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: W I LBUR O. COLOM TOMMY RAY SAVANT ROBERT THOMAS RICH SCOTT W INSTON COLOM STANLEY ALEXANDER KIMBERLY TAFT PURDIE COURT FROM W HICH 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., MAX W ELL AND CHAMBERLIN, JJ.
MAX WELL, JUSTICE, FOR THE COURT: ¶1. A jury convicted C had Bowm an of one count of b urglary of a d welli n g

— a h unting

cam p where his wif

e had stay e d during the early part of M ississippi’ s b owhunting season.On appeal, Bowm an argues the State f ailed to suf

f iciently prove the h un t i n g c a mp w as, at the tim e of the alleged burglary , a dwelling house. Bowm an doe s n o t d i s p ute that, under Mississippi law, a hunting cam p m ay be considered a dwelling house. Instead, Bowm an
argues the hunting cam

p was not Em ily Anne’s dwelling house, a s charged in the indictm ent, because s he neither owned the hunting cam p—Southland Tube d id—nor did s he intend the hu n t i n g c a mp t o be h er perm a nent residence. A f ter r eview, we f

ind the State suf

f iciently proved Em ily Anne was residing in t h e hunting cam p when Bowm an broke in. T hat is all Mississippi law required. And the indictm ent’s allegation that the h unting cam p was owned by Southland Tube was m e re surplusage, w hich the State still proved bey ond a r easonable doubt. 1 ¶2. W e af

f i rm Bowm an’s c onviction. B ut becau s e o f the apparent conf usion over the length of tim e Bowm an m

ust serve, we rem and the case f or resentencing.
B ackground Facts and Procedural History ¶3. In Missis s i p p i , b o w h u n t i n g season f or deer begins in October. A nd Em ily Anne Chenoweth (f

orm erly Em ily Anne Bow ma n ) s p e n t m any d ay s in O ctober 2014 at the Southland Plantation hunting c am p to bowhunt. During this tim e , s he a lso helped her m other

renovate a nd update the cam p. T he hunting cam

p also served as Em ily Anne’s escape f rom

a rapidly deteriorating and abusive relationship with her husband, Chad Bowm an. In t h e early m orning hours of October 1 8, 2014, Bowm an b roke into t he h unting cam p and attacked
Em ily Anne and the cam

p’s caretaker, W ay

ne Stewart, Jr. This episode ended with Bowm an

1 S ee T a ylo r v. S ta te , 2 1 4 M iss. 2 6 3 , 2 6 6 , 5 8 S o . 2 d 6 6 4 , 6 6 5 (1 9 5 2 ). 2being charged with burglary , a ggravated assault, and attem pted m urder. B o w m an was convicted of

burglary and acquitted of

the rem aining charges.
I. Em ily Anne and Bow m an’s Marriage ¶4. Em ily Anne and Bowm an m arried i n February 2010 and lived in Canton, Mississippi. Shortly af ter their m arriage, Bowm an began “self

- m edicating” with m arijuana, prescription drugs, and alcohol t o “control his anger.” But according to Em ily A nne, Bowm an rem ained
angry and controlling, p articularly about the couple’s f inances. In O ctober 2014, Bowm an’s outbursts over m o ney and other issues began to escalate and turned phy sical. Em ily Anne testif i ed B owm an’s drug and alcohol use increased. And she started spending m ore tim e at the hunting cam

p to hunt and to get away f rom Bowm an. ¶5. Southland Plantation is a h u n t i n g c a mp o u t s i d e M a c o n i n N o x u b e e County , Mississippi, owned by Southland Tube, Inc. Because Em i ly Anne’s f ather, David Chenoweth, worked f

or Southland Tube, she had perm i ssion t o use the cam p. She just had to give advance notice either to her f ather or to W ay

ne. ¶6. Em ily

Anne stay ed at the cam

p f rom October 1 to October 5. W hen she returned to Canton, Bowm an was u

p set she had only worked Monday and Tuesday that week and had been paid only f

o r those day s. On October 7, 2014, Bowm an becam e enraged at Em ily Anne about m oney and grabbed h er to keep h er f rom leaving. Bowm a n bruised her arm s and legs in that encounter. The next day at work, she told her coworker Anna Fum banks, who took pictures of the bruises. Em ily Anne rejected F u mb a n k s ’ s a dvice to call the police. Em ily
Anne f i nished the work week and returned t o the cam p the weekend of October 11 and 12.

3¶7. Em ily Anne p lanned t o return t o t h e h u n t i n g c a mp t h e e v ening o f October 17,

intending to stay through Oct o b e r 1 9. As Em ily Anne tells it, that Friday night, she told
Bowm an they should see a m arriage counselor and suggested he get m edication to balance
him out

. I f h e did not, she would leave him

. Bowm an reacted b y scream ing at her. He warned h er t hat i f s h e lef

t , s he would not be com ing back. W hen she tried to l eave i n her car, he reached in and pulled her out. She f ell t o t he concrete and Bowm a n dragged her on the
p a v e me nt until she broke f ree and escaped b ack to h er car. She then lef t f or th e h u n t i n g

cam p. W h en she a rrived, s he f ound the cam

p locked. So she went to wake W ay ne. W ay ne f ollowed her to the cam

p house and unlocked it f or her. And the two sat on the couch and talked about the episode in Canton earlier that night. Eventually , they f ell asleep next to each other on the couch.
II. October 18, 2014 A. Bowman’s Version ¶8. According to Bowm a n, the night of October 17, he and Em ily Anne had dinner. They talked about h e r g o i n g h unting t hat weekend a nd discussed f inances. He testif

ied their

conversa t i o n w a s n o t pleasant, but there was no y e l ling or scream i ng. Em ily Anne later packed up her bow, a hunting b a g , a n d a b a g of clothes, then headed to the hunting cam p. The t wo also exchanged t ext m essages a nd talked on the phone bef ore she arrived in Macon. ¶9. Bowm an claim s that when he w oke at 3:00 a.m . on October 18, he checked his phone and s aw a text me s s a ge f rom Em ily Anne say ing she was at the hunting cam p. Bowm an testif i ed he tried to c all Em ily Anne six tim es to “just talk to her and m ake sure she m ade it

4okay .” B ut she did not answer. So Bowm an decided to get in his car a round 3:15 a.m . and

