Kevin Summers stands accused in the Superior Court of Cherokee County of two counts of financial identity fraud, OCGA § 16-9-121. Summers appeals the denial of his plea in bar and motion in autrefois convict, contending the prosecution is barred under OCGA §§ 16-1-7 (b) and 16-1-8 (b) by his earlier conviction in Cobb County of 33 counts of financial identity fraud. Finding no error, we affirm.
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.
Vansant v. State,
The record shows the following undisputed facts. Summers, while working for a mortgage company at an office in Cobb County, obtained financial “identifying information” 1 from mortgage applications. Summers passed the information to Shannon Nesmith, who used the information to fraudulently establish and use credit card accounts. After a joint investigation by Cherokee County and Cobb County officers, a Cherokee County grand jury indicted Summers, charging him with financial identity fraud relating to two Cherokee County residents. The indictment alleged that Summers obtained identifying information, which would assist in accessing the financial resources of each victim, between the dates of December 10, 2001, and July 31, 2002, for one victim and between March 14, 2002, and July 31, 2002, for the other victim. Meanwhile, the Cobb County District Attorney filed an accusation charging Summers with 33 counts *339 of financial identity fraud. Each count pertained to a separate victim, each a resident of Cobb County, with target dates of December 10, 2001, to July 31, 2002, for all counts. Summers entered a negotiated plea to all 33 counts.
Summers contends that the Cherokee County prosecution is barred under OCGA § 16-1-8 (b) by the Cobb County conviction because the subject prosecution is for a crime with which he should have been charged in the Cobb County prosecution. OCGA § 16-1-8 (b) provides in pertinent part:
A prosecution is barred if the accused was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution . . . [r]esulted in either a conviction or an acquittal and the subsequent prosecution ... is for a crime with which the accused should have been charged on the former prosecution.
Summers contends the Cobb County District Attorney should have charged him with the counts involving Cherokee County victims under OCGA § 16-1-7 (b), which provides in pertinent part: “[i]f. . . 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.”
For purposes of this appeal, we will assume that the proper prosecuting officer in Cobb County knew about the counts involving Cherokee County victims at the relevant time. Further, we agree with Summers that, by operation of OCGA § 16-9-125, venue as to the two counts of financial identity fraud pertaining to the Cherokee County residents lay in both Cherokee County and Cobb County. 2 Thus, the two counts at issue could have been prosecuted in the Superior Court of Cobb County together with the thirty-three counts pertaining to Cobb County residents. 3 As explained below, however, we hold that the various counts did not arise from “the same conduct” *340 as that phrase is used in OCGA §§ 16-1-7 (b) and 16-1-8 (b). Thus, Summers has not shown that he should have been prosecuted for his crimes against the Cherokee County victims in the Cobb County prosecution.
Our appellate courts have found cases barred under these provisions of OCGA §§ 16-1-7 (b) and 16-1-8 (b) where there has been an unbroken sequence of crimes against the person (such as kidnapping, rape, and murder), over a period of hours or days, against the same victim. 4 Our courts have also found that driving violations, drug offenses, and crimes against the person all arose from the same conduct where the conduct took place over the course of minutes and involved the defendant’s behavior while driving and then during a traffic stop. 5
Our courts have found, on the other hand, 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.
Norwood v. State,
Because Summers has not shown that the Cherokee County prosecution is barred as an impermissible successive prosecution for the same conduct, the trial court correctly rejected his plea in bar and denied his motion in autrefois convict.
Armfield v. State,
Judgment affirmed. Blackburn,
Notes
OCGA § 16-9-121 (1) provides in pertinent part:
A person commits the offense of identity fraud when without the authorization or permission of a person with the intent unlawfully to appropriate resources of or cause physical harm to that person, or of any other person, to his or her own use or to the use of a third party he or she . . . [o]btains or records identifying information of a person which would assist in accessing the resources of that person or any other person.
OCGA § 16-9-125 provides in pertinent part,
in a proceeding under [OCGA § 16-9-120 et seq.], the crime will be considered to have been committed in any county where the person whose means of identification or financial information was appropriated resides or is found, or in any county in which any other part of the offense took place, regardless of whether the defendant was ever actually in such county.
See Ga. Const. 1983, Art. VI, Sec. II, Par. VI (“all criminal cases shall be tried in the comity where the crime was committed”); OCGA § 17-2-2 (a) (generally, “[c]riminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law”). Cf.
Griffin v. State,
See
Griffin v. State,
See
State v. McCrary,