                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2017-KA-01381-SCT

CHAD BOWMAN a/k/a OSCAR CHAD BOWMAN
a/k/a CHADWICK BOWMAN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        04/07/2017
TRIAL JUDGE:                             HON. JAMES T. KITCHENS, JR.
TRIAL COURT ATTORNEYS:                   WILBUR O. COLOM
                                         TOMMY RAY SAVANT
                                         ROBERT THOMAS RICH
                                         SCOTT WINSTON COLOM
                                         STANLEY ALEXANDER
                                         KIMBERLY TAFT PURDIE
COURT FROM WHICH APPEALED:               NOXUBEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 JULIE ANN EPPS
                                         ROBERT THOMAS RICH
                                         TOMMY RAY SAVANT
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: KAYLYN HAVRILLA McCLINTON
SPECIAL PROSECUTOR:                      OFFICE OF THE ATTORNEY GENERAL
                                         BY: STANLEY ALEXANDER
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED AND REMANDED - 10/03/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.

      MAXWELL, JUSTICE, FOR THE COURT:

¶1.   A jury convicted Chad Bowman of one count of burglary of a dwelling—a hunting

camp where his wife had stayed during the early part of Mississippi’s bowhunting season.
On appeal, Bowman argues the State failed to sufficiently prove the hunting camp was, at

the time of the alleged burglary, a dwelling house. Bowman does not dispute that, under

Mississippi law, a hunting camp may be considered a dwelling house. Instead, Bowman

argues the hunting camp was not Emily Anne’s dwelling house, as charged in the indictment,

because she neither owned the hunting camp—Southland Tube did—nor did she intend the

hunting camp to be her permanent residence. After review, we find the State sufficiently

proved Emily Anne was residing in the hunting camp when Bowman broke in. That is all

Mississippi law required. And the indictment’s allegation that the hunting camp was owned

by Southland Tube was mere surplusage, which the State still proved beyond a reasonable

doubt.1

¶2.   We affirm Bowman’s conviction. But because of the apparent confusion over the

length of time Bowman must serve, we remand the case for resentencing.

                       Background Facts and Procedural History

¶3.   In Mississippi, bowhunting season for deer begins in October. And Emily Anne

Chenoweth (formerly Emily Anne Bowman) spent many days in October 2014 at the

Southland Plantation hunting camp to bowhunt. During this time, she also helped her mother

renovate and update the camp. The hunting camp also served as Emily Anne’s escape from

a rapidly deteriorating and abusive relationship with her husband, Chad Bowman. In the

early morning hours of October 18, 2014, Bowman broke into the hunting camp and attacked

Emily Anne and the camp’s caretaker, Wayne Stewart, Jr. This episode ended with Bowman



      1
          See Taylor v. State, 214 Miss. 263, 266, 58 So. 2d 664, 665 (1952).

                                             2
being charged with burglary, aggravated assault, and attempted murder. Bowman was

convicted of burglary and acquitted of the remaining charges.

       I.     Emily Anne and Bowman’s Marriage

¶4.    Emily Anne and Bowman married in February 2010 and lived in Canton, Mississippi.

Shortly after their marriage, Bowman began “self-medicating” with marijuana, prescription

drugs, and alcohol to “control his anger.” But according to Emily Anne, Bowman remained

angry and controlling, particularly about the couple’s finances. In October 2014, Bowman’s

outbursts over money and other issues began to escalate and turned physical. Emily Anne

testified Bowman’s drug and alcohol use increased. And she started spending more time at

the hunting camp to hunt and to get away from Bowman.

¶5.    Southland Plantation is a hunting camp outside Macon in Noxubee County,

Mississippi, owned by Southland Tube, Inc.         Because Emily Anne’s father, David

Chenoweth, worked for Southland Tube, she had permission to use the camp. She just had

to give advance notice either to her father or to Wayne.

¶6.    Emily Anne stayed at the camp from October 1 to October 5. When she returned to

Canton, Bowman was upset she had only worked Monday and Tuesday that week and had

been paid only for those days. On October 7, 2014, Bowman became enraged at Emily Anne

about money and grabbed her to keep her from leaving. Bowman bruised her arms and legs

in that encounter. The next day at work, she told her coworker Anna Fumbanks, who took

pictures of the bruises. Emily Anne rejected Fumbanks’s advice to call the police. Emily

Anne finished the work week and returned to the camp the weekend of October 11 and 12.



                                             3
¶7.    Emily Anne planned to return to the hunting camp the evening of October 17,

intending to stay through October 19. As Emily Anne tells it, that Friday night, she told

Bowman they should see a marriage counselor and suggested he get medication to balance

him out. If he did not, she would leave him. Bowman reacted by screaming at her. He

warned her that if she left, she would not be coming back. When she tried to leave in her car,

he reached in and pulled her out. She fell to the concrete and Bowman dragged her on the

pavement until she broke free and escaped back to her car. She then left for the hunting

camp. When she arrived, she found the camp locked. So she went to wake Wayne. Wayne

followed her to the camp house and unlocked it for her. And the two sat on the couch and

talked about the episode in Canton earlier that night. Eventually, they fell asleep next to each

other on the couch.

       II.    October 18, 2014

              A.      Bowman’s Version

¶8.    According to Bowman, the night of October 17, he and Emily Anne had dinner. They

talked about her going hunting that weekend and discussed finances. He testified their

conversation was not pleasant, but there was no yelling or screaming. Emily Anne later

packed up her bow, a hunting bag, and a bag of clothes, then headed to the hunting camp.

