Colton Thomas v. State of Alaska

In the Court of Appeals of the State of Alaska
Colton Thomas,
Appellant,
v.
State of Alaska,
Appellee.
Court of Appeals No. A-14263
Order
Motion for Release Prior to Judgment
Date of Order: December 20, 2023
Trial Court Case No. 3KN-22-01366CR
Before: 	Wollenberg, Harbison, and Terrell, Judges
Colten Keith Thomas appeals from the bail order issued in this case on
August 31, 2023. Thomas raises several challenges to the monetary bail that was set by
the superior court, but primarily he contends that the superior court refused to conduct
an independent assessment of the monetary bail amount that was originally 	set at his
first appearance 1 	and that the monetary bail exceeds the least restrictive amount
necessary to fulfill the dual purposes of bail (i.e., appearance and performance).2
On December 16, 2022, Thomas was charged by complaint with one
count of first-degree sexual assault, one count of third-degree sexual assault, and one
count of fourth-degree assault for conduct involving his sister-in-law, K.T., who is
married to his brother, Kyler.3 At the time of the offense, Thomas, his then-girlfriend,
1 	See Torgerson v. State, 444 P.3d 235, 238 (Alaska App. 2019) (holding that “at a
defendant’s 	first bail 	review hearing, 	a court is required to conduct 	an independent
assessment of the defendant’s conditions of release” and “may not simply defer to the bail
conditions imposed at a defendant’s first court appearance”).
2 	See AS 12.30.011(b) (requiring courts to impose the least restrictive conditions of
release that will reasonably ensure the defendant’s appearance and protect the victim, other
persons, and the community).
3 	AS 11.41.410(a)(1), AS 11.41.425(a)(1)(C), and AS 11.41.230(a)(1), respectively.

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December 20, 2023 – p. 2
and their children were living in the same house as Kyler, K.T., and their children. 4
According to the complaint, Thomas woke K.T. up by touching her breasts and genitals
and then forced his penis into her mouth, injuring the inside of her lip and causing her
pain. The offense was alleged to have taken place the day before the complaint was
filed.
At Thomas’s first appearance in court on December 17, 2022, the trial
court advised him of his rights, appointed counsel for him, and set bail. In its bail order,
the court required Thomas to post a $50,000 cash performance bond and a $50,000 cash
or corporate appearance bond. The court also required Thomas to be in the custody of
a court-approved third-party custodian, prohibited Thomas from contacting K.T., and
prohibited Thomas from returning to their mutual residence, among other conditions.
For the next several months, Thomas’s attorney negotiated with the State,
attempting 	to 	reach 	a 	pre-indictment 	resolution. 	After 	these 	negotiations 	were
unsuccessful, the State asked a grand jury to indict Thomas for the conduct described
in the complaint and for additional conduct that allegedly occurred between 2020 and
2022.
On May 25, 2023, the grand jury returned a twenty-one-count indictment,
charging Thomas with nine counts of first-degree sexual assault, one count of attempted
first-degree sexual assault, four counts of second-degree sexual assault, two counts of
third-degree sexual assault, and five counts of fourth-degree assault. 5
Several days later, Thomas filed his first application for a bail review
hearing. In this application, Thomas asked to be released to three third-party custodians
4 	Thomas and his ex-girlfriend were in a long-term relationship and had two children
together. Their relationship ended sometime after the alleged December 15, 2022 incident.
5 	AS 11.41.410(a)(1), AS 11.41.410(a)(1) & AS 11.31.100, AS 11.41.420(a)(1),
AS 11.41.425(a)(1)(C), and AS 11.41.230(a)(1), respectively.