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

. ¶10. Bowm an t estif

ied h e saw Em ily Anne’s car and W a y ne’s t ruck in t he driveway

. He got out a nd went to the f

r ont door. He saw t hat the t elevision was on. He also saw an em pty wine bottle with two w ine g lasses on the cof f e e table. A nd he noticed there were no pillows

on the couch. S ince the f ront do o r w a s l o c k e d , h e walked to the back o f the cam p and entered through an u nlocked sliding glass door. The door to the m aster bedroom upstairs was closed. So he walked upstairs, opened the bedroom door, and f lipped on the lights. W hen he pulled the bedcovers o f f , he saw Em ily Anne and W ay ne in bed together, naked. B oth
Em ily Anne and W ay

ne jum ped out of

bed. And Bowm a n punched W a y n e in the jaw. ¶11. Af ter recovering f

rom the punch, W ay

ne r ushed him

. Bowm an grabbed W ay ne by the neck and choked him u ntil he f ell to the g round. Bowm an then went downst a irs. He claim ed h e phoned David Chenoweth to say he had caught Em ily Anne and W a y n e in bed.
W h en W ay

ne started c om ing downstairs, Bowm a n hung up. W a y n e rushed Bowm an, so he hit W ay ne again. As Bowm an lef t the house, W ay

ne put a gun to his head. B owm an turned

to f ace W ay ne, s aid a f

ew words, and then headed f or his car. W ay

ne g o t i n h i s truck and lef t

. E mi l y Anne got in her car and f ollowed Bowm an to a nearby gas station bef ore returning to the hunting cam p. B. Emily Anne’s Version ¶12. Both Em ily Anne and W ay ne tell a dif

f erent story . They

claim they were asleep on the couch and they both woke w hen Bowm an e ntered the cam p house. Bowm an im m ediately

5pulled W ay ne over the back of

the couch and began choking him

. As W ay ne blacked out,
B o w ma n told Em ily Anne that h e had killed W ay ne. B owm an then turned to Em ily Anne and began choking her. But W a y ne regained c onsciousness. So Bowm an rel e a s e d E mi ly
A n ne a nd dragged W ay

ne over to the dining table. B owm an grabbed a wooden chair a n d
swung i t at W ay

n e. But t he chai r caught the u nderside of the staircase. Bowm an then dropped the chair and grabbed a s h o wer rod of f the t able. He b eat W ay

ne with the rod on his a rm s, hands, and head. He then turned to Em ily Anne. But bef ore Bowm an could strike
Em ily Anne with the rod, W ay n e grabbed his pistol f

rom the cof

f ee table. W ay

ne pointed the gun a t Bowm an and t old h im t o g et out of the cam p house, which he did. At that point,
Em ily Anne told W ay

ne to leave and said that she could handle Bowm an. ¶13. As Em ily Anne a n d Wa y n e w a l ked out of the cam p house, t hey saw Bowm an near Em ily Anne’s car. W ay

ne got in his truck and was backing o ut w hen B owm an approached his p assenger w indow and pointed a pistol he had taken f rom Em ily Anne’s c a r at W ay ne. Em ily Anne jum

ped on Bowm an’s back. Bowm an m anaged to pull her of f

. He then pulled her head up by her pony

tail, s aid “die bitch,” and pulled the trigger. The gun c l icked but did

not f ire. He then released Em ily Anne. Af terwards, both E m i ly Anne and W a y ne saw Bowm an sitting down, pointing the gun underneath his chin. ¶14. Bowm an eventually stood up and asked Em ily Ann e t o f o l l ow him to a g as station.
All three lef

t the hunting cam

p. Em ily Anne f

ollowed Bowm an to the gas s t ation but did not stop. Instead, she continued driving and f ound an open f

ield where she called her f ather and cried f or a long tim e.

6III. Trial

¶15. The hunting-cam

p e v e n t s f

o r me d the basis of Bowm an’s i ndictm ent and trial f or
attem pted m urder, burglary , and aggravated assault. Af ter e ach side presented its case, the
State and def

e nse d isc u s sed j ury instructions w ith t he court, eventually agreeing on m ost instructions. The judge then instructed the jury

. Af ter deliberating, t he j ury f ound Bowm an guilty of burglary but not guilty of a ttem pted m u rder o r a g g r a v ated assault. The judge ordered a presentenci n g i n vestigation. He considered the victim ’s im pact statem ent, and heard m i tigation t estim o n y f r om Bowm an’s children, his f a t her, his f

i rst w if e, and Bowm an him se l f

. T h e j u dge sentenced Bowm an t o a t erm o f twenty y ears in prison, with ten y ears suspended and f

ive y ears of p ost-release supervision. Bowm an f iled a m otion f

or a new trial, but the judge denied his m otion. Bowm an appealed.
Discussion ¶16. Bowm an claim s: (1) the e vidence was insuf f icient to support a burglary conviction; (2) the j ury ’s verdict was against the weight of the evidence; (3) the trial court f ailed to give

two jury i nstructions; ( 4) the judge adm i tt e d i mp roper R ule 4 04(b) evidence; and (5) his

sentence was based on m isapplied or m i sunderstood l aw. Af ter r eview, we f

ind Bowm an’s burglary c onviction is supp o r t e d b y t he suf f iciency and weight of the evidence. W e f ind
Bowm an waived any challenge to his newly proposed jury instructions by not requesting them at t rial. W e a lso f

ind the trial judge did not abus e h i s d i scretion by adm itting the assault-based e vidence under Rule 404(b) of t h e M i s s issippi Rules of Evidence. As to Bowm an’s prior alcohol and drug use, even if that e v idence was wrongly adm itted, any error

7was a t m o s t h a rm less. W e do, however, f ind the judge apparently m i sconstrued the sentencing law, which has recently been clarif i e d b y t h is Court. W e af f irm Bowm an’s conviction f

or burglary

but rem and the case f

or resentencing.
I. Sufficiency of the Evidence ¶17. Bowm an f

irst argues t he State f

ailed to prove b ey ond a r easonable doubt t he essential elem ents of

dwelling-house burglary

. A. Dwelling House ¶18. Burglary o f a dwelling h ouse is a distinct statutory crim e f r o m b u r g l a r y of a nondwelling house. Compare Miss. Code Ann. § 97-17-23 (Rev. 2014) (burglary o f a dwelling house) with Miss. Code Ann. § 97-17-33 (Rev. 2014) (burglary o f other buildings). See also
Woods v. State , 186 Miss. 463, 191 So. 283, 284 ( 1939). S o the f act t he hunting cam

p was,
at the tim e of

the alleged burglary , a dwelling house was a n essential elem ent of the crim e the State h ad t o prove b e y ond a reasonable doubt. Carr v. State , 770 So. 2d 1025, 1029 (Miss. Ct. App. 2000). ¶19. Here, B owm an does n ot dispute that u nder Mississi p p i l a w a h unting cam p m ay be considered a d

welling house. Y

oung v. State , 952 So. 2 d 1031, 1 033

- 3 4 ( M i s s . C t

. App. 2007) (af f irm ing that a f

ully f u rnished and stocked hunting cabin was a dwelling house);
C a m pbell v. State , 883 So. 2d 1 15, 118-119 (Miss. C t. App. 2004) (sam e). Cf. G illum v . State , 468 So

