449 P.3d 315
Wyo.2019Background
- Late-night encounter at the Ranger bar in Laramie (Oct. 28–29, 2016): SK met Travis Bogard, left the bar with him and went into a dimly lit bathroom; their accounts of what followed sharply diverged (consensual vs. forcible sexual intrusion).
- SK reported the assault shortly after, underwent SANE exam (noted an internal vaginal laceration and bleeding) and gave a written statement; vaginal Y-STR testing matched Bogard’s profile, but no seminal fluid was detected and anal testing was inconclusive.
- First trial (June 2017) ended in mistrial; at retrial the State read Bogard’s first-trial testimony into evidence over objection and presented multiple witnesses including a trauma-memory expert.
- At retrial prosecutors elicited testimony from an earlier dating partner (Ms. K) and repeatedly referenced her “negative experience” despite a pretrial W.R.E. 404(b) ruling excluding prior sexual-acts evidence; prosecutors also used victim-impact language, repeated statements about SK “sobbing” (not testified to), and used profanity in closing.
- The jury convicted Bogard of first-degree sexual assault (not guilty of kidnapping); the Wyoming Supreme Court found multiple instances of prosecutorial misconduct and reversed, concluding the misconduct was prejudicial in the aggregate and remanding for a new trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bogard) | Held |
|---|---|---|---|
| Prosecutorial misconduct generally | Prosecutors’ arguments and witness examinations were proper inferences from evidence and aimed to bolster credibility of the victim. | Multiple prosecutor statements and questioning (404(b) allusions, victim-impact remarks, misstatements of evidence, profanity) improperly inflamed jury and vouched for complainant. | Court found several instances of prosecutorial misconduct (404(b) allusions, victim-impact remarks, arguing facts not in evidence, profanity) and reserved prejudice analysis to cumulative-error review. |
| Violation of W.R.E. 404(b) — Ms. K testimony | Evidence about Ms. K’s dating/contact with Bogard was relevant to place him at the scene and his state of mind; questions stayed within limits set by court. | Repeated references to Ms. K’s “negative experience” alluded to excluded prior sexual misconduct and improperly suggested propensity. | Court held the prosecutor ignored the 404(b) ruling by repeatedly alluding to Ms. K’s “negative experience,” constituting misconduct. |
| Improper victim-impact / arguing facts not in evidence | References to SK’s post-event distress and trauma-memory expert testimony were proper to rebut impeachment and explain inconsistencies; some passed without prejudice. | Prosecutors impermissibly appealed to sympathy, argued facts not in evidence (e.g., SK sobbing in the bathroom), and misstated evidence to bolster lack-of-consent theory. | Court found victim-impact arguments and repeated assertions that SK was sobbing (not testified) were improper; sustained some objections at trial but concluded some statements were error. |
| Cumulative-error / prejudice | Any individual errors were harmless; jury instructions and evidence strength cured any potential prejudice. | The combined misconduct (inadmissible allusions, victim-impact, misstatements, profanity) attacked the central credibility issue and denied a fair trial. | Court held cumulative effect of prosecutorial misconduct prejudiced Bogard’s substantial rights, reversing conviction and remanding for a new trial. |
Key Cases Cited
- Black v. State, 405 P.3d 1045 (Wyo. 2017) (standards for reviewing prosecutorial error and closing-argument analysis)
- Sam v. State, 401 P.3d 834 (Wyo. 2017) (victim-impact argument improper in guilt phase; cumulative-error framework)
- White v. State, 80 P.3d 642 (Wyo. 2003) (permissible use of victim-impact evidence to bolster credibility when properly tied to issues attacked by defense)
- Wilde v. State, 74 P.3d 699 (Wyo. 2003) (misconduct to deliberately ignore trial-court liminal orders and bring inadmissible matter before jury)
- Lopez v. State, 98 P.3d 143 (Wyo. 2004) (prohibition on vouching by witnesses and experts regarding complainant credibility)
- Berger v. United States, 295 U.S. 78 (U.S. 1935) (prosecutor must seek conviction fairly; may not use methods calculated to produce wrongful conviction)