Jake Wagner v. State of Alaska

In the Court of Appeals of the State of Alaska
Jake Wagner,
Appellant,
v.
State of Alaska,
Appellee.
Court of Appeals No. A-13769
Order
Date of Order: 1/14/2021
Trial Court Case No. 2NO-20-00090CR
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Jake Wagner appeals the bail order in this case. For the reasons explained
here, we remand this case to the trial court and direct the court to hold a new bail hearing
at which it approves electronic monitoring and reconsiders the amount of monetary bail.
Wagner is charged with three counts of first-degree sexual abuse of a
minor, one count of attempted first-degree sexual abuse of a minor, and two counts of
third-degree misconduct involving a controlled substance for conduct involving M.O.,
a seventeen-year-old foster child in his care. He is accused of engaging in sexual
penetration with M.O. and providing her with alcohol and marijuana. Wagner is fifty-six
years old. He has no prior convictions.
At the time of the charged offenses, M.O. was living in Nome with Wagner;
Wagner’s wife of over two decades, Sandra Wagner; Sandra Wagner’s twenty-seven-
year-old daughter and her young daughter; and M.O.’s three younger siblings.
According to the complaint, M.O. disclosed the sexual relationship to Sandra Wagner’s
daughter; M.O. also stated that she liked Wagner and enjoyed their sexual interactions.
Wagner’s daughter told her mother about the alleged abuse, and Sandra Wagner
confronted Wagner and then made a report to the Office of Children’s Services. M.O.
was subsequently interviewed by a multi-disciplinary team, including law enforcement;

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January 14, 2021 — p. 2
she described several sexual encounters with Wagner and reported that Wagner had told
her not to disclose their sexual relationship.
When Sandra confronted Wagner, he denied that he had engaged in any
sexual conduct with M.O., and he left town and flew to Oregon. Sandra asked him to
return to Nome and turn himself in, and Wagner agreed. When Wagner arrived in
Anchorage and was awaiting his connecting flight to Nome, he notified the Nome police
of his forthcoming arrival — and law enforcement arrested Wagner on the plane in
Anchorage.
At Wagner’s felony first appearance in Anchorage, bail was set at a
$50,000 cash performance bond. The court ordered Wagner not to have any contact with
M.O.
Wagner remains in custody.
Wagner has had two bail hearings. At the first bail hearing (prior to
Wagner’s indictment), Wagner proposed a release on his own recognizance to a
residence in Anchorage, with his wife, Sandra, as his primary third-party custodian. A
magistrate judge denied this proposal, finding that Sandra was likely to be called as a
witness by the State at trial and was therefore disqualified from serving as a third-party
custodian under AS 12.30.021(c)(5). Wagner does not appeal this ruling.
At Wagner’s second bail hearing (which occurred post-indictment), Wagner
again proposed to reside in Anchorage with Sandra Wagner, this time on house arrest
with real-time GPS electronic monitoring, and a reduction in bail from a $50,000 cash
performance bond to a $50,000 unsecured appearance bond. (Wagner proposed residing
at an extended stay hotel.) Wagner also proposed a bail condition precluding him from
leaving Southcentral Alaska.

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January 14, 2021 — p. 3
A representative from Alaska Pretrial Services (APS), an electronic
monitoring company, testified that an inclusion zone would be established around the
unit in which Wagner resided, and that he would not be permitted to leave the residence
(which the representative described as a “monthly leased apartment”) without a pre-
authorized pass and a specified route to and from medical or legal appointments. The
representative also testified that an exclusion zone would be set up for Anchorage
International Airport; if Wagner entered the airport without prior authorization, the GPS
monitor would send an alert, the police would be notified, and Wagner would be taken
into custody.
In response, the prosecutor stated that the proposal “addresses appearance
issues,” but argued that it did not sufficiently address “all the potential performance
issues.” The prosecutor did not take an explicit position on electronic monitoring, but
said that — whether or not the court approved electronic monitoring — the court should
not reduce the bail to zero.
The superior court orally denied Wagner’s proposal. The court’s primary
reason for rejecting the proposal was its concern that ankle monitoring could not detect,
and therefore could not protect against, Wagner “having intercourse with an underage
person in his hotel room.”
Although the court candidly stated that it did not necessarily believe in
monetary bail, the court nevertheless found that cash bail was better suited to meet its
performance concerns since it would force Wagner to “internalize” the need to follow
his bail conditions.1
1 The court ruled that it was not relying on the rebuttable presumption set out in
AS 12.30.011(d)(2) — that there is a substantial risk that a person charged with certain
offenses will not appear and poses a danger to the victim, other persons, or the community

