23CA1395 Peo v Silveira-Monreal 07-09-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1395 City and County of Denver District Court No. 22CR1819 Honorable Darryl F. Shockley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Efrain Silveira-Monreal,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE YUN Lipinsky and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 9, 2026
Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Efrain Silveira-Monreal appeals the judgment of conviction
entered after a jury found him guilty of one count of sexual assault
on a child by one in a position of trust — victim less than fifteen
years of age, committed as part of a pattern of sexual abuse — and
one count of sexual assault on a child committed as part of a
pattern of sexual abuse. He contends that (1) the prosecutor
improperly bolstered the victim’s credibility during voir dire,
opening statement, and closing argument; (2) the district court
improperly instructed the jury on reasonable doubt; and (3) the
cumulative effect of these alleged errors deprived him of a fair trial.
We disagree with these contentions and therefore affirm the
judgment.
I. Background
¶2 The victim, who was twenty-one years old at the time of trial,
testified that her maternal uncle, Silveira-Monreal, touched her
vagina and buttocks over her clothing multiple times when she was
eight and nine years old. She testified that she initially kept the
touching a secret out of fear that no one would believe her or, if
they did, her father might react violently towards her or Silveira-
1 Monreal. She eventually disclosed the abuse to her cousin and her
mother.
¶3 The victim’s cousin testified that the victim disclosed the
sexual abuse during a sleepover. The victim’s mother testified that
she did not contact law enforcement at the time because she did
not want her daughter to “suffer . . . more psychological harm.”
Years later, the abuse was reported to law enforcement when the
victim sought mental health treatment for panic attacks and suicide
prevention.
¶4 Silveira-Monreal did not testify at trial. His theory of defense
was that the investigation was inadequate and that an alternate
suspect had abused the victim. The jury found Silveira-Monreal
guilty of both sexual assault counts noted above, and the district
court sentenced him to twelve years to life in the custody of the
Department of Corrections.
¶5 Silveira-Monreal now appeals.
II. Prosecutorial Misconduct
¶6 Silveira-Monreal contends that the prosecutor committed
misconduct by using voir dire for improper purposes and
improperly referencing voir dire discussions during opening
2 statement and closing argument. He further contends that the
cumulative effect of these alleged errors requires reversal. We
disagree.
A. Additional Background
¶7 During jury selection, three prospective jurors disclosed in
open court that they had been victims of childhood sexual assault
by a family member. Additionally, sixteen jurors disclosed on their
juror questionnaires that they, or someone close to them, had been
a victim of childhood sexual assault. And twenty-one jurors
indicated that they, or someone close to them, had been a victim of
sexual assault as an adult.
¶8 During voir dire, the prosecutor asked prospective jurors if any
of them liked “watching true crime” shows and, specifically, if any of
them watched shows “where they talk about crimes that happened
a long time ago.” After seeing some heads nod, the prosecutor
asked if any of the jurors — regardless of whether they watched
true crime shows — knew “what some of the challenges are on some
of the old cases for the [p]rosecution and law enforcement . . . when
it comes time to prove them.” The jurors named challenges
regarding “[m]emory,” changes in testimony over time, and “chain of
3 custody.” The prosecutor asked if “availability of witnesses” could
also be a challenge, to which a juror replied, “Absolutely.”
¶9 The prosecutor then asked if there was “anybody on here who
if presented with a really, really old case would say . . . that’s really
going to be too old for me to be able to find something beyond a
reasonable doubt here?” When no jurors raised their hands, the
prosecutor asked if the jurors thought that sexual assault cases
usually had “a lot of witnesses” or “videotapes,” and she noted that
she saw “heads shaking no.” She asked if it was possible to have a
sexual assault “situation where there’s no DNA,” and she noted that
she saw “nods yes.”
¶ 10 The prosecutor then asked if, in “a case with no video, no
eyewitness, no DNA,” there was
anyone here who just . . . is thinking, you know, I don’t think that I could find beyond a reasonable doubt that a sexual assault of a child occurred unless I had one of those, unless there was a witness, a video, or DNA? . . . [A]s you sit here today, in all honesty thinking in your heart, you’re faced with sexual assault of a child case with no DNA, no video, no eyewitnesses, is there anybody right now without hearing any of the evidence in this case says, . . . no[] matter what you do, Ms. Prosecutor, there’s no way I’m going to be
4 able to find beyond a reasonable doubt that this happened?
