Bowman v. State

[[COURTLISTENER_SUBOPINION {"id":"11146610","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
317 Ga. 457
FINAL COPY

                 S23A0682. BOWMAN v. THE STATE.


      PINSON, Justice.

      Appellant Torry Bowman and his friend, Maurice Goodman,

got into an argument in a bar with brothers Alec and Britian Price.

They confronted the Price brothers again outside the bar, and Alec

was shot and died as a result of his injuries. Bowman was convicted

of malice murder and other crimes in connection with Alec’s death.1


      1 The shooting happened on October 3, 2017. On January 5, 2018, a Ful-

ton County grand jury indicted Bowman for malice murder (Count 1), three
counts of felony murder (Counts 2-4), three counts of aggravated assault with
a deadly weapon (Counts 5, 6, and 13), two counts of possession of a firearm
during the commission of a felony (Counts 7 and 14), two counts of possession
of a firearm by a convicted felon under OCGA § 16-11-131 (Counts 8 and 15),
two counts of possession of a firearm by a convicted felon through use of a fire-
arm under OCGA § 16-11-133 (Counts 9 and 16), armed robbery (Count 10),
and two counts of aggravated assault (Counts 11-12). Goodman was also in-
dicted on Counts 1, 2, 5, 6, and 7. Counts 1 through 9 were related to the shoot-
ing death of Alec and aggravated assault of Britian, while Counts 10 through
16 were related to an incident on September 26, 2017, involving the same fire-
arm but an unrelated victim. Bowman moved to sever Counts 1 through 9 from
Counts 10 through 16 and moved to bifurcate Counts 3, 4, 8, and 9 from the
remaining counts; the court denied both motions after a hearing. Bowman
moved for reconsideration of his motion to bifurcate Counts 4 and 9, and the
court denied the motion. Bowman pleaded guilty to Counts 10 through 16 and
was tried individually by a jury from October 23 to 29, 2018 on Counts 1
On appeal, Bowman contends that the trial court erred by (1) in-

structing the jury on party to a crime, conspiracy, and provocation

by words alone, and (2) failing to allow him to stipulate to his prior

conviction to prove the required elements of Count 9, see OCGA §

16-11-133, without stipulating that the conviction involved the pos-

session or use of a firearm. He also argues that these errors, taken

together, deprived him of a fair trial under State v. Lane,
308 Ga. 10
(
838 SE2d 808
) (2020).

      Each claim fails. Although the State did not focus on theories

of party to a crime or conspiracy during the trial, at least slight evi-

dence supported the theories, so the trial court was authorized to

give them. The instruction that provocation by words alone is not a

defense to murder was an accurate statement of the law. Bowman’s


through 9. The jury found Bowman guilty of all counts presented. Bowman was
sentenced to serve life in prison with the possibility of parole on Count 1, 20
years on Count 6 to run concurrent with Count 1, 15 years on Count 9 to run
consecutive to Count 1 and suspended, ten years on Count 10 to run concurrent
with Count 1, and 15 years on Count 16 to run consecutive to Count 1 and
suspended. The remaining counts were either merged or vacated by operation
of law. Bowman timely moved for a new trial, and he amended his motion twice
through new counsel. Following a hearing, the court denied the motion for new
trial on January 11, 2023. Bowman timely appealed. The case was docketed to
the April 2023 term and submitted for a decision on the briefs.
                                      2
argument about the stipulation fails because the State had to estab-

lish that his prior conviction involved the use or possession of a fire-

arm to prove that he violated OCGA § 16-11-133, so making him

choose between having that element proven by stipulation or evi-

dence did not violate the rule of Old Chief v. United States,
519 U.S.

172
(
117 SCt 644
, 136 LE2d 574) (1997). And because Bowman has

failed to establish error, we need not address cumulative prejudice.

So we affirm his convictions and sentence.

     1. The evidence at trial showed the following. On October 3,

2017, Alec and Britian went to a party and then walked to a nearby

bar. The interactions inside the bar were captured on surveillance

video and played for the jury. Bowman and Goodman were standing

just inside the bar entrance. Soon after the Price brothers entered,

Bowman, who was talking on a cell phone, bumped into Alec as Bow-

man walked toward the exit.

     Alec started arguing with Goodman. Britian, who was standing

next to Alec and Goodman, tried to intervene, at one point standing

between the two men with his arms outstretched. Britian said he

                                   3
“didn’t think [the argument] was anything serious,” but described

Goodman as “hyped . . . compared to [Alec]” during the confronta-

tion.

