Christian Moe v. State of Alaska

NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@akcourts.gov

IN THE COURT OF APPEALS OF THE STATE OF ALASKA

CHRISTIAN FREDERICK MOE IV,
Court of Appeals No. A-14546
Appellant, Trial Court No. 1SI-23-00173 CR

v.
OPINION
STATE OF ALASKA,

Appellee. No. 2804 — May 2, 2025

Appeal from the Superior Court, First Judicial District, Sitka,
Amanda L. Browning, Judge.

Appearances: Bridget Lynn, Assistant Public Defender, and
Terrence Haas, Public Defender, Anchorage, for the Appellant.
Madison M. Mitchell, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney
General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Harbison and Terrell, Judges.

Judge TERRELL.

Christian Frederick Moe IV was indicted on one count each of first-degree
sexual abuse of a minor and third-degree fear assault.1 At Moe’s first felony appearance,

1
AS 11.41.434(a)(1) and AS 11.41.220(a)(1)(A), respectively.
the court imposed a $50,000 cash appearance bond and ordered that he be supervised
by the Pretrial Enforcement Division.
Moe subsequently filed three successive applications for bail review
hearings, and the superior court held three hearings. At the first two hearings, the
superior court denied Moe’s requests to modify bail. At the third hearing, the superior
court modified Moe’s bail by deleting the $50,000 cash appearance bond and imposing
a $25,000 cash performance bond. It also ordered that Moe submit to electronic
monitoring, enter a residential substance abuse treatment program, and remain there on
house arrest with limited passes.
Moe appeals the superior court’s last bail modification order on three
grounds. First, Moe argues that AS 12.30.011(d)(2), the statutory provision that creates
a rebuttable presumption that persons charged with certain offenses pose elevated
appearance and performance risks, is unconstitutional. Second, Moe argues that the
superior court erroneously speculated that he might violate his conditions of release,
relying on the nature of his offense rather than on his individual characteristics. And
third, Moe argues that the court failed to explain why the $25,000 cash performance
bond (an amount he claims he cannot afford) is necessary to protect the victim and the
community given the other conditions in place.
For the reasons explained in this opinion, we conclude that the statutory
presumption in AS 12.30.011(d)(2) is constitutional, and that the superior court may
rely on this presumption to make findings regarding a defendant’s appearance or
performance risk. Because the superior court in this case found that the presumption
was not rebutted, it was proper for the court to infer that Moe was a danger to the
community without an individualized analysis beyond the nature of the charges.
However, we agree with Moe that the superior court did not adequately explain why
the $25,000 cash performance bond is necessary to ensure that he complies with his
conditions of release. We therefore remand this case for further proceedings consistent
with this opinion.

–2– 2804
Procedural history
In September 2021, the Sitka Police Department received a report that
Moe forced his girlfriend’s nine-year-old son, R.M.F., to perform fellatio on Moe by
holding a knife to R.M.F.’s head and threatened to hurt R.M.F’s mother with a knife if
the matter was reported to law enforcement.2 During the ensuing police investigation,
R.M.F. was interviewed three separate times at a child advocacy center. During the first
interview, R.M.F. indicated that he did not feel safe around Moe. But he did not disclose
during either the first or second interview that Moe had sexually abused him. During
the third interview, R.M.F. stated that Moe held a knife to his head on five separate
occasions and forced him to perform fellatio on Moe.
On November 9, 2023, Moe was indicted on one count of first-degree
sexual abuse of a minor and one count of third-degree fear assault.3
Two days later, Moe was arraigned on these charges and the Public
Defender Agency was appointed to represent him. At his arraignment, a magistrate
judge imposed a $50,000 cash appearance bond, ordered that Moe be supervised by the
Pretrial Enforcement Division (PED), and imposed additional conditions of release that
prohibited Moe from consuming alcohol, possessing weapons, contacting R.M.F. or his
mother, and leaving Sitka without the court’s permission.

First and second bail review hearings
On September 5, 2024, the superior court held a first bail review hearing
at Moe’s request. Moe proposed that the superior court remove the $50,000 cash

2
The tipster also provided the police with a video in which Moe appeared to be
touching the boy’s buttocks and genital area and running his hand up the boy’s shirt. Moe
later moved to suppress this video, and following an evidentiary hearing, the superior court
ordered that this video was inadmissible.
3
AS 11.41.434(a)(1) and AS 11.41.220(a)(1)(A), respectively.

