                             FIFTH DIVISION
                            MCFADDEN, C.J.,
                       MCMILLIAN, P.J., and GOSS, 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.
                               http://www.gaappeals.us/rules


                                                                       July 2, 2019




In the Court of Appeals of Georgia
 A19A0671. WARD v. THE STATE.

      MCMILLIAN, Presiding Judge.

      After Michael Charles Ward was acquitted of stalking, he was tried and

convicted by a jury of aggravated stalking against the same victim. He appeals, pro

se, following the denial of his motion for new trial, as amended, raising claims of

double jeopardy, prosecutorial misconduct, a biased judiciary, ineffective assistance

of counsel, a defective and improper indictment, and improper and insufficient

evidence to support his conviction. As more fully set forth below, we now reverse.

      Construed so as to support the jury’s verdict, the record shows that Ward and

the victim1 began dating in 2005 and had an on-again, off-again relationship for the

      1
        We set out here the evidence adduced at Ward’s trial on the aggravated
stalking charge, which we will refer to as “Trial 2.” However, we will also note if a
witness testified or the evidence was introduced at Ward’s first trial on misdemeanor
next several years. During this time, Ward lived in Marietta, Georgia, and the victim

lived alone in a house located in a somewhat remote area in Oconee County, and she

also had a vacation home on a lake in another county. By the summer of 2007, the

victim and Ward were once again having problems, and the victim told him she did

not want to continue seeing him. Over the summer, Ward showed up at the victim’s

various residences unannounced, and on at least one occasion he brought a handgun

that he told the victim he planned to use to shoot whomever he found her with.

      In early August 2007, the victim told Ward not to call her anymore, but Ward

came to her home while she was out of town. Later in August, the victim sent an

email to Ward reiterating that their relationship was over and that he needed to come

pick up his belongings, and Ward showed up at her house unannounced a few days

later. The victim helped him pack up his things and then told him once again that the

relationship was over. However, the victim kept receiving long emails from Ward

reiterating his love for her, and he showed up at her home again in early September

in hopes of a reconciliation but the victim once again told him they were through and

requested he leave. And on September 6, 2007, the victim sent Ward another email

with the subject line “NO MORE,” in which she emphatically told him not to contact

stalking and other charges, which we will refer to as “Trial 1.”

                                          2
her in any way. Nevertheless, around September 18, 2007, Ward showed up at her

house with gifts and asked her to marry him. She declined and told him to leave.

However, he was waiting for her when she came home the night of October 2, 2007,

and she told him he was frightening her with his behavior and asked him to leave.

      During this time frame, the victim also detected signs that someone had been

in her home while she was away. Because of her concerns about Ward’s behavior, the

victim contacted an attorney she knew in early October 2007.2 The attorney called

Ward and told him that the victim did not want to have any further contact with him

and that he would be sending him a letter to that effect, which he sent shortly

afterwards; this letter was read to the jury at trial. On October 22, 2007, the victim’s

housekeeper and teenage daughters3 saw a man dressed in camouflage walking

around the outside of the victim’s Oconee County house and in the nearby woods.

The housekeeper called police and showed them a picture of Ward and “suggested”

it might be him. At the responding officer’s suggestion, the victim made a request for

a security check, which alerted officers of the need to patrol her property more




      2
          This attorney also testified at Trial 1.
      3
          The housekeeper and one of her teenage daughters also testified at Trial 1.

                                             3
frequently, and which contained a specific notation that Ward was not allowed to be

on the property.

      After a telephone call with Ward at the end of October during which he called

the victim a “whore” and was screaming at her, the victim went to the Oconee County

Sheriff’s office and talked to a Detective.4 On November 2, 2007, the Detective

contacted Ward and told him that he had talked to the victim and she had made it

clear that she did not want any further contact with Ward of any kind whatsoever. He

said that Ward told him that he had already ended all contact with the victim.

