Pierce v

State, 301 Ga. App. 167, 687 S.E.2d 185 (2009), cert. denied, No. S10C0549, 2010 Ga. LEXIS 244 (Ga. 2010). Joinder of theft by taking with making harassing telephone calls 98 and using telephone communication for indecent purposes. — Trial court did not err in refusing to sever offenses for theft by taking and the telephone charges, because the evidence of each crime would be admissible in the trial of either crime if tried separately. Moss v. State, 245 Ga. App. 811, 538 S.E.2d 876 (2000). Unrelated assaults. — Defendant’s plea to a charge arising from an earlier incident with a carpet cleaner did not preclude a prosecution for a later assault on the defendant’s girlfriend because the crimes were separated in time, involved different victims, and did not arise from the same conduct; thus, O.C.G.A. § 16-1-7(b) did not require them to be brought in a single prosecution. Delph v. State, 279 Ga. App. 306, 630 S.E.2d 891 (2006). Possession of a firearm by a convicted felon. — Defendant was not entitled to a new jury on a trial of a possession of a firearm by a convicted felon charge as generally all charges arising out of the same conduct had to be tried in a single prosecution; although there were limited exceptions to the rule allowing, under proper circumstances, the bifurcation of a possession of a firearm by a convicted felon charge, the defendant was not entitled to a separate trial before a new jury on that charge. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007). Merger for concealing death. — Appellant’s merger claims cannot simply be deemed waived on appeal following the entry of a guilty plea, even if the appellant fails to raise the issue, and four of the appellant’s five convictions for concealing the death of the appellant’s girlfriend merged since only one violation occurred. Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013). Aggravated battery charges did not merge. — When the defendant was charged with two counts of aggravated battery, the aggravated battery counts did not merge because the evidence was sufficient for a jury to determine that the batteries occurred on separate occasions rather than during a single transaction as the expert physician testified that after 16-1-7 the blow to the infant’s head that fractured the infant’s skull and caused the infant’s brain to swell, the infant would not have acted normally, and both parents testified that the infant was acting normally until the day they finally took the infant to the emergency room; and the defendant testified that the marks appeared on the infant before the defendant dropped the baby out the front door onto the ground. Busby v. State, 332 Ga. App. 646, 774 S.E.2d 717 (2015). 3. Crimes Against Property Hijacking and armed robbery. — Defendant’s convictions of hijacking a motor vehicle and armed robbery were properly entered, despite defendant’s contention that the state used the same facts to establish both offenses and that defendant should have only been convicted of and sentenced for one of the offenses, as: (1) hijacking a motor vehicle was considered a separate offense and did not merge with any other offense; (2) O.C.G.A. § 16-5-44.1 superseded the double jeopardy provisions of O.C.G.A. § 16-1-7 in motor vehicle hijacking cases; (3) O.C.G.A. § 16-5-44.1(d) did not violate the prohibition against double jeopardy, since the double jeopardy clause of the Georgia Constitution did not prohibit additional punishment for a separate offense which the legislature deemed to warrant separate sanction; and (4) defendant failed to offer any evidence in support of defendant’s allegation that O.C.G.A. § 16-5-44.1(d) otherwise violated defendant’s double jeopardy rights. Holman v. State, 272 Ga. App. 890, 614 S.E.2d 124 (2005). Arson and cruelty to animals. — Defendant was properly convicted for arson in the second degree and cruelty to animals, where the essential elements of each of the crimes differed, and the state carried its burden of proving the distinct elements of each crime. Motes v. State, 189 Ga. App. 430, 375 S.E.2d 893 (1988). Burglary and armed robbery. — There is no prohibition against a defendant’s being convicted of both burglary and a completed criminal offense, such as armed robbery, after gaining entry into the dwelling, as each offense has distinct 99 Joint Prosecution of Offenses (Cont’d) 3. Crimes Against Property (Cont’d) elements. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991). No merger of armed robbery and aggravated assault charges where defendant threatened victim with knife and took the victim’s money and then at knifepoint forced the victim into the bushes, made the victim lie down, straddled the victim and threatened to stab the victim. Rhodes v. State, 221 Ga. App. 792, 470 S.E.2d 790 (1996). Merger of aggravated assault count with armed robbery. — Because a defendant’s convictions for armed robbery (O.C.G.A. § 16-8-41(a)) and aggravated assault (O.C.G.A. § 16-5-21(a)) were based on the same conduct—the defendant’s pointing a gun at the victim with the intent to rob the victim—merger was required. Therefore, the sentence for aggravated assault was vacated. Reed v. State, 293 Ga. App. 479, 668 S.E.2d 1 (2008). Two counts of burglary based on one entry should have been merged. — Because the defendant’s one entry into the victim’s house was committed with a dual intent to commit theft and aggravated assault, the trial court should not have imposed two separate sentences for the two burglary charges based on the two intents, and instead should have merged the burglary counts for sentencing. However, merger of an armed robbery charge was properly rejected. Ward v. State, 339 Ga. App. 621, 794 S.E.2d 246 (2016). Merger of theft by taking, conversion, and theft by deception. — After the defendant was convicted on 52 counts related to the defendant’s theft of more than $600,000 as the operator of a Ponzi scheme, although the trial court did not err in failing to merge the defendant’s convictions for theft by conversion and theft by deception into the defendant’s convictions for theft by taking, because theft by taking proscribed certain criminal conduct generally, while theft by conversion and theft by deception were specific crimes, the defendant’s convictions for theft by taking merged into the defen- 16-1-7 dant’s convictions for theft by conversion and theft by deception; thus, the defendant’s sentences for theft by taking were vacated, and the case was remanded to the trial court for resentencing. Mathis v. State, 343 Ga. App. 206, 807 S.E.2d 4 (2017), cert. dismissed, 2018 Ga. LEXIS 316 (Ga. 2018). Crimes not of same nature, class, or species. — Charges of burglary, criminal attempt to steal motor vehicle and possession of firearm during commission of crime were not of same nature, class, or species under former Code 1933, § 26-506. Fair v. State, 129 Ga. App. 565, 200 S.E.2d 296 (1973). Successive prosecution for financial identity fraud. — Trial court correctly rejected the defendant’s plea in bar and denied defendant’s motion in autrefois convict because the defendant did not show that defendant’s prosecution for two counts of financial identity fraud under O.C.G.A. § 16-9-121 was barred as an impermissible successive prosecution for the same conduct in another county by defendant’s earlier conviction in that county of 33 counts of financial identity fraud. Summers v. State, 263 Ga. App. 338, 587 S.E.2d 768 (2003). Robbery by intimidation and theft by taking. — Defendant’s convictions for robbery by intimidation and theft by taking did not violate the defendant’s double jeopardy rights because the defendant obtained the money by intimidation when the defendant threatened to stab the victim, whereas the defendant obtained the victim’s car without the use of intimidation. Southwell v. State, 320 Ga. App. 763, 740 S.E.2d 725 (2013). 4. Application to Other Crimes Possession of firearm during felony. — O.C.G.A. § 16-1-7(a), the statutory double jeopardy provision, is superseded by the provision in O.C.G.A. § 16-11-106 that offense of possession of a firearm during commission of a felony ‘‘shall be considered a separate offense.’’ Miller v. State, 250 Ga. 436, 298 S.E.2d 509 (1983). Offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery, so that the defendant can 100 be convicted of both without statutory or constitutional prohibition. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991). Charge requiring evidence of prior felony. — It was proper under O.C.G.A. § 16-1-7 and former O.C.G.A. § 24-9-20 (see now O.C.G.A. § 24-5-506) to try a firearms possession charge, which requires evidence of a prior felony conviction, together with a marijuana and a burglary charge. State v. Santerfeit, 163 Ga. App. 627, 295 S.E.2d 756 (1982). When the defendant, who was arrested for speeding and driving under the influence, sought to dispose of the speeding charge by paying a fine of $99.00 to the clerk of the probate court, the defendant was not subjected to any former ‘‘prosecution’’ within the meaning of O.C.G.A. §§ 16-1-7 and 16-1-8(b), and the trial court did not err in denying defendant’s plea in bar to the charge of driving under the influence. Collins v. State, 177 Ga. App. 758, 341 S.E.2d 288 (1986). Trial counsel was not ineffective as the defendant’s guilty plea to speeding prior to the driving under the influence (DUI) of alcohol trial did not result in a conviction because the trial judge’s oral announcement that the judge would accept the plea and would impose the sentence recommended by the state was not a judgment; and the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense; thus, the defendant was not subjected to any former prosecution, and the trial court would not have erred in denying the defendant’s plea in bar. Hantz v. State, 337 Ga. App. 675, 788 S.E.2d 567 (2016). After defendant charged with traffic violations and disorderly conduct pled guilty to latter, trial court’s denial of defendant’s plea of former jeopardy to preclude prosecution for the traffic violations was not in error. The offense of disorderly conduct for which defendant was earlier tried did not arise from the same transaction as the five traffic offenses with which defendant was also charged, as they were completed at a 16-1-7 different time and at different locations; therefore, prosecution for the traffic offenses did not constitute double jeopardy for