Abercrombie v. State

• Docket Number: A23A1046
• Decision Date: 22 August 2023
• Parties: ABERCROMBIE v. THE STATE.
• Court: Georgia Court of Appeals

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ABERCROMBIE
v.
THE STATE.

No. A23A1046

Court of Appeals of Georgia, First Division

August 22, 2023

BARNES, P. J., LAND and WATKINS, JJ.

WATKINS, JUDGE.

Demetrius Abercrombie appeals from the denial of his statutory double jeopardy plea in bar. He argues that his guilty plea for burglary and theft precluded the State from prosecuting other offenses he allegedly committed against the same victim. For the reasons set forth below, we affirm.

We note that, "[a]t this pre-trial stage in the proceedings against [Abercrombie], the evidence has not yet been fully developed and is somewhat limited."^[1] As such, we look to "the limited facts or representations that are currently available from the parties."^[2] "[I]t is impossible to know at this stage in the

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proceedings exactly how the State will prove its case, so, as the trial court did, we must consider how the State could prove its case at a future trial based on whatever facts may be currently available."^[3]

So viewed, the State alleges that Abercrombie entered the victim's apartment in Fulton County on May 31, 2019, and committed the offenses of rape, sodomy, kidnapping, burglary, and false imprisonment. Abercrombie committed the offenses around 4:00 a.m. that morning. Upon leaving, Abercrombie said something to the effect of, "Call the cops. I'm going to be back."

The victim went to her mother's house in Covington and contacted the police there. The Covington police told her to return to Fulton County to file a report in that jurisdiction. The victim returned to her apartment and then left for the hospital around 10:00 a.m. The victim's laptop, television, washer, and dryer were still present in her apartment when she left for the hospital at 10:00 a.m. on the morning of May 31.

When the victim returned from the hospital on June 4, she realized her laptop, television, washer, and dryer were all missing. The police recovered a fingerprint from a window and matched it to Abercrombie. Abercrombie later admitted to entering the apartment through the window in order to accomplish the theft of the

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stolen items. The GBI matched Abercrombie's DNA to DNA recovered from the victim. The victim also identified Abercrombie from a photographic lineup. Abercrombie and the victim did not previously know each other, but they did live in the same apartment building.

The State indicted Abercrombie for theft by taking, based on the theft of the laptop, television, washer, and dryer; and for burglary, alleging that Abercrombie entered the victim's apartment with the intent to commit the theft. The indictment alleged that Abercrombie committed the offenses between May 31 and June 4. Abercrombie ultimately pled guilty to those charges. The State later indicted Abercrombie for rape, kidnapping, sodomy, burglary, and false imprisonment. The State alleged that Abercrombie committed these offenses on May 31. The burglary count was premised on Abercrombie entering the victim's apartment with the intent to commit rape.

Abercrombie filed a statutory double jeopardy plea in bar, arguing that his guilty plea for burglary and theft precluded the State from bringing additional charges because the second indictment encompassed the same transaction and occurrence as the first indictment. The State responded that Abercrombie left the apartment after completing the rape and related offenses, and thus his later acts of burglary and theft

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constituted a separate course of conduct. The trial court denied Abercrombie's plea in bar after a hearing. This appeal followed.^[4]

On appeal from the grant or denial of a double jeopardy plea in bar, [the appellate court] review[s] the trial court's oral and written rulings as a whole to determine whether the trial court's findings support its conclusion. When the facts are undisputed, [the appellate court's] review of the trial court's application of the law to those facts is de novo. The trial court's factual findings are assessed under the standard of clear error.^[5]

"[T]he defendant has the burden of proving that further prosecution is barred by the previous prosecution."^[6] With these guiding principles in mind, we now turn to Abercrombie's claim of error.

Abercrombie argues that the trial court erred in denying his statutory double jeopardy plea in bar. He contends that, based on the congruence in the identity of the victim and the location of the offenses, as well as the timing of the conduct, the State had to try the offenses together. Abercrombie notes that he may have re-entered the

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