BOULDER COUNTY, Colo. — On Friday morning, the testimony concluded from the 24-year-old defendant accused of driving recklessly when she hit and killed a 17-year-old cyclist near Boulder in 2023. The case was in the jury's hands around 3 p.m.
The defense for Yeva Smilianska, 24, said they do not dispute that she struck and killed 17-year-old Magnus White, but rather they are arguing that she did not drive in a reckless manner. She faces a charge of vehicular homicide - reckless driving. Because of this, Denver7 is not using the word "allegedly" when specifically discussing Smilianska striking Magnus. The jury can find her guilty or not guilty on the reckless driving charge, or they can find her guilty on the lesser charge of careless driving resulting in death.
Just about to start his senior year in high school, Magnus, a young and accomplished cyclist, headed out on the afternoon of July 29, 2023 for a training ride for the Junior Mountain Bike World Championships in Scotland. As he neared Highway 119 and N. 63rd Street in unincorporated Boulder County, he was struck from behind by a driver. He died of his injuries.
The investigation continued for about 20 weeks before the driver, identified as Yeva Smilianska, then 23, was arrested in December 2023. She is a refugee from Ukraine and fled to the United States to escape the war. Investigators wrote in an affidavit that they believe she fell asleep at the wheel when she struck the young bicyclist. She faces a charge of reckless vehicular homicide, which is a class 4 felony.
In May 2024, the White family filed a wrongful death lawsuit against Smilianska. The family also started a nonprofit called The White Line, which advocates for safer roads and tougher penalties for careless or reckless driving resulting in death, and helps young cyclists compete around the world.
Denver7 has been covering this case since the crash, and you can read our coverage since the trial started in the stories below:
- Day 1: Opening statements, start of testimonies | March 31
- Day 2: Testimony from prosecution's witnesses | April 1
- Day 3: Testimony from prosecution's witnesses and defense's witnesses | April 2
- Day 4: Testimony from the defendant and her friend | April 3
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Defendant continues testimony about crashing into Magnus White
Friday morning started where Thursday afternoon left off, with the continued cross-examination of the defendant, Smilianska, by Deputy District Attorney Trish Mittelstadt.
The prosecution brought the courtroom back to the morning of the crash, before Smilianska had left her friend Nereida "Neddy" Cooper's home. They had stayed up drinking until about 6 a.m. that morning before falling asleep, per previous testimonies. Cooper woke up around 11 a.m. for work at the bar — where both women were employed — and left. In her testimony on Thursday, Cooper told the court that she had offered for Smilianska to either stay at her house or come to the bar because Smilianska lived far away.
In Smilianska's testimony Friday morning, she denied this, saying there was no offer from Cooper to stay at the home, and that in actuality, the women had left the house at the same time around 11:25 a.m.
"I was tired, but I was certain I was able to drive in the condition I was that morning," she told the prosecutor.
As she drove, she said she was wearing at least one, but possibly two AirPods in her ears to listen to her iPod. She had mentioned this during her testimony Thursday as well.
The prosecutor asked if she started nodding off on Highway 119, which Smilianska confirmed. She said she did not remember swerving twice before hitting Magnus. The prosecutor said that the defendant had testified the day prior about being a light sleeper, yet she did not hear her car hit Magnus. Smilianska said that was true.
"And it didn't wake you up when his body smashed into the windshield?" Mittelstadt said.
"No, it didn't wake me up," Smilianska replied.
"And it didn't wake you up when your car continued to drive in that tall grass for 295 feet?" Mittelstadt questioned.
"It did not wake me up," Smilianska replied.
Smilianska said she woke up when the car hit the fence.
As she had testified the day prior, Smilianska said she had told another cyclist at the scene that she thought she had passed out, but told law enforcement that she thought her car's steering had malfunctioned. She reiterated the latter in a statement taken at the scene. She admitted in court Friday that she had been untruthful in that instance.
