Scott Swanson
No charges will be filed against the operator of a personal watercraft that struck and killed a young boy at Foster Lake last summer, the county District Attorney’s Office has decided.
In the July 20 incident, Antonio Cassanova-Gonzalez, 23, of Salem, lost control of the machine, which plowed through a crowd of people in the swimming area at Lewis Creek Park, striking two children.
Zachary Maynard, 6, of Sweet Home, suffered skull fractures and died July 23 in a hospital, while his friend Kennedy Swenson, also 6, was seriously injured, including a broken clavicle, sternum and jaw. Those at the lake said Maynard tried to shield his friend from the impending collision when he was struck by the runaway watercraft.
The Linn County Sheriff’s Office conducted a “very thorough and careful investigation,” Senior Deputy District Attorney Ari Yardumian and Deputy District Attorney Jessica Cooney said in a letter dated Nov. 5 to Sheriff’s Detective Colin Pyle, reporting the DA’s decision.
The DA’s determination was that Cassanova-Gonzalez’s action did not meet the standard of “criminal negligence” in the incident, they said.
In a review of the facts of the case, the District Attorney team noted that Cassanova-Gonzalez had a boater education card and was familiar with personal watercrafts, though the one he was riding at Lewis Creek Park on the lake July 20 was “relatively new to him.”
Cassanova-Gonzalez was wearing a life jacket and had what is often referred to as a “kill switch” or e-stop attached to the jacket. The “kill switch” is designed to kill the engine should a rider fall off or is otherwise unable to shut off the machine in a normal manner, and can legally be attached to a life jacket, the DA team noted, though riders often attach them to their wrists.
“Just before losing control of the jet-ski, Antonio Cassanova-Gonzalez was stopped in the water,” the letter said. “There are some conflicting reports from witnesses describing the manner of his riding of the jet-ski. However, at the precise moment of the conduct that is subject to our analysis, there is no question that he was stopped in the water.
“He removed his life jacket in order to remove his shirt. As he did so, he placed the life jacket on top of the handles of the jet-ski. It would appear that the weight and manner in which the life jacket sat on the handle pressed the throttle down sufficiently to accelerate the jet-ski and throw off the rider. With the life jacket no longer on his person, neither was the e-stop, allowing the jet-ski to travel with no means of stopping it.”
The DA team said the personal watercraft traveled toward the no-wake area at the park, throwing Cassanova-Gonzalez off, and then running through swim area, striking Zachary and Kennedy.
Another boat picked up Cassanova-Gonzalez and brought him to shore.
The DA’s analysis noted that, after the accident, investigators found Cassanova-Gonzalez had no indications of intoxication or impairment.
“It is important to emphasize that Mr. Cassanova-Gonzalez was contacted by Deputy Craig Lyman, a senior deputy with years of experience investigating driving under the influence cases as well as a certified drug recognition evaluator,” they wrote. “No law enforcement personnel that came into contact with Mr. Cassanova-Gonzalez noted any intoxication or impairment. A subsequent blood/urine sample obtained from Mr. Cassanova-Gonzalez shows no illicit drugs or alcohol in his system.”
Sheriff Jim Yon said his detectives interviewed more than 80 people.
“We did an extensive investigation to pin down what happened,” he said. “I talked to a bunch of witnesses myself.”
He said the Gonzalez family was “tremendously helpful” in the investigation, even when they knew that Cassanova-Gonzalez could face legal charges.
“They did everything we asked that they do, they gave us everything we needed,” Yon said.
The DA’s letter noted that as well: “On the occasions when he was contacted, he inquired as to how the families were doing and exhibited appropriate concern. His willingness to speak to law enforcement assisted in a more prompt conclusion of the investigation.”
Explaining their decision not to charge the operator, the DA team noted that “despite the very tragic consequences, and our own deep sympathies to both families, as well as to those citizens that watched this tragedy unfold, we are required to view all the facts within the boundaries of what the law provides. The standard for a criminal charge would require that Antonio Cassanova-Gonzalez acted with at least criminal negligence.”
“The standard of criminal negligence requires that prosecutors prove that the accused “failed to be aware of the risk that death would occur (and) that fact would need to be proven beyond a reasonable doubt to a unanimous jury,” they wrote. “The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
They concluded: “With all that said, we must analyze whether the brief removal of his life jacket, which had the e-stop tethered to it, and placing it over the handles of the jet-ski, constituted Mr. Cassanova-Gonzalez failing to be aware of a substantial and unjustifiable risk that the jet-ski would accelerate in the manner that it did, throwing him off, and moving towards the children and families in the swim area, causing the death and injuries that it did.
“Did he fail to be aware of some risk that such a thing could possibly happen? Perhaps. But we are unable to say that such a risk was substantial. Nor are we able to find that his failure to be aware of such a risk was a gross deviation from the standard of care a reasonable person would exercise.
“Even if we could conclude that his failure to be aware of such a risk was at least some deviation from the standard of care that a reasonable person would exercise, we cannot establish that it was a gross deviation. And that is what the law requires in order for criminal charges to be brought.”
Yon noted that Yardumian likened the situation to one in which a driver unclasps a seatbelt to reach for something in the car.
“It just takes a second to make a mistake that has tragic consequences,” he said. “Mr. Gonzalez was riding a personal watercraft, he took off his life jacket and the life jacket hit the throttle. The emergency shutoff was connected to his life jacket. He made a mistake.
“This is one of those utterly tragic and sad things for all the families involved and for the community,” Yon said. “I’ve grown up going to Foster Lake. There won’t be a time out on the lake when I won’t look over and think of that incident. It’s so unbelievably sad that it happened. I was out there that day. In simple terms, that was awful.
“Just totally sad.”
The DA team acknowledged the impact of the loss after meeting with the families, they said.
“Zachary’s life will never be forgotten. It appears he touched the lives of many people in his short years of life. We wish all the best to Kennedy in her recovery.”