FILED
Nov 29 2018, 7:14 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher L. Clerc Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony J. Johnson, November 29, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1753
v. Appeal from the Bartholomew
Circuit Court
State of Indiana, The Honorable Kelly S. Benjamin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
03C01-1803-F3-1704
Bailey, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018 Page 1 of 8
Case Summary
[1] Anthony J. Johnson (“Johnson”) appeals the trial court’s order increasing his
bail bond from $175,000 to $500,000. Johnson raises one issue on appeal
which we restate as whether the trial court abused its discretion when it
increased his bail bond.
[2] We affirm.
Facts and Procedural History
[3] On March 28, 2018, a detective with the Columbus Police Department
(“CPD”) filed a probable cause affidavit in which he swore as follows. On
January 30, 2018, and February 28, 2018, the CPD used a confidential
informant (“CI”) to conduct controlled buys of methamphetamine from
Johnson. The CI conducted two more controlled buys of heroin from Johnson
on March 21, 2018, and March 22, 2018. During the latter buy, Johnson forced
the CI to remove her clothes so he could check for a wire. Initially, the CI
removed only her shirt and bra, but Johnson forced her to remove her pants.
Johnson forcibly put his fingers in the CI’s vagina and pulled her towards him.
The sergeant conducting the strip search of the CI afterwards noticed blood in
the CI’s underwear that was not there before the buy. The CI reported that
Johnson scratched her vagina. She was then transported to the hospital for a
sexual assault exam. Johnson was arrested on March 23, 2018, and after
Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018 Page 2 of 8
transporting him to the jail, the officer found methamphetamine and heroin in
the back of his police car.
[4] The State charged Johnson on March 28, 2018, with rape, as a Level 3 felony;1
two counts of dealing methamphetamine, as Level 3 felonies;2 two counts of
dealing in a narcotic drug, as Level 5 felonies;3 possession of
methamphetamine, as a Level 5 felony;4 and possession of a narcotic drug, as a
Level 5 felony.5 On May 14, 2018, Johnson filed a motion to reduce his bail
bond, which had been set at $175,000, and the court held a hearing on that
motion on May 17.
[5] Johnson testified at the hearing as follows. He is 39 years old and has lived in
Indiana for thirteen or fourteen years. His mother still lives in Brooklyn, New
York, but he has four children who live in Columbus, Indiana. Johnson is
ordered to pay child support but owes an unknown amount in arrearage.
Johnson was last employed in 2017 and held that job for approximately one
month. Before that job, he did not have consistent employment and worked at
a series of temporary jobs. Johnson’s girlfriend’s sister had promised him a job
upon his release from jail. Johnson has arrests or convictions in Kentucky,
1
Ind. Code § 35-42-4-1(a).
2
I.C. § 35-48-4-1.1(a), (d).
3
I.C. § 35-38-4-1(a)(1).
4
I.C. § 35-48-4-6.1(a), (b).
5
I.C. § 35-48-4-6(a), (b).
Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018 Page 3 of 8
New York, and Delaware, in addition to previous convictions in Indiana. In
addition, in the past Johnson has failed to appear for two hearings in two
different Indiana criminal cases.
[6] Detective Kelly Hibbs (“Det. Hibbs”) of the CPD testified as follows at the
bond reduction hearing. After Johnson’s arrest, the CI was assaulted by three
people, sustaining injury to her head and a black eye. Det. Hibbs listened to
recorded phone calls made by Johnson from the Bartholomew County Jail and
was able to connect Johnson’s communications to the assault of the CI.
Johnson used the code words “wine stain” in reference to the CI and stated
that, if the “wine stain” was “cleaned up” before his trial, he would be “good.”
Tr. at 24. Two of the perpetrators of the assault were in custody at the time of
the bond hearing, while the police continue to search for the other perpetrator.
[7] During the jail phone calls Det. Hibbs heard Johnson express a concern for his
girlfriend’s safety and arrange for her to obtain a gun. CPD officers executed a
search warrant for Johnson’s residence and found several firearms. Det. Hibbs
testified that Johnson’s “access to firearms is apparently readily available,” and,
based on Johnson’s phone calls from jail, Det. Hibbs did not believe that
Johnson “will do anything legally when he gets out.” Tr. at 22.