–3– 2804
appearance bond and order him to enter a residential substance abuse treatment program
at the Mt. Juneau Recovery House (Mt. Juneau).
The State objected to this proposal. The prosecutor noted concerns that
Mt. Juneau was not an appropriate facility for Moe because it predominantly provided
services for people struggling with substance abuse disorders and was unsecured, as it
gave its residents passes into the community. The prosecutor also informed the court
that Moe had a previous conviction for violating his conditions of release (VCOR).
The superior court denied Moe’s request to modify bail, referencing the
following considerations: Moe was charged with an unclassified felony; Moe could
easily walk away from Mt. Juneau and have access to the community or flee because
the facility was potentially unsecured and provided unsupervised passes; and Moe had
a prior VCOR conviction.
On September 26, 2024, the superior court held a second bail review at
Moe’s request. Moe’s second bail proposal was similar to his first proposal. Moe again
proposed that the court remove the $50,000 cash appearance bond, order that he enter
the residential treatment program at Mt. Juneau, and have the Department of
Corrections transfer him there. Additionally, Moe proposed that the court place him on
electronic monitoring and order that he remain at the treatment facility under house
arrest.
At this second hearing, Moe’s defense attorney discussed the security
arrangements at the Mt. Juneau facility. The attorney stated that Mt. Juneau has a staffed
front desk, where security personnel are always located, and that staff can call the police
if a client leaves the facility without permission. The attorney also stated that Mt. Juneau
provides clients with passes to leave the facility for medical appointments, legal
appointments, religious services, meetings with government officials, and to go to the
gym.
The prosecutor opposed Moe’s second bail request. The prosecutor
reiterated that Mt. Juneau is a “non-lockdown facility,” and noted that electronic

–4– 2804
monitoring would not prevent Moe from absconding. The prosecutor added that
because Juneau has an airport and a harbor with daily departures, Moe could “easily
. . . disappear” if he absconded. In response, the defense attorney suggested that the
court could order Moe to stay away from airports and harbors, and this order could be
enforced by electronic monitoring.
The State then called Probation Officer Linda Wahl to testify. Wahl
testified that she had called Mt. Juneau and spoke with the program director about the
facility’s security. Wahl testified that while the program would notify the police if a
client absconded, the director “made very sure that [she] understood that this was a
completely voluntary program” and that Moe “would be able to leave at any time.”
Wahl also testified that Mt. Juneau had a reputation for not being “very forthright,” and
expressed skepticism that Mt. Juneau would actually call the police to report if a client
absconded.
The superior court denied Moe’s second bail proposal, concluding that it
“had concerns over the safety of the community without any monetary posting.” The
court acknowledged that under Moe’s proposal, he would be on electronic monitoring
and Mt. Juneau could notify the police if Moe absconded. But the court explained that
even with these conditions, it had appearance concerns because Moe could remove his
ankle monitor, and performance concerns because “electronic monitoring may tell us
where he is, but it doesn’t tell us who he’s with or who he’s involved with.”
After the superior court denied this proposal, the defense attorney asked
the court to consider a substitute proposal. In addition to the previously proposed non-
monetary conditions of release, Moe proposed adding a $1,500 cash bond — a sum that
his attorney represented was “essentially . . . all of [Moe’s] money.” The court

–5– 2804
summarily denied this substitute proposal, noting that Moe had not detailed his previous
efforts to post monetary bail.4
Third bail review hearing
On October 17, 2024, the superior court held a third bail review hearing
at Moe’s request. Moe’s third bail proposal again asked that he enter the residential
treatment program at Mt. Juneau and be placed on electronic monitoring with house
arrest. But this time, instead of proposing that the court delete the $50,000 cash
appearance bond, Moe proposed reducing the $50,000 cash appearance bond to $1,700
(the amount of that year’s Permanent Fund Dividend check). Additionally, the defense
attorney clarified that Moe was only requesting passes to leave Mt. Juneau for medical
treatment and legal visits.
The defense attorney then discussed the bail factors in AS 12.30.011(c).
Through these factors, the attorney argued the following: that the State’s case was weak,
because R.M.F. only disclosed the abuse in the third forensic interview; that Moe had
strong community ties, because he was a lifelong Alaska resident; that Moe had a
history of gainful employment; that while Moe had VCOR and disorderly conduct
convictions, they were attributable to his struggles with alcohol; that Moe only had
$1,725 to his name; and that Moe had tried, unsuccessfully, to borrow additional money
from his family to meet bail.
The defense then called Fred Sweetski, the Behavioral Health Director at
Mt. Juneau, to testify. Sweetski testified that it is “not difficult at all” for clients to walk
away from the Mt. Juneau facility. Sweetski also testified that while Mt. Juneau does

4
We note that in evaluating a defendant’s ability to pay a monetary bail, a trial judge
is not obligated to rely on defense counsel’s representations about the defendant’s finances,
and can require that direct evidence be presented. Cf. Craft v. State, 2023 WL 6294965, at
*2 (Alaska App. Sept. 22, 2023) (unpublished bail order) (noting that “despite the trial
court’s comments at the first bail review hearing that it did not have detailed information
about the assets available to Craft to post bail, Craft did not provide any information about
his finances to the court at the second bail review hearing”).

