dissenting.
I disagree with the conclusion of the majority that in some way Count IV in Criminal Action 9691 merged into Count III. The disposition in the majority opinion is fallacious. I must dissent. Whether that result occurred because of the application of tested principles of double jeopardy, or whether, in some manner, § 6-5-111, W.S.1977, was impliedly repealed by amendments to § 6-3-402, W.S.1977, is somewhat of a mystery. In any event, obfuscation abounds.
I will initially address apparent confusion relating to the statutes. At pages 6 and 7 of the majority opinion, the following appears:
“While not completely dispositive of this issue, we note the embezzlement by failure to account in Count I, W.S. 6-7-306, is the same as Count IV, W.S. 6-5-111 (1983 Replacement) (Ch. 75, § 3, S.L. of Wyoming 1982), which replaced W.S. 6-7-306 as of July 1, 1983. The question presented by this issue is generally whether Count III, W.S. 6-3-402(b) and (e)(i) (1983 Replacement), and Count IV, W.S. 6-5-111 (1983 Replacement), were intended by our legislature to guard against the same offense. This accommodates the identical funds except for the $923.2
“W.S. 6-7-306, an embezzlement statute, was replaced by and has elements nearly identical to W.S. 6-5-111 (1983 Replacement). It is the legislative history of W.S. 6-5-111 in replacing W.S. 6-7-306, and the matching of its elements, that convinces us W.S. 6-5-111 is an embezzlement statute designed to curb the evil of embezzlement by public servants. In generic terms, embezzlement embraces failure to account plus conversion.”
Footnote 2, ante at 32, states:
“It is curious that differing from Count II, public property embezzlement, Count III was filed under the general embezzlement statute, now W.S. 6-5-109 (1983 Replacement). The punishment for both has a maximum term of ten years as compared with failure to account of five years. W.S. 6-5-111 (1983 Replacement).”
There is an apparent misapprehension in the footnote because Count III refers to § 6-3-402(b) and (c)(i), W.S.1977 (1983 Replacement), which is the general embezzlement statute, not § 6-5-109, W.S.1977. I don’t find it curious at all that Count III was filed under the general embezzlement statute because the public embezzlement statute that once was § 6-5-109, W.S.1977 (1983 Replacement), (erroneously cited in the footnote) was repealed by the legislature effective June 5, 1984. The allegations in Count III relate to a period subsequent to the repeal of § 6-5-109 and, consequently, that charge could be brought only under the general embezzlement statute. This is simply one example of confusion relative to the statutory history that is manifested in the majority opinion. Such carelessness in a Supreme Court opinion is inexcusable.
Historically, the Criminal Code in Wyoming separated embezzlement of public funds from other kinds of embezzlement. Compare § 6-136, W.S.1957, with §§ 6-138 through 6-146, W.S.1957. All were sepa*39rate from the offense of the fraudulent failure of a public officer to account even though the provision defining that offense stated that the offender “shall be deemed guilty of embezzlement * * *.” § 6-137, W.S.1957. This statutory scheme was repeated in the compilation of the Criminal Code in 1977. Compare § 6-7-305, W.S. 1977 (December 1977 Repl.), with §§ 6-7-307 through 6-7-315, W.S.1977 (December 1977 Repl.). The fraudulent failure to account offense still was retained in a separate statute. Section 6-7-306, W.S.1977 (December 1977 Repl.). In both versions, these offenses were included in Ch. 7, “Offenses against property” of Art. 3, subtitled “Larceny, embezzlement, etc.,” in the Criminal Code. The statutory provisions remained in that form until the 1982 legislature adopted the Wyoming Criminal Code of 1982. Chapter 75, S.L. of Wyoming 1982. In that codification of the Wyoming statutes defining crime, Ch. 3, “Offenses against property,” is found in Art. 4, “Larceny and related offenses.” Embezzlement is defined in § 6-3-405, and it basically captures the separate identities that were the subject of different statutes in the earlier versions. Interestingly enough, the offense of embezzlement of public property is retained as § 6-5-109, but is included in Ch. 5 entitled “Offenses against public administration” of Art. 1, entitled “Offenses by public officials.” The offense of failure to account is identified as § 6-5-111, and the reference to being guilty of embezzlement no longer is set forth. This does seem to manifest a rather definite legislative intent to maintain separate offenses for embezzlement of public property and failure to account for public property.
A further revision of the criminal statutes occurred in 1983. Chapter 171, S.L. of Wyoming 1983. In that revision, the legislature consolidated those offenses that previously had been described as larceny, larceny by a bailee, and embezzlement with related offenses into a single offense defined as larceny. Section 6-3-402(d), W.S. 1977 (1983 Repl.). Section 6-3-402(b), W.S. 1977 (1983 Repl.), however, specifically excluded public servants subject to § 6-5-109, W.S.1977 (1982 Repl.). Instead, the 1983 revision continued the 1982 description of the offenses of embezzlement of public property and failure to account although the punishment for embezzlement of public property was changed to provide that the offense was a felony if the value of the property were more than $2,000; a high misdemeanor if the value of the property were less than $2,000 but more than $200; and a misdemeanor if the value of the property were less than $200.