Several jurors raised their hands, and the prosecutor followed up
with each of them, asking if they would hold her “to a higher
burden of proof” than “beyond a reasonable doubt.” Three jurors
confirmed they would.
¶ 11 Next, the prosecutor told the jurors that, if selected for the
jury,
you’re going to have a really important job of being the judges of the credibility of the witnesses who are going to take this stand right here. And you will be able to ask yourself if they have anything to gain or if they have anything to lose. You will be able to see their demeanor.
Returning to the issue of credibility, the prosecutor later asked why
“people make things up,” and jurors volunteered “[r]evenge” and
being “confused.” The prosecutor asked if people “sometimes make
up things . . . when there’s a benefit.” The record does not indicate
whether any jurors responded nonverbally.
¶ 12 The prosecutor also asked if anyone knew “what some reasons
might be for why a child would not report their abuse right away.”
Jurors volunteered that a child might not report abuse because
5 they were “young, innocent, scared,” “nervous,” “traumatized,”
afraid of retaliation, or ashamed; because they had been
“[t]hreatened” or did not understand “that what is being done . . . is
not right,” especially if the abuser was a family member; or because
“maybe the other parent or caretaker wouldn’t believe them, and so
it’s better to stay silent and try to be safe.”
¶ 13 Defense counsel did not object to any of these questions.
¶ 14 During her opening statement, the prosecutor explained that
the jury would be responsible for judging the victim’s credibility and
noted that, as discussed during voir dire, a relevant consideration
was whether the victim had anything to gain from her allegations:
Remember in jury selection we talked about credibility and why would people make things up. Maybe they have some motive or maybe they have something to gain. When you’re evaluating [the victim] on the stand, when you’re judging her credibility, ask yourself what on earth does she have to gain to come here all these years later, take the stand, be cross-examined about some of the most painful things that happened to her in her young life.
¶ 15 The prosecutor also referenced the voir dire discussion about
the challenges of proving a case without video or DNA evidence:
6 Now this type of case, you heard several people on the panel yesterday just briefly say without getting into details that they had been sexually molested at the hands of a family member. And you heard us talk about what about cases where there’s no DNA? What about cases where there’s no webcam? What about those cases? And you heard at least three people tell me, You’re going to have a tough time, you’re going to have a tough time.
But they’re not wrong. In this type of case, there’s no Nest camera in the house recording what’s going on in the kitchen, in the living room, in the bedroom, which are the three rooms they expect you’re going to hear the offenses were happening in.
There’s no DNA. You haven’t heard a lot about the facts yet because in jury selection we’re not allowed to tell you. But the facts in this case are that he was touching her genitals with his hand over her clothes, trying to get under her clothes. This is not a penetration case. . . . Even if this case had gone to law enforcement back in 2011, there still wouldn’t be any DNA in this type of case. It’s a sexual contact case. And it is a crime. . . . You touch a child on her genitals over her clothing, even over her clothing, it is a crime.
¶ 16 Defense counsel did not contemporaneously object, and the
prosecutor’s opening statement continued for three and a half more
pages of transcript. When she concluded her opening statement,
7 defense counsel asked to approach the bench, and the following
colloquy took place:
[DEFENSE COUNSEL]: I would just like to make an objection to the reference of victims. In the jury selection process, the mention bolstered the credibility of the witness in this case, calls opening to harken back to what those people said in jury selection is improper. Opening is supposed to be based on what you anticipate to come in as evidence in this case, and we just wanted to make that brief record.
THE COURT: Okay.
Defense counsel did not ask the court to strike any portions of the
prosecutor’s opening statement.
¶ 17 The next day, in closing argument, the prosecutor called the
jurors’ attention to certain evidence they had heard. As relevant
here, she noted that
• “When [the victim] first told her cousin [about the sexual
abuse], she just told her a little bit about it. As she got
more comfortable and felt more safe, she was able to tell
more.”
