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The amount of your income tax deduction depends on the following: your contribution base; the value of the gift itself; whether the charity is a public or private charity; whether the gifted property is a capital gain property or an income producing property; and whether you have other charitable deductions.
Let’s examine the rules.
Your “contribution base” is your adjusted gross income, not including any net operating loss carry-backs. Your current year deduction is at a minimum limited to a certain percentage of your current contribution base (discussed below).
Such percentage depends on whether the charity is a “public charity” or a “private charity,” and whether the gift is cash, “capital gain” property or “ordinary income” property (see below). Additional complex limits may apply if other charitable deductions are taken that may further lessen the deduction.
The IRS requires records be kept for gifts over $250. Gifts over $5,000 require appraisals. Determining the value of the gift can be difficult. For example, a gift of any artwork (e.g., painting or sculpture) or collectible (e.g., coins, stamps, etc.) requires a “qualified appraisal performed by an independent, qualified appraiser.”
A qualified appraiser is someone with the relevant expertise and professional credentials under IRS regulations. The appraiser must be someone independent of the donor.
Tax exempt organizations are either “public charities” or “private charities.” They are exempt from income tax on their receipts, except for unrelated business income. Gifts to “public charities,” however, are subject to a 50-percent limitation on deductions on gifts of cash, “ordinary income” property and a 30-percent limitation on “capital gain” property (discussed below); whereas private charities have a 30-percent limitation on gifts of cash capital property or “ordinary income property” and 20-percent for gifts of “capital gain” property.
The deduction for any “ordinary income” property is limited to your original purchase price and not its value at time of giving. The foregoing percentages apply to your contribution base to limit how much of the gift’s value or purchase price, as relevant, you may deduct in the current year of the gift. Any excess is carried forward for five years.
Public charities are those charities that either receive part of their support from the general public or distribute all of their receipts in their charitable operations each year. Examples are churches, schools, hospitals, and private operating foundations that provide direct support to the public (e.g., food banks). Private charities are all other tax exempt organizations. Examples are VFW’s and fraternal societies (see IRS publication 78).
Capital gain property is property you hold for long-term appreciation (i.e., more than one (1) year), and not property that you made yourself or that you purchased as inventory for resale. For example, artwork you purchased and held for more than a year is capital gain property. But, that same artwork in the hands of the creative artist is ordinary income property.
Furthermore, when gifting “tangible personal property” (i.e., artwork not produced by the donor) such gift must be intended to be “related to the purpose or function for which the charity is tax exempt.”
For example, giving your “stamp collection” to a university intending for it be studied by students learning engraving would qualify as a gift related to the university’s tax exempt function. If, however, the collection were donated with the intention that it be sold by the university, then the value of your gift is reduced to how much you paid for the property.
The above is a very simplified glimpse into the complexities of charitable tax deductions. Donors must carefully consider all of their annual charitable deductions together because they will impact how much of each charitable gift may be deducted. Lastly, proper valuation of the gift is crucial as otherwise the deduction may be lost entirely.
Dennis A. Fordham is an attorney licensed to practice law in California and New York. He earned his bachelor's degree at Columbia University, his juris doctor at the State University of New York at Buffalo, and his LL.M in taxation at New York University. He concentrates his practice in the areas of estate planning and aspects of elder law. His office is at 55 First St., Lakeport. He can be reached by e-mail at dennis@dennisfordhamlaw , com or by phone at 707-263-3235.
Defense attorney Victor Haltom called Dr. William Chilcott, a forensics engineer who specializes in small boat accident reconstruction, and sailboat owner Mark Weber of Willows to the stand in the defense of 41-year-old Bismarck Dinius.
Dinius was at the tiller of Weber's sailboat, the Beats Workin' II, on the night of April 29, 2006, when it was hit by a powerboat driven by Russell Perdock, an off-duty sheriff's deputy.
District Attorney Jon Hopkins is prosecuting Dinius for felony boating under the influence causing great bodily injury because Dinius allegedly had a blood alcohol level of 0.12 and the sailboat's navigation lights were alleged not to have been on.
Hopkins argues that those factors led to the proximate cause of fatal injuries for Weber's girlfriend, 51-year-old Lynn Thornton, who died three days after the crash.
Chilcott, who had worked for the District Attorney's Office on a fatal boat collision more than a decade ago, has extensive engineering training and is a sailor and boater himself.
He worked on safety standards for boats, improving life jacket design to protect the heads of race boat drivers. Along the way, he also became associated with Richard Snyder, now a retired engineer from Mercury Marine, who Hopkins had called to testify on Tuesday.
Chilcott has his own company, Marine Testing Co., to look into crash causes. “I tried to retire for the last 11 years,” he said. “The phone keeps ringing.”
The same was true for this case. When Chilcott first became involved, he was called by an insurance company investigator, within days of the crash. Under Haltom's questioning, Chilcott explained that he determined the angle of impact, noting a propeller cut on the sailboats starboard quarter was a “key landmark.”
“At that split second we know where each boat was relative to each other,” he said.