The two also exchanged text messages and talked on the phone before she arrived in Macon.

¶9.    Bowman claims that when he woke at 3:00 a.m. on October 18, he checked his phone

and saw a text message from Emily Anne saying she was at the hunting camp. Bowman

testified he tried to call Emily Anne six times to “just talk to her and make sure she made it



                                               4
okay.” But she did not answer. So Bowman decided to get in his car around 3:15 a.m. and

drive to Macon. He arrived around 5:00 to 5:15 a.m.

¶10.   Bowman testified he saw Emily Anne’s car and Wayne’s truck in the driveway. He

got out and went to the front door. He saw that the television was on. He also saw an empty

wine bottle with two wine glasses on the coffee table. And he noticed there were no pillows

on the couch. Since the front door was locked, he walked to the back of the camp and

entered through an unlocked sliding glass door. The door to the master bedroom upstairs was

closed. So he walked upstairs, opened the bedroom door, and flipped on the lights. When

he pulled the bedcovers off, he saw Emily Anne and Wayne in bed together, naked. Both

Emily Anne and Wayne jumped out of bed. And Bowman punched Wayne in the jaw.

¶11.   After recovering from the punch, Wayne rushed him. Bowman grabbed Wayne by

the neck and choked him until he fell to the ground. Bowman then went downstairs. He

claimed he phoned David Chenoweth to say he had caught Emily Anne and Wayne in bed.

When Wayne started coming downstairs, Bowman hung up. Wayne rushed Bowman, so he

hit Wayne again. As Bowman left the house, Wayne put a gun to his head. Bowman turned

to face Wayne, said a few words, and then headed for his car. Wayne got in his truck and

left. Emily Anne got in her car and followed Bowman to a nearby gas station before

returning to the hunting camp.

              B.     Emily Anne’s Version

¶12.   Both Emily Anne and Wayne tell a different story. They claim they were asleep on

the couch and they both woke when Bowman entered the camp house. Bowman immediately



                                            5
pulled Wayne over the back of the couch and began choking him. As Wayne blacked out,

Bowman told Emily Anne that he had killed Wayne. Bowman then turned to Emily Anne

and began choking her. But Wayne regained consciousness. So Bowman released Emily

Anne and dragged Wayne over to the dining table. Bowman grabbed a wooden chair and

swung it at Wayne. But the chair caught the underside of the staircase. Bowman then

dropped the chair and grabbed a shower rod off the table. He beat Wayne with the rod on

his arms, hands, and head. He then turned to Emily Anne. But before Bowman could strike

Emily Anne with the rod, Wayne grabbed his pistol from the coffee table. Wayne pointed

the gun at Bowman and told him to get out of the camp house, which he did. At that point,

Emily Anne told Wayne to leave and said that she could handle Bowman.

¶13.   As Emily Anne and Wayne walked out of the camp house, they saw Bowman near

Emily Anne’s car. Wayne got in his truck and was backing out when Bowman approached

his passenger window and pointed a pistol he had taken from Emily Anne’s car at Wayne.

Emily Anne jumped on Bowman’s back. Bowman managed to pull her off. He then pulled

her head up by her ponytail, said “die bitch,” and pulled the trigger. The gun clicked but did

not fire. He then released Emily Anne. Afterwards, both Emily Anne and Wayne saw

Bowman sitting down, pointing the gun underneath his chin.

¶14.   Bowman eventually stood up and asked Emily Anne to follow him to a gas station.

All three left the hunting camp. Emily Anne followed Bowman to the gas station but did not

stop. Instead, she continued driving and found an open field where she called her father and

cried for a long time.



                                              6
       III.   Trial

¶15.   The hunting-camp events formed the basis of Bowman’s indictment and trial for

attempted murder, burglary, and aggravated assault. After each side presented its case, the

State and defense discussed jury instructions with the court, eventually agreeing on most

instructions. The judge then instructed the jury. After deliberating, the jury found Bowman

guilty of burglary but not guilty of attempted murder or aggravated assault. The judge

ordered a presentencing investigation. He considered the victim’s impact statement, and

heard mitigation testimony from Bowman’s children, his father, his first wife, and Bowman

himself. The judge sentenced Bowman to a term of twenty years in prison, with ten years

suspended and five years of post-release supervision. Bowman filed a motion for a new trial,

but the judge denied his motion. Bowman appealed.

                                          Discussion

¶16.   Bowman claims: (1) the evidence was insufficient to support a burglary conviction;

(2) the jury’s verdict was against the weight of the evidence; (3) the trial court failed to give

two jury instructions; (4) the judge admitted improper Rule 404(b) evidence; and (5) his

sentence was based on misapplied or misunderstood law. After review, we find Bowman’s

burglary conviction is supported by the sufficiency and weight of the evidence. We find

Bowman waived any challenge to his newly proposed jury instructions by not requesting

them at trial. We also find the trial judge did not abuse his discretion by admitting the

assault-based evidence under Rule 404(b) of the Mississippi Rules of Evidence. As to

Bowman’s prior alcohol and drug use, even if that evidence was wrongly admitted, any error



                                               7
was at most harmless. We do, however, find the judge apparently misconstrued the

sentencing law, which has recently been clarified by this Court. We affirm Bowman’s

conviction for burglary but remand the case for resentencing.

