State v. Cowlishaw , 405 P.3d 885 ( 2017 )

2017 UT App 181THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
PRESTON MICHAEL COWLISHAW,
Appellant.
Opinion
No. 20160477-CA
Filed September 28, 2017
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 151901373
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN concurred.
TOOMEY, Judge:
¶1 At the conclusion of a bench trial, Preston Michael
Cowlishaw was convicted of one count of kidnapping, a second
degree felony, Utah Code Ann. § 76-5-301 (LexisNexis 2012), one
count of failure to respond to an officer’s signal to stop, a third
degree felony, Utah Code Ann. § 41-6a-210 (LexisNexis 2014),
and one count of theft, a second degree felony, Utah Code Ann.
§ 76-6-404 (LexisNexis 2012); see also id. § 76-6-412(1)(a)(ii).
Cowlishaw contends the trial court erred in finding him guilty
on all three counts because the victim (Victim) did not directly
identify him as the perpetrator of the crimes. We affirm.
State v. Cowlishaw
BACKGROUND
¶2 Because Cowlishaw appeals his verdict from a bench trial,
we recite the facts from the record in the light most favorable to
the findings of the trial court, see State v. Bingham, 2015 UT App
2013, ¶ 2 n.1, 348 P.3d 730, and “present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
¶3 Late one afternoon in June 2015, Cowlishaw visited the
household of Victim, her stepfather (Stepfather) and her mother
(Mother). Cowlishaw knew Mother and Stepfather because they
often provided a place for his mother to sleep. Victim, who had
met Cowlishaw a few times, agreed to “go get food” with him,
and Cowlishaw agreed to take Victim to the grocery store
afterward. Cowlishaw went to the drive-through of a fast food
restaurant, where Victim ordered a pie and Cowlishaw ordered
a cup of water. Cowlishaw began driving again, passing the
grocery store near Victim’s house, when Victim asked him why
he was not taking her home or to the grocery store. Cowlishaw
responded that “he wanted to go on a drive and get to know
[her] more.”
¶4 During the drive, Cowlishaw asked Victim if he could use
her cell phone because he did not have one and wanted to make
a phone call. Instead of making a call, Cowlishaw pocketed the
phone after removing the battery and “wouldn’t give it back”
informing Victim “it was a distraction.” Cowlishaw then started
speeding and “doing donuts.” Victim thought that the erratic
driving was meant to scare her.
¶5 Over the next few hours, Cowlishaw continued to refuse
to drive Victim home, while Victim made attempts to “calm the
situation down.” At one point, Cowlishaw returned Victim’s
phone and allowed her to exit the car after she agreed to take off
her shoes. Victim sent a text message, saying, “Help, I have been
20160477-CA 2 2017 UT App 181State v. Cowlishaw
kidnapped.” Victim also called Mother, but before she could tell
Mother where she was, Cowlishaw grabbed the phone and again
removed the battery. Even though Victim was frightened, she
returned to the car because Cowlishaw said he would take her
home if she “just [got] back in the car.” She did not think
something like this could happen with “him knowing [her]
family.”
¶6 Once he had coaxed Victim back into the car, Cowlishaw
continued to drive away from her house. He drove up to a toll
booth, and when he stopped, Victim jumped out of the car,
hoping she would find someone to help her. The toll booth
attendant (Attendant) saw Victim exit the car quickly and run
into the office building. Attendant called the police because she
was “very concerned” that Victim was “in distress” and no one
was inside the office building to help her. Attendant witnessed
Victim get back into the car, but was uncertain whether this was
voluntary because she was busy assisting other cars through the
toll booth.
¶7 A deputy police officer (Deputy) responded to the
dispatch call based on the information provided by Attendant.
Deputy drove toward the toll booth, watching for the grey
passenger car Attendant had identified. When he arrived,
Deputy noticed a grey car and immediately pulled behind it,
signaling the driver to pull over. Cowlishaw told Victim, “This
can’t happen. This won’t happen[,]”and sped through a
construction zone, running a red light before turning down an
unmarked path where he crashed the car into a tree. Cowlishaw
crawled over Victim and attempted to pull her out of the car
before the police arrived, but he ran away before he could get
her out.
