State v. Hogue

2025 UT App 88

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
GLEN HOGUE,
Appellant.

Opinion
No. 20220544-CA
Filed June 12, 2025

Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 211903653

Randall W. Richards, Attorney for Appellant
Derek E. Brown and Daniel W. Boyer,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Glen Hogue challenges his convictions of manslaughter
and felony discharge of a firearm. He raises arguments of
insufficient evidence, prosecutorial misconduct, and ineffective
assistance of trial counsel. We see no error related to the various
issues raised by Hogue, and we therefore affirm.

BACKGROUND

¶2 One evening in March 2021, Hogue and his friend Troy
were hanging out together in Hogue’s RV that was parked outside
his house. The two smoked marijuana and drank whiskey
State v. Hogue

together. At some point, Troy tried to show Hogue his gun that
he had brought over. The two men fumbled with the gun and
accidentally fired one shot into the floor of the RV. Hogue was
angry with Troy and began berating him for bringing the gun
inside and yelling at him to sit down.

¶3 Another of Hogue’s friends (Friend), who had been living
in the RV during this period of time, was outside in his truck
waiting for Troy to leave when he heard the gunshot. He
approached the RV and could see Hogue and Troy yelling at each
other. The two men exited the RV, still arguing, with Hogue
holding the gun. Friend told Troy to leave, but Troy refused to
leave without his gun. Troy also said he had two more guns in his
truck and tried to get in his truck, but Hogue “shut the truck
door.” After “a couple of minutes arguing,” the two men
“appeared to calm down” and “went back inside the RV.” Friend
returned to his truck because he “did not want to be a part of it.”

¶4 Back inside, Hogue, who still had Troy’s gun, removed the
gun magazine, which held three bullets, and removed an
additional bullet from the chamber. He immediately thought that
Troy “brought just exactly four bullets” because he intended to
use them on Hogue, his girlfriend, his dog, and Friend. Hogue
concluded that Troy “came to shoot.”

¶5 While repeatedly apologizing, Troy asked Hogue to give
him his gun back so he could leave. Hogue refused to return the
gun, and he also took away Troy’s truck keys. Hogue was afraid
that Troy “was going to go down the street, come back and start
shooting up the place.” Hogue told Troy he would get him an
Uber ride home and that he could come back the next day for his
truck and gun.

¶6 During this period of time, Troy was sometimes “calm”
and sometimes “really agitated and angry,” even becoming
“really belligerent at one point.” Sometime during this time
frame, Hogue decided to “reload[] the gun.” Troy angrily told

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Hogue, “Hey, just give me the gun and I’m going to leave.” In
response, Hogue “pointed [the gun] right at [Troy] and told him
to sit down again at gunpoint with the bullet [in] the chamber.”

¶7 Troy ultimately agreed to take an Uber ride home and
moved toward the door to go outside and wait for the ride; Hogue
moved to follow him out. Troy then reportedly “spun around and
attacked” Hogue. In the attack, Hogue “pulled the trigger and
shot [Troy] in the chest.” This initial shot resulted in a “very
devastating injury,” tearing through “all of the great vessels of the
heart”—an injury that would have left Troy “unresponsive within
30 seconds” and dead within minutes. However, Hogue claims
that after Troy was shot, Troy came at him a second time, at which
point the gun went off again and Troy fell to the floor. This time
the bullet hit Troy in the cheek and exited the back of the neck—a
“soft tissue injury” that did not impact bone or “any major
vessels.” Both bullet wounds were later described by the medical
examiner as lacking the features typically present with a close-
range or intermediate-range shooting, which “suggest[ed]” that
“the gun was at least . . . two [feet] from where the entrance
wound was”; however, the medical examiner was not able to
definitively “rul[e] out” closer-range shots.

