v. Rau

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
June 11, 2020

2020COA92

No. 18CA2025, People v. Rau — Justification and Exemptions
from Criminal Responsibility — Use of Deadly Physical Force
Against an Intruder

Under specified circumstances, section 18-1-704.5, C.R.S.

2019, creates immunity from prosecution for the occupant of a

dwelling who uses deadly physical force against an intruder. A

division of the court of appeals disagrees with the holding of People

v. Cushinberry, 855 P.2d 18 (Colo. App. 1992), that the common

areas of an apartment building did not constitute a dwelling for

purposes of the statute. The division instead applies People v.

Jiminez, 651 P.2d 395, 396 (Colo. 1982), and concludes that the

basement of the building where defendant lived — which was

accessible to all of the building’s tenants and used to access heat

and water controls — was part of his dwelling. The division affirms
the district court’s decision finding defendant immune from

prosecution for the use of deadly physical force against an intruder

in the basement.
COLORADO COURT OF APPEALS 2020COA92

Court of Appeals No. 18CA2025
El Paso County District Court No. 17CR1657
Honorable Jann P. DuBois, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Patrick Rau,

Defendant-Appellee.

ORDER AFFIRMED

Division IV
Opinion by JUDGE TERRY
Freyre and Lipinsky, JJ., concur

Announced June 11, 2020

Daniel May, District Attorney, Doyle Baker, Senior Deputy District Attorney,
Amy Fitch, Senior Deputy District Attorney, Colorado Springs, Colorado, for
Plaintiff-Appellant

The Bussey Law Firm, P.C., Timothy R. Bussey, Colorado Springs, Colorado,
for Defendant-Appellee
¶1 The People appeal the district court’s order finding that

defendant, Patrick Rau, is immune from prosecution under section

18-1-704.5(2)-(3), C.R.S. 2019. Under specified circumstances, the

statute prevents prosecution of the occupant of a dwelling who uses

deadly physical force against an intruder. Because we conclude

that the basement of the building where Rau lived — which was

accessible to all tenants of the building — was part of his dwelling

for purposes of the statute, we affirm the district court’s order.

I. Background

¶2 Rau was indicted by a grand jury for second degree murder

(heat of passion). Before trial, he moved to dismiss the charge

against him, arguing that he was immune from prosecution under

section 18-1-704.5. Following a hearing on the motion, the district

court dismissed the charge against Rau based on the following

findings of fact.

¶3 Rau lived with his girlfriend in a single-family house that had

been subdivided into seven apartments. All seven apartments

shared access to the building’s basement, which was uninhabitable.

Tenants could enter the basement to get to the controls for their

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apartments’ water and heat supply. The basement could be

accessed through the back door of the house.

¶4 In the early morning of January 19, 2017, Rau’s girlfriend

noticed that the door to the basement was open. After she told him

that she suspected that a homeless person was in the basement,

Rau — armed with a gun and wearing a headlamp — went to the

basement to investigate.

¶5 Rau found D.R. sleeping in the basement, and nudged the

man with his foot to wake him. When Rau told D.R. to leave, D.R.

became aggressive and began to yell and throw things around,

though not at Rau. Rau said that he had a gun and would “count

to five” before shooting if D.R. did not leave. Rau then loudly

counted to five, and when D.R. did not leave, Rau fatally shot him.

II. Double Jeopardy

¶6 As an initial matter, Rau contends that the court’s order

granting his motion to dismiss and finding him immune from

prosecution was the functional equivalent of an acquittal, so that

any trial on the charge would violate double jeopardy. Reviewing

his claim de novo, People v. Wambolt, 2018 COA 88, ¶ 8, we

disagree.

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¶7 Under the Double Jeopardy Clauses of both the United States

and Colorado Constitutions, the state may not punish a person

twice for the same offense. U.S. Const. amend. V; Colo. Const. art.

II, § 18; People v. Porter, 2015 CO 34, ¶ 9. For a defendant to show

a violation of his constitutional right to be free from double

jeopardy, jeopardy must have attached at the first proceeding, that

proceeding must have concluded, and the defendant must have

been exposed to a second, or double, jeopardy. Porter, ¶ 9.

¶8 Jeopardy attaches when the jury is sworn during a jury trial,

when the first prosecution witness is sworn during a bench trial, or

when the court has accepted a guilty plea. Id. Jeopardy only

attaches when the defendant is present at a judicial proceeding

aimed at reaching a final determination of his guilt or innocence.

