By Heather Clower
The Parsons Advocate
The Tucker County Circuit Court judges Lynn Nelson and James Courrier had full dockets during hearings that took place last week. Judge Nelson had two criminal hearings, including that of Charles Wolfe and Steven Swiger. Both were set to appear for sentencing; however, the presentencing investigation has yet to be completed for Swiger. In February, Swiger pleaded guilty to one count of fleeing from an officer with reckless indifference, a felony; and one count of driving on a revoked license for DUI first offense, a misdemeanor. Sentencing will be postponed to a later date upon completion of the PSI.
Charles Wolfe formerly pled guilty to three of the felony charges, which were strangulation, entering without breaking, and domestic in the third degree. Judge Nelson commented on how proud he was of Wolfe for cleaning himself up and working on his issues, however he has a lot to answer for. The judge set his sentences to run consecutive to each other and his other charges he has pending from both Grant and Randolph County. As for his Tucker County sentence, Judge Nelson sentenced Wolfe to three to 20 years. Prosecuting Attorney Ray LaMore believes this will bring his total sentence to eight to 50 years incarceration.
Judge Courrier took over on March 12 beginning his criminal hearings with Mario Orellano, charged with two counts of conspiracy. Originally set for trial, the dates conflicted with a murder trial scheduled by Judge Nelson. A new trial date has been set for April 27 through the 29 with a pretrial date on April 9 at 9:30 a.m.
William Ball Jr. entered with his counsel, David Fuelhart. Ball, charged with two counts of retaliation against a state employee, which are felonies. This hearing was initially set as for a suppression, however after Fuelhart evaluated the statement in question, he agrees it can be submitted given it is the same statement provided to him. The defense also asked for a modified bond allowing Ball to travel out of state to pick up car parts and visit family for a few days. LaMora had no objections stating he had no reason to stay out of town and had ties to the area, feeling he would be an ideal candidate for the modification. Ball will return on May 5 at 2:45 p.m.
Entering next was Charles McCrum, also represented by Fuelhart standing in for Mr. Isner. The purpose of this hearing was to set a trial date that Fuelhart felt needed to be allotted two days for jury selection and the nature of the case. The trial is set for June 29 and 30 with a pretrial date set for 3:30 p.m. on June 15.
Kenneth Smith, along with his counsel Fuelhart, filling in for Isner, appeared on his charges of possession with intent to deliver marijuana. Defense argued that the percentage of THC could not be determined which could classify the substance as industrial hemp. Due to this uncertainty, Fuelhart felt the case should be dismissed. LaMora acknowledged the difference between the products but doubts the defendant has proper documentation or licensure. He stated the Sheriff’s Department has field tests capable of designating THC versus CBD and it did come back as marijuana. The W.Va. Crime Lab recently obtained equipment to test these substances, however it is not yet set up nor has the training been conducted. This is expected to take four to six months. The DEA can test, however marijuana would be considered a low priority and could take a while for results. LaMora also asked for the defendant to cover the costs if the substances were sent to either location to be tested.
Fuelhart felt the statement regarding proper licensure or documentation was irrelevant and the only factor should be whether the substance is marijuana. He also feels asking the defendant to share the cost should not be considered, stating, “It’s still the states burden to prove beyond reasonable doubt.” Judge Courrier agreed with that statement, saying, “This is something the state needs to make the case,” therefore the state must pay if they want the test. Courrier is also concerned over the length this case has taken given Smith was indicted in June of 2019 and the potential length of the test results. He decided to give the state a little more time to seek testing if they desire, bringing back the case on June 15.
Escorted in with handcuffs and chains was Trevor Roy on two counts of sexual assault and two counts of domestic battery. Representing the defendant was Morris Davis who feels his client is in need of a competency evaluation. LaMora had previously made a motion in the same manner. Davis stated that once the competency results are obtained he can then decide if further testing is needed. Courrier agreed and said they would return upon completion of the evaluations. “I do not need a doctor,” Roy spoke up. After a moment, Davis responded, “Judge, I’m in somewhat of a tough, ethical position.” Knowing his client does not want to see a doctor, but feeling it was in his best interest, Davis was unsure how to proceed. The Judge agreed it was in the best interest of Roy and granted the first motion for an evaluation made by the prosecution. LaMora will submit the order and obtain a professional to complete the process.
Taylor Dilley and defense attorney Brent Easton took the stand announcing, “We’ve reached a plea agreement.” The agreement states that Dilley will be charged with one count of possession with intent to deliver and the state will dismiss the remaining charges. LaMora is recommending a one to five year sentence with the defense requesting probation to be served for five years, one of which on the Community Corrections program. Circuit Clerk Sharon Moats swore in Dilley as Courrier explained the plea process and all other options to ensure her decision was valid and fully voluntary along with the understanding of the restrictions of carrying a felony. A presentencing investigation will be conducted by Probation Officer Jerome “Butch” DiBacco prior to returning for sentencing on May 5 at 3 p.m.