Mittelstadt brought up pictures on a slideshow in the courtroom. One showed Smilianska at the crash scene. Another is a screenshot from her and Cooper singing karaoke and drinking before they had gone to sleep earlier that morning. In both pictures, she was holding a black tumbler. Smilianska had been permitted to grab items from her car after the crash, which included the tumbler. Mittelstadt confirmed that she had been drinking alcohol out of that same tumbler earlier that morning.
Lastly, Smilianska said she was indeed familiar with that stretch of highway and knew cyclists frequented it.
In a re-direct, defense attorney Timur Kishinevsky asked if she normally worked the night shift at 3's Bar in Longmont, which she agreed was typical. She would usually get back home around 3 a.m. or 4 a.m., so she is accustomed to going to bed at those odd times.
Kishinevsky brought up the same two photos that the prosecution had shown about 20 minutes earlier. Smilianska said the items she grabbed from her car at the crash site, including the black tumbler, were likely in the backseat of the trunk of the car, but she could not remember. When questioned further about this, she said she thought the tumbler had been on the side door, but she had not been drinking from it. To her recollection, she said it did not have anything in it at the time.
"I was in a stupor, I didn't understand what was going on around me, and I was shut off, just like you said," Smilianska said of being at the crash scene. The translator said Smilianska had used a different term than "stupor," but there was no good English translation for it.
The defense attorney asked a few quick questions: Is falling asleep something she can control? Is a car malfunction something she can control? She said no to both.
"Was it simply hard for you to accept that something you could control caused a life to be taken?" Kishinevsky asked.
"I can't even describe how hard," Smilianska replied.
This concluded her testimony.
The court then broke for a recess, and would return with the defense's final witness after the break.
Crash reconstruction expert testifies about drowsiness behind the wheel
The defense's fourth and final witness was Jason Chilson, an expert in crash reconstruction who became a police officer in Aurora after he left the military. He left the police department in 2018. He said he has reviewed the investigation in its entirety, from written discovery to witness statements to the photographs.
The defense asked if it was significant in his review that six law enforcement officers who responded to the July 29, 2023 crash all came to the same conclusion that Smilianska was not impaired at the time. He agreed that they had all come to that conclusion, adding that they did not see enough signs to even ask for a roadside examination.
Chilson told the court that he does not believe this is a reckless driving case, but rather that it is a careless driving case, which is a lesser charge. The jury can find her guilty of either, or neither.
During a cross-examination with Boulder County District Attorney Michael Dougherty, Chilson testified that he believes law enforcement conducted a good, thorough investigation, but stopped short of saying there was nothing missing from the on-scene response. You can always nit-pick, he added.
He said he agrees that Smilianska caused Magnus' death, and that she had been driving while tired. Chilson said this is "similar to half the country," which prompted the district attorney to ask if everybody should be aware that half of the country is passing out behind the wheel after they leave the courtroom that day. Chilson slightly backtracked, saying "not completely passed out behind the wheel," but that people drive tired all of the time and that it was the "nature" of our lives.
In the courtroom, Michael White, Magnus' father, shook his head at this.
When discussing the charge against Smilianska — reckless vehicular homicide — Chilson said that "recklessness" involves a conscious decision, and if a person is unconscious, they cannot make a decision. Dougherty argued that reckless driving can start the moment somebody puts their key in the ignition, which Chilson agreed with.
Dougherty asked Chilson what he made of the video of Smilianska and her friend drinking until 6 a.m., and Chilson responded that he had not seen the video.
He testified that after a crash, some drivers are "completely blank," and it is not uncommon for some to emotionally shut down or feel shaken.
Dougherty began to try to poke holes in Chilson's credibility, bringing up an instance in 2018, when Chilson was still an officer for the Aurora Police Department, and he was found to have committed conduct "unbecoming" of an officer. Chilson said the charge was dismissed and a lawsuit is coming.
The defense picked up there in their re-redirect.