Wagner v. State, File No. A-13769
January 14, 2021 — p. 4
The court subsequently issued a written order. In its order, the court found
that Wagner’s proposal did “not adequately ensure either appearance or protection of the
public.”
With respect to appearance, the court found that, “even accepting that
Wagner voluntarily returned to Alaska” from Oregon, the court noted that “Wagner
would not have had to return to Alaska had he not fled in the first instance.” The court
therefore concluded that “appearance has a very real significance in setting bail here.”
With respect to performance, the court reiterated its concern over the
“amount of protection an ankle monitor can afford given the allegations here,” finding
that “an ankle monitor . . . affords absolutely no pretrial protections to the youth of any
Alaskan community.”
Wagner now appeals the bail order. He argues that, by maintaining bail at
$50,000 cash performance and declining to approve electronic monitoring, the trial court
failed to impose the least restrictive conditions necessary to reasonably ensure the twin
purposes of bail.
Under Article I, Section 11 of the Alaska Constitution, criminal defendants
facing trial are entitled to have reasonable bail conditions set.2 Although criminal
defendants do not have an absolute right to monetary bail in an amount they can post,3
— and was instead making specific findings regarding Wagner’s risk of non-appearance and
danger to the community.
2 Hamburg v. State, 434 P.3d 1165, 1165 (Alaska App. 2018) (citing Martin v. State,
517 P.2d 1389, 1393-95 (Alaska 1974)). Article I, Section 11 of the Alaska Constitution
entitles criminal defendants “to be released on bail, except for capital offenses when the
proof is evident or the presumption great[.]”
3 Gilbert v. State, 540 P.2d 485, 486 n.12 (Alaska 1975).

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January 14, 2021 — p. 5
both the United States and Alaska Constitutions prohibit the imposition of “excessive”
bail.4 Excessive bail is that which goes beyond the amount actually necessary to fulfill
the purposes of bail — i.e., to reasonably assure the defendant’s appearance and the
safety of the community.5 Accordingly, a court setting bail conditions must impose “the
least restrictive condition or conditions that will reasonably ensure the [defendant’s]
appearance and protect the victim, other persons, and the community.”6 A court may not,
consistent with the Alaska Constitution, impose bail simply to keep a defendant confined
until trial, and “[pretrial] release is heavily favored.”7
In this case, Wagner proposed electronic monitoring with house arrest in
Anchorage. Under his proposal, he would be confined to his residential unit, except for
medical and legal passes specifically approved by APS, and he would be precluded from
leaving Southcentral Alaska.
The trial court suggested that electronic monitoring would not be of any
value in protecting the community, since it would not provide any notification if Wagner
was “having intercourse with an underage person in his hotel room.” But the current bail
order — a $50,000 cash performance bond — similarly does not provide this protection.
4 United States Const. amend. VIII; Alaska Const. art. I, § 12.
5 See Torgerson v. State, 444 P.3d 235, 237 (Alaska App. 2019) (recognizing that “a
judge may not set bail in an amount that goes beyond that which is necessary to fulfill the
purposes of bail — i.e., to reasonably assure the defendant’s appearance and the safety of the
alleged victim, other persons, and the community”).
6 AS 12.30.011(b).
7 Doe v. State, 487 P.2d 47, 51 (Alaska 1971) (quoting Bandy v. United States, 81 S.Ct.
197, 198 (1960)).

Wagner v. State, File No. A-13769
January 14, 2021 — p. 6
Indeed, under the current bail order, Wagner could live anywhere, without any
monitoring conditions.8
Moreover, the trial court’s concern that Wagner might have sex with other
minors while on bail release was no more than speculation. Wagner is charged with
exploiting his position of trust and sexually abusing another household member, his
seventeen-year-old foster child, while she was in his care. There is nothing in the record
to support the notion that Wagner — who has no prior convictions — would begin
sexually abusing other (younger) minors if placed on house arrest and electronic
monitoring.9 To the extent the court has concerns about Wagner having any contact with
minors, that concern can be addressed through a condition precluding him from having
contact with minors. Wagner is already precluded from contacting M.O., and there is no
evidence in the record that Wagner has attempted to do so. Indeed, M.O. resides in
Nome, while Wagner proposes to reside in Anchorage, with a condition not to leave
Southcentral Alaska and a proposed exclusion zone around the Anchorage airport.
Ultimately, under the circumstances of this case, it is difficult to see how
a high monetary bail — without any monitoring — is more protective of the community
8 We are not suggesting that monitoring is required in all cases. We are simply noting
that, under the circumstances of this case, the rejection of electronic monitoring left in place
a bail order that had fewer protections than what Wagner himself was proposing.
9 We note that the age of consent in Alaska is generally sixteen. M.O. was seventeen
years old at the time of the events in this case. Wagner is charged with sexual abuse of a
minor based on the fact that he was the legal guardian for M.O. AS 11.41.434(a)(2)
(providing, in relevant part, that a person commits the crime of first-degree sexual abuse of
a minor if, being eighteen years or older, the offender engages in sexual penetration with a
person who is under eighteen years of age, and the offender is the victim’s legal guardian).

