2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 1 - General Provisions
§ 16-1-6. Conviction for Lesser Included Offenses

An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when:

1. It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or
2. It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

(Code 1933, § 26-505, enacted by Ga. L. 1968, p. 1249, § 1.)

- For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey on criminal law and procedure, 42 Mercer L. Rev. 141 (1990). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B. J. 124 (1970).

ANALYSIS

• General Consideration
• Armed Robbery
• Assault
• Controlled Substances
• Kidnapping
• Murder
• Rape
• Child Molestation
• Other Offenses Involving Children
• Other Property Offenses
• Vehicular Offenses
• Miscellaneous Crimes

General Consideration

Statutes controlling double jeopardy questions.

- Ga. L. 1968, p. 1249 extends proscription of double jeopardy beyond that provided for in United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must be determined under proscriptions of former Code 1933 §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8). State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975).

Former Code 1933 §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) provide expanded statutory test for determining double jeopardy questions, thereby rendering inapplicable previous Georgia decisions applying only minimum constitutional standards of double jeopardy. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Questions of double jeopardy in Georgia must be determined under the expanded statutory proscriptions found in O.C.G.A. §§ 16-1-6 through16-1-8, which place limitations upon multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983).

- Where a defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant's home, double jeopardy did not attach to the second prosecution, as these acts occurred at different times and locations with distinct quantities of contraband, even though defendant might have at some earlier time possessed all the marijuana in defendant's home. Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004).

- In creating expanded statutory protection against being twice placed in jeopardy for same offense, the legislature intended former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) to affect only successive prosecutions for state crimes and not successive state and municipal prosecutions. State v. Burroughs, 244 Ga. 288, 260 S.E.2d 5 (1979).

Criminal indictments are not deemed amendable to conform to the evidence. State v. Hightower, 252 Ga. 220, 312 S.E.2d 610 (1984).

- A prosecution for a lesser included offense, which includes the underlying felony in a felony murder case, after a conviction for the greater offense in a different county violates O.C.G.A. § 16-1-6(a), Ga. Const. 1983, Art. I, Sec. I, Par. XVIII, and the Fifth and Fourteenth Amendments to the United States Constitution. Perkinson v. State, 273 Ga. 491, 542 S.E.2d 92 (2001).

- Former Code 1933 §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) distinguish between two aspects of double jeopardy: first, limitations upon multiple prosecutions for crimes arising from same conduct (referred to as procedural bar of double jeopardy); and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes (referred to as substantive bar of double jeopardy). Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

- Double jeopardy did not attach to bar prosecution of defendant on state drug charges following federal civil forfeiture proceedings because defendant's failure to contest the forfeiture meant defendant was not placed in jeopardy in those proceedings and, also, Georgia constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22, 464 S.E.2d 19 (1995).

- Inclusion provisions of O.C.G.A. § 16-1-6 do not apply to aggravating circumstances but to crimes. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Accused may be convicted of a crime included in a crime charged in the indictment or accusation, and that a crime is so included when it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged. Morast v. State, 323 Ga. App. 808, 748 S.E.2d 287 (2013).

O.C.G.A. § 16-1-6 makes no attempt to detail all instances where one offense is not included within another. Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981).

Ga. L. 1968, p. 1249, § 1 (see now O.C.G.A. §§ 16-1-6 and16-1-7) establishes alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441 (1975); Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).

Under O.C.G.A. § 16-1-6(1), offenses merge as a matter of fact if one of them is established by proof of the same or less than all the facts required to prove the other; under Georgia law, multiple punishment is prohibited if one offense is included in the other as a matter of law or fact. Phillips v. State, 259 Ga. App. 331, 577 S.E.2d 25 (2003).

Former Code 1933, § 26-505(1) set out rules for determining included crimes as a matter of fact. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Former Code 1933, § 26-505(2) set out rules for determining included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

- Although defendant may be prosecuted for all crimes committed, defendant may not be convicted of more than one crime if crimes charged are same in law or fact. Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980).

A crime is an included crime and multiple punishment is barred if it is the same as a matter of fact or as a matter of law. Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).

- When the evidence authorizes a finding that a defendant's reckless conduct is an included crime in an aggravated assault, the verdicts finding the defendant guilty of both of those offenses are not mutually exclusive. Thus, Jackson v. State, 276 Ga. 408, 577 S.E.2d 570 (2003), is overruled. State v. Springer, 297 Ga. 376, 774 S.E.2d 106 (2015).

- When the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under O.C.G.A. § 16-1-6. Haynes v. State, 249 Ga. 119, 288 S.E.2d 185 (1982), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006); Phillips v. State, 162 Ga. App. 199, 290 S.E.2d 142 (1982); Jones v. State, 185 Ga. App. 595, 365 S.E.2d 153 (1988); Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888, cert. denied, 189 Ga. App. 911, 376 S.E.2d 888 (1989); Montes v. State, 262 Ga. 473, 421 S.E.2d 710 (1992).

If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of law, and the defendant may not be sentenced for both. Chadwick v. State, 236 Ga. App. 199, 511 S.E.2d 286 (1999).

- A crime will constitute a lesser included offense as a matter of law when, inter alia, it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person or public interest or a lesser kind of culpability suffices to establish its commission. Brewton v. State, 216 Ga. App. 346, 454 S.E.2d 558 (1995), rev'd on other grounds, 266 Ga. 160, 465 S.E.2d 668 (1996).

- Supreme Court of Georgia utilizes more lenient alternative test, rather than narrower conjunctive standard prevailing in federal courts. A crime is included within another if, as a matter of fact or, alternatively, as a matter of law, conditions stipulated by former Code 1933, § 26-505 are satisfied. The conjunctive test requires that conditions be satisfied both as a matter of fact and as a matter of law before one crime will be held to be included within another. Ramsey v. State, 145 Ga. App. 60, 243 S.E.2d 555, rev'd on other grounds, 241 Ga. 426, 246 S.E.2d 190 (1978).

One crime is not included within another if each affects a different person. Harshaw v. State, 134 Ga. App. 581, 215 S.E.2d 337 (1975).

Most obvious example of noninclusion is when crime is charged in separate count of indictment as having been committed upon another person. Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981).

- When two separate incidents are involved, each established by proof of different facts and distinct as a matter of law, the possibility of inclusion is obviated. Ramsey v. State, 145 Ga. App. 60, 243 S.E.2d 555, rev'd on other grounds, 241 Ga. 426, 246 S.E.2d 190 (1978).

- In determining when one crime is included in another under O.C.G.A. §§ 16-1-6(1) and16-1-7(a), the actual evidence test has been overruled and replaced with the Blockburger required evidence test, as this is consistent with the statutory framework of O.C.G.A. § 16-1-6(1), which speaks of required elements. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

- If the state uses up all of the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact. Dawson v. State, 203 Ga. App. 146, 416 S.E.2d 125, cert. denied, 203 Ga. App. 905, 416 S.E.2d 125 (1992).

Actual evidence test meant that if the state used up all the evidence that the defendant committed one crime in establishing another crime, the former crime was included in the latter as a matter of fact under O.C.G.A. § 16-1-6. Ruffin v. State, 252 Ga. App. 289, 556 S.E.2d 191 (2001).

Question of whether there was a factual merger of crimes is determined by looking to the actual evidence introduced at trial to determine whether a crime is established by proof of the same or fewer than all the facts required to establish the commission of another crime within the meaning of O.C.G.A. § 16-1-6; if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under O.C.G.A. § 16-1-6. Brewster v. State, 261 Ga. App. 795, 584 S.E.2d 66 (2003).

- When the state sought to prosecute the defendant on two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. Bell v. State, 249 Ga. 644, 292 S.E.2d 402 (1982).

- It is not ground for new trial that on felony indictment defendant may be convicted of lesser included crime which is itself only a misdemeanor. Ennis v. State, 130 Ga. App. 716, 204 S.E.2d 519 (1974).

- Court did not err in failing to instruct the jury to decide which one of the offenses charged in the indictment or of the lesser included offense to find defendant guilty of. There was no issue of fact as to whether one crime was included in another and the court was not required to charge on O.C.G.A. § 16-1-6. Leslie v. State, 211 Ga. App. 871, 440 S.E.2d 757 (1994).

To warrant conviction of lesser offense on indictment or information charging greater offense, it is essential that allegations describing greater offense contain all essential averments relating to lesser offense or that greater offense necessarily include all essential ingredients of lesser. Williams v. State, 144 Ga. App. 130, 240 S.E.2d 890 (1977); Tuggle v. State, 145 Ga. App. 603, 244 S.E.2d 131 (1978).

- Even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Messick v. State, 209 Ga. App. 459, 433 S.E.2d 595 (1993).

- Trial court erred in merging the conviction requiring a greater injury into that which required the lesser injury. Zamudio v. State, 332 Ga. App. 37, 771 S.E.2d 733 (2015).

- After a jury convicted a defendant on an aggravated battery charge, but acquitted the defendant on charges of obstruction, simple battery, and aggravated assault and could not reach a verdict on a second charge of aggravated assault, the jury's inability to reach a verdict on the second aggravated assault charge, a lesser included offense, did not invalidate the jury verdict on the aggravated battery charge. Collier v. State, 195 Ga. App. 380, 393 S.E.2d 509 (1990).

Sequential assaults held to be two offenses, the first a completed crime when the second was perpetrated. Talley v. State, 164 Ga. App. 150, 296 S.E.2d 173 (1982), aff'd, 251 Ga. 42, 302 S.E.2d 355 (1983).

- Defendant may be prosecuted for each crime arising from same conduct, but may not be convicted of more than one crime if one crime is included in the other. Addison v. State, 239 Ga. 622, 238 S.E.2d 411 (1977).

Under O.C.G.A. §§ 16-1-6 and16-1-7, a defendant may be prosecuted for two crimes based on the same conduct, but defendant may not be convicted of more than one crime if one crime is included in the other. Padgett v. State, 205 Ga. App. 576, 423 S.E.2d 411 (1992).

- As a matter of law a defendant is on notice of lesser crimes which are included in the crime charged, and the defendant's due process rights were therefore not violated where remand for an adjudication of delinquency was made, based on a lesser included offense, after vacation of a conviction on the more serious offense. In re A.F., 236 Ga. App. 60, 510 S.E.2d 910 (1999).

Trial court did not err by granting the state's request to charge the jury on robbery by sudden snatching, and the defendant's due process rights were not violated as: (1) the indictment alleging armed robbery gave the defendant sufficient notice; (2) the essential elements of both armed robbery and robbery by sudden snatching were contained within the indictment; (3) robbery by sudden snatching was a lesser included offense of armed robbery as a matter of law; and (4) the defendant conceded that the trial evidence supported such a charge. Millender v. State, 286 Ga. App. 331, 648 S.E.2d 777 (2007), cert. denied, No. S07C1717, 2008 Ga. LEXIS 80 (Ga. 2008).

Trial court did not err in failing to merge the defendant's convictions for the criminal damage to property in the first degree and criminal damage to property in the second degree because, although the charges were defined by degrees, the statutes prohibited different risks of injury - knowing interference with property in a manner that endangered human life and a certain level of damage to the property. Sullivan v. State, 331 Ga. App. 592, 771 S.E.2d 237 (2015).

- Statutes pertaining to lesser included offenses and multiple prosecutions for the same conduct do not purport to make any offense a greater offense, either as a matter of law or fact, solely because violation thereof mandates or otherwise results in the imposition of a greater sentence, or to make any offense a lesser included offense merely because a lesser sentence was statutorily authorized for the statute's violation. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993).

