i. The personal trainer who fabricated a sexual assault charge against Dr. Day appears to have made six other bodily injury claims.
1)
On three separate occasions at three separate restaurants, it appears that the personal trainer claimed to have broken her tooth on a “rock in the food.
2) On two other
separate occasions and it appears that the personal trainer filed two slip, trip, or fall Worker's Compensation claims
3) Still another bodily injury "allegation" involved a minor auto accident. In
this particular instance, the dollar amount for lost wages and medical expenses that she submitted in writing to the insurance company (and for which she received compensation) appear to exceed the medical expenses and wage losses that she actually incurred.
In other words, she appears to have committed insurance fraud.
ii. In addition to the six bodily injury claims the personal trainer appears to have as many as 10 (ten) or more property insurance claims.
iii. In the Dr. Calvin Day case it appears that financial gain was one of the motives behind her apparent fabrication against Dr. Day to wit:
1) Early
on in her complaint process, telephone records show that Dr. Day's personal trainer was communicating with at least two different civil attorneys and that the timing of these telephone calls and texts closely paralleled the events in the complaint process
and police investigation. Dr. Day’s subsequent bankruptcy apparently halted the personal trainer’s financial gain efforts.
2) Also consistent with a financial gain motive is the self-admission
by the personal trainer that she was having financial difficulties during this time resulting from the loss of child support payments; apparently she was using child support payments to pay for Botox instead of their intended use.
3)
Her bank statements corroborate that this was a time of financial strain.
4) Prior statements and testimony indicate that her financial difficulties caused the personal trainer to
proposition Dr. Day to become a client of hers. Dr. Day's nurse was an eye witness to the personal trainer’s propositioning of Dr. Day on 07/30/2010 to exchange her personal training services for his Botox treatments.
b.
The personal trainer appears to have lied under oath in her statements and/or testimonies to three different governmental agencies on three separate occasions.
c. The personal trainer
according to private investigator’s surveillance reports appears to have “targeted” multiple successful married men on multiple occasions, including physicians. Private investigators appear to have multiple photographically documented “dates”
with these married men.
d. The personal trainer appears to have made at least one prior attempt to obtain free Botox from another physician.
e. The
personal trainer appears to have received Botox under the direction of a physician with whom she apparently had a personal relationship with.
f. The personal trainer is a part time amateur actor
and has won at least one acting award. The circle of local actors in San Antonio is relatively small. Coincidentally, the former lead prosecutor in the Dr. Calvin Day case who propelled this case along also was (and is) a local actor.
g.
To be revealed at trial are other, as yet undisclosed, relevant behavioral patterns of concern that have been uncovered by private investigators.
2. The specifics of the case itself
indicate that the personal trainer fabricated the portions of her testimony alleging criminal acts as follows:
a. This she-said-he-said case, with no DNA evidence, and with no third party eye witnesses
wherein Dr. Day voluntarily took and easily passed a polygraph. The licensed polygraph examiner certified that Dr. Day was “TRUTHFUL” when he stated that the alleged assault did not occur.
b. Dr.
Day practiced for 27 years, from June 13, 1983 until August 30, 2010, without one single official complaint to authorities despite having 40,000 patients (of which 20,000 were women), and who employed 450 women during that same time period.
c.
Prior to the date of the allegation (08/22/2010) evidence shows that the personal trainer was in pursuit of Dr. Day. All five of the communications that occurred prior to the 8/22/2010 meeting between Dr. Day and the personal trainer were
initiated by the personal trainer.
d. Although the personal trainer alleged that she went to Dr. Day’s office on a Sunday morning for a Botox appointment, evidence indicates that this appears
to be just another one of her fabrications. Evidence and testimony showing that this was a personal trainer-prospective client meeting and NOT a Botox appointment includes but is not limited to the following
i.
