State v. Blow

251 A.3d 517

STATE of Vermont

v.Jason BLOW

SUPREME COURT DOCKET NO. 20-276

Supreme Court of Vermont.

NOVEMBER TERM, 2020

November 25, 2020

ENTRY ORDER

¶ 1. Defendant Jason Blow appeals the superior court's denial of his motion to reconsider a hold-without-bail order issued under 13 V.S.A. § 7553. He argues that evidence obtained after the decision to hold him without bail disproves complainant's allegations, warranting his release on bail pending trial. We disagree and accordingly affirm.

¶ 2. Defendant is charged with aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(1) and second-degree unlawful restraint under 13 V.S.A. § 2406(a)(3). The information alleges that on June 4, 2020, defendant locked complainant in his car and sexually assaulted her while causing serious bodily injury. He faces the potential of life imprisonment under 13 V.S.A. § 3253(b) and as a habitual offender under 13 V.S.A. § 11.

¶ 3. The State moved to hold defendant without bail under 13 V.S.A. § 7553, which authorizes the superior court to hold a defendant without bail when the defendant is "charged with an offense punishable by life imprisonment" and "the evidence of guilt is great." The evidence of guilt is great if "substantial, admissible evidence, taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt." State v. Ford, 2015 VT 127, ¶ 10, 200 Vt. 650, 130 A.3d 862 (mem.) (quotation omitted). If the State shoulders this burden, which it may do with affidavits, depositions, sworn oral testimony, or other admissible evidence, State v. Duff, 151 Vt. 433, 439, 563 A.2d 258, 262-63 (1989), a presumption against release arises, State v. Auclair, 2020 VT 26, ¶ 3, 211 Vt. ––––, 229 A.3d 1019 (mem.). The court must then exercise its discretion in determining whether to nevertheless impose bail and conditions of release. Id. In this latter determination, the court may look to the factors listed in 13 V.S.A. § 7554(b), and the burden is on the defendant to overcome the presumption against release. Auclair, 2020 VT 26, ¶¶ 3, 6, 229 A.3d 1019. The factors include:

the nature and circumstances of the offense charged; the weight of the evidence against the accused; and the accused's family ties, employment, character and mental condition, 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. Recent history of actual violence or threats of violence may be considered by the judicial officer as bearing on the character and mental condition of the accused.

13 V.S.A. § 7554(b)(2).

¶ 4. The superior court held a weight-of-the-evidence hearing, at which the State adduced the following evidence in the form of affidavits from complainant and investigating officers. Based on a prior agreement, on June 4, 2020, defendant picked up complainant from her foster home in Georgia, Vermont to drive her to Indiana. Complainant was seventeen years old at the time of these events. The two drove for some time before defendant stopped at a park-and-ride in Vergennes. There, he asked complainant to engage in sexual intercourse with him, which complainant declined. When defendant put his hand between her legs, complainant tried to exit the vehicle, but the passenger door would not open. She climbed over the center console to the rear of the car, where the doors were likewise locked. Defendant followed her there and, despite complainant's resistance, he held her down, wrapped his hands around her neck, removed her clothing, and inserted his penis into her vagina.

¶ 5. Thereafter, the two returned to the front seats and proceeded—ostensibly—to Indiana. After about twenty minutes, defendant allegedly received a text message informing him that a family member had been in a car accident and was being rushed to surgery. Defendant turned around and drove to Burlington, where he dropped complainant off near the University of Vermont Medical Center (UVMMC). Complainant then walked to a Colchester convenience store.

¶ 6. The next day, June 5, an officer who had been looking for complainant as a missing person found complainant and saw bruising around her neck and arms. The officer took photographs documenting the bruising. A subsequent inspection of defendant's vehicle revealed that tape was used to block the passenger window from opening. It was also determined that if a mechanism in the center panel of the dashboard is activated, the vehicle's doors do not open.

¶ 7. On June 19, multiple officers drove to defendant's home to arrest him in connection with these charges and other allegations of criminal conduct. They spotted defendant in his vehicle in the vicinity and attempted to execute a traffic stop. Defendant fled and led the officers on a high-speed pursuit through congested traffic, imperiling several pedestrians along the way. Officers lost sight of defendant for a time but later found his abandoned vehicle in nearby woods. They deployed a police canine that eventually tracked defendant fleeing on foot.