–6– 2804
not have any “legal duty” to report a client who leaves without permission, the facility
would report clients that are under “any condition of release from DOC” and abscond.
Sweetski was also questioned about whether children are allowed at the Mt. Juneau
facility, and he explained that while no children resided at Mt. Juneau, children were
permitted at the facility as visitors.5
The prosecutor opposed Moe’s third bail proposal. The prosecutor argued
that Moe had not “overcome the rebuttable presumption that he’s a flight risk” for the
following reasons: Mt. Juneau was an unsecured facility, Mt. Juneau was not obligated
to report him if he absconded, and Moe could be missing from Mt. Juneau “for hours
before anybody is notified that he’s missing.”
The superior court then analyzed Moe’s bail proposal under the factors in
AS 12.30.011. After reviewing the bail factors in AS 12.30.011(c), the court discussed
the rebuttable presumption in AS 12.30.011(d)(2) — that if a person is charged with
certain offenses, including unclassified or sexual felonies, “there is a substantial risk
that the person will not appear and the person poses a danger to the victim, other
persons, or the community.”6 The court concluded that Moe had successfully rebutted
the presumption that he was a substantial appearance risk, but that the court had
concerns about Moe’s performance for the following reasons: Moe had a VCOR
conviction, children were permitted as visitors to Mt. Juneau, and Moe would have
access to children in the community if he was out on a pass. Given these concerns, the
court ruled that Moe had not “completely overcome” the presumption in
AS 12.30.011(d)(2) that he was a danger to the victim and community, and that
“substantial” monetary bail was “appropriate.”

5
Fred Sweetski also testified that one of the program clinicians treated children, so
there were occasionally children on campus for appointments with that clinician.
6
AS 12.30.011(d)(2)(A).

–7– 2804
The court then modified Moe’s bail as follows. First, the court deleted the
$50,000 cash appearance bond and imposed a $25,000 cash performance bond. In
issuing this order, the court acknowledged Moe’s contention that he “has $1,700 to his
name,” but found that a $25,000 cash performance bond was warranted. Additionally,
the court imposed the following non-monetary conditions of release: that Moe enter
residential treatment at Mt. Juneau, remain on house arrest unless attending medical or
legal appointments, not contact R.M.F. or his mother, and submit to electronic
monitoring with exclusion zones within one mile of the airport, harbor, and ferry
terminal.
This appeal followed.

Alaska Statute 12.30.011(d)(2) does not infringe on the Alaska
Constitution’s right to bail
On appeal, Moe argues that AS 12.30.011(d)(2), the rebuttable
presumption that people charged with certain offenses pose elevated appearance and
performance risks, is unconstitutional. We reject this contention, and we take this
opportunity to clarify how the presumption in AS 12.30.011(d)(2) operates in concert
with the other provisions of Alaska’s bail statutes.
The Alaska Constitution guarantees the accused the right to be “released
on bail,”7 and the Alaska and United States Constitutions prohibit the imposition of
“excessive bail.”8 Interpreting these provisions, this Court has held that trial courts may

7
Alaska Const. art. I, § 11; Martin v. State, 517 P.2d 1389, 1394 (Alaska 1974).
8
U.S. Const. amend. VIII; Alaska Const. art. I, § 12; Pisano v. State (Pisano I), 2018
WL 11306173, at *2 (Alaska App. May 24, 2018) (unpublished bail order) (explaining that
“[e]xcessive bail is that which goes beyond the amount actually necessary to fulfill the
purposes of bail”) (first citing Stack v. Boyle, 342 U.S. 1, 5 (1951); and then citing Doe v.
State, 487 P.2d 47, 51 (Alaska 1971)).

–8– 2804
not refuse to set bail altogether,9 may not impose a “no bail” order,10 and may not
impose bail for an improper reason, such as to punish a defendant.11 Instead, trial courts
must impose bail conditions that are tailored to “reasonably assure the defendant’s
appearance and the safety of the community.”12 While trial courts may impose monetary
bail above what the defendant can afford,13 when doing so they must explain “why a
particular monetary bail is necessary in a given case.”14
Alaska Statute 12.30.011 provides standards and procedures that constrain
the trial court’s exercise of discretion when setting bail. Under this statute, the court
must first determine whether to release a defendant on their personal recognizance or
an unsecured appearance bond, or whether to impose additional conditions of release.15
If a defendant is charged with certain offenses, including unclassified or sexual felonies,
this analysis is governed by AS 12.30.011(d)(2). Under this provision, there is a
rebuttable presumption that the defendant is a substantial appearance risk and is a

9
See Hamburg v. State, 434 P.3d 1165, 1166-67 (Alaska App. 2018).
10
See id. at 1165-67.
11
Francis v. State, 2021 WL 1346285, at *2-3 (Alaska App. Jan. 15, 2021)
(unpublished bail order).
12
Pisano I, 2018 WL 11306173, at *2 (first citing Stack v. Boyle, 342 U.S. 1, 5 (1951);
then citing Doe v. State, 487 P.2d 47, 51 (Alaska 1971); and then former AS 12.30.011
(pre-2018)).
13
Gilbert v. State, 540 P.2d 485, 486 n.12 (Alaska 1975) (citing Reeves v. State, 411
P.2d 212 (Alaska 1966).
14
Pisano v. State (Pisano II), 2019 WL 12043666, at *3 (Alaska App. Jan. 16, 2019)
(unpublished bail order).
15
AS 12.30.011(a)-(b).

