Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant was denied bail after being charged with several sex crimes, the court did not err by relying on appellant’s own testimony to rule that there was probable cause to believe he would be a danger to the public if released on bail.
Appellant’s argument
“Lester argues that the circuit court erred in how it weighed the factors listed in Code § 19.2-120(B) when it denied him bail. He specifically argues that the circuit court ‘gave too much weight’ to Lester’s admission that he had a protective order against him and was under investigation for the same type of offense for which he was currently charged.
“Lester also argues that the circuit court ‘failed to give proper consideration to the fact that the [a]ppellant has never been convicted of a crime’ and alleges the Commonwealth ‘failed to put on a scintilla of evidence regarding [sic] the [c]orpus [d]elicti of the [i]ndictments.’”
Danger to others
“Although the Commonwealth presented no evidence that would rebut the statutory presumption in favor of granting bail, in concluding that Lester presented a danger to the public if released, the circuit court was entitled to consider the testimonial evidence from Lester suggesting that he was subject to a protective order and was being investigated for similar charges involving another young girl.
“In order to deny bail, a circuit court must only find that probable cause exists to believe that a defendant’s liberty would pose a danger to himself or others; the circuit court is ‘not required to make a determination based on proof beyond a reasonable doubt or even a preponderance of the evidence.’”
Lester’s testimony
“The circuit court did not err when it found that Lester’s testimony regarding the nature of the protective order and pending investigation was sufficient to establish probable cause that his liberty would pose a danger to others. According to Lester’s own testimony, the protective order was issued due to his alleged sexual assault of a young girl, and the three indictments on which he was charged also represented three separate sexual assaults of another young girl.
“Additionally, Lester testified that he was a pastor involved with his congregation and community. It is reasonable to conclude that Lester, if released pending his trial, may pose a danger to young members of the community he interacted with in his role as a local minister. …
“The record is sufficient to support a reasonable fact finder’s determination that probable cause – a flexible, common-sense standard that does not require proof beyond a reasonable doubt or a preponderance of the evidence – existed to believe Lester would be a danger to the public because the record contains factual information that supports the circuit court’s finding.”
Affirmed.
Lester v. Commonwealth, Record No. 0788-21-3, Aug. 16, 2022. CAV (Humphreys) From the Circuit Court of Buchanan County (Johnson) David L. Epling for appellant. Leah A. Darron, Justin B. Hill, Jason S. Miyares for appellee. VLW 022-7-334, 7 pp. Unpublished opinion.
