dissenting:
1 50 David Vincent Gregg was convicted of rape in a trial in which the only real issue was consent. Gregg admitted to having sexual intercourse with Ms. S. in the wee hours of February 16, 2003, but insisted that she had consented to participate in that act. Ms. S. vehemently refuted that assertion, testifying at trial that she unequivocally said "no" when Gregg pressed for sex and explaining that Gregg had grabbed her by the ankles and slid her onto a couch where he raped her. The jury bought Ms. S.'s story and rejected Gregg's defense, finding him guilty of one count of rape.
*410¶ 51 The jury's verdict had ample basis in the record. Gregg, after all, had conceded in a pretext call made by Ms. S. two days later that she had repeatedly said "no" to his sexual overtures, acknowledged that he had promised her he would not move beyond the kissing and foreplay that Ms. S. had agreed to, and insisted only that he never physically forced her to engage in sex and thought she had changed her mind. In light of the evidence, the jury understandably found Gregg guilty. It understood that Ms. S.'s "no" meant "no," and that she was entitled to reject Gregg's moves toward intercourse despite participating voluntarily in kissing and foreplay. And it understandably rejected Gregg's notions that he thought Ms. S. had changed her mind and had never physically forced her to allow him to rape her.1
52 The court today vacates that conviction and remands the case for a new trial. It does so on the basis of its conclusions that Gregg's prior counsel performed below an objective standard of reasonableness and that there is a reasonable probability that Gregg would have been acquitted but for that deficient performance. I respectfully dissent. First, I conclude that Gregg's ineffece-tive assistance claims are procedurally barred under the Post-Conviction Remedies Act because prior appellate counsel either actually litigated the claims before us today or reasonably declined to litigate such claims in favor of stronger ones. Second, assuming for the sake of argument that Gregg's claims are not barred, they fail on the merits. Counsel acted reasonably in basing its consent defense on the evidence in the record at trial and in not pressing further investigation into the additional evidence identified by the majority. And because that additional evidence only marginally supported Gregg's defense, there is no reason to think that it would have changed the verdict.
I
(53 The PCRA forecloses relief on any ground that "was raised or addressed at trial or on appeal." Utah Code § 78B-9-106(1)(b). It also bars any claim that "could have been but was not raised at trial or on appeal," id. § 78B-9-106(1)(c), unless "the failure to raise that ground was due to ineffective assistance of counsel," id. § 78B-9-106(3). Because Gregg's counsel on direct appeal could have raised claims of ineffective assistance of trial counsel, a challenge to the effectiveness of trial counsel is barred unless "the failure to raise that ground [ineffective assistance of trial counsel] was due to ineffective assistance of [appellate] counsel." Id. Thus, as the majority indicates, under the PCRA a "petitioner must prove that he received ineffective assistance from both his trial counsel and his appellate counsel." Supra ¶ 18.
154 Gregg's claims are procedurally barred, then, if he cannot establish ineffective assistance of appellate counsel. In my view Gregg's case falters on this threshold point, as his counsel on direct appeal actually raised-or could have raised-the claims he presses now under the PCRA.
T55 As the majority indicates, the record as it stands does not indicate with crystal clarity the nature or extent of Gregg's appellate counsel's challenges to trial counsel's effectiveness. Supra ¶ 47 n. 13. But I respectfully disagree with the court's decision to conclude that appellate counsel utterly "failed to allege" the ineffectiveness claims that are before us in this PCRA case, much less with the notion that the motion for remand filed in Gregg's direct appeal included "only the general allegation that trial counsel failed to 'research, investigate, and use evidence ... to impeach the testimony of the victim, without reference to [Ms. S's] LDSSO e-mails or the 47-minute window of time." Supra T47 n. 18 (alteration in original). In fact, the ellipsis in the foregoing quote from the motion for remand omits references that in context seem clearly to refer to precisely these points.
