                              THIRD DIVISION
                             MCFADDEN, C. J.,
                         DOYLE, P. J., and HODGES, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                    Please refer to the Supreme Court of Georgia Judicial
                    Emergency Order of March 14, 2020 for further
                    information at (https://www.gaappeals.us/rules).


                                                                        May 6, 2020




In the Court of Appeals of Georgia
 A20A0454. DANIELS v. THE STATE.                                              DO-017 C

      DOYLE, Presiding Judge.

      Marcus Daniels was charged with two counts of armed robbery at a Waffle

House in Coweta County. Daniels filed a plea in bar, arguing that his prior acquittal

for armed robbery of a food mart across the street from the Waffle House precluded

this prosecution. The trial court denied the motion, and Daniels appeals. Finding no

error, we affirm.

      The record shows that on May 3, 2017, Daniels was charged with committing

armed robbery on October 23, 2016, at a Shell Food Mart. Before the trial, the State

filed a “Notice of State’s Intention to Offer Evidence of Independent Crimes and Acts

(If Said Evidence is Not First Admitted as Intrinsic Evidence),” seeking to admit

evidence of an October 2, 2016 robbery at a nearby Waffle House, which is the
robbery charged in the instant case. At the pretrial hearing, the State presented

evidence that: (1) the Waffle House and the Shell Food Mart are across the street

from each other, near an interstate exit; (2) Daniels sent texts to a friend the day

before the Waffle House robbery stating that he needed money and “[had] a Waffle

House off [the interstate] exit”; and (3) video from both robberies showed a dark

Nissan Versa pull into the parking lot and a male wearing a hooded shirt exit the car,

enter the establishment, and point a Glock .45 at the clerk, and a separate man take

money from the victim(s). The State argued that evidence of the Waffle House

robbery was admissible in the Shell Food Mart case as intrinsic evidence pursuant to

Baughns v. State.1 The State also argued that the evidence was admissible under

OCGA § 24-4-404 (b) (“Rule 404 (b)”) to prove identity, common scheme, and




      1
        335 Ga. App. 600, 602-603 (1) (782 SE2d 494) (2016) (explaining that
“[u]nder relevant federal authority, [including United States v. Edouard, 485 F3d
1324, 1344 (II) (C) (11th Cir. 2007)] evidence is intrinsic to the charged offense, and
thus does not fall within Rule 404 (b)’s ambit, if it (1) arose out of the same
transaction or series of transactions as the charged offense; (2) is necessary to
complete the story of the crime; or (3) is inextricably intertwined with the evidence
regarding the charged offense”).

                                          2
intent.2 The trial court ruled that the evidence related to the Waffle House robbery

was admissible as

      both intrinsic evidence, and if it was not intrinsic evidence, I’ll find
      that[:] one it’s relevant evidence; two, that there is proof to show that by
      a preponderance of the evidence that the defendant committed the other
      act[;] and [three] that the probative value is not substantially outweighed




      2
          Rule 404 (b) provides:

      Evidence of other crimes, wrongs, or acts shall not be admissible to
      prove the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, including,
      but not limited to, proof of motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident. The prosecution
      in a criminal proceeding shall provide reasonable notice to the defense
      in advance of trial, unless pretrial notice is excused by the court upon
      good cause shown, of the general nature of any such evidence it intends
      to introduce at trial. Notice shall not be required when the evidence of
      prior crimes, wrongs, or acts is offered to prove the circumstances
      immediately surrounding the charged crime, motive, or prior difficulties
      between the accused and the alleged victim.


At the hearing, the State argued that because the evidence was intrinsic, the trial court
would not need to give a Rule 404 (b) limiting instruction to the jury when the Waffle
House evidence was presented.


                                           3
      by an undue prejudice after a hearing on the matter. [Therefore, it is
      admissible under Rule 404 (b)].


      Based on that ruling, the State presented evidence of both the Waffle House

and Shell Food Mart robberies. At the conclusion of the trial, on January 25, 2018,

the jury acquitted Daniels of the Shell Food Mart robbery.

      On July 10, 2018, the State indicted Daniels for two counts of armed robbery

at the Waffle House. Daniels filed a plea in bar, asserting that his acquittal in the

Shell Food Mart case barred further prosecution for the Waffle House robbery

pursuant to OCGA § 16-1-8 (b) because he should have been charged with the latter

in the Shell Food Mart case pursuant to OCGA § 16-1-7 (b). Following a hearing, the

trial court denied the plea in bar, concluding that the two robberies “involve different

conduct[,] and the second prosecution is not barred on double jeopardy grounds.”