. 2 d 8 5 6 , 859 (Miss. 1985) (holding that a f r equently and r egularly visited weekend coastal hom e was a dwelling house). But he does contend that the State f ailed to
prove it was the “dwelling house of Em ily Anne , ” a s w a s c h arged in the indictm ent and

8instructed to t h e j u r y . 2 Bowm an argues the hunting cam p was not Em i ly Anne’s dwelling house b e cause she neither o wned the hunting cam p—Southland T u b e d i d

— nor did she intend it to be her perm anent residence. ¶20. But contrary to B o w m a n ’ s assertions, the State did not have to prove Em ily Anne

own e d the hunting cam

p—only that she occupied it. “Possession is e n ough as against burglars.” Lewis v. State , 85 Mi s s . 35, 4 0, 3 7 So. 497, 497 (1904) (citing W harton’s Crim inal Law § 804 (10t h e d .) (holding that indictm ent’s charge and the State’s proof of ownership of the building was suf f icient because the person charged w ith o wnership “used and occupied” the building at t he tim e of the burglary )). This i s because, “[ a]t com m on law, burglary was c onsidered to be an of f ense against habitation rather t han against property ,” and “what was sought to be p rotected w as the peace of m ind and security of the residents, rather than the property

. ” R obinson v. State , 364 So. 2d 1131, 1133 (Miss. 1 978) ( quoting 85
A.L.R. 428 (1933)). Cf. T a y l o r v . State , 2 14 Miss. 263, 266, 5 8 S o. 2d 664, 665 (1952) (“This C ourt has h eld in several cases that in an indictm ent f or burglary the allegations as to the ownership of t he title to the building constitute surplusage, and, insof ar as the burglary is concerned, the occupant of the building at the tim e of the b urglary 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 suf f iciently proved Em i ly Anne was residing in t he hunting

2 T h e in d ictm e n t ch arg ed th at B o w m an “d id u n law f u lly , w i llf u lly , f elo n io u sly an d b u rg lario u sly b r eak an d en ter th e d w ellin g h o u se o f E m ily B o w m an , o w n ed b y S o u th lan d T u b e, In c., w ith th e in ten t to co m m it a c r i me t h erein , to -w it: assau lt, i n v i o latio n o f [ M ississip p i C o d e S ectio n ] 9 7 -1 7 -2 3

. . . .” A n d th e j u ry in stru ctio n o n th is co u n t track ed th e lan g u ag e o f

th e in d ictm en t. 9cam

p when Bowm an broke in. That is all t he l a w r e q u i red. And the a llegation in the indictm ent that t he h unting cam p w as i n f a ct owned by Southland Tube was m ere surplusage, which t he State nonetheless proved at trial bey o nd a reasonable doubt. See Taylor , 58 So. 2d at 665. ¶21. Also contrary to Bowm an’s assertions, the State d id not hav e t o p r o v e t h e hunting

cam p was Em i ly Anne’s perm anent, continuous residence. As support f or h is perm anentresidence argum e nt, Bowm an cites Robinson v. State

. B u t the f acts of Robinson are inapposite. That case dealt with a m otel room , which the Court f ound w as not the dwelling house o f a wom an who had rented it in the w ee hours of the night t o share with a m an she had m et a t a club. Robinson , 364 So. 2d at 113 2

- 3 4

. H owever, the Court noted, “[ i]n the

event there is perm anent dwelling of a person or his f a m ily in a h otel or motel , that would be his dwelling house.” Id. at 1134 (em phasis added). ¶22. Here, w e are not dealing with a h o t e l o r m o tel room . W e are dealing with a house. And this Court has long-held that “[ a] bu i l d i n g w h ich is i n f act a d welling-house does not lose its c haracter as such by a m ere tem porary absence of its inhabitants who have lef t with intent to return

. . . . ” 3 Scott v. State , 62 Miss. 781, 782 (1885). Further, “[ t]he s easonal or interm ittent use of a residence

. . . does not prevent it f rom becom ing a dwelling.” Gillum , 468 So. 2d at 859.

3 T h is p rin c i p l e i s n o t u n iq u e to M i ssissip p i. U n d er G eo rg ia l aw , “[ t] h ere is n o req u irem en t in t h e l aw th at a h o u se b e co n tin u o u sly o ccu p ied in o rd e r to b e a ‘ d w ellin g ’. It is su f f icien t th at it is o ccasio n ally o ccu p ied f o r resid en tial p u rp o ses a n d a n y s u c h law f u l o ccu p a n t h a s a su p erio r rig h t as ag ain st b u rg lars f o r th e p u r

p o se o f an in d ictm en t.” M o n tg o m ery v. S

ta te , 1 9 5 S .E .2 d 7 8 4 , 7 8 5 (G a. C t

. A p p . 1 9 7 3 ) (citin g H o u s to n v. S

ta te , 3 8 G a . 1 6 5 (1 8 6 8 )). 1 0¶23. In Gillum , this C ourt recogn i z e d t h a t “ a p e r s o n m a y s i mu l t a neously have two

dwellings subject to burglary and som etim es reside w ith his f am ily in one and som etim es in the other.” Id. at 860. So the f act Em ily Anne considered the m a r ital hom e she shared with
Bowm an i n C anton her residence d id not f oreclose the hunting cam

p that s he seasonally used
f rom also being h e r dwelling. See also Washington v. State , 7 53 So. 2d 4 75, 4 78 (Miss. Ct. App. 1999) (holding that a Mississippi house regularly visited b y a W isconsin wom an was “a dwelling as contem

p lated by the burglary statute”). Em i ly Anne t estif ied tha t , d u ring bowhunting season , s h e had spent the weekends and som e weekday s leading up to the burglary a t the hunting cam p with he r m other, who was living there while it was being renovated. 4 Bef

ore her f ight with Bowm an earlier that night at their Canton h om e, Em il y Anne had already planned to spend the weekend at the cam p. S o her i ntent was to return to the cam p that weekend, m aking it her dwelling. See Scott , 62 Miss. at 782.
B. Consent ¶24. Next, Bowm an asserts—f or the f i r s t t i me o n a p peal—the State f ailed to prove he lacked consent t o e n t er the hunting cam p. He argues “‘there can be no breaking, and theref ore there is no burglary

where the occupant of a h ouse, or an agent or servant having authority , expressly or im pliedly invites or consents to the entry