Chilcott also conducted a “needle slap” examination of the Baja powerboat's gauges, using a black light to try to detect phosphorescent paint left by the needles. He found none.
State Department of Justice criminalist John Yount testified last week that he also had done a needle slap examination. He used a low angle white light and also didn't detect needle slap marks.
Snyder had testified on Tuesday that marks on the sailboat's knocked-down mast were propeller strikes from the Baja. But Chilcott disagreed.
“Whatever put that on came from the front going to the back,” he said, while the crash took place with the powerboat coming from the back to the front.
He said the propeller also couldn't speed up and slow down as it would have needed to do to leave strikes in the distance apart show by the marks. The propeller would have needed to go the exact opposite of the axis of the mast to make the depth of cuts, and there was an “astronomical” probability of that happening.
“This looks very much to me like 'recovery rash' due to its variation,” he said. Recovery rash is damage done after a crash, usually when a vessel is being towed.
He said the other materials on the mast was not gel coat from the Baja's underside, but rather resembled plastic or paint.
Chilcott also disagreed with another key prosecution witness, Department of Justice criminalist Toby Baxter, who testified earlier this week regarding his tests on the sailboat's stern light bulb's filaments. Baxter said he believed the sailboat's stern light was off when the crash occurred.
A wave pattern in the stern light filament was typical of “lateral loading while hot,” said Chilcott, noting he was talking about the light being thermally hot rather than electrified.
He said that knowing the difference between alternating and direct current, which Baxter said he didn't know much about, was important.
Chilcott said he believed the sailboat's electricity was cut when the powerboat first hit it, which is why there would be signs of a “cold break,” leading to the conclusion that the lights had not been on at all.
“Bottom line, was this filament recently heated shortly before the breakage?” Haltom asked.
“My opinion is, yes,” said Chilcott.
Chilcott said Baxter's experiments of slamming a two by four board with a lamp fixture attached to try to show stresses and filament breakage “totally lacked scientific validity,” because they didn't use readily available instruments to track the g-load or do the slamming, which a person can't precisely each time.
Boat rules and responsibilities emphasized
Facing the jury, Chilcott then explained boating rules and who has responsibility for watching the 360 degrees around the vessel.
Because the sailboat was hit from behind, Chilcott emphasized, “The rule in overtake is, that the overtaking boat must stay out of the way of the boat being overtaken.” The boat being overtaken can do anything it wants and the overtaking vessel must stay away. Both boats have an obligation to watch portions of the 360-degree area around the vessel.
Haltom asked Chilcott if, in high velocity collisions, there is sometimes jostling of toggle switches. Chilcott said he's dealing with a boat crash case in Tyler, Texas, right now where the switch covers were completely knocked off.
The master of the boat usually is the owner except on larger vessels, Chilcott said. It's the master's duty to direct everything that's done on the boat, with the crew being an extension of the master's capabilities.
Three thing make any sailboat go – wind, sail setting and helm control, said Chilcott. “The master is the only one sailing the boat from a command position.”
Is the blending of shore lights and boat lights and issue? Haltom asked. Chilcott said it is, with a 10-watt all-around light a mile away and a 75-watt shore light from a house able to look the same. Approaching a boat from the rear, it would be easy to see a boat light and think it was on shore. “That's the reason why we have safe speed as one of the rules.”
When asked about Snyder's statement on the stand that he had driven his powerboat 60 miles per hour at night, Chilcott said he wouldn't do it.
Haltom had Chilcott go over inland navigation rules, from lookout to visibility to other responsibilities, including overtaking and crossing, and proceeding with caution to avoid collision.
Rule 18 states, “A boat under power will stay clear of a boat under sail.”
Chilcott said Perdock's powerboat did not stay clear of the sailboat.
During cross-examination, Hopkins also questioned Chilcott about boating rules, and looked closely at the visibility rules under Rule 13.
“There's a difference between being visible and being seen,” Chilcott said.
Hopkins suggested that, in other words, you can't close your eyes. Chilcott replied that if you don't see something, it doesn't lessen your onus or responsibility. Boaters must watch out for unlit objects, like logs and derelict boats, and can't proceed in a manner that endangers life, limb or property.
What if a sailboat wasn't lighted, as it's supposed to be between sunset and sunrise, and it's hit by another boat? Hopkins asked.
“That's a complete hypothetical,” Judge J. Michael Byrne pointed out.
Quoting federal case law, Hopkins referred to a ruling in which a federal court said a sailing vessel that wasn't displaying its lights in one case was “virtually invisible.”
If a vessel isn't displaying its lights, is it not in the sight of another vessel? Chilcott said said it wasn't.
If the sailboat did not have its lights on and was virtually invisible to a powerboat, would the visual rules apply? Hopkins asked.
Haltom objected. Byrne replied, “Then we're going to get into sight issues,” said Byrne. Hopkins said they already were. Byrne sustained, telling Hopkins he had plenty of other issues to question.
Hopkins asked if cabin lights can be a substitute for navigation lights. No, said Chilcott.
He then questioned the lookout rule, and asked if there is a responsibility of overtaking rules applying if a boat isn't lit. Chilcott said the onus is on the overtaking vessel.
