State v. Farnworth, 20160036-CA

414 P.3d 1053

STATE of Utah, Appellee,

v.Casey FARNWORTH, Appellant.

No. 20160036-CA

Court of Appeals of Utah.

Filed February 1, 2018

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.

Opinion

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, 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 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 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 "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 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 the motorcyclist had...