Cited in Wells v. State, 127 Ga. App. 109, 192 S.E.2d 567 (1972); Fallings v. State, 232 Ga. 798, 209 S.E.2d 151 (1974); Williamson v. State, 134 Ga. App. 583, 215 S.E.2d 518 (1975); Kramer v. Hopper, 234 Ga. 395, 216 S.E.2d 119 (1975); D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975); Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976); Thomas v. State, 237 Ga. 690, 229 S.E.2d 458 (1976); Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977); Perkins v. State, 143 Ga. App. 124, 237 S.E.2d 658 (1977); Butler v. State, 239 Ga. 591, 238 S.E.2d 387 (1977); Corson v. State, 144 Ga. App. 559, 241 S.E.2d 454 (1978); Lowe v. State, 240 Ga. 767, 242 S.E.2d 582 (1978); State v. Gilder, 145 Ga. App. 731, 245 S.E.2d 3 (1978); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978); Coaxum v. State, 146 Ga. App. 370, 246 S.E.2d 403 (1978); State v. Burroughs, 149 Ga. App. 183, 254 S.E.2d 144 (1979); Groves v. State, 152 Ga. App. 606, 263 S.E.2d 501 (1979); Duke v. State, 153 Ga. App. 204, 264 S.E.2d 721 (1980); Doucet v. State, 153 Ga. App. 775, 266 S.E.2d 554 (1980); Griffeth v. State, 154 Ga. App. 643, 269 S.E.2d 501 (1980); Powell v. State, 154 Ga. App. 674, 270 S.E.2d 6 (1980); High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981); Taylor v. State, 157 Ga. App. 212, 276 S.E.2d 691 (1981); Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981); Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981); Head v. State, 248 Ga. App. 767, 285 S.E.2d 735 (1981); Jones v. State, 161 Ga. App. 620, 288 S.E.2d 795 (1982); Dalton v. State, 162 Ga. App. 7, 289 S.E.2d 801 (1982); Williams v. State, 162 Ga. App. 350, 291 S.E.2d 425 (1982); Dalton v. State, 249 Ga. 720, 292 S.E.2d 834 (1982); Smith v. State, 163 Ga. App. 531, 295 S.E.2d 208 (1982); Collins v. State, 164 Ga. App. 482, 297 S.E.2d 503 (1982); Dickson v. State, 167 Ga. App. 685, 307 S.E.2d 267 (1983); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); Caldwell v. State, 171 Ga. App. 680, 320 S.E.2d 888 (1984); Weaver v. State, 176 Ga. App. 639, 337 S.E.2d 420 (1985); Clarington v. State, 178 Ga. App. 663, 344 S.E.2d 485 (1986); Rank v. State, 179 Ga. App. 28, 345 S.E.2d 75 (1986); McClure v. State, 179 Ga. App. 245, 345 S.E.2d 922 (1986); Preston v. State, 257 Ga. 42, 354 S.E.2d 135 (1987); Sablon v. State, 182 Ga. App. 128, 355 S.E.2d 88 (1987); Mathis v. State, 184 Ga. App. 455, 361 S.E.2d 856 (1987); Edwards v. State, 258 Ga. 12, 364 S.E.2d 869 (1988); Moore v. State, 190 Ga. App. 278, 378 S.E.2d 880 (1989); Iglesias v. State, 191 Ga. App. 403, 381 S.E.2d 604 (1989); State v. Evans, 192 Ga. App. 216, 384 S.E.2d 404 (1989); Redding v. State, 196 Ga. App. 751, 397 S.E.2d 34 (1990); Kennedy v. State, 199 Ga. App. 803, 406 S.E.2d 136 (1991); Head v. State, 262 Ga. 795, 426 S.E.2d 547 (1993); Woody v. State, 212 Ga. App. 186, 441 S.E.2d 505 (1994); King v. State, 214 Ga. App. 311, 447 S.E.2d 645 (1994); Golden v. State, 233 Ga. App. 703, 505 S.E.2d 242 (1998); Powles v. State, 248 Ga. App. 4, 545 S.E.2d 153 (2001); Dorsey v. State, 251 Ga. App. 640, 554 S.E.2d 278 (2001); Climpson v. State, 253 Ga. App. 485, 559 S.E.2d 495 (2002); Williams v. State, 255 Ga. App. 775, 566 S.E.2d 477 (2002); Lewis v. State, 261 Ga. App. 273, 582 S.E.2d 222 (2003); Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004); Wilkerson v. State, 267 Ga. App. 585, 600 S.E.2d 677 (2004); Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006); Guyton v. State, 281 Ga. 789, 642 S.E.2d 67 (2007); Arnold v. State, 293 Ga. App. 395, 667 S.E.2d 167 (2008); Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008); Epps v. State, 297 Ga. App. 66, 676 S.E.2d 791 (2009); Gonzales v. State, 298 Ga. App. 821, 681 S.E.2d 248 (2009); Strickland v. State, 300 Ga. App. 898, 686 S.E.2d 486 (2009); Stepp v. State, 286 Ga. 556, 690 S.E.2d 161 (2010); State v. Wilson, 318 Ga. App. 88, 732 S.E.2d 330 (2012); State v. Pruiett, 324 Ga. App. 789, 751 S.E.2d 579 (2013); State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014); Henderson v. State, 333 Ga. App. 759, 777 S.E.2d 48 (2015); Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017); Woods v. State, 342 Ga. App. 301, 802 S.E.2d 822 (2017); Vasquez v. State, 306 Ga. 216, 830 S.E.2d 143 (2019).

Armed Robbery

Aggravated assault and armed robbery as separate crimes.

- Aggravated assault and armed robbery differ in more ways than that a less serious injury or risk of injury or a lesser kind of culpability, applies to one crime than the other. Thus, aggravated assault is not included in armed robbery as a matter of law. Harvey v. State, 233 Ga. 41, 209 S.E.2d 587 (1974).

Aggravated assault and armed robbery may not be different crimes as a matter of fact. Lambert v. State, 157 Ga. App. 275, 277 S.E.2d 66 (1981).

Aggravated assault and armed robbery are different crimes as a matter of law. Lambert v. State, 157 Ga. App. 275, 277 S.E.2d 66 (1981).

Aggravated assault was not included within armed robbery as a matter of fact. Evans v. State, 173 Ga. App. 655, 327 S.E.2d 784 (1985).

Conviction for aggravated assault did not merge with conviction for armed robbery where the evidence showed that the defendant had completed the armed robbery at the time defendant assaulted the security guard. Loumakis v. State, 179 Ga. App. 294, 346 S.E.2d 373 (1986).

Offenses of aggravated assault and robbery did not merge as a matter of law, where although the occurrences happened within a short span of time, the robbery had been completed at the time defendant fired a gun and involved different actions and intents. Phelps v. State, 194 Ga. App. 493, 390 S.E.2d 899 (1990).

Aggravated assaults did not merge with the robbery of two victims, where the robberies were completed, both victims having been deprived of their property, when they were marched off for another criminal purpose and the aggravated assaults on each victim occurred. Glass v. State, 199 Ga. App. 530, 405 S.E.2d 522 (1991).

In a trial for armed robbery and aggravated assault, the evidence showed that defendant forced the victim at knifepoint to open the safe and that after taking the money from the safe, defendant cut the victim during the victim's attempt to escape. Since the act which constituted the offense of armed robbery was proved without any reference to the act which constituted the aggravated assault, no merger occurred. Holmes v. State, 205 Ga. App. 168, 421 S.E.2d 311 (1992).

Trial court did not err by failing to merge the defendants' convictions on counts one through five into one conviction for armed robbery because the aggravated assaults and armed robbery (none of which could have been proven by the same or less than all the facts required to prove another) occurred later and the facts required to prove those offenses were separate from the burglary. Dunbar v. State, 273 Ga. App. 29, 614 S.E.2d 472 (2005).

Evidence that the victim was beaten over the head with a pistol showed a completed aggravated assault prior to the armed robbery which was also committed with a pistol; in other words, the pistol was used to effect bodily harm as well as to effect a theft. Since separate facts were used to prove each crime, the trial court did not err by refusing to merge the offenses under O.C.G.A. § 16-1-6. Bunkley v. State, 278 Ga. App. 450, 629 S.E.2d 112 (2006).

As the armed robberies and aggravated assaults the defendant was charged with were committed against different victims, the crimes did not merge as a matter of law or fact. Verdree v. State, 299 Ga. App. 673, 683 S.E.2d 632 (2009).

- Where facts adduced to support armed robbery charge were same facts used to support aggravated assault charge, aggravated assault charge must be considered an included offense with armed robbery charge pursuant to former Code 1933, § 26-505. Hizine v. State, 148 Ga. App. 375, 251 S.E.2d 393 (1978) (see O.C.G.A. § 16-1-6).

- Because all of the facts used to prove the offense of aggravated assault with intent to rob were used up in proving the armed robbery, merger was required. Mercer v. State, 289 Ga. App. 606, 658 S.E.2d 173 (2008).

Separate convictions for armed robbery and aggravated assault were barred, and conviction for the latter offense would have to be vacated, where the only aggravated assault shown by the evidence was that by which the commission of the armed robbery was effectuated. Young v. State, 177 Ga. App. 756, 341 S.E.2d 286 (1986).

Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger since the only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362, 373 S.E.2d 63 (1988); Head v. State, 202 Ga. App. 209, 413 S.E.2d 533 (1991).

Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger since the only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362, 373 S.E.2d 63 (1988); Head v. State, 202 Ga. App. 209, 413 S.E.2d 533 (1991).

Defendants' robbery and aggravated assault convictions, under O.C.G.A. §§ 16-5-21 and16-8-40, merged because, while aggravated assault did not require taking property from another, aggravated assault was proved by the same or less than all facts required to show robbery, as the assault forming the basis of the aggravated assault with intent to rob, which was pointing a pistol at the victim, was "contained within" the element of robbery requiring the defendants to have used force, intimidation, threat or coercion, or placed the victim in fear of immediate serious bodily injury. Washington v. State, 310 Ga. App. 775, 714 S.E.2d 364 (2011).

Defendant's conviction for aggravated assault merged into the defendant's conviction for attempted armed robbery because the relevant aggravated assault provision did not require proof of any fact that was not also required to prove the attempted armed robbery as that offense could have been proved under the indictment in the case. Garland v. State, 311 Ga. App. 7, 714 S.E.2d 707 (2011).

Aggravated assault and armed robbery convictions merged as the assault count did not require proof of any fact not required to prove armed robbery. Newsome v. State, 324 Ga. App. 665, 751 S.E.2d 474 (2013).

Because a habeas applicant's crimes of aggravated assault with intent to rob and armed robbery occurred at the same time and resulted from the same conduct, the applicant's holding a store owner at gunpoint, taking money from the cash register, and fleeing, the two offenses merged; the assault conviction and sentence should have been set aside. Johnson v. Williams, 304 Ga. 771, 22 S.E.2d 264 (2018).

- After the defendant took two checks from the victim at knife point and, later, after defendant tied up the victim and left the victim in the bedroom, took the victim's keys and drove off in the victim's car, the motor vehicle theft was not a lesser included offense of the armed robbery. Fonseca v. State, 212 Ga. App. 463, 441 S.E.2d 912 (1994).

- There is no prohibition against a defendant's being convicted of both burglary and a completed criminal offense, such as armed robbery, after gaining entry into the dwelling, as each offense has distinct elements. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991).

Because defendant's one entry into the victim's house was committed with a dual intent to commit theft and aggravated assault, the trial court should not have imposed two separate sentences for the two burglary charges based on the two intents, and instead should have merged the burglary counts for sentencing. However, merger of an aggravated robbery charge was properly rejected. Ward v. State, 339 Ga. App. 621, 794 S.E.2d 246 (2016).

- When facts adduced to support the two counts are different, assault is not included within robbery. Harvey v. State, 233 Ga. 41, 209 S.E.2d 587 (1974); Dunbar v. State, 163 Ga. App. 243, 292 S.E.2d 897 (1982).

- Kidnapping was completed when defendant seized the women and forcibly moved them from one location in the store to another, and then defendant committed the armed robbery; accordingly, convictions for both offenses did not amount to two punishments for the same conduct, nor was one offense included in the other as a matter of fact. Phillips v. State, 259 Ga. App. 331, 577 S.E.2d 25 (2003).

Conviction for attempt to commit armed robbery did not merge with conviction for armed robbery since, although both offenses occurred at the same place and at the same time and under the same circumstances, the object of the offenses was different and the victims were different. Loumakis v. State, 179 Ga. App. 294, 346 S.E.2d 373 (1986).

- In considering whether two crimes merged as a matter of fact, the courts look to whether the crimes were established by proof of the same or less than all the facts required to establish the commission of another crime; since convictions for armed robbery and malice murder were both supported by the evidence, they did not merge as a matter of fact. Baines v. State, 276 Ga. 117, 575 S.E.2d 495 (2003).

- Defendant's indictment for armed robbery put defendant on notice that conviction of the lesser included offense of robbery by intimidation was possible. Mills v. State, 244 Ga. App. 28, 535 S.E.2d 1 (2000).

- Since the same evidence that was used to prove the armed robbery charges against defendant was also used to prove the theft by taking charges and the property in question was taken from the victims' possession in the same incident in a store and constituted a single crime, the theft by taking offenses were lesser included offenses of the armed robbery offenses as a matter of fact pursuant to O.C.G.A. § 16-1-6(1) and should have merged into those convictions for sentencing purposes. Phanamixay v. State, 260 Ga. App. 177, 581 S.E.2d 286 (2003).

- Trial court did not err in failing to merge the defendant's aggravated battery conviction into the defendant's armed robbery conviction because the taking of the victim's property was not a fact required to establish the aggravated battery offense, and depriving the victim of a member of the victim's body was not a fact required to establish the armed robbery offense; and, while the aggravated battery and armed robbery were based on the same criminal transaction, aggravated battery and armed robbery did not simply prohibit different degrees of injury or risk of injury; rather, the two crimes prohibited entirely different categories of injury - depriving the victim of a member of the victim's body versus depriving the victim of property. Epperson v. State, 340 Ga. App. 25, 796 S.E.2d 1 (2016).

- Since the evidence the state used to convict defendant of aggravated assault with intent to rob and possession of a firearm during the commission of that crime was also used to convict defendant of armed robbery, defendant could not be sentenced for all of the offenses, and, accordingly, the first two offenses merged into the armed robbery offense for sentencing purposes. Cutkelvin v. State, 258 Ga. App. 691, 574 S.E.2d 883 (2002).

Assault

Aggravated assault properly not merged with theft by taking.

- Trial court properly refused to merge an aggravated assault count with a theft by taking of a motor vehicle count and did not err in sentencing the defendant for both offenses because by choking the victim in a manner likely to have caused serious bodily injury, the defendant committed aggravated assault, and by taking the victim's car and driving away, the defendant committed the theft. As such, it was obvious that the offenses involved, although taking place at the same general time and location, were separate offenses in that each was established by proof of different facts and each offense was distinct as a matter of law; thus, obviating any possibility of one's inclusion in the other. Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882, cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).

