FAYETTEVILLE, W.Va. — The state Supreme Court vacated a Fayette County circuit judge’s ruling in a written opinion handed down Thursday.
The High Court said Circuit Judge John Hatcher erred when he dismissed six of eight criminal counts against Fayette County school bus driver Steven “Rick” Malay, Sr. Malay, 55, of Fayetteville, was charged with having sex with a 14-year-old Oak Hill girl who rode his school bus.
Six of the eight criminal counts were in connection with alleged sex the two had at the girl’s home while her parents slept. Judge Hatcher said Malay was not in a position of trust as the girl’s bus driver when those alleged acts occurred. Fayette County Prosecutor Carl Harris appealed Hatcher’s ruling to the Supreme Court.
Thursday’s opinion cited several examples where the High Court had previously ruled that determining whether or not a defendant is in a custodian at the time of a sex-related crime is for a jury to decide, not a judge.
The opinion concluded “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.”
Justice Allen Loughry authored the Court’s opinion.