        Meanwhile, Traven Guess, a bar security guard, walked Bow-

man toward the exit. He held the door open for Bowman. Guess tes-

tified that Bowman was “aggressive” and “rude” before leaving

through the door. Anthony Nobles, another bar security guard, tes-

tified that he saw a semiautomatic handgun sticking out of Good-

man’s pants pocket. He told Guess about the firearm and instructed

him not to let Bowman and Goodman reenter because they were to-

gether and at least one of them had a gun.

        Guess and Nobles then moved to address the confrontation be-

tween the Price brothers and Goodman. Goodman walked to the exit

while waving his hand at the Price brothers, gesturing to them to

“come outside” in what Britian testified was a “taunting” manner

and an invitation to fight.

        After leaving the bar, Bowman and Goodman tried to get back

into the bar through the exit door but were not allowed inside.

                                   4
Britian testified that he saw the two standing outside the bar, con-

tinuing to gesture toward him and Alec to come outside.

     Shortly after, the Price brothers left the bar and turned left,

where they were again confronted by Bowman and Goodman. Dur-

ing that argument, Bowman said, “This is my brother,” referring to

Goodman, and Britian said, “[T]his is my blood brother. This is my

real brother,” referring to Alec. The argument outside lasted approx-

imately two minutes, and then Bowman and Goodman “left real

quick and went around that [street] corner.”

     Britian testified that less than a minute later, Bowman came

back around the corner with a gun in his hand. Bowman “immedi-

ately started shooting.” Alec was shot three times and died as a re-

sult of being shot through the heart. Britian was “[a] hundred per-

cent” sure that Bowman shot Alec.

     Five 9mm cartridge cases were found around the street outside

the bar. A GBI firearms examiner testified that four of them came




                                 5
from the same gun.2 Although no gun was found at the crime scene,

the gun the cartridges came from was a semiautomatic gun used in

a separate incident related to Bowman, identified only to the jury as

Case Number 172692002.3

        Between 12:00 and 1:00 a.m. on the night of the shooting, a

police officer tried to pull over a car after it ran a red light. After the

officer turned on his lights and sirens, the car turned the wrong way

down a one-way street and drove through a gas-station parking lot

to cut through to another gas-station parking lot, where the car

eventually stopped. Police searched the car and arrested both Bow-

man, who was the driver, and Goodman, who was in the passenger

seat.

        2. Bowman claims that the trial court erred by giving certain

jury instructions, each over his objection at trial. When instructional



        2 Another cartridge case was determined to be from a separate incident

because it was highly corroded, indicating that it had been fired before the
shooting in this case.
      3 As discussed in footnote 1, the charges related to Case Number

172692002 were from an incident on September 26, 2017, and brought in the
same indictment as the shooting of Alec (Counts 10 through 16). Bowman
pleaded guilty to those charges.
                                       6
errors are preserved, an appellate court reviews jury instructions

“as a whole to determine whether the jury was fully and fairly in-

structed on the law of the case.” Redding v. State,
293 Ga. 766, 769
(3) (
749 SE2d 717
) (2013) (citation and punctuation omitted). We re-

view each claimed instructional error in turn.

     (a) Bowman contends that the trial court erred by instructing

the jury on party to a crime and conspiracy when the State’s theory

of the case throughout trial was that Bowman was the shooter and

conspiracy was not charged in the indictment.4 But as we have re-

peatedly held, the State need not charge or even argue a theory of


     4 On party to a crime, the trial court instructed:



     [E]very party to a crime may be charged with and convicted of com-
     mission of the crime. A person is a party to a crime only if that
     person directly commits the crime, intentionally helps in the com-
     mission of the crime, intentionally advises, encourages, hires,
     counsels, or procures another to commit the crime.
            Any party to a crime who did not directly commit the crime
     may be prosecuted for . . . commission of the crime upon proof that
     the crime was committed and that the person was a party to it even
     though the person alleged to have directly committed the crime
     has not been prosecuted or convicted, has been convicted of a dif-
     ferent crime or degree of crime, is not amenable to justice, or has
     been acquitted.
And on conspiracy, the court instructed:
            [A] conspiracy is an agreement between two or more persons

                                       7
party to a crime or conspiracy for a crime to be proven in that man-

ner. See Leeks v. State,
303 Ga. 104, 106-107
(2) (
810 SE2d 536
)

(2018); Mathews v. State,
314 Ga. 360, 366
(2) (a) (
877 SE2d 188
)

(2022); Shepard v. State,
300 Ga. 167, 170-171
(3) (
794 SE2d 121
)

(2016). So even if the party requesting a charge on a particular the-

ory did not advance that theory, that instruction is authorized as

long as “slight evidence . . . support[s] the theory of the charge.”

