Reconsideration denied March 12, 2015 -- Cert. applied for.
Riot, etc. Whitfield Superior Court. Before Judge Boyett.
Michael R. McCarthy, for appellant.
Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.
BOGGS, Judge. Barnes, P. J., and Branch, J., concur.
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 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 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 [331 Ga.App. 124] 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 ...