United States v. Bodoh ( 2019 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Anthony M. BODOH, Private
United States Army, Appellant
No. 18-0201
Crim. App. No. 20150218
Argued November 7, 2018—Decided January 23, 2019
Military Judge: Wade N. Faulkner
For Appellant: Captain Heather M. Martin (argued); Lieu-
tenant Colonel Christopher D. Carrier, Major Todd W.
Simpson, and Captain Zachary A. Szilagyi (on brief); Ma-
jor Julie L. Borchers and Captain Joshua B. Fix.
For Appellee: Captain Brian Jones (argued); Colonel Ste-
ven Haight, Lieutenant Colonel Eric K. Stafford, and Major
Virginia Tinsley (on brief); Captain Cassandra M. Resposo
and Captain Jeremy S. Watford.
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges RYAN,
SPARKS, and MAGGS, joined.
_______________
Judge OHLSON delivered the opinion of the Court.
A panel of officer members sitting as a general court-
martial convicted Appellant, contrary to his pleas, of one
specification of assault and one specification of sexual
assault in violation of Articles 120 and 128, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920, 928 (2012). The
convening authority approved the adjudged sentence of a
bad-conduct discharge, confinement for five years, forfeiture
of $1,546.80 pay per month for sixty months, and a
reduction to the lowest enlisted grade. The United States
Army Court of Criminal Appeals affirmed the findings and
sentence.
We granted review on the following issue:
Whether the military judge plainly erred by allow-
ing the trial counsel to misstate the law and argue
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
that the panel should base its verdict on [the Ar-
my’s Sexual Harassment/Assault Response and
Prevention (SHARP)] training.
United States v. Bodoh, 78 M.J. 50 (C.A.A.F. 2018) (order
granting review). 1
We hold that trial counsel’s conduct was not plainly er-
roneous because: (1) it was not improper for trial counsel to
question the panel members about SHARP training during
voir dire in order to discern whether the panel members
could be impartial; (2) trial counsel’s misstatement of the
law while cross-examining Appellant was promptly cured by
the military judge; and (3) trial counsel’s arguments did not
constitute clear or obvious error and did not materially prej-
udice Appellant’s substantial rights. Accordingly, we affirm
the judgment of the lower court.
I. Facts
In June 2014, Appellant stayed at the on-base home of
VH and her husband. Over the course of one afternoon and
evening, they ingested alcohol and “Triple Cs” (a cough and
flu medication). Later in the evening, VH and her husband
fell asleep in their bedroom.
After the couple had fallen asleep, Appellant entered the
bedroom and took VH to the bathroom. While VH’s husband
slept in the bedroom, Appellant and VH engaged in oral and
vaginal sex in various rooms of the house. VH testified that
she did not consent to the sexual activity, repeatedly asked
to return to bed, and started crying during the incident.
Eventually, Appellant ended the encounter and told VH to
go to bed. Appellant later asserted that VH had consented to
the sexual acts.
The Government charged Appellant with one specifica-
tion of sexual assault by causing bodily harm and two speci-
1 This assigned issue was granted with the exact wording re-
quested by Appellant and we decline to consider other alleged in-
stances of prosecutorial misconduct that are raised in Appellant’s
brief but are outside the scope of the granted issue. United States
v. Guardado, 77 M.J. 90, 95 n.1 (C.A.A.F. 2017) (declining to ad-
dress argument falling outside scope of granted issue).
2
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
fications of assault consummated by a battery. 2 After Appel-
lant entered pleas of not guilty, his case proceeded to trial
and he was convicted of some of the charged offenses. Appel-
lant now challenges on appeal trial counsel’s conduct during
member voir dire, cross-examination of Appellant, and find-
ings and rebuttal arguments.
A. Voir Dire
During member voir dire, the military judge instructed
the members, “You are required to follow my instructions on
the law and may not consult any other source as to the law
pertaining to this case unless it is admitted into evidence.”
Also during voir dire, trial counsel posed the following four
questions to the members about the Army’s SHARP
program:
• “[D]oes anyone disagree that the SHARP program
may make it easier for Soldiers to report than
civilians?” (The members provided a “negative
response.”)
• “Given the training that Soldiers go through, does
anyone think that a Soldier should get verbal con-
sent for having sexual intercourse with somebody?
Given the SHARP program and the training to go
through, does anyone think you should have ver-
bal consent before having sexual intercourse …?”