. ’” Holderfield v. State , 215 Miss. 5 64, 569, 61 So. 2d 3 8 5, 386 (1952) (quoting 12 C.J.S. Burglary § 12). As Bowm an pitches it, the State was m andated to prove he lacked express or im plied p erm ission to be at the hunting cam

p that night. But he i s wrong that t his is an elem ent o f b u r g l a r y the State

4 E m ily A n n e’s testim o n y su g g ests th at h er m o th er w o u ld h av e b een at th e h u n tin g cam p th at w eek en d w ere it n o t f o r a f am i ly f u n e ral. 1 1m

ust prove. ¶25. Instead, “ [ c]onsent i s an af f irm ative def

ense to the charge o f burglary rather than an essential elem ent of the of f ense.” 13 Am

. Jur. 2d Burglary § 54 (2019). Burglary has only

two required elem ents—the “(1) ‘breaking and entering the dwelling h ouse o r i nner door of such dwelling h ouse of another’ (2) ‘with t he intent to com m it som e crim e therein[ .]’”
Win d l e s s v. State , 185 So. 3d 956, 960-61 (quoting Miss. Code Ann. § 97-17-23(1) (Rev. 2014)). W e note that Bowm an never argued a consent def

ense. ¶26. Furtherm ore, n o t o n l y d o the cases Bowm an cites not suggest that the State m ust
prove lack of consent as a required e l e me n t o f burglary , t hey also contain com pletely dif f erent f acts. For instance, in Mitchell v. State , although the d ef e n dant had broken up with his live-in girlf

riend t he week earlier and had been stay ing with h is m o ther, the house he was accused of burglarizing was still his own hom e. Mitchell v. State , 720 So. 2d 492 (Miss. Ct. App. 1998). And t he Court of A ppeals sim ply recognized, “[ o]ne cannot break and enter his own hom e . . . .” Id. at 495. 5 ¶27. Unlike Mitchell , Bowm an was not charged with burglarizing his own h om e. Instead, the evidence showed the h unting cam p was owned b y Southland Tube and w as regularly used by Em ily Anne o n the weekends to hunt—but alway s by perm ission. There was no evidence
Bowm an had also been g iven perm ission to be at the cam p with Em ily Anne that night. In

5 T h e sam e i s t ru e in th e O h io C o u rt o f A p p eals case B o w m an cites, S t a te v. O ’N

ea l , 6 5 8 N .E .2 d 1 1 0 2 (O h io C t

. A p p . 1 9 9 5 ). T h at ap p e l late co u rt w as d ealin g w ith a d ef en d an t ch arg ed w ith b u rg larizin g t h e m arital resid en c e. It co n clu d ed , ab s en t a restrain in g o rd er, th e ev id e n c e h ad to sh o w b o th p a rties h ad ma d e t h e d ecisio n to liv e sep arately an d th at o n e sp o u se w as relin q u ish in g th eir p o ssesso ry i n terest in th e m arital h o m e in o rd e r t o su stain a co n v ictio n o f

b u rg lary

. Id

. at 1 1 0 4

. 1 2f

act, E m ily Anne told W ay ne she needed to get away f rom h er husband. 6 And Bowm an him self neither sought nor was granted perm ission to enter the cam p. ¶28. Bowm an broke i n t o the cam p through an u nlocked door af ter spy ing through a window and s eeing wha t h e claim s was evidence of Em ily Anne’s unf aithf u lness. And
Bowm an’s own testim ony supports that he lacked perm ission f rom one of the cam

p’s agents

or o ccupants to b e there t hat night. W e f ind suf f icient proof supports the jury ’s v erdict that he broke into the hunting cam p with intent to com m it a crim e inside.
II. Weight of the Evidence ¶29. B o w m an next argues that if this Court rejects his s uf f iciency claim , it s h o u l d s t i l l reverse and rem and based on the weight of the evidence. ¶30. This Court does not reweigh evidence nor do e s i t d eterm i ne a witness’s credibility

. Little v. State , 233 S o. 3d 288, 2 92 (Miss. 2017). W h en evidence conf licts—as it obviously does h ere—it i s f

or the jury to decide witness-credibility issues and w hat weight and worth their testim ony

holds. Id. This Court’s responsibility is to review the trial court’s grant or denial of a new trial f

or abuse of discretion. Id. And this Court will only disturb a verdict that, when viewing the evidence i n the light m ost f avorable to the verdict, is so contrary to the overwhelm ing weight of the evidence that it sanctions an unconscionable injustice. Id. ¶31. W e see no abuse o f discretion in the judge’s denial o f B o w man’s m otion f or a new trial. Em ily

Anne and W ay

ne both testif

ied that Bowm an entered the hunting cam p where

6 B o w m an also in sists h i s “co n j u g al rig h ts” as E m ily A n n e’s sp o u se in clu d ed th e rig h t to en ter an y p l ace w h ere E m ily A n n e h ad b een ad m i tted

. B u t B o w m an cites a b so lu tely n o la w f o r th e p ro p o sitio n th at o n e can n o t co m m it b u rg lary in a p lace w h ere o n e’s sp o u se h as co n sen t to b e. 1 3t hey were stay ing, without perm ission, and assaulted t hem

. Bowm an’s o wn t e s t i mo n y

conf irm s that he arrived at the cam p around 5:00 a.m ., saw evidence he claim s showed his wif e’s unf aithf ulness, and entered the cam p through an unlocked back d oor. Viewing this evidence in the light m ost f avorable to the verdict, we f ind it supports Bowm a n ’s burglary conviction.
III. Jury Instructions ¶32. Bowm an also claim s the t rial court reversibly erred by not giving two instructions f or the burglary charge. These instructions dealt w i th Bowm an’s perm ission argum ent and the def inition of “dwelling house.” ¶33. W e review the trial court’s decision s o n j u r y i n s t ructions f or abuse o f

discretion. Lofton v. State , 2 4 8 So. 3d 798, 809 (Miss. 2018). This, however, is the f irst tim e any court has h eard Bowm an’s new instructions request. He did not seek either of these instructions at trial. And this C ourt w ill not hold a trial judge in error f or instructions never requested.
Id. at 810.
A. Knowledge, Permission, or Consent Instruction ¶34. His f

irst instruction com

plaint involves h is claim that he had no k nowledge he lacked
express or im

plied consent or p e r mi s s ion to enter the cam p—an essential elem ent the jury should have been instructed o n. B ut Bowm an acknowledges he did n ot seek this instruction. Indeed, at trial, Bowm a n withdrew h i s o wn jury instruction on the elem e n ts o f burglary in
f avor o f t h e S t ate’s. He instead agreed the State’s i nstruction covered the elem ents of burglary . W e also agree. And thus, we see no error here.

