State v. Shawn Bulson

ENTRY ORDER
2024 VT 15
SUPREME COURT CASE NO. 24-AP-041
FEBRUARY TERM, 2024
State of Vermont } APPEALED FROM:
}
}
v. } Superior Court, Bennington Unit,
} Criminal Division
Shawn Bulson }
} CASE NO. 24-CR-00351
}
Trial Judge: Kerry Ann McDonald-Cady
In the above-entitled cause, the Clerk will enter:
¶ 1. The State of Vermont appeals a decision by the criminal division to release
defendant Shawn Bulson on $5000 bail and conditions of release without holding a weight-of-the-
evidence hearing pursuant to 13 V.S.A. § 7553a. The court concluded that the charge, a violation
of 13 V.S.A. § 5, accessory after the fact, was not a crime of violence as is required to hold
defendant without bail pending trial under § 7553a. We affirm.
¶ 2. The State alleges the following. On the night of February 2, 2022, John Pena-Baez,
Joerick Johnson, and Chris Morgan shot and killed Isiah Rodriguez in Danby, Vermont.
Defendant’s girlfriend, Ashley Wicks, drove the men, including Rodriguez, from Bennington to
Danby on the night of the murder. Defendant was initially in the car with Wicks, Rodriguez, and
the assailants, but got out before they left Bennington. Wicks and the assailants later returned
from Danby the same night. Over the next several days, defendant and Wicks, who lived together,
provided a safe haven to the assailants, gave false information to investigators, and defendant
disabled a security camera at their home.
¶ 3. Based on these and other allegations, the court found probable cause to charge
defendant with accessory after the fact, a violation of 13 V.S.A. § 5. The court arraigned defendant
on January 30, 2024. The State moved to hold defendant without bail pursuant to 13 V.S.A.
§ 7553a. It argued that defendant was an accessory to first-degree murder, a violent felony.
Accordingly, the State argued, a necessary element of defendant’s charge involved an act of
violence, which is required to hold a person under § 7553a. The court denied the State’s request
to hold defendant without bail. It concluded that accessory after the fact did not contain an element
of violence, even where the predicate crime was violent. The court nonetheless found that
defendant was a flight risk, imposed conditions of release accordingly, and set bail at $5000 cash
or surety concurrent to a related docket.

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¶ 4. The State moved for permission to take an interlocutory appeal, which the court
granted. On our own motion, this Court clarified that the State’s appeal was an appeal as of right
under 13 V.S.A. § 7556(c), and a single Justice referred the matter for full-Court review.
Defendant, represented by assigned counsel, has not participated in the appeal.
¶ 5. The State argues that accessory after the fact where the underlying felony is first-
degree murder is a crime an “element of which involves an act of violence against another person.”
13 V.S.A. § 7553a. It asserts that commission of first-degree murder is an essential element it
must prove to convict defendant. First-degree murder is a violent felony. Therefore, the State
contends, accessory after the fact is a qualifying crime under § 7553a. It asks the Court to remand
with instructions for the trial court to hold a weight-of-the-evidence hearing pursuant to § 7553a.
¶ 6. We hold that accessory after the fact is not a qualifying crime for the purposes of
§ 7553a, no matter the predicate felony. We are guided by the plain language of 13 V.S.A. § 7553a
and § 5 and case law from other jurisdictions.
¶ 7. We review questions of law without deference to the trial court. State v. Lohr, 2020
VT 41, ¶ 4, 212 Vt. 289, 236 A.3d 1277.
¶ 8. Section 7553a of Title 13 permits a court to hold a person without bail pending trial
when they are charged with a felony, an element of which involves an act of violence against
another person. In addition, the court must find that the evidence of guilt is great and that there is
clear and convincing evidence that “the person’s release poses a substantial threat of physical
violence to any person and that no condition or combination of conditions will reasonably prevent
the physical violence.” Id.
¶ 9. Section 5 of Title 13 punishes a person who, with the intent that the offender will
avoid arrest or punishment, “harbors, conceals, maintains, or assists” the offender “after” the
offender commits the felony. The charge carries a maximum term of seven years to serve and/or
the imposition of a $1000 fine, regardless of the nature of the predicate felony.
¶ 10. By its plain language, § 5 does not contain a violent element. See State v. Pellerin,
2010 VT 26, ¶ 7, 187 Vt. 482, 996 A.2d 204 (explaining that Supreme Court begins with statute’s
plain language when determining its meaning). The State acknowledges as much, as it must, but
contends that when the underlying felony itself contains a violent element, § 5 converts into a
violent crime to which § 7553a applies. The State asserts that it must prove the “commission of
the [violent] felony” to convict defendant, and therefore it must prove an element involving an act
of violence at trial. See State v. Williams, 142 Vt. 81, 86, 451 A.2d 1142, 1144 (1982) (holding
that § 5 requires the State to prove “commission of an act which constitutes a felony”). This
burden, the State argues, means that the trial court is required to at least hold a weight-of-the-
evidence hearing to determine whether to hold defendant under § 7553a. We disagree.
¶ 11. An accessory after the fact cannot be liable for the violent acts committed by
another person. Other courts have concluded the same. For example, the Appeals Court of
Massachusetts reached the same conclusion in a slightly different context. Commonwealth v.
Hoshi H., 887 N.E.2d 1104 (Mass. App. Ct. 2008). There, a juvenile was accused of being an
accessory after the fact, where the juvenile fled a house with a man who had shot another man and

