State v. Bowden

2019 UT App 167

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JEREMY MICHAEL BOWDEN,
Appellant.

Opinion
No. 20170318-CA
Filed October 18, 2019

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.

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
 State v. Bowden

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

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Prater, 2017 UT 13, n.1, 392 P.3d
398 (quotation simplified).

20170318-CA 2 2019 UT App 167
 State v. Bowden

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.

2. At trial, the store manager acknowledged that shortly after the
incident, she told an officer that Bowden’s shoes were dark but
testified that she no longer remembered.

20170318-CA 3 2019 UT App 167
 State v. Bowden

¶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

20170318-CA 4 2019 UT App 167
 State v. Bowden

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 truck belonged to the truck’s owner. But the truck’s
owner testified that he had never owned a 9mm handgun or
9mm ammunition.

20170318-CA 5 2019 UT App 167
 State v. Bowden

¶10 At trial, Bowden moved to exclude the evidence of the
unfired .45 caliber Federal bullet found in his pocket at the time
of his arrest, arguing that the evidence was irrelevant and more
prejudicial than probative because the bullet could not have fit
into the 9mm gun used to shoot Tsouras. Bowden also moved
for a directed verdict at the close of the State’s case, arguing that
while Clark correctly identified him outside the internet gaming
facility, the other descriptions of the suspect seen running from
police and firing at Tsouras were inconsistent and therefore
insufficient to prove that he was the person who shot at and shot
Tsouras. The trial court denied both motions, and the jury
convicted Bowden as charged.

¶11 Prior to sentencing, Bowden moved to merge his five
felony discharge-of-a-firearm convictions with his attempted
aggravated murder conviction. The State opposed the motion
but agreed that one count of felony discharge should merge with
the attempted aggravated murder conviction. The trial court
vacated one count of felony discharge of a firearm, agreeing that
one count should merge with the conviction for attempted
aggravated murder. The trial court sentenced Bowden to
consecutive prison terms on his attempted aggravated murder,
receiving stolen property, and obstruction of justice convictions,
and ordered the sentences on his four felony discharge-of-a-
firearm convictions to run concurrently to one another and to his
other convictions. Bowden now appeals.

ISSUES AND STANDARDS OF REVIEW

¶12 Bowden raises three issues on appeal. First, he contends
that the evidence presented at trial was insufficient to identify
him as the person who shot Tsouras. “When a defendant
challenges a jury verdict for insufficiency of the evidence, we
review the evidence and all inferences which may be reasonably
drawn from it in the light most favorable to the verdict.” State v.
Noor, 2012 UT App 187, ¶ 4, 283 P.3d 543 (quotation simplified);
see also State v. Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664 (“On a

20170318-CA 6 2019 UT App 167
 State v. Bowden

sufficiency of the evidence claim we give substantial deference
to the jury.”). We will reverse a jury verdict only when the
evidence “is sufficiently inconclusive or inherently improbable
that reasonable minds must have entertained a reasonable doubt
that the defendant committed the crime of which he was
convicted.” Noor, 2012 UT App 187, ¶ 4 (quotation simplified). 3

¶13 Second, Bowden contends that the trial court erred in
admitting the evidence of the bullet found in his pocket at the
time of his arrest, arguing the evidence was irrelevant and

3. The State notes that as part of Bowden’s sufficiency of the
evidence argument, he contends that the evidence was
insufficient to prove he was the person who discarded the
firearm used in the shooting and that his obstruction of justice
conviction should therefore be vacated. Bowden asserts that “[i]f
this Court finds insufficient evidence to prove Bowden’s identity
as the shooter, then it follows that evidence of Bowden having
been the person to have discarded the gun ‘with intent to hinder,
delay, or prevent’ officers finding the gun is necessarily
insufficient.” (Quoting Utah Code Ann. § 76-8-306(1).) Bowden
did not preserve this argument at trial, and “[a]s a general rule,
claims not raised before the trial court may not be raised on
appeal . . . unless a defendant can demonstrate that . . . ‘plain
error’ occurred.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.
To prevail on an unpreserved insufficiency claim, Bowden must
show that the “insufficiency was so obvious and fundamental
that the trial court erred in submitting the case to the jury.” See
id. ¶ 17. As explained later in this opinion, Bowden’s
identification as the shooter was supported by sufficient
evidence, including witness testimony, surveillance and dash
cam video, and evidence that Bowden fled and was arrested
near the scene of the shooting. As this evidence was sufficient to
support Bowden’s conviction of attempted aggravated murder,
we also conclude that the trial court did not plainly err by
entering a judgment of conviction against Bowden for
obstruction of justice.