      A few days later, on November 5, 2007, the victim’s nephew,5 spotted a car on

property near the victim’s house and noticed it was registered to the county where

Ward lived at the time. The nephew called the police and then noticed Ward walking

out of the woods wearing camouflage. The Detective came to the scene where he

recovered a number of items from Ward’s car, including a number of personal items

that appeared to be taken from the victim’s home, information about her friends,

phone numbers taken from the caller identification on her phone, and various tools



      4
          The Detective also testified at Trial 1.
      5
         This witness was unavailable due to a medical emergency and did not testify
at Trial I.

                                             4
that could be used to break into her house, which Ward admitted to police he planned

to use to gain access to the victim’s home.6

      Following this incident, Ward was arrested and then released on a “no-contact”

bond on Tuesday, November 6, 2007. On November 20, 2007, a multi-count

indictment was returned against Ward charging him with multiple counts of burglary,

computer theft, theft by taking, possession of tools in the commission of a crime, and

stalking. In early December 2007, Ward ordered a book called “Redeeming Love” off

Amazon.com and had it delivered to the victim’s house.7 Ward was arrested for

violating his no-contact bond and subsequently indicted on the felony offense of

aggravated stalking on January 24, 2008.




      6
         In addition to the evidence recited above, the jury also heard evidence that
after he was arrested for aggravated stalking, Ward went to the Cobb County police
and instigated an investigation against the victim for “computer invasion of privacy,”
accusing the victim of improperly accessing his emails. Evidence was also introduced
at both trials that while he was in jail awaiting trial, Ward wrote a letter or memo,
self-titled the “Giggles” Mission, setting out an elaborate plan to break into the
victim’s home and take some items out of the home and to otherwise wreak havoc and
destruction throughout. However, this missive was sent to Ward’s sons or ex-wife,
and the victim did not know about it until Ward’s ex-wife sent it to police in June
2008.
      7
        Ward admitted at a hearing on February 8, 2008 that he sent the book to the
victim and has never denied sending the book.

                                          5
      In August 2009, Ward was tried on the first indictment charging him with

misdemeanor stalking and various other crimes. Despite the evidence of Ward’s

unsolicited and alarming contacts with the victim, a jury acquitted him of all charges

except for possession of tools in the commission of a crime. Ward did not appeal that

conviction.

      Following Ward’s acquittal on the misdemeanor stalking charge, the State

moved to dead docket the pending aggravated stalking charge, but Ward objected and

the trial court denied the State’s request. In January 2010, just five months after his

acquittal on the stalking and other charges, a jury convicted Ward of aggravated

stalking,8 and he was sentenced to the maximum of ten years with credit for time

served. Ward filed a motion for new trial on February 3, 2010, and following several

amendments and a lengthy delay, a hearing was held on the motion on September 21,

2017. The trial court denied the motion on December 14, 2017, and Ward timely filed

a notice of appeal to this Court on January 8, 2018.

      1. We first address the issue of the troublesome delay in this case between the

time of trial and the ruling on the motion for new trial, which delayed the docketing

of this appeal. As noted above, well over seven years passed between the time Ward

      8
          Ward elected to represent himself during Trial 2.

                                           6
filed his motion for new trial and when the trial court held the hearing on the motion9

such that Ward’s timely notice of appeal was not filed in this case until almost eight

years after his conviction. Ward was in jail from the time he was re-arrested on the

aggravated stalking charge, and according to his brief, he completed serving his

sentence and was released from prison in February 2018.

             This sort of extraordinary post-conviction, pre-appeal delay puts
      at risk the rights of defendants and crime victims and the validity of
      convictions obtained after a full trial. It is the duty of those involved in
      the criminal justice system, including trial courts and prosecutors as well
      as defense counsel and defendants, to ensure that the appropriate post-
      conviction motions are filed, litigated, and decided without unnecessary
      delay. That duty unfortunately was not fulfilled in this case.


Robinson v. State, 334 Ga. App. 646, 647 (1) (780 SE2d 86) (2015).

