Opinion Analysis: No prejudice from improper references to sexual assault training, in United States v. Bodoh
CAAF decided the Army case of United States v. Bodoh, __ M.J. __, No. 18-0201/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 23, 2019. Reviewing a number of instances during the trial where the prosecution referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program – none of which drew a defense objection – the court finds some of the references improper but harmless, and it affirms the findings, sentence (with a correction), and decision of the Army CCA.
Judge Ohlson writes for a unanimous court.
CAAF granted review to determine:
Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training
Private (E-2) Bodoh was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of sexual assault and one specification of assault consummated by a battery. He was sentenced to confinement for five years, reduction to E-1, forfeiture of $1,546.80 per month for 60 months, and a bad-conduct discharge.
The granted issue involves three phases of the court-martial. First, during voir dire of the members, the prosecution asked questions that referenced the SHARP program. Second, when Bodoh testified in his own defense that the alleged sexual acts occurred but were consensual, the prosecution asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training Bodoh had received, eventually drawing objections from the defense that led the military judge to give a curative instruction. Third, during closing arguments, the trial counsel repeatedly referenced the SHARP program (without objection from Bodoh’s defense counsel).
Judge Ohlson’s opinion for the unanimous CAAF repeatedly notes the defense counsel’s failures to object – and the associated application of the plan error test – but ultimately concludes that some of the references to SHARP training were not improper and the remaining references were not prejudicial.