Hopkins asked if there are a series of horns and signals used for crossing the path of another vessel. “Now you're mixing maritime ocean rule with inland navigation rules, and the inland navigation rules are what apply here. Those in the ocean don't,” said Chilcott.
Based on a federal court's interpretation, Hopkins questioned Chilcott about if he disagreed that a lookout must “methodically scan” all 360 degrees around a vessel. “I don't disagree or agree with the federal courts. That's not my job,” Chilcott said.
In California law, who is the operator of the boat? asked Hopkins. Chilcott said the master. Hopkins quoted law which said the operator is the person at the helm.
Is an operator who doesn't look out for someone crashing into them, from the back or not, in violation of the rules? Hopkins asked. Not if the crash comes from the rear, said Chilcott.
What if the sailboat doesn't have its required lights? Hopkins continued. Chilcott said that's a different situation and not, in his opinion, what occurred in this case.
Byrne asked where the speed comes into play in overtaking a boat. Chilcott said the boat's operator has to operate so they are able to avoid a hazard.
Hopkins referred to testimony given earlier from Jim Ziebell, who had helped race the Beats Workin' II during the Konocti Cup race and stated he was the helmsman. Chilcott said Ziebell wouldn't have been the master.
“If you were coming up on another vessel and you are to their starboard side and they are going the same direction you are, do you sound a signal to let them know you're coming under inland navigation rules?” asked Hopkins.
In theory, yes, said Chilcott, but it's usually not done in a small boat. Once boats have communicated by horn, they can't say they aren't aware of the other's presence.
During his testimony, Chilcott stated, “I think there was gross failure to apply to the rules and there have been no consequences,” referring to Perdock.
Hopkins said it sounded like he had a position in the case that went beyond that of an expert, to which Haltom objected. Byrne sustained the objection.
“Do you have an opinion as to who should be prosecuted in this case?” Hopkins asked.
“I have an opinion as to who violated the rules,” Chilcott responded.
Hopkins asked if that colored how Chilcott looks at the case. Chilcott replied that the rules are clear.
Chilcott explains evidence, disputes findings
Under Hopkins' questioning, Chilcott explained that he went to inspect the boats after h was first hired by an insurance company. When he asked to see the lights, the sheriff's office told him he couldn't.
“They didn't say why, they didn't describe it as evidence, they just said they had removed them,” he said.
Chilcott said he was concerned about the evidence. “Removal of lights can be a very delicate situation if they don't know how to remove them,” said Chilcott, who has seen other law enforcement agencies destroy lights they remove.
Hopkins questioned Chilcott about a January 2008 report he submitted on the crash, which incorrectly listed 2007 on it, which Chilcott attributed to “geezerhood.” Hopkins asked if a person with a PhD in engineering and physics would be less likely to make that mistake than a police officer. Chilcott said he couldn't answer.
When Hopkins asked if everyone was subject to such a mistake, Chilcott replied, “I don't speak for all of us.” He added, “My wife never misses a date so it's not common for her,” which got laughter. “I can join you on that one,” said Hopkins.
Chilcott said his analysis of the lights didn't include the switches. “Having switches in a given position is meaningless as far as a clinical analysis,” he said, as it's common for switches to be flipped on and off after a crash in order to check them.
In the case of a Tyler, Texas, boat crash he's investigating, the switch covers were knocked off. Law enforcement picked them up, replaced them and tried turning on a switch, which fried the filament, Chilcott said.
He said criminalist Toby Baxter'e experiments on g-load – conducted by slamming a two by four with a lamp attached to test filament reaction – has “nothing reproduceable about it.” He said instruments are readily available that could have been used. “I wouldn't use that fashion of testing for anything,” Chilcott added.
Hopkins also questioned why Chilcott was critical of criminalist John Yount's tests of the powerboat's instrument needles for signs for needle slap. Chilcott didn't find needle slap with a black light, so why should Yount have done the same test?
“I was worried about spoilation of evidence,” said Chilcott, explaining that, when you take face off a dial, “frequently you alter things.”
He added, “It would have been inappropriate for me to have done that.”
Hopkins asked Chilcott about water drop experiments he had done, which involved dropping people out of speeding boats to check their physiological reaction. The test eventually was incorporated into astronaut training.
Chilcott said he's been dropped out of a boat at 84 miles per hour. He's also been out of a hydroplane at 120 miles per hour, “but that was not anticipated nor expected,” which the court reacted to with laughter.
He said he did his PhD thesis on marine safety training and its sources. He said he was astounded at the lack of such training, noting the Boy Scouts did the most, but the Coast Guard wasn't training its own people well.
“It's greatly improving,” he said, recalling a widespread “national ignorance” of safety procedures.
Following the lunch break at 1:30 p.m. the court held a 15-minute hearing on Haltom's request for Perdock's personnel file, based on an in-chambers discussion Thursday in which it was revealed that Perdock was the subject of an internal affairs investigation. For a full account of that hearing and the motions, see Defense attorney seeks sheriff's captain's personnel file.
