required evidence test in Georgia

2026“In considering whether crimes merge ... we apply the ‘required evidence’ test, which considers whether each statute requires proof of an additional fact that the other does not.” Id. (quotation marks omitted); see also Drinkard v. Walker, 281 Ga. 211, 217 ( 636 SE2d 530 ) (2006) (applying the required evidence test).

2026“In considering whether crimes merge ... we apply the ‘required evidence’ test, which considers whether each statute requires proof of an additional fact that the other does not.” Id. (quotation marks omitted); see also Drinkard v. Walker, 281 Ga. 211, 217 ( 636 SE2d 530 ) (2006) (applying the required evidence test).

2015See Thomas, 292 Ga. at 434 (5) (applying the required evidence test, rather than the unit of prosecution test, in determining whether a defendant could he convicted of aggravated assault under both OCGA § 16-5-21 (a) (1) and (a) (2) for the same act or transaction).

2015See Thomas v. State, 292 Ga. 429, 434 (5) ( 738 SE2d 571 ) (2013) (aggravated assault convictions under OCGA § 16-5-21 (a) (1) and (a) (2) (2011) did not merge under the required evidence test).

2019The Supreme Court of Georgia recently explained the interrelationship between the required evidence test and other statutory provisions regarding lesser included offenses as follows: “Where . . . each offense requires an element of proof 4 In Drinkard, supra, 281 Ga. at 211 , the Georgia Supreme Court “rejected the ‘actual evidence’ test for determining whether a lesser crime was included in a greater crime and instead adopted the ‘required evidence’ test articulated in Blockburger v. United States, 284 U. S. 299, 304 ( 52 SCt 180 , 76 LE 306) (1932).” Smith v. State, 290 Ga. 768, 772 (3), n.4

2019The Supreme Court of Georgia recently explained the interrelationship between the required evidence test and other statutory provisions regarding lesser included offenses as follows: “Where . . . each offense requires an element of proof 4 In Drinkard, supra, 281 Ga. at 211 , the Georgia Supreme Court “rejected the ‘actual evidence’ test for determining whether a lesser crime was included in a greater crime and instead adopted the ‘required evidence’ test articulated in Blockburger v. United States, 284 U. S. 299, 304 ( 52 SCt 180 , 76 LE 306) (1932).” Smith v. State, 290 Ga. 768, 772 (3), n.4

2015Thus, as made clear by Thomas, we are to apply the required evidence test in evaluating whether Gipson’s convictions under OCGA § 16-5-21 (a) (1) and (a) (2) (2011) should have been merged for purposes of sentencing. 8 We note that in Thomas v. State, 310 Ga. App. 404, 410 (5) ( 714 SE2d 37 ) (2011), this Court applied the unit of prosecution test in determining whether a defendant’s convictions for aggravated assault with intent to murder and aggravated assault with a deadly weapon should have been merged for sentencing.

2015Thus, as made clear by Thomas, we are to apply the required evidence test in evaluating whether Gipson’s convictions under OCGA § 16-5-21 (a) (1) and (a) (2) (2011) should have been merged for purposes of sentencing. 8 We note that in Thomas v. State, 310 Ga. App. 404, 410 (5) ( 714 SE2d 37 ) (2011), this Court applied the unit of prosecution test in determining whether a defendant’s convictions for aggravated assault with intent to murder and aggravated assault with a deadly weapon should have been merged for sentencing.

2016See Ledford v. State, 289 Ga. 70, 73 (1) ( 709 SE2d 239 ) (2011).

2016See Ledford v. State, 289 Ga. 70, 73 (1) ( 709 SE2d 239 ) (2011).

2024Accord McFadden v. State, 354 Ga. App. 377 , 384-385 (3) ( 841 SE2d 18 ) (2020). 13 Tamayo cites Regent v. State, 299 Ga. 172 ( 787 SE2d 217 ) (2016), in which our Supreme Court held that even if two crimes do not merge under the required evidence test applicable under OCGA § 16-1-6 (1), merger still may be required under other statutory definitions of included offenses, including OCGA § 16-1-6 (2).