• When the prosecutor asked the victim’s mother if she
called the police, the mother said she did not because
8 she was afraid that doing so would cause her daughter
more mental stress.
• When the prosecutor asked the victim if she had wanted
to call the police when she was a child, the victim said
she did not want to because she was scared her father
might react violently.
B. Governing Law and Standard of Review
¶ 18 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010).
¶ 19 First, we determine whether the conduct was improper based
on the totality of the circumstances. Id. “[W]e evaluate claims of
improper argument in the context of the argument as a whole and
in light of the evidence before the jury.” People v. Sellers, 2022 COA
102, ¶ 23, aff’d on other grounds, 2024 CO 64. Because
“arguments delivered in the heat of trial are not always perfectly
scripted,” we give the prosecutor the benefit of the doubt when their
remarks are “ambiguous or simply inartful.” People v. Samson,
2012 COA 167, ¶ 30.
9 ¶ 20 Next, if we identify misconduct, we determine whether it
warrants reversal under the applicable standard of review. Wend,
235 P.3d at 1096. We review unpreserved claims of prosecutorial
misconduct for plain error. People v. Licona-Ortega, 2022 COA 27,
¶ 88. “Plain error addresses error that was obvious and substantial
and that so undermined the fundamental fairness of the trial itself
as to cast serious doubt on the reliability of the judgment of
conviction.” People v. Robinson, 2019 CO 102, ¶ 19. “In the context
of plain error review of prosecutorial misconduct, we will only
reverse when the misconduct was ‘flagrantly, glaringly, or
tremendously improper.’” Id. (quoting Domingo-Gomez v. People,
125 P.3d 1043, 1053 (Colo. 2005)).
C. Voir Dire
¶ 21 Silveira-Monreal contends that the prosecutor committed
misconduct during voir dire in two ways: first, by “elicit[ing]
personal knowledge from prospective jurors which furthered [the
prosecution’s] theory that [the victim] was credible,” and second, by
arguing “that a victim won’t make a false accusation absent a
‘benefit.’” We conclude that any error was not plain.
10 ¶ 22 “The purpose of voir dire examination is to enable counsel to
determine whether any prospective jurors are possessed of beliefs
which would cause them to be biased in such a manner as to
prevent the counsel’s client from obtaining a fair and impartial
trial.” People v. Collins, 730 P.2d 293, 300 (Colo. 1986). District
courts generally afford counsel wide latitude in conducting voir dire.
See Smartt v. Lamar Oil Co., 623 P.2d 73, 76 (Colo. App. 1980)
(“[C]ounsel must be given considerable latitude to make [voir dire]
examination in good faith . . . .”).
¶ 23 Silveira-Monreal argues that the prosecutor improperly asked
jurors about why “older sexual-assault cases . . . suffer from a
scarcity of evidence.” But the prosecutor’s questions about the
availability of evidence in sexual assault cases were framed within a
discussion of the reasonable doubt standard in criminal
prosecutions. Indeed, several jurors acknowledged that they could
not find beyond a reasonable doubt that a sexual assault occurred
in a “case with no DNA, no video, no eyewitnesses.” Such inquiries
are proper. See Jackson v. State, 177 So. 3d 911, 925 (Ala. Crim.
App. 2014) (upholding voir dire discussion of how the jury would
view a lack of the scientific and physical evidence often seen in
11 crime shows because “the State was entitled to know whether any
member of the venire would negatively view a case in which there
would be little scientific evidence”); Commonwealth v. Perez,
954 N.E.2d 1, 10 (Mass. 2011) (holding that the trial judge did not
abuse his discretion by questioning the venire about their views on
scientific evidence — specifically, whether “the Commonwealth is
never able to prove a case beyond a reasonable doubt unless it
presents scientific evidence to corroborate witness testimony” —
because the question was “tailored to ensure that seated jurors
were capable of deciding the case without bias and based on the
evidence”).
