Peo v. Higdon

23CA0799 Peo v Higdon 04-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0799
Boulder County District Court No. 21CR795
Honorable Bruce Langer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Charles G. Higdon III,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE BROWN
Freyre and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 30, 2026

Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Charles G. Higdon III, appeals the judgment of

conviction entered on a jury verdict finding him guilty of sexual

assault of a victim incapable of appraising the nature of her

conduct. We reverse and remand for a new trial.

I. Background

¶2 The evidence presented at trial would have allowed the jury to

find the following facts.

¶3 In November 2020, Higdon was having dinner and whiskey at

a restaurant while waiting for his friend, Josh, to arrive. C.F-L. and

her friend, R.M., were seated at a table near Higdon, and they

ordered some food and martinis. Higdon later joined C.F-L. and

R.M. at their table and bought them shots of whiskey. Once Josh

arrived, he joined the group.

¶4 Over the course of approximately two hours, Higdon, C.F-L.,

and R.M. had about five to six drinks each, and Josh had one beer.

When everyone got up to leave, R.M. said C.F-L. seemed “pretty

buzzed” but not “wasted.” R.M. and C.F-L. separated on the way

out of the restaurant, and R.M. ended up driving home without

C.F-L.

1
¶5 On his way out, Higdon also separated from the group but

later found Josh and C.F-L. in Josh’s car. Eventually, Higdon got

into the backseat of the car with C.F-L. Higdon said C.F-L. was

friendly and “somewhat excited” when he joined her, and she

reached between his legs to touch his penis over his clothes.

¶6 Josh drove them to Higdon’s home. Higdon said he and C.F-L.

were “fooling around” in the backseat during the drive. He said

they were kissing, rubbing each other’s lower body, and loosening

each other’s pants for access. They arrived at Higdon’s house

around 7:20 p.m. Surveillance footage from a camera at the front of

Higdon’s house showed C.F-L. almost falling over but steadying

herself on a fence, then walking unsteadily and falling backwards

onto the ground. Higdon fell down with her. Higdon helped C.F-L.

stand up, but she immediately fell over again. Higdon helped C.F-L.

get up again, and she walked into his house. Higdon testified that

they were both “hammered” at that point.

¶7 Higdon’s roommate testified that as soon as the pair walked

into the house, they immediately fell onto the ground and then

crawled over to the couch. The roommate said that Higdon and

C.F-L. were kissing each other and that it appeared consensual, but

2
they both were in and out of consciousness. The roommate

observed this behavior for about a half hour. The roommate went

to sleep before the pair left the living room but said he heard

“moaning and groaning” in the middle of the night. The roommate

testified that he could not tell who was moaning, but he had

previously told officers that it was C.F-L.

¶8 Higdon said that C.F-L. needed help getting to his bedroom

and fell down again after getting up from the couch. Once inside

Higdon’s bedroom, C.F-L. took off her clothing but kept her

underwear on, and they both fell asleep for about an hour and a

half. Higdon said he woke up to C.F-L. rubbing his hip and the side

of his waist. He took his underwear off because he had peed

himself. Then he and C.F-L. caressed and kissed each other, and

C.F-L. put her hand between his legs and touched his penis.

Higdon rolled on top of C.F-L. and they were both thrusting and

grinding on each other, but then Higdon was unable to get an

erection, so C.F-L. pushed him away.

¶9 Higdon said he then put his arms around C.F-L., and she put

his hand in between her legs on her vaginal area, so he started

rubbing and caressing her there. Higdon said C.F-L. responded by

3
“leaning back and putting her head into [his] neck” and rubbing his

arms and hands. Higdon said he started to kiss C.F-L.’s hips and

legs. He said she made “noises of pleasure” and lifted her hips and

lower back to assist him in taking off her underwear. Higdon then

performed oral sex on C.F-L. and put his fingers in her vagina. He

said she responded “aggressively and intense[ly]” by “grabbing [his]

hair and pulling [his] face . . . in between her legs.” He said C.F-L.

then told him to stop, so he did. He tried to see if C.F-L. would

perform oral sex on him, but she turned her head and told him to

get away, so Higdon laid back down, and the two cuddled. When

Higdon next woke up around 11 p.m., he said C.F-L. was sitting up,

her demeanor had changed, and “[s]he was insistent that” he get

his phone “immediately.”

