Opinion
A-14376
05-14-2024
Dylan Cole Moss, Appellant, v. State of Alaska, Appellee.
Bail Appeal, Trial Court Case No. 3AN-24-00884CR
Before: Allard, Chief Judge, and Harbison and Terrell, Judges
ORDER
Dylan Cole Moss appeals the superior court's March 7, 2024 order approving his proposed third-party custodian and setting non-monetary conditions for his release, but also requiring the posting of a $50,000 cash performance bond. For the reasons described below, we affirm the court's order.
Background facts and proceedings
Moss is charged with two counts of second-degree murder and one count of fourth-degree weapons misconduct for the February 10, 2024 shooting death of Gabriel LeBlanc. The charges were filed after Moss called 911 to report that he shot somebody in the head. According to the felony complaint, Moss was unsure of the address he was calling from, but he said that Gabriel LeBlanc had brought him there. Police were then dispatched to LeBlanc's residence, where they found Moss standing on the porch and LeBlanc's body in the bedroom. LeBlanc had been shot in the head.
AS 11.41.110(a)(2) and AS 11.61.210(a)(1), respectively.
According to the complaint, officers discovered a cartridge and a single shell casing in a pool of blood next to LeBlanc's body, and they located a handgun and a magazine containing nine-millimeter cartridges in the living room. While Moss was being interviewed at the police department, he removed a single nine-millimeter cartridge and LeBlanc's identification card from his pocket and gave them to an officer. Moss told officers that he had blacked out from drinking alcohol and could not remember what led to LeBlanc being shot. He admitted, however, that his fingerprints and DNA would be on a gun at the residence, and that his alcohol consumption was related to the shooting.
Moss was arrested and initially charged with one count of second-degree murder and one count of misconduct involving weapons. His first court appearance took place the next day, on February 11, 2024. During that hearing, the court determined that Moss was indigent, and it appointed the Alaska Public Defender Agency to represent him.
AS 11.41.110(a)(2) and AS 11.61.210(a)(1), respectively.
The court set bail at a $100,000 cash performance bond. The court required Moss to submit to twenty-four-hour house arrest and to have his location monitored by the Pretrial Enforcement Division (PED). It also prohibited Moss from possessing dangerous weapons, including firearms and ammunition. Moss additionally was ordered to refrain from possessing or consuming alcohol or from entering bars or liquor stores, and he was required to submit to PED alcohol monitoring. As required by statute, the court ordered Moss to obey all laws and court orders, attend all his court proceedings, maintain contact with his lawyer, and provide notice of any change in residence.
See AS 12.30.011(a).
On February 15, 2024, a grand jury indicted Moss for two counts of second-degree murder based on two separate theories. One count alleged that Moss knowingly engaged in conduct that resulted in LeBlanc's death under circumstances manifesting an extreme indifference to the value of human life. The other count alleged that Moss engaged in conduct that was substantially certain to cause death or serious physical injury, causing LeBlanc's death.
AS 11.41.110(a)(2).
AS 11.41.110(a)(1).
That same day, Moss requested a bail review hearing, asking the court to reduce his bond to a $5,000 cash performance bond and to approve his aunt, Amelia Stepetin as a third-party custodian. In his written request, Moss suggested leaving all of the existing non-monetary conditions of release in place.
The court conducted a bail review hearing on March 7, 2024. Stepetin testified at the hearing, describing Moss's excellent employment history, the many things he had done for her and her family, and her willingness to serve as his third-party custodian. Stepetin testified that she had previously served as a third-party custodian for a different person, so she was aware of the duties she would be undertaking. She stated that she was willing to report Moss if he violated the conditions of his release. Stepetin explained that she did not have any alcohol or firearms in her home.
Stepetin stated that she was aware of the allegations in this case. She was also aware that Moss had a pending charge for driving under the influence as well as a 2020 conviction for fourth-degree assault. She noted that her home had cameras and motion detectors that would assist in her monitoring of Moss.