20170318-CA 7 2019 UT App 167
 State v. Bowden

prejudicial. Trial courts “have wide discretion in determining
relevance, probative value, and prejudice.” State v. Kell, 2002 UT
106, ¶ 32, 61 P.3d 1019. We review admissibility determinations
made by the trial court for abuse of discretion, see State v. Boyd,
2001 UT 30, ¶ 23, 25 P.3d 985, and we will overturn a jury verdict
only if the admission of the contested evidence reasonably
affected the likelihood of a different verdict, State v. Johnson, 2007
UT App 184, ¶ 34, 163 P.3d 695.

¶14 Third, Bowden contends that the court erred in merging
only one of his five felony discharge-of-a-firearm convictions
with his attempted aggravated murder conviction. Merger is a
question of law, which we review for correctness. State v. Smith,
2005 UT 57, ¶ 6, 122 P.3d 615.

ANALYSIS

I. Evidence of Identity

¶15 Bowden contends that the evidence presented at trial was
insufficient to support his convictions and to identify him as the
person who shot Tsouras. When reviewing a “sufficiency of the
evidence claim we give substantial deference to the jury.” State v.
Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664. “Direct evidence is not
required” to sustain a verdict, and the jury may return a guilty
verdict “on the sole basis of circumstantial evidence.” State v.
Nielsen, 2014 UT 10, ¶ 47, 326 P.3d 645. “In the absence of direct
evidence, the jury’s conclusion must be based upon reasonable
inference and not mere speculation.” State v. Cristobal, 2010 UT
App 228, ¶ 10, 238 P.3d 1096. It is “well-established that
identification can be inferred from circumstantial evidence;
therefore, direct, in-court identification is not required.” State v.
Isom, 2015 UT App 160, ¶ 23 n.2, 354 P.3d 791 (quoting United
States v. Boyd, 447 F. App’x 684, 690 (6th Cir. 2011)). Presence and
flight from a crime scene can establish a defendant’s guilt only if
the surrounding circumstances “make it more probable that he
was an active participant in the crime than the equally

20170318-CA 8 2019 UT App 167
 State v. Bowden

reasonable possibility that he was merely present during the
crime.” Cristobal, 2010 UT App 228, ¶ 17.

¶16 Bowden contends that the evidence was insufficient to
prove his identity as the shooter. He notes that there were some
inconsistencies in the witnesses’ descriptions of him, that some
witnesses did not have the opportunity to view the shooter and
could not testify whether there was more than one person in the
area, that the gaming facility was in a location known for
criminal activity, that Tsouras incorrectly identified the shooter
and shot an innocent bystander, and that video from the internet
gaming facility and the containment area showed similarly
dressed men. He argues that the evidence supported at least two
“equally likely” conclusions: “[1] Bowden shot at Tsouras, or [2]
a different man in the area shot at Tsouras.” Therefore, the jury’s
conclusion that Bowden was the shooter, he argues, amounts to
mere speculation. We are not persuaded. While the evidence
Bowden cites may have cast doubt on his identity as the shooter,
the record provides ample evidence, both direct and
circumstantial, to support the jury’s determination that Bowden
was the shooter.