¶ 10 C.F-L. testified that she did not remember leaving the

restaurant and that the next thing she remembered was laying

down somewhere, seeing a painting, and then “going black.” Then

she remembered sensing something happening around her vaginal

area. She recalled that she was laying on her stomach, felt pain in

the back in her private areas, and tried to “scoot” away. C.F-L. said

the next memory she had was sitting up in a bed, not recognizing

4
the naked person next to her, asking to use the restroom, and then

using Higdon’s phone to call her son. C.F-L. found out that her son

had reported her missing.

¶ 11 Higdon lived across the street from a police station, so C.F-L.

walked out of Higdon’s house to a police car parked across the

street. Higdon spoke briefly with police officers that night, but they

did not arrest him at that time.

¶ 12 A sexual assault nurse examiner (SANE) conducted an

examination of C.F-L. and observed “petechiae” — bleeding under

the skin caused by blunt force trauma — around her urethra and

“erythema” — reddened skin caused by injury or irritation —

around her hymen. The SANE was unable to perform a pelvic exam

because C.F-L. said it was too painful.

¶ 13 The prosecution charged Higdon with one count of sexual

assault — victim helpless and one count of sexual assault — victim

incapable of appraising the nature of her conduct. After a six-day

trial, a jury acquitted Higdon of sexual assault — victim helpless

but found Higdon guilty of sexual assault — victim incapable of

appraising the nature of her conduct. The district court sentenced

Higdon to six years in the custody of the Department of Corrections.

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II. Analysis

¶ 14 On appeal, Higdon contends that the district court erred by

(1) excluding evidence that C.F-L. pleaded guilty to false reporting

in a separate case from 1998; (2) instructing the jury that it may

not consider evidence of Higdon’s self-induced intoxication for

purposes of deciding whether the prosecution proved the elements

of the sexual assault charge without also instructing the jury that it

could consider such evidence when assessing whether Higdon knew

C.F-L. was incapable of appraising the nature of her own conduct;

(3) finding that Higdon was on probation, which increased his

sentencing range, rather than submitting that question to a jury;

and (4) allowing the prosecutor to use Higdon’s post-Miranda

silence to imply his guilt in violation of his due process rights.

Higdon also contends that even if no single claim warrants relief,

the cumulative prejudice from the alleged errors requires reversal.

¶ 15 We conclude that the district court reversibly erred by allowing

the prosecutor to cross-examine Higdon about, and comment

during closing argument on, his post-Miranda silence. We do not

address Higdon’s other contentions because they are unlikely to

arise in the same context on remand. See People v. Weinreich, 98

6
P.3d 920, 924 (Colo. App. 2004) (declining to address evidentiary

issue unlikely to arise “in the same context” on retrial), aff’d, 119

P.3d 1073 (Colo. 2005).

A. Standard of Review and Applicable Law

¶ 16 We review de novo whether a prosecutor’s comments on a

defendant’s post-Miranda silence violated his due process rights.

People v. Castro, 2022 COA 101, ¶ 20.

¶ 17 The parties agree that this issue is unpreserved, so we will

reverse only for plain error. Hagos v. People, 2012 CO 63, ¶ 14.

For an error to be plain, it must be both obvious and substantial.

Id. An error is obvious if it contravenes a statute or rule, a

well-settled legal principle, or established Colorado case law.

Campbell v. People, 2020 CO 49, ¶ 25. An error is substantial if it

“so undermined the fundamental fairness of the trial itself as to

cast serious doubt on the reliability of the judgment of conviction.”

Hagos, ¶ 14 (citation omitted).

¶ 18 Every person has a constitutional right to remain silent during

police questioning. See U.S. Const. amend. V; Miranda v. Arizona,

384 U.S. 436, 460-61 (1966). Before a custodial interrogation,

police must inform a suspect “that he has a right to remain silent,

7
that any statement he does make may be used as evidence against

him, and that he has a right to the presence of an attorney, either

retained or appointed.” Miranda, 384 U.S. at 444.

