Enemias Mezo-Reyes v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 12 2016, 8:48 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Noah T. Williams Gregory F. Zoeller
Bloomington, Indiana Attorney General of Indiana
Indianapolis, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Enemias Mezo-Reyes, January 12, 2016
Appellant-Defendant, Court of Appeals Case No.
53A01-1508-CR-1059
v. Appeal from the Monroe Circuit
Court II
State of Indiana, The Honorable Marc R. Kellams,
Appellee-Plaintiff Judge
Trial Court Cause No.
53C02-1501-F1-81
Altice, Judge.
Case Summary
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[1] Enemias Mezo-Reyes appeals the denial of his motion for bond reduction. He
contends the trial court abused its discretion by maintaining an excessive bond
amount in the face of evidence that the amount was originally based on false or
misleading testimony by a State’s witness.
[2] We affirm.
Facts & Procedural History
[3] On January 22, 2015, the State charged Mezo-Reyes with four counts of child
molesting, one as a Level 1 felony and three as Level 4 felonies. The alleged
victims were his eleven-year-old twin stepdaughters. At the initial hearing,
Mezo-Reyes’s bond was set at $50,000 surety and $500 cash. Mezo-Reyes was
remanded to the Monroe County Correctional Center (MCCC). While in
MCCC’s custody, the Department of Homeland Security filed an immigration
detainer on Mezo-Reyes.
[4] The State filed a Motion to Increase Bail on March 19, 2015, alleging
“additional evidence relevant to high risk of nonappearance, specifically
Defendant’s intent and explicitly stated plan to flee the jurisdiction and flee the
country.” Appellant’s Appendix at 29. At the bond review hearing the next day,
the State presented the testimony of Josefa Luce, an employee of the Monroe
County Prosecutor’s Office who is fluent in Spanish. Luce had listened to a
number of Mezo-Reyes’s telephone conversations made from MCCC to his
wife and brother. Based on several of these recorded conversations, Luce
testified that Mezo-Reyes intended to post bond and then flee to Mexico where
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he had family. According to Luce, Mezo-Reyes intended to avoid dealing with
the charges in this case by returning to Mexico.
[5] At the conclusion of the hearing, the trial court determined that the State had
established clear and convincing evidence of a high risk of flight should Mezo-
Reyes post bond. The court noted Mezo-Reyes’s resident status, the nature and
gravity of the charges, and his stated intention to leave the country to avoid
prosecution. Accordingly, the court increased bond to $200,000 surety and
$5000 cash.
[6] On July 21, 2015, Mezo-Reyes filed a Motion for Bond Review/Alteration of
Bond. At the subsequent bond review hearing, Luce was called as a witness by
the defense to clarify that Mezo-Reyes never used the word “flee” during the
recorded conversations. The State conceded this point. Rather than fleeing,
Mezo-Reyes spoke repeatedly about wanting to return to Mexico and posting
bond so he could be deported. In his conversations, he indicated a preference
to be deported. He stated that he could see his daughters in Mexico, that he did
not want to be in prison all of his life, and that there was nothing else for him to
do here. Luce testified that based on everything she heard, she believed Mezo-
Reyes was planning to “leave to Mexico.” Transcript at 20. She clarified her
interpretation of the conversations further, “whether it’s leave or flee, his goal is
to not be here, not be in jail, and to be in Mexico.” Id. at 24.
[7] Mezo-Reyes also testified at the hearing. He indicated that he is a citizen of
Mexico and came to the United States nineteen years ago at the age of ten. He
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acknowledged that if he were in Mexico, he would have difficulty returning for
trial because he does not “have papers to come back here.” Id. at 46. Mezo-
Reyes testified that his wife, brother, and uncles live in Indiana, that he has
never failed to appear for court before, and that he has worked at the same
place for the last nine years. During cross examination, the defense stipulated
that Mezo-Reyes’s wife had indicated her willingness to return to Mexico with
him and the children.