Dr. Day’s nurse was a witness to a conversation wherein
a) the personal trainer propositioned Dr. Day to exchange her personal training for his Botox services,
b)
they exchanged of cell phone numbers, and
c) they agreed to schedule a meeting to discuss same.
ii. Telephone records
and testimony show that the personal trainer called Dr. Day’s cell phone on a Saturday afternoon three weeks later to schedule a personal trainer prospective client meeting for the following morning. The personal trainer claimed that the purpose of the
call was to schedule a Botox appointment. Yet the following facts are all consistent with a telephone call from a personal trainer to a prospective client and most inconsistent with a patient making a doctor’s appointment:
a)
she had made 11 prior Botox appointments by calling the office number rather than Dr. Day’s cell phone,
b) the lengths of both the voice message that she left on Dr. Day’s cell phone and
the subsequent conversation she had with Dr. Day were too long to simply be an appointment telephone calls, and
c) the timing of the call (i.e., 4 PM on a Saturday afternoon) is a most unusual time for a patient to
be calling a doctor’s office for an appointment, but is not an unusual time for a personal trainer to be calling a prospective client.
iii. Dr. Day routinely worked
on Sunday mornings and had previously had multiple other Sunday morning business meetings; his secretary was routinely in the office with him as she was that particular Sunday morning. Although he allowed his staff to have cosmetic treatments on Sunday mornings
and on rare occasions saw emergency patients, routine non-staff appointments such as Botox appointments were never done.
iv. Dr. Day’s secretary testified that he was
not in his usual attire but instead on that particular morning he was in his workout clothes.
v. The personal trainer texted Dr. Day prior to the meeting and asked him if wanted
coffee, something that is routine for personal trainer prospective client meetings but is most unusual if not rare for a patient visit. In 11 prior visits, the personal trainer had never once offered to bring coffee to Dr. Day.
e.
Dr. Day had a 9 AM appointment with one of his staff following the personal trainer’s 8 AM meeting, and following that per his usual routine he had a tee time to play golf at the golf club across the street from his office.
f. Pursuant to the time and place requested by the personal trainer, Dr. Day met with the personal trainer at his office shortly after 8 AM so that she could perform an assessment of his exercise fitness
and go over pricing. Although Dr. Day’s secretary was in the office that morning she was not called in to chaperone the meeting because it was scheduled to be (and indeed was) a personal trainer – prospective client meeting, and NOT a doctor
patient visit. Moreover the meeting did not occur in a room but rather it took place in the highly visible ground floor cosmetic reception area in front the large picture window.
g. During their personal
trainer-prospective client meeting, the personal trainer proposed a payment arrangement whereby she would have sex with Dr. Day in exchange for Botox treatments. Dr. Day declined her offer. Ten days later the personal trainer filed charges against Dr. Day
alleging that he had sexually assaulted her with his finger(s).
h. By not going to the police immediately on the day of the allegation, the personal trainer in essence, performed a de facto destruction
of DNA evidence that would have exonerated Dr. Day (by showing the absence of his DNA on/in her and conversely the absence of her DNA on his finger(s) or under his fingernail(s)).
i. Moreover,
her waiting 10 days to file charges was most inconsistent with her prior behavior because she had contacted the police for lesser concerns at least 14 times in the five years prior to her meeting with Dr. Day thereby indicating that she apparently had no reluctance
to communicate with police. Besides the fact that she had an apparent proclivity to call police for lesser concerns,
i. She was an experienced mature
46 year old twice divorced mother of two (i.e., not a naive young woman), and
ii. She had no obstacles to her going directly to the police from Dr. Day’s office.
iii. She could have easily driven directly to the Prue police substation which was a 5 minute drive from Dr. Day’s office, and
iv.
an even shorter distance from USAA where she made a stop to take care of some routine banking business after she left Dr. Day’s office.
v. Surely, someone
who had just been assaulted would not immediately stop off to do routine banking as her first action. And surely someone who did stop off to do banking under such circumstances would have also had the presence of mind to go directly to the police.
vi. The fact that such a person with the above apparent behavioral patterns under the apparent circumstances cited above, did not go immediately to the police is consistent with a fabrication.
j. Evidence showing the personal trainer’s movements on the day before and the day of the allegations (i.e., 08/21/2010 and 08/22/2010) are inconsistent with relevant portions of the personal
trainer’s testimony on this subject. Although portions of her testimony concerning her whereabouts were accurate, in other portions of her testimony, which have a significant bearing on this case, she was apparently not where she said she was.
k. Two and a half weeks after the alleged assault, the personal trainer gave police a description and sketch of a man’s genitalia in the hard (erect) state that she alleged was an accurate depiction of Dr.
