A Longmont man whose 2-year-old son drowned while being towed on a float behind his father’s boat pleaded guilty Friday to child abuse resulting in death in a plea deal that would keep him out of prison.
Gil Dwayne Fitzgerald Smith, 44, entered the plea in Larimer County before District Judge John David Williams.
The class 3 felony could have brought a prison sentence of four to 12 years, but the plea agreement allows Smith to be placed on probation, the Larimer County district attorney’s office said.
Sentencing is scheduled for Jan. 30. Despite the deal, Smith could serve time in jail as part of the sentence at the judge’s discretion, said Linda Jensen, spokeswoman for the district attorney.
Two-year-old Shay Smith fell off a tow tube behind a boat piloted by his father in Carter Lake on July 15, authorities said.
The boy’s body was never found despite an exhaustive search. He is presumed drowned.
“It doesn’t appear that there is any evidence that Mr. Smith ever intended any harm to his child,” said Craig Silverman, a former prosecutor and criminal defense attorney who is not involved in the case but has followed it. “This was an event no one wanted to have happened.”
After the July boating accident, Smith was arrested in October on suspicion of drunken boating on the same lake, piloting the same boat.
When deputies tried to arrest him in that incident, they said, he was combative, kicking and banging his head against a car window.
The day Shay disappeared in the water, Smith had a blood- alcohol content of 0.084 percent, slightly below the legal intoxication limit for boating in Colorado.
The boat was traveling about 20 to 30 mph when Shay slipped from the tube, investigators said.
At the time, Shay’s 3-year- old brother was in charge of watching him on the water.
The 25-pound boy was wearing a life jacket, but it was too large for him and probably slipped off when he hit the water, investigators said.
After the accident, Smith at first told investigators that his son had fallen from the back of the boat, not from a tube.
“This is a tragic situation where no true justice could ever be achieved,” Silverman said. “There is nothing anyone can do to bring this little boy back.”
Staff writer Kieran Nicholson can be reached at 303-954-1822 or knicholson@denverpost.com.