defendant. Boyette v. State, 172 Ga. App. 683, 324 S.E.2d 540 (1984). DUI offense. — Driving under the influence (DUI) offense did not arise from the same transaction as other offenses of obstructing an officer, interfering with government property, and carrying a concealed weapon, where the conduct giving rise to the other offenses did not occur until after defendant had been arrested for DUI by one officer and placed in the custody of a different officer for transportation to the sheriff ’s office. Harrell v. State, 196 Ga. App. 101, 395 S.E.2d 598 (1990). Given that a charge of DUI served as the predicate act underlying a charge of serious injury by vehicle, thus constituting a lesser included crime of serious injury by vehicle, O.C.G.A. § 16-1-7(a) barred conviction of and punishment for both; hence, in light of this incongruence, defendant’s DUI conviction and sentence, as well as the sentence for serious injury by vehicle, were vacated. Hannah v. State, 280 Ga. App. 230, 633 S.E.2d 800 (2006). Prosecutions for DUI and possession of cocaine. — After the defendant was first charged with driving under the influence and later charged with possession of cocaine, together with the passenger in the vehicle, as a codefendant, the court would reject the contention that the assistant solicitor who handled the defendant’s plea proceeding with regard to the first charge was the prosecuting officer ‘‘actually handling the proceedings’’ and that, since this attorney did not review the file before taking the plea, it could not be said that the ‘‘prosecuting officer actually handling the case’’ had actual knowledge of the alleged drug violation. Hill v. State, 234 Ga. App. 173, 507 S.E.2d 3 (1998). Speeding in both city and county as one transaction. — When a city policeman began chasing defendant’s speeding vehicle within the city limits, and a county police officer joined in the chase after the defendant left the incorporated area and entered the county, all of the offenses charged by both officers arose out of one course of conduct, i.e., there was only one 101 Joint Prosecution of Offenses (Cont’d) 4. Application to Other Crimes (Cont’d) transaction. Anderson v. State, 200 Ga. App. 530, 408 S.E.2d 829 (1991). Offenses under uniform traffic citation. — Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant’s plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant’s plea in bar based on double jeopardy, since the probate court’s void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006). Denial of plea of former jeopardy held error. — After the defendant was charged with driving with a suspended license and three counts of violation of the controlled substances act, the trial court’s denial of the defendant’s plea of former jeopardy to preclude prosecution for controlled substances act violations was in error since the offense of driving without a license to which the defendant pled guilty arose out of the same transaction and all offenses were known to the prosecutor at the outset. Smith v. State, 190 Ga. App. 246, 378 S.E.2d 493, aff ’d, 259 Ga. 352, 381 S.E.2d 37 (1989). Rape and child molestation. — An accused may be prosecuted for both rape and child molestation based on the same conduct, but he may not be convicted of both. Mackey v. State, 235 Ga. App. 209, 509 S.E.2d 68 (1998). Statutory rape and child molestation. — Trial court properly denied the defendant’s motion to dismiss charges alleging statutory rape and child molestation on jeopardy grounds as double jeopardy did not preclude the state from prosecuting defendant for both offenses, although the same conduct formed the basis for both charges. Moreover, because no corroboration was required for child molestation, the jury logically could have 16-1-7 found, and in fact did find, the defendant guilty of molesting the victim by having sex with that victim, despite the jury’s not guilty verdict on statutory rape. Maynard v. State, 290 Ga. App. 403, 659 S.E.2d 831 (2008). Possession with intent to distribute and sale of cocaine. — When the defendant was found guilty of possession with intent to distribute cocaine and, in a second trial, convicted of the sale of cocaine, the second trial violated procedural double jeopardy since the defendant was under continuous observation from the time of defendant’s sale of cocaine through defendant’s journey to a convenience store since the defendant was arrested and found to be in possession of more of the same type of drugs. Morgan v. State, 220 Ga. App. 198, 469 S.E.2d 340 (1996). Charges of conspiracy to import marijuana and trafficking in marijuana could be joined for trial, over objection, since the charges arose from the same conduct. Bridges v. State, 195 Ga. App. 851, 395 S.E.2d 30 (1990). False swearing and malicious prosecution. — Defendant’s convictions for false swearing under O.C.G.A. § 16-10-71, proven by evidence that defendant made false statements in an affidavit seeking an involuntary commitment order for the victim, and malicious confinement under O.C.G.A. § 16-5-43, supported by proof apart from the execution of the false affidavit, did not merge as a matter of fact. Washington v. State, 271 Ga. App. 764, 610 S.E.2d 692 (2005). Unauthorized offers to sell. — Because defendant’s argument on appeal was a challenge to defendant’s convictions for making 91 unauthorized offers to sell recorded material under O.C.G.A. § 16-8-60(b), and because an O.C.G.A. § 16-1-7(a) motion to correct or modify an illegal sentence was not an appropriate remedy to attack a conviction in a criminal case, the defendant did not properly challenge the convictions; defendant’s only recourse was through habeas corpus proceedings. Rogers v. State, 314 Ga. App. 398, 724 S.E.2d 417 (2012). Drug related offenses. — Trial court did not err in failing to merge the counts for attempt to manufacture methamphet- 102 amine and possession of ephedrine and pseudoephedrine because the jury could have found different conduct to support each offense; the jury could have found that the defendant assembled methamphetamine ingredients with intent to manufacture and that the defendant possessed some part of those ingredients after altering the ingredients. Taylor v. State, 320 Ga. App. 596, 740 S.E.2d 327 (2013). Because the defendant’s convictions for attempt to sell oxycodone and possession with intent to distribute each required proof of a fact which the other did not, the trial court did not err in not merging the offenses and in sentencing the defendant on both. Crankshaw v. State, 336 Ga. App. 700, 786 S.E.2d 245 (2016). Misdemeanor and felony offenses not arising from same conduct. — Trial court properly denied the defendant’s plea in bar based on double jeopardy as the misdemeanor offenses of criminal trespass, open container, and concealed weapon charges and the felony-related offenses of rape, aggravated sodomy, and making a false statement during the sexual assault investigation did not arise from the same conduct because, although the offenses occurred on the same date and close in time, the offenses took place in different locations as the rape and aggravated sodomy occurred inside the victim’s apartment and the misdemeanor offenses occurred outside a separate building in the apartment complex and the state could establish each set of offenses without proving the other. Jackson v. State, 336 Ga. App. 140, 784 S.E.2d 7 (2016). Severance 1. In General Criteria for severance apply in capital cases. — Criteria for severance of offenses are the same in cases in which the death penalty is sought as in other cases. Terry v. State, 259 Ga. 165, 377 S.E.2d 837 (1989). When joinder is based on similarity of offenses, defendant is entitled to severance. — Whenever two or more offenses have been joined for trial solely 16-1-7 on the ground that the offenses are of the same or similar character, the defendant shall have the right under O.C.G.A. § 16-1-7(c) to severance of the offenses. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981); Davis v. State, 159 Ga. App. 356, 283 S.E.2d 286 (1981); Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985). When severance is discretionary. — Severance of charges of several crimes arising from same conduct under former Code 1933, § 26-506(c) lies within sound discretion of trial judge since facts in each case are likely to be unique. Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975). When the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial court since the facts in each case are likely to be unique. Bailey v. State, 157 Ga. App. 222, 276 S.E.2d 843 (1981). When the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, the court in interests of justice may order that one or more of such charges be tried separately. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981). When there is a valid reason for joinder other than similarity of the offense, severance becomes discretionary with the trial court. Davis v. State, 159 Ga. App. 356, 283 S.E.2d 286 (1981). When the joinder is based upon the same conduct or on a series of acts connected together, severance lies within the sound discretion of the trial judge. Fluker v. State, 174 Ga. App. 890, 332 S.E.2d 34 (1985). When the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial judge. Smith v. State, 199 Ga. App. 410, 405 S.E.2d 107 (1991). Complexity of evidence as affecting severance. — When each offense charged is connected to other crimes as part of a larger scheme and evidence presented is not of such complexity as to hinder the jury from applying the law intelligently to 103 16-1-7 Severance (Cont’d) 1. In General (Cont’d) each offense, severance is a matter of discretion with the court. Guthrie v. State, 147 Ga. App. 351, 248 S.E.2d 714 (1978). When all three alleged offenses are part of the same conduct within the meaning of that term as used in O.C.G.A. § 16-1-7 and evidence is not of such complexity as to hinder the jury from being able to apply the law of the case intelligently to each alleged offense, the trial court does not abuse the court’s discretion in denying defendant’s motion to sever. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981). Ability to distinguish evidence as factor. — When the crimes joined are not of a similar kind, on a motion to sever one charge the court should consider whether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense. Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988). Balancing interests of accused with those of state. — Former Code 1933, § 26-506(c) showed that on question of severance trial court should have discretion and that interests of accused are to be balanced with interests of state. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975). Severance made in interest of justice involves balancing of interests of accused with interests of state. Fowler v. State, 155 Ga. App. 76, 270 S.E.2d 297 (1980). Interests of justice to be considered. — Only test under former Code 1933, § 26-506(c) was whether the interests of justice will be served by separate trials. The judge may order charges tried separately but the judge was not required to do so, if in the judge’s opinion, the interests of justice will not be served thereby. Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758 (1972); Slocum v. State, 230 Ga. 762, 199 S.E.2d 202 (1973); Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973). Where same conduct of accused can establish more than one crime, judge may order charges tried separately but the judge is not required to do so if, in the judge’s opinion, the interests of justice will not be served thereby. Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971). ‘‘Interest of justice’’ criterion is discretionary with trial judge. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975). It is merely permissive for court to order separate trials in interest of justice. Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758 (1972). Prejudice to defendant as factor. — Underlying consideration under former Code 1933, § 26-506(c) concerned the degree of prejudice which might result from joint disposition. Wilson v. State, 245 Ga. 49, 262 S.E.2d 810 (1980). Former Code 1933, § 26-506 did not require that motions to sever be in writing. Wigley v. State, 140 Ga. App. 145, 230 S.E.2d 108 (1976). 2. Application Facts justifying refusal of motion for severance. — Judge may refuse motion for severance of trial of multiple charges where crimes alleged were part of a continuous transaction conducted over a relatively short time, and from the nature of the entire transaction, it would be almost impossible to present to jury evidence of one of the crimes without also permitting evidence of the other. Stewart v. State, 239 Ga. 588, 238 S.E.2d 540 (1977). When all the offenses formed a series of acts closely connected in time, involving common witnesses and evidence, refusal to sever the offenses was not an abuse of discretion. Lane v. State, 210 Ga. App. 738, 437 S.E.2d 479 (1993). What constitutes single scheme or plan. — When separate crimes are committed in order to accomplish a single criminal purpose, the crimes are said to constitute parts of a single scheme or plan, even if the crimes are somewhat removed from one another in terms of time and place. Bailey v. State, 157 Ga. App. 222, 276 S.E.2d 843 (1981). Escape may, under certain circumstances, be one of a series of acts connected together and joined in a multi-count indictment. Carter v. State, 104 16-1-7 155 Ga. App. 840, 273 S.E.2d 417 (1980). Scheme encompassing burglary, motor vehicle theft and armed robbery. — When scheme and purpose to obtain narcotics which encompassed burglary, motor vehicle theft and armed robbery within span of a few hours is clearly shown by evidence, interests of justice would not be served by ordering separate trials. Goughf v. State, 232 Ga. 178, 205 S.E.2d 844 (1974). Robbery by force and robbery by sudden snatching. — Trial court did not err in denying defendant’s motion to sever charges for robbery by force and robbery by sudden snatching. Smith v. State, 225 Ga. App. 738, 484 S.E.2d 773 (1997). When overruling of motion to sever is abuse of discretion. — When separate crimes do not arise out of same conduct, do not involve same victims or witnesses, and evidence of one would not be admissible on trial of the other, judgment of trial court overruling motion to sever is error constituting an abuse of discretion. Booker v. State, 231 Ga. 598, 203 S.E.2d 194 (1974). Trial court did not abuse discretion in denying motion to sever count alleging possession of a firearm by a convicted felon from counts alleging murder and aggravated assault. Pope v. State, 168 Ga. App. 846, 310 S.E.2d 575 (1983). When the defendant and others robbed and fatally shot the first victim, who was making a night deposit, then robbed a bartender at gunpoint a month later, it was not error to deny the defendant’s motion for severance of the crimes; the crimes involved the same core group of participants committing armed robberies with similar characteristics over a short period of time. Simmons v. State, 282 Ga. 183, 646 S.E.2d 55 (2007). Severance of one count in indictment not allowed. — When codefendants A and B were charged with aggravated assault, armed robbery, and criminal damage to property and B was also charged with aggravated assault on B’s spouse in the same indictment, a motion by A to sever the latter charge against B from the rest of the charges in the indictment was properly denied; A’s rights in regard to that count were limited to a motion to sever A’s trial under O.C.G.A. § 17-8-4. Durden v.