Artistic differences

Testicle-grabbing trial divides Nevada City’s musical community

Saul Rayo: He claims that grabbing Cumberland’s testicles was an act of self-defense.Dennis Cumberland: Trial testimony cast him more as a troublemaker than victim.

Saul Rayo: He claims that grabbing Cumberland’s testicles was an act of self-defense.Dennis Cumberland: Trial testimony cast him more as a troublemaker than victim.

The felony trial inside Nevada City’s art moderne courthouse was jammed with notables of the local music scene, most seated behind the defendant, Saul Rayo.

Six months ago, in the dressing room of the historic brick-and-steel shuttered Nevada Theatre, Rayo grabbed the testicles of his former friend and fellow musician Dennis Cumberland.

Rayo claimed it was self-defense, but Cumberland said it was an unprovoked attack. So Rayo was charged with felony battery with great bodily injury, a charge that carries a maximum of four years in prison. Four days of testimony that wrapped up last week drew more court spectators than a recent double-murder trial.

Against a backdrop of gold rush-era clapboard and brick buildings now housing restaurants and upscale clothing and home furnishing stores, the incongruous Depression-era courthouse overlooks labyrinthine streets filled with holiday shoppers. Horse-drawn carriages and gaslights garlanded with red ribbon create a festive seasonal scene.

Yet inside the courtroom, the scene painted by the testimony of musicians and other artistic types seemed more suited to the Los Angeles club scene than this storied foothills hamlet. Rayo’s trial has polarized the large pool of talented, local, 40-something musicians. Many performers who once played together have chosen opposite sides.

Local writer Loraine Webb summed up the sentiment of many: “If a respected, loved member of the community receives … jail time and loses his house, there will be a huge rift.”

Attorneys for the defense and prosecution agreed on few details, other than the undisputed fact that Rayo grabbed Cumberland’s groin in the dressing room of the Nevada Theatre during the Songwriters’ Showcase June 2, 2000, where both men performed.

The incident lasted less than a minute. Cumberland estimated the grab lasted 30 to 60 seconds, while Rayo said it was more like five seconds. Both sides agree that after being released, Cumberland took a swing at Rayo and missed, and that Rayo left the dressing room immediately.

Rayo, 45, a popular performer, greeted supporters at the courthouse with smiles and hugs. For his courtroom appearance, his long black hair—graying slightly at the temples—was neatly clipped back in a semi-braid. He wore a gray tweed suit coat and a tie, different garb than he wears at his frequent “rhythm and groove” shows, where he plays original compositions, worldbeat and a seemingly endless repertoire of cover tunes. In addition to his music, Rayo is a woodworker, specializing in cabinetry.

Dennis Cumberland, 46, is known for his popular shows featuring his transvestite alter ego, Connie Fellini, who satirizes spiritual, sexual and political topics, incorporating theater, poetry and dance. He has been an advocate for the homeless and established a short-lived teen center.

“I’ve never just been content to be a singer-songwriter,” Cumberland said.

Cumberland’s trademark long wavy hair is now cut short, and some familiar with his shows didn’t recognize him at first, dressed in a jade-colored shirt and black blazer. Frequently described as “charming” by both admirers and detractors, Cumberland is employed as a camp caretaker.

Exactly how Rayo came to have Cumberland by the balls is a matter of perspective. Neither man had an obvious motive for starting the altercation, but there has been bad blood between the two, based largely on a PA system missing from a previous concert, a loss for which Rayo held Cumberland responsible.

Deputy District Attorney Oliver Pong said evidence showed that “Mr. Cumberland was not the aggressor.” The charges were filed as a felony due to the “serious bodily injury sustained by the victim.”

Barbara Coffman, Rayo’s attorney, believes the specific injured body part resulted in the seriousness of the charge. “It’s overcharged,” she said. The pictures of Cumberland’s bruised scrotum “almost glow in the dark,” indicating her belief that the photographs were color-enhanced.

Rayo said he came to court seeking justice and to clear his name in the tightly knit community: “I’d rather do jail time than cop a plea.”

Rayo suffers from chronic back pain and had been using a cane shortly before the incident. He claimed he was not looking for a fight with a man six inches taller and whom Rayo and courtroom witnesses said had a reputation for violent behavior.

Yet it seems equally unlikely that the incident was initiated by Cumberland, who was minutes away from taking the stage to accompany his 18-year-old, cello-playing daughter and other musicians.

David Cumberland: Trial testimony cast him more as a trouble maker than victim.

Motivations for the dispute vary. Cumberland said he told Pat Jacobsen, Rayo’s bass player, that Rayo had cheated him out of money for a show they jointly produced 18 months earlier. Cumberland said he was tired of Rayo’s accusations that he was responsible for a missing PA system and threatened “someone might tell his girlfriend” about Rayo’s alleged infidelities.

When Rayo came into the dressing room, Cumberland said he refused to talk with him since he would soon be performing. As he turned away, he claimed Rayo grabbed his testicles from behind with his right hand.

