CLARKSBURG – Two Harrison County men have achieved a partial victory against two police officers they alleged attempted to frame them for raping one of the officer's sister.
U.S. District Judge Irene M. Keeley on June 12 granted a motion filed April 18 by Jamison Cooper, co-counsel for Brandon Lewis and Frankie Tiborsky, for default judgment against Ericka Southern.
In the motion, Cooper said since being served with a summons on March 8 at her apartment in Mannington, Southern had yet to file an answer, notice of bona fide defense or any type of responsive pleading to the lawsuit the men filed against her, the city of Clarksburg and detectives Joshua Cox and Robert Hilliard on Dec. 2 for civil rights violations.
According to the suit, Lewis and Tiborsky on Dec. 14, 2009, were introduced to Southern through Duane Couture, a mutual friend. At the time, Southern lived on the 9th floor and Couture the 3rd floor of Koupal Towers in Clarksburg.
About 8:10 p.m., Southern and Tiborsky left Couture's apartment to be alone in hers. After returning at a time not specified, they again left Couture's apartment, this time accompanied by Lewis, at 9:37 p.m.
After returning to her apartment, the suit alleges Lewis and Tiborsky had consensual sex with Southern. About 10:09 p.m., Lewis and Tiborsky left the apartment, but not before Southern asked for Tiborsky's phone number, and invited both of them to return at any time.
According to the suit, Southern later called Solomon Sorrells, a male friend whose numerous calls she ignored while with Tiborsky. After speaking with him, Southern then called 911 to report she'd been raped.
In her call, Southern told the dispatcher she did know her attackers. Also, she said when she said, "'I can't do this'" the men replied "'Well, okay, we'll stop if you can't do this'" and did not ejaculate during intercourse.
After several CPD officers, including Cox, arrived at Southern's apartment, Hilliard, who was off-duty that day, showed up. The suit alleges Hilliard deliberately involved himself in the investigation since Southern is his sister.
According to the suit, Hilliard then played an active role in the investigation. In addition to accompanying Cox to United Hospital Center to talk with Southern and later interview Couture, Hilliard located Lewis and Tiborsky, called the SWAT team to arrest them and observed them being interviewed after their arrest.
Also, the suit alleges, Hilliard, who works part-time as security guard with the Clarksburg Housing Authority, made two unaccompanied visits to Koupal Towers to get the surveillance footage from Dec. 14. However, instead of retrieving the entire footage, including the 3rd and 9th floors, the elevators and lobby, Hilliard "meticulously reviewed the footage and selected the portions he wanted to download."
According to the suit, Hilliard delivered two CDs of surveillance footage to Cox, one on Dec. 15 and the other on Dec. 23. The CDs did not contain the entire evening's footage, but instead files Hilliard selectively downloaded.
Records show, the grand jury returned an indictment against Lewis on one count each of sexual assault in the second degree, and conspiracy to commit sexual assault, and Tiborsky on two counts of sexual assault in the second degree, plus one count conspiracy. Both went on trial Dec. 1, 2010.
According to the suit, Lewis and Tiborsky's co-counsel, Dan Cooper, was able to elicit testimony from Cox during the state's case-in-chief that important video evidence was destroyed. Also, following an evidentiary hearing, he was allowed to question Southern about false allegations she made four years earlier that her now ex-husband, Adam.
Fearing a possible mistrial, the prosecutor's office on Dec. 3, 2010 offered Lewis and Tiborsky a deal that in exchange for pleading guilty to a misdemeanor offense of battery, it would recommend they be released for time already served. Tiborsky, who remained in jail in lieu of $25,000 bond since being arrested nearly a year earlier, and Lewis, who made bail on Jan. 27, but was later reincarcerated on Aug. 13, agreed.
As a result of their arrest, and incarceration, Lewis and Tiborsky maintain they've suffered "a loss of income, emotional distress, fear, mental anguish, embarrassment, humiliation, aggravation and inconvenience, loss of enjoyment of life, depravation of liberty, damages to their reputation and attachment of social stigma." In addition to ones for civil rights violations, Lewis and Tiborsky make claims against the defendants for conspiracy, malicious prosecution, intentional spoliation of evidence, slander, intentional infliction of emotional distress and negligent retention.
Despite granting their motion for default judgment, Keeley has yet to schedule an evidentiary hearing on the amount of damages Lewis and Tiborsky are to receive from Southern. A status conference hearing is scheduled for Oct. 31.
U.S. District Court for the Northern District of West Virginia case number 11-cv-192