Colorado’s second-highest court agreed on Thursday that a Denver prosecutor inappropriately commented on a defendant’s constitutional right to silence during a jury trial, but the misconduct did not warrant a new trial in light of the overwhelming evidence of guilt.

Byron L. Whitehorn is serving a prison sentence of 24 years to life after jurors in 2021 convicted him of sexually assaulting four women on separate occasions. Whitehorn picked up each heavily intoxicated victim in Lower Downtown and had sex with her. At trial, the defense maintained the encounters were consensual.

During the prosecution’s rebuttal closing argument, the unidentified prosecutor told jurors to “take all of this evidence that you’ve heard and consider it in light of your own experiences in life.”

“What’s really critical about that,” she continued, “is when you think about who this person is, this is a man who was 50 years old — nearly twice the age of each and every single one of these women — who is married, young kids. And while he has the absolute right to remain silent, that doesn’t mean that when you go back into that jury room — does that mean you can’t ask yourself, ‘What is he doing there?'”

The defense objected. District Court Judge Ericka F.H. Englert overruled the objection but said she would “caution” the prosecutor about commenting on Whitehorn’s right to remain silent.

Whitehorn raised multiple claims on appeal, including that the prosecutor inappropriately suggested jurors should infer Whitehorn was guilty because he exercised his right to not explain his actions. A three-judge panel of the Court of Appeals agreed with that point.

“We conclude that the court erroneously allowed the prosecutor to engage in misconduct by not striking the statement,” wrote Judge Sueanna P. Johnson in the March 27 opinion.

She elaborated the prosecutor’s comments were problematic for multiple reasons. First, jurors heard no evidence that Whitehorn was married with “young kids,” as the prosecutor said. Second, the prosecutor could have rhetorically asked why Whitehorn was in LoDo without also calling attention to his decision not to testify.

Further, the prosecutor “wanted the jury to use its common sense and ask itself why a man who was married with young children was trolling LoDo, where the assailant picked up the victims, instead of being at home with his family,” wrote Johnson. “In other words, because he did not testify regarding the reason for his presence in the area, the jury could — and should — infer the worst.”

However, the panel concluded the misconduct did not merit a new trial because the evidence of Whitehorn’s guilt was “overwhelming,” the comment was brief and the jury received an instruction not to hold Whitehorn’s silence against him.

The panel’s opinion did not name the prosecutor and the Denver District Attorney’s Office did not provide her identity in response to questions from Colorado Politics.

The case is People v. Whitehorn.