1 4B. Dwelling House Instruction

¶35. Bowm an’s next argum ent i s that the judge should h ave def ined “dwelling house” f

or the jury

. A trial court is n ot required to give the jury sua sponte instructions or instructions supplem enting those r equested by the parties. Harris v. State , 861 So. 2d 1003, 1017 (Miss. 2003). Thus, the t rial court cannot be held i n error. A nd w hile t h e p arties discussed def initional and lim iting instructions a t som e length, Bowm an n ever requested an i nstruction

to def ine “dwelling house” f

or the jury

. So his argum ent he is entitled to such an i nstruction is also waived.
IV. Rule 404(b) Evidence 7 ¶36. Bowm an’s next challenge is over the judge’s R ule 4 0 4 ( b ) r u l i n g s . S p e c i f ically , Bowm an a rgues the trial court e rred by adm itting evidence of his p rior assault of Em ily Anne and his d rug and alcohol abuse. Bowm an claim s this im proper character e vid e n c e u n d u l y prejudiced him , resulting in his burglary conviction. ¶37. This Court reviews e videntiary calls f o r a buse of discretion. Hargett v. State , 62 So. 3d 950, 952 (Miss. 2011). “‘A trial judge enjoy s a g reat d eal of discretion a s t o the relevancy and adm issibility of e vidence.’” Id. (quoting Price v. State , 898 S o . 2 d 6 4 1 , 653 (Miss.

7 B o w m an ap p ears to rai s e t w o o t her evidentiary errors while discussing the Rule 404(b) evidence. F i r s t , he c laim s the State waived its argum ent t hat t he prior assault was adm issible to s how intent. But he declares this without analy sis or authority , so this Court need n ot consider the a rgum e nt. See Arrington v. State , 267 So. 3d 753, 756 (Miss. 2019). Second, he clai m s the trial court incorrectly allowed hearsay testim ony u nder the excitedutterance e xception. The judge allowed Anna Fum banks to t estif

y that E m ily Anne told her it was Bowm an who had c om m itted the assault. But even i f t h i s w a s e r r or, it is harm less since Em ily Anne h ad already testif ied that Bowm an caused those bruises depicted in the pictures taken by

Anna. 1 52005)). Even if there is err o r i n the adm ission, this Court will af f irm “‘unless the error adversely af

f e cts a substantial r i ght of a party

. ’” Id. ( quoting Ladnier v . State , 878 So. 2d 926, 933 (Miss. 2004)).

Evidence of Other Crimes, W rongs, or Acts ¶38. Generally , Mississippi’s eviden t i a r y r u l e s d o not perm it evidence of other crim es,
wrongs, or acts to prove a p erson’s character to show he or she acted in conf orm ity therewith. Miss. R. Evid. 404(b)(1). B ut there are a variety of exceptions to this prohibition.
Most are f

ound in Rule 404(b)(2), which specif ies e vidence of o ther crim es, w rongs, or acts,
may be adm itted to p rove “m otive, opportunity , i ntent, prepar a t i o n , p l a n , k n o w l e d g e , i d e n t ity , absence of m istake, or lack of accident.” Miss. R. E vid. 404(b)(2). T he “[ p]urposes listed
in Rule 404(b) are not e xhaustive

. . . .” Johnson v. State , 2 04 So. 3 d 763, 768 ( Miss. 2016) (citing Green v. State , 89 So. 3d 543, 549 n.12 (Miss. 2 012)). They are, h owever, specif ic rule-based “exam

ples of noncharacter purposes f or which evidence of other crim es, wrongs,

or a cts m ay be adm itted.” Id. (citing Green , 8 9 So. 3 d at 549 n.12). Trial judges also have discretion to adm it “[ e]vidence of other crim e s or bad acts” f or reasons not l isted in Rule 404(b)(2), like “tell[ ing] the com p lete story so as not to conf use the jury .” Palm e r v. State , 939 So. 2d 792, 795 (Miss. 2006). 8 ¶39. Still, regardless of its origin, bef ore a judge adm i ts other-acts e v i d e nce, it m ust be

8 In B ro w n v. S

ta t e , th is C o u rt e x p lain ed th e S tate h as a “leg itim ate in terest in tellin g a ratio n al an d co h eren t sto ry o f w h at h ap p en ed

. . . .” B ro w n v. S ta te , 4 8 3 S o . 2 d 3 2 8 , 3 3 0 (M iss. 1 9 8 6 ) (in tern al q u o tatio n m ark s o m itted ) (q u o tin g T u rn er v. S

ta te , 4 7 8 S o . 2 d 3 0 0 , 3 0 1 (M iss. 1 9 8 5 )). Wh en su b stan tially n ecessary to p r esen t to th e j u r y th e co m p lete sto ry o f th e crim e, ev id en ce o r testim o n y m ay b e g iv en ev en th o u g h it m a y rev eal o r s u g g est o th er crim es. S im m o n s v. S t

a te , 8 1 3 S o . 2 d 7 1 0 , 7 1 6 (M iss. 2 0 0 2 )

.

1 6f

iltere d t h r o u g h M ississippi Rule o f E vidence 4 03. Under R ule 403, w hen weighing adm ission of relevant evidence, a t rial judge “ may exclude r elevant evidence if its probative value is substantially outwei g h e d b y [ the] danger o f

. . . u nf air prejudice

. . . .” Miss. R. Evid. 403 (em

phasis a dded). These adm issibility determ i nations are perm issive and discretionary on the trial judge’s part. 9 This discretion is necessary because Rule 403 “‘does

not m andate exclusion’” o f highly prejudicial relevant e vidence. B urleson v. S tate , 166 So. 3d 499, 5 08 (Miss. 2 015) ( quoting Jones v. State , 904 S o. 2d 149, 1 5 2 (Miss. 2005)). Rather, the rule is clear that such evidence “m ay be excluded.” Id.
A. Prior Assault ¶40. T h i s Court need n ot l ook hard t o s ee that evidence of prior threats a nd assault s h a s been deem ed probative to show intent. 10 I n Stone v. State , the def endant was tried f

or the aggravated a ssault of his sister. Stone v. S tate , 94 So. 3d 1078, 1080-81 ( Miss. 2012). The judge a llowed the S tate to introduce Stone’s prior t hreats and attacks against his s ister. These

act s w e r e o f

f e r ed to tell a com

plete s tory and to show his intent and m otive, am ong other

reasons. I

d. On appeal, Stone claim ed these a d mi s s i o n s were erroneous. But this Court

9 “W here a trial court d eterm ines t hat potentiall y p rejudicial evidence possesses suf f i cient probative value, it is within t hat c ourt’s sound d iscretion whether or n ot to adm it [ it.]” Jones v. State , 9 04 So. 2d 149, 152 (Miss. 2005) (citing Baldwin v. State , 784 So. 2d 148, 156 (Miss. 2001)).