(Four members (three of whom remained on the
panel) answered in the affirmative and the re-
maining members answered in the negative. Nei-
ther trial counsel, defense counsel, nor the mili-
tary judge further investigated this response.)
• “Does anyone here believe that just because [of]
the SHARP program … or the political environ-
ment, that they would have to find the accused
guilty in a sexual assault case based upon the
2 Appellant was also charged with violating a lawful order, in
violation of Article 92, UCMJ, 10 U.S.C. § 892 (2012). The military
judge granted the defense’s Rule for Courts-Martial (R.C.M.) 917
motion for a finding of not guilty for this Article 92, UCMJ,
offense.
3
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
SHARP Program?” (The members provided a neg-
ative response.)
• “Does anyone here believe that just because [of]
the SHARP program or political environment that
they could not listen to the evidence fairly?” (The
members provided a negative response.)
After these inquiries, trial counsel asked, “And, do you
all understand that you have to follow the laws the judge
instructs, apply the facts presented in court, and your com-
mon sense and life experience in making decisions …?” The
members unanimously agreed that they would follow the
law as instructed by the military judge.
B. Appellant’s Cross-Examination
The prosecution did not raise SHARP training in its
case-in-chief. Instead, when Appellant testified in his de-
fense, he stated on direct examination that the victim
“pulled the SHARP defense.” Trial counsel later established
on cross-examination that Appellant had “gone through
SHARP training.” Trial counsel then asked:
Q. And you know about not having sex with people
when they’ve had drugs and alcohol, correct?
A. To the best of my knowledge, she wasn’t —
Q. You know about not having sex with people that
are on drugs and alcohol, correct? You are not sup-
posed to do that.
A. Yes, sir.
....
Q. You are not supposed to sleep with someone
when they are on Triple C’s, correct?
A. Yes, sir.
This drew an objection from trial defense counsel for
badgering and asking questions based on evidence not in the
record. However, trial defense counsel did not raise an objec-
tion that trial counsel was misstating the law. The military
judge overruled the badgering objection but then told trial
counsel in open court:
[Y]our questions are a misstatement of the law.
There’s nothing that says you can’t have sex with
4
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
somebody who has taken alcohol or Triple C. So if
you want to phrase your questions to make them a
correct statement of the law, I will allow them; oth-
erwise, the objection is sustained.
Also, the military judge sustained a second defense objection
when trial counsel began asking Appellant if he believed it
was appropriate to have sex with someone who has used al-
cohol or drugs.
C. Findings and Rebuttal Arguments
1. Findings Argument
In a findings argument that covers thirty-three pages in
the record of trial, trial counsel referenced SHARP training
on three occasions. Trial defense counsel did not object to
any of these references. The first reference to the SHARP
program was as follows:
She uses drugs. That does not give permission,
based on your common sense and life experiences.
What do you keep learning when you’re going
through the SHARP programs? People who are on
drugs and alcohol are more vulnerable to be as-
saulted. People who use drugs and get involved in
that kind of stuff are more vulnerable to get as-
saulted because their assailant knows no one is go-
ing to believe them.
(Emphasis added.)
The second reference to SHARP training arose after trial
counsel argued that VH’s intoxication did not give “permis-
sion [for her] to be sexually assaulted.” Trial counsel argued:
“She’s vulnerable, as you all know again from your SHARP
training, your common sense, and your life experience. It …
makes victims more vulnerable when they’re doing that be-
cause it’s harder for them to report. It’s harder for them to
be believed because their memories are bad.” (Emphasis
added.)
Trial counsel’s third reference to the SHARP program
arose when he argued that although “[e]veryone would wish”
that VH had fought back or screamed, these were myths
about how a sexual assault victim will invariably react and
“all your Soldiers learn in the SHARP program every day
about those myths.”
5
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
2. Rebuttal Argument
Trial counsel’s rebuttal argument spans eleven pages
and contains two arguments relevant to this appeal. First,
trial counsel asserted that VH’s counterintuitive behavior
did not rule out a sexual assault because:
The fact that she coped differently than what eve-
ryone else expected is why we have counterintuitive
behavior; that’s why we have implemented the
SHARP program, because those things happen.
We’re taught that counterintuitive behavior, as
leaders, is normal to experience and they can’t ex-
pect them to cope the same and that’s what you will
do; you’ll see from her.
(Emphasis added.) Second, trial counsel concluded his
rebuttal argument with this series of remarks: “You have
the evidence. You have the common sense. You have the
training. Find him guilty of all charges and specifications.”