Robbery by force and aggravated assault on a person over the age of 65 years have different elements and prohibit different conduct, and neither is included in the other as a matter of law. Manuel v. State, 245 Ga. App. 565, 538 S.E.2d 472 (2000).

- Criminal trespass is not a lesser included offense of aggravated assault as a matter of law, and, where the indictment for aggravated assault alleged that defendant committed an assault by shooting a deadly weapon "at, toward and in the direction of" the victim, the state was not required to prove that defendant interfered with the victim's property, and criminal trespass was the victim's property, and criminal trespass was not an included offense as a matter of fact. Robinson v. State, 217 Ga. App. 832, 459 S.E.2d 588 (1995).

- Because charges alleging aggravated assault did not amount to lesser-included offenses as a matter of fact of a charge of first-degree criminal damage to property, and the property offense was not a lesser-included offense of any aggravated assault offense, merger of the offenses was unwarranted. Louis v. State, 290 Ga. App. 106, 658 S.E.2d 897 (2008).

- Reckless conduct may become a lesser included offense of aggravated assault, not necessarily by the adding or subtracting of elements, but merely the substitution of another element for that of any formed general intent to commit the greater offense thereby resulting, in essence, in a finding of a lesser degree of culpability within the meaning of O.C.G.A. § 16-1-6. Brewton v. State, 216 Ga. App. 346, 454 S.E.2d 558 (1995), rev'd on other grounds, 266 Ga. 160, 465 S.E.2d 668 (1996); Idowu v. State, 233 Ga. App. 418, 504 S.E.2d 474 (1998).

Because the defendant drove the van and struck and injured the victim, the state charged the defendant with aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury, and because the offense of reckless conduct would not show a less culpable mental state than that which was required to establish the commission of aggravated assault as charged, a charge on reckless conduct was not warranted. Patterson v. State, 332 Ga. App. 221, 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491, 789 S.E.2d 175 (2016).

- Because the indictment alleged only one act, the shooting of the victim, and because the evidence showed only that defendant's actions were the result of a single act of firing a series of shots in quick succession at the victim, the convictions for aggravated assault merged into the aggravated battery. Brown v. State, 246 Ga. App. 60, 539 S.E.2d 545 (2000).

Trial court erred in failing to merge a defendant's offenses of aggravated battery under O.C.G.A. § 16-5-24(a) and aggravated assault under O.C.G.A. § 16-5-21(a), for sentencing purposes, because the assault was a lesser included offense of the battery offense under O.C.G.A. § 16-1-6(1), given the defendant's single attack on the victim with a golf club. Allen v. State, 302 Ga. App. 190, 690 S.E.2d 492 (2010).

Defendant's aggravated battery and aggravated assault convictions merged because the counts of the indictment were based on the same conduct of hitting the victim with a hammer, resulting in serious bodily injury to the victim's hand and one of the victim's fingers being rendered useless when the victim placed the victim's hands up in an attempt to protect the victim's head; the aggravated assault was a lesser included offense of the aggravated battery because the assault required proof of a less serious injury than the aggravated battery. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).

In an aggravated assault and aggravated battery case arising out of an incident in which the defendant twice, in quick succession, slashed the throat of the victim, the defendant's girlfriend, the trial court erred by failing to merge the defendant's convictions, and the court of appeals erroneously affirmed that decision because the record sufficiently established that the defendant's actions were part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent; and the offenses, which were based on the single criminal act of the defendant cutting the victim's throat with a knife, only differed with respect to the seriousness of the injury or risk of injury suffered by the victim. Regent v. State, 299 Ga. 172, 787 S.E.2d 217 (2016).

Because the aggravated assault charge was based on the single criminal act of the defendant throwing acid on the victim, and differed from the aggravated battery counts only with respect to the specificity of the injury or risk of injury the victim actually suffered, the aggravated assault was included in the aggravated battery and should have merged. Fordham v. State, 352 Ga. App. 520, 835 S.E.2d 360 (2019), cert. denied, No. S20C0442, 2020 Ga. LEXIS 392 (Ga. 2020).

- Crimes did not merge legally or factually because aggravated assault required proof that the defendant assaulted the victim using a deadly weapon, aggravated battery required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless, and kidnapping required asportation of the victim. The offenses were distinct with each requiring proof of a fact which the others did not. Reynolds v. State, 311 Ga. App. 119, 714 S.E.2d 621 (2011).

- Under the required evidence test, the defendant's convictions for aggravated assault and aggravated battery did not merge because the aggravated battery count required the state to prove that the defendant rendered a member of the victim's body useless, which the state did not have to prove for the conviction of aggravated assault with a deadly weapon; and aggravated assault with an offensive weapon required the state to prove that the defendant used a hammer, an object likely to result in serious bodily injury, which the state did not have to prove for the aggravated battery conviction. Howard v. State, 334 Ga. App. 229, 779 S.E.2d 5 (2015).

Trial court did not err in failing to merge Count Three, charging the defendant with aggravated assault with intent to murder, into the aggravated battery convictions because the count of aggravated assault with intent to murder required proof of a fact - the intent to kill - that the aggravated battery counts did not, and the aggravated battery counts required proof of a fact - the infant's skull was rendered useless and the infant's face was disfigured - that the aggravated assault with intent to murder count did not; thus, the trial court did not err in sentencing the defendant separately for aggravated assault with intent to murder, as well as two counts of aggravated battery. Busby v. State, 332 Ga. App. 646, 774 S.E.2d 717 (2015).

When the trial court merged the defendant's aggravated assault conviction into the defendant's armed robbery conviction, and then sentenced the defendant for armed robbery and aggravated battery, even if the trial court should have merged the defendant's aggravated battery and aggravated assault convictions, the end result would have been the same as the defendant would have been sentenced for aggravated battery rather than aggravated assault, given that the aggravated assault constituted the included offense; thus, any error by the trial court in failing to merge the defendant's aggravated battery and aggravated assault convictions was harmless and provided no basis for vacating the defendant's sentence. Epperson v. State, 340 Ga. App. 25, 796 S.E.2d 1 (2016).

- Trial court did not err by refusing to charge simple assault as a lesser included offense of aggravated assault in Count 4, alleging aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, was likely to and actually did result in serious bodily injury, as the defendant was either guilty of aggravated assault or not guilty at all because it was undisputed that the defendant hit the victim and pinned the victim against a mobile home while driving the van toward the victim from only about 20 feet away and that the defendant's action resulted in serious bodily injury to the victim. Patterson v. State, 332 Ga. App. 221, 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491, 789 S.E.2d 175 (2016).

- Trial court should have merged the defendant's convictions for aggravated assault and simple battery, a lesser included offense, because the two offenses only differed with respect to the risk of, or seriousness of, injury to the victim. Hicks v. State, 337 Ga. App. 567, 788 S.E.2d 502 (2016).

- Crimes did not merge legally or factually because aggravated assault required proof that the defendant assaulted the victim using a deadly weapon, aggravated battery required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless, and kidnapping required asportation of the victim. The offenses were distinct with each requiring proof of a fact which the others did not. Reynolds v. State, 311 Ga. App. 119, 714 S.E.2d 621 (2011).

- Where jury was authorized to decide defendant's fist and hands were not used as deadly weapons as required for aggravated assault, there was no error in charging on simple battery, which was here a lesser included offense of aggravated assault. Guevara v. State, 151 Ga. App. 444, 260 S.E.2d 491 (1979).

Evidence that defendant did not use a pistol in a deadly fashion in striking the victim supported a conviction of simple battery as a lesser included offense of aggravated assault Fulton v. State, 232 Ga. App. 898, 503 S.E.2d 54 (1998).

Defendant failed to show error in refusing to merge offenses because defendant failed to show that aggravated assault was established by the same facts used to prove simple battery; evidence that defendant: (1) entered a store wearing a mask; (2) opened the cash drawer; (3) tried to wrangle a key to the drawer from the employee's hand; (4) demanded money; (5) banged on the register; and (6) appeared to have had a gun supported the aggravated assault conviction, but none of this evidence was needed to prove simple battery, which was established by evidence of defendant's bruising blows to the employee's arm. Lawson v. State, 275 Ga. App. 334, 620 S.E.2d 600 (2005).

- Trial court erred in failing to merge the defendant's convictions for four counts of obstruction of a police officer into the convictions for four counts of aggravated assault on a police officer because each count of the crime of obstruction was established by proof of the same or less than all the facts required to establish each count of the crime of aggravated assault; the state conceded that the trial court erred in failing to merge the convictions for obstruction into the convictions for aggravated assault on a police officer. Dobbs v. State, 302 Ga. App. 628, 691 S.E.2d 387 (2010).

- The offense of terroristic threats was included in the offense of aggravated assault with a deadly weapon as a matter of fact since from the evidence the jury would have been authorized to find either that defendant used a gun to place the victim in reasonable apprehension of immediately receiving a violent injury or that defendant threatened to commit a crime of violence with the purpose of terrorizing the victim. Messick v. State, 209 Ga. App. 459, 433 S.E.2d 595 (1993).

Contrary to the defendant's claim, the convictions for terroristic threats and aggravated assault should not have merged as aggravated assault required proof of an assault with a knife, while terroristic threats required proof that the defendant threatened to murder the victims; each crime requiring the state to prove at least one fact different from the other. Petro v. State, 327 Ga. App. 254, 758 S.E.2d 152 (2014).

- Defendant's aggravated assault and possession of a destructive device convictions did not merge because the possession offense required that the weapon function in a certain way and have certain dimensions, and the assault offense required that the victim was conscious of the risk of immediately receiving a violent injury by use of an offensive weapon. Because each offense required proof of a fact not required for the other, there was no merger under the required evidence test. Mason v. State, 312 Ga. App. 723, 719 S.E.2d 581 (2011).

- Under the required evidence test, defendant's conviction for battery did not merge into the defendant's conviction for aggravated assault with an offensive weapon. Gipson v. State, 332 Ga. App. 309, 772 S.E.2d 402 (2015).

- Under the required evidence test, the defendant's two aggravated assault convictions did not merge because the assault with intent to murder count required the state to prove that the defendant intended to kill the victim, which the state was not required to prove for the charge of aggravated assault with a deadly weapon; and the aggravated assault with a deadly weapon count required the state to prove that the defendant used a deadly weapon, a knife, box-cutter, or other sharp-edged instrument, which the state did not have to prove for the conviction of aggravated assault with intent to murder. Howard v. State, 334 Ga. App. 229, 779 S.E.2d 5 (2015).

- Defendant was not entitled to a jury instruction on terroristic threats as a lesser included offense of aggravated assault because terroristic threats was not a lesser included offense of aggravated assault. Soto v. State, 303 Ga. 517, 813 S.E.2d 343 (2018).

Controlled Substances

Illegal possession not included in illegal sale as matter of law.

- As a matter of law, crime of illegal possession of heroin is not included in crime of illegal sale of heroin for purposes of double jeopardy and multiple prosecution. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975).

- If evidence required to convict of illegal sale of controlled substance is the only evidence showing possession, illegal possession is included in crime of illegal sale as a matter of fact. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441 (1975).

- Because no evidence showed that the information concerning the defendant was known to the proper prosecuting officer in Gwinnett County, and because no basis otherwise existed for a charge of conspiracy to traffic based on what officers recovered in the search of the defendant's home, the appeals court refused to state that the defendant could have been convicted of conspiracy to traffic methamphetamine in Gwinnett County, or that Gwinnett County should have charged the defendant with this crime; hence, under these circumstances, the Dawson County indictment was not barred under O.C.G.A. §§ 16-1-6(b)(1) and16-1-7(b). Bradford v. State, 283 Ga. App. 75, 640 S.E.2d 630 (2006).

- Defendant may be prosecuted, convicted, and separately sentenced for the simultaneous possession of each of the controlled substances listed in Schedule II of the Controlled Substances Act. Tabb v. State, 250 Ga. 317, 297 S.E.2d 227 (1982).

Offense of unlawfully selling a noncontrolled substance while representing the substance to be a controlled substance (O.C.G.A. § 16-13-30.1) is not included in the offense of conspiracy to sell or distribute cocaine (O.C.G.A. § 16-13-30). Smith v. State, 202 Ga. App. 664, 415 S.E.2d 481 (1992).

- Offenses of possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses, as a matter of fact, of the trafficking offense since proof of the two possession offenses was established by "the same or less than all the facts" required to establish the distribution offense; thus, it was error to convict the defendant of all three offenses. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993).

- Possession of marijuana is not a necessary element of the crime of knowingly manufacturing marijuana by cultivating or planting, and so misdemeanor possession is not a lesser offense included in the crime of manufacturing as a matter of law. Galbreath v. State, 213 Ga. App. 80, 443 S.E.2d 664 (1994); Hunt v. State, 222 Ga. App. 66, 473 S.E.2d 157 (1996).

- Offense of possession of marijuana was included in the offense of possession of marijuana with intent to distribute, where the possession charge could be established by proof of a less culpable mental state (general criminal intent) than was required to establish the commission of possession with intent to distribute (specific criminal intent to distribute). Talley v. State, 200 Ga. App. 442, 408 S.E.2d 463 (1991).