¶8 When Deputy found Victim near the crashed car, she told
him that she knew the driver’s first name, Preston, but she did
not know his last name. Other officers arrived on the scene and,
20160477-CA 3 2017 UT App 181State v. Cowlishaw
during Victim’s interview, one officer called Stepfather, who
provided Cowlishaw’s “full name, including the spelling.” They
radioed an “attempt to locate” for Preston Cowlishaw. The
following day, the South Salt Lake Police Department arrested
Cowlishaw, and Deputy took him into custody.
¶9 The officers also radioed the license plate number of the
crashed car. Dispatch informed Deputy that it was registered to
an owner (Owner) who reported the car stolen earlier that day.
The police contacted Owner and informed him his car had been
taken to an impound lot. Owner went to look at his vehicle and
found that it was “totaled.”
¶10 The officers collected evidence from the car, and a crime
scene investigator (Investigator) obtained fingerprints from the
exterior of the driver’s window and from a cup in the center
console. After processing the fingerprints from the car and cup,
Investigator found fifteen points of comparison with Preston
Cowlishaw’s fingerprints and concluded the fingerprints
matched those of Preston Cowlishaw.
¶11 After a bench trial, Cowlishaw was convicted on all three
charges. The court sentenced him to one to fifteen years in prison
for the charge of kidnapping, zero to five years for the failure to
respond to an officer’s signal to stop, and one to fifteen years for
the charge of theft. All three sentences were to run concurrently.
Cowlishaw appeals.
ISSUES AND STANDARD OF REVIEW
¶12 Cowlishaw contends the evidence was insufficient to
establish his identity as the perpetrator of the three crimes. 1
1. Cowlishaw raised several additional issues on appeal: (1) the
trial court erred in denying his motion for a directed verdict;
(continued…)
20160477-CA 4 2017 UT App 181State v. Cowlishaw
When reviewing the sufficiency of the evidence supporting a
conviction in a bench trial, this court “must sustain the trial
court’s judgment unless it is against the clear weight of the
evidence, or if the appellate court otherwise reaches a definite
and firm conviction that a mistake has been made.” State v.
Larsen, 2000 UT App 106, ¶ 10, 999 P.2d 1252 (citation and
internal quotation marks omitted). This court “will only reverse
if the trial court’s findings were clearly erroneous.” Salt Lake City
v. Maloch, 2013 UT App 249, ¶ 2, 314 P.3d 1049 (citation omitted).
Additionally, when the “trial court's findings include inferences
drawn from the evidence, we will not take issue with those
inferences unless the logic upon which their extrapolation from
the evidence is based is so flawed as to render the inference
clearly erroneous.” State v. Briggs, 2008 UT 75, ¶ 11, 197 P.3d 628(citation and internal quotation marks omitted).
(…continued)
(2) the trial court erred in rendering a guilty verdict because
“fingerprint evidence has come into large disrepute;” (3) the trial
court erred in rendering its verdict because the State did not
present evidence of intent for the theft charge; and (4) the
identification of Cowlishaw’s last name at trial was inadmissible
hearsay. None of these were preserved. For example,
Cowlishaw’s counsel never moved for a directed verdict and did
not object to the other claimed errors at trial. “When a party
raises an issue on appeal without having properly preserved the
issue below, we require that the party articulate an appropriate
justification for appellate review, . . . specifically, the party must
argue either plain error or exceptional circumstance.” State v.
Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (citation and internal
quotation marks omitted). Because these issues are unpreserved
and Cowlishaw did not make an argument for plain error or
exceptional circumstance, we will not address them on appeal.
20160477-CA 5 2017 UT App 181State v. Cowlishaw
ANALYSIS
I. Kidnapping and Failure to Respond to the Officer’s
Signal to Stop
¶13 Cowlishaw contends that he should not have been
convicted because “no witness specifically identified [him] as the
person who kidnapped [Victim], [or] who failed to respond to
the police.” (Emphasis added.) “‘It is well-settled that an
essential element that the government must prove beyond a
reasonable doubt is the identification of a defendant as the
person who perpetrated the crime charged.’” State v. Isom, 2015
UT App 160, ¶ 23 n.2, 354 P.3d 791 (quoting United States v. Boyd,
447 Fed. Appx. 684, 690 (6th Cir. 2011)). But this court has
determined that “‘identification can be inferred from
circumstantial evidence; therefore, direct, in-court identification
is not required.’” State v. Neilson, 2017 UT App 7, ¶ 22, 391 P.3d
398 (quoting Isom, 2015 UT App 160, ¶ 23 n.2).
