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 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.
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

¶ 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 
2

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.
3

¶ 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). 
4

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 
5

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.
6

¶ 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. 
7

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 
8

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 
9

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 
10

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. 
11

¶ 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.