- Because defendant was indicted for possession of more than 28 grams of methamphetamine, a violation of O.C.G.A. § 16-13-31, defendant had sufficient notice that the lesser included offense of possession with intent to distribute, a violation of O.C.G.A. § 16-13-30(b), might be submitted to the jury if the evidence warranted it; consequently, by charging the lesser offense in accordance with O.C.G.A. § 16-1-6, the trial court did not permit the jury to convict defendant in a manner not alleged in the indictment in violation of defendant's due process rights. Rupnik v. State, 273 Ga. App. 34, 614 S.E.2d 153 (2005).

Possession of drug-related objects conviction merged as a matter of fact into defendant's felony conviction for possession of cocaine. Reddick v. State, 249 Ga. App. 678, 549 S.E.2d 151, cert. denied, No. S01C1352, 2001 Ga. LEXIS 802 (Oct. 1, 2001).

Solicitation is not a lesser included offense of trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e), as the facts necessary to prove each offense are different. Dimas v. State, 276 Ga. App. 245, 622 S.E.2d 914 (2005).

- Because both the trafficking and manufacturing charges against defendants arose from methamphetamine found in a cooler, no other quantity of methamphetamine was presented at trial, and there was no separate quantity of methamphetamine used to prove the trafficking charge, defendants were entitled to resentencing because the convictions merged and the trial court erred in sentencing for both offenses. Goldsby v. State, 273 Ga. App. 523, 615 S.E.2d 592 (2005).

- Trial court did not err under O.C.G.A. §§ 16-1-6(2) and16-1-7(a)(1) by sentencing the defendant separately for trafficking in methamphetamine, in violation of O.C.G.A. § 16-13-31, and trafficking in ecstasy, in violation of O.C.G.A. § 16-13-31.1, when the substance which was found in the defendant's vehicle tested positive for both methamphetamine and ecstasy as there was no evidence that chemical compounds or elements were shared between the drugs. Ahmad v. State, 312 Ga. App. 703, 719 S.E.2d 563 (2011).

Offenses of kidnapping and aggravated assault with intent to rape were not included in each other in law or in fact. Strozier v. State, 171 Ga. App. 703, 320 S.E.2d 764 (1984); Isaacs v. State, 213 Ga. App. 379, 444 S.E.2d 409 (1994).

- Because elements of crime of aggravated assault must have been proved in order to sustain conviction for crime of kidnapping with bodily injury, aggravated assault is an included offense of crime of kidnapping with bodily injury. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981).

- Aggravated assault, with intent to rob as the factor in aggravation, is not a lesser included offense of kidnapping with bodily injury. Brown v. State, 232 Ga. App. 787, 504 S.E.2d 452 (1998).

When one offense is established by the same but less than all of the facts required to establish another offense, the first merges into the second as a matter of fact; aggravated assault is a lesser included offense of, and merges with, the crime of kidnapping with bodily injury, and a trial court erred by failing to merge defendant's aggravated assault conviction into defendant's kidnapping with bodily injury conviction. Bailey v. State, 269 Ga. App. 262, 603 S.E.2d 786 (2004).

Trial court did not err in denying defendant's motion to correct an illegal sentence, pursuant to O.C.G.A. §§ 16-1-6 and16-1-7, as defendant's convictions for aggravated assault and kidnapping, in violation of O.C.G.A. §§ 16-5-21 and16-5-40(a), respectively, did not merge as a matter of law, as only aggravated assault and kidnapping with bodily injury merged as a matter of law; further, the crimes did not merge as a matter of fact, as they were based on separate and distinct facts, and due to the timing of defendant's actions during the incident, the separate convictions were proper. Walker v. State, 275 Ga. App. 862, 622 S.E.2d 64 (2005).

Kidnapping, aggravated assault, and rape were separate offenses, completed individually, and did not merge as a matter of fact; thus, the trial court did not err in refusing to merge the kidnapping counts into the aggravated assault and rape counts for purposes of sentencing. Dasher v. State, 281 Ga. App. 326, 636 S.E.2d 83 (2006).

Because there was independent evidence to support each of the offenses as indicted, a defendant's aggravated assault conviction did not merge as a matter of fact with either the aggravated battery or kidnapping with bodily injury convictions. Pitts v. State, 287 Ga. App. 540, 652 S.E.2d 181 (2007).

Trial court did not err in declining to merge kidnapping counts with aggravated assault counts because the aggravated assault involved different conduct from the kidnapping and was completed prior thereto and, thus, the same conduct did not establish the commission of both offenses; even if the kidnapping counts involved the same conduct as the aggravated assault, neither was included in the other after application of the "required evidence" test. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).

- Kidnapping and aggravated sodomy are not included in offenses as a matter of law and, even though they may be included as a matter of fact, where the same evidence was not used to prove both crimes, the trial court did not err by refusing to find a merger. Hardy v. State, 210 Ga. App. 811, 437 S.E.2d 790 (1993).

- Offenses of armed robbery and kidnapping with bodily injury did not merge as a matter of fact or law, where the robbery and kidnapping were completed before the victim was shot in the leg, and the evidence of neither offense was necessary to prove the other. Solomon v. State, 195 Ga. App. 882, 395 S.E.2d 335 (1990).

- State established all the necessary elements of kidnapping with bodily injury upon showing that defendant grabbed victim's arm, forced the victim to the rear of the store, and then struck the victim in the face. The offense of aggravated battery was shown by the evidence of defendant's subsequent banging of victim's head against a concrete floor and choking of the victim. Robinson v. State, 210 Ga. App. 175, 435 S.E.2d 466 (1993).

- In a prosecution for kidnapping with bodily injury and battery, use of the same evidence to prove that defendant perpetrated battery as proof of the offense of kidnapping with bodily injury required reversal of defendant's conviction and sentence for battery. Holmes v. State, 229 Ga. App. 671, 494 S.E.2d 560 (1998).

- See Bailey v. State, 146 Ga. App. 774, 247 S.E.2d 588 (1978).

- After the defendant had been convicted of kidnapping with bodily injury, subsequent charges of false imprisonment, arising out of the same set of facts, were barred by former jeopardy under the "required evidence test" because false imprisonment was a lesser included offense of kidnapping with bodily injury. Sallie v. State, 216 Ga. App. 502, 455 S.E.2d 315 (1995).

Trial court did not err in allowing the jury to consider the lesser included offense of false imprisonment after granting a directed verdict on the kidnapping charges against the defendant because false imprisonment was a lesser included offense of kidnapping, and the indictment against the defendant contained all the essential elements related to false imprisonment. Martinez v. State, 318 Ga. App. 254, 735 S.E.2d 785 (2012).

- Once the state tried and convicted petitioner for kidnapping, it would be barred from prosecuting the petitioner for felony murder only if underlying felony upon which that prosecution was based was that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Malice murder and kidnapping are not same offense for double jeopardy purposes even though they involve same transaction and considerably overlap each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

- Evidence of murder of a given victim can be used as basis for separate conviction of murder count and also as basis for conviction of kidnapping with bodily injury to same victim. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981).

Murder and kidnapping with bodily injury are not included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Murder and kidnapping with bodily injury not included as a matter of fact under former Code 1933, § 26-505(1) since these crimes have distinct elements. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

When the defendant was convicted for murder and kidnapping with bodily injury of the same victim, the bodily injury alleged was the killing of the victim. As a matter of fact, as well as a matter of law, the murder and kidnapping with bodily injury were not included offenses so as to bar the defendant from being prosecuted and subsequently convicted of both crimes. Neither crime could have been established by proof of the same or less than all of facts required to establish commission of crime charged. The murder required finding of malice aforethought, but the kidnapping required no such finding. The kidnapping required a finding of unlawful abduction, while such a finding is not necessary for conviction for murder. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981).

- When the evidence used to establish the offense of kidnapping with bodily injury was the asportation of the victim and the bite marks, bumps, and bruises suffered by the victim when the victim was pushed inside the apartment and prevented from leaving and the offenses of rape and sodomy were proved by testimony concerning subsequent events, the facts used to prove the crimes of rape and sodomy were different from those used to show the essential elements of kidnapping with bodily injury; therefore, the offenses did not merge. Peterson v. State, 212 Ga. App. 31, 441 S.E.2d 267 (1994).

- Double jeopardy attached where the state sought to prosecute defendant for rape and sodomy in one county based upon the same facts, upon the same actual evidence, which was used to convict defendant for kidnapping with bodily injury in another county. State v. Sallie, 206 Ga. App. 732, 427 S.E.2d 11 (1992).

Because the proof establishing the crime of rape did not use up the proof establishing the crime of kidnapping with bodily injury, the crimes did not merge; accordingly, the trial court did not err by refusing to merge two of defendant's kidnapping with bodily injury convictions with two of defendant's rape convictions. Collins v. State, 267 Ga. App. 784, 600 S.E.2d 802 (2004).

- In a criminal trial, the offenses of kidnapping with bodily harm and rape were not merged where under the facts neither offense was included in the other as a matter of fact nor as a matter of law. Turner v. State, 194 Ga. App. 878, 392 S.E.2d 256 (1990).

- Since neither the crime of kidnapping nor rape were included in the other as a matter of fact, the court did not err by sentencing defendant for both offenses. Dawson v. State, 203 Ga. App. 146, 416 S.E.2d 125, cert. denied, 203 Ga. App. 905, 416 S.E.2d 125 (1992).

Kidnapping is not included in crime of robbery as a matter of law. Chambley v. State, 163 Ga. App. 502, 295 S.E.2d 166 (1982).

- After the victim testified that defendants grabbed the victim outside of the restaurant, forced the victim into and through the restaurant and the victim did not willingly accompany the defendants, and that the robbery was effectuated once defendants were inside the restaurant, the offenses of robbery by force and kidnapping with bodily injury were not merged as a matter of fact. Powell v. State, 210 Ga. App. 409, 437 S.E.2d 598 (1993).

Aggravated assault with intent to commit murder and with a deadly weapon may be charged as lesser included offenses of murder. Hall v. State, 163 Ga. App. 515, 295 S.E.2d 194 (1982).

- Aggravated assault conviction merged into a criminal attempt to commit murder conviction, where both counts were based on allegations that defendant had stabbed the victim with a knife. Kelley v. State, 201 Ga. App. 343, 411 S.E.2d 276 (1991).

- Where evidence used to prove that defendant perpetrated the aggravated assault of decedent - that defendant fired a deadly weapon and wounded the victim - was used to establish that defendant had committed malice murder, convictions for both aggravated assault and murder violated double jeopardy. Montes v. State, 262 Ga. 473, 421 S.E.2d 710 (1992).

Codefendant's conviction for aggravated assault had to be vacated because that conviction merged as a matter of fact into the conviction for malice murder since the medical examiner who performed the autopsy of the victim testified that the cause of death was "gunshot wounds," did not identify any injury as the fatal shot, acknowledged the examiner could not testify as to the order in which the bullets entered the victim's body, and stated no single wound would have instantly stopped the victim; in the absence of evidence that one wound was fatal and was preceded by a "deliberate interval" in the series of shots fired and by the infliction of non-fatal wounds, there was no evidence to support the infliction of an aggravated assault separate and apart from the malice murder. Coleman v. State, 286 Ga. 291, 687 S.E.2d 427 (2009).

Defendant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim's wounds as "chop injuries" that fractured the victim's skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012).

- When the evidence did not support a conviction for aggravated assault that was independent of acts that caused the victim's death, conviction of the defendant for aggravated assault merged with the defendant's conviction for malice murder. Fetty v. State, 268 Ga. 365, 489 S.E.2d 813 (1997).

Although the evidence was sufficient to find defendant guilty of malice murder, because the aggravated assault was not independent of the act that caused the victim's death, the aggravated assault charge was included in the murder conviction. Evans v. State, 275 Ga. 672, 571 S.E.2d 780 (2002).

Defendant's conviction and sentence for aggravated assault was vacated as the malice murder and the aggravated assault charges merged as a matter of fact, because the same evidence to prove aggravated assault as indicted, stabbing the victim with a knife, was used to prove malice murder. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005).

Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790, 671 S.E.2d 815 (2009).

Armed robbery is not a lesser included offense of malice murder as a matter of law. Addison v. State, 239 Ga. 622, 238 S.E.2d 411 (1977); Chafin v. State, 246 Ga. 709, 273 S.E.2d 147 (1980). (But see Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975)).

When the evidence showed the defendant was one of three perpetrators contemplating both murder and armed robbery when the perpetrators embarked on the criminal venture, defendant was a knowing participant in both crimes, and a pistol subsequently found in defendant's possession was property taken from the victim which formed the basis for the armed robbery charge, the armed robbery was not a lesser included offense of malice murder. Lemay v. State, 264 Ga. 263, 443 S.E.2d 274 (1994).

- When the defendant is charged with armed robbery of a murder victim, proof of the armed robbery is essential to support the defendant's conviction of malice murder and is an included offense. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).

- Charges of burglary based on defendant's intent to commit aggravated assault on the occupant of the entered dwelling and murder for death of the occupant during burglary were neither legally incompatible nor lesser included offenses of each other. Williams v. State, 250 Ga. 553, 300 S.E.2d 301 (1983), overruled on other grounds by Venturino v. State, 830 S.E.2d 110, 2019 Ga. LEXIS 435 (Ga. 2019), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1356 (1983).