      2. In several related enumerations of error, Ward argues that his prosecution

on the aggravated stalking charge violated principles of double jeopardy and that the

trial court should have have granted his motion in limine to exclude admission or

reference to the evidence introduced during Trial 1. Specifically, he argues that

because he had been acquitted of stalking in Trial 1, evidence from trial had been


      9
       We note that several months later the trial court promptly issued an order
denying the motion.

                                           7
“used up” and could not be introduced to convict him of aggravated stalking in Trial

2. He also asserts that the crimes should have been prosecuted together under OCGA

§§ 16-1-7 (b) & 16-1-8 (b) (1). Under the facts of this case, we agree that reversal is

required.10

       We begin our analysis by stating our standard of review. “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 trial court’s

findings support its conclusion.” (Citation and punctuation omitted.) Garrett v. State,

       10
          We note that Ward did not formally and in writing raise this issue until after
trial. See Alexander v. State, 279 Ga. 683, 685 (2) (b) (620 SE2d 792) (2005) (“As a
general rule, . . . failure to file a written plea in bar prior to a second trial waives the
right to subsequently raise a challenge on procedural double jeopardy grounds.”)
(citation omitted); see also OCGA §§ 17-7-110; 17-7-111 (as a general rule, all
special pleas must be in writing and made within ten days of arraignment). However,
although Ward did not file a pre-trial motion asserting the bar of double jeopardy, the
record shows that the trial court brought the issue to the attention of both parties on
the first day of trial and the issue was repeatedly revisited throughout the
proceedings. Further, the trial court recognized that whether double jeopardy was a
bar in this case was dependent on what evidence the State chose to introduce at Trial
2, so that it could not make a pre-trial determination of the issue even if Ward had
raised it. The trial court stated later in the proceedings that Ward’s failure to raise the
issue in a written motion meant that Ward was limited to raising the issue in a post-
trial motion for new trial (assuming he was found guilty), and Ward did in fact raise
the issue in his motion for new trial and also enumerated the failure to file a pre-trial
motion as ineffectiveness on the part of his trial counsel. Thus, we will not deem the
failure to file a pre-trial motion fatal to our consideration of this issue. See also
Robinson, 334 Ga. App. at 648 (2), n.13.

                                             8
306 Ga. App. 429, 429 (702 SE2d 470) (2010). However, “we review de novo the

trial court’s application of the law to undisputed facts.” (Citation and punctuation

omitted.) Id.

      The Double Jeopardy Clause in the Fifth Amendment to the United States

Constitution provides: “[N]or shall any person be subject for the same offense to be

twice put in jeopardy of life and limb.” Likewise, the Georgia Constitution and

Georgia statutory law prohibit the government from placing a defendant in jeopardy

twice for the same offense following either an acquittal or a conviction and also

prohibit multiple punishments for the same offense.11

      The Supreme Court of the United States has recognized that the Double

Jeopardy Clause of the federal Constitution protects two vital interests. Yeager v.

United States, 557 U.S. 110, 117 (II) (129 SCt 2360, 174 LE2d 78) (2009). First, the

State is prohibited from making repeated attempts to convict an individual for the

same offense, thereby subjecting him to the ordeal and anxiety of successive

prosecutions. Id. at 117-18 (II). In particular, “[t]he Double Jeopardy Clause forbids

      11
          Ga. Const. of 1983, Art. I, Sec. I, Para. XVIII (“No person shall be put in
jeopardy of life or liberty more than once for the same offense except when a new
trial has been granted after conviction or in case of mistrial.”); OCGA § 16-1-7 & 16-
1-8 (prohibiting multiple prosecutions for the same conduct and providing when
prosecution barred by former prosecution, respectively).

                                          9
a second trial for the purpose of affording the prosecution another opportunity to

supply evidence which it failed to muster in the first proceedings. This is central to

the objective of the prohibition against successive trials.” Burks v. United States, 437

U.S. 1, 11 (98 SCt 2141, 57 LEd 2d 1) (1978). “The second interest is the

preservation of the finality of judgments.” (Citation and punctuation omitted.)

