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Murder Charge Dismissed Against Sedalia Man Who Killed Son: Judge Cites 'Make My Day' Law

DOUGLAS COUNTY, Colo. (CBS4)- A judge in Douglas County has dismissed a first-degree murder charge against a Sedalia man who shot and killed his son in July 2017. The judge noted what happened fell within Colorado's "Make My Day" law.

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Frank Leo Huner (credit: CBS)

In a nine-page ruling released last Friday, following a multi- day hearing, Judge Theresa Slade cleared Frank "Leo" Huner in the shooting death of his son, Nick, 33. Prosecutors say they are not giving up.

Vikki Migoya, a spokesperson for District Attorney George Brauchler, told CBS4," While we respect the court's decision, we respectfully disagree and plan to appeal."

The shooting occurred around 10:15 p.m. on July 1, 2017. Nick Huner, who had a history of drug and mental health problems, entered his father's home. At the time, there was a mandatory protection order in place protecting Frank Huner from his son.

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Nicholas Huner (credit: Arapahoe County)

Five nights before the shooting, Frank Huner said his son broke into his home and threatened to "beat his head in." According to the judge's order, Nick Huner had previously set his family's vacation home in the mountains on fire, had threatened to slit his parents' throats, threatened to shoot his brother and kill his father with a hammer.

The night of the shooting, Frank Huner sent his son a text message reading, "You are not welcome around my house or your family. We will call the law and we will protect ourselves from you. You need help. Mentally and you also have a drug problem. I am willing to help you get professional help. But I am not willing to play your game anymore. This is from your dad..get help and get it now.. this is my house stay the F--- out …"

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(credit: CBS)

On July 1, 2017, Frank Huner said his son broke into the home and was yelling, "I am going to kill you." Evidence shows Nick Huner was under the influence of alcohol and had ingested marijuana.

The judge said in her ruling that Nick Huner took a taxi to his father's house in Sedalia. Frank Huner said he awoke to a loud noise so he grabbed his gun. He saw a dark figure and a male voice screaming, "I am going to kill you!"

Huner said his son continued to advance toward him which is when he shot his gun "until my gun was empty."

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(credit: CBS)

Slade wrote in dismissing the murder case, "...the defendant , as the occupant of his dwelling and home, was justified in his use of deadly force against the Decedent… when the Decedent knowingly and unlawfully entered Defendant's dwelling with the intent to physically cause harm and thereby commit a crime therein."

Slade indicated there was a preponderance of evidence that Frank Huner had met the standards of the "Make My Day" law.

Frank Huner's attorney, Harvey Steinberg, declined to comment on the judge's ruling in the case. Frank Huner also declined to discuss the ruling.

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