–9– 2804
danger to the victim and community.16 If this presumption is not rebutted, the
presumption remains and the court must impose additional conditions of release.17
Once the trial court finds that additional conditions of release are
warranted, the court must next decide which specific conditions to impose. This
analysis is governed by AS 12.30.011(b). Under this provision, the court must “impose
the least restrictive condition or conditions that will reasonably ensure the person’s
appearance and protect the victim, other persons, and the community.”18 Section (b)
lists twenty-one possible conditions available to the court, including monetary bonds
and non-monetary conditions.19
On appeal, Moe claims that the rebuttable presumption in
AS 12.30.011(d)(2) is unconstitutional. Moe argues that the statute requires a trial court
“to set extremely restrictive and onerous bail conditions,” which defendants cannot
afford, and that relying on a statutory presumption to set unaffordable bail is
unconstitutional under this Court’s decision in Hamburg v. State.
In 2018, this Court held in Hamburg that the pre-2018 version of
AS 12.30.011(d)(2) violated the defendant’s constitutional right to bail.20 This former
version of AS 12.30.011(d)(2) stated that for persons charged with certain offenses
there is a rebuttable presumption that no condition or
combination of conditions will reasonably assure the

16
AS 12.30.011(d)(2).
17
AS 12.30.011(b), (d)(2).
18
AS 12.30.011(b).
19
Id.
20
Hamburg v. State, 434 P.3d 1165, 1167 (Alaska App. 2018) (interpreting former
AS 12.30.011(d)(2) (pre-2018)).

– 10 – 2804
appearance of the person or the safety of the victim, other
persons, or the community.[21]
The superior court in Hamburg, relying on this former version of AS 12.30.011(d)(2),
found that no condition or conditions would reasonably ensure the defendant’s
appearance and performance, and accordingly issued a “no bail” order.22 On appeal, we
held that “no bail” orders violate Article I, Section 11 of the Alaska Constitution, and
that former AS 12.30.011(d)(2) was unconstitutional because it prompted the court to
refrain from setting bail.23
Moe acknowledges that the legislature has since amended
AS 12.30.011(d)(2) and that the current statute is worded differently than the statute
that we held unconstitutional in Hamburg. But Moe contends that the current statute
does not alleviate the constitutional concerns that we identified in Hamburg. Moe
analogizes a statutory presumption that leads to a “no bail” order with a presumption
that prompts “extremely restrictive and onerous bail conditions,” arguing that both
violate Article I, Section 11 of the Alaska Constitution.
The proper interpretation of a statute is a question of law that we
decide de novo using our independent judgment.24 Statutes are construed “according
to reason, practicality, and common sense, considering the meaning of the statute’s
language, its legislative history, and its purpose.”25 Alaska courts apply

21
Former AS 12.30.011(d)(2)(A) (pre-2018) (emphasis added).
22
Hamburg, 434 P.3d at 1165.
23
Id. at 1165-67.
24
Seaman v. State, 499 P.3d 1028, 1034 (Alaska App. 2021).
25
Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1121 (Alaska 2017) (citing Louie
v. BP Expl. (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014)).

– 11 – 2804
a sliding scale approach to statutory interpretation, “under which ‘the plainer the
language of the statute, the more convincing contrary legislative history must be.’”26
We begin our analysis with the text. The current version of
12.30.011(d)(2)(A) provides:
(d) In making a finding regarding the release of a person
under this chapter
[. . . .]
(2) there is a rebuttable presumption that there is a
substantial risk that the person will not appear and the
person poses a danger to the victim, other persons, or
the community, if the person is
(A) charged with an unclassified [or] sexual felony[.]
Unlike the former presumption, which directed the court not to impose
any “conditions” of release, the plain language of this current presumption does not
mention release “conditions” or direct the court to impose or refrain from imposing
specific conditions.27 Instead, the current presumption in subsection (d)(2) directs the
court to make a “finding” that the defendant poses a “substantial risk” of nonappearance
and a danger to the victim or community.28
If the court finds that this presumption has not been rebutted, then it must
impose release conditions in accordance with a provision of the bail statute —
AS 12.30.011(b) — that applies every time a court setting bail imposes release
conditions. This provision applies when the court makes findings under the rebuttable
presumption in AS 12.30.011(d)(2) and also when the court makes findings that
releasing a defendant on their personal recognizance or an unsecured bond would be

26
Id. at 1121-22 (quoting Bartley v. State, Dep’t of Admin., Teachers’ Ret. Bd., 110
P.3d 1254, 1258 (Alaska 2005)).
27
Compare former AS 12.30.011(d)(2) (pre-2018) with AS 12.30.011(d)(2).
28
AS 12.30.011(d)(2).

