*1 881 (Colo.1983). The Legouffe, P.2d 850 of causation is one such determination
ALJ’s upheld sup- if finding which must be
factual
ported by evidence. F.R. Orr substantial Rinta, 717 v. P.2d 965
Construction Co. making findings, factual it these upon an ALJ to
is incumbent determine witnesses,
credibility Varsity see Contrac Baca, (Colo.App.1985),
tors v. 709 P.2d part, liberty to find but not
and the ALJ is at
all, testimony of a witness’ be credible. Motors, Springs Ltd. Industrial
Colorado 504,
Commission, 165 Colo.
(1968). reports the medical relied ALJ, along
upon by the with claimant’s testi Hence,
mony, support the award. we will it. See F.R. Orr Construction v. disturb
Rinta, supra. Panel is
The order of the affirmed.
STERNBERG, C.J., J., MARQUEZ,
concur. Colorado, PEOPLE of State
Plaintiff-Appellant, McNEESE, Earl
Robert
Defendant-Appellee.
No. 92CA0929. Appeals, Court of
Div. II. 20,
May 1993.
Rehearing Denied June 1993. Granted Jan. 1994.
Certiorari *2 against force an unlawful intruder prosecution.
shall be immune from criminal affirm. We that, joint argue inasmuch as a occupant apartment of defendant’s had invit- apartment, ed the decedent into the the trial holding court erred as a matter of law in that entry apartment into that They argue unlawful and uninvited. further that the evidence was insufficient to establish by preponderance of the evidence that the decedent had committed a crime in the dwell- ing that he use force occupant. an Approximately in- three months before the issue, acquaintance cident at a woman apartment defendant had moved into his be- decedent, husband, cause she and the her getting along. night were not On the woman, question, resisting after defen- advances, dant’s sexual told that she was going agreed to move out and defendant with that decision.
During occupancy, paid her the woman per defendant slept month for rent and $50 living on the room couch. She was key belongings after she in and all moved her apartment. were the defendant stay apart- had allowed the woman to in his only ment on the condition that she not allow apartment. decedent to enter the In this regard, the record demonstrates decedent knew he was not allowed into Indeed, apartment. he would wave to his Jr., Early, Atty., Norm S. Denver Dist. wife from the street rather than knock on the Coats, Denver, Deputy Atty., Nathan B. door. Dist. plaintiff-appellant. night On the the woman left Vela,
David F. taking any State Public De- she left without of her fender, Smylie Stephen belongings Frances Brown and and went to the decedent’s home. Flavin, Defenders, There, Deputy M. State Public she told the decedent of the advances Denver, defendant-appellee. decedent, the defendant. The who had drinking, get belongings
been wanted to her Opinion by Judge immediately. agreeing TURSI. After there woman, arguing no fighting, would be People appeal the trial court’s order decedent, and his friend returned to dismissing charges degree of second murder apartment around 2:30 a.m. to defendant, filed Robert Earl get belongings. her The woman used her pretrial hearing, McNeese. After a the court key to let them in. charges pursuant dismissed the 704.5, inside, pro- opened which Once defen- that, circumstances, door, him, vides under certain dant’s bedroom awakened any using doorway of a to him talked from the for about thority to the decedent into the defen- woman asked the invite minutes. When the three living room and to come back to the decedent get things, the decedent re-
help her
her
The trial court found that the decedent’s
living
room and
*3
turned
apartment was unlawful be-
followed him.
agreement
the defendant
cause the
between
prohibited
and
had
an invitation
the woman
that,
leaving
after
for
The woman testified
apartment
to decedent to enter the
moment,
to see the decedent
a
she returned
any circumstances.
a chokehold around the
on the couch with
The trial court further found that the dece-
According to her testi-
defendant’s throat.
defendant,
“If
had inflicted a third
assault
mony,
told the
dent
the decedent
headlock,
by
him in
you.”
putting
the defendant
a
you
hurt her I will kill
She
ever
in
which when considered
context with the
that the decedent and defen-
further testified
defendant,
decedent’s death threat
couch for two to three
dant wrestled on the
rowdy
they stopped,
plus
reputation
being
his
for
and com-
and that after
neither
minutes
bative,
hurt,
they
established a basis for a reasonable
seemed
were not
of them
committed,
belief that he had
was commit-
arguing.
ting,
apart-
or would commit a crime in the
gather-
point,
At this
the woman continued
ment.
things
living
in
room. The next
ing her
any person
also
The trial court
found
thing
the decedent
she said she saw was both
easi-
“the situation of the defendant would
lying
Although
and his friend
on the floor.
ly expect,
justified in
and ... would be
hav-
lay
bodies
within a few feet of where
both
case,
ing
the fear that the intruder
stood,
she
she claimed not to have heard
decedent], might
phys-
[the
use some further
thing.
seen a
The defendant then stabbed
him,
ical force
the defendant.”
her in the head with a knife and she ran from
apartment.