During the bail hearing, Stepetin provided some details about Moss's financial situation and about the finances that could be provided by their family. She explained that it would be "impossible" for them to post $100,000. She also explained that their family comes from the Wind River Reservation, which she described as a poor reservation in Wyoming. Stepetin told the court that she started a GoFundMe to raise money for Moss's bail, but it had only raised two to three hundred dollars. According to Stepetin, posting $5,000 in bail would be a stretch for her and her family, but this amount would be attainable because she had four-wheelers, an old camper, and older cars that she could sell to raise the funds, and her husband might contribute $1,000.
Stepetin stated that Moss is her nephew but is like a son to her.
When asked about the resources that would be available considering all the people who are willing to assist Moss, Stepetin responded that while they have no family in Alaska, they have a "really big family back home" in Wyoming. She stated that she and other people who have been supporting Moss have "shot ideas around" for raising Moss's bail money. She explained that they have been waiting for the bail hearing before going through "this whole process." (It was unclear whether she was referring to the process of determining how much money they could raise for bail or, instead, the process of fundraising to acquire the bail money.)
Two other defense witnesses testified at the hearing. These witnesses both described Moss as a hard worker and a devoted and caring family friend. One of the witnesses detailed how Moss had saved her daughter's life, earning a Lifesaver Award from the Anchorage Fire Department. The other witness provided several examples of how Moss had displayed compassion and helped other people.
The court also heard from LeBlanc's parents, who asserted that Moss is dangerous to the public and urged the court to deny his request for release on bail. LeBlanc's parents explained that they viewed Stepetin as "too close" to Moss to be a good third-party custodian and expressed concern that Moss may not have significant ties to the community.
In issuing its decision, the superior court reviewed all the statutory bail factors, making findings regarding each one, and then it partially granted Moss's request. As Moss requested, the court approved Stepetin as a third-party custodian and maintained the conditions of release that had been in the previous bail order - including house arrest, location and alcohol monitoring by PED, and a prohibition against possessing alcohol, weapons, ammunition, and dangerous instruments. The superior court also lowered the cash performance bond from $100,000 to $50,000. However, the $50,000 performance bond the court ordered Moss to post was significantly more than the $5,000 bond Moss had requested.
On appeal, Moss contends that the required $50,000 bond is unconstitutional and excessive. He also contends that the superior court erred by failing to explain why no less restrictive monetary amount would suffice and by failing to provide a particularized statement explaining how it calculated the bond amount.
See U.S. Const. amend. VIII and Alaska Const. art. I, § 12 (prohibiting excessive bail).
Why we affirm the court's bail order
Article I, Section 11 of the Alaska Constitution entitles a person accused of a crime to be released on bail. This right is implemented through the provisions of Title 12, Chapter 30 of the Alaska Statutes. When the trial court conducts a bail hearing, it must consider the bail factors set out in AS 12.30.011(c) in light of the dual purposes of bail - i.e., to ensure the defendant's appearance and to protect the victim and the public.
AS 12.30.011(b).
Under Alaska law, a criminal defendant must be released on their own recognizance or on an unsecured appearance bond unless the court finds that such release "will not reasonably ensure the [defendant's] appearance . . . or will pose a danger to the victim . . . or the community." Even then, the court must impose the least restrictive conditions that are needed to reasonably ensure the defendant's appearance and to protect the victim and community.
AS 12.30.011(a)-(b).
AS 12.30.011(b).
In the present matter, the superior court recognized that it was required to evaluate the entirety of the bail proposal (including any monetary conditions) and to impose the least restrictive conditions necessary to fulfill the dual purposes of bail.The court accordingly addressed each of the statutory bail factors, and it ultimately concluded that "a significant monetary bail" in the amount of $50,000 was necessary.
See AS 12.30.011(b); AS 12.30.011(c) (requiring a court determining a defendant's conditions of release to consider, among other factors, the "assets available to the person to meet monetary conditions of release"); see also Alaska Const. art. I, § 12.