¶17 Here, we agree with the State that much more than “some
evidence” established that Bowden was the one who shot
Tsouras. See id. ¶ 10. Specifically, after Clark identified himself as
a law enforcement officer, Bowden fled. Clark described the
suspect as a white male in his thirties wearing blue jeans, a black
leather jacket or shirt, and a do-rag or bandana. As Bowden ran
through two parking lots, Tsouras saw only one person running
in the area whom he described as a “white male” wearing a
“[b]lack jacket, blue jeans, and beanie, skull cap-type headgear.”
A retail store manager testified that Bowden yelled at her to get
out of his way and described him as white, wearing a “dark”
jacket, “dark pants,” and a dark “beanie or a hat.” She said that
she did not remember the color of the jacket but that it could
have been green or khaki. Another witness to the shooting
described Bowden as wearing a coat or jacket and dark pants.
The witness said that he was “not 100 percent sure,” but that the

20170318-CA 9 2019 UT App 167
 State v. Bowden

jacket’s color looked light and he did not think Bowden was
wearing a hat. However, this witness acknowledged he was
more focused on what the shooter was doing than on what the
shooter was wearing. The other officer, O’Gwin, whom the
suspect also fired on, described Bowden as a “male individual
wearing a dark hoodie and blue jeans” and “white shoes,” and
his dash cam video showed that the shooter was wearing blue
jeans, a dark jacket, and white shoes. With little variation, the
shooter was consistently described as a white male wearing dark
or blue jeans or pants, a dark or black jacket or other top, and
some type of head covering. The two witnesses who testified
differently acknowledged that they were not focused on what
the shooter was wearing or could not remember the details from
that night. Most importantly, the business center’s surveillance
video and O’Gwin’s dash cam video taken of the shooter
matched the initial description from Clark, the officer who had
the most time to observe Bowden.

¶18 Moreover, less than twenty minutes after the shooting,
officers located Bowden in the containment area wearing jeans
but no jacket or headgear. Officers observed Bowden jump a
fence, and when they approached him, Bowden fled again. It
was not until the officers deployed several Tasers that they were
able to apprehend him. Bowden was also arrested with bloodied
hands—injuries for which he had no explanation. A search of the
area uncovered the firearm and the ejected magazine used in the
shooting in close proximity to where Bowden was seen. A search
of the stolen vehicle Bowden was using that night uncovered his
identification, his iPad, numerous guns, and ammunition, some
of which matched the brand and caliber used in the shooting.

¶19 While minor discrepancies exist in the testimonies
identifying Bowden, there is substantial circumstantial evidence
to support the jury’s verdict as a “reasonable inference and not
mere speculation.” See id. And because we will reverse a jury
verdict “only if the evidence is so inconclusive or inherently
improbable that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime,” State

20170318-CA 10 2019 UT App 167
 State v. Bowden

v. Gonzales, 2000 UT App 136, ¶ 10, 2 P.3d 954 (quotation
simplified), we decline to disturb the jury’s determination that
Bowden was the person who shot at and shot Tsouras.

II. Admission of the Unfired Bullet

¶20 Bowden contends that the trial court erred in denying his
motion to exclude evidence of the unfired .45 caliber Federal
bullet found in his pocket at the time of his arrest. Specifically,
Bowden contends that the admission of the unfired bullet
violated rules 401, 402, and 403 of the Utah Rules of Evidence,
arguing that the evidence was irrelevant, and that any probative
value was substantially outweighed by its prejudicial effect. See
Utah R. Evid. 401 (defining relevant evidence); id. R. 402
(governing the admissibility of relevant evidence); id. R. 403
(stating that even if relevant, the court may exclude “evidence if
its probative value is substantially outweighed by a danger of . . .
unfair prejudice”); see also State v. Beverly, 2018 UT 60, ¶ 69, 435
P.3d 160 (stating that the balancing test of rule 403 may exclude
evidence that is otherwise admissible and offered for a legitimate
purpose under a different rule). However, “even if we were to
conclude that the evidence here was improperly admitted, that
would not decide the issue. We still would have to determine
whether the error was harmful.” See State v. Hamilton, 827 P.2d
232, 240 (Utah 1992). We will not overturn a jury verdict “if the
admission of the evidence did not reasonably affect the
likelihood of a different verdict.” State v. Johnson, 2007 UT App
184, ¶ 34, 163 P.3d 695 (quotation simplified). To prevail on
appeal, an appellant has the burden to show that erroneously
admitted evidence was prejudicial. See State v. Knight, 734 P.2d
913, 920 (Utah 1987) (“For an error to require reversal, the
likelihood of a different outcome must be sufficiently high to
undermine confidence in the verdict.”); see also C.T. ex rel. Taylor
v. Johnson, 1999 UT 35, ¶ 18, 977 P.2d 479 (“Harmless errors are
those that are sufficiently inconsequential so no reasonable
likelihood exists that the error affected the outcome of the
proceedings.” (quotation simplified)). In determining whether
an error was prejudicial, we consider a host of factors, including

