                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                2018 UT 17


                                    IN THE
       SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                               Respondent,
                                       v.
                            PERCY L. WILDER,
                               Petitioner.

                              No. 20160952
                           Filed May 15, 2018

         On Writ of Certiorari to the Utah Court of Appeals

                      Second District, Ogden
                  The Honorable Mark R. DeCaria
                          No. 131900362

                                 Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen.,
                  Salt Lake City, for respondent
          Samuel P. Newton, Kalispell, MT, for petitioner

   JUSTICE HIMONAS authored the opinion of the Court, in which
   CHIEF JUSTICE DURRANT, JUSTICE PEARCE, and JUSTICE PETERSEN
                             joined.
      ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion.

   JUSTICE HIMONAS, opinion of the Court:
                           INTRODUCTION
    ¶1 While on parole from the state prison for the attempted rape
of a child, defendant, Percy Wilder, detained and sexually attacked
the victim, leading a jury to convict him of one count of aggravated
sexual assault and one count of aggravated kidnapping. Before the
court of appeals, Mr. Wilder argued that these two convictions
should have merged pursuant to State v. Finlayson, 2000 UT 10, 994
P.2d 1243. He also argued that his trial counsel was ineffective for
not asking for an order to that effect.
                           STATE v. WILDER
                         Opinion of the Court

    ¶2 The court of appeals disagreed. It reasoned that
Mr. Wilder’s trial counsel didn’t render ineffective assistance
because the convictions didn’t, in fact, merge. We granted a writ of
certiorari to determine whether the court of appeals erred in its
determination. It didn’t.
    ¶3 The State and Mr. Wilder share no common ground with
respect to the decision of the court of appeals other than in one
significant particular: both ask us to repudiate the common-law
merger test we first announced in Finlayson and recapped in State v.
Lee, 2006 UT 5, 128 P.3d 1179, (Finlayson-Lee test). We accept the
invitation, overrule the relevant portions of Finlayson and Lee, and
announce that the controlling test is set forth in Utah Code section
76-1-402(1). In view of this decision, we uphold the determination of
the court of appeals that Mr. Wilder’s trial counsel wasn’t ineffective.
                           BACKGROUND
   ¶4 After going to a concert at an Ogden nightclub, and not yet
ready to call it a night, the victim and her friend decided to go to a
house party. 1 The two women got to the party at around 1:30 a.m.
Mr. Wilder showed up a few minutes later. In short order, he started
hassling the victim to go outside with him to talk. The victim told
him no. Undeterred, Mr. Wilder repeated his invitation nearly a
dozen times. The answer was always no.
    ¶5 While the victim didn’t go outside with Mr. Wilder, she did
decide to step outside to retrieve her phone from her car. Mr. Wilder
followed her out the door and immediately relaunched his verbal
offensive—now asking her over and over again to “go with him” to
talk. Again, the answer was no. Mr. Wilder didn’t stop. He opened
the driver’s side door of his car and tried to get the victim to sit
down. At first, she kept telling him that she didn’t want to.
Ultimately, however, she gave in hoping that it would “get him to
shut up.”
   ¶6 But Mr. Wilder kept going. Once he got the victim in the car,
he tried to get her to scoot over to the passenger seat. When she
refused, he sat on the edge of the driver’s seat. She then crossed over

_____________________________________________________________
   1 On review of a jury verdict, we recite the evidence, and all the
reasonable inferences that flow from the evidence, in the light most
favorable to the verdict. State v. Griffin, 2016 UT 33, ¶ 2 n.2, 384 P.3d
186.