People v. Paulsen, 198 Colo. 458, 460, 601 P.2d 634, 636 (1979).

¶9 Because none of those events took place here, jeopardy never

attached, and Rau’s double jeopardy rights are not violated by the

prosecution’s appeal. See Serfass v. United States, 420 U.S. 377

(1975) (the defendant’s double jeopardy right was not violated where

the government appealed after the district court dismissed his

indictment).

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III. Finality

¶ 10 We also reject Rau’s argument about lack of finality of the

judgment. He maintains that if the court’s order was not an

acquittal but was merely a pretrial order, then it was not a final

judgment and this court lacks jurisdiction to review it.

¶ 11 Section 16-12-102(1), C.R.S. 2019, which allows the

prosecution to appeal any decision of a court in a criminal case

upon any question of law, precludes his argument. It provides that

“[a]ny order of a court that either dismisses one or more counts of a

charging document prior to trial or grants a new trial after the entry

of a verdict or judgment shall constitute a final order that shall be

immediately appealable . . . .” § 16-12-102(1).

¶ 12 A final judgment is one that ends the particular action in

which it is entered, leaving nothing further for the court

pronouncing it to do in order to completely determine the rights of

the parties involved in the proceedings. People v. Gabriesheski, 262

P.3d 653, 657 (Colo. 2011). In Gabriesheski, our supreme court

held that a trial court’s order dismissing all the charges against a

defendant is a final appealable order because “[t]he dismissal of all

charges in a criminal prosecution clearly ends the particular action

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in which the order of dismissal is entered and therefore constitutes

a final judgment for purposes of the appellate review of any ruling

in the case.” Id.

¶ 13 Applying Gabriesheski, we conclude that the order dismissing

the charge against Rau was a final appealable order that is properly

before us because dismissal of the only charge against him ended

the action.

IV. “Dwelling”

¶ 14 The People argue that the district court erred in concluding

that the basement in Rau’s building was a “dwelling” for purposes

of section 18-1-704.5(2)-(3). We disagree.

¶ 15 Subsections (2) and (3) confer immunity from prosecution on

“any occupant of a dwelling” who uses force under the

circumstances set forth in the statute. People v. Alaniz, 2016 COA

101, ¶ 24. “Dwelling” means a building that is used, intended to be

used, or usually used by a person for habitation. § 18-1-901(3)(g),

C.R.S. 2019. “‘Building’ means a structure which has the capacity

to contain, and is designed for the shelter of, man, animals, or

property . . . whether or not a person or animal is actually present.”

§ 18-4-101(1), C.R.S. 2019.

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¶ 16 In People v. Jiminez, 651 P.2d 395, 396 (Colo. 1982), our

supreme court determined that the garage of a residence met the

statutory definition of “dwelling” for purposes of the burglary

statute. The court reasoned that

[t]he statutory definition of [“]dwelling[”]
comprehends an entire building. There is no
room in the language of that clearly worded
statute to exclude from the meaning of
[“]dwelling[”] those parts of a residence that are
not “usually used by a person for habitation.”
Moreover, at least some of the usual uses of a
residential garage, including storage of
household items, are incidental to and part of
the habitation uses of the residence itself.

Id.

¶ 17 We conclude that under Jiminez, Rau’s basement was a

“dwelling” for purposes of section 18-1-704.5. Although the

basement was uninhabitable and was accessible to all tenants of

the building, it was nonetheless part of the building that was used

by Rau for habitation. The basement was the only place where Rau

could adjust the heat and water controls for his apartment, and

therefore it involved uses that were “incidental to and part of the

habitation uses of the residence itself.” Jiminez, 651 P.2d at 396.

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The district court therefore did not err in concluding that the

basement was part of Rau’s dwelling.

¶ 18 The People rely on the holding of a division of this court that

the common areas of an apartment building do not constitute a

dwelling for purposes of section 18-1-704.5. See People v.

Cushinberry, 855 P.2d 18, 19 (Colo. App. 1992). They argue that

because the basement was a common area used by all of the

building’s tenants, it was not part of Rau’s dwelling. We decline to

adopt Cushinberry’s holding because it is inconsistent with Jiminez.

The term “dwelling,” as used in the statute and interpreted in

Jimenez, does not make an exception for common areas that are

contained within a dwelling.

