State ex rel. Harris v. Judge Hatcher (Signed Opinion)Annotate this Case
Steven Malay was indicted by a grand jury on multiple counts of sexual abuse by a parent, guardian, custodian or person in position of trust in violation of W. Va. Code 61-8D-5, among other sexual offenses. Malay moved to dismiss the eight counts charging him with violating section 61-8D-5 on the grounds that his employment as a school bus driver did not cause him to qualify as a custodian or person of trust under the statute, and even if it did, the acts were not committed while he was serving in that capacity. The trial court granted the motion to dismiss with respect to six counts. The State sought a writ of prohibition to prevent the circuit court from enforcing its order. The Supreme Court granted the requested writ, holding that the question of whether a person charged with a crime under section 61-8D-5 is a custodian or a person in a position of trust in relation to a child is a question of fact for the jury to determine, and therefore, the circuit court exceeded its authority in dismissing the six counts. Remanded.