¶8 Friend heard the gunshots and came running. He found
Hogue standing near Troy, who was on the floor of the RV and
“breathing the death rattle.” Hogue told Friend, “He made a run
at me and I had to do it.” But Friend later expressed confusion as
to why Hogue would have felt a need to shoot Troy: “I don’t get
it. [Hogue] could have slapped [Troy] down so easy”—an
apparent reference to the size disparity between the men, Hogue
being 5’11” and Troy being 5’3”.

¶9 Hogue left the RV and went into his house to call 911. He
told his girlfriend, who had been in the house sleeping, “Call 911.
We need an ambulance now.” And when his girlfriend asked
what was wrong, Hogue responded, “I shot Troy. He’s hit.”

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Hogue’s girlfriend called 911 and gave some initial information to
the operator, and Hogue then took the phone and proceeded to
give the operator additional information. Hogue told the operator
that Troy had “tried to strike” him and explained, “I had to shoot
him. . . . He was attacking me.”

¶10 Hogue made similar statements to the police when officers
arrived on the scene. To the first officer he encountered, Hogue
stated, “He attacked me so I shot him.” Then to another officer
who asked what happened, Hogue simply said, “He attacked
me.” He elaborated, “I shot him in the chest and he was attacking
me.” The officer asked, “You killed him?” And Hogue replied,
“Yes, I did.”

¶11 When the paramedics on scene talked to Hogue and
inquired as to whether he was hurt and whether he needed
medical attention, he responded in the negative. Consistent with
this self-assessment, pictures taken by police that night show no
recent injuries on Hogue’s head, arms, or hands. And the only
blood discovered on Hogue or his clothing was a few drops on
the top of one shoe.

¶12 Upon eventually arriving at the police station later that
night, Hogue stated, “[J]ust letting you know I didn’t do anything
wrong, I’m defending myself and my girl and my house and
everything.” But shortly thereafter, he started to suggest that the
gun had accidentally discharged as Troy had been attacking him:

[H]e freaking hit me . . . swinging at me. The gun
went off . . . . Because I was trying to stand up after
he hit me the first time . . . . I was looking at him, he
was standing back and he comes at me again, went
off again.

I don’t know if I hit him. I think I hit him in
the chest the first time. I wasn’t aiming at him, just
trying to stand up.

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State v. Hogue

Don’t know where the second round went
because he hit me, just fucking defend[ing] myself.
I didn’t do anything wrong. . . .

Hope he’s okay. I know I hit him because he
was right on top of me. He stepped back a couple of
steps and he came at me again.

¶13 When Hogue was interviewed by a detective later that
night, he repeated much the same story. He explained that as Troy
“came at” him, he “pulled the trigger”—“[n]ot consciously
thinking of shooting [Troy] or anything.” Hogue reported that he
“stood up like [he] was going to . . . defend [him]self,” that Troy
“backed up for a minute” and then “came at [him] again,” and
that the gun “went off” once more.

¶14 The State charged Hogue with murder and with felony
discharge of a firearm. At trial, the State supported its case with
testimony from Friend, several involved law enforcement
professionals, and the medical examiner. The State also presented
numerous exhibits, including body camera recordings from
officers that responded on the night of the shooting, the video
recording of Hogue’s interview at the police station, the audio
recording of the 911 call, and audio recordings of several phone
calls Hogue had made from jail. The defense, for its part, argued
that Hogue had acted in self-defense and was therefore legally
justified in shooting Troy.

¶15 After the presentation of evidence, Hogue moved for a
directed verdict, arguing that “the State could not overcome the
burden to prove beyond a reasonable doubt that [Hogue] did not
act reasonably in self-defense.” The trial court denied the motion.
The jury was thereafter given instructions setting forth the
elements for the charged crimes of murder and felony discharge
of a firearm, additional instructions addressing the lesser
included offenses of manslaughter and negligent homicide, as

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State v. Hogue

well as instructions addressing the affirmative defenses of perfect
self-defense and imperfect self-defense.

¶16 The jury found Hogue guilty of both murder and felony
discharge of a firearm. However, because the jury also
determined that the State had not disproven the applicability of
imperfect self-defense, the jury’s murder verdict resulted in the
trial court entering a conviction for the reduced charge of
manslaughter. Hogue was thereafter sentenced to concurrently
running prison terms.

