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Nick Short | Standard-Examiner Robert Cole Boyer, left, and Colton Raines attend a preliminary hearing at 2nd District Court Thursday, July 19, 2012 in Ogden, Utah. Raines, Boyer and Skyler Shepherd are accused in a fatal boating accident in August 2011 that claimed the life of Esther Fujimoto.
911 call, photos can be used at trial in fatal Pineview boating accident
Court » Judge: Evidence is graphic, not inflammatory.
First Published Sep 21 2012 11:09 am • Last Updated Sep 21 2012 11:36 pm

Ogden » A dramatic 911 call from a man who tried to rescue a dying swimmer hit by a motor boat last year in Pineview Reservoir can be presented to a jury, a 2nd District judge ruled Friday.

Judge Ernie Jones also will allow two photos of the victim, 49-year-old Esther Fujimoto, at trial — but they must be in black and white, not color.

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Defense attorneys for three men charged in Fujimoto’s death argued the evidence could sway a jury against their defendants. But Jones ruled that while the evidence was graphic, it was not inflammatory.

"I know it’s emotional," Jones said before ruling the 911 tape could be played to a jury. "I know there’s some yelling, some crying, but that’s what you’d expect from a 911 call."

The phone call was made by Vaughn Anderson, who rowed out to Fujimoto, some 300 feet from the shoreline, and called 911 to report she had been horribly injured on the evening of Aug. 21, 2011.

"I can’t pull her into the boat," Anderson told a dispatcher. "She’s cut real bad."

Anderson grew more frantic as patrol cars zoomed past, and he pleaded with dispatchers to have them turn down his street.

"They went past again!" he yelled. "She’s dying! Hurry!"

The injuries were allegedly inflicted by a boat occupied by Colton Raines, 23, Robert Cole Boyer, 30, and Skyler Shepherd, 22.

They were ordered to stand trial following a July preliminary hearing. Trials for Boyer and Raines are scheduled for February. Shepherd’s trial is set for December. All three are charged with class A misdemeanor obstructing justice.

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Raines and Shepherd also are charged with class A misdemeanor reckless endangerment and class B misdemeanor failure to render aid.

The photos in question detail the extent of Fujimoto’s injuries. One, printed in color, shows the woman’s body as she lay on a boat after life-saving measures were taken. The other is a black-and-white photo taken the next day at the medical examiner’s office.

Glen Neeley, Shepherd’s defense attorney, argued the graphic photos would inflame jurors.

"They portray images I can’t get out of my mind," Neeley said. "I think it will arouse the jury’s … passion."

Deputy Weber County Attorney Teral Tree argued the photos were important because they refute Shepherd’s claim that they thought Fujimoto was OK when they left her in the water and drove away in the boat.

"The whole issue is, what did he know?" Tree said. "What did he see? What did he hear?"

Tree argued the photos would help prove that it is difficult to believe the men did not see any injuries on the woman before driving away in the boat.

Jones ruled that the photos be allowed in trial, but that both must be printed in black and white. He said that while the photos were "unpleasant to look at," it doesn’t make them gruesome.

He described a gruesome photo as one that would be "grisly, hideous" or cause "horror, repulsion."

"It just seems to me, this is exactly what I would expect to see if a propeller hit a human body," Jones said of the photos.

Also Friday, the judge ruled Shepherd can be tried separately from the other defendants. Shepherd, the only one who has spoken to police, could not be cross-examined about his statements if all three defendants were tried together, defense attorneys said.

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