¶ 19 We are also not persuaded by the People’s contention that

because Jiminez addressed the burglary statute, the supreme

court’s interpretation of “dwelling” does not apply to section 18-1-

704.5. Section 18-1-901, which defines “dwelling,” states that

“[d]efinitions set forth in any section of this title [the criminal code]

apply wherever the same term is used in the same sense in another

section of this title unless the definition is specifically limited or the

context indicates that it is inapplicable.” § 18-1-901(1). Because

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section 18-1-704.5 does not contain its own definition of “dwelling,”

we must rely on the definition in section 18-1-901(3)(g), on which

Jiminez also relied.

V. Sufficiency of the Evidence to Establish Statutory Immunity

¶ 20 The People contend that the evidence was insufficient to show

that (1) Rau held a reasonable belief that D.R. might use physical

force against him, no matter how slight, or that (2) Rau 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.

We disagree.

¶ 21 We review de novo a challenge to the sufficiency of the

evidence, determining whether the evidence is sufficient in both

quality and quantity to satisfy the applicable burden of proof,

People v. Ortiz, 2016 COA 58, ¶ 26, which here was merely a

preponderance of the evidence, People v. Guenther, 740 P.2d 971,

972 (Colo. 1987).

¶ 22 The resolution of conflicts in testimony and determinations of

the credibility of the witnesses are solely within the province of the

fact finder. People v. Fuentes, 258 P.3d 320, 326 (Colo. App. 2011).

We defer to the court’s factual findings unless they are so clearly

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erroneous as to find no support in the record. Alaniz, ¶ 40. We

review de novo whether the court applied the correct legal standard.

Id.

¶ 23 When section 18-1-704.5(3) is invoked prior to trial as a bar to

a criminal prosecution, the burden is on the defendant seeking the

benefit of the statutory immunity to establish the following by a

preponderance of the evidence: (1) another person made an

unlawful entry into the defendant’s dwelling; (2) the defendant had

a reasonable belief that such other person had committed a crime

in the dwelling in addition to the uninvited entry, or was

committing or intended to commit a crime against a person or

property in addition to the uninvited entry; (3) the defendant

reasonably believed that such other person might use physical

force, no matter how slight, against any occupant of the dwelling;

and (4) the defendant used force against the person who actually

made the unlawful entry into the dwelling. Guenther, 740 P.2d at

975.

¶ 24 After hearing evidence on Rau’s motion to dismiss, the court

found that Rau held a reasonable belief that D.R. would use

physical force against him, and also held a reasonable belief that

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D.R. committed or intended to commit a crime while on the

property. According to the court’s findings, when Rau asked D.R. to

leave, D.R. started shouting back at Rau, became aggressive, and

made violent motions. The court said, “So clearly we have an

intimidation at that point in time,” and noted that the parties were

“five to six feet apart” and “in a dark basement.” Rau told D.R.

immediately that he had a gun. The court found that at that point,

[D.R.] started to escalate his behavior,
screaming more, started throwing things. So
we have menacing, and the potential assault of
the defendant by [D.R.]. . . .
[T]he Court finds that there has been by a
preponderance of the evidence a showing that
there was a reasonable belief by [Rau] that
[D.R.] had either already committed a crime,
which was drug usage, on the premises, or
was going to commit a crime, which is a
potential assault upon [Rau].
[Rau] then had a reasonable belief that
[D.R.] would use physical force no matter how
slight [based upon D.R.’s actions]. [Rau] told
[the detective] that he thought [D.R.] was on
drugs by his behavior, and that then resulted
in [Rau] giving [D.R.] the final warning when
[D.R.’s] behavior was escalating. He used that
force and shot [D.R.].

The court found that the defense had met all of the requirements

for immunity from prosecution under the immunity statute.

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¶ 25 The record supports the court’s findings by a preponderance of

the evidence. The detective who interviewed Rau following the

incident testified that Rau told him that when he warned D.R. to

leave, D.R. became more aggressive and started to yell and throw

things, and Rau was scared that D.R. was going to charge at him.

The detective also testified that Rau believed that D.R. was using

drugs because Rau found drug paraphernalia in and around the

basement when he went to confront D.R.

¶ 26 This evidence was sufficient to support a finding that Rau

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 Rau’s statutory immunity from prosecution.

VI. Conclusion

¶ 27 The order is affirmed.

JUDGE FREYRE and JUDGE LIPINSKY concur.

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