56 The full quote (sams ellipsis) from the court of appeals' order denying Gregg's motion for remand indicates that his appellate counsel argued "that trial counsel was inef*411fective in two respects: first, in failing to investigate possible juror misconduct during the trial and, second, in failing to research, investigate, and use evidence from potential witness Jessica, the 'Idssingles.com' website, and police reports to impeach the testimony of the victim." In context, the reference to a failure to investigate evidence from "the 'ldssingles.com' website" to impeach Ms. S.'s testimony can only refer to the claim accepted by the majority today-that electronic communications from Ms. S. on that website could have undermined her testimony that she canceled her LDSSO subscription and ceased using the dating service after her experience with Gregg.2 No one has identified any other impeachment purpose of evidence found on that website, so the only reasonable conclusion to be drawn from the record as it stands is that Gregg's appellate counsel litigated (and lost) on the question whether trial counsel was ineffective for failing to find and use the electronic communications that are before us today.
157 A parallel inference can be drawn from the Court of Appeals' reference to trial counsel's alleged ineffectiveness in not investigating and using evidence from "police reports" for impeachment purposes. In context, this was an obvious allusion to the second claim endorsed by the majority today-that "[t]he police report indicates that Matt called [Ms. S.] at 8:20 a.m. and again at 4:07 a.m.," supposedly confirming "that there was a 47-minute window of time" when the rape could have occurred. Supra ¶¶ 33, 41, 47. And again, there is no indication of any impeachment purpose for any other evidence in the police report, so again it is apparent that Gregg's appellate counsel litigated (and lost) on the question whether trial counsel was ineffective for failing to find and use the police report at issue today.
158 Thus, Gregg's ineffective assistance claim in this PCRA action is procedurally barred because it "was raised or addressed on appeal." Utah Code § 78-35a-106(1)(b). The bar holds, moreover, even absent the clarifying detail that could have been provided by the motion to remand filed by Gregg, which is apparently missing from the current record. See supra ¶ 47 n. 13. On this point, I cannot agree with the majority that the parties' PCRA briefs somehow left unclear "which ineffective assistance claims Mr. Gregg alleged on direct appeal" or whether the issues the court reaches here "were presented to or addressed by the court of appeals." Supra ¶ 47 n. 13. In fact, Gregg's own opening brief acknowledged that "[from the appellate court's order it appears Mr. Gregg's counsel on his direct appeal sought remand under Rule 23B on the grounds of ... failure to impeach [Ms. S.'s] testimony with evidence from the LDSSO website" and "failure to impeach [Ms. S.'s] testimony using 'police reports'"
€59 Even assuming, for argument's sake, that Gregg's appellate counsel did not actually raise this issue on direct appeal, the appellate court's order establishes that, at the very least, it could have been raised. That alone is enough to bar the claim under the PCRA. Utah Code § 78-35a-106(1)(c).
¶ 60 So perhaps the missing motion would elucidate the nature of appellate counsel's argument more fully, but there is little doubt that the claims addressed by the majority today were raised or at least could have been raised in Gregg's direct appeal. Indeed, the district court itself reached this conclusion in dismissing Gregg's first amended PCRA petition, holding that the same ineffective assistance of counsel claims presented here "were resolved by the Court of Appeals in ... its Order denying remand under Rule 23B."3 *412Those claims are thus procedurally barred, and I would affirm on that basis.
II
{61 Even if we assume away the procedural bar for the sake of argument, I would still disagree with the court's decision to vacate Gregg's conviction. Gregg's counsel acted reasonably in basing the consent defense on the evidence in the record at trial instead of pursuing the collateral evidence identified in the PCRA petition. And even if Gregg's counsel had presented that evidence, it would have provided only marginal support for Gregg's consent defense and little reason to expect anything other than a guilty verdict at trial. Gregg's ineffective assistance claims accordingly fail at both steps of the analysis under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and his PCRA petition also fails on its merits.
