A sexual battery count against a former Wood County Sheriff’s Deputy accused of sexually assaulting a
female inmate last year was dismissed following a court hearing Monday.
Dusty Garwood, 50, Bradner, appeared in the courtroom of Judge Robert Pollex.
Two other felony charges filed in the case are still pending.
Garwood pleaded not guilty in December to two counts of gross sexual imposition and one count of sexual
battery. The charges stem from accusations of sexual contact, including intercourse, with the inmate,
who was on electronic home monitoring at the time due to an ongoing criminal case.
The incidents reportedly occurred between April 12 and June 24, 2013.
The crux of the argument in dismissing the sexual battery charge lay in whether or not the victim was
technically “in custody” at the time of the incident. Only the charge of sexual battery was in question
at the hearing. As indicted, the charge
indicated that Garwood “had supervisory authority over the victim who was in the custody of law.”
Garwood’s attorney, Scott Koon, framed the issue partially as a matter of double jeopardy. He indicated
in the original motion filing that Judge Reeve Kelsey had previously decided that the victim “was not in
custody of law” during the time of the alleged crimes.
That finding related to whether or not the victim could have received credit for time served in jail in a
previous case.
Koon further argued that the State of Ohio, as a result, “is precluded from attacking collaterally the
decision of Judge Reeve Kelsey in attempting to prove that (the victim), in fact, was in custody during
that period of time.”
Koon further argued that the definition of “in custody” was too vague and, he said in court on Monday,
the issue is in dispute in courts in the state.
Wood County Prosecutor Paul Dobson argued that Koon was “confusing multiple terms and therefore multiple
definitions.”
“There’s a difference in different types of custody,” he said.
“Judge Kelsey should have given (the victim) credit for the time” on electronic home monitoring.
He said that no jeopardy had attached itself to Garwood himself.
Koon, in rebuttal, said jeopardy is underpinned by whether the state is permitted to re-litigate an
issue.
“The very idea is we’ve already decided this, it’s no longer an issue, it’s done,” he said regarding the
issue of whether the victim was in custody.
Pollex noted the circumstances of the matter were “very rare,” but did not side with Koon on the argument
of vagueness.
However, he noted the State of Ohio had argued that the victim was not in custody while on electronic
home monitoring in her previous case, but reversed that argument in the current case.
Pollex subsequently dismissed the sexual battery charge without prejudice. He noted that the State had
the option to re-file the charge without using the “in custody of law” language.