September 11, 2009

Fensler found not guilty of harassment
Charges stem from complaints of road condition
Jurors debated for about an hour before a verdict of not guilty was returned in the Don Fensler harassment trial on Sept. 3.

Fensler, a Bailey resident, had been charged with five counts of harassment, all class 3 misdemeanors, for a series of voice mail and e-mail messages directed at the Park County commissioners, the county administrative assistant, and the county attorney.

He was arrested on April 29.

The messages, left in late April, complained of the condition of the road on which he lived, Conifer Drive, in the Burland subdivision of Bailey.

Fensler used a number of vulgarities in the messages and questioned the commissioners' intelligence and desire to help the residents of Park County, but he testified from the stand that he didn't mean to harass anybody.

"I intended to get my road fixed," he said.

But that wasn't how the county officials heard the messages.

Park County Commissioner Dick Hodges said the messages were disturbing because of how obsessed Fensler seemed with the issue of his road, and at the hour in which the messages were left.

From the stand, Hodges told the jury that after he received calls from Fensler, he felt threatened.

It wasn't the content of the message; it was the revelation that Fensler could have been to Hodge's home.

In one of the many messages Fensler left on Hodge's answering machine, Fensler made reference to a security light Hodges had on his home and made mention of Hodge's family in other messages.

"That bothered me," Hodges said. "I felt that he was bringing in my family to threaten me."

Fensler's attorney argued that the comment made about Hodge's family, which was made to each commissioner, was a sarcastic remark about the safety of the roads.

Fensler's remark in the voice mail recordings asked that the commissioners and their families have a safe drive on Park County roads.

In cross-examination, Fensler's attorney, Joe Scheideler, pressed the issue of why Hodges never returned a phone call to Fensler.

Hodges told the court that he felt there was no advantage to responding to Fensler's complaint about the road.

He said he called the Road and Bridge Department and scheduled a day to go out and look at the road. The visit took place after Fensler had been arrested.

Commissioner Mark Dowaliby gave testimony similar to Hodges. He said he felt threatened by the calls at the odd hours.

He first received the messages on April 25 in the morning. It was a Saturday and he was in the county offices by himself.

He told the prosecutor from the stand that the messages continued, and the antagonizing increased.

Until Fensler was arrested, the messages continued. Fensler even made reference to being visited by the police in one of his messages.

"It was very disturbing," Dowaliby said.

In one of the messages, Fensler referred to Dowaliby as "Commissioner Doobie Dow boy."

Dowaliby said he was sufficiently disturbed that he started keeping his pistol handy.

He said the range of emotion Fensler displayed in the messages was part of the reason they disturbed him so much.

"It didn't seem rational at all to me," Dowaliby said. "And an irrational person could do an irrational thing."

He testified that he didn't know what Fensler was capable of.

Dowaliby said it also seemed strange to him that Fensler would be calling about his road at 3:30 a.m., when no one would be available to take his call, let alone do anything about it at that hour.

"I was fearful that violence could come from it," Dowaliby said.

He said the threat he felt was in the tone of Fensler's voice.

After the first phone call Dowaliby received from Fensler, he called Road and Bridge to report the complaint, although Road and Bridge wasn't an area under his direction.

Dowaliby said he called Road and Bridge because Hodges, the commissioner who oversees Road and Bridge, wasn't in the office at the time of the complaint.

He said he attempted to return Fensler's phone call, but couldn't reach him.

Commissioner John Tighe testified that he had spoken to Fensler on a couple of occasions.

Tighe said those conversations were never like the voice mail messages that were left on his phone.

In one of the voice mail messages left for Tighe, Fensler said he didn't just go after the county, instead he went after the people who were "f--king with [him]."

He followed that statement up with "when the dust settles, you will fix this road."

Tighe said the situation was made more frightening to him because of the close proximity between his house and that of Fensler.

Like Fensler, Tighe lives on Conifer Drive.

Tighe testified that he was concerned about his safety to the point where he would arm himself while walking his dogs. He told his family about the situation and told them what Fensler looked like and what kind of car he drove so they could be on guard.

Tighe said he understood Fensler's frustration with the road, but said it was in better condition that other roads in the county.

Tighe said there were some problems with a drainage culvert that was damaged causing water to pool in an area.

Also a snowy winter, and where the snow was piled, contributed to the washout of part of the road.

"Sometimes our roads get pretty bad," Tighe said. "Is Conifer [Drive] one of those roads? No. There are worse roads in the county."

And those roads need attention as well.

Pulling a road crew off those roads to grade Conifer Drive would only delay service for other parts of the county, he said.

He said the only fair way is for the road to wait its turn.

"If I could, I would have the road done every day," Tighe said.

The county commissioners' personal assistant, Betty Jean Weirth, testified that she hadn't felt threatened by an e-mail sent to the county commissioners through a e-mail address.

The e-mail contained the use of the F word, but she didn't feel threatened because it wasn't directed at her.

Weirth said, as with any complaint she gets via e-mail, she forwards it on to the county commissioners.

County Attorney Lee Phillips testified that in the three decades that he has practiced municipal law, he had never received complaints with as much vitriol as the ones from Fensler. And they were all the more troubling to him because he had no control over what roads would be maintained and when.

Fensler complained to Phillips that he couldn't find evidence that he was an attorney on the Colorado Supreme Court Web site.

Phillips was listed on the Web site under Herbert C. Phillips.

Phillips received as many as five answering machine messages from Fensler, calling him names like "country bumpkin."

After the jury came back with the unanimous not guilty verdict, Scheideler said he believed the jurors made the right call.

"The jury obviously believed that specific intent was to get his road fixed," he said.

Although the road has been fixed since the April arrest, Fensler said it wasn't in great condition.

"It needs work," he said. "But it looks a lot better tonight."

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