No. 13-1236 – State of West Virginia ex rel. Carl L. Harris, Prosecuting Attorney for
Fayette County, West Virginia v. The Honorable John W. Hatcher, Jr., Judge of the
Circuit Court of Fayette County, West Virginia, and Steven R. Malay, Sr.

                                                                              FILED
                                                                           July 18, 2014
                                                                         RORY L. PERRY II, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA

Benjamin, Justice, concurring:



              I agree with the majority opinion that the State is entitled to relief in

prohibition because 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. I also agree with syllabus point 4 of the

majority opinion which holds that whether a person charged with a crime under W. Va.

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. I write separately to state my unequivocal

belief that there is sufficient evidence in the instant case for a jury to find that Mr. Malay

was a person in a position of trust in relation to B.F.H.



              My analysis of this case is similar to the analysis in my dissenting opinion

in the case of State v. Longerbeam, 226 W. Va. 535, 703 S.E.2d 307 (2010). In

Longerbeam, the appellant was convicted of sexual abuse by a parent, guardian,

custodian, or person in a position of trust for touching the breast of his twelve-year-old

niece through her clothing. When the incident occurred, the appellant and his wife had

been called to the home of the victim in order to help her and her younger sister catch a
loose hamster. The girls’ parents were not home at the time, and their older sister, who

was sixteen years of age, was sleeping. The majority reversed the appellant’s conviction

after finding that the appellant was not a custodian of the victim or in a position of trust

over the victim.



              In my dissent in Longerbeam, I indicated that viewing the evidence in the

light most favorable to the prosecution, per our standard of reviewing the sufficiency of

the evidence set forth in State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), there

was sufficient evidence “that the appellant and his wife were viewed by the children as

persons in positions of trust who were in control of the children at the time the appellant

committed the offense for which he was convicted.” Longerbeam, 226 W. Va. at 542,

703 S.E.2d at 314. I went on to explain:

                      The evidence indicates that the appellant was the
              victim’s uncle by marriage, and the appellant had access to
              the victim due to this fact. Further, the appellant’s access to
              the victim presupposed an assumption of control and
              supervision in that the children called the appellant and his
              wife for help in catching a loose hamster instead of waking
              their older sister.

Id.



              Similarly, in the instant case, Mr. Malay had access to the alleged victim

due to the fact that the alleged victim rode to and from school on the school bus driven by

Mr. Malay. As her school bus driver, Mr. Malay was an authority figure to the alleged

victim, and he exercised care and control over her while she was on the school bus. It was
in his capacity as the alleged victim’s school bus driver that he became acquainted with

her and initiated the contact that ultimately resulted in the charges against him. From

these facts, I believe that a jury could find beyond a reasonable doubt that Mr. Malay was

a person in a position of trust over the alleged victim at the time that the alleged illegal

acts occurred. The majority was incorrect in its analysis in Longerbeam – an error which

has been corrected here. For this reason, I concur.
