Gonzales v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: February 21, 2023

S22A1303. GONZALES v. THE STATE.

BOGGS, Chief Justice.

Appellant Robert Michael Gonzales challenges his convictions

for aggravated battery and felony murder, predicated on cruelty to

children in the first degree, in connection with the death of three-

year-old Samuel Carroll, the son of Appellant’s girlfriend Jocelyn

Carroll. Appellant contends that the evidence was legally

insufficient to support his convictions. We conclude that the

evidence presented at trial was legally sufficient to support

Appellant’s convictions as a matter of constitutional due process.

However, we vacate Appellant’s sentence for aggravated battery

because this count should have merged with the felony murder

conviction under these particular facts. Thus, we affirm in part and
vacate in part.1

1. “It is incumbent upon the Court to question its jurisdiction

in all cases in which jurisdiction may be in doubt.” Woods v. State,

279 Ga. 28, 28 (608 SE2d 631) (2005). The jurisdictional question

presented here is whether the judgment below is final and thus

appealable under OCGA § 5-6-34 (a) (1) (appeals may be taken from

“final judgments”). As set forth in footnote 1, at the time Appellant

1 The crimes occurred on February 27, 2011. On May 20, 2011, a Liberty
County grand jury indicted Appellant for malice murder, felony murder
(predicated on cruelty to children in the first degree), aggravated battery, and
three counts of cruelty to children in the first degree. The child cruelty count
underlying the felony murder count alleged that Appellant caused Samuel
cruel and excessive physical and mental pain by inflicting severe blunt force
trauma to his head. The other two child cruelty counts (Counts 5 and 6) were
based on Appellant’s interactions with Samuel on two occasions prior to
February 27, 2011, in which he “taunt[ed]” and “terroriz[ed]” Samuel. At a trial
on September 18 and 19, 2012, the jury found Appellant not guilty of malice
murder and guilty of all the other charges. The trial court sentenced Appellant
to serve life in prison with the possibility of parole for felony murder, a
consecutive 20-year term for aggravated battery, and two concurrent 20-year
terms for the child cruelty counts charged in Counts 5 and 6. The third child
cruelty count merged with the felony murder count. On October 2, 2012,
Appellant filed a motion for new trial, which he amended with new counsel on
August 14, 2019. On April 14, 2022, the trial court entered an order granting
the motion for new trial as to Counts 5 and 6, on the basis that the jury should
have been given an instruction on a lesser-included offense as to those counts.
The trial court otherwise denied the motion. Appellant filed a timely notice of
appeal on May 12, 2022. On May 16, 2022, the trial court granted the State’s
motion to dismiss Counts 5 and 6, and on July 22, 2022, the case was docketed
in this Court to the August 2022 term and submitted for decision on the briefs.

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filed his notice of appeal, two counts alleging cruelty to children

remained pending below because the trial court had granted

Appellant’s motion for new trial as to those counts. But shortly

thereafter, the trial court granted the State’s motion to dismiss the

two pending counts. 2 After the State filed a motion to dismiss the

appeal under Seals v. State, 311 Ga. 739, 742 (860 SE2d 419) (2021)

(a criminal case is not final and appealable until the trial court

“enters a written judgment on each count of the indictment”), we

requested supplemental briefs from the parties addressing whether

the supersedeas effect of the notice of appeal deprived the trial court

of jurisdiction to enter the dismissal order, and if not, whether the

notice of appeal ripened so as to vest jurisdiction in this Court. We

also invited amicus briefs on this issue. 3 The parties and amici now

2 The trial court’s dismissal order here was entered in the same term of
court as the order granting the new trial. See OCGA § 15-6-3 (4) (c) (providing
that the terms of court for the Superior Court of Liberty County commence on
the second Monday in February and September). See Kelly v. State, ___ Ga. ___
(___ SE2d ___) (2023 WL 212972, at *2-3) (Jan. 18, 2023) (discussing trial
court’s authority to alter judgment outside of the term of court in which the
judgment was entered).
3 We appreciate the helpful contributions to our consideration of this case

from amici the Georgia Association of Criminal Defense Lawyers and the
Georgia Public Defender Council.
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contend that the appeal is properly before the Court, and we agree.

