KEALAKEKUA — Brian Lee Smith swore to jurors he did not mean to kill Thomas Ballesteros Jr. on Painted Church Road last June.
On Tuesday, Smith, 50, of Honaunau, took the stand in 3rd Circuit Court to tell his side of what happened on 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.
The state has charged Smith with second-degree murder, second-degree attempted murder, first-degree attempted murder as well as gun charges.
Smith testified he first saw Ballesteros around 7:30 a.m. that day when he was headed on his motorcycle to clean a vacation rental on Napoopoo Road for Candi Baker. Ballesteros was by a fruit stand about 200 yards from his apartment on Painted Church Road.
He told the court Ballesteros threw a big rock at his bike that hit the wind guard then bounced up and hit Smith’s helmet.
“Made me feel scared,” Smith recalled to the court.
The Honaunau man testified he’s known Ballesteros for about three years. He had encounters with the decedent while working at Judy Bonnington’s fruit stand in South Kona.
Smith told the court Ballesteros used to come to the stand to sell fruit.
“Refused to buy fruit from him ‘cause I knew it was stolen,” Smith recalled.
Ballesteros would get angry, Smith stated, and make threatening statements toward him.
“Absolutely felt threatened by Thomas,” Smith told the court. “Wherever I was, if Thomas showed up, I would leave.”
Prior to the shooting, Ballesteros’ ex-girlfriend, Leslie Mosier, was living with Smith for almost two months in his apartment on the mango farm off of 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 on June 22. At that time, he assaulted Mosier, who was the only one home, and stole some of Smith’s property.
Smith told the court it made him feel frightened. He had already gotten a new lock and keys prior to the break-in because he knew Ballesteros was in the area.
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 Honaunanu for about 20 minutes before heading back home.
As he drove toward his residence, Smith testified he saw Ballesteros and Slavik, a man he’d never met.
There were three gated driveways to the mango farm on the makai side of Painted Church Road. Several witnesses testified only the northernmost gate was allowed for residential use. When Smith saw Ballesteros was still near his home, while a truck blocked the residential 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.
Smith told the court Ballesteros responded: “That’s not all I’m gonna do.”
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.
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 had squeezed his hand while it was on the trigger.
“Nick had his hand on my hand that was on the trigger and the gun kept firing,” Smith stated. “I didn’t even know Nick. I told him to leave.”
Smith told the court it was Slavik who shot him in the leg as he was trying to get his hand off of the trigger guard.
After the shooting, Smith testified he rode away on his motorcycle.
“I don’t know how I did it,” Smith said.
The Honaunau man ended up going to Hookena where he was supposed to be before his encounters with Ballesteros and Slavik.
“Didn’t want him dead — wanted him to leave,” Smith stated.
During cross-examination by the state, 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.
Both the state and defense rested their cases on Tuesday. Closing arguments are expected to be delivered to the jury today.