Cumberland called 911, applied ice and showed others his injuries. He performed in the show and then went to the emergency room at Sierra Nevada Memorial Hospital. Photographs of Cumberland’s groin taken days later by his teenage children demonstrated marked swelling, bruising and abrasions. Cumberland showed the photos to numerous people, including reporters covering the trial.

Cumberland said he has been in constant pain since the incident and wears a supportive device day and night. He has problems with urination and sexual dysfunction, including pain and difficulty with erection and ejaculation.

His urologist, Dr. Duncan Harris, testified, “I cannot predict if Mr. Cumberland will be pain-free” or whether his urinary problems will be resolved.

Rayo was eager to tell his story, saying “finally,” when called to the stand. He said Jacobsen told him of Cumberland’s threats to disclose Rayo’s alleged infidelities, of threats to “kick Saul’s ass,” and that Cumberland claimed to be a martial arts expert who had never lost a fight. Rayo laughed off rumors of infidelity, but he did take Cumberland’s threats of violence seriously.

Intending to retrieve his guitars from the dressing room, Rayo saw Cumberland and decided to speak with him in what he considered “a safe place” with other people present. When Cumberland grabbed his right arm, Rayo feared Cumberland’s temper and attempted to defuse the situation by immobilizing him, his left hand grabbing Cumberland’s testicles “like grabbing a cat by the scruff of the neck.”

Rayo says it was over in an instant, and as he let go, Cumberland took a swing at him and fell to the ground. Rayo left the dressing room without his guitars, went home and locked his doors, fearing Cumberland might come after him. He subsequently filed a police report about the incident.

Figuring the incident was something that went down between two guys, Rayo was surprised to discover his name over a month later in The Union, which is where he learned that he was “scheduled to appear July 17 on one count of battery with serious bodily injury.”

In the courtroom, the burden of proof fell upon the prosecution to prove that Rayo’s alleged self-defense crossed the line when the testicle-squeezing continued after Cumberland presented no further danger. Pong stated that Cumberland sustained great bodily injury, defined as “protracted loss or impairment of function of any bodily member or organ.”

Cumberland testified that throughout the attack, he had attempted to “pry off [Rayo’s] fingers, one by one.” He said Rayo taunted him, asking “Like that?” and calling him a “bitch,” while he pleaded, “Please let go of my balls.”

Barbara Coffman, Rayo’s defense attorney, asserted that self-defense was justified. Rayo was entitled to protect himself, having personal knowledge of Cumberland’s reputation for violence, having heard accounts from Paul Doxey and two previous girlfriends that Cumberland had assaulted them. The court limited the women’s testimony to giving their opinion on Cumberland’s proclivity for violence, but Doxey was allowed to give his account in full.

Months earlier, Rayo said he had heard Cumberland talk about “killing and shooting people,” and realized “I had to push away from this guy” and end the friendship.

Witnesses gave differing accounts of events that transpired in the dressing room. Isaac James, Cumberland’s daughter’s boyfriend and a musician in his band, supported Cumberland’s recollection of events, but revealed inconsistencies during cross-examination. Stephanie Norswing, the ex-wife of a musician in Rayo’s band, backed Rayo’s story, claiming that Cumberland was the aggressor.

Witnesses stated that Cumberland appeared “normal” and “not in pain” as he played three songs at the show. Cumberland said that ice alleviated some of the initial pain and that he was determined not to give Rayo the “satisfaction” of not playing.

The defense claimed that Cumberland exacerbated his injuries, since the emergency room report didn’t indicate “punctures or tears,” contradicting Sharon Joy Jahoda, a registered nurse who is Cumberland’s girlfriend, and her testimony of “nail gashes.”

Rayo contended he didn’t inflict the scratches since “every night before a performance, I cut the nails on my left hand to the quick,” but Cumberland claimed that Rayo grabbed him with the right.

Back-and-forth charges and counter-charges by supporters of Rayo and Cumberland sometimes drew comments or snickers from the audience of colorful mountain musicians, prompting Judge John Darlington’s threat to clear the courtroom, declaring, “This is a trial, not a circus.”

Finally, the ending of this conflicting tale of artistic squabbling and bruised testicles was left for the jury to write. After deliberating five hours, the six-man, six-woman jury acquitted Rayo of the felony charge. Rayo’s parents and siblings cried with relief as jury foreman James Wyatt read the verdict. Cumberland was not in the courtroom when the verdict was read.

Wyatt said he and his fellow jurors were “intent on making the right decision” and that discussions “got very heated.” But what it finally came down to “who was credible and who wasn’t.”

And in the end, neither the judge nor the jury nor anyone but Cumberland and Rayo can say for sure why one Nevada City musician had another by the balls. Chalk it up to rock ’n’ roll, or a mountain mystery. Or in simpler terms, as Wyatt said, “There was a reasonable doubt."