IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 98

APRIL TERM, A.D. 2013

August 14, 2013

IVAN LEE SWEETS, SR.,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-12-0253

Appeal from the District Court of Sweetwater County

The Honorable Nena James, Judge

Representing Appellant:

Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; 

David E. Westling, Senior Assistant Appellate Counsel; Wyoming Public 

Defender Program. Argument by Mr. Westling.

Representing Appellee:

Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; Theodore R. Racines, Senior Assistant Attorney General; 

Darrell D. Jackson, Prosecution Assistance Program; and Emily Thomas, Student 

Director; Rives White, Student Intern. Argument by Messers. Racines and White.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be

made before final publication in the permanent volume.
1

HILL, Justice.

[¶1] Ivan Sweets was convicted of one count of obtaining property by false pretenses 

and one count of wrongful disposing of that property. He was sentenced to terms of six 

to eight years on each count, to be served consecutively. On appeal, Sweets challenges 

the sufficiency of the evidence to support his conviction for obtaining property by false 

pretenses, and he contends that the two criminal counts should have merged for purposes 

of sentencing.

[¶2] We affirm and, in so ruling, we overrule the “same facts or evidence test” for 

evaluating sentencing merger questions. The same elements test shall henceforth serve as

our sole test for evaluating merger questions.

1

ISSUES

[¶3] Sweets states the issues on appeal as follows:

I. Did the court err by denying [Sweets’] motion for 

judgment of acquittal for the reason that there was insufficient 

evidence to support a verdict on obtaining property by false 

pretenses?

II. Did the court err in denying [Sweets’] motion to merge 

sentences in that both convictions arose from a single act and 

a single set of facts?

FACTS

[¶4] In April 2010, Sweets approached Mary Froman at her residence in Rock Springs, 

Wyoming and offered to clean up her property by removing junk iron and parts that he 

could sell for scrap. Ms. Froman agreed and showed Sweets the items that she would 

permit him to remove from her property. Ms. Froman also showed Sweets the items that 

she did not want removed from her property and that she did not consider junk that could 

be scrapped. Among the items Ms. Froman told Sweets she did not want removed were 

the attachments to a crane that was parked on her property, including the crane’s boom, 

buckets, and dolly.

 

1

See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (setting

forth same elements test); see also James v. State, 2012 WY 35, ¶ 22, 271 P.3d 1016, 1022 (Wyo. 2012) 

(Voigt, J., specially concurring and urging abandonment of same facts or evidence test and return to 

elements test only); Winstead v. State, 2011 WY 137, ¶ 16, 261 P.3d 743, 746 (Wyo. 2011) (Voigt, J., 

specially concurring); Baker v. State, 2011 WY 123, ¶ 23, 260 P.3d 268, 274 (Wyo. 2011) (Voigt, J., 

specially concurring); and Najera v. State, 2009 WY 105, ¶ 17, 214 P.3d 990, 995 (Wyo. 2009) (Voigt, 

C.J., specially concurring).
2

[¶5] About a month later, in May 2010, Sweets again contacted Ms. Froman, this time 

to tell her that he had located a buyer for her crane. Ms. Froman testified as follows 

concerning the conversation:

A. He asked if he could talk to me about the crane

and I said yes, what is going on. And he said I have a buyer

for your crane. And I said, oh, okay. And he said this buyer

is from Pinedale, he wants your crane, but he doesn’t want 

any of the boom, buckets or any of this other stuff, he just 

wants the crane. I told him at this time what he could do is he 

could tell the person that I was willing to sell the crane. I told 

him the price. But I said, the boom, bucket, all of this goes 

with the crane. If he don’t want that he has to deal with you, 

not with me. He has it, he has it, it’s lock, stock and barrel, 

he takes the crane and all the parts. I just didn’t want to deal 

with a whole bunch of people with different things going on. 

The crane was $30,000 for the boom, buckets, crane and 

attachments.

Q. So it was a package deal?

A. Right.

Q. He talked about a buyer from Pinedale. Did he

ever tell you who that was?

A. No.

Q. Did he ever – did you ever talk to anyone from 

Pinedale?

A. No.

[¶6] Sometime after that conversation, between the months of June and September 

2010, Sweets asked Ms. Froman if he could purchase the crane himself. Ms. Froman 

responded by offering Sweets the same package deal–$30,000 for the crane and its 

attachments. Sweets and Ms. Froman had continuing conversations, and during one of 

those conversations, Ms. Froman agreed to finance the $30,000 purchase price.

Q. Were there certain things that you told him he

would need to do in order for you to agree to finance the

crane?

A. Yes, I did.

Q. What were those things?

A. That he had to have insurance on it. He had to

have the crane in running condition. He had to keep it up.

He had to stay in – all of the regulations and everything that 

went on with the state as far as permits, fees, everything, he
3

had to do, he had to get all of these gathered around. He had

to have a good mechanic. He had to have a place to put it

while he worked on it because my driveway was not going to

be open to him having a bunch of stuff around there working

on the crane. He had to have a place to work on it. He had

to move it to that place, so he had to have enough money to

get permits to even move it after he –

Q. Was there a contract that was written at some

point regarding you financing the crane for him?

A. I wrote a contract with him that stated that if he

wanted to buy this crane, it was a 45-ton crane, it was with

510 foot of boom, it was four buckets, a dolly and some jib.

If he wanted to take this crane and he wanted to keep it in

good shape and work on it, I would work with him and go

over a three-year period of financing to $30,000 for him.

[¶7] Sometime later, Sweets told Froman that he had made the arrangements she had 

requested and had secured: an individual willing to assist him in financing the costs of 

insurance (James Reinard); a mechanic to help Sweets work on the crane (Randy 

Shipman); and an auto recycling operation owner who would allow Sweets to store and 

work on the crane on his property (Jim Rasmussen). Ms. Froman did not know James 

Reinard, but she knew and trusted Randy Shipman and Jim Rasmussen, and she 

instructed Sweets to set up a meeting with each of the individuals so she could verify 

their arrangements with Sweets. The meetings Ms. Froman requested did not occur, and 

the contract remained unexecuted.

