GALLIPOLIS — In a case that has been ongoing in the Gallia County Court of Common Pleas for over a year, a Gallia County man was recently sentenced to 18 months of incarceration for child endangerment.
According to court documents filed last week, William “Billy” McBrayer, 30, Gallipolis, pleaded guilty to count three of his indictment, a charge of endangering children, and was sentenced to a “definite prison term of 18 months.”
McBrayer was charged with felonious assault and two counts of endangering children after he allegedly caused physical harm to a child on May 25, 2011.
The victim’s date of birth, as listed in the indictment, is January 21, 2009.
Visiting Judge W. Richard Walton, a retired judge of the Lawrence County Court of Common Pleas, was assigned by the Ohio Supreme Court to the case against McBrayer, effective June 25, after Common Pleas Judge D. Dean Evans recused himself from the case in June.
Prior to this, the case came before the court for a trial on June 4 and, according to an entry filed with the clerk of courts on June 7, after the jury was impaneled and the trial commenced, the court declared a mistrial upon a motion by the defense.
The prosecution, represented by special prosecutors Emily Pelfrey and Marianne Hemmeter of the Ohio Attorney General’s Office, objected to this motion.
The mistrial reportedly involved an “evidentiary matter” and Judge Evans reported that his recusal was not related in any way to the mistrial and was due to a conflict that came as a result of the special prosecutors’ involvement in an unrelated case.
On the day of the trail, a motion was filed with the clerk of courts at 7:59 a.m. and signed by defense counsel Charles Knight. The “motion in limine” moves the court to order the prosecution “to refrain from comment upon certain out-of-court hearsay statements allegedly made by a 2-year-old incompetent witness to one or more individuals contained in the State of Ohio’s witness list until the Court has the opportunity at trial to rule on the admissibility of said alleged statements.”
The attached memorandum states that the “statements” — or possible “excited utterances” that can be utilized as evidence at trial for persons not qualified to be witnesses — were made by the two-year-old victim in the days following the incident in question. The “utterances” are inadmissible at trial, according to the memorandum, unless the state can prove that the statements were unreflected and spontaneous and a “sincere expression of her actual impression and belief.”
Prior to the June trial and earlier this year, the court imposed sanctions against the special prosecutors in this case.
This sanctions followed a motion filed by the defense seeking the removal of the special prosecutors.
The defense’s motion, filed on January 11 by Knight, just prior to a scheduled jury trial, alleged misconduct on the part of the special prosecutors due to the alleged purposeful concealment of relevant information that would aid in the prosecution of the case, the alleged failure to provide an appropriate witness list, the filing of “misleading” subpoenas and the alleged concealment of witness statements.
After court-ordered briefs were submitted by both the defense and the state in this case, the court, in a journal entry filed on February 1, imposed sanction against the prosecutors.
Among the sanctions was the order that the prosecution submit a witness list, any written expert witnesses’ reports, as well as their complete files for inspection to the defense counsel in this case.
Following the mistrial in June, a jury trial in this matter was continued to September 5.
In an entry filed on September 12 and signed by Judge Walton, it states that, on September 5, the court, upon a motion of the State of Ohio, dismissed counts one and two of the indictment, felonious assault and one count of child endangerment.
A second entry judgement entry signed by Judge Walton states, “The Court finds a plea agreement was entered into between the State of Ohio and the Defendant in this matter due to various mitigating circumstances and as a result thereof the Court should honor said agreement. The Court further finds that said plea agreement was made with the agreement of the victim.”
The entry further states that McBrayer be granted 56 days credit for time served.
The defendant was ordered to have no contact with the victim or the victim’s mother in this case and must pay the cost of prosecution.