20170318-CA 11 2019 UT App 167
 State v. Bowden

whether the evidence was cumulative, whether there was
corroborating or contradictory evidence, and “the overall
strength of the prosecution’s case.” State v. Hackford, 737 P.2d
200, 205 (Utah 1987) (quotation simplified). The more evidence
supporting the verdict, the less likely any erroneous admission
of evidence was harmful. Hamilton, 827 P.2d at 240.

¶21 At trial, the State argued that the evidence of the unfired
bullet was admissible because it implied that someone carrying
such a bullet had access to and might be comfortable with
firearms and therefore would be more likely to use a firearm.
The State also argued that the bullet linked Bowden to the stolen
truck. Bowden contends that because the evidence presented to
establish the shooter’s identity was insufficient, the bullet invited
the jury to speculate on circumstances not in evidence and
conclude that the shooter was Bowden. Specifically, it allowed
the jury to infer not only that Bowden had access to firearms in
the stolen truck, but that he also had a personal interest in
firearms. Further, he contends, the admission of the .45 caliber
bullet “invited the jury to speculate . . . that Bowden possessed a
9 mm gun and shot at Tsouras.” Bowden concludes that
evidence of the unfired bullet on his person “may have diverted
the jury’s attention from the lack of evidence otherwise
connecting Bowden to the shooting,” which “unreasonably
affected the likelihood of a guilty verdict.” (Quotation
simplified.) We are not persuaded.

¶22 While the bullet found in Bowden’s pocket had a low
probative value, it also provided little risk of unfair prejudice.
Thus, there was not a reasonable likelihood of a more favorable
outcome had the unfired bullet been excluded. Both purposes
the State offered for the bullet’s admission—to show that
Bowden was comfortable with firearms and that he was
connected to the stolen truck—were supported by other and
better evidence. Bowden stipulated to his involvement with the
stolen truck. Stolen along with the truck were “six or seven”
firearms. Fifteen guns were found in the truck that Bowden was
driving the night of the shooting, allowing the jury to infer that

20170318-CA 12 2019 UT App 167
 State v. Bowden

Bowden had otherwise acquired eight or nine additional
firearms. Also found in the truck were gun parts and bullets of
various calibers. To the extent that the jury was influenced by
the argument that Bowden was comfortable with firearms, the
jury could have reasonably inferred that from other evidence
given the number of firearms, accessories, and ammunition that
Bowden possessed. Additionally, the stronger evidence that
Bowden possessed a 9mm handgun and shot Tsouras is not the
unfired .45 caliber bullet in his pocket but the 9mm bullet of the
same brand used to shoot Tsouras that was located in the stolen
truck to which Bowden stipulated to being connected. Under the
circumstances, we determine that Bowden was not prejudiced by
the admission of evidence that he had an unfired bullet in his
pocket at the time that he was arrested. 4

III. Merger

¶23 Finally, Bowden contends that the trial court erred by not
merging his four remaining convictions of felony discharge of a
firearm with his conviction for attempted aggravated murder.
The merger doctrine operates “to protect criminal defendants
from being twice punished for committing a single act that may
violate more than one criminal statute.” State v. Smith, 2005 UT
57, ¶ 7, 122 P.3d 615 (quotation simplified). The motivation
“behind the merger doctrine is to prevent violations of
constitutional double jeopardy protection.” Id.