(Emphasis added.) Trial defense counsel did not object to
these arguments.
D. Military Judge’s Instructions
Prior to findings argument, the military judge informed
the members: “My duty is to instruct you on the law. Your
duty is to determine the facts, apply the law to the facts, and
determine the guilt or innocence of the accused.” He also in-
structed that “[a]n accused may be convicted based only on
evidence before the court.” (Emphasis added.) The military
judge further explained “that only matters properly before
the court as a whole should be considered. In weighing and
evaluating the evidence, you are expected to use your own
common sense and your knowledge of human nature ….” Fi-
nally, the military judge instructed:
Bear in mind that arguments of counsel are not ev-
idence. Argument is made by counsel in order to
assist you in understanding and evaluating the ev-
idence, but you must base the determination of the
issues in the case on the evidence as you remember
it and apply the law as I instruct you.
At the conclusion of the parties’ findings arguments, the
military judge reminded the members that “argument by
counsel is not evidence. Counsel are not witnesses.”
6
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
E. Members’ Findings
The members returned a mixed verdict. They acquitted
Appellant of an Article 128, UCMJ, assault specification in
which the Government alleged that he had pulled VH’s arm.
They convicted Appellant of one specification of sexual as-
sault and one specification of assault, in violation of Articles
120 and 128, UCMJ. However, in reaching these findings,
the members excepted the word “anus” from the Article 120,
UCMJ, sexual assault specification, 3 and they excepted
“open hand” and substituted “penis” in the Article 128,
UCMJ, assault specification. 4
II. Standard of Review
Because Appellant did not object to trial counsel’s mis-
statements of law or references to the SHARP program at
trial, we review for plain error. United States v. Andrews,
77 M.J. 393, 398 (C.A.A.F. 2018). To prevail, Appellant bears
the burden of establishing (1) error, (2) that is clear or obvi-
ous, and (3) results in material prejudice to a substantial
right of the accused. Id. at 401. “[A]ll three prongs must be
satisfied.” United States v. Robinson, 77 M.J. 294, 299
(C.A.A.F. 2018) (citation omitted) (internal quotation marks
omitted). “The third prong is satisfied if the appellant shows
a reasonable probability that, but for the error [claimed], the
outcome of the proceeding would have been different.” Id.(alteration in original) (citation omitted) (internal quotation
marks omitted).
III. Applicable Law
We recently explained in Andrews that “[t]rial prosecuto-
rial misconduct is behavior by the prosecuting attorney that
oversteps the bounds of that propriety and fairness which
should characterize the conduct of such an officer in the
3 The Article 120, UCMJ, sexual assault specification alleged
that Appellant “penetrated the vulva, anus, and mouth of [VH]
with his penis by causing bodily harm, to wit: penetrating the vul-
va, anus and mouth of [VH] with his penis, without the consent of
[VH].”
4 The Article 128, UCMJ, assault specification alleged that
Appellant did “unlawfully slap [VH] with his open hand on her
face.”
7
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
prosecution of a criminal offense.” 77 M.J. at 402 (citation
omitted) (internal quotation marks omitted). “Prosecutorial
misconduct can be generally defined as action or inaction by
a prosecutor in violation of some legal norm or standard[,
and] …. [p]rosecutors have a duty to refrain from improper
methods calculated to produce a wrongful conviction.” Id.
(citations omitted) (internal quotation marks omitted).
In terms of prejudice, “[w]hile prosecutorial misconduct
does not automatically require a new trial or the dismissal of
the charges against the accused, relief will be granted if the
trial counsel’s misconduct actually impacted on a substantial
right of an accused (i.e., resulted in prejudice).” Id. (citation
omitted) (internal quotation marks omitted). In evaluating
prejudice, “we look at the cumulative impact of any prosecu-
torial misconduct on the accused’s substantial rights and the
fairness and integrity of his trial.” Id. (internal quotation
marks omitted) (quoting United States v. Fletcher, 62 M.J.
175, 184 (C.A.A.F. 2005)); United States v. Meek, 44 M.J. 1, 5
(C.A.A.F. 1996) (“[T]he reviewing court still considers the
trial record as a whole to determine whether [the prosecuto-
rial misconduct] was harmless under all the facts of a par-
ticular case.”). We consider: “(1) the severity of the miscon-
duct, (2) the measures adopted to cure the misconduct, and
(3) the weight of the evidence supporting the conviction.”
Fletcher, 62 M.J. at 184.
