Craig Daily Press

Craig — The 14th Judicial District Attorney’s Office has appealed a Moffat County Court judge’s dismissal of an attempted murder charge against defendant James Jerome Barry.

Barry is charged with two counts of kidnapping, two counts of second-degree assault, robbery, extortion and menacing, all felonies. The charges stem from an alleged incident Sept. 19, 2007.

A Craig woman claimed Barry and other suspects kidnapped, assaulted and strangled her.

At a Feb. 5 preliminary hearing, Judge Sandra Gardner dismissed the attempted second-degree murder charge, finding no probable cause.

The District Attorney’s Office filed its appeal Feb. 14, writing “the people presented sufficient evidence at the preliminary hearing to establish probable cause.”

Brett Barkey, the former chief deputy district attorney for the Craig office, wrote the appeal, which has yet to be ruled on. Its undecided status delayed Barry’s arraignment scheduled for Wednesday in Moffat County District Court.

The appeal cited statements from the victim — the only witness to testify at the preliminary hearing — alleging that she was forced to strip, driven to an isolated area, struck in the face and head, and crawled naked and screaming trying to get away. The defendant and two others followed, kicking and striking her.

One of them allegedly placed “a ligature device around her neck from behind her and tightened it by twisting until (the victim) could not breath or speak,” according to the appeal. The victim “thought she was about to pass out before the ligature device was loosened.

“All the while, (the victim) thought she was about to be killed.”

Choking can “cause unconsciousness in seconds and death in minutes,” according to the appeal, and such conduct is “a knowing and substantial step toward causing the death of another person,” and establishes probable cause for attempt to commit second-degree murder.

There also is probable cause that the defendant and co-defendants “aided and abetted each other in this effort and should therefore be accountable as complicitors even if they did not effect the choking.”

Judge Gardner’s dismissal was an error, according to the appeal, and the court should reinstate the charge.

Barry’s defense attorney, Kristopher Hammond, filed a response March 18. The District Attorney’s Office has five days to file a response of its own.

The defense’s response states “whoever placed the item around (the victim’s) neck tightened it for a few seconds, then loosened it and let go of it. No passing cars or other external event caused the stopping.”

The victim “took the neck incident as a threat, not as an attempt to kill her,” Hammond wrote, citing victim statements indicating she didn’t hear the defendants speak of killing her, and that she took the choking incident to be a threat.

“Defendant maintains that attempted murder involves a genuine attempt to kill someone, such as firing a gun at a person, but failing to inflict a mortal wound,” the defense response reads. “The conduct described by (the victim) is akin to pointing a gun at someone, but not firing, or purposefully firing in the air as a warning or threat.

“For the foregoing reasons, Judge Gardner’s finding of no probable cause was not an abuse of discretion and should stand.”

Because there has been no ruling on the appeal, Barry’s arraignment was continued.

Michael O’Hara, chief judge of the 14th Judicial District, stayed further proceedings until a decision on the appeal has been made. O’Hara will rule on the appeal, and then set a new arraignment date.

In separate cases, Barry faces four misdemeanor assault charges, and obstructing a police officer and driving under restraint charges, also misdemeanors.

Those cases are scheduled to be heard at 3:30 p.m. April 15.

O’Hara said he would rule on the murder charge appeal before the next court date to coordinate travel arrangements for Barry, who is currently in custody in El Paso County.