¶1concurring in part and dissenting in part:
¶2I concur in parts I, II, and III of the majority opinion. I dissent as to part IV.
¶3First degree murder “requires proof of a statutorily defined aggravating circumstance in addition to an intentional and knowing killing.” State v. Shaffer, 725 P.2d 1301, 1313 (Utah 1986); see Utah Code Ann. § 76-5-202(1). The jury convicted Wood of first degree murder finding three such circumstances: (1) The death was caused while Wood was “engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit ... aggravated sexual assault,” see § 76 — 5—202(l)(d); § 76-5-405; (2) the death was caused while Wood was “engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit ... aggravated kidnapping,” see § 76-5-202(l)(d); § 76-5-302; and (3) the murder was committed in an “especially heinous, atrocious, cruel, or exceptionally depraved manner,” see § 76-5-202(l)(q). The special verdict form indicates that the jury found each of these aggravating circumstances beyond a reasonable doubt.
¶4The trial court sentenced Wood to life in prison for first degree murder and to consecutive minimum mandatory terms of ten years to life for his convictions of aggravated sexual assault and aggravated kidnapping. Relying on our decision in Shaffer, 725 P.2d at 1312-14, Wood contends that his convictions for first degree murder and the two underlying felonies violate section 76-1^02(3)(a) because the felonies are lesser included offenses of first degree murder as defined in section 76-5-202(l)(d). I agree.
¶5Section 76-1-^402(3) provides that “a defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense.” It further provides, “An offense is so included when ... it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” § 76-1-402(3)(a). In Shaffer, we addressed the application of this section to first degree felony murder convictions. In that case, the defendant was charged with intentionally and knowingly causing the death of the victim “while engaged in the commission of or an attempt to commit or flight after committing or attempting to commit Aggravated Robbery or Robbery or the homicide was committed for pecuniary or other personal gain.” 725 P.2d at 1313. The jury convicted the defendant of first degree murder but did “not indicate which aggravating circumstance [it] relied upon to find [him] guilty.” Id.However, because the jury had also convicted the defendant of aggravated robbery, we assumed that felony “served as an aggravating circumstance.” Id.
¶6The issue then arose “whether the predicate or underlying felony of felony murder is a lesser included offense thereby barring conviction of both first degree murder and the predicate felony.” Id. at 1312. We held:
Under the facts of this case, therefore, proof of aggravated robbery was a necessary element to proof of first degree felony murder_ [U]nder the test for sepa-
rateness found in section 76-1^102(3), aggravated robbery becomes a lesser included offense of first degree felony murder where ... the predicate felony for first degree murder is aggravated robbery. No additional facts or separate elements are required to prove aggravated robbery af*92ter first degree murder based on the predicate offense of aggravated robbery is shown. Thus, first degree murder based on the predicate offense of aggravated robbery stands in a greater relationship to the lesser included offense of aggravated robbery. If the greater crime is proven, then the lesser crime merges into it.
¶7Id. at 1313. Accordingly, we concluded that section 76-1-402(3) “prevents the defendant from being convicted and sentenced for aggravated robbery in addition to first degree murder where the aggravating circumstance is aggravated robbery.” Id. at 1313-14.
¶8The instant case poses a slightly different question. Wood was convicted of first degree murder based on the two enumerated felonies and the “heinousness” factor, the jury finding each of these aggravating circumstances beyond a reasonable doubt. Under section 76-5-202, one of these three aggravating circumstances alone would have been sufficient to elevate Wood’s conduct from second to first degree murder. Not surprisingly, the State argues that the jury relied on the heinousness factor to convict Wood of first degree murder. Therefore, the argument continues, the two predicate felonies were not proved by the “same or less than all the facts” necessary to establish the commission of first degree murder. I agree that our decision in Shafferdoes not compel this result. We cannot allow the State to retrospectively premise a first degree murder conviction on the nonfelonious aggravating circumstance in order to preserve convictions for felonies charged and proved as aggravating circumstances. Doing so would be completely arbitrary.
¶9The majority, however, goes on to retrospectively decide that proof of aggravated sexual assault rather than the aggravated kidnapping was the predicate felony to Wood’s first degree murder conviction and therefore must merge with that conviction as a lesser included offense. The basis for this decision is that the aggravated kidnapping was “not as closely related causally to the killing as the aggravated sexual assault.” The majority reasons that the kidnapping was committed “at an earlier time and in a different place and before it was clear that Wood had formed an intent to kill Church.” I disagree with this analysis. Whether one underlying felony is more “closely related causally to the killing” than another is not the statutory test.
¶10As explained, the statutory test for determining whether an offense stands in a lesser relationship to the offense charged is whether the offense is “established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Utah Code Ann. § 76-l-402(3)(a). To apply this standard, we “compare the statutory elements of the two crimes as a theoretical matter.” State v. Hill, 674 P.2d 96, 97 (Utah 1983) (emphasis added). No “additional facts or separate elements” were required to prove aggravated kidnapping and aggravated sexual assault once Wood was convicted of first degree murder based on those predicate felonies. Shaffer, 725 P.2d at 1313 (emphasis added). Therefore, section 76-1-402(3) prevents Wood from being convicted of both first degree murder and the two predicate felonies to that crime. What the majority fails to recognize is that the statutory elements of aggravated kidnapping and aggravated sexual assault are the facts by which those crimes are established.