Wagner v. State, File No. A-13769
January 14, 2021 — p. 7
than the electronic monitoring proposed by Wagner paired with some lesser amount of
money that is closer to what Wagner can afford.
We addressed a similar situation in Ingham v. State.10 In Ingham, the thirty-
seven-year-old defendant — who had a single prior conviction for DUI — was charged
with two counts of first-degree sexual assault and one count of second-degree sexual
assault for an incident involving his half-sister’s twenty-three-year-old adopted daughter,
who was working as a babysitter for Ingham. Pending trial, Ingham was released to the
custody of a third-party custodian, along with a $10,000 cash or corporate appearance
bond and a $3,000 performance bond. Shortly thereafter, Ingham proposed to substitute
positional electronic monitoring for his live third-party custodian, so that he could return
to his job. The trial court denied Ingham’s proposal, opining that electronic monitoring
was inadequate because it would “do nothing to prevent similar assaults within
Defendant’s radius of movement” but rather “provide Defendant with a perimeter of
permissible assault.”11
We held that the district court abused its discretion in denying Ingham’s
proposal, concluding that the district court’s reasons for denying Ingham’s electronic
monitoring proposal “were speculative at best.” We noted that “there is absolutely
nothing in the record to support the district court’s prediction that Ingham would begin
sexually assaulting random other women as soon as he was placed on electronic
monitoring and he no longer had a third-party custodian.”12
10 Ingham v. State, Court of Appeals File No. A-12322 (Order dated July 6, 2015).
11 Id. at 1-2.
12 Id. at 3.

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January 14, 2021 — p. 8
We reach a similar conclusion here. The trial court made no findings as to
why Wagner, who proposed release to house arrest, posed a risk to other children.
Instead, the court essentially found that ankle monitoring did not provide sufficient
protections in all cases of this type. But our decision in Ingham demonstrates that when
a court sets bail, it must engage in a case-specific analysis of the particular case and the
particular defendant.13 The critical question is whether the bail conditions are the least
restrictive necessary to reasonably assure the defendant’s appearance in court and the
safety of the victim, other persons, and the community.
Here, there is no basis for assuming that Wagner would not abide by the
conditions set by the court or the terms of his electronic monitoring. Indeed, the judge
at Wagner’s first bail hearing justified the continued imposition of a high all-cash
performance bond in part because there was no pretrial supervision monitoring available
in Nome. But under Wagner’s proposal, he would be residing in Anchorage under house
arrest and subject to 24-hour GPS monitoring.
In addition, although the court expressed concern that Wagner posed both
a risk of non-appearance and a risk to the safety of the community, the court did not
apportion the monetary bail into an appearance bond and a performance bond. Instead,
the court maintained an all-cash performance bond of $50,000, even though such a bond
cannot be used to enforce appearance.14 Because we are remanding this case to the trial
court with directions to approve electronic monitoring, as proposed by Wagner, the court
13 See Stack v. Boyle, 342 U.S. 1, 5 (1951) (noting that the standards governing the
fixing of bail must “be applied in each case to each defendant”).
14 Alaska R. Crim. P. 41(c)(1).

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January 14, 2021 — p. 9
should reconsider whether monetary bail is necessary and if so, whether that monetary
bail should be apportioned between a performance and appearance bond.
Lastly, we note that, at the first bail hearing, Sandra Wagner testified that
her husband has diabetes and high blood pressure — conditions that make him more
vulnerable to the effects of COVID-19. On remand, the court should consider the
impacts of these health conditions when reconsidering bail.15
For these reasons, we REVERSE the superior court’s bail decision, and we
REMAND this case to the superior court. On remand, the superior court shall hold a
new bail hearing in Wagner’s case in which it approves electronic monitoring and lowers
the amount of monetary bail after reconsideration of the factors set out in
AS 12.30.011(c), including the assets available to Wagner to meet any monetary bail
condition.
Entered at the direction of the Court.
Clerk of the Appellate Courts
________________________________
Joyce Marsh, Deputy Clerk
cc: Judge DiBenedetto
Trial Court Clerk
15 See Karr v. State, 459 P.3d 1183, 1186 (Alaska App. 2020) (noting that, in light of
the COVID-19 pandemic, “courts must now balance the public health safety risk posed by
the continued incarceration of pre-trial defendants in crowded correctional facilities with any
community safety risk posed by a defendant’s release” — and evaluate “the flight risk and
safety risk posed by releasing a defendant into a community which now has fewer open
businesses, fewer opportunities for travel, and more people staying at home”).

Wagner v. State, File No. A-13769
January 14, 2021 — p. 10
Distribution:
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Hedland, Eric, Public Defender
Earthman, John A.