State v. Stewart

317 Ga.App. 82

729 S.E.2d 478

The STATE

v.STEWART.

No. A12A0551.

Court of Appeals of Georgia.

June 22, 2012.

Lee Darragh, Dist. Atty., Gainesville, Nathan Alan Kratzert, Asst. Dist. Atty., for appellant.

Myers & Stroberg, Roland H. Stroberg, Gainesville, William Paul Mason, Atlanta, for appellee.

BLACKWELL, Judge.

In April 2010, a Dawson County deputy sheriff stopped Noah Stewart, who was driving his motorcycle on State Route 400, for driving too fast. When the deputy discovered that Stewart had a suspended license, the deputy arrested him, and Stewart subsequently was charged with driving while his license was suspended¹ and three other misdemeanor traffic offenses.² Stewart eventually pled guilty to these traffic offenses, but before he did, he attempted to convince the prosecuting attorney that, at the time of the stop, he was lawfully operating his motorcycle under a limited driving permit,³ which apparently allowed him to drive when he was engaged in the business of his employer. To this end, Stewart allegedly caused a letter to be written and sent to the prosecuting attorney in September or October 2010, which purports to be written by an officer of "CSF Invest" and represents that Stewart is employed by "CSF Invest" as a "real estate research and assessment assistant." In addition, Stewart allegedly gave a statement to an investigator for the prosecuting attorney in October 2010, in which Stewart represented that he was employed with "CSF Investments" as a real property evaluator. The State contends that these representations are false, and it indicted Stewart for making a false statement⁴ and tampering with evidence,⁵ all in an effort to obstruct his prosecution for the traffic offenses.

Stewart entered his plea of guilty to the traffic offenses, however, before the indictment for the obstruction charges was returned.⁶ Based on this sequence of events, Stewart filed a plea in bar with respect to the obstruction indictment. In his plea in bar, Stewart argued that his prosecution on the obstruction charges was barred by OCGA § 16–1–7(b), which, generally speaking, forbids the separate prosecution of crimes "arising from the same conduct," so long as the prosecuting attorney knew of all the crimes when the first prosecution was commenced, and so long as all the crimes are within the jurisdiction of the same court.⁷ Stewart reasoned that the traffic charges to which he had already pled guilty and the crimes that he allegedly committed months later in an effort to obstruct the prosecution of the traffic charges were crimes "arising from the same conduct." The court below accepted these arguments and granted the plea in bar. The State appeals, contending that the traffic charges and obstruction charges do not arise from the same conduct.⁸ We agree and reverse the judgment below.

As we have said before, crimes "arising from the same conduct," as that phrase is used in OCGA § 16–1–7(b), are those that arise from the same transaction or continuing course of conduct. Dean v. State, 309 Ga.App. 459, 460, 711 S.E.2d 42 (2011) (several traffic offenses, all committed on the same date and without a "break in the action," arose from the same conduct). See also Nicely v. State, 305 Ga.App. 387, 389(1), 699 S.E.2d 774 (2010) (drug possession and traffic offenses arose from the same conduct where accused was charged with driving while his license was suspended and, at the same time, having drugs in his car and on his person). When a court considers whether two crimes arise from the same conduct, it should consider, among other things, whether one crime could be proven without evidence that the accused committed the other. Boutwell v. State, 311 Ga.App. 501, 503, 716 S.E.2d 569 (2011) ("And the courts also consider whether evidence of the other offenses could be presented without permitting evidence of the first offense or vice versa.") (citation and punctuation omitted). See also Morgan v. State, 220 Ga.App. 198, 199, 469 S.E.2d 340 (1996) (same); Teal v. State, 203 Ga.App. 440, 443(2)(b), 417 S.E.2d 666 (1992) (same). A court also should consider whether the crimes occurred on the same date, at the same time, and in the same place, and whether the crimes had the same object and involved the same circumstances and parties. Morgan, 220 Ga.App. at 199, 469 S.E.2d 340 ("In determining whether two offenses arise from the same conduct or transaction, Georgia courts have considered whether the two crimes involve the same parties, circumstances, locations, and times.") (citations and punctuation omitted). See also Boutwell, 311 Ga.App. at 503, 716 S.E.2d 569 ("Boutwell was charged in the superior court accusation with taking a different item of a different value from the victim on a different day than the items listed in the state court accusation."); Syas v. State, 273 Ga.App. 161, 164(2), 614 S.E.2d 803 (2005) (crimes that "occurred three days apart, took place at different locations[,] and involved different victims" did not arise from the same conduct); Summers v. State, 263 Ga.App. 338, 340, 587 S.E.2d 768 (2003) ("Our courts have found ... that multiple counts of burglary or theft by receiving did not arise from the same conduct, even when the stolen property was recovered together in the course of a single arrest, where the defendant burgled several different residences at separate times.") (citation omitted).

Here, the court below erred, we think, when it concluded that the traffic offenses to which Stewart pled guilty and the obstruction crimes for which he subsequently was indicted arose from the same conduct. To prosecute the obstruction crimes, although it might be necessary to prove that Stewart had been charged with traffic offenses, it would not be necessary to prove that he actually committed those traffic offenses. Indeed, to prove that Stewart unlawfully made a false statement to the investigator, the State would be required to prove that Stewart "knowingly and willfully ... [made] a false, fictitious, or fraudulent statement or representation ... in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state." OCGA § 16–10–20. That a prosecution of the traffic charges was pending—whether or not Stewart was guilty of those charges—is enough to show that the prosecution was a "matter within the jurisdiction" of the office of the prosecuting attorney. And to prove that Stewart tampered with evidence by creating and causing the letter to be delivered to the prosecuting attorney, the State would be required to prove that Stewart knowingly made false evidence "with the intent ... to...