Cross-examination lasts until late Friday
Once court reconvened for the afternoon at 1:45 p.m., Hopkins continued his cross-examination of Chilcott, which lasted two more hours.
They discussed disconnected wires which Chilcott found and which he believed were for the stern light. Chilcott didn't test the wires to make sure of where they were, insisting that their size and appearance was consistent with his conclusion.
Discussing a picture of the powerboat, Chilcott said its rub rail came into contact with the sailboat's mast. He said the rub rail had a mark where it had come into contact with the mast, and the mast had a crease which approximated the rub rail's shape.
He believed the mast could have snapped off at any time in the crash. “It had to be a significant shock load because it was strong enough to pull the halliard out of the track.”
The halliard is a line used for raising and lowering the sail. Chilcott surmised that the boat went between the mast and sail, pulling out the halliard.
Chilcott maintained the marks on the mast couldn't have come from the powerboat's propeller, which would have had to experience radical changes of speed in 1/50th of a second, which he said “is not physically possible.”
He said Hopkins kept saying the marks happened during the crash, but “I see nothing which tells me they had do.”
Hopkins questioned Chilcott's findings on the filaments. “Under the microscope I could see variations in the coil and a wave which are typical of hot filament response,” Chilcott said.
Looking at a picture of the damaged boat and its smashed fiberglass, Chilcott said that shows how it ended up, “It doesn't tell you all the dynamics of how it got there.”
Returning to photos of the filaments, Hopkins questioned Chilcott again about the spacings and shape in the filament. “It has the same characteristics that we've already explained a half a dozen times,” said Chilcott. He made similar remarks signaling his impatience with the repetitive questioning throughout the afternoon.
Referring to a transcript of Chilcott's testimony from May 22, 2008, during Dinius' preliminary hearing, Hopkins noted that, at that time, Chilcott hadn't noted that the coil's stretching could be partially due to the manufacturing process, which he stated Friday. Nor did he mention that in his January 2008 report.
Showing Chilcott another filament photo, Hopkins asked why there weren't melted blobs on the ends of the tungsten filaments. Chilcott said that doesn't happen in direct current although Baxter looked for it. What led Chilcott to believe Baxter expected to find it? “He said so,” said Chilcott.
Haltom interjected. “This is getting repetitive, and asked and answered,” he said.
“I would like to get this witness done today,” said Byrne.
Hopkins continued with his questioning, asking Chilcott if he agreed the filament breaks were due to cold shock, which mean they were not electrified at the time of the crash. Chilcott said yes, but cautioned that a cold break is a vague definition. Such lights, when they're turned off, don't get cold instantly, he said.
Hopkins asked if the tungsten alloy cools in a millisecond. “You're misstating it totally,” said Chilcott, explaining that cooling begins within a millisecond after the electricity is cut.
Weber: The lights were on
With just 15 minutes left before court was due to stop for the day at 4 p.m., Chilcott was excused and Mark Weber – who had waited in the court hallway all day while waiting to be called – made his way to the stand.
Weber said he and Dinius had known each other for close to 10 years, and always saw each other at the annual Konocti Cup.
During the cup race on April 29, 2006, Weber raced the Beats Workin' II, with Jim Ziebell and Bill Pickering as part of his team. Dinius was on another boat.
After the race, they went to Richmond Park Bar & Grill where he met up with Thornton, his significant other. They saw Dinius there later that evening.
There was wine tasting, dinner and socializing, with the crowd working its way down to the docks. Weber said the beer cans found on the sailboat were a result of people drinking nearby and throwing their empties into the boat.
Later that evening, Weber and Thornton were joined by Dinius, Ed Dominguez and Zina Dotti for a cruise across Konocti Bay. Thornton had met Dominguez and Dotti earlier that way while playing golf.
Sitting at the tiller, a person can't see the toggle switch panel, said Weber.
But he had no doubt the lights were on when the sailboat left for its cruise.
“I remember distinctively saying, 'We've got lights, let's go',” Weber said.
After they were under way, Weber said he turned on the cabin lights after he put up the sail. He was sitting near Dinius at the back of the boat with Thornton sitting slightly forward of Dinius.
Weber said he manned the sails as they went on a straight port tack three quarters of a mile before coming back on a starboard reach.
He said he couldn't remember how long it was before the crash took place.
“I remember Lynn asking me to go down and fix the radio,” he said, explaining it had a lot of static.
So he went down into the cabin. When he emerged a short time later, the crash had taken place, and people were on board, doing cardiopulmonary resuscitation on Thornton.
“Would there have been any reason for someone to turn off the lights?” Haltom asked.
“Absolutely not,” Weber replied.
Later when he was on shore, Weber said he saw Perdock. “I yelled at him,” Weber recalled, because someone had told him Perdock was stating their lights weren't on. He shouted an expletive at Perdock and said, “Our lights were on.”
Nearby, paramedics had Thornton on a picnic table and were working on her. Weber said he didn't remember where Dinius was.
After only 10 minutes of questioning Haltom said he had nothing further.
