James v. State

*1022VOIGT, Justice,

specially concurring, in which GOLDEN, Justice, joins.

[¶ 22] I agree with the result reached in the majority opinion. I write separately only to encourage this Court finally to abandon the fact or evidence approaches to the issue of merger and to adopt as our only standard the statutory elements test. See 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). For too long, we have ignored the fact that the United States Supreme Court rejected the "conduct" or "evidence" test in favor of the statutory elements test by overruling Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 LEd.2d 548 (1990) in United States v. Dizon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1998). We should follow suit.