       I.     Sufficiency of the Evidence

¶17.   Bowman first argues the State failed to prove beyond a reasonable doubt the essential

elements of dwelling-house burglary.

              A.     Dwelling House

¶18.   Burglary of a dwelling house is a distinct statutory crime from burglary of a non-

dwelling house. Compare Miss. Code Ann. § 97-17-23 (Rev. 2014) (burglary of a dwelling

house) with Miss. Code Ann. § 97-17-33 (Rev. 2014) (burglary of other buildings). See also

Woods v. State, 186 Miss. 463, 191 So. 283, 284 (1939). So the fact the hunting camp was,

at the time of the alleged burglary, a dwelling house was an essential element of the crime

the State had to prove beyond a reasonable doubt. Carr v. State, 770 So. 2d 1025, 1029

(Miss. Ct. App. 2000).

¶19.   Here, Bowman does not dispute that under Mississippi law a hunting camp may be

considered a dwelling house. Young v. State, 952 So. 2d 1031, 1033-34 (Miss. Ct. App.

2007) (affirming that a fully furnished and stocked hunting cabin was a dwelling house);

Campbell v. State, 883 So. 2d 115, 118-119 (Miss. Ct. App. 2004) (same). Cf. Gillum v.

State, 468 So. 2d 856, 859 (Miss. 1985) (holding that a frequently and regularly visited

weekend coastal home was a dwelling house). But he does contend that the State failed to

prove it was the “dwelling house of Emily Anne,” as was charged in the indictment and



                                             8
instructed to the jury.2 Bowman argues the hunting camp was not Emily Anne’s dwelling

house because she neither owned the hunting camp—Southland Tube did—nor did she

intend it to be her permanent residence.

¶20.   But contrary to Bowman’s assertions, the State did not have to prove Emily Anne

owned the hunting camp—only that she occupied it. “Possession is enough as against

burglars.” Lewis v. State, 85 Miss. 35, 40, 37 So. 497, 497 (1904) (citing Wharton’s

Criminal Law § 804 (10th ed.) (holding that indictment’s charge and the State’s proof of

ownership of the building was sufficient because the person charged with ownership “used

and occupied” the building at the time of the burglary)). This is because, “[a]t common law,

burglary was considered to be an offense against habitation rather than against property,” and

“what was sought to be protected was the peace of mind and security of the residents, rather

than the property.” Robinson v. State, 364 So. 2d 1131, 1133 (Miss. 1978) (quoting 85

A.L.R. 428 (1933)). Cf. Taylor v. State, 214 Miss. 263, 266, 58 So. 2d 664, 665 (1952)

(“This Court has held in several cases that in an indictment for burglary the allegations as to

the ownership of the title to the building constitute surplusage, and, insofar as the burglary

is concerned, the occupant of the building at the time of the burglary is the owner . . . .”

(citing Clinton v. State, 163 Miss. 435, 142 So. 17 (1932); Davis v. State, 173 Miss. 783, 163

So. 391 (1935)). Here, the State sufficiently proved Emily Anne was residing in the hunting



       2
        The indictment charged that Bowman “did unlawfully, willfully, feloniously and
burglariously break and enter the dwelling house of Emily Bowman, owned by Southland
Tube, Inc., with the intent to commit a crime therein, to-wit: assault, in violation of
[Mississippi Code Section] 97-17-23 . . . .” And the jury instruction on this count tracked
the language of the indictment.

                                              9
camp when Bowman broke in. That is all the law required. And the allegation in the

indictment that the hunting camp was in fact owned by Southland Tube was mere surplusage,

which the State nonetheless proved at trial beyond a reasonable doubt. See Taylor, 58 So.

2d at 665.

¶21.   Also contrary to Bowman’s assertions, the State did not have to prove the hunting

camp was Emily Anne’s permanent, continuous residence. As support for his permanent-

residence argument, Bowman cites Robinson v. State. But the facts of Robinson are

inapposite. That case dealt with a motel room, which the Court found was not the dwelling

house of a woman who had rented it in the wee hours of the night to share with a man she

had met at a club. Robinson, 364 So. 2d at 1132-34. However, the Court noted, “[i]n the

event there is permanent dwelling of a person or his family in a hotel or motel, that would

be his dwelling house.” Id. at 1134 (emphasis added).

¶22.   Here, we are not dealing with a hotel or motel room. We are dealing with a house.

And this Court has long-held that “[a] building which is in fact a dwelling-house does not

lose its character as such by a mere temporary absence of its inhabitants who have left with

intent to return . . . .”3 Scott v. State, 62 Miss. 781, 782 (1885). Further, “[t]he seasonal or

intermittent use of a residence . . . does not prevent it from becoming a dwelling.” Gillum,

468 So. 2d at 859.

       3
          This principle is not unique to Mississippi. Under Georgia law, “[t]here is no
requirement in the law that a house be continuously occupied in order to be a ‘dwelling’. It
is sufficient that it is occasionally occupied for residential purposes and any such lawful
occupant has a superior right as against burglars for the purpose of an indictment.”
Montgomery v. State, 195 S.E.2d 784, 785 (Ga. Ct. App. 1973) (citing Houston v. State,
38 Ga. 165 (1868)).

                                              10
¶23.   In Gillum, this Court recognized that “a person may simultaneously have two

dwellings subject to burglary and sometimes reside with his family in one and sometimes in

the other.” Id. at 860. So the fact Emily Anne considered the marital home she shared with

Bowman in Canton her residence did not foreclose the hunting camp that she seasonally used

from also being her dwelling. See also Washington v. State, 753 So. 2d 475, 478 (Miss. Ct.

