Lexington murder suspect takes the stand in his trial, testifies against another defendant
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An emotional Lexington murder suspect sobbed on the stand in court Wednesday while he testified against his co-defendant as the two stood trial for the death of 57-year-old Don Foster in December 2019.
Dillon Stewart, 22, is one of two defendants charged with murder, abuse of a corpse and evidence tampering along with Anthony Asay, 20. Their trial began on Monday and continued through Wednesday with Stewart testifying. Both men are alleged to have attacked Foster in an apartment they shared on Augusta Drive.
They’re accused of killing Foster and driving his body to a wooded area in Washington County, where Stewart is from. Stewart told the court on Wednesday that he had no part in the murder itself, but did admit to helping move Foster’s body.
“I didn’t see how Foster died, but I saw the aftermath when Asay showed me and Haley (Wagner) what happened,” Stewart said. “(Asay) told us, ‘Don’t say anything,’ and ‘If you say anything that is what you are going to look like.’”
Stewart testified that on Dec. 29, 2019, the day of the murder, he and his then-girlfriend, Haley Wagner, were in the living room of the apartment. He said they heard things being broken when Foster and Asay were in a room together in the apartment. It wasn’t until the couple was called back to the room by Asay that they saw Foster and his body, according to Stewart.
“He came out of the room and said he killed him,” Stewart said.
He told the court, at that point, he felt he had no choice but to help move Foster’s body because he was scared for himself and his former girlfriend.
“Under the circumstances and the nature of what I had seen and experienced, and after the threats Asay made to me and my girl, we had no choice but to move (Foster’s) corpse,” he said.
He said he would do anything to protect his former girlfriend.
Stewart then recounted moving Foster’s body through the apartment, Asay’s alleged cleanup of the scene, and their work to transport the body to Washington County later that evening.
According to court testimony, the men wrapped Foster’s body in an area rug and placed it in the back of a red Dodge Dakota pickup truck with items believed to be used in the murder and cleanup including gas cans, a box cutter, and a tire iron.
In initial interviews with police, Haley Wagner’s statements matched Stewart’s, saying both she and Stewart were outside of the room when Asay and Foster were inside.
However, on Tuesday she testified against both Stewart and Asay. She said both men were inside the bedroom with Foster when he was murdered.
“(What I said) was different because I tried to protect Dillon,” she said Tuesday. “I thought I was in love.”
Wagner said she was 16 at the time of the incident, and like Stewart, she felt she had no choice but to comply with the men and go with them to dispose of the body. It was a tip from Wagner’s family to police that led them to the scene, and ultimately Foster’s body.
Since his arrest, Stewart has maintained his innocence.
“My story has not changed and never will,” he said.
Before Stewart’s testimony, Asay’s defense team declined to call any witnesses on behalf of their client.
Prosecutors wrapped up presentation of their case Wednesday with testimony from several forensics experts, the medical examiner and witnesses who spoke to Asay selling his pickup truck for spare parts, as well as giving away a box cutter.
Sarah Maines, a forensic pathologist with the state medical examiner’s office, testified that Foster had more than 70 wounds to his head, neck, torso and extremities as a result of the assault.
Both Asay and Stewart’s defense teams requested Fayette Circuit Judge Thomas Travis for a directed verdict on the charge of murder.
A directed verdict is a ruling entered by a trial judge after determining that there is no legally sufficient evidentiary basis for a reasonable jury to reach a different conclusion.
“What a reasonable juror cannot say, is that beyond a reasonable doubt what happened in that room,” said Ben Church, Asay’s attorney. “There is no way to say who did what, there is just not. And the extent of the injuries to Mr. Foster do not prove that. There is no DNA linking the individuals...There is nothing to say that (Asay) committed any kind of homicide.
“Proximity (to the crime) is not reasonable doubt. All of this subsequent evidence does not show us what happened in that room.”
Stewart’s attorney, Brent Cox, said prosecutors’ most favorable evidence against both defendants was Wagner’s testimony — which had changed.
“(The prosecution) has proven (Foster) passed away in the apartment in a fairly gruesome death — that they have proven,” Cox said. “What they haven’t proven is that any one of these men executed a blow on Mr. Foster.
“We know Wagner in her second story puts both of the gentlemen in the room with Foster, but her first one puts only Asay in the room and so I am not sure we are up to an evidentiary level that incriminates my client.”
Travis overruled both motions for a directed verdict, meaning the trial will continue on.
All of the parties have rested their case as of Wednesday afternoon and are expected to give closing remarks to jurors Thursday.
This story was originally published February 22, 2023 at 2:08 PM.
