Colorado’s second-highest court concluded last week that a Lincoln County prosecutor did not misstate the law to a degree that undermined a jury’s assault verdict against the defendant.

During closing arguments in Phillip Archuleta’s 2023 trial, the prosecutor suggested to jurors that Archuleta did not have to make contact with a corrections officer during a scuffle to be found guilty of assault, even though Colorado law requires Archuleta to have “applied physical force.” Archuleta contended on appeal that the mischaracterization amounted to prosecutorial misconduct.

By 2-1, a three-judge Court of Appeals panel decided that any misstep by the prosecutor did not cast serious doubt on the outcome of the trial.

The panel’s “review of the record reveals overwhelming evidence that Archuleta did apply physical force to (the victim),” wrote Judge Matthew D. Grove in the April 30 opinion. Video footage “plainly shows Archuleta applying physical force to (the victim) when he shoved him into the trash can.”

Judge Daniel M. Taubman disagreed. He believed the surveillance footage did not clearly show an application of force. Further, Taubman concluded the prosecutor’s misstatement of the law rose to the level of misconduct.

“Rather than applying the evidence to the statute, the prosecutor sought to make the statute fit the evidence. This was a ‘foul’ blow that undermined the fundamental fairness of the trial,” wrote Taubman. “In my view, this error was plainly improper and casts doubt on the reliability of the conviction.”

Although the Court of Appeals did not name the prosecutor, the 23rd Judicial District Attorney’s Office identified him as Rick Rabner.

Prosecutors charged Archuleta with assaulting an employee at Limon Correctional Facility. There was a physical interaction in which officers pepper sprayed Archuleta, and Archuleta swung his fists. The victim fell onto a nearby trash can. Video footage did not definitively show Archuleta making contact with the victim, and the only person present who testified at trial acknowledged that he did not see Archuleta land a punch.

To convict Archuleta, jurors had to find that he “knowingly and violently” applied physical force to the victim.

In closing arguments, Rabner told jurors that “swinging closed fists — landing or not — that’s violent.” After Archuleta’s attorney rhetorically asked jurors where they saw Archuleta make contact with the victim on the video, Rabner suggested contact was unnecessary.

“Did he knowingly and violently act towards a member of staff? That’s it. Didn’t have to punch, didn’t have to kick, didn’t have to stab, didn’t have to shoot. He had to knowingly and violently act towards a member of staff,” said Rabner. “Did he knowingly and violently — while in custody, confined to the detention facility — do what he shouldn’t have done against a staff member?”

The Court of Appeals panel determined the evidence was sufficient for the jury to find Archuleta guilty. The majority further concluded that, while Rabner’s statements “may have been improper,” the broader context did not warrant reversal of Archuleta’s conviction.

Grove, writing for himself and Judge David H. Yun, noted the prosecutor and District Court Judge H. Clay Hurst both told jurors at various points about the requirements of Colorado law. Consequently, jurors would have understood that physical contact between Archuleta and the victim was required.

“Thus, even if the jury were to conclude that Archuleta’s punches earlier in the confrontation did not make contact, and even if it were to also find that Archuleta was not applying physical force when he and (the victim) began tussling,” wrote Grove, “the shove that propelled (the victim) into the trash can and then onto the floor provides overwhelming evidence that Archuleta applied physical force.”

Taubman, in dissent, took issue with that analysis. He argued that Rabner relied on Archuleta’s punch, and not the shove into the trash can, as the act of assault. The grainy video, which jurors were not allowed to slow down or pause, was also unclear, Taubman continued.

“‘Didn’t have to punch, didn’t have to kick, didn’t have to stab, didn’t have to shoot.’ With this refrain, the prosecution repeatedly argued in closing that defendant, Phillip Archuleta, could be convicted of second degree assault without the actual application of physical force,” wrote Taubman. “The error here was obvious. The prosecutor’s comments ‘eviscerated a key legal element’ of second degree assault by suggesting that the application of physical force was unnecessary.”

Despite the ambiguity of the video, Taubman believed there was “barely sufficient evidence” to support the jury’s verdict. Therefore, he would have reversed Archuleta’s conviction and permitted prosecutors to retry him.

The case is People v. Archuleta.