CLARKSBURG, W.Va. — The appointed judge overseeing the case of a suspended Harrison County magistrate accused of sexually abusing an underage female heard arguments Friday over evidence that could be used during the upcoming trial.
Senior Judge Thomas W. Steptoe, Jr. ruled in favor of the defendant in one matter, determined a piece of evidence was improperly classified and took several other matters under advisement.
Mark Gorby’s legal team successfully argued that they were entitled to the medical records of the accuser, as well as a report filed by a therapist visited by the accuser’s mother, Gorby’s now ex-wife.
He faces five counts of sexual abuse by a parent, guardian or person in position of trust based on testimony from the accuser and her mother that he forced sexual intercourse on the former stepdaughter while they lived in the same home on multiple occasions from the time she was 8 years old in 2005 until she was 12 in 2009.
Defense attorneys Tom Pavlinic and Belinda Haynie filed a motion at the previous hearing requesting all of the accuser’s physical and psychological records be turned over to counsel and their experts.
In a seven-page report filed by one of the defense’s experts, two major reasons behind the request were outlined: To be able to determine if a prior diagnosis of PTSD for the accuser was accurate and if something else in the records could show a separate event led to the accuser’s substance abuse.
The reason for wanting the document from the mother’s therapist visit was because it is reportedly the first time she divulges into her suspicions of sexual abuse.
Special Prosecutor Marcia Ashdown –appointed to the case out of Monongalia County– was hesitant to turn the records over, fearing the accuser’s privacy could be violated.
Judge Steptoe ruled that the defense and state were both entitled to the documents under the condition that they remain confidential.
Earlier in the hearing, the state presented testimony from the accuser’s older cousin (now an adult), who used to sleep over at the home during the time of the alleged acts (when she was in seventh or eight grade).
She told the court she was made to feel uncomfortable by Gorby on two occasions out of the “dozens” she stayed there, once while the girls were sleeping in the living room and once while they were sleeping in the accuser’s bedroom.
Upon waking up in the middle of the night, the witness claimed she found Gorby watching the two sleeping in a manner that was “more than just checking up” on them.
Gorby never made an advancement toward the girls, never touched the witness and the witness was only sure of him being there during the minute or so while she was awake.
The issue with this testimony is that Ashdown’s office filed it as 404(b) evidence, or evidence that normally wouldn’t be permitted but could be introduced to show an alleged prior crime, wrong or other act.
Ashdown indicated the testimony would be used to prove the “lustful disposition” Gorby had toward “young women in his home.”
It was determined this did not fall under the 404(b) definition and Judge Steptoe told the defense that the state could present the evidence at trial and they would have the right to voice an objection.
The defense later made an oral motion requesting the state turn over the “Action Taken” document that typically comes with the State Police files of an investigation.
Ashdown argued that the document wasn’t necessary as they had provided “Prosecutor’s Summaries” detailing the investigation and the full audio of statements made.
However, Haynie countered that the document might be useful to their investigation and the state may not see its value to them.
Judge Steptoe wanted to review the file before making a ruling.
The trial is still scheduled to begin March 7 and there was no request Friday for a delay from either side.