ELKINS - A motion to dismiss the case against a Randolph County man charged with sexual assault and incest was denied in Randolph County Circuit Court on Friday.
Derek Shifflett, 31, was indicted in February 2013 on 50 counts of incest, a felony; 50 counts of first-degree sexual assault, a felony; and 50 counts of sexual abuse by a parent, guardian or custodian, a felony.
The indictment alleges Shifflett had sexual intercourse with a family member under the age of 12 on numerous occasions between Oct. 1, 2011, and Sept. 30, 2012.
On Jan. 2, Parker moved to dismiss 66 of the 150 counts against Shifflett, "based on information that (the State) had obtained in preparation for the case."
Friday's hearing on the motion to dismiss was not held publicly. The press and public were asked to leave because the motion had to do with grand jury evidence, Wilfong said.
Randolph County Prosecuting Attorney Michael Parker told The Inter-Mountain after the hearing that the motion had been denied, although he said he could provide no further information.
Shifflett and his attorneys John and Jeremy Cooper also appeared before Wilfong Friday afternoon to settle a separate motion by Parker regarding admissible evidence.
Parker argued for the court to allow him to use initial evidence from the beginning of the case, particularly regarding initial testimony of the alleged victim.
"The continued story of this case begins with the initial statements," Parker said. "If the state is not permitted to give the evidence necessary to tell a complete story, I feel like the state runs a significant risk that the jury could hold that against the state."
"So essentially you are just requesting to be permitted in your case to present evidence of what the alleged victim initially disclosed," Wilfong asked, and Parker agreed.
John Cooper objected to the motion on grounds that it was "prejudicial" to his client.
"He dismissed 66 counts and now he wants to go back and offer that evidence to the jury and that is very prejudicial to our client," Cooper said. "I will tell the court that there will certainly be efforts to impeach the witness based on the five different versions of the facts that have been given."
Parker said the defense has the right to impeach the witness and he anticipates that action.
Wilfong found that "it is not overly prejudicial and quite honestly it is beneficial to the defense's side as well as the defendant is likely to introduce this for impeachment purposes."
"I also noted the information in the case that talks about the prosecutor's need to tell the full story," Wilfong added. "In this case we are talking about evidence that is directly connected and directly tied to the alleged victim's retelling of the story of what happened and I think that it is critically important that the jury hears the full information, for two reasons - one, it allows the state to paint this painful picture so that the jury will understand how the case developed, what was presented it would explain any gaps, and secondly, so that for impeachment purposes the defendant can inquire with regard to the story changing.
"So for that reason the information in regard to the different allegations will be permitted," she said. "The court finds that it is intrinsic evidence in this case. I'll note the objection by the defense."
Shifflett's trial was scheduled to begin on Jan. 8; however, only half of the expected jury pool appeared in court for jury selection Jan. 6.
Jury selection has been rescheduled for Feb. 18 and the trial has been set for Feb. 19-21.