Fuelhart returned to the bench with his client, Tracey Elza who previously pleaded guilty to three counts of prescription fraud and three counts of uttering. A PSI has been completed and provided to all sides for review. Elza noticed one minor clarification stating she is a licensed paramedic and noting that she was formerly but is not currently. LaMora briefed first stating he felt the plea offer and sentencing request was legitimate, suggesting the three counts of fraud and three counts of uttering be ran consecutively, which is essentially equivalents to serving time for one count of each. “I feel actual incarceration in this matter is necessary,” suggested LaMora saying he feels Elza has not yet taken responsibility for her actions. The prosecutor continued saying he feels Elza has a long history of substance abuse and cannot receive help if she won’t accept responsibility. LaMora said that even though she was subjected to drug testing, those tests did not show the levels in her system and whether they fell within prescription standards, saying, “The only way we can show what she’s taking is to incarcerate her.” He continued saying that just because Elza pled guilty doesn’t mean she’s accepted her actions, nor does he believe she obtained the substances for her son. LaMora suspects the substance abuse caused Elza to lose her job as a medical examiner
Fuelhart addressed Judge Courrier beginning by asking the court not to consider most of what the prosecution said. He said, “He said “I believe”, that’s not evidence your honor,” and continued to refer to the PSI, which Fuelhart said shows no evidence of a history of substance abuse. “I don’t see one reason in here that doesn’t constitute my client being a candidate for probation,” he continued. Fuelhart stated Elza has no criminal record, has been on bond over a year, and has met the requirements of the Community Correction program. He suggested if the state wasn’t sure of the levels in the drug screenings, they should have sent those in for testing. He also stated he didn’t believe the defendant to be a flight risk and that she does understand this is a serious crime. “We do not see the benefit of incarceration,” Fuelhart continued. He feels Elza has been punished enough already with the effects this has brought upon herself and her family within the community and having to check in as frequently as she has. According to the defense, this should be enough to prove she can comply with the terms of probation. “She has accepted responsibility,” he continued, and doesn’t think her reasoning is not accepting responsibility and that it can’t be proven she did anything else with the pills than she claimed.
Judge Courrier asked Elza if she had anything to say on her behalf. As she stood, Elza said, “I have accepted responsibility from day one for what I’ve done.” She continued by apologizing to her family as well. Courrier said he agrees with the defense and the PSI does indicate that Elza is an ideal candidate for probation. He stated that she has no criminal history, admitted to the crime, and is not a danger. Elza was then sentenced to four years of probation and if after two years, Probation Office DiBacco has the right to request she be relieved after two. Courrier also gave DiBacco the right to request Elza partake in testing or participation in the Community Correction program at his discretion.
The final criminal hearing on the docket was that of Joshua Swisher, who is charged with two counts of conspiracy and one count of altering or changing a manufacturer number. Swisher was represented by Brent Easton with Assistant Prosecuting Attorney Frank Bush representing the state. W.Va. State Police Sergeant David Simmons was sworn in by Moats as he took the stand to testify as to how he came to find stolen trailers at a lot Swisher was employed by. The incident took place in April of 2016 as Simmons recalled being informed by a member of the Parsons detachment that trailers that had been reported stolen may be located in the Fairview area. Sgt. Simmons obtained the information and went to visit the property where he found a large lot housing several semi trucks, trailers, and structures, one of which appearing to be a dwelling. Several workers were present when Simmons arrived, including the defendant whom he spoke to, stating he was looking for stolen trailers. Swisher admitted to Simmons it could have been unintentionally hooked up to and moved. As Simmons looked through the yard, Swisher read some VIN numbers to Simmons as he ran them through the database, none of which came back as stolen.
Bush asked Simmons, “Was Mr. Swisher a suspect at all?” “Oh no sir,” responded Simmons quickly. After the VIN numbers came back as valid, Simmons left the property before receiving word that one of the owners of a stolen trailer was in the area and could identify his trailer. Simmons then returned to the location to meet the owner where a trailer not initially seen was identified by the owner by a bumper number specific to him. Simmons stated the trailer could be seen by the road which is possibly how the owner knew it could be his trailer. The owner also had photographs on his phone and the inspection sticker came back to him as the owner as well.
The first owner then contacted another owner who also had a stolen trailer who then identified another trailer on the lot as his. Sgt. Simmons then contacted Corporal Wood with an update relating to his findings and proceeded to secure a search warrant. Several documents were handed to all parties including Judge Courrier and Simmons as they identified the lots via tax maps and discussed where the trailers were located in reference to the entrance and roadways.
Easton then had a chance to cross examine Simmons asking if he was acting on a tip upon his first visit when he did not have a search warrant. “Yes sir,” responded Simmons. More discussion took place regarding potential barriers reducing visibility into the lot such as trees and shrubbery to better gain an image of the scene. Easton asked if both trailers were visible from either the road or the entrance, with Simmons confirming they were. He was then asked if the VIN numbers or other identifying codes could be visible either by naked eye or binoculars, to which Simmons stated the one bumper number could be seen from the parking lot. Simmons also stated he was approached by the owner’s wife who informed him the owner was out of town as well as the owner’s son, who refused to speak with Simmons.
Bush addressed the court again stating the first visit by Sgt. Simmons was simply an investigation, there was neither seizure nor suspect. When he returned with one owner of the trailer to identify his property, Simmons then secured the necessary documentation. Easton felt there was significant issue with the timeframe of four hours between the initial visit and the securing of a search warrant when a majority of the search and seizure actually took place. “This was clearly a search and there was no warrant,” said Easton. Discussion also commenced relating to the two parcels in question, the owners, and who should have been contacted to get permission, which Easton felt was against their fourth amendment rights. Easton then asked that all evidence obtained in Aril of 2016 to be suppressed moving forward.
Judge Courier felt that Sgt. Simmons followed protocol and acted appropriately by staying and securing the property while the warrant was being sought. He also felt it was appropriate for the owner to identify his property, though he recognized Swisher was not an owner and was an employee of the company. Judge Courrier will be deciding between now and the return visit on May 5 on how to proceed with this case and the request to suppress the materials.
