State v. Farmer

2025 UT App 57

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
THERON NELSON FARMER,
Appellant.

Opinion
No. 20210913-CA
Filed April 24, 2025

Second District Court, Ogden Department
The Honorable Reuben J. Renstrom
No. 191900398

Emily Adams, Freyja Johnson,
Hannah Leavitt-Howell, and Jessica Hyde Holzer,
Attorneys for Appellant
Derek E. Brown and Hwa Sung Doucette,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Theron Nelson Farmer and Daniel Viegas-Gonzalez
(Viegas) visited the home of Farmer’s long-time friend (Friend)
under the guise of purchasing some Xanax from Friend. But
instead, they robbed Friend, and Viegas shot Friend and Friend’s
brother (Brother) multiple times—killing Brother. Following the
robbery, Farmer attempted to dispose of a phone and pair of socks
they had taken from Friend. For these actions, Farmer was later
convicted of aggravated murder, attempted aggravated murder,
aggravated robbery, and obstructing justice.
State v. Farmer

¶2 On appeal, Farmer first challenges the trial court’s decision
not to admit, under rule 804(b)(3) of the Utah Rules of Evidence,
two confessions allegedly made by Viegas indicating that Farmer
was unaware of his intention to rob Friend and that he had
threatened Farmer into assisting with the robbery. Next, Farmer
contends that the court erred in declining his request to include a
jury instruction on the affirmative defense of compulsion for the
obstructing justice charge. Lastly, Farmer argues that his trial
counsel (Counsel) was constitutionally ineffective for not
renewing the rule 804(b)(3) motion following the testimony of one
of the State’s witnesses and for not requesting a unanimity
instruction specifically for the obstructing justice charge. We
reject Farmer’s arguments and affirm his convictions.

BACKGROUND 1

Pre-crime Actions

¶3 Farmer had known Viegas for about three weeks when, in
February 2019, Viegas asked Farmer whether he “knew a place to
get Xanax.” Farmer texted Friend, from whom he occasionally
purchased drugs, to ask if he had any Xanax. While waiting for
Friend’s response, Farmer, Viegas, and two other friends, Isaac
and Christian, visited the home of two sisters. At trial, the sisters
and Christian each testified that the group began discussing
“going to hit a lick,” which they explained means to “go rob
somebody.” Christian additionally testified that two guns were
pulled out and shown to the group during this conversation. For

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.” Layton
City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d 587 (quotation
simplified).

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State v. Farmer

his part, Farmer denied that any such conversation took place or
that there was any brandishing of guns.

¶4 Another friend of Farmer’s, Kristina, who was not at the
gathering, testified at trial that earlier that day, Farmer had called
to tell her that “something big was going to happen” and
instructed her “to keep [her] eyes on the news.” She also testified
that about a month earlier, Farmer texted her that he was bored
and was going to rob someone. When Kristina protested, he
responded that he was “not going to” and was “just saying.”

¶5 Farmer was eventually able to get ahold of Friend, and the
two agreed to meet at Friend’s house to complete the Xanax
purchase. Farmer and Viegas then drove to Friend’s house.

The Robbery and Shootings

¶6 Friend testified at trial to the following events. As Friend
went to answer the door, he observed Brother watching television
in Brother’s bedroom. At the door, Farmer introduced Viegas to
Friend, and the three then sat down on the living room couch.
Before money changed hands, Viegas asked to use the bathroom,
and when he came back, Farmer asked to do the same. As soon as
Farmer entered the bathroom, Viegas stood up and shot Friend
twice—once in the chest and once in the left shoulder. Viegas
demanded, “Where’s the money?” Friend responded, “[I]t’s in the
room,” referring to his own bedroom. Friend then saw Viegas run
toward Brother’s bedroom, and he heard two gun shots. Friend
did not hear Brother make a sound. Friend also testified that
Brother remained in his bedroom and did not leave it at any point
before being shot.

¶7 In the meantime, as soon as Viegas began shooting,
Farmer, who did not appear at all surprised by the developing
situation, “bolted” into Friend’s bedroom and began
“ransacking” the room. Viegas returned to the living room from
Brother’s bedroom and resumed threatening Friend and

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State v. Farmer

demanding to know where the money was. Viegas shot at
Friend’s legs, missing once and striking his right leg twice. Viegas
then joined Farmer in Friend’s bedroom, where the two “ripp[ed]
everything apart.”

¶8 Friend took the opportunity in Viegas’s absence to dial 911
from his cellphone, which he then hid under the nearby coffee
table. But due to his extreme pain, he was unable to provide
responders with his address. In the recording of the 911 call, in
addition to yelling and screaming, Friend can be heard telling
Viegas to look in a bottom drawer. After a little over a minute,
Viegas returned to the living room, retrieved the phone from
under the table, and ended the call. “[S]pooked” by the call,
Farmer and Viegas were “trying to hurry up and just get out of
there.” Viegas threatened Friend and attempted to shoot him once
more, but his gun had apparently run out of ammunition.

¶9 Farmer then emerged from the bedroom wearing Friend’s
hat and jacket, and holding his jeans, a designer belt, and a pair of
red socks. The Xanax that had been in one of the bedroom drawers
was also later determined to be missing. As Farmer emerged from
the bedroom, Friend was “trying to act dead.” Farmer reached for
his own gun and said, “We can’t go back to the pen.” Viegas
replied, “No, he’s done. Let’s go. He’s done.” Farmer then
repeated, “We can’t go back to the pen, we can’t go back to the
pen,” and the two left.

¶10 Friend remained lying on the living room floor for the next
two and a half hours until his father came home and called the
police. Knowing that Brother was also at home, his father ran into
Brother’s bedroom where he found Brother dead on his bed. He
had been shot in the chest and the head.

Post-crime Actions

¶11 Following the robbery and shootings, Farmer and Viegas
rejoined their group of friends at the sisters’ house. On the drive

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State v. Farmer

there, Farmer threw two phones—one of which belonged to
Friend—out the car window. Police were later able to retrieve
Friend’s phone. 2

¶12 At the sisters’ house, Viegas spoke with Isaac in the kitchen
while Farmer went into a bedroom and removed drugs from his
backpack. The group then congregated in the kitchen, where
Viegas talked “about how he just shot people.” He also discussed
disposing of the gun with Isaac. 3 This conversation scared the
sisters, who then told Farmer, Viegas, and Isaac to leave the
house.

¶13 Viegas then dropped Farmer off at his mother’s house.
There, Farmer began ingesting Xanax and cocaine. Kristina, who
by then had already seen an online news article about the murder
and robbery, texted Farmer that she “really appreciate[d]” him
“[g]oing out of the way for” a mutual friend who had been killed
while committing a different robbery. Farmer replied, “I did it for
everyone.” Kristina understood Farmer to be referencing
Brother’s homicide. 4

¶14 Kristina and some friends picked Farmer up from his
mother’s house and took him to Kristina’s apartment. One of
those friends testified at trial that during the drive, Farmer told
her that he had decided to rob Friend because he and Friend had
argued and Farmer was angry, but that “it didn’t go as planned”

2. It is unclear from our review of the record why Viegas wanted
to dispose of the second phone, whose phone it was, and whether
police were also able to retrieve it.