[8] At the conclusion of the hearing, the State asked the court to consider an
increase in Johnson’s bail bond. After summarizing the testimony, the trial
court granted the State’s request, stating:
Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018 Page 4 of 8
The Court is concerned regarding safety to the community and
the C.I. who was involved in this case and also the alleged victim
of the rape. The Court is concerned with the phone
conversations that have been discussed here today between Mr.
Johnson and other people in this community. The Court is not
going to stand for any type of initiation or contribution to people
being harmed in this community and finds that type of action a
sincere threat to the community.
The Court does not believe that a bond reduction is appropriate.
I’m going to deny that. In fact, I think given the circumstances
that have been set forth here today, the Court is going to raise the
bond to Five Hundred Thousand or Ten Percent cash.
Tr. at 27. This appeal ensued.
Discussion and Decision
[9] The amount of bail is within the sound discretion of the trial court and will be
reversed only for an abuse of discretion. Cole v. State, 997 N.E.2d 1143, 1145
(Ind. Ct. App. 2013). 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. Id. The Indiana Constitution prohibits excessive bail. IND. CONST.
art. 1, § 16. Bail is excessive if it is set at an amount higher than reasonably
calculated to ensure the accused party’s presence in court. Cole, 997 N.E.2d at
1145. The inability of the accused to procure the amount necessary is not a
factor that, on its own, renders the amount unreasonable. Lopez v. State, 985
N.E.2d 358, 361-62 (Ind. Ct. App. 2013) (citing Mott v. State, 490 N.E.2d 1125,
1128 (Ind. Ct. App. 1986)), trans. denied.
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[10] The Indiana Code provides that “[b]ail may not be set higher than that amount
reasonably required to assure the defendant’s appearance in court or to assure the
physical safety of another person or the community” if the court finds that the
defendant poses a risk to the physical safety of either another person or the
community. I.C. § 35-33-8-4(b) (emphasis added). The statute further provides
a non-exhaustive list of factors for the trial court to consider:
(1) the length and character of the defendant’s residence in the
community;
(2) the defendant’s employment status and history and the
defendant’s 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 the defendant to trial;
(6) the defendant’s previous record in 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;
Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018 Page 6 of 8
(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 the defendant to trial.
I.C. § 35-33-8-4. The trial court may increase bail where the State provides clear
and convincing evidence that the defendant poses a risk to the physical safety of
another person or the community. I.C. § 35-33-8-5(b) (emphasis added). Moreover,
a court “may not reduce bail if the court finds by clear and convincing evidence
… that the defendant otherwise poses a risk to the physical safety of another
person or the community.” I.C. § 35-33-8-5(c) (emphasis added).
[11] Here, the trial court did not abuse its discretion by increasing Johnson’s bail
because the State requested such an increase6 and provided clear and
convincing evidence that Johnson posed a risk to the physical safety of the CI.
Det. Hibbs’s testimony established that, after Johnson’s incarceration, he
arranged for the assault of the CI who he is accused of raping. At Johnson’s
direction, three people assaulted the CI, resulting in two stitches on the back of
6
This fact distinguishes Johnson’s case from Cole v. State, where the State never requested an increase in bail
and the State failed to present evidence to support such an increase. 997 N.E.2d at 1146-47.
Court of Appeals of Indiana | Opinion 18A-CR-1753 | November 29, 2018 Page 7 of 8
her head and a black eye. And Johnson had ready access to firearms, as
indicated by his arrangement for his girlfriend to obtain a gun and the firearms
the police found when they searched his residence. The trial court did not
abuse its discretion when it credited Det. Hibbs’s assessment that Johnson was
unlikely to obey the law upon release from jail. Given Det. Hibbs’s
testimony—in addition to the facts that Johnson had a spotty employment
history, had a criminal history in four different states including Indiana, had a
history of failing to appear for other criminal proceedings, and faced significant
criminal charges—we cannot say the trial court’s decision was against the logic
and effect of the facts and circumstances before it. I.C. § 35-33-8-4(b), (c); Cole,
997 N.E.2d at 1145.
[12] Affirmed.
Mathias, J., and Bradford, J., concur.
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