Yeager, 557 U.S. at 118 (II).

      Our Supreme Court has similarly recognized that under the shield of double

jeopardy

      [a] defendant is protected . . . from attempts to re-litigate the facts after
      an acquittal and from attempts to secure additional punishment after a
      prior conviction and sentence. In addition to the risk of enhanced
      punishment for the same offense, successive prosecutions allow the
      State to unfairly rehearse its presentation of the evidence and hone its
      trial strategy, while also incrementally increasing the burden on the
      defendant to defend himself.




(Citations and punctuation omitted.) Perkinson v. State, 273 Ga. 491, 493-94 (1) (542

SE2d 91) (2001).12


      12
        These principles have been reiterated in numerous cases, including the
following: Brantley v. State, 272 Ga. 892, 893 (536 SE2d 509) (2000) (“Having failed

                                           10
      To determine if Ward was twice put in jeopardy for the “same offenses,” we

apply the “required evidence” or “same elements” test outlined in Blockburger v.

United States, 284 U.S. 299 (52 SCt. 180, 76 LEd. 306) (1932), and look to whether

each offense requires proof of an additional fact or element which the other does

not.13 The elements of the offense of stalking are set out in OCGA § 16-5-90: “A

person commits the offense of stalking if he or she follows, places under surveillance,

or contacts another person . . . without the consent of the other person for the purpose


to prove an element of the offense . . ., the State cannot, in effect, retry [an accused]
for the same crime and thereby violate the Double Jeopardy Clause of the United
States Constitution.”) (citation and punctuation omitted); Maynard v. State, 290 Ga.
App. 403, 403 (659 SE2d 831) (2008) (“The Double Jeopardy Clause forbids a
second trial for the purpose of affording the prosecution another opportunity to
supply evidence which it failed to muster in the first proceedings.”) (citation and
punctuation omitted.); State v. Lambert, 276 Ga. App. 668, 669 (624 SE2d 174)
(2005) (“It is axiomatic that, among other things, the Double Jeopardy Clause
protects against a second prosecution for the same offense after acquittal.”)
(punctuation and citation omitted); State v. Heggs, 252 Ga. App. 865, 865 (558 SE2d
41) (2001) (“The primary purpose of the Double Jeopardy Clause is to prohibit the
retrial of a criminal defendant where, at the initial trial, the prosecution failed to
introduce sufficient evidence to sustain a conviction.”).
      13
         In its order denying Ward’s motion for new trial, the trial court stated the
proper test but then concluded the State was allowed to introduce evidence of the
prior stalking charge because the charge of aggravated stalking contained an
additional element – the violation of a condition of pre-trial release – that the stalking
charge did not, and occurred at a later time period. However, the trial court’s analysis
was incomplete because it did not mention or consider whether misdemeanor stalking
contained an element not contained in aggravated stalking.

                                           11
of harassing and intimidating the other person.” Under OCGA § 16-5-91, “[a] person

commits the offense of aggravated stalking when such person, in violation of [among

other things, a condition of pretrial release] . . . places under surveillance, or contacts

another person . . . without the consent of the person for the purpose of harassing and

intimidating the other person.” Thus, OCGA § 16-5-91 tracks the language of OCGA

§ 16-5-90 except that OCGA § 16-5-91 has the additional requirement that the

contact be in violation of a court order. And although OCGA § 16-5-91 does not

define “harassing and intimidating,” our Supreme Court has explained that “the

legislature has made clear that the simple stalking statute[’s definition of those terms

is] for purposes of the entire article on stalking in the Georgia Code.” (Punctuation

omitted.) State v. Burke, 287 Ga. 377, 378 (695 SE2d 649) (2010). Thus, for the

purposes of both stalking and aggravated stalking, “harassing and intimidating” is

defined as “a knowing and willful course of conduct directed at a specific person

which causes emotional distress by placing such person in reasonable fear for such

person’s safety or the safety of a member of his or her immediate family, by

establishing a pattern of harassing and intimidating behavior, and which serves no

legitimate purpose.” (Emphasis supplied) OCGA § 16-5-90 (a) (1).