¶ 24 Silveira-Monreal further argues that the prosecutor improperly
asked jurors about why “someone in [the victim’s] position might
not report the alleged abuse to the police.” But again, the
prosecutor’s questions about why a child might delay reporting
sexual abuse were intended to determine whether prospective
jurors held biases relevant to this case. Because the victim’s
credibility was a central issue at trial, the prosecutor was entitled to
explore whether any prospective jurors had preconceived biases
12 about a child victim who kept abuse secret. See Collins, 730 P.2d
at 300.
¶ 25 We recognize that, as Silveira-Monreal notes, the prosecution
sometimes introduces expert testimony to explain the reasons why
a child might not report sexual abuse right away. See People v.
Morrison, 985 P.2d 1, 3, 5 (Colo. App. 1999) (holding that expert
testimony regarding “the common patterns of disclosure of sexual
abuse by children, including delayed reporting,” is admissible),
aff’d, 19 P.3d 668 (Colo. 2000). But that does not mean that the
prosecution is required to introduce such expert testimony. And it
does not mean that a prosecutor is precluded from asking
prospective jurors questions about why a child might delay
reporting. See People v. Wilson, 2014 COA 114, ¶ 67 (“It is not
expected that jurors should leave their common sense and cognitive
functions at the door . . . . Nor is it expected that jurors should not
apply their own knowledge, experience, and perceptions acquired in
the everyday affairs of life . . . .” (citation omitted)).
¶ 26 Finally, Silveira-Monreal argues that the prosecutor used voir
dire to “improperly instruct the jury on the theory that a victim
won’t make a false accusation absent a ‘benefit.’” Specifically, he
13 argues that the district court should not have permitted the
prosecutor to (1) say that the jurors could “ask [themselves] if
[witnesses] have anything to gain or if they have anything to lose”
and (2) ask the jurors if people “sometimes make up things . . .
when there’s a benefit.”
¶ 27 It is improper for a prosecutor to use voir dire to “argue[] the
prosecution’s case to the jury.” People v. Carter, 2015 COA 24M-2,
¶ 71. But here, the prosecutor’s remarks about witness credibility
were general and were not tied to specific facts of the case.
Suggesting that jurors consider what a witness might gain or lose
by testifying simply echoed the court’s standard credibility
instruction and encouraged jurors to use their common sense. See
COLJI-Crim. E:05 (2025) (instructing the jury to consider the
witness’s motive, any relationship the witness may have to either
side, and how each witness might be affected by the verdict);
People v. Marin, 686 P.2d 1351, 1355-56 (Colo. App. 1983) (“[T]he
jury’s very function is to use its ‘common sense and ordinary
experience’ in evaluating the evidence.” (citation omitted)).
¶ 28 Moreover, to the extent any of the prosecutor’s remarks were
improper, the misconduct was not “so obvious that a trial judge
14 should [have] be[en] able to avoid it without the benefit of an
objection.” Scott v. People, 2017 CO 16, ¶ 16. An obvious error
ordinarily “must contravene (1) a clear statutory command; (2) a
well-settled legal principle; or (3) Colorado case law.” Id. (citation
omitted). The challenged discussions were aimed at identifying
potential juror biases, the proper purpose of voir dire. See Collins,
730 P.2d at 300. Nor did any error “so undermine[] the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction.” Robinson, ¶ 19; see
People v. Shipman, 747 P.2d 1, 3 (Colo. App. 1987) (holding that the
defendant “failed to show any prejudice” from the prosecutor’s
improper voir dire questions “designed . . . to give greater credence
to police officers’ testimony” because the court “carefully instructed
the jurors on the weight and credibility to be given the evidence
adduced”).
¶ 29 We thus conclude that no plain error occurred during voir
dire.
D. Opening Statement
¶ 30 Silveira-Monreal contends that the prosecutor committed
misconduct in her opening statement in three ways: (1) by
15 “capitaliz[ing]” on the theory, improperly introduced during voir
dire, “that a victim won’t make a false accusation absent a ‘benefit’”;
(2) by referencing “several people on the panel yesterday” who “had
been sexually molested at the hands of a family member”; and
(3) by introducing “extraneous evidence” from voir dire concerning
“the prospective jurors’ experience with sexual assaults and their
true-crime knowledge . . . concerning older sexual-assault cases,
specifically information that such cases inevitably suffer from a
scarcity of evidence.” We again conclude that any error was not
plain.
