State v. Hofeling

2025 UT App180

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
RAYMOND DALE HOFELING,
Appellant.

Opinion
No. 20230646-CA
Filed December 11, 2025

First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 211100095

Wendy M. Brown, Debra M. Nelson, and
Benjamin Miller, Attorneys for Appellant
Brian P. Duncan, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1 Raymond Dale Hofeling was convicted on two counts of
sexual battery after he inappropriately touched two underaged
female employees he supervised. On appeal, he asserts (1) the
State failed to provide sufficient evidence to convict him on either
count and (2) his attorney (Counsel) rendered ineffective
assistance when, during closing argument, he referred to a
notorious free speech case involving neo-Nazis in Skokie, Illinois,
in the 1970s. We conclude that the evidence before the jury was
sufficient to support Hofeling’s convictions. We do not address
whether Counsel’s reference to the Skokie case constituted
deficient performance because Hofeling has not demonstrated
prejudice. We therefore affirm Hofeling’s convictions.
State v. Hofeling

BACKGROUND 1

Hofeling Is Charged with Two Counts of Sexual Battery

¶2 Hofeling was a manager at a restaurant. Lindsay and
Megan, two underaged girls who worked at the restaurant,
reported that the 34-year-old Hofeling had inappropriately
touched them at work. 2 Hofeling was charged with two counts of
sexual battery, one for his conduct with each girl. The matter
proceeded to a two-day jury trial. On the first day of trial, two
police officers who investigated the allegations testified. On the
second day, Lindsay and Megan testified.

Lindsay’s Testimony

¶3 Before Lindsay testified, the district court read an
instruction to the jury based on rule 404 of the Utah Rules of
Evidence. The court explained,

[Y]ou are about to hear evidence that the defendant
made sexual comments to the witness who is an
alleged victim before and after the alleged act
charged in this case. This evidence is not admitted
to prove a character trait of the defendant or to show
that he acted in a manner consistent with that trait.
You may consider this evidence, if at all, for the
limited purpose of showing that the defendant
knew that it would cause affront or alarm and that
the touching was intentional and not an accident.
Keep in mind that the defendant is on trial for the
crimes charged in this case and for those crimes

1. “On appeal from a jury verdict, we recite the facts in the light
most favorable to that verdict.” State v. Diaz, 859 P.2d 19, 20 (Utah
Ct. App. 1993).

2. Lindsay and Megan are pseudonyms.

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State v. Hofeling

only. You may not convict the defendant simply
because you believe he may have committed some
other acts at another time.

¶4 Lindsay testified that she was 17 years old when she
worked with Hofeling at the restaurant. On one occasion,
Hofeling had been “very persistent about telling [Lindsay] that
[she] was pretty and that [she] looked really good” that day.
Referring to Lindsay’s age, Hofeling said, “I shouldn’t be talking
to you like this, huh?” Lindsay responded, “Yeah, probably not.”

¶5 Lindsay testified about other instances of Hofeling’s
inappropriate behavior. On one occasion, she was restocking
some utensils and asked Hofeling “where to put the extra straws.”
Hofeling replied, “[B]end over and I’ll show you.” In another
instance, Lindsay needed to access the cash register and asked
Hofeling for the keys. Hofeling was busy but said that Lindsay
could just grab the keys out of his pocket and that “the cameras
would basically see [her] . . . trying to touch his . . . weenie.” On
still another occasion, Hofeling told Lindsay that “he would wait
for [her] in the parking lot for when [she] got off work, . . . kidnap
[her] and put [her] in his trunk, take [her] out to the desert and
[do] whatever the drugs [would] make [them] do.” She
responded, “[W]hoa, . . . that’s kind of crazy.” Hofeling told
Lindsay that she could not “claim rape.”

¶6 In response to this behavior, Lindsay “tried to kind of
brush it off at first” and “kind of laughed it off.” Realizing that
Hofeling was “not planning to stop anytime soon,” however,
Lindsay became “[r]eally, really uncomfortable.”

