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State v. Cowlishaw

Court of Appeals of Utah

September 28, 2017

State of Utah, Appellee,
v.
Preston Michael Cowlishaw, Appellant.

         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.

         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 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, 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 ...


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