                                            12
      In Burke, our Supreme Court made clear what the State must prove in an

aggravated stalking case:

      Based on the plain terms of the stalking statutes, a single violation of a
      protective order, by itself, does not amount to aggravated stalking. The
      contact with the victim in violation of the protective order must also be
      without the consent of the other person for the purpose of harassing and
      intimidating him or her. OCGA § 16-5-91 (a). The “harassing and
      intimidating” conduct must be established by, among other things, “a
      pattern of harassing and intimidating behavior.” A single violation of a
      protective order, alone, simply does not establish “a pattern of harassing
      and intimidating behavior.”


(Citations omitted.) Burke, 287 Ga. at 379.

      Thus, under Georgia’s stalking statutes, in order to prove aggravated stalking,

the State must also prove the lesser included offense of misdemeanor stalking. And

for purposes of double jeopardy, a lesser-included offense and a greater offense are

the same offense under the Fifth Amendment and the Blockburger test because the

lesser crime requires no proof beyond that which is required for the conviction of the

greater offense.14

      14
         See Perkinson, 273 Ga. at 493-94 (1) (“For double jeopardy purposes, a
lesser-included and a greater offense are the ‘same offense’ under the Fifth
Amendment because the lesser offense requires no proof beyond that which is
required for the conviction of the greater offense.”); Prater v. State, 273 Ga. 477, 481

                                          13
       Although the Blockburger test focuses on the proof necessary to establish the

statutory elements of each offense, rather than on the actual evidence to be presented

at trial, we must also determine whether the State relied on the same offense as a

matter of fact to prove the underlying stalking course of conduct in Trial 2 as it did

in Trial 1. This is because the State is precluded under the Double Jeopardy Clause

“from relitigating any issue that was necessarily decided by a jury’s acquittal in a

prior trial.” Roesser v. State, 294 Ga. 295, 296-97 (751 SE2d 297) (2013).

       To determine what a jury has necessarily decided, a court should
       examine the record of a prior proceeding, taking into account the
       pleadings, evidence, charge and other relevant matter, and conclude
       whether a rational jury could have grounded its verdict upon an issue
       other than that which the defendant seeks to foreclose from
       consideration.


Id. at 297.15


(4) (545 SE2d 864) (2001) (same); Garrett, 306 Ga. App at 431 (proof that defendant
was guilty of DUI is a required element for convicting him of serious injury by
vehicle and while the serious charges required proof of an additional fact, the DUI
charge contained no additional element and thus defendant’s subsequent indictment
for serious injury by vehicle violated the Double Jeopardy Clause).
       15
         See also Robinson v. State, 334 Ga. App. at 651 (double jeopardy precluded
second armed robbery trial when the State sought to use the same party to the crime
theory jury had rejected in the first trial); Sandner v. State, 193 Ga. App. 62, 63 (1)
(387 SE2d 27) (1989) (“In order to sustain a plea of former jeopardy, it is always

                                          14
      Here, a comparison of the transcripts for both trials shows, with a few

exceptions, the State relied on almost the exact same evidence to prove Ward’s

alleged harassing and intimidating course of conduct at both the stalking and

aggravated stalking trials and the bulk of the evidence presented at Trial 2 concerned

events that occurred during the range of dates stated in Ward’s first indictment for

stalking. Thus, except for the additional evidence concerning violation of the no-

contact order and an encounter with the victim’s family that occurred after he was

arrested the first time, Ward was prosecuted twice for the same stalking conduct –

conduct which the jury in Trial 1 had rejected as insufficient to prove the exact same

offense as the State was required to prove in Trial 2, except that the State was able to

improve its evidence in several respects in Trial 2.16 This is precisely the kind of