¶ 19 It is improper for a prosecutor to allude to a defendant’s

exercise of his right to remain silent “as indicating a consciousness

of guilt,” People v. Wright, 511 P.2d 460, 462 (Colo. 1973), “because

the Miranda warnings implicitly assure the defendant that his

silence will carry no penalty,” People v. Davis, 312 P.3d 193, 198

(Colo. App. 2010) (citing Doyle v. Ohio, 426 U.S. 610, 619 (1976)),

aff’d, 2013 CO 57. “Thus, use of an accused’s post-arrest silence

for impeachment purposes, after Miranda warnings have been

given, violates due process of law.” People v. Hardiway, 874 P.2d

425, 427 (Colo. App. 1993).

¶ 20 If a defendant makes a post-Miranda statement and then

testifies differently at trial, however, “a different rule applies,” and

“the prosecution may cross-examine the defendant on

inconsistencies between the two statements.” Castro, ¶ 32 (quoting

Hardiway, 874 P.2d at 427). The prosecution may also

“cross-examine the defendant on omissions in the first statement

insofar as such omissions are inconsistent with the defendant’s

8
testimony at trial.” Id. (quoting Hardiway, 874 P.2d at 427). But

before a defendant’s “prior silence concerning critical facts [can] be

deemed inconsistent with later testimony which includes their

purported recollection[,] . . . the failure to mention those matters

must conflict with that which is later recalled.” Hardiway, 874 P.2d

at 428 (quoting United States v. Leonardi, 623 F.2d 746, 756 (2d

Cir. 1980)). If instead a defendant’s trial testimony “merely

augment[s] that which was originally described, the prior silence is

often simply too ambiguous to have any probative force” and is not

admissible for impeachment purposes. Id. (quoting Leonardi, 623

F.2d at 756-57).

B. Additional Background

¶ 21 In May 2021, the police arrested Higdon and took him to the

police station for questioning. Detective Estaban Lopez testified

that Higdon asked to speak with him at the station. No one

disputes that Higdon was advised of his Miranda rights before that

encounter.

¶ 22 Detective Lopez testified that

[Higdon] was wondering why he had been
arrested for sexual assault and mentioned that
he didn’t keep her there against her will or

9
anything like that. So, I, you know, kind of
answered that question for him. And we did
revisit a few of the different topics. He denied
putting anything in her drink. I didn’t
specifically ask if he put anything in her — in
her food. But again, he — he denied putting
anything in — in her drink.

[Higdon] said that they didn’t have sex, but it
was because she didn’t want to, as opposed to
[what he told officers on the night of incident],
where he was just unable to become erect. We
talked a little bit about his level of intoxication
at that time, as — as well as hers. He put
himself, if I remember correctly, at about a
[five] or [six] on a scale of [zero] to [ten] as far
as how intoxicated he felt. Nonetheless, he
said they were both able to communicate with
each other clearly. He said it wasn’t like they
were . . . unconscious or anything like that.
He also mentioned his conversation with [the
roommate] and said that [the roommate] was
making fun of him for bringing home a female
that [the roommate] did not find attractive. He
said he didn’t remember [the roommate] telling
him that she was too drunk.

¶ 23 During direct examination, defense counsel asked Higdon to

explain what he meant when he told the detective that he and

C.F-L. did not have sex because she did not want to. Higdon

responded, “I was referring to the attempt to have intercourse, not

being able to, and then the fact that when she — when I asked for

oral sex and she said no that she did not want to.”

10
¶ 24 During the prosecutor’s cross-examination of Higdon, the

following exchange took place:

[PROSECUTOR]: And you did not provide
[Detective Lopez] with any information about
this Josh?

[HIGDON]: I was not asked.

[PROSECUTOR]: Okay. You weren’t asked, but
you didn’t think that would be important for
the detective to consider?

[HIGDON]: I would have definitely been willing
to give it to him.

[PROSECUTOR]: Okay. But you did not
provide it to him?

[HIGDON]: No.

Later, the prosecutor and Higdon had the following colloquy:

[PROSECUTOR]: Okay. Now Mr. Higdon, I
have a few more questions for you. I want to
talk to you a little bit about your conversation
with [Detective] Lopez. Okay?

[HIGDON]: Okay.

[PROSECUTOR]: Do you remember that
conversation?

[HIGDON]: I do.