¶ 8. Based on this evidence, the superior court found great evidence of guilt under § 7553. The court then considered the § 7554(b) and other factors and declined to release defendant on bail. As relevant to the latter analysis, the court observed that defendant introduced evidence that he had lived in Vermont with his grandmother virtually his entire life. Defendant also elicited testimony from his employer that, if released, defendant would continue to work for him. The court nevertheless declined to impose bail, citing the serious and violent offenses charged, the strong weight of the State's evidence, and the consistency in and credibility of complainant's allegations. The court also noted defendant's status as a registered sex-offender with previous convictions, defendant's willingness to endanger the public and flee from police, and the prospect of life imprisonment stemming from the present charges. The court thus ordered defendant held without bail.

¶ 9. Defendant moved for reconsideration, arguing that two new pieces of evidence he received from the State through discovery after the weight-of-the-evidence hearing rendered complainant's allegations impossible and that accordingly the weight of the evidence was no longer great under § 7553. First, text messages between complainant and defendant show that the last electronic communication between them on the morning of June 4 was at 1:04 a.m., from which an inference may be drawn that complainant was not picked up in Georgia until after that time. Second, an employee at the Colchester convenience store attested in a sworn statement that she saw complainant at that store at 4:25 a.m. that morning. Thus, defendant argued that complainant's allegations of the following could not have occurred in the three hours and twenty-one minutes between 1:04 and 4:25 a.m.: the drive from Georgia to Vergennes, the sexual assault, the drive away from Burlington for about twenty minutes, the drive from there to Burlington, complainant's drop off at UVMMC, and complainant's walk to the Colchester convenience store.

¶ 10. Defendant further argued that additional new evidence so weakened the State's case that the hold-without-bail order was no longer justified under the discretionary bail analysis. Defendant directed the superior court to a June 5 medical record in which complainant told a medical professional that she secured a ride to Burlington from a friend and, as she walked on Church Street, an unidentified man attempted to sexually assault her, contradicting her account of events to the police. He also pointed to a June 11 medical report that similarly references an attempted—not consummated—sexual assault. Finally, defendant averred that he received a recorded interview from the State in which complainant said that defendant would not have had reason to think that she was going to have sex with him on the day in question. That statement, defendant argued, is contradicted by text messages sent just prior to the Georgia pickup in which complainant agreed to have sex with defendant as payment for the ride to Indiana.

¶ 11. The superior court declined to alter its weight-of-the-evidence conclusion because it determined that the new time-constraint evidence was modifying evidence bearing on the complainant's credibility, which is excluded from the § 7553 analysis. See Ford, 2015 VT 127, ¶ 10, 200 Vt. 650, 130 A.3d 862. The court reviewed the evidence bearing on its discretionary decision to release defendant on bail and declined to impose bail, citing, among other factors, the seriousness of the offenses, defendant's criminal history, the potential life sentence defendant faces, and defendant's flight from the police.

¶ 12. On appeal, defendant renews his argument that the new time-constraint evidence discredits complainant's allegations, such that the evidence of guilt is no longer great under § 7553. He also argues that all the new evidence significantly weakens the State's case, something the trial court should have considered in determining his risk of flight under the discretionary bail analysis.

¶ 13. This Court assesses whether the § 7553 standard is met based on the record below, but without deference to the superior court. State v. Sawyer, 2018 VT 43, ¶ 4, 207 Vt. 636, 187 A.3d 377 (mem.). Our review of the court's denial of discretionary bail is for abuse of discretion. State v. Orost, 2017 VT 110, ¶ 6, 206 Vt. 657, 179 A.3d 763 (mem.). Though the court's discretion is broad, the bail decision cannot be arbitrary. Auclair, 2020 VT 26, ¶ 6, 229 A.3d 1019.

¶ 14. We agree with the superior court that the new time-constraint evidence is modifying evidence excluded from the § 7553 analysis. We further hold that the evidence of guilt is great in this case and that defendant could therefore be held...