The Texas businessman accused of drowning his wife in Hinsdale County is no longer facing a first-degree murder charge.

On Monday, Frederick Mueller won his March 11 motion for acquittal on that charge. 

A charge of second-degree murder that was filed in the 2008 death of Dr. Leslie Mueller will proceed.

“The People are not surprised by the ruling and do not view it as a significant change in the case,” said District Attorney Dan Hotsenpiller, who noted that the charge of second-degree murder also had been offered at Mueller’s first trial.

That trial ended in February with a narrowly split jury of 11 not-guilty votes to one guilty vote. Mueller was released on bond after having spent a year in custody at the Gunnison County Jail. He faces trial for second-degree murder starting May 20; conviction can bring up to 48 years in prison.

“The People remain convinced that the defendant is responsible for the death of Leslie Mueller and believe this case must be decided by a jury,” Hotsenpiller said on Tuesday.

Mueller defense attorney Pamela Mackey declined to comment on Monday’s ruling because of the upcoming trial.

Mueller, 50, of San Angelo, Texas, was arrested in 2011 after a lengthy investigation into the death of Dr. Mueller, who died during a hike on May 3, 2008, near their Hinsdale County vacation home. 

Frederick Mueller said his wife fell to her death after stopping above a waterfall to pose for a picture. According to prior testimony, Mueller said that a bird startled Dr. Mueller’s border collie pup as she turned. She plummeted over the ledge, struck her head and shoulders on a rock below and “slid” into Cataract Gulch, which swept her from pool to pool so fast that Mueller could not get to her.

Prosecutors say the evidence tells a different story: Dr. Mueller could not have landed as her husband said; there are no injuries consistent with a fall like he described; a body would not have moved through the water as he said, and Dr. Mueller’s clothing was not damaged or disturbed, as one would expect.

A Lake City man to whom Mueller had gone for help later found Dr. Mueller face down in the stream, her head lodged beneath a log.

Hotsenpiller said during closing statements at Mueller’s first trial that natural forces didn’t put Dr. Mueller where she was found. He alleged that Mueller had shoved her there and that facial abrasions suggested she had been held down against the stream bed.

Prosecutors had also pointed to scratches on Mueller’s face they said could have come from the plastic nubs on Dr. Mueller’s gloves, but which Mueller’s defense team said came from branches as he frantically tried to reach his wife. Mueller’s broken glasses weren’t proof of a struggle; he had lost them while trying to get to Dr. Mueller, it was argued.

Defense attorneys dismissed aspects of the state’s case as “cockamamie” and said that investigators were primed from the get-go to disbelieve Mueller. A believable motive was never established, the defense said, calling Dr. Mueller’s death a “tragic accident.” There is no evidence to support prosecutors’ theories, the defense said.

Mueller’s attorneys twice at trial made motions for acquittal, but at the time, those were denied because the court didn’t want to act as a “13th juror,” Chief Judge J. Steven Patrick explained in his Monday order.

Mueller’s motion for a judgment of acquittal was renewed March 11; no response was filed. Mueller’s defense team argued the state had not met its burden of proof.

Among other factors, first-degree murder requires evidence of intent and deliberation. Second-degree murder requires proof that a person acted “knowingly.”

“The court ... concludes that as to first-degree murder... the totality of the evidence, even in a light most favorable to the People and reasonable inferences from that evidence, cannot establish intent or deliberation,” Patrick wrote.

He said that from the totality of evidence prosecutors presented at trial, it can be reasonably inferred that there was some sort of scuffle between the Muellers; that Frederick Mueller’s “version of what transpired could not physically have transpired” and that he “artificially placed her body at the point where she was recovered.”

The defense said the theories were “speculative at best and devoid of evidentiary support,” Patrick noted in his ruling.

“The Court agrees that there is no evidence in the record, even in the light most favorable to the People, and giving reasonable inferences to evidence in the record that (Mueller) transported Dr. Mueller, either while she was alive or thereafter, to where her body was recovered, no evidence that there was a chase, no evidence that he held her face under water until she drowned, nor where she drowned,” Patrick wrote.

The question he had to decide was whether prosecutors had offered enough evidence to establish all the elements of first-degree murder beyond a reasonable doubt.

The prosecutors’ contentions as to possible dissension in the Mueller marriage, a “scuffle” uphill from where Dr. Mueller’s last photo was taken and the time required to drown a person don’t establish premeditation, Patrick found.

A scuffle away from the creek and the ultimate drowning, absent any other evidence, does not give rise to a reasonable inference of premeditation, he said.

“The Court necessarily concludes that there is no evidence, nor evidence from which it can be reasonably inferred in this instance, that the defendant acted after reflection and judgment,” he wrote, granting the motion for acquittal on first-degree murder.

Patrick ordered trial on the second-degree murder charge to proceed.

A status conference is set for May 8, and an omnibus hearing is slated for May 10. The May 20 trial is set for five weeks and is to again be held in Gunnison.