Byrne asked Hopkins if he wanted to get started in cross-examination. “Let's call it a day,” Hopkins said.
After the jury had left, Haltom said he wanted to call Dominguez and Dotti Tuesday morning after Weber.
“Hopefully the cross(-examination) of Chilcott is not indicative of things to come” when it comes to length of time to deal with witnesses, Haltom said.
Hopkins said he believed they could finish questioning Weber, Dominguez and Dotti on Tuesday morning.
Haltom said he plans to call Perdock and Byrne suggested scheduling Perdock to appear at 11 a.m.
Testimony resumes at 9 a.m. Tuesday.
Witnesses so far, in order
Day one (following opening statements): James Ziebell, sailor, helped skipper Beats Workin' II in Konocti Cup; Doug Jones, past commodore of local sailing club; Anthony Esposti*, fisherman; Colin Johnson*, fisherman.
Day two: Lake County Sheriff's Det. Jerry Pfann; Andrea Estep*, phlebotomist, St. Helena Hospital-Clearlake (formerly Redbud Community Hospital); former sheriff's Sgt. James Beland; LaDonna Hartman, phlebotomist, Sutter Lakeside Hospital; retired sheriff's Sgt. Mark Hoffman; California Department of Justice criminalist Gregory Priebe, Santa Rosa lab; California Department of Justice criminalist Gary Davis, Sacramento toxicology lab.
Day three: Jennifer Patterson, witnessed crash from Holdener property on lakeshore; Gina Seago, witnessed crash from Holdener property on lakeshore; Jordin Walker, passenger on Russell Perdock's powerboat; James Walker*, high school friend of Perdock's and passenger on his powerboat; sheriff's Deputy Mike Morshed*; sheriff's communications operator Kimberly Erickson; sheriff's Boat Patrol Deputy Lloyd Wells*.
Day four: Craig Woodworth, the District Attorney's Office's acting chief investigator; John Yount, criminalist with the California Department of Justice's Santa Rosa lab; sheriff's Det. Jerry Pfann; Boat Patrol Supervisor Sgt. Dennis Ostini; Lt. Charles Slabaugh of the Sacramento County Sheriff's Office.
Day five: Richard Snyder, retired Mercury Marine engineer; Lt. Charles Slabaugh of the Sacramento County Sheriff's Office.
Day six: Lt. Charles Slabaugh of the Sacramento County Sheriff's Office; California Department of Justice criminalist Toby Baxter; retired Sgt. Wes Frey, Lake County Sheriff's Office; Jeff Holdener, who responded to the crash scene via boat; Stephanie Green, friend of Weber and Thornton, who saw them leave in the sailboat a few hours before the crash; Craig Scovel, friend of Perdock's who assisted in taking his boat and trailer to the sheriff's Boat Patrol building.*
Day seven: Craig Woodworth, the District Attorney's Office's acting chief investigator. The prosecution rested.
Day eight (Defense begins presenting case): Dr. William Chilcott, forensics engineer; Mark Weber, owner of the Beats Workin' II and Lynn Thornton's longtime boyfriend.
* = Indicates a witness subject to recall at the request of the defense.
E-mail Elizabeth Larson at
If you have ever done any of the above projects, you have dealt with contractors. I know how it works, I was one myself. No matter how you schedule a project, be it small or large, it always takes more time to finish. There is always something else that has to be done before everything is done.
That’s what is happening at the Soper-Reese. We were supposed to have all of our next phase of construction done by the end of June. We almost made that date. Then we looked at finishing in July. Now we are in August and we are still doing outside work. But we do have some wonderful news.
There are new outside doors and steps along Martin Street with ramps to make it easier for exiting by wheelchairs. New ramps inside make it easier to access the stage and emergency exits. We have more lighting capacity for better effects on stage. The back curtain has been fully rigged with a valance for a finished look. The stage is now completed from wall to wall with handrails installed for better safety. These great improvements make your theater experience even better.
We reopened our doors in July to the public with a memorial for Joan Holman, the well respected advocate to the Arts in the county. There was a huge turnout for this well loved actress and tireless supporter of the Clear Lake Performance Arts symphony.
Mid month we had a wonderful turnout for the first annual Lake County Singer Songwriter’s Festival produced by radio station KPFZ. Local talent was showcased for a Sunday afternoon of entirely original music.
And we have new shows coming this month all of them are sure to be entertaining.
The Golden Follies are returning with a brand new show. These very talented ladies will be singing and dancing to Broadway show tunes this weekend along with special stars, the “Ladies of the Lake” dance ensemble. There will be two shows this year for the Follies, Aug. 8, at 7 p.m., and Aug. 9, at 2 p.m.
The Taste of Lakeport will be on Aug. 21 with the entire downtown of Lakeport participating in a wine and food extravaganza. Look for the Soper-Reese and stop by to say hello.
The young people who brought us “The Complete Works of Shakespeare – Abridged,” are coming back with a new show, “The Great Books – Abridged” (all the books you were supposed to read in high school but were afraid of trying). It will be a very physical, crazy, high energy romp through the library shelves on Aug. 30 at 2 p.m.
