SER Carl L. Harris, Prosecuting Attorney v. Hon. John W. Hatcher, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2014 Term FILED
May 29, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 13-1236 OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL. CARL L. HARRIS, PROSECUTING

ATTORNEY FOR FAYETTE COUNTY, WEST VIRGINIA,

Petitioner

v.

THE HONORABLE JOHN W. HATCHER, JR., JUDGE OF THE CIRCUIT COURT

OF FAYETTE COUNTY, WEST VIRGINIA, and STEVEN R. MALAY, SR.,

Respondents

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED

Submitted: March 26, 2014

Filed: May 29, 2014

Brian D. Parsons, Esq. J.B. Rees, Esq.
Assistant Prosecuting Attorney James W. Keenan, Esq.
Roger L. Lambert, Esq. Keenan & Associates, L.C.
Assistant Prosecuting Attorney Fayetteville, West Virginia
Fayette County Counsel for Respondent
Fayetteville, West Virginia Steven R. Malay
Counsel for Petitioner

JUSTICE LOUGHRY delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.

 SYLLABUS BY THE COURT

1. “Where prohibition is sought to restrain a trial court from the abuse of its

legitimate powers, rather than to challenge its jurisdiction, [this] appellate court will review

each case on its own particular facts to determine whether a remedy by appeal is both

available and adequate, and only if the appellate court determines that the abuse of power is

so flagrant and violative of petitioner’s rights as to make a remedy by appeal inadequate, will

a writ of prohibition issue.” Syl. Pt. 2, Woodall v. Laurita, 156 W. Va. 707, 195 S.E.2d 717

(1973).

2. “‘In determining whether to entertain and issue the writ of prohibition for

cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the

party seeking the writ has no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order

raises new and important problems or issues of law of first impression. These factors are

general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be satisfied,

i
it is clear that the third factor, the existence of clear error as a matter of law, should be given

substantial weight.’ Syllabus Point 4, State ex. rel. Hoover v. Berger, 199 W. Va. 12, 483

S.E.2d 12 (1996).” Syl. Pt. 2, State ex. rel. Weirton Med. Ctr. v. Mazzone, 214 W. Va. 146,

587 S.E.2d 122 (2002).

3. “A babysitter may be a custodian under the provisions of W.Va.Code,

61–8D–5 [1998], and whether a babysitter [is] in fact a custodian under this statute is a

question for the jury.” Syl. Pt. 1, State v. Stephens, 206 W. Va. 420, 525 S.E.2d 301 (1999).

4. The question of whether a person charged with a crime under West

Virginia Code § 61-8D-5 (2010) is a custodian or person in a position of trust in relation to

a child is a question of fact for the jury to determine.

5. “The State may seek a writ of prohibition in this Court in a criminal case

where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims

that the trial court abused its legitimate powers, the State must demonstrate that the court’s

action was so flagrant that it was deprived of its right to prosecute the case or deprived of a

valid conviction. In any event, the prohibition proceeding must offend neither the Double

Jeopardy Clause nor the defendant’s right to a speedy trial. Furthermore, the application for

ii
a writ of prohibition must be promptly presented.” Syl. Pt. 5, State v. Lewis, 188 W.Va. 85,

422 S.E.2d 807 (1992).

iii

LOUGHRY, Justice

The petitioner Carl L. Harris, Prosecuting Attorney for Fayette County, West

Virginia (hereinafter the “petitioner” or the “State”), invokes this Court’s original

jurisdiction1 and seeks a writ of prohibition to prevent the Circuit Court of Fayette County

from enforcing its November 12, 2013, order through which it dismissed six counts of an

indictment returned against the respondent (defendant below), Steven R. Malay, Sr.