Calmer v. State,
309 Ga. 368, 369-370
(2) (
846 SE2d 40
) (2020) (cita-

tion and punctuation omitted); Pennington v. State,
306 Ga. 854,

855-856
(
834 SE2d 63
) (2019). We have thus rejected challenges to

jury instructions on both party to a crime and conspiracy where the

State did not allege or focus on those theories but slight evidence

supported them. See Taylor v. State,
312 Ga. 1, 14-15
(5) (860 SE2d



     to do an unlawful act, and the existence of a conspiracy may be es-
     tablished by proof of acts and conduct as well as by proof of an ex-
     pressed agreement. When persons associate themselves in an un-
     lawful enterprise, any act done by any party to the conspiracy to
     further the unlawful enterprise is considered to be the act of all the
     conspirators[; h]owever, each person is responsible for the acts of
     others only insofar as such acts are naturally or necessarily done to
     further the conspiracy. Whether or not a conspiracy existed in this
     case is a matter for you to determine.
                                      8
470) (2021) (holding that “more than slight evidence” supported a

conspiracy instruction, even when conspiracy was not alleged in the

indictment and conspiracy was not the theory of the State’s case);

Smith v. State,
306 Ga. 753, 758
(2) (
833 SE2d 117
) (2019); Leeks,
303 Ga. at 106-107
(2) (holding that the trial court did not err in

instructing on party to a crime even though the defense was mis-

taken identity and the State’s theory was that the defendant was

the shooter).

     We reject Bowman’s similar challenge here. At least slight ev-

idence supported theories that Bowman was guilty of Alec’s murder

as a party to the crime or as part of a conspiracy with Goodman.

“Whether a person was a party to a crime can be inferred from his

presence, companionship, and conduct before and after the crime

was committed.” Dublin v. State,
302 Ga. 60, 65
(3) (
805 SE2d 27
)

(2017) (citation and punctuation omitted). And “[t]he State may

prove a conspiracy by showing that two or more persons tacitly came

to a mutual understanding to pursue a criminal objective.” Shepard,
300 Ga. at 170
(3) (citation and punctuation omitted). Here, Bowman

                                 9
and Goodman were together before, during, and after the crime.

While in the bar, Goodman had a semiautomatic handgun, and the

murder weapon was later determined to be a semiautomatic hand-

gun connected to Bowman through a prior incident. After leaving

the bar, the two tried to get back into the bar through the exit. Then,

outside the bar, they stood together, Goodman waved at the Price

brothers to come outside, and, when they did, Bowman and Good-

man again confronted the Price brothers together, with Bowman

calling Goodman his “brother.” After arguing with the Price brothers

for a couple minutes, Bowman and Goodman went around the cor-

ner, and less than a minute later, according to Britain’s testimony,

Bowman came back around the corner with a gun in his hand and

started shooting. Bowman and Goodman then fled together, and

they were pulled over—with Bowman driving—within an hour of the

shooting after trying to evade the police. Given Britian’s testimony

identifying Bowman as the shooter, this evidence supported the the-

ory that Bowman was the shooter. But even if the jury disbelieved

Britian’s identification of Bowman as the shooter, the evidence also

                                  10
authorized the jury to accept a party-to-the-crime theory in which

Goodman was the shooter—based on the testimony that Goodman

had a gun in the bar—but that Bowman was also involved, including

by serving as the getaway driver. See Hawkins v. State,
304 Ga. 299,

301
(2) (
818 SE2d 513
) (2018) (holding that “substantial evidence”

