State v. Farnworth , 414 P.3d 1053 ( 2018 )

2018 UT App 23THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CASEY FARNWORTH,
Appellant.
Opinion
No. 20160036-CA
Filed February 1, 2018
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 131909921
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes, Jennifer Paisner Williams, and John J.
Nielsen, Attorneys for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN concurred.
HAGEN, Judge:
¶1 A motorcyclist and his eleven-year-old daughter were
riding along Wasatch Boulevard in Salt Lake City when they
became embroiled in a road rage incident with another driver,
Casey Farnworth. The altercation ended when the motorcyclist
and his daughter were thrown from the motorcycle, and
Farnworth sped off toward the interstate. Fearing that
Farnworth would get away, and despite his attempts to
outmaneuver them, two couples independently followed
Farnworth and called 911 with his license plate number.
¶2 Farnworth was subsequently charged with aggravated
assault, child abuse, failure to remain at an accident involving
injury, and reckless driving. At trial, over Farnworth’s objection,
State v. Farnworth
the court admitted the audio recording of a 911 call made by a
nontestifying witness, who had pursued Farnworth after the
accident. Additionally, the court instructed the jury on the
State’s alternative theories of reckless driving to which
Farnworth’s counsel did not object.
¶3 The jury convicted Farnworth of aggravated assault,
reckless driving, and failure to remain at an accident involving
injury but acquitted him of child abuse. We affirm Farnworth’s
convictions.
BACKGROUND 1
The Accident
¶4 A motorcyclist and his eleven-year old daughter were
traveling along Wasatch Boulevard when an SUV—driven by
Farnworth—merged into the motorcyclist’s lane, forcing the
motorcycle into the left-hand turn lane. As both vehicles came to
a red light, the motorcyclist pulled up to the driver’s side of
Farnworth’s vehicle and gestured with his arm as if to say “what
the heck, what’s going on?” and to show Farnworth that they
were there. In response, Farnworth stuck his hand out the
window, flipped off the motorcyclist, and screamed, “I’m going
to f’ing kill you.”
¶5 When the light turned green both vehicles sped off, and
Farnworth began swerving into the motorcycle apparently
attempting to push it into oncoming traffic. The motorcyclist
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Bravo, 2015 UT App 17, ¶ 2 n.1, 343 P.3d 306(citation and internal quotation marks omitted).
20160036-CA 2 2018 UT App 23State v. Farnworth
tried to avoid colliding with Farnworth’s SUV, but after the third
swerve, “either the motorcyclist’s tire made contact with the
back bumper or he just went down.” The motorcyclist and his
daughter were both thrown from the motorcycle, and Farnworth
continued on, running a red light to accelerate onto the
interstate.
¶6 Farnworth was subsequently charged with aggravated
assault resulting in serious bodily injury, a second degree felony,
see Utah Code Ann. § 76-5-103(2)(b) (LexisNexis 2012); 2 child
abuse, a second degree felony, see id. § 76-5-109(2)(a) (Supp.
2017); failure to remain at an accident involving injury, a class A
misdemeanor, see id. § 41-6a-401.3 (2014); and reckless driving, a
class B misdemeanor, see id. § 41-6a-528.
The Trial
¶7 The State called several witnesses to testify, including
three disinterested eyewitnesses (First Witness, Second Witness,
and Third Witness) and a police officer.
¶8 On the day of the accident, First Witness was driving
northbound in the right lane of Wasatch Boulevard when she
noticed a motorcycle with two riders driving alongside her in
the left lane. First Witness testified that, as traffic slowed, she
saw an SUV weaving in and out of the two lanes, eventually
“pushing [the] motorcyclist out towards the median.” When the
SUV merged back into the right lane, First Witness saw the
motorcyclist “raise[] his hand a little bit” as if to gesture “what
the heck.” Farnworth responded by “flipping [the motorcyclist]
off,” yelling out the window, and swerving “towards where the
motorcyclist was three times.” First Witness testified that it
2. The relevant statutory provision has been amended since the
time of the offenses. We therefore refer to the version of the Utah
Code in effect in 2013.
20160036-CA 3 2018 UT App 23State v. Farnworth
looked like the motorcyclist was driving in the median to avoid
contact. But after Farnworth swerved toward the motorcyclist a
third time, the motorcycle crashed. Because First Witness was in
the right lane, she was unable to see whether the motorcycle’s
front tire made contact with Farnworth’s rear bumper or if the
motorcycle just went down. After First Witness pulled over to
aid the motorcyclist and his daughter, she noticed that
Farnworth had driven off.
