Chynoweth v. State

331 Ga.App. 123

768 S.E.2d 536

CHYNOWETH

v.The STATE.

No. A14A1764.

Court of Appeals of Georgia.

Feb. 11, 2015.

Reconsideration Denied March 12, 2015.

Certiorari Denied May 26, 2015.

Michael Robert McCarthy, for Appellant.

Susan Franklin, Asst. Dist. Atty., Herbert McIntosh Poston Jr., Dist. Atty., for Appellee.

Opinion

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, Chynoweth 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 quckly.... 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 make 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 absence 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 inmate 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 and was psychotic. There was also evidence that after Chynoweth was tased by the officers on March 16, 2012, he was taken for a medical examination, after which he was prescribed antipsychotic medication. He was then sent to a mental health facility, where on March 28, 2012, a forensic psychologist concluded that Chynoweth required inpatient hospitalization.

Before trial, Chynoweth requested jury instructions on “lack of mental capacity,” “defense of delusional compulsion,” and “mentally ill.” The trial court instructed 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 indictment charged Chynoweth with “commit[ting] an act in a violent and tumultuous manner, to wit: swing his fist at Officer [...] Pimentel.” But OCGA § 16–10–56(a) provides: “Any person legally confined to any penal institution of this state or of any political subdivision of this state who commits an unlawful act of violence or any other act in a violent or tumultuous manner commits the offense of riot in a penal institution.” (Emphasis supplied.) As we have previously held:

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 facie 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 S.E.2d 825 (2003). Chynoweth could therefore be convicted 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 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Strapp v. State, 326 Ga.App. 264, 265(1)(a), 756 S.E.2d 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 1 and 5 years for felony obstruction.

As the Georgia Supreme Court has 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 punishments 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 exists after having applied the traditional canons of statutory construction.

(Citations and punctuation omitted.) McNair v. State, 293 Ga. 282, 283–284, 745 S.E.2d 646 (2013). Chynoweth's act of swinging his fist at the deputy satisfied the elements of both riot in a penal institution, OCGA § 16–10–56(a), and obstruction of a law enforcement officer by offering violence, OCGA § 16–10–24(b), both felonies. The punishment for riot in a penal institution is from 1 to 20 years, OCGA § 16–10–56(b), while the punishment for felony obstruction is from 1 to 5 years, OCGA § 16–10–24(b), and the trial court sentenced Chynoweth to 20 years to serve after merging the obstruction conviction into the riot conviction.

OCGA § 16–10–56(a) prohibits an unlawful act of violence or any other act committed in a violent or tumultuous manner while confined to a penal institution, while OCGA § 16–10–24(b) prohibits knowingly and willfully resisting or opposing any law enforcement officer in the discharge of his duties by offering or doing violence. Riot prohibits the above-described acts against anyone generally, not only law enforcement officers, while obstruction can occur outside of a penal institution and involves acts of violence against law enforcement officers only. These two statutes do not define the same offense and are unambiguous. See Banta v. State, 281 Ga. 615, 617–618(2), 642 S.E.2d 51 (2007). Because “the two defined crimes do not address the same criminal conduct, there is no ambiguity created by different punishments being set forth for the same crime, and the rule of lenity does not apply.”Id. at 618(2), 642 S.E.2d 51 ; see Snow v. State, 318 Ga.App. 131, 134 –135(2), 733 S.E.2d 428 (2012) ; compare McNair v. State, 326 Ga.App. 516, 521–522, 757 S.E.2d 141 (2014) (neither financial transaction theft nor identity theft, as charged, requires proof of any fact the other does not; because statutes provide different grades of punishment for same criminal act, defendant entitled to rule of lenity).

“Nevertheless, as set forth in Hulett v. State, 296 Ga. 49, 54(2), 766 S.E.2d 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 S.E.2d 494 (2015). Felony obstruction does not merge with riot in a 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 OCGA § 16–1–6(1) ”). The trial court therefore erred in merging the felony obstruction conviction into the riot in a penal institution conviction. Regardless of the lengthy sentence originally imposed, we are nevertheless constrained to vacate Chynoweth's sentence and remand this case for resentencing. See Hulett, supra, ...