                                   2
                         Cite as: 2018 UT 17
                        Opinion of the Court

to the passenger’s side, opened the door, and put one of her legs out.
To prevent the victim from getting out, Mr. Wilder started the car,
quickly backed up, and said he wanted her “to ride with him to go
pick up a friend and take him home or something.” The victim’s
door was still open as the car began moving forward.
    ¶7 Afraid Mr. Wilder would run over her if she jumped out,
the victim closed the car door, but asked Mr. Wilder to stop at her
car on the partial pretext of wanting to grab her phone. Really, she
just wanted out. Mr. Wilder refused. Instead, he kept driving, now
going on about wanting to have oral sex. The victim kept saying no.
    ¶8 Mr. Wilder, it appears, couldn’t have cared less about
obtaining the victim’s consent. So, he drove for a couple of minutes
and then pulled up by a dumpster toward the back of a parking lot
adjacent to an apartment complex. There, he turned the car off and
asked the victim to undress. He then tried to put his hand up her
shirt, shoved his head into her chest, and bit her. When she still
refused to submit, he started screaming at her “[t]o get naked.” The
victim reacted by asking why he was doing this and telling him if
he’d let her out she’d walk home. Mr. Wilder then shouted that he’d
cut her if she got out of the car.
    ¶9 Despite Mr. Wilder’s threat to cut her, the victim continued
to say no and to ask him why he was doing this. She also told him
that she had children at home. Mr. Wilder answered that “he didn’t
give an ‘F’ about [her] or [her] kids, and that [she] was going to do
what he said.”
   ¶10 Around this time, the victim took her heels off with an eye
toward making a run for it. Mr. Wilder told her to keep getting
undressed. When she wouldn’t, he “reached down the side of his car
and said, ‘I’m going to count to three, and if you are not naked, I’m
going to gut you from head to toe.’”
   ¶11 At two, the victim opened the door, jumped out, pulled
away from Mr. Wilder, and started running for the apartment
complex. The victim was in the car with Mr. Wilder for some ten
minutes before she was able to make her escape.
   ¶12 The victim made it inside of the apartment complex and,
hearing Mr. Wilder running behind her, started pounding on doors
and screaming. Mr. Wilder caught up with the victim, wrapped his
hand in her hair, and began trying to drag her back to the car. She
fought back by dropping close to the ground and locking her arms
and legs in a way that, given the narrow hallway, kept Mr. Wilder
from being able to drag her back. Mr. Wilder then released the

                                  3
                           STATE v. WILDER
                         Opinion of the Court

victim, punched her in the face, and ran off. The victim continued
pounding on apartment doors and screaming until she was able to
attract help and call 911. Police were able to quickly find and arrest
Mr. Wilder.
   ¶13 The State charged Mr. Wilder with one count of aggravated
sexual assault, a first-degree felony, and one count of aggravated
kidnapping, also a first-degree felony. The jury found Mr. Wilder
guilty as charged. The trial judge sentenced Mr. Wilder to two terms
of fifteen years to life, to run concurrently with each other but
consecutive to Mr. Wilder’s prison sentence for his prior conviction
for attempted rape of a child. At no point during the trial
proceedings did Mr. Wilder’s trial counsel move to have the two
convictions merged.
   ¶14 We granted a writ of certiorari on the question of “[w]hether
the court of appeals erred in concluding [Mr. Wilder’s] trial counsel
could not have established that his aggravated kidnapping and
aggravated sexual assault charges merged.” We assert jurisdiction
pursuant to Utah Code section 78A-3-102(3)(a).
                     STANDARD OF REVIEW
    ¶15 “On a writ of certiorari, we review the decision of the court
of appeals, not that of the district court, and apply the same
standard[s] of review used by the court of appeals. We conduct that
review for correctness, ceding no deference to the court of appeals.”
Judge v. Saltz Plastic Surgery, P.C., 2016 UT 7, ¶ 11, 367 P.3d 1006
(alteration in original) (citation omitted). In addition, the underlying
merger issue asks a question of law, which we also review for
correctness. See State v. Diaz, 2002 UT App 288, ¶ 10, 55 P.3d 1131.
                             ANALYSIS
    ¶16 Mr. Wilder’s overarching contention is that his trial “counsel
ineffectively failed to move to merge [his] aggravated kidnapping
conviction with his aggravated sexual assault conviction.”
Specifically, Mr. Wilder argues that his trial counsel was ineffective
because counsel failed to seek merger of the two convictions under
(a) the Finlayson-Lee test 2 or (b) the statutory test set forth at Utah