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December 20, 2023 – p. 3
(his mother, Corrina Thomas; his grandfather, Harold Hagedorn; and his uncle, Jacob
Hagedorn) with 24-hour electronic monitoring by the Pretrial Enforcement Division
(PED). Thomas also asked that the monetary bail 	be reduced to a $5,000 cash
performance bond and an unsecured appearance bond.
The court conducted a bail review hearing on June 5, 2023. Thomas’s
mother testified at the hearing and explained that she lives with her husband, Moses
Ayala (Thomas’s stepfather), and Thomas’s 17-year-old brother in a house that is about
seven miles away from K.T.’s residence. Thomas’s mother told the court that Thomas’s
older brother, Kyler, also sometimes lives there. She stated that if Thomas were
released, Thomas would be in her custody, his grandfather’s custody, or his uncle’s
custody at all times.
In response to questioning by the prosecutor, Thomas’s mother testified
that she had spoken to both Thomas and K.T. about the allegations. During these
conversations, Thomas provided his account of what occurred, and K.T. provided hers.
Thomas’s mother stated that she did not believe that her son committed the offenses —
rather, she believed that any sexual contact between Thomas and K.T. was consensual.
The bail hearing was continued so that the parties could consider whether
Thomas’s mother was likely to be called as a witness and thus would be statutorily
disqualified 	from serving as a third-party custodian. 6 	But before the date of the
continued hearing, Thomas filed a written notice withdrawing his bail proposal.
Thomas filed a second application for a first bail hearing on July 19, 2023.
In this application, he asked to be released to three new third-party custodians — his
stepfather, Moses Ayala, and his ex-girlfriend’s 	parents, Erin McCrosky and Jarred
Mahan. Thomas again proposed 24-hour electronic monitoring by PED and asked that
the monetary bail be reduced to a $5,000 cash performance bond.
Under AS 12.30.021(c)(5), a person cannot serve as a third-party custodian if they
“may be called as a witness in the prosecution of the person.”
6

The court conducted a bail review hearing on July 26, 2023. At that
hearing, two of the proposed third-party custodians (Erin McCrosky and Moses Ayala)
were present and testified. In response to questioning by the prosecuting attorney,
McCrosky explained 	that her daughter (Thomas’s ex-girlfriend) 	and her daughter’s
children (who were also Thomas’s children) live with K.T. McCrosky stated that when
she goes over to see her grandchildren, K.T. barely speaks to her. McCrosky assured
the prosecutor that she would not pass messages to K.T. if she were approved as
Thomas’s third-party custodian.
Thomas’s stepfather, Moses Ayala, also testified. He stated that he has
prior criminal convictions for making a false report, theft, and assault. Ayala stated that
he lives with Thomas’s mother, Thomas’s 17-year-old brother, and Kyler.
Because one of Thomas’s proposed third-party custodians, Jarred Mahan,
was not present, the court continued the bail hearing to August 10, 2023. However,
Thomas’s attorney later canceled the hearing.
Thomas filed a third application for a first bail hearing on August 29,
2023. In this application, he again proposed electronic monitoring by PED, but this time
he asked the court to delete the third-party custodian requirement. He also asked the
court to reduce the bail to a $5,000 cash performance bond and a $50,000 unsecured
appearance bond.
The court conducted a bail review hearing on August 31, 2023. At that
hearing, the defense attorney asked the court to release Thomas to live on the four lots
that comprise his grandfather’s farm — the same property where his mother, his
stepfather, his 17-year-old brother, and Kyler reside. The attorney explained 	that
Thomas would remain at the property on house arrest with electronic monitoring by
PED and would leave only for specific purposes, such as going to court, meeting with
his lawyer, or engaging in treatment. The attorney told the court that Thomas could not
afford to post more than $5,000.
Thomas v. State – A-14263
December 20, 2023 – p. 4

The court approved Thomas’s request to be monitored by PED electronic
monitoring and to delete the third-party custodian requirement, but it denied Thomas’s
request to lower the monetary bail amount. The court discussed the difficulty Thomas
had had in finding a qualified third-party custodian, and it expressed concern that
without a third-party custodian, the dual purposes of bail would not be fulfilled. The
court explained that “the monetary amount would be necessary in order to protect the
public and to ensure the defendant’s appearance at trial.” The court suggested that it
might feel differently about imposing a lower bail amount if Thomas could find a third-
party custodian that the court would approve.
The court specifically acknowledged the defense attorney’s assertion that
Thomas could not personally post more than $5,000 bail, but explained that it was
imposing a higher bail amount because this would mean that Thomas would need to get
help from friends and family to post the bail, which would help ensure community
safety and Thomas’s appearance at trial.
Thomas appeals, contending that the superior court did not conduct an
independent assessment of his conditions of release and that it instead deferred to the
bail set at his first court appearance. He also asserts that the court set bail outside of
what he is able to afford without providing case-specific reasons for doing so.
Article I, Section 11 of the Alaska Constitution entitles a person accused
of a crime to be released on bail. This right is implemented through the provisions of
Title 12, Chapter 30 of the Alaska Statutes. In Torgerson v. State, we held that “at a
defendant’s first 	bail review 	hearing,” the trial court “is required to conduct an
independent assessment of the defendant’s conditions of release. The court may not
simply defer to the bail conditions imposed at a defendant’s first court appearance.”7
Instead, the court is required to evaluate the entirety of the bail proposal (including any
Thomas v. State – A-14263
December 20, 2023 – p. 5
7 	Torgerson v. State, 444 P.3d 235, 238 (Alaska App. 2019).

