     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




                                    1
 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.


                                   2
¶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).


                                    3
                              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


                                     4
  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.


                                    5
¶ 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.




                                     6
  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


                                      7
  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


                                     8
  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


                                     9
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.




                                 10
¶ 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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