McMillian, Presiding Judge. After Michael Charles Ward was acquitted of stalking, he was tried and convicted by a jury of aggravated stalking against the same victim. He appeals, pro se, following the denial of his motion for new trial, as amended, raising claims of double jeopardy, prosecutorial misconduct, a biased judiciary, ineffective assistance of counsel, a defective and improper indictment, and improper and insufficient evidence to support his conviction. As more fully set forth below, we now reverse. Construed so as to support the jury’s verdict, the record shows that Ward and the victim[1] began dating in 2005 and had an on-again, off-again relationship for the next several years. During this time, Ward lived in Marietta, Georgia, and the victim lived alone in a house located in a somewhat remote area in Oconee County, and she also had a vacation home on a lake in another county. By the summer of 2007, the victim and Ward were once again having problems, and the victim told him she did not want to continue seeing him. Over the summer, Ward showed up at the victim’s various residences unannounced, and on at least one occasion he brought a handgun that he told the victim he planned to use to shoot whomever he found her with. In early August 2007, the victim told Ward not to call her anymore, but Ward came to her home while she was out of town. Later in August, the victim sent an email to Ward reiterating that their relationship was over and that he needed to come pick up his belongings, and Ward showed up at her house unannounced a few days later. The victim helped him pack up his things and then told him once again that the relationship was over. However, the victim kept receiving long emails from Ward reiterating his love for her, and he showed up at her home again in early September in hopes of a reconciliation but the victim once again told him they were through and requested he leave. And on September 6, 2007, the victim sent Ward another email with the subject line “NO MORE,” in which she emphatically told him not to contact her in any way. Nevertheless, around September 18, 2007, Ward showed up at her house with gifts and asked her to marry him. She declined and told him to leave. However, he was waiting for her when she came home the night of October 2, 2007, and she told him he was frightening her with his behavior and asked him to leave. During this time frame, the victim also detected signs that someone had been in her home while she was away. Because of her concerns about Ward’s behavior, the victim contacted an attorney she knew in early October 2007.[2] The attorney called Ward and told him that the victim did not want to have any further contact with him and that he would be sending him a letter to that effect, which he sent shortly afterwards; this letter was read to the jury at trial. On October 22, 2007, the victim’s housekeeper and teenage daughters[3] saw a man dressed in camouflage walking around the outside of the victim’s Oconee County house and in the nearby woods. The housekeeper called police and showed them a picture of Ward and “suggested” it might be him. At the responding officer’s suggestion, the victim made a request for a security check, which alerted officers of the need to patrol her property more frequently, and which contained a specific notation that Ward was not allowed to be on the property. After a telephone call with Ward at the end of October during which he called the victim a “whore” and was screaming at her, the victim went to the Oconee County Sheriff’s office and talked to a Detective.[4] On November 2, 2007, the Detective contacted Ward and told him that he had talked to the victim and she had made it clear that she did not want any further contact with Ward of any kind whatsoever. He said that Ward told him that he had already ended all contact with the victim. A few days later, on November 5, 2007, the victim’s nephew,[5] spotted a car on property near the victim’s house and noticed it was registered to the county where Ward lived at the time. The nephew called the police and then noticed Ward walking out of the woods wearing camouflage. The Detective came to the scene where he recovered a number of items from Ward’s car, including a number of personal items that appeared to be taken from the victim’s home, information about her friends, phone numbers taken from the caller identification on her phone, and various tools that could be used to break into her house, which Ward admitted to police he planned to use to gain access to the victim’s home.