Chilson further explained that incident, saying he was a DUI officer when he came across a lieutenant who was drunk and passed out in his car. Police brought the drunk lieutenant to another hospital and said he had the flu, Chilson said, and he got in trouble for this.
Moving back to the case, the defense prompted Chilson to explain that the act of weaving once outside a lane is not automatically considered reckless driving, which is more closely associated with intent and a conscious decision. He gave the example of driving 90 mph in a snowstorm on the highway as reckless.
The defense then rested their case and the court took its lunch break.
In closing arguments, prosecutor says: "We have reckless behavior, we have reckless driving"
Closing arguments began after the lunch break, starting with the prosecutors. Before starting, the judge reminded the jury that they can find the defendant guilty or not guilty on the vehicular homicide by reckless driving charge, but the lesser charge of careless driving resulting in death is also an option.
Deputy District Attorney Mittelstadt started by saying that the defendant had stayed up all night drinking, mixed two medications with alcohol and got little sleep before she hit the road the next morning. She knew she was falling asleep, Mittelstadt told the jury, because she texted her friend Cooper, "I'm falling asleep so I'm going home" at 12:11 a.m.
"That text message was a warning to her, and she disregarded that warning," she said.
The crash happened at 12:30 p.m.
On top of that, Mittelstadt said Smilianska was driving with two AirPods in it, which was a distraction.
"She didn't just doze off... She passed out. She passed out from the self-induced exhaustion," she continued. "She did not brake. She did not swerve... Not until somebody walked her over to where Magnus lay dying did she realize what she had done and she told a story to law enforcement about her steering going out."
She did not want to be held responsible for what she had done, which is why she told that lie and why she testified in court that she could not accept what had happened, Mittelstadt said.
Now, she continued, all that is left is to decide if her actions were reckless.
She clarified that the evidence brought forth about Smilianska's drinking the hours before the crash were not presented for the purpose of proving a DUI charge, as that is not something the defendant is facing. It was the long list of choices she made that night, Mittelstadt said, and drinking was just one of those decisions.
"Her behavior, her conduct, was reckless," she said. "We have reckless behavior, we have reckless driving... She consciously disregarded the substantial risk to get behind the wheel that day."
Mittelstadt ran through the events from the night prior and morning of, including the drinking and karaoke video, and Smilianska's phone use the next morning, which prosecutors claim point to when she woke up.
The prosecutor brought the karaoke video up on the screen in the courtroom -- which, because of a redaction, the court can no longer see the bottom of the screen. First thing in the morning, while outside of the presence of the jury, the defense team argued the People's exhibit should be redacted. In the bottom right corner, there appears to be a white substance, which prosecutors referred to as potential cocaine. This evidence was excluded from being introduced at the trial because the judge thought it would be prejudicial. The jury cannot take this into account when deciding on a verdict, and does not know about the redaction that was made.
Mittelstadt said Smilianska told the court that she went to bed right after the karaoke video, which ended at 6:05 a.m., but the prosecutor reminded the jury that Smilianska had said multiple times throughout the trial that she is not great at telling time.
The prosecutor said Smilianska was unconscious when her car hit Magnus and went down an embankment.
"This is not a careless causing death case, this is a vehicular homicide, because what the defendant did was reckless," she said. "She consciously disregarded those risks, and she is guilty of vehicular homicide, and you should find her guilty."
Defense attorney Kishinevsky then addressed the jury for the closing argument, which he started by acknowledging that cases like these start with anger and outrage, and "at some point, the initial reaction subsides."
Defense in closing arguments says this is a case about being tired, pushes jury to convict on lesser charge
In this case, few facts are in dispute, he said. Four experts in crash reconstruction agreed on the dynamics of the crash.
"Three of those experts all came to the same conclusion — that this was an act of careless driving. Mr. Stogsdill did not," he said, adding that the prosecution believed the three experts were not good enough, so they brought in a private expert.