(a) When the trial court granted Appellant’s motion for new

trial in part, it did so because of an instructional error, not

insufficiency of the evidence. Thus, at the time Appellant filed his

notice of appeal, the two counts of child cruelty remained pending,

such that the convictions for felony murder and aggravated battery

did not constitute a final, appealable judgment. See Jenkins v. State,

294 Ga. 506, 509 (755 SE2d 138) (2014) (stating general rule that

the grant of a new trial on a ground other than insufficiency of the

evidence does not preclude retrial). Compare Jefferson v. State, 310

Ga. 725, 727 (854 SE2d 528) (2021) (holding that the partial grant

of the motion for new trial on the basis that the evidence as to two

counts was constitutionally insufficient, rendered the judgment on

those counts final such that the defendant’s direct appeal of his other

convictions was authorized). In Seals, this Court made clear that

when one or more counts of an indictment remain pending following

convictions on other counts, the defendant is authorized to appeal

the judgment on the convictions only by following the procedures for

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interlocutory review set forth in OCGA § 5-6-34 (b). See Seals, 311

Ga. at 739, 750 n.6. And when a criminal defendant is required to

follow the procedures for interlocutory appeal to challenge an order,

the supersedeas effect of the defendant’s filing of a notice of appeal

following the grant of an application for interlocutory appeal is

governed by OCGA § 5-6-46. See Sanders v. State, 313 Ga. 191, 194

(869 SE2d 411) (2022). The relevant question in this case then

concerns the supersedeas effect of a notice of appeal when a criminal

defendant has failed to follow required interlocutory appeal

procedures.

“Even if an appeal is jurisdictionally defective from the outset,

a notice of appeal generally acts as supersedeas until the appeal is

dismissed.” See Jones v. Peach Trader Inc., 302 Ga. 504, 508 (807

SE2d 840) (2017). However, the filing of a notice of appeal in a civil

case from an order that is appealable only under OCGA § 5-6-34 (b)

does not act as a supersedeas in the absence of an order from the

appropriate appellate court granting the interlocutory application

and does not nullify actions taken by the trial court following the

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filing of the notice of appeal. See Islamkhan v. Khan, 299 Ga. 548,

551-552 (787 SE2d 731) (2016) (holding that husband’s filing of a

notice of appeal from judgment of divorce, which reserved issue of

attorney’s fees, did not preclude the trial court from considering

husband’s motion for reconsideration and modifying the divorce

judgment). See also Jones, 302 Ga. at 510 (“if an appellate court

determines that an appeal was not authorized because the decision

at issue was interlocutory rather than final, . . . then supersedeas

never attached”). As we recognized in Sanders, OCGA § 5-6-34 (b)

applies in both civil and criminal cases. See 313 Ga. at 194. And we

now conclude that the rationale of Islamkhan applies when a

criminal defendant files a notice of appeal to challenge an order that

is not directly appealable.4 299 Ga. at 551-552 (holding that, because

4We note that a criminal defendant is authorized to file a notice of appeal
to challenge certain interlocutory orders without having to comply with the
procedures set forth in OCGA § 5-6-34 (b). See, e.g., Roberts v. State, 309 Ga.
639, 641-642 (847 SE2d 541) (2020) (holding that order denying timely
statutory double jeopardy claim is directly appealable); Johnson v. State, 300
Ga. 252, 257 (794 SE2d 60) (2016) (stating that order denying a motion for
acquittal on statutory speedy trial grounds is directly appealable). We also note
that there may be instances in which supersedeas does not attach
automatically in a criminal case, see Jones, 302 Ga. at 510 n.8, but these
concepts are beyond the scope of this opinion.
6
unauthorized notice of appeal failed to invoke this Court’s appellate