[6] Following this incident, Ward was arrested and then released on a “no-contact” bond on Tuesday, November 6, 2007. On November 20, 2007, a multi-count indictment was returned against Ward charging him with multiple counts of burglary, computer theft, theft by taking, possession of tools in the commission of a crime, and stalking. In early December 2007, Ward ordered a book called “Redeeming Love” off Amazon.com and had it delivered to the victim’s house.[7] Ward was arrested for violating his no-contact bond and subsequently indicted on the felony offense of aggravated stalking on January 24, 2008. In August 2009, Ward was tried on the first indictment charging him with misdemeanor stalking and various other crimes. Despite the evidence of Ward’s unsolicited and alarming contacts with the victim, a jury acquitted him of all charges except for possession of tools in the commission of a crime. Ward did not appeal that conviction. Following Ward’s acquittal on the misdemeanor stalking charge, the State moved to dead docket the pending aggravated stalking charge, but Ward objected and the trial court denied the State’s request. In January 2010, just five months after his acquittal on the stalking and other charges, a jury convicted Ward of aggravated stalking,[8] and he was sentenced to the maximum of ten years with credit for time served. Ward filed a motion for new trial on February 3, 2010, and following several amendments and a lengthy delay, a hearing was held on the motion on September 21, 2017. The trial court denied the motion on December 14, 2017, and Ward timely filed a notice of appeal to this Court on January 8, 2018. 1. We first address the issue of the troublesome delay in this case between the time of trial and the ruling on the motion for new trial, which delayed the docketing of this appeal. As noted above, well over seven years passed between the time Ward filed his motion for new trial and when the trial court held the hearing on the motion[9] such that Ward’s timely notice of appeal was not filed in this case until almost eight years after his conviction. Ward was in jail from the time he was re-arrested on the aggravated stalking charge, and according to his brief, he completed serving his sentence and was released from prison in February 2018. This sort of extraordinary post-conviction, pre-appeal delay puts at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. It is the duty of those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. That duty unfortunately was not fulfilled in this case. Robinson v. State, 334 Ga. App. 646, 647 (1) (780 SE2d 86) (2015). 2. In several related enumerations of error, Ward argues that his prosecution on the aggravated stalking charge violated principles of double jeopardy and that the trial court should have have granted his motion in limine to exclude admission or reference to the evidence introduced during Trial 1. Specifically, he argues that because he had been acquitted of stalking in Trial 1, evidence from trial had been “used up” and could not be introduced to convict him of aggravated stalking in Trial 2. He also asserts that the crimes should have been prosecuted together under OCGA §§ 16-1-7 (b) & 16-1-8 (b) (1). Under the facts of this case, we agree that reversal is required.[10] We begin our analysis by stating our standard of review. “The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citation and punctuation omitted.) Garrett v. State, 306 Ga. App. 429, 429 (702 SE2d 470) (2010). However, “we review de novo the trial court’s application of the law to undisputed facts.” (Citation and punctuation omitted.) Id. The Double Jeopardy Clause in the Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life and limb.” Likewise, the Georgia Constitution and Georgia statutory law prohibit the government from placing a defendant in jeopardy twice for the same offense following either an acquittal or a conviction and also prohibit multiple punishments for the same offense.[11] The Supreme Court of the United States has recognized that the Double Jeopardy Clause of the federal Constitution protects two vital interests. Yeager v. United States, 557 U.S. 110, 117 (II) (129 SCt 2360, 174 LE2d 78) (2009). First, the State is prohibited from making repeated attempts to convict an individual for the same offense, thereby subjecting him to the ordeal and anxiety of successive prosecutions. Id. at 117-18 (II). In particular, “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceedings. This is central to the objective of the prohibition against successive trials.” Burks v. United States, 437 U.S. 1, 11 (98 SCt 2141, 57 LEd 2d 1) (1978). “The second interest is the preservation of the finality of judgments.” (Citation and punctuation omitted.) Yeager, 557 U.S. at 118 (II). Our Supreme Court has similarly recognized that under the shield of double jeopardy [a] defendant is protected . . . from attempts to re-litigate the facts after an acquittal and from attempts to secure additional punishment after a prior conviction and sentence. In addition to the risk of enhanced punishment for the same offense, successive prosecutions allow the State to unfairly rehearse its presentation of the evidence and hone its trial strategy, while also incrementally increasing the burden on the defendant to defend himself. (Citations and punctuation omitted.) Perkinson v. State, 273 Ga. 491, 493-94 (1) (542 SE2d 91) (2001).