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WV Supreme Court prohibits trial judge from dismissing charges against Fayette County bus driver

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The West Virginia Supreme Court of Appeals has vacated a Fayette County Circuit Court judge's decision to dismiss six counts of an indictment charging a school bus driver with sexually abusing a 14-year-old girl on his route.

Steven R. Malay Sr. was indicted in September on eight counts of sexual abuse by a parent, guardian, custodian or person in a position of trust, three counts of third-degree sexual abuse and seven counts of third-degree sexual assault.

The alleged assaults took place on Malay's farm as well as in the girl's home, court records noted.

Malay had sought to have the indictments dismissed, claiming that even if he qualified as a custodian or a person in a position of trust under the statute because of his job, the acts were not committed while he was serving in that capacity.

In November 2013 the trial court dismissed six counts of sexual abuse, finding that the two alleged criminal sex acts that took place at Malay's farm were, if proven, done while he was acting as a custodian or person in a position of trust, but anything proven to have happened at the girl's home, while her parents were sleeping, was not.

Prosecuting Attorney Carl Harris, however, subsequently petitioned the supreme court for a writ prohibiting the circuit court from enforcing the dismissal order, arguing that whether Malay qualified as as a custodian or person in a position of trust was a matter for the jury, not a trial judge, to decide. The state claims Malay used his position as a bus driver to cultivate his relationship with the girl. thus qualifying him as being in a position of trust.

The justices vacated the trial judge's dismissal order, saying that "that the State is entitled to relief ... as the trial court exceeded its legitimate authority" and remanding the case for further proceedings.