Then, in 1984, § 6-5-109 was repealed, and the public servant was included among those who could commit larceny in violation of § 6-3-402(b). According to that statute, felony status is present if the value of the property is $500 or more. It is a misdemeanor if the value of the property is less than $500. The legislature did not repeal § 6-5-111, W.S.1977. This militates against the unsupported conclusion of the majority that “W.S. 6-5-111, in replacing W.S. 6-7-306, and the matching of its elements, * * * convinces us W.S. 6-5-111 is an embezzlement statute designed to curb the evil of embezzlement by public servants.” The crux of the matter is found in the illogical conclusion that “in generic terms, embezzlement embraces failure to account plus conversion.” It may be that embezzlement embraces failure to account, but there is no element of conversion required for § 6-5-111, W.S.1977, to be violated. That distinction makes all the difference.
The suggestion in the majority opinion that, in some fashion, the failure to account statute was the subject of implied repeal by the embezzlement statutes is singularly unpersuasive. Consequently, I must assume that the majority’s discussion was for effect only and that the ground of its decision is the double jeopardy prohibition found in the parallel provisions of the federal and state constitutions. In that aspect, the majority opinion affords a clear illustration of that aspect of human tragedy manifested by recurring mistakes because of the inability to recall what has gone before. I searched, in vain, in the majority opinion for a reference to Schultz v. State, 751 P.2d 367 (Wyo.1988). Perhaps *40Schultz v. State, supra, is ignored because its ratio decidendi is antithetical to the decision of the majority in this case. What does become apparent is a rather amazing parallel between the dissenting opinion in Birr v. State, 744 P.2d 1117 (Wyo.1987), and the majority opinion in this case. The transaction test espoused in Justice Urbig-kit’s dissents (n. 4 of the majority opinion) is resurrected.
I am compelled to object to the unfairness to the State and to the Bar of the divergence from the majority concepts of double jeopardy found in Birr v. State, supra, and Schultz v. State, supra, and those set forth in this case. The majority must have forgotten those earlier cases. What emerges then is a majority opinion that aptly fits Chief Justice Rehnquist’s description of the law of double jeopardy as confused, inconsistent, and less than a model of clarity. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (Rehnquist, J., dissenting). See Vigil v. State, 563 P.2d 1344 (Wyo.1977). Fairness requires that the majority, instead of undercutting clear precedent in this jurisdiction by the tangential approach adopted here, squarely confront its obligation to either follow precedent or overrule it. Those members of the majority who have changed position owe an obligation to recant rather than renege.
We said in Birr v. State, supra, 744 P.2d at 1120:
“The Blockberger test can be applied by looking at the provisions of the statutes themselves and determining whether each statute calls for proof of a fact which the other does not. It also can be applied by looking at the facts of the particular case and determining if there is a different fact available to prove each of the separate offenses.”
By comparing the failure to account statute with the embezzlement statute, it is clear that the two statutes are different in that embezzlement calls for proof of conversion while the failure to account statute does not. The failure to account statute requires a demand that must be proved. There is no such element in the embezzlement statute.
The majority has obscured, except for a Freudian slip, this initial analysis that appropriately should be made in applying double jeopardy concepts. The first step is to determine whether the elements that describe the offense in the two statutes are identical or different. There is little question in this instance tb.at the elements of the offense defined in § 6-3-402(b), W.S. 1977 (1984 Repl.), are different from the elements set forth in § 6-5-111, W.S.1977. The majority concedes this when it says, “In generic terms, embezzlement embraces failure to account plus conversion.” (Emphasis added.)
Furthermore, the majority opinion simply glosses over the stark fact that the State alleged, and proved, that the defendant embezzled $3,420.79 (Count III) although it also alleged and proved that she failed to account for $4,343.79 (Count IV). The majority states that the conclusion that these two statutes were intended to guard against the same offense “accommodates the identical funds except for the $923.” No effort is made to explain the $923 which certainly is proof of a different fact in Count IV than was established in connection with Count III. This latter concept is embraced by Birr v. State, supra, by quoting from Blockberger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in the context of whether proof of one offense requires proof of an additional fact which the other does not.
In Schultz v. State, supra, we held that we need to consider “the plain language of the statute giving the words their plain and ordinary meaning.” Schultz v. State, supra, at 370. If that is done in this instance, we discover a clear articulation of different elements of the offense. We also find allegations in the two counts that require different proof. Small wonder that the majority eschews any reference to Schultz v. State, supra.
