Actual Evidence Test and Required Evidence Test

An accused may be prosecuted for more than one crime if his conduct may establish the commission of more than one crime, but multiple convictions arising from the same conduct are prohibited if one crime is "included in the other." OCGA § 16-1-7 (a) (1).

To determine whether one offense is included in another under either OCGA § 16-1-7 (a) (1) or OCGA § 16-1-6 (1), the Supreme Court of Georgia disapproved the "actual evidence" test and adopted the "required evidence" test in Drinkard v. Walker, 281 Ga. 211, 212-213 (636 SE2d 530) (2006).

If the same act or transaction violates two distinct statutory provisions, "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 215.

Preval argues that the statutes under which he was charged both prohibit the possession or manufacture of marijuana with the intent to distribute and only differ in the amount of weight required to prove trafficking under OCGA § 16-13-31 (c).

In determining whether a crime was included for merger, our courts previously employed an "actual evidence" test in which we focused on whether "'the evidence actually presented at trial to establish the elements of one crime charged also established all the elements of the other crime.'"

Recently, however, our Supreme Court has eschewed this test, adopting instead the "required evidence" test.

Now, the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Further, the holding in Galbreath v. State, 213 Ga. App. 80 (443 SE2d 664) (1994), that possession of marijuana was not a necessary element of the crime of growing marijuana, was decided under the pre-Drinkard "actual evidence" test and addressed whether possession should have been charged as a lesser included offense of manufacturing marijuana.

In Hunt v. State, 222 Ga. App. 66, 69 (2) (473 SE2d 157) (1996), which also applied the "actual evidence" test, the possession of marijuana and manufacturing marijuana counts did not merge because evidence of harvested bales of marijuana on one location established possession and evidence of living marijuana plants in another location established the manufacturing count.

In Hunt v. State, 222 Ga. App. 66, 69 (2) (473 SE2d 157) (1996), which also applied the "actual evidence" test, the possession of marijuana and manufacturing marijuana counts did not merge because evidence of harvested bales of marijuana on one location established possession and evidence of living marijuana plants in another location established the manufacturing count.