A Colorado Springs man who allegedly gave an intruder he found sleeping in the basement of his downtown apartment building five seconds to leave before fatally shooting him about two months ago was indicted Tuesday on a second-degree murder charge.

Patrick Thomas Rau, 28, is accused of killing Donald Wayne Russell, 37, "after giving a five second countdown warning," according to the El Paso County Grand Jury's indictment. Rau is charged with one count of second-degree murder, heat of passion, in the Jan. 19 shooting at 219 N. Wahsatch Ave., an older private home that is now several apartments.

Police have said they believe the victim was homeless.

According to another tenant, Rau had gone downstairs with a headlamp and a gun after his wife noticed the locked basement door wasn't completely shut. The tenant, Ryan O'Connell, told the Gazette after the shooting that residents previously had found transients inside the building and hanging around the property.

O'Connell said at the time that he heard a commotion coming from the basement directly below his apartment. He said he heard his neighbor, since identified as Rau, "counting down, five, four, three, two, and one," then heard a shot. As his neighbor counted down, O'Connell said he could hear another man's voice which he didn't recognize "screaming stuff I couldn't make out."

O'Connell said Rau later told him that he woke the man he found sleeping in the basement and asked him to leave. The man then "started freaking out," throwing things and cursing, O'Connell said Rau told him.

"At the end of the day, he's a good Samaritan protecting the roof we all live under," O'Connell said in January.

According to the indictment, the grand jury found the killing occurred in the heat of passion: Russell's screaming and throwing objects was "a serious and highly provoking act" that affected Rau "sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard."

O'Connell, who hadn't heard Rau had been indicted when contacted Wednesday by The Gazette, sounded surprised by the decision.

"He was in the right. Pat did nothing wrong," he said.

A 4th Judicial District Attorney's Office spokeswoman declined to comment on whether the provisions of the so-called "make my day" law were considered, citing an "open and pending case."

Colorado's self-defense statutes permit the use of deadly force only if a person believes a lesser degree of force is inadequate and that they or another person is in "imminent danger" of death or serious injury.

The "make my day" law provides a lower bar for deadly force, but it applies to intruders in occupied dwellings.

No one lives in the basement of 219 N. Wahsatch Ave., and its door was always locked, O'Connell said, calling it "empty," "abandoned" and "unlivable."

Under "make my day" - officially known as the Colorado Homeowner Protection Act - a person is immune from criminal prosecution and civil liability if they use lethal force against an intruder in the belief that the intruder intends to commit a crime against a person or property.

Self-defense claims have had mixed results in El Paso County in recent years.

Last April, a different grand jury voted to indict homeowner Michael Joseph Galvin on charges of negligent homicide for firing into a detached garage and killing an intruder, Robert Carrigan, 54. Galvin faces up to three years in prison if convicted at a trial scheduled for this summer.

After fatally stabbing a man during an anonymous sex hookup in his Colorado Springs home in 2015, Fernando Rosales said he felt he had no other option after the victim punched him and refused to leave. Prosecutors disagreed, and a jury upheld charges of second-degree murder, leading Rosales to be sentenced to 26 years in prison.

In another high-profile case, an El Paso County grand jury in 2010 declined to indict Chang Ho Yi, a Colorado Springs liquor store owner who chased a shoplifter out of his store on North Academy Boulevard before shooting him in the face at point-blank range, shattering his jaw. A wrongful-injury claim filed by the victim was rejected at a civil trial.

In 2009, prosecutors declined to pursue charges against three men who killed a burglar at a Knob Hill auto lot in 2009 - only to be second-guessed by a jury at a civil trial. That case ended with the panel awarding $300,000 to the daughter of the man who was killed, Robert Fox, though the men involved were never charged. Civil trials require a lower standard of proof than criminal trials - demanding a "preponderance of evidence" rather than proof "beyond a reasonable doubt."

According to inmate records, Rau was in the El Paso County jail on $25,000 bond.


Lance Benzel contributed to this report.


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