Colorado’s second-highest court reversed a Boulder County defendant’s sexual assault conviction last week after concluding that a trial judge should have intervened to stop the prosecutor from inappropriately using the man’s constitutional right to silence to suggest he was guilty.

Prosecutors charged Charles G. Higdon III with two counts of sexual assault. Jurors acquitted him of one and convicted him of the other. He is serving a six-year prison sentence.

The alleged victim was extremely intoxicated and Higdon had also been drinking prior to the sexual encounter. The dispute at trial was the consensual nature of the interaction.

Although Higdon spoke to Longmont police that same night, they did not arrest him until six months later. At the police station, Det. Esteban Lopez advised Higdon of his Miranda rights to silence and to speak with an attorney. They talked briefly about Higdon’s version of events.

At trial, Higdon testified in his defense. The prosecutor began questioning Higdon about the specifics he shared at trial, but had not told Lopez.

“In terms of the details you provided to him, you didn’t tell him a lot of the things that you talked about today, right?” the prosecutor asked.

“I was very nervous. I could hardly speak,” responded Higdon.

“But you did talk to him about some of the stuff that happened that night, right?” said the prosecutor. “You didn’t break it down for him like you did for this jury today, right?”

“No,” said Higdon. “I thought we would have — there would be the time to speak later.”

“OK. And in terms of giving more details to Det. Lopez, you didn’t do that, either?”

“No,” said Higdon.

Finally, during closing arguments, the prosecutor returned to Higdon’s testimony.

“None of those details were discussed, not on that night, and not in … May of 2021, when (Detective) Lopez talked to him again. At that point in time, he’s under arrest for sexual assault. He’s still not sharing those details,” the prosecutor said.

On appeal, Higdon argued that the law clearly establishes that the prosecution cannot imply a defendant is guilty because he chose to exercise his constitutional right to silence after receiving a Miranda warning, and that any information Higdon omitted in his statements is not admissible.

The prosecution “is entitled to cross-examine defendants on prior inconsistent statements,” responded Assistant Attorney General Cata A. Cueno. “Defendant’s mixture of consistent and inconsistent statements, which continued to morph into different variations throughout his testimony, made it difficult to track the level of consistency.”

But a three-judge Court of Appeals panel disagreed.

The prosecutor “did not ask about any specific details or otherwise point to any inconsistencies between Higdon’s statements to Detective Lopez and his testimony at trial,” wrote Judge Jaclyn Casey Brown in the April 30 opinion. “Rather, the prosecutor repeatedly asked Higdon about not having provided ‘the details’ to Detective Lopez that he testified to at trial.”

She added that a defendant’s trial testimony is not inconsistent with an earlier account to police simply because it is more detailed. In Higdon’s case, the prosecutor’s seeming goal was to suggest that Higdon was guilty because he did not tell Lopez everything.

Although the defense at trial did not object, the appellate panel determined the error was so obvious that then-District Court Judge Bruce Langer should have intervened without an objection.

“Accordingly, we conclude that the district court erred by allowing the prosecutor to improperly comment on Higdon’s post-Miranda silence to imply guilt in violation of his constitutional right to due process,” Brown wrote.

The Court of Appeals did not identify the prosecutor whose questioning triggered reversal of Higdon’s conviction, but the district attorney’s office for Boulder County said that Nick Trevino and Alex Zowin were the trial prosecutors.

The case is People v. Higdon.