A district judge on Wednesday dismissed a sexual assault charge against a Hermosa man suspected of murdering his close friend.
Justin Wiese, 36, smiled and kissed his wife at the end of Wednesday’s hearing in 6th Judicial District Court.
A two-day motions hearing is expected to resume today.
Judge David Dickinson said prosecutors failed to present enough evidence to show that a sexual assault occurred and that Wiese committed it.
Prosecutors have two weeks to decide whether to appeal the ruling.
Wiese remains charged with second-degree murder and manslaughter in the April 2011 shooting death of Darrick Zuber, 42, who was a house guest at Wiese’s home at 152 Hermosa Circle, about 10 miles north of Durango.
Zuber was found lying facedown between the kitchen and the dining area. He wore only a T-shirt and socks.
He suffered a fatal gunshot wound near the back of his left shoulder. A medical examiner said the wound could not have been self-inflicted.
In addition, it was not a “contact wound,” meaning the barrel of the gun was not pressed against his skin when it fired.
Prosecutors accused Wiese of sexually assaulting Zuber while he was too intoxicated to consent.
Zuber had a blood-alcohol level of 0.224 at the time of his death – almost three times the legal driving limit.
A forensic examiner with the Colorado Bureau of Investigation testified Wednesday that test results were inconclusive as far as evidence of a sexual assault.
Judge Dickinson said prosecutors were unable to provide conclusive evidence about when the sexual assault may have occurred or how intoxicated Zuber may have been at the time of the alleged assault.
Zuber and Wiese were close friends and both worked at Durango Mountain Resort – Zuber as a mechanic and Wiese as the head of the information technology department.
DMR has declined to say whether Wiese remains employed with the resort.
Zuber, who lived at Cascade Village north of the ski area, had recently lost his driver’s license for drunken driving. He frequently stayed in Wiese’s guest bedroom, and Wiese would give him rides.
Wiese’s wife was out of town the night of the shooting.
Wiese told investigators he and Zuber drank beers and whisky, ate dinner, watched a movie and went to bed.
He woke up the next morning to find Zuber lying face-down on the ground.
He called 911 to report Zuber had committed suicide.
On the recording, Wiese is heard saying: “Um, I think my buddy just committed ... suicide.” He then makes what sounded like a short, nervous laugh. “I just woke up, and my buddy is ... he’s on the floor, he’s blue, and I found my guns on the floor.”
When investigators arrived, they found two guns that belong to Wiese sitting on the kitchen table.