The Soper-Reese is an all-volunteer venue and as such, we are always looking for new volunteers to help out so duties at the theater never become a burden for anyone. If you are interested in becoming a volunteer, please come to our next performance and fill out a volunteer form. You can also call us and we will be happy to talk to you. Call 707-263-0577, the Soper-Reese, your community theater.
Bert Hutt is artistic director of the Soper-Reese Community Theater.
At the request of Treasurer Lockyer, Congressman Thompson introduced H.R. 3525, the “Private Activity Bonds for Clean Energy Projects” bill, which would add additional categories of tax-exempt private activity bonds to spur investment in clean energy technologies.
“We need to act quickly to change our methods of energy consumption,” said Congressman Thompson. “Failing to act now will cost us trillions of dollars, both in spending on foreign oil, and on combating the effects of climate change. By making it easier for local governments and private entities to finance alternative energy projects, we can help move our economy towards a greener future.”
Tax-exempt bond financing is a low-cost method of financing a project or manufacturing facility, with interest costs that are lower than commercial loans.
By granting private entities access to this low-cost financing, the bill will help stimulate investment in clean energy projects such as solar installations, creating new green jobs and rebuilding our economy.
“Expanding the benefits of tax-exempt bond financing to privately-developed renewable technologies is a win-win for California’s environment and economy,” said Lockyer. “We’ll spur green projects that produce alternative energy sources and stimulate the economy by creating green-collar jobs.”
Thompson’s bill would amend the IRS code to add additional categories of tax-exempt private activity bonds for renewable energy, energy efficiency, demand side management, energy storage, electric transmission, smart grid, water conservation, zero-emission vehicle projects and manufacturing facilities.
Additionally, the legislation would allow private companies to utilize both tax exempt bonds and federal tax credits for these projects.
The discussion was held at Project Open Hand, a charity serving meals to those in need.
Project Open Hand has dedicated themselves to carrying out their mission in a sustainable fashion, and has installed solar panels on their roof to power their facilities, saving over $12,000 per year.
The California Highway Patrol reported that Amy Duschka, 21, was injured in the crash, which occurred just after 5 p.m. Wednesday.
CHP Officer Steve Tanguay said Duschka was driving her 2004 Kia Rio southbound on State Route 53, south of State Route 20, at an unknown speed.
Tanguay said Duschka made an unsafe turning movement and lost control of her vehicle. The Kia went off of the roadway, hit an embankment, and overturned.
As a result of the collision, Duschka's left arm was severely injured, Tanguay said. Duschka was transported by REACH to Santa Rosa Memorial Hospital.
Tanguay said the collision is still under investigation by Officer Rob Hearn.
Drugs and alcohol are not considered to be factors in this collision, Tanguay said.
View Konocti Bay and Dinius crash in a larger mapView Larger Map
THIS STORY HAS BEEN UPDATED.
LAKEPORT – Less than an hour after testimony in a fatal sailboat crash began on Thursday morning, the prosecution rested its case without calling the driver of a powerboat involved in the collision three years ago.
Shortly before 10 a.m., District Attorney Jon Hopkins announced to the court, “The people rest,” in the case against 41-year-old Carmichael resident Bismarck Dinius, on trial for felony boating under the influence causing great bodily injury.
Hopkins had just finished entering evidence and questioning one of his investigators, Craig Woodworth, about tests on the electrical lighting of the Beats Workin' II, the sailboat hit from behind by a powerboat driven by Russell Perdock, an off-duty chief deputy with the Lake County Sheriff's Office, just after 9 p.m. April 29, 2006.
Dinius was at the tiller of the Beats Workin' II, owned by Mark Weber of Willows, which Hopkins alleges was under way without running lights. The prosecution also alleges Dinius had a blood alcohol level of 0.12 at the time of the crash.
Weber's girlfriend, 51-year-old Lynn Thornton, sustained injuries in the crash that took her life on May 2, 2006.
Perdock was scheduled to come to the stand on Thursday as a prosecution witness, according to statements Hopkins made at the end of court on Wednesday.
Defense attorney Victor Haltom has argued Perdock, not Dinius, was responsible for the crash.
Haltom alleges Perdock was driving too fast on a very dark night – witnesses have estimated Perdock was driving anywhere between 35 and 50 miles per hour – and therefore violated safe boating rules by driving faster than was safe for conditions.
But Hopkins surprised the court by resting and not calling Perdock.
He offered no reason in court for the decision, and declined to explain the decision later out of court.
“It's not something I would want to comment on,” Hopkins said in a brief interview with Lake County News on Thursday afternoon.
The decision not to call Perdock caught Haltom unprepared. Haltom said he had expected Perdock to be on the stand for much of Thursday before Haltom would begin calling his own witnesses, who were told to be ready for testimony on Friday.
After court, both Dinius and Haltom said they were caught off guard by the turn of events.
“I was stunned. Everyone in that courtroom was stunned” – with the exception of Hopkins, Haltom said.
Haltom said he plans to call Perdock to the stand.
