specially concurring.
T 75 I concur in all of the majority's opinion except part II.C., in which the majority declines to address the merits of defendant's contention that his conviction for vehicular eluding must be vacated because, as charged in this case, vehicular eluding is a lesser included offence of first degree aggravated motor vehicle theft. Because defendant's contention raises only a question of law, and does not require development of a factual record, I believe it is reviewable for plain error. See People v. Greer, 262 P.3d 920, 931-88 (Colo.App.2011) (J. Jones, J., specially concurring); see also People v. Zubiate, 2013 COA 69, ¶ 38, - P3d -, 2013 WL 1909126 (reviewing a similar merger contention for plain error). Undertaking such review, I conclude that we need not vacate defendant's vehicular eluding conviction.1
176 "A defendant may be convicted of multiple offenses arising out of a single transaction if the defendant has violated more than one statute." Armintrout v. People, 864 P.2d 576, 578 (Colo.1998); see also § 18-1-408(7), C.R.S8.2012." But, "[ulnder the Double Jeopardy Clauses of both the United States and Colorado Constitutions, the state may not punish a person twice for the same offense." Meads v. People, 78 P.3d 290, 293 (Colo.2008).
T77 We must answer two questions to determine whether punishing a defendant more than onee for the same conduct constitutes punishing him twice for the same offense, and therefore violates the Double Jeopardy Clauses. First, has "the legislature intended that each violation be a separate offense[?]" Id. Second, if so, does proof of facts establishing the statutory elements of one offense necessarily establish all of the elements of the other offense? Id. at 294. I answer the first question "yes," and the see-ond question "no." >
*364178 As for the first question, if the legislative intent to create separate offenses is clear, that is the end of the inquiry. Id. Such intent is clear from the face of sections 18-4-409 and 18-9-116.5, C.R.8.2012, which establish the separate offenses of aggravated motor vehicle theft and vehicular eluding, respectively. Defendant does not argue to the contrary.
T79 As for the second question, we apply the "strict elements test," whereby we do "nothing more than placing the relevant statutes next to each other, comparing the language, and determining how closely they match." Meads, 78 P.8d at 294. If one offense has all of the elements of the other plus one or more additional elements, the latter is included in the former and a defendant may not be convicted of both. Id. (The latter offense in such cireumstances is referred to as a lesser included offense of the former.) But if not-that is, if one offense does not require proof of all the elements of the other-convietion of both is permissible. Id. In undertaking this analysis, we look at the "essential elements" of each offense and determine whether proof of one offense "nee-essarily" constitutes proof of the other. Id. at 294-95. And we do so looking only at the relevant statutes. We do not look at the evidence presented in a particular case or the particular way the offenses are charged. Id. (rejecting contention that because offense of aggravated motor vehicle theft was established by the facts which established felony theft, the conviction for aggravated motor vehicle theft could not stand; proof of the latter did not "necessarily" require proof of the former).
80 A conviction for vehicular eluding requires proof that (1) the defendant, while operating a motor vehicle, eluded or attempted to elude a peace officer who also was operating a motor vehicle; (2) the defendant knew or reasonably should have known that the peace officer was pursuing him; and (8) the defendant operated his motor vehicle in a reckless manner. § 18-9-116.5(1).
81 A conviction for first degree aggravated motor vehicle theft requires proof that (1) the defendant knowingly obtained or exercised control over another's motor vehicle; (2) the defendant did so without authorization or by means of threat or deception; and (3) the defendant's conduct satisfied one of eight aggravating factors. § 18-4-409(2). Using the motor vehicle in the commission of a crime other than a traffic offense is one of those eight aggravating factors. § 18-4-409(2)(d).
T82 Thus, while the final requirement of first degree aggravated motor vehicle theft may be established by proof of vehicular eluding, it is not-looking solely at the statutes themselves-necessarily so established. Rather, proving commission of a crime is but one way, of many, that the final requirement may be established.2
83 Accordingly, vehicular eluding is not a lesser included offense of first degree aggravated motor vehicle theft. It follows that defendant could lawfully be convicted of both offenses.
. The People have conceded that the vehicular eluding conviction should be merged into the aggravated motor vehicle theft conviction. But we are not bound by that concession. People v. Torres, 141 P.3d 931, 936 (Colo.App.2006); People v. Knott, 83 P.3d 1147, 1148 (Colo.App.2003).
. Alternatively, it appears from the structure of section 18-4-409 that proof of an aggravating factor only affects the felony level of the offense. Thus, an aggravating factor is a sentence enhancer, not an element of the offense. We do not consider sentence enhancers in determining whether one offense is a lesser included offense of another. Armintrout, 864 P.2d at 580; Zubiate, I 40.