supported a party-to-a-crime theory when the evidence showed that

defendant was “an active participant in the heated altercation” with

victim’s group, defendant was with someone who escalated the al-

tercation just before the shooting, and defendant himself “may have

been the actual shooter”); Wright v. State,
296 Ga. 276, 284
(3) (
766

SE2d 439
) (2014) (holding the evidence was sufficient to support con-

victions under a party-to-a-crime theory based in part on evidence

that the defendant drove the getaway car after the crimes). And the

same evidence supports a theory of conspiracy in which Bowman

and Goodman formed a tacit agreement sometime after leaving the

bar to shoot the Price brothers outside, with either Bowman or Good-

man as the shooter. See Smith,
306 Ga. at 758
(2) (holding that

“[m]ore than slight evidence” supported a conspiracy instruction

                                 11
when the evidence showed that defendant and his co-defendants

drove together to the crime scene in their gang territory and fled the

scene together after the crimes, and cell phone evidence showed they

communicated and were together before, during, and after the

crimes charged). Even if the jury disbelieved Britian’s testimony

that Bowman was the shooter, it could have credited other evidence

showing Bowman and Goodman went to the bar together, and that

Bowman talked to Goodman before the shooting and drove the get-

away car afterward.

      (b) Bowman next contends that the trial court erred by in-

structing the jury that provocation by words alone was not a defense

to murder, even though the jury was not instructed on voluntary

manslaughter and provocation was not an issue in the case.5 Bow-

man argues that the instruction harmed him by emphasizing a legal

theory that the jury did not need to consider.


      5 The trial court instructed the jury that “provocation by words alone is

not sufficient to free an accused from the crime of murder when the killing is
done solely in resentment of such provoking words.” Although Bowman did not
object at the charge conference to including the charge, he objected at the close
of the jury charge.
                                       12
     Giving this instruction was not error. Jury instructions must

tell the jury the law of the case “fully and fairly,” Redding,
293 Ga.

at 769
(3), and are authorized if supported by “slight evidence,”

Calmer,
309 Ga. at 369-370
(2). As Bowman concedes, the given in-

struction was undoubtedly an accurate statement of law: provoca-

tion by words alone will not justify murder. See Rodriguez-Nova v.

State,
295 Ga. 868, 873
(4) (d) (
763 SE2d 698
) (2014) (holding that

the trial court’s instruction, following the pattern jury instruction,

that “[p]rovocation by words alone will, in no case, justify such ex-

citement of passion sufficient to free the accused from the crime of

murder or to reduce the offense to manslaughter when the killing is

done solely in resentment of such provoking words” was a correct

statement of the law (emphasis added)). And there was slight evi-

dence supporting that charge based on the testimony about the ver-

bal altercations between Bowman, Goodman, and the Price broth-

ers. Bowman points out that provocation was not relevant to a the-

ory of the crime or a defense, but it was not error to confirm as much

for the jury—that is, that even if the jury believed that “provoking

                                 13
words” pushed Bowman or Goodman to shoot Price, that would not

serve as a justification for murder. This claim of error fails.

       3. Bowman contends that the trial court erred by not allowing

him to stipulate to his prior conviction to prove Count 9, felon in

possession of a firearm under OCGA § 16-11-133, without also stip-

ulating that his prior felony involved the possession or use of a fire-

arm.

       Count 9 of Bowman’s indictment charged him with committing

a felony against the person of another while possessing a handgun

and “having been previously convicted of a felony involving the pos-

session or use of a firearm,” a violation of OCGA § 16-11-133. Before

trial, Bowman moved to bifurcate Counts 3, 4, 8, and 9 from the re-

maining counts. The trial court denied Bowman’s motion to bifur-

cate during a pretrial hearing, but explained that Bowman could

stipulate to the underlying felonies so the State would not be allowed

to present additional evidence of those felonies. At that time, Bow-

man agreed to “stipulat[e] that Mr. Bowman is a convicted felon.”

When Bowman again sought to bifurcate Counts 4 and 9 just before

                                  14
the trial started, he argued that he should not have to stipulate that

his prior felony involved a firearm. The court explained that the

State was required to prove that the underlying felony involved a

firearm for Count 9, and “[t]o the extent the State is required to

prove its case and the defense does not wish to stipulate to an ele-

ment, that’s simply a matter of what happens during the course of

the trial.” After the State’s final witness, the trial court read the fol-

lowing stipulation into the record: “For Count 9, possession of a fire-

arm by a convicted felon, of indictment 18SC156767, Torry Bowman

is a convicted felon and said prior felony involved the possession or

use of a firearm.” There was no further evidence or mention of Bow-

man’s prior felony.

