GA Code § 16-10-56 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 10 - Offenses Against Public Administration|Article 3 - Escape and Other Offenses Related to Confinement|§ 16-10-56. Unlawful Acts of Violence in a Penal Institution

  As used in this Code section, the term "penal institution" means any place of confinement for persons accused of or convicted of violating a law of this state or an ordinance of a municipality or political subdivision of this state.   No person legally confined to a penal institution shall commit an unlawful act of violence or any other act in a violent or tumultuous manner in a penal institution.   Any person who violates this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not less than one year nor more than 20 years.     (Code 1981, §16-10-56, enacted by Ga. L. 1995, p. 137, § 1.1; Ga. L. 2017, p. 500, § 3-5/SB 160.)    The 2017 amendment,  effective July 1, 2017, added subsection (a); redesignated former subsection (a) as present subsection (b); substituted the present provisions of subsection (b) for the former provisions, which read: "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."; redesignated former subsection (b) as present subsection (c), and, in subsection (c), substituted "violates this Code section shall be guilty" for "violates subsection (a) of this Code section is guilty", and inserted "year" near the end.   Editor's notes.   - Ga. L. 2017, p. 500, § 1-1/SB 160, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Back the Badge Act of 2017.'"   Law reviews.   - For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 89 (2017). For note on the 1995 enactment of this Code section, see 12 Ga. St. U.L. Rev. 112 (1995).   JUDICIAL DECISIONS    Construction with O.C.G.A. § 16-11-30. - Defendant, who was charged with riot in a penal institution in violation of O.C.G.A. § 16-10-56, was not similarly situated for equal protection purposes to persons charged with riot under O.C.G.A. § 16-11-30 because only those charged with the same crime as defendant could be similarly situated. Drew v. State, 285 Ga. 848, 684 S.E.2d 608 (2009).    Application with O.C.G.A. § 16-10-24. - Defendant's act of swinging the defendant's fist at the deputy satisfied the elements of both riot in a penal institution under O.C.G.A. § 16-10-56(a), and obstruction of a law enforcement officer by offering violence under O.C.G.A. § 16-10-24(b), and because the two defined crimes did not address the same criminal conduct, there was no ambiguity created by different punishments being set forth for the same crime and the rule of lenity did not apply. Chynoweth v. State, 331 Ga. App. 123, 768 S.E.2d 536 (2015), cert. denied, 2015 Ga. LEXIS 396 (Ga. 2015).   No fatal variance.    - There was not a fatal variance between the indictment and the proof at trial because there was some evidence that the defendant used the defendant's arms, not just the defendant's legs, to apply the chokehold to the victim. Strapp v. State, 326 Ga. App. 264, 756 S.E.2d 333 (2014).   Sufficient evidence for conviction.    - See Burge v. State, 243 Ga. App. 673, 534 S.E.2d 132 (2000).    Evidence that the detained defendant, after threatening a detention center sheriff's deputy with a cup of bleach solution and a mop, and after receiving two warnings from the deputy not to do so, threw the bleach on the deputy and threatened to hit the deputy with the mop, coupled with the defendant's act of refilling the cup with bleach solution and threatening to again throw the bleach onto the deputy was sufficient to support the defendant's conviction. Brown v. State, 288 Ga. App. 812, 655 S.E.2d 692 (2007).    Evidence was sufficient to allow a jury to conclude that the defendant had gouged the victim's eye as alleged in the indictment charging the defendant with riot in a penal institution under O.C.G.A. § 16-10-56 because the state presented evidence from which the jury could have concluded that while the defendant was wrestling with the victim, the defendant's thumb made contact with the victim's eye, cutting the eyelid, and perhaps the eye, and resulting in bleeding and bruising around the eye; the evidence indicated that the defendant was aware that the defendant had hurt the victim with the defendant's thumb as the defendant showed it to several officers, noting the thumb's unusual angle and the defendant's long fingernail. Paul v. State, 308 Ga. App. 275, 707 S.E.2d 171 (2011).    Evidence that the defendant swung a fist at an officer was sufficient to sustain a conviction for riot in a penal institution for committing an act in a violent manner. Chynoweth v. State, 331 Ga. App. 123, 768 S.E.2d 536 (2015), cert. denied, 2015 Ga. LEXIS 396 (Ga. 2015).   One or more persons involved in crime.    - Because there was clear evidence that in creating the offense of "riot in a penal institution," the Georgia General Assembly intended to criminalize certain conduct regardless of whether the conduct was committed by two or more persons acting in concert, and O.C.G.A. § 16-10-56 defined the offense without including any element of concerted action or reference to the general offense of riot, the defendant's conviction of the crime was upheld on appeal, despite a claim that the defendant acted alone. Glanton v. State, 283 Ga. App. 232, 641 S.E.2d 234 (2007).   Jury instruction proper.    - Trial court fairly instructed the jury that the jury could convict the defendant only if the state proved the state's case of riot in a penal institution as charged in the indictment because the language of the charge merely tracked the relevant portion of O.C.G.A. § 16-10-56; even if the charge could be interpreted as broadening the jury's authorization, the trial court also specifically instructed the jury that the defendant could not be convicted unless each element of the crime "as charged" was proved beyond a reasonable doubt and that the state bore the burden of proving "every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt." Paul v. State, 308 Ga. App. 275, 707 S.E.2d 171 (2011).   Defendant not entitled to requested instructions.    - Defendant was not entitled to jury instructions on simple battery, misdemeanor obstruction of an officer, or justification, as a lesser offense of riot, as simple battery required an unlawful touching and obstruction precluded a violent act, while riot required a violent act, and there was no evidence to support an instruction on justification as the defendant did not admit using violence against the victim. Strapp v. State, 326 Ga. App. 264, 756 S.E.2d 333 (2014).    Trial court violated O.C.G.A. § 17-8-57. - Trial court erred in convicting the defendant of riot in a penal institution under O.C.G.A. § 16-10-56 because the question of whether a county jail qualified as a penal institution under § 16-10-56 was properly for the jury, and the trial court violated O.C.G.A. § 17-8-57 in determining the issue as a matter of law; whether the jail constituted a penal institution was an element of the offense, and the trial court's direction went beyond clarifying the law on a particular issue because it involved applying the law to the evidence to draw a conclusion on an element of the state's case. Paul v. State, 308 Ga. App. 275, 707 S.E.2d 171 (2011).    Cited in Shearin v. State, 293 Ga. App. 794, 668 S.E.2d 300 (2008); Whatley v. State, 296 Ga. App. 72, 673 S.E.2d 510 (2009).