                               SECOND DIVISION
                                ANDREWS, P. J.,
                             MCFADDEN and RAY, JJ.

                    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/


                                                                    August 13, 2014




In the Court of Appeals of Georgia
 A14A1287. COTMAN v. THE STATE

      RAY, Judge.

      Tamara Cotman was charged with conspiracy to violate the Georgia Racketeer

Influenced and Corrupt Organizations Act (RICO) (OCGA § 16-14-4 (c)) and with

influencing witnesses (OCGA § 16-10-93) in an initial indictment. Cotman was tried

and acquitted of influencing witnesses under a second indictment , and she now faces

trial for the RICO conspiracy charge under the initial indictment. Cotman appeals,

contending the trial court erred by denying her plea in bar and by denying her special

demurrer. Finding no error, we affirm.

      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. But where the evidence is uncontroverted and no question
      regarding the credibility of witnesses is presented, we review de novo
      the trial court’s application of the law to undisputed facts.


(Citations and punctuation omitted.) Garrett v. State, 306 Ga. App. 429, 429 (702

SE2d 470) (2010).

      The State alleges that Cotman, among others, conspired to promote, reward and

conceal cheating on the State Criterion Referenced Competency Test (“CRCT”) to

meet rigorous targets set by the superintendent of the Atlanta Public Schools (“APS”).

On March 29, 2013, the Fulton County grand jury indicted Cotman on one count of

conspiracy to violate RICO in Count 1 and one count of influencing witnesses in

Count 4 (“the First Indictment”). Count 1 identifies 126 acts of racketeering activity

and 44 overt acts in furtherance of the conspiracy. Cotman is accused of committing

one of the acts of racketeering activity, consisting of influencing witnesses. She is

also alleged to have taken an overt act in furtherance of the conspiracy in that she

failed to report a parent’s complaint that a teacher gave students answers during the

Spring 2008 CRCT. As to Cotman, the influencing witnesses charge set forth in

Count 4 is substantially the same as the alleged act of racketeering set forth in

Paragraph C.11 of Count 1.




                                          2
      Cotman filed a special demurrer seeking to quash Count 4 of the First

Indictment. The charge in relevant part alleges that on or about November 17, 2010,

“Tamara Cotman . . . did knowingly intimidate Jimmye Hawkins, and other principals

under her supervision, with the intent to hinder or delay the communication of

information related to the commission of a criminal offense to . . . law

enforcement[.]” Cotman argued that Count 4 of the First Indictment did not

adequately inform Cotman of the facts constituting the offense because it failed to

specify how she intimidated the witnesses.

      On June 7, 2013, the State re-indicted Cotman solely on the influencing

witnesses charge (“the Second Indictment”),1 specifying that Cotman intimidated

Hawkins by “placing her in fear of retaliation if she cooperated with any investigation

and by actual demotion in position[.]”2 That day, the State also filed a motion for

nolle prosequi of the original influencing witnesses charge in Count 4 of the First




      1
        We would like to encourage the State, when re-indicting an accused, to
include all charges then pending against the accused, not simply to re-cast only those
charges that are the subject of a special demurrer.
      2
       The new indictment also differed from the First Indictment in that it specified
a second date, February 11, 2011 (in addition to November 17, 2010), on or about
which the alleged intimidation occurred.

                                          3
Indictment and a motion for joinder of the two indictments.3 Cotman objected to the

motion for joinder and filed a demand for a speedy trial on the Second Indictment.

Cotman was then tried separately on the Second Indictment and was acquitted of

influencing witnesses.

      After her acquittal for influencing witnesses under the Second Indictment,

Cotman filed a plea in bar contending that she could not be tried under the First

Indictment by reason of OCGA § 16-1-8 and the Double Jeopardy Clause of the

Georgia and United States Constitutions. After hearing arguments from the parties,

the trial court denied Cotman’s plea in bar as to the RICO conspiracy count of the

First Indictment,4 finding that it was Cotman who desired to have a trial




      3
         Although it does not appear from the record that the trial court entered an
express ruling on these motions, the trial court implicitly denied the State’s motion
to join by later proceeding to trial on only the Second Indictment.
      4
        We interpret the trial court’s order as only pertaining to Count 1 of the First
Indictment because the State agreed at the motion hearing that it did not oppose
Cotman’s plea in bar as to Count 4 of the First Indictment. Thus, neither the State nor
Cotman contemplate that Cotman may be tried or convicted of the crime of
influencing witnesses under Count 4 of the First Indictment. The State has also
represented in this appeal that “out of an abundance of caution, the State will nol pros
Count 4, such that there will be no possibility that Cotman will be convicted of
influencing a witness in this case.”

                                           4
encompassing the single charge of influencing a witness. The trial court also denied

Cotman’s demurrer to the First Indictment. Cotman appeals.

      1. Cotman contends that the trial court erred in denying her plea in bar.

Specifically, she argues that, under OCGA § 16-1-8 (b), the RICO conspiracy and the

influencing witnesses charges should have been tried together since the charges

involved the same conduct and the State knew of both the RICO conspiracy and

influencing witnesses charges at the time of trial, and that having two separate trials

results in double jeopardy. We disagree.