     Bowman now contends that he should not have been put to the

choice between stipulating that his prior felony involved a firearm

and having the State put on evidence about that prior felony. In sup-

port, he relies on Old Chief, in which the United States Supreme

Court held that the trial court abused its discretion by not allowing

the defendant to stipulate to a prior conviction while omitting the

                                   15
name of the prior offense to satisfy the prior-conviction element of
18 USC § 922
(g) (1), the federal felon-in-possession statute. See Old

Chief,
519 U.S. at 174, 191
(II) (B) (4). There, the Court reasoned

that the additional information about the prior offense was not

needed to prove the government’s case, so under Federal Rule of Ev-

idence 403, the risk of unfair prejudice from the jury hearing inflam-

matory details of a prior conviction—even if only the name or nature

of the offense—outweighed its negligible probative value. See
id. at

180-191
(II) (B). Bowman contends that the same is true here: his

stipulation could have satisfied the State’s burden to prove the prior

felony element of OCGA § 16-11-133, rendering further details about

his prior conviction unnecessary, and so the risk of unfair prejudice

from the jury hearing any such details outweighed their negligible

probative value.

     As an initial matter, it is not clear from the record that Bow-

man preserved this claim of error for review. Although Bowman ar-

gued before trial that he should not have to stipulate that his prior



                                 16
felony involved a firearm, the court later entered just such a stipu-

lation at the close of the State’s case, and he has not pointed to any-

thing in the record that suggests he did not agree to that stipulation

at that time. See McKinney v. State,
281 Ga. 92, 95
(2) (
635 SE2d

153
) (2006) (“A stipulation is a ‘voluntary agreement between oppos-

ing counsel concerning disposition of some relevant point. . . .’”)

(quoting Black’s Law Dictionary, 1269 (5th ed. 1979)); cf. Adams v.

State,
306 Ga. 1, 3
(1) (
829 SE2d 126
) (2019) (in the context of gen-

eral evidentiary objections, “to preserve an objection for ordinary ap-

pellate review, the specific ground of the objection must be made at

the time the challenged evidence is offered”).

     But even assuming this claim is properly before us (the State

has not argued that this claim was not preserved), Bowman’s argu-

ment fails at its premise. His preferred stipulation—stipulating to a

prior felony, but not to the fact that it involved a firearm—would not

have satisfied the prior-felony element of OCGA § 16-11-133, which,

as relevant to the indicted offense here, requires proof that the prior

felony was “any felony involving the use or possession of a firearm.”

                                  17
Indeed, in Brooks v. State,
309 Ga. 630
(
847 SE2d 555
) (2020), we

held that the evidence to support a defendant’s OCGA § 16-11-133

conviction was insufficient because the stipulation to the defend-

ant’s prior conviction failed to include that the prior conviction in-

volved the possession or use of a firearm and the title of the crime

did not suggest the possession or use of a firearm. See id. at 632-633

(1) (a). So unlike in Old Chief, proving that Bowman’s prior convic-

tion involved the possession or use of a firearm was necessary to

prove the State’s case, which means Old Chief’s Rule 403-based rea-

soning does not apply. Indeed, given the State’s need to prove a prior

conviction involving the possession or use of a firearm—the kind of

prior conviction charged in Bowman’s indictment—the stipulation

entered here appears to be about as narrowly tailored as it could be.

     In his reply, Bowman contends that his offer to stipulate “im-

plicitly included a stipulation to all of the required elements under

OCGA § 16-11-133.” But he offers no citation to the record for his

assertion that his preferred stipulation could have been construed

so broadly, and we see nothing in the record suggesting he offered to

                                 18
stipulate to anything beyond the fact that he is a convicted felon,

which, under Brooks, see 309 Ga. at 631-634 (1), would not have sat-

isfied the State’s burden under OCGA § 16-11-133.

     4. Finally, Bowman contends that, taken together, the trial

court’s errors resulted in cumulative prejudice that denied his right

to a fair trial. See Lane,
308 Ga. at 21
(4). But Bowman has failed to

establish even one trial court error, so we need not address cumula-

tive prejudice. See Wynn v. State,
313 Ga. 827, 840-841
(6) (
874 SE2d

42
) (2022).

     Judgment affirmed. All the Justices concur.




                                 19
                     Decided October 11, 2023.

     Murder. Fulton Superior Court. Before Judge Dempsey, Senior

Judge.

     Lauren B. Shubow, for appellant.

     Fani T. Willis, District Attorney, Kevin C. Armstrong, Charles

A. Jones, Jr., Assistant District Attorneys; Christopher M. Carr, At-

torney General, Beth A. Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Elizabeth C. Rosenwasser,

Assistant Attorney General, for appellee.




                                 20