                               SECOND DIVISION
                                ANDREWS, P. J.,
                            MILLER and BRANCH, 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


                                                                  November 13, 2015




In the Court of Appeals of Georgia
 A15A1024. RANDOLPH v. THE STATE.

      BRANCH, Judge.

      Based on his sworn testimony during a prior murder trial, a jury found Davan

Randolph guilty of distributing marijuana, conspiring to distribute marijuana, and

violating the Georgia Street Gang Terrorism and Prevention Act. Randolph appeals,

arguing that his prosecution was barred by procedural double jeopardy, the state

engaged in selective prosecution, venue was not proven, and there was insufficient

evidence of the gang crime. We affirm the drug convictions, but reverse the gang

activity conviction.

      Viewed in a light favorable to the verdict,1 the record shows that on August 29,

2006, a Camden County residence burned down and authorities discovered the body

      1
          See Falay v. State, 320 Ga. App. 781, 781 (740 SE2d 738) (2013).
of Michael Ryan Foley, who had lived there with several roommates, in the remains.

Foley had been shot to death before the fire. Special Agent Richard Dial of the

Georgia Bureau of Investigation, the lead investigator on the case, soon learned that

Foley was a marijuana seller who had scheduled a drug deal for the morning of

August 29. Dial and other agents tried “to find out who the deal was with and track

that because those are the last people we believe had been present with [Foley] prior

to his death.”

      Dial interviewed two of Foley’s roommates, Josh Bordelon and Richard Allen

Wessinger, and prepared summary reports that he later turned over to the prosecutor.

Bordelon told Dial that on August 28, the night before the fire, Foley had said that a

former neighbor, along with two of the neighbor’s friends, wanted to buy a pound of

marijuana and were planning to come over on the morning of August 29 to complete

the transaction. According to Bordelon, the prospective buyers wished to sample the

marijuana first, so Foley rode around in their car and smoked a “blunt” with them the

night of August 28. Foley reportedly told Bordelon that he was uneasy about the

pending deal because “the buyers wished to pay more than the going rate for the

marijuana.”



                                          2
      Wessinger gave a similar account. He told Dial that upon arriving home on the

night of August 28, he saw a car with two black males inside pulling out of the

driveway.2 Wessinger said that Foley was standing in the driveway as the car was

backing out and that Foley later told him that the men wanted to buy a pound of

marijuana from him. According to Wessinger, Foley said that “he did not know the

boys but knew one of the boy’s brother.” Foley’s girlfriend also told Dial that Foley

had told her he “didn’t really know” the people involved in the pending deal.

      Through further investigation, Dial identified Randolph as the former neighbor

and “brother” to whom Bordelon and Wessinger had referred. Inside Randolph’s car,

authorities found a slip of paper with Foley’s cell phone number written on it. Foley’s

cell phone records showed that he had received multiple calls on August 28 from the

residences of two of Randolph’s girlfriends. Several people told Dial that they had

seen Foley sell small amounts of marijuana to Randolph in the past.

      Randolph was arrested and charged with murder, armed robbery, arson, and

gun possession. He was not charged with any drug or gang-related crimes. After the

arrest, Dial took pictures of Randolph’s chest, which bore several tattoos



      2
          Wessinger later testified that he did not know who was in the car.

                                           3
characteristic of the Folk Nation gang. Randolph – who was then in his thirties – told

Dial that he had gotten the tattoos a long time ago.

      Randolph testified at trial in his own defense. He said that he had met Foley 11

months before his death, smoked marijuana with him, and regularly bought small

amounts of the drug from him for personal use. Randolph said that he had introduced

other people – some of whom he knew and some of whom he did not know – to Foley

as potential customers. Randolph explained that he had also helped Foley deliver

marijuana: “[I]f I had friends that wanted some and I was already, going to get some

and me and a friend of mine were planning to get together or something I would . .

. go ahead and get theirs and take it to them.” Finally, Randolph testified that Foley

would bring his marijuana and scales to Randolph’s girlfriend’s house, where he and

Foley “would weigh it up and we would put it in bags.” According to Randolph,

Foley would repay him for this assistance with approximately $25 worth of

marijuana.

      Randolph testified that he used to belong to the Folk Nation gang and that he

had introduced Foley to some fellow gang members, or “brothers,” who then bought

marijuana from him. Randolph said that these people – not him – were the ones who

arranged to buy a large quantity of marijuana from Foley, met with him on the night

                                          4
of August 28, and killed him and burned the house the next day. Randolph, however,

refused to name the men. When asked the reason for his silence, he responded, “Did

you see what they did to [Foley]? Do you think I’m going to let them do that to me

and my family? Do you think I’m going to call these people’s names?” The jury found

Randolph not guilty of all charges.