[12] To determine if Ward was twice put in jeopardy for the “same offenses,” we apply the “required evidence” or “same elements” test outlined in Blockburger v. United States, 284 U.S. 299 (52 SCt. 180, 76 LEd. 306) (1932), and look to whether each offense requires proof of an additional fact or element which the other does not.[13] The elements of the offense of stalking are set out in OCGA § 16-5-90: “A person commits the offense of stalking if he or she follows, places under surveillance, or contacts another person . . . without the consent of the other person for the purpose of harassing and intimidating the other person.” Under OCGA § 16-5-91, “[a] person commits the offense of aggravated stalking when such person, in violation of [among other things, a condition of pretrial release] . . . places under surveillance, or contacts another person . . . without the consent of the person for the purpose of harassing and intimidating the other person.” Thus, OCGA § 16-5-91 tracks the language of OCGA § 16-5-90 except that OCGA § 16-5-91 has the additional requirement that the contact be in violation of a court order. And although OCGA § 16-5-91 does not define “harassing and intimidating,” our Supreme Court has explained that “the legislature has made clear that the simple stalking statute['s definition of those terms is] for purposes of the entire article on stalking in the Georgia Code.” (Punctuation omitted.) State v. Burke, 287 Ga. 377, 378 (695 SE2d 649) (2010). Thus, for the purposes of both stalking and aggravated stalking, “harassing and intimidating” is defined as “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.” (Emphasis supplied) OCGA § 16-5-90 (a) (1). In Burke, our Supreme Court made clear what the State must prove in an aggravated stalking case: Based on the plain terms of the stalking statutes, a single violation of a protective order, by itself, does not amount to aggravated stalking. The contact with the victim in violation of the protective order must also be without the consent of the other person for the purpose of harassing and intimidating him or her. OCGA § 16-5-91 (a). The “harassing and intimidating” conduct must be established by, among other things, “a pattern of harassing and intimidating behavior.” A single violation of a protective order, alone, simply does not establish “a pattern of harassing and intimidating behavior.” (Citations omitted.) Burke, 287 Ga. at 379. Thus, under Georgia’s stalking statutes, in order to prove aggravated stalking, the State must also prove the lesser included offense of misdemeanor stalking. And for purposes of double jeopardy, a lesser-included offense and a greater offense are the same offense under the Fifth Amendment and the Blockburger test because the lesser crime requires no proof beyond that which is required for the conviction of the greater offense.[14] Although the Blockburger test focuses on the proof necessary to establish the statutory elements of each offense, rather than on the actual evidence to be presented at trial, we must also determine whether the State relied on the same offense as a matter of fact to prove the underlying stalking course of conduct in Trial 2 as it did in Trial 1. This is because the State is precluded under the Double Jeopardy Clause “from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial.” Roesser v. State, 294 Ga. 295, 296-97 (751 SE2d 297) (2013). To determine what a jury has necessarily decided, a court should examine the record of a prior proceeding, taking into account the pleadings, evidence, charge and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. Id. at 297.[15] Here, a comparison of the transcripts for both trials shows, with a few exceptions, the State relied on almost the exact same evidence to prove Ward’s alleged harassing and intimidating course of conduct at both the stalking and aggravated stalking trials and the bulk of the evidence presented at Trial 2 concerned events that occurred during the range of dates stated in Ward’s first indictment for stalking. Thus, except for the additional evidence concerning violation of the no-contact order and an encounter with the victim’s family that occurred after he was arrested the first time, Ward was prosecuted twice for the same stalking conduct — conduct which the jury in Trial 1 had rejected as insufficient to prove the exact same offense as the State was required to prove in Trial 2, except that the State was able to improve its evidence in several respects in Trial 2.