¶9 Second Witness and Third Witness, a married couple,
were driving along Wasatch Boulevard together when Second
Witness looked in his rear view mirror and noticed Farnworth
driving erratically—“going up towards the car in front,
switching lanes . . . working his way up to the front.” According
to Second Witness, while Farnworth was changing lanes, he
nearly hit the motorcycle, forcing it into the left turn lane. Then,
when both vehicles reached a stoplight, the motorcyclist drove
up to the driver’s side of the SUV and appeared to confront
Farnworth. Although Second Witness could not hear what the
motorcyclist and Farnworth were saying, he testified that “it
looked like they were going back and forth.” When the light
turned green, both vehicles sped off, and Farnworth veered at
the motorcycle three times, “pushing them further and further
into oncoming traffic.” The motorcyclist tried to get out of the
way, but eventually he was forced to lay the motorcycle down.
Second Witness was also driving in the right lane, so he was
unable to see whether the SUV hit the motorcycle.
¶10 Third Witness did not see the initial altercation between
Farnworth and the motorcyclist, but her husband, Second
Witness, drew her attention to the vehicles after they sped off
through the green light. Third Witness testified that at that point,
“the SUV was trying to swerve and either sideswipe the
motorcycle or just push it into oncoming traffic.” According to
Third Witness, the motorcyclist tried braking to get out of the
way, but there were also cars behind the motorcycle. After the
SUV swerved “four or five” times, the motorcyclist was forced to
20160036-CA 4 2018 UT App 23State v. Farnworth
“lay down” the bike, and he and his daughter were thrown into
the center turn lane. Third Witness was also uncertain whether
the vehicles made contact.
¶11 When the motorcycle went down, Second Witness and
Third Witness noticed that the SUV had run a red light and
continued driving away from the scene of the accident. Because
they did not want Farnworth to get away, they pursued him
onto the interstate so they could write down the SUV’s license
plate number and report it to police. Both witnesses testified that
Farnworth was speeding, but Second Witness specified that
Farnworth was driving on the interstate in “excess of 90 to 100
miles an hour.” The couple also followed Farnworth off of the
interstate and into a neighborhood where Farnworth drove
between 45 and 60 miles per hour and ran two stop signs.
¶12 Over Farnworth’s objection, the State also introduced a
911 call made by an occupant in another vehicle that had
followed Farnworth to obtain his license plate number. On the
recording, the caller explained to dispatch that she had
witnessed Farnworth flip off the motorcyclist and his daughter,
impact with them, force them off the road, and continue driving.
She also indicated that she had observed damage to the SUV’s
left rear bumper where the SUV had impacted with the
motorcycle.
¶13 Dispatch notified a police officer of the accident and
provided him with the SUV’s license plate number, which the
officer determined was registered to Farnworth. That night, the
officer went to Farnworth’s residence and noticed an SUV
backed into the carport. The officer verified the license plate
number, inspected the SUV, and saw that it had several dents
and scratches on the driver’s side rear bumper. The officer
testified that the paint appeared to be freshly damaged because
it was still flaking. He also observed what appeared to be a tire
mark underneath the same side of the SUV, which according to
20160036-CA 5 2018 UT App 23State v. Farnworth
the officer, was low enough to be consistent with a motorcycle
collision.
¶14 The officer then spoke with Farnworth, who admitted
both that he was driving the SUV during the altercation and that
he had seen the motorcycle crash. But when questioned further,
Farnworth told the officer that “he did not feel the motorcycle
crash into his vehicle at any point and [he] did not believe the
motorcycle had hit his vehicle.”
¶15 Farnworth called two witnesses to testify: his wife and
another motorist (Defense Witness) who had been driving in the
left lane directly behind Farnworth and the motorcyclist.
