ELKINS - A Valley Head man facing kidnapping and third-degree sexual assault charges appeared in Randolph County Magistrate Court Wednesday morning.
Zachary Tyrone Fortney, 28, allegedly drove to Pennsylvania on May 10 and picked up a juvenile, brought her back to West Virginia and engaged in sexual
Fortney's attorney, Jeremy Cooper, immediately asked for a bond modification, stating the current $100,000 cash-only bond was disproportionate to the maximum incarceration time for the alleged offenses. The potential sentence, if convicted, is 2-15 years in a state penitentiary.
"I believe that the ability of the court to secure Mr. Fortney's participation in this process can be achieved with a bond that is substantially less than the six-figure bond he is currently facing," Cooper told Magistrate Ben Shepler. "With that in mind, I would request both a change in the amount, some fraction of the $100,000 bond, and a change in the form of the bond to permit cash, surety or property."
Assistant Prosecuting Attorney Lori Haynes objected to the modification because of the severity of the alleged crimes.
"The court is not going to rule on it until all testimony is heard here today," Shepler said.
The only witness at the hearing was the investigating officer and complainant, Senior Trooper Christopher S. Johnston of the West Virginia State Police.
Haynes asked Johnston to describe how he had come into contact with Fortney on May 10, the date of the alleged incident.
"Sometime in the afternoon, we received a call regarding a missing juvenile from Pennsylvania. The call was from the Pennsylvania State Police," Johnston said. "They indicated they believed the girl, or her phone anyway, was pinged to Randolph County. Specifically, they indicated it was within several meters of Mr. Fortney's residence, and they asked if we could check and attempt to locate the juvenile."
Johnston said upon arriving at Fortney's residence, the officers were invited in and discovered the juvenile in Fortney's bedroom.
Haynes asked Johnston what they were doing in the bedroom at the time of his arrival.
"I am not sure what they were doing in the bedroom at the time we arrived," Johnston said. "When they opened the door, Mr. Fortney was getting dressed, and the juvenile was standing by the doorway. She was fully clothed."
Johnston said the officers secured the juvenile, and she was taken back to her residence in Pennsylvania while he (Johnston) and another officer went back to Fortney's residence to do a follow-up investigation.
"During your investigation, did Mr. Fortney make any statements to you with regard to how the minor had gotten to his residence," Haynes asked?
"Yes ma'am," Johnston replied.
"What did he say?" Haynes asked.
"He said he traveled to Pennsylvania and picked her up," Johnston said.
Johnston also said Fortney had told him he had engaged in sexual intercourse with the juvenile two times - once in Pennsylvania and again during the morning hours of May 10, in West Virginia.
Cooper then asked Johnston, "Would it be accurate to say that you did not see Mr. Fortney and the minor at any point undressed, such as would suggest that they had just engaged in sexual intercourse?"
"That is correct," Johnston said.
In closing statements, Haynes said the evidence presented by the state shows the defendant both admitted to driving to Pennsylvania to pick up the juvenile without lawful charge and having sexual intercourse with the minor on two occasions.
"We believe the state has met the burden of proof in regards to both charges, and we ask that probable cause be found, and this case be bound over (to Randolph County Circuit Court)."
Cooper countered by stating it was his belief the statement made by Fortney was based on an ambiguous question and that nothing had been done to prevent the juvenile from contacting her parents.
"Your honor, I believe the only information the state has put on to suggest that Mr. Fortney had any form of sexual interaction with this minor was a statement, supposedly made by Mr. Fortney, in response to a very ambiguously sounding question by the state," Cooper said.
"I don't believe that there was any suggestion that there was anything done to prevent her (the minor) from contacting her parents to tell them her whereabouts, so for those reasons, I request that the court determine no probable cause has been found."
Magistrate Shepler decided, after hearing both sides, that probable cause for both charges had been met and that the bond would not be modified.
"Probable cause for charges of abduction of a person, kidnapping or concealing a child has been met. Probable cause for charges of sexual assault in the third degree has been met," Shepler said. "When you allegedly travel to Pennsylvania to pick up a child and bring them back, there is obvious worry of this court that it could happen again to some other person. The bond remains at $100,000 cash only and, matter of factly, considering these charges, it is pretty low in nature. The bond will stay the same at $100,000 cash only."