When the defendant is found guilty of felony murder, the underlying felony is a lesser included offense. Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Additional felony murder charge predicated on burglary cannot be construed as a lesser-included offense of felony murder predicated on aggravated assault or of malice murder under O.C.G.A. § 16-1-6. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).

- Conviction of possession of a firearm by a convicted felon merged with the conviction of felony murder, as the underlying felony was possession of a firearm by a convicted felon, such that defendant's conviction and sentence on the possession charge were vacated. Garrett v. State, 263 Ga. 131, 429 S.E.2d 515 (1993).

Conviction for possession of a firearm by a convicted felon required vacating, as that crime was specified as underlying the felony murder charge in the indictment and in the court's instructions to the jury. Dennis v. State, 263 Ga. 257, 430 S.E.2d 742 (1993).

Underlying felony is a lesser included offense of felony murder under O.C.G.A. § 16-1-6 and conviction of both offenses is proscribed under provisions of O.C.G.A. § 16-1-7. Woods v. State, 233 Ga. 495, 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975); Jowers v. State, 259 Ga. 401, 382 S.E.2d 595 (1989).

As felony murder is defined under Georgia law, the underlying felony is a lesser included offense of felony murder and thus the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Robbery by force and malice murder were separate crimes which did not merge as a matter of law. Hill v. State, 274 Ga. 591, 555 S.E.2d 696 (2001).

- When proof of the armed robbery is essential to the conviction for felony murder, the armed robbery is a lesser included offense in the felony murder. Sanborn v. State, 251 Ga. 169, 304 S.E.2d 377 (1983).

- Since the defendant used a pistol in two different ways to inflict separate and distinct wounds on the victim, and the acts giving rise to the two crimes were separated by intervening events, the crime of aggravated assault was not established by the same but by less than all the facts required to establish the crime of felony murder, and the trial court did not err in refusing to merge the aggravated assault conviction. Garrett v. State, 263 Ga. 131, 429 S.E.2d 515 (1993).

In a prosecution on separate counts of malice murder, armed robbery, and kidnapping, the trial court did not err in failing to charge the jury on felony murder as a lesser included offense. Henry v. State, 265 Ga. 732, 462 S.E.2d 737 (1995).

Murder is not a lesser included offense under crime of possession of firearm during commission of felony. Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, cert. denied, 459 U.S. 1092, 103 S. Ct. 580, 74 L. Ed. 2d 940 (1982).

Voluntary manslaughter is a lesser included offense of felony murder. Young v. State, 141 Ga. App. 261, 233 S.E.2d 221 (1977).

Voluntary manslaughter is a lesser included offense of felony murder, because an act done in passion involves a less culpable mental state than that of real or imputed malice which is the foundation of the felony murder rule. Therefore, where facts warrant it, a charge on voluntary manslaughter may indeed be given in a felony murder trial. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977).

- Trial court erred in failing to merge both defendants' convictions for voluntary manslaughter and aggravated assault with a deadly weapon because the indictments charged the defendants with felony murder by alleging that the defendants committed aggravated assault, but the court then charged the defendants with aggravated assault based on the exact same conduct; and, although the jury convicted the defendants of voluntary manslaughter as a lesser-included offense of felony murder, the court, nevertheless, followed the defendants' convictions for aggravated assault merged as a matter of fact into the defendants convictions for voluntary manslaughter. Hamlette v. State (two cases), 353 Ga. App. 640, 839 S.E.2d 161 (2020).

- Defendant indicted in two counts, one for malice murder and the other for the armed robbery of the deceased at the same time, is on notice that defendant may be found guilty of felony murder, armed robbery being the felony. But a defendant indicted only for malice murder cannot be convicted of felony murder unless the defendant has been put on notice of the felony by the facts alleged to show how the murder was committed. McCrary v. State, 252 Ga. 521, 314 S.E.2d 662 (1984).

An accused may be convicted of an offense included in the underlying felony charged in a felony-murder indictment; if the evidence would authorize a finding that the accused committed an offense included in the underlying felony charged in a felony murder indictment, and if that included offense was a misdemeanor, then a guilty verdict as to felony-grade involuntary manslaughter would be authorized. Motes v. State, 192 Ga. App. 302, 384 S.E.2d 463 (1989).

- Indictment charging the defendant with involuntary manslaughter by the commission of the unlawful act of simple battery in violation of O.C.G.A. §§ 16-5-3(a) and16-5-23(a) was not void because the factual allegations in the indictment sufficiently described the offense of involuntary manslaughter in the commission of the unlawful act of simple battery. Morris v. State, 310 Ga. App. 126, 712 S.E.2d 130 (2011).

- Defendant's convictions for both aggravated battery and malice murder were prohibited by O.C.G.A. § 16-1-6(2) because the victim's death was caused by the same actions that caused the victim's murder; because the only difference between the offenses was that the former required a lesser injury, the defendant could not be convicted of both. Ledford v. State, 289 Ga. 70, 709 S.E.2d 239, cert. denied, 565 U.S. 1017, 132 S. Ct. 556, 181 L. Ed. 2d 401 (2011), overruled on other grounds by Willis v. State, 394 Ga. 686, 820 S.E.2d 640 (2018).

Evidence of a three-year-old child's injuries and death was sufficient to support the defendant's conviction for malice murder, felony murder, aggravated assault, and aggravated battery; however, the defendant's conviction for aggravated battery based on the fracture of the child's ribs should have been merged into the defendant's conviction for murder under O.C.G.A. § 16-1-6(b). Soilberry v. State, 289 Ga. 770, 716 S.E.2d 162 (2011).

- Most reasonable understanding of the conviction for lesser included offenses statute as applied to attempted murder and aggravated battery is that the aggravated battery merges into the greater offense of attempted murder when the crimes are predicated upon the same conduct. The Georgia Supreme Court overrules Hernandez v. State, 317 Ga. App. 845 (2012), Zamudio v. State, 332 Ga. App. 37 (2015), and Dobbs v. State, 2020 Ga. App. Lexis 279 (2020), to the extent that those cases hold otherwise. Priester v. State, Ga. , 845 S.E.2d 683 (2020).

- Trial court erred in failing to merge the offense of family violence aggravated battery with attempted murder as both convictions were established by the same conduct. Hernandez v. State, 317 Ga. App. 845, 733 S.E.2d 30 (2012).

- Trial court erred in merging the conviction that required the greater injury, aggravated battery, into the conviction that required the lesser injury, attempted murder. Zamudio v. State, 332 Ga. App. 37, 771 S.E.2d 733 (2015).

- Conspiracy to commit the two alleged injuries to one victim and the victim's property did not require proof of causing a second victim's death, and proof of causing the second victim's death as a result of aggravated assault did not require proof of acts for which the defendant was found guilty in two counts; thus, that portion of the sentencing order whereby the trial court merged the convictions on those counts had to be vacated. Grissom v. State, 296 Ga. 406, 768 S.E.2d 494 (2015).

Crime of adultery is not a lesser offense included in crime of rape, because in order to prove adultery, additional fact of marriage must be shown. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

When evidence of aggravated assault was unnecessary to prove rape both crimes were properly submitted. Hughes v. State, 239 Ga. 393, 236 S.E.2d 829 (1977).

Where there was evidence presented that more than one assault took place prior to and during a rape, the jury was authorized to conclude that at least one of the assaults was gratuitous and unconnected with the rape offense; the defendant could be convicted of both rape and aggravated assault. Sylvester v. State, 168 Ga. App. 718, 310 S.E.2d 284 (1983).

- When, after completing the act of forcible intercourse (rape), defendant drew a gun again, pulled back the hammer, and threatened to shoot both victims if they did not obey defendant's further commands, this second drawing of the deadly weapon was subsequent to, and separate from, the completed offense of rape against the first victim; thus, the evidence regarding the use of force during the incident was not "used up" in the offense of rape, and defendant could properly be convicted of aggravated assault. Ellis v. State, 181 Ga. App. 826, 354 S.E.2d 15 (1987).

When aggravated assaults constituted gratuitous physical violence which was distinguished from the forced sex acts, and occurred in different locations in the house and to different parts of the victim's body than the sex crimes, there was no factual merger of the offenses of aggravated assault and of rape and aggravated sodomy. Taylor v. State, 202 Ga. App. 671, 415 S.E.2d 483 (1992).

Incest may be an included offense of statutory rape under appropriate facts. McCranie v. State, 157 Ga. App. 110, 276 S.E.2d 263 (1981), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

- Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 in failing to argue at trial and on appeal that the inmate's statutory rape and incest convictions should have merged into the inmate's rape conviction as a matter of fact since all of the crimes arose out of the same incident, as the crimes of statutory rape and incest were not established by proof of the same or less than all the facts required to establish the crime of rape; the inmate's convictions of statutory rape under O.C.G.A. § 16-6-3 and incest under O.C.G.A. § 16-6-22 were not included pursuant to O.C.G.A. § 16-1-6(1) in the rape conviction under O.C.G.A. § 16-6-1, as statutory rape, which required evidence as to the victim's age and that the victim was not the inmate's spouse, and incest, which required proof of the victim's relation to the inmate, had elements not required for rape. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

- Trial court did not err in failing to instruct the jury that statutory rape was a lesser included offense of forcible rape because a conviction of statutory rape required proof that the victim was under the age of consent, while a conviction of rape required proof of force, regardless of the victim's age. Stuart v. State, 318 Ga. App. 839, 734 S.E.2d 814 (2012).

- Offense of rape includes the lesser offense of assault with intent to rape. Padgett v. State, 205 Ga. App. 576, 423 S.E.2d 411 (1992).

- There was no merger of offenses as a result of defendant's conviction of simple assault and aggravated assault with the intent to rape, where there was sufficient evidence of two separate assaults, the simple assault having been a sequential reaction to the victim's resistance to the charged sexual assault. Watson v. State, 178 Ga. App. 778, 344 S.E.2d 667 (1986).

- Defendant's conviction for aggravated assault with intent to rape under O.C.G.A. § 16-5-21(a)(1) merged into the defendant's conviction for attempted rape under O.C.G.A. §§ 16-4-1 (criminal attempt) and16-6-1 (rape) because the same evidence supported both convictions and, therefore, the aggravated assault conviction was vacated. Smith v. State, 313 Ga. App. 170, 721 S.E.2d 165 (2011).

- Simple battery merged into the defendant's rape conviction as a matter of fact, since the same impermissible touching - the hitting and slapping which constituted simple battery - also supplied the element of force necessary for conviction of rape, thereby requiring reversal of the simple battery conviction. Johnson v. State, 195 Ga. App. 723, 394 S.E.2d 586 (1990).

- Defendant's rape and incest convictions did not merge because each crime required proof of an additional fact that the other did not because, to establish the crime of rape, the state had to prove that the defendant lacked consent, which was not an element of incest; and, to establish the crime of incest, the state had to prove that the victim was of a certain relation to the defendant, which was not an element of rape; thus, the trial court did not err in sentencing the defendant for both rape and incest. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).

- When the defendant cannot be guilty of charge of rape without also being guilty of the burglary of which the defendant has been tried and acquitted, as an essential element of burglary is an intent to commit a felony, specified in the indictment as rape, the defendant cannot be put in jeopardy for purpose of again adjudicating an issue which has already been determined in the defendant's favor. State v. Lamb, 147 Ga. App. 435, 249 S.E.2d 150 (1978).

Child Molestation

Aggravated child molestation and rape.

- Entering separate convictions and sentences for aggravated child molestation and rape was error where the evidence established that the injuries sustained by the victim as a result of the rape were the same injuries as those alleged as the basis for the charge of aggravated child molestation. Caldwell v. State, 263 Ga. 560, 436 S.E.2d 488 (1993).

Where the forcible rape was both the act and the cause-in-fact of the injuries that formed the basis for the aggravated child molestation, the proof of one necessarily proved the other and, while it was proper to prosecute defendant for both rape and aggravated child molestation, defendant should have been convicted and sentenced only for the rape. Donaldson v. State, 244 Ga. App. 89, 534 S.E.2d 839 (2000).

Because defendant's aggravated child molestation and rape convictions were based on separate and distinct sexual acts and different conduct, those convictions could not have been included offenses under O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, defendant's pro se motion to vacate the sentence as void was properly denied. Reed v. State, 297 Ga. App. 850, 678 S.E.2d 560 (2009).

- Juvenile court was authorized to adjudicate juvenile delinquent for aggravated battery with intent to rape upon evidence showing that the juvenile removed the victim's t-shirt and bra against her will; cruelty to children offense was supported by evidence showing that the victim after the fact was scared, crying, shaking, and subject to hives causing her to withdraw from school; and the sexual battery offense was supported by evidence that the juvenile touched the victim's breasts and vaginal area after striking her in the face, forcing her onto her back on the sofa. In the Interest of J.C., 255 Ga. App. 471, 566 S.E.2d 39 (2002).

- In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and16-1-7. Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408, 825 S.E.2d 909 (2019).

Aggravated sodomy did not merge into the offense of child molestation, where one of the offenses was established by proof of the same or less than all the facts required to prove the other. LeGallienne v. State, 180 Ga. App. 108, 348 S.E.2d 471 (1986).