3. There was testimony suggesting that the gun in question
belonged to Isaac’s stepfather.

4. Confusingly, at trial Kristina also stated that there was no
reason for Farmer to harm or kill Friend or Brother on the
deceased friend’s behalf.

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State v. Farmer

because Brother, who was not supposed to be there, was home
sick. Farmer told the friend that Viegas shot Friend and Brother,
and Farmer searched the house. He also told her that he instructed
Viegas to kill Friend so there would be no witnesses, but Viegas’s
gun had run out of ammunition. The friend also testified that
Farmer had on a prior occasion told her, “[W]e’re going to hit a
lick on multiple people,” although he did not identify any specific
targets.

¶15 At Kristina’s apartment, everyone ingested more drugs.
Farmer told the group about Viegas shooting Friend and Brother,
and that they had “ransacked” the house and taken everything
they could. He said that they had taken Friend’s phone so he
could not call 911 and tossed it out the window while they were
driving away. Farmer also said he was “pretty sure” Friend had
died.

¶16 Farmer showed Kristina a news report of the murder in
which he was pictured as a suspect and said, “[L]ook, that’s me.”
Kristina testified that Farmer was “proud” of the article and that
they discussed her acting as his alibi. They further discussed
including as part of his alibi that he was afraid of Viegas. Farmer
also asked another friend whether she liked his new jacket. She
responded that it was “very nice” and asked where he got it.
Farmer then showed her a news article about the robbery and
murder.

The Arrests

¶17 Police interviewed Friend, who fortunately survived the
shooting, at the hospital, and Friend identified Viegas and Farmer
as the perpetrators. The day after the robbery, with the help of a
teargas-deploying robot, police apprehended Farmer at Kristina’s
apartment. At the apartment, police also retrieved a pair of jeans
that Friend later identified as belonging to him.

20210913-CA 6 2025 UT App 57
State v. Farmer

¶18 Because Farmer was still under the influence of drugs at
the time of his arrest, police let him sober up in a holding cell at
the sheriff’s office. There, Farmer attempted to flush a pair of red
socks down the toilet, causing the toilet to overflow. When asked
why had had done it, Farmer responded that the socks “were
dirty” and that the jail had provided him a different pair. Based
on the location of certain holes on the socks, Friend was able to
later identify them as the pair that he had seen Farmer holding
and that had gone missing from his house following the robbery.

¶19 The State charged Farmer as a party to aggravated murder,
attempted aggravated murder, and aggravated robbery—all
first-degree felonies—and with one count of obstructing justice—
a second-degree felony.

¶20 Viegas was also arrested and charged. 5

The Written Statement

¶21 Two weeks before Farmer and Viegas’s joint preliminary
hearing, a jail case manager received an email (the written
statement) at 2:39 a.m. from Viegas’s jail email account. The text
of the written statement is as follows:

the other person involved with my case is Innocent
… farmer didnt not know what was going to
happen that day. and this is what happened, i asked
farmer to find me some Xanax.. he did, and he did
not know i was planning on robbing who ever he
got them from… I asked if i could go with to his
friends house and i drove there when we entered
the house i asked to use the bathroom, i spit in the
toilet and then farmer asked to use the bathroom

5. Following the trial in Farmer’s case, Viegas pled guilty to
aggravated murder, attempted aggravated murder, and
aggravated assault.

20210913-CA 7 2025 UT App 57
State v. Farmer

after i came out. while he was in the bathroom me
and the black guy were in the front room we walked
to sit down on the couch. farmer came out and his
friend asked how much we had wanted farmer
looked at me.. and i shot his friend.. another guy
came into the hallway from a back room i panicked
and shot him too.. i then pointed the gun at farmer..
I was going to shoot him but instead told him to find
what i wanted.. I kept asking the black guy where
everything was he told siri to call 911 so I took his
phone from him and shot him again.. i shot him a
few times, farmer was yelling trying to find
everything.. i went in the backroom to make sure
farmer wasnt calling the cops.. , after farmer found
what i wanted i told him we are leaving.. after we
left he kept asking to be dropped off.. i handed him
the phones and told him to throw them out the
window over the bridge.. he did as told and
continued to ask me to drop him off i eventually
did.. when i dropped him off i told him that if he
called the police his family would be in danger…

Im sorry for my actions, but farmer is innocent.
ifigured it was best to say this with our court date
coming up soon. i truly am sorry.

¶22 The written statement was addressed at the preliminary
hearing, following which Farmer and Viegas were bound over for
trial. A little over a week later, a second email was sent to the jail
case manager from Viegas’s email account, stating,

this is a total lie my lawyer today at court barely
disclosed this information [to] me about this so
called confession on this inquiry thing this is
absolutely false someone in my section used my
password to log on to my account and do this
behind my back i guess out of hate and to help out

20210913-CA 8 2025 UT App 57
State v. Farmer

my co-defendant andtry to get him out of this mess
of a case…. all i want to explain is we are in super
max and cant always access the tablets by ourselves
with our information so their is times that we give
our info out with trust to people to get a tablet
issued to us when we are on lockdown and im
assuming someone with my info and aware of mine
and my co-defendants case did this please foward
this just like the last message yu sent to the court
thank you and sorry for the inconvinience

¶23 Two weeks before his trial, Farmer filed a motion in limine
seeking to admit the written statement as an unavailable witness’s
statement against interest under rule 804(b)(3) of the Utah Rules
of Evidence. The State opposed the motion, arguing that the email
lacked sufficient corroborating circumstances clearly indicating
its trustworthiness. Specifically, the State pointed to the second
email in which Viegas denied sending the written statement and
suggested that it was done by someone who knew his login
credentials. The State also asserted, among other things, that

• the written statement contradicted Viegas’s prior
statements to police made immediately following his arrest
that Farmer “was the mastermind” of the robbery and that
Farmer instructed him “to finish [Friend] off”;

• the written statement contradicted Friend’s statements that
Farmer appeared unsurprised when Viegas began
shooting, that Brother never left his bedroom, and that
Farmer wanted to kill him before leaving; and

• physical evidence gathered at the scene—including a bullet
casing and a bullet fragment found in Brother’s bedroom—
indicated that Brother was shot in the bedroom rather than
in the hallway.

20210913-CA 9 2025 UT App 57
State v. Farmer

¶24 Following a hearing on the matter, the trial court denied
the motion, concluding that “the circumstances do not clearly
indicate the trustworthiness of the statement.” The court noted
that Viegas had denied sending the written statement, and it
stated that “[t]he only thing tying the [written] statement to
Viegas is the use of his login and password to convey it.” The
court also found it “problematic” that it had “absolutely no
indication who had the tablet” when the written statement was
sent. The court noted that login credentials to jail communication
accounts are shared between inmates “on a routine basis” and
although emails can be traced to specific tablet devices, those
tablets are shared among inmates. Furthermore, an examination
of the tablet from which the written statement was sent did not
reveal the specific user at the time the email was sent. The court
also pointed to the contradiction between the written statement’s
claim that Brother was shot in the hallway and both Friend’s
testimony at the preliminary hearing and the “very clear”
physical evidence indicating that Brother was shot in his
bedroom.