2024Accord McFadden v. State, 354 Ga. App. 377 , 384-385 (3) ( 841 SE2d 18 ) (2020). 13 Tamayo cites Regent v. State, 299 Ga. 172 ( 787 SE2d 217 ) (2016), in which our Supreme Court held that even if two crimes do not merge under the required evidence test applicable under OCGA § 16-1-6 (1), merger still may be required under other statutory definitions of included offenses, including OCGA § 16-1-6 (2).

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2023See generally Scott v. State, 306 Ga. 507 (832 SE2d 426) (2019); Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006).[3] 3 This case was orally argued in this Court on October 17, 2023. 3 2. “‘Merger’ refers generally to situations in which a defendant is prosecuted for and determined by trial or plea to be guilty of multiple criminal charges but then, as a matter of substantive double jeopardy law, can be punished—convicted and sentenced— for only one of those” criminal charges.

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2021If so, then there are two offenses, and neither is ‘included in’ the other.” (Citation and punctuation omitted.) Gaston v. State, 317 Ga. App. 645, 650 (3) ( 731 SE2d 79 ) (2012). 2 A crime is also included in the other where “[i]t 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.” OCGA § 16-1-6 (2). 12 In applying the required evidence test[,] the important question is not the number of acts involved, or whether the crimes have ov

2021If so, then there are two offenses, and neither is ‘included in’ the other.” (Citation and punctuation omitted.) Gaston v. State, 317 Ga. App. 645, 650 (3) ( 731 SE2d 79 ) (2012). 2 A crime is also included in the other where “[i]t 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.” OCGA § 16-1-6 (2). 12 In applying the required evidence test[,] the important question is not the number of acts involved, or whether the crimes have ov

2015Co., 787 F2d 1309, 1317 (9th Cir. 1986) (“Federal Rule of Evidence 705 largely eliminates the need for counsel to ask [hypothetical] questions, because the rule permits an expert to testify as to his opinion without counsel’s providing him with a factual basis for it.”). 7 When a defendant is convicted for multiple violations of a “single statutory provision,” the required evidence test enunciated in Drinkard does not apply; instead, courts, in determining whether multiple convictions are permissible, must determine the “ ‘unit of prosecution,’ or the precise act or conduct that is being crimi

2015Co., 787 F2d 1309, 1317 (9th Cir. 1986) (“Federal Rule of Evidence 705 largely eliminates the need for counsel to ask [hypothetical] questions, because the rule permits an expert to testify as to his opinion without counsel’s providing him with a factual basis for it.”). 7 When a defendant is convicted for multiple violations of a “single statutory provision,” the required evidence test enunciated in Drinkard does not apply; instead, courts, in determining whether multiple convictions are permissible, must determine the “ ‘unit of prosecution,’ or the precise act or conduct that is being crimi

2026“In considering whether crimes merge ... we apply the ‘required evidence’ test, which considers whether each statute requires proof of an additional fact that the other does not.” Id. (quotation marks omitted); see also Drinkard v. Walker, 281 Ga. 211, 217 ( 636 SE2d 530 ) (2006) (applying the required evidence test).

2021Cf. Tinson v. State, 337 Ga. App. 83, 86 (2) ( 785 SE2d 914 ) (2016) (rape and incest convictions predicated on same act of penetration did not merge because State must prove lack of consent to establish crime of rape and must prove that victim was of certain relation to defendant to establish crime of incest).7 The case relied upon by Stone, Lay v. State, 264 Ga. App. 483 ( 591 SE2d 427 ) (2003), was decided prior to the Supreme Court’s adoption of the required evidence test in Drinkard.

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2024See Long, 325 Ga. App. at 495-496 (3). 3 In applying the required evidence test, we consider the aggravated assault allegations as indicted, not every possible manner of committing aggravated assault.

