dissent">STUMBO, Justice,

dissenting.

Respectfully, I must dissent. I believe Appellant’s convictions for both assault and robbery violated the prohibition against double jeopardy. I would first note that, under the Burge test, the trial court correctly refused to dismiss the assault charge in the indictment. As written, the indictment did not violate the double jeopardy prohibition. The indictment charged Appellant with “Assault in the Second Degree by striking Herman McCreary with a pistol” and “Robbery in the First Degree by being armed with a deadly weapon while in the course of committing a theft of Herman McCreary.” Clearly, these offenses arise from two distinct statutes. As charged, each would have required proof of a fact which the other did not. For the assault, the prosecution would have had to prove that Appellant struck McCreary with the .38 pistol causing a physical injury. For the robbery, the prosecution would have had to prove Appellant used or threatened to use physical force on McCreary while armed with a deadly weapon (presumably the .22 rifle) during the course of the theft of his truck.

In the end, however, the prosecution was unable to maintain this logically sound but practically impossible distinction. By the time the jury was instructed, the assault had merged into the robbery so that one was clearly included within the other. This is so because the jury instruction on second-degree assault required the jury to find the offense was accomplished “by striking him with a .22 rifle, a deadly weapon.” (Emphasis added.) The jury instruction on first-degree robbery required the jury to find Appellant “used or threatened the immediate use of physical force upon Herman McCreary; AND (c) That when he did so, he was armed with a .22 rifle.” (Emphasis added.) This melding of the charges allowed the jury to consider any assault with the .22 rifle during the incident as an element of the robbery and thus made the assault charge a lesser included offense of the robbery charge. KRS 505.020(1)(a) and (2)(a). Appellant may be convicted of only one of these offenses without violating the prohibition against double jeopardy. Commonwealth v. Burge, 947 S.W.2d at 805, 811 (1997). Therefore, I would vacate the conviction on the lesser charge of assault in the second degree. See Walden v. Commonwealth, Ky., 805 S.W.2d 102, 107 (1991), overruled on other grounds by Commonwealth v. Burge, Ky., 947 S.W.2d 805, 811 (1997).

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