      In a single enumeration, Daniels argues that the trial court erred by denying his

plea in bar. We disagree.

             In addition to constitutional proscriptions of double jeopardy, the
      extent to which an accused may be prosecuted, convicted, and punished
      for multiple offenses arising from the same criminal conduct is limited
      even more strictly by the Georgia Criminal Code. Under OCGA §
      16-1-7 (b), if several crimes [(1)] arising from the same conduct are [(2)]
      known to the proper prosecuting officer at the time of commencing the

                                           4
      prosecution and are [(3)] within the jurisdiction of a single court, they
      must be prosecuted in a single prosecution. A second prosecution is
      barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should
      have been brought in the first prosecution under OCGA § 16-1-7 (b). In
      order for this procedural aspect of double jeopardy to prohibit a
      prosecution, all three prongs must be satisfied.3


      Offenses occur as a result of the same conduct and therefore constitute

procedural double jeopardy, if

      the crimes . . . arise from the same transaction or continuing course of
      conduct, occur at the same scene, occur on the same date, and occur
      without a break in the action; additionally, if it is necessary to present
      evidence of the one crime in order to prove the other, then the State must
      prosecute those charges at the same time.4


“The appellate standard of review of a grant or denial of a double jeopardy plea in bar

is whether, after reviewing the trial court’s oral and written rulings as a whole, the




      3
       (Punctuation omitted.) Johns v. State, 319 Ga. App. 718, 718-719 (738 SE2d
304) (2013).
      4
          Id. at 719.

                                          5
trial court’s findings support its conclusion. But . . . we review de novo the trial

court’s application of the law to undisputed facts.”5

      Here, the State concedes that prongs 2 and 3 of the analysis — that the Waffle

House robbery was known to the State at the time of the Shell Food Mart prosecution,

and that both cases are within the jurisdiction of a single court — have been met.

Thus, the only issue on appeal is the first prong: whether the crimes arise from the

same conduct. Daniels contends that the crimes do arise from the same conduct,

relying heavily on the State’s position in the Shell Food Mart case that the two

robberies were not two separate incidents and “not just a crime spree” because they

were in the same location, with the same participants, and committed in the same

manner.

      The robberies, though committed at nearby locations, occurred three weeks

apart at different locations, against different victims. Thus, contrary to Daniels’s

argument, the crimes did not constitute a continuing course of conduct.6 “Moreover,

      5
       (Punctuation omitted.) Garrett v. State, 306 Ga. App. 429, 429 (702 SE2d
470) (2010).
      6
        See Johns, 319 Ga. App. at 720, citing State v. Stewart, 317 Ga. App. 82, 85
(729 SE2d 478) (2012) (crimes did not arise from the same conduct because they
“occurred on different dates, in different places, and involve different circumstances
and parties”); Syas v. State, 273 Ga. App. 161, 164 (2) (614 SE2d 803) (2005) (crimes

                                          6
the State can establish each set of offenses without proving the other.”7 The fact that

the State introduced evidence of the Waffle House robbery at the Shell Food Mart

trial and may attempt to introduce evidence of the Shell Food Mart robbery at the

Waffle House trial does not mean that the State needs to prove the unrelated Shell

Food Mart robbery to establish that Daniels committed the Waffle House robbery nor

that evidence of the Waffle House robbery was necessary to convict him of the Shell

Food Mart robbery.8 Similarly, the trial court’s prior decision to admit the evidence

of the Waffle House robbery in the first trial as intrinsic evidence does not eliminate




that “occurred three days apart, took place at different locations[,] and involved
victims” did not arise from the same conduct); Summers v. State, 263 Ga. App. 338,
340 (587 SE2d 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.”). Compare Dean v.
State, 309 Ga. App. 459, 460 (711 SE2d 42) (2011) (holding that multiple traffic
offenses committed on the same date without a “break in the action” arose from the
same conduct); Nicely v. State, 305 Ga. App. 387, 389 (1) (699 SE2d 774) (2010)
(holding that drug possession and traffic offenses arose from the same conduct
because the defendant was charged with driving while his license was suspended and,
at the same time, having drugs in his car and on his person).
      7
          Jackson v. State, 336 Ga. App. 140, 145 (2) (784 SE2d 7) (2016).
      8
          See id.

                                          7
the applicable statutory requirement that the crimes must arise from the same course

of conduct in order to preclude a subsequent prosecution.

      The Shell Food Mart and Waffle House robberies did not arise from the same

conduct. “Accordingly, the trial court properly denied [Daniels] plea in bar.”9

      Judgment affirmed. McFadden, C. J., and Hodges, J., concur.




      9
          Id.

                                         8