The analysis articulated in Blockberger v. United States, supra, is pursued only when the legislature has described substantially identical conduct in two separate stat*41utes. If that stipulation exists, the process of Blockberger v. United States, supra, is invoked as a tool in reaching a conclusion with respect to legislative intent. If the conclusion is that the legislature intended to suppress different evils, then multiple punishment is not foreclosed. See Birr v. State, supra, and authorities cited there. In this case, the gravamen of the embezzlement offense is the actual conversion of the property. On the other hand, the gravamen of the offense of failure to account is precisely that. No conversion is required for that evil to be addressed. As a part of the analysis in Schultz v. State, supra, this court held that the identification of separate punishments for each offense was significant in determining whether the legislature intended the offenses of conspiracy and the actual commission of the planned crime to be separate offenses. We find in this instance that our legislature not only has provided for separate punishments in the embezzlement statute and the failure to account statute, but that the punishments are different.
In Birr v. State, supra, we also said: “We also note that felony murder and aggravated robbery are contained in two separate statutes, each with its own punishment provision.
“ ‘The presumption when [the legislature] creates two distinct offenses is that it intends to permit cumulative sentences, and legislative silence on this specific issue does not establish an ambiguity or rebut this presumption.’ Garrett v. United States, 471 U.S. at 793, 105 S.Ct. at 2419.” Birr v. State, supra, 744 P.2d at 1121-1122.
The manifestation of the intention to create two distinct offenses is clear in this instance. The presumption of cumulative sentences should be followed.
It is to be noted that the majority quotes from State v. Carter, 714 P.2d 1217 (Wyo.1986), but it does not follow the ratio deci-dendi of that decision. That case is consistent with prior decisions by this court, and those of the Supreme Court of the United States, which hold that the double jeopardy clause is not implicated if separate evidence sustains two violations of the same statute. Baum v. State, 745 P.2d 877 (Wyo.1987), and the cases there cited; Birr v. State, supra; Hamill v. State, 602 P.2d 1212 (Wyo.1979); Goodman v. State, 601 P.2d 178 (Wyo.1979); Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); Blockberger v. United States, supra. The material quoted by the majority not only is taken out of context but is inappropriate to the facts of this case. This is not an instance in which the evidence of the conversion of public property (embezzlement) is the only evidence to support a failure to account charge. It is part of the evidence, but that is the most that can be said.
In essence, this case holds that we have adopted a rule of merger when evidence overlaps. The majority says:
“The Brannan desk money and the Swanson check were the basis for Count III of Information No. 9691. The Count IV failure to account charge included that money as well as the postage sum of nine hundred twenty-three dollars ($923) from 1984.” Ante at 33.
It is apparent that the jury was able to perceive what the majority chooses to ignore. The evidence was sufficient to demonstrate that Howard failed to account for money entrusted to her, but the State could not prove that she had converted all of that money to her own use. The majority refuses to accept the fact that, with respect to some of the same monies, two crimes were committed. The majority approach cannot be supported by our prior decisions, but the claim is not a novel one.
“A different-evidence test involves that different evidence will be used in each conviction not required in the other, not that the augmented offense involves further misconduct which was part of the composite transaction.” Birr v. State, supra, 744 P.2d at 1124 (Urbigkit, J., dissenting).
This precise analysis was rejected by the court in Birr v. State, supra; Baum v. State, supra; Hamill v. State, supra; and Goodman v. State, supra.
*42I also am clear that no error was committed with respect to Count V of the charge in Criminal Case No. 9691. The objection to prejudicial joinder must be made before trial. There is no justification for not presenting it until a motion for new trial or on appeal. Professor Wright correctly states the rule.
“The objection is waived if not raised by motion before trial, though in unusual circumstances the court may entertain the motion though it is not made until some later time. In any event it is too late to raise the objection for the first time after trial.” C. Wright, Federal Practice and Procedure: Criminal 2d § 145 at 528 (1982), and cases cited at nn. 18-20 and 1987 Pocket Supp. (Footnotes omitted.)
This court has not been willing to accept the proposition that failure to preserve a record justifies avoiding the burden of plain error. On the contrary, we require that the appellant demonstrate by reference to the record, without resort to speculation or equivocal inference, what occurred at trial. The appellant must demonstrate the facts upon which the claim of error rests, and that the fact or facts demonstrate the existence of a clear and obvious, not merely arguable, violation of law. Lozano v. State, 751 P.2d 1326 (Wyo.1988); Cutbirth v. State, 751 P.2d 1257 (Wyo.1988); McDonald v. State, 715 P.2d 209 (Wyo.1986); Tompkins v. State, 705 P.2d 836 (Wyo.1985), cert. denied 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1985). In this instance, it is clear that, in the absence of objection by the appellant, no error occurred with respect to the joinder of Count V. I am in accord with Chief Justice Car-dine and Justice Brown, Retired, as to this issue.
I would affirm the convictions on all counts.