a hearing and 

received evidence, specifically considering the statutory factors listed in Indiana Code 

Section 35-33-8-4(b). The evidence presented indicates that some factors weigh in favor of 

the motion to reduce while other factors weigh against the motion to reduce. We note that

factors 1, 2, 3, 5, 6, and 9 weigh in favor of Lopez’s motion to reduce. Lopez is an eightyear resident of Dearborn County; he has a long and stable employment history, but his assets 

have been seized, severely limiting his ability to post bail; he has been married for fifteen 

years with two children enrolled in local schools; he has no criminal record; he has no record 

of failure to appear in court and his passport has been seized; and he has been a United States 

citizen since 1998. Factors 4, 7, and 10, however, weigh against the motion to reduce and in 

favor of the trial court’s denial of that motion. Indeed, as noted by the trial court, testimony 

regarding Lopez’s alleged business practices do not reflect favorably on his character;1 he is 

facing a possible aggregate penalty of sixty years imprisonment and potential fines of

$100,000 if convicted; and his alleged business practices indicate instability and disdain for 

authority. The trial court also noted that Lopez has been known to frequently visit Mexico 

and that he maintains various ties to that country.

 

1

 The trial court noted that Lopez “opened the door” to the State’s evidence regarding the manner in 

which he conducted his businesses by asserting evidence of his good character and good business practices as 

support for the motion to reduce. Appellant’s App. at 69.
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We are most troubled by the trial court’s apparent failure to consider or give any 

weight to factor 8 regarding 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. As noted earlier, the record 

indicates that all of Lopez’s assets have been seized and that he does not have access to the 

funds necessary to post the extraordinarily high bail set here. While the State asserts that it is 

“reasonable to assume” that Lopez’s brothers, who continue to operate restaurants outside the 

jurisdiction, can procure the necessary funds to satisfy the bond or that Lopez himself likely 

“has access to large funds outside of this jurisdiction,” while possibly true, such speculation 

is not supported by evidence in the record. Appellee’s Br. at 10-11. 

Still, the inability to procure the amount necessary to make bond does not in and of 

itself render the amount unreasonable. Mott v. State, 490 N.E.2d 1125, 1128 (Ind. Ct. App. 

1986). However, we must emphasize that we are dealing with a constitutional right here, and

the goal is not to punish in advance of conviction but to assure the defendant’s appearance in 

court. See Samm v. State, 893 N.E.2d 761, 766 (Ind. Ct. App. 2008). Significantly, the State 

has already seized in excess of $3,000,000 from the search of Lopez’s safety deposit boxes. 

Nonappearance by Lopez jeopardizes his ability to eventually recover any portion of that 

large sum of money. This fact alone indicates that the risk of nonappearance is lowered and 

that the extraordinary bail set here is at an amount significantly higher than reasonably 

calculated to assure Lopez’s presence in court.

Under the circumstances, bond set at $3,000,000 surety plus $250,000 cash is 

excessive and more than necessary to assure Lopez’s presence in court. Accordingly, we 
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conclude that the trial court abused its discretion when it denied Lopez’s motion for bond 

reduction. Therefore, we reverse the judgment of the trial court and remand with instructions 

for the trial court to set a reasonable bond amount based upon the relevant statutory factors. 2

Reversed and remanded.

ROBB, C.J., and FRIEDLANDER, J., concur.

 

2 Bail should be established by the trial court and not by this Court on appeal. Reeves v. State, 923 

N.E.2d 418, 422 (Ind. Ct. App. 2010).