¶1concurring.
¶2I concur in the result and write separately only to note my growing discomfort with our recent case law regarding merger of the offenses of armed robbery and aggravated assault. I agree that Long v. State, 287 Ga. 886 (2) (700 SE2d 399) (2010), cited by the majority, presents an analogous fact pattern and thus compels us to hold under the circumstances of this case that the two offenses must merge. However, I disagree with the sweeping statement in Longthat “there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery,” id. at 889 (2), to the extent it purports to hold as a matter of law that these two offenses will always merge. There may be a fact scenario not yet presented that will warrant our retreat from this absolute position.
¶3In addition, it strikes me as incongruous that our precedent compels us to merge the above offenses committed against the injured-but-surviving victim while allowing us to sustain separate offenses (armed robbery and murder) against the deceased victim. Nevertheless, applying the “required evidence” test we adopted in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006), this result is clearly correct in this case. Prosecutors seeking to avoid this incongruity in similar circumstances might be wise to seek indictment on aggravated battery, as an alternative to aggravated assault.