¶25 For those reasons, the court concluded that the written
statement lacked the clear circumstantial guarantees of
trustworthiness required under rule 804(b)(3). But the court
denied the motion without prejudice to allow Farmer “the
opportunity to present any further evidence establishing the
reliability of” the written statement.

The Verbal Statement

¶26 A week after the court’s denial of the first motion, and after
jury selection for the trial had already taken place, Farmer moved
once more to admit the written statement under rule 804(b)(3).
Counsel asserted that after the trial court had denied the first
motion, Farmer informed him for the first time that Viegas had
told Farmer’s former cellmate (Cellmate) that Farmer was
unaware of Viegas’s plans to rob Friend (the verbal statement).
Counsel subsequently spoke with Cellmate twice. The second

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State v. Farmer

interview was recorded and played for the trial court, outside the
presence of the jury.

¶27 In the second interview, Cellmate told Counsel that he and
Viegas had been assigned to the same cell block for approximately
six months. Cellmate stated that when he asked Viegas why he
was incarcerated, Viegas responded that he had robbed and shot
two people. Viegas also told Cellmate that “Farmer had no clue
that was what was going on” and that he “told Farmer to get
everything.” Cellmate also recounted that Viegas admitted to
shooting Brother in the hallway and told him that upon being
shot, Brother retreated into the bedroom. Cellmate also alleged
that Viegas stated that he ignored Farmer’s entreaty not to kill
Friend, but that when Viegas put his gun to Friend’s head and
pulled the trigger, the gun did not fire. Cellmate stated that he
told Farmer of Viegas’s verbal statement only after Farmer had
informed him that the court had denied his motion to admit the
written statement.

¶28 The trial court found that Cellmate’s account of the verbal
statement “tended to discredit rather than corroborate” the
written statement and it appeared “that collusion took place.”
Like the written statement, the verbal statement indicated that
Brother had been shot in the hallway, but the trial court noted that
both physical evidence and Friend’s testimony at the preliminary
hearing “firmly established” that Brother had been shot in his
bedroom. The court was also concerned that Cellmate—who was
charged with aggravated murder in an unrelated case—
“over-identifie[d]” with Farmer and his case, and that Cellmate
“may be seeking a form of vindication in helping [Farmer]
establish his claim of innocence.” The court also noted
inconsistencies regarding when Cellmate first told Farmer about
the verbal statement. The court thus held that the verbal statement
“not only fails to corroborate [the written statement], it is itself
inadmissible because it lacks the necessary corroboration required
under Rule 804(b)(3).” Accordingly, the court denied the renewed
motion.

20210913-CA 11 2025 UT App 57
State v. Farmer

The Trial

¶29 In October and November 2021, the case proceeded to a
five-day jury trial. Much of the evidence the State presented is
summarized above. The State also called several witnesses who
testified regarding the physical and forensic evidence gathered at
the scene. One such witness, a crime scene investigator, testified
that in Brother’s bedroom there was a trail of blood droplets
beginning “within six inches” from the door inside the bedroom
up to the bed. The trail began with a “tiny bit” of blood nearest
the door and increased in amount up to the base of the bed, at
which point the blood saturated the bed itself. When asked
whether that evidence was “consistent with somebody who was
bleeding, and who had moved at least from close to the doorway
to lay to rest where the body was found,” the investigator
answered, “It appears so, yes.” The investigator also stated that
she did not find “any evidence” that Brother had been shot in the
hallway and that “the likely scenario” was that Brother had been
shot in the bedroom. But she also acknowledged that it was
“possible” that Brother did not start to bleed from being shot in
the chest until after he had “taken two or three steps into the
bedroom.”

¶30 Farmer testified in his own defense as follows. He denied
planning the robbery and he claimed to have been unarmed in
Friend’s house. He testified that as he was exiting the bathroom,
Viegas suddenly shot Friend at close range. Farmer stated that
while he stood there “in shock,” Viegas shot Brother, who was
exiting the bedroom in response to the commotion. Farmer
believed that Brother had been shot in the chest because Brother
grabbed his chest and retreated into the bedroom after being shot.
He stated that Viegas then pointed the gun at him and ordered
him “to find everything.”

¶31 Farmer stated that while he was in Friend’s room, he heard
another gunshot and screaming, but he could only make out the
word “drawer.” He then proceeded to “rip[]” Friend’s bedroom

20210913-CA 12 2025 UT App 57
State v. Farmer

“to pieces,” during which time he heard more gunshots. Farmer
said that when he found a bag containing drugs, Viegas entered
the room and told him he “better not be calling the cops.” Viegas
took the bag from Farmer and put it in his own pocket, and he
then placed Friend’s hat and jacket on Farmer and ordered him to
“grab me some more shit.” Farmer said that when he exited the
bedroom after grabbing a few more items, he told Viegas, who
was pointing his gun at Friend, not to kill Friend. According to
Farmer, Viegas then pushed him away, stating, “I can’t go back to
the pen,” and pulled the trigger, but the gun did not fire.

¶32 Farmer testified that as they were driving away, Viegas
threatened to kill him and his family if he “got [Viegas] in trouble
in any sort of way or called the cops.” He stated that Viegas
handed him two phones and instructed him to throw them out
the car window. Farmer did so, and Viegas told him to “play it
cool and stay quiet.” And when Viegas, Farmer, and Isaac were
later expelled from the sisters’ house, Viegas told him that “as
long as [he] kept playing it cool, he would drop [him] off.” Farmer
stated that after Viegas later dropped him off at Farmer’s mother’s
house, he did not call the police because he was afraid that Viegas
was listening to a police scanner and would return to retaliate
against him or his family. As for the socks he later attempted to
flush in the holding cell, Farmer claimed that they belonged to
him and not Friend.

The Jury Instructions and Verdict

¶33 At the close of evidence, Counsel requested a compulsion
defense jury instruction for the aggravated robbery and
obstructing justice charges. As for the obstruction charge, Counsel
argued that the fact that Viegas had just shot two people and had
threatened to kill Farmer and his family, “when taken
cumulatively,” constituted an “ongoing imminent threat” to
Farmer. The trial court gave the compulsion instruction for the
aggravated robbery charge but it declined to include a similar
instruction for the obstruction charge. It concluded that Farmer’s

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testimony that Viegas had handed him Friend’s phone “and he
just threw it out” the car window as they drove away from the
scene of the crime lacked sufficient specificity to warrant a
compulsion instruction because Farmer could have reasonably
dropped the phones on the car floor instead. There was no
discussion regarding Farmer’s later attempt to flush Friend’s
socks down the toilet.