App. 1999) (holding that a Mississippi house regularly visited by a Wisconsin woman was

“a dwelling as contemplated by the burglary statute”). Emily Anne testified that, during

bowhunting season, she had spent the weekends and some weekdays leading up to the

burglary at the hunting camp with her mother, who was living there while it was being

renovated.4 Before her fight with Bowman earlier that night at their Canton home, Emily

Anne had already planned to spend the weekend at the camp. So her intent was to return to

the camp that weekend, making it her dwelling. See Scott, 62 Miss. at 782.

              B.     Consent

¶24.   Next, Bowman asserts—for the first time on appeal—the State failed to prove he

lacked consent to enter the hunting camp. He argues “‘there can be no breaking, and

therefore there is no burglary where the occupant of a house, or an agent or servant having

authority, expressly or impliedly invites or consents to the entry.’” Holderfield v. State, 215

Miss. 564, 569, 61 So. 2d 385, 386 (1952) (quoting 12 C.J.S. Burglary § 12). As Bowman

pitches it, the State was mandated to prove he lacked express or implied permission to be at

the hunting camp that night. But he is wrong that this is an element of burglary the State

       4
       Emily Anne’s testimony suggests that her mother would have been at the hunting
camp that weekend were it not for a family funeral.

                                              11
must prove.

¶25.   Instead, “[c]onsent is an affirmative defense to the charge of burglary rather than an

essential element of the offense.” 13 Am. Jur. 2d Burglary § 54 (2019). Burglary has only

two required elements—the “(1) ‘breaking and entering the dwelling house or inner door of

such dwelling house of another’ (2) ‘with the intent to commit some crime therein[.]’”

Windless v. State, 185 So. 3d 956, 960-61 (quoting Miss. Code Ann. § 97-17-23(1) (Rev.

2014)). We note that Bowman never argued a consent defense.

¶26.   Furthermore, not only do the cases Bowman cites not suggest that the State must

prove lack of consent as a required element of burglary, they also contain completely

different facts. For instance, in Mitchell v. State, although the defendant had broken up with

his live-in girlfriend the week earlier and had been staying with his mother, the house he was

accused of burglarizing was still his own home. Mitchell v. State, 720 So. 2d 492 (Miss. Ct.

App. 1998). And the Court of Appeals simply recognized, “[o]ne cannot break and enter his

own home . . . .” Id. at 495.5

¶27.   Unlike Mitchell, Bowman was not charged with burglarizing his own home. Instead,

the evidence showed the hunting camp was owned by Southland Tube and was regularly used

by Emily Anne on the weekends to hunt—but always by permission. There was no evidence

Bowman had also been given permission to be at the camp with Emily Anne that night. In

       5
        The same is true in the Ohio Court of Appeals case Bowman cites, State v. O’Neal,
658 N.E.2d 1102 (Ohio Ct. App. 1995). That appellate court was dealing with a defendant
charged with burglarizing the marital residence. It concluded, absent a restraining order, the
evidence had to show both parties had made the decision to live separately and that one
spouse was relinquishing their possessory interest in the marital home in order to sustain a
conviction of burglary. Id. at 1104.

                                             12
fact, Emily Anne told Wayne she needed to get away from her husband.6 And Bowman

himself neither sought nor was granted permission to enter the camp.

¶28.   Bowman broke into the camp through an unlocked door after spying through a

window and seeing what he claims was evidence of Emily Anne’s unfaithfulness. And

Bowman’s own testimony supports that he lacked permission from one of the camp’s agents

or occupants to be there that night. We find sufficient proof supports the jury’s verdict that

he broke into the hunting camp with intent to commit a crime inside.

       II.    Weight of the Evidence

¶29.   Bowman next argues that if this Court rejects his sufficiency claim, it should still

reverse and remand based on the weight of the evidence.

¶30.   This Court does not reweigh evidence nor does it determine a witness’s credibility.

Little v. State, 233 So. 3d 288, 292 (Miss. 2017). When evidence conflicts—as it obviously

does here—it is for the jury to decide witness-credibility issues and what weight and worth

their testimony holds. Id. This Court’s responsibility is to review the trial court’s grant or

denial of a new trial for abuse of discretion. Id. And this Court will only disturb a verdict

that, when viewing the evidence in the light most favorable to the verdict, is so contrary to

the overwhelming weight of the evidence that it sanctions an unconscionable injustice. Id.

¶31.   We see no abuse of discretion in the judge’s denial of Bowman’s motion for a new

trial. Emily Anne and Wayne both testified that Bowman entered the hunting camp where

       6
          Bowman also insists his “conjugal rights” as Emily Anne’s spouse included the
right to enter any place where Emily Anne had been admitted. But Bowman cites absolutely
no law for the proposition that one cannot commit burglary in a place where one’s spouse
has consent to be.

                                             13
they were staying, without permission, and assaulted them. Bowman’s own testimony

confirms that he arrived at the camp around 5:00 a.m., saw evidence he claims showed his

wife’s unfaithfulness, and entered the camp through an unlocked back door. Viewing this

evidence in the light most favorable to the verdict, we find it supports Bowman’s burglary

conviction.

       III.   Jury Instructions

¶32.   Bowman also claims the trial court reversibly erred by not giving two instructions for

the burglary charge. These instructions dealt with Bowman’s permission argument and the

definition of “dwelling house.”