¶ 31 As an initial matter, we disagree with Silveira-Monreal’s
contention that his claims of prosecutorial misconduct during
opening statement are preserved. Defense counsel did not
contemporaneously object to the challenged statements but raised
the issue only after the prosecutor finished her opening statement.
See People v. Martinez Rubier, 2024 COA 67, ¶ 64 (“It is through
objections that a court is alerted to an issue requiring its attention.
The objection must be contemporaneous; ‘[w]here a claim of error is
not preserved by a contemporaneous objection, we may reverse only
if plain error occurred.’” (citations omitted)). And defense counsel
16 did not request any ruling or relief — such as to strike any portion
of the improper statement — but instead stated only that the
defense “just wanted to make that brief record.” Accordingly, the
district court did not rule on the objection but simply said, “Okay.”
See Martinez v. People, 244 P.3d 135, 139 (Colo. 2010) (“At trial, the
purpose of an objection is not only to express disagreement with a
proposed course of action, but also to ‘afford[] the judge an
opportunity to focus on the issue and hopefully avoid the error.’”
(quoting Am. Fam. Mut. Ins. Co. v. DeWitt, 218 P.3d 318, 325 (Colo.
2009))). We thus review Silveira-Monreal’s claims of misconduct
during opening statement for plain error.
¶ 32 As to Silveira-Monreal’s argument that the prosecutor
“capitalized” on an improperly introduced theory regarding possible
motivations for providing false testimony, we have already
concluded that the prosecutor did not commit misconduct during
voir dire by suggesting that the jurors think critically about a
witness’s reasons for testifying. The prosecutor’s remarks during
her opening statement — encouraging the jurors to ask themselves
“what on earth” the victim had “to gain” by coming to court “all
these years later,” taking the stand, and being cross-examined
17 about painful experiences — similarly appealed to the jurors’
common sense. Accordingly, the remarks were not improper.
¶ 33 However, we agree with Silveira-Monreal that the prosecutor’s
reference to juror disclosures of sexual abuse by family members
was improper. The implication of the comment was that childhood
sexual abuse is common and that the victim was therefore likely
telling the truth. But the prosecutor did not draw that inference or
indeed make any argument regarding the disclosures — she made a
single, brief reference to them and moved on. We thus conclude
that the fleeting improper comment does not rise to plain error. See
People v. Garner, 2015 COA 175, ¶ 59 (“[T]he prosecutor’s single
use of the word ‘lie,’ even if inappropriate, was not so flagrantly,
glaringly, or tremendously improper as to rise to the level of plain
error.”), aff’d, 2019 CO 19; People v. Gibson, 203 P.3d 571, 577
(Colo. App. 2008) (“Comments that are few in number and
momentary in length do not normally warrant reversal under the
plain error standard.”).
¶ 34 Finally, Silveira-Monreal argues that the prosecutor
improperly introduced “extraneous evidence” from voir dire
regarding the likely unavailability of video, eyewitness, and DNA
18 evidence in older sexual assault cases. But the only juror comment
referenced in this regard was that the prosecutor was “going to have
a tough time” proving the case. Read in context, the prosecutor’s
remarks did not introduce evidence but rather emphasized the lack
of certain types of evidence in this case. Her point was not only
that the assaults were not caught on camera but that, “[e]ven if this
case had gone to law enforcement” when the victim was nine years
old, there would still be no DNA evidence because the victim was
not alleging penetrative sex. The prosecutor’s focus was on
reminding the jurors that the charged conduct, even though it
involved touching the victim over her clothes, was a crime.
¶ 35 We thus conclude that no plain error occurred during the
E. Closing Argument
¶ 36 Silveira-Monreal also contends that the prosecutor introduced
extraneous evidence from voir dire during closing argument.
Specifically, he argues that the prosecutor committed misconduct
because “the reasons for a delayed outcry introduced by the
prospective jurors [during voir dire] were the same reasons used by
19 the prosecution in closing argument to explain why [the victim] and
her mother didn’t report earlier.”