¶7 The incident underlying the count related to Lindsay
occurred when Hofeling came “up behind [her] and hit [her] butt”
with “a closed fist.” She testified, “I felt [Hofeling’s] hand hit my
butt and I kind of was like really shocked . . . .” While she again
“tried to brush it off,” she “knew [Hofeling] did it on purpose.”
Hofeling told her, “I hit your butt,” and she responded, “[O]h

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State v. Hofeling

yeah, but it was an accident. It’s fine.” Hofeling told her, “I bet
you liked it, though.” Lindsay believed that things had moved
“past inappropriate humor” and that Hofeling was “now
purposely making [her] uncomfortable and . . . enjoying it.”

Megan’s Testimony

¶8 After Lindsay testified, the State called Megan. The district
court again read the rule 404 instruction to the jury. Megan began
by testifying that she worked with Hofeling when she was “16, 17,
around there.” On one occasion, Megan “was on a ladder, and
[Hofeling] was . . . staring” at her. When Megan asked Hofeling
what he was staring at, Hofeling responded, “[O]h, that butt, like
it’s amazing.” On other occasions, Hofeling would comment on
“what [Megan] was wearing” and tell her that he “missed [her]
when [she] wasn’t at work.”

¶9 Megan frequently worked the drive-through window, so
she was not near other employees very often. Nonetheless,
Hofeling, who worked in another area of the restaurant and had
little need to be in the drive-through area, would walk past Megan
and “brush up against [her] butt.” Megan acknowledged that
other employees would walk by and make incidental contact with
her “once in a great while.” But the only employee who “had a
pattern of brushing against [her] butt” was Hofeling.

¶10 The incident underlying the count related to Megan
occurred when Hofeling “just . . . reached out and . . . touched
[her] butt” with “[t]he inside of his hand.” She testified that she
“felt his fingers and hands . . . across [her] butt when he walked
by.”

The Jury Convicts Hofeling on Both Counts

¶11 After Megan testified, the State rested. Counsel then
moved for a directed verdict on both counts, arguing that there
was insufficient evidence to establish “the intentionality of the

20230646-CA 4 2025 UT App180
State v. Hofeling

touching.” The State noted the frequency of the touching and the
comments and argued that there was enough to establish that
Hofeling acted intentionally. The State also argued, “[I]n terms of
alarm, . . . there’s been plenty of testimony about how much it
bothered [Lindsay and Megan]. One called the police. They both
talked to management.” The district court agreed with the State
and denied the motion. The court explained,

Based on the evidence that I have heard in this case,
there is sufficient evidence that a reasonable jury
could find that these events happened, that the
elements have been met as outlined, specifically as
was raised by [Counsel], the intentionality aspect
given the circumstantial evidence surrounding the
events as well as the events themselves, a jury could
find that. So I’ll deny the motion . . . .

¶12 Hofeling elected not to testify and did not call any
witnesses. The court then read the closing instructions to the jury,
and the case proceeded to closing arguments. Counsel began his
argument by telling the jury about civil rights attorney David
Goldberger. In the 1970s, Goldberger, who is Jewish, represented
neo-Nazis seeking to demonstrate and march in Skokie, Illinois,
which had a sizable Jewish population. See generally David
Goldberger, Clients Everyone Hates, 21 Litigation 10 (Spring 1995).
Counsel also displayed a photograph of Goldberger and another
of Frank Collin, the leader of the neo-Nazi group that Goldberger
represented in the case. In the photograph, Collin is dressed in
easy-to-identify brown-shirt Nazi garb with a full-size Nazi
swastika flag hanging behind him. Counsel stated,

Mr. Goldberger is one of my heroes because he
represented this piece of trash. . . . Mr. Goldberger
represented the people that he despised, who had a
message that he hated, who were literally espousing
for the death of people just like Mr. Goldberger, just

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State v. Hofeling

because of who they were. And what did Mr.
Goldberger do? He represented them because he
knew that in order to protect the rights of freedom
fighters, you also had to protect the rights of fascists.

Apparently likening Hofeling’s case to the Skokie case, Counsel
argued that the State was asking the jury to punish Hofeling “for
his words, not his actions.” Counsel concluded, “If you want to
protect your freedom of speech, you have to protect Mr.
Hofeling’s freedom of speech. They are one and the same.”