10 Bowm a n points to three o lder cases in which evidence of prior assaults was deem ed inadm issible: Floyd v. State , 166 Miss. 15, 148 So. 226 (1933); R aines v. State , 81 Miss. 489, 33 So. 19 (1902); and Herm an v. State , 75 Miss. 340, 22 So. 873 (1898). But in each of t hese cases, this Court f ound t he evidence was rem ote in tim e, f actually unconnected, or, as in Herm an , unsupported. But m ore im porta n t l y , t h ese cases predate our Rules of Evidence, which instruct how prior-acts evidence m ust now be handled. 1 7disagreed. It f o und the past threats and assaults were probative in d eterm ining the def endant “knowingly acted”—an elem e nt of aggravated assa u l t

. I d. at 1084-85. They w ere also adm issible to show his intent, m o tive, and com m on plan or schem e. Id. ¶41. The j udge h ere m ade sim ilar f indings. The S t a t e s o u g h t t o a d mi t e v i dence that
Bowm an’s tem

per had been escalating and that he assaulted Em ily Anne m ere day s bef

ore the charged crim es. The judge f ound the testim ony and exhibits s h o w ing Em i ly Anne’s bruises f rom that prior assault w ere probative to prove Bowm an’s intent—a necessary elem ent of attem

pted m urder. 11 And af

ter f iltering this evidence through Rule 403, the judge
f ound it was m ore probative than prejudicial. W e see no error in this f inding. ¶42. T h e j u d g e a lso granted Bowm an’s p roposed lim iting i nstruction abo u t t h e p r i o r

11 M i ssissip p i C o d e S ectio n 9 7 -1 -7 (2 ) d ef in es attem

p ted m u rd er as, E v ery p erso n w h o sh all d esig n an d e n d e a v o r to co m m it an a c t w h ich , if acco m p lish ed , w o u ld co n stitu te an o f f en se o f m u rd er u n d er S ectio n 9 7 -3 -1 9 , b u t sh all f ail th erein , o r sh all b e p rev en ted f ro m co m m ittin g th e sam e, sh all b e g u ilty o f attem

p t ed m u rd er an d , u p o n co n v i ctio n , sh all b e im p riso n ed f

o r l if e in th e cu sto d y o f th e D ep artm en t o f C o rrectio n s if th e p u n ish m e n t is s o f ix ed b y th e j u ry in its v e rd ict af ter a s ep arate s en ten cin g p r o ceed in g . If th e j u ry f ails to ag ree o n f

ix in g th e p en alty at im

p riso n m en t f

o r lif e, th e co u rt sh all f

ix th e p en alty a t n o t less t h an tw en ty (2 0 ) y ears in th e cu s to d y o f th e D ep a r tm en t o f C o rrectio n s. M iss. C o d e A n n . § 9 7 -1 -7 ( 2 ) (R ev . 2 0 1 4 ).
A n attem p ted c rim e co n s ists o f th ree elem en t: (1 ) an in ten t to co m m it a p articu lar crim e; (2 ) an o v ert a ct to w ard s co m m ittin g th e crim e; an d ( 3 ) th e f ailu re to co m

p lete th e c o m

m issio n o f th e crim e. G reen v. S ta te , 2 6 9 S o . 3 d 7 5 , 8 2 (M i ss. 2 0 1 8 ) . S o d eterm in in g B o w m an ’s in ten t w as n ecessary to p ro v e an elem e n t o f attem p ted m u r d er. 1 8assaults. 12 To the extent B owm an c laim s error in his lim iting i nstruct i o n, we point out

Bowm an both draf

ted and requested this specif ic i nstruction. Thus, he cannot n ow claim the court erred in giving it. ¶43. W e f

ind the judge did not abuse his discretion in adm i tting the p rior-assault evidence as proof of Bowm an’s intent.
B. Drug & Alcohol Use ¶44. Bowm an also claim s error in the adm ission of his prior drug and alcohol use.
i. Completing the Story ¶45. The State s ought t o adm it e vidence o f Bowm an’s increasing drug and a lcohol use to show h is f ram e of m ind because his verbal a n d phy s ical a buse of Em ily Anne had escalated day s bef o r e t h e October 7 a ssault and the hunting-cam p burglary

. The State argued
B o wm an’s t hen-daily drug use to self -m edicate his anger issues was a m otivati n g f a c t o r when the prior assault took place. The trial judge was not i m m ediately sure of its relevance.
He excluded any testim ony about Bowm an’s supposed drug dealing. And he m ade clear he would not allow the S tate t o m ention Bowm an’s alcohol and drug use as a “ g r a t u itous

attem pt to show [ B owm an] is a bad guy or som ething like that.” ¶46. But t he judge f

ound it n e c e s s a r y t o study additional caselaw during a recess. Af ter doing s o, he m ade a conditional ruling that “the p robative value” of evidence of Bowm an’s

12 T he trial court instructed the jury that i f it b elieved t he prior a b use allegations, they m ay only be considered “f o r the lim ited purpose of establishing CHAD BOW M AN’s intent to com m i t the crim e of Attem pted Murder.