      The state then brought a new indictment against Randolph charging him with

four crimes based on his testimony in the first trial: (1) conspiracy to distribute

marijuana, in that he had “put Ryan Foley in contact with other persons . . . for the

purpose of distributing marijuana”; (2) conspiracy to distribute marijuana, in that he

had weighed and packaged marijuana for the purpose of distribution; (3) distribution

of marijuana, party to a crime, in that he had aided and abetted Foley by packaging

marijuana for distribution and contacting purchasers; and (4) violation of the Georgia

Street Gang Terrorism and Prevention Act, in that he had been associated with a gang

and participated in gang activity by distributing marijuana. Randolph moved to

dismiss the indictment on the ground that it violated the procedural double jeopardy

protections in OCGA § 16-1-7 (b), which prohibits multiple prosecutions arising from

the same conduct. The trial court denied the motion. Randolph also moved to dismiss



                                          5
on the ground that he was the victim of selective prosecution in retaliation for his

acquittal in the first trial, but the trial court apparently denied this motion as well.

       The case proceeded to trial, and the state called two witnesses – Dial and the

assistant district attorney who had prosecuted the first case. Dial testified that

Randolph was not charged with any drug distribution crimes in his first trial because

at that point, “all we had information was that Davan Randolph had purchased small

amounts of marijuana.” It was not until Randolph took the stand during the first trial

that Dial learned that he had “been more involved in Ryan Foley’s marijuana deals”

and had introduced prospective customers – including gang members – to Foley. Dial

further testified that Randolph was not charged with any gang crimes in his first trial

because Dial “didn’t have any knowledge that he was using gang affiliation to

distribute drugs until he testified during the first trial.”

       The assistant district attorney who prosecuted the first case likewise testified

that no drug or gang charges had been brought against Randolph at that time because

he had no information to support such charges. The assistant district attorney also

stated that the first time he learned that Randolph had introduced buyers to Foley,

packaged marijuana for distribution, and actively associated with gang members was



                                             6
when Randolph testified at the first trial. Excerpts from Randolph’s testimony at the

first trial were read aloud to the jury.

      Randolph again took the stand in his own defense. He testified that he had

joined the Folk Nation gang for self-protection years ago while he was in prison in

Tennessee, but was no longer an active gang participant. Randolph moved to Georgia

in 2005, lived with relatives, and worked a variety of jobs. He testified that one day

he was playing basketball and wearing a tank top that revealed his tattoos when some

men recognized the tattoos, approached him, identified themselves as members of

Folk Nation, and asked if Randolph was also affiliated with the gang. Randolph said

that he told the men he was “retired.” Randolph encountered the men again later, and

they asked him, “[Y]ou know anybody who got some bud because we can’t find any.”

At that point – two months before Foley’s murder – Randolph arranged a meeting

between Foley and the men. Randolph claimed that he did not know the men well and

did not regularly associate with them. Randolph also claimed that he believed the men

were “just weed smokers just like me” who wanted small quantities of marijuana for

personal use; “they weren’t buying for the gang.” According to Randolph, the men

“just happened to be gang members. But this wasn’t like you’re buying five or ten

pounds for the gang . . . to make money off of it. . . . [T]his wasn’t a gang issue.”

                                           7
      After the close of the evidence, the trial court instructed the jury that Randolph

had raised a double jeopardy defense, that his prosecution would be barred if the

crimes charged in the second indictment were known to the proper prosecuting

authority at the commencement of the first trial, and that the jury had to decide “what

facts the prosecutor knew” at that time. The jury was given a special verdict form

asking if “any or all o[f] this prosecution is barred by Double Jeopardy.” After

deliberating, the jury answered the question in the negative and found Randolph

guilty on all four counts. For the purpose of sentencing, the trial court merged counts

one and two with count three and sentenced Randolph to ten years on the drug crimes

and fifteen years on the gang crime, to run consecutively. Randolph filed a motion for

new trial, which the court denied. This timely appeal followed.

      1. Randolph contends that the trial court erred by denying his motion to dismiss

the indictment on procedural double jeopardy grounds. “The procedural aspect of the

double jeopardy rule prohibits multiple prosecutions arising from the same conduct.”

White v. State, 284 Ga. App. 805, 806 (644 SE2d 903) (2007) (citation and

punctuation omitted). OCCGA § 16-1-7 (b) requires the state to prosecute crimes in

a single prosecution “[i]f the several crimes arising from the same conduct are known

to the proper prosecuting officer at the time of commencing the prosecution and are

                                          8
within the jurisdiction of a single court.” “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).” Nicely v. State, 305 Ga. App. 387, 388 (1)

(699 SE2d 774) (2010) (citation and punctuation omitted). Randolph argues that his

second prosecution is barred because the state was aware of his marijuana distribution

and gang crimes before the first trial.

