A Gilpin County prosecutor committed misconduct when he told jurors they would have to believe the victim “fabricated this whole entire thing” in order to acquit a defendant of sexual assault, Colorado’s second-highest court ruled on Thursday.

Nonetheless, a three-judge panel for the Court of Appeals found the prosecutor’s misrepresentation of the law did not merit reversing the conviction of Joshua James Cuellar because the evidence against him was “overwhelming,” and the stray remarks did not harm the defense.

Until now, wrote Judge Lino S. Lipinsky de Orlov in the March 2 opinion, “no reported Colorado case has addressed whether it is proper argument for a prosecutor to advise the jury that it may acquit the defendant only if it disbelieves everything one of the prosecution’s witnesses said while testifying.”

Cuellar stood trial in March 2020 for sexually assaulting a woman, identified as B.W., forcibly in a Black Hawk hotel room. Cuellar invited B.W. to join him at a casino late one night in January 2018 and the two of them got a room. They were in the room for approximately 45 minutes, after which Cuellar left to continue gambling. B.W. called the front desk to report an assault and police arrested Cuellar.

Cuellar initially denied having sex with B.W., and subsequently changed his story about what happened in the room. At trial, Cuellar argued B.W. had consensual sex, but she became upset with him. A jury found Cuellar guilty and he received 20 years to life of intensive, supervised probation plus 90 days in jail.

On appeal, Cuellar alleged several errors at his trial, including statements made during closing arguments.

“In order for you to find the defendant not guilty,” the unnamed prosecutor told jurors, “you have to believe a number of things. You have to believe that the victim fabricated this whole entire thing, that she lied about this whole – “

Cuellar’s lawyer interrupted with an objection. District Court Judge Todd L. Vriesman cautioned the jury it needed to “follow the instructions that are given in this particular case as to what the law is,” and permitted the prosecutor to continue.

“You have to believe that the victim fabricated this whole entire thing. That she was able to fabricate an elaborate story and get the defendant falsely accused,” the prosecutor added.

The prosecutor also addressed the argument from Cuellar’s attorney that B.W.’s actions leading up to the rape suggested she intended for the sex to be consensual.

“What he’s insinuating to you is that you should find the defendant not guilty because the victim invited this upon herself,” the prosecutor said. “That’s what he’s insinuating. This society, our laws didn’t tolerate that.”

Cuellar argued to the Court of Appeals panel that his attorney did not say B.W. had “invited this upon herself,” and the prosecutor mischaracterized the argument about consent. Further, the jury did not have to find B.W. “fabricated this whole entire thing” in order to believe her testimony did not support the legal elements of sexual assault.

The appellate panel agreed on both fronts. The prosecutor’s comment about disbelieving the victim potentially made it easier to convict Cuellar.

The prosecutor “unequivocally told the jury that it must disbelieve the prosecution’s witness before it could acquit the defendant,” Lipinsky wrote. “Moreover, here, the prosecutor argued that the jury had to believe that B.W. lied about the entire incident before it could acquit Cuellar. That was a misstatement of the law.”

Likewise, the defense attorney’s attempt to show B.W. consented to sex did not equate to a claim that she “invited” a violent assault upon herself.

“The prosecutor who made the statements exceeded the wide latitude afforded to him by improperly characterizing the theory of defense,” Lipinsky explained.

However, the panel declined to overturn Cuellar’s conviction. The prosecutor’s comments were brief, the evidence was strong and Vriesman had properly instructed the jury about the prosecution’s obligation to prove the charge beyond a reasonable doubt, the panel reasoned.

The Court of Appeals also determined the prosecution and a law enforcement witness improperly raised the fact that Cuellar invoked his constitutional right against self-incrimination after his arrest. However, the mistake did not harm Cuellar’s defense because the panel concluded the prosecution had not used Cuellar’s silence to imply he was guilty – a move that would, in fact, require reversal of the conviction.

The case is People v. Cuellar.