A longtime Montrose resident walked out of the Randolph County Courthouse a free man Thursday after he was found not guilty on charges of sexual abuse.
Sixty-four-year-old Edward C. Slaubaugh was accused of having sexual intercourse and performing a sexual act on his then-4-year-old niece on Sept. 17, 2011, in a November 2012 indictment.
However, a Randolph County jury decided there was not enough evidence to convince it that Slaubaugh was guilty of the alleged acts, and it acquitted him on one of the three counts contained in the indictment - sexual abuse by a parent, guardian or custodian, a felony.
Midway through Slaubaugh's trial in Randolph County Circuit Court, Judge Jaymie Godwin Wilfong granted a defense motion to dismiss with prejudice the other two charges contained in the indictment - first-degree sexual assault and first-degree sexual abuse, both felonies. The "with prejudice" stipulation means the charges cannot be brought back up in court again.
Among the witnesses who testified for the prosecution Thursday was the alleged victim, who is now 6, and had lived with Slaubaugh and his wife for two years prior to her being removed from his residence.
The child told special prosecuting attorney Ray LaMora that Slaubaugh had touched her below her waistline while she was living at his house.
LaMora asked the child what Slaubaugh had touched her with, and the child replied that "Ed" had touched her "with his penis."
"How did that make you feel?" LaMora asked.
"Bad," she responded, also answering "yes" when LaMora asked her if the contact "hurt."
Once the child witness was sequestered and the state had rested, Slaubaugh's attorney, James Hawkins, asked Wilfong for "judgment and acquittal" on all three counts.
"The child did not testify that there was penetration, and there is no evidence of intrusion or intercourse," Hawkins told Wilfong. Penetration or intrusion is an element that must be present before a person can be convicted of first-degree sexual assault.
Wilfong granted the motion to dismiss, noting that, "There has been no evidence presented at all that there was intrusion, and the victim did not testify to anything that would suggest there was intrusion."
Wilfong denied a motion to dismiss the sexual abuse by a parent, guardian or custodian charge, but granted Hawkins' motion for acquittal on the first-degree sexual abuse charge.
"The child did not testify in any way that Mr. Slaubaugh performed oral sex on her," Hawkins contended.
LaMora said the prosecution had no argument with which to counter Hawkins' claim, and Wilfong subsequently dismissed the charge.
Earlier that day, Senior Trooper J.J. Cornelius with the Elkins detachment of the West Virginia State Police, the investigating officer in the case, said he'd received a complaint from Child Protective Services on Sept. 23, about a week after the incident between Slaubaugh and the alleged victim was said to have occurred.
Cornelius explained no DNA evidence had been obtained because too much time had lapsed between when the incident allegedly transpired and when he was notified.
"Typically, there's no biological evidence after 72 hours of the alleged assault," Cornelius testified.
During his cross-examination of Cornelius, Hawkins grilled the trooper about why the child hadn't undergone a medical examination to check for signs of vaginal intrusion, or penetration, such as injury to the genital area.
"One of the allegations in this case is penetration ... penetration!" Hawkins exclaimed. "That's one of the charges in this case, but there's absolutely no evidence that corroborates that, right?"
"No physical evidence," Cornelius responded.
"You didn't think it was worth the time to take the child to the hospital (for a medical examination)?" Hawkins persisted.
"I didn't think it was worth it to subject the child to a probative examination when there was little to no evidence to be obtained," the trooper said.
"So why subject my client to being charged with this (first-degree sexual assault) without evidence?" Hawkins asked, stepping away from the podium.
Jessica Slaubaugh, Edward Slaubaugh's daughter-in-law, testified for the prosecution on behalf of Edward Slaubaugh's late ex-wife, Margaret Lower, who died earlier this summer. Jessica Slaubaugh said Lower had seemed "really upset" in a telephone call in September 2011; several days later, in person, Lower said she'd seen her husband performing a sexual act on the alleged victim.
"She said she was coming downstairs, and when she got to the bottom step, she heard something in the living room, so she turned to walk into the living room ... she said Ed (Edward Slaubaugh) had (the child, his niece) on the couch and his head was between her legs," Jessica Slaubaugh said, tearing up. "So she hollered and told (the child) to go to her room."
Jessica Slaubaugh said Margaret Lower had told her "Ed" was "in his underwear" at the time.
"I was shocked," Jessica Slaubaugh said, "and I told her if she didn't report it, I would."
During cross-examination, Jessica Slaubaugh admitted to knowing that Lower had accused her husband of infidelity prior to the emergence of the allegations at hand.
The defense's sole witness and Edward Slaubaugh's next-door neighbor, Dorothy Stone, said she was "shocked" when she learned about the indictment.
"The kids always followed Ed around everywhere he went," Stone said. "They were never afraid." Stone also said Lower believed Slaubaugh was cheating on her with her sister and had planned to leave him and move out prior to the sexual abuse allegations surfacing.
"I like Margaret," Stone said, "but she doesn't always tell the truth."
In his closing argument, LaMora drew the jury's attention to the fact that the child "identified the defendant by name."
"She described what happened to her. She said that when he placed his penis on her, it hurt," he reminded jurors. "That is what I want you to remember."
Hawkins, however, insisted that there was "clear reasonable doubt in the case from the beginning to the end and everywhere in between."
"(The child) had (her mother's) boyfriends coming in and out of her life, and her father even at one point said it was his own suspicion that the child had been sexually abused before coming to live with Ed and Margaret," he said, adding that he didn't believe the child was lying, but that her testimony was "so tainted, so skewed, so off the mark" that it was unreliable.
After deliberating for about 40 minutes, the jury returned with the not guilty verdict.
Immediately following the trial, LaMora said he'd presented every bit of evidence available.
"The state presented the evidence it had, and that wasn't enough to garner a guilty verdict," he said. LaMora said he couldn't speculate as to whether the outcome would have been different if Lower had been alive to present her eyewitness testimony.
Hawkins reiterated that there was "clear reasonable doubt" in the case.
"The jury was able to see that and reached what I believe was an appropriate verdict, given the facts and circumstances of the case," he said.
Contact Katie Kuba by email at email@example.com.