State v. Cowan

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

NICHOLAS CODY COWAN, Appellant.

No. 1 CA-CR 25-0090
FILED 01-13-2026

Appeal from the Superior Court in Maricopa County
No. CR2024-007153-001
The Honorable Kerstin G. LeMaire, Judge

AFFIRMED

COUNSEL

Vingelli & Company Law Offices PLLC, Scottsdale
By John N. Vingelli
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Joseph A. Newberg, II
Counsel for Appellee
 STATE v. COWAN
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge Daniel J. Kiley joined.

F U R U Y A, Judge:

¶1 Nicholas Cody Cowan appeals from his convictions and
sentences. Cowan contends he was denied his right to a fair and impartial
jury of his peers as required by Article 2, Section 24 of the Arizona
Constitution. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On the morning of April 14, 2022, Cowan and his girlfriend,
Tara, were arguing at their house. Cowan threatened to harm himself and
told Tara if she called the police, he would “shoot it out with them.”
Concerned Cowan would harm himself, Tara left the house and went to a
gas station to call 911 for help. Officers responded to the call and arrived at
the gas station. As Tara was talking to the officers, Cowan pulled into the
gas station and shot one of the officers in the “abdomen/pelvic area.” As
that officer collapsed, Cowan continued to shoot, and the other officer
returned fire. Cowan fled the scene. The officer who was shot was seriously
injured and required abdominal surgery.

¶3 Cowan evaded police for several days. The police found his
cell phone inside a storm drain. Three days after the incident, police
received a tip that Cowan was at a short-term rental property in Scottsdale.
Officers located Cowan at the property and took him into custody.

¶4 A grand jury indicted Cowan on two counts of attempted
first-degree murder, three counts of aggravated assault, one count of drive-
by shooting, and one count of misconduct involving weapons. The court
severed the misconduct involving weapons count,1 and held a jury trial on
the remaining charges.

¶5 To begin jury selection, the court utilized a written juror
questionnaire to screen potential jurors. At a hearing in January 2025, the
court and counsel for the parties reviewed the jurors’ answers to the

1 The court later dismissed this count in its sentencing order.

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questionnaires for potential dismissal. The court stated that it would strike
all jurors who indicated they did not understand English well enough to
participate. Cowan objected, arguing that the court should provide
interpreters for otherwise-qualified jurors who have limited English
proficiency, but the court overruled this objection. Cowan did not make any
other objections to dismissal of these jurors and did not request oral voir
dire of the dismissed jurors.

¶6 At trial, after the State presented its evidence, the jury found
Cowan guilty on all counts as charged and the State had proven
aggravators for all counts. The court sentenced Cowan to a total of 68 years’
imprisonment. Cowan timely appealed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) Sections 12-120.21(A)(1), 13-4031, and
13-4033(A).

DISCUSSION

¶7 Cowan argues the court erred by dismissing jurors who
indicated they lacked sufficient English proficiency in their juror
questionnaire without first conducting an individual inquiry into each
juror’s English proficiency and making a finding as to those jurors’
ineligibility. But this was not the objection Cowan raised before the trial
court, and so he raises it for the first time on appeal. Because he did not
initially object to the court’s dismissal of jurors on this basis, we review
Cowan’s arguments for fundamental error only. State v. Escalante, 245 Ariz.
135, 138 ¶ 1 (2018) (“When a defendant fails to object to trial error, he forfeits
appellate relief absent a showing of fundamental error.”); accord Ariz. R.
Evid. 103(e).

¶8 To succeed under fundamental error review, an appellant
must first establish there was an error at trial. Escalante, 245 Ariz. at 142
¶ 21. Next, an appellant must show that the error was fundamental because
it (1) went to the foundation of the case, (2) took away an essential right
“necessary to demonstrate a viable defense or rebut the prosecution’s
case[,]” or (3) “was so egregious that he could not possibly have received a
fair trial.” Id. at 141–42 ¶¶ 18–21. Finally, if the appellant relies on prong
one or two, there must be a showing of prejudice. Id. at 142 ¶ 21. “The
[appellant] bears the burden of persuasion at each step.” Id.