. . .” The j ury was instructed it “ c annot and m ust not” inf er that Bowm an “acted in conf orm ity with t hose previous acts” as proof of guilt “ of the charges f

or which he is presently

on trial. ” 1 9a l c o h o l and drug abuse f or the purpose of showing an a bsence o f m istake and telling t h e

com plete story “ very - well m ay outweigh any prejudicial ef f ect.” The judge was cautious to condition his ruling, subject to a l a t e r prof f er f rom the State, when he could assess the evidence in context. ¶47. Dur i n g t r i a l , E m ily Anne gave a prof f er outside the jury ’ s presence. She testif ied about Bowm an self

-m e dicating with alcohol, m arijuana, and prescription drugs and how it

ma d e him m ore angry and abusive towards her. According t o Em i ly A nne, B ow ma n ’ s substance use w as daily

. And his v erbal and p hy sical abuse increased, particularly i n October 2014. Having heard the prof f er, the trial judge stood by his ruli n g . H e a d mi t t ed testim o ny about Bowm an’s prior d rug and a lcohol use to s how an absence of m istake and the res gestae —the com

plete story

. ¶48. Evidence of p rior substance abuse has been allowed by this C ourt to show an absence of m ist a k e and to tell a com plete story

. In Jones v. State , the def endant w as charged with her m other’s m

urder. Jones v. State , 154 So. 3d 872, 876-77 (Miss. 2014). The def endant had a h istory of drug a

buse and rehabilitation, during which she lost custody of her child and lost land—both t o her m other. Id. at 875-76. The State argued this b ackground was essential

to tell the j ury a l ogical, com plete story of the tension between t he def endant and her m other and to present a potential m otive or absence o f m istake, am ong o ther reasons, f or the m urder.
Id. at 878-79. And this Court agreed. Id. at 880. ¶49. The s ituati o n i s s i mi l a r h e r e . The judge allowed the a lcohol and drug e vidence to explain the couple’s d e t e r i o rating relationship and resulting abuse and to tell the s tory leading

2 0to B owm an’s burglary and the attem pted-m urder charge. O therwise, a j ury could indeed be conf used by a case involving a h u s b a nd showing up t o burglarize a rem ote h unting cam p tethered to allegations that he was there to com m it assault and eventually a n a t t e mpted

m urder of his wif

e. W e agree that this evidentiary call is a closer one than his earlier ruling adm itting the prior-assault evidence. ¶50. But adm ission of other-acts evidence is l argely lef t t o the sound discretion of the trial judge. Jones , 904 S o. 2d at 152. A nd the trial judge caref ully craf ted the conditions f

or this testim o ny and evidence to be adm itt e d

. H e e x cluded evidence of drug distribution and
lim ited the testim ony to only the recent past. A s the judge put it, the State could not present “f ive y e a rs worth of

, y ou know, gosh every day or every Friday that he would get drunk and then he would threaten to beat her up tha t k i n d of thing.” He recessed t o s t udy the law on this issue bef

ore conditionally f

inding the evidence was necessary f or t h e S t ate to tell the

com plete s tory

. And he did not adm it t he evidence until af ter hearing a prof

f er f r om Em ily
Anne. But even assum ing the alcohol and drug evidence was wrongly adm itted, it did not af f ect Bowm an’s substantial rights. Many of Bowma n’s own adm issions supported the burglary charge. And t he not-guilty verdicts on two of the three charged crim e s tend to show the jury did not lash out at Bowm an out of m ere prejudice af ter learning of his alcohol and substance abuse. Thus, we suggest the adm ission was at worst harm less.

ii. Limiting Instruction ¶51. Again, B o w m a n p ushes a lim iting-instruction argum ent. B ut unlike t he cautionary instruction about the assault that he did r equest and receive, he d id not r e q u est a lim iting

2 1instruction relating to the alcohol and drug evidence. T he burden of requesting a cautionary

instruction f

alls on the def

ense, not the court. In 2004, “we abandon[ ed] [ the] requirem ent that a judge issue a s ua s ponte lim iting instruction

. . . .” Brown v. State , 890 So. 2d 901, 913 (Miss. 2004). ¶52. W e opted instead to “return to the clear language of Rule 105”—a rule that “clearly places the burden of r equesting a Rule 404(b) lim i ting instruction upon counsel.” Id. This

m ethod is not only dictated by rule, but the Court has also recogni z e d t h a t l im iting instructions “can actually f ocus the jury ’s attention on sensitive i nf orm ation

. . . .” Sipp v.
State , 936 So. 2d 326, 331 (Miss. 2006) (citing Brown , 890 So. 2d at 913). So def endants and attorney s of

ten f orgo seeking such instructions f o r tactical reasons. But, strategy aside, the f act rem ains Bowm an never requested a lim iting instruction about his p rior alcohol and drug use. Thus, the judge was not bound to give one.
V. Sentencing ¶53. Finally , Bowm an argues that the j udge’s crim e-of -violence designation should have been sent to the j ury and f ound b ey ond a r easonable doubt. A nd he claim s the judge’s

m aterial m isunderstanding of the law led to an increased sentence. ¶54. Sentencing f

alls within the trial court’s discretion. And, generally , sentences within statutory lim its a re not subject to appellate review. Thom as v. State , 247 So. 3d 1252, 1257 (Miss. 2018). But when questions of law a r e 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

2 2¶55. Bowm an points to t he Court of Appeals’s opinion in Foglem an v. State , No. 2016-

KA-01244-COA, 2018 W L 4444057 ( Miss. Ct. A pp. Sept. 18, 2018), rev’d , No. 2 016-KA01244, 2019 W L 4 071866 (Miss. Aug. 2 9, 2 019). He a rgue s t h a t u n d e r the Court of Appeals’ opinion, the trial court erred by f ind i n g his burglary was a crim e o f violence.
Bowm an asserts, as t he Court of A p p e a l s d id, the c rim e -of -violence issue needed to be subm itted to the jury and f ound bey ond a r easonable doubt. But, on certiorari review, this
Court recently issued an opinion in Foglem an lay ing out how this i s incorrect in two way s. Foglem an v. State , No. 2 0 16-CT-01244-SCT, 2019 W L 4071866 (Miss. Aug. 2 9, 2019). First, b u r g l a r y i s an enum erated c rim e o f violence and t he crim e-of -violence designation applies automatically , without any input or f indings by the trial court. S ee Miss. Code Ann. § 97-3-2(1)(o) (Rev. 2014). Second, a s i s discussed in this Court’s Foglem an o p i n i o n , Section 97-3-2 is not a substantive crim inal statute. Foglem an , 2019 W L 4071866, at *4. That section does n ot im pose any sentence on a crim inal def endant that woul d r e q uire a jury ’s determ ination o f guilt as the United States Suprem e Court m andated in A lleyne v. United States , 570 U.S. 99, 133 S. Ct. 2151, 186 L. E d

. 2d 314 (2013). Id. Rather, Section
97-3-2 is an enhancement that, along wi t h M ississippi Code Section 4 7-7-3(1)(g)(i) (Rev. 2014) in specif

ic instances, d eals solely with parole e ligibility and early release. Id. at *5. This does not violate Bowm an’s constitutional rights to d ue process, trial by a n im partial jury , or a j ury f

inding g u i l t o n a l l e lem ents of the of f ense bey ond a r easonable doubt. See Apprendi v. New Jersey , 530 U .S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Moreover, Bowm an has no recognized constitutional right to p arole. See V ice v. S tate , 679