¶33.   We review the trial court’s decisions on jury instructions for abuse of discretion.

Lofton v. State, 248 So. 3d 798, 809 (Miss. 2018). This, however, is the first time any court

has heard Bowman’s new instructions request. He did not seek either of these instructions

at trial. And this Court will not hold a trial judge in error for instructions never requested.

Id. at 810.

              A.     Knowledge, Permission, or Consent Instruction

¶34.   His first instruction complaint involves his claim that he had no knowledge he lacked

express or implied consent or permission to enter the camp—an essential element the jury

should have been instructed on. But Bowman acknowledges he did not seek this instruction.

Indeed, at trial, Bowman withdrew his own jury instruction on the elements of burglary in

favor of the State’s. He instead agreed the State’s instruction covered the elements of

burglary. We also agree. And thus, we see no error here.



                                              14
              B.      Dwelling House Instruction

¶35.   Bowman’s next argument is that the judge should have defined “dwelling house” for

the jury. A trial court is not required to give the jury sua sponte instructions or instructions

supplementing those requested by the parties. Harris v. State, 861 So. 2d 1003, 1017 (Miss.

2003). Thus, the trial court cannot be held in error. And while the parties discussed

definitional and limiting instructions at some length, Bowman never requested an instruction

to define “dwelling house” for the jury. So his argument he is entitled to such an instruction

is also waived.

       IV.    Rule 404(b) Evidence7

¶36.   Bowman’s next challenge is over the judge’s Rule 404(b) rulings. Specifically,

Bowman argues the trial court erred by admitting evidence of his prior assault of Emily Anne

and his drug and alcohol abuse. Bowman claims this improper character evidence unduly

prejudiced him, resulting in his burglary conviction.

¶37.   This Court reviews evidentiary calls for abuse of discretion. Hargett v. State, 62 So.

3d 950, 952 (Miss. 2011). “‘A trial judge enjoys a great deal of discretion as to the relevancy

and admissibility of evidence.’” Id. (quoting Price v. State, 898 So. 2d 641, 653 (Miss.



       7
         Bowman appears to raise two other evidentiary errors while discussing the Rule
404(b) evidence. First, he claims the State waived its argument that the prior assault was
admissible to show intent. But he declares this without analysis or authority, so this Court
need not consider the argument. See Arrington v. State, 267 So. 3d 753, 756 (Miss. 2019).
Second, he claims the trial court incorrectly allowed hearsay testimony under the excited-
utterance exception. The judge allowed Anna Fumbanks to testify that Emily Anne told her
it was Bowman who had committed the assault. But even if this was error, it is harmless
since Emily Anne had already testified that Bowman caused those bruises depicted in the
pictures taken by Anna.

                                              15
2005)). Even if there is error in the admission, this Court will affirm “‘unless the error

adversely affects a substantial right of a party.’” Id. (quoting Ladnier v. State, 878 So. 2d

926, 933 (Miss. 2004)).

              Evidence of Other Crimes, Wrongs, or Acts

¶38.   Generally, Mississippi’s evidentiary rules do not permit evidence of other crimes,

wrongs, or acts to prove a person’s character to show he or she acted in conformity

therewith. Miss. R. Evid. 404(b)(1). But there are a variety of exceptions to this prohibition.

Most are found in Rule 404(b)(2), which specifies evidence of other crimes, wrongs, or acts,

may be admitted to prove “motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Miss. R. Evid. 404(b)(2). The “[p]urposes listed

in Rule 404(b) are not exhaustive . . . .” Johnson v. State, 204 So. 3d 763, 768 (Miss. 2016)

(citing Green v. State, 89 So. 3d 543, 549 n.12 (Miss. 2012)). They are, however, specific

rule-based “examples of noncharacter purposes for which evidence of other crimes, wrongs,

or acts may be admitted.” Id. (citing Green, 89 So. 3d at 549 n.12). Trial judges also have

discretion to admit “[e]vidence of other crimes or bad acts” for reasons not listed in Rule

404(b)(2), like “tell[ing] the complete story so as not to confuse the jury.” Palmer v. State,

939 So. 2d 792, 795 (Miss. 2006).8

¶39.   Still, regardless of its origin, before a judge admits other-acts evidence, it must be

       8
         In Brown v. State, this Court explained the State has a “legitimate interest in telling
a rational and coherent story of what happened . . . .” Brown v. State, 483 So. 2d 328, 330
(Miss. 1986) (internal quotation marks omitted) (quoting Turner v. State, 478 So. 2d 300,
301 (Miss. 1985)). When substantially necessary to present to the jury the complete story
of the crime, evidence or testimony may be given even though it may reveal or suggest other
crimes. Simmons v. State, 813 So. 2d 710, 716 (Miss. 2002).

                                              16
filtered through Mississippi Rule of Evidence 403. Under Rule 403, when weighing

admission of relevant evidence, a trial judge “may exclude relevant evidence if its probative

value is substantially outweighed by [the] danger of . . . unfair prejudice . . . .” Miss. R.

Evid. 403 (emphasis added).        These admissibility determinations are permissive and

discretionary on the trial judge’s part.9 This discretion is necessary because Rule 403 “‘does

not mandate exclusion’” of highly prejudicial relevant evidence. Burleson v. State, 166 So.

3d 499, 508 (Miss. 2015) (quoting Jones v. State, 904 So. 2d 149, 152 (Miss. 2005)).

