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Bogard v. State

Supreme Court of Wyoming

September 12, 2019

TRAVIS BOGARD, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Albany County The Honorable Tori R.A. Kricken, Judge

          Representing Appellant: Thomas A. Fleener & Megan L. Hayes, Laramie, Wyoming. Argument by Ms. Hayes.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Russell W. Farr, Senior Assistant Attorney General; Caitlin F. Harper, Senior Assistant Attorney General. Argument by Mr. Farr.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          BOOMGAARDEN, JUSTICE.

         [¶1] A jury found Travis Bogard guilty of sexual assault in the first degree and not guilty of kidnapping. He appeals his conviction, raising five issues, including a claim that cumulative error deprived him of a fair trial. Finding cumulative error resulting from prosecutorial misconduct, we reverse and remand for a new trial.

         ISSUES

         [¶2] Our disposition of Mr. Bogard's appeal turns on the analysis of two issues:

I. Did the prosecutors commit misconduct?
II. Did cumulative error deprive Mr. Bogard of a fair trial?

         FACTS

         [¶3] On October 28, 2016, the Friday night before Halloween, SK, a student at the University of Wyoming, put on a costume and went to a barbeque in Laramie, Wyoming. After the barbeque, SK visited several bars in downtown Laramie with various friends, ultimately arriving at the Ranger with two friends around 1:45 or 2:00 a.m. At the Ranger, another friend of SK's introduced her to Mr. Bogard and they immediately hit it off. They talked, flirted, took a shot of tequila together, and consensually kissed.

         [¶4] SK and Mr. Bogard recall various details about what happened next differently. By SK's account, Mr. Bogard then invited her to an "employee after party" and offered to show her its location. When she told him that she wanted to get her friends first, he said that she could come back and get them if they wanted to go to the party. By Mr. Bogard's account, he never used the phrase "after party." Instead, he asked SK if she wanted to play pool with some people at the bar after it closed. Given how well they were getting along, he then asked her if she wanted to go somewhere to be alone. She expressed apprehension about going with him because she was worried that her friends might leave the bar without her. When Mr. Bogard assured her that he would get her home if they did, she agreed to go with him.

         [¶5] It is undisputed that around 2:15 a.m., SK willingly followed Mr. Bogard down a lighted hallway that was covered in trash bags and Halloween decorations and then down another hallway that was unlit. Mr. Bogard was familiar with the area because he had previously worked at the Ranger. He led her by the hand into a bathroom and she willingly followed him inside. They were consensually kissing as they entered.

         [¶6] SK's and Mr. Bogard's accounts of what happened in the bathroom between approximately 2:15 and 2:30 a.m. significantly differ. By SK's account, Mr. Bogard turned off the bathroom light, closed the door, and locked it. He picked her up and put her on a ledge behind the door, where they continued to consensually kiss. Then he took her purse off and put it in the sink. When he did so, SK felt scared, she did not know what was happening, and she told him that she wanted to go back to her friends. Mr. Bogard did not say anything in response. He picked her up by the waist and moved her over to the window. When he grabbed her, she tried to apply a pressure point to his shoulder. She also tried to get out of the bathroom, using her foot to try to twist open the doorknob. But she gave up trying to fight Mr. Bogard off after he moved her over to the window because she was scared that he would hurt her.

         [¶7] According to SK, at the window, Mr. Bogard pulled off her clothes and tried to penetrate her from behind. When he did so, she flinched and kept telling him that she wanted to go back to her friends. He did not say anything in response. Next, he moved her over by the bathtub, tried to penetrate her from behind, and put his penis in her vagina. Again, she told him that she wanted to go back to her friends and stated that she did not want to be there. He did not say anything in response. He tried to penetrate her again and then yelled at her that she was "too f[***]ing tight," yelled "what the f[***]," laughed, and left. After Mr. Bogard left the bathroom, SK put on her clothes and went to find her friends.

         [¶8] By Mr. Bogard's account, as they entered the bathroom, he turned off the bathroom light and closed, but did not lock, the door. He and SK proceeded to the back wall, where they continued kissing and he lifted up her sports bra. Then he guided her to the edge of the bathtub where he pulled down his jeans and boxers, as well as her costume. When he pulled off her costume, SK did not say anything. She had her hands on the bathtub and she was bent over it. When he accidentally attempted to penetrate her anally instead of vaginally, "[s]he pulled away violently" but did not say anything. When she pulled away, it startled him. He looked down and asked her, "Really? Are you okay?" but she did not say anything in response. He thought she pulled away because he had accidentally attempted to penetrate her anally, which he assumed was not what she wanted him to do and which was not what he intended to do. He again attempted to penetrate her vaginally and did so slightly, guiding his penis with his thumb. When he did so, she "pulled away just as violently" and he considered that his rejection. He pulled up his clothing, told her to take her time, and left the bathroom.

