DECISION
T1 Spencer Russell Strode appeals his conviction for attempted murder. Strode argues that trial counsel provided ineffective assistance by failing to make a motion to dismiss the case based upon the State's alleged failure to preserve certain evidence. We affirm.
2 In order to establish ineffective assistance of counsel a defendant must demonstrate that his counsel's performance was deficient and that he was prejudiced by counsel's deficient performance. See State v. Litherland,
13 Strode argues that his trial counsel performed ineffectively by failing to make
T4 Although the witness who received the text message was unavailable to testify at trial, the jury viewed a video recording of a police interview of the witness. The witness indicated that he received a text from the victim asking for his assistance in "kick[ing Strode's] ass." Thus, despite the fact that the exact language of the text message was not preserved by the State, the jury was aware of the text message and was made aware that the victim intended to physically harm Strode. Despite this evidence, the jury convicted Strode of attempted murder. Strode speculates that the text message may have contained other information, which may have assisted in his defense. However, proof of prejudice may not be based purely upon a speculative matter. See id. Because the jury heard evidence concerning the substance of the text message and because Strode merely speculates that the text message may have said something other than what was adduced at trial, he cannot demonstrate that it is likely that the district court would have granted a motion to dismiss for failure to preserve the text message. Accordingly, he cannot demonstrate that he was prejudiced by trial counsel's failure to move for dismissal on this basis, even if we assume such failure constituted deficient performance.
1 5 Affirmed.