2022 CO 3
Colo.2022Background
- Patrick Rau and his girlfriend rented a second-floor apartment in a Victorian house converted into seven units; the shared basement was padlocked but all tenants had keys.
- The basement housed the building’s furnace, two hot-water heaters, the sole thermostat, plumbing infrastructure, and some tenant storage; Rau and another tenant sometimes checked utilities in exchange for reduced rent.
- Rau discovered D.R. asleep in a small storage closet in the basement, observed drug paraphernalia, and woke him; D.R. became agitated, threw things, and acted menacingly.
- Rau warned D.R., brandished a revolver, counted to five, and shot D.R., who died; a grand jury indicted Rau for second-degree murder (heat of passion).
- The district court granted Rau’s pretrial motion to dismiss, finding immunity under Colorado’s force-against-intruders statute (§ 18-1-704.5); a division of the court of appeals affirmed, and the People sought certiorari limited to whether the basement was a "dwelling."
- The Colorado Supreme Court affirmed the court of appeals: applying the statutory definition of “dwelling,” the Court held the basement was part of Rau’s dwelling for purposes of § 18-1-704.5 and limited its holding to the case’s facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the basement was part of Rau’s “dwelling” under § 18-1-704.5 | The People: the common areas of an apartment building (like this basement) are not within the statutory definition of “dwelling” and § 18-1-901’s definition is inapposite | Rau: the statutory definition of “dwelling” applies and encompasses parts of the building used, intended, or usually used for habitation (like the basement) | Held: The Court applied § 18-1-901’s definition and held the basement was part of Rau’s dwelling (affirming the court of appeals) |
| Whether the context of § 18-1-704.5 renders the § 18-1-901 definition inapplicable | The People: context of the force-against-intruders statute indicates a different meaning should apply that excludes common areas | Rau: no contextual limitation exists in § 18-1-704.5; the Title 18 definition governs unless context indicates otherwise | Held: Court found no contextual reason to disapply the Title 18 definition; it governs here |
| Whether prior appellate decision Cushinberry controls | The People: Cushinberry held common areas of an apartment building were not part of a dwelling under § 18-1-704.5 and should be followed | Rau: Cushinberry is inconsistent with the statutory definition and Jiminez; the statutory definition controls | Held: Court overruled Cushinberry to the extent it is inconsistent and declined to follow it |
| Whether statutes on criminal trespass or legislative silence show the legislature intended to exclude common areas (absurd-result argument) | The People: treating all common areas as part of a dwelling produces absurd results and the trespass statutes show a different legislative scheme | Rau: the trespass statutes reflect different contexts and do not demonstrate that § 18-1-704.5’s use of “dwelling” excludes common areas | Held: Court rejected reliance on legislative silence and the trespass statutes as controlling here; directed any policy changes to the legislature and limited its decision to the case facts |
Key Cases Cited
- People v. Jiminez, 651 P.2d 395 (Colo. 1982) (statutory definition of “dwelling” covers the entire building and parts incidentally used for habitation, e.g., garages)
- People v. Cushinberry, 855 P.2d 18 (Colo. App. 1992) (court of appeals held common areas were not part of a dwelling) (overruled to the extent inconsistent)
- People v. McNeese, 892 P.2d 304 (Colo. 1995) (explains mens rea and limits on self-defense/statutory immunity principles)
- People v. Rau, 490 P.3d 804 (Colo. App. 2020) (court of appeals decision below concluding the basement was part of the dwelling and affirming dismissal)