¶13 The jury convicted Hofeling on both counts. He now
appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Hofeling argues first that the district court erred when it
ruled that the State presented sufficient evidence to establish that
he knew or should have known he would “likely cause affront or
alarm” to Lindsay and Megan by touching them. See Utah Code
§ 76-9-702.1(1) (2019). 3 “We review the district court’s denial of a
motion for directed verdict for correctness.” State v. Barner, 2020
UT App 68, ¶ 9, 464 P.3d 190 (cleaned up). But when a defendant
“challenges the denial of a motion for a directed verdict based on
the sufficiency of the evidence,” as Hofeling does here, “the
applicable standard of review is highly deferential.” Id. (cleaned
up). In such a case, “we will uphold the district court’s denial if,
when viewed in the light most favorable to the State, some
evidence exists from which a reasonable jury could find that the

3. Since the time of the offenses, Utah Code section 76-9-702.1 has
been amended and renumbered as section 76-5-418. Compare Utah
Code § 76-9-702.1 (2019), with id. § 76-5-418 (2025). Although the
amended language is substantially similar to the previous
language, we cite and rely on the statute in effect at the time of the
offenses.

20230646-CA 6 2025 UT App180
State v. Hofeling

elements of the crime have been proven beyond a reasonable
doubt.” Id. (cleaned up). 4

¶15 Hofeling also argues that Counsel rendered ineffective
assistance of counsel in discussing the neo-Nazi march in Skokie
during closing argument. “An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of
law.” State v. Fleming, 2019 UT App 181, ¶ 7, 454 P.3d 862 (cleaned
up).

ANALYSIS

I. Sufficiency of the Evidence

¶16 Hofeling argues that the district court should have granted
the directed verdict because the State failed to prove, as required
by Utah law, that he knew or should have known that his conduct
would cause affront or alarm to Lindsay and Megan. Because the
evidence readily supported conviction on both counts under the
plain language of the statute, we disagree.

¶17 The governing statute provides in relevant part that “[a]
person is guilty of sexual battery if the person . . . intentionally
touches, whether or not through clothing, the . . . buttocks . . . of
another person . . . and the actor’s conduct is under circumstances
the actor knows or should know will likely cause affront or alarm

4. The State argues that this issue wasn’t preserved because
Counsel did not specifically assert in his motion that the State
failed to offer sufficient evidence to establish the “affront” or
“alarm” element of the statute. “If the merits of a claim can easily
be resolved in favor of the party asserting that the claim was not
preserved, we readily may opt to do so without addressing
preservation.” State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415
(cleaned up). Such is the case here because we can easily resolve
the merits of the claim in the State’s favor.

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State v. Hofeling

to the person touched.” Utah Code § 76-9-702.1(1) (2019). Hofeling
cites seven cases he claims demonstrate that “[s]exual battery
involves much more egregious conduct than what was seen here.”
Without citation to any other authority, Hofeling seemingly
operates on the assumption that the cases he cites set the
minimum conduct necessary to support a conviction for sexual
battery. In fact, the text of the statute establishes that threshold.
Cf. State v. Tryba, 2000 UT App 230, ¶ 13, 8 P.3d 274 (“Where the
statutory language is plain and unambiguous, we do not look
beyond the language’s plain meaning to divine legislative intent.”
(cleaned up)). And the statute makes clear that any intentional
touching of “the buttocks of another person” that “will likely
cause affront or alarm to the person touched” qualifies as sexual
battery. Utah Code § 76-9-702.1(1) (2019).

¶18 The statute does not define “affront” or “alarm.” In State v.
Von Niederhausern, however, we explained that the district court
had properly used “the dictionary definitions of ‘affront’ and
‘alarm’ as the ordinary meaning of [the] word[s] to a reasonable
person familiar with the usage and context in question.” 2018 UT
App 149, ¶ 28, 427 P.3d 1277 (cleaned up). Specifically, the court
had instructed the jury that “‘affront’ means an insult or indignity;
an action or remark that causes outrage or offense or that offends
modesty or values” and that “‘alarm’ means an anxious
awareness of danger; something that causes a person to feel
frightened, disturbed, or in danger.”5 Id. ¶ 25 n.8.

¶19 With these definitions in mind, we readily conclude that
there was evidence from which the jury could have found beyond

5. While the jury was not specifically instructed on the definitions
of “affront” and “alarm” in Hofeling’s case, it was instructed
elsewhere that it “should give all words their usual and ordinary
meanings,” unless the instructions otherwise provided a
definition. Hofeling does not argue that the instructions as given
were incomplete or otherwise erroneous.