¶34 During closing argument, the State argued that Farmer
obstructed justice when he both threw the phones out of the car
window and when he later attempted to flush the socks. Counsel
countered, arguing that Farmer threw the phones out the window
intending “to try to end a horrible situation and get [Viegas] to
drop him off and let him go”—not to hinder the investigation.
Counsel similarly argued that Farmer lacked the requisite intent
when he attempted to flush the socks due to his high level of
inebriation.

¶35 But the jury instruction on the obstruction charge provided
only the elements for the charge without specifying which act—
the throwing of the phones or the flushing of the socks—the jury
should consider. The jury was also generally instructed to “[t]ry
to reach unanimous agreement, but only if you can do so honestly
and in good conscience” and that “every single juror must agree
with the verdict before the defendant can be found guilty or not
guilty.” The jury instructions did not, however, direct that the
jurors must all unanimously agree on the same act to convict
Farmer of the obstruction charge.

¶36 The jury returned a guilty verdict on all four charges.
Farmer appeals.

ISSUES AND STANDARDS OF REVIEW

¶37 Farmer raises several issues for our consideration. First, he
argues that the trial court erred when it excluded the written

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State v. Farmer

statement and the verbal statement for not satisfying the
trustworthiness requirement of rule 804(b)(3) of the Utah Rules of
Evidence. In reviewing a trial court’s decision regarding the
admission of evidence, appellate courts “review the threshold
statement of the legal principle governing admission or exclusion
for correctness,” the “findings of facts pertinent to a
determination for clear error,” and “the ultimate ruling on
admissibility for abuse of discretion.” State v. Johnson, 2022 UT 14,
¶ 17, 508 P.3d 100 (quotation simplified). But the parties disagree
as to which of these standards applies to the trial court’s
determination regarding whether the claimed statements against
interest are “supported by corroborating circumstances that
clearly indicate [their] trustworthiness.” Utah R. Evid.
804(b)(3)(B). Farmer contends that this determination is a legal
question that is reviewed for correctness, whereas the State argues
that it is reviewed for an abuse of discretion. We agree with the
State.

¶38 In State v. Clopten, 2015 UT 82, 362 P.3d 1216, our Supreme
Court reviewed for an abuse of discretion the trial court’s
determination that proffered hearsay “statements were not
sufficiently contrary to [the declarant’s] self-interest” to be
admissible under rule 804(b)(3). Id. ¶ 17. See Utah R. Evid.
804(b)(3)(A) (setting forth the requirement that the hearsay
statement be one that “a reasonable person in the declarant’s
position would have made only if the person believed it to be true
because, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a tendency . . . to
expose the declarant to civil or criminal liability”). Although
Clopten concerned rule 804(b)(3)’s first requirement—and not the
second requirement, which is at issue in this case—we see no
meaningful distinction for standard-of-review purposes between
the determination of whether a statement is sufficiently contrary
to the declarant’s self-interest and whether the statement is
sufficiently corroborated by “circumstances that clearly indicate
its trustworthiness.” Utah R. Evid. 804(b)(3)(B). Indeed, both
requirements guard against fabrication and ensure that the

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State v. Farmer

statement is sufficiently trustworthy to warrant exempting the
statement from the general rule against hearsay. 6 See State v.
Drawn, 791 P.2d 890, 894 (Utah Ct. App. 1990) (stating, in the
context of discussing rule 804(b)(3)’s first requirement, that
“statements that would not subject a person to criminal liability
. . . lack trustworthiness”) (quotation simplified), cert. denied, 804
P.2d 1232 (Utah 1990). We therefore review this issue under the
abuse of discretion standard. 7

6. Farmer points to this court’s decision in In re D.D., 2021 UT App
100, 500 P.3d 868, cert. denied, 505 P.3d 56 (Utah 2022), which states
that “[a] lower court’s determination that a confession is
sufficiently trustworthy to be admitted into evidence is a legal
determination.” Id. ¶ 26. But that case is distinguishable because
at issue in that case was whether the trial court had correctly
performed its “gatekeeping function,” established by our
Supreme Court in State v. Mauchley, 2003 UT 10, ¶ 58 & n.6, 67
P.3d 477, of determining whether a defendant’s out-of-court
confession was sufficiently corroborated to be “deemed
trustworthy by a preponderance of the evidence.” In re. D.D., 2021
UT App 100, ¶ 29 (quotation simplified). For the reasons
articulated above, we are bound by our Supreme Court’s
application of the abuse of discretion standard in the rule
804(b)(3) context.

7. We also note that several federal circuit courts of appeal that
have reviewed the corroboration of trustworthiness requirement
under rule 804(b)(3)’s federal counterpart have done so for an
abuse of discretion. See, e.g., United States v. Taylor, 848 F.3d 476,
487 (1st Cir. 2017); United States v. Caldwell, 760 F.3d 267, 290 (3d
Cir. 2014); United States v. Tropeano, 252 F.3d 653, 659 (2d Cir.
2001); United States v. Spring, 80 F.3d 1450, 1460 (10th Cir. 1996);
United States v. Bumpass, 60 F.3d 1099, 1102–03 (4th Cir. 1995);
United States v. Ospina, 739 F.2d 448, 452 (9th Cir. 1984). But see,
e.g., United States v. Yellowhorse, 86 F.4th 1304, 1309 (10th Cir. 2023)
(continued…)

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State v. Farmer

¶39 Next, Farmer contends that the trial court erred in not
instructing the jury on the affirmative defense of compulsion for
the obstructing justice charge. The parties also disagree on the
governing standard of review for this issue, with Farmer asserting
that it is a question of law reviewed for correctness and the State
contending that it is reviewed for an abuse of discretion. Although
the State is technically correct, Farmer’s argument ultimately
carries the day in a practical sense.

¶40 “The refusal to give a jury instruction is reviewed for abuse
of discretion, although in some circumstances that discretion will
be narrowly constrained.” State v. Johnson, 2025 UT App 13, ¶ 23,
564 P.3d 519 (quotation simplified), cert. filed, Apr. 2, 2025
(No. 20250336). That is, “in certain circumstances a district court’s
discretion will be constrained such that a party is legally entitled
to have a particular instruction given to the jury. In those
circumstances, refusal constitutes an error of law, and an error of
law always constitutes an abuse of discretion.” Miller v. Utah Dep’t
of Transp., 2012 UT 54, ¶ 13 n.1, 285 P.3d 1208. See State v.
Drommond, 2020 UT 50, ¶ 49, 469 P.3d 1056 (“We review a trial
court’s refusal to give a jury instruction for abuse of discretion.
We afford significant deference on issues that are primarily or
entirely factual but little or no deference on issues that are
primarily or entirely legal.”) (quotation simplified), abrogated on
other grounds by State v. Lovell, 2024 UT 25.

