Lane convicted — but only on two of five counts
August 16, 2014
It took a jury just 90 minutes Thursday to convict David Paul Lane of assault with a deadly weapon and carrying a concealed weapon at the Carson City Olive Garden restaurant a year ago.
"It's a victory. He's going to prison," said Assistant District Attorney Mark Krueger.
But the defense can claim victory as well because it convinced jurors to acquit on two of the four assault with a deadly weapon counts and deadlocked the panel 7-5 on the assault charge involving restaurant manager April Vlach.
Lane will be sentenced Sept. 23 and could receive up to six years for assault with a deadly weapon and another five for the concealed weapon conviction.
He remains in the Northern Nevada Correctional Center finishing his sentence for fighting with the Douglas County deputy who arrested him that night.
Krueger said Lane clearly committed assault with a deadly weapon by pulling a gun and pointing it at four different people in the restaurant.
But defense lawyer Marci Ryba said there are so many inconsistent and conflicting stories from the various witnesses the state's case fails to prove any of the charges beyond a reasonable doubt.
Jurors willing to discuss the case afterward said they believed the theory presented by defense expert, experimental psychologist Robert Shomer, people's memories embellish their stories about a major event over time and are often, albeit unintentionally, wrong by the time they testify. Shomer testified Wednesday that initial witness accounts provided at the time are going to be the most accurate.
Shomer was the only defense witness called in the trial.
Ryba argued in the original statements by Vlach during her 911 call for help, her witness statement and interview with detectives, she never mentioned Lane pointing the gun at her. A year later, however, Vlach testified he did so.
She said it seemed incredible to her Vlach wouldn't mention having a gun pointed at her when she called 911 and was interviewed by detectives the night of the incident July 21, 2013.
"Her initial report is credible," she argued. "Her current one is not."
Ryba said the same is true of the statements by Erica Olivas, who got Lane's license plate number and enabled Lane's arrest that night and Amanda Fratis — the subjects of the other two assault charges.
She said Olivas initially said "she only heard it was pulled out; she didn't see a gun." Her testimony a year later, however, says the gun was out and pointed at chef Daniel Cewinski's head, which Ryba said even Cewinski didn't claim. She never said at the time the weapon was pointed at her but her latest testimony made that claim.
Supreme Court Justice Mark Gibbons, who was one of the jurors, said the panel also bought Ryba's argument Fratis was accurate the night of the incident but had since embellished her memory of what happened.
"Her initial report never said a gun was pointed at her," said Ryba.
Ryba told jurors they should follow Dr. Shomer's advice the initial account a witness gives, especially of a highly stressful event, is almost always the most accurate and too much changes and gets added in over time, making more recent accounts much less reliable.
According to jurors, they did just that.
On the charge Lane pointed his gun at Cewinski, both his testimony and that of the others solidly backed up the claim and the panel voted quickly to convict.
They also voted for the concealed weapon count since no one saw a weapon when Lane arrived but he obviously had one he pulled out when angered.