2015In applying the required evidence test, “we consider the crimes as indicted and not every possible manner of committing a particular crime.” Franks v. State, 325 Ga. App. 488, 495 (3), n. 8 ( 758 SE2d 604 ) (2013).

2024The conviction for Count 2 was predicated on the separate conduct, after Kelley began to walk away, of returning to the dumpster to trap the dog by closing the lid.22 Despite the fact that the two counts arose from the single 20 See generally Dixon v. State, 302 Ga. 691, 697 (4) ( 808 SE2d 696 ) (2017) (explaining that appellate courts “have the discretion to correct merger errors sua sponte — regardless of who is harmed by the error and who benefits from its correction — because a merger error results in an illegal and void judgment of conviction and sentence.”). 21 See Waits v. State, 282 Ga

2024But in Waits, our Supreme Court expressly held that cruelty to children and aggravated battery not only do not merge under the required evidence test of OCGA § 16-1-6 (a) but also “are not so closely related that multiple convictions are prohibited under other provisions of OCGA §§ 16-1-6 and 16-1-7.” Waits, 282 Ga. at 5 (2).

2016“When a defendant is convicted for multiple violations of a single statutory provision, the required evidence test enunciated in Drinkard[, supra,] does not apply....” Gipson v. State, 332 Ga. App. 309, 320, n. 7 ( 772 SE2d 402 ) (2015) (citation and punctuation omitted).

2016“When a defendant is convicted for multiple violations of a single statutory provision, the required evidence test enunciated in Drinkard[, supra,] does not apply....” Gipson v. State, 332 Ga. App. 309, 320, n. 7 ( 772 SE2d 402 ) (2015) (citation and punctuation omitted).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2014E.g., Marriott v. State, 320 Ga. App. 58, 63 (2) ( 739 SE2d 68 ) (2013); Peoples v. State, 295 Ga. App. 731, 732-733 ( 673 SE2d 82 ) (2009) (employing the required evidence test set forth in Drinkard v. Walker, 281 Ga. 211 ( 636 SE2d 530 ) (2006)); Phillips v. State, 269 Ga. App. 619, 631 (10) ( 604 SE2d 520 ) (2004); Brown v. State, 199 Ga. App. 18, 21-22 (4) (a) ( 404 SE2d 154 ) (1991); Adams v. State, 164 Ga. App. 295, 296-297 (2) ( 297 SE2d 77 ) (1982); Sosbee v. State, 155 Ga. App. 196, 197 ( 270 SE2d 367 ) (1980).

2013Based upon the separate proof supporting Watts’ convictions under the required evidence test, the Supreme Court’s “quick succession” analysis in Culpepper v. State, 289 Ga. 736, 738-739 (2) (a) ( 715 SE2d 155 ) (2011), does not apply in this case.

2013Based upon the separate proof supporting Watts’ convictions under the required evidence test, the Supreme Court’s “quick succession” analysis in Culpepper v. State, 289 Ga. 736, 738-739 (2) (a) ( 715 SE2d 155 ) (2011), does not apply in this case.

2012Hill, 295 Ga. App. at 363 (1).

2012Hill, 295 Ga. App. at 364 (3). 5 that it could find Hill, who had been charged with rape, guilty of the lesser-included offense of statutory rape even if the required evidence test was not met.

2011Drinkard v. Walker, 281 Ga. 211, 212-214 ( 636 SE2d 530 ) (2006); Taylor v. State, 304 Ga. App. 395, 397 (1) ( 696 SE2d 686 ) (2010). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

2011Drinkard v. Walker, 281 Ga. 211, 212-214 ( 636 SE2d 530 ) (2006); Taylor v. State, 304 Ga. App. 395, 397 (1) ( 696 SE2d 686 ) (2010). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