incumbent upon the defendant to plead and prove that the transaction charged in the
second indictment or accusation is the same as a matter of fact as that charged in the
first indictment or accusation under which he was put in jeopardy.”) (citation and
punctuation omitted).
      16
          During Trial 2, the housekeeper testified on direct examination about her
suspicions that the man she saw on the premises might be Ward and that she gave
police a photograph of Ward based on her suspicions but that testimony was not
elicited during Trial 1 because, as the prosecuting attorney explained at Trial 1, he did
not believe the housekeeper could identify Ward as the person in the yard. Further,
the victim’s nephew who encountered Ward in the woods on November 5, 2007,
which was the incident that ultimately led to Ward’s arrest, was unavailable to testify
at Trial 1 due to a medical emergency but testified at Trial 2.

                                           15
rehearsal and honing of evidence that the Double Jeopardy Clause is designed to

prevent. Tanks v. State, 292 Ga. App. 177, 179 (663 SE2d 812) (2008) (prosecution

for aggravated stalking which was predicated on the same act as a prior contempt

proceeding was subject to double jeopardy clause).17

      Citing Daker v. State, 248 Ga. App. 657, 660 (548 SE2d 354) (2001), the State

argues that the fact that the same evidence had been presented in a previous stalking

trial does not present a double jeopardy issue in a stalking case. As we explained in

Daker,

       it would be impossible for the State to prosecute repeat offenders of the
      stalking statute, as having once used the evidence to demonstrate a
      course of conduct, the State would be forever barred from using that
      evidence again in establishing a subsequent stalking violation. As
      stalking is, by its very nature, a cumulative crime, [this] interpretation
      of double jeopardy would eviscerate the purpose of the stalking statute,
      leaving would-be stalkers free to begin stalking their victim with a clean
      slate following a stalking conviction.


      17
          See also Kinney v. State, 223 Ga. App. 418, 420 (1) (477 SE2d 843) (1996)
(prosecution of the defendant for aggravated stalking based on acts asserted in a prior
trial to prove violation of court order where he was adjudicated not guilty barred by
double jeopardy); see also Keener v. State, 238 Ga. 7, 8 (230 SE2d 846) (1976)
(“[W]hen crimes are to be prosecuted separately the more serious crimes should be
prosecuted first to avoid the conviction of a lesser crime barring a subsequent
prosecution for a more serious crime.”).

                                          16
Daker, 248 Ga. App. at 660. However, Daker is distinguishable. Unlike the present

case, Daker involved separate and entirely distinct incidents of stalking that occurred

at different times, in different counties, and involved distinct activities. Further, and

perhaps more importantly, Daker did not involve an acquittal and then the

introduction of the same evidence previously found lacking to prove the same

elements of the same crime in another trial. Having failed to put forth sufficient

evidence of the lesser included offense at Trial 1, the State cannot then use those

same facts to attempt to prove the same elements as part of the greater offense at Trial

2 because a jury has already deemed those same facts insufficient to establish the

elements of the lesser offense.18 Roesser, 295 Ga. at 299 (double jeopardy necessarily

barred later prosecution for voluntary manslaughter when the jury had necessarily

determined that accused acted in self-defense by acquitting him of earlier charges of

malice murder, felony murder and aggravated assault); Robinson v. State, 334 Ga.


      18
        It is important to emphasize that had Ward been convicted of stalking in Trial
1, evidence of his conviction for that offense could have been introduced during Trial
2. Further, our opinion here does not address whether evidence from Trial 1 could
have been introduced as what was at that time referred to as similar transaction
evidence because that is not the posture of this case. We note, however, that the fact
of acquittal does not necessarily foreclose the introduction of evidence under either
our former similar transaction statute or under OCGA § 24-4-404 (b). State v. Atkins,
304 Ga. 413, 418-19 (2) (b) (819 SE2d 28) (2018).

                                           17
App. at 651-52 (the jury having necessarily determined that defendant was not a party

in the first trial, he could not be retried under the same theory in a subsequent trial).