¶24 Utah’s “merger statute contains two merger tests.” State v.
Corona, 2018 UT App 154, ¶ 44, 436 P.3d 174 (quotation
simplified). The first dictates that “when the same act of a
defendant under a single criminal episode shall establish
offenses which may be punished in different ways under

4. “We do not determine whether the evidence was admitted
improperly, because we conclude that any error in its admission
was harmless.” See State v. Hamilton, 827 P.2d 232, 240 (Utah
1992).

20170318-CA 13 2019 UT App 167
 State v. Bowden

different provisions of this code, the act shall be punishable
under only one such provision.” Utah Code Ann. § 76-1-402(1)
(LexisNexis 2017). The second dictates that when an offense is a
lesser included offense of another charged offense, a defendant
may not be convicted of both offenses. Id. § 76-1-402(3). Bowden
initially asserted that his discharge-of-a-firearm convictions
should merge with his attempted aggravated murder conviction
pursuant to both merger tests. However, after Bowden
submitted his briefing in this case, this court issued a decision in
State v. Corona, 2018 UT App 154, 436 P.3d 174, holding that
“felony discharge of a firearm is not an included offense to
aggravated murder.” Id. ¶ 48. Bowden acknowledges that Corona
forecloses his lesser included offense merger argument. We
therefore need consider only whether Bowden’s convictions
merge under the first test, that is, whether they were part of “the
same act . . . under a single criminal episode.” See Utah Code
Ann. § 76-1-402(1).

¶25 The State does not contest Bowden’s assertion that his
convictions are subject to merger under the “same act” provision
of the merger statute. 5 The State asserts only that the plain
language of the aggravated murder statute—notwithstanding
the language of the merger statute—expressly precludes the
offense of felony discharge of a firearm from merging with the
crime of aggravated murder. See State v. Bond, 2015 UT 88, ¶ 70,
361 P.3d 104 (explaining that the legislature can preclude
operation of the merger doctrine to particular criminal conduct if
it does so explicitly). Utah’s aggravated murder statute provides
that “[a]ny aggravating circumstance described in Subsection (1)

5. Because the State does not contest Bowden’s argument that his
convictions are subject to merger pursuant to Utah Code section
76-1-402(1), we accept, for purposes of this decision, Bowden’s
premise that his firing the gun was the “same act,” see Utah
Code Ann. § 76-1-402(1) (LexisNexis 2017), as the “conduct
constituting a substantial step toward,” committing aggravated
murder, see id. § 76-4-101(1).

20170318-CA 14 2019 UT App 167
 State v. Bowden

or (2) that constitutes a separate offense does not merge with the
crime of aggravated murder.” Utah Code Ann. § 76-5-202(5)(a)
(LexisNexis 2017). The list of aggravating circumstances includes
circumstances in which “the actor was previously convicted of . . .
felony discharge of a firearm.” Id. § 76-5-202(1)(j)(xvii) (emphasis
added). But it does not list the offense of felony discharge of a
firearm itself—committed contemporaneously with the
murder—as an aggravating circumstance. “The legislature
exempts a statute from the requirements of the merger doctrine
only when an explicit indication of legislative intent is present in
the specific offense statute.” Bond, 2015 UT 88, ¶ 70 (quotation
simplified). Because the separate offense of felony discharge of a
firearm is not included in the list of aggravating circumstances,
there is no explicit indication of legislative intent to specifically
exempt that offense from the merger doctrine in the aggravated
murder context.6 Because the aggravated murder statute does
not preclude merger of a felony discharge-of-a-firearm
conviction with an attempted aggravated murder conviction,
and the State has not argued that the merger statute is otherwise
inapplicable, we agree with Bowden that the trial court should
have merged his convictions.