[¶8] In October 2010, Sweets again contacted Ms. Froman, and this time he requested 

permission to move the crane and its attachments to Jim Rasmussen’s business property, 

5 Star Auto and Truck Recycling. Ms. Froman testified as follows concerning that 

conversation:

A. Well, he came to me and said that he had

someone that could move the crane up to 5 Star and that he

was supposed to clean up their yard in exchange for the

trucking of my boom and buckets and everything up to 5 Star.

Q. Was there a time that you told him that it would

be okay to take the items up to 5 Star?

A. Only when he – he called me – after I said I had 

told him I wasn’t going to let anything go until we get this 

contract signed and everything, he came to me, he called me 

and said the trucking company that is going to move that up 

there has a contract. They are going to be busy and it/s 

getting cold. It’s getting winter, it’s going to be hard to travel
4

and everything, can I move the boom and buckets and crane

up there now. And I told him no, not until you get this

signed, not until we have an agreement on this. And he said,

but can I just move the boom and buckets for now and get

them on pallets out of the mud and everything. So I told him

yes, the boom and the buckets could go up there to 5 Star on a

pallet, but the crane was not to go until the contract and

everything – until he had all his people going. I didn’t feel 

like the boom and buckets could be worked anywhere else 

expect (sic) on the crane and the crane was stationary in my 

yard, I could see it. So I thought it was okay to let the boom 

and buckets be at this place where he was going to start a 

business.

[¶9] On October 13, 2010, Sweets arrived at Ms. Froman’s property followed by a 

truck owned by Legend Trucking. At Sweets’ direction, the truck driver loaded the 

crane’s boom and jib. There were several other crane attachments that Sweets wanted 

taken at the same time, but those items would not fit on the truck with the boom and jib. 

Legend Trucking did not deliver the crane attachments to 5 Star for storage, but instead 

delivered the items to Pacific Steel, a steel recycling operation, where the items were sold 

for scrap. Leonard Bartels, the driver, testified:

A. I took it down to Pacific Steel and weighed in

again, like I normally do. They told me to go get it unloaded,

went down and got it unloaded. And come back up on the

scales and got out of the truck. And Ivan [Sweets] was there

and he said I have got it taken care of, and I said all right, I’ll 

talk to you later. And that was it.

Q. So Ivan followed you down to Pacific Steel?

A. Yes.

Q. How did you know to take those items to

Pacific Steel?

A. Because he told me to.

[¶10] On December 15, 2010, Ms. Froman called Jim Rasmussen to check on the boom 

and jib and make sure they were not in his way or in a bad place for him. Mr. Rasmussen 

informed Ms. Froman that none of her crane parts were being stored in his lot, and Ms. 

Froman immediately contacted the Sweetwater County Sheriff’s Office. Sweets did not 

pay Ms. Froman for the crane parts, and after Ms. Froman discovered that the crane parts 

were not delivered to the 5 Star lot for storage, she did not again permit Sweets on her 

property.
5

[¶11] In July 2011, the State filed an Information charging Sweets with one count of

wrongful taking or disposing of property and one count of obtaining property by false

pretenses. A jury trial was held on January 9-11 and 19-20, 2012. On January 20, 2012,

the jury returned a verdict finding Sweets guilty on both counts. On January 31, 2012,

Sweets filed a Motion for Judgment of Acquittal and a New Trial, which the district court

denied from the bench. On February 10, 2012, Sweets filed a Motion for Merger of

Sentences, which the court also denied.

[¶12] On April 11, 2012, the court held a sentencing hearing for the purposes of 

sentencing Sweets on the two counts at issue in this appeal, as well as on a separate 

delivery of methamphetamine count. The court sentenced Sweets to six to eight years on 

each of the two counts at issue in this appeal, to run consecutively. Sweets filed this 

timely appeal.

DISCUSSION

A. Sufficiency of the Evidence

[¶13] Sweets contends that the evidence at trial was insufficient to support a conviction 

for obtaining property by false pretenses because the evidence shows nothing more than a 

commercial dispute. Sweets asserts that the promises on which Ms. Froman relied were 

promises to perform acts in the future, namely his promise to execute a contract to 

purchase the crane and his promise to make payments on that contract, and he argues, 

such promises of future performance cannot support a false pretenses conviction. We 

disagree with Sweets’ characterization of the evidence and conclude that the evidence 

was sufficient to support his conviction for obtaining property by false pretenses.

[¶14] In reviewing a sufficiency of the evidence claim,

we examine and accept as true the State’s evidence and all 

reasonable inferences which can be drawn from it. We do not 

consider conflicting evidence presented by the defendant. We 

do not substitute our judgment for that of the jury; rather, we 

determine whether a jury could have reasonably concluded 

each of the elements of the crime was proven beyond a 

reasonable doubt. This standard applies whether the 

supporting evidence is direct or circumstantial.

Craft v. State, 2013 WY 41, ¶ 18, 298 P.3d 825, 830-31 (Wyo. 2013) (quoting Dawes v. 

State, 2010 WY 113, ¶ 17, 236 P.3d 303, 307 (Wyo. 2010) (citations omitted)).

[¶15] A person who knowingly obtains property from another person by false pretenses 

with the intent to defraud that person is guilty of a felony if the value of the property is
6

one thousand dollars or more. Wyo. Stat. Ann. § 6-3-407(a)(i) (LexisNexis 2013). The

parties stipulated below that the value of the crane attachments at issue was in excess of

one thousand dollars. As to the remaining elements, we have held that to prove a 

violation of § 6-3-407(a), the State must prove: “(1) the pretenses; (2) their falsity; (3) the 

fact of obtaining property by reason of the pretenses; (4) the knowledge of the accused of 

their falsity; and (5) the intent to defraud.” Lopez v. State, 788 P.2d 1150, 1152 (Wyo. 

1990). “Intent to defraud is an essential element of the crime of obtaining property by 

false pretenses that may be inferred from the defendant’s conduct and circumstantial 

evidence.” Trevino v. State, 2006 WY 113, ¶ 12, 142 P.3d 214, 218 (Wyo. 2006).

[¶16] To the extent that the alleged false pretenses relate to a promise of future acts, this 

Court has further said:

Specific intent is an essential element of the crime of

obtaining property by false pretenses in Wyoming. In order to

succeed in a prosecution for a promise to perform future acts,

the State is required to prove that a defendant had the intent

not to perform a promise as well as the falsity of the

promises/pretenses, that property was obtained by reason of

the pretenses, and the knowledge of the accused of their

falsity.