¶16 On direct examination, Farnworth’s wife, who was a
passenger in the SUV, admitted that she “did not see too much
of anything” because she had “made it a point to try not [to]
make eye contact or be engaging.” Nevertheless, she testified
that, as they came to a stoplight, she saw through her peripheral
vision that the motorcyclist drove into the left turn lane and
twice flipped off her husband. She further testified that
Farnworth yelled, “Get the hell away from me. What the hell are
you doing?” and gave the motorcyclist “the bird.” When the
light turned green, the motorcyclist continued straight, driving
close enough to Farnworth’s SUV that his wife was nervous the
motorcyclist would damage the SUV’s side mirror. According to
his wife, Farnworth tried speeding up and then slowing down to
let the motorcycle pass, but the motorcyclist “mimicked [his]
every move.” On at least one occasion, she noticed that their
SUV began to drift out of their lane, and she testified that she
brought it to Farnworth’s attention so he could immediately
correct himself. In what Farnworth’s wife characterized as a final
attempt to evade the situation, Farnworth drove through a light
as it was changing. His wife testified that, at that point,
Farnworth looked in his rearview mirror and saw the
motorcyclist and his daughter standing in the middle of the
road, but Farnworth told his wife that he was unsure whether
20160036-CA 6 2018 UT App 23State v. Farnworth
the motorcyclist had intentionally laid his bike down.
Farnworth’s wife personally did not believe they were
responsible for the accident, because she did not see, feel, or hear
any impact. And she testified that the damage on the SUV’s rear
bumper was a preexisting dent that had been poorly repaired
with auto body tape and Bondo.
¶17 Defense Witness testified that on the day of the accident,
she had been stopped at a red light in the left lane of Wasatch
Boulevard when she saw a motorcycle drive past her in the left
turn lane and stop alongside the SUV where it then appeared
“[t]here was some kind of road rage.” Although Defense Witness
could not hear what Farnworth and the motorcyclist were
saying, she testified that their gestures indicated that they were
involved in an altercation. According to Defense Witness, when
the light turned green, both vehicles sped off, and she noticed
that the motorcyclist went straight even though he was in the
turning lane. At that point, both vehicles began “swerving
towards each other, in and out” before they eventually collided.
Defense Witness acknowledged that she had provided a written
statement to the police immediately after the accident, stating
that “the driver [of the SUV] kept swerving toward the
motorcycle” and “[o]n the third swerve the driver hit the
motorcycle.” Defense Witness testified that her written statement
was accurate and that “those statements are still true.”
¶18 At the close of the evidence, the court instructed the jury
that Farnworth could be convicted of reckless driving if the State
proved either that he acted in a willful or wanton disregard for
the safety of persons or property or that he committed three or
more traffic violations within three miles. Farnworth’s attorney
did not object to submitting these alternative theories to the jury.
¶19 The jury deliberated for eleven hours during which time
the jurors submitted multiple questions to the trial court,
indicating on at least one occasion that they may be unable to
reach a unanimous verdict. During deliberation, the jury also
20160036-CA 7 2018 UT App 23State v. Farnworth
requested the audio recording of the 911 call, which remained in
the jury room for approximately forty-five minutes. Ultimately,
Farnworth was convicted of aggravated assault, failure to
remain at an accident involving injury, and reckless driving. The
jury acquitted Farnworth of the one count of child abuse.
¶20 Farnworth filed a post-trial motion to arrest judgment, see
Utah R. Crim. P. 23, arguing the trial court should have
sustained his objection to the admission of the 911 call. The trial
court denied Farnworth’s motion and explained that, “even if
the evidence should not have been admitted, [the] harm has not
been show[n] to merit . . . arresting judgment in this case.”
Farnworth appeals.
ISSUES
¶21 Farnworth raises two issues on appeal. First, he contends
that the 911 call was testimonial hearsay and that its admission
at trial violated both the Confrontation Clause of the United
States Constitution and the Utah Rules of Evidence on hearsay.
¶22 Second, Farnworth contends that he received ineffective
assistance of counsel because trial counsel should have
(1) objected to submitting the reckless driving count to the jury
on the State’s alternative theory that Farnworth committed three
traffic violations within three miles and (2) moved the court to
merge the reckless driving conviction with the aggravated
assault conviction.
ANALYSIS
I. Any Error in the Admission of the 911 Call Was Harmless
Beyond a Reasonable Doubt
¶23 Farnworth contends the trial court erroneously admitted
the 911 call. Specifically, Farnworth argues the 911 call was
20160036-CA 8 2018 UT App 23State v. Farnworth
inadmissible because (1) its admission violated his Sixth
Amendment right to confront witnesses against him and (2) the
recording constituted hearsay not within a recognized exception
under the Utah Rules of Evidence. Because we conclude that any
error in admitting the 911 call was harmless beyond a reasonable
doubt, we do not reach either the constitutional or the
evidentiary question.
