concurring specially.
1.1 fully concur in all divisions of this opinion, and as to Division 6, I concur specially.
2. Regarding Division 6, I wish to emphasize the following: Some type of merger is required as stated by the majority. In State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475), it was held that OCGA §§ 16-1-6 and 16-1-7 “establish alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law so as to bar conviction and punishment for more than one crime. Heretofore the rule was that an accused could not be convicted and punished for more than one crime if they were the same as a matter of fact and as a matter of law.” (First emphasis supplied.) Id. at 319.
These offenses (child molestation as averred and simple sodomy) may be separate as a matter of law; however, I believe that in this instance they definitely are not separate as a matter of fact. The trial record conclusively establishes that one and only one act of sodomy occurred during this entire period. Clearly, in order to prove the offense of child molestation, as that offense was charged, the State of *535necessity had to prove the entire offense of simple sodomy. A crime is a lesser included offense, as a matter of fact, whenever “[i]t is established by proof of the same or less than all the facts . . . required to establish the commission of the [other] crime charged.” (Emphasis supplied.) OCGA § 16-1-6 (1); compare LaPalme v. State, 169 Ga. App. 540 (313 SE2d 729). As stated succinctly by Chief Judge Carley, Presiding Judge Deen and Judge Sognier, in Kelly v. State, 188 Ga. App. 362 (3) (373 SE2d 63), “ ‘[o]ffenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other.’ ” (Emphasis supplied.) Id.; Fredrick v. State, 181 Ga. App. 600 (2) (353 SE2d 41), citing Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (when the State uses up all the evidence that the defendant committed one crime in establishing another crime, the former is included as a matter of fact under OCGA § 16-1-6).
The case of McCollum v. State, 177 Ga. App. 40 (338 SE2d 460), should be obvious to all to be clearly distinguishable from the operative facts conclusively established by this record. In McCollum the evidence unequivocally established that the defendant had committed numerous acts of sodomy over a long period of time. Thus, the jury could have found the defendant guilty of one particular sodomy offense to support its guilty verdict of the sodomy charge and of entirely different sodomy offenses to support its verdict of guilty of child molestation. In this case, there was only one act of sodomy committed, and it is impossible to prove appellant committed child molestation as averred in Count I without also proving that he committed simple sodomy as charged in Count III. Thus, appellant’s conviction of both offenses without some type of merger violates OCGA § 16-1-7 (a) (1).
3. Believing that some type of merger is mandated, I would have preferred to seize upon this opportunity to overrule in part Green v. State, 170 Ga. App. 594 (317 SE2d 609). Green needlessly restricts the express power of this court, see generally OCGA §§ 15-1-3 (6) and 15-2-8 (7), by requiring that in all such cases merger be accomplished by merging the so-called lesser offense into the greater. Nothing expressly contained in OCGA §§ 16-1-6; 16-1-7 or 16-1-8 requires that merger be accomplished in any particular manner. All that is required is some type of merger so that an offender is not in effect convicted, as in this case, twice for committing either the same offense or the same criminal misconduct (as above discussed). Normally, I would prefer to apply the rule that merger will be accomplished by merging the less serious criminal misconduct into the more serious misconduct. In such cases, the maximum punishment prescribed by statute normally would control in determining which conduct is most serious. Utilization of this rule would generally result in amending an of*536fender’s criminal conviction record in a manner which would more accurately reflect the true gravity of the defendant’s criminal misconduct. However, it would be appropriate in certain cases to apply other merger rules to more accurately affirm conviction results. For example, in this case we could merge the offending language from the child molestation specification into the simple sodomy specification and affirm both convictions, as amended. The requirements of OCGA § 16-1-7 (a) (1) would be met, but in a more accurate manner so as to reflect the true gravamen and scope of the criminal conduct of which appellant was convicted.