      The dissent disagrees that there was a double jeopardy violation because

several witnesses testified at Trial 2 that did not testify at Trial 1, the date range of

the indictments was different, and “there was additional evidence showing Ward’s

pattern of threatening and harassing behavior since the events charged in Trial 1 was

shown at Trial 2.” We agree that if the State had limited its presentation of the

evidence to events since Trial 1, the evidence would have been sufficient to sustain

the aggravated stalking charge. But the State chose to also present the same evidence

from Trial 1, with some enhancements, and that evidence constituted the bulk of the

evidence in Trial 2. The State’s theory for presenting the evidence from Trial 1 was

that they constituted “prior difficulties” for the purpose of illustrating “the state of

feeling between the defendant and the alleged victim and the bent of mind and course

of conduct on part of the defendant,” and that’s how the trial court charged the jury.

The State then argued, and the jury was charged, that to find aggravated stalking, they

had to find that Ward contacted the victim without her consent “for the purpose of

harassing and intimidating such other person” and that “harassing and intimidating”



                                           18
meant “a knowing and willful course of conduct directed at a specific person” that

causes them emotional distress.

      It is, thus, clear that the State was relitigating the stalking charge that was

necessarily decided adversely by the jury’s acquittal and that under the State’s theory

of the case, as supported by the trial court’s instructions, the jury in Trial 2 was urged

to find that the “prior difficulties” evidence proved the “harassing and intimidating”

course of conduct required for the aggravated stalking charge. That the State cannot

do without running afoul of the Double Jeopardy clause. Accordingly, Ward’s

conviction must be reversed.

        3. Based on the foregoing, it is unnecessary for us to consider Ward’s

remaining enumerations of error as he cannot be retried.

      Judgment reversed. McFadden, C. J.,concurs and Goss, J., dissents.*

      *THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF

APPEALS RULE 33.2 (a).




                                           19
 A19A0671. WARD v. THE STATE.

      GOSS, Judge, dissenting.

      I dissent because I disagree that the verdict in the 2007 indictment case (“Trial

1”) barred the trial conviction for aggravated stalking in the 2008 indictment case

(“Trial 2”) based on the principles of double jeopardy and OCGA §§ 16-1- 7 (b) and

16-1-8 (b) (1). These cases, while intertwined from the standpoint of the parties and

their relationship history, involve separate acts occurring on different dates with

additional evidence and witnesses presented in Trial 2 that were not part of Trial 1.

      The eleven-count 2007 indictment for Trial 1 alleged events occurring between

September 1, 2007, and the date of Ward’s arrest on November 5, 2007. The end date

of the allegations in the 2007 indictment and Trial 1 coincided with Ward being

detained at gunpoint by the victim’s adult nephew, Tony Lucas, until law enforcement

arrived in response to his 911 call. At Trial 2, Lucas testified1 that he found Ward’s

car parked out of place near his aunt’s home. He blocked Ward’s car with his own

car, called 911, and then saw Ward, dressed in full camouflage, exiting the woods




      1
       Although Lucas testified at Trial 2, he was unavailable to testify during Trial
1 for medical reasons.
near the victim’s home despite having been told not to return.2 Ward was carrying a

book bag over his shoulder. Once law enforcement arrived, they discovered that Ward

was in possession of pry bars. Although Ward was acquitted in Trial 1 of ten counts

spanning events between September 1, 2007, and November 5, 2007, he was

convicted of Count 9, possession of tools for the commission of a crime (OCGA § 16-

7-20). Count 9 of the 2007 indictment charged Ward with having pry bars in his

possession “with the intent to make use thereof in the commission of said crime by

prying open a residence of [the victim]” on November 5, 2007. On August 13, 2009,

Ward was sentenced to five years on probation with conditions. Ward did not appeal

the verdict.

