ENTRY ORDER

2018 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

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

¶ 2. On Saturday, April 21, 2018, defendant was arrested for the alleged sexual assault

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, the 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 aggravated sexual assault of a child, 

repeated, under 13 V.S.A. § 3253a(a)(8); one count of aggravated assault under 13 V.S.A. 

§ 1024(a)(1); and one count of aggravated sexual assault of a child with serious injury 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 testified 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 defendant 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 neighbors had children living with them.
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¶ 4. The State called two witnesses. First, the State called the investigating detective in 

the case. 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 evidence. He alleged that possible evidence had been 

destroyed—the trash in the victim’s room, which allegedly contained condoms used during the 

most recent sexual assault, had been removed and laundry that possibly contained DNA had been 

washed. The second witness to testify for the State was M.B. She testified that she 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 supervision 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 defendant’s request for home 

detention, citing the need for more information regarding the proposed residence—including its 

location, circumstances, and relationship to other homes—and clarification on the details of the 

monitoring system used in the home detention 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 was 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 objected to the proposed home detention, and that the electronic monitoring 

equipment worked at the residence. He verified that admitted photographs of the property were 

accurate, and approximated the distances 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 worked, describing the protocol as 

to how the Department and law enforcement respond to an alert that an individual left the residence 

where he or 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 statutory 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 chooses 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 

county was good and that “it is what the [L]egislature intended” and that “it should be utilized in 
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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 offenses were serious 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 health 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 “very 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 that 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, this 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, 196 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 defendant 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.” Pelletier, 2014 VT 110, ¶ 9.

¶ 10. Defendant 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 Department. 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 detention 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, defendant 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 administration 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 the 
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home detention system as administered 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 defendant 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 motion 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