KEALAKEKUA — Brian Lee Smith was sentenced to life in prison with the possibility of parole on Wednesday for second-degree murder in the 2018 shooting death of Thomas Ballesteros Jr.
Smith in April was found guilty of second-degree murder following a five day trial.
Kona Circuit Court Judge Melvin H. Fujino set the mandatory minimum sentence at 15 years. The judge also sentenced Smith to five years with a mandatory minimum three years for first-degree reckless endangerment. The sentences are to run consecutively, meaning Smith must serve at least 18 years behind bars.
“You took the time to park your motorcycle, kept it running, went to the tool shed and got your backpack with the gun. You had time to think. What you did, Mr. Smith, was totally uncalled for,” Fujino told Smith before handing down his ruling.
For the two counts of ownership or possession (firearm) prohibited, Fujino ordered 10 years each, and 20 years for one count of carrying or use of a firearm in the commission of a separate felony. Those sentences will run concurrently with the others.
Deputy Prosecuting Attorney Kate Perazich presented the state’s sentencing recommendations noting that Smith was no stranger to the criminal justice system, having five previous felony convictions in Oregon.
“The defendant made deliberate choices,” Perazich told Fujino. “The choice not to seek help; the choice to get a gun; the choice to shoot Thomas Ballesteros point blank in the head.”
Ballesteros’ sister Rachel Valez held back tears as she read her impact statement to the court.
“Today, makes 368 days since our lives changed forever. One year and three days since I received that call telling me my worst fear had happened … my brother was shot and killed. He did not deserve to die the way he did,” Valez said. “Those that know me know that I have a loving and forgiving heart, but for the first time in my life, I do not feel like I can forgive the person who took my brother’s life. I cannot forget that he was shot point blank in the left temple.”
Smith was given the opportunity to make a statement.
“I’m sorry it happened. I was scared at the time. If I could take it back, I would,” Smith said.
The incident occurred June 23, 2018, on Painted Church Road in Honaunau. Ballesteros and a friend, Nikolaus Slavik, had been picking mangoes on the mauka side of the road, across the street from Smith’s residence. About 3 p.m., Smith arrived home, and at one point approached the men armed with a gun.
After a short exchange of words, Ballesteros was fatally shot once in the head, Slavik was shot three times and Smith was shot in the upper thigh. Smith left the scene of the shooting on his motorcycle and drove to a home in Hookena where he testified he was scheduled to conduct a paint job. It was there he called a friend to take him to Kona Community Hospital.
During trial, Smith testified Ballesteros had terrorized him and his roommate, Leslie Mosier. The night before the shooting, the 50-year-old told the court, the decedent broke into his home, assaulted Mosier and stole his property.
When he saw Ballesteros and Slavik picking mangoes across the street from his residence the following day, Smith stated he was scared and grabbed a gun he used for hunting to protect himself and insisted they leave.
Perazich said she was pleased with the sentencing.
“We feel justice was served today. We are satisfied with the judge’s sentencing and hope it brings peace to the Slavik and Ballesteros families,” the prosecutor said outside the courtroom.
“He took something away we’re never going to get back. He’s getting three squares and a place to live and my brother is gone,” Valez said. “We only have memories of him.”