– 12 – 2804
insufficient.29 Under AS 12.30.011(b), the court is directed to “impose the least
restrictive condition or conditions that will reasonably ensure the person’s appearance
and protect the victim, other persons, and the community.”30 While this provision
requires that some condition be imposed, it does not direct the court to impose any
condition in particular.
Given that AS 12.30.011(b) is a general provision, and given that neither
AS 12.300.011(d)(2) nor AS 12.30.011(b) directs the court to impose any particular
conditions of release, Moe’s contention that the rebuttable presumption prompts courts
to impose “extremely restrictive and onerous bail conditions” is unsupported by the text
of the bail statute.
We have also reviewed the legislative history of the bail statute and find
that it reinforces this interpretation.
In 2019, the Alaska legislature enacted H.B. 49, a comprehensive crime
bill that repealed most of S.B. 91 and reenacted the provisions that were in place before
S.B. 91.31 That legislative session, the Governor transmitted multiple crime bills to the
legislature for consideration, including H.B. 49, H.B. 50, and S.B. 33.32 At the time of
transmittal, the Governor’s proposed amendments to AS 12.30.011 were contained in

29
See AS 12.30.011(a)-(b), (d).
30
AS 12.30.011(b).
31
See SLA 2019, ch. 4, § 59.
32
Transmittal Letter from Governor Michael J. Dunleavy regarding S.B. 33 (Jan. 22,
2019) (located on the Alaska Legislature’s website on bill’s “Documents” page);
Transmittal Letter from Governor Michael J. Dunleavy regarding H.B. 49 (Jan. 22, 2019)
(located on the Alaska Legislature’s website on bill’s “Documents” page); Transmittal
Letter from Governor Michael J. Dunleavy regarding H.B. 50 (Jan. 22, 2019) (located on
the Alaska Legislature’s website on bill’s “Documents” page).

– 13 – 2804
S.B. 33 and H.B. 50.33 These crime bills initially proceeded separately through the
legislature, but S.B. 33 became the primary bill discussing AS 12.30.011, with H.B. 50
eventually dying in committee.34
Midway through the legislative session, S.B. 33 was incorporated into
C.S.H.B. 49, and C.S.H.B. 49 became the lead crime bill.35 The legislative history of
the 2019 amendment to AS 12.30.011 thus begins with S.B. 33.
S.B. 33 was first introduced in the Senate on January 23, 2019.36 The first
version of this bill contained the Governor’s proposed language for the rebuttable
presumption in subsection (d)(2), and this exact language was later approved by the
legislature without amendment.37
On February 14, 2019, Alaska Department of Law Criminal Division
Director John Skidmore testified on S.B. 33 before the Senate State Affairs Committee.
He explained that S.B. 33 overhauled Alaska’s bail statute by “repeal[ing] what was in
S.B. 91” and reverting “back almost verbatim to what was there prior,” but with one

33
See S.B. 33, 31st Legislature, 1st Session, Version A, § 7 (as introduced by the
Senate Rules Committee, Jan. 23, 2019); H.B. 50, 31st Legislature, 1st Session, Version A,
§ 7 (as introduced by the House Rules Committee, Feb. 20, 2019).
34
H.B. 50 was introduced on February 20, 2019 and was the subject of two hearings
before the House State Affairs Committee, on March 19, 2019, and April 16, 2019, at which
point the bill ceased to progress.
35
S.B. 33 proceeded through the Senate as an independent bill from January 23, 2019,
the date of its introduction, until May 7, 2019, the date when Version C of S.B. 33 was
incorporated into Version C of C.S.H.B. 49. Compare S.B. 33, 31st Legislature, 1st Session,
Version C, § 7 (as introduced by the Senate Judiciary Committee, April 24, 2019) with
C.S.H.B. 49, 31st Legislature, 1st Session, Version C, § 54 (as introduced by the House
Finance Committee, May 7, 2019).
36
S.B. 33, 31st Legislature, 1st Session, Version A (as introduced by the Senate Rules
Committee, Jan. 23, 2019).
37
Compare S.B. 33, 31st Legislature, 1st Session, Version A, § 7 (as introduced by
the Senate Rules Committee, Jan. 23, 2019) with SLA 2019, ch. 4, § 59.

