By Jessica Farrish
Fayette County Circuit Court Judge Paul Blake refused on Friday to dismiss indictments against the three suspects who are accused of torturing and causing the death of 8-year-old Raylee Browning in 2018.
In another ruling, Blake agreed to postpone the trial for Marty Browning Jr., his wife Julie Titchenell Browning and Julie’s sister, Sherie Titchenell, all of Oak Hill, until January 2022 or later. The three were to go on trial Oct. 22.
Each is charged with death of a child by a parent, guardian or custodian and child neglect causing death. Their trial had originally been set for March and was postponed to July and then to October.
Marty is Raylee’s father and had primary custody of the child.
Special prosecutor Brian Parsons and attorneys for all three defendants — Steve Mancini (Marty), Mark Plants (Julie) and Evan Dove (Sherie) — told Blake during a pre-trial motions hearing on Friday that each side could use more time to prepare for the case.
Parsons “inherited” the case from former Fayette Assistant Prosecuting Attorney Liz Campbell in January and is still in the process of collecting reports from expert witnesses. Defense attorneys said they need time for their own expert witness, forensic pathologist Dr. Cyril Wecht, to review those reports.
Parsons plans to call Dr. Kathryn Moffett, M.D., a pediatric infectious disease specialist in Morgantown. Moffett’s report must be reviewed by both Parsons and the three defense attorneys and will not be available until around Oct. 15, Parsons reported.
The state also plans to call, as an expert witness, Dr. Joan Phillips, a child abuse expert at Charleston Area Medical Center. Phillips prepared a one-page report in June 2019 in which she judged that Raylee was a victim of medical abuse, being treated with strong psychiatric medications for illnesses she did not actually have.
Sherie’s attorney, Dove, asked Parsons to provide any additional documents from Phillips, but Parsons said that the one-page report is typical of Phillips’ documents and that the state has only the single page from her.
Blake agreed to continue the trial to the next court term but emphasized that going to trial as quickly as possible would remain a priority.
“It needs to be resolved,” he said. “You’ve got three people here who are under very serious charges, and I’m sure they’d like to have the charges resolved.
“I’m sure the lawyers would like to have this matter resolved so they can go on to something else, and the court shares in that, but I want to do it, and I want to do it right.
“I want to be fair to both sides, so when this matter is tried, both sides will know what the evidence is going to be based on.”
He added that a “firm trial date” will be set after attorneys have conferred.
Sherie’s attorney had requested that the judge continue the trial but that the trial still start during this court term.
All three defendants had asked Blake to dismiss the indictments, but Blake denied the request.
When arguing for dismissal, Dove said the indictment is based on acts of abuse and neglect allegedly committed by the defendants between Aug. 28, 2014, and Dec. 26, 2018. The trio lived in Nicholas County until January 2018, Dove said.
“What that means is, every bit of CPS investigation, every bit of criminal investigation ... is all in Nicholas County,” he said, adding that, under state law, crimes must be prosecuted in the county where they were committed.
“Mr. Parsons, essentially, had a ball dropped on him by Fayette prosecutors, but they’re disagreeing with how Nicholas County prosecutors do things.”
Dove said court filings and documents of discovery suggested that Fayette officials were ignoring Nicholas officials’ decision to not prosecute on charges of abuse or neglect.
“CPS, eight times in Nicholas County, came back for our clients and said, ‘No abuse has occurred.’
“It was handed to the prosecutor (in Nicholas),” he added.
“From what I recollect of the abuse and neglect case, these complaints were investigated,” Judge Blake said. “No petitions were filed, for one reason or the other one, but I don’t recall a statement from a prosecuting attorney in Nicholas County saying, ‘We refuse to prosecute this because there’s no evidence of mistreatment or abuse.’”
Dove replied that CPS has provided a Nicholas prosecutor with CPS documents and Nicholas “hasn’t moved on it.
“It’s been almost three or four years’ worth of materials,” said Dove. “I don’t understand how Fayette County can come after the (CPS) investigations are closed, which, in the CPS records ... they say, ‘no abuse and neglect has occurred. We’re closing this file.’ Verbatim.
“How can (Fayette County) say, ‘We don’t believe CPS, and we’re going to rehash all of that?’”
Citing case law, Parsons argued that in the 2004 case of W.Va. vs. Dennis, a rape and kidnapping case with crimes committed in Wheeling and in the nearby state of Ohio, the State Supreme Court had set precedent.
