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); Lieutenant Colonel Christopher D. Carrier, Major Todd W. 

Simpson, and Captain Zachary A. Szilagyi (on brief); Major Julie L. Borchers and Captain Joshua B. Fix. 

For Appellee: Captain Brian Jones (argued); Colonel Steven 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 courtmartial 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 allowing the trial counsel to misstate the law and argue 
United States v. Bodoh, No. 18-0201/AR 

Opinion of the Court 

2 

that the panel should base its verdict on [the Army’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 erroneous 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 prejudice 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 specification of sexual assault by causing bodily harm and two speci-

 1 This assigned issue was granted with the exact wording requested by Appellant and we decline to consider other alleged instances 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 address argument falling outside scope of granted issue). 
United States v. Bodoh, No. 18-0201/AR 

Opinion of the Court 

3 

fications of assault consummated by a battery.2 After Appellant entered pleas of not guilty, his case proceeded to trial 

and he was convicted of some of the charged offenses. Appellant now challenges on appeal trial counsel’s conduct during 

member voir dire, cross-examination of Appellant, and findings 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 consent for having sexual intercourse with somebody? 

Given the SHARP program and the training to go 

through, does anyone think you should have verbal consent before having sexual intercourse ...?” 

(Four members (three of whom remained on the 

panel) answered in the affirmative and the remaining members answered in the negative. Neither trial counsel, defense counsel, nor the military judge further investigated this response.) 

 “Does anyone here believe that just because [of] 

the SHARP program ... or the political environment, 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. 
United States v. Bodoh, No. 18-0201/AR 

Opinion of the Court 

4 

SHARP Program?” (The members provided a negative 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 common 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 defense, 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 supposed 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 objection 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 
United States v. Bodoh, No. 18-0201/AR 

Opinion of the Court 

5 

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; otherwise, 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 alcohol 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 assaulted. People who use drugs and get involved in 

that kind of stuff are more vulnerable to get assaulted because their assailant knows no one is going to believe them. 

(Emphasis added.) 

The second reference to SHARP training arose after trial 

counsel argued that VH’s intoxication did not give “permission [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 because 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.” 
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Opinion of the Court 

6 

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 everyone 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 expect 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 instructed 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 ....” Finally, the military judge instructed: 

Bear in mind that arguments of counsel are not evidence. Argument is made by counsel in order to 

assist you in understanding and evaluating the evidence, 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.” 
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7 

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 assault 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 misstatements 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 obvious, 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 prosecutorial 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 vulva, 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.” 
United States v. Bodoh, No. 18-0201/AR 

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8 

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 prosecutorial 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 prosecutorial misconduct] was harmless under all the facts of a particular case.”). We consider: “(1) the severity of the misconduct, (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 examination, 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 impartial.” 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. 
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25, 28 (C.M.A. 1988) (stating that voir dire does “ ‘not permit 

the examination to range through fields as wide as the imagination 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 inquired 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 prosecutorial misconduct. 

B. Questioning Witnesses 

When examining witnesses, trial counsel cannot seek to 

introduce, either overtly or surreptitiously, inadmissible evidence 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 intoxicated 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 intoxicated 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-
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Opinion of the Court 

10 

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 client”). 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 argument 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 matters 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 matter 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’ deliberations.” 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 
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Opinion of the Court 

11 

(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 command 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 program? People who are on drugs and alcohol are more vulnerable to be[ing] assaulted”; and VH was “vulnerable [because 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 demonstrated 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 established 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. Accordingly, Appellant has not demonstrated that trial counsel’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 
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Opinion of the Court 

12 

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 Army 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 enlisted grade. 

 5 As can be seen, we have determined that the facts and circumstances in this case do not support a plain error determination. However, we once again find it necessary to state the obvious: “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).