Duffy v. State3/21/1990
ion of the legislature with respect to whether the conduct should be punished as a single offense or as more than one. Lauthern v. State, 769 P.2d 350 (Wyo. 1989); Schultz v. State, 751 P.2d 367 (Wyo. 1988); Birr v. State, 744 P.2d 1117 (Wyo. 1987). See Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
"`Where consecutive sentences are imposed at a single criminal trial, the role of the [double jeopardy clause] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.'" Birr, 744 P.2d at 1119, quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).
In determining the question of legislative intent, we have examined statutory definitions, Nowack v. State, 774 P.2d 561 (Wyo. 1989), and we also have evaluated the other circumstance surrounding the crimes charged, whether they grow out of different transactions or different evidence is required to establish the separate offenses. Nowack. If the conduct that establishes an element of the offense is repeated, we have held that separate crimes were committed even though the other evidence overlaps or is identical. Baum v. State, 745 P.2d 877 (Wyo. 1987); Tuggle v. State, 733 P.2d 610 (Wyo. 1987); State v. Carter, 714 P.2d 1217 (Wyo. 1986); Hamill v. State, 602 P.2d 1212 (Wyo. 1979).
"`* * * f the offenses charged are separate and distinct either with respect to statutory definition, or, because * * * they grow out of different transactions and different evidence is needed to prove each, then the constitutional inhibition against double jeopardy is not applicable and, so long as the offenses charged are not factually inconsistent, a defendant may be found guilty and judgment of sentence thereon may be had as to each of the offenses charged.'" Jackson v. State, 522 P.2d 1356, 1359 (Wyo. 1974), cert. den. 419 U.S. 1055, 95 S.Ct. 637, 42 L.Ed.2d 652 (1974), quoting State v. Johnson, 112 Ohio App. 124, 165 N.E.2d 814, 820 (1960).
See also Goodman v. State, 601 P.2d 178 (Wyo. 1979); Jerskey v. State, 546 P.2d 173 (Wyo. 1976). This rule was explained in this way in Goodman, 601 P.2d at 185:
"* * * Two or more distinct offenses may emanate from the same transaction or act, and the rule that a person cannot be put twice in jeopardy for the same offense has no application where two separate and distinct crimes are committed by one and the same act. People v. Hairston, 1970, 46 Ill.2d 348, 263 N.E.2d 840, 847, cert. den. 402 U.S. 972, 91 S.Ct. 1658, 29 L.Ed.2d 136. Where two statutes are intended to suppress different evils, the acquittal or conviction on one will not prevent prosecution of the other. Decker v. State, 1971, 251 Ark. 28, 471 S.W.2d 343, 344; State v. Ahuna, 1970, 52 Haw. 321, 474 P.2d 704, 707 * * *."
With respect to those instances in which different statutes are involved, the question has been resolved by a determination that the legislature intended to define separate crimes, punishable separately. Conversely, when we have determined that the intention was to create only a single continuing offense or to describe alternative means of committing the same offense, the State may not structure multiple violations even though some separate evidence might support the several charges.
As noted in Nowack, we have approached this latter concept in Kallas v. State, 704 P.2d 693 (Wyo. 1985), and later in Bueno-Hernandez v. State, 724 P.2d 1132 (Wyo. 1986), cert. denied 480 U.S. 907, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987). In Kallas, we relied upon United States v
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