Rather, the rule is clear that such evidence “may be excluded.” Id.

              A.      Prior Assault

¶40.   This Court need not look hard to see that evidence of prior threats and assaults has

been deemed probative to show intent.10 In Stone v. State, the defendant was tried for the

aggravated assault of his sister. Stone v. State, 94 So. 3d 1078, 1080-81 (Miss. 2012). The

judge allowed the State to introduce Stone’s prior threats and attacks against his sister. These

acts were offered to tell a complete story and to show his intent and motive, among other

reasons. Id. On appeal, Stone claimed these admissions were erroneous. But this Court



       9
          “Where a trial court determines that potentially prejudicial evidence possesses
sufficient probative value, it is within that court’s sound discretion whether or not to admit
[it.]” Jones v. State, 904 So. 2d 149, 152 (Miss. 2005) (citing Baldwin v. State, 784 So. 2d
148, 156 (Miss. 2001)).
       10
          Bowman points to three older cases in which evidence of prior assaults was deemed
inadmissible: Floyd v. State, 166 Miss. 15, 148 So. 226 (1933); Raines v. State, 81 Miss.
489, 33 So. 19 (1902); and Herman v. State, 75 Miss. 340, 22 So. 873 (1898). But in each
of these cases, this Court found the evidence was remote in time, factually unconnected, or,
as in Herman, unsupported. But more importantly, these cases predate our Rules of
Evidence, which instruct how prior-acts evidence must now be handled.

                                              17
disagreed. It found the past threats and assaults were probative in determining the defendant

“knowingly acted”—an element of aggravated assault. Id. at 1084-85. They were also

admissible to show his intent, motive, and common plan or scheme. Id.

¶41.   The judge here made similar findings. The State sought to admit evidence that

Bowman’s temper had been escalating and that he assaulted Emily Anne mere days before

the charged crimes. The judge found the testimony and exhibits showing Emily Anne’s

bruises from that prior assault were probative to prove Bowman’s intent—a necessary

element of attempted murder.11 And after filtering this evidence through Rule 403, the judge

found it was more probative than prejudicial. We see no error in this finding.

¶42.   The judge also granted Bowman’s proposed limiting instruction about the prior




       11
            Mississippi Code Section 97-1-7(2) defines attempted murder as,

       Every person who shall design and endeavor to commit an act which, if
       accomplished, would constitute an offense of murder under Section 97-3-19,
       but shall fail therein, or shall be prevented from committing the same, shall be
       guilty of attempted murder and, upon conviction, shall be imprisoned for life
       in the custody of the Department of Corrections if the punishment is so fixed
       by the jury in its verdict after a separate sentencing proceeding. If the jury fails
       to agree on fixing the penalty at imprisonment for life, the court shall fix the
       penalty at not less than twenty (20) years in the custody of the Department of
       Corrections.

Miss. Code Ann. § 97-1-7(2) (Rev. 2014).

An attempted crime consists of three element: (1) an intent to commit a particular crime; (2)
an overt act towards committing the crime; and (3) the failure to complete the commission
of the crime. Green v. State, 269 So. 3d 75, 82 (Miss. 2018). So determining Bowman’s
intent was necessary to prove an element of attempted murder.

                                               18
assaults.12 To the extent Bowman claims error in his limiting instruction, we point out

Bowman both drafted and requested this specific instruction. Thus, he cannot now claim the

court erred in giving it.

¶43.   We find the judge did not abuse his discretion in admitting the prior-assault evidence

as proof of Bowman’s intent.

               B.     Drug & Alcohol Use

¶44.   Bowman also claims error in the admission of his prior drug and alcohol use.

                      i.      Completing the Story

¶45.   The State sought to admit evidence of Bowman’s increasing drug and alcohol use to

show his frame of mind because his verbal and physical abuse of Emily Anne had escalated

days before the October 7 assault and the hunting-camp burglary. The State argued

Bowman’s then-daily drug use to self-medicate his anger issues was a motivating factor

when the prior assault took place. The trial judge was not immediately sure of its relevance.

He excluded any testimony about Bowman’s supposed drug dealing. And he made clear he

would not allow the State to mention Bowman’s alcohol and drug use as a “gratuitous

attempt to show [Bowman] is a bad guy or something like that.”

¶46.   But the judge found it necessary to study additional caselaw during a recess. After

doing so, he made a conditional ruling that “the probative value” of evidence of Bowman’s



       12
         The trial court instructed the jury that if it believed the prior abuse allegations, they
may only be considered “for the limited purpose of establishing CHAD BOWMAN’s intent
to commit the crime of Attempted Murder. . . .” The jury was instructed it “cannot and must
not” infer that Bowman “acted in conformity with those previous acts” as proof of guilt “of
the charges for which he is presently on trial.”

                                               19
alcohol and drug abuse for the purpose of showing an absence of mistake and telling the

complete story “very-well may outweigh any prejudicial effect.” The judge was cautious to

condition his ruling, subject to a later proffer from the State, when he could assess the

evidence in context.

¶47.   During trial, Emily Anne gave a proffer outside the jury’s presence. She testified

about Bowman self-medicating with alcohol, marijuana, and prescription drugs and how it

made him more angry and abusive towards her. According to Emily Anne, Bowman’s

substance use was daily. And his verbal and physical abuse increased, particularly in

October 2014. Having heard the proffer, the trial judge stood by his ruling. He admitted

testimony about Bowman’s prior drug and alcohol use to show an absence of mistake and the

res gestae—the complete story.