6. We note that this result may appear inconsistent with the
result in State v. Martinez, 2019 UT App 166. However, Martinez
involved attempted murder, not attempted aggravated murder, id.
¶ 19, and murder and aggravated murder are governed by
separate sections of the Utah Code, compare Utah Code Ann.
§ 76-5-203 (LexisNexis 2017), with id. § 76-5-202. Without
mentioning anything about previous convictions, the statute
governing murder explicitly states that felony discharge of a
firearm is a “predicate offense” that “does not merge with the
crime of murder.” See id. § 76-5-203(1)(v), (5)(a). To the contrary,
the aggravated murder statute does not include
contemporaneously committed felony discharge of a firearm in
the list of aggravating circumstances that do not merge with
aggravated murder. See id. § 76-5-202.

20170318-CA 15 2019 UT App 167
 State v. Bowden

CONCLUSION

¶26 We determine that the evidence presented at trial was
sufficient for the jury to find Bowden guilty of attempted
aggravated murder and obstructing justice. We also determine
that the admission of the evidence of the unfired bullet found in
Bowden’s pocket at the time of his arrest, even if improper, did
not reasonably affect the likelihood of a different verdict.
However, we reject the only argument the State makes in
support of the trial court’s merger ruling and therefore conclude
that Bowden’s felony discharge-of-a-firearm convictions should
be merged with his attempted aggravated murder conviction.
Accordingly, we vacate Bowden’s four remaining convictions for
felony discharge and remand for resentencing.

HARRIS, Judge (concurring):

¶27 I concur in full with the lead opinion’s analysis. I write
separately to more expressly discuss why the outcome of this
case differs from the outcome of State v. Martinez, 2019 UT App
166, also issued today. In this case, we hold that a defendant
who commits aggravated murder through discharge of a firearm
may be—depending on the facts—entitled to have his
convictions for felony discharge of a firearm merged into his
conviction for aggravated murder. By contrast, in Martinez, we
hold that a defendant who commits non-aggravated murder
through use of a firearm is not entitled to have his convictions
for felony discharge of a firearm merged into his conviction for
murder.

¶28 These seemingly-disparate outcomes are dictated by the
very different language our legislature chose to employ in the
two statutes. In the aggravated murder statute, our legislature
created an exception to the usual merger rules only where an
“aggravating circumstance . . . constitutes a separate offense,”
and the legislature specified that felony discharge of a firearm

20170318-CA 16 2019 UT App 167
 State v. Bowden

constitutes an “aggravating circumstance” only when the
defendant was “previously convicted” of felony discharge. See
Utah Code Ann. § 76-5-202(1)(j)(xvii), (5)(a), (5)(b) (Lexis Nexis
2017). By contrast, our legislature created a broader exception to
the usual merger rules in the non-aggravated murder statute,
mandating that “[a]ny predicate offense” described in the statute
“that constitutes a separate offense does not merge with the
crime of murder,” and specifying that felony discharge of a
firearm is a “predicate offense” described in the statute. See id.
§ 76-5-203(1)(v), (5)(a), (5)(b).

¶29 The result of our holdings in these two cases may seem
counterintuitive. Defendants charged with both aggravated
murder and felony discharge of a firearm will find it easier to
obtain rulings merging felony discharge convictions into their
murder convictions than will defendants charged with both non-
aggravated murder and felony discharge of a firearm. Indeed,
after reviewing our holdings here, prosecutors may reasonably
conclude that—depending on the facts of the case, including
how many counts of felony discharge of a firearm are at issue—it
may ultimately be more punitive to charge a defendant with
non-aggravated murder than with aggravated murder.

¶30 Although I fully agree with the lead opinions’ conclusions
that the plain language of the statutory text dictates these
outcomes, I wonder whether the legislature truly intended this
result. In the event that it did not, the legislature may wish to
consider amending these statutes in a future legislative session.

20170318-CA 17 2019 UT App 167