ENTRY ORDER

201 8 VT 62

SUPREME COURT DOCKET NO. 2018

- 182

JUNE TERM, 2018

State of Vermont } APPEALED FROM: }

v. } Superior Court, Bennington Unit

, } Criminal Division } Joshua Boyer } DOCKET NO. 370

- 4

- 18 Bncr

Trial Judge: William D. Cohen

In the above

- entitled cause, the Clerk will enter:

¶ 1. Defendant Joshua Boyer appeals the trial court’s decision to deny his motion to be

release d into the home detention program under 13 V.S.A. § 7554b.

¶ 2. On Saturday, April 21, 2018, defendant was arrested for the alleged sexual assaul t
of his fourteen

- year

- old daughter, M.B. , based on allegations that defendant repeatedly forced her to engage in both oral and vaginal sexual intercourse

. Pending arraignment on the following Monday, th e after

- hours judge on duty set bail at $10,000 and conditions for release, per the arresting officer’s request. Defendant posted bail over the weekend and returned to court on Monday, April 23, where he was charged with: one count of a ggravated s exual a s sault of a c hild,

r epeated, under 13 V.S.A. § 3253a (a)(8) ; one count of a ggravated a ssault under 13 V.S.A. § 1024(a)(1); and one count of a ggravated s exual a ssault of a c hild with s erious i njury under 13 V.S.A. § 3253a(a)(1). The aggravated assault charge was enhanced to possible life imprisonment under 13 V.S.A. § 11a, the violent career criminal statute . At the arraignment hearing , the State requested that defendant be held without bail under 13 V.S.A. § 7553 (a) , which the trial court granted.

¶ 3. On April 25, defendant applied to be released on pretrial home detention , under 13 V.S.A. § 7554b, to the residence of his mother

- in

- law. The trial court held an initial hearing on defendant’s motion on May 9. Defendant called his mother

- in

- law to testify. She t estified that she was willing to allow defendant to live with her and her boyfriend at her residence and that she understood the requirements of the home detention program. She also testified that she understood the seriousness of the charges against defe ndant and that she did not consider defendant a violent person, despite his four previous convictions for aggravated assault and aggravated domestic assault and his violation of an abuse prevention order. She acknowledged that defendant had only recently come off supervision of the Department of Corrections (Department) days before his

arrest. She also noted that her close neighbor s had children living with them.2

¶ 4. The State called two witnesses. First, the State called the investigating detective in

the c ase. The detective testified that he had arrested defendant and that the trial court had released

defendant on bail over a weekend. He noted that, a day after defendant posted bail, he went to

defendant’s residence to look for additional evidenc e. He al leged that possible evidence had been destroyed

— the trash in the victim’s room , which allegedly contained condoms used during the most recent sexual assault, ha d been removed and laundry that possibly contained DNA had been

washed. The second witness to t estify for the State was M.B. She testified that s he had concerns for others’ safety

— specifically defendant’s wife and children

— if defendant was released , and that there had been violence in the household while defendant was previously under the supervisi on of the Department . M.B. also testified that, in her opinion, defendant could partially comply with conditions of release, but noted that he had violated them in the past and thus could do it again.

¶ 5. At the close of the hearing, the trial court denied de fendant’s request for home detention, citing the need for more information regarding the proposed residence

— including its

location , circumstance s
, and relationship to other homes

— and clarification on the details of the monitoring system used in the home de tention program. The trial court noted that, while it appreciated the testimony of defendant’s mother

- in

- law, it wanted to hear more information regarding the proposed residence and the monitoring system from a representative of the Department.

¶ 6. The next hearing was held on May 15. Before witnesses were called, the trial court

reiterated that it requested the hearing because it was unable to make the specific findings required regarding risk to the public and to the residents because it did not have any information about the

house other than where it was located , and that the second hearing was to give defendant an opportunity to present additional information. Defendant then called two witnesses, both from the Department. The first wa s a probation officer who visited and inspected the proposed house , and the second was a supervisor at the Department who supervised the county’s monitoring system.

¶ 7. The first witness confirmed that he had conducted the investigation of defendant’s

mother

- in

- law’s residence. He testified that the residence met the basic requirements of the home detention program, including that there were no firearms or alcohol at the residence, that no one in the residence object ed to the proposed home detention, and tha t the electronic monitoring equipment work ed at the residence. He verified that admitted photographs of the property were accurate, and approximated the distance s to the neighbors’ homes

— about 50 feet from one neighbor’s home in which juveniles lived and about 75 to 100 feet from another neighbor. The second witness testified how the electronic monitoring system work ed , describing the protocol as to how the Department and law enforcement respond to an alert that an individual left the residence

where he o r she is supposed to be.