– 14 – 2804
exception: changes were made to AS 12.30.011(d)(2).38 Director Skidmore noted that
the proposed language for AS 12.30.011(d)(2) contained a “different presumption” than
the former law because that former presumption was “found to be unconstitutional by
our courts.”39 He then explained the difference between the former provision and the
proposed new provision as follows:
[The former provision said] that there is a presumption that
no conditions would be appropriate. [The proposed
provision] just says that somebody is presumed dangerous,
and the court needs to set appropriate conditions
thereafter.[40]
On February 19, 2019, Director Skidmore again testified before the Senate
State Affairs Committee. He explained that the former presumption in subsection (d)(2)
was found “flat out unconstitutional” in Hamburg because it “potentially amounted to
a presumption that a person could not have reasonable bail set.”41 Director Skidmore
provided the following explanation for what the new presumption does:
[I]t’s presumed they are dangerous when they are charged
with these types of crimes and then it’s up to the court to
determine what are the appropriate conditions to set with that
presumption of dangerousness.[42]

38
Audio of Senate State Affairs Committee, S.B. 33, testimony of Criminal Division
Director John Skidmore, 4:03 p.m. - 4:05 p.m. (Feb. 14, 2019).
39
Id. at 4:03 p.m. - 4:04 p.m.
40
Id. at 4:04 p.m. - 4:05 p.m.
41
Audio of Senate State Affairs Committee, S.B. 33, testimony of Criminal Division
Director John Skidmore, 3:47 p.m. - 3:50 p.m. (Feb. 19, 2019).
42
Id. at 3:48 p.m. - 3:50 p.m.

– 15 – 2804
On March 18, 2019, Alaska Deputy Attorney General Robert Henderson
provided a legal memorandum to the Senate State Affairs Committee.43 In this
memorandum, Henderson explained that unlike the former presumption in
section (d)(2), the proposed presumption does not authorize trial courts to issue “no
bail” orders.44 Rather, the proposed presumption mandates that “bail should be set,” and
that it be set in accordance “with the risks associated with defendants who are charged
with the listed offenses in mind.”45
On March 25, 2019, S.B. 33 was introduced in the Senate Judiciary
Committee.46 Director Skidmore again testified about the bill, providing prepared
remarks and answering questions from committee members. After Director Skidmore
provided his prepared remarks,47 Senator Jesse Kiehl asked him to explain the
difference between the former presumption and the new presumption in S.B. 33.48
Director Skidmore replied that, while the former subsection (d)(2) provided certain
defendants “no opportunity, none whatsoever, to get out of jail pretrial,” S.B. 33 merely

43
Memorandum from Robert E. Henderson, Deputy Attorney General to Senator
Mike Shower regarding S.B. 33 (Mar. 18, 2019) (located on the Alaska Legislature’s
website on bill’s “Documents” page).
44
Id. at 5.
45
Id.
46
S.B. 33, 31st Legislature, 1st Session, Version B (as introduced by the Senate State
Affairs Committee, Mar. 20, 2019); Minutes of Senate Judiciary Committee, S.B. 33,
statement of Senator Shelley Hughes, 1:31 p.m. - 1:32 p.m. (Mar. 25, 2019).
47
Audio of Senate Judiciary Committee, S.B. 33, testimony of Criminal Division
Director John Skidmore, 1:37 p.m. - 1:54 p.m. (Mar. 25, 2019).
48
Id. at 1:55 p.m. - 1:56 p.m. (statement of Senator Jesse Kiehl).

– 16 – 2804
created “a presumption that [a personal recognizance release] is not appropriate, but
that some other conditions need to be set.”49
Senator Kiehl then asked whether S.B. 33 provides a different set of
release conditions that courts should order for “more dangerous charges.”50 Director
Skidmore clarified that, rather than providing a different set of release conditions for
dangerous offenses, S.B. 33 affords trial courts discretion to impose any condition or
combination of conditions in section (b) that the court believes are necessary to secure
the defendant’s appearance or performance.51
On May 4, 2019, S.B. 33 was incorporated into then C.S.H.B. 49,52 and
C.C.S.H.B. 49 was signed into law later that session without further amendment to
AS 12.30.011(d)(2).53
The statute’s text and legislative history make clear that the current
version of AS 12.30.011(d)(2) does not require trial courts to presume that no conditions
could reasonably assure the defendant’s appearance of performance54 — a finding under

49
Id. at 1:56 p.m. - 1:58 p.m. (testimony of Criminal Division Director John
Skidmore).
50
Id. at 1:57 p.m. - 1:58 p.m. (statement of Senator Jesse Kiehl).
51
Id. at 1:58 p.m. - 2:00 p.m. (testimony of Criminal Division Director John
Skidmore).
52
Working Draft, C.S.H.B. 49, 31st Legislature, 1st Session, § 54 (May 3, 2019);
Minutes of the House Finance Committee, H.B. 49, opening remarks of Representative
Tammie Wilson, at 2 (May 4, 2019). These provisions were placed in a formal draft several
days later. See C.S.H.B. 49, 31st Legislature, 1st Session, Version C, § 54 (as introduced
by the House Finance Committee, May 7, 2019).
53
SLA 2019, ch. 4, § 59.
54
Cf. Hamburg v. State, 434 P.3d 1165, 1166-67 (Alaska App. 2018).