Here, the superior court's finding that a $50,000 bond was needed was based on its assessment of the danger Moss poses to the public, given the strength of the State's case and the severity of the pending charge. The court held that Moss poses a very significant risk to public safety because, when he is drunk, he blacks out and engages in dangerous conduct. In making this finding, the court specifically referred to Moss's previous assault conviction, his pending driving under the influence charge, and his pending murder charge. The court pointed out that murder is the most serious crime one person can perpetrate against another, and it identified the reasons that the State has a strong case against Moss (e.g., Moss's phone call to 911, stating that he had shot someone in the head; his later admissions to police officers; and his statements that he thought his alcohol consumption was related to the shooting and that his fingerprints and DNA would be on the gun found in LeBlanc's residence).
The court considered Moss's entire bail proposal and determined that a significant cash posting was necessary. The court stated that the offense was "very severe" and thus the "stakes are very high for Mr. Moss." It stated that it was basing the amount of bail on its findings regarding the statutory bail factors.
On appeal, Moss notes that the court also commented that the "added incentive of a monetary loss" would provide his family with an "incentive to keep a close eye on him . . . [and] to report if he violates." Moss contends that that this comment was error and that the purpose of a performance bond "is to incentivize a defendant to follow their conditions of release, not to incentivize others to report the defendant if they violate their conditions."
But Moss oversimplifies the meaning of the court's remarks. The court's remarks indicate that it believed the cash posting was needed to ensure that Moss would follow his conditions of release - conditions that were designed to protect the public. The court's remarks reflect its view that, just as Moss would be motivated to comply with his release conditions by the presence of a third-party custodian who will monitor him and report any violations, he would be similarly motivated to follow release conditions if the family members who post bail for him are also informally monitoring him and are willing to report any violations. Given the circumstances of this case - that Moss posed a significant risk to the public if he were to violate his release conditions and that Moss's extended family, rather than Moss himself, would be posting the bail - the court did not err in making the challenged remark, nor in setting bail in an amount that significantly exceeded Moss's proposed amount.
We have previously recognized that a court may set the monetary component of bail in an amount that imposes a financial strain on the defendant as long as the court finds that this amount of money is actually necessary to protect the public.Here, the superior court acknowledged Moss's proposal to set the bond at $5,000 but found that this amount would be insufficient to address its concerns. Moss contends that the court erred by setting bail in amount that far exceeded the $5,000 that he maintains was the maximum amount he would be able to pay, and that the court did not provide a "particularized statement" that directly explained why a lesser amount would not suffice.
Vaneyck v. State, 2018 WL 11306175, at *4 (Alaska App. Oct. 9, 2018).
See Sergie v. State, 2021 WL 3277199, at *3 (Alaska App. July 30, 2021).
But the superior court did not enter a finding that Moss was unable to afford more than a $5,000 performance bond. Indeed, the record, taken as a whole, suggests that the court may have believed that it was setting bail in an amount that was a stretch for Moss's family, but not "impossible" (as was the original $100,000 bond).
At the hearing, Stepetin testified that she and other people who have been supporting Moss have "shot ideas around" for raising Moss's bail money and that they have been waiting for the bail hearing before going through "this whole process." According to Stepetin, she has been working with others to figure out a way to come up with more money and that it is "just a matter of time" before that will happen. She also testified that she did not know whether Moss has a savings account. When she was asked whether $5,000 would be a significant amount for the people who are willing to assist Moss with the bail, she responded that "$5,000 is attainable" and then suggested that she was uncertain how much more she and the other people who have been supporting Moss could raise. She stated that they were "pray[ing] that [the bail] would be lowered to a reasonable amount" and that they would be unable to post $100,000. This testimony does not support Moss's claim that the court set bail in an amount greater than Moss could afford.
The current record does not establish that the bond set by the court was excessive. We note, however, that Moss has not yet had a bail hearing solely to address a claim of inability to pay as is permitted under AS 12.30.006(d). If Moss requests such a hearing, the court must consider additional information about Moss's finances and may reduce the current bond to a lower amount.
Based on the current record, we reject Moss's arguments and AFFIRM the superior court's bail order.
Entered at the direction of the Court.