Craver v. State, 942 P.2d 1110, 1113-14 (Wyo. 1997) (citing Lopez, 788 P.2d at 1152;

Miller v. State, 732 P.2d 1054, 1063-64 (Wyo. 1987)).

[¶17] Sweets was convicted of obtaining Ms. Froman’s crane attachments by false 

pretenses. In evaluating the State’s evidence that supports this conviction, we disagree 

with Sweets that the focus is or should be on whether he ultimately intended to execute 

the $30,000 crane purchase agreement. Instead, our focus is on the representations 

Sweets made to induce Ms. Froman to release the crane attachments to him. Regarding 

those representations, the State’s evidence, which we accept as true, was as follows:

--Ms. Froman testified that Sweets told her that he had lined up three individuals,

James Reinard, Randy Shipman, and Jim Rasmussen, to assist him with repairs to the

crane and its attachments by providing financing to assist in the cost of insurance and

repairs, mechanical assistance with the repairs themselves, and a location to store the

crane and its attachments during those repairs;

--James Reinard, Randy Shipman, and Jim Rasmussen each testified that no such

arrangements had been made;

--In particular, Jim Rasmussen, owner of 5 Star Auto and Truck Recycling,

testified that Sweets had never discussed with him the possibility of storing the crane
7

attachments on his property or storing the crane on his property while it was being

repaired;

--Ms. Froman testified that Sweets told her that he if she allowed him to take the

crane attachments, he would move them to 5 Star to be stored and protected from the

elements;

--Ms. Froman testified that she agreed to allow Sweets to take the crane

attachments because she believed he was moving them to the 5 Star property for storage;

and

--Leonard Bartels, the driver who picked up the crane attachments, testified that

after he loaded the crane attachments on his truck, he immediately delivered them to

Pacific Steel in accordance with Sweets’ instructions.

[¶18] The State’s evidence was sufficient to allow the jury to conclude that Sweets 

misrepresented both existing facts as well as his intended future performance, and that he 

intended by those false pretenses to defraud Ms. Froman and obtain her property. The 

evidence showed that Sweets represented to Ms. Froman that he was going to move her 

property to a better protected location for storage and that she relied on that promise in 

allowing him to take her property. The evidence further showed that Sweets had not 

secured a more protected location to store the property and that Sweets instead directed 

that the property be immediately transported to Pacific Steel where he sold the property 

for its scrap value. From this evidence, the jury could certainly infer Sweets’ intent to 

defraud Ms. Froman, and we thus reject Sweets’ sufficiency of the evidence challenge to 

his false pretenses conviction.

B. Sentencing Merger

[¶19] Sweets contends that the district court erred in denying his motion to merge the 

sentences for his convictions for obtaining property by false pretenses and wrongful 

disposing of property. We recognize that protection against multiple punishments for the 

same offense is a protection afforded by both state and federal double jeopardy 

provisions. James v. State, 2012 WY 35, ¶ 12, 271 P.3d 1016, 1018 (Wyo. 2012). 

Because sentencing merger presents a constitutional question, we review the issue as 

follows:

This Court reviews de novo the question of whether a 

defendant’s constitutional protection against double jeopardy 

has been violated. Daniel v. State, 2008 WY 87, ¶ 7, 189 P.3d 

859, 862 (Wyo. 2008). We consider protections provided by 

the fifth amendment to the United States Constitution and by
8

art. 1, § 11 of the Wyoming Constitution to be equivalent. Id., 

¶ 8, 189 P.3d at 862.

James, ¶ 9, 271 P.3d at 1018.

1. Overview of Merger Analysis

[¶20] The double jeopardy clauses of the United States and Wyoming constitutions 

afford three distinct protections: “1) [P]rotection against a second prosecution for the 

same offense following an acquittal; 2) protection against a second prosecution for the 

same offense after a conviction; and 3) protection against multiple punishments for the 

same offense.” James, ¶ 12, 271 P.3d at 1018 (quoting Meyers v. State, 2005 WY 163, 

¶ 9, 124 P.3d 710, 714 (Wyo. 2005)). We are concerned in this case with the third 

protection, that being the protection against multiple punishments for the same offense.

[¶21] With respect to the double jeopardy protection against multiple punishments, the 

United States Supreme Court has held that the key inquiry is whether the legislative 

branch intended the defendant’s conduct to result in separate offenses and separate 

punishments—and if the legislature did so intend, then there is no double jeopardy 

violation.

In contrast to the double jeopardy protection against multiple 

trials, the final component of double jeopardy—protection 

against cumulative punishments—is designed to ensure that 

the sentencing discretion of courts is confined to the limits 

established by the legislature. Because the substantive power 

to prescribe crimes and determine punishments is vested with 

the legislature, United States v. Wiltberger, 5 Wheat. 76, 93, 5 

L.Ed. 37 (1820), the question under the Double Jeopardy 

Clause whether punishments are “multiple” is essentially one 

of legislative intent, see Missouri v. Hunter, 459 U.S. 359, 

366–368, 103 S.Ct. 673, 678–679, 74 L.Ed. 2d 535 (1983).

Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-41, 81 L.Ed. 2d 425 (1984)

(footnote omitted).

[¶22] One commentator has summarized the protection against multiple punishments 

and the Supreme Court’s approach to determining the constitutionality of multiple 

punishments as follows:

The Double Jeopardy Clause does not limit legislative

authority to define punishment. In the case of related

convictions, a legislature can fix the sentence or sentencing
9

range, provided only that it falls within the broad range

permitted by the constitutional prohibition on cruel and

unusual punishment and the due process requirement of

fundamental fairness. Therefore, in evaluating a defendant’s 

multiple punishment claim, the focus is legitimately, 

inevitably, and almost exclusively on legislative intent. The 

only question is whether the punishment exceeds that 

intended by the legislature.