(hereinafter “Mr. Malay”). Each of the dismissed counts charged Mr. Malay with sexual

abuse by a parent, guardian, custodian, or person in a position of trust in violation of West

Virginia Code § 61-8D-5 (2010).2 The State asserts that the circuit court prematurely

1
See W.Va. Const. art. VIII, § 3.
2
West Virginia Code § 61-8D-5 provides in relevant part:
(a) In addition to any other offenses set forth in this code, the
Legislature hereby declares a separate and distinct offense under
this subsection, as follows: If any parent, guardian or custodian
of or other person in a position of trust in relation to a child
under his or her care, custody or control, shall engage in or
attempt to engage in sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with, a child
under his or her care, custody or control, notwithstanding the
fact that the child may have willingly participated in such
conduct, or the fact that the child may have consented to such
conduct or the fact that the child may have suffered no apparent
physical injury or mental or emotional injury as a result of such
conduct, then such parent, guardian, custodian or person in a
position of trust shall be guilty of a felony . . . .

(b) Any parent, guardian, custodian or other person in a position
of trust in relation to the child who knowingly procures,
(continued...)

1

dismissed these counts as the question of Mr. Malay’s status under West Virginia Code § 61­

8D-5 is a question of fact for the jury’s determination. For the reasons set forth below, we

grant the requested writ.

I. Factual and Procedural Background

The State alleges that in December 2012, the State Police received an

anonymous tip that B.F.H.3 was having sexual relations with an older school bus driver who

was later identified as Mr. Malay. Mr. Malay was employed by the Fayette County Board

of Education, and B.F.H. was then a fourteen-year-old student who rode to and from school

on Mr. Malay’s bus. The criminal sexual acts allegedly committed by Mr. Malay occurred

2
(...continued)
authorizes, or induces another person to engage in or attempt to
engage in sexual exploitation of, or sexual intercourse, sexual
intrusion or sexual contact with, a child under the care, custody
or control of such parent, guardian, custodian or person in a
position of trust when such child is less than sixteen years of
age, notwithstanding the fact that the child may have willingly
participated in such conduct or the fact that the child may have
suffered no apparent physical injury or mental or emotional
injury as a result of such conduct, such parent, guardian,
custodian or person in a position of trust shall be guilty of a
felony. . . .
3
We use initials to identify the minor victim in this case, following our practice of
protecting the identity of juveniles in sensitive cases. See, e.g., State ex rel. WV Dept. Of
Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987); see
also W.Va. R. App. P. 40(e)(1).

2

at the victim’s home while her parents were asleep and at Mr. Malay’s farm located a short

distance from the victim’s home.

The State asserts that B.F.H. was interviewed by the State Police, and she

reported that she had been speaking with Mr. Malay during the prior three months. The State

alleges that B.F.H. further reported that around the beginning of the 2012 school year, Mr.

Malay told her that she looked pretty; that she needed to wear shirts that revealed more of her

breasts; and that he enjoyed seeing her at the pool the previous summer. Additional

allegations included the following: that B.F.H. reported that Mr. Malay provided her with his

cell phone number and asked that she call him; that she later telephoned Mr. Malay, who

asked her to come to his farm; and, that during her initial visit to his farm, Mr. Malay asked

her to disrobe and kissed her. The State further alleges that B.F.H. reported that during her

subsequent meetings with Mr. Malay, he touched her genitals, directed her to reciprocate by

touching his genitals, and requested she perform oral sex on him, which she did upon his

teaching her how to do so.

According to the State, Mr. Malay also allegedly engaged in “phone sex” with

B.F.H., during which he would express his desire to have sexual relations with her at her

home. The State alleges that soon after this discussion, Mr. Malay began to visit B.F.H. in

3

her home and, while her mother and stepfather were asleep, engaged in sexual acts with her,

including digital penetration, oral sex, and, eventually, sexual intercourse.

In September 2013, Mr. Malay was indicted by a grand jury on eight counts of

sexual abuse by a parent, guardian, custodian or person in position of trust in violation of

West Virginia Code § 61-8D-5 (2010), three counts of third degree sexual abuse in violation

of West Virginia § 61-8B-9(a) (2010), and seven counts of third degree sexual assault in

violation of West Virginia Code § 61-8B-5(a)(2) (2010). Thereafter, Mr. Malay filed a

motion for a bill of particulars requesting an explanation of the facts relied upon by the State

in charging him with sexual abuse by a parent, guardian, custodian or person in a position

of trust in relation to a child. The State filed a response to the motion in which it asserted

4

that Mr. Malay’s position as a school bus driver qualified him as either a custodian4 or person

in a position of trust in relation to a child5 under West Virginia Code § 61-8D-5.

