State v. Cowlishaw

2017 UT App 181

THE 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

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State 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,

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State 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…)

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State 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 181

State 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.

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State 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.

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State 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.

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State 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]

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State 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 181

State 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

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State 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

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State 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.

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