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People v. Rau.

2020 COA 92. No. 18CA2025. Criminal Law—Use of Deadly Physical Force Against an Intruder—Dwelling.

June 11, 2020


Defendant lived with his girlfriend in a single-family house that had been subdivided into seven apartments. The apartments shared access to the building’s basement, which was uninhabitable. Tenants could enter the basement through the back door of the house to access controls for their apartments’ water and heat supply.

Defendant confronted a stranger, D.R., sleeping in the basement. Defendant told D.R. to leave and D.R. became aggressive and began to yell and throw things. Defendant told D.R. that he had a gun and would shoot him if he did not leave. When D.R. did not leave, defendant fatally shot him. Defendant was indicted by a grand jury for second degree murder (heat of passion). He moved to dismiss the charge. The district court granted the motion based on CRS § 18-1-704.5(2)–(3), which prevents prosecution of the occupant of a dwelling who uses deadly physical force against an intruder.

As an initial matter, defendant contended that the court’s order granting his motion to dismiss and finding him immune from prosecution was the functional equivalent of an acquittal, so any trial on the charge would violate double jeopardy. However, jeopardy only attaches when a defendant is present at a judicial proceeding aimed at reaching a final determination of guilt or innocence. Here, jeopardy never attached, so defendant’s rights are not violated by the prosecution’s appeal. Further, the order dismissing the charge was a final appealable order properly before the Court of Appeals because dismissal of the only charge against defendant ended the action.

On appeal, the People argued that the district court erred in concluding that the basement in defendant’s building was a “dwelling” for purposes of CRS § 18-1-704.5(2)–(3). Here, the basement was part of the building defendant used for habitation and was the only place where defendant could adjust the heat and water controls for his apartment. Therefore, the basement was part of defendant’s dwelling for purposes of the statute.

The People also argued that the evidence was insufficient to show that defendant held a reasonable belief that D.R. might use physical force against him, no matter how slight, or that defendant held a reasonable belief that D.R. committed or intended to commit another crime in addition to D.R.’s unlawful entry into the building. However, the evidence was sufficient to support a finding that defendant reasonably believed D.R. was going to use physical force against him, no matter how slight, and that he reasonably believed that D.R. had committed a crime or intended to commit a crime against a person or property in the building. As a result, this evidence was sufficient to establish defendant’s statutory immunity from prosecution.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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