¶41 As elaborated upon in Part II below, a trial court “is
obligated to give” a requested jury instruction on an affirmative
defense “if evidence has been presented . . . that provides any
reasonable basis upon which a jury could conclude that the
affirmative defense applies to the defendant.” State v. Smith, 2019
UT App 141, ¶ 31, 449 P.3d 971 (quotation simplified), cert. denied,

(reviewing rule 804(b)(3)’s corroboration of trustworthiness
requirement for clear error); United States v. Hall, 165 F.3d 1095,
1112 (7th Cir. 1999) (same); United States v. Price, 134 F.3d 340, 348
(6th Cir. 1998) (same).

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State v. Farmer

456 P.3d 390 (Utah 2019). Accordingly, “if the court refuses to
provide such an instruction in those circumstances, the refusal
constitutes an error of law,” which ultimately “constitutes an
abuse of discretion.” Johnson, 2025 UT App 13, ¶ 24 (quotation
simplified).

¶42 Lastly, Farmer claims that Counsel rendered ineffective
assistance in two respects: (1) when he did not raise a rule
804(b)(3) motion for a third time after the crime scene investigator
offered testimony that corroborated both the written statement
and the verbal statement and (2) when he did not request a
unanimity instruction specifically for the obstructing justice
charge. “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. Herrera,
2025 UT App 1, ¶ 15, 563 P.3d 416 (quotation simplified).

ANALYSIS

I. Rule 804(b)(3)

¶43 Rule 804(b)(3) of the Utah Rules of Evidence provides an
exception to the general rule against hearsay for statements
against interest when the declarant is unavailable as a witness. 8 A
statement is not excluded as hearsay under this rule if:

(A) a reasonable person in the declarant’s position
would have made [the statement] only if the person
believed it to be true because, when made, it was so
contrary to the declarant’s proprietary or pecuniary
interest or had so great a tendency to invalidate the

8. The trial court ruled that Viegas was unavailable as a witness
because, if called to testify, he was expected to assert his Fifth
Amendment rights. This ruling is not challenged on appeal.

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State v. Farmer

declarant’s claim against someone else or to expose
the declarant to civil or criminal liability; and

(B) [the statement] is supported by corroborating
circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as
one that tends to expose the declarant to criminal
liability.

Utah R. Evid. 804(b)(3).

¶44 Only the second requirement—whether the statement “is
supported by corroborating circumstances that clearly indicate its
trustworthiness,” id. R. 804(b)(3)(B)—is at issue in this appeal.
Notably, because the corroborating circumstances must “clearly
indicate” the statement’s trustworthiness, id., “the showing of
corroborating circumstances must do more than tend to indicate
the trustworthiness of the statements,” United States v. Ospina, 739
F.2d 448, 452 (9th Cir. 1984). 9 “The inference of trustworthiness
from the proffered corroborating circumstances must be strong,
not merely allowable.” United States v. Lozado, 776 F.3d 1119, 1132
(10th Cir. 2015) (quotation simplified).

¶45 Farmer challenges the trial court’s decision not to admit the
written statement and the verbal statement under rule 804(b)(3).
We address each statement in turn. As discussed, we review the
trial court’s decision in each instance for an abuse of discretion.
Farmer thus has the “heavy burden” of establishing that “no

9. When interpreting the Utah Rules of Evidence, “[w]e may also
rely on interpretations of similar federal rules by federal courts to
assist our own interpretation.” Robinson v. Taylor, 2015 UT 69,
¶ 10, 356 P.3d 1230. Cf. Supernova Media, Inc. v. Pia Anderson Dorius
Reynard & Moss, LLC, 2013 UT 7, ¶ 40 n.8, 297 P.3d 599
(“Interpretations of the Federal Rules of Civil Procedure are
persuasive where . . . the Utah Rules of Civil Procedure are
substantially similar to the federal rules.”) (quotation simplified).

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State v. Farmer

reasonable person would take the view adopted by the trial
court.” Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079
(quotation simplified). See Osguthorpe v. Rudd (In re Estate of
Osguthorpe), 2021 UT 23, ¶ 57, 491 P.3d 894 (stating that an
appellate court will find an abuse of discretion only if the trial
court’s decision “fell outside of the bounds of reasonableness and
rationality”) (quotation simplified). See also Tolman v. Salt Lake
County Att’y, 818 P.2d 23, 26 (Utah Ct. App. 1991) (“Discretion
encompasses the power of choice among several courses of action,
each of which is considered permissible.”) (quotation simplified).

A. The Written Statement

¶46 Following an evidentiary hearing on the matter, which was
held about a week prior to the trial in this case, the trial court
denied Farmer’s rule 804(b)(3) motion to admit the written
statement on the ground that “the circumstances do not clearly
indicate the trustworthiness of the statement.” In so ruling, the
trial court pointed to Viegas’s subsequent denial of ever sending
the email containing the written statement, coupled with the fact
that inmates shared their login information “on a routine basis”
and the lack of any indication of who possessed the tablet at the
time the written statement was sent. The court also based its
decision on the contradiction between the written statement’s
claim that Viegas shot Brother in the hallway and both Friend’s
testimony and the “very clear” physical evidence indicating that
Brother had been shot in his bedroom. Additionally, when later
presented with a recording of Cellmate recounting the verbal
statement to Counsel, the court, for reasons discussed in more
detail in Part I.B. below, found that the verbal statement “tended
to discredit rather than corroborate” the written statement and it
appeared “that collusion took place.”

¶47 In arguing that the written statement’s trustworthiness
was clearly corroborated, Farmer cites the facts that the written
statement was sent from Viegas’s jail account and that the
statement “was not motived by self-interest.” He also asserts that

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the written statement and Viegas’s subsequent email denying
having authored it share “idiosyncrasies in grammar,
capitalization, and spelling,” suggesting that the same person
wrote both emails. Specifically, Farmer points to “inconsistent
capitalization of the pronoun ‘I,’ frequent use of ellipses in place
of periods, a lack of apostrophes, and a lack of [punctuation]
between distinctly different sentences.” 10 Farmer also contends
that the written statement is corroborated, in part, by Friend’s trial
testimony that Viegas confiscated Friend’s phone in the living
room after Friend dialed 911—which Farmer asserts he could not
have known because he was in Friend’s bedroom at the time.

¶48 But the corroborating circumstances to which Farmer
points are insufficient to establish an abuse of discretion by the
trial court. For the written statement to be admissible under rule
804(b)(3), Farmer had the burden of proffering “corroborating
circumstances that clearly indicate its trustworthiness.” Utah R.
Evid. 804(b)(3)(B) (emphasis added). Although the written
statement was sent from Viegas’s jail email account, it was not
unreasonable for the court to also consider Viegas’s subsequent
email denying authorship and the fact that his login information
was available to other inmates. The possibility that Viegas did not
send the written statement likewise undermines Farmer’s
assertion that it did not promote Viegas’s self-interest. It also was
not unreasonable for the trial court to consider the forensic
evidence presented at the evidentiary hearing—including a bullet
casing and bullet fragment found in Brother’s bedroom—that
contradicted the written statement’s claim that Brother was shot
in the hallway. Given these considerations, we cannot say that no
reasonable person would have adopted the trial court’s view that
Farmer had not met his burden of proffering corroborating
circumstances clearly supporting an inference of trustworthiness

10. The State disagrees with this assessment, contending that
other than the predominant use of lower-case letters, “there are no
idiosyncratic similarities between the two emails,” and offering
several examples of dissimilarities between the two.