[8] At the conclusion of the hearing, the trial court noted the seriousness of the
charges involving two child victims and Mezo-Reyes’s “apparent illegal status”.
Id. at 53. The court concluded, “there’s enough uncertainty about the
defendant’s appearance to support the increased bail.” Id. at 58. Accordingly,
the court denied Mezo-Reyes’s request. Mezo-Reyes now appeals.1
Discussion & Decision
[9] The amount of bond is within the discretion of the trial court and will be
reversed on appeal only for an abuse of that discretion. Lopez, 985 N.E.2d at
360. “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). Generally, bond is
1
The denial of a motion to reduce bond is a final judgment appealable as of right. Lopez v. State, 985 N.E.2d
358, 360 (Ind. Ct. App. 2013), trans. denied.
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considered excessive if it is set at an amount higher than reasonably calculated
to ensure the accused’s presence in court. Lopez, 985 N.E.2d at 360.
[10] In setting the amount of bond, the trial court is required to consider all facts
relevant to the risk of nonappearance, including the following factors listed in
Ind. Code § 35-33-8-4(b):
(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…;
(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;
(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
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might not recognize and adhere to the authority of the court to
bring him to trial.
[11] I.C. § 35-33-8-5 provides the State and a defendant with the opportunity to seek
alteration of bond. Subsection (c) of the statute states in relevant part: “When
the defendant presents additional evidence of substantial mitigating factors,
based on the factors set forth in section 4(b) of this chapter, which reasonably
suggests that the defendant recognizes the court’s authority to bring the
defendant to trial, the court may reduce bail.”
[12] Although our review of an initial setting of bond and our review of a trial
court’s denial of a motion to reduce are conceptually and legally distinct, the
two inquiries substantially overlap. Lopez, 985 N.E.2d at 361. In determining
whether to reduce bond, the trial court considers the same statutory factors
relevant to the initial setting of bail. Id.
[13] In considering Mezo-Reyes’s request to reduce bond, the trial court held a
hearing and received evidence. Although Luce acknowledged that Mezo-Reyes
never used the word flee, she testified that during the recorded calls, Mezo-
Reyes consistently spoke of returning to Mexico. Mezo-Reyes indicated in
these calls that he did not want to be in prison all of his life, that there was
nothing else for him to do here, and that he could be with his daughters in
Mexico. There was also evidence presented that Mezo-Reyes’s wife agreed to
return to Mexico with the children. Further, based upon Mezo-Reyes’s own
testimony and the statements of his counsel, it could be reasonably inferred that
he was an undocumented immigrant.
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[14] Based upon the evidence presented at the July 2015 hearing, the trial court
concluded that enough uncertainty remained with respect to the risk of
nonappearance to support the increased bail ordered at the conclusion of the
March 2015 hearing. While Mezo-Reyes presented evidence of his ties to
Indiana,2 these ties were countered by his own stated desire to return to Mexico
with his wife and daughters and by indications that he was in the United States
illegally. The trial court also noted the seriousness of the charges.
[15] In light of the evidence presented, it was within the trial court’s discretion to
find that Mezo-Reyes posed a heightened risk of nonappearance based upon his
recorded statements to family. The trial court did not abuse its discretion by
denying the motion for bond reduction and maintaining the bond at $200,000
surety and $5000 cash.3
[16] Judgment affirmed.
[17] Robb, J., and Barnes, J., concur.
2
He had lived in Indiana for nineteen years, had family (wife, daughters, and other relatives) in Indiana, and
had worked for the same employer for nine years before his arrest.
3
Mezo-Reyes cites two cases for his argument that the bond amount is excessive. These cases are inapposite
because they involved cash-only bonds with no evidence that the defendants were flight risks beyond the
severity of their charges. See Winn v. State, 973 N.E.2d 653, 656 (Ind. Ct. App. 2012) (severity of the charges
supported the amount, but the absence of other factors indicating the defendant was a flight risk lead the
court to conclude the trial court should have granted his request for the option of a surety bond); Sneed, 946
N.E.2d at 1260 (same).
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