IV. Discussion
Appellant raises allegations of prosecutorial misconduct
at three stages of his trial—during voir dire, witness exami-
nation, and findings argument. However, for the reasons
provided below, Appellant has failed to establish that trial
counsel’s conduct constitutes plain error.
A. Voir Dire
We have recognized that “[v]oir dire is a valuable tool …
to determine whether potential court members will be im-
partial.” United States v. Jefferson, 44 M.J. 312, 318
(C.A.A.F. 1996) (citation omitted). Thus, “voir dire should be
used to obtain information for the intelligent exercise of
challenges.” R.C.M. 912(d) Discussion; see also United States
v. Bragg, 66 M.J. 325, 327 (C.A.A.F. 2008). It is, however,
subject to limitations. See United States v. Smith, 27 M.J.
8United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
25, 28 (C.M.A. 1988) (stating that voir dire does “ ‘not permit
the examination to range through fields as wide as the imag-
ination of counsel’ ” (quoting United States v. Parker,
6 C.M.A. 274, 280, 19 C.M.R. 400, 406 (1955))).
Here, there is no error, let alone clear or obvious error, in
trial counsel’s questions about the SHARP program during
voir dire. First, although it is unclear why trial counsel in-
quired into whether the members believed that the SHARP
program made it easier for soldiers to report sexual assaults
than civilians, this question is facially benign and therefore
not erroneous. Second, the remaining three questions posed
about the SHARP program were designed to assess whether
the members’ SHARP training would improperly influence
their deliberations. This is an appropriate line of inquiry for
voir dire. Jefferson, 44 M.J. at 318. Therefore, trial counsel’s
references to SHARP during voir dire do not constitute pros-
ecutorial misconduct.
B. Questioning Witnesses
When examining witnesses, trial counsel cannot seek to
introduce, either overtly or surreptitiously, inadmissible ev-
idence and cannot misstate legal principles. See United
States v. Diaz, 59 M.J. 79, 95 (C.A.A.F. 2003); see also Berger
v. United States, 295 U.S. 78, 88 (1935) (explaining that a
prosecutor has a “duty to refrain from improper methods
calculated to produce a wrongful conviction”).
Here, trial counsel erred when questioning Appellant.
During this cross-examination, trial counsel first established
that Appellant had participated in SHARP training and
then asked a series of clearly impermissible questions
founded on the false premise that a person who is intoxicat-
ed is inherently incapable of consenting to sexual acts. See
United States v. Rogers, 75 M.J. 270, 274 (C.A.A.F. 2016)
(explaining that a member held an erroneous understanding
of the law because she believed it was not possible for an in-
toxicated person to consent to sexual activity if that person
was too drunk to remember having sex).
We conclude, however, that the military judge fully cured
trial counsel’s error. First, the military judge sustained in a
timely manner the defense’s objection, albeit on a different
ground than the one raised by the defense. Second, the mili-
9
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
tary judge ruled that trial counsel had misstated the law.
Third, the military judge properly summarized the law by
stating: “There’s nothing that says you can’t have sex with
somebody who has taken alcohol or Triple C.” The defense
never expressed dissatisfaction with these curative
measures or sought additional measures. See Greer v. Miller,
483 U.S. 756, 766 n.8 (1987) (explaining that the defense
counsel “bore primary responsibility for ensuring that the
error was cured in the manner most advantageous to his cli-
ent”). We therefore conclude that in light of the military
judge’s curative measures, Appellant failed to establish that
trial counsel’s improper questioning was prejudicial.
C. Findings and Rebuttal Arguments
“Counsel should limit their [findings] arguments to ‘the
evidence of record, as well as all reasonable inferences fairly
derived from such evidence.’ ” United States v. Burton,
67 M.J. 150, 152 (C.A.A.F. 2009) (quoting United States v.
Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). Therefore, when ar-
gument goes “beyond the facts established in the record” or
the reasonable inferences “drawn from the evidence,” this
“constitute[s] error.” United States v. Paxton, 64 M.J. 484,
488 (C.A.A.F. 2007).
“There is, however, an exception to this general rule.
This court has held that it is proper for a trial counsel to
comment during argument on ‘contemporary history or mat-
ters of common knowledge within the community.’ ” Fletcher,
62 M.J. at 183 (quoting United States v. Kropf, 39 M.J. 107,
108 (C.M.A. 1994)). These matters include routine personnel
actions, a military branch’s drug policy, and “any other mat-
ter upon which [servicemembers] in general have a common
fund of experience and knowledge, through data notoriously
accepted by all.” Id. (citation omitted) (internal quotation
marks omitted).