Despite the change in plans, Dinius was feeling optimistic at the end of the prosecution's case.
“I'm feeling good,” he said. “I'm feeling very confident.”
District attorney investigator describes testing lighting
Hopkins had started the day by calling Woodworth, a former police officer and certified mechanic who is now an investigator with the District Attorney's Office.
He recalled that other investigators had handled the crash case initially. In April of 2008 he was brought back from a computer crimes task force to fill in as acting chief investigator while another investigator was on medical leave.
Woodworth assigned Investigator John Flynn to assist the deputy district attorney who was prosecuting the case. Around the end of May or the first of June of this year, Woodworth became involved in the investigation.
On the stand Woodworth explained that he had experience investigating traffic collisions as a police officer, although he hadn't previously done a boat crash. He also was a mechanic for several years before getting into law enforcement, and as a hobby builds drag race engines.
He inspected the boats this summer, researched the powerboat's motor and got in touch with Richard Snyder, an engineer who retired from Mercury Marine and who testified in the trial on Tuesday.
Woodworth also examined a GPS device that had been on the sailboat.
“How did you discover there was a GPS?” Hopkins asked.
“You told me,” replied Woodworth.
Haltom moved to strike the comment as hearsay but Byrne allowed it to stand.
Woodworth said he contacted Det. Jerry Pfann of the Lake County Sheriff's Office to see if there was a GPS unit, then he went online to download an owner's manual and discovered the device had a feature that would track movements.
The next step was getting a search warrant to collect the data. The GPS in question was an older unit which has been discontinued, and Woodworth said he couldn't do a “data dump” but had to turn it on and photograph its readings.
Before he could get the device operating, he had to remove its dead, corroded batteries, clean it up and put in new batteries. He was able to get GPS coordinates, which he plotted on a map to show a route the boat had followed.
However, the device's dating function wasn't accurate, he said. The last point it logged a location at was Richmond Park Bar & Grill. Testimony has been provided during the trial that the Beats Workin' II left from the restaurant to take its nighttime cruise across Konocti Bay, where the crash occurred.
On June 8 Woodworth went to view the sailboat and powerboat, taking photos of them and looking at the sailboat's cabin lights to determine if they were operational.
Haltom asked to question Woodworth's qualifications. Woodworth explained his various licenses and automotive repair courses. Then Haltom asked if he knows the difference between direct current and alternating current. Woodworth said he had training in direct current but none in alternating current.
Based on those responses, Haltom objected to Woodworth's testimony, saying the difference between the two currents is “a fairly fundamental basic electrical principal.”
“Actually, it's not,” said Hopkins.
Byrne allowed the questioning but said he would sustain the objection if it became more in-depth.
When Hopkins resumed his direct questioning, he asked Woodworth about testing the various lights to see if power was going to them. One of the lights in a bow storage area of the cabin had a “sticky switch,” which Woodworth said isn't uncommon. He said he believed it was on although the switch didn't appear to be working properly.
During a brief cross-examination, Haltom asked Woodworth if he was friends with Perdock. He said no. What was Flynn's relationship with Perdock? Haltom asked. Woodworth said they were both members of the Masonic Lodge in Clearlake.
Haltom showed Woodworth a picture of the Masonic Lodge's members. Woodworth said he had never seen the picture before, but he recognized Flynn in it.
Regarding the GPS readings, Woodworth stated in court that he got the readings off the device on July 8.
“Had anybody in this case attempted to get those GPS coordinates, say, back in the summer of 2006, would they have been able to get accurate information out of the GPS device?” Haltom asked.
“It's possible,” said Woodworth.
Did no one at the District Attorney's Office or the Lake County Sheriff's Office attempt to get the information? Haltom asked. Woodworth said he was not aware of such attempts by either agency.
Woodworth sat in with Flynn on an interview with Perdock held this past April 27 at the District Attorney's Office. When Haltom asked if it was in June that the District Attorney's Office first endeavored to look at the cabin lights, Woodworth said yes.
On redirect, Hopkins asked if the cabin lights appeared to be in the same condition as they would when the sailboat was first stored. Haltom objected on the basis of lack of foundation, and Byrne sustained.
Were any of the lights taken apart? Hopkins asked. No, Woodworth said, getting another objection from Haltom, which Byrne also sustained.
Did the lights appear to be in a whole state? Hopkins asked. Woodworth said all of them did except for one he had found on the floor, where it appeared to have been knocked down by the collision.
If the GPS was turned on, it wouldn't record? Hopkins asked. No, said Woodworth.
Evidence, stipulation and a surprise
After Woodworth left the stand shortly before 10 a.m., Byrne suggested that it might be time to take a break before the next witness took the stand, because the witness was going to take a long time, he said, referring to Perdock.
Hopkins said first he wanted to introduce evidence, which both he and Haltom did.
Hopkins then entered a final exhibit, people's 80, that included Thornton's six-page autopsy report accompanied by a stipulation he and Haltom agreed on, that stated that Thornton was driven by Kelseyville Fire ambulance to Sutter Lakeside Hospital on the night of April 29, 2006.