A
¶ 62 I am not persuaded that Gregg's counsel fell below the lenient standard for judging the effectiveness of counsel's performance at Strickland step one. Gregg had a right to a lawyer that performed within the "wide range of reasonable professional assistance," id. at 689, 104 S.Ct. 2052, not one that would make every strategic move that might seem ideal in hindsight.4 Counsel's conduct in this case strikes me as falling squarely within the range of reasonable professional assistance, notwithstanding the additional investigation and impeachment identified by the court today.
T 68 At the threshold, I cannot agree with the majority's insistence that it can never be a reasonable tactical decision " 'not to investigate' " a particular matter. Supra 124. The court cites State v. Templin, 805 P.2d 182, 188 (Utah 1990), for that proposition, but Templin does not sustain this categorical conclusion. Under Templin, counsel's performance may be deficient "[if counsel does not adequately investigate the underlying facts of a case." Id. (emphasis added). Counsel's duty under Templin, then, is to conduct a "reasonable investigation," id. at 188 n. 25 (emphasis added), and that qualification not only permits but requires counsel to make decisions about when and where to begin and end its investigations on various matters in a case.
{64 Such judgments are not only inevitable but necessary. Time is a naturally limited resource, as are funds for investigation. Even the best lawyers with the biggest budgets make inevitable decisions about when to stop investigating. It eannot be categorically unreasonable for a lawyer judged under the lenient Strickland standard to make those same judgments. Gregg's counsel's judgments in his rape case, moreover, strike me as quite reasonable.
*4131
T{65 First, as to the LDSSO e-mail, it seems clear from the record that trial counsel made a reasonable tactical decision to conduct a cross-examination at a high level of generality that did not delve into the detail of specific e-mail messages. Thus, counsel did in fact challenge Ms. S.'s credibility by questioning her assertion that she had sworn off the LDSSO dating service due to her anxiety over her encounter with Gregg. Counsel did so at trial by noting in eross-examination that Ms. S. had logged onto LDSSO seventeen times after February 15, 2003.5 By referring generally to this extensive logon activity, counsel was able to insinuate that Ms. S. had Hed about her anxiety over LDSSO and her immediate termination of online activity.
T 66 The majority insists that the electronic messages indicated a "light-hearted" attitude by Ms. S. in her online communication and that the messages were thus "essential" to the impeachment of her credibility. Supra TT28-29. I disagree on both counts. There is nothing particularly probative about the electronic messages quoted by the majority. At most, they simply indicate Ms. S.'s desire to "keep in touch" and convey polite salutations and well wishes. I accordingly see nothing remotely essential-or even helpful-about those messages in impeaching Ms. S.'s credibility.
167 I also disagree with the majority's conclusion that these "light-hearted" messages "would have conflicted with [Ms. S.'s] story that she was so distraught after her encounter with Mr. Gregg that she suffered an anxiety attack and swore off the LDSSO dating service altogether." Supra 127.6 If anything, the electronic messages confirm an essential part of Ms. S.'s story-that she was terminating her use of the LDSSO website.7 They do so by clearly indicating that her membership was expiring immediately and that any further communication would have to be by other means. Thus, without the electronic messages in the record, defense counsel was able to attack Ms. S.'s credibility generally-and relatively effectively-by insinuating that her seventeen logons after February 15 were flirtatious uses of the LDSSO site that contradicted her stated anxiety over further use of the site due to her experience with Gregg. If the messages had been in the record, by contrast, defense counsel would have had to deal with the fact that the content of Ms. S.'s actual online communications were non-flirtatious and confirmed the essence of her testimony.
T 68 Thus, in my view counsel's decision not to use the LDSSO electronic communica*414tions was a wise tactical move. At the very least it was a decision within the wide range of reasonable judgments that a trained lawyer could make, and that is all that is necessary to reject Gregg's claim at Strickland step one.