¶11If the aggravated kidnapping had been the only predicate felony in this case, there is no question that it would have been a lesser included offense of first degree murder under section 76-l-402(3)(a). This is so despite the fact that it was not “closely related causally to the killing” and that it occurred “at an earlier time and in a different place and before it was clear that Wood had formed an intent to kill Church.” Shafferdictates this result. Yet, in the instant ease, the majority concludes that the same aggravated kidnapping is not a lesser included offense, not because the kidnapping is proved by different facts or elements, but because a second predicate felony occurred closer in time and place to the killing and was more “closely related causally” to it.
¶12The majority’s decision to ignore section 76-1-402(3) is arguably reconciled by the fact that only one of the two underlying felonies was necessary to convict Wood of first degree murder. Once the predicate felony was
¶13*93proved, the additional felony was not “established by proof of the same or less than all the facts required to establish [the first degree murder].” Utah Code Ann. § 76-1-402(3)(a). But which felony should we choose? The majority adopts the rule that the felony “most closely related causally to the killing” constitutes the predicate felony to first degree murder and therefore merges with that crime. It offers no explanation as to why this should be the standard. Other courts have adopted different rules, each as arbitrary as the one embraced by the majority today. Callis v. People, 692 P.2d 1045, 1054 (Colo.1984) (“When a defendant is convicted of multiple felonies, all of which are alleged as the legal predicates for the commission of felony murder, that felony which most directly contributes to the death of the victim should serve as the essential element of the felony murder conviction.”); Small v. State, 458 So.2d 1136 (Fla.Dist.Ct.App.1984) (where defendant was convicted of felony murder and two underlying felonies, court vacated the “less serious offense” as the lesser included offense of felony murder); Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505, 507-08 (1981) (to determine which of multiple felonies formed the basis of felony murder conviction, court should look first to the indictment or, if it is not specified therein, to the evidence, determining which crime was “the initial felony which began the chain of circumstances which ultimately led to the death of the victim”), overruled by Thompson v. State, 263 Ga. 23, 426 S.E.2d 895, 897 (1993) (“where it is unclear which of two or more felonies is the underlying felony for a felony murder conviction, the trial court must merge the most severe (in terms of potential punishment)” because in such circumstances, there “is no logical rule to be applied in making a determination regarding the jury’s intent” and the resulting ambiguity “must be construed in the defendant’s favor”).
¶14The legislature could answer this question by indicating its intent to impose or not to impose multiple punishments for multiple predicate felonies. Likewise, special verdict forms could require the jury to assign “predicate” status to one aggravating circumstance or enumerated felony. However, in the absence of such a form or legislative intent, there is no principled basis upon which we can determine which one of multiple felonies constitutes the necessary element of first degree murder. We are thus left with the only nonarbitrary rule — to merge all predicate felonies with a first degree murder conviction. All of them meet the definition of an included offense under section 76-1-402(3)(a).
¶15It is true that in State v. McCovey, 803 P.2d 1234, 1239 (Utah 1990), we held that the predicate felony to second degree felony murder was not a lesser included offense of second degree murder. We did so in the face of our prior holding in Shaffer, 725 P.2d at 1313-14, that the predicate felony to first degree murder was a lesser included offense and therefore merged with a first degree murder conviction. To reach that result, we relied on the facts that (1) there were in McCoveyseparate victims of the predicate felony (aggravated robbery) and the murder, and (2) second degree murder, unlike first degree murder, does not carry a death sentence or life imprisonment where any additional sentences would be surplusage and unnecessary. However, Justices Durham and Zimmerman dissented on the ground that however desirable the majority’s result may be, section 76-1^02(3)(a) precluded it since “[i]t is not possible to convict a defendant of killing while committing an aggravated robbery without proving the facts of the felony of aggravated robbery.” McCovey, 803 P.2d at 1240.
¶16This writer joined the majority in State v. McCovey. However, neither of the factors which we relied on to reach our result of nonmerger is present in the instant case. I am thus left to conclude that under the plain wording of section 76-l-402(3)(a), Wood’s conviction of aggravated kidnapping did merge with his first degree murder conviction. In this conclusion, I am supported by an observation made by the Idaho Supreme Court in Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986). Sivakheld that under Idaho case law defining what constitutes an included offense (similar to our section 76-1-*94402(3)(a)), the defendant’s conviction of robbery merged with his conviction of first degree felony murder. Said the court:
Our holding on this issue makes sense because without the robbery, the state would have received only a second degree murder conviction against Sivak. And with it, a much lighter punishment. However, because of the robbery, the state sought and received a first degree murder conviction carrying a more severe penalty. Thus, Sivak, in essence, is being punished for the robbery by way of the punishment he received for the felony murder offense.
¶18I would vacate Wood’s conviction of aggravated kidnapping as well as his conviction of aggravated sexual assault.