      OCGA § 16-1-8 (b) provides in relevant part that:

      [P]rosecution is barred if the accused was formerly prosecuted for a
      different crime . . . if such former prosecution . . . [r]esulted in . . . an
      acquittal and the subsequent prosecution [i] is for a crime of which the
      accused could have been convicted on the former prosecution, [ii] is for
      a crime with which the accused should have been charged on the former
      prosecution (unless the court ordered a separate trial of such charge), or
      [iii] is for a crime which involves the same conduct, unless each
      prosecution requires proof of a fact not required on the other
      prosecution[.]


Pertinent to whether a crime “should have been charged on the former prosecution”

for purposes of OCGA § 16-1-8 (b), OCGA § 16-1-7 (b) provides that “[i]f the


                                           5
several crimes arising from the same conduct are known to the proper prosecuting

officer at the time of commencing the prosecution and are within the jurisdiction of

a single court, they must be prosecuted in a single prosecution . . . .” See Prater v.

State, 273 Ga. 477, 481 (4) (545 SE2d 864) (2001) (“Offenses arising from the same

conduct, within the jurisdiction of a single court, must be prosecuted in a single

action”) (punctuation omitted). OCGA § 16-1-8 (b) “embraces the concept of res

judicata and is not constitutional double jeopardy, but is protection against

subsequent prosecution where the defendant could have been, and under . . . OCGA

§ 16-1-7 (b), should have been prosecuted on a former prosecution.” (Citation

omitted.) McCannon v. State, 252 Ga. 515, 517 (315 SE2d 413) (1984).5

      In this case, however, and pretermitting whether OCGA § 16-1-8 (b) might

otherwise bar a prosecution under the First Indictment, Cotman faces subsequent

prosecution because she chose to have the two indictments tried separately. The State

wanted the indictments tried together, as indicated by the filing of its motion to join

them. It was Cotman who pursued a speedy trial on the Second Indictment only and

      5
         Cotman does not argue substantive double jeopardy for purposes of the
appeal. “The question of multiple punishments (as opposed to multiple prosecutions)
for the same criminal conduct is addressed under the rubric of substantive double
jeopardy.” (Citation omitted.) Smith v. State, 290 Ga. 768, 772 (3) (723 SE2d 915)
(2012).

                                          6
objected to joinder, thereby indicating her desire to have the two indictments tried

separately.

      Although Cotman relies primarily on the protections afforded her by the

Georgia statutes, we find the federal law to be nevertheless persuasive. In Jeffers v.

United States, 432 U. S. 137, 152 (II) (B) (97 SCt 2207, 53 LE2d 168) (1977), the

United States Supreme Court found that even where a defendant is normally entitled

to have charges “resolved in one proceeding, there is no violation of the Double

Jeopardy Clause when he elects to have the two offenses tried separately and

persuades the trial court to honor his election.” (Footnote omitted.) Id. See, e.g.,

People v. Gill, 59 F.3d 1010, 1014 (9th. Cir. 1995) (defendant’s “election to have the

two indictments tried separately deprived him of any right that he might have had

against consecutive trials”) (punctuation and footnote omitted); United States v.

Edmond, 924 F.2d 261, 270 (III) (D. C. Cir. 1991) (where nothing constrained

defendant to move for a severance of counts other than the hope of a tactical

advantage, upon the success of the motion it was the defendant and not the

government that caused him to be twice placed in jeopardy). See also Cox v. State,

585 So. 2d 182, 188 (I) (A) (Ala. Crim. App. 1991) (noting that double jeopardy

jurisprudence “allows a second prosecution [where] the defendant’s own actions

                                          7
deprived him of the right to insist that his liability ended with the first prosecution”).

Accordingly, we conclude that Cotman, having opposed the State’s invitation to join

the two indictments for a single trial, faces subsequent prosecution because of her

own election and thereby waived the protections against subsequent prosecutions

afforded by OCGA § 16-1-8 (b). See generally Holcomb v. State, 268 Ga. 100, 103

(2) (485 SE2d 192) (1997) (on appeal a party cannot complain about a ruling that she

contributed to or acquiesced in by her own action, trial strategy, or conduct).

      2. Cotman also contends that the trial court erred in denying her demurrer to

the First Indictment because there are no factual allegations in Count 1 which

sufficiently place her on notice of how she intimidated the witness.6 Although

Cotman suggests that she demurred to both Count 1 and Count 4 of the First

Indictment on this ground, her “Special Demurrer-Influencing Witnesses” was a


      6
         Cotman prefaces her argument with “[n]otwithstanding the fact that the State
can not use the witness intimidation count as a predicate after [her] acquittal on that
very offense . . . .” In arguing her claim of error as to the plea in bar, Cotman also
suggests that the State has not conceded “that the Influencing A Witness predicate
offense . . . should at a minimum be stricken[.]” As we noted above, Count 1 is a
RICO conspiracy claim that includes as one of the allegations of racketeering activity
that Cotman influenced witnesses. Although Cotman, through these asides, suggests
that the State is collaterally estopped from establishing that she influenced witnesses
for purposes of prosecuting Count 1, she does not show that the trial court has ruled
on the issue. Accordingly, we express no opinion thereon.

                                            8
motion to quash only Count 4, the influencing witnesses charge, and not Count 1, the

RICO conspiracy charge. As the State did not oppose Cotman’s plea in bar as to

Count 4, her claim that the trial court erred in denying her demurrer to the First

Indictment is moot.7

      Judgment affirmed. Andrews, P. J., and McFadden, J., concur.




      7
          Cotman’s motions to amend her appellant’s brief are denied.

                                          9