jurisdiction, its filing did not deprive trial court of jurisdiction). For

such a notice of appeal to be effective, it would have to have been

filed after the appropriate appellate court had granted an

interlocutory application. See Tolbert v. Toole, 296 Ga. 357, 360 (767

SE2d 24) (2014) (“[i]f the notice of appeal was effective, . . . its filing

would have acted as supersedeas”). Of course, as we explained in

Jones, only an appellate court has the authority to determine if a

notice of appeal is effective, and a trial court lacks jurisdiction to

dismiss a procedurally improper notice of appeal. 302 Ga. at 508-

509. 5

With these principles in mind, we now hold that Appellant’s

timely filing of a notice of appeal from the entry of the judgment of

conviction on the felony murder and aggravated battery counts,

We caution trial courts that if the appellate court ultimately determines
5

that the notice of appeal is authorized and sufficient to invoke its jurisdiction,
actions taken by the trial court following the filing of the notice of appeal are
“subject to the peril that any decision reached which conflicts with the decision
of the appellate court when rendered will thereby be made nugatory.” Avren v.
Garten, 289 Ga. 186, 190-191 (710 SE2d 130) (2011).
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which notice of appeal was unauthorized in the absence of an order

from this Court granting an interlocutory application, see Tolbert,

296 Ga. at 360, did not preclude the trial court from dismissing the

child cruelty counts that remained pending. Accordingly, the trial

court’s entry of an order of dismissal resolved the pending child

cruelty counts, resulting in a final judgment that was appealable

under OCGA § 5-6-34 (a).

(b) We acknowledge that in a footnote in Seals, 311 Ga. at 740

n.2, we implied a contrary answer to the question presented here. In

Seals, we were considering whether the Court of Appeals erred in

dismissing an appeal of a conviction where dead-docketed counts

had not been finally resolved. After briefing in this Court had

concluded, the trial court entered an order nolle prossing the dead-

docketed counts, thus finally resolving them. Seals then filed a

supplemental brief, attaching the nolle pros order. In addressing the

supplemental brief, we stated that “[t]he trial court did not have

jurisdiction to enter [a nolle pros order of the dead-docketed counts]

because the appeal was pending here.” Id. Whether the trial court

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had such jurisdiction was not an issue before this Court—the issue

was whether the Court of Appeals had correctly dismissed Seals’

appeal for failing to follow the interlocutory appeal procedures,

which dismissal occurred before the entry of the nolle pros order.

And more significantly, the trial court’s order had not been made a

part of the record on appeal under OCGA § 5-6-48 (d) 6, and thus we

could not consider it on appeal. See generally Brown v. Fokes Prop.

2002, 283 Ga. 231, 232 (657 SE2d 820) (2008) (“the exhibit attached

to . . . appellate brief but not appearing in the record transmitted by

the trial court cannot be considered by this court”) (cleaned up).

Accordingly, the statement in Seals regarding a trial court’s

authority to nolle pros pending counts following the filing of a notice

of appeal does not control here.7 As we have previously explained:

6 OCGA § 5-6-48 (d) provides that “at any stage of the proceedings” an
appellate court “shall by order . . . take any other action to perfect the appeal
and record so that the appellate court can and will pass upon the appeal and
not dismiss it.” Because the trial court’s dismissal order was in the record when
the record was docketed in this Court, we need not address the scope of the
General Assembly’s directive that the appellate court take action to perfect an
appeal.
7 We hereby disapprove the statement in Seals that “[t]he trial court did

not have jurisdiction to enter that order because the appeal was pending here.”
See 311 Ga. at 740 n.2.
9
 It is, of course, axiomatic that a decision’s holding is
limited to the factual context of the case being decided and
the issues that context necessarily raises. Language that
sounds like a holding — but actually exceeds the scope of
the case’s factual context — is not a holding no matter
how much it sounds like one.

Schoicket v. State, 312 Ga. 825, 832 (865 SE2d 170) (2021).

(c) Because the trial court’s prompt dismissal of two pending

child cruelty counts rendered the judgment final, Appellant’s

previously filed premature notice of appeal ripened. See Gillen v.