_____________________________________________________________
   2 Under the Finlayson-Lee test, if it’s alleged that an individual is
taken or confined “to facilitate the commission of another crime, to
be kidnap[p]ing the resulting movement or confinement:

                                   4
                            Cite as: 2018 UT 17
                           Opinion of the Court

Code section 76-1-402(1). 3 In the back-and-forth of these arguments,
both Mr. Wilder and the State assert that the Finlayson-Lee test is a
legal mess that must be overturned. Mr. Wilder would have us
replace the Finlayson-Lee test with another common-law test, which
he refers to as a “modified-Kimbel test.” 4 The State would have us
eschew any common-law test in favor of the statutory test and hold
that because the Finlayson-Lee test is invalid, Mr. Wilder’s counsel’s
failure to invoke it cannot serve as the basis for an ineffective
assistance claim. And the statutory merger test likewise cannot serve
as the basis, according to the State, because Mr. Wilder failed to
advance this argument before the court of appeals. We agree with
both of the State’s contentions.
                                      I
   ¶17 “The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the [a]ssistance of counsel for his
defense, meaning that he has the right to effective assistance of
counsel.” State v. Bond, 2015 UT 88, ¶ 59, 361 P.3d 104 (alteration in
original) (citation omitted) (internal quotation marks omitted).
“Under the Supreme Court’s decision in Strickland v. Washington, [a
defendant] must satisfy a two-part test to demonstrate” that he’s
been deprived of counsel’s effective assistance. Id. (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). First, he must demonstrate “his
counsel rendered a deficient performance in some demonstrable
_____________________________________________________________
        (a) Must not be slight, inconsequential and merely
        incidental to the other crime;
        (b) Must not be of the kind inherent in the nature of
        the other crime; and
        (c) Must have some significance independent of the
        other crime in that it makes the other crime
        substantially easier of commission or substantially
        lessens the risk of detection.”
State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243 (citation omitted);
see also State v. Lee, 2006 UT 5, ¶ 27, 128 P.3d 1179.
   3 Section 76-1-402(1) provides that “when the same act of a
defendant under a single criminal episode shall establish offenses
which may be punished in different ways under different provisions
of this code, the act shall be punishable under only one such
provision.”
   4   See generally State v. Kimbel, 620 P.2d 515 (Utah 1980).


                                      5
                           STATE v. WILDER
                         Opinion of the Court

manner, which performance fell below an objective standard of
reasonable professional judgment.” Archuleta v. Galetka, 2011 UT 73,
¶ 38, 267 P.3d 232 (citation omitted). Second, he must establish
“counsel’s performance prejudiced” him, id. (citation omitted),
meaning there’s “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different,” id. ¶ 40 (citation omitted).
    ¶18 We needn’t look beyond the second aspect of the Strickland
test—the prejudice prong—to conclude that Mr. Wilder’s trial
counsel didn’t render ineffective assistance by not arguing for
merger under the Finlayson-Lee test. As a matter of law, counsel
cannot be ineffective for failing to raise and rely on bad law. See
Lockhart v. Fretwell, 506 U.S. 364, 366 (1993) (“To hold otherwise
would grant criminal defendants a windfall to which they are not
entitled.”); Grullon v. United States, No. 92 Civ. 3956 (RWS), 1992 WL
276827, at *4 (S.D.N.Y. Sept. 25, 1992) (“The failure of Grullon’s
counsel to raise a claim on bad law certainly would not have resulted
in a different outcome of the trial in Grullon’s favor.”). And for the
reasons we explain in the next section, the Finlayson-Lee test is bad
law.
                                   II
    ¶19 “Stare decisis is a cornerstone of Anglo-American
jurisprudence . . . .” Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89,
¶ 57, ___P.3d___ (citation omitted) (internal quotation marks
omitted). Without it there would be no meaningful “rule of law.”
Instead, judges could toss aside precedent as casually as a losing
lotto ticket. By fencing judicial discretion, stare decisis improves
predictability, leads to fairer outcomes, and promotes public
confidence in the judiciary. Accordingly, we “don’t overrule our
precedents unless they’ve proven to be unpersuasive and
unworkable, create more harm than good, and haven’t created
reliance interests.” Id. This is an intentionally high bar. But we’re
persuaded that, with respect to the repudiation of the Finlayson-Lee
test, it’s been cleared.
   ¶20 The Finlayson-Lee test is unpersuasive: “[I]n determining
how much deference” we should afford to precedent, we must first
consider “the persuasiveness of the authority and reasoning on
which the precedent is based.” Eldridge v. Johndrow, 2015 UT 21, ¶ 24,
345 P.3d 553. Here, we’re convinced that the Finlayson-Lee test is
based on precedents that sit on cracked legal footings.