Thereafter, Mr. Malay filed a motion to dismiss the eight counts in the

indictment charging him with violating West Virginia Code § 61-8D-5. Mr. Malay asserted

4
A “custodian” is defined in West Virginia Code § 61-8D-1(4) (2010) as:

a person over the age of fourteen years who has or shares actual
physical possession or care and custody of a child on a full-time
or temporary basis, regardless of whether such person has been
granted custody of the child by any contract, agreement or legal
proceeding. “Custodian” shall also include, but not be limited
to, the spouse of a parent, guardian or custodian, or a person
cohabiting with a parent, guardian or custodian in the
relationship of husband and wife, where such spouse or other
person shares actual physical possession or care and custody of
a child with the parent, guardian or custodian.
5
A “person in a position of trust in relation to a child” is defined in West Virginia
Code § 61-8D-1(12) (2010) as

any person who is acting in the place of a parent and charged
with any of a parent’s rights, duties or responsibilities
concerning a child or someone responsible for the general
supervision of a child’s welfare, or any person who by virtue of
their occupation or position is charged with any duty or
responsibility for the health, education, welfare, or supervision
of the child.

On March 8, 2014, the Legislature amended West Virginia Code § 61-8D-1
through the passage of House Bill 4005 (effective ninety days from passage). The 2014
amendment defines the term “gross neglect” and, in doing so, the definition of “person in a
position of trust in relation to a child” was moved from § 61-8D-1(12) to subsection (13), but
the definition was substantively unchanged.

5

that even if his employment as a school bus driver caused him to qualify as a custodian or a

person in a position of trust under the statute, the acts were not committed while he was

serving in that capacity.

On October 17, 2013, the trial court held a hearing on Mr. Malay’s motion to

dismiss. The trial court reconvened the parties on October 22, 2013, for the purpose of

issuing its ruling. The court explained, inter alia, that it had considered State v. Edmonds,

226 W.Va. 464, 702 S.E.2d 408 (2010), State v. Longerbeam, 226 W.Va. 535, 703 S.E.2d

307 (2010), and State v. Simons, No. 11-0917, 2012 WL 3079097 (W.Va. Apr. 16, 2012)

(memorandum decision), and perceived a conflict as to whether a defendant’s status under

§ 61-8D-5 is a question of law for the court or a question of fact for a jury. On November

12, 2013, the trial court entered an order in which it found that

the alleged criminal sex acts that took place at the defendant’s
farm were, if proven, done while the defendant was acting as a
custodian or person in a position of trust. The sex acts which
occurred in the victim’s home, while the victim’s sleeping
parents were in the home, were done, if proven, while the
defendant was not acting as a custodian or person in [a] position
of trust.

Based on these conclusions, the trial court denied Mr. Malay’s motion to dismiss the two

counts charging him with criminal sexual acts at his farm, but granted the motion to dismiss

with respect to the six counts involving the criminal sex acts that occurred at the victim’s

6

home.6 The State asks this Court to prohibit the trial court from enforcing this order so that

the State may proceed on all counts in the indictment.

II. Standard for Issuance of Writ of Prohibition

The State seeks to prohibit the circuit court from enforcing its order that

dismisses six of the eight counts of the indictment charging Mr. Malay with sexual abuse by

a parent, guardian, custodian, or person in a position of trust in relation to a child in violation

of West Virginia Code § 61-8D-5. Because the petitioner seeks to prohibit the circuit court

from abusing its legitimate powers, the following standard applies:

Where prohibition is sought to restrain a trial court from
the abuse of its legitimate powers, rather than to challenge its
jurisdiction, the appellate court will review each case on its own
particular facts to determine whether a remedy by appeal is both
available and adequate, and only if the appellate court
determines that the abuse of powers is so flagrant and violative
of petitioner’s rights as to make a remedy by appeal inadequate,
will a writ of prohibition issue.