      To prevail upon his motion to dismiss, Randolph bore the burden of showing

that the prosecutor had actual knowledge before the first prosecution of the facts

supporting the charges in the second prosecution. Id.; see also Billups v. State, 228

Ga. App. 804, 807 (1) (b) (493 SE2d 8) (1997) (“The prosecutor’s knowledge of all

the facts determines whether a single prosecution is required.”) (emphasis in

original). The trial court concluded that what the prosecutor knew before the first trial

was a question of fact that should be resolved by the jury rather than by the court as

a matter of law. See Daniels v. State, 78 Ga. 98, 103 (2) (1886) (fact questions related

to applicability of double jeopardy defense “would have to be submitted to the jury”);

Harris v. State, 193 Ga. 109, 117 (17 SE2d 573) (1941); compare Bell v. State, 249

Ga. 644, 645 (1) (292 SE2d 402) (1982) (“No question of fact was at issue in this

special plea in bar [asserting double jeopardy], so it was unnecessary to have a jury

                                           9
hear the plea.”). Randolph has failed to show that he was entitled to judgment as a

matter of law on his double jeopardy defense.

      At the second trial, the state presented evidence that before the first trial, the

only information it had about Randolph’s involvement in marijuana distribution was

witness statements that he had previously bought small quantities of marijuana from

Foley and had arranged, along with two other men, to buy a pound of marijuana from

Foley on the morning of the murder.3 These witness statements did not demand a

finding, as a matter of law, that the prosecutor had actual knowledge that Randolph

had committed the crimes of conspiring to distribute marijuana and distributing

marijuana. With regard to the gang crime, there was evidence that the state knew only

that Randolph had joined a gang years before, not that he was currently involved in

drug-related gang activity. Under these circumstances, the trial court did not err by




      3
        In his appellate brief, Randolph also refers to a statement that Dial took
during the murder investigation from a Mr. Griffith or Griffin, who supposedly
implicated Randolph in marijuana distribution. Randolph provides no citation to the
statement, and it does not appear to be part of the appellate record. Therefore, we are
unable to consider it. See Parker v. State, 283 Ga. App. 714, 717 (2) (d) (642 SE2d
111) (2007) (“factual assertions in briefs that are unsupported by the record cannot
be considered in the appellate process”) (citation and punctuation omitted).

                                          10
denying Randolph’s motion to dismiss on double jeopardy grounds.4

      2. Randolph argues that the trial court erred by denying his motion to dismiss

based on selective prosecution because he was “the only one prosecuted for a drug

offense after the murder trial of Ryan Foley” even though the evidence at the first trial

showed that many other witnesses had committed drug crimes. Even assuming these

factual assertions are accurate,5 Randolph failed to establish a claim of selective

prosecution.

      A defendant has the burden of proving, by the weight of the evidence,
      that his prosecution represents an intentional or purposeful
      discrimination which is deliberately based upon an unjustifiable
      standard, such as race, religion, or other arbitrary classification. A



      4
         Although the state does not raise this argument on appeal, we question
whether the drug charges in the second indictment arose from the same conduct as the
charges in the first indictment. In determining whether multiple offenses arose from
the same conduct, courts should consider whether they involved the “same parties,
circumstances, locations, and times.” Morgan v. State, 220 Ga. App. 198, 199 (469
SE2d 340) (1996) (citation and punctuation omitted). The drug activity to which
Randolph admitted at the first trial, and which formed the basis for the second
indictment, predated the planned one-pound drug deal between Foley and the people
who killed him and involved different people and different quantities of marijuana
in different locations.
      5
       The record in this appeal does not contain the transcript from the first trial,
and Randolph has cited no evidence to substantiate his assertion that no one else was
prosecuted for drug crimes.

                                           11
         showing that others were not prosecuted for doing what the defendant
         allegedly did is not, in itself, sufficient to establish selective prosecution.


Mooney v. State, 266 Ga. App. 587, 588 (1) (597 SE2d 589) (2004) (citations and

punctuation omitted). Randolph has neither alleged nor shown that he was singled out

on the basis of any arbitrary classification. Thus, the trial court did not err by denying

his motion.

         3. Randolph asserts that the state failed to prove venue in Camden County

because there was no testimony to establish the location of the store where he

introduced Foley to the other gang members. This claim of error lacks merit, as Dial

testified that the store was in Camden County.

         4. Randolph maintains that there was insufficient evidence to support his

conviction for violating the Georgia Street Gang Terrorism and Prevention Act,

OCGA § 16-15-1 et seq. Because the state failed to present evidence that Randolph’s

marijuana distribution crimes were intended to further the interests of the gang, we

agree.

         The Georgia Street Gang Terrorism and Prevention Act prohibits a person

associated with a criminal street gang from participating in criminal street gang

activity through the commission of a number of listed offenses. OCGA § 16-15-4 (a).