¶ 37 It is true that the prosecutor asked prospective jurors during
voir dire “why a child would not report their abuse right away” and
that jurors volunteered answers including a child’s youth,
innocence, nervousness, trauma, fear of retaliation, and fear of not
being believed. But in closing argument, the prosecutor did not
reference these concepts in the abstract. Rather, she called the
jury’s attention to specific trial evidence — the victim’s testimony
that she confided more in her cousin as she felt more comfortable;
the victim’s mother’s testimony that she believed reporting the
assaults would cause her daughter greater distress; and the
victim’s testimony that she was afraid her father might react
violently if she disclosed the assaults. None of the challenged
statements referenced the jurors’ comments during voir dire; rather,
they were firmly grounded in the evidence. As such, they were not
improper.
F. Cumulative Error
¶ 38 Silveira-Monreal contends that, even if the individual
instances of alleged prosecutorial misconduct do not require
20 reversal, their cumulative prejudicial impact does. “For reversal to
occur based on cumulative error, a reviewing court must identify
multiple errors that collectively prejudice the substantial rights of
the defendant, even if any single error does not.” Howard-Walker v.
People, 2019 CO 69, ¶ 25. Because we have concluded that only
one error occurred and that it did not rise to the level of plain error,
we reject Silveira-Monreal’s cumulative error argument. See
People v. Thames, 2019 COA 124, ¶ 69 (“Even assuming that the
trial court erred once, a single error is insufficient to reverse under
the cumulative error standard.”).
III. Jury Instruction
¶ 39 Silveira-Monreal contends that the district court reversibly
erred by giving the 2022 model criminal jury instruction on
reasonable doubt because that instruction lowered the
prosecution’s burden of proof. We disagree.
¶ 40 In 2022, the Model Criminal Jury Instructions Committee
revised the model instruction for reasonable doubt. People v.
Melara, 2025 COA 48, ¶ 12. In addition to modifying the
reasonable doubt instruction, the committee combined it and the
21 presumption of innocence instruction into a single new instruction.
See COLJI-Crim. E:03 (2022).
¶ 41 Before the 2022 revision, the model reasonable doubt
instruction read as follows:
Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.
If you find from the evidence that each and every element of a crime has been proven beyond a reasonable doubt, you should find the defendant guilty of that crime. If you find from the evidence that the prosecution has failed to prove any one or more of the elements of a crime beyond a reasonable doubt, you should find the defendant not guilty of that crime.
COLJI-Crim. E:03 (2021).
¶ 42 At trial, defense counsel tendered the pre-2022 instruction for
the burden of proof and definition of reasonable doubt and objected
to the 2022 instruction. Defense counsel argued that the 2022
instruction undermined the presumption of innocence and lowered
the burden of proof.
22 ¶ 43 Over defense counsel’s objections, the district court gave the
2022 instruction at trial:
Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all the evidence, you are convinced that the defendant is guilty beyond a reasonable doubt.
The burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.
After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime.
23 After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime.
¶ 44 Further, during voir dire, the district court orally instructed
the jury that
[t]he decision of the [d]efendant not to testify cannot be used as an inference of guilt and cannot prejudice the defendant. It is not evidence, does not prove anything, and you must not consider it for any purpose.
Sympathy and prejudice have no place in a criminal trial. The guilt or innocence of the [d]efendant must not be decided as a result of either sympathy or prejudice for or against the [p]rosecution or the [d]efendant.
This case must be decided only on the evidence presented at trial and the law as I instruct you.
¶ 45 The Due Process Clause of the United States Constitution
“protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime
with which he is charged.” Tibbels v. People, 2022 CO 1, ¶ 23
(quoting In re Winship, 397 U.S. 358, 364 (1970)).
24 ¶ 46 The district court must properly instruct the jury on the
reasonable doubt standard. Id. at ¶ 25. Although the court has
some flexibility in how it defines reasonable doubt, an instruction
that lowers the prosecution’s burden of proof below that standard
constitutes structural error requiring automatic reversal. People v.
Schlehuber, 2025 COA 50, ¶ 13.
