Chynoweth v. the StateChynoweth v. the State
BOGGS, Judge.
A jury found John Steven Chynoweth guilty on one count each of riot in a penal institution and felony obstruction of a law enforcement officer. Following the denial of his amended motion for new trial, Chynоweth appeals, asserting multiple claims of error. We affirm his convictions, but we vacate the sentence and remand this case for resentencing.
Construed in favor of the verdict, the evidence showed that on March 15, 2012, two detention officers removed Chynoweth from his jail cell to transport him for a “bond hearing inside the jail.” The first officer, Officer Pimentel, instructed Chynoweth to place his hands on a table so that the officer could place chain restraints on him. When the officer reached around Chynoweth “to grab ahold of the chains... to chain him up,... Chynoweth turns very quickly, brings a hook, swings at [him].” Chynoweth took a swing at the officer in a “fast manner,” “turned very quickly . . . . He‘s bringing a hand. He‘s punching. He‘s making a punching motion as he is turning full speed, full body put into it,” and used a “[c]losed fist.” As Chynoweth did so, the officer “ducked his punch.” The second officer then grabbed Chynoweth and took him to the ground. Chynoweth struggled and fought with the officers, but was eventually subdued after being tased twice.
Officer Pimentel testified that a few months after the incident, he encountered Chynoweth again and told him: “there is no grudge. There is [sic] no hard feelings for what happened. And I just told him that, you know, as easy as we can mаke this for the rest of our time and we all go home safe... you know, well, let‘s work it to that goal.” He explained that Chynoweth agreed with him and said, “Sorry for what happened.”
The State sought to admit, and the trial court allowed, evidence of a subsequent act to show Chynoweth‘s intent and the absеnce of mistake or fact. In the subsequent act, an inmate testified that on July 1, 2013 (more than two months prior to trial) he and a second inmate entered a holding cell occupied by Chynoweth. Chynoweth engaged in conversation with the two men, but after some time, the first inmate noticed that Chynoweth “sort of leaned forward and looked past me, and he made direct comments to [the second inmate].” The second inmate also noticed that Chynoweth “just really didn‘t acknowledge [the first inmate] much.” Suddenly, Chynoweth came across the cell and attacked the first inmate. The inmate testified:
He was in my face with his hands around my neck, headbutting me, and hurling me to the floor.... I looked up and saw him glaring down at me. And I asked him, What in the world happened? What is this all about? And he just glared at me. Really, his teeth were gritting, and he said, [b]lack b[-----]d.
After the second inmate picked him up from the floor, the first inmаte began to adjust his glasses when Chynoweth came “through the air again, the same thing, and I am down on the floor.” The second inmate then began kneeing or kicking Chynoweth in an effort to protect the first inmate.
Testimony was presented that in February 2012, a month prior to the incident with the officers, Chynoweth had overdosed on methamphetamine
Before trial, Chynoweth requested jury instructions on “lack of mental capacity,” “defense of delusional compulsion,” and “mentally ill.” The trial court instruсted the jury on “voluntary intoxication,” “insanity at time of commission of offense,” “insanity at time of act,” “mentally ill at time of alleged act,” and “mentally retarded.”1 The jury found Chynoweth guilty of both riot in a penal institution and felony obstruction of an officer, and the trial court merged the obstruction conviction with the riot conviction and sentenced him to 20 years to serve.
1. Chynoweth contends that the evidence was insufficient to sustain his conviction for riot in a penal institution. Specifically, he argues that there was no evidence that he committed an act in a tumultuous manner. The indictmеnt charged Chynoweth with “commit[ting] an act in a violent and tumultuous manner, to wit: swing his fist at Officer . . . Pimentel.” But
When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima faсie case for jury determination as to guilt or innocence. It is sufficient for the State to show that a crime was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.
(Citations, punctuation and footnote omitted.) Slinkard v. State, 259 Ga. App. 755, 759-760 (2) (577 SE2d 825) (2003). Chynoweth could therefore be convictеd if the evidence showed that he committed an act in a violent manner or in a tumultuous manner. The evidence presented, that Chynoweth swung his fist at Officer Pimentel, was sufficient to sustain his conviction for riot in a penal institution for committing an act in a violent manner under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See Strapp v. State, 326 Ga. App. 264, 265 (1) (a) (756 SE2d 333) (2014). Chynoweth‘s argument here, with regard to a lack of evidence of an act committed in a tumultuous manner, is therefore unavailing.
