Raber not guilty of aggravated assault by vehicle

Lesley Raber has been found not guilty of aggravated homicide by vehicle but guilty of the lesser charges of homicide by vehicle and improperly making a left hand turn.

The jury was asked to decide based on the evidence: was Raber driving recklessly while drunk, causing the death of 54-year-old Nancy Robison of Indiana? Or was it a terrible accident, rather than a crime?

Deputy County Attorney Linda Black, for the prosecution, argued that Raber’s blood alcohol level (BAC) of 0.2 caused her to act recklessly, directly leading to Robison’s death.

Devon Petersen and Tom Fleener of Fleener Petersen Law, however, made the case that witness statements of Raber’s apparent sobriety were more reliable than the blood work. Without conclusive proof of her blood alcohol content, they said, the state could not prove her guilty of a crime.

The Crash

The cause of the crash is undisputed, said Black. Raber stopped at the intersection of Hwy 212, then attempted to turn out “right in front of Ms. Robison’s trike”.

Two witnesses who were behind Raber’s vehicle when the crash occurred were called to the stand. The first testified that Raber was stopped as the bikes went past, but Robison’s trike was behind the main group. Raber pulled out right in front of the trike, said the first witness.

“He further stated that he was shocked she made that turn,” Black told the jury in closing statements, later adding, “If that’s not the definition of reckless, I don’t know how else you would describe it.”

Trooper Brian Sinner, a member of Wyoming Highway Patrol’s crash team, testified that Raber’s vehicle turned in front of the trike, which impacted in a t-bone manner and rotated to face the other direction.

No evidence was found that either vehicle malfunctioned. A representative from WYDOT described performing basic inspections and finding no damage on either vehicle from before the crash occurred.

Did Speed Matter?

A photograph was presented during Sinner’s testimony showing the 107-foot skid mark left by Robison’s tire as she braked. It was not possible to determine the speed of the trike, said Sinner, but, had it been traveling at the 70 mph speed limit, it would have covered 102 feet in a single second.

Just think how quickly a second goes by, said Black. “Ms. Raber, our defendant, had one second to complete her turn, all the way across the other lane of travel,” she said.

However, the defense claimed Robison was speeding to catch up with her boyfriend.

“We have no idea how fast she was going when she began to apply her brakes,” said Fleener.

Calling the intersection a dangerous “false hill”, Fleener suggested Raber believed she had the clearance to pull out after seeing the bikes go past, but Robison was speeding and partially blocked from view.

“It was a terrible, terrible accident,” Fleener said. “There was no reckless behavior in Raber’s actions.”

Black, however, pointed out that Raber’s decision would have been even worse had Robison been traveling faster than the speed limit, as she would have arrived at the intersection in less than a second.

Was Raber Drunk?

In an impassioned closing speech, Fleener called into question whether Raber was actually drunk at the time of the crash. This isn’t a case where her blood alcohol content was a tiny bit over the limit, he said, so it’s not about “nitpicking” as to whether she was impaired.

If the blood drawn from Raber three hours after the crash gave a reading of 0.2, he said, what would it have been at the time? She would have been “slobbering”, falling-down drunk, he said, and “there is no evidence, none whatsoever, that she was the equivalent of a 0.2 three hours afterwards.”

Black called Trooper Kevin McMaster to the stand. The first officer on scene, McMaster stated that he smelled alcohol and noted multiple beer cans that appeared to belong to the SUV.

He told the jury that his second conversation with Raber was in his patrol car, at which time he smelled alcohol on her that he had not caught outside due to the wind. Raber admitted to having drunk beers earlier in the day, according to McMaster.

Because he noticed she was shaking from shock, the trooper chose to perform a specific test of sobriety called a “horizontal gaze nystagmus” test; the results suggested she was under the influence.

The test, he said later, is 77 percent accurate and is based on six “clues” that a person is inebriated. McMaster stated that Raber exhibited all six of the listed clues during the test.

When he showed Raber the reading, McMaster said, she began to cry and nodded her head. She was at that time arrested and transported to the hospital, where her blood was drawn.

McMaster also testified that the smell of alcohol grew stronger while Raber was in detention. Not all persons charged with DUI slur their speech or exhibit other hallmarks of drunkenness, he said.

Lisa Branch, the forensic toxicologist who tested Raber’s blood at the Wyoming Chemical Testing Facility, described the concept of tolerance, telling the jury that a “seasoned drinker” can compensate for the loss of fine motor skills. That drinker would likely be able to walk in a straight line, she said, but would still struggle with performing multiple tasks.

A seasoned drinker tends to exhibit more risk-taking behavior, she said, as well as altered perception of time and distance. Raber attempted to make a turn one second before the trike arrived, Black said in her closing statement: “A more risk-taking attitude – that’s exactly what we have here”.

Tolerance, said Black, only affects the visibility of the effects of alcohol. Whether or not you can tell a person is drunk, the effects will be there regardless.

“Not everybody at a 0.2 is going to be falling-down drunk,” Black argued. Is it more likely Raber has tolerance, she asked, or that the blood draw was wrong despite being correctly administered?