Syl. Pt. 2, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973). In this regard, this

Court has enumerated the following factors, which are to be considered when deciding

whether to issue a writ of prohibition:

“In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction but

6
While the trial court seemed to focus on the location of the alleged criminal acts in
making its ruling, we only address whether the trial court exceeded its legitimate authority
ruling as a matter of law on Mr. Malay’s status under West Virginia Code § 61-8D-5 (2010)
in dismissing six counts of the indictment.

7

 only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal’s order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.” Syllabus Point 4, State
ex. rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

Syl. Pt. 2, State ex. rel. Weirton Med. Ctr. v. Mazzone, 214 W. Va. 146, 587 S.E.2d 122

(2002). With this standard in mind, we consider the State’s request for a writ of prohibition.

III. Discussion

The issue before the Court is whether the circuit court exceeded its legitimate

authority by dismissing six counts of the eight counts in the indictment charging Mr. Malay

with sexual abuse by a parent, guardian, custodian, or person in a position of trust in violation

of West Virginia Code § 61-8D-5. The State argues that the circuit court erred by ruling, as

a matter of law, on Mr. Malay’s status as a custodian or person in a position of trust in

relation to a child because this Court has repeatedly found that this issue of a person’s status

under West Virginia Code § 61-8D-5 is to be determined by a jury. The State further argues

8

that the evidence will be sufficient for a jury to find that Mr. Malay was either a custodian

or a person in a position of trust when he allegedly had sexual intercourse with B.F.H. in her

home as he used his position of trust as B.F.H.’s school bus driver to gain access to her and

cultivate his relationship with her. The State asserts that the trial court construed West

Virginia Code § 61-8D-5 in an overly narrow fashion when it ruled that Mr. Malay ceased

to be a person in a position of trust when acting outside the scope of his employment. In

support of its position, the State observes that the statute does not include any conditional

limitations with regard to a defendant’s status.

Mr. Malay argues that this Court’s holding in State v. Longerbeam, 226 W.Va.

535, 703 S.E.2d 307 (2010), indicates that a person’s status under West Virginia Code § 61­

8D-5 is an issue of law rather than a question of fact for a jury, and that a person’s prior

status as a custodian or person in a position of trust does not permanently confer that status

upon an individual. Instead, Mr. Malay contends that a person’s status must be determined

at the time of the alleged criminal conduct. To the extent prior opinions of this Court reflect

that the issue of a person’s status under this statute is a question of fact for a jury’s

determination, Mr. Malay asserts that these cases are factually distinguishable and, therefore,

inapplicable.

9

 This Court has considered whether an individual’s status under West Virginia

Code § 61-8D-5 is a question of fact for a jury’s determination on multiple occasions. For

example, in State v. Stephens, 206 W.Va. 420, 525 S.E.2d 301 (1999), the appellant was left

in charge of three small children for approximately thirty minutes during which time he

sexually molested one of the children. On appeal, Mr. Stephens argued that the trial court

erred in failing to direct a verdict of acquittal at the close of the State’s case in chief on the

charge that he violated West Virginia Code § 61-8D-5 because he did not fit the statutory

definition of a “custodian.” This Court disagreed and held that “[a] babysitter may be a

custodian under the provisions of W.Va. Code, 61-8D-5 [1998], and whether a babysitter [is]

in fact a custodian under this statute is a question for the jury.” Stephens, 206 W.Va. 410,

525 S.E.2d 301, syl. pt. 1. Accordingly, this Court upheld the jury’s finding that Mr.

Stephens, who was acting as the child victim’s babysitter at the time of the criminal sexual

conduct, was a custodian within the meaning of West Virginia Code § 61-8D-5.

Following Stephens, we addressed a challenge to the sufficiency of the

evidence in the context of a jury’s determination of a defendant’s status under West Virginia

Code § 61-8D-5 in State v. Collins, 221 W.Va. 229, 654 S.E.2d 115 (2007). In Collins, an

eleven-year-old girl and her mother were living with the defendant’s parents. Although Mr.