¶24 Ordinarily, rule 103 of the Utah Rules of Evidence
determines the consequences of erroneous evidentiary rulings.
See Utah R. Evid. 103(a) (“A party may claim error in a ruling to
admit or exclude evidence only if the error affects a substantial
right of the party . . . .”). However, “where the error in question
amounts to a violation of a defendant’s right of confrontation
guaranteed by the sixth amendment to the United States
Constitution, its harmfulness is to be judged by a higher
standard, i.e., reversal is required unless the error is harmless
beyond a reasonable doubt.” State v. Hackford, 737 P.2d 200, 204
(Utah 1987). Under this standard, “the burden shifts to the State
to demonstrate that the error was harmless beyond a reasonable
doubt.” 3 State v. Sanchez, 2016 UT App 189, ¶ 33, 380 P.3d 375,
cert. granted, 390 P.3d 719 (Utah 2017) and 390 P.3d 727 (Utah
2017). If the State meets this heightened standard of
harmlessness, it logically follows that it also meets the lower
standard applied to non-constitutional errors.
¶25 Here, even if admission of the 911 call violated
Farnworth’s confrontation rights, reversal is not required,
because any error was harmless beyond a reasonable doubt. To
3. The burden shifts to the State to demonstrate that the error is
harmless beyond a reasonable doubt only when, as here, the
defendant has preserved the federal constitutional claim at trial.
See State v. Bond, 2015 UT 88, ¶ 35, 361 P.3d 104 (holding that
“the defendant retains the burden to show harm for unpreserved
federal constitutional claims under plain error”).
20160036-CA 9 2018 UT App 23State v. Farnworth
determine whether the alleged error was harmless beyond a
reasonable doubt, we consider several factors, including:
the importance of the witness’[s] testimony in the
prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence
[corroborating] or contradicting the testimony of
the witness on material points, the extent of cross-
examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case.
State v. Villareal, 889 P.2d 419, 425–26 (Utah 1995).
¶26 To evaluate the significance of the 911 call in the context
of the overall case, it is helpful to identify the discrete factual
assertions made in the recording. Besides providing a
description of Farnworth’s SUV, the nontestifying 911 caller
stated that:
• Farnworth flipped off the motorcyclist;
• The SUV got in front of the motorcycle, braked, and then
hit the motorcycle;
• The SUV forced the motorcycle off of the road and into
oncoming traffic;
• The SUV sustained damage to the left rear bumper where
it collided with the motorcycle; and
• The SUV kept going.
Because each of these factual statements were either unnecessary
to prove the elements of the crimes charged or were supported
by other evidence at trial, we conclude that admission of the 911
call was harmless beyond a reasonable doubt. Below, we outline
additional evidence that supports Farnworth’s convictions for
20160036-CA 10 2018 UT App 23State v. Farnworth
aggravated assault and failure to remain at an accident involving
injury.
A. Aggravated Assault
¶27 First, Farnworth argues that admission of the 911 call was
not harmless beyond a reasonable doubt because, other than the
victims’ testimony, it was the only evidence proving that
Farnworth’s SUV made contact with the motorcycle.
¶28 To convict Farnworth of second degree aggravated
assault, the State had to prove that he “intentionally, knowingly
or recklessly” used a dangerous weapon to commit an assault
that resulted in serious bodily injury. See Utah Code Ann.
§ 76-5-103(2)(b) (LexisNexis 2012) (aggravated assault); see also
id. § 76-5-102 (assault). Farnworth does not dispute that his SUV
qualifies as a “dangerous weapon” under Utah Code section
76-1-601 or that the motorcyclist and his daughter sustained
“serious bodily injury.” Instead, he disputes whether he
intentionally, knowingly, or recklessly committed an assault.
¶29 Farnworth argues that none of the State’s disinterested
witnesses could see whether the SUV and motorcycle made
contact from their relative positions. In response, the State
contends that it was unnecessary to prove that the SUV actually
hit the motorcycle to convict Farnworth of aggravated assault.
We agree with the State.