Anne B. Poulin, Article: Double Jeopardy and Multiple Punishment: Cutting the

Gordian Knot, 77 U. Colo. L. Rev. 595, 597 (2006) (footnotes omitted); see also

Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed. 2d 275

(1981) (“[T]he question of what punishments are constitutionally permissible is not 

different from the question of what punishments the Legislative Branch intended to be 

imposed.”); Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 

L.Ed.2d 715 (1980) (acknowledging that power to define criminal offenses and prescribe 

punishment “resides wholly” in the legislative branch); Brown v. Ohio, 432 U.S. 161, 

165, 97 S.Ct. 2221, 2225, 53 L.Ed. 2d 187 (1977) (“Where consecutive sentences are 

imposed at a single criminal trial, the role of the constitutional guarantee is limited to 

assuring that the court does not exceed its legislative authorization by imposing multiple 

punishments[.]”).

[¶23] Consistent with this focus on the legislature’s power to define what constitutes a 

separate criminal offense and authorize separate punishment for separate offenses, the 

United States Supreme Court has adopted the following analytical framework for 

determining whether a defendant has been subjected to multiple punishments in violation 

of double jeopardy protections:

A single act may be an offense against two statutes; and if

each statute requires proof of an additional fact which the

other does not, an acquittal or conviction under either statute

does not exempt the defendant from prosecution and

punishment under the other.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (citations omitted).

[¶24] The Blockburger analysis has become known as the “same elements test,” and it is 

essentially a test aimed at determining legislative intent.

The test articulated in Blockburger v. United States, 284 U.S. 

299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), serves a generally 

similar function of identifying congressional intent to impose 

separate sanctions for multiple offenses arising in the course 
10

of a single act or transaction. In determining whether separate

punishment might be imposed, Blockburger requires that

courts examine the offenses to ascertain ‘whether each 

provision requires proof of a fact which the other does not.’ 

Id., at 304, 52 S.Ct., at 182. As Blockburger and other 

decisions applying its principle reveal ... the Court’s 

application of the test focuses on the statutory elements of the 

offense. If each requires proof of a fact that the other does 

not, the Blockburger test is satisfied, notwithstanding a 

substantial overlap in the proof offered to establish the 

crimes.

Albernez, 450 U.S. at 337-38, 101 S.Ct. at 1141-42 (quoting Iannelli v. United States, 420 

U.S. 770, 785, n.17, 95 S.Ct. 1284, 1293, n.17, 43 L.Ed. 2d 616 (1975)); see also

Whalen, 445 U.S. at 691-92, 100 S.Ct. at 1437-38 (Blockburger same elements test as 

rule of statutory construction to determine legislative intent).

[¶25] Our Court has likewise long applied the Blockburger same elements test for 

determining whether convictions should merge for sentencing. See, e.g., James, ¶ 12, 

271 P.3d at 1018; Howard v. State, 762 P.2d 28, 32 (Wyo. 1988). We have stated:

Federal double jeopardy law appears to have been settled in 

United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 

2856, 125 L.Ed. 2d 556 (1993), with the Supreme Court’s 

holding that “[i]n both the multiple punishment and multiple 

prosecution contexts, this Court has concluded that where the 

two offenses for which the defendant is punished or tried 

cannot survive the ‘same-elements’ test, the double jeopardy 

bar applies.” The inquiry under the same-elements test is 

“whether each offense contains an element not contained in 

the other; if not, they are the ‘same offence’ and double 

jeopardy bars additional punishment and successive 

prosecution.” Id. Like the United States Supreme Court, this 

Court recognizes and follows the same-elements test. See, 

e.g., Granzer v. State, 2010 WY 130, ¶ 13, 239 P.3d 640, 645 

(Wyo. 2010); Snow v. State, 2009 WY 117, ¶ 16, 216 P.3d 

505, 510 (Wyo. 2009); and Najera v. State, 2009 WY 105, 

¶ 11, 214 P.3d 990, 994 (Wyo. 2009).

James, ¶ 12, 271 P.3d at 1018 (quoting Rathbun v. State, 2011 WY 116, ¶ 6, 257 P.3d 29, 

32 (Wyo. 2011)).
11

[¶26] This Court has not, however, limited its analysis of sentencing merger questions to

application of the same elements test. For some time, we have required an additional

inquiry into the facts proven at trial, an analysis we shall refer to in this opinion as the

facts or evidence test.

In addition to the same-elements test, this Court has also

considered a merger doctrine that allows for the consideration

of other factors:

The question of merger as a bar to multiple sentences

for the same act, however, summons a more complex

appellate standard of review. As a practical matter, in

appeals alleging imposition of multiple sentences for a

single act, the focus necessarily expands to embrace

those facts proven at trial. The ultimate question

becomes whether those facts reveal a single criminal

act or multiple and distinct offenses against the victim

or victims and hence the State.

James, ¶ 13, 271 P.3d at 1019 (quoting Bilderback v. State, 13 P.3d 249, 254 (Wyo.

2000)); see also Winstead, ¶ 14, 261 P.3d at 746; Najera, ¶ 11, 214 P.3d at 994; Rouse v. 

State, 966 P.2d 967, 970 (Wyo. 1998); Owen v. State, 902 P.2d 190, 193 (Wyo. 1995); 

Rivera v. State, 840 P.2d 933, 944 (Wyo. 1992).

[¶27] The facts or evidence test requires the following additional analysis to determine 

whether convictions should merge for sentencing:

In deciding whether offenses merge, the question is whether 

the offenses charged “necessarily involve” one another, or 

whether any additional facts are needed to prove additional 

offenses once the primary offense has been proven. In 

deciding merger questions, we focus not only on the 

similarity of the elements of the crimes, but also, and 

primarily, on the facts proved at trial, for the question is 

whether those facts show that in practical effect the 

defendant committed but a single criminal act.

Bilderback, 13 P.3d at 255 (quoting Commonwealth v. Whetstine, 496 A.2d 777, 779-80

(Pa. Super. 1985)).

[¶28] Having set forth the general framework for our merger analysis, we next apply the 

two merger tests, the same elements test and the facts or evidence test, to the offenses for 

which Sweets was convicted and sentenced in this case.
12

2. Application of Same Elements Test

[¶29] On appeal, Sweets does not appear to contest the district court’s conclusion that 

merger of his sentences was not required under the same elements test. Instead, he 

argues that the court erred in not finding that application of the facts or evidence test 

required a merger. Nonetheless, in the interests of providing a complete analysis, we 

address the same elements test. In doing so, we conclude that the crimes of obtaining 

property by false pretenses and of wrongful disposing of property have different elements 

and that the legislature intended separate criminal offenses with separate sentences for 

each offense.