¶9 Addressing the first prong as to Cowan’s appeal, A.R.S.
Section 21-202(B)(3) requires dismissal of prospective jurors “not currently
capable of understanding the English language.” This is because English is
the language used by the judicial system and “[i]t would be an undue

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burden upon the State court system to have to translate for non-English
speaking or reading jurors . . . .” State v. Cordova, 109 Ariz. 439, 441 (1973).
Our supreme court has rejected constitutional challenges to this statute. See
State v. Cota, 229 Ariz. 136, 143 ¶¶ 13–16 (2012). Further, “the court can
dismiss [prospective] jurors based on questionnaire responses, particularly
if neither party objects nor seeks further questioning.” State v. Lucas, __
Ariz. __, __, 578 P.3d 822, 827 ¶ 28 (App. 2025) (citing State v. Jones, 197 Ariz.
290, 303 (2000))2; State v. Anderson, 197 Ariz. 314, 324 ¶ 24 (2000).

¶10 Here, the court relied on responses of potential jurors to its
questionnaire—provided under oath. These responses indicated some
jurors’ inability to sufficiently understand English, a disqualifying
circumstance. Being apprised of these responses—and upon which it was
entitled to rely, Jones, 197 Ariz. at 303—the court had a duty to dismiss those
potential jurors who did not qualify, A.R.S. § 21-202(B)(3). The court’s
compliance with its statutory duty did not constitute error, let alone
fundamental error.

¶11 But even assuming fundamental error, Cowan has not shown
the requisite prejudice. To demonstrate prejudice, Cowan must show that
“as a result of the inadequate questioning, the jury selected was not fair,
unbiased, and impartial.” State v. Riley, 248 Ariz. 154, 174 ¶ 51 (2020)
(citation omitted). So, Cowan must show that “without the error, a
reasonable jury could have plausibly and intelligently returned a different
verdict.” Id. at 177 ¶ 68 (citation omitted). “Prejudice will not be presumed
but must appear affirmatively from the record.” Id. at 174 ¶ 51 (quoting
State v. Hoskins, 199 Ariz. 127, 141 ¶ 48 (2000)). This is an objective standard
and “necessarily excludes imaginative guesswork.” Escalante, 245 Ariz. at
144 ¶ 31.

¶12 Here, Cowan contends the trial court erred in failing to make
individual inquiries of each juror who asserted a lack of understanding of

2 In Lucas we concluded that a trial court erred by conducting jury
selection entirely based on the responses to written juror questionnaires,
with no in-person questioning. Lucas, 578 P.3d at 827. However, that case is
distinguishable from this appeal. In Lucas, there was a properly raised
objection to the court proceeding without further questioning. Id. More
importantly, Lucas confronted identifiable prejudice in an allegation that a
biased juror had been seated because of the court’s failure to conduct
further individualized inquiry. Id. at 829 ¶¶ 42–43. Here, Cowan did not
object and did not allege that any biased jurors were seated because of the
court’s reliance on written questionnaire answers provided under oath.

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English. But he fails to show how this lack of individual inquiry resulted in
an unfair or biased jury. Indeed, Cowan does not assert that his jury was
unfair or biased at all, and he does not affirmatively demonstrate this from
the record. See State v. Bush, 244 Ariz. 575, 583 ¶ 20 (2018) (“[We] will not
disturb the trial court’s selection of the jury in the absence of a showing that
a jury of fair and impartial jurors was not chosen[.]”). He also does not
allege that a reasonable jury could have returned a different verdict, and as
such, fails to establish prejudice. See Riley, 248 Ariz. at 186 ¶ 117 (“To prove
prejudice, [the appellant] has the burden of showing that a reasonable jury
could have come to a different verdict.”) (citation omitted). As a result,
Cowan has failed to prove, or even claim, prejudice due to the court’s
alleged error.

¶13 Because he has shown no error or prejudice, Cowan’s
arguments on appeal fail.

CONCLUSION
¶14 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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