¶14 In Neilson, the defendant challenged his conviction
because “the State neglected to have any witness identify him in
the courtroom as the perpetrator of any of the charged offenses.”
Id. ¶ 20 (brackets and internal quotation marks omitted). But we
explained, “[T]he identity of the perpetrator was never an issue
at trial,” evidenced by the fact that Neilson never suggested
someone else committed the crime. Id. ¶ 22. Indeed, during the
investigation of the crime, the victim told the police the first
name of her abuser, and “Neilson’s identity as the perpetrator
was further corroborated by Father’s testimony . . . that Father
and Neilson had been good friends for several years and that
Father and [the victim] stayed at Neilson’s house for several
days at a time on multiple occasions.” Id. Thus, there was
“sufficient circumstantial evidence of Neilson’s identity as the
perpetrator of the crimes charged.” Id.
20160477-CA 6 2017 UT App 181State v. Cowlishaw
¶15 As was the case in Neilson, there is circumstantial
evidence that shows Victim identified Cowlishaw as the
defendant. Cowlishaw is correct that on the night of the
kidnapping Victim did not know his last name and instead
provided the officer with what she believed the last name
“sound[ed] like.” But during Victim’s interview, the officers
called Stepfather, who provided Cowlishaw’s “full name,
including the spelling.” The officers then radioed an “attempt to
locate” for “Preston Cowlishaw,” who was arrested the
following day.
¶16 At trial, the State asked Victim whether she knew “the
defendant, Preston Cowlishaw,” before the day of the
kidnapping. Victim responded that she met him a few times at
her house. Then, the State asked Victim, “[A]nd the defendant is
in the courtroom today; is that correct?” Victim responded,
“Yes.” The testimony of Victim and the investigating officers
show that Mother and Stepfather knew Cowlishaw, as they often
provided a place for his mother to sleep and had seen him on
numerous occasions. In addition, on cross-examination, Victim
responded that she returned to the car after Cowlishaw let her
out because “he was somebody that [she] knew from [her] step-
dad. [She] thought [she] could trust him. He said he would take
[her] home, and [she] just wanted to go home.”
¶17 Although Victim did not use Cowlishaw’s full name
when the officers first interviewed her and “never pointed him
out” at trial, Cowlishaw’s assertion that there was “no
identification [made] at all” is not persuasive. 2 As we have
discussed, an in-court identification is not required where
circumstantial evidence establishes the defendant’s identity as
2. Although there is no requirement for a formal, in-court
identification, the better practice would be to ask the witness to
point to, or describe, the defendant present in the courtroom.
20160477-CA 7 2017 UT App 181State v. Cowlishaw
the person who perpetrated the crime charged. See Neilson, 2017
UT App 7, ¶ 22. Here, the evidence was sufficient to show that
Victim knew Cowlishaw prior to her kidnapping and there was
no suggestion at trial that the kidnapping or failure to respond
to the officer’s signal to stop “may have been perpetrated by
someone else.” 3 See id.¶18 Cowlishaw also argues that, while Victim “agreed that the
‘defendant’ was in the courtroom, she did not indicate whether
the defendant was Mr. Cowlishaw.” Further, “[Victim] could
have picked someone else (not Mr. Cowlishaw) in the courtroom
as the person in the vehicle, believing that person was the
defendant . . . [o]r she could have been agreeing that the
defendant was present, but not agreeing that the defendant was
the person who committed the crime.” We disagree. The
questions the State asked Victim do not support the assertion
that she identified someone else as the defendant.
3. Cowlishaw argues that he “consistently argued that he did not
commit the crime.” This is not the case. Defense counsel argued
in closing that because there was no direct, in-court
identification there was not sufficient evidence to establish that
Cowlishaw committed the crimes. He did not argue his client
did not commit the crimes. Rather, defense counsel posited an
alternative theory during closing arguments that placed
Cowlishaw in the stolen vehicle with Victim. Under this theory,
Defense counsel suggested Victim and Cowlishaw “knew each
other, that a car was taken[,] . . . [they] decided to go out that
evening, in this stolen vehicle, and they went out for the sole
purpose of using drugs.” (Emphases added.) Defense counsel
claimed, “This was a voluntary joy ride these individuals went
on[.]” Defense counsel then urged the court to “consider
strongly [this] theory in that [his] client is not guilty of at
least . . . the kidnapping.” This alternative theory appears to
concede that Cowlishaw was sufficiently identified.
