In State v. Davis, the Georgia Court of Appeals reversed the granting of the defendant’s plea in bar, finding that double jeopardy did not preclude a second indictment against him for child molestation and sexual exploitation charges.
The police executed a search warrant at the defendant’s home and seized a computer and an iPhone. The iPhone was password protected and the defendant would not give the police the password. The police then obtained a search warrant to have the phone opened by Apple.
In the meantime, the defendant was indicted for 25 counts of sexual exploitation of children based on images of child pornography found on his computer. He ended up pleading guilty to these charges.
Prior to his guilty plea, the police learned from Apple that the iPhone contained evidence that the defendant sent a pornographic video to a 13-year-old girl. The girl later stated that the defendant had fondled her buttocks.
Based on this information, the defendant was indicted on additional charges of child molestation and sexual exploitation of children. He filed a double jeopardy plea in bar based on O.C.G.A. § 16-1-7 which was granted by the trial court.
O.C.G.A. § 16-1-7 provides that all offenses arising out of the same conduct must be prosecuted in a single prosecution as long as they are all known to the prosecutor at the time of the first prosecution and are within the jurisdiction of a single court. “Crimes arise from the same conduct if they emerge from the same transaction or continuing course of conduct, occur at the same scene, occur on the same date, and occur without a break in the action.”
The Court of Appeals noted that although the evidence was seized on the same date, the charges were entirely separate and did not form a single course of conduct. The Court further noted that the State could establish each set of offenses without proving the other. Accordingly, the Court reversed the granting of the defendant’s plea in bar.
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