Following the denial of his plea in bar asserting double jeopardy, James Prather appeals and contends that the trial court erred by ruling 1 that the evidence in his first trial sufficed to support a verdict that Prather was guilty of two offenses predicated on reckless driving, and 2 that Prather could be re-tried during the pendency of Prather’s appeal of plea in bar found to be nonfrivolous. For the reasons that follow, we affirm the denial of the plea in bar and conclude that Prather’s second enumeration is moot. In reviewing a trial court’s ruling on a plea in bar, “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 the undisputed facts.”1 The undisputed record shows that Prather was involved in a car collision that killed another driver when Prather’s vehicle crossed a median and crashed into oncoming traffic. Based on the collision and death, Prather was indicted for committing vehicular homicide through a DUI less safe violation2 Count 1, vehicular homicide through a reckless driving violation3 Count 2, DUI less safe Count 3, reckless driving Count 4, and driving with a suspended license4 Count 5. Following a jury’s guilty verdict on all five counts, Prather moved for a new trial challenging, in part, the sufficiency of the evidence as to Count 2 vehicular homicide based on reckless driving and Count 4 reckless driving, and arguing that the trial court improperly charged the jury on Counts 1 through 4. In two separate orders, the trial court ultimately agreed and granted Prather a new trial as to the first four counts on the basis that the jury charges were improper. Those orders did not make explicit findings as to the sufficiency of the evidence on the counts predicated on reckless driving Counts 2 and 4.
Prather appealed from those orders on the theory that the State failed to present sufficient evidence as to Counts 2 and 4, because it failed to prove that he intended to cross into oncoming traffic as alleged in the indictment. This Court dismissed that appeal on jurisdictional grounds.5 Facing a second trial, Prather filed a plea in bar asserting double jeopardy based on the State’s alleged failure to present sufficient evidence in the first trial as to Counts 2 and 4.6 The trial court found the evidence sufficient, denied the plea, ruled that a second trial could be held even in the event that Prather appealed the denial of his plea in bar, and set a trial date. Prather filed this appeal and an emergency motion in this Court seeking to stay the second trial pending the outcome of the appeal. This Court granted the motion, the trial was stayed, and we now address Prather’s appeal.