                                   6
                          Cite as: 2018 UT 17
                         Opinion of the Court

    ¶21 The Finlayson-Lee test is a common-law merger test that has
its “most common application . . . in cases involving sexual assault
and kidnapping.” Met v. State, 2016 UT 51, ¶ 129, 388 P.3d 447 (Lee,
A.C.J., concurring in part and concurring in the judgment). 5 And,
“‘[absent] a clear distinction’ between sexual assault and
kidnapping, we have warned that ‘virtually every rape . . . would
automatically be a kidnap[p]ing as well.’” Id. (quoting State v.
Finlayson, 2000 UT 10, ¶ 19, 994 P.2d 1243) (second and third
alterations in original). We’ve also “suggested that a conviction for
both crimes may raise double jeopardy concerns—by imposing
‘double punishment for essentially the same act.’” Id. (quoting
Finlayson, 2000 UT 10, ¶ 19); see also State v. Lee, 2006 UT 5, ¶ 31, 128
P.3d 1179 (intimating that “a criminal defendant could be punished
twice for conduct that amounts to only one offense, a result contrary
to protections against double jeopardy”).
    ¶22 There are two glaring problems with the reasoning of
Finlayson and Lee. First, neither remotely addressed the fact that “the
legislature has enacted a statute dictating the terms and conditions of
merger of criminal offenses” in this context. Met, 2016 UT 51, ¶ 131
(Lee, A.C.J., concurring in part and concurring in the judgment); see
also UTAH CODE § 76-1-402(1). And we “cannot see how [absent the
existence of a constitutional ground] we can exercise common-law
power in the face of . . . a statute regulating the enterprise of merger
in this field.” Met, 2016 UT 51, ¶¶ 131–32 (Lee, A.C.J., concurring in
part and concurring in the judgment). 6 Our role is to interpret
statutes, not to effectively supplant them.


_____________________________________________________________
   5 We rely on and quote extensively from Associate Chief Justice
Lee’s thoughtful concurring opinion in Met, 2016 UT 51. And we
note that the majority’s reasoning for not endorsing the Associate
Chief Justice’s approach in Met in the first instance had nothing to do
with the substance of his analysis; rather, it was based on the
conclusion that Met was not a procedurally “appropriate case” for us
to conclusively decide the continued viability of the Finlayson-Lee test
because, unlike here, the parties had not asked us to revisit the issue,
leaving it unbriefed. Id. ¶ 104 n.25.
   6Section 76-1-402 contains two merger tests. The first, located in
subsection (1), is the test the State advocates for today; the second,
found in subsection (3), addresses included offenses—
predominantly lesser-included offenses—and isn’t in play in this

