A state district judge on Wednesday found sufficient evidence for a 17-year-old Mexican national to stand trial on a charge of second-degree murder in the October shooting death of James Pogline.
But Judge Paul McLimans said prosecutors did not prove that Hugo Antonio Silva-Larios had been in possession of a "dangerous weapon." The judge ruled that prosecutors failed to establish that a sawed-off .22-caliber rifle met the statutory definition of a dangerous weapon.
"There was no evidence of the length of the barrel," defense lawyer Kristopher Hammond said after the hearing.
Prosecutors did not present the gun as evidence at a preliminary hearing Wednesday in Moffat County District Court. Instead, they offered a photograph of the weapon.
"You have a picture (of the gun), but it certainly doesn't show the entirety of the weapon," McLimans said.
As a result, the defendant will not face the Class 5 felony charge at trial. But McLimans allowed prosecutors to move forward with a sentence-enhancing charge of committing a violent crime using a deadly weapon.
The judge's ruling came after prosecutors questioned a Craig police officer and an agent from U.S. Citizenship and Immigrations Services about statements that Silva-Larios made during questioning the night of the shooting.
At the outset of Wednesday's hearing, relatives and friends of James Pogline sat stoically in the front row of the courtroom, but some turned away with angry faces or blotted tears from their eyes when officers escorted Silva-Larios, dressed in prison stripes, to a seat at the defense table.
Silva-Larios is being held on a $1 million bond in the Moffat County Jail in connection with the shooting death of Pogline on Oct. 22 at the Timberglen Apartments. Pogline died the next day.
Colorado State Patrol Trooper Marty Smith pulled over a pickup that Silva-Larios and other passengers were riding in later that night. Smith said a .22-caliber sawed-off rifle and another gun were in the vehicle, according to past court testimony.
Benito Baca, a federal immigration agent, testified that Silva-Larios several times changed a story of the night's events during an interview with the juvenile in the early morning hours of Oct. 23 at the Moffat County Public Safety Center. Baca said the interview was conducted in Spanish in the presence of the juvenile's father.
Baca testified that Silva-Larios said he went to the apartment complex with his cousin, Octavio "Alex" Chavez, and two women to "assist or attend to the females."
Baca said that he received answers to his questions from Silva-Larios in "bits and pieces."
"At first, he denied any knowledge of the shooting," Baca said. "As the interview progressed, he said he was involved with the shooting. When we got into it, he stated he did carry a weapon."
Baca said that Silva-Larios recanted several different stories of what happened that night. One version was that the juvenile saw James Pogline with a gun; another was that he heard a shot and saw Pogline with a gun, Baca testified.
Baca said the constant throughout Silva-Larios' questioning was that the juvenile said he had first heard a shot fired. Later in the interview, Silva-Larios said Pogline and Chavez had gotten into a "physical altercation," Baca said.
Hammond pressed the judge to consider that the shooting may have been committed in the "heat of passion" and as self-defense, a Class 3 felony.
But Judge McLimans bound over the second-degree murder charge.
"It's clear to me that the evidence is sufficient ... (Silva-Larios) fired a weapon," he said.
Silva-Larios is scheduled for an arraignment hearing Wednesday.
Amy Hatten can be reached at 824-7031 or firstname.lastname@example.org