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State v. Farmer

for the written statement. See United States v. Lozado, 776 F.3d 1119,
1132 (10th Cir. 2015).

¶49 Accordingly, the trial court did not abuse its discretion
when it excluded the written statement from Farmer’s trial.

B. The Verbal Statement

¶50 A week after the trial court denied Farmer’s first motion,
and after jury selection was already completed, Farmer brought a
second rule 804(b)(3) motion in which he proffered the verbal
statement. After reviewing the recording of Counsel’s interview
with Cellmate, the trial court denied the motion. Notably, it found
that Cellmate’s account of the verbal statement “tended to
discredit rather than corroborate” the written statement and it
appeared to the court “that collusion took place.” The court was
left with the impression that Cellmate “over-identifie[d]” with
Farmer and that he was “seeking a form of vindication in helping
[Farmer] establish his claim of innocence.” Additionally, the court
heard evidence that Farmer and Cellmate had been cellmates for
over a year and that they had formed a friendship, including that
Cellmate’s girlfriend put money in Farmer’s jail account and that
Farmer had used Cellmate’s credentials to make phone calls. The
court also pointed to inconsistencies regarding the timing of
Cellmate coming forward with the verbal statement. Counsel
indicated that Farmer told him to investigate the verbal statement
immediately following the hearing at which the trial court denied
the motion to admit the written statement—meaning that
Cellmate must have told Farmer of the verbal statement prior to
the hearing. But Cellmate stated that he informed Farmer for the
first time of the verbal statement after Farmer had returned from
that hearing and told him that the court had denied the motion.
Finally, the court reiterated that physical evidence contradicted
the verbal statement’s claim that Brother was shot in the hallway.

¶51 Farmer points to the following circumstances that he
asserts corroborate the verbal statement: the verbal statement

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State v. Farmer

“closely follows” the written statement, Viegas had no reason to
inculpate himself on Farmer’s behalf as the two were not close,
Farmer did not know Cellmate prior to their incarceration,
Farmer’s and Cellmate’s cases were unrelated, Cellmate did not
stand to benefit from disclosing the verbal statement, and there
was no evidence that Viegas was coerced to make the verbal
statement to Cellmate.

¶52 As with the written statement, notwithstanding these
circumstances, we cannot say that the trial court abused its
discretion in determining that the corroborating circumstances
did not clearly support the verbal statement’s trustworthiness. We
cannot say it was unreasonable for the trial court to consider
Cellmate’s friendship with Farmer, his apparent emotional
investment in Farmer’s case, and the questionable timing of
Cellmate’s coming forward with the verbal statement after the
first motion’s denial, particularly when coupled with the physical
evidence suggesting that Brother was shot in his bedroom, as
significantly detracting from any other corroborating
circumstances. This is especially the case because rule 804(b)(3)
sets a high threshold of requiring that the statement’s
trustworthiness be clearly supported by corroborating evidence.
Although another judge might have concluded otherwise, the
trial court’s determination was nonetheless reasonable. See Gunn
Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2015
UT App 261, ¶¶ 21, 24, 361 P.3d 703 (Orme, J., concurring, joined
by Toomey, J.) (stating that under the abuse of discretion
standard, appellate courts must affirm cases even when other
judges might have ruled differently, so long as the trial court’s
decision is “within the broad range of discretion entrusted to” it),
cert. denied, 369 P.3d 451 (Utah 2016).

¶53 For these reasons, the trial court likewise did not abuse its
discretion when it excluded the verbal statement.

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II. Compulsion Jury Instruction

¶54 When a criminal defendant requests a jury instruction on
an affirmative defense, including compulsion, a trial court is
obligated to provide one so long as evidence has been presented
at trial that, “when viewed in the light most favorable to the
defense,” “provides any reasonable basis upon which a jury could
conclude that the affirmative defense applies to the defendant.”
State v. Johnson, 2025 UT App 13, ¶¶ 24, 29, 564 P.3d 519 (quotation
simplified), cert. filed, Apr. 2, 2025 (No. 20250336). But “a court
need not instruct the jury on the requested affirmative defense
where the evidence is so slight as to be incapable of raising a
reasonable doubt in the jury’s mind as to whether the defendant
acted in accordance with that affirmative defense.” State v. Smith,
2019 UT App 141, ¶ 31, 449 P.3d 971 (quotation simplified), cert.
denied, 456 P.3d 390 (Utah 2019).

¶55 The affirmative defense of compulsion is set forth in Utah
Code section 76-2-302(1), which states,

A person is not guilty of an offense when he
engaged in the proscribed conduct because he was
coerced to do so by the use or threatened imminent
use of unlawful physical force upon him or a third
person, which force or threatened force a person of
reasonable firmness in his situation would not have
resisted.

In other words, “to assert the affirmative defense of compulsion,
the defendant must have been faced with a specific, imminent
threat of death or serious bodily injury to himself or a third person
and the defendant must have had no reasonable legal alternative
to violating the law.” State v. Dozah, 2016 UT App 13, ¶ 17, 368
P.3d 863 (quotation simplified). To be “imminent,” “it must
appear that [the threat] had been communicated to the defendant
that he would be subjected to physical force presently.” Smith,
2019 UT App 141, ¶ 32 (quotation simplified). And “a threat

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State v. Farmer

directed to some indefinite time in the future is not an imminent
threat for purposes of the defense of compulsion.” State v. Ott, 763
P.2d 810, 812 (Utah Ct. App. 1988) (quotation simplified).

¶56 Here, the State charged Farmer with one count of
obstructing justice but told the jury during closing argument that
Farmer obstructed justice when he (1) tossed the phones out the
car window as he and Viegas drove away from the scene of the
crime and (2) attempted to flush Friend’s socks while in the
holding cell. Although the trial court provided a compulsion
instruction for the aggravated robbery charge, it declined to do so
for the obstructing justice charge, concluding that based on
Farmer’s testimony, the threat was not sufficiently specific and
Farmer could have alternatively tossed the phones on the car
floor. Farmer contends that this constituted legal error because
there was a reasonable basis in the evidence to warrant a
compulsion instruction for either action underlying the
obstruction charge. 11

¶57 Farmer points to the following portions of his trial
testimony as supporting a compulsion instruction: after shooting
Friend and Brother, Viegas pointed his gun at Farmer and ordered
him to “find everything”; Viegas thereafter shot Friend a few
more times; in the car, Viegas threatened to kill Farmer and his
family if he contacted police; Viegas told Farmer to throw the
phones out the window; Viegas told Farmer to “play it cool and
stay quiet”; and when Viegas, Farmer, and Isaac later left the
sisters’ house, Viegas told Farmer that “as long as [he] kept
playing it cool, he would drop [him] off.” But none of this

11. The State suggests that Farmer’s argument was not preserved
with respect to his attempt to flush the socks. Because “the merits
of [this] claim can easily be resolved in favor of the party asserting
that the claim was not preserved,” we address the merits of
Farmer’s argument on this point without resolving whether it was
preserved. State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415
(quotation simplified), cert. denied, 496 P.3d 718 (Utah 2021).

