In the Supreme Court of Georgia



                                            Decided: June 6, 2016


                    S15G1829. REGENT v. THE STATE.

      HUNSTEIN, Justice.

      Appellant Steven Regent pled guilty to one count of aggravated assault

and one count of aggravated battery arising out of an incident in which he twice,

in quick succession, slashed his girlfriend’s throat. The Court of Appeals

affirmed Regent’s conviction and sentence for each offense, see Regent v. State,

333 Ga. App. 350 (774 SE2d 213) (2015), and we granted certiorari to review

the Court of Appeals’ conclusion that Regent’s convictions do not merge. We

now hold that Regent’s conviction for aggravated assault merged with his

conviction for aggravated battery, and we reverse the judgment of the Court of

Appeals.

      A Fulton County grand jury indicted Appellant on one count of

aggravated battery and one count of aggravated assault. The indictment charged

as follows:

                                 Count 1 of 2
      . . . the citizens of Georgia, do charge and accuse [Appellant] with
      the offense of Aggravated Assault OCGA § 16-5-21, for the said
      accused, in the County of Fulton and State of Georgia, on the 27th
      day of January, 2008, did unlawfully commit an assault upon the
      [victim] by cutting her throat with a knife, an object which when
      used offensively against a person is likely to result in serious bodily
      injury; - contrary to the laws of said State, the good order, peace
      and dignity thereof;

                                  Count 2 of 2

       . . . and the Grand Jurors aforesaid, in the name and behalf of the
      citizens of Georgia do charge and accuse [Appellant] with the
      offense of Aggravated Battery OCGA § 16-5-24, for said accused,
      in the County of Fulton and State of Georgia, on the 27th day of
      January, 2008, did maliciously cause bodily harm to [the victim]
      by seriously disfiguring her body; said accused having
      accomplished said act by slashing her across the throat with a
      knife; - contrary to the laws of said State, the good order, peace and
      dignity thereof.

(Emphasis added.) Appellant entered a non-negotiated plea of guilty to both

counts, and, following Appellant’s plea, the trial court received detailed

testimony from the victim. The victim testified that, shortly after the couple

returned to her residence following a birthday party, Appellant suddenly began

punching her; she fell to the floor. Appellant retrieved a knife from the kitchen.

According to the victim, Appellant “took the knife and slithered it across [her]

throat,” almost slicing off her ear. The victim testified that she screamed and


                                        2
fought but that he “did it again,” cutting her throat below the original injury. As

a result of her injuries, the victim has trouble speaking, eating, and swallowing;

the victim has also lost her sense of taste and has no feeling on the injured side

of her face.

      Appellant was sentenced to prison for 20 years, with 12 years to serve, for

the aggravated assault conviction; he received a consecutive 10-year sentence

for aggravated battery. On appeal, Appellant argued that the trial court erred by

denying his motion to merge the two convictions. The Court of Appeals,

applying the “required evidence test,” see Drinkard v. Walker, 281 Ga. 211 (636

SE2d 530) (2006), concluded that “aggravated assault and aggravated battery

are two separate offenses with different elements of proof” and, thus, that the

two offenses did not merge. Regent, 333 Ga. App. at 352. We granted certiorari

to review the Court of Appeals’ merger analysis, which we conclude was

incomplete and, therefore, incorrect.

      “Whether offenses merge is a legal question, which we review de novo.”

Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011).

      As an initial matter, the indictment appears to charge Appellant as if each

slice of the knife was a separate criminal act, the first count charging aggravated

                                        3
assault based on Appellant’s act of “cutting” the victim’s throat and the second

count charging aggravated battery based on Appellant’s act of “slashing” the

victim’s throat. Though we have not addressed this exact scenario, our case law

plainly holds that multiple wounds inflicted in quick succession do not

necessarily constitute distinct criminal acts. See Montes v. State, 262 Ga. 473

(1) (421 SE2d 710) (1992). See also Coleman v. State, 286 Ga. 291, 295 (3)

(687 SE2d 427) (2009) (“When a victim suffers multiple wounds inflicted in

quick succession, each infliction of injury does not constitute a separate

assault.”). Cf. Lowe v. State, 267 Ga. 410, 412 (1) (a) (478 SE2d 762) (1996)

(separate convictions for aggravated assault and murder were authorized by

evidence showing that defendant committed an initial aggravated assault

independent of his subsequent act which caused the victim’s death). Rather, we

have recognized that a deliberate interval must exist between the completion of

one criminal act and the start of a separate criminal act. Ingram v. State, 279 Ga.

132, 133 (2) (610 SE2d 21) (2005).

      Here, Appellant straddled his girlfriend, slashed her throat and, almost

immediately thereafter while she fought against him, cut her again. The record

sufficiently establishes that Appellant’s actions were “part of a continuous

                                        4
criminal act, committed at the same time and place and inspired by the same

criminal intent.” Id. See also Mikell v. State, 286 Ga. 722, 724-725 (3) (690

SE2d 858) (2010) (49 successive stab wounds inflicted in quick succession

constituted a single assault). Accordingly, though Appellant was charged as if

he had committed two distinct criminal acts, the charges here arose out of the

same criminal transaction. This conclusion does not end our inquiry; we must

next determine whether Appellant’s separate conviction and sentence for each

offense was proper.