She testified
the stab-
People’s argument
The crux of the
on
bings
twenty minutes after
occurred about
appeal is that the defendant did not establish
she,
decedent,
and his friend entered the
actually
entered defen
and ten
apartment, and between five
minutes
People
apartment
ar
wrestling
the couch.
after the
on
gue
occupying the
that since the woman
apartment had invited the decedent into the
thus,
testify,
not
The defendant did
enter,
key to
and had used her
testimony
only
the woman’s
is the
direct
despite
guest,
an invited
the decedent was
evidence of what occurred.
tenancy prohib
the fact that the terms of her
that,
however,
testimony,
Other
revealed
ited his admission into the
death,
night
on the
of his
grams per hun-
blood alcohol level was .349
Repl.Vol.
Section
Also,
telling
heard
dred milliliters.
he was
8B)
part:
states
they
go
his friend as
left to
over to the
Notwithstanding
go kill that
apartment, “Let’s
dwelling justified
any occupant of a
fucking
known
nigger.” The decedent was
force, in-
using any degree
drunk,
being
bragging
for
a violent
for
about
force, against an-
cluding deadly physical
friend,
despising
killing his best
person
other
when
other
blacks.
dwelling,
entry into the
made an unlawful
occupant has a reasonable
ruling granting defendant im-
and when the
In a bench
person has commit-
munity
prosecution,
court found
belief that such other
from
in addition to
lawfully
ted a crime
that the woman had
returned to
entry,
committing or
things.
the uninvited
or is
apartment to retrieve her
The court
against person
authority
intends to commit crime
concluded that she had lawful
also
uninvited
property
in addition to the
apart-
friend into the
to invite the decedent’s
reasonably
circumstances; however,
and when
ment under these
person might use
that such other
without lawful au-
believes
the court ruled she was
legislative in-
slight,
phrases, we conclude that the
any
no matter how
and “unin-
(emphasis supplied)
tent was to use
against any occupant,
entry” interchangeably.
vited
Guenther,
18-^-201(3),
(Colo.1987),
supreme court
our
‘unlawfully
that: “A
enters
states
the statute as follows:
upon premises
in or
when he is
or remains’
seeking
The burden is on the defendant
licensed, invited,
privileged
otherwise
statutory immunity to
the benefit
to do so.” Neither
18-1-704 nor
18-4r-
preponderance
of evidence
establish
provides
an unlawful invitation.
1)
person made an unlawful
that:
another
2)
dwelling;
entry into the defendant’s
*4
Furthermore,
People
the
are unable to ex-
belief that
defendant had a reasonable
entry
by
can
plain how a lawful
be committed
person had committed a crime
such other
accepting
inas-
an unlawful invitation.
dwelling
in addition to the uninvited
the
much
woman tenant did not have the
as the
committing
entry,
was
or intended
authority to invite the decedent to the defen-
against
prop-
commit a crime
entry
apartment,
was
3)
entry;
erty
to the uninvited
in addition
both unlawful and uninvited.
reasonably
the defendant
believed
Finally,
People
the
contend that the
person might
physical
use
such other
evidence was insufficient to establish
the
slight, against any
no matter how
committed a crime in
decedent
the
4)
occupant
dwelling;
of the
and
the defen-
might
against
and that he
use
force
against
person who
dant used force
the
occupant.
entry
actually made the unlawful
dwelling.
The district court found that the decedent
had inflicted a third
assault
the
primary
construing
Our
task
that it
defendant and
was reasonable
the
give
and
statute is to ascertain
effect
to fear that
Assembly.
v.
intent of the General
Charnes
some further
force
him.
use
(Colo.1988).