"The prosecution was simply not honest with you, ladies and gentlemen. They said this case was not about alcohol or intoxication," Kishinevsky said. "This whole case is about consumption of alcohol."
But all law enforcement said the same, he stressed, which was that Smilianska showed no signs of intoxication. Yet prosecutors had focused on it heavily through the trial, he said.
He said Cooper — whom he called the prosecution's star witness — admitted that she drank more of the whiskey than Smilianska. She is now angry at the defendant because of the crash, not because of the drinking, Kishinevsky said.
Addressing witness concerns with Smilianska's behavior immediately after the crash, he said that people react in shock and grief differently. And she is entitled to react as she did, he continued.
"We confessed from the very beginning — this is a case about being tired," he said. "Being tired is not reckless driving."
She caused Magnus' death, he continued, and has admitted that. She does not expect anybody to forgive her.
"You must convict for the crime that was committed, and not the character of the person who committed it," he asked the jury. "... We are supposed to punish and convict for acts that are done, not for what loss occurred."
At the end of his argument, he said this was "a most unfortunate accident," but she should not be convicted on the vehicular homicide charge.
Prosecutor's rebuttal: "He would still be alive today, if not for all the choices the defendant made"
In a rebuttal, Boulder District Attorney Dougherty stood up and placed Magnus' bicycle against the stand in front of the jury.
He began by saying, like the deputy district attorney had stated earlier, that this is not a DUI case. Instead, it centers around the decisions Smilianska made that put her in a complete state of exhaustion before she got behind the wheel, which was reckless, he said.
She argued against the defense's statement about Smilianska not running away from her actions, reminding the jury that she had lied to law enforcement and the district attorney's office during the investigation.
On the screen in the courtroom, he brought up a photograph of Magnus riding through trees. His death is not a tragedy because he fell off his bike or veered into traffic, Dougherty said. It is a tragedy of "unspeakable proportions" because she killed him, he said.
She was behind the wheel of a car weighing more than a ton, and failed in her responsibility to others on the road, he said. Staying alert and attentive falls on the driver. Smilianska testified that she was in a complete state of exhaustion and passed out, which is exactly what prosecutors told the jurors they would prove through the trial, the district attorney explained.
"No one will ever forget the impact that they saw of Magnus White crashing into her windshield, those poor witnesses who saw it and tried to save Magnus," he said. "You see how upset they still are to this day... They'll never forget what they saw... She slept through the whole thing."
He asked the jury to think about the last time a pebble hit their windshield, and then prompted them to think of Magnus' helmet hitting it.
Dougherty argued against the lesser charge of careless driving, saying that can apply to somebody who glances at their phone and hits a kid on the sidewalk. But it cannot apply to somebody who stayed up all night, chose to get no sleep and then got in her car and hit a teenager at 60 mph, he said.
"He would still be alive today, if not for all the choices the defendant made," he said.
Per the crash reconstruction experts, he said that Jason Chilson, who testified earlier in the day Friday, had impartial evidence and the two other experts who agree with the careless driving charge both completed their work in October 2023. Stogsdill and the jury are the ones with all of the information for the case, including details beyond 2023, he said.
He laid out a timeline for the recklessness allegations: Smilianska had drank more at the bar than she originally said, brought whiskey to Cooper's house where they continued to drink, took her prescriptions that have warnings about drowsiness on them, went to sleep later than 5 a.m., woke up earlier than 11 a.m. and drove with both AirPods in. Stogsdill is the only crash reconstruction expert who got to consider all of these details, all of which the jury now has as well, he said.
"There are times in this world where a young person dies, and that's a tragedy. And there are times in this world where a person kills a kid, and that's a crime," he said as he concluded.
“Don’t take my words for it," he continued, and then quoted Smilianska's text to Cooper about 20 minutes before the crash. "Take her words for it: 'I'm falling asleep.'"
The jury left the room to begin deliberations a few minutes after 3 p.m.
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