Collins did not reside in his parents’ home, he was a frequent visitor and, on multiple

occasions, took the child four-wheeling. On one such occasion, Mr. Collins told the child

10

that he would not take her home until she performed oral sex on him. Under his threat, she

complied. The jury found Mr. Collins guilty of sexual abuse by a parent, guardian, or

custodian in violation of West Virginia Code § 61-8D-5.7 Upholding the jury’s verdict on

sufficiency of the evidence grounds and relying upon our holding in Stephens, this Court

concluded that “persons in temporary physical control of children” could be deemed

custodians. 221 W.Va. at 234, 654 S.E.2d at 120.

In State v. Cecil, 221 W.Va. 495, 655 S.E.2d 517 (2007), this Court was again

asked to consider the sufficiency of the evidence to convict under West Virginia Code § 61­

8D-5. In Cecil, the defendant argued that the circuit court erred by denying his motion for

judgment of acquittal, contending that there was insufficient evidence for the jury to

conclude he was a custodian of the child victims. This Court cited Stephens for the

proposition that a person’s status in relation to a child under this statute is a question of fact

for the jury. While recognizing Mr. Cecil’s argument that he was not a babysitter in the

“usual or customary sense[,]” we found sufficient evidence was adduced at trial for the jury

to conclude that Mr. Cecil was a custodian of the two minor victims when he sexually

assaulted them. 221 W.Va. at 502, 655 S.E.2d at 524.

7
The defendant was indicted in Collins in 2004. At that time, West Virginia Code §
61-8D-5 did not include the language “person in a position of trust in relation to a child.”
In 2005, the Legislature amended this statute to add this language, as well as amended West
Virginia Code § 61-8D-1 to add subsection (12), which defines “a person in a position of
trust in relation to a child.” See supra note 5.

11

 A few years later, we considered West Virginia Code § 61-8D-5 in State v.

Edmonds, 226 W.Va. 464, 702 S.E.2d 408 (2010). Mr. Edmonds, who was a maintenance

worker, tutor, and assistant pastor at a Christian school, was convicted of violating West

Virginia Code § 61-8D-5 for having sexual relations with a student in a house that he was

remodeling. The trial court denied Mr. Edmonds’s motion to dismiss all counts of the

indictment at the close of the State’s case in chief and ruled that his status under West

Virginia Code § 61-8D-5 was a jury issue. 226 W.Va. at 466, 702 S.E.2d at 410. Relying

upon our holding in Stephens, we emphasized that a person’s status under West Virginia

Code § 61-8D-5 is a question of fact for the jury. 226 W.Va. at 468, 702 S.E.2d at 412. We

further observed, citing our opinion in Collins, that whether the defendant was a custodian

of the child victim under West Virginia Code § 61-8D-5 was a question properly decided by

the jury. 226 W.Va. at 468, 702 S.E.2d at 412.8

8
We further observed that the trial judge

read the definition of “person in a position of trust” to the jury
and defense counsel had a full opportunity to argue his position
to the jury that the defendant was not a “person in a position of
trust” under this definition. We find that this issue was properly
decided by the jury. The State presented sufficient evidence
supporting the jury’s conclusion that the defendant was a
“person in a position of trust” to [the victim].

226 W.Va. at 469, 702 S.E.2d at 413.

12

 Soon after issuing our opinion in Edmonds, we issued another opinion

involving a conviction under West Virginia Code § 61-8D-5 in State v. Longerbeam, 226

W.Va. 535, 703 S.E.2d 307. Like the earlier cases, the issue on appeal was whether the

evidence at trial was sufficient for the jury to find that Mr. Longerbeam’s relationship with

the child victim fell within the parameters of the statute. 226 W.Va. at 538, 703 S.E.2d at

