2013 UT App 212
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ROGER SCOTT FOWERS,
Defendant and Appellant.
Memorandum Decision
No. 20110936‐CA
Filed August 29, 2013
Third District, Salt Lake Department
The Honorable Randall N. Skanchy
No. 111900446
Lori J. Seppi and Lisa J. Remal, Attorneys for
Appellant
John E. Swallow and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE WILLIAM A. THORNE JR. authored this Memorandum
Decision, in which JUDGES CAROLYN B. MCHUGH and
J. FREDERIC VOROS JR. concurred.
THORNE, Judge:
¶1 Roger Scott Fowers appeals his conviction for attempted
kidnapping. See Utah Code Ann. § 76‐5‐301 (LexisNexis 2012); see
also id. § 76‐4‐101.1 Fowers argues that the evidence presented by
the State was insufficient to support his conviction and that the
district court therefore erred in denying his motion to dismiss. We
affirm.
1
The statutes relating to Fowers’s conviction have not
been amended since the date of his offense, and we cite the
current version of those statutes throughout.
State v. Fowers
¶2 Fowers’s conviction arose from an incident that occurred on
the midmorning of January 18, 2011.2 Fowers had been driving
around Salt Lake City looking for a prostitute when he saw the
victim, fourteen‐year‐old T.H., walking down the sidewalk on
Main Street at approximately 1580 South. Fowers pulled his car
alongside T.H., rolled down the window, and asked T.H. if she
needed a ride. T.H. said no. Fowers then drove forward a few feet
and pulled into a driveway entrance, blocking the sidewalk in front
of T.H. Fowers again spoke to T.H. and offered her a ride. T.H.
again told Fowers no. Fowers then got out of his car, grabbed
T.H.’s forearm tightly, and said, “I can give you a ride, just get in.”
T.H. told him no and tried to shake free. Fowers held T.H.’s arm
until she kicked him in the knee, at which point he let go and she
fled. Fowers was arrested in the area shortly thereafter.
¶3 The State charged Fowers with one count of kidnapping,
and the district court conducted a jury trial on August 3 and 4,
2011. At the close of the State’s case in chief, Fowers moved to
dismiss the case against him for insufficiency of the evidence, and
the district court denied Fowers’s motion. The jury ultimately
acquitted Fowers of kidnapping but convicted him of the lesser
included offense of attempted kidnapping.
¶4 On appeal, Fowers argues that the district court erred in
denying his motion to dismiss because the State presented
insufficient evidence to support his ultimate conviction of
attempted kidnapping.3 Our review of the district court’s decision
2
“On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Brown, 948 P.2d 337, 339 (Utah 1997).
3
The language of rule 17(p) of the Utah Rules of Criminal
Procedure suggests that a defendant’s motion to dismiss a
charge via a directed verdict necessarily incorporates a request
(continued...)
20110936‐CA 2 2013 UT App 212
State v. Fowers
to grant or deny a motion to dismiss “is a question of law [that] we
review for correctness, giving no deference to the decision of the
[district] court.” State v. Hamilton, 2003 UT 22, ¶ 17, 70 P.3d 111
(first alteration in original) (citation and internal quotation marks
omitted).
¶5 Fowers’s argument asks us to review the question of
whether the evidence presented by the State was sufficient to
support the jury’s ultimate verdict. See id. ¶ 41 (“When evaluating
whether the State produced sufficient ‘believable evidence’ to
withstand a challenge at the close of the State’s case in chief, we
apply the same standard used when reviewing a jury verdict.”). In
reviewing the sufficiency of the evidence, we view “the evidence
and all reasonable inferences drawn therefrom in a light most
favorable to the verdict.” State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d
1116. We will reverse a jury verdict “only when the evidence, so
viewed, is sufficiently inconclusive or inherently improbable such
3
(...continued)
that all lesser included offenses also be dismissed. See Utah R.
Crim. P. 17(p) (“At the conclusion of the evidence by the prose‐
cution . . . the court may issue an order dismissing any informa‐
tion or indictment, or any count thereof, upon the ground that
the evidence is not legally sufficient to establish the offense
charged therein or any lesser included offense.”). Fowers’s brief,
however, raises the possibility that his failure to expressly re‐
quest the dismissal of the lesser included offense of attempted
kidnapping presents a preservation problem to his arguments on
appeal, and he argues plain error as an exception to the preser‐
vation rule. The State does not pursue this particular preserva‐
tion argument on appeal, and we elect to simply address
Fowers’s issues under the ordinary error standard without
considering preservation. See generally Patterson v. Patterson, 2011
UT 68, ¶ 13, 266 P.3d 828 (“Our preservation requirement is
self‐imposed and is therefore one of prudence rather than juris‐
diction.”).
20110936‐CA 3 2013 UT App 212
State v. Fowers
that reasonable minds must have entertained a reasonable doubt
that the defendant committed the crime for which he or she was
convicted.” State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993).