¶48.   Evidence of prior substance abuse has been allowed by this Court to show an absence

of mistake and to tell a complete story. In Jones v. State, the defendant was charged with

her mother’s murder. Jones v. State, 154 So. 3d 872, 876-77 (Miss. 2014). The defendant

had a history of drug abuse and rehabilitation, during which she lost custody of her child and

lost land—both to her mother. Id. at 875-76. The State argued this background was essential

to tell the jury a logical, complete story of the tension between the defendant and her mother

and to present a potential motive or absence of mistake, among other reasons, for the murder.

Id. at 878-79. And this Court agreed. Id. at 880.

¶49.   The situation is similar here. The judge allowed the alcohol and drug evidence to

explain the couple’s deteriorating relationship and resulting abuse and to tell the story leading



                                               20
to Bowman’s burglary and the attempted-murder charge. Otherwise, a jury could indeed be

confused by a case involving a husband showing up to burglarize a remote hunting camp

tethered to allegations that he was there to commit assault and eventually an attempted

murder of his wife. We agree that this evidentiary call is a closer one than his earlier ruling

admitting the prior-assault evidence.

¶50.   But admission of other-acts evidence is largely left to the sound discretion of the trial

judge. Jones, 904 So. 2d at 152. And the trial judge carefully crafted the conditions for this

testimony and evidence to be admitted. He excluded evidence of drug distribution and

limited the testimony to only the recent past. As the judge put it, the State could not present

“five years worth of, you know, gosh every day or every Friday that he would get drunk and

then he would threaten to beat her up that kind of thing.” He recessed to study the law on

this issue before conditionally finding the evidence was necessary for the State to tell the

complete story. And he did not admit the evidence until after hearing a proffer from Emily

Anne. But even assuming the alcohol and drug evidence was wrongly admitted, it did not

affect Bowman’s substantial rights. Many of Bowman’s own admissions supported the

burglary charge. And the not-guilty verdicts on two of the three charged crimes tend to show

the jury did not lash out at Bowman out of mere prejudice after learning of his alcohol and

substance abuse. Thus, we suggest the admission was at worst harmless.

                     ii.     Limiting Instruction

¶51.   Again, Bowman pushes a limiting-instruction argument. But unlike the cautionary

instruction about the assault that he did request and receive, he did not request a limiting



                                              21
instruction relating to the alcohol and drug evidence. The burden of requesting a cautionary

instruction falls on the defense, not the court. In 2004, “we abandon[ed] [the] requirement

that a judge issue a sua sponte limiting instruction . . . .” Brown v. State, 890 So. 2d 901, 913

(Miss. 2004).

¶52.   We opted instead to “return to the clear language of Rule 105”—a rule that “clearly

places the burden of requesting a Rule 404(b) limiting instruction upon counsel.” Id. This

method is not only dictated by rule, but the Court has also recognized that limiting

instructions “can actually focus the jury’s attention on sensitive information . . . .” Sipp v.

State, 936 So. 2d 326, 331 (Miss. 2006) (citing Brown, 890 So. 2d at 913). So defendants

and attorneys often forgo seeking such instructions for tactical reasons. But, strategy aside,

the fact remains Bowman never requested a limiting instruction about his prior alcohol and

drug use. Thus, the judge was not bound to give one.

       V.       Sentencing

¶53.   Finally, Bowman argues that the judge’s crime-of-violence designation should have

been sent to the jury and found beyond a reasonable doubt. And he claims the judge’s

material misunderstanding of the law led to an increased sentence.

¶54.   Sentencing falls within the trial court’s discretion. And, generally, sentences within

statutory limits are not subject to appellate review. Thomas v. State, 247 So. 3d 1252, 1257

(Miss. 2018). But when questions of law are raised, this Court’s review is de novo. Jones

v. State, 122 So. 3d 698, 700 (Miss. 2013).

                A.    Mississippi Code Section 97-3-2



                                               22
¶55.   Bowman points to the Court of Appeals’s opinion in Fogleman v. State, No. 2016-

KA-01244-COA, 2018 WL 4444057 (Miss. Ct. App. Sept. 18, 2018), rev’d, No. 2016-KA-

01244, 2019 WL 4071866 (Miss. Aug. 29, 2019). He argues that under the Court of

Appeals’ opinion, the trial court erred by finding his burglary was a crime of violence.

Bowman asserts, as the Court of Appeals did, the crime-of-violence issue needed to be

submitted to the jury and found beyond a reasonable doubt. But, on certiorari review, this

Court recently issued an opinion in Fogleman laying out how this is incorrect in two ways.

Fogleman v. State, No. 2016-CT-01244-SCT, 2019 WL 4071866 (Miss. Aug. 29, 2019).

First, burglary is an enumerated crime of violence and the crime-of-violence designation

applies automatically, without any input or findings by the trial court. See Miss. Code Ann.

§ 97-3-2(1)(o) (Rev. 2014). Second, as is discussed in this Court’s Fogleman opinion,

Section 97-3-2 is not a substantive criminal statute. Fogleman, 2019 WL 4071866, at *4.

That section does not impose any sentence on a criminal defendant that would require a

jury’s determination of guilt as the United States Supreme Court mandated in Alleyne v.

United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). Id. Rather, Section

97-3-2 is an enhancement that, along with Mississippi Code Section 47-7-3(1)(g)(i) (Rev.

