Nathan Teal directly appeals from the denial of his plea of double jeopardy. See
Patterson v. State,
The two indictments at issue arose out of disputes between appellant and his former wife, Elsie Teal, concerning his visitation rights and child support obligations. On February 27, 1990, appellant was indicted for child abandonment; trespass at Ms. Teal’s home on September 24, 1988; simple battery of his son; possession of a firearm by a convicted felon; and battery of police officer Rob Whaley. The latter three offenses alleged in the indictment arose on December 10, 1989, when Ms. Teal called police for assistance because she thought appellant was trying to break into her home, and police officers arrived and arrested appellant. When the case was called for trial on February 27, 1991, the prosecutor dismissed the charge of battery against the son, and the parties and the court agreed to sever the *441 firearm possession and abandonment charges. Appellant next entered a guilty plea to the abandonment charge, and the State then called the trespass charge for trial. The jury found appellant guilty of trespass, and a judgment was entered but appellant was not sentenced. The State contends in its brief that the charge of battery against Officer Whaley also was severed from the other charges, while appellant maintains evidence was presented to the jury on the battery charge but no verdict was rendered.
On March 3, 1991, four days after the verdict was rendered on the trespass charge, a second indictment was returned against appellant for offenses alleged to have arisen during or shortly after the same December 1989 altercation as the latter three counts of the 1990 indictment. Appellant was charged with a felony count of obstructing Officer Whaley and resisting arrest; possession of a firearm by a convicted felon; three counts of trespass at Ms. Teal’s home; and being a recidivist. Appellant filed a plea of double jeopardy based on the 1990 indictment and ensuing trial. The trial court rejected his plea, but did hold that the plea as to the trespass counts was not frivolous and that appellant could proceed with an appeal. The State subsequently severed the obstruction charge, and appellant was tried and convicted on the firearm possession charge in the 1991 indictment and sentenced as a recidivist.
Appellant contends any trial on the 1991 indictment was barred by the substantive aspect of the double jeopardy rule because the evidence needed to prove the offenses charged in the 1991 indictment was used up in the proof of the first trespass charge and by the procedural aspect of double jeopardy in that the offenses charged in the 1991 indictment arose out of the same conduct and were known to the prosecutor at the time of the first prosecution.
1. The substantive aspect of double jeopardy precludes multiple convictions or punishments for crimes arising from the same criminal conduct.
State v. Estevez,
2. The procedural aspect of the double jeopardy rule prohibits multiple prosecutions arising from the same conduct. Id. at 317 (1); see OCGA §§ 16-1-7 (b); 16-1-8 (b); see also
McCannon v. State,
In the case at bar, it is undisputed that the crimes charged in the 1991 indictment were known to the prosecutor at the time the first prosecution was commenced. Indeed, at the hearing on appellant’s plea of double jeopardy, the prosecutor acknowledged that her goal had been to ensure that appellant was incarcerated so that he could not harass Ms. Teal, and that she (the prosecutor) had held off on indicting appellant on additional charges until she learned what sentence he received on the charges in the first indictment. In addition, all the offenses charged in both indictments fell within the jurisdiction of a single court. Thus, the remaining questions are whether the various charges in the 1991 indictment arose from the same conduct or transaction as the charges in the 1990 indictment so that the 1991 charges “should have been charged” in the 1990 indictment, and if so, whether appellant was placed in jeopardy as to the 1990 charges.
The evidence adduced at the trial of the trespass charge in the *443 1990 indictment established that after appellant trespassed at Ms. Teal’s home in September 1988, a warrant was issued for his arrest. On the morning of December 10, 1989, Ms. Teal telephoned police because she heard appellant attempting to break into her house. Officer Whaley responded to her call, found appellant at the scene in possession of a shotgun, and arrested him on the 1988 warrant. Officer Whaley took appellant to jail, and as he was moving appellant into a cell, appellant became belligerent and kicked him.
(a) The firearm possession charges in each indictment were identical. There is no double jeopardy bar, however, for the charge was severed from the trial of the 1990 indictment, see OCGA § 16-1-7 (b), (c), and thus appellant was not placed in jeopardy as to that charge. The pendency of a former indictment for the same offense does not provide a ground for a plea of double jeopardy because even if an accused has been arraigned and has entered a plea, the accused is not placed in jeopardy until a jury is impanelled and sworn.
Geckles,
supra at 71 (1) (a). Consequently, the subsequent trial on the firearm possession charge in the 1991 indictment did not subject appellant to repeated prosecution. See
Cochran v. State,
(b) We do not agree with appellant that the 1991 trespass charges arose from the same conduct as the 1990 battery charge. Although they occurred on the same day, the battery charge was based on events that occurred after the alleged trespass was completed and took place at a later time and a different location.
Boyette v. State,
(c) The 1990 battery charge and the 1991 obstruction and resisting arrest charge, however, did arise from the same incident — i.e., appellant’s behavior toward Officer Whaley after his arrest. Although they are separate and distinct offenses, they arose out of the same continuous course of conduct, and thus were part of the same transaction. See
McCrary v. State,
Appellant and the State disagree about the disposition of the battery charge during the trial of the 1990 indictment. The State contends the charge was severed from the prosecution of the 1990 indictment at appellant’s request and thus no jury was impanelled and sworn to hear the charge. Conversely, appellant contends the State’s *444 case on the charge was presented to the jury but for some reason no verdict was rendered.
*444 Our careful review of the trial transcript reveals that after extensive discussion, a severance was agreed upon only as to the firearm possession and abandonment charges, and the parties agreed the trespass and battery charges would be tried together. After this discussion concluded, the State called the abandonment charge for trial and appellant entered a plea. Despite the earlier agreement, the prosecutor then called the criminal trespass charge only and a jury was selected and sworn. The State was allowed to present evidence concerning appellant’s behavior toward Officer Whaley as evidence of the facts and circumstances surrounding the arrest over appellant’s objections that such evidence was not relevant to the trespass charge.
We conclude that although the 1990 battery charge was not severed, neither was it tried before a jury. The transcript clearly shows that the State called and presented its case on the trespass charge only. Appellant’s contention that evidence was presented on the battery charge but no verdict was reached is not supported by the record, as appellant’s colloquies with the court concerning his objection to the admission of evidence regarding his behavior after the arrest show that he understood only the trespass charge was being tried before the jury. See
Waters v. State,
Judgment affirmed.