Thomas v. State – A-14263
December 20, 2023 – p. 6
monetary conditions) in order to determine the “least restrictive” means to fulfill the
dual purposes of bail. 8
When Thomas first appeared in court, he was charged with one count of
first-degree sexual assault, one count of third-degree sexual assault, and one count of
fourth-degree assault for conduct that occurred on December 15, 2022. At that time, the
court required Thomas to post a $50,000 cash performance bond and a $50,000 cash or
corporate appearance bond. The court also required Thomas to be in the custody of a
court-approved third-party custodian, prohibited 	Thomas from contacting K.T. or
returning to their mutual residence, and imposed several other release conditions.
After the parties attempted, unsuccessfully, to reach a pre-indictment
agreement 	to 	resolve 	the 	case, 	Thomas 	was 	indicted 	for 	conduct 	spanning
approximately 	two years — the conduct originally 	charged in the complaint plus
eighteen additional charges of sexual assault, attempted sexual assault, and assault.
Against this backdrop, the court conducted a series of “first” bail review
hearings. During these hearings, the court learned that several of Thomas’s family
members were closely involved in the case and in regular contact with Thomas and
K.T., and that many of them lived adjacent to or with one another on lots owned by
Thomas’s grandfather.
At the hearings, the court was informed that Thomas’s stepfather has been
convicted of crimes of dishonesty and assault. The court also learned that Thomas’s
mother has spoken to both K.T. and Thomas about the alleged offenses, that she may
8 	See AS 12.30.011(b) (requiring a judicial officer 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”); AS 	12.30.011(c) (requiring 	a 	court
determining a defendant’s 	conditions of release to consider, among other factors, the
“assets available to the person to meet monetary conditions of release”); see also Alaska
Const. art. I, § 12 (prohibiting excessive bail).

Thomas v. State – A-14263
December 20, 2023 – p. 7
be a witness at trial, and that she visits her grandchildren 	(Thomas’s and Kyler’s
children) at the residence shared by K.T. and Thomas’s ex-girlfriend. 9
Ultimately, the court deleted the third-party custodian requirement, but it
declined to reduce the monetary bail. The court acknowledged Thomas’s lawyer’s
assertion that Thomas is unable to post more than $5,000, but it found that, given the
number of serious felony charges Thomas now faces, and given the complicated family
dynamics in this case, the existing monetary bail — a $50,000 performance bond and a
$50,000 appearance bond — is necessary to protect the public and to reasonably ensure
Thomas’s appearance at trial.
We conclude that the superior court adequately explained its decision to
maintain the high monetary bail and that it did not abuse its discretion in doing so.
Furthermore, we note that the court’s decision was tied to Thomas’s current proposed
release plan and that, under AS 12.30.006(d)(1), a defendant is entitled to a second or
subsequent bail review hearing if the defendant provides “new information” to the court
not considered at the first bail hearing. Thus, if Thomas presents a release plan with a
different third-party custodian, the court would be required to reassess the monetary
bail. 10
Furthermore, Thomas has not yet had a hearing to review bail solely
because of his inability to pay. Under AS 12.30.006(d)(1), a defendant’s inability to pay
will constitute “new information” if the defendant has “made a good faith effort to post
the required bail[.]” If Thomas cannot post the current bail by using his own funds and
any funds provided by his friends and family, then he is entitled to a bail review hearing
under this provision of the bail statute.
9 	Thomas’s ex-girlfriend’s mother, who had offered to be a third-party custodian for
Thomas, visits her grandchildren at that residence as well.
10 	See Harris v. State, 2021 WL 5029385, at 	*3 (Alaska 	App. 	Oct. 28, 2021)
(unpublished).

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December 20, 2023 – p. 8
For these reasons, we AFFIRM the superior court’s order.
Entered at the direction of the Court.
Clerk of the Appellate Courts
________________________________
Meredith Montgomery
cc: 	Judge Joanis
Trial Court Clerk
Distribution:
Email:
Taylor, William W., Public Defender
Leaders, Scot Henry