Day’s member. Yet her description and sketch do not even come close to resembling the actual appearance of Dr. Day’s erect member; the inaccuracies and extreme discordance have been photographically documented. Moreover, the personal trainer left
out of her description, an important distinguishing feature, something that she would not have done if she had actually visualized the area.
l. Dr. Day’s initial arrest was based
on an absurd arrest warrant affidavit filed by a female police detective wherein the detective claimed to find a substantive resemblance between police photos of Dr. Day’s member in the soft (flaccid) state and the personal trainer’s sketch and
description depicting a man’s genitalia in the hard (erect) state.) This orange (soft) to apples (hard) comparison is of course ridiculous on its face. This appaears to have been a false arrest.
m. The personal
trainer appears to have had least four (or more) apparent motives for fabricating a sexual assault allegation against Dr. Day. These motives include the following four factors:
i. revenge stemming
from anger directed towards Dr. Day, for
1) his rebuffing her sex for Botox offer,
2) the words Dr. Day used for his rebuff (perceived insult),
and
3) her apparent perception of his treating her as "insignificant" by forgetting to call her later that same day as she had requested.
ii. potential
financial gain via a payoff from Dr. Day not to go forward with the false allegations (i.e., extortion),
iii. potential financial gain from others via the anticipated attention from her self-portrayal
of "a damsel in distress", and
iv. Re-establishment of a relationship via the anticipated attention from her self-portrayal of "a damsel in distress".
n. There
are multiple substantive disparities in the personal trainer’s statements and testimonies consistent with a finding that she fabricated portions of her testimony including those portions concerning her allegations of criminal acts.
o.
At a 08/26/2013 hearing, eye witnesses testified that the personal trainer obtained counsel from a criminal defense attorney in the spring of 2013 because she was concerned that she had given untruthful statements to the Texas Medical board
in 2011 at Dr. Day’s hearing. Her seeking counsel from a criminal defense attorney, even though she was neither under investigation for a crime and had not been charged with a crime, is an act that corroborates that testimony.
p.
At a 08/26/2013 hearing, eye witnesses testified that the personal trainer sought an agreement from Dr. Day not to file a civil suit against her for her prior testimony, because significant portions of it were a fabrication.
Herein
are excerpts from public hearing transcripts indicating that the personal trainer fabricated her allegations:
1. The following 08/26/2013 Hearing transcript excerpts appear to indicate that Dr. Day’s
accuser (i.e., “the personal trainer”) had a chronic manipulative pattern of behavior as follows;
a. Page 27, lines 15 thru 19 and page 30, lines 17, 18 -- “Mrs.
Newcomb had gotten an individual in Boerne….. to file a false affidavit that her daughter was living with him and his family so she could attend schools at the Boerne School District…….. -- that she would manipulate situations……..”
b. Page 27, lines 20 thru 22 -- “…..she had previously been employed at….. Trinity Towers where she was fired for falsifying time records, time cards,….”
c. Page 27, lines 24 & 25 and page 28, lines 3 thru 5 – “instance or two at Fair Oaks Ranch which led to her termination involving a golf pro, a member……. another trainer from
there that we thought would have been a good witness about her ….. being fired and how she then accused sexual harassment out of that as opposed to what her real conduct was”.