2
69 Second, trial counsel's failure to emphasize the 47-minute span between the two calls between Ms. S. and Matt was likewise reasonable. The precise length of time between these two phone calls would have contributed little or nothing to Gregg's defense. It certainly would not have persuasively "corroborated" Gregg's "account of events" or "undermined" Ms. S.'s, as the majority asserts. Supra ¶ 34. This discrepancy between Gregg's and Ms. S.'s respective "account of events," moreover, simply did not exist at trial. The majority seems to suggest that the jury was presented with two conflicting eyewitness accounts to weigh and analyze, but that was never the case here as Gregg did not testify before the jury. Aside from the arguments and questions of eredi-bility and consent raised by his trial counsel and recorded statements made by Gregg to police, "Gregg's story" was presented to the court only at his sentencing hearing, months after the jury had deliberated, reached its guilty verdict, and been dismissed. Thus, there was little or no opportunity for the jury to weigh which "account more accurately portrayed what occurred," supra 141, since Gregg's personal account was not presented. In any event, to the extent the jury heard different accounts indirectly through evi-denee, cross-examination, and closing argument, there was no conflict as to the precise amount of time between Ms. S.'s phone calls with Matt, and thus no reason for trial counsel to highlight the timing point that the court today seems to find so telling.
T70 At most, the fact that Ms. S.'s calls with Matt spanned 47 minutes indicates "that there was a 47-minute window of time between the two phone calls during which the rape allegedly occurred." Supra ¶ 33. That is because Ms. S. testified that she was involved in consensual kissing and foreplay with Gregg at the time of the first call and had intercourse by the time of the second one. But of course nothing in this case turns on the length of time between the acts of consensual foreplay and involuntary intercourse. The latter was (at least in the jury's minds) rape, and its status as rape is in no way affected by the amount of time Ms. S. participated in consensual foreplay.
T 71 Gregg was within his rights in participating in sexual activity for as long as Ms. S. consented. But Ms. S. was also entitled to refuse his overtures and eventual acts of sexual intercourse.8 And the moment she said "no," Gregg was bound by law to stop. That moment could have been 46 minutes into the 47 minutes of consensual foreplay. (That, apparently, is the most defense counsel could have made of the 47-minute time span. And of course even the evidence cited by the majority doesn't come close to getting that specific.) But pinning down such a time period would in no way sustain the majority's conclusion that Ms. S. "consented to intercourse after a gradual progression of consensual foreplay over the course of about an hour." Supra ¶ 41.
172 The majority attempts to connect those dots by suggesting that Ms. S. testified that she was raped immediately after the initial phone call with Matt and that Gregg testified otherwise. Stating that Ms. S. testified that "the rape occurred in a matter of minutes between the two phone calls," supra TT 34, 37, the majority concludes that she "portrayed a sudden attack that occurred in a manner of minutes," supra ¶ 38. This terse and heavily edited retelling by the ma*415jority notes only that, following Matt's first phone call, Gregg "said 'no' several times . immediately grabbed [Ms. S.'s] ankles and commenced non-consensual intercourse." Supra 188 & n. 10. But that is not what Ms. S. presented to the jury.9
173 Ms. S. testified that after the first phone call she and Gregg discussed the conversation, and Gregg complimented her manners and listening skills. Ms. S. stated that they then "started back where [they] were, just kissing.10 " At some point after this later foreplay, Ms. S. testified that she became "very uncomfortable." When she expressed her hesitance at continuing, Gregg complained that she "[eouldn't] do this to guys" because "stop[pling in the middle of something like that" was "very painful for men." They then discussed why this would be painful for Gregg and Ms. S. encouraged him "to calm down, to cool down," and elicited a promise from Gregg that they wouldn't have sex. At some point after this last discussion, Gregg said "[ylou just can't do this to me" and then "slid her down on the couch." Ms. S. testified that Gregg then "kneeled down in front of [her]" and placed her hands on his penis and told her that "he knew that [she] wanted it."
T 74 At this point, Ms. S. indicated a hazy recollection of events. She testified that she recalled taking her hands off Gregg's genitals, but that Gregg then replaced them. Ms. S. then testified that she "froze," and that she didn't "[rlemember him taking his pants off" or remember Gregg "taking [hers] off," The next thing Ms. S. remembered, Gregg was "on top of [her] and [her] phone was ringing."