When trial counsel invokes military policies, this Court
has advised counsel “to tread lightly” because of the “danger
of interjecting the command structure into the members’ de-
liberations.” Kropf, 39 M.J. at 109. “ ‘A policy directive …
must not be used as leverage to compel a certain result in
the trial itself.’ ” United States v. Pope, 63 M.J. 68, 75
10
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
(C.A.A.F. 2006) (quoting United States v. Fowle, 7 C.M.A.
349, 351, 22 C.M.R. 139, 141 (1956)).
In the instant case, Appellant avers that the Government
both argued facts not in evidence and interjected the com-
mand in the deliberation room when trial counsel made the
following points during closing argument: “What do you
keep learning when you’re going through the SHARP pro-
gram? People who are on drugs and alcohol are more vul-
nerable to be[ing] assaulted”; and VH was “vulnerable [be-
cause of her use of drugs and alcohol] as you all know again
from your SHARP training, your common sense, and your
life experience.”
We need not decide whether it was error for trial counsel
to make these arguments because Appellant has not demon-
strated prejudice. Trial counsel’s proposition—that people on
drugs and alcohol are more vulnerable—is an unremarkable
observation that is based on common knowledge. Thus, there
is no reasonable probability that trial counsel’s reference to
the SHARP program in this context would have changed the
outcome of Appellant’s trial. Appellant therefore has not es-
tablished material prejudice to a substantial right.
However, trial counsel did err by referencing the SHARP
program in the context of myths about how a victim will or
should react in the course or aftermath of a sexual assault.
Simply stated, the “myths” reportedly taught about in
SHARP training did not constitute trial evidence, and it was
therefore erroneous for trial counsel to present argument
about these myths in the context of SHARP training. See
Paxton, 64 M.J. at 488. However, it is important to note that
the Government elicited testimony from its expert witness
on precisely the same point when it questioned her about
rape myths. Therefore, the underlying point made by trial
counsel was fully supported by evidence in the record. Ac-
cordingly, Appellant has not demonstrated that trial coun-
sel’s error resulted in material prejudice to a substantial
right of the accused.
Finally, trial counsel concluded rebuttal argument by
stating: “You have the evidence. You have the common
sense. You have the training. Find him guilty of all charges
and specifications.” (Emphasis added.) This reference to
11
United States v. Bodoh, No. 18-0201/AR
Opinion of the Court
training, which was not based on evidence adduced at trial,
was improper. However, this reference was fleeting and
vague, and trial defense counsel did not object to it.
Moreover, the military judge provided ameliorative
instructions to the members that: an intoxicated individual
can still consent to sexual activity; “argument by counsel is
not evidence”; and “[a]n accused may be convicted based only
on evidence before the court.” Because of these factors,
Appellant has failed to establish a reasonable probability
that, absent the error, the results of the trial would have
been different. Robinson, 77 M.J. at 299. Accordingly, trial
counsel’s passing reference to “training” does not constitute
plain error. 5
V. Conclusion
Considered alone or cumulatively in the context of the
entire record of trial, 6 we conclude that Appellant has failed
to establish that trial counsel’s misstatements of law and
references to the SHARP program constituted plain error.
Accordingly, we affirm the decision of the United States Ar-
my Court of Criminal Appeals as to findings and affirm only
so much of the sentence as includes a bad-conduct discharge,
confinement for five years, forfeiture of $1,546 pay per
month for sixty months, 7 and a reduction to the lowest en-
listed grade.
5 As can be seen, we have determined that the facts and cir-
cumstances in this case do not support a plain error determina-
tion. However, we once again find it necessary to state the obvi-
ous: “Counsel should limit their arguments to the evidence of
record, as well as all reasonable inferences fairly derived from
such evidence.” Burton, 67 M.J. at 152 (citation omitted) (internal
quotation marks omitted).
6 We have considered the cumulative impact of trial counsel’s
misconduct. Even when considered as a whole, we are confident
that trial counsel’s conduct did not affect the members’ findings.
See Fletcher, 62 M.J. at 184 (“[P]rosecutorial misconduct ... will
require reversal when the trial counsel’s [actions], taken as a
whole, were so damaging that we cannot be confident that the
members convicted the appellant on the basis of the evidence
alone.”).
7 The sentence to forfeiture must “state the exact amount in
whole dollars to be forfeited each month.” R.C.M. 1003(b)(2).
12