OF JUDGMENT: 04/07/2017
NOXUBEE COUNTY CIRCUIT COURT HON. JAMES T. KITCHENS, JR.TRIAL
O. COLOM TOMMY RAY SAVANT ROBERT THOMAS RICH SCOTT WINSTON
COLOM STANLEY ALEXANDER KIMBERLY TAFT PURDIE
ATTORNEYS FOR APPELLANT: JULIE ANN EPPS ROBERT THOMAS RICH
TOMMY RAY SAVANT
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA McCLINTON
KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.
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.
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.
Facts and Procedural History
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
being charged with burglary, aggravated assault, and
attempted murder. Bowman was convicted of burglary and
acquitted of the remaining charges.
Emily Anne and Bowman's Marriage
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.
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.
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.
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.
October 18, 2014
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.
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 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.
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.
Emily Anne's Version
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 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.
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
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.
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.
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 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.
Sufficiency of the Evidence
Bowman first argues the State failed to prove beyond a
reasonable doubt the essential elements of dwelling-house
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 ...