175 This version of events between the first and second phone calls is hardly the rapid-fire, "immediate" account the majority describes. Ms. S. did not testify that the rape occurred a matter of moments after the first call or that it was a drawn-out process. In fact, Ms. S. didn't attempt to give a time frame for these events at all beyond her recollection that they started after the first phone call and were interrupted by the see-ond call.11 Instead, Ms. S. recounted discussions, conversations, some consensual foreplay, and a series of actions that she could not remember well. Accordingly, the police report would not have undermined Ms. S.'s account in the least, much less confirmed that she had consented to intercourse with Gregg.
176 The precise timing of the rape, moreover, was not an issue at trial (which is why the phone call evidence of timing would have been almost useless-hardly "critical to determining whose account more accurately portrays the events of that night," supro $41). The dispute, instead, was simply whether and to what extent Ms. S. refused Gregg's requests for and acts of sexual intercourse. Thus, while there may have been some potential for dispute regarding the tim*416ing of the acts of foreplay and intercourse in relation to the two phone calls, there was not the sort of stark contrast in testimony and evidence on timing that would have made the 47-minute time span in the police report critical or even really relevant.
T77 For that reason, trial counsel made a reasonable tactical decision to try to challenge Ms. S.'s credibility and sustain his theory of the case by focusing on other evidence in the record instead of harping on an esoteric timing point of marginal significance. For example, counsel focused much of his cross-examination of Ms. S. on how unusual it was for her to invite a near-stranger to her home late at night to just "sit there and talk." Counsel questioned her as to why she never asked Gregg to leave or go home, emphasizing that even though Ms. S. thought some of Gregg's behavior was "bizarre," she ultimately consented to kissing and foreplay. Aiming squarely at the issue of consent, counsel then fired off a series of questions at Ms. S.: whether she "let [Gregg] take [her] pants off," whether her pants or underwear were ripped, and why she "didn't scream" or "yell at [Gregg]" or tell Matt, "[Mly God, Matt. I've been raped." Then, in closing, counsel focused on a different, but likely more compelling timing issue that directly implicated Ms. S.'s credibility-that after Matt had arrived at Ms. S.'s home and called her from his car, rather than rushing out to meet Matt, Ms. S. asked him to "[glive us a couple of minutes," where after she escorted Gregg to his car and "hug[ged] and kisse[d] him."
11 78 I see no reason to second-guess a trial strategy that focused on these salient points instead of trying to turn a 47-minute span between two phone calls into a supposed refutation of Ms. S.'s story on the erucial issue of consent. In fact, any attempt to do so could easily have back-fired. If trial counsel had taken the position the majority takes today-that Ms. S. must have consented because she participated in voluntary foreplay for almost 47 minutes-the prosecution could have had a heyday in closing chiding the defense's suggestion that a woman who voluntarily engages in foreplay is somehow bound to agree to sexual intercourse. That of course is not the law as noted above, and the jury was instructed accordingly.12 The defense would likely have shot itself in the foot had it suggested otherwise.
T 79 If defense counsel had taken this tack, a jury could predictably have viewed it as an insensitive, misleading, or inappropriate attack on the state of mind of a rape victim. And an attentive prosecutor could have portrayed this theory as a distasteful attempt to paint Ms. S. as a liar solely because she was confused about the precise timing of a horribly traumatic incident. With these concerns in mind, a reasonable defense attorney could properly have decided to forego any fixation on the precise length of time between the two phone calls and make his points elsewhere.
£80 At a minimum, it is again at least apparent that reasonable trial counsel could differ on the best strategy. And if a decision to buttress Gregg's story on consent and impeach Ms. S.'s in this way is at all debatable (as it clearly is), then Gregg's ineffective assistance claim on this point surely fails at step one under Strickland.
B
€ 81 I would also conclude that any arguable deficiency in counsel's trial strategy would not likely have changed the jury's guilty verdict, and thus that Gregg's claims also fail at Strickland step two. The court's analysis of this question is thin and its conclusion tenuous. It asserts without much discussion that the LDSSO communications and time frame from the police report somehow would have altered "the overall eviden-tiary picture" in the case. Supra 1 30.