Evidence demonstrated that defendant's convictions of aggravated sodomy and aggravated child molestation were supported by separate facts because the victim testified to several separate sexual acts; thus, the evidence authorized the jury to find that more than one instance of sodomy and molestation occurred, permitting a conviction for each offense based on separate occasions, the crimes did not merge, and the trial court was correct in sentencing defendant on each count. Henry v. State, 274 Ga. App. 139, 616 S.E.2d 883 (2005).

Child molestation and aggravated sexual battery did not merge where the child molestation conviction was supported by evidence that the defendant fondled the victim's breasts and the exterior of her vagina on numerous occasions, and the aggravated sexual battery conviction was based on evidence that defendant penetrated the victim's vagina with defendant's finger. Seidenfaden v. State, 249 Ga. App. 314, 547 S.E.2d 578 (2001).

Trial court did not err in refusing to merge defendant's offenses of child molestation and aggravated sexual battery, as defendant's conviction of aggravated sexual battery was supported by evidence that defendant penetrated the victim's vagina with defendant's fingers, and defendant's conviction of child molestation was supported by evidence that he also touched her down in between the victim's legs; thus, the convictions were supported by separate facts, and there was no merger. Childers v. State, 257 Ga. App. 377, 571 S.E.2d 420 (2002).

Trial court did not err in sentencing defendant on defendant's convictions for aggravated sexual battery and child molestation by not merging the aggravated sexual battery offense into the child molestation offense involving the same victim; the state proved that the offenses involved separate acts, and, thus, merger of those offenses would not have been appropriate. Aaron v. State, 275 Ga. App. 269, 620 S.E.2d 499 (2005).

Because a defendant's convictions for aggravated sexual battery and child molestation were both based on the defendant's touching of the victim's genital area in connection with the penetration of her vagina with a finger, the offenses merged under O.C.G.A. § 16-1-6(1). Davenport v. State, 277 Ga. App. 758, 627 S.E.2d 133 (2006).

Trial court properly refused to merge, for sentencing purposes, defendant's convictions for aggravated sexual battery and child molestation since the charged offense of aggravated sexual battery required proof of penetration, whereas the charged offense of child molestation did not. As a result, the separate acts were neither factually nor legally contained in the other respective count and, therefore, the offenses did not merge. Daniel v. State, 292 Ga. App. 560, 665 S.E.2d 696, cert. denied, No. S08C1931, 2008 Ga. LEXIS 891 (Ga. 2008).

Defendant's child molestation conviction under O.C.G.A. § 16-6-4(a) did not merge under O.C.G.A. §§ 16-1-6(1) and16-1-7(a) into the defendant's aggravated sexual battery conviction under O.C.G.A. § 16-6-22.2 as the child molestation charge required proof that the defendant committed an immoral and indecent act with the intent to arouse and satisfy the defendant's sexual desires, whereas the aggravated sexual battery charge did not, and the aggravated sexual battery charge required proof of penetration, whereas the child molestation charge did not. Gaston v. State, 317 Ga. App. 645, 731 S.E.2d 79 (2012).

- Trial court did not err in entering separate sentences for the offenses of aggravated child molestation and child molestation, where the indictment charged defendant with separate and different sexual acts, and the act which constituted the offense of aggravated child molestation was proved without any reference to the acts which constituted the offenses of child molestation. Sweet v. State, 196 Ga. App. 451, 396 S.E.2d 82 (1990).

Two crimes of aggravated child molestation and child molestation did not merge when different evidence could be used to prove each offense separately. Brewer v. State, 251 Ga. App. 77, 553 S.E.2d 363 (2001)(Unpublished).

- Trial court did not err in failing to merge the defendant's convictions for child molestation, O.C.G.A. § 16-6-4(a), and cruelty to children, O.C.G.A. § 16-5-70, because each crime required proof of at least one additional element that the other did not, and thus, even if the same conduct established the commission of both child molestation and cruelty to children, the two crimes did not merge; cruelty to children, but not child molestation, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b), and in contrast, child molestation, but not cruelty to children, requires proof that the victim was under 16 years of age and that the defendant performed an immoral or indecent act upon or in the presence of the child for the purpose of arousing or satisfying the defendant's or the child's sexual desires, O.C.G.A. § 16-6-4(a). Chandler v. State, 309 Ga. App. 611, 710 S.E.2d 826 (2011).

- Conviction of child molestation did not merge into the offense of rape, where the evidence showed that the jury was authorized to find that defendant fondled the victim and, in an entirely separate incident later that evening, raped the victim. Jimmerson v. State, 190 Ga. App. 759, 380 S.E.2d 65, cert. denied, 190 Ga. App. 898, 380 S.E.2d 65 (1989).

- O.C.G.A. § 16-6-4(a) (child molestation) was not a lesser included offense of O.C.G.A. § 16-6-2 (aggravated sodomy), either as a matter of law under O.C.G.A. § 16-1-6(2) or O.C.G.A. § 16-1-7(a), or as a matter of fact. Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987).

Child molestation in connection with the fondling of the victim's vagina did not merge with aggravated sodomy charges based on two acts of oral sex, where the acts of sodomy were not used to establish the child molestation charge. Pressley v. State, 197 Ga. App. 270, 398 S.E.2d 268 (1990).

Child molestation and aggravated sodomy are legally distinct, and when the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Howard v. State, 200 Ga. App. 188, 407 S.E.2d 769, cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019), cert. denied, 200 Ga. App. 896, 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

When the victim's testimony and other physical evidence clearly showed two incidents of sodomy, one occurring prior to the rape and one afterward, the appellant's contention that the counts of aggravated child molestation and aggravated sodomy were based on a single sexual act and should be merged was invalid. Garland v. State, 213 Ga. App. 583, 445 S.E.2d 567 (1994).

- Because the evidence of defendant's sexual assault of the child victim over a period of a year was sufficient to find defendant guilty of rape, two counts of aggravated child molestation, sodomy, and the charge of aggravated sexual battery, the two counts of aggravated child molestation did not merge as a matter of fact under O.C.G.A. § 16-1-6(1). Keown v. State, 275 Ga. App. 166, 620 S.E.2d 428 (2005).

In a criminal trial on multiple counts of sexual offenses committed against a child victim, there was no error in the trial court's decision not to merge all of the convictions into a cruelty to children count, as the record was replete with multiple acts of sexual abuse and the evidence accordingly did not require merger because the state did not use evidence that the defendant committed one crime in proving another. Daniels v. State, 278 Ga. App. 332, 629 S.E.2d 36 (2006).

- Trial court did not err in instructing the jury that it could return a verdict on child molestation, where defendant had been indicted for statutory rape and the evidence showed that child molestation was a lesser included offense of statutory rape as a matter of fact. Burgess v. State, 189 Ga. App. 790, 377 S.E.2d 543 (1989), aff'd, 194 Ga. App. 179, 390 S.E.2d 92 (1990).

Trial court erred when it convicted defendant of child molestation because the facts which were used to prove child molestation were the same facts which proved statutory rape, and the court should have merged the child molestation conviction with the statutory rape conviction. Dorsey v. State, 265 Ga. App. 404, 593 S.E.2d 945 (2004).

- When the evidence used to establish the offense of cruelty to children was grabbing and pulling the victim's hair and holding the victim's throat, and the offense of rape, including the element of force, was amply proven by the subsequent events including the defendant's threats to kill the victim before and during intercourse, the jury was authorized to conclude that two separate and distinct offenses were committed. Love v. State, 190 Ga. App. 264, 378 S.E.2d 893 (1989), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

Lesser offense of cruelty to children did not merge into the greater offenses of rape and aggravated child molestation, where the facts that the victim was threatened and terrorized, that the victim screamed in pain, and that the victim continued to experience pain and discomfort and would suffer forever from the venereal diseases contracted from defendant were not needed to prove the elements of rape and aggravated child molestation. Ranalli v. State, 197 Ga. App. 360, 398 S.E.2d 420 (1990).

- Charges of rape, statutory rape, incest, aggravated child molestation, sodomy, and cruelty to children did not merge into the single count of cruelty to children where the evidence showed that defendant repeatedly sexually assaulted and sodomized the victim, defendant's 13-year old adopted daughter, over a nine-month period. Edmonson v. State, 219 Ga. App. 323, 464 S.E.2d 839 (1995), overruled on other grounds, Collins v. State, 229 Ga. App. 658, 495 S.E.2d 59 (1997).

Sexual battery can be a lesser included offense of child molestation in particular cases where the facts alleged in the indictment for child molestation also include all of the elements of sexual battery. Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).

Even though the facts in an indictment for child molestation were sufficient to charge the lesser offense of sexual battery, where the evidence presented demanded a finding of child molestation or nothing, the trial court did not err by refusing to charge on sexual battery. Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).

Sexual battery does not differ from child molestation in the manners set forth in O.C.G.A. § 16-1-6(2). Teasley v. State, 207 Ga. App. 719, 429 S.E.2d 127 (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996).

Indictment taken together with the evidence indicated that sexual battery was not a lesser included offense of child molestation in case as a matter of fact, and there was no error in the trial court's refusal to charge the jury on the law of sexual battery for such a charge was not authorized by the law or the evidence. Teasley v. State, 207 Ga. App. 719, 429 S.E.2d 127 (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996).

Sodomy count merged into child molestation, where the offense of sodomy as alleged was included as a matter of fact in the offense of child molestation as alleged. Horne v. State, 192 Ga. App. 528, 385 S.E.2d 704 (1989), cert. denied, 494 U.S. 1006, 110 S. Ct. 1302, 108 L. Ed. 2d 749 (1990).

Sodomy is a lesser included offense of aggravated sodomy. Stover v. State, 256 Ga. 515, 350 S.E.2d 577 (1986).

- Crime of statutory rape was included, as a matter of fact, in the crime of aggravated child molestation since both convictions were in fact based upon the same single act. Andrews v. State, 200 Ga. App. 47, 406 S.E.2d 801 (1991).

There was no error for sentencing defendant for both offenses for which defendant was convicted, where defendant was indicted for statutory rape and for molesting the victim by fondling her breasts. No elements of each offense are necessarily elements of the other, thus the crimes for which he was convicted arose from two separate acts as a matter of fact. Bryant v. State, 204 Ga. App. 856, 420 S.E.2d 801 (1992); Baker v. State, 211 Ga. App. 515, 439 S.E.2d 668 (1993).

While an indictment did not charge the defendant with statutory rape, O.C.G.A. § 16-6-3, the allegations of the indictment notified the defendant that statutory rape could have been considered a lesser included offense of the indicted crime of child molestation; since the defendant admitted that the defendant tried to place his penis in the victim's vagina, and since the victim testified that "it hurt," a jury instruction on statutory rape as a lesser included offense of child molestation was proper. Stulb v. State, 279 Ga. App. 547, 631 S.E.2d 765 (2006).

- Trial court did not err in merging an attempted statutory rape charge into a child molestation charge as the state was required to prove the commission of an immoral or indecent act (removing the victim's and defendant's clothing), the victim's age was less than 16, and defendant's intent to arouse or satisfy defendant's own or the child's sexual desires; thus, the state used up the evidence that defendant committed attempted statutory rape in establishing that defendant committed child molestation. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).

Trial court did not err in merging an attempted statutory rape charge into a child molestation charge, instead of merging the child molestation counts into the attempted statutory rape count, as the evidence establishing that defendant fondled the victim's breasts was not used up in proving that defendant removed their clothing and attempted penetration; accordingly, three child molestation charges were not subject to merger with the attempted statutory rape count. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).

- Although the trial court should have charged the jury on public indecency as a lesser included offense to the charge of child molestation, any error was harmless as it was highly probable that the failure to give the public indecency charge did not contribute to the child molestation verdicts; furthermore, the trial court did not err in refusing to charge the jury on simple assault as the indictment did not allege acts which could support a conviction for simple assault as a matter of law. Damare v. State, 257 Ga. App. 508, 571 S.E.2d 507 (2002).

Other Offenses Involving Children

Battery lesser included offense of cruelty to children.

- Where the evidence was sufficient to establish that defendant repeatedly struck defendant's nine-year-old child on the back, buttocks, and legs with defendant's hand, leaving several visible, handprint-shaped bruises, battery was a lesser included offense of cruelty to children. Bennett v. State, 244 Ga. App. 149, 534 S.E.2d 881 (2000).

- Aggravated battery and cruelty to children each requires proof of at least one additional element which the other does not, and the two crimes are not so closely related that multiple convictions are prohibited under O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct establishes the commission of both aggravated battery and cruelty to children, the two crimes do not merge, and thus a defendant was properly convicted of both crimes (overruling Jones v. State, 276 Ga. App. 762 (624 S.E.2d 291) (2005); Etchinson v. State, 245 Ga. App. 449 (538 S.E.2d 87) (2000); and Harmon v. State, 208 Ga. App. 271 (430 S.E.2d 399) (1993)). Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

- Cruelty to children, which requires only "maliciously [causing] the child cruel or excessive physical . . . pain," can be lesser included crime under indictment for aggravated assault with a deadly weapon. Williams v. State, 144 Ga. App. 130, 240 S.E.2d 890 (1977); Cranford v. State, 186 Ga. App. 862, 369 S.E.2d 50 (1988).

- Evidence authorized a jury charge on the offense of "fighting words," where defendant schoolteacher was indicted for battery and cruelty to children, and the proof tracked the indictment which set forth words defendant said to a student which would fall within the parameter of those forbidden by the "fighting words" statute. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).

