Editor’s note: The following story was provided with permission from WANE-TV, Channel 15, in Fort Wayne.
WARSAW (WANE) — On Thursday, Indianapolis businessman Kevin M. Kelley, who ran over and killed a 20-year-old tuber on Lake Wawasee four years ago, was found not guilty of reckless homicide.
The criminal charge came more than a year after the Aug. 8, 2020 incident after the lead DNR investigator, Jake Boggs, compiled all the evidence, according to his testimony. The pandemic slowed the investigation, Daniel Hampton, Kosciusko County prosecutor, said.
The level 5 felony would have carried a sentence of one to six years in prison. Now, an order of acquittal will be filed in the case.
The jurors had to weigh the testimony of two different factions – the tubers who part of a group of eight Indiana University students visiting Kelley’s North Ogden Drive residence on Johnson Bay — and four adult guests who were on Kelley’s Premier Tri-toon luxury pontoon boat with a Suzuki 300 hp outboard when Nathan Mroz, of Fishers, was killed.
Story continues below.
The tubers and another college friend acting as spotter around 6 p.m. that day recalled Kelley driving aggressively, at high speeds, taking turns at a high velocity and not slowing down enough as he approached the downed tubers during those runs. Nearly everyone who testified said the day was sunny, windy and the water was choppy. They also said there were a lot of boats out on the lake.
A surviving tuber, Jake Gillay, said he’d never witnessed such dangerous boat handling and nearly called off the runs, but trusted the adults aboard as Kelley drove.
The tubers said his driving habits were much different than Francis “Frankie” Spellman, the initial driver who was far more cautious, as was another driver earlier in the day. Spellman moved to the back of the boat to help out the spotter, college friend Brett Boram.
Spellman said he would have told Kevin if he’d had an issue, he added.
The defense witnesses, including Spellman, and other boat occupants testified they found nothing out of the ordinary in Kelley’s boat handling and didn’t find it unsafe.
Kelley was pulling the three tubers on two tubes. Mroz was in the middle of the other two when all three were “flipped” off the tubes, court testimony indicated.
Mary Karen Zahn and David Deal, the Indianapolis attorneys representing Kelley, were quick to put the blame on Boram, whose job it was, they said, to report back to Kelley and others on the boat when the boys went down.
“The spotters didn’t do their job,” the defense said.
However, Prosecutor Daniel Hampton said there is “no statutory example” for the duties of a spotter, sometimes referred to as an observer, but there are for the boat’s driver, he said.
The boat’s driver is responsible for the people in the boat, the speed in reaction to the weather and density of traffic, and driving in a “careful and prudent manner,” Hampton said, among other regulations.
Even more important, the driver is not to create dangerous conditions, which the tubers said Kelley did with his “excessive” donuts or circles and “barely missing” tuber Gillay, when he went down on an earlier run and reported that Kelley cruised by him too closely.
Although Spellman said he never heard the thud as the boat hit Mroz and dragged him through the propeller, others testified they did hear the noise.
His mother-in-law Christy Reed, a Kelley family friend, said there was nothing that caused her concern or that she found “unsafe.” She, too, said she never heard the thud that Boram said Wednesday sounded like the boat had hit a log.
The next two witnesses, however, did hear that deadly thud, even though the lake was choppy that day, made even wavier by the wake boats, and, as the tubers testified, by the “excessive donuts”, presumably to make even more powerful waves that make tubing more exhilarating.
Christine Kelley, Kelley’s wife, testified she was very involved before and after the accident. She’d just stood up when she heard the thud and cried “what was that?” She looked back and tried to find the “boys” and only saw two.
Christine Kelley saw Mroz’s blue life jacket toward the front of the boat, not back with the spotters. It was determined by a forensic expert that Mroz was mowed down by the front of the boat.
Through her tears, she recalled the trip back to the pier when one of the tubers, Brenden Klenke, was being towed by the boat, and Gillay and Boram were onboard with the victim trying to stop the blood loss and save Mroz’s life.
She and her husband found themselves in their bedroom overlooking the water and “tried to console one another.” They didn’t know how or why it had happened, she said.
When she left the bedroom, she heard another college friend, who was not on the boat, confront Kevin Kelley.
“What did you do to my friend?” Christine Kelley heard him say. Michael Reed, Spellman’s father in law, who was on the boat and made the 9-1-1 call, had to get between them.
Reed also testified that he and his wife bought a lake house on Lake Wawasee and owned a similar horsepower Tri-toon that could go as fast as 52 miles per hour, finally putting a possible speed on Kelley’s pontoon boat because no one knew how fast the boat was going at the time of the accident.
So many of those who testified said they did not see Mroz in the water, although his fellow tuber, Gillay, said he heard him say “I’m here,” and saw him put his hands up. When that happened, it was too late as the boat came down upon him.
Hampton went back to what part of the boat struck Mroz.
“It’s his fault,” Hampton said. “He was hit not on the side, not on the back. He was hit in the front of the boat.”