Validity of the Tests

The reliability of the blood sample came up for the first time during McMaster’s testimony, when the defense questioned why it was not mailed to the lab until August 6.

The medical technician who drew Raber’s blood at the county hospital testified that she does not remember the specific event or recognize Raber herself, but that she always performs draws according to the kit instructions. The defense implied that it is thus not possible to be sure the draw was done correctly, though the technician stated she has never performed a draw for law enforcement differently.

Branch was asked if the results are still reliable if the test is performed more than 48 hours after the blood is drawn. She said the only change would be a drop in the concentration, not an increase.

The defense established that others had access to the blood while it was in the lab’s fridge and that Branch cannot know what happened to it while it was in the mail. Petersen then asked if there is a possibility the blood could have fermented during its journey to the lab.

Branch responded that, while there is glucose in blood, the specific micro-organism responsible for fermentation would need to be present, which is extremely unlikely. Also, she said, a preservative and blood-clotting agent is placed in the sample to prevent such eventualities.

Petersen confirmed that the lab was not accredited at the time of the test, asked why the samples were labeled on the cap rather than the tube, questioned whether the lab’s equipment was properly calibrated and noted that Branch performs too many tests to remember individual results.

“Your test is only as good as the blood in that sample,” he said.

During redirect, however, Branch said she would have made a note had the three seals on the vials, bag or box been broken when the sample arrived. Because those seals were not broken, she said, it does not matter if the vial was labeled on the cap or tube. She also testified that accreditation is essentially an “outside eye” looking in and does not alter testing methods.

Black reminded the jury in her closing statements that other checks were performed. Trooper McMaster noticed an odor of alcohol, a portable breath test had indicated the presence of alcohol consistent with the 0.2 result of the blood draw and Raber failed the field sobriety test.

McMaster “further testified that the [sobriety] test is valid and scientifically conclusive,” said Black.

In his closing speech, Fleener offered many criticisms of the tests performed in this case, from the fact that the sobriety test and blood draw were not performed in front of a camera to the decision to perform a sobriety test at all when there might have been a head injury involved.

“It’s a doggone homicide case,” he said, but it wasn’t handled like one. Law enforcement should have dotted every i and crossed every t, he said.

“They treated the blood worse than they did the rest of this case,” he continued. This blood is not reliable, he said – or at least, not reliable enough for a homicide case.

Black disagreed, stressing that “there’s no evidence the sample was contaminated or tampered with – in fact, just the opposite.” All three seals were intact, she said, and, while the defense wants to “make a big deal” of the confusion over when and how it was sent, none of that would have affected the results. “It was accurate – there is no evidence to the contrary,” she said.

Fleener suggested that a discrepancy seems to occur. According to friends and family, Raber was not seen drinking much the night before or the morning of the crash. What was she doing to get a 0.2, he asked – hiding in the bathroom chugging whiskey?

“Does that make sense to you?” he asked. The testimony and blood test do not match up, he continued.

“She just wasn’t drunk,” said Fleenor. “What does that mean? It means the test is wrong.”

Proof of Sobriety

The defense called witnesses to establish that Raber did not appear to be drunk and did not seem to have drunk enough alcohol to reach a 0.2 BAC result. The first was her fiancé, Brian Park, who stated he has seen Raber drunk “a handful of times” in the five years he has known her, but not that day.

Park’s sister and father came in the day before the crash for Raber’s 30th birthday party, Park said. Along with Raber’s father, they ate supper together and retired to sleep around midnight.

During that time, Park recalled Raber drinking beers and part of a glass of wine, but said she did not appear drunk. He denied she would have been able to “sneak off and drink whiskey.”

Raber was not hungover the next morning, Park said. They began prepping for the party at 8 a.m. and Raber spent a couple of hours alone doing her hair and make-up; they drank a beer at around 10:30 a.m.

At around noon, said Park, the guests began to arrive. Park and Raber consumed one or two more beers, he said, and he knows she did not drink more “because she wasn’t drunk at the time”.

The group headed to the prairie dog town on the Raber land around 1:30 p.m. At that time, to the best of Park’s knowledge, Raber had consumed no more than four beers. Once at the prairie dog town, said Fleener, Raber realized she had forgotten her cell phone and decided to return to the house to fetch it.

Park’s father, Charles, stated that he has seen Raber drunk before and her behavior on the day of the crash was “no comparison”. “No one was drinking very much,” he said.

Laurie Hosford, Raber’s prior employer, testified that she arrived around 11:30 a.m. and is “positive” Raber was not drunk. She felt no concerns about anyone driving to the prairie dog town, she said.

Black asked the same question of Brian and Charles Park and received the same answer: was Raber in their line of sight at all times during the morning before the crash? No, she was not.

Black reminded the jury during her closing that Raber’s friends “readily admitted” they did not have eyes on her at all times and she could have consumed more alcohol while out of their sight. Raber was also inside alone for an hour or two, said Black, according to Park’s testimony.

As Raber’s father, Lloyd, took the stand, the judge explained he could exercise his Fifth Amendment rights should he feel that answering a question would incriminate him. Lloyd faces a charge of accessory after the fact for allegedly giving his daughter liquid to disguise her consumption of alcohol.