ISSUES AND STANDARDS OF REVIEW

¶17 First, Hogue argues that the State presented insufficient
evidence at trial to support his convictions. “In assessing a claim
of insufficiency of the evidence, we review the evidence and all
inferences which may reasonably be drawn from it in the light
most favorable to the verdict of the jury.” State v. Gilliard, 2020 UT
App 7, ¶ 15, 457 P.3d 1128 (quotation simplified), cert. denied, 466
P.3d 1076 (Utah 2020). “And we will not reverse a jury verdict if
we conclude that some evidence exists from which a reasonable
jury could find that the elements of the crime had been proven
beyond a reasonable doubt.” Id. (quotation simplified).

¶18 Next, Hogue raises claims of prosecutorial misconduct. But
prosecutorial misconduct is not “a standalone basis for
independent judicial review.” State v. Hummel, 2017 UT 19, ¶ 111,
393 P.3d 314. Rather, “when an appellant alleges prosecutorial
misconduct, we review the trial court’s ruling regarding the
challenged conduct,” State v. Henfling, 2020 UT App 129, ¶ 71, 474
P.3d 994, cert. denied, 481 P.3d 1040 (Utah 2021), and apply “our
usual standards of review in [that] area,” Hummel, 2017 UT 19,
¶ 112. “We review unpreserved prosecutorial misconduct issues
under established exceptions to the law of preservation, if
asserted by an appellant.” Henfling, 2020 UT App 129, ¶ 71
(quotation simplified).

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State v. Hogue

¶19 Finally, Hogue asserts that his trial counsel rendered
constitutionally ineffective assistance in failing to present a
different defense theory to the jury. “An ineffective assistance of
counsel claim raised for the first time on appeal presents a
question of law, which we review for correctness.” State v. Wyman,
2013 UT App 93, ¶ 5, 300 P.3d 1285 (quotation simplified).

ANALYSIS

I. Sufficiency of the Evidence

¶20 Hogue argues that the evidence presented by the State at
trial was insufficient to support his convictions. Specifically, he
challenges the sufficiency of the evidence presented regarding the
necessary mental states for the charged crimes. But we agree with
the State that there was ample evidence supporting the mens rea
elements here. 1

1. The State also argues that this issue is conceptually different
from the insufficient evidence argument raised below in Hogue’s
motion for a directed verdict and that, therefore, this argument
was not preserved for appeal. See State v. Centeno, 2023 UT 22,
¶ 55, 537 P.3d 232 (“Where a party makes an objection at trial
based on one ground, that objection does not preserve for appeal
any alternative grounds for objection.” (quotation simplified));
State v. Bosquez, 2012 UT App 89, ¶ 8, 275 P.3d 1032 (“[W]here a
motion for a directed verdict makes general assertions but fails to
assert the specific argument raised on appeal, the directed verdict
motion itself is insufficient to preserve the more specific argument
for appeal.”). But because this issue is easily resolved in favor of
the State, we elect to address it on the merits without addressing
the preservation issue. See State v. Kitches, 2021 UT App 24, ¶ 28,
484 P.3d 415 (“[I]f the merits of a claim can easily be resolved in
favor of the party asserting that the claim was not preserved, we
(continued…)

20220544-CA 7 2025 UT App 88
State v. Hogue

¶21 As an initial matter, we address an incorrect assertion that
Hogue builds upon in his appeal, that is, that he “was convicted
of manslaughter under Utah Code [section] 76-5-205, for
recklessly causing the death of Troy.” This is a mistaken
perception of the jury’s determinations and the underlying
statutory scheme upon which they were based.