1 82 I see no basis for elevating this evidence to that level. Unlike the majority, I see no comparison between this case and State v. Templin, where defense counsel failed to contact several prospective eyewitnesses "who had seen the defendant and the victim together on the date of the alleged rape" and offered eyewitness accounts that undermined victim's eredibility and wholly *417contradicted several aspects of her story. 805 P.2d 182 at 187. The undeveloped evidence identified here does nothing of the sort. Gregg's trial counsel did not fail to contact eyewitnesses or subpoena evidence that would have directly contradicted any of Ms. S.'s testimony. Rather, trial counsel in fact made an extensive effort to sustain Gregg's theory on consent and to impeach her. And although it declined to feature the LDSSO or police report evidence in that effort, that can be defended as a reasonable tactical decision recognizing perils inherent in the "new" evidence cited in the PCRA petition. For that reason, there is no reason to treat that evidence as fundamentally affecting the "overall evidentiary picture" in the case, supra 130, or to give a reasonable basis for concluding that it would have altered the jury verdict.
III
183 This was admittedly a close case at trial. Everyone agreed at trial that Ms. S. participated voluntarily in sexual foreplay and that the intercourse that ensued was not the result of physical foree or violence. But Ms. S. testified that she unequivocally said "no" to Gregg's advances to intercourse, and the jury obviously believed her. That decision is entitled to our respect. I dissent because the court's decision today seems to me to second-guess the jury's verdict in ways that distort the law under the PCRA and under Strickland v. Washington.
. State v. Hammond, 2001 UT 92, 116, 34 P.3d 773 (Intercourse without consent is all that is required for rape ....; no force is required.").
. In fact, this is the only evidence that Gregg's appellate counsel could have been seeking, given that trial counsel knew of and made reference to the only other relevant evidence from the site-the dates and times that Ms. S. accessed LDSSO following the incident.
. Because Gregg conceded this point in his brief and the district court ruled conclusively on it, we can hardly fault the State for failing to address it. See supra ¶ 47 n. 13 (noting that the "PCRA places the burden on the State to plead 'any ground of preclusion' " and chiding the State for not demonstrating that these issues "were presented to or addressed by the court of appeals"). As the majority indicates, the State bears the burden of pleading grounds for preclusion. The State properly carried that burden, as confirmed by the district court's decision dismissing the amended PCRA petition. Although the PCRA *412does not expressly confine the State's burden to the district court stage, supra 147 n. 13, that limitation is evident in context. Pleading, by definition, takes place only in the district court. On appeal, it is the appellant (not the State) that bears the burden, and that burden is to advance grounds. for overturning the district court's decision, with argument and citation to relevant legal authority. Utah R.App. P. 24. Gregg failed to carry that burden 'with respect to the district court's determination that his claims were barred in light of their resolution on direct appeal by the court of appeals. In fact, Gregg's opening brief in this court openly conceded that fact. In the face of that concession, the State had no further burden under the PCRA or otherwise.
Gregg's only argument on this appeal on this issue was the unsupported, unexplained assertion that the court of appeals' denial of the rule 23B motion was somehow "not a full and fair adjudication" of these issues. That assertion was made without any citation to any authority, however, and the State accordingly had no duty to respond to it.
. See Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 788, 178 L.Ed.2d 624, (2011) ("Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is all too tempting to second-guess counsel's assistance after conviction or adverse sentence." (emphasis added) (internal quotation marks omitted)); State v. Templin, 805 P.2d 182, 186 (Utah 1990) ("[The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (internal quotation marks omitted)).
. Gregg's counsel initially asked Ms. S. whether she was "so disgusted with what [she] believed occurred [with Gregg that shel never again logged onto the [LDSSO] chat line." Ms. S. replied that her "membership expired shortly after that." Later, counsel pressed her and asked whether she had "any reason to dispute" that she "logged in seventeen times since February 15 of 2003," including "the day after [the incident]." In response, Ms. S. stated "(that's what [the document] says. I guess I did." Counsel later pressed these issues on re-cross-examination, questioning both the timing and legitimacy of Ms. S.'s withdrawal from the LDSSO service, and whether she actually experienced any anxiety attacks following the incident.