         [¶9] According to Mr. Bogard, on his way out of the bar, he told the bartender that he had been rejected and "potentially" made a comment about giving SK a "slow clap." Then Mr. Bogard went outside and forced himself to vomit because he had been mixing alcohol that night and felt sick.

         [¶10] What happened after Mr. Bogard and SK left the bar is generally undisputed. After SK left the bar at approximately 2:32 a.m., she located her friends, told them that she had just been raped, and one of them called 911. SK told the 911 operator that the assailant, a bartender at the Ranger, told her to come with him and took her to a bathroom. A friend drove SK to the hospital where a Sexual Assault Nurse Examiner (SANE) examined her and collected evidence. SK also provided a written statement to the police. After Mr. Bogard left the bar, he returned to Cheyenne, where he was eventually arrested.

         [¶11] In November 2016, the State charged Mr. Bogard with one count of sexual assault in the first degree, in violation of Wyoming Statute § 6-2-302(a)(i), and one count of kidnapping, in violation of Wyoming Statute § 6-2-201(a)(ii).[1] The case proceeded to a five-day trial in June 2017, at which Mr. Bogard testified in his own defense. The jury was unable to reach a unanimous verdict and the court declared a mistrial. The State immediately filed notice of its intent to retry Mr. Bogard on the same charges.

         [¶12] In October 2017, the case proceeded to another five-day trial. Although Mr. Bogard exercised his right not to testify at this trial, the State read the transcript of his testimony from the first trial into the record, over his objection. SK testified at length and defense counsel cross-examined her about inconsistencies in her testimony on direct examination compared to her previous testimony and statements about the assault. Also relevant to this opinion, Candace Burch, a SANE nurse, discussed her examination of SK at the hospital, including SK's external and internal injuries. Kimberly Ley, a forensic analyst in the biology unit at the Wyoming State Crime Lab, testified about DNA testing results from the vaginal and anal swabs that the SANE nurse collected. Ms. K, a witness unrelated to SK, discussed her dating relationship with Mr. Bogard before the assault and her interaction with him at the bar and via text message the night of the assault. Cactus Aanenson, the bartender at the Ranger the night of the assault, discussed what Mr. Bogard said to him on Mr. Bogard's way out of the bar.

         [¶13] On the second to last day of trial, the State called an expert, Dr. Matthew Gray, to discuss trauma and memory. The defense called its own expert, Dr. Thomas Kirk, to counter Dr. Gray's testimony. In closing and rebuttal argument, the prosecutors and defense counsel disputed when SK withdrew consent and challenged SK's and Mr. Bogard's credibility, respectively.

         [¶14] The jury found Mr. Bogard guilty of sexual assault in the first degree and not guilty of kidnapping. The district court sentenced him to five to ten years of imprisonment.

         [¶15] We discuss additional facts and proceedings below as necessary.

         DISCUSSION

         I. Did the prosecutors commit misconduct?[2]

         [¶16] Mr. Bogard contends that the prosecutors committed numerous instances of misconduct. "Prosecutorial misconduct is '[a] prosecutor's improper or illegal act (or failure to act), [especially] involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.'" Dixon v. State, 2019 WY 37, ¶ 37, 438 P.3d 216, 231 (Wyo. 2019) (quoting Craft v. State, 2013 WY 41, ¶ 13, 298 P.3d 825, 829 (Wyo. 2013)). Mr. Bogard "bears the burden of establishing prosecutorial misconduct." Id. ¶ 41, 438 P.3d at 231 (citing Condra v. State, 2004 WY 131, ¶ 5, 100 P.3d 386, 389 (Wyo. 2004)).

         [¶17] Some instances of alleged misconduct occurred during the State's case-in-chief. The remaining instances of alleged misconduct occurred during the State's closing and rebuttal arguments. Because defense counsel objected to some of the alleged errors, but did not object to the remaining alleged errors, two different standards of review apply.