[16] This is precisely the kind of rehearsal and honing of evidence that the Double Jeopardy Clause is designed to prevent. Tanks v. State, 292 Ga. App. 177, 179 (663 SE2d 812) (2008) (prosecution for aggravated stalking which was predicated on the same act as a prior contempt proceeding was subject to double jeopardy clause).[17] Citing Daker v. State, 248 Ga. App. 657, 660 (548 SE2d 354) (2001), the State argues that the fact that the same evidence had been presented in a previous stalking trial does not present a double jeopardy issue in a stalking case. As we explained in Daker, it would be impossible for the State to prosecute repeat offenders of the stalking statute, as having once used the evidence to demonstrate a course of conduct, the State would be forever barred from using that evidence again in establishing a subsequent stalking violation. As stalking is, by its very nature, a cumulative crime, [this] interpretation of double jeopardy would eviscerate the purpose of the stalking statute, leaving would-be stalkers free to begin stalking their victim with a clean slate following a stalking conviction. Daker, 248 Ga. App. at 660. However, Daker is distinguishable. Unlike the present case, Daker involved separate and entirely distinct incidents of stalking that occurred at different times, in different counties, and involved distinct activities. Further, and perhaps more importantly, Daker did not involve an acquittal and then the introduction of the same evidence previously found lacking to prove the same elements of the same crime in another trial. Having failed to put forth sufficient evidence of the lesser included offense at Trial 1, the State cannot then use those same facts to attempt to prove the same elements as part of the greater offense at Trial 2 because a jury has already deemed those same facts insufficient to establish the elements of the lesser offense.[18] Roesser, 295 Ga. at 299 (double jeopardy necessarily barred later prosecution for voluntary manslaughter when the jury had necessarily determined that accused acted in self-defense by acquitting him of earlier charges of malice murder, felony murder and aggravated assault); Robinson v. State, 334 Ga. App. at 651-52 (the jury having necessarily determined that defendant was not a party in the first trial, he could not be retried under the same theory in a subsequent trial). The dissent disagrees that there was a double jeopardy violation because several witnesses testified at Trial 2 that did not testify at Trial 1, the date range of the indictments was different, and “there was additional evidence showing Ward’s pattern of threatening and harassing behavior since the events charged in Trial 1 was shown at Trial 2.” We agree that if the State had limited its presentation of the evidence to events since Trial 1, the evidence would have been sufficient to sustain the aggravated stalking charge. But the State chose to also present the same evidence from Trial 1, with some enhancements, and that evidence constituted the bulk of the evidence in Trial 2. The State’s theory for presenting the evidence from Trial 1 was that they constituted “prior difficulties” for the purpose of illustrating “the state of feeling between the defendant and the alleged victim and the bent of mind and course of conduct on part of the defendant,” and that’s how the trial court charged the jury. The State then argued, and the jury was charged, that to find aggravated stalking, they had to find that Ward contacted the victim without her consent “for the purpose of harassing and intimidating such other person” and that “harassing and intimidating” meant “a knowing and willful course of conduct directed at a specific person” that causes them emotional distress. It is, thus, clear that the State was relitigating the stalking charge that was necessarily decided adversely by the jury’s acquittal and that under the State’s theory of the case, as supported by the trial court’s instructions, the jury in Trial 2 was urged to find that the “prior difficulties” evidence proved the “harassing and intimidating” course of conduct required for the aggravated stalking charge. That the State cannot do without running afoul of the Double Jeopardy clause. Accordingly, Ward’s conviction must be reversed. 3. Based on the foregoing, it is unnecessary for us to consider Ward’s remaining enumerations of error as he cannot be retried. Judgment reversed. McFadden, C. J.,concurs and Goss, J., dissents.* *THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF APPEALS RULE 33.2 (a). A19A0671. WARD v. THE STATE.