2. The
following 08/26/2013 Hearing transcript passages appear to indicate that surveillance testimony showing apparent liaisons between “the personal trainer” and multiple married professional men would anger “the personal trainer” .
a. Page 31, lines 9, 10, 11, 16 thru 19 and page 32, line 1 -- “Q Was there also surveillance conducted of Ms. Newcomb? A Yes, sir…… Q Did that surveillance of Ms. Newcomb reveal certain
meetings with persons that if brought to light in the trial would have proved……Dr. Day….innocence? A I believe so…… the surveillance evidence would have greatly upset Ms. Newcomb…..”
3.
The following 08/26/2013 Hearing transcript passages appear to indicate that “the personal trainer” had previously targeted a married doctor.
a. Page 28,
lines 11 thru 15 – “…….Elaine Levy who is the wife or ex-wife of Dr. David Levy who was one of the people we believed that she had had an ongoing relationship with and some of the conduct that was involved and that we thought
might be appropriate for the jury….”
4. The following 08/26/2013 Hearing transcript passages appear to indicate that “the personal trainer’s” initial motive was
financial gain because she was on the phone with plaintiff attorneys at specific times corresponding to key dates early in the case.
a. Page 58, lines 15, 17, 18, 19 -- “Ms. Newcomb…..
before, during, after, after the call to the police…… she called a couple different civil lawyers…….”
5. The following 8/26/2013 Hearing transcript passages
appear to indicate that “the personal trainer” may have been involved in illegal activities.
a. Page 28, lines 8 & 9 – “she was involved collaterally…….
with a -- illegal poker games and the taking of money out of the country”.
6. The following 08/26/2013 Hearing transcript passages appear to indicate that the Defense had evidence
of “the personal trainer’s” mental instability.
a. Page 29, line 14, 17 – “Was there also evidence of her mental instability……? A Yes, sir”.
7. The following 08/26/2013 Hearing transcript passages appear to indicate that “the personal trainer” may have untruthful in her testimony about the circumstances relating to her visit to
Dr. Day’s office.
a. Page 29, lines 22 thru 24 and page 30, lines – “….facts or inconsistencies in her testimony about the circumstances of her visit to
the office, Mr. Day's office?......”
b. Page 30, lines 8 thru 10 and page 49 lines 3 thru 10 – “just how it all started with the 911 call and the initial officer
who met her at Starbucks out on I-10. There was conflicts there… Her initial statement to 911 was, I felt like I have been molested,…… there was a conflict between how she later related the circumstances to her initial calling. She didn't
say she had been sexually assaulted. She didn't say she had been -- anything about penetration and so forth. She -- it was sort of an emotional, I feel like maybe I've been assaulted or molested.”
c. Page
30, line 11 – “conflicts as it related to building layout…”
d. Page 30, lines 11,12 – “conflicts -- photographic, her descriptions of Dr.
Day's anatomy”.
8. The following 08/26/2013 Hearing transcript passages appear to indicate that “the personal trainer’s” ex-husband would give multiple examples
of her vindictive manipulative behavior.
a. Page 31, lines 18 thru 22 and page 32 lines 6 thru 8 – “Q With respect to the ex-husband, sir, what evidence did you anticipate
would have been elicited from him if you had called him? A Well, in a general sense her vindictive, manipulative behavior, her need to have people believe in her……. her ability and desire to manipulate, and for lack of a better term, to be an
emotional drama queen”.
9. The following 08/26/2013 Hearing transcript passages appear to indicate that “the personal trainer’s” behavior immediately after
the alleged assault was not what one would expect from a woman who had just been assaulted.
a. Page 59, lines 12, 13 – “calling USAA ….. was real unusual that
if you had been sexually assaulted, why would you do that”.