. These points, moreover, were addressed by both Gregg's trial counsel and the prosecution in the course of Ms. S.'s testimony. Following cross-examination (wherein the defense attacked her true motives for reaccessing the site) Ms. S. corrected her prior testimony, conceding that she had "respond[ed] to ... messages" that had been sent to her after the incident with Gregg and that there were "a few times that [she] had to go in to pull [her] own profile for the police or [Gregg's] profile off for the police." The prosecutor then asked Ms. S. to clarify that she "never [again] subscribed to [LDSSO]." On recross, defense counsel again questioned Ms. S.'s motives for accessing LDSSO and then cast doubt on whether she even "had anxiety attacks," noting that they'd never been mentioned in "any medical reports" or in her "own report." Thus, defense counsel did attempt to contradict Ms. S.'s testimony with the available evidence. The majority's conclusion that the contents of Ms. S.'s post-incident LDSSO e-mails could or would have contradicted her testimony more effectively than the evidence and argument actually presented is the very definition of post hoc second-guessing by an appellate court.
. The court gets it exactly backwards in my view in asserting that the online messages "would have directly refuted [Ms. S.'s] claim that she swore off the dating service." Supra 128. The messages confirmed that element of her story, so it was only without them that counsel could plausibly insinuate that the seventeen logons refuted this point.
. See State v. Myers, 606 P.2d 250, 252 (Utah 1980) (rejecting the notion "that if a woman is 'friendly' in accepting the proffered hospitality of a man ... and engages in 'necking,' [kissing and hugging] and that this persists over a period of time, she loses her right to protest against further advances the man may desire to force upon her; and thereby subjects herself to such advances and should be deemed to consent to intercourse if he, but not she, so desires" and holding instead that "[nJeither this Court nor the law will justify any such conclusion"); see also State v. Herzog, 610 P.2d 1281, 1283 (Utah 1980) ("One does not surrender the right to refuse sexual intimacy by the act of accepting another's company, or even by encouraging and accepting romantic overtures.").
. The majority characterizes Ms. S.'s testimony about the events immediately preceding intercourse as a "sudden attack" occurring within "a matter of minutes," and that once she said no "several times," Gregg "immediately grabbed her ankles and commenced non-consensual intercourse." Supra 138 (emphasis added). Ms. S. never offered these kinds of time-related qualifiers, however. The majority seems to borrow this "sudden" characterization from the prosecutor, who in his closing represented that soon after the first call, Gregg "commenced immediately to place [Ms. S.] down on the couch and start that process." Supra 138. But this portrayal by the prosecution in closing cannot implicate deficient representation by Gregg's counsel, especially if his inadequacy was in failing to introduce evidence that could rebut the prosecution's closing argument. We can hardly fault defense counsel for failing to perfectly anticipate the kind of argument and characterization of events the prosecution was going to make in closing.
. This statement directly contradicts the majority's characterization of Ms. S.'s testimony. The majority states that Ms. S. "suggested that non-consensual intercourse occurred suddenly after" Matt's first phone call, supra 141, but even Ms. S. admitted that they began to engage in more consensual foreplay following the call.
. This time frame for the rape-commencing some time after the first phone call and being interrupted by the second-is consistent with Gregg's account as well. Thus, the only possible inference to be drawn between a few brief "moments" and "47 minutes" is how long their conversations and consensual foreplay lasted. As discussed above, however, a woman does not waive her right to say "no," regardless of the timing and extent of consensual foreplay. The question of timing is, therefore, immaterial to the inquiry whether Ms. S. consented to intercourse.
. Jury Instruction No. 20 stated, in full: "One does not surrender the right to refuse sexual intimacy by the act of being friendly and accepting the hospitality and company of another."