449 P.3d 315 (Wyo. 2019), S-18-0069, Bogard v. State

Docket Nº:S-18-0069
Citation:449 P.3d 315, 2019 WY 96
Opinion Judge:BOOMGAARDEN, Justice.
Party Name:Travis BOGARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Attorney: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 Assi...
Judge Panel:Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ. KAUTZ, J., dissenting.
Case Date:September 12, 2019
Court:Supreme Court of Wyoming

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449 P.3d 315 (Wyo. 2019)

2019 WY 96

Travis BOGARD, Appellant (Defendant),

v.

The STATE of Wyoming, Appellee (Plaintiff).

No. S-18-0069

Supreme Court of Wyoming

September 12, 2019

Page 316

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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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.

OPINION

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.

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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

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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

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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,...

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