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.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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
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). 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.
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.
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
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.
We discuss additional facts and proceedings below as
Did the prosecutors commit misconduct?
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)).
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.
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
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).
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. 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).
No Prosecutorial Misconduct
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.
Victim impact argument related to credibility.
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]."
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.
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,
Victim impact argument occurs when the prosecutor uses victim
impact evidencein 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).
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.
Comment on Mr. Bogard's silence.
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.
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).
"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
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
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. 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
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
Victim provides that written statement to the police.
You hear nothing from the Defendant. The
Defendant is arrested for sexually assaulting [SK].
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.
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.
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
Comments regarding defense counsel.
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.
As previously noted, the prosecutor walked the jury through a
timeline of events during closing argument and, in doing so,
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.
"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").
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.
Argument regarding traumatic memory loss.
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.'"
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
[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.
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.
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.
Asking Dr. Gray a question regarding false
We review for harmless error Mr. Bogard's argument that
the State impermissibly asked its expert a question that
called for vouching.
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. ...