2018 UT App 23

THE 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, 
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20160036-CA 2 2018 UT App 23

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.

BACKGROUND1

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).
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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.
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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 
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20160036-CA 5 2018 UT App 23

“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 
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20160036-CA 6 2018 UT App 23

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 
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20160036-CA 7 2018 UT App 23

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 
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20160036-CA 8 2018 UT App 23

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 
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20160036-CA 9 2018 UT App 23

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”).
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20160036-CA 10 2018 UT App 23

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 crossexamination 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 
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20160036-CA 11 2018 UT App 23

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...)
State v. Farnworth

20160036-CA 12 2018 UT App 23

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).
State v. Farnworth

20160036-CA 13 2018 UT App 23

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.
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20160036-CA 14 2018 UT App 23

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 
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20160036-CA 15 2018 UT App 23

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
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20160036-CA 16 2018 UT App 23

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.
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20160036-CA 17 2018 UT App 23

¶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 
State v. Farnworth

20160036-CA 18 2018 UT App 23

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 
State v. Farnworth

20160036-CA 19 2018 UT App 23

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.
State v. Farnworth

20160036-CA 20 2018 UT App 23

§ 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 
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20160036-CA 21 2018 UT App 23

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.