(concurring and dissenting):
T 59 I concur with the majority respecting Parts II, III, and IV, and concur and dissent with respect to Parts I and V.
1 60 At the outset, I am concerned that the majority does not address the effect of the events leading to the result on appeal.1 First, the jury was instructed to reach a verdict on both aggravated kidnaping and child kidnaping, although charged in the alternative, and, accordingly, returned a verdict inconsistent with the charges. Second, the judge imposed sentence on the aggravated kidnaping and aggravated sexual abuse of a child charges but later entered judgment on child kidnaping after determining that aggravated kidnaping merged with aggravated sexual abuse of a child. Finally, the record does not reflect the disposition of the host crime of aggravated sexual abuse of a child. ©
161 Diaz was charged in a two count information. In count one, he was charged with aggravated kidnaping or, in the alternative, child kidnaping. In count two, he was charged with aggravated sexual abuse of a child.
TI 62 The proposed jury instructions provided that the aggravated kidnaping and child kidnaping charges should be considered in the alternative. However, the version submitted to the jury erroneously instructed them that a verdict was to be returned upon both the aggravated kidnaping and child kid-naping charges. Thus, the jury returned a guilty verdiet on all three charges-aggravated kidnaping, child kidnaping, and aggravated sexual abuse of a child. After the verdict, defense counsel requested clarification upon which of the two, alternatively charged offenses in count one Diaz would be sentenced. The judge accepted the State's recommendation that sentence be imposed on the aggravated kidnaping count, rather than child kidnaping.
163 On February 2, 1999, the trial court imposed sentence for the aggravated kidnap-ing and aggravated sexual abuse charges. At that time, sentencing was continued for consideration of an enhancement. A judgment and order of commitment was prepared to reflect the sentencing for aggravated kid-naping and aggravated sexual abuse of a child. However, the trial judge did not sign the order because he was concerned about the application of the merger doctrine. The court submitted to counsel a copy of State v. Finlayson, 956 P.2d 288 (Utah Ct.App.1998), aff'd in part, 2000 UT 10, 994 P.2d 1248, and each side prepared briefs addressing the merger issue. Prior to the sentencing hearing, the State filed a motion for a change of judge based upon the court's election to place the aggravated kidnaping and child kidnap-ing charges before the jury and that the judge "created the cireumstances that might possibly allow application of the merger doe-trine under the reading most beneficial to defendant." The affidavit in support of the motion was determined not to be sufficient *1146for recusal by another judge who ruled that a new judge would be "faced with the same quandary" in relation to merger and that no bias existed.
T 64 At continued sentencing on March 25, 1999, the court determined that aggravated kidnaping merged into aggravated sexual abuse of a child. Apparently resurrecting the child kidnaping verdict, the court again asked the State to elect the charges upon which Diaz would be sentenced-aggravated sexual abuse of a child or child kidnaping "which has a minimum mandatory."
1 65 The State elected the child kidnaping charge and on May 8, 1999, the trial court executed a judgment and order of commitment that sentenced Diaz to only the child kidnaping count. The record does not indicate what, if anything, happened to the aggravated sexual abuse of a child verdict into which the aggravated kidnaping verdict merged.
166 The jury convicted Diaz on the two kidnaping charges, although they were charged in the alternative. If a trial judge is encountered with an inconsistent jury verdict and sentence is imposed on only one charge, there is no reversible error or lack of due process. See State v. Logan, 712 P.2d 262, 264 (Utah 1985). In Logan, the Utah Supreme Court held that a defect caused by an inconsistent verdict becomes "cured when the trial judge enters judgment or imposes sentence upon only one charge or count." Id. Here, the inconsistent jury verdict was arguably addressed when the trial judge entered the judgment on the child kidnaping charge.2
T67 "[Thhe law is well settled in the state that the statements made by a trial judge are not the judgment of the case and it is only the signed judgment that prevails." State v. Gerrard, 584 P.2d 885, 887 (Utah 1978); see also McCollum v. Clothier, 121 Utah 811, 241 P.2d 468, 472 (Utah 1952) (stating that judgment cannot be overturned because trial court changed its mind and entered judgment contrary to orally announced decision and that the only judgment given effect is the one entered in accordance with law); Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1311 (Utah Ct.App.1994) (noting "a judge is free to change a ruling until a final decision is formally rendered"). Thus, the trial court is not bound by its "pre-merger" imposition of sentence.