310. Notwithstanding the circuit court’s and Mr. Malay’s contrary interpretation, this Court

did in Longerbeam exactly what it did in Stephens, Cecil, Collins and Edmonds—reviewed

the sufficiency of the evidence at trial. Unlike Stephens, Cecil, Collins and Edmonds

wherein this Court found the evidence at trial was sufficient to convict, in Longerbeam, upon

reviewing the evidence at trial, we concluded that “there was insufficient evidence to convict

[Mr. Longerbeam] for committing an offense under West Virginia [Code] §61-8D-5(a) as

either a ‘custodian’ or a ‘person in a . . . position of trust,’”9 and that the trial court erred by

not granting Mr. Longerbeam’s post-trial motion for an acquittal.10 226 W.Va. at 542, 703

S.E.2d at 314. As Longerbeam and each of the previously discussed cases applying West

9
Justices Workman and Benjamin dissented as both believed the evidence at trial was
sufficient to convict. Justice Workman cited Edmonds, Collins, Cecil, and Stephens, supra,
stressing that the question of a criminal defendant’s status under § 61-8D-5 is a question for
a jury to determine.
10
In ruling on a motion for acquittal under Rule 29 of the West Virginia Rules of
Criminal Procedure, a trial court reviews the sufficiency of the evidence at trial. See State
v. Houston, 197 W.Va. 215, 229, 475 S.E.2d 307, 321 (1996) (“A motion for judgment of
acquittal challenges the sufficiency of the evidence. Franklin D. Cleckley, 2 Handbook on
West Virginia Criminal Procedure 292 (2d ed.1993).”). The trial court denied Mr.
Longerbeam’s motion for acquittal, clearly believing the evidence sufficient to convict. On
appeal, the majority of this Court disagreed.

13

Virginia Code § 61-8D-5 demonstrate, these cases are fact-intensive by nature.11 Indeed, the

fact-intensive nature of this inquiry is reflected in the statutory definitions of “custodian” and

“person in a position of trust.” See supra notes 4 and 5.

Our prior case law reflects that a defendant’s status when charged with a

violation of West Virginia Code § 61-8D-5 has always been an issue for the jury to

determine. Other jurisdictions agree that whether a person occupies a position of trust in

relation to a child is question of fact for a jury to determine. See, e.g., Halliday v. State, 386

S.W.3d 51, 55 (Ark.App. 2011) (addressing sex crime charged under Arkansas statute and

finding “it was within the jury’s province to determine appellant’s guilt based on his position

of trust or authority over the [child] victim.”); People v. Luman, 994 P.2d 432 (Colo. App.

1999) (reversing conviction and finding that if state presents similar evidence on retrial of

defendant, jury could conclude that defendant was in position of trust relative to child victim

within the meaning of applicable statute); People v. Rebecca, 969 N.E.2d 394, 430

(Ill.App.Ct. 2012) (McLaren, J., dissenting) (stating that “[w]hether a ‘position of trust’

11
Following Longerbeam, we have addressed West Virginia Code § 61-8D-5 in
memorandum decisions and upheld convictions finding the evidence at trial sufficient to
convict. See State v. Smith, No. 12-0955, 2013 WL 3184769 (W.Va. June 24, 2013) (relying
upon Stephens); State v. Adams, No. 12-0108, 2013 WL 2157835 (W.Va. May 17, 2013)
(citing both Longerbeam and Edmonds); State v. Lamarr, No. 11-1416, 2013 WL 1501073
(W.Va. Apr. 12, 2013); State v. Keller, No. 12-0269, 2013 WL 500170 (W.Va. Feb. 11,
2013) (citing Stephens); State v. Simons, No. 11-0917, 2012 WL 3079097 (W.Va. Apr. 16,
2012).

