dissenting.
This triangle involved ex-husband/defendant/appellant Lauthem, his ex-wife/sometimes present housemate, Katherine Gun-derman, and her sometimes boyfriend, Alvin Rone. Rone and Lauthem were hostile for more reasons than their separate complicating romantic interests in Gunderman. Events came to a climax when Lauthem, fretting all night that Gunderman had not come home, located her with Rone the next morning at her separate residence. Cultivating emotion into high anger, Lauthem broke into the house where Gunderman and the still intoxicated Rone had spent the late evening and early morning.
It was from the fracas that resulted that Lauthern was charged with and sentenced after conviction for attempted second degree murder of Rone, aggravated asgault on Gunderman and aggravated burglary of the residence where the two people were located. I dissent from the majority’s affirmation of the convictions for both aggravated assault and aggravated burglary. In my opinion, the trial court accurately assessed the unitary nature of the case in its sentence by entering penitentiary confinement of not less than three nor more than five years for the aggravated assault and suspended sentences for both the conviction of aggravated burglary and attempted second degree murder, with all sentences to run concurrently for this sixty-two-year-old man.
Initially, I could dispose of this appellate issue — questioning the duplicity or double jeopardy in separate charges for the assault as well as the burglary — on a concurrent sentence doctrine. Driskill v. State, 761 P.2d 980 (Wyo.1988); Emanuel, The Concurrent Sentence Doctrine Dies a Quiet Death — Or Are the Reports Greatly Exaggerated?, 16 Fla.St.U.L.Rev. 269 (1988). Unfortunately, the majority chose to justify the overlapping and duplicitous charges with which result I presently dissent because of possible future precedent in a case where the issue really matters to the convicted individual.
*359Applying the evidence with a construction most favorable to prosecution, Lauth-em broke into the house to inflict his anger forcefully and physically upon Rone, and Gunderman got in his way in the process. Considering that possibly a brick and a telephone were the instruments of infliction of injury on the love-interest competitor, the parameters of attempted second decree murder may be stretched to the limits of proof and interpretation, but that uncertainty is not an issue contested by appeal.
Obviously, the entry was a factual constituent of the resulting mayhem. The assault on Gunderman was the aggravation factor within which aggravated burglary could be extruded. I have no great difficulty with the citations of the various cases by the majority or disagreement in relevant principles as we journey from the historical Wyoming law of the transactional limitation for double jeopardy through Carter v. State, 714 P.2d 1217 (Wyo.1986) to Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and the confused and complicating cases in numerous number from the United States Supreme Court, federal courts and state tribunals that have since followed in review of the double jeopardy and duplicitous charging analyses. Since Carter, 714 P.2d 1217, this court has not been spared as the issues have been more recently visited in Schultz v. State, 751 P.2d 367 (Wyo.1988) and Birr v. State, 744 P.2d 1117 (Wyo.1987). See Note, Criminal Procedure — Consecutive Sentences for Felony Murder and the Underlying Felony: Double Jeopardy or Legislative Intent? Birr v. State, 744 P.2d 1117 (Wyo.1987), XXIII Land & Water L.Rev. 603 (1988).
I find the general rules improperly applied here which also occurred in Birr, 744 P.2d 1117, in that we extrapolate a lesser included offense to create a separate crime. Clearly, the constitutional issue raised by the lesser included offense doctrine involves the Fifth Amendment, that no person shall be subject for the same offense to be twice put in jeopardy of life and limb. This provision protects against both multiple prosecution and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969), as recited and substantiated in State v. Jeffries, 430 N.W.2d 728, 734 (Iowa 1988).
In this case, in the context of the angered ex-husband/boyfriend, the assault was the aggravation for the aggravated burglary conviction as the constituent felony to be differentiated from whatever property damage offense might be committed by forceful and unacceptable entry. My special concurrence in Schultz, 751 P.2d 367 and dissent in Birr, 744 P.2d 1117 define a present concern about a result that essentially extrapolates the lesser included to create a separate crime which is contrary to both the general law and the interpretative posture of Blockburger, 284 U.S. 299, 52 S.Ct. 180 to require a separate element for each charge.