¶22 The State charged Hogue with murder under Utah Code
section 76-5-203. In addition to being instructed as to the elements
of this murder charge, the jury was also instructed on the lesser
included offenses of manslaughter, see Utah Code § 76-5-205, and
negligent homicide, see id. § 76-5-206. 2 However, Hogue had also
asserted the affirmative defenses of perfect self-defense and
imperfect self-defense, and the jury was instructed that it was the
State’s burden to prove beyond a reasonable doubt that Hogue
did not act in either perfect self-defense or imperfect self-defense.
“Perfect self-defense is a complete defense to any crime,” while
“imperfect self-defense is a partial defense, which reduces a
charge of murder to manslaughter.” State v. Grant, 2021 UT App
104, ¶¶ 31–32, 499 P.3d 176 (quotation simplified), cert. denied, 505
P.3d 56 (Utah 2022); see also Utah Code § 76-2-402 (perfect self-
defense); id. § 76-5-203(4) (imperfect self-defense).

¶23 The jury ultimately determined that the State had proven
beyond a reasonable doubt the elements of the murder charge
(and, necessarily, that the State had carried its burden to disprove
perfect self-defense). But the jury also determined that the State

readily may opt to do so without addressing preservation.”
(emphasis omitted)).

2. Several of the Utah Code sections to which we cite have been
amended in the years since the actions underlying Hogue’s
conviction. But because no such changes are relevant to the issues
raised on appeal, we cite the current version of the statutes as a
convenience to the reader.

20220544-CA 8 2025 UT App 88
State v. Hogue

had not met its burden to disprove that Hogue had acted in
imperfect self-defense. Thus, notwithstanding that the jury found
the elements of the murder charge satisfied, the jury’s
determination as to imperfect self-defense required the trial court
to enter a conviction for the reduced charge of manslaughter.
Therefore, it is simply incorrect, as Hogue asserts, that the jury
found him guilty of manslaughter or determined that the
elements of manslaughter (as opposed to murder) were met.
Thus, any argument based on this mistaken framing fails, and we
do not address it further.

¶24 We next consider whether the State submitted sufficient
evidence to adequately support the mens rea elements that the
jury actually found. We must affirm on this issue if “some
evidence exists from which a reasonable jury could find that the
elements of the crime[s] had been proven beyond a reasonable
doubt.” State v. Gilliard, 2020 UT App 7, ¶ 15, 457 P.3d 1128
(quotation simplified), cert. denied, 466 P.3d 1076 (Utah 2020). As
it relates to the mens rea required to convict on the murder charge,
there must have been evidence presented from which a
reasonable jury could have found any one of the following:
(1) that Hogue “intentionally or knowingly cause[d] the death of
[Troy]”; (2) that Hogue “intend[ed] to cause serious bodily injury
to [Troy]” and “commit[ted] an act clearly dangerous to human
life that cause[d] the death of [Troy]”; (3) that Hogue, “acting
under circumstances evidencing a depraved indifference to
human life, . . . knowingly engage[d] in conduct that create[d] a
grave risk of death to [Troy] and thereby cause[d] the death of
[Troy]”; or (4) that Troy was killed “in the course of” Hogue
committing the predicate offense of felony discharge of a firearm.
See Utah Code § 76-5-203(2)(a)–(d). As to the felony discharge of a
firearm mens rea, the State was required to show that Hogue
intentionally, knowingly, or recklessly (1) “discharge[d] a firearm
in the direction of [Troy], knowing or having reason to believe
that [Troy] may be endangered by the discharge of the firearm”
or (2) “discharge[d] a firearm in the direction of” Troy “with

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intent to intimidate or harass” Troy. See id. § 76-11-210(2)(a)–(b);
see also id. § 76-2-102 (“Every offense not involving strict liability
shall require a culpable mental state, and when the definition of
the offense does not specify a culpable mental state and the
offense does not involve strict liability, intent, knowledge, or
recklessness shall suffice to establish criminal responsibility.”).
And because Hogue was arguing perfect self-defense, a
conviction on either of the charges required the State to also prove
that Hogue did not reasonably believe that lethal force was
“necessary to prevent death or serious bodily injury to [himself]
or another individual as a result of imminent use of unlawful
force, or to prevent the commission of a forcible felony.” Id. § 76-
2-402(2)(b). We determine that the mens rea evidence presented
by the State was sufficient to support the jury’s determination.

¶25 Directly after the shooting, Hogue made statements to both
Friend and the 911 operator reflecting a belief that he “had to”
shoot Troy because Troy had been attacking him. Similarly,
Hogue’s initial statement to responding officers expressed the
same reasoning: “He attacked me so I shot him.” Thus, there was
evidence presented that could support a reasonable jury’s
conclusion that Hogue intentionally shot Troy—and, indeed, such
a conclusion was essentially conceded by the defense in pursuing
a self-defense theory at trial. And from this reasonable conclusion
that Hogue intentionally shot Troy, a reasonable jury could
determine that Hogue either (1) “intentionally or knowingly
cause[d] the death of [Troy]” or (2) “intend[ed] to cause serious
bodily injury to [Troy]” and “commit[ted] an act clearly
dangerous to human life that cause[d] the death of [Troy].” 3 See

3. In passing, Hogue argues that because there was no evidence
from which the jury could determine that the “intentionally or
knowingly” murder mens rea was met, see Utah Code § 76-5-
203(2)(a), it was plain error for the court to have included this
language in the jury instructions. Considering our decision here
(continued…)

20220544-CA 10 2025 UT App 88
State v. Hogue

id. § 76-5-203(2)(a)–(b). Likewise, this evidence could also support
a reasonable jury’s determination that Troy was killed “in the
course of” Hogue committing the predicate offense of felony
discharge of a firearm, see id. § 76-5-203(2)(d), that is, that Troy
was killed while Hogue knowingly or intentionally “discharge[d]
a firearm in the direction of [Troy], knowing or having reason to
believe that [Troy] may be endangered by the discharge of the
firearm,” see id. § 76-11-210(2)(a).

¶26 As to the self-defense argument, the jury heard various
pieces of evidence that, together, could have reasonably
disproved that Hogue acted in perfect self-defense. To start, Troy
was unarmed during his alleged struggle with Hogue. And the
jury was presented with Friend’s assessment that Troy was not
much of a threat to Hogue: “I don’t get it. [Hogue] could have
slapped [Troy] down so easy.” All this seems in line with the fact
that this alleged struggle left Hogue entirely uninjured. Further,
the jury was presented with expert testimony that because the
bullet wounds in Troy’s body lacked the features typically present
with a close-range or intermediate-range shooting, this
“suggest[ed]” that Hogue fired the gun from at least two feet
away, not that Troy was “on top of” him when Hogue fired, as
Hogue had claimed. Additionally, the medical examiner testified
that the first shot would have left Troy “unresponsive within 30
seconds” and dead within minutes, which undercuts Hogue’s
explanation of Troy “stepp[ing] back a couple of steps” and
charging him a second time. Presented with this evidence, the jury
could have reasonably concluded that Hogue’s perfect self-
defense argument was disproven because Hogue could not have
reasonably believed that lethal force was “necessary to prevent

that there was evidence from which a jury could reasonably
conclude that Hogue did intentionally or knowingly cause Troy’s
death, this related argument also necessarily fails.

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State v. Hogue

death or serious bodily injury” under the circumstances here. Id.
§ 76-2-402(2)(b).

¶27 Hogue pushes back by asserting that “the evidence
presented by the State was circumstantial at best.” But “it is well
established that intent can be proven by circumstantial evidence.”
State v. Holgate, 2000 UT 74, ¶ 21, 10 P.3d 346 (quotation
simplified). Our review on appeal simply considers “(1) whether
the State presented any evidence that [the defendant] possessed
the requisite intent, and (2) whether the inferences that can be
drawn from that evidence have a basis in logic and reasonable
human experience sufficient to prove that [the defendant]
possessed the requisite intent.” Id. (quotation simplified). Both
these requirements are met here.

¶28 And while Hogue argues that the State should have taken
additional investigative steps, that the State should have
produced additional evidence in making its case, and that the
evidence that was submitted was consistent with alternative
inferences more consistent with his defense, none of these
assertions is relevant to the question before us. “The question
presented is not whether we can conceive of alternative (innocent)
inferences to draw from individual pieces of evidence, or even
whether we would have reached the verdict embraced by the jury.
It is simply whether the jury’s verdict is reasonable in light of all
of the evidence taken cumulatively, under a standard of review
that yields deference to all reasonable inferences supporting the
jury’s verdict.” State v. Ashcraft, 2015 UT 5, ¶ 24, 349 P.3d 664. And
in considering the evidence presented in this case, we determine
that this hurdle has been easily cleared, and we therefore affirm
the jury’s verdict.

II. Prosecutorial Misconduct

¶29 Hogue generally argues that “the prosecutor relied on
mischaracterizing incomplete and unreliable evidence to attain a

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conviction.” 4 See State v. Allgood, 2017 UT App 92, ¶ 24, 400 P.3d
1088 (“Prosecutorial misconduct occurs where the actions or
remarks of the prosecutor call to the attention of the jury a matter
it would not be justified in considering . . . .” (quotation
simplified)), cert. denied, 406 P.3d 252 (Utah 2017). Within his
argument on this point, Hogue points to only one specific action
of the prosecutor: playing an abbreviated version of a jail phone
call to the jury. However, Hogue did not preserve this issue for
appeal by raising an objection below to the State’s presentation of
the partial recording.5 See State v. Hummel, 2017 UT 19, ¶ 111, 393

4. The State argues that Hogue has presented several “nearly
incomprehensible” arguments on appeal. While we have also had
some trouble in deciphering certain arguments, we have made
every effort to engage with each of the arguments presented in
Hogue’s briefing. To the extent that we have been unsuccessful in
any aspect, we consider any such undeveloped arguments
inadequately briefed for appeal. See Fuller v. Springville City, 2015
UT App 177, ¶ 19, 355 P.3d 1063 (“A brief must go beyond
providing conclusory statements and fully identify, analyze, and
cite its legal arguments. . . . If an appellant does not clearly identify
and analyze the issues, we will not address them.” (quotation
simplified)).

5. We note that had Hogue believed that the abbreviated
presentation of the phone call was unfair, he may well have been
successful in requesting that a more complete recording be
presented to the jury. See Utah R. Evid. 106 (“If a party introduces
all or part of a statement, an adverse party may require the
introduction, at that time, of any other part—or any other
statement—that in fairness ought to be considered at the same
time.”). But without such a request, it was not the responsibility
of the trial court to sua sponte require a lengthier version of the
phone call recording to be played to the jury. See State v. Hummel,
2017 UT 19, ¶ 109, 393 P.3d 314 (“Our adversary system . . . relies
(continued…)

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P.3d 314 (concluding, while addressing a prosecutorial
misconduct argument, “that the law of preservation controls here
as in other circumstances”). Nor does he argue that any exception
to preservation applies here. See generally id. (“[A]bsent an
objection at trial, we review the [trial] court’s actions under
established exceptions to the law of preservation . . . .”). Thus, we
do not reach this particular claim. 6

III. Ineffective Assistance of Counsel

¶30 Hogue next raises an argument of ineffective assistance of
counsel. Specifically, he asserts that because “the most likely and
believable explanation” of what happened the night of the
shooting is that “amongst the chaos the trigger was pulled

generally on objections from parties to police the admissibility of
evidence. We do not require or even expect our trial judges to
exercise their own independent judgment on the question of
admissibility.”).

6. In another section of his brief, Hogue labels a statement by the
prosecutor during closing argument as prosecutorial misconduct.
This issue would be preserved for appeal since Hogue lodged an
objection to this statement before the trial court, arguing that the
prosecutor’s comments “misstat[ed] the record.” However, in
response to trial counsel’s objection, the prosecutor immediately
acknowledged that the objection was “[f]air,” and the trial court
seemingly agreed and promptly instructed the jury, “[I]n the
event where either counsel’s remarks in their closing arguments
vary from what you believe the evidence is, you are to consider
only the evidence as you recall it and not their comments.” And
on appeal, Hogue makes no attempt to develop this particular
argument and explain why, as he summarily asserts, the court’s
response “did not appropriately address the objection.”
Therefore, we do not consider this argument further.

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accidentally,” his trial counsel performed deficiently by deciding
“to rely entirely on an intentional action of self-defense.” 7

¶31 To prevail on an ineffective assistance of counsel claim, a
defendant must make two showings. See Strickland v. Washington,
466 U.S. 668, 687 (1984). “First, the defendant must show that
counsel’s performance was deficient.” Id. That is, the defendant
must show “that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. “Second, the defendant must show that
the deficient performance prejudiced the defense.” Id. That is, the
defendant must show “that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Id.

¶32 Considering the first showing of deficient performance
that Hogue must make, we recognize that “[t]here are countless
ways to provide effective assistance in any given case.” Id. at 689.
Thus, in reviewing trial counsel’s performance, we must
“evaluate the conduct from counsel’s perspective at the time” and
“indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. “The
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” Id. (quotation simplified). Hogue has not done so
here.

¶33 Trial counsel was confronted with forming a trial strategy
in the face of the numerous inconsistent statements made by

7. Hogue’s ineffective assistance of counsel argument additionally
alleges that his trial counsel was ineffective by failing “to object to
highly prejudicial remarks where the prosecution
mischaracterized the evidence.” However, Hogue points us to no
specific mischaracterizations, and thus, we are unable to engage
with this argument on appeal.

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Hogue—specifically, several initial statements that Troy had been
attacking him and he therefore “had to” shoot him, and several
later statements that it was all an accident and he had not meant
to shoot Troy. Thus, trial counsel had the option of pursuing two
entirely inconsistent theories—that Hogue had intentionally shot
Troy in self-defense or that Hogue had accidentally shot Troy
amidst a scuffle. Certainly, trial counsel did not perform
deficiently by choosing to not pursue both of these defenses, for,
as this court has previously explained, “any election between
inconsistent defenses is a legitimate exercise of trial strategy
rather than ineffective assistance of counsel.” State v. Campos, 2013
UT App 213, ¶ 34, 309 P.3d 1160 (quotation simplified), cert.
denied, 320 P.3d 676 (Utah 2014). Nor are we convinced that the
accidental-shooting theory was superior to the self-defense theory
such that trial counsel’s choosing to advance the self-defense
theory—which had the potential for a complete acquittal as well
as a reduced charge of manslaughter—could not be considered
sound trial strategy. Thus, Hogue has failed to establish that his
trial counsel performed deficiently in this regard, and his
ineffective assistance of counsel claim fails. 8

8. Hogue also makes a cumulative error argument. But since we
have, in considering Hogue’s appellate arguments, perceived no
error on the part of the trial court and no deficient performance
by trial counsel, there are no errors to accumulate and this
argument is unavailing. See State v. Wright, 2013 UT App 142, ¶ 44,
304 P.3d 887 (“Under the cumulative error doctrine, appellate
courts will reverse only if the cumulative effect of the several
errors undermines our confidence that a fair trial was had. . . . If
the claims are found on appeal to not constitute error, or the errors
are found to be so minor as to result in no harm, the doctrine will
not be applied.” (quotation simplified)), cert. denied, 312 P.3d 619
(Utah 2013).

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State v. Hogue

CONCLUSION

¶34 There was sufficient mens rea evidence presented at trial
to support Hogue’s ultimate convictions. Hogue’s claims of
prosecutorial misconduct were not preserved. And Hogue’s claim
of ineffective assistance of counsel fails because, on this record,
trial counsel did not perform deficiently by pursuing a self-
defense strategy to the exclusion of an inconsistent alternative
theory. Affirmed.

20220544-CA 17 2025 UT App 88