KEALAKEKUA — Brian Lee Smith on Tuesday swore to jurors he did not mean to kill Thomas Ballesteros Jr. on Painted Church Road last June.
Smith, 50, of Honaunau took the stand in Kona Circuit Court to tell his version of what happened June 23, 2018, when Ballesteros was shot and killed and Nikolaus Slavik suffered three gunshot wounds on the rural South Kona road. Smith was visibly emotional from the moment he sat down after making his way to the stand with the assistance of a crutch.
Smith is charged with second-degree murder, second-degree attempted murder and first-degree attempted murder, as well as gun charges.
Smith testified he first saw Ballesteros about 7:30 a.m. that day when he was headed on his motorcycle to clean a vacation rental on Napoopoo Road. Ballesteros was by a fruit stand about 200 yards from Smith’s apartment on Painted Church Road.
The Honaunau man testified he knew Ballesteros for about three years.
Prior to the shooting, Ballesteros’ ex-girlfriend, Leslie Mosier, was living with Smith in an apartment on the mango farm off Painted Church Road.
Smith and Mosier testified they were never romantically involved, just friends. At one point, Smith stated Ballesteros told him, “if I ever talked to her again, he was going to kill me.”
Smith recalled at least 10 times police were called to assist Mosier.
“I told her as long as she got a restraining order I’d help her,” Smith stated.
Prior testimony indicated Ballesteros broke into Smith’s apartment the day before the shooting. At that time, he assaulted Mosier, who was the only one home, and stole some of Smith’s property.
After working at the vacation rental on June 23, Smith stated he went home to change his clothes as he was scheduled to start a paint job in Hookena. As he was driving past his residence on Painted Church Road, Smith told the court a white truck was blocking the driveway and Ballesteros was climbing his neighbor’s fence on the mauka side of the street.
Earlier testimony from Slavik indicated he was there with Ballesteros picking mango with the permission of the property owner.
“I kept going — went down to City of Refuge to look at the water, waiting for him to leave,” Smith stated, indicating he stayed by Puuhonua o Honaunau for about 20 minutes before heading home.
As he drove toward his residence, Smith testified he saw Ballesteros and Slavik, a man he’d never met.
When Smith saw Ballesteros was still near his home, while a truck blocked the driveway, he testified he got off his running bike at the southernmost driveway, went down to the tool shed and grabbed his hunting backpack, which contained a gun for shooting pigs on the farm.
Smith pulled the gun out and started walking toward Ballesteros, who was across the street.
“I yelled at him: ‘Thomas you shouldn’t be here; get out of here,’” Smith recalled to the jury. “My intent was to get them to leave.”
The 50-year-old testified Ballesteros was also walking toward him when Smith asked why he stole his stuff and harassed his roommate.
At that point, Ballesteros “threw down his picking pole and charged me,” Smith told the court. “I intended to fire a shot over his head, but he was too close to me.”
Ballesteros was shot once in the temple.
Smith later testified he “didn’t want him dead,” he “wanted him to leave.”
Once the shot was fired, “I see Nick Slavik coming at me,” Smith stated. “Pointed the gun at Nick because he was coming at me.”
Smith testified Slavik put him in a headlock and grabbed for the gun. He added Slavik’s gunshot wounds to the finger, forearm and cheek were because Slavik squeezed his hand while it was on the trigger.
Smith told the court it was Slavik who shot him in the leg as he was trying to get his hand off the trigger guard.
Smith testified he rode away on his motorcycle after the shooting, and went to Hookena where he was supposed to be before the encounter.
During cross-examination, Smith admitted to smoking methamphetamine the night of the break-in because “I was scared to sleep that night.”
Smith admitted he didn’t try calling for help or tell anyone about his first encounter with Ballesteros the morning of the shooting.
Smith claimed Ballesteros took his drone, house keys and a replica gun during the burglary. When he saw Ballesteros the next day, he clarified he wasn’t upset but scared.
“Don’t believe either men deserved to die that day,” Smith stated.
Lindsay Harle, forensic pathologist, also testified Tuesday. She performed the autopsy on Ballesteros and confirmed he had methamphetamine in his system.
The defense and prosecution both rested their cases Tuesday. Closing arguments are expected today.
Email Tiffany DeMasters at tdemasters@westhawaiitoday.com.