In excellent analysis and carefully defined text, the Iowa Supreme Court in Jeffries, 430 N.W.2d 728 defines and illuminates the factors and function of the lesser included offense doctrine. That case probably provides the most academically considered and comprehensively enumerated dissertation on the subject which can be found in any recent case review. Without extended reference, it would realistically appear that Wyoming has followed the de-cisional approach of Iowa in acceptance of the common law or strict statutory elements approach. Wyoming provides by W.R.Cr.P. 32(c):
The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.
See Goodwine v. State, 764 P.2d 680 (Wyo.1988); Simonds v. State, 762 P.2d 1189 (Wyo.1988); Driskill, 761 P.2d 980; and Griego v. State, 761 P.2d 973 (Wyo.1988). In this application, at least generally by definition, a lesser included offense is enveloped within the confines of the principal offense so that some contended, unproven fact, such as intent, justifies diminution of penalty to the less severe charge.
*360Consequently, by any consistent application of adopted legal principles, the lesser included offense within the Blockburger thesis cannot be a separate offense since there cannot be separate elements for each of the two charges.
Further, in Jeffries, 430 N.W.2d at 734-35, we perceive:
The lesser-included offense doctrine comes into play in determining what is a “same offense” for double-jeopardy purposes. Ex parte Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33 L.Ed. 118, 122 (1889). According to Nielsen, if an offense is a lesser-included one of the offense charged, a conviction or acquittal of the charged offense bars a subsequent prosecution of the lesser offense. Id. Further, a conviction or acquittal of the lesser-included offense bars a subsequent prosecution of the greater offense.
In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), the Supreme Court laid down the following test for determining the “same offense” for double-jeopardy purposes: “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” This test parallels the strict statutory-elements approach. Ettinger, 50 Brooklyn L.Rev. at 218.
In factual recitation where I depart from the majority, is in their analysis with regard to the differentiated elements of aggravated burglary as requiring “inter alia, (1) proof of unlawful entry with (2) the intent to commit * * * a felony therein,” where the assault was the felony since clearly Lauthem was vengeful but not larcenous. Obviously, a person can commit burglary without committing assault, but in this case, the activity constituent within the burglary and aggravated burglary charge was the indispensable lesser included assault and aggravated assault conduct.
It is in the essential nature of serious criminal conduct that the proscribed activity or course of felonious behavior can be expected to invade more than one criminal statute or at least to invoke a more serious charge for which, with some factor deleted, a lesser included offense will be involved. For this reason, the cases on this dual subject of double jeopardy and lesser included offense are vastly variant in character and numerous in number beyond any reasonable review or citation. However, somewhat immediately similar in nature is Ramsey v. State, 183 Ga.App. 344, 358 S.E.2d 902 (1987), invoking inquiry of whether aggravated assault would be the lesser offense of armed robbery. In finding that the assaultive activity constituted the effort to carry the armed robbery into effect, that court determined that the conviction for aggravated assault merged into the armed robbery and consequently the aggravated assault conviction had to be set aside. See Hambrick v. State, 256 Ga. 148, 344 S.E.2d 639 (1986); Koenig, The Many-Headed Hydra of Lesser Included Offenses: A Herculean Task for the Michigan Courts, 1975-76 Det.C.L.Rev. 41, 68 (1975); and Blair, Constitutional Limitations of the Lesser Included Offense Doctrine [Double Jeopardy], 21 Am.Crim. L.Rev. 445, 455 (1984). “Clearly, then, the impact of the standard chosen to identify a lesser included offense is that by implication it serves to delineate the scope of the double jeopardy protection afforded to the defendant.” Ettinger, In Search of a Reasoned Approach to the Lesser Included Offense, 50 Brooklyn L.Rev. 191, 219 (1984). The transgressions pursued by Lauthem in his unprovoked entry and assault are adequately served by one conviction in addition to the separate offense of attempted second degree murder of Rone. State v. Wood, 208 Conn. 125, 545 A.2d 1026, cert. denied — U.S. -, 109 S.Ct. 235, 102 L.Ed.2d 225 (1988); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Pearce, 395 U.S. 711, 89 S.Ct. 2072; Note, A Closer Look at the Supreme Court and the Double Jeopardy Clause, 49 Ohio St.L.J. 799 (1988).
Consequently, I respectfully dissent from a decision affirming three felonies which *361resulted from Lauthém’s anger driven conduct.