         [¶18] We apply the harmless error standard to those statements to which Mr. Bogard objected, recognizing that we must find there was an error before we consider whether an error was harmless. Black v. State, 2017 WY 135, ¶ 13, 405 P.3d 1045, 1050 (Wyo. 2017); King v. State, 2018 WY 52, ¶ 11, 417 P.3d 657, 660 (Wyo. 2018) (citing Gonzalez-Ochoa v. State, 2014 WY 14, ¶ 15, 317 P.3d 599, 604 (Wyo. 2014)). We apply the plain error standard to those matters and statements to which Mr. Bogard did not object. Black, ¶ 13, 405 P.3d at 1050 (citation omitted). Under either standard, our ultimate focus and attention is on whether the alleged error affected Mr. Bogard's substantial right to a fair trial. McGinn v. State, 2015 WY 140, ¶ 13, 361 P.3d 295, 299 (Wyo. 2015); Sam v. State, 2017 WY 98, ¶ 65, 401 P.3d 834, 856 (Wyo. 2017), reh'g denied (Sept. 26, 2017), cert. denied, 138 S.Ct. 1988, 201 L.Ed.2d 248 (2018).

         [¶19] In evaluating closing argument, we recognize that counsel is allowed wide latitude; the prosecutor may comment on all of the evidence and may suggest reasonable inferences from the evidence. Teniente v. State, 2007 WY 165, ¶ 30, 169 P.3d 512, 524 (Wyo. 2007). "We measure the propriety of closing arguments in the context of the entire argument and compare them with the evidence produced at trial." Doherty v. State, 2006 WY 39, ¶ 18, 131 P.3d 963, 969 (Wyo. 2006) (citation omitted).

         [¶20] Instead of addressing the many alleged instances of prosecutorial misconduct in the order in which the parties present them, we address those matters for which we find no misconduct first, reordering them so that they are generally addressed in chronological order. Then we address those matters for which we find prosecutorial misconduct, reserving any discussion of prejudice for our cumulative error analysis.[3] See Black, ¶ 46 n.11, 405 P.3d at 1060 n.11 (explaining our decision to defer discussion of prejudice for our cumulative error analysis).

         A. No Prosecutorial Misconduct

         [¶21] We review all but one of the following instances of alleged prosecutorial misconduct for plain error. To establish plain error, Mr. Bogard "must show 1) the record clearly reflects the incident urged as error; 2) a violation of a clear and unequivocal rule of law; and 3) that he was materially prejudiced by the denial of a substantial right." Carroll v. State, 2015 WY 87, ¶ 11, 352 P.3d 251, 255 (Wyo. 2015) (quoting Masias v. State, 2010 WY 81, ¶ 20, 233 P.3d 944, 950 (Wyo. 2010)). Regarding the second requirement, Mr. Bogard must establish "a violation of a clear and unequivocal rule of law in a clear and obvious, not merely arguable, way[.]" Solis v. State, 2013 WY 152, ¶ 39, 315 P.3d 622, 631 (Wyo. 2013) (quoting Dennis v. State, 2013 WY 67, ¶ 42, 302 P.3d 890, 899 (Wyo. 2013)). Each of the following alleged errors we review for plain error are clearly reflected in the record, thus satisfying the first requirement. We review the final instance of alleged prosecutorial misconduct in this section for harmless error.

         1. Victim impact argument related to credibility.

         [¶22] Mr. Bogard argues that the prosecutor made statements calculated to inflame, prejudice, and mislead the jury during closing argument by impermissibly attempting to "appeal to the jury's sympathy and passions for [SK]."

         [¶23] During closing argument, the prosecutor argued that SK's version of events had remained consistent, stating:

Eight minutes. It's unreasonable to think she made up that story and started sobbing to 911 for fun in eight minutes. It's unreasonable to think that this statement made hours later to Officer McAlmond with almost identical facts is unreasonable. This is consistency. It's consistency that [SK] has been drug through the mud, drug up here, picked, prodded, poked, and abused, maintained consistency. With the SANE examiner, maintained consistency.

         [¶24] A few moments later, the prosecutor provided the jury a timeline of events, noting that the 911 call occurred at 2:41 a.m. and that SK's interview with Officer McAlmond occurred at 2:50 a.m. He then implored the jury to "[l]ook at the evidence" and continued with the timeline, stating: "Meanwhile, as the night progresses, [SK] is being poked, prodded, examined, spread open, humiliated for all of us to see. No one wants that. No one asks for that. No one asks to be scraped, documented, biologically swabbed."