20210913-CA 25 2025 UT App 57
State v. Farmer

testimony, even when viewed in the light most favorable to
Farmer, provides a reasonable basis from which a jury could
conclude that Farmer was acting under an imminent and specific
threat of death or serious injury to himself or his family when he
attempted to dispose of the phones or the socks.

¶58 As concerns the phones, Farmer testified that Viegas
instructed him to throw them out the car window, but he did not
state that Viegas paired the request with a threat of imminent
death or injury—or any threat whatsoever. The only specific
threats of imminent death or injury to which Farmer testified
occurred in Friend’s house during the robbery—for which the
trial court included a compulsion instruction for the aggravated
robbery charge. But again, no such threats occurred in the car
before Farmer tossed the phones. And even the subsequent threat
Viegas allegedly made to kill Farmer and his family at “some
indefinite time in the future,” Ott, 763 P.2d at 812 (quotation
simplified), if Farmer contacted the police—not if he refused to
toss the phones—was not a sufficiently imminent threat to trigger
a compulsion defense. Moreover, Farmer testified that when
Viegas attempted to shoot Friend one last time as they were
leaving, the gun would not fire. This was corroborated by
testimony from Friend and one of the friends at Kristina’s
apartment that Viegas’s gun had run out of ammunition. Indeed,
Farmer testified that Viegas was highly motivated to shoot Friend
one more time prior to leaving the house as he repeatedly said
that he could not “go back to the pen.” Thus, Viegas was no longer
able to carry out the threats he had previously made in Friend’s
house. At most, Farmer feared Viegas and wished to be dropped
off at home, which is insufficient to give rise to a compulsion
instruction. See State v. Rivera, 2019 UT App 27, ¶ 31, 440 P.3d 694
(“[F]earing for one’s safety is not the same as being coerced to
engage in illegal activity.”).

¶59 As for the act of flushing the socks, at the time of the act
Viegas was nowhere near Farmer, who was in police custody.
Farmer also did not testify that he had any reason to believe that

20210913-CA 26 2025 UT App 57
State v. Farmer

Viegas was in the immediate vicinity of any of his family members
or even that Viegas knew that he had been taken into police
custody. Accordingly, there was absolutely no imminent threat of
death or injury to compel him to attempt to dispose of the socks.
Moreover, Farmer testified that the socks belonged to him and not
to Friend and that he attempted to flush them because he was
inebriated and believed they “were dirty.” He did not claim that
he attempted to flush the socks out of fear of Viegas—much less
due to any threats of immediate death or injury that Viegas had
made.

¶60 Because this evidence does not provide a reasonable basis
on which a jury could conclude that Farmer acted under
compulsion, the trial court did not err when it refused to include
a jury instruction on compulsion for the obstructing justice
charge.

III. Ineffective Assistance of Counsel

¶61 To establish an ineffective assistance of counsel claim, a
criminal defendant must show that (1) defense “counsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). A defendant’s “failure to establish either prong of the test
is fatal to an ineffective assistance of counsel claim.” Honie v. State,
2014 UT 19, ¶ 31, 342 P.3d 182.

¶62 Under the first prong, defense counsel’s performance is
deficient if it falls “below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. “Judicial scrutiny of
counsel’s performance” is “highly deferential” in that there is a
“strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689.
Accordingly, “even if a court concludes that counsel made an
error, the ultimate question is always whether, considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. See

20210913-CA 27 2025 UT App 57
State v. Farmer

State v. Paule, 2024 UT 2, ¶ 71, 554 P.3d 844 (“Counsel’s
performance can be objectively reasonable despite a failure to
employ the best strategy.”) (quotation simplified).

¶63 Under the second prong, “[t]he 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 reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Id. “A verdict or conclusion only weakly supported
by the record is more likely to have been affected by errors than
one with overwhelming record support.” State v. Baugh, 2024 UT
33, ¶ 42, 556 P.3d 35 (quotation simplified).

¶64 Farmer argues that Counsel was ineffective for not
bringing the rule 804(b)(3) motion for a third time following the
crime scene investigator’s testimony and for not requesting a
unanimity instruction specifically for the obstructing justice
charge. We address each argument in turn.

A. Renewed Rule 804(b)(3) Motion

¶65 Farmer contends that Counsel was ineffective for not
raising the rule 804(b)(3) motion to admit the written statement
and the verbal statement for a third time following the crime scene
investigator’s testimony regarding the blood trail beginning
approximately six inches from the door inside the bedroom and
continuing from there to the bed. 12 He asserts that this testimony

12. Farmer also cites the testimony of another investigator that a
bullet hole in the bedroom wall was “shallow.” But this testimony
does not establish whether Brother was standing in the hallway
or a few feet further back behind the door in his bedroom when
shot for the first time. Farmer also references a forensic
pathologist’s assessment that the shot to Brother’s head was from
a closer distance than the shot to his chest. But this too is irrelevant
(continued…)

20210913-CA 28 2025 UT App 57
State v. Farmer

corroborated the claim in both statements that Brother was shot
in the hallway, which was the trial court’s “main hangup” with
admitting the statements, and he argues that “[t]he forensic
evidence supporting this point was crucial to convincing the court
that the confession had corroborating circumstances of
trustworthiness.” Because we hold that Counsel did not perform
deficiently in not renewing the motion during trial, Farmer’s
ineffective assistance claim fails.

¶66 Counsel was not “objectively unreasonable” for not raising
the same motion for a third time. Scott, 2020 UT 13, ¶ 36. Although
the trial court certainly relied on the contradiction between the
physical evidence presented at the evidentiary hearing indicating
that Brother was shot in the bedroom—and not in the hallway—
when denying both prior motions, as recounted in detail in Part I
above, it was certainly not the only reason the court concluded
that the statements lacked clear indicia of trustworthiness.
Additionally, although the crime scene investigator
acknowledged that it was “possible” that Brother did not start to
bleed from being shot in the chest until after taking a few steps
backward from the hallway into the bedroom, she still testified
that “the likely scenario” was that Brother was in the bedroom
when shot. She also testified that there was not “any evidence” of
Brother being shot in the hallway. Counsel therefore could have
reasonably concluded that this testimony was not so compelling
as to warrant raising the location-of-the-shooting issue in a third
motion, particularly in light of the other problems the trial court
had with the two statements.