                                   7
                           STATE v. WILDER
                         Opinion of the Court

   ¶23 Second, there’s no constitutional basis for exercising
common-law power as the double jeopardy concern is unfounded.
We’re again persuaded by Associate Chief Justice Lee’s work in Met:
       The double jeopardy provisions of both the United
       States and Utah Constitutions protect only against
       double jeopardy for the “same offense.” U.S. CONST.
       amend. V (“nor shall any person be subject for the
       same offence to be twice put in jeopardy of life or
       limb”); UTAH CONST. art. [I], § 12 (“nor shall any
       person be twice put in jeopardy for the same offense”).
       And both provisions have long been understood to
       operate at the offense level—as a protection against
       multiple punishments or serial prosecution of the same
       criminal offense.
Id. ¶ 132 (citing Blockburger v. United States, 284 U.S. 299 (1932), and
State v. Sosa, 598 P.2d 342 (Utah 1979)).
   ¶24 Thus, there’s “no double jeopardy problem even where both
crimes arise out of the exact same set of facts” so long as the crimes
have “distinct elements.” Id. ¶ 133 (citing Blockburger, 284 U.S. at 304;
Sosa, 598 P.2d at 346). And, there’s no question that aggravated
sexual assault and aggravated kidnapping have distinct elements.
Compare UTAH CODE § 76-5-302, with UTAH CODE § 76-5-405.
   ¶25 In short, the legislature enacted a statutory merger test that
speaks directly to the question presented by Finlayson, Lee, and this
matter. Yet, this court jumped over that test in Finlayson and adopted
a common-law merger test, and then doubled down on that
common-law version in Lee. And the only constitutional justification
hinted at in these decisions for doing so—double jeopardy—doesn’t
apply. 7 With these observations in mind, we cannot but severely
question the persuasive value of the Finlayson-Lee test.



_____________________________________________________________
matter. The opinion in Lee addressed the applicability of only the
second statutory merger test. 2006 UT 5, ¶¶ 28–35.
   7Defendant suggests that there are several other constitutional
grounds we could look to that would allow us to frame a common-
law merger test, including the cruel and unusual punishment and
equal protection clauses of the United States Constitution and the
unnecessary rigor and uniform operation of law clauses of the Utah

                                   8
                         Cite as: 2018 UT 17
                        Opinion of the Court

   ¶26 The Finlayson-Lee test is unworkable and creates more harm
than good: Whether the precedent is unpersuasive is certainly a
significant consideration in determining whether it should be
overruled, but it’s not the be-all and end-all of our stare decisis
analysis. Other important considerations include its workability, i.e.,
how well it’s “worked in practice,” and whether it’s generated more
harm than good. Eldridge, 2015 UT 21, ¶¶ 40, 60.
    ¶27 Here, both the State and Mr. Wilder decry the unworkability
of the Finlayson-Lee test. In Mr. Wilder’s words: “Both parties agree
that the Finlayson-Lee test works poorly and, as the State puts it, is
‘unpredictable and confusing.’” Such a uniform view amongst the
parties is a unique and powerful tell: damning evidence of how
poorly the test has worked and of the negligible benefit, if any, it’s
generated.
    ¶28 And we echo the concerns expressed by the parties as to the
workability of the Finlayson-Lee test. As we noted in Met, it’s not
even “immediately apparent how” (if even possible) to square the
outcome in Finlayson with the outcome in Lee in a principled way.
Met, 2016 UT 51, ¶ 104 n.25 (“It is not immediately apparent how to
distinguish the detention in Finlayson—which we found to have no
independent significance—from the detention in Lee—which we
concluded supported a separate kidnapping conviction.”).
    ¶29 Our court of appeals has also expressed concerns with the
test’s workability. In State v. Kataria, Judge Voros, joined by then
Judge Pearce, fairly criticized the third factor as being internally
inconsistent, as well as inconsistent with Finlayson: 8
       A crime whose significance lies in making the host
       crime easier to commit or get away with would seem to
       be dependent on, not independent of, the host crime.
       Because we cannot square this clause with . . . Finlayson


_____________________________________________________________
Constitution. We have considered each of these justifications and
summarily reject them.
   8 The third factor, recall, provides that the “resulting movement
or confinement . . . [m]ust have some significance independent of the
other crime in that it makes the other crime substantially easier of
commission or substantially lessens the risk of detection.” Finlayson,
2000 UT 10, ¶ 23 (quoting State v. Buggs, 547 P.2d 720, 731 (Kan.
1976)).