¶30 At the time of the accident, Utah Code section 76-5-102
provided three definitions of assault 4 —notably, none of the
4. The Utah Code defined assault as:
(a) an attempt, with unlawful force or violence, to
do bodily injury to another;
(continued…)
20160036-CA 11 2018 UT App 23State v. Farnworth
definitions required the defendant to make physical contact with
the victim. The jury could therefore convict Farnworth of second
degree aggravated assault without finding that his SUV hit the
motorcycle. Consequently, the 911 caller’s statement that the
SUV impacted with the motorcycle was unnecessary to the jury’s
determination of Farnworth’s guilt on this count, and we
conclude that its admission was harmless beyond a reasonable
doubt.
¶31 Moreover, all of the information provided by the 911
caller was cumulative. First, the 911 caller identified Farnworth
as the aggressor, explaining that he cut off the motorcycle,
flipped off the motorcyclist, and eventually forced the
motorcycle off of the road into oncoming traffic. The State
presented corroborating testimony from the motorcyclist, his
daughter, and three disinterested witnesses—all of whom
identified Farnworth as the aggressor. These witnesses testified
that Farnworth swerved toward the motorcycle between three
and five times. And while Farnworth contends that “[t]he
motorcyclist and his daughter had an incentive to minimize their
fault in the incident,” the State’s three disinterested witnesses
consistently testified that the motorcyclist appeared to be
defensively maneuvering to get out the way but was impeded by
cars behind him. Additionally, First Witness testified that, prior
to swerving, she saw Farnworth yelling out his window and
(…continued)
(b) a threat, accompanied by a show of immediate
force or violence, to do bodily injury to another;
or
(c) an act, committed with unlawful force or
violence, that causes bodily injury to another or
creates substantial risk of bodily injury to
another.
Utah Code Ann. § 76-5-102(1)(a)–(c) (LexisNexis 2012).
20160036-CA 12 2018 UT App 23State v. Farnworth
flipping off the motorcyclist. Even the statement that the SUV hit
the motorcycle—a fact that the jury was not required to find—
was cumulative given the testimony of Defense Witness and
both victims that the SUV hit the motorcycle on its third swerve
and the investigating officer’s observation of damage to the
SUV’s bumper.
¶32 Farnworth’s wife was the only witness to testify that the
motorcyclist was the aggressor. But even she admitted that
Farnworth had made obscene gestures and yelled at the
motorcyclist, “drifted” into the motorcyclist’s lane at least once,
and sped through a changing light even though he saw the
motorcyclist and his daughter standing in the middle of road
with the motorcycle at their feet. Defense Witness was even less
helpful, testifying only that both vehicles had been swerving.
¶33 The evidence overwhelmingly established that Farnworth
was the aggressor and that he assaulted the motorcyclist and his
daughter by swerving toward them with his SUV and forcing
them off the road. Even if we assume the 911 call was the best
evidence that physical contact occurred, the State was not
required to prove that the vehicles collided to carry its burden of
proof on aggravated assault. Moreover, regarding this and other
relevant facts, the 911 call was merely cumulative. We thus
conclude that admission of the 911 call was not reversible error
with regard to the aggravated assault conviction.
B. Failure to Remain at an Accident Involving Injury
¶34 Second, Farnworth contends that admission of the 911 call
was not harmless beyond a reasonable doubt, because it was
critical to prove he had “reason to believe that [he] may have
been involved in an accident resulting in injury to a person.”
Utah Code Ann. § 41-6a-401.3(2)(a) (LexisNexis 2014). At trial, it
was undisputed that Farnworth was driving the SUV during the
incident, that he did not remain at the scene when he saw the
motorcycle go down, and that the motorcyclists were injured.
20160036-CA 13 2018 UT App 23State v. Farnworth
The sole issue for the jury on this count pertained to Farnworth’s
knowledge of and involvement in the accident. See id.
¶35 Farnworth argues that without the 911 call, there was a
reasonable probability that he would have been acquitted on this
count because the jury seemed to struggle with the conflicting
evidence. In support of his argument, Farnworth points out that
the jury deliberated for eleven hours; requested a copy of the 911
call recording; and asked the court for a definition of “involved,”
as it related to this count. In addition, because the prosecutor
told the jury in closing argument that the 911 call was “the most
direct, freshest evidence you can listen to,” Farnworth claims
that it was the State’s “most damning piece of evidence.”