- Because the evidence established that the child victim had been subjected to multiple assaults to the head, limbs, and torso, which were in distinct stages of healing, and which occurred at various times, the predicate child cruelty offense count did not merge as a matter of fact into felony murder, and the trial court was authorized to enter a judgment of conviction and sentence on that count. Delacruz v. State, 280 Ga. 392, 627 S.E.2d 579 (2006).

- Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and16-5-70(b), the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, § 16-5-1(a), and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, § 16-5-70(b). Each crime required proof of at least one additional element which the other did not and the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010).

- Trial court properly did not merge the appellant's convictions for cruelty to children in the second degree and serious injury by vehicle by the act of reckless driving with respect to the same victim for the purpose of sentencing because each offense required proof of a different wrongful act as the cruelty to children conviction required proof of facts not required by the serious injury by vehicle conviction and vice versa. McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (2015).

- Offense of use of fighting words is not included in the offense of cruelty to children as a matter of law. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).

Interference with custody was not a lesser included offense of kidnapping, as a matter of law or fact, where the indictment did not allege that the mother of the child was the victim of any crime. Stroud v. State, 200 Ga. App. 387, 408 S.E.2d 175 (1991).

- Although the trial court should have given the defendant's requested charge on battery, O.C.G.A. § 16-5-23.1, since the evidence authorized a finding that the defendant intentionally caused substantial physical harm and visible bodily harm to the victims by beating the victims with a bat and a belt, the failure to give the battery charge was harmless error in light of the overwhelming evidence of the commission of the greater offense, cruelty to children, O.C.G.A. § 16-5-70; the indictment alleged that the defendant unlawfully and maliciously caused the victims cruel and excessive physical and mental pain by striking the victims about the body with a belt and wooden bat. Dinkler v. State, 305 Ga. App. 444, 699 S.E.2d 541 (2010), overruled on other grounds, Stuart v. State, 318 Ga. App. 839, 734 S.E.2d 814 (2012).

- Trial court did not err in failing to merge the defendant's misdemeanor convictions for contributing to the deprivation of a minor, O.C.G.A. § 16-12-1(b)(3), with the defendant's corresponding felony convictions for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c), pursuant to the "required evidence" test, the offenses did not merge as a matter of law; the offenses of cruelty to children in the second degree and contributing to the deprivation of a minor each have at least one essential element that the other does not: causing the child cruel or excessive physical or mental pain and wilfully failing to provide the child with the proper care necessary for his or her health, respectively. Staib v. State, 309 Ga. App. 785, 711 S.E.2d 362 (2011).

Other Property Offenses

Burglary and robbery.

- Statutory definition of burglary and robbery makes it clear that legislature intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by same proof of all facts, thus neither crime is a lesser, or included, offense of the other as a matter of law or fact. Moore v. State, 140 Ga. App. 824, 232 S.E.2d 264 (1976).

- Defendant was properly convicted of both burglary and financial transaction card theft after gaining entry into the dwelling as each offense had distinct elements. McConnell v. State, 263 Ga. App. 686, 589 S.E.2d 271 (2003).

Burglary conviction and entering an automobile with intent to commit a theft conviction did not merge as the state was required to show unlawful entry into a warehouse to convict defendant of burglary, but not to obtain a conviction for entry of automobile with intent to commit a theft; the burglary offense was completed when defendant entered the warehouse without authority and with the intent to commit the theft of the computers; the automobile offense occurred when defendant entered the victim's car with the intent to take the computers. Morris v. State, 274 Ga. App. 41, 616 S.E.2d 829 (2005).

State may convict and punish accused for burglary and unlawful possession of firearm by a previously convicted felon, when the firearm was taken in the burglary. The offenses charged were separate and distinct and there was no merger; evidence used to establish the burglary was not again used to establish the later crime of possession of a weapon by a convicted felon. Bogan v. State, 177 Ga. App. 614, 340 S.E.2d 256 (1986).

Criminal trespass and criminal damage to property are identical crimes except for the amount of damage required for conviction and the former is a lesser included offense of the latter. Merrell v. State, 162 Ga. App. 886, 293 S.E.2d 474 (1982).

Because it was undisputed that the victim failed to testify regarding the value of the damage to the subject property, an adjudication for the offense of second-degree criminal damage to property entered against a juvenile was vacated; however, given evidence that the juvenile intentionally damaged the property of another without consent, and the damage was $500 or less, an adjudication could be entered on a charge of criminal trespass, which did not violate the juvenile's due process right to be notified of the charges. In the Interest of J.T., 285 Ga. App. 465, 646 S.E.2d 523 (2007).

- Trial court did not err in failing to merge the defendant's convictions for the criminal damage to property charges because criminal damage to property in the first degree required evidence that the defendant acted in a manner that endangered human life, whereas criminal damage to property in the second degree required evidence that the damage to property exceeded $500, neither of which was required in the other. Sullivan v. State, 331 Ga. App. 592, 771 S.E.2d 237 (2015).

- Criminal damage to property in the second degree is a lesser included offense of arson in the first degree. One who commits first-degree arson has also committed criminal damage to property when the property in question belongs to another, but while the latter crime is established by the same conduct as the former, it requires proof of a "less culpable mental state" under the Criminal Code. Bryant v. State, 188 Ga. App. 505, 373 S.E.2d 289 (1988).

Trial court properly merged a conviction of criminal damage to property in the second degree, in violation of O.C.G.A. § 16-7-23(a)(1), into a conviction for arson in the second degree, in violation of O.C.G.A. § 16-7-61, as the arson was not a lesser included offense of the criminal damage offense pursuant to O.C.G.A. § 16-1-6(1); arson required the higher mentally culpable state of knowingly, rather than the criminal damage scienter requirement of intentionally, and arson required that the damage to the property have been caused by fire or explosive. Youmans v. State, 270 Ga. App. 832, 608 S.E.2d 300 (2004).

Theft by receiving not lesser included offense of burglary as matter of fact or law. State v. Bolton, 144 Ga. App. 797, 242 S.E.2d 378 (1978).

- When proof of recent unexplained possession of stolen property was sufficient in itself to prove theft by taking but was only one element necessary to prove theft by receiving, theft by taking must be considered an included offense in theft by receiving. Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978).

- Defendant's claim of error in the failure to instruct the jury on theft by taking was rejected as defendant failed to request an instruction on theft by taking as a lesser included offense of robbery. Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005).

- Trial court erred by failing to merge a theft by taking of a motor vehicle count with a theft by taking a purse count as the state conceded that the record was unclear as to whether the theft of the vehicle and the theft of the purse constituted two separate acts, and the evidence appeared to show that the victim's purse was stolen as a result of being inside the car when the car was stolen by the defendant. Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882, cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).

- In prosecution for theft, where evidence showed that tractor and plow were stolen at same time and from same place and victim, provisions of former Code 1933, § 26-506 concerning multiple prosecutions for same conduct, prohibited multiple conviction, since theft of plow was included within larceny of tractor. Brogdon v. State, 138 Ga. App. 900, 228 S.E.2d 5 (1976) (see O.C.G.A. § 16-1-7(a)(1)).

- In prosecution for child molestation and burglary, defendant was not entitled to an instruction on criminal trespass where defendant's claim of alibi did not reasonably raise the inference that defendant entered the home with a less culpable state of mind than the felonious intent of a burglar as charged in the indictment. Brewer v. State, 219 Ga. App. 16, 463 S.E.2d 906 (1995).

- Where the indictment which charged defendant with attempted arson in the first degree alleged that defendant poured gasoline on the front porch of a house and threatened to burn the house, and neither the indictment nor O.C.G.A. § 16-7-60 applied to defendant's act of pouring gasoline on a rug which was on the porch, the facts as alleged in the indictment were insufficient to establish criminal trespass regarding the rug; and, therefore, the trial court properly declined to instruct the jury on criminal trespass as a lesser included offense of attempted arson. Dodson v. State, 257 Ga. App. 344, 571 S.E.2d 403 (2002).

- Trial court did not err when it reduced a charge of criminal damage to property in the second degree to criminal trespass when the state failed to prove damages in excess of $500, instead of granting defendant's motion for acquittal on the charge. The evidence showed that defendant broke the windshield and at least one other window on defendant's wife's car during an argument and therefore was sufficient to sustain defendant's conviction for criminal trespass. Hill v. State, 259 Ga. App. 363, 577 S.E.2d 61 (2003).

Driving with a suspended or revoked license was a lesser included offense of operating a motor vehicle after revocation of one's license as an habitual violator, where defendant had been stopped by the police while operating an automobile on an interstate highway at a time when the Georgia driver's license was revoked due to the driver having been declared a habitual violator. Parks v. State, 180 Ga. App. 31, 348 S.E.2d 481 (1986).

After a defendant was convicted of driving with a suspended license in violation of O.C.G.A. § 40-5-121, and was later indicted for a violation of O.C.G.A. § 40-5-58 based upon defendant's operation of a motor vehicle after the defendant had been notified of having been declared a habitual violator, the trial court erred in denying the defendant's double-jeopardy plea. Whaley v. State, 260 Ga. 384, 393 S.E.2d 681 (1990).

Convictions under both O.C.G.A. §§ 40-5-58(c) and40-6-395(b)(5)(A) were proper under O.C.G.A. § 16-1-6, as the elements of both charged offenses required different proof; under O.C.G.A. § 40-5-58(c), the state proved that defendant was declared an habitual violator, was properly notified of such status, and that defendant operated a vehicle without having obtained a valid driver's license, while under O.C.G.A. § 40-6-395(b)(5)(A), proof that the driver committed a misdemeanor while fleeing or attempting to elude, that the driver was trying to escape arrest for a felony offense other than road violations, and that the driver committed one of the statutorily enumerated acts was required. Buggay v. State, 263 Ga. App. 520, 588 S.E.2d 244 (2003).

- When there is no evidence of violence or physical assault upon the victim during the commission of the crimes alleged, proof of the crime of armed robbery included crime of aggravated assault as a matter of fact and likewise, proof of the crime of motor vehicle theft was included in armed robbery the convictions and sentences for aggravated assault and motor vehicle theft must be vacated. Jones v. State, 238 Ga. 51, 230 S.E.2d 865 (1976).

- When theft of automobile was part of armed robbery as a matter of fact, crime of motor vehicle theft became a lesser included offense of armed robbery, and separate conviction for motor vehicle theft cannot stand. Painter v. State, 237 Ga. 30, 226 S.E.2d 578 (1976).

Driving under the influence was lesser included offense of first degree vehicular homicide, and conviction of both offenses was proscribed. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987).

Convictions for driving under the influence of alcohol and reckless driving merged into a vehicular homicide conviction and were vacated. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

Because DUI was a predicate offense set out in the indictment against the defendant only as an element of the offense of vehicular homicide, in violation of O.C.G.A. § 40-6-393(a), and not as a separate crime for which defendant risked separate criminal liability, a trial court did not err by denying the defendant's plea in bar because, as a felony offense, prosecution on the vehicular homicide counts were commenced within four years after the commission of the crime as required by O.C.G.A. § 17-3-1(c); the expiration of the limitations period for the driving under the influence counts did not preclude a prosecution for vehicular homicide. Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886, cert. denied, No. S07C1816, 2007 Ga. LEXIS 768 (Ga. 2007).

- Public drunkenness is not, as a matter of fact or law, a lesser included offense of driving under the influence of alcohol to the extent it is less safe to drive. State v. Tweedell, 209 Ga. App. 13, 432 S.E.2d 619 (1993).

Improper lane change, driving without headlights, and driving under the influence of alcohol (DUI) convictions did not merge because the facts alleged in the accusation with regard to the DUI charge were not also sufficient to establish the lesser offenses of improper lane change and driving without headlights. Parker v. State, 249 Ga. App. 530, 549 S.E.2d 154 (2001).

Operating motor vehicle without insurance is not a lesser included offense of false swearing. Bowen v. State, 173 Ga. App. 361, 326 S.E.2d 525 (1985).

Reckless conduct was not a lesser included crime of driving under the influence as a matter of fact since the accusation included no allegation of harm or danger to another person and there was no proof of such at trial. Whiteley v. State, 188 Ga. App. 129, 372 S.E.2d 296.

Trial court erred in failing to merge defendant's convictions for reckless driving, speeding, and reckless conduct since defendant's conviction for reckless conduct was proved by fewer than all of the facts used to prove defendant's guilt of reckless driving, and the speeding charge, as alleged, was an element of both reckless driving and reckless conduct. Carrell v. State, 261 Ga. App. 485, 583 S.E.2d 167 (2003).

- Because Count 4, alleging aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, was likely to and actually did result in serious bodily injury, only required the state to prove that the defendant had the general intent to drive the van, the offense of reckless driving would not show a less culpable mental state than that which was required to establish the commission of the crime of aggravated assault as charged, and the trial court did not err by refusing to give the requested charge of reckless driving as a lesser included offense of aggravated assault as alleged in Count 4. Patterson v. State, 332 Ga. App. 221, 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491, 789 S.E.2d 175 (2016).

Reckless driving was not a lesser included offense, as a matter of law or fact, of driving under the influence under O.C.G.A. § 16-1-6, as the facts in the State of Georgia's indictment of defendant were insufficient to support a reckless driving charge under O.C.G.A. § 40-6-390(a), and as a matter of law, the crimes were equally serious. Shockley v. State, 256 Ga. App. 892, 570 S.E.2d 67 (2002).