Bostick, 234 Ga. 308, 310-311 (215 SE2d 676) (1975) (holding that a

notice of appeal filed before the entry of the judgment is effective to

vest jurisdiction in the appellate court). See also Southall v. State,

300 Ga. 462, 466-467 (796 SE2d 261) (2017) (stating that once a

judgment is entered, an early notice of appeal “ripens and becomes

as timely as any notice could ever be” and that “[i]t would . . . go

beyond the statutory mandate to deem such premature . . . notices

of appeal ‘void’—so long as they sufficiently indicate the judgment

from which relief is sought—when they are filed at any time prior to

the expiration of the 30-day time limit” in OCGA § 5-6-38 (a)

10
(cleaned up)). 8 Accordingly, the appeal is properly before the Court.

2. Viewed in the light most favorable to the verdicts, the

evidence at trial showed that sometime after 9:00 p.m. on February

27, 2011, Appellant brought Samuel to the emergency room at

Liberty Regional Hospital in Liberty County. Samuel was

unresponsive, and Appellant told Dr. James Green, the treating

emergency room physician, that Samuel had suffered an injury on

the playground four to five hours earlier that day; that thereafter

Samuel ate a hotdog, watched television, and played video games;

and that ten minutes before Appellant arrived in the emergency

room, Samuel “went listless.” At the hospital, Samuel was

completely unresponsive, was diagnosed with a severe brain injury,

and was airlifted to Memorial Hospital in Savannah, where he

remained in a coma. When a test showed that no blood was flowing

8 Although we characterized a defective “attempted appeal” in
Islamkhan, 299 Ga. at 551, as “a nullity” that was incapable of invoking this
Court’s jurisdiction, this description was more about the effect of the notice of
appeal at the time it was filed. And nothing in Islamkhan is contrary to the
well-settled principle that a notice of appeal that is filed to challenge an
anticipated final judgment ripens upon the entry of the final judgment.
11
to his brain, Samuel was declared dead on March 3, 2011.

At trial, Appellant told a different story than he had provided

to the doctors who treated Samuel. According to his trial testimony,

Appellant had been at his home babysitting Samuel on February 27

while Jocelyn was at work. When it was time to leave to pick up

Jocelyn after her shift ended about 9:30 p.m., Samuel was sound

asleep. Appellant put on Samuel’s jacket, socks, and shoes, but

Samuel did not awaken. As Appellant carried Samuel to the car,

Appellant was trying to wake him up and tossed him into the air. At

that moment, Appellant suddenly had a sharp pain in his groin—

related to recent surgery he had in December 2010—and collapsed

on the ground and was unable to catch Samuel, who fell on a

concrete walkway. According to Appellant, Samuel was “gurgling”

and non-responsive. Appellant called Jocelyn, told her “what had

happened,”9 and then drove Samuel to the hospital. Appellant did

not tell the doctors or anyone else what actually happened because

he was scared.

9 Jocelyn did not testify at trial.
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 Medical examiner Dr. James Downs, who performed Samuel’s

autopsy, concluded that the cause of death was multiple acute blunt-

force injuries to his head. In his testimony, Dr. Downs described

Samuel’s numerous external and internal head injuries, which

included an abnormal amount of blood around, and swelling of, his

brain. Dr. Downs opined that these injuries could not have been

received simultaneously from a fall but rather indicated multiple

impacts and applications of blunt force. Additionally, Dr. Downs

testified that Samuel suffered numerous injuries to his abdomen,

chest, back, arms, and legs, and he opined that most of these injuries

also happened only a few hours before Samuel arrived at the

emergency room and were not indicative of having been sustained

in a fall. Dr. Downs further testified that internal injuries around

Samuel’s eyes were indicative of an “inflicted” rather than an

accidental injury and that the injury to Samuel’s spine also

indicated a violent impact.

