ELKINS - The case of a Valley Head man charged with possessing a firearm as a convicted felon will go to the grand jury.
Justin Pete Short, 31, was arrested June 27 and charged with one felony count of being a prohibited person in possession of a firearm.
Randolph County Chief Magistrate Ben Shepler ruled Friday there was probable cause to bind the case over to Randolph County Circuit Court.
Randolph County Assistant Prosecuting Attorney Lori Haynes began Friday's hearing by calling to the witness stand Trooper First Class J.R. Wince of the West Virginia State Police, who was the investigating officer.
"I was contacted by Bryan Thompson, who is a parole officer with the West Virginia Division of Corrections," Wince said.
"I frequently assist him in his duties, performing home visits of his parolees, just more of a safety issue, with him. We had the occasion to go visit Mr. Short at his residence."
"During the course of Mr. Thompson's home visit, he located a rifle, located in the back bedroom of the accused residence," he said. "It was a .22 caliber semi-automatic rifle."
Haynes asked Wince, "Was the bedroom locked?"
"No, the bedroom was unlocked and the gun was unsecured. Mr. Thompson came out of the room with the gun in hand, freely accessible to anyone in the home," Wince replied.
Wince said he instructed Short's stepfather that the gun needed to be removed from the home and the stepfather took it to a neighbor's residence.
Attorney Dwight Hall, representing Short, cross-examined Wince, asking him if any type of testing was done that would show Short had handled the gun himself, as it was located in his step-father's bedroom.
"Did you do any fingerprint analysis on the gun?" Hall asked.
Wince replied, "No, sir."
"Did you do any DNA analysis on the gun?" Hall continued.
"No, sir," said Wince.
"Did you do a gun powder residue on Mr. Short?" Hall asked.
"No, sir," said Wince.
"Do you have any evidence, whatsoever, that Mr. Short discharged that firearm?" Hall asked.
"No, sir," Wince said.
Hall then asked if Wince had spoken to Short's stepfather about the gun being in the house. Wince said the stepfather told him Thompson had warned in a previous visit that the gun could not be in the home, but the stepfather said he brought the gun back into the home because he used it for hunting.
Haynes then called Thompson to the stand.
"Can you describe what access Mr. Short would have had to the gun?" Haynes asked Thompson.
Thompson replied, "Walk through the house and go in the room and get it."
"So there was no locked doors or anything preventing him from getting to the gun?" Haynes asked.
"The door was open to the room that it was in," Thompson said.
Hall cross-examined Thompson, asking if there was ammo with the gun or if the gun was loaded. Thompson said he didn't know.
"Do you know if that gun was operable?" Hall asked.
"I don't know," Thompson replied.
Hall asked Thompson the same group of questions he previously posed to Wince about testing the firearm to see if the gun had any fingerprints or DNA belonging to Short, with Thompson answering "no" to each.
Haynes recalled Wince to the stand for additional questioning following the testimony by Thompson.
"Trooper Wince, did you conduct any type of investigation on the firearm?" Haynes asked.
"When Mr. Thompson handed it to me outside the residence I did check and clear the weapon to determine if it was loaded," Wince said. "I pulled the bolt back, checked the barrel and the chamber to determine if there was a live round in the firearm."
"Did you determine that it was operable?" Haynes asked.
"In my experience of hunting and law enforcement, yes, it was a fully functioning rifle. I did not discharge it but other than that it appeared to be a fully functioning rifle," Wince said.
Hall questioned Wince about the layout of the house, saying Short's bedroom was on the opposite end of the house from the stepfather's bedroom.
"Do you have any evidence that Mr. Short was on that end of the house, in other words, where mom and stepdad slept?" Hall asked.
"No, I don't have any evidence that he was on there but I would say that we are talking about a single-wide trailer that is approximately 60 feet long. We are not talking about a four-story, 15-bedroom home," Wince replied.
Following questioning by Hall, Haynes asked Wince one last question.
"Just to be clear, Trooper, is the bedroom where the gun was found inside the home in the same residence as where Justin Short resides?" Haynes asked.
"Yes ma'am," Wince replied.
Following the testimony by Wince, the state and defense each gave their closing arguments.
"I think the state has meet its burden of probable cause that Justin Pete Short is a person prohibited of possession a firearm and that on or about June 26 and days prior to that that he was in a residence where he had possession, by way of custody and control, of a firearm," Haynes said. "As the evidence demonstrated, he is previously convicted of a felony sexual offense which disqualifies him from ever having possession of a firearm."
"I believe defense counsel is being creative by trying to show that possession is only if he had his hands physically on it, that's not the definition of possession," Haynes said.
Hall countered by saying that just because the gun was in the residence it did not mean Short had actually possessed the firearm himself.
"I see at least three individuals in this courtroom that are carrying firearms right now," Hall said. "Is he guilty of three counts (of possessing a firearm)? He is in the same room. Being in the residence is one thing but being in that bedroom is another thing.
"There is no evidence that he ever touched that firearm, that he ever truly possessed, that he ever fired that firearm. The ownership was the stepfather's. Heck, we don't even know if he knew how to load that gun. That is not possession."
Haynes criticized Hall's statement referencing the three firearms in the courtroom, which referred to law enforcement and court security officers.
"The analogy that he (Short) could have possession of the firearms that are being carried in this room is preposterous. Number one, he is secured and so are the firearms, so that's not the same thing," Haynes said.
Shepler ruled that probable cause was found in this case.
"The state has met it's burden," he said.
According to the criminal complaint, Wince and Thompson, while performing a home visit at Short's residence on June 26, "located a Savage Model 93, .22 caliber rifle in the back bedroom of Short's residence."
On April 22, Thompson had conducted a home visit at Short's residence and located the same rifle. Thompson told Short, and his parents, at that time he was not supposed to have any firearms in the residence, the complaint states.
After the gun was located for a second time, Short's stepfather stated he "had removed it previously but enjoyed hunting and just left it in the bedroom so it was more easily accessible for him to hunt with," the complaint states.
Short was convicted of sexual assault in the third degree on Jan. 29, 2003, and was sentenced to one to five years in jail.
Short is currently being held at Tygart Valley Regional Jail on a $20,000 cash or surety bond.