Mercer man found not guilty on sexual assault, abuse charges

Greg Jordan, Bluefield Daily Telegraph, W.Va.
·4 min read

Apr. 29—PRINCETON — After deliberating for about an hour Wednesday, a jury found a Mercer County man not guilty on charges of first-degree sexual assault and first-degree sexual abuse involving a female juvenile.

Cody Wayne Proffitt, no age available, of Mercer County was indicted by the October 2019 Mercer County Grand Jury on first-degree sexual assault and first-degree sexual abuse. The charges involved a female juvenile who was less than 12 years old when the alleged acts occurred between Sept. 1, 2018 and Nov. 30, 2018, according to court documents.

Early Wednesday afternoon after the jury returned from lunch, Circuit Court Judge Derek Swope reminded the jurors that both the state and the defense had rested their cases. Swope also reminded the jury that Proffitt had chosen not to testify, and that it was his right to do so and could not be counted against him.

After Swope read the jury their instructions regarding the law connected to the case, the state and defense presented their closing arguments. Assistant Prosecuting Attorney John McGinnis, who represented the state with Prosecuting Attorney Brian Cochran, thanked the jurors for hearing a difficult case involving a child and reminded them of the testimony they had heard.

The juvenile's father had explained the home's layout and pointed out that anyone could easily move through it at night without waking anybody up, and that the juvenile had said the same thing when she testified.

McGinnis also said that the father described how his daughter was outgoing and happy, and how her behavior changed after Proffitt moved in. She became quiet, starting wearing looser clothing and wearing black, and that her behavior became worse both at home and in school. And while she may have told untruths and lies, "all those started after September 2018 after Mr. Proffitt came to live in that house." She had told "untruth and lies," but this behavior started after Proffitt moved in, he added.

The juvenile testified Tuesday that the first incident with Proffitt occurred when he gave her and her brother alcohol, McGinnis said. Abuse started when he moved into the home.

At first, the behavior included comments such as her being "cute," but it progressed to her being touched, first in her breast area and later her underclothes, McGinnis said. It then progressed to sexual acts.

Attorney Joshua Lawson, who represented Proffitt with attorney Robbie Dumapit, said in the defense's closing argument that Judge Swope had reminded them how "the state has been trying to put a puzzle together the last two days."

"It is a jumbled mess of lies, inaccuracies and missing information," Lawson said.

Lawson said that the juvenile's testimony and the interviews she had at Mercer County Child Protect had inconsistencies. In one interview, the juvenile told Child Protect that pills had been "shoved down her throat," but she testified in court that she had had one pill that dissolved in her mouth.

"She can't keep her story straight from one day to the next," Lawson told the jury.

The defense argued there were other inconsistencies and that the juvenile had had depression and other problems before Proffitt moved into her home. Lawson told the jury that the juvenile was seeking attention.

"Ladies and gentlemen, I wish we could provide you with a clear motive," Lewis said. "She is suffering and she is a victim, but she is not a victim of Mr. Proffitt."

"There are so many lies, so much inconsistency, that reasonable doubt has to be there," he stated. "The state would have you believe that because she has been consistent about Mr. Proffitt, she is credible."

The state, which has the burden of proof, is allowed to address the jury against after the defense has presented its closing argument.

"Yes, she is troubled," McGinnis said. "She's broken, because (Proffitt) broke her. If we prove it happened just one time, we've met our burden of proof. If you believe it happened at least once, we've met our burden of proof."

McGinnis said that the juvenile would admit to a lie, such as being made captain of the school's dance team, if she was confronted with it, but her account about Proffitt never changed.

After the jury was dismissed, Judge Swope informed Proffitt that he was discharged from his bond and free to leave the court.

— Contact Greg Jordan at gjordan@bdtonline.com

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