2. Chynoweth argues that he should have been sentenced to the lesser penalty of between one and five years for felony obstruction. As the Supreme Court of Georgia hаs explained:
The Supreme Court of the United States has referred to the rule of lenity “as a sort of junior version of the vagueness doctrine,” which requires fair warning as to what conduct is proscribed. The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishmеnts for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment. However, the rule does not apply when the statutory provisions are unambiguous. The rule of lenity is a rule of construction that is applied only when an ambiguity still еxists after having applied the traditional canons of statutory construction.
(Citations and punctuation omitted.) McNair v. State, 293 Ga. 282, 283-284 (745 SE2d 646) (2013). Chynoweth‘s act of swinging his fist at the deputy satisfied the elements of both riot in a penal institution,
“Nevertheless, as set forth in Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1) (2014), if this Court notices a merger error in an appeal we may correct the error even if it was not raised on appeal. [Cit.]” Grissom v. State, 296 Ga. 406 (1) (768 SE2d 494) (2015). Felony obstruction does not merge with riot in а penal institution because each crime is established by proof of different facts. See id. (merger applies where “conviction for one of the offenses is established by proof of the same or less than all facts required to establish the other crime pursuant to
3. Chynoweth contends that the trial court erred in allowing the evidence of his unprovoked attack on a cellmate thаt occurred more than two months prior to trial. Because this case was tried after January 1, 2013, Georgia‘s new Evidence Code applies here. See
The new Code adopted, in large measure, the Federal Rules of Evidence, and its sections are comparable tо corresponding federal rules. Because of this similarity, it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.
(Citation, punctuation and footnotes omitted.) Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014), cert. granted, 2014 Ga. LEXIS 706.
The record reveals that the trial court allowed this evidence for the purpose of showing Chynoweth‘s intent and the absence of mistake or accident. These are permissible purposes under
The Eleventh Circuit utilizes a three-part test for evidence of other crimes or acts to be admissible pursuant to Federal Rule of Evidence 404 (b): (1) it must be relevant to an issue other than the defendant‘s character; (2) there must be sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the act(s) in question; and (3) the probative value of the evidence cannot be substantially outweighed by undue prejudice, and the evidence must satisfy Federal Rule of Evidence 403.
(Citations, punctuation and footnote omitted.) Jones, supra, 326 Ga. App. at 660.
A
(Citations and punctuation omitted.) Jordan v. State, 328 Ga. App. 462, 466 (3) (762 SE2d 157) (2014).
Chynoweth arguеs that the subsequent act served only “to show a general propensity for violence.” The trial court found that the act was “relevant to the issue of intent, particularly with the notice of intent to raise the defense of insanity.” “The relevance of other crimes evidence to intеnt is determined by comparing the defendant‘s state of mind in committing both the extrinsic and charged offenses. Where the state of mind required for both offenses is the same, the extrinsic crime is relevant to the charged offense.” (Citations and punctuation omitted.) United States v. Zapata, 139 F3d 1355, 1358 (11th Cir. 1998). The question is “whether intent is an issue in the case.” Paul S. Milich, Ga. Rules of Evidence, § 11:13, p. 320 (2014-2015). As Professor Milich explains, “The test is to ask: under the facts of the case, is there any danger that a rational jury could find that although the defendant committed the objective, charged acts, he did not intend to do so?” (Emphasis in original.) Id. at 321.
While Chynoweth asserts that the defense of insanity “never materialized,” there was evidence presented that he had earlier been prescribed antipsychotic medication, overdosed on methamphetamine, and had been sent to a mental health facility for evaluation. And he requested jury instructions concerning lack of mental capacity and mentally ill, while the trial court gave various instructions on mental illness and insanity. This was sufficient to raise an issue concerning his state of mind, and it created a danger that a jury could have concluded that while he committed the charged act, he did not intend to do so. See Milich, supra at 321. Intent is therefore at issue in this case. Zapata, 139 F3d at 1358. The subsequent act of attacking a cellmate without warning is therefore probative of his criminal intent in the crime charged, and the trial court did not err in allowing it for that purpose.2 Id.
4. Chynoweth аrgues that the trial court erred in failing to charge misdemeanor obstruction (obstructing or hindering a law enforcement officer in the lawful discharge of his duties), as a lesser included offense of felony obstruction (knowingly and willfully resisting, ob-structing or opposing a law enforcement officer in the lawful discharge of his duties by offering or doing violence).
Judgment affirmed, sentence vacated, and case remanded for resentencing. Barnes, P. J., and Branch, J., concur.
DECIDED FEBRUARY 11, 2015 — RECONSIDERATION DENIED MARCH 12, 2015 —
Michael R. McCarthy, for appellant.
Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.