[¶30] Again, our inquiry under the same elements test is whether each criminal offense 

contains an element not contained in the other. James, ¶ 12, 271 P.3d at 1018. The jury 

instructions given below set forth the elements of each criminal offense with which 

Sweets was charged. Instruction No. 12 defined the elements of obtaining property by 

false pretenses:

1. On or between the 1st day of October, 2010,

and the 15th day of December, 2010,

2. In Sweetwater County, Wyoming,

3. The Defendant, Ivan Lee Sweets, Sr.,

4. With intent to defraud Mary Froman,

5. Knowingly obtained crane parts from Mary

Froman,

6. By false pretenses, and

7. The value of the property obtained was

$1,000.00 or more.

[¶31] Instruction No. 13 defined the elements of wrongful disposing of property:

1. On or between the 1st day of October, 2010,

and the 15th day of December, 2010,

2. In Sweetwater County, Wyoming,

3. The Defendant, Ivan Lee Sweets, Sr.,

4. Did dispose of Mary Froman’s crane parts with 

a value of $1,000.00 or more,

5. Which he knew, believed or had reasonable

cause to believe were obtained in violation of law.

[¶32] The elements outlined in the jury instructions track the statutory language of each 

offense. See Wyo. Stat. Ann. § 6-3-407 (LexisNexis 2013) (Obtaining Property by False 

Pretenses); Wyo. Stat. Ann. § 6-3-403 (LexisNexis 2013) (Wrongful Disposing of
13

Property).

2 A comparison of those elements shows that each offense clearly contains at

least one element that the other does not. Obtaining property by false pretenses requires

the showing of an intent to defraud, whereas wrongful disposing of property contains no

such requirement. See Trevino, ¶ 12, 142 P.3d at 218 (“Intent to defraud is an essential 

element of the crime of obtaining property by false pretenses[.]”); Capshaw v. State, 737 

P.2d 740, 744 (Wyo. 1987) (statute proscribing wrongful receipt or disposing of property 

requires no showing of specific intent). And, wrongful disposing of property requires a 

showing that the property was disposed of, whereas obtaining property by false pretenses 

contains no such requirement. See Miller v. State, 732 P.2d 1054, 1062 (Wyo. 1987) 

(Crime of obtaining property by false pretenses is complete upon obtaining property from 

victim.).

[¶33] Application of the same elements test illustrates that the legislature intended the 

crimes with which Sweets was charged and convicted to be separate offenses with 

separate punishments. Moreover, we have held that “[w]here independent but 

 

2 Wyo. Stat. Ann. § 6-3-407 provides:

(a) A person who knowingly obtains property from another person by false 

pretenses with intent to defraud the person is guilty of:

(i) A felony punishable by imprisonment for not more than ten (10) 

years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the 

value of the property is one thousand dollars ($1,000.00) or more; or

(ii) Repealed by Laws 1984, ch. 44, § 3.

(iii) A misdemeanor punishable by imprisonment for not more than six 

(6) months, a fine of not more than seven hundred fifty dollars ($750.00), or 

both, if the value of the property is less than one thousand dollars ($1,000.00).

Wyo. Stat. Ann. § 6-3-403 provides:

(a) A person who buys, receives, conceals or disposes of property 

which he knows, believes or has reasonable cause to believe was obtained in 

violation of law is guilty of:

(i) A felony punishable by imprisonment for not more than ten (10) 

years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the 

value of the property is one thousand dollars ($1,000.00) or more; or

(ii) Repealed by Laws 1984, ch. 44, § 3.

(iii) A misdemeanor punishable by imprisonment for not more than six 

(6) months, a fine of not more than seven hundred fifty dollars ($750.00), or 

both, if the value of the property is less than one thousand dollars ($1,000.00).

(b) A person may be indicted under this section in the county where he 

received or possessed the property, notwithstanding the wrongful taking 

occurred in another county.
14

overlapping statutes are directed to separate evils, cumulative punishments are intended.” 

James, ¶ 14, 271 P.3d at 1019 (citing Nowack v. State, 774 P.2d 561, 567 (Wyo. 1989)). 

With respect to the crime of obtaining property by false pretenses we have observed that 

“the gravamen of the offense is in making the false pretense, and obtaining thereby a 

person’s property or signature and does not depend upon ultimate loss to the victim[.]” 

Anderson v. State, 196 P. 1047, 1051 (Wyo. 1921) (citation omitted). The offense of 

wrongful disposing of property, on the other hand, is by its plain terms aimed at the evil 

of what happens to the property after it is wrongfully obtained. As we explained in 

Garcia v. State, 777 P.2d 1091 (Wyo. 1989), the evil the legislature sought to address in 

the wrongful concealing or disposing of property statute does not shield the actual thief 

from its coverage:

He attempts to shore up this obvious weakness in his 

argument by contending that the possessory offenses of 

receiving and concealing were intended by the legislature to 

reach only a thief’s accessories after the fact. He cites no 

cogent authority in support of this position, however, and 

ignores past decisions of this court suggesting a contrary 

conclusion. Where evidence strongly indicated the 

defendant’s involvement in the underlying theft, we upheld 

his conviction for receiving and concealing stolen oil field 

drill bits based on his unexplained possession of those bits. 

Tageant v. State, 673 P.2d 651 (Wyo. 1983); see also 

Capshaw v. State, 737 P.2d 740 (Wyo. 1987). Furthermore, 

we expressly rejected the argument that an admitted thief 

could not be charged and convicted of concealing the stolen 

property in Pote v. State, 695 P.2d 617, 622 (Wyo. 1985). If 

we were to adopt appellant’s argument, the State would be 

required to offer evidence that someone other than the 

possessor of stolen goods committed the actual theft. This 

court has repeatedly rejected such a requirement. See 

generally State v. Callaway, 72 Wyo. 509, 267 P.2d 970 

(1954); Curran v. State, 12 Wyo. 553, 76 P. 577 (1904).