                                  9
                           STATE v. WILDER
                        Opinion of the Court

      . . . or even the first half of the third . . . factor, we do
      not accord it controlling weight.
2014 UT App 236, ¶ 34 n.10, 336 P.3d 1093 (Voros, J., concurring in
part and writing for the majority in part).
   ¶30 The nature and logic of the criticisms of the workability of
the Finlayson-Lee test also lead us to conclude inexorably that it’s
created more harm than good. Accordingly, this factor, like the
persuasiveness factor, balances heavily against perpetuating the test.
This leaves us with the reliance inquiry.
   ¶31 No legitimate reliance interests are at stake: This factor
concerns itself with “the extent to which people’s reliance on the
precedent would create injustice or hardship if it were overturned.”
Eldridge, 2015 UT 21, ¶ 35. An often closely connected inquiry is
“how firmly a precedent has established itself in Utah law.” Id. ¶ 34.
    ¶32 True, facts that normally might tend to indicate well-
established precedent—the Finlayson-Lee test has been in place for
seventeen years and the subject of much litigation—are present here.
But what legitimate reliance interests, if any, could we possibly
undercut by abrogating the Finlayson-Lee test? It seems quite unlikely
that defendants would have committed their crimes differently
under a different test. It’s also illegitimate to suggest that because
past charging decisions or trials may have been infected by the
Finlayson-Lee test, future charging decisions and trials should be
similarly infected. And absent our ability to discern some
meaningful prejudice that the public may suffer if we repudiate the
test—reliance that we have yet to identify—this factor doesn’t
outweigh the important concerns we’ve addressed above.
   ¶33 With this analysis firmly in mind, we overrule the relevant
portions of Finlayson and Lee and disavow the Finlayson-Lee test.
    ¶34 A note of caution, however, is in order. We’ve not gone
through the process of determining whether this matter would have
come out differently if we didn’t abandon the Finlayson-Lee test. In
other words, we didn’t gauge whether Mr. Wilder would lose even if
we were to apply the test here. This process, which would
potentially allow us to avoid reaching the viability of Finlayson and
Lee unless we had to—represents our more usual approach. See State
v. Rowan, 2017 UT 88, ¶ 24, ___P.3d___ (Himonas, J., concurring)
(“As a general rule, our court declines to revisit established




                                   10
                          Cite as: 2018 UT 17
                         Opinion of the Court

precedent unnecessarily.”). 9 But this case presents the sort of
compelling constellation of factors where we conclude that our more
customary approach to stare decisis should give way to the
development of the law. Rowan, 2017 UT 88, ¶ 36 (Lee, A.C.J.,
concurring) (“[A]ppellate courts retain the discretion to reach
alternative grounds for decision.”). First, the Finlayson-Lee test rests
on truly shaky legal ground. Second, both parties, as well as the
courts, are highly critical of how the test works in practice. Third,
there are no meaningful reliance interests at stake that we’ve been
able to identify. And last, and as we’ve noted above and set forth
below, there already exists a statutory version of the test in Utah
Code section 76-1-402(1).
                                   III
    ¶35 On the second-to-last page of his opening brief, Mr. Wilder
fleetingly argues that his trial counsel was ineffective for failing to
seek merger pursuant to Utah Code section 76-1-402(1). Again, that
section provides that “when the same act of a defendant under a
single criminal episode shall establish offenses which may be
punished in different ways under different provisions of this code,
the act shall be punishable under only one such provision.” UTAH
CODE § 76-1-402(1) (emphasis added.) And per Mr. Wilder, his
“sexual assault[,] with its associated detention to continue the
assault,” was the same act.
    ¶36 Maybe Mr. Wilder is right, maybe he’s not. The problem is
he didn’t raise this issue before the court of appeals or in his petition
for certiorari and, therefore, has waived his ability to raise it before
this court on certiorari review. See, e.g., Hansen v. Eyre, 2005 UT 29,

_____________________________________________________________
   9 The concurrence mistakenly contends that we are “announc[ing]
a ‘general rule’ of avoidance” in this opinion, thereby suggesting we
are breaking new ground. Infra ¶ 40. But there is nothing new in our
opinion about our approach to stare decisis or our characterization of
that approach. Indeed, the “general rule” language that the
concurrence takes issue with is part of a quotation from a previous
decision—Rowan—where a majority of this court summarized our
conventional approach to stare decisis. 2017 UT 88, ¶ 24 (Himonas, J.,
concurring) (joined by a majority of the court); see also Donawitz v.
Danek, 366 N.E.2d 253, 256 (N.Y. 1977) (“[S]tare decisis dictates that
we refrain from unnecessarily reaching out to overrule” precedent.
(emphases added)).