      The 2008 indictment and Trial 2 were for an aggravated stalking charge arising

from an event that took place after the November 5, 2007 arrest date in Trial 1. After

Ward’s arrest on November 5, 2007, the magistrate judge filed a bond order which

contained specific, written conditions requiring Ward to “[h]ave no contact of a

harassing, intimidating, threatening, provoking or violent nature, nor of any sort with

the victim, with third parties regarding victim or any member of victim’s household,



      2
       This included being told by the victim verbally and in writing, by her lawyer
and by local law enforcement.

                                          2
or family, or with any witnesses in this case.” At Trial 2, the magistrate judge

testified3 that when he entered the bond order with the no-contact provisions on

November 6, 2007, he did so in court in the presence of Ward. The magistrate judge

testified that he explained the order to Ward, that he handed Ward a written copy of

the order, and that Ward signed the order in acknowledgment. Additionally, the

magistrate judge scheduled a bond conditions review hearing, which was held on

November 9, 2007.

      After conferring with the District Attorney’s Victim’s Advocate Office, the

victim elected not to go into the courtroom for the November 9, 2007, hearing.

However, Michele Dickens, the District Attorney’s Victim’s Advocate, testified at

Trial 24 that she attended the hearing along with the victims’ family members.

Dickens testified that, after the bond hearing, Ward followed the victim’s family out

of the courtroom through the courthouse, trying to talk to them, which upset the

family members. Dickens had to tell Ward that he needed to leave. The provisions in

the no-contact bond order applied to the victim’s family members as well.




      3
          The magistrate judge did not testify in Trial 1.
      4
          Dickens did not testify at Trial 1.

                                                3
      The central event giving rise to the 2008 aggravated stalking indictment tried

in Trial 2 was Ward’s act of shipping the book Redeeming Love to the victim via

online purchase received on December 3, 2007. This was in violation of the no-

contact provisions of his bond order entered nearly a month earlier. Further, there

was additional evidence showing Ward’s pattern of threatening and harassing

behavior since the events charged in Trial 1 was shown at Trial 2. Dickens, Lucas and

the magistrate judge testified at Trial 2, but did not testify at Trial 1. Additionally,

Tony Self, an inmate at the county jail, testified only at Trial 2. He testified that Ward

offered him money to fabricate testimony against the victim.

      Unlike the fact pattern in State v. Burke, 287 Ga. 377 (695 SE2d 649) (2010),

the evidence of Ward’s violation of the no-contact bond order on December 3, 2007,

was not a single event. Although the jury in Trial 1 acquitted Ward of stalking for

events occurring between the dates of September 1, 2007, and November 5, 2007, the

jury in Trial 1 did convict Ward of being in possession of tools for the commission

of a crime, notably pry bars, with the intent to gain entry into the victim’s house. This

was evidence, along with the testimony of the magistrate judge, Dickens, Lucas and

Self, that was presented during Trial 2, but not during Trial 1, that allowed the jury

to return a guilty verdict for the aggravated stalking occurring a month after the


                                            4
events outlined in the 2007 indictment and Trial 1. The jury in Trial 2 was presented

evidence from which it could find the “harassing and intimidating” behavior required

by OCGA § 16-5-91 (a) that consisted of more than the single event of shipping the

book received on December 3, 2007.

      Similarly to Daker v. State, 248 Ga. App. 657 (548 SE2d 354) (2001), the

aggravated stalking charge of the 2008 indictment and Trial 2 was based on a

different event occurring at a different time from the events outlined in the 2007

indictment and Trial 1. As noted in Daker, “[i]f we were to accept [Ward’s] argument,

then it would be impossible for the State to prosecute repeat offenders of the stalking

statute as, having once used the evidence to demonstrate a course of conduct, the

State would be forever barred from using that evidence again in establishing a

subsequent stalking violation. . . . [S]talking is, by its very nature, a cumulative

crime[.]” Id. at 660 (2). Here, the 2008 indictment and Trial 2, while linking back to

evidence of the sequence of events leading up to Ward’s November 5, 2007, arrest,

focused on his actions subsequent to being released on a no-contact bond order on

November 6, 2007. Because there is no violation of double jeopardy principles, I

dissent.




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