¶6 The State’s primary theory in support of the kidnapping
charge was that Fowers “detain[ed] or restrain[ed]” a minor
between the ages of fourteen and eighteen without the consent
of the minor’s parent. See Utah Code Ann. § 76‐5‐301(1)(d)
(LexisNexis 2012).4 The State was further required to prove that
Fowers did so “intentionally or knowingly, without authority of
law, and against the will of the victim.” Id. § 76‐5‐301(1). A person
is guilty of an attempt to commit a crime if he or she engages in
conduct constituting a substantial step toward the commission of
that crime that strongly corroborates his or her intent to commit the
crime. See id. § 76‐4‐101. Thus, to affirm Fowers’s conviction of
attempted kidnapping, we need only determine that there was
sufficient evidence presented to show that Fowers engaged in
conduct constituting a substantial step towards detaining or
restraining T.H. and strongly corroborating his intent to detain or
restrain her.5
¶7 At trial, T.H. testified for the State that Fowers blocked her
path with his car, got out of the car, and told her to “just get in”
after she had twice refused his offer of a ride. T.H. further testified
4
Utah’s kidnapping statute identifies five ways in which
the crime of kidnapping may be committed. See Utah Code Ann.
§ 76‐5‐301(1)(a)–(e) (LexisNexis 2012). Under the circumstances,
the State focused on proving kidnapping on the theory that
Fowers detained or restrained fourteen‐year‐old T.H. without
parental consent. See id. § 76‐5‐301(1)(d).
5
It appears to be undisputed on appeal that there was
adequate evidence that T.H. was fourteen years old at the time of
the offense and that there was no parental consent to Fowers’s
actions.
20110936‐CA 4 2013 UT App 212
State v. Fowers
that he grabbed her forearm hard enough to leave red marks and
only released her arm when she kicked him. Additionally, the State
presented testimony from the police officer who had interviewed
Fowers after his arrest. The officer testified that Fowers himself
partially corroborated T.H.’s version of events by admitting that he
was in the area looking for prostitutes at the time of the incident
and that he twice asked a young woman walking along Main Street
if she needed a ride.6 Viewing this evidence in the light most
favorable to the jury’s verdict, we cannot say that it is “sufficiently
inconclusive or inherently improbable such that reasonable minds
must have entertained a reasonable doubt” that Fowers committed
the crime of attempted kidnapping. Dunn, 850 P.2d at 1212.
¶8 Despite this evidence, Fowers challenges the district court’s
denial of his motion to dismiss by alleging certain inconsistences in
T.H.’s testimony. For example, Fowers argues that if the incident
occurred as described by T.H., there would have been witnesses.
However, the State did not present any such witnesses. Fowers also
argues that T.H. was not able to describe the pants that Fowers was
wearing at the time of the incident and that, therefore, she must not
have seen him outside of his vehicle. He also argues that there were
inconsistencies in the evidence as to the red marks on T.H.’s arm,
whether she was wearing a sweatshirt at the time of the incident,
and whether Fowers blocked her path by pulling his vehicle into a
driveway or a city street.
¶9 Notwithstanding these alleged inconsistencies, it is not in
our prerogative to weigh conflicting evidence or to determine the
credibility of witnesses. See State v. Romero, 554 P.2d 216, 218 (Utah
1976). Rather, that is the role of the jury. See State v. Goddard, 871
P.2d 540, 543 (Utah 1994). Here, the jury heard and evaluated the
totality of the evidence and found Fowers guilty of attempted
kidnapping. We will not disturb the district court’s decision to send
6
The officer also testified that Fowers denied leaving his
car during the incident.
20110936‐CA 5 2013 UT App 212
State v. Fowers
the case to the jury based on the tangential inconsistencies that
Fowers has identified. Cf. State v. Rivera, 954 P.2d 225, 229 (Utah Ct.
App. 1998) (“[A]ny conflicts in [the witness’s] description of [the
defendant’s] height, the brand of his shoes, or the details of his hat
were not significant enough to make her identification entirely
unreliable.”).
¶10 In sum, despite minor inconsistencies in T.H.’s testimony,
the evidence presented by the State was sufficient to support the
district court’s denial of Fowers’s motion to dismiss. T.H. testified
that it was Fowers who had initiated an encounter with her on the
morning in question, and this was largely corroborated by the
interviewing officer’s testimony regarding Fowers’s admissions on
the day of his arrest. T.H. further testified that the encounter ended
with Fowers exiting his vehicle, grabbing her, and telling her to
“just get in.” This evidence was sufficient to support the district
court’s decision to deny Fowers’s motion to dismiss and send the
case to the jury, and we therefore affirm Fowers’s conviction for
attempted kidnapping.
20110936‐CA 6 2013 UT App 212