20160477-CA 8 2017 UT App 181State v. Cowlishaw
¶19 Because there was sufficient evidence to support that
Cowlishaw committed the kidnapping offense, this evidence
also placed Cowlishaw in the car and provided the identity of
the person who failed to stop at the officer’s signal. We conclude
the trial court did not err in finding Cowlishaw guilty of
kidnapping and failure to respond to the officer’s signal to stop.
II. Theft
¶20 Cowlishaw also contends he should not have been
convicted of theft for two reasons. First, the State failed to
“identify the car stolen as the same car recovered.” Second, “no
witness specifically identified Mr. Cowlishaw as the person
who . . . stole a motor vehicle.” (Emphasis added.) We disagree
with both contentions.
¶21 Cowlishaw argues he should not have been convicted of
theft because the State failed to link the car recovered at the
scene of the crash as Owner’s car. Cowlishaw did not make this
argument at trial, but the court addressed the issue sua sponte,
and it is therefore preserved for appeal. See Helf v. Chevron U.S.A.
Inc., 2015 UT 81, ¶ 42, 361 P.3d 63 (stating that preservation is
satisfied “[w]here a [trial] court itself raises and then resolves an
issue sua sponte, [because] it obviously had an opportunity to
rule on the issue”).
¶22 After closing arguments, the court stated, “I think the
defense raises an interesting argument that [Owner] had never
identified the car that we see in the photographs.” Defense
counsel did not make this argument. Rather, he commented that
the photograph exhibits “show a vehicle that was not at all
described by [Owner],” in reference to the garbage inside the car
to support his argument that Cowlishaw and Victim were using
drugs. He explained, “These pictures look like you would see in
cars that people are living in, that are using [drugs] in. Garbage
strewn everywhere. My theory of this case is . . . that [Victim]
20160477-CA 9 2017 UT App 181State v. Cowlishaw
and [Cowlishaw] went out, started using [drugs] and drove
around. . . . [Owner] testified that this garbage in his vehicle was
not there when it was stolen[.]” But nevertheless, the court
rejected the notion that Owner had not identified the car because
there was “compelling evidence” that suggested the car the
police recovered belonged to Owner, and found Cowlishaw
guilty of theft.
¶23 Cowlishaw argues that because Owner did not identify
the car in the photographs as his and testified that he owned a
“sky blue” car, while three witnesses testified the car was “silver
or grey,” the State failed to “link[] the two [cars] together.” The
State must “definitely identify the goods found in the
defendant’s possession as the goods which were charged to have
been stolen before the jury may draw an inference of guilt based
upon proof of possession by the defendant.” State v. Knill, 656
P.2d 1026, 1028 (Utah 1982) (citation omitted). It appears that
Cowlishaw’s argument is that the State must use direct evidence
to “definitely identify the goods.” See id. He argues that even
though the license plate on the crashed car belonged to Owner
this “does not prove the cars were the same: it proves that
[Owner’s] plate was on the [car] at the scene.” Cowlishaw asserts,
“It is fairly common for people to steal license plates and put
them on another car and absent more evidence . . . [this] does not
confirm the two cars were the same.” We disagree.
¶24 Under rule 901(a) of the Utah Rules of Evidence, in order
to “satisfy the requirement of authenticating or identifying an
item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the
proponent claims it is.” Utah R. Evid. 901(a). Identification of
evidence is satisfied where the proponent describes the
“appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the
circumstances.” Id. R. 901(b)(4).
20160477-CA 10 2017 UT App 181State v. Cowlishaw
¶25 In this case, the trial court ruled that “while [Owner] may
not have identified the photographs . . . based on the totality of
the evidence, there’s no question that the car” belonged to
Owner. The court noted that the police contacted Owner when
they found his car, Owner went to the impound lot to look at it,
and then described the appearance, model, and color of the car
at trial, “which [was] consistent with the . . . car that we have in
the photographs.” And in closing, defense counsel asked the
court to “consider strongly” his theory that Cowlishaw was not
guilty of the kidnapping, and instead that Victim and
Cowlishaw went on a “voluntary joy ride[,]” even though this
argument “place[d] [his] client directly in a stolen vehicle, and it
place[d] him at the scene of the crash.” (Emphasis added.) The
court concluded there was “[no] question that the defendant was
the one involved in the theft of this motor vehicle.” We conclude
this evidence was sufficient for the trial court to find that the car
recovered at the scene belonged to Owner.