[PROSECUTOR]: And that conversation is the
one you talked about with [defense counsel]
that happened in May of 2021, right?

[HIGDON]: Yes.

11
[PROSECUTOR]: And that conversation
actually came at your request?

[HIGDON]: Correct.

....

[PROSECUTOR]: Okay. As you were getting
ready to speak with the detective, did you start
to think about the details that you might want
to share with him about what had happened?

[HIGDON]: No. There was a lot to think about.

[PROSECUTOR]: You didn’t think when you
requested to speak to the investigative
detective —

[HIGDON]: I had one question.

[PROSECUTOR]: You had one question. Okay.
But you didn’t think that he was potentially
going to ask you some questions or give you an
opportunity to say something?

[HIGDON]: No.

[PROSECUTOR]: Okay. But he did give you
that opportunity, didn’t he?

[HIGDON]: Yes.

[PROSECUTOR]: Okay. And 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?

[HIGDON]: I was very nervous. I could hardly
speak.

12
[PROSECUTOR]: But he wasn’t forcing you to
sit there and talk with him, right?

[HIGDON]: I was being arrested for sexual
assault.

[PROSECUTOR]: Correct.

[HIGDON]: Which I thought had — you know,
didn’t happen, so I was confused. I asked one
question. I gave one answer.

[PROSECUTOR]: Okay. But you did talk to
him about some of the stuff that happened
that night, right?

[HIGDON]: I answered the question he asked,
yes.

[PROSECUTOR]: Well, but you told him things
were consensual, right?

[HIGDON]: Yes.

[PROSECUTOR]: Okay. And you kept going
over that with him, that everything was
consensual, right?

[HIGDON]: Yes.

[PROSECUTOR]: But you didn’t break it down
for him like you did for this jury today, right?

[HIGDON]: No.

[PROSECUTOR]: No. You knew he was
investigating you for sexual assault at that
point in time, right?

[HIGDON]: Yes. I thought we would have —
there would be the time to speak later, and I

13
was — we were barely — it was a short . . .
encounter. And again, I was very distraught
and nervous from the accusations and the
charge that I was being arrested on.

[PROSECUTOR]: You thought you would have
time to speak later with [Detective] Lopez?

[HIGDON]: Yes.

[PROSECUTOR]: And that’s when you would
have provided him with the details?

[HIGDON]: Yes.

[PROSECUTOR]: You know [Detective] Lopez is
not hard to find, right?

[HIGDON]: Yes.

....

[PROSECUTOR]: You can talk to him at any
point in time?

[HIGDON]: Yes, I had intentions to. And I also
had intentions to share Josh’s number.

[PROSECUTOR]: But you didn’t do those
things, did you?

[HIGDON]: No.

....

[PROSECUTOR]: So at some point, the time
came when there was a case, right?

[HIGDON]: Yes.

14
[PROSECUTOR]: You didn’t share [Josh’s]
number?

[HIGDON]: No.

[PROSECUTOR]: Okay. And in terms of giving
more details to [Detective] Lopez, you didn’t do
that, either?

[HIGDON]: No.

In closing argument, the prosecutor told the jury,

You also heard from Mr. Higdon. Mr. Higdon
talked to you at length about what he did that
day, who he talked to, what he ate, what he
drank, all of those things. And he talked to
you about the time at [the restaurant]. And he
talked to you about the ride home . . . . How
he went out to the parking lot. How his buddy
Josh was in the driver’s seat. How [C.F-L.]
was in the passenger seat. How [C.F-L.] got
frustrated, went to the back seat, so [Mr.
Higdon] got in the front seat.

She was flirting with him, so he went into the
back seat, so they kind of fool around a little
bit. Josh dropped them off at his house.
Right? He remembered those things.

....

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.

15
C. The District Court Reversibly Erred by Allowing the Prosecutor
to Use Higdon’s Post-Miranda Silence to Imply Guilt

¶ 25 Higdon contends that the prosecutor’s cross-examination and

comment in closing argument impermissibly implied he was guilty

based on his custodial silence in violation of his due process rights.

We agree.

¶ 26 To be sure, “not every reference to a defendant’s exercise of the

right to remain silent requires reversal.” People v. Burnell, 2019

COA 142, ¶ 45 (citing People v. Key, 522 P.2d 719, 720 (Colo.