The physicians who treated Samuel at the hospitals, and who

testified as experts, testified that Samuel’s injuries were not

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consistent with Appellant’s explanations of how the injuries

occurred. Dr. Green, who evaluated Samuel at the emergency room,

testified that the amount of blood on Samuel’s brain indicated either

a “slow bleed” that had continued for a very long time or an

immediate trauma that had happened only a few minutes before the

victim’s arrival at the emergency room. Dr. Green explained that if

Samuel suffered a slow bleed over a long period of time, he would

not have been able to eat a hotdog, play video games, and watch

television after the injury; instead, he would have been vomiting and

complaining of a headache. Dr. Mary Carol Lytle, who treated

Samuel at Memorial Hospital, testified that Samuel’s injury was

similar to injuries she had seen where a child was ejected from a

vehicle during a high-speed automobile accident or had been riding

an all-terrain vehicle without a helmet and was thrown from the

vehicle following a high-speed crash. According to Dr. Lytle,

Samuel’s injuries were not consistent with a fall from standing

height or falling to the ground after being tossed in the air. She

testified that a child would have to fall from a height of at least 15

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to 20 feet in order to sustain the type of injuries Samuel suffered.

The State also presented testimony from two of Samuel’s

babysitters, Sandra McPhearson and Shannon Wright. McPhearson

testified that in early January 2011 she started babysitting Samuel

in her home four days a week while Jocelyn was at work; that on the

first day she cared for him, he had two bruises on his cheeks; that

on another occasion, she observed bruises and a “skinned place” on

his arm; and that when she asked Samuel about the injury on his

arm, he responded “Robert boo.” McPhearson also described

Samuel’s unusual and extremely negative reaction the one day when

Appellant accompanied Jocelyn to pick him up. On that occasion,

according to McPhearson, Samuel saw Appellant’s car and

“immediately started screaming”; was “crying and kicking and

screaming” as Jocelyn carried him to Appellant’s car; and put his

feet up to try to prevent being placed in Appellant’s car. McPhearson

further testified that on February 23, Samuel was not feeling well,

was tired, was not eating much, and had “little blood dots” around

his eyes and down the side of his face and that she asked Jocelyn to

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pick up Samuel and take him to the doctor. The following day, it

appeared to McPhearson that Samuel still did not feel well.

Wright testified that Samuel stayed overnight at her home the

night before his hospitalization. Although he seemed tired, he ate

dinner, watched television, and slept normally, but when Appellant

came the next morning to pick him up, he did not want to leave

Wright’s home and cried and clung to Wright’s leg.

Dr. Francisco, a pediatrician, testified that on February 25,

2011, Jocelyn brought Samuel into his office for an evaluation of a

rash on Samuel’s face. Dr. Francisco testified that the rash, or

“petechia,” can be caused by forceful vomiting but also may be

present in situations where a child has suffered physical abuse.

However, Dr. Francisco testified that during the evaluation, he did

not have any concerns about child abuse.

Finally, the State introduced into evidence an eight-minute

video that showed interactions Appellant had with Samuel on two

occasions prior to February 27, 2011. The first excerpt showed

Samuel cry as Appellant repeatedly offered him containers of toys

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and then took the containers away as Samuel tried to take a toy. The

second excerpt showed Appellant toss Samuel onto what appears to

be a couch or chair, while asking if Samuel wants “to be thrown.” In

the second excerpt, Appellant also appeared to lightly punch and

slap Samuel, while asking if it hurts and if Samuel wants to “fight.”

Samuel cried during the “fighting” and in response to Appellant’s

question as to whether it hurts, sometimes said “it hurts” and

sometimes said “no hurt.” Samuel appeared to laugh and say “it fun”

while being tossed.

3. Appellant contends that the evidence presented at trial was

constitutionally insufficient to support his convictions for felony

murder and aggravated battery under Jackson v. Virginia, 443 U.S.

307, 319 (99 SCt 2781, 61 LE2d 560) (1979). He also asserts that the

evidence supported convictions only on the lesser included offenses

on which the jury was instructed—reckless conduct and involuntary

manslaughter premised on reckless conduct. We disagree.

To convict Appellant of felony murder while in the commission

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of first degree cruelty to children, 10 as alleged in the indictment, the

State was required to prove that Appellant caused Samuel’s death

“by inflicting a severe blunt force trauma to the head of Samuel” and

did so in such a way as to “maliciously cause Samuel Carroll, a child

under the age of eighteen (18) years, cruel and excessive physical

and mental pain by inflicting severe blunt force trauma” to his head.