Appellant fails to consider that the evil which the legislature 

intended to address in this instance may just as well have 

been the mere wrongful possession and use of stolen 

property. The evil character of such possessory acts does not 

disappear when an unproved thief engages in such acts only 

to magically reappear when a fence or some other third party 

engages in similar conduct. Where the thief can be proven to 

have committed the lesser offense, we will not permit him to 

obstruct prosecution by giving partial proof of greater guilt. 
15

Appellant was properly charged and prosecuted for

concealing stolen property.

Garcia, 777 P.2d at 1094.

[¶34] Application of the Blockburger same elements test reveals a legislative intent to 

make obtaining property by false pretenses and wrongful disposing of property separate 

criminal offenses and to impose separate punishments for violation of those offenses. 

Under the same elements analysis, Sweets’ multiple punishments did not violate double 

jeopardy protections and his convictions were not required to merge for sentencing.

3. Application of Facts or Evidence Test

[¶35] As discussed above, our facts or evidence test focuses not on the statutory 

elements of the charged offenses, but on the facts proved at trial and “whether those facts 

show that in practical effect the defendant committed but a single criminal act.” 

Bilderback, 13 P.3d at 255. It is on this test that Sweets relies in contending that the 

district court erred in denying his merger motion. Sweets argues that his acts of obtaining 

and disposing of the crane attachments occurred together and at once and resulted, in 

practical effect, in but a single criminal act. Sweets’ argument has merit under our facts 

or evidence test. Given, however, that the same elements test reveals such a clear 

legislative intent to define separate offenses with separate punishments, we decline to 

require a merger of Sweets’ sentences. Instead, we find that this case highlights the need 

to reconsider our facts or evidence test, which on close examination, we conclude should 

yield to the constitutionally-based same elements test as the sole means to analyze 

sentencing merger questions.

[¶36] We begin our reconsideration of the facts or evidence test by reviewing two cases 

in which this Court’s application of the test has resulted in findings that convictions must 

merge for sentencing. We start our analysis here because, although both cases address 

offenses entirely different from the offenses with which Sweets was charged and 

convicted, the reasoning in the two cases illustrates how the facts or evidence test must 

apply to the offenses at issue in the case before us.

[¶37] In Najera, we required merger of a father’s multiple convictions for sexual assault 

and incest. We reasoned:

In this case . . . five of the six sexual assault charges (counts 

I and III through VI) required proof that Appellant was the 

father of the victims and was, therefore, in a position of 

authority as required by the applicable statute. The incest 

charges also required the State to prove that Appellant was 

the father of the victims. All sexual assault charges required
16

either sexual intrusion or sexual contact, and so did the incest

charges. In short, it would be impossible for Appellant to

commit second- or third-degree sexual assault based upon

the use of his position of authority as father of the victims

without also committing incest. We conclude that the incest

counts VII, IX, X, XI, and XII merge, for the purpose of

sentencing, into the sexual assault counts I, III, IV, V, and VI,

respectively.

Najera, ¶ 13, 214 P.3d at 994 (emphasis added).

[¶38] In Bilderback, we addressed merger of a defendant’s convictions for attempted 

second degree murder and use of a firearm in the commission of a felony. Applying the 

same elements test, we found that no merger was required because the two offenses had 

different elements. Bilderback, 13 P.3d at 254. But, in applying the facts or evidence 

test, we concluded that merger was required, explaining:

It is undisputed that Mr. Bilderback’s only act which 

caused him to be found guilty of attempted second-degree 

murder was the shooting of Officer Parkin. Obviously, under 

the facts in this record, that shooting could not have been 

accomplished without the use of the firearm. The state 

presents a theoretical argument that not all attempted seconddegree murder scenarios necessarily involve the use of a 

firearm, and this is certainly true. But that is not the correct 

analysis. We must carefully examine the facts of this case and 

determine whether this defendant’s offenses under § 6-1-

301(a)(i) and § 6–2–104 could have occurred without the 

defendant necessarily committing an offense under § 6-8-

101(a). They could not.

Bilderback, 13 P.3d at 255 (emphasis in original).

[¶39] Our decisions in Najera and Bilderback illustrate that in applying the facts or 

evidence test, our inquiry has focused on whether the State used the same facts or 

evidence to prove all elements of the convicted offenses (Najera), or whether one of the 

convictions subsumes the other—that is, whether under the facts in evidence, the only 

way one of the offenses was committed was by commission of the other (Bilderback). 

Where the answer to either question is in the affirmative, we have required merger of the 

convictions for sentencing.

[¶40] Turning then to the present case, the reasoning of Najera and Bilderback requires 

that we consider whether either of Sweets’ convictions, obtaining property by false
17

pretenses or wrongful disposing of property, was subsumed by the other or was based on

the same facts. We conclude that the answer to both questions is yes.

[¶41] In arguing the facts or evidence test, Sweets focuses his attention on the wrongful 

disposing of property offense and asserts that the only way he could have wrongfully 

disposed of property under the facts proven was through his offense of obtaining property 

by false pretenses. That is, the wrongful disposing could not have occurred without the 

first offense. The State argues in response that wrongful disposing of property requires 

only a showing that the property was obtained in violation of law and there are any 

number of ways to prove that—for example, a third party could have stolen the property 

and given or sold it to Sweets. The State’s observation is certainly true, and under the 

same elements test its argument would be relevant to the inquiry. Under the facts or 

evidence test, however, we do not consider, as we explained in Bilderback, the 

theoretically possible ways to prove the elements of the multiple offenses. The facts or 

evidence test instead requires that we “examine the facts of this case and determine 

whether this defendant’s [offense under § 6-3-403 (wrongful disposing)] * * * could have 

occurred without the defendant necessarily committing an offense under [§ 6-3-407 

(obtaining property by false pretenses)].” See Bilderback, 13 P.3d at 255. As in 

Bilderback, we conclude that it could not.