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arranged for their transport to another town. The prosecution sought to indict the juvenile as a
“youthful offender,” which required a showing that the crime “involves the infliction or threat of
serious bodily harm.” Id. at 1105 (quotation omitted). To make that showing, the prosecution
contended that by helping the man escape the scene of the crime and concealing him from arrest,
the juvenile was vicariously liable for the man’s violent conduct. In affirming the trial court’s
dismissal of the indictment, the Appeals Court held that the Commonwealth’s approach
“conflate[s] the form of accessorial liability with which the defendant is charged here with general
joint venture liability or liability as an accessory before the fact.” Id. at 1106. The court explained
that the test was to look at the “juvenile’s own conduct in assessing the applicability” of the
youthful offender provision. Id. It held that nothing in the charged conduct contained a violent
element. Id. at 1106-07 (noting that “outcome may well have been different had the juvenile been
charged as an accessory before the fact or joint venturer”). The court concluded that accessories
after the fact do not share the same mental state required to convict the principal and are, “by
definition, not involved in [the underlying felony’s] planning or execution.” Id. at 1106.
¶ 12. In Donaldson v. State, the Florida Supreme Court affirmed a defendant’s first-
degree murder convictions but reversed the sentence imposed because the trial court had
improperly permitted the prosecution to present evidence to the jury of the defendant’s “prior
conviction of accessory after the fact as a prior violent felony.” 722 So.2d 177, 184 (Fla. 1998).
The prosecution had characterized the defendant’s prior accessory conviction as one where the
defendant had acted as a principal to the murder. The court was clear that a conviction “of
accessory after the fact” is “wholly independent and distinct from the underlying crime of murder.”
Id. at 185. “The very definition of” accessory after the fact, the court explained, “precludes” an
accessory from “being convicted as a principal to the underlying crime, regardless of the gravity
of the underlying crime.” Id. at 184.
¶ 13. In United States v. Innie, the Ninth Circuit had to decide whether a conviction of
accessory after the fact to the crime of murder for hire could be considered a violent crime for the
purpose of a sentencing enhancement. 7 F.3d 840, 850 (9th Cir. 1993). The court held that “[e]ven
if the underlying murder for hire offense is considered to be an element of the accessory offense,
culpability for the murder is not attributed to the accessory defendant. The accessory defendant is
liable for the act of receiving, relieving, comforting, or assisting a murderer after the use of force,
not for the murderer’s use of force.” Id. at 851. It continued, “being an accessory after the fact to
murder for hire does not fit the definition of crime of violence found” in the federal career criminal
sentencing enhancement statute. Id.; see 18 U.S.C. § 16 (defining “crime of violence” as “offense
that has as an element the use, attempted use, or threatened use of physical force against the person
or property of another”); see also United States v. LeBlanc, No: 2:10 CR 00038-001, 2010 WL
4628010, at *2, *4 (W.D. La. Nov. 4, 2010) (noting that there is no such thing as crime of
“accessory after the fact to first degree murder” and concluding that accessory after fact contained
no violent elements).
¶ 14. “The intent element, or mens rea, of a crime embodies one of the most fundamental
principles in criminal law: a person cannot be held criminally liable for causing a bad result without
a culpable mental state with respect to that result.” State v. Gadreault, 171 Vt. 534, 535, 758 A.2d
781, 783 (2000) (mem.). That principle applies to this case. Both the plain language of § 5 and
case law from other jurisdictions demonstrate that defendant can neither be held liable for the
intent to kill Isiah Rodriguez nor the commission of that crime. Accordingly, defendant cannot be

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held without bail under § 7553a, even if the State must ultimately prove that the underlying
felonious conduct involved an act of violence against another person.
¶ 15. The State does not challenge the court’s exercise of discretion in the amount of bail
imposed or in fashioning the conditions of release. Accordingly, we affirm.
Affirmed.
BY THE COURT:
Paul L. Reiber, Chief Justice
Harold E. Eaton, Jr., Associate Justice
Karen R. Carroll, Associate Justice
William D. Cohen, Associate Justice
Nancy J. Waples, Associate Justice