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State v. Hofeling

a reasonable doubt that Hofeling knew he would cause affront or
alarm to Lindsay when he touched her buttocks. In one incident,
Hofeling had been “very persistent about telling [Lindsay] that
[she] was pretty and that [she] looked really good.” Recognizing
their age difference, Hofeling admitted to Lindsay that he
probably should not have been talking to her that way. Such
evidence is plainly sufficient to support a determination that
Hofeling knew or should have known that touching Lindsay’s
buttocks would have disturbed her or otherwise caused her
outrage or offense.

¶20 The evidence of Hofeling’s mens rea on the count related
to Megan was less direct, but no less probative. Hofeling told
Megan that her “butt [was] amazing” and that he missed her
when she wasn’t at the restaurant. He made similar comments to
Lindsay that he knew were inappropriate, given their age
difference. Considering that Megan was also underaged and
working under his apparent supervision, this evidence was
enough for a jury to properly find, beyond a reasonable doubt,
that Hofeling knew or should have known that touching Megan’s
buttocks would disturb her or otherwise cause her outrage or
offense.

¶21 Finally, on appeal, Hofeling does not contest the jury’s
finding that he intentionally touched Lindsay’s and Megan’s
buttocks. And because the jury could readily conclude beyond a
reasonable doubt that the touching occurred under circumstances
he knew or should have known would likely cause affront or
alarm to Lindsay and Megan, see Utah Code § 76-9-702.1(1) (2019),
Hofeling has failed to establish that the district court erred in
denying his motion for a directed verdict.

II. Ineffective Assistance of Counsel

¶22 Hofeling also argues that Counsel rendered ineffective
assistance when, during closing argument, he told the jury about
David Goldberger and the neo-Nazi march and displayed the

20230646-CA 9 2025 UT App180
State v. Hofeling

photograph described above. We need not consider whether
Counsel’s statement constituted deficient performance in this case
because Hofeling has not demonstrated prejudice. His ineffective
assistance claim therefore falls short.

¶23 To prevail on a claim for ineffective assistance of counsel,
a defendant must demonstrate that “(1) counsel’s performance
was objectively deficient and (2) the deficient performance
resulted in prejudice.” State v. Fleming, 2019 UT App 181, ¶ 9, 454
P.3d 862 (citing Strickland v. Washington, 466 U.S. 668, 687–88
(1984)). Where, as here, the defendant fails to establish prejudice,
we need not address deficient performance. 6 Id. Establishing
prejudice requires the defendant to “show that the deficient
performance harmed the defense.” State v. Hamberlin, 2025 UT
App 131, ¶ 32, 577 P.3d 912. In practice, the defendant must
demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different” in such a way that it “erode[s] our confidence in
the outcome.” Id. (cleaned up). To make this determination, we
assess the counterfactual scenario—the “alternative universe in

6. Hofeling argues that Counsel’s reference to the Skokie case
constituted deficient performance. Judge Tenney recently
explained in a concurring opinion joined by the two other panel
members that attorneys should “avoid making analogies or
comparisons to Hitler, Nazis, or the Holocaust unless truly
warranted” and that such analogies or comparisons “should
almost always be avoided.” State v. Vargas, 2025 UT App 142,
¶¶ 69, 71 (Tenney, J., concurring); see also State v. Florreich, 2024
UT App 9, ¶ 98 n.13, 543 P.3d 795 (“A decision to use Hitler as a
reference point is one that is fraught with peril and should be
avoided in most any case.”), cert. denied, 547 P.3d 828 (Utah 2024).
Although we resolve Hofeling’s claim on prejudice grounds, it’s
difficult to see how Counsel’s reference to the Skokie march
would have helped Hofeling’s case, particularly where Hofeling’s
case raises no issues regarding freedom of speech.

20230646-CA 10 2025 UT App180
State v. Hofeling

which the trial went off without the error.” State v. Samples, 2022
UT App 125, ¶ 85, 521 P.3d 526 (cleaned up). When assessing
prejudice, we are more “inclined to conclude errors are harmless
when confronted with overwhelming evidence of the defendant’s
guilt,” and we will more readily reverse “when a conviction is
based on comparatively thin evidence.” Hamberlin, 2025 UT App
131, ¶ 32 (cleaned up).

