Routt County judge rejects homeowner’s ‘Make My Day’ defense in Jan. 29 shooting |

Routt County judge rejects homeowner’s ‘Make My Day’ defense in Jan. 29 shooting

After considering the evidence and witness testimony, a Routt County District Court judge determined Thursday, Dec. 15, that William Bryce Scholle failed to prove he is entitled to immunity under Colorado’s “Make My Day” law in the shooting of 29-year-old Christopher Cotton on Jan. 29.

District Judge Michael O’Hara denied the defendant’s motion to dismiss after Scholle amended his original story to include new details about an alleged exchange of punches, as well as a claim that Cotton appeared to reach for a weapon in his waistband, before Scholle pulled the trigger.

The “Make My Day Law” grants defendants who use deadly force against home intruders immunity from prosecution as long as certain conditions are satisfied. In Scholle’s case, the judge determined that those conditions were not met, so the case remains on track for a jury trial.  

Scholle is facing two felony charges — first-degree assault and menacing — and a misdemeanor charge of the prohibited use of a firearm.

According to witness testimony, Cotton drove along a primitive road and got stuck in the snow behind Scholle’s still-unfinished home off Routt County Road 35, about eight miles south of Steamboat Springs, around 8 p.m. Jan. 29.

Scholle denied there was anything akin to a road around the back of his home, but the court relied on satellite imagery to determine Cotton had driven on a temporary construction access road. 

According to the court’s recollection of events, Scholle moved his daughter inside his home with the rest of his family and grabbed a firearm after Cotton pulled up and exited his vehicle. Scholle claims that Cotton took a few steps toward the back patio of the home and that he told Cotton to put his hands up and return to the vehicle.

Both Scholle and his wife, who had joined Scholle outside during the incident, were said to have demanded that Cotton lay on the ground, but Cotton replied, “I’m not doing that,” because the ground was covered in snow.

Get the top stories in your inbox every morning. Sign up here:

According to court documents, Scholle then told Cotton to lay down on a concrete patio instead. Cotton laid down on the patio but returned to his feet almost immediately, and that’s when Scholle shot Cotton near his left hip. Cotton survived but was severely injured.

During a Nov. 15 hearing, Scholle offered new details in his testimony. He said that Cotton lunged forward and punched him while approaching the home’s back patio, and Scholle said he reacted by punching Cotton back. Scholle said he didn’t remember the exchange of punches until the following day when he saw an injury to his hand. 

Scholle also claimed that as Cotton stood up from the concrete patio, Cotton got into a crouched position and came after Scholle and his wife while reaching for what appeared to be a weapon in his waistband. 

But Scholle never mentioned exchanging punches or seeing Cotton reach for a weapon in any of his previous testimonies, which the court found suspicious. In the original version of Scholle’s story, he said Cotton “just kept walking toward us,” when justifying the use of a firearm. 

“The court finds that the statements made by Mr. Scholle before learning the intricacies of the Make My Day statute or the requirements of self-defense are far more reliable than his now informed but inconsistent testimony some 10 months later,” the judge’s order reads. 

O’Hara found it “incredible” that Scholle would forget such important details when speaking with investigators immediately after the shooting, especially regarding facts such as being punched or seeing Cotton reach for a weapon. 

If Scholle’s revised account of events was admitted by the court, it could have potentially satisfied some of the requirements for immunity under Colorado’s “Make My Day” law. But, the court determined that none of the requirements were met with a preponderance of evidence, saying Scholle’s initial testimony didn’t warrant a reasonable belief that Cotton was about to commit a crime or use physical force against Scholle.

When Scholle and his wife originally offered statements to law enforcement on the night of the incident, the couple remembered Cotton saying he “was not there to hurt anyone,” to which Scholle’s wife yelled back, “You are here to hurt us.”

According to court documents, while Scholle’s wife was on the phone with 911, the dispatcher asked her if Cotton was armed, to which she replied, “No, there is a drunk man in the backyard.” 

“The court finds that Mr. Scholle did not have a reasonable belief that the driver was doing anything at the time he was shot other than standing up, which is not a crime under any reasonable interpretation,” the judge’s order reads. 

The judge also considered how Scholle and his wife described Cotton. The couple reportedly said Cotton was “drunk, intoxicated, wasted, a crackhead, a mess,” and their assessment was considered alongside statements from Cotton, who reportedly said, “I am going to freeze to death,” “I am your neighbor,” and “I am not here to hurt you.”  

The judge also determined that Cotton had not made an unlawful entry into the dwelling. The court determined that “dwelling” and “premises” are two separate things, and after considering numerous other court cases, the judge concluded that the concrete patio where Cotton was shot shouldn’t be defined as a part of the dwelling.

If the patio area was enclosed and a part of the home’s footprint, it could be considered part of the dwelling, but because it’s not, the court defined the patio as part of the backyard. Even if the court had determined the patio was part of the dwelling, the judge pointed out that Cotton was instructed to move over and lay down in that area after refusing to lay down in the snow. 

“Mr. Scholle cannot order an intruder into the dwelling in order to avail himself of this statute,” the order reads. 

The judge’s order says the most difficult factor of the case to discern is how to interpret Scholle’s actions after firing his gun. 

The prosecution argued that Scholle left Cotton for dead by closing the sliding door and locking it, which the judge admitted could have been due to high adrenaline or fear that Cotton could still cause physical harm. The judge, however, rejected the latter assessment, saying Scholle’s fear of physical harm was unreasonable considering the evidence. 

The case is scheduled to appear before a jury starting on Jan. 23. 14th Judicial District Attorney Matt Karzen is the prosecutor, while Scholle is being represented by Denver-based law firm Brownstein, Hyatt, Farber and Schreck.

Support Local Journalism

Support Local Journalism

Readers around Steamboat and Routt County make the Steamboat Pilot & Today’s work possible. Your financial contribution supports our efforts to deliver quality, locally relevant journalism.

Now more than ever, your support is critical to help us keep our community informed about the evolving coronavirus pandemic and the impact it is having locally. Every contribution, however large or small, will make a difference.

Each donation will be used exclusively for the development and creation of increased news coverage.