¶ 47 To determine whether an instruction impermissibly lowered
the burden of proof, we apply a “functional test, asking whether
there is a reasonable likelihood that the jury understood [the]
contested instruction, in the context of the instructions as a whole
and the trial record, to allow a conviction based on a standard lower
than beyond a reasonable doubt.” Tibbels, ¶ 36. The district court
has broad discretion to determine the form and style of instructions
as long as they properly inform the jury of the law. McDonald v.
People, 2021 CO 64, ¶ 54. Thus, there is no due process violation if
the instructions as a whole correctly inform the jury of the
prosecution’s burden to prove the charged offense beyond a
reasonable doubt. Johnson v. People, 2019 CO 17, ¶ 14.
¶ 48 We review de novo whether a district court accurately
instructed the jury on the law. Id. at ¶ 8.
25 C. Discussion
¶ 49 Like the defendant in Schlehuber, Silveira-Monreal challenges
four aspects of the 2022 model jury instruction that the district
court gave: (1) the instruction did not inform the jury that it could
consider the “lack of evidence” supporting the prosecution’s case;
(2) it omitted the “hesitate to act” phrase found in the previous
version of the reasonable doubt instruction; (3) it equated
reasonable doubt with “a real possibility that the defendant is not
guilty”; and (4) it used the phrase “firmly convinced” in contrast to
“real possibility” to define proof beyond a reasonable doubt.1
Schlehuber, ¶ 16.
¶ 50 We first reject Silveira-Monreal’s argument that removing the
“lack of evidence” language from the 2022 model instruction
lowered or shifted the burden of proof or undermined the
presumption of innocence. Five divisions of this court have
concluded that removing the “lack of evidence” instruction from the
1 Silveira-Monreal also asserts that the cumulative effect of these
errors lowered and shifted the prosecution’s burden of proof. See People v. Schlehuber, 2025 COA 50, ¶ 35. For the same reasons we conclude that none of the claimed errors individually lowered the burden of proof, we conclude they did not do so cumulatively. See id.
26 2022 model instruction did not lower the prosecution’s burden of
proof. Schlehuber, ¶ 20; Melara, ¶ 24; People v. Berumen, 2025
COA 93, ¶ 33; People v. Simms, 2026 COA 51, ¶ 22; People v. Crow,
2026 COA 53, ¶ 16. Further, the return of “lack of evidence” in the
2023 model instruction does not mean that its omission from the
2022 model instruction “unconstitutionally lower[ed] the
prosecution’s burden of proof below the reasonable doubt
standard.” Schlehuber, ¶¶ 18 n.2, 25.
¶ 51 Moreover, Silveira-Monreal’s argument that, without the “lack
of evidence” language, the jury had no guidance about how to
address evidentiary gaps in the prosecution’s case does not
withstand scrutiny when the instruction is read as a whole. Id. at
¶¶ 19-23. As the Schlehuber division explained, the 2022 model
instruction does not preclude the jury from considering the
prosecution’s lack of evidence because this concept is incorporated
within the 2022 instruction. Id. at ¶ 22. The jury was told that the
prosecution bears the burden of proof and that the defendant is
presumed innocent unless the prosecution meets its burden. See
id. Additionally, the last paragraph of the court’s instruction told
the jury to consider “all the evidence” when determining whether
27 the prosecution met its burden of proof: “After considering all the
evidence, if you decide the prosecution has failed to prove any one
or more of the elements of a crime charged beyond a reasonable
doubt, you should find the defendant not guilty of that crime.”
Thus, the “fail[ure] to prove” language informed the jury that it
should return a not guilty verdict if a material gap existed in the
prosecution’s proof.
¶ 52 We are not persuaded otherwise by Silveira-Monreal’s
argument that this case differs from Melara and Schlehuber
because, in this case, the district court instructed the jurors during
voir dire that the case “must be decided only on the evidence
presented at trial.” Silveira-Monreal argues those cases are
distinguishable because the lack of evidence was central to his
defense at trial. Specifically, he points to the absence of (1) a
contemporaneous outcry; (2) DNA evidence linking him to any
assault; (3) video of the assaults; and (4) testimony from law
enforcement or mandatory reporters. But this argument
presupposes a conclusion that the court’s instructions, either
individually or collectively, lowered the burden of proof. We, like
prior divisions, reject this conclusion.