10. The following transcript passages appear to indicate that prior to Dr. Day’s trial,
that Dr. Day’s primary
accuser (i.e., “the personal trainer”) told the District Attorney’s office that she did not want to continue because she may have rendered incorrect testimony before the Medical Board in 2011,
that the District
Attorney (DA) refused to allow “the personal trainer” to withdraw citing that she would incur civil and criminal liability,
that as a result of the DA’s response, “the personal trainer” felt threatened
by the DA, and
that “the personal trainer” then hired criminal defense attorney Andrew Del Cueto to intervene on her behalf.
a. From the 06/11/2013 trial transcript
Page 12, lines 16, 18 thru 25, and page 13, lines 1 thru 5 “MR. DEL CUETO: ……. I did not seek out the representation of Laura Newcomb. She went to the district attorney's office and she was misinformed what the law was. She asked
Kirsta Melton in a meeting, What -- what if I don't want to continue? Can I plead the Fifth? And Kirsta Melton told her that only a defendant has a right to plead the Fifth. And then she said, Well, should I seek counsel? Can I get my own private counsel?
…..And Kirsta Melton told her, once again, it would cost you $50,000 and she discouraged it. So my client researched before she ever hired me and found out that both statements were a lie and she had a mistrust of the district attorney's office at that
point”.
b. From the 08/26/2013 Hearing transcript Page 26, lines 6 thru 8 – “….. Ms. Newcomb had hired Mr. Del Cueto to run interference and protect her from the
district attorney's office”.
c. From the 08/26/2013 Hearing transcript Page 66, lines 21 thru 24 – “I was sitting in the office when she said that she was afraid
of the DA's office and that's the reason she got a lawyer, okay? And she even described it exactly”.
d. From the 08/26/2013 Hearing transcript Page 67, lines 10 & 12 thru 15 -- “Ms.
Newcomb….. felt threatened…… prior to trial….. First time she said it, I heard her -- …..there in Andrew's office she was scared of the district attorney's office”.
e.
From the 08/26/2013 Hearing transcript Page 68, lines 7 thru 9, 14, 15 “……about being -- feeling threatened by the district attorney, these comments were made during a meeting that you attended?.... Prior to trial?
A Yes, sir”.
f. From the 08/26/2013 Hearing transcript Page 69, lines 1 thru 7 -- “So what I thought is, the case has a lot of publicity. Newcomb knew it wasn't
true and she was trying to dismiss the case and they were threatening her by telling her, If you dismiss the case we're going to get you and indict you for lying; it's either going to be you or him. They were making it like that. They were forcing her to lie.
That's what I understood, okay”?
11. The following 08/26/2013 Hearing transcript passages appear to indicate that “the personal trainer” hired Andrew Del Cueto because she had concerns that “the
personal trainer” may have perjured herself at the 07/25/2011 Hearing before the Medical board in Austin.
a. Page 19, lines 11, & 13 thru 15 -- “…..she was concerned
about…… her prior testimony in Austin….. she had perjured herself…..”
b. Page 23, lines 22 thru 24 – “Ms. Newcomb…… had
expressed concern over her change in testimony and her possible perjury before a state licensing board…..”
c. Page 27, lines 11 thru 13 – “she really hired
Mr. Del Cueto…… there was in her own mind the need for counsel because of prior testimony and perjury……”
d. Page 68, lines 1 thru 3 – “…..she
had made untruthful statements. That's what I understood her to say……”
12. The following 08/26/2013 Hearing transcript passages appear to indicate that “the personal trainer”
initiated and solicited a meeting with Dr. Day’s Defense Attorneys Alan Brown and Jay Norton prior to Trial.
a. Page 17, lines 17 &18 –- “The meeting was requested
by Ms. Newcomb….”
b. Page 19, lines 9 & 10 – “…. she had solicited for the meeting,…..”
c. Page
26, lines 2 & 3 – “…..she asked for the meeting…..”
13. The following 08/26/2013 Hearing transcript passages appear to indicate that “the personal trainer” requested
this meeting because she was concerned about civil liability and Dr. Day suing her.
a. Page 17, lines 24 & 25, and page 18, line 1 – “And when we were there, Ms. Newcomb was concerned
about civil liability and Dr. Day suing her”.
b. Page 19, lines 10 & 11 – “…..she was concerned about civil liability…..”
c.