1974)). Indeed, if such references are designed “to elicit an

explanation for a prior inconsistent statement,” they may not be

improper. Castro, ¶ 29 (citation omitted). But if the prosecutor’s

question or comment was meant to draw meaning from the silence,

reversal may be required. Id. Courts “should consider ‘(1) whether

the improper remarks were used as a means of creating an

inference of guilt; and (2) whether the prosecution argued that the

defendant’s silence constituted an implied admission of guilt.’”

Davis, 312 P.3d at 198-99 (citation omitted).

¶ 27 Here, the prosecutor’s questions and comment on Higdon’s

silence were intended to suggest his guilt. Contrary to the People’s

16
assertions on appeal, the record does not support a conclusion that

the prosecutor was merely pointing out inconsistencies in Higdon’s

versions of the event. Beyond noting that Higdon did not identify

Josh to the detective, 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. Cf. People

v. Knapp, 2020 COA 107, ¶¶ 52-53 (questions about details the

defendant testified to but did not previously tell police were not

improper because they were inconsistent with what the defendant

did tell the police — namely, that the fight had only been verbal).

Rather, the prosecutor repeatedly asked Higdon about not having

provided “the details” to Detective Lopez that he testified to at trial.

¶ 28 Higdon told Detective Lopez that he and C.F-L. had been

drinking but that they were not unconscious, that they did not have

sex, and that all the sexual contact was consensual. Higdon

testified to the same facts at trial, although he added more detail

regarding exactly what had happened — including that no sexual

acts occurred while C.F-L. was sleeping or unconscious, that he

performed oral sex on C.F-L., that C.F-L. responded with pleasure,

and that they did not have penetrative sex because he could not get

17
an erection. Because Higdon elaborated on details that were

consistent with his prior statement, the prosecutor was not

permitted “to inquire into, or comment about, why those details

were missing from the original statement.” Castro, ¶ 34. And

because the prosecutor did not impeach Higdon with any

inconsistent statements, we perceive no reason for the prosecutor’s

questions other than to imply Higdon’s guilt and to suggest “that an

innocent person would have talked with the police sooner and in

more detail.” Id. at ¶ 41.

¶ 29 We are not persuaded otherwise by the People’s argument that

Higdon did not invoke his right to remain silent because he asked

to speak with Detective Lopez and chose to testify at trial.1 A

defendant’s right to remain silent, and to not have that silence held

against him, “[does not go] out the window as soon as a defendant

makes any post-Miranda statement.” Id. at ¶ 28 (citation omitted).

“The mere fact that [a defendant] may have answered some

questions or volunteered some statements on his own does not

1 The People also argue that Higdon did not invoke his right to

remain silent when speaking with officers on the night of the
incident, but Higdon does not challenge the prosecutor’s questions
or comments about his pre-arrest statements.

18
deprive him of the right to refrain from answering any further

inquiries,” Miranda, 384 U.S. at 445, “or from volunteering further

information, albeit exculpatory information,” People v. Ortega, 597

P.2d 1034, 1037 (Colo. 1979). See also Doyle, 426 U.S. at 617

(“[E]very post-arrest silence is insolubly ambiguous because of what

the State is required to advise the person arrested.”).

¶ 30 Higdon testified that he asked one question and answered one

question during the short encounter with Detective Lopez.

Detective Lopez’s testimony also reflected that they had a brief

conversation. No recording or transcript of the exchange was

admitted at trial that contradicted these facts. No one claimed that

Higdon told Detective Lopez everything that happened during that

brief interview. And there was no evidence that Higdon otherwise

waived his right to remain silent or talked at length with the

detective. Cf. Davis, 312 P.3d at 200-01 (concluding that, “by

testifying that he told the detective ‘everything,’” the defendant

opened the door to the prosecutor’s cross-examination about what

he omitted from his prior statement); People v. Lewis, 2017 COA

147, ¶¶ 32, 35-36 (distinguishing Ortega because the defendant

gave a nearly fifty-minute videotaped statement to police and told

19
the detective, “There’s nothing more to it than that”); see generally

Castro, ¶ 37 (reaffirming the viability of Ortega and Hardiway after

Lewis).