Boom,
Interest of goes premises on of another in answer to construing primary Our task a statute is expressed implied or an invitation give to the intent of to ascertain and effect occupant.” owner or 48A C.J.S. Invitation. Boom, Assembly. the General Charnes entry” simply an is one “uninvited (Colo.1988). P.2d 766 665 express implied without an or invitation of premises. of certain the owner 2-4-201, RepLVol. IB) enacting part hand, states in that: a “[I]n entry” On the other means (b) statute, presumed ... it is that: entry upon peaceably lands effected “an effective; entire statute is intended to be but which was without color of without (e) just and reasonable result is in- [and] accomplished title and is means of fraud ” court, Additionally, .... in in- “[a] tended wrong.” some other willful Black’s Law statutory 1968). terpreting language, required (rev. to Dictionary 4th 1706 ed. There- clause, word, give every phrase, fore, effect to person could be invited without color section, presume and cannot means, sentence and through yet of title or fraudulent Assembly language used Indeed, General enter land this oc- idly meaning and with no intent that should family or roommate cur when a member Wells, Marriage given to it.” In re person property, onto his or her invites a (Colo.1993) (fn. 6). P.2d family unaware that another member has directed that not to roommate Here, Assembly since the General used the property. enter the entry” terms “unlawful and “uninvited en- correctly try,” principles of con- the district court found the above “unlawful,” since postulate would lead us to that each that the victim’s was struction And, meaning. it of the woman occu- phrase has a distinct de- violated the view, intended to However, my and “uninvited” were lawful” tenancy. pant’s oral bill things. The House concluding that the mean two different court erred the district to “unlawful and clearly introduced referred first The woman “uninvited.” victim was compromise bill la- entry while the apartment, al- forcible” the decedent invited point “unlaw- adopted at one to ter referred authorized to make was not beit that she points to “uninvit- entry and at two other Indeed, ful” such an invitation. entry” entry. “uninvited re- 13-21-115(5)(c), ed” The term since “invitee” under give great- “forcible order placed to transact property of another he entered homeowners, principal protection to er his wife were mutu- in which he and business Tape Recording of legislation. intent of the removing belongings ally her interested — on H.B. Legislative Committee Conference from the defendant’s Assembly, 1st Session 55th General majority that the stat- disagree with the 22, 1985); Wilbanks, Report A (May the words “unlawful” ute is clear and My Day Legislature, the Make interchange- be used “uninvited” should Experiment Pro- in Home Law: Colorado’s to “the ably. statute does refer While the 1989). tection, (August at 32 it entry,” suggesting that refers uninvited entry,” it does not back to “an unlawful Assembly wanted the statute The General thing. same the words mean the follow that who provide a defense for a homeowner above, provisions of As noted forci- an intruder who not have killed 8B), all bly Lamm also voiced entered. Governor This does are unlawful. uninvited entries the bill as introduced could concern that there cannot be invited entries not mean his home to lure another into allow view, my are also unlawful. which Wilbanks, away.” supra, and then “blow *6 ambiguous. means that the statute Assembly did not at 29. the General apply to a the statute would intend face, can be read to On its the statute resi- person invited into the homeowner’s that “unlawful” and “uninvited” mean either dence. and “uninvit- are the same or that “unlawful” the statute are different. While believe ed” reading of the statute also clarifies This meaning analy- upon is clear based 2-4-203(1) (a) ambiguity pursuant to above, perceived as the statute could be sis (e). consequence of this con- While the ambiguous, ambiguous. If it is as we viewed statutory in- narrowing is a struction interpret it. aids to must look extrinsic legisla- terpretation, it is consistent with the un- protect from tive intent to homeowners IB) Drennon, intruders. states: lawful Cf. P.2d 589 (1) court, ambiguous, the If a statute is general determining the intention of the Furthermore, object sought be at- assembly, may among other mat- consider Assembly did not in- tained the General ters: protecting the homeowner when the clude (a) attained; object sought The to be entrant was an invitee. his extensive (b) which the The circumstances under 18-1-704.5, in- study of Wilbanks observed enacted; statute was applied had been stances where the statute (c) legislative history, any; if The way in a he did not believe to lawful invitees
(d) contemplated by the General As- The common law or former had been remedy ambiguity per- he provisions, including sembly. laws the same To ceived, subjects; proposed a revised statute or similar Wilbanks which, things, among other would substitute (e) consequences particular The of “uninvited.” the word “unlawful” for construction; (f) pur- legislative declaration argues must pose. for the “unlawful” and “uninvited” be both correctly apply. The district court legisla- statute to respect to With entry of the decedent was found that history that the words “un- tive makes clear “unlawful,” since it violated the tenancy
the woman’s oral with the defendant. the district court was mistaken
holding that the decedent was “uninvited.”
The woman tenant did invite the decedent apartment. Despite the fact that
she was not authorized to make this invita-
tion, it was still an invitation.
Construing require the statute to both an
“unlawful” and “uninvited” I believe require
the facts of this ease reversal Accordingly,
district court. I would vacate
the order of dismissal and direct reinstate-
ment of the information on remand.
Roy ANDERSON, Plaintiff-Appellee, P. COMPANY,
DUNTON MANAGEMENT corporation; and Central Life Company, corpora
Assurance an Iowa
tion, Defendants-Appellants.
No. 92CA0420. *7 Appeals,
Colorado Court of
Div. IV. 24,
June 1993.
Rehearing July Denied 1993.
Certiorari Denied Dec. 1993.