2014) in specific instances, deals solely with parole eligibility and early release. Id. at *5.

This does not violate Bowman’s constitutional rights to due process, trial by an impartial

jury, or a jury finding guilt on all elements of the offense beyond a reasonable doubt. See

Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Moreover, Bowman has no recognized constitutional right to parole. See Vice v. State, 679



                                              23
So. 2d 205, 208 (Miss. 1996). We see no error here.

               B.      “50% Crime”

¶56.   Bowman next argues the trial judge mistakenly applied Section 97-3-2(2), which deals

with non-enumerated crimes of violence and parole eligibility. He claims he has to serve

more time in prison than he otherwise would have, because the judge thought Bowman

would be eligible for parole after serving 50 percent or five years.13 Indeed, this belief was

prominent when the judge crafted Bowman’s sentence. There is merit to Bowman’s

argument.

¶57.   As this Court recognized in Fogleman, there is some confusion over the interplay

between Sections 97-3-2(1) and (2) and 47-7-3(1)(g)(i). Section 97-3-2(1) lists enumerated

crimes of violence, and burglary of a dwelling house is one of those listed crimes. The

crime-of-violence designation under Section 97-3-2(1) applies automatically, without any

required findings by the judge. By comparison, Section 97-3-2(2) provides a discretionary,

case-by-case crime-of-violence designation in which the judge must make findings that the

defendant “used physical force, or made a credible attempt or threat of physical force against

another person as part of the criminal act.” Miss. Code Ann. § 97-3-2(2) (Rev. 2014). And

Section 97-3-2(2) concludes by stating, “[n]o person convicted of a crime of violence listed

in this section is eligible for parole or for early release . . . until the person has served at least

fifty percent (50%) of the sentence imposed by the court.” Id. At the same time Section 97-

       13
         As Bowman points out, the trial judge did state during sentencing that “[w]hen you
complete what part of the sentence you’ve got to serve, and my understanding under the law
right now, this is a 50 percent crime; which means the law requires that you serve half of that
sentence.”

                                                 24
3-2 was adopted, the Legislature amended Section 47-7-3, which deals with parole eligibility,

to provide that “[n]o person who . . . is convicted of a crime of violence pursuant to Section

97-3-2 . . . shall be eligible for parole.” Miss. Code Ann. § 47-7-3(1)(g)(i) (Rev. 2014). So

there is an apparent statutory conflict concerning crimes of violence and parole eligibility.

¶58.   The Court of Appeals resolved this conflict by assuming Section 47-7-3(1)(g)(i)

trumped, so that no one convicted of a crime of violence—whether enumerated under Section

97-3-2(1) or designated under Section 97-3-2(2)—is eligible for parole. Fogleman, 2018

WL 4444057, at *3. But this Court has rejected this interpretation. Instead, this Court

followed the directive that “[s]tatutes on the same subject, although in apparent conflict,

should if possible be construed in harmony with each other to give effect to each.” Roberts

v. Miss. Republican Party State Exec. Comm., 465 So. 2d 1050, 1052 (Miss. 1985). To that

end, this Court provided the following approach:

       Section 43-7-3(1)(g)(i) does apply to the per se crimes of violence listed in
       subsection (1) of Section 97-3-2 because Section 97-3-2(1) is silent about
       parole eligibility. But Section 43-7-3(1)(g)(i) does not apply to the trial court’s
       discretionary designation of a “crime of violence” under subsection (2) of
       Section 97-3-2. Rather, subsection (2)’s specific parole-and-early-release-
       eligibility provision controls.

Fogleman, 2019 WL 4071866, at *5.

¶59.   Here, rather than find Bowman was wholly ineligible for parole like the Court of

Appeals did in Fogleman, the judge was under the opposite impression that Section 97-3-

2(2)’s 50 percent parole eligibility applied to all of Section 97-3-2—including the crimes

enumerated in Section 97-3-2(1). And the judge fashioned Bowman’s sentence based on this

belief. While this interpretation of Section 97-3-2 is understandable, under this Court’s

                                               25
decision in Fogleman, it is also erroneous. Because burglary of a dwelling house is an

enumerated crime of violence under Section 97-3-2(1), Bowman cannot serve half of his ten-

year sentence before being eligible for parole as the judge believed. Instead, Bowman will

have to serve the entirety of his ten-year sentence. See Fogleman, 2019 WL 4071866, at *5.

¶60.   Much like the Court of Appeals, the judge here did not have the benefit of this Court’s

decision in Fogleman. In light of the confusion surrounding crimes of violence and parole

eligibility, we reverse Bowman’s sentence and remand his conviction to the trial court for

resentencing. This allows the judge to fashion what he believes to be an appropriate

sentence, consistent with this Court’s opinion in Fogleman.

                                        Conclusion

¶61.   Bowman was tried for aggravated assault, attempted murder, and burglary. While the

jury found that Bowman did not commit an aggravated assault or an attempted murder, it did

find Bowman guilty of burglary. We find Bowman’s burglary conviction is supported by

sufficient evidence. The hunting camp was Emily Anne’s dwelling house on October 18,

2014. Any claimed errors are either of Bowman’s own making or simply are not an abuse

of discretion or reversible error—with one exception, his sentence. Thus, while we affirm

Bowman’s conviction, we reverse and remand for resentencing in light of this Court’s

Fogleman decision.

¶62.   AFFIRMED AND REMANDED.

    RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.




                                             26
