VISTA, Calif.— During a second day of testimony Tuesday, a Carlsbad man testified against his ex-wife and her gun instructor, who are both accused of conspiring to kill him in 2016.
Diana Lovejoy, 44, and the alleged gunman, Weldon McDavid Jr., 50, are each charged with attempted first-degree murder and conspiracy to commit murder.
On Tuesday, jurors heard Gregory Mulvihill describe the night he says he was nearly killed by a sniper hiding in the weeds.
"About the time I realized what I was looking at, it felt like I had been hit in the back, which was confusing to me because I knew I was looking at a gun, but it felt like somebody hit me in the back, Mulvihill said. "And the next thing I remember is starting to run."
Deputy District Attorney Jodi Breton told jurors in her opening statement Monday that Mulvihill got a call just before 11 p.m on Sept. 1, 2016, from a person claiming to be a private investigator, who supposedly had documents that could help him in his divorce with his estranged wife.
The caller instructed Mulvihill to go to a dirt road near Avenida Soledad and Rancho Santa Fe Road, where he could pick up a package containing materials pertaining to Lovejoy, according to the prosecutor. She said Mulvihill and a co-worker, Jason Kovach, drove to the area and used a flashlight to look for a package taped to a power pole.
Kovach, who was called as a witness, testified that he armed with an aluminum baseball bat that Mulvihill had given him. They saw some rustling in the bushes, then noticed what looked like a someone lying in a prone position with a rifle pointed at them, he said.
"Greg yelled `gun!"' Kovach testified.
"While we were running I heard about six more rapid gunshots," Mulvihill said.
Kovach corroborated that, saying shots rang out and he and Mulvihill took off running back toward their car.
As Mulvihill drove away, he told Kovach, "I think I've been shot," the witness testified.
Kovach called 911 and told a dispatcher, "My friend has just been shot. He's bleeding pretty bad."
The witness said a gunman was hiding in the bushes and was wearing camouflage.
According to Breton, Mulvihill was shot under the armpit but thought he took a bullet in the back.
The prosecutor said Mulvihill was trying to reclaim his life after Lovejoy had made claims that he had molested their young son and sexually abused her. The couple had been separated since July 2014 and were in the final stages of completing their divorce, Breton said.
Carlsbad police determined that the phone used to call Mulvihill was purchased by Lovejoy, and feces found in the bushes at the scene of the shooting were traced to McDavid, the prosecutor said.
Investigators found a multitude of guns and a silencer in McDavid's garage, and a "blast bag" containing seven spent shell casings, Breton told the jury.
The prosecutor said Mulvihill was three weeks away from receiving a $20,000 settlement from Lovejoy as part of the divorce and was set to share custody of their son.
McDavid's attorney, Ricky Crawford, said his client was a trained marksman and former Marine who fired his rifle only after he heard someone yell "I have a gun!"
"If Weldon McDavid wanted to kill someone with his skill set, he would have done so," Crawford told the jury. "That was not his intent."
Crawford said Lovejoy -- whom he met when she took shooting lessons at a gun range where he worked -- told him that she had been trying for years to get someone to do something about her estranged husband allegedly abusing their child.
If someone showed up to a meeting to get information about the situation, he must be guilty, McDavid thought, according to his attorney.
"He (McDavid) was never asked to perform a violent act," Crawford said. "He never agreed to do so. He was never offered money."
Brad Patton, Lovejoy's attorney, said his client had taken out a temporary restraining order against Mulvihill because she claimed he was abusing her and their son.
After the restraining order elapsed, Lovejoy still had concerns about her estranged husband but "at no time was there a discussion/conspiracy to murder her husband," Patton told the jury.
McDavid faces 50 years to life behind bars if convicted, and Lovejoy could be sentenced to 25 years to life if she's found guilty.