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State v. Bowden

Court of Appeals of Utah

October 18, 2019

State of Utah, Appellee,
v.
Jeremy Michael Bowden, Appellant.

          Third District Court, West Jordan Department The Honorable L. Douglas Hogan No. 161400285

          Andrea J. Garland and Wesley J. Howard, Attorneys for Appellant

          Sean D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby concurred. Judge Ryan M. Harris concurred, with opinion.

          OPINION

          CHRISTIANSEN FORSTER, JUDGE

         ¶1 While running from the police one night, Jeremy Michael Bowden fired six shots at a police officer and hit him once in the chest. A jury later convicted Bowden of attempted aggravated murder, obstruction of justice, five counts of felony discharge of a firearm, receiving a stolen motor vehicle, and failure to stop at the command of a law enforcement officer. Bowden appeals. Sufficient evidence was submitted at trial for us to affirm Bowden's attempted aggravated murder and obstruction convictions, but we determine that Bowden's felony discharge convictions should have merged with his attempted aggravated murder conviction. We thus vacate Bowden's felony discharge convictions and remand for resentencing.

         BACKGROUND[1]

         ¶2 In October 2015, a truck was stolen along with "[s]ix or seven" guns from the truck-owner's house. Several weeks later, Bowden drove that same truck to an internet gaming facility-a location known to law enforcement for criminal activity. Officer Clark, who was on patrol in the area, noticed the truck, which had dealership license plates, and suspected that it was stolen. Accessing a national database, Clark confirmed that the truck matched the description of a truck that had recently been stolen. Clark contacted dispatch and requested an unmarked police car to take over his position because he was in a marked police vehicle that "stuck out like a sore thumb." Clark observed Bowden leaving the gaming facility and told dispatch, "[N]evermind[, ] I've got a male approaching the truck now." As Bowden opened the door to the stolen truck, Clark got out of his vehicle, drew his firearm, and ordered Bowden to get on the ground. Bowden turned and ran.

         ¶3 Clark informed dispatch that he was chasing a white male in his thirties who was wearing blue jeans, a black leather jacket or shirt, and a do-rag or bandana. Bowden ran through two parking lots toward a retail store. Officer Tsouras, who was already parked near the scene, responded to the dispatch call. About three to five seconds after Clark radioed that the suspect was fleeing on foot, Tsouras saw only one person running in that area, and that person matched Clark's description of Bowden. Tsouras described the fleeing suspect as a "white male" wearing a "[b]lack jacket, blue jeans, and beanie, skull cap-type headgear." Tsouras watched the suspect run to a nearby retail store parking lot. A store manager had just exited the building and saw "a man running . . . towards [her] at a very rapid pace." The suspect got close enough to the store manager to "touch [her] shoulder" and yelled, "Get . . . out of my way." The store manager described the suspect as wearing a "dark" jacket and "dark pants." When asked about the specific color of the jacket, she stated that she did not "remember for sure," but that it could have been green or khaki. The store manager also reported that the suspect was wearing a dark beanie or a hat of some kind.[2]

         ¶4 Tsouras pursued Bowden in his police vehicle with the lights and siren activated. When Tsouras was within eight to ten feet of Bowden, he observed Bowden rotate "his upper body towards [Tsouras's] vehicle" and a "bright flash," which Tsouras described as "a muzzle flash." At that same time, a window in Tsouras's vehicle shattered. Tsouras radioed in that shots had been fired and requested backup. As Tsouras sped away from Bowden, he heard four more gunshots and saw three more muzzle flashes in his direction coming from Bowden's gun. Every window in Tsouras's vehicle was either "blown out or shattered." Four bullets struck the exterior of Tsouras's vehicle and one bullet entered the vehicle, went through a laptop computer, and struck Tsouras in the chest. Fortunately, Tsouras was wearing a bulletproof vest, which stopped the bullet. After shooting at Tsouras, Bowden ran and disappeared from Tsouras's view. Tsouras thought he saw Bowden at a nearby car wash and shot at the person he thought was the suspect. But instead of shooting Bowden, Tsouras mistakenly shot an innocent bystander.

         ¶5 A witness who was across the street observed part of this event. The witness saw only one person running in the parking lot and then saw a police car with its lights on approaching "at a very high rate of speed" turn into that parking lot. When the police car came parallel with Bowden, the witness immediately heard five or six gunshots. He described the shooter as wearing a coat or jacket and dark pants. When asked about the color of the jacket, the witness said, "I'm not 100 percent sure, but it looked to be light in color." Also when asked if the suspect was wearing a hat, Witness stated he "d[id]n't think so." The witness also said that "[he] wish[ed] [he] had focused more on what the person was wearing" but that instead "[he] was focused more on what [the suspect] was doing." The witness then saw a second police vehicle drive into the parking lot.

         ¶6 Officer O'Gwin drove into the parking lot just as Bowden was shooting at Tsouras and Tsouras was trying to get away. O'Gwin described the shooter as a "male individual wearing a dark hoodie and blue jeans" and "white shoes." O'Gwin parked and got out of his vehicle, drew his firearm, and commanded Bowden to "[g]et on the ground." Ignoring O'Gwin's command, Bowden hid behind a dumpster. O'Gwin went to check on Tsouras, and Bowden fired several shots toward O'Gwin. O'Gwin ran back to his vehicle and saw Bowden jump over a cinderblock wall separating the parking lot from an apartment complex. O'Gwin's dashcam video did not capture Bowden's face, but it did show that the shooter was wearing blue jeans, a dark jacket, and white shoes.

         ¶7 As part of a containment area set up after Tsouras radioed that shots had been fired, two officers were stationed at a nearby apartment complex. The two officers saw Bowden jump a barbed-wire fence wearing a maroon t-shirt, jeans, and no headgear. The officers pursued Bowden on foot yelling at him to stop and issuing the warning, "Taser, taser, taser." One of the officers deployed two Taser cartridges, but Bowden ripped the Taser cords off and continued running. Bowden eventually slowed down and started pacing back and forth. Bowden was then ordered to "[g]et on the ground." When he again ignored the command, the officer fired another Taser cartridge at Bowden. But Bowden remained standing until another cartridge brought him to the ground.

         ¶8 The officers arrested Bowden and found an unfired .45 caliber bullet manufactured by Federal in his pocket. A search of the area uncovered a 9mm handgun and an ejected magazine from that handgun near the place where Bowden jumped the retaining wall, but no dark jacket, bandana, or hat was ever found. An analysis of the bullet casings found in the parking lot where the shooting took place revealed that all of the bullets fired at Tsouras came from the same 9mm handgun, and Bowden stipulated at trial that this 9mm handgun was the gun that fired at Tsouras. One of the 9mm bullets fired at Tsouras was manufactured by Remington, and the other five 9mm bullets were manufactured by Winchester. DNA analysis was performed on the 9mm handgun, the magazine, and the bullet casings recovered from the parking lot. The test excluded Bowden as the source of the DNA on the magazine. And the test revealed three separate DNA profiles on the bullet casings and four DNA profiles on the handgun; but there was not a large enough sample to include or exclude Bowden as a source of DNA on those items.

         ¶9 After Bowden's arrest, police searched the stolen truck. They found Bowden's identification and an iPad with the name "J. Bowden." Police also found fifteen guns of various makes and calibers, gun parts, and bullets of various calibers and brands, including Ruger, Winchester, and Federal. One of the 9mm bullets found in the truck was made by Winchester-the same manufacturer as one of the bullet casings found at the scene of the shooting. Some, but not all, of the guns located in the stolen ...


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