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Jury Mulling Over Jogger Assault

Posted: January 23, 2008 4:13 p.m.
Updated: March 25, 2008 2:01 a.m.
SAN FERNANDO - After a week and a half of testimony, closing arguments were finally heard Tuesday in the trial of Dwight McDonald, the retired CHP sergeant accused of trying to deliberately run down a jogger last year in Valencia.
McDonald is charged with brandishing a stick, brandishing an automobile, reckless driving, and assault with a deadly weapon (automobile) in connection to an incident on March 8, 2007 in which jogger Steven Gilbert alleged that McDonald tried to run him down, then later tried to strike him with a wooden grape stake.
Deputy District Attorney Heather Borden focused on the witness testimony and the 911 call made shortly after the incident, painting McDonald as an angry man who lost control of his senses during the incident, and as someone skilled in testifying in court.
Both Kathy McAlpine - who made a 911 call - and another witness, Bill Sheerin, claimed they saw McDonald come at Gilbert with a long wooden stick in the "cocked" position, raised behind his head as if to strike.
They also both testified that Gilbert told them he was scared of McDonald and felt threatened at the time of the incident.
"McAlpine said that the defendant's car was 'threateningly close,'" Borden said. Borden added that neither McAlpine nor Sheerin knew Gilbert prior to the incident and had no incentive to lie about what they saw.
Borden emphasized that even if McDonald's intent was never to hit Gilbert, the simple act of driving his car toward Gilbert in a threatening manner and brandishing the stick was reason enough to convict.
"If you do anything to a pedestrian with a vehicle besides drive by them, it's considered brandishing," she said.
"If you want to scare someone with your vehicle, you are brandishing your vehicle."
She also attempted to prove that McDonald's claim to have grabbed the stick in self-defense was untrue, by hammering on how he followed Gilbert with his car, and then left the scene and returned to find him a few minutes later.
"If he was truly afraid of Mr. Gilbert, and afraid that the 'shiny object,' was a gun, then he would have left the scene and called 911 after the initial confrontation, not driven up the sidewalk, then returned to the area with his 4-year-old granddaughter in the car," Borden said, referring to McDonald's testimony that he saw Gilbert holding a shiny object during their initial confrontation near the corner of Beaumont Street and Hillsborough Parkway.
"The law requires a guilty verdict, ladies and gentlemen," Borden told the jury. "This is someone who has an anger problem."
Defense counsel Ross Stucker, in a closing statement that lasted more than an hour, claimed that Gilbert, not McDonald, was the angry one, and attempted to discredit the prosecution's claims by walking the jury through a detailed re-creation of the incident and the evidence.
Stucker pointed to several of Gilbert's alleged actions to try to paint him as an unstable individual with a grudge.
He reminded the jury that Gilbert kicked McDonald's car.
He also attacked Gilbert's allegation that he was so terrified of McDonald that he wet his pants during the incident.
"Why would Gilbert advance on my client's vehicle if he was so scared of him that he urinated on himself?" Stucker asked. "Why? Because he was the aggressor.
"There was no motive for my client to strike or nudge Mr. Gilbert," Stucker continued.
"If you look at the physical evidence, it belies that point." Stucker reiterated his claim that the distance between the spot where McDonald's tire marks left the sidewalk and the spot where Gilbert was standing, at 69 feet, was too great for his client to have been trying to hit Gilbert.
"You can't brandish a weapon at someone if that person is not there," Stucker said. "My client did not have mens rea (criminal intent) at any time."
To further this claim, he added that if he really wanted to hurt Gilbert, McDonald could have gotten a gun after he returned home.
He said that as a retired CHP officer, McDonald had access to a weapon, but the fact that he did not take it with him and instead took a stick showed he only wanted to defend himself.
Stucker ended with an assertion that the case was mishandled by the Sheriff's Department, and that an inherent bias against motorists equaled a raw deal for McDonald.
"It was not a true investigation," Stucker said. "If it was, we would not be here today. But pedestrians always get the benefit of the doubt in these types of situations."
The jury begins deliberations today.


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