David Capote takes stand in Steamboat assault case | SteamboatToday.com

David Capote takes stand in Steamboat assault case

One charge of third-degree assault dropped for each defendant

Zach Fridell

David Capote talks about the night Richard Lopez was seriously injured in a street fight that led to his death. David is facing misdemeanor third-degree assault in the case, and his brother Eduardo is charged with felony second-degree assault and misdemeanor third-degree assault.

— David Capote took the stand in his own defense Friday morning, telling his side of the story about what happened the night of Jan. 1, 2009.

David Capote and his brother Eduardo Capote are charged with assault in connection with an altercation that led to the death of Richard Lopez. David Capote is charged with third-degree assault. Eduardo Capote is charged with third-degree assault and the more serious second-degree assault.

One assault charge was dismissed against each brother Friday.

David Capote said he was scared after Michael Wesley "Wes" Mottlau confronted the Capote group at the Tap House Sports Grill and that he was scared again when the group with Michael and Timothy Mottlau and Lopez met the Capotes' group at Seventh Street and Lincoln Avenue.

David Capote said he screamed at the "military men" that he was with his girlfriend and his brother's wife as the Mottlaus and Lopez approached. The three men were in the military and preparing to return to their installations the next day.

David Capote said his shouting appeared to change Michael Mottlau's demeanor and that Michael Mottlau put his hand around Lopez's waist and began to walk across the crosswalk, moving away from the Capotes.

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All of the previous testimony has agreed that Timothy and Michael Mottlau were walking forward while Lopez was walking backward across Seventh Street, and Lopez was exchanging insults with Eduardo Capote.

David Capote agreed, but he said Lopez broke free of Michael Mottlau's arm and took a couple of steps back toward the Capote group.

David Capote said that was when his brother went toward Lopez and the two began to fight. He said Eduardo Capote appeared to push the rest of the group back to protect them.

He said he tried to run to his brother's aid, but Timothy Mottlau tackled him. David Capote said his shirt was pulled off in the scuffle. He said he and Timothy Mottlau then fought for a while until he saw Eduardo Capote's wife, Desiree Capote, and David Capote's girlfriend, Karen Rodriguez, running away. At that point, David Capote said, the Capote brothers followed them. He said he did not see Lopez unconscious in the street before he left.

David Capote said the three men in the other group were bigger than his brother and him. He became emotional and had to hold back tears when he said he was scared when he saw the three men approach his group at the corner.

"You're standing on the corner, midnight, it's late, no one's around, you're from out of town … three guys coming at you, they're trained, they're bigger than you. … I knew when they came we were going to fight," he said.

David Capote said he viewed his group as the victims in the incident. When asked why he didn't call police, he said that after returning to the hotel, his father, Eduardo Capote Sr., told him not to because they did not want to press charges and had to catch a flight the next morning.

Before testimony began Friday morning, District Judge Shelley Hill agreed with a defense motion to dismiss one third-degree assault charge against each Capote brother. Those were the charges relating to the alleged assault of Timothy Mottlau.

Hill said there was evidence that one of the Capote brothers hit Timothy Mottlau, but not both, and there was not enough evidence to determine which brother.

Testimony stopped at noon Friday because the trial is moving faster than scheduled, and defense attorneys did not have another witness available for Friday afternoon. The defense is scheduled to resume at 9 a.m. Monday.