      While an accused may be prosecuted for more than one crime arising out

of the same criminal conduct, he may not be convicted of more than one crime

arising out of the same criminal conduct where one crime is included in the

other. OCGA § 16-1-7 (a) (1). A crime is included in the other 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.

OCGA § 16-1-6. With respect to subsection (1), the “required evidence test” is


                                         5
utilized to determine “whether multiple convictions are precluded because one

of the crimes was ‘established by proof of the same or less than all the facts’ that

were required to establish the other crime.” Drinkard, 281 Ga. at 216, n.32.

While the Court of Appeals employed the required evidence test below, that test

is exclusive to a merger analysis under OCGA § 16-1-6 (1); however, there are

other circumstances in which a merger analysis will not end with the required

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

also Crayton v. State, ___ Ga. ___, ___ (784 SE2d 343) (2016) (Blackwell, J.,

concurring in part and dissenting in part). As this Court explained in Drinkard,

“[t]hese other statutory provisions resolve potential gaps in the Blockburger [v.

United States, 284 U.S. 299 (52 SCt 180, 76 LEd 306) (1932)] ‘required

evidence’ analysis which otherwise might support multiple convictions for

closely related offenses where multiple convictions are unwarranted.” 281 Ga.

at 216, n.32. Thus, even if the Court of Appeals correctly concluded that

aggravated assault and aggravated battery each require proof of elements that

the other does not – thus satisfying the required evidence test relevant to OCGA

§ 16-1-6 (1) – the merger of the two offenses may still be required by Georgia’s

other statutory definitions of included offenses. Ledford, 289 Ga. at 73.

                                         6
      Relevant here, subsection (2) of OCGA § 16-1-6 provides that one crime

is included in another if that crime differs from the other “only in the respect

that a less serious injury or risk of injury to the same person, property or public

interest . . . suffices to establish its commission.” In Ledford, this Court

concluded “that the only difference between aggravated battery and murder is

that the former requires a less serious injury to the person of the victim, as the

injury to a bodily member specified in the aggravated battery statute is

obviously less serious than death.” 289 Ga. at 74. See also Soilberry v. State,

289 Ga. 770 (3) (716 SE2d 162) (2011). Likewise, the offenses here, which are

based on the single criminal act of Appellant cutting the victim’s throat with a

knife, only differ with respect to the seriousness of the injury or risk of injury

suffered by the victim; while the aggravated assault count requires proof that

Appellant cut the victim’s throat with a knife, a weapon likely to result in serious

bodily injury, the aggravated battery count requires proof of actual “bodily harm

by serious disfigurement” that resulted from Appellant having slashed the

victim’s throat with a knife. Accordingly, as charged here, aggravated assault




                                         7
is included in aggravated battery, and the two offenses should have merged.1

See Thomas v. State, 310 Ga. App. 404 (5) (714 SE2d 37) (2011) (aggravated

assault and aggravated battery, both premised on defendant’s act of striking the

victim with a hammer, merged pursuant to OCGA § 16-1-6 (2) because, as

charged in the indictment, aggravated assault required proof of a less serious

injury than aggravated battery).

      The trial court erred by failing to merge aggravated assault with



      1
       There exists a line of cases in the Court of Appeals holding that
aggravated assault with a deadly weapon and aggravated battery do not merge
because aggravated assault requires proof of the use of a weapon, while
aggravated battery does not. See, e.g., Howard v. State, 334 Ga. App. 229 (2)
(b) (779 SE2d 5) (2015). These decisions fail to recognize, however, that in
cases where a defendant causes the serious bodily harm required for aggravated
battery – which includes rendering a member of a body useless or serious
disfigurement, see OCGA § 16-5-24 (a) – a defendant will almost always have
used a “deadly weapon or . . . any object, device, or instrument which, when
used offensively against a person, is likely to or actually does result in bodily
injury,” which also proves aggravated assault, see OCGA § 16-5-21 (b) (2).
See, e.g., Dasher v. State, 285 Ga. 308 (676 SE2d 181) (2009) (recognizing that
hands and feet may be deadly weapons depending on the circumstances of the
offense and the victim’s injuries). Accordingly, though the statutory provisions
differ with respect to a “weapon” element, the practical result is that the same
weapon that is required for aggravated assault also plays a role in the injuries
giving rise to the aggravated battery charge; in such cases, where serious bodily
harm arises from the use of a deadly weapon, the bodily harm element implies
the use of a weapon.
                                       8
aggravated battery, and the Court of Appeals erroneously affirmed that decision.

The judgment of the Court of Appeals is reversed, and this case is remanded for

proceedings consistent with this opinion.2

      Judgment reversed and case remanded. All the Justices concur.




      2
       The Court of Appeals also vacated a banishment provision in Appellant’s
sentence; we were not asked to consider this issue, and our decision has no
bearing on that portion of the Court of Appeals’ judgment.
                                       9