B. Unanimity Instruction

¶67 The Unanimous Verdict Clause of the Utah Constitution
directs that “[i]n criminal cases the verdict shall be unanimous.”
Utah Const. art. I, § 10. It is “well-established” that this

as it merely suggests that Viegas continued moving closer to
Brother between firing the two shots.

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“constitutional requirement of unanimity is not met if a jury
unanimously finds only that a defendant is guilty of a crime.” State
v. Paule, 2024 UT 2, ¶ 67, 554 P.3d 844 (emphasis in original,
quotation otherwise simplified). Rather the “jury verdict must
also be unanimous as to each count of each distinct crime charged by
the prosecution and submitted to the jury for decision.” 13 Id.
(emphasis in original, quotation otherwise simplified).
Accordingly, “where the evidence indicates that more than one
distinct criminal act has been committed but the defendant is
charged with only one count of criminal conduct, the jury must be
unanimous as to which act or incident constitutes the charged
crime.” State v. Granere, 2024 UT App 1, ¶ 33, 543 P.3d 177
(quotation simplified), cert. denied, 558 P.3d 87 (Utah 2024). And
“where neither the charges nor the elements instructions link each
count to a particular act, instructing the jury that it must agree as
to which criminal acts occurred is critical to ensuring unanimity
on each element of each crime.” Id. (quotation simplified).

¶68 Here, the State presented evidence of two instances for
which the jury could have convicted Farmer of obstructing justice:
Farmer’s act of throwing the phones out the car window as he and
Viegas drove away from the scene of the crime and his attempt to
flush Friend’s socks while in the holding cell. And during
closing argument, the State pointed to both acts when
discussing the obstruction charge. But Farmer was charged with
only one count of obstruction and the jury instruction for that

13. This principle is demonstrated by the following oft-cited
example:
A verdict would not be valid if some jurors found a
defendant guilty of robbery committed on
December 25, 1990, in Salt Lake City, but other
jurors found him guilty of a robbery committed
January 15, 1991, in Denver, Colorado, despite all
jurors finding him guilty of the elements of the
crime of robbery.
State v. Paule, 2024 UT 2, ¶ 67, 554 P.3d 844 (quotation simplified).

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State v. Farmer

charge did not specify which of the two acts the jury should
consider, nor did it instruct the jury that it must unanimously
agree as to which obstructive act he committed. Farmer thus
argues that Counsel was ineffective for not requesting a proper
unanimity instruction.

¶69 We note that this is an issue that in recent years has
appeared with some frequency in Utah’s appellate courts, and it
did so even prior to the 2021 trial in this case. See, e.g., State v.
Mendoza, 2021 UT App 79, ¶¶ 8–17, 496 P.3d 275; State v. Gollaher,
2020 UT App 131, ¶¶ 30–33, 474 P.3d 1018, cert. denied, 481 P.3d
1040 (Utah 2021); State v. Whytock, 2020 UT App 107, ¶¶ 30–32, 469
P.3d 1150, cert. denied, 481 P.3d 1043 (Utah 2021); State v. Case, 2020
UT App 81, ¶¶ 21–23, 467 P.3d 893, cert. denied, 474 P.3d 948 (Utah
2020); State v. Alires, 2019 UT App 206, ¶¶ 17–22, 455 P.3d 636, cert.
denied, 466 P.3d 1076 (Utah 2020). And our appellate courts have
decided more such cases since the trial. See, e.g., State v. Chadwick,
2024 UT 34, ¶¶ 58–67, 554 P.3d 1098; State v. Baugh, 2024 UT 33,
¶¶ 23–36, 556 P.3d 35; Paule, 2024 UT 2, ¶ 67; State v. Macleod, 2024
UT App 32, ¶¶ 59–60, 546 P.3d 366, cert. denied, 558 P.3d 87 (Utah
2024); State v. Mottaghian, 2022 UT App 8, ¶¶ 54–58, 504 P.3d 773,
cert. denied, 525 P.3d 1256 (Utah 2022). By now, Utah’s unanimity
requirement is more than “well-established” by our caselaw.
Paule, 2024 UT 2, ¶ 67 (quotation simplified). Accordingly, it
should be common practice by now to include a proper unanimity
instruction in cases where the number of potential criminal acts
presented to the jury exceeds the number of corresponding
charged counts. Indeed, with this case law in mind, the State does
not contest Farmer’s assertion that Counsel performed deficiently
by not requesting a unanimity instruction specifically for the
obstructing justice charge. With that said, because Farmer has not
shown prejudice, his ineffective assistance claim fails.

¶70 An “ineffective assistance claim can succeed only if [the
defendant] can demonstrate that the problem with the jury
instructions mattered: that is, that there existed a reasonable
probability of a different outcome had the jury been provided a

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State v. Farmer

specific unanimity instruction.” 14 Mottaghian, 2022 UT App 8,
¶ 59. And here, the evidence strongly supported a conviction for,
at the very least, the act of throwing the phones out the car
window.

¶71 Farmer himself admitted to tossing the phones after Viegas
handed them to him and instructed him to do so. His defense was
that in doing so, he did not intend to impede the investigation,
but, rather he was “try[ing] to end a horrible situation and get
[Viegas] to drop him off and let him go.” And on appeal, Farmer’s
prejudice argument is wholly reliant on his compulsion
argument, asserting that if the jury had “been instructed on
compulsion, there is a reasonable likelihood that it would have
found that [he] threw the phones away because he was forced to
do so.” Because we affirm the trial court’s denial of a compulsion
instruction for that charge, this argument also necessarily fails.

¶72 In sum, because there is not a reasonable probability that
the jury would have acquitted Farmer of the obstruction charge if
it had been properly instructed on the unanimity requirement,
Farmer has not demonstrated that Counsel was ineffective for not
requesting such an instruction.

14. The prejudice standard is higher in cases where the unanimity
issue was preserved. That is, as with other constitutional errors,
the lack of a proper unanimity instruction carries a rebuttable
presumption of prejudice. See State v. Chadwick, 2024 UT 34, ¶ 57,
554 P.3d 1098. But where the unanimity issue was not preserved,
the defendant carries the burden of showing prejudice. See id.
¶¶ 49, 54 (stating that the requirement that the defendant show
prejudice “is generally reserved for a category of claims brought
for the first time on appeal” and declining to apply that standard
to a preserved unanimity claim); State v. Baugh, 2024 UT 33, ¶ 42,
556 P.3d 35 (applying the Strickland prejudice standard to a
unanimity issue brought as an ineffective assistance of counsel
claim).

20210913-CA 32 2025 UT App 57
State v. Farmer

CONCLUSION

¶73 The trial court did not exceed its discretion when it denied
Farmer’s rule 804(b)(3) motions to admit the written statement
and the verbal statement, nor when it denied his request for a
compulsion instruction on the obstructing justice charge.
Additionally, Counsel was not ineffective for not raising the rule
804(b)(3) motion for a third time during trial, or for failing to
request a proper unanimity instruction on the obstruction charge.

¶74 Affirmed.

20210913-CA 33 2025 UT App 57