STATE OF UTAH, Appellee, v. GLEN HOGUE, Appellant.
No. 20220544-CA
THE UTAH COURT OF APPEALS
Filed June 12, 2025
2025 UT App 88
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.
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 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 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.
¶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.” 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.
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 well as instructions
¶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).
¶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
¶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
¶22 The State charged Hogue with murder under
¶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
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. 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
¶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
¶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 death or serious bodily injury” under the circumstances here.
¶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
II. Prosecutorial Misconduct
¶29 Hogue generally argues that “the prosecutor relied on mischaracterizing incomplete and unreliable evidence to attain a 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 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
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
¶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
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
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.