         [¶25] Victim impact argument occurs when the prosecutor uses victim impact evidence[4]in closing argument or rebuttal argument. "[W]e have clearly stated that 'victim impact argument is inappropriate during the guilt phase of a criminal prosecution and prosecutors should not make arguments calculated to inflame the passions or prejudices of the jury.'" Sam, ¶ 63, 401 P.3d at 855 (quoting Haynes v. State, 2008 WY 75, ¶ 38, 186 P.3d 1204, 1213 (Wyo. 2008)). However, a prosecutor may refer to victim impact evidence in argument for a proper purpose, such as to bolster a witness's credibility after it is attacked. See, e.g., White v. State, 2003 WY 163, ¶ 20, 80 P.3d 642, 651 (Wyo. 2003).

         [¶26] We must analyze the prosecutor's argument in broad context when applying these rules. Doherty, ¶ 18, 131 P.3d at 969. Here, credibility was a central issue at trial and defense counsel drew the jury's attention to inconsistencies in SK's story on cross-examination. The prosecutor countered the attack by arguing that SK's story remained consistent throughout the timeline of events. In doing so, the prosecutor argued, albeit disjointedly, that it would have been unreasonable for SK to fabricate an allegation of assault, only to be subject to intrusive medical examinations and a public trial. Under these circumstances, Mr. Bogard has not established that the prosecutor violated the rule against improper victim impact argument in a clear and obvious way. Mr. Bogard therefore has not established plain error.

         2. Comment on Mr. Bogard's silence.

         [¶27] Mr. Bogard argues that the prosecutor made statements calculated to inflame, prejudice and mislead the jury during closing argument by twice mentioning his silence and thereby vouching for the strength of the State's evidence against him. For the reasons stated below, we conclude that neither statement constitutes an improper comment.

         [¶28] A prosecutor may not comment on a defendant's constitutional right to remain silent. Lancaster v. State, 2002 WY 45, ¶ 36, 43 P.3d 80, 95 (Wyo. 2002), overruled on other grounds by Jones v. State, 2019 WY 45, 439 P.3d 753 (Wyo. 2019). "The constitutional right to silence exists at all times-before arrest, at arrest, and after arrest[.]" Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995).

         [¶29] "A prosecutor does not 'comment' on a defendant's exercise of his right to silence where he does not attempt to use the silence to the state's advantage, where he does not argue to the jury that the silence was evidence of guilt or an admission of guilt, and where the defendant does not show any prejudice." Lancaster, ¶ 39, 43 P.3d at 96 (citation omitted). Indeed, "[t]here are many situations where, without reversible error, evidence may be adduced that a defendant 'remained silent' at some point." Id. ¶ 38, 43 P.3d at 96 (citing Shipman v. State, 2001 WY 11, ¶ 5, 17 P.3d 34, 36 (Wyo. 2001) (officer testified that, at the murder scene, the defendant said he "did not want to say anything else"); Robinson v. State, 11 P.3d 361, 373 (Wyo. 2000) (prosecutor noted what the defendant "left out" when he made a statement to the police); Beartusk v. State, 6 P.3d 138, 144 (Wyo. 2000) (officer testified that, after answering some innocuous questions, the defendant indicated he did not wish to answer any more questions); and Emerson v. State, 988 P.2d 518, 522 (Wyo. 1999) (prosecutor noted facts the defendant did not include in his statements)).

         [¶30] In reviewing statements alleged to violate the well-established rule, "[w]e consider the entire context in which the statements were made to decide whether there was an impermissible comment upon the defendant's exercise of his right of silence, and will not take sentences and phrases out of context." Robinson, 11 P.3d at 373 (citation omitted).

         [¶31] During closing argument, the prosecutor stated:

Travis Bogard vehemently denies, despite any corroboration of evidence, that he never said after party, yet he expects you to believe that [SK] 25 minutes after meeting him was willing to get bent over a tub in a bathroom in a motel in an isolated hallway away from her friends where she had no idea where she was going. That [SK] wanted to not say a single word as he shoved his penis inside of her. He deceived her into going down that hallway. Her testimony over and over and over and over again. You don't have much of what the Defendant says and I'll touch on that later.[5] Her testimony over and over and over is that she was led down that hallway through deceit, that she was fooled into thinking there was something down that hallway.

(Emphasis added.)

         [¶32] Later during closing argument, the prosecutor walked the jury through a timeline of events at the bar and leading up to Mr. Bogard's arrest. In providing that timeline, the prosecutor stated:

Victim provides that written statement to the police. You hear nothing from the Defendant. The Defendant is arrested for sexually assaulting [SK].