28 ¶ 53 Moreover, the court gave the instruction that the case “must
be decided only on the evidence presented at trial” immediately after
telling the jury that a defendant’s decision not to testify was not
evidence and that sympathy and prejudice have no place in a
criminal trial. Accordingly, the court was instructing the jury that
it could not base its decision on sympathy, prejudice, or an
inference of guilt from Silveira-Monreal’s decision not to testify.
Considering “the context of the instructions as a whole,” id. at ¶ 13
(quoting Tibbels, ¶ 36), the jurors would have understood that the
court was not prohibiting them from considering gaps in the
¶ 54 Likewise, removing the “hesitate to act” language did not
deprive the jury of necessary context to understand and apply the
concept of reasonable doubt. We, like the Schlehuber division,
conclude that removal of the “hesitate to act” language does not
lower the prosecution’s burden of proof “so long as the instruction
otherwise correctly defines the reasonable doubt standard.” Id. at
¶ 28. The 2022 instruction defines reasonable doubt using the
phrases “firmly convinced” and “real possibility.” As the Schlehuber
court explained, “‘[F]irmly convinced’ correctly connotes a standard
29 of ‘near certitude’ — one that is higher than ‘highly probable’ but
stops short of absolute certainty” — and the phrase “real
possibility” instructs the jury not to acquit “simply because it can
conceive of some fanciful possibility that the defendant is not
guilty.” Id. at ¶ 31 (citation omitted). Like the Schlehuber division,
we disagree that
the two challenged phrases are “contradictory” or “create two different standards.” Rather, the phrases work together to give the jury a complete picture of the reasonable doubt standard. The first — “firmly convinced — describes what it means to have no reasonable doubt. The second — “real possibility” — contrasts that with what it means to have a reasonable doubt. In other words, the jury could either be “firmly convinced” of Schlehuber’s guilt (and find him guilty) or “think there is a real possibility” that Schlehuber was not guilty (and find him not guilty). Both things could not be true.
Id. at ¶ 33. We therefore conclude that the 2022 model instruction
did not impermissibly lower the prosecution’s burden to prove the
charged offense beyond a reasonable doubt.
¶ 55 We are not persuaded otherwise by Silveira-Monreal’s
argument that referencing a “real possibility” that the defendant
was not guilty lowered or shifted the burden of proof or undermined
30 the presumption of innocence. As the Schlehuber division
concluded, equating reasonable doubt with a “real possibility” does
not shift the burden to the defendant to prove that real possibility.
Id. at ¶ 34. The court’s instruction here stated that if the jury
believes “there is a real possibility that the defendant is not guilty,
then the prosecution has failed to prove the crime charged beyond a
reasonable doubt.” Additionally, the instruction correctly informed
the jury that it was required to presume that the defendant was
innocent, that the burden of proof lay with the prosecution, and
that the prosecution had to prove every element of the charged
crime beyond a reasonable doubt.
¶ 56 We further disagree with Silveira-Monreal’s contention that the
“firmly convinced” language defines a level of certitude below the
beyond a reasonable doubt standard. Five divisions of this court
have already concluded that the “firmly convinced” phrase does not
lower the burden of proof. Melara, ¶ 30; Schlehuber, ¶¶ 30-32;
Berumen, ¶¶ 22-25; Simms, ¶¶ 30-32; Crow, ¶ 16.
¶ 57 Because we conclude that the 2022 model jury instruction did
not lower the prosecution’s burden of proof, it follows that the
31 district court did not violate Silveira-Monreal’s due process rights
by giving this instruction to the jury.
IV. Cumulative Error
¶ 58 Silveira-Monreal contends that, even if the individual alleged
errors do not require reversal, their cumulative prejudicial impact
does. See Howard-Walker, ¶ 25. Because we have concluded that
any prosecutorial misconduct did not rise to the level of reversible
plain error and that the district court did not err by giving the 2022
model jury instruction, we reject Silveira-Monreal’s cumulative error
argument.
V. Disposition
¶ 59 We affirm the judgment.
JUDGE LIPINSKY and JUDGE SCHUTZ concur.