PARSONS – Three charges of sexual assault in the third degree were dismissed with prejudice against a Thomas man in Tucker County Circuit Court last Monday. Charles W. Miller Jr., 60, appeared before Tucker County Circuit Judge Lynn A. Nelson. A jury was selected that morning, and the defense presented testimony from the alleged victim, a psychologist and two others.
Following a break for lunch, Miller’s attorney, Jeremy Cooper, asked Nelson for an acquittal for his client based on insufficiency of the evidence as it related to the charges of the indictment.
“Specifically, the indictment charges that in all three counts that Charles Miller allegedly assaulted the victim, who was a mentally incapacitated person,” Cooper said. “A mentally incapacitated person means the person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a controlled or intoxicating substance administered to that person without his or her consent or as a result of any other act committed upon that person without his or her consent.
“I think it is fairly straightforward that Mr. LaMora did not show did any evidence whatsoever of temporary incapacitation by intoxicating substances,” Cooper said. “For that reason, I would like the charges against my client dismissed.”
LaMora said Cooper’s objection should have been brought up prior to the beginning of the trial.
“Rule 12-F of the Rules of Criminal Procedure state this is a pre-trial defect that should have been brought up by the defense,” LaMora said. “The defense obviously knew that. The indictment for sexual assault, third degree was for mental defect, not mental incapacitation. They (the defense) were put on notice at the outset by our witness list having a psychologist on there. They knew what the charge was. The sufficiency of an indictment is determined by the practical rather than technical considerations. Also, indictment for statutory offense is sufficient if in charging the offense, it substantially follows the language of the statute fully and formally accused of the particular offense of which he is charged. He understood the indictment was for sexual assault in the third degree and he understood that the reason for this is the mental deficiencies of the alleged victim.”
Nelson asked LaMora how the defense was to determine the wrong charge was selected.
“Because we listed the psychologist as our witness,” LaMora said. “The psychologist was not going to determine whether the victim was drinking or whether she was given any narcotics.”
Nelson asked if LaMora provided a copy of the psychologist report to the defense.
“I received the old report but not the new one,” Cooper said. “That was never provided to me in discovery.”
Nelson asked LaMora how Cooper was supposed to know his (LaMora’s) evidence before he came into court and presented it.
“Your honor, the evidence against the defendant, even in the criminal complaint, never mentioned incapacitation due to narcotics,” LaMora said. “It never once brought up that issue at all. It always brought up the idea of mental deficiency due to the victim’s cognitive functions.”
Nelson said the problem is that the indictment says mentally incapacitated – it doesn’t say mentally defective.
After a brief recess, Nelson returned to the courtroom and dismissed the case with prejudice.
“After hearing the motion raised by Mr. Cooper and reviewing the case law, I believe, regrettably, Mr. Cooper is correct,” Nelson said. “This matter is dismissed with prejudice.”
A case dismissed with prejudice means the charge is dismissed permanently. It is over and done with, once and for all, and can’t be brought back to court.