“The parties stipulate that Lynn Thornton died as a result of injuries she suffered in the boating accident in this case, which occurred shortly after 9 p.m. April 29, 2006,” Hopkins said, reading from the document.
Thornton suffered head and neck injuries in the crash that were the cause of her death, which occurred on May 2, 2006, the stipulation stated.
The judge told the jury that, although he often reminds them that what the attorneys say isn't necessarily fact, “This is the one exception where both sides have agreed to a fact.”
After that, Hopkins stated, “The people rest.”
He then said, “It would probably be a good time to take a recess.”
After Byrne let the jury go for a break, Haltom said he had anticipated Perdock being on the stand all day, and he wasn't prepared to call any of his other witnesses.
“I could call Perdock,” he said.
Hopkins said that the trial is still on a good schedule even if they lost the afternoon.
Haltom asked if Perdock was available Thursday. Hopkins said he didn't know.
The prosecution and defense had an agreement to notice law enforcement and make them available to testify, said Haltom.
Byrne said that everyone had expected Perdock to be called, and he suggested that Hopkins find a way to make him available.
Defense moves for acquittal
The court took a morning recess, after which Judge J. Michael Byrne heard Haltom's motion for acquittal on the felony boating under the influence count.
Haltom argued that the court had failed to offer any evidence that Dinius was the person responsible for turning on the boat's lights.
“If he had no duty to turn on those lights there can be no proximate cause due to some failure to turn on the lights,” said Haltom. “That's No. 1.”
No. 2, said Haltom, was that eyewitnesses – including prosecution witnesses – have stated the lights were on.
Hopkins had presented witnesses who stated that they didn't see what Perdock's boat hit until after he hit it. But Haltom presented information about a 1902 ruling involving an 1899 collision in Chesapeake Bay, Virginia, between the steamship Richmond and the three-masted schooner, the George Clark.
The steamer was charged with failing to keep out of the schooner's way, “slacken her speed, stop or reverse, or to take any other precautions necessary and prescribed to avoid a collision, and that the collision was caused entirely and exclusively by the fault and negligence of the steamer's navigators,” according to the original opinion.
At the same time, the schooner was charged with having unskilled navigators and the failure “to have and maintain lawful lights, properly set and burning,” as well as proceeding at too rapid a speed and improperly changing her course.
Of four steamship officers interviewed in that case, only two testified to not seeing the light.
In that case the justices ruled, “The failure to observe a light cannot be said to disprove its existence.”
He also quoted another case, Clary Towing co. v. Port Arthur, which had witnesses testifying to seeing the lights burning on a boat when it left the dock shortly before a collision. The presumption in that case was that the lights continued burning until the collision.
“That presumption applies in this case,” said Haltom.
Hopkins argued that Dinius was under the influence and was the boat's operator, and that his failure to have the boat's light's on was the proximate cause of Thornton's injury.
The defense said the lights were seen on at dusk, but by the time of the crash it was pitch black, said Hopkins.
He said it's not like the “old time cases” Haltom quoted. In those situations, “It comes down to a matter of credibility on whether the lights were on or off on the boat and that's one of the factors that they were taking into consideration.”
While Hopkins hadn't read those cases, he said he'd be willing to bet there was more going on than the court simply concluding that the lights were on before the crash.
“The test here is whether we failed to present sufficient evidence to sustain a conviction on appeal,” Hopkins said.
He said he's presented six witnesses so far that saw the motorboat's lights clearly but didn't see what it hit. The fact that people saw lights on the sailboat 40 minutes earlier doesn't mean the lights were still on at the time of the collision.
He said the light panel is right there to see, “and those switches are off.”
“The matter has to be resolved,” said Byrne, and he believed that, ultimately, the case was for the jury to decide.
Byrne said he was concerned about the duty of turning on the lights. On Wednesday, Lt. Charles Slabaugh of the Sacramento County Sheriff's Office, who conducted the crash investigation and teaches classes on inland navigation rules, said turning on the lights was a responsibility shared by those on the vessel.
“There is evidence that Mr. Dinius was at the tiller by his own statements,” said Byrne.
Byrne ended by denying Haltom's motion.
Defense wants to call Perdock
Haltom indicated that he wants Perdock brought to court. “I'd like to take him as a hostile witness.”
Hopkins replied, “I don't think he's available today.”
Haltom said he wanted the jury told that they were expecting Perdock. Byrne said he wouldn't blame the district attorney before the jury, and in dismissing the jury told them simply there had been scheduling issues.
The judge asked if Perdock could be made available to testify on Tuesday. “I'll have to check,” said Hopkins. Byrne said he should be there.
Then, at Hopkins' request, Byrne, Haltom and Hopkins went into chambers for an on-record but confidential discussion on a case issue. Dinius himself remained in the courtroom, excluded at the judge's order.
When the attorneys emerged just over a half-hour later they offered no information on what has taken place behind closed doors. Court adjourned for the day just after 11:15 a.m.
Testimony is expected to resume at 9 a.m. Friday, when the defense begins to present its case.
E-mail Elizabeth Larson at