¶36 Where a prosecutor has touted the importance of
erroneously admitted evidence, we should be hesitant to find its
admission harmless, let alone harmless beyond a reasonable
doubt. See State v. Ellis, 2018 UT 02, ¶ 55 (Himonas, J.,
concurring). But despite the prosecutor’s inflated assessment of
the value of the 911 call, the caller’s statements were entirely
cumulative. While Farnworth argues that none of the State’s
disinterested witnesses could see whether the motorcycle and
the SUV made contact, Defense Witness and both victims
testified to this fact, which was corroborated by the officer’s
observation of damage to the SUV’s bumper. More importantly,
whether an impact occurred was immaterial. Nothing in the
statute suggests that a driver’s responsibility to remain at the
scene of an accident is limited to accidents in which a collision
occurs. See generally Utah Code Ann. § 41-6a-401.3.
¶37 Regardless of whether the vehicles actually made contact,
the overwhelming evidence established that Farnworth had
reason to believe he may have been involved in an accident.
“‘Reason to believe’ means information from which a reasonable
person would believe that the person may have been involved in
an accident.” Id. § 41-6a-401.3(1)(a). Farnworth and his wife
admitted that Farnworth had been involved in an altercation
20160036-CA 14 2018 UT App 23State v. Farnworth
with the motorcyclist, had entered the motorcycle’s lane, and
was aware that the motorcycle had crashed. His wife testified
that Farnworth had looked into his rearview mirror and noticed
that the motorcyclist and his daughter were standing in the
middle of the road with the motorcycle at their feet. Under these
circumstances, Farnworth had reason to believe that he may
have caused or contributed to the accident and thus should have
remained at the scene.
¶38 Because these critical facts were undisputed, we conclude
that any error in admitting the 911 call was harmless beyond a
reasonable doubt in connection with the conviction for failure to
remain at an accident involving injury.
II. Ineffective Assistance of Counsel
¶39 Farnworth contends that defense counsel rendered
constitutionally ineffective assistance by failing to (1) object to
the instruction on the State’s allegedly unsupported theory of
reckless driving and (2) move for merger of the reckless driving
and aggravated assault convictions. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Crespo, 2017 UT App 219, ¶ 22 (citation
and internal quotation marks omitted), petition for cert. filed, Nov.
27, 2017 (No. 20170920).
¶40 The Sixth Amendment guarantees a defendant the right to
effective assistance of counsel. See U.S. Const. amend. VI; see also
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). “To prevail
on a claim of ineffective assistance of counsel, a defendant must
show (1) ‘that counsel’s performance was deficient,’ and (2) ‘that
the deficient performance prejudiced the defense.’” State v.
Calvert, 2017 UT App 212, ¶ 21, 407 P.3d 1098 (quoting Strickland
v. Washington, 466 U.S. 668, 687 (1984)). Failure to prove either
20160036-CA 15 2018 UT App 23State v. Farnworth
element defeats an ineffective assistance of counsel claim. See
Strickland, 446 U.S. at 697.
¶41 Under Strickland’s deficiency prong, “the defendant must
show that counsel’s representation fell below an objective
standard of reasonableness,” as measured against “prevailing
professional norms.” Id. at 688. In reviewing counsel’s
performance, “we recognize the variety of circumstances faced
by defense counsel and the range of legitimate decisions
regarding how best to represent a criminal defendant.” Zaragoza
v. State, 2017 UT App 215, ¶ 28, 407 P.3d 1122 (citation and
internal quotation marks omitted). The defendant must therefore
“rebut the strong presumption that under the circumstances, the
challenged action might be considered sound trial strategy.”
State v. Bond, 2015 UT 88, ¶ 62, 361 P.3d 104 (citation and internal
quotation marks omitted). To prove prejudice, “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.” Strickland, 466 U.S. at 694.
A. Failure to Object to Reckless Driving Instruction
¶42 First, Farnworth contends that his trial counsel performed
deficiently when she failed to object to instructing the jury on the
State’s alternative theories of reckless driving. Under Utah law, a
person may be convicted of reckless driving if he or she operates
a vehicle either “in a willful or wanton disregard for the safety of
persons or property” or “while committing three or more
moving traffic violations . . . in a series of acts occurring within a
single continuous period of driving covering three miles or
less in total distance.” Utah Code Ann. § 41-6a-528(1)(a)–(b)
(LexisNexis 2014). Farnworth argues that the State’s theory that
he committed three traffic code violations within three miles was
unsupported at trial because the State never presented evidence
on the distance that Farnworth traveled or provided instruction
on Utah’s Traffic Code.