Defendant's conviction and sentence for speeding were vacated where the speeding offenses factually merged into the reckless driving offense for which defendant was also convicted because the same conduct, speeding, was used to prove both crimes. Fraser v. State, 263 Ga. App. 764, 589 S.E.2d 329 (2003).

Trial court's failure to merge defendant's convictions for driving recklessly and committing second degree vehicular homicide, in violation of O.C.G.A. §§ 40-6-390 and40-6-393, respectively, was not error for sentencing purposes, as the reckless driving offense was not the underlying offense of the homicide, but rather, improper lane change was, in violation of O.C.G.A. § 40-6-123(a); further, pursuant to O.C.G.A. § 16-1-6, there was no factual merger because the crimes were committed sequentially and separately. Cutter v. State, 275 Ga. App. 888, 622 S.E.2d 96 (2005).

Defendant's conviction for aggravated assault with an object under O.C.G.A. § 16-5-21(b)(2) with regard to pinning the victim to a house with a vehicle was affirmed because the defendant was not entitled to jury instructions on the lesser included crimes of reckless conduct and reckless driving since the base crime of simple assault under O.C.G.A. § 16-5-20(a)(2) did not require a specific intent to cause the victim to be apprehensive of receiving a violent injury. Patterson v. State, 299 Ga. 491, 789 S.E.2d 175 (2016).

- Defendant was entitled to a new trial on the charge of aggravated assault upon a police officer in violation of O.C.G.A. § 16-5-21 because the trial court should have given the defendant's requested charge on reckless driving in violation of O.C.G.A. § 40-6-390(a) as a lesser included offense since there was evidence that the defendant did not intend to injure a police officer but that the defendant's decision to drive off suddenly with the officer in close proximity to the defendant's truck was nonetheless an act of criminal negligence, which would have supported a conviction for reckless driving. Young v. State, 294 Ga. App. 227, 669 S.E.2d 407 (2008).

- Trial court did not err by failing to merge a reckless-driving charge into a serious-injury-by-vehicle charge because the two crimes were entirely separate and distinct, requiring a showing of different elements and based on the defendant's drunk driving of a four-wheeler ATV with a 10-year-old passenger, who was brain-damaged when the defendant clipped a tractor and flipped the ATV; the state used the evidence of the clipping of the tractor scoop, which caused the rollover and injury to the child, as the elements of the serious-injury-by-vehicle offense, which was separate from and sequential to the reckless-driving offense, which was premised on the defendant's intoxication. Croft v. State, 278 Ga. App. 107, 628 S.E.2d 144 (2006).

- Five convictions for serious injury by vehicle and a conviction for vehicular homicide did not merge; although the convictions stemmed from one incident of driving under the influence, there were separate victims for each offense. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

- Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant's plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant's plea in bar based on double jeopardy, since the probate court's void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006).

Miscellaneous Crimes

Aggravated stalking did not merge with burglary count.

- Trial court did not err by not merging a defendant's aggravated stalking count into a burglary count based upon the defendant's contention that under the actual evidence test, the same factual evidence was used to prove both crimes; as to prove the burglary count, the state had to prove that the defendant entered the victim's residence without authority and with the intent to commit aggravated stalking, and to prove the aggravated stalking count, the state had to prove that the defendant surveilled and contacted the victim in violation of a condition of probation for the purpose of harassing and intimidating the victim. As such, the burglary statute required that the state show entry into the residence, which was not required by the aggravated stalking statute, and, on the other hand, the aggravated stalking statute required that the state prove that the defendant actually contacted the victim, which was not required by the burglary statute that only required that the defendant contact the victim when the defendant entered the residence. Williams v. State, 293 Ga. App. 193, 666 S.E.2d 703 (2008).

- Gambling is one thing and operating a gambling house is a kindred but entirely different thing; different evidence is required to convict of these separate offenses. No absurdity or repugnancy is created by acquittal of gambling and conviction of operating a gambling house. McGahee v. State, 133 Ga. App. 964, 213 S.E.2d 91 (1975).

- Offense of issuing bad checks is not a lesser included offense of forgery, and, in a prosecution for forgery, the trial court's failure to give a charge on issuing bad checks was not error. Adams v. State, 217 Ga. App. 759, 458 S.E.2d 918 (1995).

- Offense of negotiating a fictitious check is a lesser included offense of forgery, and, in a prosecution for forgery, the trial court's failure to give a charge on negotiating fictitious checks constituted reversible error. Adams v. State, 217 Ga. App. 759, 458 S.E.2d 918 (1995).

- After defendant pled guilty to theft by taking for writing fraudulent checks, defendant's subsequent prosecution for forgery for uttering and delivering the checks was not barred under O.C.G.A. § 16-1-6 or O.C.G.A. § 16-1-7(a) because the two crimes were not lesser included offenses of the other. Cade v. State, 262 Ga. App. 206, 585 S.E.2d 172 (2003).

- When the defendant was convicted of first-degree forgery under O.C.G.A. § 16-9-1 and false writing under O.C.G.A. § 16-10-20 for obtaining expungement order by presenting a Georgia Crimes Information Center certificate that had been altered to state that the defendant had no criminal record, counts were not included in each other under O.C.G.A. §§ 16-1-6 and16-1-7; false writing charge did not require proof that the writing purported to be made by authority of one who in fact gave no such authority, and forgery charge did not require proof that the writing was made or used in a matter within the jurisdiction of the district attorney's office. Jones v. State, 290 Ga. App. 490, 659 S.E.2d 875 (2008).

- Offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery, so that the defendant can be convicted of both without statutory or constitutional prohibition. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991).

Trial court did not err in failing to merge an aggravated assault charge and firearm possession charges with an aggravated battery charge because the crimes did not merge legally or factually since each of the crimes required proof of a fact that the other crimes did not. Gant v. State, 291 Ga. App. 823, 662 S.E.2d 895 (2008).

- Trial court properly refused to merge the two arms-possession counts for sentencing purposes because those charges were based on defendants' possession of two guns during the burglary; the acts were separate crimes involving multiple defendants, separate crimes for which each defendant bore individual responsibility as either a principal or an accessory. Dunbar v. State, 273 Ga. App. 29, 614 S.E.2d 472 (2005).

- Trial court erred by sentencing appellant on all three counts, two counts of simple battery, O.C.G.A. § 16-5-23(a)(1) (intentionally making physical contact of an insulting and provoking nature) and (a)(2) (intentionally causing physical harm), and the offense of battery, O.C.G.A. § 16-5-23.1 (intentionally causing visible bodily harm), in the accusation, rather than merging the two counts of simple battery with the battery, given that the evidence at trial established that each crime was established by proof of the same facts, except that the battery charge required proof that the defendant caused visible bodily harm. Hussey v. State, 206 Ga. App. 122, 424 S.E.2d 374 (1992).

Simple battery is not a lesser included offense of felony obstruction because it is a separate and independent offense wherein the intent is to make physical contact or cause physical harm. Pearson v. State, 224 Ga. App. 467, 480 S.E.2d 911 (1997).

- Because the single continuous act of simple battery, O.C.G.A. § 16-5-23(a)(1), was the evidence required to show the "force" used to accomplish a robbery, O.C.G.A. § 16-8-40(a)(1), the defendant's battery convictions merged with the robbery conviction; the "use of force" charged in connection with the robbery was "hitting," which was the same type of force used in the continuous battery. Bonner v. State, 308 Ga. App. 827, 709 S.E.2d 358 (2011).

- Defendant's simple batteries convictions merged as a matter of fact because the three batteries were part of a continuous criminal act; the indictment charged the defendant with simple battery by "grabbing" the victim, "holding him down," and "hitting" the victim, respectively. Bonner v. State, 308 Ga. App. 827, 709 S.E.2d 358 (2011).

- As to the two counts of aggravated battery, both counts were accomplished by the single act of throwing acid on the victim and, therefore, one count should have merged into the other. Fordham v. State, 352 Ga. App. 520, 835 S.E.2d 360 (2019), cert. denied, No. S20C0442, 2020 Ga. LEXIS 392 (Ga. 2020).

- Depending on the facts, harassing telephone calls may be an included offense of terroristic threats. Todd v. State, 230 Ga. App. 849, 498 S.E.2d 142 (1998).

Because defendant's defense to the charge of terroristic threats was that defendant never made any threats or intimidating remarks at all, the trial court did not err in refusing to give defendant's request for an instruction on the offense of harassing telephone calls. Todd v. State, 230 Ga. App. 849, 498 S.E.2d 142 (1998).

In a prosecution on three counts of aggravated stalking, the defendant was not entitled a jury charge on the lesser included offense of harassing telephone calls, based on the fact that under the evidence presented, the defendant was either guilty of the indicted offenses or was guilty of no offense whatsoever. Patterson v. State, 284 Ga. App. 780, 645 S.E.2d 38 (2007).

- Trial court did not err by failing to give the defendant's requested charges on the lesser included offenses of harassing phone calls and violation of a temporary protective order because the state's evidence was sufficient to establish all of the elements of the aggravated stalking offenses as indicted; under the evidence, either the defendant was guilty of the indicted offenses or the defendant was guilty of no offense whatsoever. Brooks v. State, 313 Ga. App. 789, 723 S.E.2d 29 (2012), cert. denied, No. S12C0974, 2012 Ga. LEXIS 1035 (Ga. 2012).

- When the evidence was uncontradicted that the value of two watches exceeded $300 each, a jury charge on misdemeanor shoplifting was not warranted and the defendant was properly convicted of felony shoplifting based on the retail value of the goods. Reeves v. State, 261 Ga. App. 466, 582 S.E.2d 590 (2003).

Violation of oath by a public officer is a lesser included offense of bribery. Nave v. State, 171 Ga. App. 165, 318 S.E.2d 753 (1984); Nave v. Helms, 845 F.2d 963 (11th Cir. 1988).

- Defendant's convictions for false swearing under O.C.G.A. § 16-10-71, proven by evidence that defendant made false statements in an affidavit seeking an involuntary commitment order for the victim, and malicious confinement under O.C.G.A. § 16-5-43, supported by proof apart from the execution of the false affidavit, did not merge as a matter of fact. Washington v. State, 271 Ga. App. 764, 610 S.E.2d 692 (2005).

- Entry of a guilty plea was not a judgment of conviction until sentence was imposed; therefore, a defendant who walked away from the courthouse after plea entry but before sentencing was not guilty of felony escape, but could be convicted only of misdemeanor escape. Dorsey v. State, 259 Ga. App. 254, 576 S.E.2d 637 (2003).

Mutiny in a penal institution and aggravated assault require proof of different elements and, therefore, the former offense cannot be a lesser included offense of the latter. Bierria v. State, 232 Ga. App. 622, 502 S.E.2d 542 (1998).

- With regard to the defendant's conviction for felony public indecency for urinating in public, the trial court's refusal to charge the jury on public drunkenness as a lesser included offense of public indecency was not error because the crime of public drunkenness requires proof that the defendant was intoxicated, which the crime of public indecency does not; the crime of public drunkenness does not require a lewd exposure of sexual organs, which is required by the crime of public indecency; and, the crime of public indecency requires proof of exposure of sexual organs, which the crime of public drunkenness does not; therefore, the offense of public drunkenness was not included in the crime of public indecency. Loya v. State, 321 Ga. App. 430, 740 S.E.2d 382 (2013).

- Counsel was not ineffective for failing to request a jury instruction on the crime of pimping as a lesser-included offense of trafficking a minor for sexual servitude without the use of coercion because the jury found the defendant guilty on the three trafficking without coercion counts and on three related counts charging the greater offense of trafficking the victim for sexual servitude through the use of coercion; thus, the defendant did not meet the defendant's burden of showing that there was a reasonable possibility that the jury would have acquitted the defendant on all of the indicted offenses and, instead, convicted the defendant only of pimping if counsel had requested a jury instruction on pimping as a lesser-included offense. Byrd v. State, 344 Ga. App. 780, 811 S.E.2d 85 (2018), overruled on other grounds by Thomas v. State, 352 Ga. App. 640, 835 S.E.2d 640 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Separate prosecutions for municipal and state law violations.

- An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 299 et seq. 41 Am. Jur. 2d, Indictments and Informations, §§ 106, 282.

- 42 C.J.S., Indictments and Informations, § 298 et seq.

- Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626.

Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636.

Duty to charge as to reasonable doubt as between different degrees of crime or included offenses, 20 A.L.R. 1258.

Forgery of names of several individuals to the same instrument as more than one offense, 33 A.L.R. 562.

Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 44 A.L.R. 564; 172 A.L.R. 1053.

Acquittal or conviction of assault and battery as bar to prosecution for rape, or assault with intent to commit rape, based on same transaction, 78 A.L.R. 1213.

Conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged, 47 A.L.R.2d 887.

Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341.

When should jury's deliberation proceed from charged offense to lesser-included offense, 26 A.L.R.5th 603.

Propriety of lesser-included-offense charge to jury in federal prosecution for crime involving property rights, 105 A.L.R. Fed. 669.

Propriety of lesser-included-offense charge in federal prosecution of narcotics defendant, 106 A.L.R. Fed. 236.