Prosecution rests at Capote assault trial |

Prosecution rests at Capote assault trial

Mottlau brothers testify in about night Lopez was injured

Zach Fridell

Editor’s note: This story has been corrected from its original version. The Arapahoe County coroner is Dr. Michael Dobersen.

The prosecution concluded its case Thursday afternoon after three days of testimony in the trial of David and Eduardo Capote.

The prosecution ended with the testimony of the emergency room doctor who treated Richard Lopez and the Arapahoe County coroner who performed the autopsy on Lopez.

Dr. Nathan Anderson, an emergency room doctor at Yampa Valley Medical Center, was on duty early in the morning of Jan. 2, 2009, when Lopez was brought to the emergency room after an altercation at Seventh Street and Lincoln Avenue.

David and Eduardo Capote are on trial for assault in an altercation that led to Lopez's death. Eduardo faces the more serious felony assault charge. David is not implicated in Lopez's death, but he is charged with misdemeanor assault because he is accused of fighting with Lopez's friends.

Anderson said Lopez was semiconscious when he arrived at the emergency room, meaning he was moving his body and saying words but not in a meaningful way. Anderson said he immediately knew Lopez was a serious case based on his actions and the blood coming out of his ear, which is usually a sign that the skull is broken.

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Anderson said blood drawn from Lopez at the time indicated that he had a blood alcohol level of 0.123, higher than the legal limit to drive of 0.08.

The doctor also treated Michael Wes­­­­ley Mottlau, one of Lopez's companions that night. He said Mott­­­­lau did not appear to be intoxicated, but he did have several injuries to his face and behind his right ear.

Lopez died Jan. 5 at a Denver hospital.

The coroner, Dr. Michael Dobersen, said he found that Lopez's brain swelled as a result of an injury to the back of his head. Dobersen agreed that would be consistent with the report of Lopez being punched and then falling back to the pavement.

Under cross-examination Thursday morning, Mottlau bristled at questions about how much he had to drink the night of Jan. 1, 2009.

Mottlau said that on their last night in town before the three men returned to their military installations, he, his brother and Lopez went to three local bars, ending at the Tap House Sports Grill.

As defense attorney George Brauchler asked Mott­lau what he had to drink the night of the incident, Mottlau described sharing a pitcher of beer with his friends and having three other drinks. But Mottlau also said he didn't agree with Brauchler that it was fair for the defense to continue to question how much he drank that night.

"I believe me, my little brother Tim and Rich were the victims that night," he said.

Mottlau recounted again the incidents of the night, adding detail to the reported argument at the Tap House. He said he and his friends didn't have any dollar bills, so they put in $5 for several song selections, including a Jimmy Buffett song. The group at another table began heckling them about the song choices, making comments that the Mottlaus were homosexual.

When asked whether his consumption of alcohol affected his ability to recall events from the night, Mottlau said no, it did not. No tests to judge the intoxication of either Mottlau brother were performed on the night of the incident.

Just before lunch, Timothy Mottlau also took the stand and testified to many of the same incidents, tears welling up in his eyes as he described checking Lopez's vital signs after he was on the pavement.

Timothy Mottlau also said one of the men in the Capote group took off his shirt, flexing in the street, after the fight. He recounted many of the same details about the night that his brother did Wednesday and Thursday.

The defense is scheduled to begin its case this morning, with jurors entering at 9 a.m. after several legal procedural issues are decided.

Defense attorney Charles Feld­mann said that because the prosecution rested a day earlier than expected, the case might finish before the original estimated conclusion Feb. 12.