20160036-CA 16 2018 UT App 23State v. Farnworth
¶43 “A party is entitled to have the jury instructed on its
theory of the case if competent evidence is presented at trial to
support its theory . . . .” State v. Marchet, 2012 UT App 197, ¶ 17,
284 P.3d 668 (citation and internal quotation marks omitted).
Here, we conclude that the State presented sufficient, competent
evidence to support giving a reckless driving instruction on the
theory that Farnworth committed three traffic violations within
three miles. Because the State was entitled to the instruction, it
would have been futile to object. Therefore, trial counsel’s
performance was not deficient. See State v. Alzaga, 2015 UT App
133, ¶ 73, 352 P.3d 107 (“[F]ailure of counsel to make . . .
objections which would be futile if raised does not constitute
ineffective assistance.” (citation and internal quotation marks
omitted)).
¶44 Although the State did not present direct evidence of the
relevant speed limits or the distance driven when the alleged
traffic violations occurred, the jury could have reasonably
inferred that Farnworth committed three traffic violations within
three miles. See Salt Lake City v. Howe, 2016 UT App 219, ¶ 11, 387
P.3d 562 (“[T]he jury may draw reasonable inferences from
direct or circumstantial evidence.” (citation and internal
quotation marks omitted)). “A reasonable inference is a
conclusion reached by considering other facts and deducing a
logical consequence from them.” State v. Cristobal, 2010 UT App
228, ¶ 16, 238 P.3d 1096 (citation and internal quotation marks
omitted).
¶45 Second Witness and Third Witness testified that they
followed Farnworth onto the interstate at the 6200 South
entrance ramp. According to Second Witness, Farnworth was
driving on the interstate at “very high speeds” in “excess of 90 to
100 miles an hour” until he reached the combined exit for 3900
South and 3300 South. Farnworth turned left on 3900 South and
then pulled into a neighborhood when it appeared that
Farnworth noticed he was being followed. Both witnesses
testified that Farnworth then began speeding through the
20160036-CA 17 2018 UT App 23State v. Farnworth
neighborhood in an apparent attempt to lose them. Second
Witness estimated that Farnworth was driving “in excess of 45,
50 miles an hour,” and Third Witness testified that he was
driving “up to 60 miles per hour.” Second Witness also testified
that Farnworth ran two stop signs in the neighborhood—“a stop
sign at a point to turn left to go back towards 3900 South” and
“the 3900 South stop sign.”
¶46 Farnworth argues that there was insufficient evidence on
which the jury could conclude that the alleged traffic violation
on the interstate occurred within three miles of the alleged traffic
violations within the neighborhood. But to convict Farnworth of
reckless driving under this theory, it was unnecessary for the
jury to rely on the alleged speeding on the interstate. Instead, the
jury could have relied solely on the traffic violations that
Farnworth committed in the neighborhood. Specifically, the jury
could have found that Farnworth (1) drove between 45 and 60
miles per hour through the neighborhood, (2) ran a stop sign “to
turn left to go back towards 3900 South,” and (3) “ran the 3900
South stop sign” to exit the neighborhood. Based on the
testimony of the Second Witness and Third Witness that
Farnworth both entered and exited the neighborhood from 3900
South, it would have been reasonable for the jury to infer that
these three traffic violations took place within a span of three
miles or less. Because there was sufficient evidence to support a
jury verdict on this basis, any objection would have been futile.
¶47 Farnworth also argues that his trial counsel should have
objected to submitting this theory to the jury because the State
“did not introduce the posted speed limit into evidence and
never provided evidence or instruction on the content of the
traffic code.” As an initial matter, there was sufficient evidence
in the record that Farnworth was traveling over the posted speed
limit in the neighborhood. Third Witness testified that
Farnworth was driving “up to 60 miles per hour,” which “was
well over the speed limit.” As for the lack of instructions on the
traffic code, had defense counsel objected on this basis, the trial
20160036-CA 18 2018 UT App 23State v. Farnworth
court would have presumably instructed the jury that speeding
and running a stop sign are, in fact, “moving traffic violations
under Title 41, Chapter 6a, Traffic Code.” See Utah Code Ann.
