Ivan Lee Sweets, Sr. v. The State of Wyoming

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. S-12-0253

THE STATE OF WYOMING,

Appellee
(Plaintiff).

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.
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).

1
[¶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

2
 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

3
 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.

4
[¶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

5
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

6
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

7
 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

8
 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

9
 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)).

10
[¶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.

11
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

12
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.

13
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.

14
 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

15
 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 second-
degree 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

16
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.
...
....

17
 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).

18
[¶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,

19
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
w i t h t h e c l e a r c o m m o n-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 test3, 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

20
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.”).

21
 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.

22
 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.

23