A Cobb County jury found Rashun Elamin guilty beyond a reasonable doubt of robbery by intimidation, OCGA § 16-8-41 a; aggravated assault, OCGA § 16-5-21 a 1; false imprisonment, OCGA § 16-5-41 a; and theft by receiving stolen property, OCGA § 16-8-7 a. He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion because the jury’s verdict was mutually exclusive and illegal, the court’s sentence was illegal, and the indictment was void. Elamin also argues that his conviction for aggravated assault should have merged as a matter of fact with his conviction for robbery by intimidation. For the following reasons, we affirm. 1. As an initial matter, we address Elamin’s merger argument, even though Elamin did not raise this issue in the court below or enumerate it as error on appeal.1Georgia’s statutory bar to successive prosecutions and multiple convictions for the same conduct, OCGA § 16-1-7, is more expansive than the constitutional proscription of double jeopardy. OCGA § 16-1-7 a sets forth the substantive bar of double jeopardy by providing that an accused may be prosecuted for each crime that arises from the accused’s conduct, but an accused may not be convicted of more than one crime, if one crime is included in the other. Thus, Georgia law bars conviction and punishment of all crimes which arise from the same criminal conduct and are as a matter of law or a matter of fact included in the major crime for which the defendant has been convicted.Citations and punctuation omitted; emphasis in original. Curtis v. State , 275 Ga. 576, 577 1 571 SE2d 376 2002. In determining whether there are two separate offenses or one crime is included in the other, Georgia’s courts apply the “required evidence” test. Williams v. State , __Ga. App.__ 1 Case No. A08A1508, decided July 18, 2008.
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the required evidence test is whether each provision requires proof of a fact which the other does not. As the Supreme Court of Georgia stated previously, a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.Citation and punctuation omitted. Id. See also Drinkard v. Walker , 281 Ga. 211, 214-217 636 SE2d 530 2006 adopting the “required evidence” test for determining when one crime is included in another under OCGA § 16-1-6 1, and overruling cases which are inconsistent with that test.