Page 24, lines 4 thru 7 – “It's very unusual for the complainant in a case to solicit a meeting with defense counsel - if you will, the opposition - to express a desire that she be protected from civil liability”.
d. Page 68, lines 1 thru 3 – “…..she wanted a release because she had made untruthful statements. That's what I understood her to say……”
14.
The following 08/26/2013 Hearing transcript passages appear to indicate that at the pre-trial meeting with Dr. Day’s attorneys, “the personal trainer” asked for a written civil liability release from Dr. Day.
a. Page 51, lines 4, 9, & 13 thru 15 – “ ….. the mutual release… document….. was…. prepared….. in response to Ms. Newcomb's request”.
b. Page 51, lines 19 & 20 – “A Ms. Newcomb didn't want a mutual release. She only wanted a release initially where she was not going to get sued…..”
c.
Page 67, lines 18,19, & 22 – “And she said, Well, I know your client and I think he'll sue me……. And then she wanted the release…..”
d. Page
68, lines 1 thru 3 – “…..she wanted a release because she had made untruthful statements. That's what I understood her to say……”
15. The following 08/26/2013 Hearing transcript
passages appear to indicate
That during the above referenced pretrial meeting, “the personal trainer” told attorneys Andrew Del Cueto, Alan Brown, and Jay Norton that she hired Del Cueto because she felt threatened by the
DA’s office,
That “the personal trainer” had asked the DA to withdraw her from the case because she believed that she had made untruthful statements at the 2011 Medical Board Hearing in Austin,
That the DA’s office apparently responded by telling “the personal trainer” that she would incur both civil and criminal liability if she withdrew or pleaded the 5th, and
That while under oath
during the trial, “the personal trainer” instead of saying as she had before, that she felt threatened by the DA’s office, said instead that she felt threatened by “Day’s People”.
a.
Page 26, lines 6 thru 10, 14,15 -- “Ms. Newcomb had hired Mr. Del Cueto to run interference and protect her from the district attorney's office. Yet when she was asked why she hired Mr. Del Cueto, she said because of Dr. Day's
people. And I didn't believe that to be a truthful answer,……. I had never heard this Dr. Day's people thing before…”
b. Page 66, lines 18, 20 thru 25 –
“Ms. Newcomb…..I knew she was a liar when I heard her testify because I was sitting in the office when she said that she was afraid of the DA's office and that's the reason she got a lawyer, okay? And she even described it exactly. So I knew she's
capable of lying the second she said "Day's people" because that was lie”.
c. Page 68, lines 7 thru 9, 14,15 and Page 69, lines 10 thru 15 – “……about being
--feeling threatened by the district attorney, these comments were made during a meeting that you attended? Q Prior to trial? A Yes, sir. A And then in court she turned it around to Day's people. Q So in court you felt that her testimony was inconsistent with
what she had said in the meeting? A …….. Inconsistent would be fine, but I thought it was a lie”.
d. Page 71, lines 7 thru 12 – “A Well, there's three of us
sitting there. Jay Norton, Andrew Del Cueto, and me. I mean, they're -- if someone would think that the three of us would say something and she'd say something different, I mean, that's insane. Yeah, yeah, that -- I mean, I couldn't believe she told that lie.
I was shocked…"
Dr. Calvin Day’s accuser (i.e., “the personal trainer”) previously pled guilty to shoplifting. Now she appears to have also shoplifted the futures of Dr. Calvin Day and his son Zac by fabricating
sexual assault charges against Dr. Day. Evidence continues to mount that Dr. Day and his family are the real victims.
The personal trainer who fabricated these charges appears to have six other bodily injury claims as well as a number
of other troubling red flags. Hopefully the personal trainer will take the stand at Dr. Day’s upcoming trial and answer questions concerning the disconcerting revelations listed above as well as other findings that are not listed here.
http://www.drcalvindayisinnocent.com
http://www.opposingviews.com/i/society/new-evidence-and-revelations-aim-vindicate-dr-calvin-day
https://storify.com/DrCalvinDay/special-prosecutor-michael-mccrum-dr-calvin-day-ca