¶ 31 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. See Ortega, 597 P.2d at 1036; Hardiway, 874

P.2d at 427. And the error was obvious because the law disallowing

a prosecutor’s use of a defendant’s post-Miranda silence to imply

guilt is well settled. See Doyle, 426 U.S. at 619; Wright, 511 P.2d at

462; People v. Coleman, 2018 COA 67, ¶ 35.

¶ 32 We further conclude that the error was substantial. See

Hagos, ¶ 14. To evaluate the effect of a prosecutor’s comments on a

defendant’s silence, courts look at the following factors:

(1) the prosecutor’s use of the post-arrest
silence; (2) which party elected to pursue the
line of questioning; (3) the quantum of other
evidence of guilt; (4) the intensity and
frequency of the reference; and (5) the trial
court’s opportunity to grant a motion for
mistrial or to give curative instructions.

20
Castro, ¶ 40.2

¶ 33 As discussed, the prosecutor used Higdon’s silence to imply

his guilt. And the prosecutor injected the issue into the case on

cross-examination and in closing argument. See id. at ¶ 42. True,

defense counsel asked Higdon to explain what appeared to be an

inconsistency between Higdon’s statement to officers on the night of

the incident — that he and C.F-L. did not have sex because he

could not become erect — and his later custodial statements to

Detective Lopez — that the two did not have sex because C.F-L. did

not want to have sex. But the prosecutor did not explore that or

any other inconsistency in Higdon’s statements. Instead, the

prosecutor repeatedly asked why Higdon did not share with

Detective Lopez “the details” he testified about at trial, insinuating

that Higdon’s failure to provide such details to Detective Lopez

demonstrated his guilt.

¶ 34 Furthermore, the central dispute at trial was whether Higdon

knew C.F-L. was incapable of appraising the nature of her conduct

when the two engaged in sexual contact, see § 18-3-402(1)(b),

2 In this case, we do not consider the district court’s failure to give a

curative instruction because Higdon did not object or ask for one.

21
C.R.S. 2025, and the evidence against Higdon was not

overwhelming in that regard. R.M. testified that C.F-L. was “pretty

buzzed” but not “wasted” when they left the restaurant, and R.M.

did not think C.F-L. “was too drunk to walk out of the restaurant.”

Although the surveillance footage from outside of Higdon’s house

and Higdon’s roommate’s testimony certainly established that

C.F-L. fell down before and when entering Higdon’s house, Higdon

testified that he and C.F-L. slept for an hour and a half before

engaging in sexual activity, that C.F-L. initiated some of the sexual

contact, that C.F-L. actively participated, and that all contact was

consensual. Higdon also testified that C.F-L. told him “no” when

she did not want to engage in an activity and when she wanted him

to stop, which was some evidence suggesting that C.F-L. appeared

capable of distinguishing between the activities she wanted to

engage in and those she did not. Higdon also said that he complied

when C.F-L. said “no” or told him to stop.

¶ 35 C.F-L. did not recall, and thus did not testify to, many details

of the encounter, but Higdon did. As a result, much of the case

hinged on the jury’s assessment of Higdon’s credibility. And the

prosecutor’s repeated suggestions that Higdon would have shared

22
all the details with Detective Lopez if he were not guilty significantly

undermined Higdon’s credibility. See Castro, ¶ 44. Although the

prosecutor’s statements implying Higdon’s guilt were not as

egregious as those deemed to be plain error in Ortega, 597 P.2d at

1036, the effect was nonetheless the same — to improperly penalize

Higdon for exercising his constitutionally guaranteed right to

remain silent.

¶ 36 Finally, the prosecutor’s questions were not fleeting. He

extensively cross-examined Higdon about his failure to provide the

details to Detective Lopez and brought the issue up again in closing

argument.

¶ 37 We conclude that the prosecutor’s questions and comments

implying Higdon’s guilt “prejudiced the most fundamental

guarantee of our justice system, the right to a fair trial,” id., and

cast serious doubt on the reliability of the judgment of conviction,

see Hagos, ¶ 14. Thus, we conclude that the error was plain and

requires reversal.

III. Disposition

¶ 38 We reverse the judgment and remand the case for a new trial.

JUDGE FREYRE and JUDGE SCHUTZ concur.

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