– 17 – 2804
former subsection (d)(2) that prompted trial courts to issue “no bail” orders. 55 Rather,
as Director Skidmore explained, subsection (d)(2) simply requires courts to impose bail
for certain offenders that are presumed to be a risk, as opposed to granting them release
on their personal recognizance.56 Accordingly, we reject Moe’s claim that the current
version of AS 12.30.011(d)(2) is unconstitutional.
Under the bail statute, trial courts have broad discretion to determine
which bail conditions will reasonably assure a defendant’s appearance and
performance.57 We acknowledge that in certain cases, a trial court may rely on the
presumption in AS 12.30.011(d)(2) that a defendant poses an elevated appearance or
performance risk, and then impose bail conditions that a defendant perceives to be
“restrictive and onerous,” as Moe argues. However, we note that there are important
constitutional checks to this exercise of the court’s discretion. The trial court may not
impose conditions that exceed “the amount actually necessary to fulfill the purposes of

55
Id.; Alexie v. State, 2017 WL 11607877 (Alaska App. Nov. 13, 2017) (unpublished
bail order); Vaneyck v. State, 2018 WL 11409589 (Alaska App. Feb. 7, 2018) (unpublished
bail order).
56
The Alaska Supreme Court recognized long ago that the Alaska Constitution’s right
to be released on bail does not confer a constitutional right to be released on one’s own
recognizance. See Reeves v. State, 411 P.2d 212, 214-16 (Alaska 1966).
57
Pisano I, 2018 WL 11306173, at *2 (Alaska App. May 24, 2018) (unpublished bail
order).

– 18 – 2804
bail,”58 and if the court seeks to impose monetary bail above what the defendant can
afford,59 it must explain “why a particular monetary bail is necessary in a given case.”60

The superior court did not improperly speculate about Moe’s
performance risk
Moe next claims that the superior court improperly speculated that he
would violate the condition of his release that prohibits contact with minor children.
Citing to this Court’s decision in Wagner v. State,61 Moe argues that courts must engage
in a case-specific analysis of the particular defendant’s risk, and that the court’s
concerns in his case were improperly grounded on generalizations about the nature and
circumstances of his offense.
In Wagner v. State, the defendant was charged with attempted and
completed first-degree sexual abuse of a minor for having intercourse with a seventeen-
year-old foster child in his care.62 At Wagner’s felony first appearance, the court
imposed a $50,000 cash performance bond.63 Wagner applied for a bail review hearing,
asking the superior court to change the cash bond to an unsecured bond and release him

58
Id. (first citing Stack v. Boyle, 342 U.S. 1, 5 (1951); and then citing Doe v. State,
487 P.2d 47, 51 (Alaska 1971)).
59
Gilbert v. State, 540 P.2d 485, 486 n.12 (Alaska 1975) (citing Reeves v. State, 411
P.2d 212 (Alaska 1966)).
60
Pisano II, 2019 WL 12043666, at *3 (Alaska App. Jan. 16, 2019) (unpublished bail
order).
61
Wagner v. State, 2021 WL 1346286 (Alaska App. Jan. 14, 2021) (unpublished bail
order).
62
Id. at *1.
63
Id.

– 19 – 2804
to house arrest with electronic monitoring in Anchorage (the victim lived in Nome).64
The court denied this proposal, ruling that electronic monitoring would not secure
Wagner’s performance because it could not prevent Wagner from inviting an underage
person into his hotel room to have sex.65
We disagreed with the superior court that a high monetary bail without
any electronic monitoring was safer than electronic monitoring with a lower amount of
monetary bail that Wagner could afford.66 We therefore remanded the case for
reconsideration.67 In our order, we also explained that “when a court sets bail, it must
engage in a case-specific analysis of the particular case and the particular defendant.”68
We held that the court’s belief that Wagner would begin preying on younger children
under the age of consent was based on speculation rather than an individualized analysis
of Wagner’s case and circumstances.69
Moe argues that Wagner is analogous to his case and that the superior
court’s concern that he might contact children is improper under Wagner. But Moe is
accused of sexually abusing a nine-year-old at knifepoint while Wagner was accused of
sexually abusing a seventeen-year-old who was in his care. The allegations against Moe
therefore differ from the facts in Wagner in two significant ways: the age of the victim
and the alleged use of force.
Moreover, Moe’s argument overlooks another material difference
between his case and Wagner’s. In Moe’s case, the superior court expressly relied on