To convict Appellant of aggravated battery, as alleged in the

indictment, the State was required to prove that Appellant “did

maliciously cause bodily harm” to Samuel “by rendering his brain .

. . useless.”11 When viewed in the light most favorable to the verdicts,

see Jackson, 443 U.S. at 319, the evidence presented at trial and

summarized above authorized the jury to reject Appellant’s

testimony; credit the testimony of the physicians over Appellant’s

inconsistent explanations for Samuel’s injuries; and conclude that

10 OCGA § 16-5-70 (b) provides that “[a]ny person commits the offense of
cruelty to children in the first degree when such person maliciously causes a
child under the age of 18 cruel or excessive physical or mental pain.”
11 OCGA § 16-5-4 (a) provides that “[a] person commits the offense of

aggravated battery when he or she maliciously causes bodily harm to another
by depriving him or her of a member of his or her body, by rendering a member
of his or her body useless, or by seriously disfiguring his or her body or a
member thereof.”
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Appellant, who evidence indicated was the sole person taking care

of Samuel at the time he suffered his injuries, inflicted severe blunt

force trauma to Samuel’s head that rendered his brain “useless” and

caused his death and that Appellant did so maliciously rather than

with the lesser culpability required to establish reckless conduct. 12

Furthermore, the jury was authorized to conclude that because of

the force required to inflict the injuries to Samuel’s head and brain,

Samuel suffered cruel and excessive physical pain. Accordingly, we

conclude that the evidence was sufficient as a matter of

constitutional due process to authorize a rational jury to find

Appellant guilty beyond a reasonable doubt of aggravated battery

and felony murder based on cruelty to children in the first degree.

See id. See also Hounkpatin v. State, 313 Ga. 789, 793 (873 SE2d

201) (2022) (stating that jury was authorized to credit experts’

12 Under OCGA § 16-5-60 (b), “reckless conduct” is committed when a
person “causes bodily harm to . . . another person by consciously disregarding
a substantial and unjustifiable risk that his or her act or omission will cause
harm or endanger the safety of the other person and the disregard constitutes
a gross deviation from the standard of care which a reasonable person would
exercise in the situation.”
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testimony as to cause of child’s death and to reject defense

hypothesis as to another cause); Vega v. State, 285 Ga. 32, 33 (673

SE2d 223) (2009) (“It was for the jury to determine the credibility of

the witnesses and to resolve any conflicts or inconsistencies in the

evidence.” (cleaned up)).

4. Although the evidence was legally sufficient to support

Appellant’s convictions, we have identified a merger error that

harms Appellant and therefore should be corrected. See Dixon v.

State, 302 Ga. 691, 696-697 (808 SE2d 696) (2017) (noting this

Court’s discretion to correct merger errors sua sponte and stating

that “[t]here are powerful reasons to exercise that discretion when a

merger error leads to an unauthorized conviction and sentence”).

The indictment charged that the same conduct established

aggravated battery and felony murder predicated on cruelty to

children. Pretermitting whether the two offenses, as charged,

required proof of a fact that the other did not, see Drinkard v.

Walker, 281 Ga. 211, 214-215 (636 SE2d 530) (2006), we conclude

that merger is required under OCGA §§ 16-1-7 (a) (1) and 16-1-6 (2).

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OCGA § 16-1-7 (a) (1) provides that when the same conduct of a

defendant establishes the commission of more than one crime, he

may not be convicted of more than one crime if “[o]ne crime is

included in the other,” and OCGA § 16-1-6 (2) provides that one

crime is included in another when the crime differs from the other

crime only in that it involves ”a less serious injury or risk of injury

to the same person . . . or a lesser kind of culpability.” And it is well-

settled 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.”

(cleaned up). Soilberry v. State, 289 Ga. 770, 772-773 (716 SE2d 162)

(2011) (holding that where indictment alleged same conduct, trial

court erred in failing to merge conviction for aggravated battery into

murder conviction). Accordingly, we vacate Appellant’s separate

sentence for aggravated battery.

Judgment affirmed in part and vacated in part. All the Justices
concur.

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