¶26 Cowlishaw also contends that the State failed to
“specifically identify him” as the thief because no one pointed to
him as the defendant at trial. He argues that Owner “did not see
who took the car,” and the State failed to identify him at trial as
the thief. We disagree.
¶27 As previously discussed, there was sufficient
circumstantial evidence presented at trial to identify Cowlishaw
as the kidnapper. See supra ¶¶ 15–19. This also provided
sufficient evidence to place Cowlishaw in the car that failed to
respond to an officer’s signal to stop, see supra ¶ 19, which is the
same car that was found at the scene of the crash. Deputy
checked the car’s license plate and discovered that the car was
reported stolen earlier that day. In addition, at trial, the State
presented fingerprint evidence and an expert witness to discuss
the fingerprint findings. The expert explained that the police
obtained two fingerprints from the car: one from the cup in the
center console and the other from the exterior of the driver’s
20160477-CA 11 2017 UT App 181State v. Cowlishaw
door window. Both sets of fingerprints matched Cowlishaw’s
fingerprints. When comparing the fingerprints taken from the
car with Cowlishaw’s fingerprints, the expert found fifteen
“points of comparison.” The expert testified that when there are
more than ten points of comparison, there is “no doubt . . . that
those two impressions were made by the same person.” Here,
the two fingerprints were made by the same person: Cowlishaw.
¶28 Cowlishaw concedes that at trial he did not “challenge the
fingerprint finding itself” or its admissibility. But he claims he
alerted the trial court that “fingerprint evidence is not 100
percent conclusive” and now argues “the court could not take
the fingerprint evidence as a given to match Mr. Cowlishaw.”
¶29 The weight assigned to the evidence admitted at trial “is a
factual determination made by the fact finder.” State v. Sheehan,
2012 UT App 62, ¶ 28, 273 P.3d 417. Utah courts have “always
treated fingerprint evidence like any other evidence and have
never evaluated its sufficiency to support a conviction by a
separate, more stringent standard.” State v. Hamilton, 827 P.2d
232, 237 (Utah 1992); see also State v. Quintana, 2004 UT App 418,
¶ 6, 103 P.3d 168 (concluding that “fingerprint evidence is not
novel and raises no special evidentiary concerns”) (citation
omitted)). And “[q]uestions that go to the weight to be accorded
fingerprint evidence are fairly obvious and straightforward and
are subject to complete illumination through cross-examination
and jury argument.” Hamilton, 827 P.2d at 237–38. Thus,
fingerprint evidence should not be considered “differ[ent] from
any other circumstantial evidence” and the fact finder “can
weigh it with the rest of the evidence in determining a
defendant’s guilt.” Id.
¶30 There was no suggestion at trial that anyone other than
Cowlishaw stole Owner’s car. See State v. Neilson, 2017 UT App
7, ¶ 22, 391 P.3d 398. Victim’s testimony and other circumstantial
evidence placed Cowlishaw in the car that crashed the night she
20160477-CA 12 2017 UT App 181State v. Cowlishaw
was kidnapped. The fingerprints taken from the exterior of
Owner’s car window and the cup located inside the car were
Cowlishaw’s. The trial court had the discretion to weigh the
fingerprint evidence with the rest of the evidence in determining
Cowlishaw’s guilt. See Hamilton, 827 P.2d at 238. Thus, the trial
court did not err in finding that Cowlishaw stole Owner’s car.4
¶31 We conclude the trial court did not err in rendering a
guilty verdict on the theft charge.
CONCLUSION
¶32 We conclude that the trial court did not err in rendering a
guilty verdict against Cowlishaw on all counts charged against
him.
¶33 Affirmed.
4. Although courts have been reluctant to accept challenges to
fingerprint evidence, see State v. Maestas, 2012 UT 46, ¶ 133
n.143–46, 299 P.3d 892, we do not foreclose the possibility that
such challenges may be successful in the future. We merely
conclude that, under the circumstances of this case, Cowlishaw
has not established that the trial court abused its discretion in
weighing the fingerprint identification evidence in this case.
20160477-CA 13 2017 UT App 181