(Emphasis added.)

         [¶33] The prosecutor's statement that the jury did not "have much of what the Defendant says," viewed in isolation, could be construed as a comment on Mr. Bogard's decision not to testify at his second trial. In context, however, the prosecutor was discussing SK's stated reason for following Mr. Bogard down the hallway to the bathroom versus the reason Mr. Bogard stated that she followed him. SK testified that she left the bar area and followed Mr. Bogard because he invited her to an "after party" and offered to show her where it was located. Through the State's introduction of Mr. Bogard's testimony from the first trial, Mr. Bogard maintained that he initially invited SK to "come hang out" and play pool after the bar closed. He denied referring to it as an "after party." By his account, he then asked SK whether she wanted to be alone and, after she expressed some initial hesitancy because she did not want her friends to leave the bar without her, she agreed to go with him. The prosecutor's statement can be read as a comment on what was missing from Mr. Bogard's explanation, not a clear and obvious violation of the rule prohibiting comment on exercise of Mr. Bogard's right to remain silent.

         [¶34] If read in isolation, the prosecutor's statement that "[y]ou hear nothing from the Defendant" after the sexual assault could be construed as a comment on Mr. Bogard's exercise of his right to remain silent before his arrest. But viewed in context, it more logically references the gap in time in which no one heard from Mr. Bogard after the alleged assault and during which, by Mr. Bogard's account, he was asleep. At trial, the State presented evidence that after Mr. Bogard left the bar, he returned to Cheyenne and no one heard from him again until the next afternoon. In Mr. Bogard's testimony from the first trial as read to the jury, Mr. Bogard stated that shortly after he woke up at 1:30 p.m. the afternoon after the alleged assault, he noticed that he "had a ton of missed calls and a ton of texts" "[f]rom everybody," including police officers, and he began returning those calls. Because the prosecutor's comment in no way references an instance in which Mr. Bogard exercised his right to remain silent after the alleged sexual assault and before his arrest, it follows that the prosecutor did not violate a clear and unequivocal rule of law.

         [¶35] Mr. Bogard has not established that the prosecutor violated a clear and unequivocal rule of law in a clear and obvious, not merely arguable, way with either statement. Consequently, he has not established plain error as to either statement.[6]

         3. Comments regarding defense counsel.

         [¶36] Mr. Bogard argues that the prosecutor made statements calculated to inflame, prejudice and mislead the jury during closing argument by personally attacking defense counsel for berating the victim when she was on the witness stand.

         [¶37] As previously noted, the prosecutor walked the jury through a timeline of events during closing argument and, in doing so, stated:

Let's talk about what happened, what we know happened. From 1:30 to 1:45, regardless of the hours of nitpicking Defense Counsel's [sic] attempted to confuse and belittle the issue. At some point in time after 1:00 o'clock, after not drinking, after being with her sorority sisters, [SK] arrives at the Ranger bar.

(Emphasis added.)

         [¶38] "It is prosecutorial misconduct to 'launch personal attacks against defense counsel to inflame the passions and prejudices of the jury.'" Hamilton v. State, 2017 WY 72, ¶ 14, 396 P.3d 1009, 1014 (Wyo. 2017) (citation omitted). There is a distinction, however, between launching personal attacks against defense counsel and remarking on the defense's case. Hamilton illustrates that distinction. A jury found Mr. Hamilton "guilty of five counts of sexual assault and sexual abuse of a minor." Id. ¶ 1, 396 P.3d at 1010. He appealed his conviction, arguing that two or more instances of prosecutorial misconduct amounted to cumulative error. Id. ¶¶ 1-2, 396 P.3d at 1010-11. Among other issues, he argued that the prosecutor "repeatedly … ridiculed the defense." Id. ¶ 13, 396 P.3d at 1013. The prosecutor stated that the defense dragged one of the victims through the mud. Id. The prosecutor also stated that defense counsel's arguments were "not reasonable," "absurd," "fundamentally ridiculous," "so off-the-wall ridiculous it's beyond belief," "nonsense," and "a very bizarre, out-there explanation." Id. ¶¶ 13-14, 396 P.3d at 1013- 14. We concluded that the statements, "[t]hough ill-advised," "related to the prosecution's view of the defense's case" and did not amount to prosecutorial misconduct. Id. ¶ 14, 396 P.3d at 1014; cf. Strickland v. State, 2004 WY 91, ¶ 50, 94 P.3d 1034, 1054 (Wyo. 2004) (identifying as a personal attack on defense counsel the prosecutor's statement "[i]t is amazing a defense attorney who has never worked a scene, who has never investigated a fire can be an expert and disagree with the clear evidence of all the witnesses").