[¶42] In this case, the facts show that Sweets’ wrongful disposing of property could not 

have occurred without his obtaining property by false pretenses. That is simply the way 

it happened in this case. Moreover, while the State certainly can prove the offense of 

obtaining property by false pretenses without showing that the property was then 

disposed of, the State in this case placed great emphasis on the fact of Sweets’ wrongful 

disposing of the property and relied on that fact to prove his offense of obtaining property 

by false pretenses—more specifically, to prove his intent to defraud. In other words, the 

State argued to the jury: Sweets said he was moving the crane attachments for 

safekeeping, but instead he immediately sold the property—and that is evidence of his 

fraudulent intent. The State’s closing argument to the jury illustrates its reliance on 

Sweets’ actions as one fluid transaction to prove the fraudulent intent element of the 

obtaining property by false pretenses:

Was there a verbal agreement? Yes, there was. What

was the only verbal agreement that there was? Ivan could

take some of the parts and put them at 5 Star. That was the

agreement. That is not what happened. The fact that Ivan

told Mary numerous things in order to make her believe that

is what was going to happen and then took her property and

disposed of it as he saw fit is where the intent to defraud is.

. . .

. . . .
18

In my mind I compare this case to a case where you

have a vehicle that you take for a test drive. You take a

vehicle for a test drive, that you are supposed to bring it back.

You are supposed to take care of it. You might be buying

that vehicle and the car company that you pick it up from

thinks they are going to let you borrow it so that you can buy

that, do you have permission to go down to Pacific Steel and

scrap it for $100? No, you do not. If the deal is you are

going to bring it back and you are going to keep it safe, you

don’t get to scrap the car.

[¶43] As a practical matter, the facts in this case show that Sweets engaged in and was 

convicted of a single criminal transaction—he scrapped property that was entrusted to 

him for safekeeping. Under these circumstances, the facts or evidence test instructs that 

Sweets’ convictions should merge for sentencing. We are troubled by this prospect, 

however, because our application of the same elements test reveals a clear legislative 

intent to separately punish the crimes of obtaining property by false pretenses and 

wrongful disposing of property, and under the United States Supreme Court prescribed 

double jeopardy analysis, legislative intent is the controlling determinant in evaluating 

the constitutionality of multiple punishments.

Focusing double jeopardy analysis on multiple punishment

concerns leads inexorably to deference to legislative intent.

The appropriate punishment for criminal conduct is whatever

the legislature determines. Any interpretation of double

jeopardy protection that did not give determinative weight to

legislative intent would necessarily and improperly act as a

substantive limitation on the power of the legislature to define

crime and punishment.

Poulin, supra, 77 U. Colo.L.Rev. at 606 (footnotes omitted); see also Garrett v. United

States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2411, 85 L.Ed. 764 (1985) (no double

jeopardy bar to legislature punishing separately each step leading to consummation of

transaction and also punishing the completed transaction); Hunter, 459 U.S. at 368, 103

S.Ct. at 679 (“Legislatures, not courts, prescribe the scope of punishments,” and double 

jeopardy does not preclude legislature from authorizing cumulative punishments under 

two statutes for the same conduct.); Brown, 432 U.S. at 165, 97 S.Ct. at 2225 (“[T]he 

Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts 

and prosecutors. The legislature remains free under the Double Jeopardy Clause to 

define crimes and fix punishments[.]”); Albrecht v. United States, 273 U.S. 1, 11, 47 

S.Ct. 250, 254, 71 L.Ed. 505 (1927) (recognizing legislative branch power to punish 

separate steps in a criminal transaction).
19

[¶44] The divergent results in this case between application of the same elements test

and the facts or evidence test bring to the forefront the ambiguity that the facts or

evidence test has injected into our merger analysis. We recognize the need to address

that ambiguity, but we are also mindful that this Court must approach the prospect of

overruling prior case law with great caution:

We consider the doctrine of stare decisis to be an important 

principle which furthers the “evenhanded, predictable, and 

consistent development of legal principles, fosters reliance on 

judicial decisions, and contributes to the actual and perceived 

integrity of the judicial process.” Cook v. State, 841 P.2d 

1345, 1353 (Wyo. 1992) (quoting Payne v. Tennessee, 501 

U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 

(1991)).

Nevertheless, we should be willing to depart from 

precedent when it is necessary “to vindicate plain, obvious 

principles of law and remedy continued injustice.” Id. When 

precedential decisions are no longer workable, or are poorly 

reasoned, we should not feel compelled to follow precedent. 

Stare decisis is a policy doctrine and should not require 

automatic conformance to past decisions

Brown v. City of Casper, 2011 WY 35, ¶ 43, 248 P.3d 1136, 1146 (Wyo. 2011) (quoting

State ex rel. Workers’ Compensation Div. v. Barker, 978 P.2d 1156, 1161 (Wyo. 1999)).

[¶45] Giving due respect to the important role of stare decisis, we nonetheless conclude, 

based on the need to align our merger analysis with the principles of double jeopardy law 

dictated by the United States Supreme Court, that this Court must overrule the facts or 

evidence test for evaluating double jeopardy challenges to multiple punishments. In 

addition to our discussion above, other considerations have informed our decision that the 

time has come to retool our sentencing merger analysis.

[¶46] First, the United States Supreme Court has expressly rejected the same facts or 

evidence test as unworkable and contrary to longstanding interpretation of the Fifth 

Amendment’s double jeopardy protections. The Supreme Court’s repudiation of the test 

came after that court itself deviated from strict application of the Blockburger same 

elements test for evaluating double jeopardy claims and adopted a “same conduct” test, 

which mirrors the same facts or evidence test. See Grady v. Corbin, 495 U.S. 508, 510, 

110 S.Ct. 2084, 2087, 109 L.Ed. 2d 548 (1990). Just three years after adopting the same 

conduct test, the Supreme Court overruled itself, characterizing the same conduct test as 

lacking a constitutional basis and as unstable in its application. United States v. Dixon,
20

509 U.S. 688, 704-09, 113 S.Ct. 2849, 2860-63, 125 L.Ed. 2d 556 (1993). The Court

stated, in part:

We have concluded, however, that Grady must be 

overruled. Unlike Blockburger analysis, whose definition of 

what prevents two crimes from being the “same offence,” 

U.S. Const., Amdt. 5, has deep historical roots and has been 

accepted in numerous precedents of this Court, Grady lacks 

constitutional roots. The “same-conduct” rule it announced is 

wholly inconsistent with earlier Supreme Court precedent and 

with the clear common-law understanding of double

jeopardy. See, e.g., Gavieres v. United States, 220 U.S., at 

345, 31 S.Ct., at 416 (in subsequent prosecution, “[w]hile it is 

true that the conduct of the accused was one and the same, 

two offenses resulted, each of which had an element not 

embraced in the other” ). . . .