2 3So. 2d 205, 208 (Miss. 1996). W e see no error here.
B. “50%

Crime” ¶56. Bowm an next argues the t rial j udge m istakenly appli e d S e c t i o n 9 7

- 3

- 2 ( 2 ), which deals with n on-enum e rated crime s o f v iolence and parole eligibility

. He c laim s he has to serve

m ore tim e in prison than he o th e r w i s e w o u ld have, because the judge thought Bowm an would be eligible f

or parole af

ter serving 50 percent or f ive y ears. 13 Indeed, this belief was
p rom inent when the judge craf ted Bowm an’s s entence. There is m e r it to B ow ma n ’ s
argum ent. ¶57. As this C ourt recognized in Foglem an , there is som e c o nf usion over the i n t e r p l a y between Sections 97-3-2(1) and (2) and 47-7-3(1)(g)(i). Section 9 7-3-2(1) lists enum erated crim es of violence, and burglary of a d welling house is o ne of those listed cri mes. The crim e-of

- violence designation u nder Section 97-3-2(1) a pplies autom atic a l l y , without any required f indings by the judge. By com parison, Section 97-3-2(2) provides a discretionary , case-by -case crim e-of

-violence designation in which t he judge m ust m ake f

indings that the def endant “used phy sical f

orce, or m ade a credible attem pt or threat o f phy sical f

orce against another person as part of the crim inal act.” Miss. Code Ann. § 9 7-3-2(2) (Rev. 2014). And Section 97-3-2(2) concludes by stating, “[ n]o p erson convicted of a crim e of violence listed
in this section is eligible f or parole or f

or early release

. . . until the person has served at least
f if ty percent (50%) of t he sentence im posed by the court.” Id. At the s am e tim e Section 97-

13 A s B o w m an p o in ts o u t, th e trial j u d g e d i d state d u rin g sen ten cin g t h a t “[ w ] h en y o u co m p lete w h at p art o f th e sen ten ce y o u ’v e g o t to serv e , an d m y u n d erstan d in g u n d er th e law rig h t n o w , th is is a 5 0 p ercen t c rim e; w h ich m e a n s t h e law req u ires th at y o u s e rv e h alf o f t h at sen ten ce.” 2 43

- 2 w a s a d o p t ed, the Legislature am ended Section 47-7-3, which deals with parole e ligibility ,

to provide that “[ n]o p erson who

. . . is convicted of a crim e of violence pursuant to Section
97-3-2

. . . shall b e eligible f o r p arole.” Miss. Code Ann. § 47-7-3(1)(g)(i) (Rev. 2014). So there is an apparent statutory conf lict concerning crim es of violence and parole eligibility

. ¶58. The C ourt of Appeals resolved t his c o n f l i c t b y a s sum ing Section 47-7-3(1)(g)(i)

tr u m p e d , so that no one convicted of a crim e of violence—whether enum erated under Section 97-3-2(1) or designated u n der Section 9 7-3-2(2)—is elig i ble f or parole. Foglem an , 2018
W L 4444057, at *3. But this Court has rejected this i nterpretation. I n s t e a d , this Court f ollowed the directive that “[ s ]tatutes on the s am e subject, although in ap p a r ent conf lict, should if possible be construed i n harm ony with each other to give ef f ect to each.” Roberts

v. M iss. Republican P

arty State Exec. Com m . , 465 S o. 2d 1050, 1052 (Miss. 1985). To that end, this Court provided the f ollowing approach: Section 43-7-3(1)(g)(i) does apply t o the per s e cri me s o f v iolence listed in s u bsection (1) of Section 97-3-2 because Section 97-3-2(1) is s ilen t a b o u t parole eligibility

. But Section 43-7-3(1)(g)(i) does not apply to the trial court’s discretionary designation o f a “ crim e of violence” under subsection (2) of Section 97-3-2. R ather, subsection (2)’s specif ic parole-and-early -releaseeligibility provision controls. Foglem an , 2019 W L 4071866, at *5. ¶59. Here, r a t h e r t h a n f ind Bowm an was wholly ineligible f or parole like the Court of Appeals did in Foglem an , the judge was under the opposite im pression that Section 97-3- 2(2)’s 50 p e r c e n t parole eligibility applied to all of Section 97-3-2—including the crim es

enum erated in Section 97-3-2(1). And the judge f ashioned Bowm an’s sentence based on this belief

. W hile this interpretation of Section 9 7-3-2 i s understandable, u n d e r t h i s Court’s

2 5d e c i sion in Foglem an , it is also erroneous. B ecause burglary of a dwelling house is a n

enum erated crim e of violence under Section 9 7-3-2(1), Bowm an cannot serve half of his teny ear sentence bef

o re b eing eligible f

or parole as the judge believed. I nstead, Bowm an will have to serve the entirety of his t en-y ear sentence. See Foglem an , 2019 W L 4071866, at *5. ¶60. Much l i ke the C ourt of A ppeals, the judge here did not have the benef it of this Court’s decision in Foglem an . In light of the conf u sion s u rrounding crim es of violence and parole eligibility , we reverse B owm an’s sentence and rema nd h is conviction to the trial court f or resentencing. This allows the judg e to f ashion what h e believes to b e an appropriate sentence, consistent with this Court’s opinion in F oglem an . Conclusion ¶61. Bowm an was tried f or aggravated assault, attem pted m u rder, and burglary

. W hile the jury f ound that Bowm an did not com m it a n a ggravated assault or an a t tem p ted m urder, it did
f ind Bowm an guilty o f burglary

. W e f i n d Bowm an’s burglary conviction is s u pported by suf f i cient evidence. T he hunting cam p w a s E mi l y Anne’s dwelling house on October 18, 2014. Any

claim e d errors are e ither of Bowm an’s own m aking or sim p ly are not an abuse of discretion or reversible error—with one exception, his sentence. Thus, while we af f irm
Bowm an’s c onviction, w e reverse and rem and f or resentencing i n l ight of this Court’s Foglem an decision. ¶62. AFFIRMED AND REMANDED. RANDOLPH, C.J., K ITCHENS AND KIN G , P . JJ., COLEMAN, BEAM, CHAMBERLIN AND ISHEE, J J., CONCUR. GRIFFIS, J., NOT PARTICIPATING.

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