" 68 I am also concerned about the disposition of the host crime. By sentencing Diaz only upon the child kidnaping charge and not the host crime of aggravated sexual abuse of a child, the secondary child kidnaping offense has become the primary charge which carries the heaviest penalty. Assuming the offense of child kidnaping is subject to merger, the very purpose of the merger doctrine could be thwarted by the simple expedient of, in effect, eliminating the host erime. The purpose of merger was to prevent adding charges to the host crime merely to obtain a " 'significantly heavier sentence than if only the host crime had been charged." Finlayson, 956 P.2d at 289 n. 5 (quoting State v. Couch, 635 P.2d 89, 92 (Utah 1981)).
169 The merger doctrine is further emasculated by what I believe is the majority's incorrect assertion that an offense with a specific intent element "eliminates any possibility of [that offense] being merely incidental to a [host] eriminal act," ante at 1 25, and, thus, not subject to merger. Aggravated kiduaping, which was determined to be merged into aggravated sexual abuse of a child by the trial court, can be a specific intent crime. See Utah Code Ann. § 76-5-302 (Supp.2001); see also Utah Code Ann. § 76-5-308 (Supp.2001) (requiring specific intent for custodial interference). In fact, in Finlayson, the underlying aggravated kid-naping was a specific intent crime because the elements of the offense included "the intent ... to facilitate the commission of the rape and forcible sodomy." State v. Finlayson, 2000 UT 10,¶ 14, 994 P.2d 1243; see also Braggs v. State, 789 So.2d 1151, 1153 (Fla.Dist.Ct.App.2001) (reversing kidnaping conviction with specific intent element because acts were incidental to and part of the underlying felony); State v. Kemp, 46 P.3d 31, 33-*114735 (Kan.Ct.App.2002) (same). It is both illogical and inconsistent with our merger jurisprudence that a specific intent crime cannot be the subject of merger, including child kidnapping.3 If the requirement of a "separate and specific mental intent," ante at I 25, eliminates the possibility of merger, the doctrine will have little efficacy.
T70 Finally, in this case, I believe that child kidnaping merges into aggravated sexual abuse of a child. The majority relies on the specific intent element to child kidnaping of "inten{ding] to keep or conceal the child from its parent, guardian, or other person having lawful custody or control of the child" to determine that the detention of the victim was not merely incidental to the aggravated sexual abuse. Utah Code Ann. § 76-5-301.1 (1999). This conclusion is not only legally incorrect, but inconsistent with the facts of this case.
T 71 Unlike lesser included offense analysis conducted under Utah Code Ann. § 76-1-402 (1999), merger analysis is more fact intensive. See State v. Lopez, 2001 UT App 123, 1 14 n. 4, 24 P.3d 993 (noting "factual seenar-ios constituting the commission of the host crime" will vary widely, so "whether movement and confinement are inherent in the host crime will almost always involve factual inquiry").
172 Under the facts of this case, there is no evidence in the record that demonstrates that Diaz was even aware that the mother was present in the vicinity when he induced the child to his car or that the mother was aware of the location of the child. In fact, the victim was standing alone in front of the store while the mother was somewhere inside the store at the time the victim was approached by Diaz. Accordingly, the fact that Diaz requested the child, who appeared to be alone, to escort him to his car with the kitten and then detained the victim while committing the sexual abuse suggests that the inducement to go to the vehicle was merely incidental to the host crime. See Finlayson, 2000 UT 10 at 123, 994 P.2d 1243 (carrying the victim to a bedroom and handcuffing her was a "slight, inconsequential" detention merely incidental to other crimes). Furthermore, Diaz luring the victim to his car for the purpose of committing the aggravated sexual abuse was inherent in the nature of the sexual offense since Diaz would not have engaged in the criminal act in front of the store, in plain view of customers, where the child was initially located. See id. Finally, the child kidnaping was not independently significant of the sexual abuse since the sexual conduct could only be achieved through inducing the child to his car and then momentarily detaining her while engaging in the sexual abuse. See id. Therefore, according to the facts of this case, the very intent relied upon by the majority is not supported, and child kidnaping would merge into aggravated sexual abuse of a child.
173 I would remand for sentencing upon the aggravated sexual abuse of a child conviction.
. Diaz challenges the March 25, 1999 sentencing hearing, the merger analysis, and his sentence, specifically the prosecutor's post-merger role in «deciding upon which crime Diaz would be sentenced and the related decision not to sentence on aggravated sexual abuse of a child.
. Because I believe both kidnaping charges merged into the host crime, I do not here address the propriety of dealing with an inconsistent verdict where the inconsistency was arguably eliminated as a matter of law.
. The specific intent element has since been removed from the statute. See Utah Code Anu. § 76-5-301.1 (Supp.2001).