2025We determine whether one crime is included in another as a 19 (Punctuation omitted.) Powell v. State, 307 Ga. 96, 99 (1) ( 834 SE2d 822 ) (2019). 20 See Luke v. State, 324 Ga. App. 531, 533-534 (2) ( 751 SE2d 180 ) (2013) (“[S]ufficient evidence supports an aggravated assault conviction even though the defendant, while present during the crime, did not verbally threaten the victim; did not hold, shoot, or supply the gun used; and claimed no advance knowledge of the crime.”) (punctuation omitted); Garcia v. State, 290 Ga. App. 164, 165 (2) ( 658 SE2d 904 ) (2008) (affirming the appellant’s aggr

2025We determine whether one crime is included in another as a 19 (Punctuation omitted.) Powell v. State, 307 Ga. 96, 99 (1) ( 834 SE2d 822 ) (2019). 20 See Luke v. State, 324 Ga. App. 531, 533-534 (2) ( 751 SE2d 180 ) (2013) (“[S]ufficient evidence supports an aggravated assault conviction even though the defendant, while present during the crime, did not verbally threaten the victim; did not hold, shoot, or supply the gun used; and claimed no advance knowledge of the crime.”) (punctuation omitted); Garcia v. State, 290 Ga. App. 164, 165 (2) ( 658 SE2d 904 ) (2008) (affirming the appellant’s aggr

2025We determine whether one crime is included in another as a 19 (Punctuation omitted.) Powell v. State, 307 Ga. 96, 99 (1) ( 834 SE2d 822 ) (2019). 20 See Luke v. State, 324 Ga. App. 531, 533-534 (2) ( 751 SE2d 180 ) (2013) (“[S]ufficient evidence supports an aggravated assault conviction even though the defendant, while present during the crime, did not verbally threaten the victim; did not hold, shoot, or supply the gun used; and claimed no advance knowledge of the crime.”) (punctuation omitted); Garcia v. State, 290 Ga. App. 164, 165 (2) ( 658 SE2d 904 ) (2008) (affirming the appellant’s aggr

2025We determine whether one crime is included in another as a 19 (Punctuation omitted.) Powell v. State, 307 Ga. 96, 99 (1) ( 834 SE2d 822 ) (2019). 20 See Luke v. State, 324 Ga. App. 531, 533-534 (2) ( 751 SE2d 180 ) (2013) (“[S]ufficient evidence supports an aggravated assault conviction even though the defendant, while present during the crime, did not verbally threaten the victim; did not hold, shoot, or supply the gun used; and claimed no advance knowledge of the crime.”) (punctuation omitted); Garcia v. State, 290 Ga. App. 164, 165 (2) ( 658 SE2d 904 ) (2008) (affirming the appellant’s aggr

2025We determine whether one crime is included in another as a 19 (Punctuation omitted.) Powell v. State, 307 Ga. 96, 99 (1) ( 834 SE2d 822 ) (2019). 20 See Luke v. State, 324 Ga. App. 531, 533-534 (2) ( 751 SE2d 180 ) (2013) (“[S]ufficient evidence supports an aggravated assault conviction even though the defendant, while present during the crime, did not verbally threaten the victim; did not hold, shoot, or supply the gun used; and claimed no advance knowledge of the crime.”) (punctuation omitted); Garcia v. State, 290 Ga. App. 164, 165 (2) ( 658 SE2d 904 ) (2008) (affirming the appellant’s aggr

2025Accordingly, the aggravated assault count should have merged into Edouard’s conviction for the attempted armed robbery 21 (Punctuation omitted.) Davis v. State, 312 Ga. App. 328, 330 (1) ( 718 SE2d 559 ) (2011).

2025Accordingly, the aggravated assault count should have merged into Edouard’s conviction for the attempted armed robbery 21 (Punctuation omitted.) Davis v. State, 312 Ga. App. 328, 330 (1) ( 718 SE2d 559 ) (2011).

2025See Starks v. State, 320 Ga. 300 , 305 (2024) (Under the required-evidence test, “when the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime, but the accused may not be convicted of more than one crime if one crime is included in the other.