State v. Avgoustov

State v. Avgoustov (2006-314); 180 Vt. 595; 907 A.2d 1185

2006 VT 90

[Filed 07-Aug-2006]

                                 ENTRY ORDER

                                 2006 VT 90

                      SUPREME COURT DOCKET NO. 2006-314
    
                              AUGUST TERM, 2006


  State of Vermont                    }          APPEALED FROM:
                                      }
                                      }
       v.                             }          District Court of Vermont,
                                      }          Unit No. 2, Chittenden Circuit
  Vladimir Avgoustov                  }
                                      }          DOCKET NO. 2896-7-06 Cncr



             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant Vladimir Avgoustov appeals the Chittenden District
  Court's order denying him bail.  Defendant is charged with one count of
  aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(8).  We
  affirm.  

       ¶  2.  The maximum sentence for aggravated sexual assault is life
  imprisonment, 13 V.S.A. § 3253(b), and therefore defendant is not entitled
  to bail as a matter of right if the evidence of guilt is great, id. § 7553. 
  A presumption arises in favor of incarceration 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. Blackmer, 160 Vt. 451, 454 (2002) (mem.). 
  The trial court then must exercise its discretion in determining whether or
  not to impose bail and conditions of release.  Id.  The court's discretion
  is extremely broad, but its decision cannot be arbitrary.  Id.  

       ¶  3.  In its decision, the trial court considered two categories of
  evidence.  The first was the statements from the alleged victim, R.B.,
  describing the sexual act and the circumstances of the encounter.  The
  court reviewed the videotape of the interview the child gave to the police,
  and found her to be both competent and articulate.  The court also relied
  upon defendant's confession that comported with the child's statements. 
  The court concluded that such evidence was substantial and admissible.  The
  court then considered that defendant lacks ties to the community that would
  motivate him staying in Vermont because, although he is married, he has no
  other family in the area and is no longer employed.  The court denied bail.  

       ¶  4.  Defendant first challenges that the State does not present
  substantial, admissible evidence of guilt. Specifically, defendant argues
  that although the State has filed a motion to admit R.B.'s hearsay
  statements, they have not yet been deemed admissible by the trial court.
  Defendant also argues that the court improperly relied upon defendant's
  alleged statements in the affidavit of probable cause, because defendant is
  not a native speaker of English and lacked a Russian interpreter at the
  time he made the statements.  We review the trial court's decision to
  determine whether it is supported by the proceedings. We decide whether the
  State has presented substantial, admissible evidence of guilt, absent
  conflicting or modifying evidence. State v. Turnbaugh, 174 Vt. 532, 534
  (2002).  We conclude that the evidence offered by the State supports the
  court's ruling.        

       ¶  5.  When faced with a challenge to the evidence relied upon by
  the State in a bail hearing, where the challenge is based upon application
  of the exclusionary rule because use of the evidence would violate the
  defendant's constitutional rights, the court engages in a two-step
  analysis.  State v. Passino, 154 Vt. 377, 382 (1990).  The court first
  looks to see whether the State has sufficient evidence to deny bail without
  considering the challenged evidence; if so, it need not proceed further. 
  Id.  The second step is to determine whether the State can make out a prima
  facie case of compliance with applicable constitutional requirements.  Id.  

       ¶  6.  We need not reach step two in this case.  Although defendant
  challenges the admissibility of R.B.'s hearsay statement, the State has
  still presented substantial, admissible evidence of guilt because
  defendant's alleged statements in the affidavit of probable cause are
  sufficient to support denial of bail.  Defendant advised the officers that
  he understood English well enough to have the conversation, and his
  statements are sufficiently detailed to convince us that, for the purposes
  of the hearing on bail, the trial court did not improperly rely upon them.  

       ¶  7.  In the alternative, defendant argues that the trial court
  abused its discretion in denying bail.  Even though defendant is not
  entitled to bail pursuant to 13 V.S.A. § 7553, the trial court does have
  discretion to allow bail.  Turnbaugh, 174 Vt. at 535. The trial court
  adequately exercised its discretion to deny bail.  It considered certain
  factors set forth in 13 V.S.A. § 7554, including defendant's family ties,
  employment, financial resources, and record of convictions, and concluded
  that because defendant did not have extensive ties to the community and
  lacked employment, he posed a risk of flight sufficient to deny bail.  The
  trial court's ruling was within its discretion.  

       Affirmed.  


                                       FOR THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice


                                       _______________________________________
                                       John A. Dooley, Associate Justice


                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice