State v. Hovinghoff

2025 UT App 108

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
COLTON JASE HOVINGHOFF,
Appellant.

Opinion
No. 20240147-CA
Filed July 10, 2025

Third District Court, Salt Lake Department
The Honorable Kara Pettit
No. 221902773

Nathalie S. Skibine, Attorney for Appellant
Derek E. Brown and Jonathan S. Bauer,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Colton Jase Hovinghoff was convicted by a jury of a single
count of object rape. In this appeal, Hovinghoff maintains his
attorney (Counsel) was ineffective in two ways, which he argues
should entitle him to a new trial. First, he claims Counsel should
have objected to several questions posed during the voir dire
process. Second, he claims Counsel should have objected on
hearsay and other grounds to the admission of text messages
between the victim and her friend. We reject Hovinghoff’s claims
of ineffective assistance—on the first claim because we perceive
no deficient performance and on the second claim for lack of
prejudice—and affirm his conviction.
State v. Hovinghoff

BACKGROUND 1

The Sexual Assault

¶2 On a Friday night in July 2021, Audrey, 2 Hovinghoff, and
Hovinghoff’s spouse (Wife) drove to Salt Lake City from Orem to
“check out a bunch of bars.” Wife and Audrey attended the same
beauty school in Provo. The trio booked a single hotel room with
two beds to save money. Audrey had two or three drinks
throughout the evening—“not a lot” because she had to work the
next day. Wife drank about “five-ish shots and a couple of girlie
drinks,” after which she felt very drunk. Hovinghoff did not drink
as much as either of them.

¶3 At around one in the morning, the three made their way to
the hotel room. Wife immediately went into the bathroom and
vomited. Wife then “got in the bath,” hoping it might make her
feel better. Audrey said that she was going to go down to the
lobby to get some crackers for Wife, thinking it might help with
her nausea. On hearing this, Hovinghoff “jolted up” and seemed
“pretty eager to go with her.” Hovinghoff and Audrey left, with
Hovinghoff promising Wife that he’d be right back.

¶4 The journey took longer than expected. Audrey and
Hovinghoff ended up being gone one to two hours. They spent
some of the time looking for a nearby fast-food restaurant, but
they couldn’t find it. They then took a break and sat on a curb,
during which time Hovinghoff tried to kiss Audrey by grabbing
her head. Audrey pulled away and told Hovinghoff “that wasn’t

1. “On appeal from a jury verdict, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, presenting conflicting evidence only as necessary to
understand issues raised on appeal.” State v. Garcia-Cardiel, 2024
UT App 174, n.1, 561 P.3d 692 (cleaned up), cert. denied, 564 P.3d
959 (Utah 2025).

2. A pseudonym.

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happening.” While Audrey agreed to Hovinghoff’s request that
she not tell Wife about the attempted kiss, she planned to tell her
about it in the morning anyway. The pair then purchased some
snacks at the hotel lobby and made their way back to the room.

¶5 Wife was still in the bathtub when they returned. Audrey
and Hovinghoff went to their respective beds to sleep. While
Audrey believed Wife eventually joined Hovinghoff in bed, it
appears that Wife actually spent the entire night in the bathtub.

¶6 A few hours after going to bed, as the sun was rising,
Audrey awoke to feeling “a weird sensation around [her] groin,
around [her] vagina.” She described the event: “I look down a
little and my button is undone, my zipper is undone, and I see like
a bulge right there, and it’s [Hovinghoff’s] hand and there’s a
sheet over my head. I don’t sleep with sheets on my head. And it
was him, his hand inside my pants.” Hovinghoff had two to three
fingers in her vagina, “trying to go in and out.” Audrey pushed
Hovinghoff’s hand away, and she heard him “shuffling back into
his bed.”

¶7 Audrey stayed in bed for about an hour, then she got up
and told Hovinghoff and Wife she needed to get to work. She
didn’t know how to confront Hovinghoff or tell Wife about the
assault because she was “still trying to comprehend what just
happened.” Instead, she “just wanted to get home and be safe and
cry.” Audrey recalled that Hovinghoff “kept being really
exaggerative” about how he remembered nothing of the night
before, which didn’t make sense to Audrey as she knew he had
not had much to drink. The three drove back to Orem. After
dropping Audrey off at her home, Wife and Hovinghoff went to
their home.

¶8 Once Hovinghoff and Wife left, Audrey talked on the
phone with a classmate (Classmate) from beauty school. Audrey
told Classmate “everything that happened,” “screaming and
crying” as she did so. After that, Audrey took a nap, during which

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she “chewed” on her tongue to such an extent that it was injured,
making it difficult for her to talk.

¶9 That same day, Wife texted Audrey because she suspected
something had happened between Audrey and Hovinghoff when
the two were gone so long from the hotel room. Her suspicion had
initially been heightened because Hovinghoff had “seemed so
eager to go with” Audrey. Wife specifically asked if Hovinghoff
had tried “to make a move” on Audrey. Audrey responded that
Hovinghoff had tried to kiss her but she “pushed him off.” Then
Audrey added, “As well as in the hotel.” Wife asked Audrey,
“What? Can you please tell me about it, like everything? Don’t be
scared to say anything. I need to know.” Audrey responded,
“Honestly, I woke up with my pants undone and I didn’t do that
shit myself.” She later added, “He had his hand down my pants
and I pushed him off of me. I was scared to say something, but I
was going to tell you when I felt better on Monday.”

¶10 On Monday, Audrey went to beauty school, where she told
her instructor “everything” that happened. The instructor
responded by making sure Audrey and Wife were separated and
not allowing Hovinghoff into the school. Audrey also informed
the school’s director of operations.

¶11 About twelve days after the incident, Audrey reported the
assault to the police. She did not talk to the police sooner because
she was “traumatized” by the event, was suffering from “literal,
actual pain” in her tongue from having chewed it, and “just
needed some time.” Because too much time had passed since the
assault, the police did not have Audrey undergo a forensic exam.

The Legal Proceedings

¶12 The State charged Hovinghoff with one count of object
rape. One day after charges were filed in March 2022, Audrey
claimed that she received a phone call from Hovinghoff. After
Hovinghoff told Audrey that he was “really sorry about
everything,” she immediately hung up. Audrey then texted a

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friend (Friend) about the call. 3 In this text exchange, Audrey
indicated that her “rapist” had just called her. While Friend
responded with sympathy, he also expressed anger at
Hovinghoff’s audacity for having contacted her.

¶13 In preparation for the trial, the State submitted proposed
voir dire questions for potential jury members, one of which was
about whether they would be less likely to believe an individual
who delayed disclosing and reporting an incident of sexual abuse.
While these questions were formally submitted by the State,
Counsel indicated that he and the prosecutor had worked
together on the questions based on their interactions in a previous
unrelated case. The district court revised the question about
delayed reporting of sexual assault in an attempt to bring it into
conformity with Utah caselaw. Counsel and the prosecutor
agreed to this change. 4

¶14 At trial, the State presented testimony from Audrey, Wife,
Classmate, and several police officers, which related the
information as summarized above. During Audrey’s testimony,
the exhibits of the text exchange from March 2022 were offered.
Counsel said that he had “[n]o objection” to those exhibits.
Hovinghoff did not testify.

¶15 The jury convicted Hovinghoff as charged.

ISSUES AND STANDARD OF REVIEW

¶16 Hovinghoff appeals. He first argues that Counsel was
ineffective for not objecting to questions posed to potential jurors

3. The full content of this text exchange and its admission as
evidence will be discussed below in the Analysis section. See infra
Part I.

4. The nature of this question and the revision will be addressed
in greater detail in the Analysis section. See infra Part II.

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State v. Hovinghoff

during voir dire. Hovinghoff also asserts that Counsel was
ineffective for not raising hearsay and unfair prejudice objections
to text messages between Audrey and Friend. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Ringstad, 2018 UT App 66,
¶ 32, 424 P.3d 1052 (cleaned up). 5

ANALYSIS

¶17 To prove ineffective assistance of counsel, a defendant
must establish both prongs of the well-known test articulated in
Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant
must show that counsel’s performance was deficient by
demonstrating “that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. This means that
a “defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” Id. at 689 (cleaned up). Second, a defendant must
show that counsel’s “deficient performance prejudiced the
defense.” Id. at 687. This means the defendant must show that
there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” State v. Torres-Orellana, 2021 UT App 74, ¶ 29, 493
P.3d 711 (cleaned up), aff’d, 2024 UT 46, 562 P.3d 706. In this
context, “a reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. (cleaned up). “We are
free to reject a defendant’s claim under either prong of the
Strickland test because failure to establish either prong is fatal to

5. Hovinghoff also argues that the cumulative effect arising from
the two alleged instances of the claimed deficient performance
was prejudicial. Because we determine that Counsel did not
perform deficiently on the first claim, Hovinghoff’s cumulative-
error claim fails. See State v. Macleod, 2024 UT App 32, ¶ 74, 546
P.3d 366 (stating that when “there are no errors to accumulate,” a
claim of cumulative error “necessarily fails”), cert. denied, 558 P.3d
87 (Utah 2024).

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State v. Hovinghoff

an ineffective assistance of counsel claim.” State v. Centeno, 2023
UT 22, ¶ 64, 537 P.3d 232 (cleaned up).

I. The Voir Dire Questioning

¶18 Hovinghoff first argues that Counsel performed deficiently
in not objecting to questions asking jurors during voir dire “to
commit to a position on the reliability of a late report before
hearing the evidence in the case.” Specifically, Hovinghoff points
to the following questions asked by the district court as
problematic:

• “The law does not require a crime that is sexual in nature
to be reported within any specific period of time. Is there
anyone who would refuse to follow that principle of law?
If so, please raise your hand.”
• “Does the potential fact of the delay cause you any concern
at this point? If so, please raise your hand.”
• “Would any of you be less likely to believe a witness who
did not immediately disclose that sexual abuse had
occurred? If so, please raise your hand.”
No hands were raised in response to any of these questions.

¶19 Hovinghoff argues that these questions “suggested a
response and required jurors to identify themselves in public if
they did not agree with the suggested response.” Hovinghoff
points specifically to the first question as implying that a potential
juror might not follow the law and that “late reports” of sexual
assault are “expected and appropriate.” He argues that the two
follow-up questions served to reinforce the notion that “feeling
less convinced by a delayed report was refusing to follow the law
in the same way that requiring a crime to be reported within some
timeframe would be.” Hovinghoff further asserts that the group
setting encouraged potential jurors to refrain from making
socially unacceptable responses to avoid being identified before
the judge, the attorneys, and the other potential jurors as
disagreeing with the law.

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State v. Hovinghoff

¶20 Hovinghoff claims that the questions ultimately
“indoctrinated the jury against” the defense’s argument that,
while Audrey was able to report the incident immediately to her
acquaintances and instructor, she did not make a report to law
enforcement for twelve days, ostensibly because “her mouth hurt
too much” from having chewed her tongue so that it was difficult
for her to talk. That delayed reporting, Counsel had argued,
prevented a timely sexual assault medical examination and the
collection of DNA evidence. “Jurors who had agreed that they
would not require a report of sexual abuse within a certain period
of time or find a late report less believable would feel they had
committed to resist these arguments.” All this, Hovinghoff
argues, served to taint the jury with a bias favorable to the State’s
case by improperly attempting to bolster Audrey’s testimony and
inviting the jury to prejudge the case.

¶21 We agree that this type of questioning should be avoided
in general. We made this point abundantly clear in State v.
Williams, 2018 UT App 96, 427 P.3d 434. In that case, we observed
that the prosecutor asked voir dire questions by posing
“hypothetical questions closely approximating the facts of the
case and delivered a lecture.” Id. ¶ 26 (cleaned up). We noted that
“the prosecutor devoted much of her juror examination to making
statements and posing rhetorical questions,” often “without
awaiting a response,” “rather than inquiring into the prospective
jurors’ thoughts and attitudes.” Id. ¶¶ 27–28. We concluded that,
in violation of the purpose of juror examination, “the prosecutor
was essentially arguing the State’s case and inappropriately
bolstering the anticipated testimony of the alleged victims.” Id.
¶ 29.

¶22 The questioning analyzed in Williams was beyond the pale,
extensively exceeding the questioning that happened here, both
in scope and length. In fact, we spent nine paragraphs describing
the voir dire questioning conducted by the prosecutor “in its odd
entirety” in Williams to convey the egregiously inappropriate—
bordering on the bizarre—methods the prosecutor employed. Id.
¶¶ 14–23. In contrast, the challenged questioning that happened

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here was confined to three discrete questions that were developed
with a clearly discernible strategic purpose in mind. 6 We reach
this conclusion based on two circumstances.

6. To be clear, although we ultimately affirm, all three of these
questions are troubling and likely at odds with the direction given
in State v. Williams, 2018 UT App 96, 427 P.3d 434. While questions
aimed at ensuring that potential jurors are committed to following
the law are appropriate, these three questions are not limited to
that principle. The questions seek to ascertain how a juror would
digest issues of timing in the disclosure of a sexual assault. We are
fully cognizant that delayed reporting of sexual assault is
common and is likely not indicative of an issue of credibility. See,
e.g., State v. Jok, 2019 UT App 138, ¶ 24, 449 P.3d 610 (“[T]he reality
[is] that rape victims display a diverse range of reactions to the
harm they suffered.”), aff’d, 2021 UT 35, 493 P.3d 665; Kebede v.
Ashcroft, 366 F.3d 808, 811 (9th Cir. 2004) (rejecting “the
assumption that the timing of a victim’s disclosure of sexual
assault is a bellwether of truth” (cleaned up)); People v. Brown, 883
P.2d 949, 956 (Cal. 1994) (en banc) (“The overwhelming body of
current empirical studies, data, and other information establishes
that it is not inherently ‘natural’ for the victim to confide in
someone or to disclose, immediately following commission of the
offense, that he or she was sexually assaulted.”); State v. Sullivan,
712 A.2d 919, 922 n.5 (Conn. 1998) (“[T]he assumption that it is
‘natural’ for victims to report that they have been sexually
assaulted has been largely discredited by modern research
indicating that victims may not tell others about a sexual assault
owing to feelings of shame or fear of public embarrassment.”);
People v. Bowen, 609 N.E.2d 346, 357 (Ill. App. Ct. 1993) (“A delay
in reporting incidents of sexual assault may be reasonable where
the victim’s silence is attributed to fear, shame, guilt and
embarrassment.”); Commonwealth v. King, 834 N.E.2d 1175, 1194
(Mass. 2005) (“[R]esearch suggests that, in part because the harm
suffered by sexual assault victims often consists of the
psychological harm caused by the defendants’ violation of a
(continued…)

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¶23 First, the record is clear that Counsel had given some
thought to these questions and apparently wanted them asked.
Counsel told the district court that he and the prosecutor had
“worked . . . together” in an earlier and unrelated case to develop
the questions through “kind of a process” to “polish the voir dire
on sex related cases.” 7 The existence of a collaborative “process”
designed to “polish” the questions used in sex-offense cases
inescapably establishes that they were the result of thoughtful and
intentional deliberation. See State v. Rivera, 2022 UT App 44, ¶ 37,
509 P.3d 257 (“A defense attorney’s informed strategic choice is
virtually unchallengeable.” (cleaned up)). Indeed, even after the
district court expressed concern that the wording preceding the

victim’s body, such victims respond in a variety of ways to the
trauma of the crime, and often do not promptly report or disclose
the crime for a range of reasons, including shame, fear, or concern
they will not be believed.” (footnote omitted)). But the idea that
the law does not allow a juror to consider the timing or
circumstances of a report of sexual assault in making a credibility
determination is without legal support. These questions,
somewhat like those in Williams, seemed aimed at asking a juror
to prejudge facts, not disclose bias. As we stated in Williams, such
questions are not appropriate and should be avoided. Williams,
2018 UT App 96, ¶¶ 36–40.

7. Hovinghoff appears to argue on appeal that the collaboration
was limited to one specific voir dire question related to
circumstantial evidence. This assertion is unpersuasive because
the record indicates otherwise. The district court said, “I just saw
the State’s proposed voir dire,” which was a list of eleven
questions, two of which—including the question at issue here—
consisted of multi-part questions. And Counsel responded, “So,
Judge, we worked on those together.” (Emphasis added.) The State
then began to discuss the specific question (not at issue here) on
circumstantial evidence. But doing so in no way indicates that was
the only question on which the two worked together. Thus, it
appears that the collaboration between Counsel and the
prosecutor extended to the entire list.

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State v. Hovinghoff

questions was potentially “problematic” under the precedent set
in Williams, 8 Counsel did not express that he shared the same
concern. Instead, he seems to have continued to believe that the
questions should be asked, subject to the omission of the initial
language as suggested by the court. 9

¶24 Second, there is a readily apparent strategic reason
Counsel advocated that these three questions be asked. Our
supreme court has said this of voir dire questioning in the context
of an ineffective assistance of counsel claim:

Voir dire is intended to provide a tool for counsel to
carefully and skillfully determine, by inquiry,
whether biases and prejudices, latent as well as
acknowledged, will interfere with a fair trial if a
particular juror serves in it. While the jury selection
process is of great importance, there are many ways
to effectively question jurors, and there are a

8. To be clear, the district court did not specifically identify
Williams. But it’s evident that the court was referring to Williams
from the context of the comments.

9. The question originally read as follows:
We anticipate that the alleged victim will testify and
will tell us that she did not immediately report the
sexual abuse. The law does not require a crime that
is sexual in nature to be reported within any specific
period of time. Is there anyone who would refuse to
follow that principle of law? Does the potential fact
of the delay cause you any concern at this point?
Would any of you be less likely to believe a witness
who did not immediately disclose that sexual abuse
had occurred?
The court deleted the first sentence and asked this
compound question as three distinct questions during voir
dire. See supra ¶ 18.

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multitude of inherently subjective factors typically
constituting the sum and substance of an attorney’s
judgments about prospective jurors. Given that jury
selection is more art than science, trial counsel
should be given considerable latitude in asking voir
dire questions, especially in view of the fact that
only counsel will, at the beginning, have a clear
overview of the entire case and the type of evidence
to be adduced.

State v. Houston, 2015 UT 40, ¶ 92, 353 P.3d 55 (cleaned up). And
courts of other jurisdictions have echoed this same concept about
the subjective qualities inherent in the jury selection process. For
example, the Michigan Court of Appeals observed,

Perhaps the most important criteria in selecting a
jury include a potential juror’s facial expressions,
body language, and manner of answering
questions. However, as a reviewing court, we
cannot see the jurors or listen to their answers to
voir dire questions.

People v. Unger, 749 N.W.2d 272, 304 (Mich. Ct. App. 2008)
(cleaned up). A Connecticut court expressed a similar view:

[A] mere review of the transcript does not reflect the
tone and demeanor of the potential juror or the body
language or other nonverbal characteristics
witnessed by those in the court room. A trial
counsel’s judgment is not solely based upon the
actual words of the venire person, but includes how
the words are expressed.

Tatum v. Warden, No. CV 911263, 1999 WL 130324, at *11 (Conn.
Super. Ct. Mar. 3, 1999), aff’d sub nom., Tatum v. Commissioner, 783
A.2d 1151 (Conn. App. Ct. 2001); see also People v. Tuilaepa, 842 P.2d
1142, 1152 (Cal. 1992) (en banc) (“Nothing in the record indicates

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that counsel lacked a plausible, tactical reason for asking
[prospective jurors] few or no follow-up questions. Indeed,
counsel might have determined from the demeanor of these
prospective jurors that additional questioning would be futile.”
(citation omitted)), aff’d sub nom. Tuilaepa v. California, 512 U.S. 967
(1994); People v. Lucas, 907 P.2d 373, 418 (Cal. 1995) (“[C]ounsel’s
observation of the juror’s demeanor . . . may have persuaded them
that the defense should accept her as a juror.”).

¶25 With this jurisprudence in mind, it is clear that Counsel
potentially had much to gain from the three challenged questions
that were asked during voir dire. As the State points out, “[a]ny
verbal or non-verbal indication [that a potential juror believes
delayed reporting renders a sex-crime allegation less credible]
would be valuable information in picking a defense-favorable
jury.” Indeed, Counsel may have very much wanted to observe
how potential jurors reacted to the subject of delayed reporting.
Perhaps he wanted to look for signs in body language that would
indicate some degree of skepticism.

¶26 Moreover, Counsel knew that Audrey had reported the
assault to acquaintances shortly after it happened. And a report
to law enforcement within twelve days is objectively not that long.
Given these circumstances, the case was not really one of delayed
disclosure—which would lead Counsel to conclude that the
negative impact of the questions would be insignificant compared
to their value in allowing him to assess potential jurors’ reactions
to the questions.

¶27 In sum, given Counsel’s active participation in the
development of the challenged voir dire questions, and given the
potential benefit of the questions to reveal the attitude of the
jurors through non-verbal cues, there was obviously strategic
value in their presentation during voir dire. Therefore,
Hovinghoff’s claim of ineffective assistance in this matter fails
under the deficient performance prong.

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II. The Text Messages

¶28 Hovinghoff’s second claim of ineffective assistance centers
on a text message exchange between Audrey and Friend that was
admitted as evidence at trial. Audrey testified that in March 2022,
on the day after Hovinghoff was charged with object rape, she
received a call from Hovinghoff. Audrey didn’t speak, but the
man told her, “I’m really sorry about everything.” After
recognizing his voice and realizing it was Hovinghoff, Audrey
immediately hung up and texted Friend about the call, resulting
in the following exchange:

Audrey: My rapist just called me
I never answer my phone why did i answer the
phone
Friend: Why?
Audrey: Im shaking
He apologized i hung [up] immediately
Friend: At this point you can file an order of protection
It’ll show up on his record
Audrey: I didnt even let him get into once i realized the
name he said i went blank and just immediately
hung up once i heard im sorry
Friend: I’m angry for you
I’m sorry pal
Audrey: How can he just think its okay to call me on a
random Wednesday 9 months later
Friend: Someone who doesn’t know boundaries

¶29 On appeal, Hovinghoff asserts that Counsel rendered
ineffective assistance for not objecting to the admission of this text
exchange on the grounds that (1) Friend’s statements were
hearsay and (2) Audrey’s use of “[m]y rapist” and Friend’s
expression of outrage and sympathy and saying the caller was

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“[s]omeone who doesn’t know boundaries” was inadmissible
under rule 403 of the Utah Rules of Evidence.

¶30 In an ineffective assistance claim, “we do not need to
review the deficient performance element before examining the
prejudice element, and if it is easier to dispose of [the] claim on
the ground of lack of sufficient prejudice, that course should be
followed.” State v. Tapusoa, 2020 UT App 92, ¶ 17, 467 P.3d 912
(cleaned up). Assuming, without deciding, that Counsel
performed deficiently in not objecting to or seeking to exclude the
text messages, we limit our analysis to the prejudice prong.

¶31 Even if Counsel had been successful in excluding the text
messages through objection, there is not a reasonable likelihood
that the jury would have acquitted Hovinghoff because the
evidence against him was already strong and the challenged text
messages did little to change the evidentiary picture. Audrey had
already testified that Hovinghoff had digitally penetrated her
vagina. She further described the disclosures of the assault she
made to Classmate, Wife, and her instructor in the following days.
Wife’s testimony largely confirmed that Hovinghoff was present
at the hotel during the sexual assault. Wife also testified that
Hovinghoff was acting suspiciously about wanting to be alone
with Audrey and about how he couldn’t remember anything after
they had gone bar hopping. Moreover, Classmate confirmed that
Audrey was emotionally distraught during their phone
conversation when she encouraged Audrey to report the incident.
All this uncontradicted testimony pointed to one conclusion.

¶32 With the background of this larger evidentiary landscape,
the content of the text messages would not have come as any
surprise to the jury. Even Audrey’s reference to Hovinghoff as
“[m]y rapist” would not have surprised the jury. After all, the jury
heard Audrey’s testimony, in which she described in detail
Hovinghoff’s actions in the hotel room. Given this, it was not
shocking—and certainly not prejudicial—for the jury to hear that
Audrey regarded Hovinghoff as a rapist. Even less prone to being
prejudicial is an expression of sympathy and anger upon hearing

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that a friend was undergoing emotional trauma after being
sexually assaulted. The most prejudicial component of the text-
message evidence concerns the prelude to it, namely, Audrey
saying that she received a phone call from Hovinghoff in which
he allegedly told her that he was “really sorry about everything.”
This statement comes very close to sounding like Hovinghoff was
apologizing for the sexual assault on the day after he had been
charged with object rape. But Hovinghoff makes no challenge to
Audrey’s testimony about receiving the phone call or her account
of what Hovinghoff allegedly said.

¶33 Having considered Audrey’s testimony and the extent to
which it was corroborated, we conclude that even if Counsel had
successfully objected and the text-message exchange was
excluded, there is no likelihood of a more favorable result for
Hovinghoff.

CONCLUSION

¶34 Hovinghoff’s first claim of ineffective assistance fails
because Counsel did not perform deficiently in not objecting to
the challenged voir dire questioning. And Hovinghoff has not
shown prejudice for the second ineffective assistance claim.

¶35 Affirmed.

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