                                               12
“Criminal street gang” is defined as “any . . . group of three or more persons

associated in fact, whether formal or informal, which engages in criminal gang

activity[.]” OCGA § 16-15-3 (2). “Criminal gang activity,” in turn, is defined as “the

commission, attempted commission, conspiracy to commit, or solicitation, coercion,

or intimidation of another person to commit” any of a number of offenses, including

“racketeering activity.” OCGA § 16-15-3 (1) (A). “Racketeering activity” includes

violations of the Georgia Controlled Substances Act. OCGA § 16-14-3 (5) (A)

(xxxiv). It is not enough, however, for the state simply to show that the defendant and

other gang members committed a criminal act; rather, “there must be some nexus

between the act and an intent to further street gang activity.” Rodriguez v. State, 284

Ga. 803, 807 (1) (671 SE2d 497) (2009); see also Jones v. State, 292 Ga. 656, 659 (1)

(b) (740 SE2d 590) (2913) (state must prove that “the commission of the predicate

act was intended to further the interests of the [gang]”).

      Thus far, we have uniformly rebuffed challenges that there was insufficient

evidence of the requisite nexus between the crime and an intent to further gang

interests. Our case law has supplied no test, guidelines, or list of factors relevant to

determining whether the commission of a predicate crime was meant to “further the

interests of the gang,” Jones, 292 Ga. at 659; rather, we have simply analyzed the

                                          13
evidence in each particular case and found it to be sufficient. And in each case, the

state has shown something more than the mere commission of a crime by gang

members.

       In Zamudio v. State, 332 Ga. App. 37 (771 SE2d 733) (2015), for example, we

rejected the gang-member defendant’s argument that the state failed to prove that the

fight that formed the basis of the criminal charges against him was undertaken to

further the gang’s interest. We noted that the victim was a former member of a rival

gang who had recently rejected the defendant’s overture to “hang out” and that

immediately before the fight broke out, the defendant “started arguing about gang-

related stuff.” Id. at 42 (2) (b). We held that this evidence authorized the jury to find

       a nexus between the defendant[‘s] actions in seeking out and beating up
       the victim and [his] intent to further gang activity by ensuring that the
       gang responded strongly to the victim’s disrepect of a gang member’s
       offer of association.


Id. at 43 (2) (b).

       Similarly, in Alston v. State, 329 Ga. App. 44, 46-47 (1) (763 SE2d 504)

(2014), we held that evidence that the defendant and two fellow gang members wore

gang colors to “represent” and talked about their gang affiliation moments before

committing an armed robbery was sufficient to demonstrate a nexus between the

                                           14
crime and an intent to further gang activity. In addition, the state presented evidence

that after the crime, one defendant wrote a letter acknowledging that he had violated

gang rules by implicating his fellow gang members in the crime, and there was expert

testimony that “the gang’s reputation is furthered by committing highly visible crimes

in a manner which allows the witnesses and the victims to discern that a particular

gang committed the crime.” See also Morey v. State, 312 Ga. App. 678, 686 (2) (b)

(719 SE2d 504) (2011) (affirming conviction under OCGA § 16-15-4 where there

was testimony that defendant was “repping his gang” while committing crimes); In

the Interest of D. M., 307 Ga. App. 751, 752 (1) (706 SE2d 683) (2011) (nexus

between crime and gang activity was shown by evidence that defendant and other

gang members shot two people while wearing black bandannas over their faces,

which “proclaims to the world that they are a [gang] member and that this is a gang

act”) (punctuation omitted).

      Here, the state’s case against Randolph rested almost entirely on his sworn

testimony in the first trial, which was read aloud to the jury. That former testimony

showed that Randolph, who was a member of Folk Nation, had introduced Foley, who

was not affiliated with a gang, to a variety of other people – some gang-affiliated and

some not – and had helped Foley distribute small amounts of marijuana to those

                                          15
people. Thus, while the state may have shown that Randolph intended, by distributing

marijuana, to further the interests of individual gang members in obtaining small

quantities of marijuana for personal use, the state did not show that Randolph meant

to further the interests of Folk Nation as an entity. There was no evidence, for

example, that Randolph wore gang colors or accessories, talked about his gang

affiliation, or otherwise “represented” the gang while he was committing drug crimes.

Nor was there any evidence that Randolph’s distribution of personal-use amounts of

marijuana to individual gang members benefitted the gang itself through monetary

profit, enhanced reputation, or other means. Because the state failed to present

evidence of the necessary nexus between Randolph’s drug crimes and an intent to

further gang interests, his conviction under the Georgia Street Gang Terrorism and

Prevention Act must be reversed.

      5. Randolph maintains that the trial court erred by failing to merge his sentence

for the drug crimes with his sentence on the gang crime. In light of our ruling in

Division 4, we need not reach this issue.

      Judgment affirmed in part and reversed in part. Andrews, P. J., and Miller, J.,

concur.



                                         16