Lloyd confirmed that he gave Raber iced water at the scene, “to get her back so she didn’t go crazy, I guess is the best way to explain it”. His daughter was in shock and hysterical, he said.

The defense also called Mathew Martonovich of OEC Forensics to the stand, a forensic engineer who specializes in the reconstruction of collisions. He testified that crashes involving motorcycles generally involve a right-of-way violation. Speed of the rider is often an issue, as is ease of seeing the motorcycle.

Martonovich explained the concept of “conspicuity”: how easy it is to see a motorcycle as compared to a passenger vehicle. He told the jury that drivers often “look but fail to see”.

“They are harder to see and, in general, drivers are not looking for them,” he said.

Martonovich testified that statistics from the Fatal Accident Reporting System show 92 percent of collisions of this type between 1982 and 2017 across the nation did not involve alcohol.

However, in cross-examination, Martonovich admitted two-wheel bikes, rather than trikes, account for most fatalities, while 62 percent of collisions occurred in urban areas and 65 percent were not at intersections. He also confirmed he has never visited the scene of the crash or reviewed the vehicles.

A jury cannot make a decision based on statistics, said Black in her closing. The jury must decide based on the facts of the case, and Martonovich has no knowledge of those facts.

The Victim

The defense implied that Robison’s actions contributed to the crash. Not to criticize the deceased, said Fleener, but she was not wearing a helmet, did not use her rear break and had a crate of beer and marijuana on her. “That didn’t help,” he said.

Fleener questioned Robison’s toxicology results, pointing out blood was not drawn for several days after her death and the alcohol level may have decreased. Black, however, noted that a person’s body does not continue to metabolize after death.

Lieutenant Tim Boumeester confirmed that marijuana cigarettes were found while searching the trike for the rider’s identification. He stated that it could not be determined when they had been consumed.

He also testified that beers were found in a soft cooler in the trike. However, he said, they were sealed.

Branch presented the results of Robison’s toxicology report, which showed a 0.02 mg per 100 ml result consistent with having consumed a single alcoholic drink. A marijuana metabolite was also detected; Branch explained that this is the substance the body uses to metabolize marijuana, rather than marijuana itself, and can remain in the body for up to 60 days.

For this reason, said Branch, the metabolite cannot tell us anything about impairment and does not confirm that marijuana had recently been used. Signs of an anxiety or anti-depressant drug were also found, Branch said, but the medication is not known to cause impairment.

“The defense is doing a lot of victim-blaming in this case,” Black said, stating that Robison was not required to wear a helmet and reminding the jury that there is no evidence she was drunk or high.

Additional Doubts

The defense sowed numerous other doubts throughout the trial. Fleener suggested there may be a possibility that Raber’s cousin was actually the one driving. The two are similar in appearance, said Fleener, so it’s possible Raber “took the fall” because she was “stone cold sober”.

McMaster testified that Raber was able to speak reasonably and stay focused and said he did consider whether she had swapped places with her cousin and had not really been driving. Boumeester later said that this theory was eliminated due to a seatbelt burn on the cousin’s right shoulder.

Regarding whether or not the intersection itself is dangerous, Trooper Sinner testified that this is only the second crash he is aware of in that place since he joined the crash team in 2011. He noted that there is a 2400-foot visibility at the intersection for oncoming vehicles.

Lloyd Raber, however, testified that the intersection has grown more dangerous since the advent of GPS, which tells drivers that the haul road is the quickest route from Spearfish to Billings. “It’s getting to be very dangerous,” he said, mentioning trucks not using indicators and seeing “a bunch of skid marks”.

Lloyd also claimed on the stand that Trooper McMaster removed the blanket from Robison’s body as he walked Raber to his patrol car, causing her to break down again. This was refuted by McMaster during rebuttal testimony: the blanket was placed on Robison by a witness, he said, and he only lifted it to take pictures at a time when Raber was around 100 feet away.

McMaster’s conduct at the site was also called into question; for example, the defense wondered why he had not established Robison’s skill level on a trike or verified what she had consumed. However, Black established that Boumeester confirmed Robison was a seasoned rider.

Did Raber have a head injury that would have altered the results of the field sobriety test? Park testified that he witnessed bruising and a bump on Raber’s face at the bond hearing, five days after the crash.

Detention Deputy Josh Throckmorton refuted this statement, testifying that he escorted Raber to the trial and did not observe facial injuries. No injuries were reported or observed while she was in custody.

It was also suggested that Raber may have thought Robison was indicating to turn at the intersection. Trooper Kevin McMaster testified that Raber said she thought she saw the bike turning; however, said Black, both witnesses who saw the crash stated Robison was not using her blinkers.

Verdict

After deliberating for several hours, the jury found Raber not guilty of two counts of aggravated homicide by vehicle (one DUI, one reckless) but guilty of the misdemeanor crime of homicide by vehicle, which carries a maximum penalty of one year of jail time. She was also found guilty of improperly turning left at an intersection.

Sentencing is at this time scheduled for November 20.