Prosecution rests; defense begins case in VFW arson-embezzlement case

Leslie Rose Deavers will be in court today for the fourth day of her arson-embezzlement trial. She was arrested after an 18-month investigation into the blaze that destroyed the historic lodge.

FRONT ROYAL – The third day of the Leslie Rose Deavers VFW Post 1860 arson-embezzlement trial saw the prosecution rest its case after calling 24 witnesses – 26 if you count two recalls; the judge reject a defense motion to dismiss the prosecution case against their client; and the opening of the defense case.

And while Warren County Circuit Court Judge Clifford L. “Clay” Athey rejected the defense attempt to have all the charges against Deavers dismissed, Commonwealth’s Attorney Brian Madden did agree to null pross (drop) one arson charge against Deavers citing her for setting fire to a public building.

Defense Attorney Jason Ransom argued that testimony indicated the VFW Post was a private club, not open to the public, so charging their client with setting fire to the publicly-used building did not apply to the crimes she is accused of. Ultimately Madden agreed. The court noted that punishment for other arson statutes with which Deavers is charged was the same as the public building one, so removing that count did not significantly alter the state’s case.

However, after retiring to chambers to review referenced case materials, Athey said he did not believe it proper to take the remaining charges against Deavers out of the jury’s hands at this point. The judge noted that mid-trial motions to dismiss must be viewed in the best light to the prosecution’s case.

Athey noted that two expert witnesses presented by the prosecution–one on the embezzlement charge, the other on the arson case–had described a two-pronged case with sufficient evidentiary support to carry the case forward toward the defense’s counterpoint to that testimony.

“This is a classic case for the jury to decide,” Athey said in preparing to call the now 13 person jury back to hear the opening of the defense case. At the 9 a.m. outset of Wednesday’s proceedings, the request of one of the 14 jurors to be dismissed from service was granted. It was explained that the female juror’s father had passed away overnight. There were no objections from either side to allow the woman to be with her family at this time, with the condolences of all involved in the proceeding.

The defense began its case at 5:45 p.m. Wednesday with three witnesses: lodge member Stuart Kuser; Deaver’s son’s girlfriend Amanda Clem; and Deaver’s boyfriend of 17 years Ashby Spiker.

Kuser called Deavers “a nice lady”.

Clem and Spiker testified to being with Deavers at the house they shared between 2:45 p.m. and after 9 p.m. on July 3, 2015, when Deavers got the call from Front Royal Police that the VFW Lodge alarm had gone off.

At 6:05 p.m. Wednesday after those witnesses testified, the defense team of Jason Ransom and Jonathan Silvester told the court it might be an opportune time to adjourn till the following morning.

Fire damage to the VFW Post 1860 headquarters /File photo

The prosecution case focused on two unexpected visitors to the lodge the morning of the fire on July 11, 2015, who encountered Deavers and the late Billy Rose as a bathroom fire was breaking out and the lodge smelled of smoke; first responders, fire officials who investigated the scene and two Department of Alcohol, Tobacco and Firearms (ATF) forensic experts brought in to consult on the investigation. Those experts were forensic financial auditor David Clemson and Senior Electrical Engineer Michael Keller. Both were brought in by county and town officials to assist in their investigation of the fire.

That the prosecution considered his Wednesday testimony crucial was indicated by the first 15 minutes of ATF Electrical Engineer Michael Keller’s testimony being spent establishing his credentials to be declared a prosecution expert witness.

Keller countered the defense theory that an uncontrolled electrical short circuit in the old building’s old, perhaps never inspected electrical wiring was the source of the fire. Over nearly 2-1/2 hours of testimony – some of it contentious sparring with defense co-counsel Ransom – Keller testified to his belief that electrical wiring in a utility closet in a section of the building exhibiting the worst fire damage was not the source of the fire.

During direct examination by Assistant Commonwealth’s Attorney Bryan Layton Keller referenced multiple post-fire damage photographs entered as evidence by the prosecution and his own observations based on extensive experience as an electrical engineer for first the Navy, the ATF and other sectors, to say there was “no evidence of electrical failure” as the source of the fire.

“Are you a licensed electrician?” Ransom began his cross-examination.

“No,” Keller replied.

Following a detailed exploration of voltage, amperage, blinking versus surging lights, estimates of arc flash temperatures from 1,500 to 10,000 degrees from sparking caused by a short circuit and the potential that boxed bingo records stored in the utility closet where the VFW Post’s two electrical boxes were located could have set the fire, Ransom and Keller faced off for a final exchange.

“What if an arc flash got to 10,000 degrees?” Ransom asked.

“I doubt it did – how long is the issue. You could have 20,000 degrees for 1/60 of a second, but it’s too brief to catch fire,” Keller responded of a likely scenario.

“It’s still possible?” Ransom pressed.

“Anything’s possible,” Keller admitted.

“You can’t say with 100% certainty that the fire was not caused by an electrical failure,” Ransom pressed his point.

“We found no evidence,” Keller began.

“The question is can you say with 100% certainty – it is a yes or no question,” Ransom interrupted.

“It is not a yes or no question,” Keller insisted.

“I have no further questions,” Ransom countered, ending the cross-examination.

As reported in Royal Examiner’s first trial story, the prosecution’s other ATF forensic expert witness dealt with financial aspects of the prosecution case. ATF forensic auditor David Clemson testified he was brought in as part of the arson investigation to seek out a motive as to why the VFW fire might have been intentionally set. His investigation eventually focused on Deavers for several reasons. Those were discrepancies in the V-Tab gambling takes and payouts Deavers was instrumental in as club manager and the large number of cash deposits with Deavers name on them into the bank account she shared with boyfriend Ashby Spiker.

In testimony Tuesday, Clemson cited 98 cash deposits with Deavers’ name on them totaling over $104,000 made to an account she shared with long-time boyfriend Ashby Spiker.

In arguing for dismissal Wednesday, Ransom noted that VFW official Scott Simmons had reported no suspicions of any financial issues at the lodge or with Deavers and that no one at the lodge had ever seen Deavers steal any money.

But on Wednesday the prosecution recalled FRPD Investigator David Fogle to make several points and introduce new evidence. Fogle testified that upon inspecting the post safe, which previous testimony indicated should have had about $7,000 in V-Tab or Bingo proceeds in it, had only three five-dollar bills in all the money bags in the safe.

Fogle also brought into evidence the melted remains of a red, plastic gas container seen by one lodge visitor just prior to the fire and by first responders near the door to the utility closet where the fire was deemed by investigators to have been the most intense.

Layton told the judge in arguing against dismissal of the prosecution case that Deavers stands accused of “crimes of deceit and stealth – it is rare you will see it happen. This has all the makings of an inside job – no forced entry (on July 3); no alarms went off.”

Layton pointed to a July 10 police interview with Deavers about the July 3 robbery-vandalism with a promised follow up to determine why the post’s alarm system hadn’t gone off – “Officers were breathing down her neck; the vets were coming in that night to be paid for some of the V-Tab winnings – will there be enough money to do it? The only conclusion is it all ties to together,” Layton asserted of the prosecution case.

And on Wednesday, March 6, the court agreed that the case should proceed to a decision by the jury after all the evidence is presented.

And after another day or two of defense testimony and anticipated prosecution rebuttal, it will be up to all but one of the nine-woman, four-man jury pool to come to a conclusion on whether the prosecution’s circumstantial evidence case against Leslie Rose Deavers has enough substance to gain a conviction on all or some of the charges against her.