§ 41-6a-528(1)(b) (LexisNexis 2014). There is no “reasonable
probability . . . that the result of the proceeding would have been
different” because the theory still would have been submitted to
the jury. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
¶48 We thus conclude defense counsel was not ineffective by
failing to object to instruction on the State’s alternative theory of
reckless driving.
B. Merger
¶49 Second, Farnworth contends that trial counsel provided
ineffective assistance by failing to move for merger of
Farnworth’s reckless driving and aggravated assault convictions.
Specifically, Farnworth asserts that the jury could have only
convicted him of reckless driving under the theory that he
willfully or wantonly disregarded the safety of others and that
the only facts that could have supported this theory were the
same facts supporting his conviction for aggravated assault.
Farnworth argues that the same alleged act of swerving at the
motorcycle was the basis for both his reckless driving and
aggravated assault conviction. Because reckless driving was
established by proof of the same or less than all the facts
required to prove aggravated assault, Farnworth contends, the
convictions should have merged. We disagree.
¶50 Under Utah Code section 76-1-402, a “defendant may be
convicted of an offense included in the offense charged but may
not be convicted of both the offense charged and the included
offense.” State v. Calvert, 2017 UT App 212, ¶ 24, 407 P.3d 1098(citation and internal quotation marks omitted). An offense
qualifies as a lesser included offense when “[i]t is established by
proof of the same or less than all the facts required to establish
the commission of the offense charged.” Utah Code Ann.
20160036-CA 19 2018 UT App 23State v. Farnworth
§ 76-1-402(3)(a) (LexisNexis 2012). However, “if the convictions
rely on ‘materially different acts,’ then one crime will not be a
lesser included offense of another.” State v. Garrido, 2013 UT App
245, ¶ 31, 314 P.3d 1014.
¶51 We have already rejected Farnworth’s argument that
there was insufficient evidence to submit the reckless driving
count to the jury on the alternative theory that Farnworth
committed three traffic violations within three miles. Farnworth
does not appear to dispute that, if the jury convicted on that
theory, the convictions for reckless driving and aggravated
assault would be based on distinct conduct. Even assuming that
the jury convicted under the willful and wanton disregard
theory, however, Farnworth cannot establish that “the exact
same conduct” supported his convictions for aggravated assault
and reckless driving.
¶52 The State presented evidence that Farnworth intentionally
swerved at the motorcycle twice, forcing the motorcyclist and his
daughter into oncoming traffic. This conduct tended to prove
that Farnworth operated his vehicle “in willful or wanton
disregard for the safety of persons or property.” See Utah Code
Ann. § 41-6a-528(1)(a) (LexisNexis 2014). However, the State also
presented evidence that Farnworth swerved a third time and
either hit the motorcycle or forced the motorcyclist to lay the
bike down. It was this final swerve that ultimately caused the
motorcyclist and his daughter to sustain “serious bodily injury.”
See id. § 76-5-103(2)(b) (2012). Consequently, under the facts of
this case, because the two crimes are such that the greater can
“be committed without necessarily having committed the lesser”
they do not stand in the relationship of greater and lesser
offenses. See State v. Hill, 674 P.2d 96, 97 (Utah 1983) (citation and
internal quotation marks omitted).
¶53 We conclude that Farnworth’s trial counsel did not
perform deficiently by failing to move for merger because, under
either theory, the offense of reckless driving was not based on
20160036-CA 20 2018 UT App 23State v. Farnworth
the same facts as aggravated assault. Accordingly, such a motion
would have been futile. See State v. Alzaga, 2015 UT App 133,
¶ 73, 352 P.3d 107 (“[F]ailure of counsel to make motions . . .
which would be futile if raised does not constitute ineffective
assistance.” (citation and internal quotation marks omitted)).
CONCLUSION
¶54 We conclude that any error in admitting the 911 call was
harmless beyond a reasonable doubt because the caller’s
statements were cumulative as to the unchallenged body of
evidence necessary to prove the elements of aggravated assault
and failure to remain at an accident involving injury. We also
conclude that Farnworth did not receive ineffective assistance of
counsel, because an objection to the State’s alternative theory of
reckless driving would not have been sustained and because
Farnworth was not entitled to merger of his reckless driving and
aggravated assault convictions.
¶55 Affirmed.
20160036-CA 21 2018 UT App 23