¶ 8. At the close of the second hearing, the trial court denied defendant’s motion for release on home detention based on its analysis of the statutory factors of 13 V.S.A. § 7554b. Before explaining its reasoning regarding the statut ory factors , the trial court noted its support of the home detention program “especially as it’s applied in Bennington County and the way Bennington County Department of Corrections utilizes it, analyzes it, provides the information, and appropriately choo ses through a process

. . . cases that should fit within the home detention protocols as applied.” It went on to comment that it believed the way the system worked in the

count y was good and that “it is what the [L] egislature intended” and that “it should be utilized in3

all potential cases.” The court then turned to its analysis of the three § 7554b factors . First, it considered “the nature of the offense with which” defendant was charged

, 13 V.S.A. § 7554b(b)(1), finding that the charged offense s were s erious because if convicted, they came with a sentence of imprisonment for not less than twenty

- five years to serve, with a maximum of life.

It then considered the second factor

— “defendant’s prior convictions, history of violence, medical

and mental healt h needs, history of supervision, and risk of flight.” 13 V.S.A. § 7554b(b)(2). The trial court found defendant’s extensive history of convictions for violent crimes and his violation of probation and parole conditions “the most concerning ” and to be “ver y telling, especially based on the age of the defendant, which is thirty

- one.” And finally, it turned towards the third factor: “any risk or undue burden to other persons who reside at the proposed residence or risk to third parties or to public safety th at may result from such placement.” 13 V.S.A. § 7554b(b)(3). The

trial court found that while the undue burden to those who reside at the proposed residence was not high, the risk to third parties and to public safety caused it concern. Based on its analysis, the

trial court denied defendant’s motion for home detention. Defendant timely appealed.

¶ 9. On appeal, t his Court ’s “review of the trial court’s decision to deny bail is limited

to abuse of discretion.” State v. Whiteway , 2014 VT 49, ¶ 6, 19 6 Vt. 638, 96 A.3d 473 (mem.) ( Whiteway II ). The court’s decision to grant or deny a defendant’s motion for home detention “must be rooted in factors specific to defendan t under § 7554b(b).” State v. Pelletier , 2014 VT 110, ¶ 9, 197 Vt. 644, 108 A.3d 221 (mem.). “We will affirm a trial court’s decision if it is

reasonable.” State v. Shores , 2017 VT 102, ¶ 8, __ Vt. __, 179 A.3d 196 (mem.) (quotation omitted). Further , “because this case is governed by § 7553, the ordinary presumption in favor of

bail is switched so that the norm is incarceration and not release.” Id . (quotation omitted). Thus, defendant “has the burden of proving home detention is appropriate.” Pel letier , 2014 VT 110, ¶ 9.

¶ 10. D efendant argues that the trial court impermissibly based its denial of defendant’s release, in part, on issues that the representative from the Department indicated existed with the way the home detention program is run by the De partment. This Court has made it clear that “[a]lthough the court must consider the risk to public safety in placing a defendant on home
detention, we do not view this consideration to include second

- guessing how the commissioner

administers the home dete ntion program.” State v. Whiteway , 2014 VT 34, ¶ 22, 196 Vt. 629, 95 A.3d 1004 (mem.) ( Whiteway I ) (citation omitted). In Whiteway I , the trial court partially based its decision to deny home detention on specific criticisms of the home detention program rooted in evidence it solicited, sua sponte, on the nature of the home detention program, including the sturdiness of the tracking bracelet and the frequency by which the Department checks the GPS tracking information. Id . ¶ 5. The Court remanded the denial of home detention in Whiteway I

, and “mandated an analysis of each factor that is specific to the defendant and prohibited such systematic criticism.” Shores , 2017 VT 102, ¶ 9 (citing Whiteway I , 2014 VT 34, ¶ 22).

¶ 11. Here, defe ndant accurately notes that the trial court requested additional information regarding the home detention monitoring system and protocols. Defendant argues

that it can then be inferred the trial court impermissibly based its decision on the administration of the program and thus was an abuse of discretion. We do not agree for the same reason which

defendant seems to concede in its memorandum of law: “the trial court here did not ground its decision to deny [d]efendant’s home detention request on the admin istration of the program.” After receiving both evidence specific to the residence at issue and information about the home detention program in general, the trial court began its analysis with a vote of confidence for the4

home detention system as administ ered in its county, noting that it was “what the [L] egislature intended” and that “it should be utilized in all potential cases.” The trial court then methodically analyzed the three factors required by § 7554b(b), considering evidence specific to defenda nt and the charges against him , described above . After this balancing analysis, the trial court denied

defendant’s motion for home detention.

¶ 12. Because defendant has failed to demonstrate that the trial court abused its discretion in denying defendant ’s mot ion for home detention, we affirm.

Affirmed

.

BY THE COURT:

Paul L. Reiber, Chief Justice

Publish Marilyn S. Skoglund, Associate Justice

Do Not Publish

Beth Robinson, Associate Justice