14

exists is a question of fact for the jury to decide[,]” and concluding that deficiencies in

indictment coupled with evidence at trial could have led jury to find that defendant did not

hold position of trust in relation to minor victims); People v. Reynolds, 689 N.E.2d 335, 341

(Ill.App.Ct. 1997) (stating that determination of whether accused held a position of trust,

authority or supervision in relation to the minor victim under Illinois statute was question of

fact for jury when “more than one inference may be drawn [from the evidence].”); Boone

v. Com., No. 2011-CA-001359-MR, 2013 WL 5663089, at *5 (Ky. Ct. App. Oct. 18, 2013)

(addressing Kentucky statute and stating “[t]he first conclusion we reach . . . is that whether

a defendant is a person in a position of authority or special trust [over a minor] is a question

of fact for the jury.”); Campbell v. State, 125 So.3d 46 (Miss. 2013) (reviewing evidence at

trial and totality of circumstances to determine whether evidence was sufficient for jury to

conclude that defendant was in position of trust or authority over minor victim); State v.

Tanner, 221 P.3d 901 (UT 2009) (holding that question of whether appellant school-bus

driver was person in position of special trust in relation to child under Utah statute was

question for jury).

Based on all of the above, we now hold that the question of whether a person

charged with a crime under West Virginia Code § 61-8D-5 (2010) is a custodian or person

15

in a position of trust in relation to a child is a question of fact for the jury to determine.

Accordingly, the parties’ fact-based allegations are beyond the scope of our purpose today.12

With regard to the issuance of writs in criminal cases, this Court has previously

held that

[t]he State may seek a writ of prohibition in this Court in
a criminal case where the trial court has exceeded or acted
outside of its jurisdiction. Where the State claims that the trial
court abused its legitimate powers, the State must demonstrate
that the court’s action was so flagrant that it was deprived of its
right to prosecute the case or deprived of a valid conviction. In
any event, the prohibition proceeding must offend neither the
Double Jeopardy Clause nor the defendant’s right to a speedy

12
In support of its argument, the State relied upon cases from other jurisdictions where
defendants were determined to be in positions of trust in relation to their child victims
through their occupations. We acknowledge that other courts have upheld jury verdicts
finding school bus drivers to be in positions of trust in relation to their child victims. See,
e.g., State v. Hanson, No. A03-1020, 2004 WL 1557591, at *6 (Minn. App. 2004)
(addressing prosecutor’s allegedly inflammatory closing argument and finding that “as a
school-bus driver, appellant held a position of trust. In his capacity as the bus driver,
appellant was responsible for getting the children safely to school. Further, the children’s
parents trusted the bus driver to do just that. In this case, the state’s theory was that appellant
took advantage of this trust to abuse the children. The prosecutor’s remarks were an accurate
description of the facts based on the evidence introduced at trial.”); State v. Tanner, 221 P.3d
901 (addressing challenge to sufficiency of evidence and finding that defendant school bus
driver could be in position of special trust to child victim because he occupied a position of
authority over victim; was responsible for victim’s safety; and had ability to discipline
students). Cf. Doe v. Texas Ass’n of School Boards, Inc., 283 S.W.3d 451 (Tex.App. 2009)
(acknowledging mother’s allegations in civil action arising out of criminal sexual conduct
that defendant used information and authority he gained through his position as child victim’s
school bus driver to sexually assault her in her home). Currently, we only have before us the
narrow issue of whether a defendant’s status under West Virginia Code § 61-8D-5 is a
question of fact for a jury to determine.

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 trial. Furthermore, the application for a writ of prohibition must
be promptly presented.

Syl. Pt. 5, State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992). Upon our review of the

record presented and in consideration of our holding herein, we find that a writ of prohibition

is the appropriate remedy and that the State has established its entitlement to the issuance of

the writ. Id.; Syl. Pt. 2, Mazzone, 214 W.Va. at 148, 587 S.E.2d at 124; Syl. Pt. 2, Woodall,

156 W.Va. 707, 195 S.E.2d 717.

IV. Conclusion

Based upon the foregoing, this Court finds that the State is entitled to relief in

prohibition as the trial court exceeded its legitimate authority in dismissing six counts of the

indictment charging Mr. Malay with sexual abuse by a parent, guardian, custodian or person

in a position of trust pursuant to West Virginia Code § 61-8D-5. Accordingly, the portion

of the circuit court’s November 12, 2013, order dismissing those six counts is vacated, and

this action is remanded for further proceedings consistent with this opinion.

Writ granted.

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