DILLARD, C. J., RAY and SELF, JJ.
jury trial, Tyson Danrail Evans was convicted of one count
each of aggravated assault, aggravated battery, possession of
a firearm during the commission of a felony, discharge of a
firearm on the property of another, and possession of a
firearm by a convicted felon. He appeals from his conviction
and the denial of his motion for new trial, arguing that the
trial court erred by failing to merge his aggravated battery
and aggravated assault convictions for the purposes of
sentencing, and that the trial court impermissibly expanded
the jury charge on aggravated assault. For the following
reasons, we vacate Evans' conviction for aggravated
assault and remand the case for re-sentencing.
in the light most favorable to the verdict,  the evidence
shows that Evans was at a house party when an argument broke
out between himself, Vickie Evans (Evans' mother), and
Wayne Holland. Albert Dye, Hollard's nephew, went over to
his uncle and tried to usher him out of the house to take him
home. The altercation turned physical when Evans' mother
moved to block Holland from leaving and began to push Dye and
slap him around the face to prevent them from leaving. In
order to keep her from slapping him, Dye caught Evans'
mother's arms and pushed her aside.
who was in another area in the living room, stood up and drew
a black handgun from his front waistband. From about six feet
away, Evans fired at Dye and Holland. The first bullet hit
some furniture. Holland fell to the floor and dragged Dye
down with him. Evans then ran over and "straddled"
both Holland and Dye as they lay on the floor. Evans then
fired again, striking Dye. Evans continued to pull the
trigger of his handgun as it was pointed at Dye, but the
handgun did not go off and Evans slapped at the upper slide
of the handgun in an attempt to chamber another round. Evans
fired at least one additional round, but it did not strike
anyone. As Evans stood over Dye pulling the trigger,
Evans' mother shouted "Kill him, Tyson!, " and
beat Dye with a barstool. Evans then fled the house.
responders soon arrived on the scene. At the hospital, it was
determined that Dye had suffered liver damage, a collapsed
lung, extensive damage to his eyes and three broken ribs.
was convicted of, inter alia, aggravated battery and
aggravated assault. He was sentenced, inter alia, to twenty
years in confinement on the aggravated battery charge and
twenty years in confinement on the aggravated assault charge,
to be served consecutively.
Evans argues that the trial court erred by failing to merge
his aggravated assault and aggravated battery convictions for
the purposes of sentencing. We agree.
count of the indictment charging Evans with aggravated
assault alleged, in pertinent part, that Evans "did make
an assault upon the person of Albert Dye with a deadly
weapon, to wit: a handgun by shooting said victim[.]" In
charging aggravated battery, the indictment alleged, in
pertinent part, that Evans "did maliciously cause bodily
harm to Albert Dye by seriously disfiguring said person's
body by shooting him in the abdomen[.]"
issue in the instant case is whether the aggravated assault
constituted a lesser included offense, as a matter of fact,
of the aggravated battery. A defendant may not be
"convicted of more than one crime where one crime is
included in another." (Punctuation and footnote
omitted.) Allen v. State, 302 Ga.App. 190, 193 (3)
(690 S.E.2d 492) (2010). OCGA § 16-1-6 (1) provides that
a crime is "included in a crime charged in the
indictment or accusation" when "[i]t 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 other crime]." Our Supreme Court has
[t]he test for determining whether one crime is included in
another, and therefore merges as a matter of fact, is the
'required evidence' test - whether conviction for one
of the offenses is established by proof of the same or less
than all the facts required to establish the other crime.
(Citation omitted.) Jeffrey v. State, 296 Ga. 713,
717 (3) (770 S.E.2d 585) (2015).
this test to the indictments in this case, we find that the
aggravated assault conviction is a lesser included offense of
the aggravated battery conviction. Although the aggravated
battery statutory provision required proof that the victim
had his body seriously disfigured,  which was not a required
showing under the applicable aggravated assault provision,
"the latter provision did not require proof of
any fact that was not also required to prove the aggravated
battery, as that offense could have been proved under the
indictment in this case." (Footnote omitted; emphasis in
original.) Allen, supra (finding that the aggravated
assault was a lesser included offense of the aggravated
battery when both offenses arose from the same incident where
the defendant struck the victim with a golf club). See also
Adkins v. State, 301 Ga. 153, 160-161 (4) (800
S.E.2d 341) (2017) (aggravated assault with a deadly weapon
conviction and aggravated assault by discharging a weapon
from a moving vehicle conviction merged; there was no element
of aggravated assault with a deadly weapon that was not
contained in aggravated assault by discharging a weapon from
a moving vehicle). The conviction and sentence for aggravated
assault must therefore be vacated and the case remanded to
the trial court for re-sentencing.
Evans argues that the trial court impermissibly expanded the
jury charge on aggravated assault. However, this enumeration