STATE OF UTAH, Appellee, v. CASEY FARNWORTH, Appellant.
No. 20160036-CA
THE UTAH COURT OF APPEALS
February 1, 2018
2018 UT App 23
JUDGE DIANA HAGEN аuthored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN concurred.
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
¶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 Farnwоrth 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,
¶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.
BACKGROUND1
The Accident
¶4 A motorcyclist and his eleven-year-old daughter were traveling along Wasatсh 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
¶6 Farnworth was subsequently charged with aggravated assault resulting in serious bodily injury, a second degree felony, see
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
¶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
¶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 Seсond 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
¶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 pоint 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 thеir 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
¶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
¶20 Farnworth filed a post-trial motion to arrest judgment, see
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
¶24 Ordinarily, rule 103 of the Utah Rules of Evidence determines the consequences of erroneous evidentiary rulings. See
¶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
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 tо 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
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 оr recklessly” used a dangerous weapon to commit an assault that resulted in serious bodily injury. See
¶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,
¶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 рresented 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
¶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.”
¶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 whеther 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
¶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.”
¶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
¶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 profеssional 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 сounsel 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.”
¶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
¶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
¶48 We thus conclude defense counsel was not ineffective by failing to object to instructiоn 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
¶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 аt 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
¶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
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.
DIANA HAGEN
JUDGE
Notes
(a) an attempt, with unlawful force or violence, to do bodily injury to another;
(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.