         [¶39] On cross-examination of SK, defense counsel addressed a wide range of inconsistencies, some of which may have seemed minor, like whether she arrived at the Ranger at 1:45 or 2:00 a.m. and which door she exited through when she left the bar. In light of such cross-examination and the record as a whole, the prosecutor's comments here, like those in Hamilton, constitute a remark on the defense's case, not a personal attack against defense counsel. Mr. Bogard established no plain error on this issue.

         4. Argument regarding traumatic memory loss.

         [¶40] Without much explanation or analysis, Mr. Bogard argues that the prosecutor made statements calculated to inflame, prejudice and mislead the jury during closing argument by claiming that SK "suffered from traumatic memory loss as a way to bolster her credibility after defense counsel revealed inconsistencies in her testimony, even though she had never been diagnosed with traumatic memory loss and instead said she suffered from anxiety and her memory blurred from 'panic attacks.'"

         [¶41] During closing argument, the prosecutor attempted to link Dr. Gray's testimony about traumatic memory loss to SK's inconsistent statements after the assault, arguing:

[PROSECUTOR]: Remember Dr. Gray's testimony. Without having ever met the victim, having a single detail about this case or her specific situation, those are-the Defense makes it seem like that's not in his favor. We're not trying to corroborate [SK]. We're trying to show you that these issues, these complexities, these nuances to traumatic memory loss exist and they're explainable. They're not the result of [SK]- they're not the result of-excuse me, I apologize.
Traumatic memory loss is a thing. It's a diagnosable, clinical researched and established corroborated and peer reviewed thing. It happens. Dr. Gray did not tell you it happened in this case, but it happened in this case, because [SK]-
[DEFENSE COUNSEL]: Objection, it's not in evidence.
THE COURT: Overruled.
[PROSECUTOR]: [SK] was diagnosed individually, independently with PTSD as a result of this. [SK] suffered from traumatic memory loss, and any inconsistencies which she has are not attempts by her, as she so eloquently put it, to deceive or lie to you. They are attempts by her to give you as much of the truth as she recalls.

         [¶42] On cross-examination, SK testified that she suffers from and has received counseling for PTSD, adding that "it's hard to recall exact details of a trauma when you suffer from PTSD." The State's expert, Dr. Gray, subsequently testified about traumatic memory loss. In doing so, he addressed a common misconception that details regarding a horrific event that someone experiences should be "seared in" that person's memory. He explained that research is pretty clear and there is consensus that "trauma memory is often fairly spotty and gappy." Thus, while "people will remember some aspects of their trauma with pretty good clarity and in some degree of high detail," they may not retain "peripheral details" or other aspects of the sequence of events. He also addressed PTSD, explaining that "[o]ne of the qualifying symptoms of PTSD, one of 20 symptoms that could be met to meet diagnostic criteria of posttraumatic stress disorder is inability to recall important parts of the traumatic event." On cross-examination, he confirmed that he did not diagnose SK with PTSD, did not know whether she had any constructed memories, and did not know whether any of the matters he had addressed applied to the case.

         [¶43] Mr. Bogard does not analyze the prosecutor's argument in light of SK's and Dr. Gray's testimony, acknowledge the prosecutor's express recognition that Dr. Gray did not testify that SK suffered from traumatic memory loss, address whether the prosecutor argued a reasonable inference from the evidence (e.g., that the inconsistencies in SK's story could be attributable to her PTSD because the symptoms of PTSD may include inability to recall important details), or provide analysis of how the prosecutor's argument regarding Dr. Gray's testimony was calculated to inflame, prejudice and mislead the jury. Mr. Bogard therefore has not established that the prosecutor violated any clear and unequivocal rule of law in a clear and obvious way and has failed to establish any plain error on this issue.

         5. Asking Dr. Gray a question regarding false reporting.

         [¶44] We review for harmless error Mr. Bogard's argument that the State impermissibly asked its expert a question that called for vouching.

         [¶45] In testifying on direct examination about general matters related to trauma and memory, Dr. Gray defined a "sexual assault myth" as "a common belief that people might have that does not fit with the best available research." The prosecutor asked Dr. ...


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