¶24 Hofeling argues that his defense was prejudiced by
Counsel’s Nazi invocation because it distracted the jury from
what he claims was the weak link of the State’s case: whether the
evidence was sufficient to prove that he knew or should have
known that his conduct would likely cause affront or alarm to
Lindsay and Megan. On this point, we disagree with Hofeling.

¶25 Here, we must consider the counterfactual universe in
which Counsel did not discuss the Skokie case or arguably
compare his client to a Nazi. Stated otherwise, we must ask
whether the error erodes our confidence in the outcome. We
answer no.

¶26 Hofeling begins his argument on prejudice by quoting
Judge Frederic Voros for the following proposition: “Whoever
mentioned the Nazis has automatically lost whatever debate was
in progress. In other words, by playing the Hitler card you admit
that you have no better card.” (Quoting Judge J. Frederic Voros,
Jr., Civility in a Time of Incivility, 30 Utah Bar J. 22, 25 (July/Aug.
2017) (cleaned up)). Hofeling proceeds to assert that “the way
[C]ounsel chose to bring up Nazis prejudiced” the case because
“[t]he takeaway for the jury would [have been] that [C]ounsel,
too, viewed his own client . . . as a generally repugnant person.”
Counsel’s strategy, Hofeling argues, entailed “all but
acknowledg[ing] guilt.”

¶27 But Hofeling overlooks that there was substantial evidence
of his guilt. Indeed, he fails to address what are probably the most
damning facts for his case: Lindsay and Megan were underaged

20230646-CA 11 2025 UT App180
State v. Hofeling

girls—indeed, they were roughly half his age—working under his
supervision. Although he notes Lindsay’s and Megan’s ages
when he marshals the evidence in favor of the verdict, Hofeling
does not state how old he was at the time of the offenses. Nor does
he explain why the jury would have looked past Lindsay’s and
Megan’s ages when determining whether he knew or should have
known whether his conduct would likely cause them affront or
alarm. The likely explanation is the simple one: he cannot do so.

¶28 Throughout the briefing, Hofeling dodges these critical
facts. For example, although he acknowledges on appeal that the
State presented sufficient evidence that he intentionally touched
Lindsay and Megan, Hofeling argues that “the evidence strongly
support[ed] an inference that [he] inadvertently touched
[Lindsay] with a closed fist and then acknowledged the accidental
contact” when he said, “I hit your butt.” According to Hofeling,
his subsequent comment—“I bet you liked it, though”—suggests
that “[o]ne of two things is true.” He was either “being serious”
and Lindsay “had enjoyed the contact” or—and this is the more
likely explanation according to Hofeling—he intended the
comment to be “a joke” and was not “made aware that his jokes
were unappreciated or even offensive” until “after the alleged
touching, . . . which does nothing to support the State’s case that
at the time of the touching he would have known he was likely to
cause affront or alarm.”

¶29 But Hofeling suggests a false dichotomy. There was a third
possibility that, in fact, was the one the jury apparently believed:
that Hofeling knew that touching Lindsay and Megan was
inappropriate at the time he touched them. As we have explained,
Hofeling’s comments were clearly sufficient under the plain
language of the statute to establish that he knew—or, at the very
least, should have known—that conduct was likely to cause
affront or alarm to Lindsay and Megan. And we are confident the
jury would have convicted Hofeling even had Counsel not
invoked the Skokie case during closing argument.

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State v. Hofeling

¶30 For these reasons, Hofeling has not demonstrated
prejudice in this case. Therefore, his ineffective assistance claim
misses the mark.

CONCLUSION

¶31 Hofeling has failed to establish that the district court erred
when it denied his motion for a directed verdict because there was
ample evidence to establish beyond a reasonable doubt that he
was guilty on both counts of sexual battery. And although it is
true that allusions or direct references to Hitler, Nazis, and the
Holocaust rarely constitute sound trial strategy, we need not
decide whether Counsel rendered deficient performance in telling
the jury about the Skokie case because Hofeling has not
demonstrated prejudice. We therefore affirm his convictions.

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