“Our court in weighing on this issue came up with a test and said that, so long as a substantial part of a crime occurs within a jurisdiction, that jurisdiction has venue over the entirety of the crime,” the special prosecutor said. “So in this situation, they will show there was abusive and neglectful behavior that occurred in the county of Nicholas, and then, ironically, I think the evidence will show that, in an effort to escape scrutiny in that jurisdiction, they fled to Fayette County, where the child ultimately died.
“There should be no incentive for criminals to elude prosecution and punishment by flipping and skipping jurisdictions,” he summarized the ruling.
In other arguments for dismissal:
● Marty Browning Jr.’s attorney, Mancini, countered that the charges of abuse and neglect while the victim was in Nicholas are outside of the scope of Parsons’ cited case because they were a “series of isolated incidents over a number of years” as opposed to a “series of events of abuse alleged that collectively led to her death.”
Mancini also differentiated between the abuse charge, which he said the motion by Titchenell’s lawyer would cover, and the neglect charge.
“The neglect charge alleges death caused by medical neglect,” said Mancini. “That’s what we’re talking about, as far as her illness and not taking her to the doctor.”
Browning had told police in 2018 that his wife, Julie, oversaw Raylee’s medical care. Titchenell had reportedly administered Raylee’s medication, including the morning she died. She had also called 911 when the victim became critically ill and had provided police with a list of Raylee’s medications and alleged medical conditions.
Raylee had been sick on Christmas Day 2018 and had spent it on a mattress in the room she shared with Titchenell, according to court documents.
● Julie Browning’s attorney focused on the abuse charge. He said that the charge concerned him because the grand jury transcript allegedly shows that the acts defined as abuse from 2014 to 2018 were “vague.”
Browning’s wife had been employed by the Kathleen and John Faltis Child Shelter in Summersville for a time while the family lived in Nicholas County, a shelter worker confirmed on Tuesday. The dates of her employment were not immediately available.
The shelter houses abused children and has “an ongoing working relationship” with West Virginia Department of Health and Human Resources, according to Allison Adler, a spokesperson for WVDHHR.
Plants was concerned Nicholas prosecutors could decide in the future to indict Browning for alleged incidents of abuse against Raylee from 2014 to 2018.
“It’s a double jeopardy argument,” said Plants, meaning Browning could be forced to address the alleged crimes in Fayette and again in Nicholas.
● Defense attorneys argued that the two charges — one showing negligence and the other showing an intentional act — contradicted each other.
“It’s almost like burglary by breaking and entering or burglary without breaking,” said Mancini. “It can only be one.”
Ultimately, Blake sided with Parsons and did not drop the charges against the three.
“I disagree with the statement that these accounts conflict,” he said. “If I have a child, and I abuse the child; I refuse to feed the child; I put the child out in cold weather without any clothes on, I have abused that child.
“I’m guilty of child abuse,” said Blake. “If that child comes in and has a cold, the flu, coughing, fever, and I just look at the child and say, ‘Uh, tough, you’re just faking it, I ain’t gonna do nothing,’ well, I’m neglecting that child’s medical attention.
“To say you can’t have both of them, I don’t believe is correct.”
Blake said a substantial part of the crime occurred in Fayette.
“That’s where the family moved around 2018,” he said. “Why they moved, you know, it could be argued that it was a pattern or a scheme to evade authorities looking into the abuse of this child.
“There appears to have been a pattern of abuse and neglect of this child for quite some time.”
He added the jury would decide if the child had a medical condition.
In other discussions:
● Blake granted a motion by Parsons to prevent the defense from promising jurors in opening arguments that a defendant will take the stand.
● Blake said he would consider Parsons’ motion to bar the defense from blaming another person for a crime, without solid evidence.
Plants suggested that Browning could testify that Raylee’s birth mother, Janice Wriston, or someone in “another house” had abused Raylee. Wriston said in 2019 that she had made several reports to CPS, to New River Family Health, to West Virginia State Police and to Fayette Family Court that her daughter was being abused, including sexually abused, at the father’s house. Wriston said she was anonymously reported to CPS for alleged abuse of Raylee, after she made the reports.
● Blake stated that Nicholas County teachers had reported to CPS that they believed the defendants were abusing Raylee.
Teachers are mandatory reporters and required by law to report suspected abuse. They do not make anonymous complaints, as family or neighbors are permitted to do.
One of Julie’s children later told police that the Brownings had decided to homeschool Raylee because her teachers were calling CPS. Neither state nor federal law requires homeschool groups to report suspected abuse and neglect.
● Blake agreed to consider Plants’ motion for a 404(b) hearing and to issue a ruling, later. Rule 404(b) excludes evidence of one’s character or actions as proof that one acted in conformity with that character trait.