64
Id.
65
Id. at *2.
66
Id. at *3.
67
Id. at *4.
68
Id.
69
Id.

– 20 – 2804
the rebuttable presumption in AS 12.30.011(d)(2) to find that Moe would be a risk to
children if released on bail. By contrast, in Wagner’s case, we clarified in a footnote
that the trial court did not “rely[] on the rebuttable presumption set out in
AS 12.30.011(d)(2),” but rather, made “specific findings regarding Wagner’s risk of
. . . danger to the community.”70
A presumption is, by definition, “[a] legal inference or assumption that a
fact exists because of the known or proven existence of some other fact or group of
facts.”71 Once a fact or group of facts is shown, the legal inference or assumption
automatically follows. Under AS 12.30.011(d)(2), the fact or group of facts that is the
condition antecedent to the presumption is that “the person is . . . charged with an
unclassified [or] sexual felony.”72 If a defendant is charged with a listed offense,
subsection (d)(2) directs the court to infer or assume “that there is a substantial risk that
the person will not appear and . . . poses a danger to the victim, other persons, or the
community.”73
In this case, Moe is charged with first-degree sexual abuse of a minor for
forcing nine-year-old R.M.F. to perform oral sex. Because the superior court found that
this presumption was not rebutted, the court was permitted to infer, without further
individualized analysis beyond the nature of the allegations, that Moe was a danger to
the community (i.e., a danger to children inside and outside the Mt. Juneau facility).

70
Id. at *1 n.1.
71
“Presumption,” Black’s Law Dictionary (12th ed. 2024) (emphasis added).
72
AS 12.30.011(d)(2)(A).
73
Id.

– 21 – 2804
The superior court did not sufficiently explain why the $25,000 cash
performance bond was necessary to reasonably ensure his performance
Moe next argues that the superior court imposed a cash performance bond
in an amount he cannot afford without adequately explaining why it was reasonably
necessary to secure his performance.
This Court reviews a trial court’s order imposing particular bail conditions
for an abuse of discretion, recognizing that setting bail “is in large measure a
discretionary function, and the trial court is in the best position to make this
determination.”74 To permit meaningful appellate review, a trial court must provide “a
sufficient explanation [for why it] . . . imposed the particular condition or conditions
being challenged.”75 Further, if monetary bail is set in an amount the defendant cannot
afford, the court must “provide a ‘particularized statement’ that addresses how the
monetary amount was calculated and must directly explain ‘why no less restrictive
conditions will suffice.’”76
At Moe’s third bail review hearing, the superior court found that Moe had
rebutted the presumption in AS 12.30.011(d)(2) that he was a substantial appearance
risk, but had not rebutted the presumption that he was a danger to the community.
Accordingly, the court removed the $50,000 cash appearance bond, added a $25,000
cash performance bond, and ordered that Moe enter the Mt. Juneau treatment program,
submit to electronic monitoring, and remain on house arrest.

74
Pisano I, 2018 WL 11306173, at *2 (Alaska App. May 24, 2018) (unpublished bail
order).
75
Id.; see also Pisano II, 2019 WL 12043666, at *3 (Alaska App. Jan. 16, 2019)
(unpublished bail order).
76
Sergie v. State, 2021 WL 3277199, at *3 (Alaska App. July 30, 2021) (unpublished
bail order) (quoting Francis v. State, 2021 WL 1346285, at *2 n.10 (Alaska App. Jan. 15,
2021) (unpublished bail order)).

– 22 – 2804
In its bail remarks, the court acknowledged Moe’s contention that he “has
$1,700 to his name,” but it nevertheless found that a “substantial” monetary bail was
“appropriate.” The court expressed concern that Mt. Juneau was an unsecured facility
with no duty to report, that children were permitted as visitors to Mt. Juneau, and Moe
would have access to children in the community when out on passes. The court also
noted that Moe had a prior VCOR conviction. However, the court did not explain why
a cash performance bond in the amount of $25,000 was necessary to reasonably ensure
Moe’s performance, given the restrictive non-monetary conditions that it was also
imposing.
On appeal, Moe argues that the court erroneously set bail at an amount he
could not afford without providing a particularized statement addressing how the
monetary amount was calculated or explaining why no less restrictive conditions would
suffice.77 We agree.
As previously explained, the superior court did not err by relying on the
presumption in AS 12.30.011(d)(2) to find that Moe is a danger to the community based
on the specific allegations in his case. Based on these findings, the court had discretion
under AS 12.30.011(b) to impose a monetary performance bond — including
potentially a bond that Moe could not afford — if the bond was the least restrictive
means of reasonably assuring Moe’s performance. But in Moe’s case, the court failed
to provide a “particularized statement” explaining why a cash bond in that monetary
range was warranted in addition to the non-monetary conditions that it imposed (e.g.,
electronic monitoring with house arrest at Mt. Juneau).
Because the superior court’s remarks are insufficient for us to review
whether Moe’s bail conditions comply with AS 12.30.011(b) and the Alaska and United

77
Id.

– 23 – 2804
States Constitutions, we remand Moe’s case for further proceedings consistent with this
opinion.78

Conclusion
For the reasons explained, we VACATE the superior court’s bail order
dated October 17, 2024, and REMAND this case for further proceedings consistent with
this opinion.

78
Moe also argues that the superior court abused its discretion by imposing a $25,000
cash performance bond. We decline to reach this issue because we agree with Moe that the
court did not provide a sufficient explanation for why this monetary bond was needed, and
we remand Moe’s case to the superior court for further proceedings.

– 24 – 2804