. . . .

Having encountered today yet another situation in 

which the pre-Grady understanding of the Double Jeopardy 

Clause allows a second trial, though the “same-conduct” test 

would not, we think it time to acknowledge what is now,

three years after Grady, compellingly clear: the case was a 

mistake. We do not lightly reconsider a precedent, but, 

because Grady contradicted an “unbroken line of decisions,” 

contained “less than accurate” historical analysis, and has 

produced “confusion,” we do so here.

Dixon, 509 U.S. at 704, 711, 113 S.Ct. at 2860, 2864 (footnote and citations omitted).

[¶47] We also observe that our own Court, in evaluating double jeopardy claims, has 

emphasized that the protection relates to “offenses,” as defined by statutory elements and 

not as defined by a defendant’s particular actions. See Granzer v. State, 2010 WY 130, 

¶ 16, 239 P.3d 640, 646 (Wyo. 2010) (The focus of the Blockburger test is not on the 

similarity of the evidence relied on to prove the elements of the offenses but on the 

elements themselves.); Cook v. State, 841 P.2d 1345, 1347 (Wyo. 1992) (quoting Black’s 

Law Dictionary 1081 (6th ed. 1990)) (“As used in the Double Jeopardy Clause, ‘same 

offense’ means ‘the same crime, not the same transaction, acts, circumstances, or

situation.’”). Even after adopting the facts or evidence test

3

, this Court expressed a

 

3

It appears that this Court first applied the facts or evidence in 1992 in Rivera, 840 P.2d at 944 (“In

deciding merger questions, we focus not only on the similarity of the elements of the crimes, but also, and
21

continued adherence to and even preference for the statutory elements test for reviewing

double jeopardy claims related to multiple punishments:

The Blockburger test is the one chosen to determine if

offenses have identical statutory elements or if the elements

of an offense are identical to some of the elements of a

greater offense in reaching a conclusion as to whether it is a

lesser included offense. Dixon.

It is clear that the Blockburger analysis parallels the

statutory elements test for lesser included offenses. The

application of the Blockburger test has nothing to do with

the evidence presented at trial. Corbin. As Blockburger is

traced through Corbin, Felix, and Dixon, it is clear that its

role is to bar a subsequent prosecution if one of the two

offenses is a lesser included offense of the other. That

determination is made solely upon a comparison of the

statutory elements.

Logically, the protection accorded by the double 

jeopardy clause with respect to multiple punishments should 

be based upon the same test. The double jeopardy clause 

prevents a “sentencing court from prescribing greater 

punishment than the legislature intended.” Missouri v. 

Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 

(1983). The cumulative punishment analysis must be made 

in the light of the dichotomy in the approach of the Supreme 

Court of the United States. Historical review of the origin of 

the Blockburger test discloses that its use for multiple 

prosecution and cumulative punishment is consistent.

. . . .

We are satisfied the statutory elements analysis

should be used as the foundation for double jeopardy

protection in connection with both multiple prosecutions

and multiple or cumulative punishments. Once the offense

is classed as a lesser included offense, then a multiple

prosecution or a multiple punishment is foreclosed. A more

broadly-stated test than the statutory elements analysis for

arriving at lesser included offenses such as the inherent 

 

primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect 

the defendant committed but a single criminal act.”).
22

relationship standard simply invites frequent questions

concerning double jeopardy violations, especially for

cumulative punishment. This result should be avoided.

State v. Keffer, 860 P.2d 1118, 1130-31 (Wyo. 1993).

[¶48] In a recent decision, we expressed our recognition that federal law is firmly 

grounded in its reliance on the same elements test for double jeopardy analysis, and we 

cited our own continuing allegiance to that approach:

Federal double jeopardy law appears to have been settled in 

United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 

2856, 125 L.Ed.2d 556 (1993), with the Supreme Court’s 

holding that “[i]n both the multiple punishment and multiple 

prosecution contexts, this Court has concluded that where the 

two offenses for which the defendant is punished or tried 

cannot survive the ‘same-elements’ test, the double jeopardy 

bar applies.” The inquiry under the same-elements test is 

“whether each offense contains an element not contained in 

the other; if not, they are the ‘same offence’ and double 

jeopardy bars additional punishment and successive 

prosecution.” Id. Like the United States Supreme Court, this 

Court recognizes and follows the same-elements test. See, 

e.g., Granzer v. State, 2010 WY 130, ¶ 13, 239 P.3d 640, 645 

(Wyo. 2010); Snow v. State, 2009 WY 117, ¶ 16, 216 P.3d 

505, 510 (Wyo. 2009); and Najera v. State, 2009 WY 105, 

¶ 11, 214 P.3d 990, 994 (Wyo. 2009).

Rathbun v. State, 2011 WY 116, ¶ 6, 257 P.3d 29, 32 (Wyo. 2011).

[¶49] The case before us illustrates that application of the same facts or evidence test 

will not always yield results that are consistent with the same elements test. Because the 

same elements test is the test both mandated by the United States Supreme Court and 

historically relied on by this Court, and to align our double jeopardy analysis with federal 

precedent and our own precedent, we hereby overrule the same facts or evidence test. The 

same elements test shall henceforth serve as our sole test for evaluating sentencing

merger questions.

4

 

4

 Given the Court’s decision, the term “merger of sentences” has little utility in our jurisprudence. In the

rare instance that two criminal statutes are found to contain the same elements, the convictions under

those statutes would merge for the purpose of sentencing. If one crime carries a greater penalty than the

other, that would be the penalty applied. In the event of such a merger, the convictions would also merge

and the defendant in question would then carry only a single conviction forward in his or her record.
23

CONCLUSION

[¶50] Sweets’ conviction and sentence are affirmed. To the extent our past decisions 

have applied the facts or evidence test to evaluate sentencing merger, those decisions are 

overruled. See, e.g., James, ¶ 13, 271 P.3d at 1019; Winstead, ¶ 14, 261 P.3d at 746; 

Najera, ¶ 11, 214 P.3d at 994; Bilderback,13 P.3d at 254; Rouse, 966 P.2d at 970; Owen, 

902 P.2d at 193; Rivera, 840 P.2d at 944. The same elements test is now the controlling 

inquiry for evaluating questions of sentencing merger.