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Bail order was abuse of discretion

Where the circuit court granted bail to appellee, who was charged with several sex crimes but “gave no reasons to support its decision to grant pre-trial bond[,]” this was an abuse of discretion. The circuit court’s judgment is reversed and the case is remanded with instructions to vacate the bail order.


Appellant Thomas was arrested and charged with multiple sex crimes. The commonwealth alleges that he communicated with two 16-year-old females, A.M. and A.R.A., over social media and requested sex acts. When they refused, he threatened them with harm unless they complied. Fearing for their safety, both met Thomas in different locations and complied with his demands after he threatened that other individuals would harm them.

The police obtained a search warrant on Oct. 1, 2020, and arrested Thomas. He confessed to threatening and forcing the two women to meet and perform sex acts. He was initially held without bond but filed a motion on Oct. 16 to be admitted to bail.

At the hearing, there were proffers that Thomas was on probation in Norfolk and that there was a pending sex crime charge in Prince William County when he assaulted the two victims in this case. “Notably, the Commonwealth stated, without objection, that Thomas had been subject to a total ban on social media as a condition of probation in Norfolk and that he violated the ban by talking to A.M. and A.R.A. on Snapchat. …

“Thomas asserted that he was a full-time student at Old Dominion University with a 3.8 grade point average, was a lifelong resident of Virginia with no history of failure to appear in court, and that his mother could provide a stable living environment for Thomas if he were released to bail. Thomas also contended that a GPS monitor could reasonably assure the circuit court of his location. …

“After hearing the evidence, the circuit court stated, ‘I am more concerned about the danger to the community. I think there is some likelihood of flight but that’s not my greater concern.’

“The circuit court inquired if Thomas had a passport, which he did. The circuit court then stated, ‘What I’m really concerned about, more than anything else, is Internet access and what he’s doing with that and being a risk to the community.’

“Without further comment, the circuit court proceeded to set bail at $25,000 with surety. Thomas was also ordered not to have any devices with internet access, to surrender his passport, possess no firearms, submit to GPS monitoring, and not have any contact with anyone under the age of eighteen except his siblings.”

The commonwealth appealed.


“[T]the circuit court was required by Code § 19.2-120(E) to evaluate the nature and circumstances of Thomas’s offenses, his personal history and ensuing characteristics, and the nature and seriousness of the danger posed by his potential release. However, the circuit court made very few statements before ruling that Thomas was granted bond. …

“[T]he brief statements made by the circuit court cannot accurately be said to ‘articulate the basis of its ruling sufficiently to enable a reviewing court to make an objective determination that the court below has not abused its discretion.’ …

“The circuit court gave no reasons to support its decision to grant pre-trial bond. We cannot ascertain what consideration or weight – as is required by Code § 19.2-120 – the circuit court may have given to the fact that similar charges were pending against Thomas in other jurisdictions or that the nature and circumstances of Thomas’s offenses were violent, calculated, and reveal a pattern of planned manipulation and sexual assault on minors.”

Shannon v. Commonwealth, 289 Va. 203 (2015), “held that this Court was ‘required to look to the record made in the circuit court to ascertain whether the conclusion the circuit court reached had factual support.’ … We have done so.

“Thomas purported to be a member of a criminal organization and threatened minors with harm to them and their families if they did not send him nude photographs and admitted doing so to approximately thirty victims. He committed forcible sodomy on three separate occasions.

“On the third instance, Thomas was accused of raping a teenage girl. His actions arguably show a pattern of escalation that grew from online harassment into bodily sexual assault. Not only did Thomas fully confess to these alleged crimes, but he used social media as a tool to commit them when he had already been forbidden by another court from accessing the internet.

“Thomas was also apparently considering fleeing to a foreign country that might serve as a ‘hideout for fugitives.’

“At his bail hearing in circuit court, Thomas only proffered that he was on probation and had been barred from internet access at the time of these offenses, was a student, a resident of the Commonwealth, and could live with his mother if released.

“He proffered no evidence rebutting the presumption that no conditions of bail could assure his future court appearances and the safety of the community, only arguing that conditions of bail could be fashioned assuring both.

“Despite the significant evidence favoring the denial of bail, the lack of evidence favoring release on bail, and the presumption itself, the circuit court made no factual findings as required by Shannon and Lawlor to support its conclusion that Thomas had borne his burden of persuasion that he was neither a flight risk nor danger to the public and should be released on bail. …

“For these reasons, we reverse the circuit court’s order granting Thomas pre-trial bail and remand this case to the circuit court for “enforcement” of our judgment in this case as directed by Code § 19.2-124(A).”

Commonwealth v. Thomas, Record No. 1208-20-4, April 6, 2021. CAV (Humphreys) from the Fairfax County Circuit Court (Gardiner). Rachel L. Yates for appellant, No brief or argument for appellee. VLW 021-7-042, 10 pp. Published.

VLW 021-7-042

Virginia Lawyers Weekly