                                   11
                           STATE v. WILDER
                         Opinion of the Court

¶ 7 n.3, 116 P.3d 290 (“[Appellant’s] other arguments are not
properly before this court because they were neither included in his
petition for certiorari nor decided by the court of appeals.”).
    ¶37 We recognize that our disposition of this issue, as well as
today’s opinion writ large, leaves several questions unanswered,
including the meaning of the “same act” language of the statutory
merger test. We take a measure of solace, however, in our
observation that, given the frequency with which merger issues
arise, we’ll have an opportunity to opine again on this subject in the
not too distant future.
                           CONCLUSION
   ¶38 We renounce the common-law merger test, which we first
set forth in State v. Finlayson, 2000 UT 10, 994 P.2d 1243, and
recapped in State v. Lee, 2006 UT 5, 128 P.3d 1179, and hold that the
controlling test is the statutory standard set forth in Utah Code
section 76-1-402(1). As a result, Mr. Wilder’s counsel wasn’t
ineffective for failing to seek merger of his aggravated sexual assault
and aggravated kidnapping convictions pursuant to Finlayson. And
because Mr. Wilder didn’t argue to the court of appeals that his
counsel was ineffective for failing to argue for statutory merger, that
argument is waived. For these reasons, we uphold the judgment of
the court of appeals affirming Mr. Wilder’s aggravated sexual
assault and aggravated kidnapping convictions.


   ASSOCIATE CHIEF JUSTICE LEE, concurring:
    ¶39 I agree with and concur in the judgment of the court and in
most everything in the majority opinion—including the grounds
identified by the majority for overruling the “common law merger”
standard set forth in State v. Finlayson, 2000 UT 10, 994 P.2d 1243, and
State v. Lee, 2006 UT 5, 128 P.3d 1179. As I’ve noted previously, I find
these precedents both problematic and ripe for reconsideration. See
Met v. State, 2016 UT 51, ¶¶ 131–32, 388 P.3d 447 (Lee, A.C.J.,
concurring in part and concurring in the judgment). And I agree
with the grounds identified by the majority for setting them aside.
   ¶40 I write separately, however, to note my disagreement with
the majority’s statement of our court’s “usual approach” to dealing
with problematic precedent. Supra ¶ 34. Unlike the majority I would
not announce a “general rule” of avoidance—of “avoid[ing]
reaching” the question of the viability of a problematic line of cases
“unless we ha[ve] to” do so. Supra ¶ 34 (citing State v. Rowan, 2017

                                  12
                           Cite as: 2018 UT 17
                         Lee, A.C.J., concurring

UT 88, ¶ 24, __ P.3d __ (Himonas, J., concurring)). And I would not
advocate a presumption in favor of an analysis of “whether th[e]
matter would have come out differently if we didn’t abandon” the
problematic precedent. Supra ¶ 34.
   ¶41 In my view the majority’s “usual approach” is not often a
path of restraint or avoidance. It is a reinforcement of the line of
cases that we are applying. And if we have reason to doubt the
viability of that precedent then I think we should generally
reevaluate it.
    ¶42 My thinking on this point is set forth in my separate opinion
in Winward v. State, 2012 UT 85, 293 P.3d 259 (Lee, J., concurring in
the judgment), where a similar question arose. I write here only to
restate and extend what I said in Winward, and to explain why the
majority’s “usual approach” strikes me as problematic as applied to
a case like this one. 10
   ¶43 In Winward I noted that it is not logically possible for us to
apply a law “without describing its content.” 2012 UT 85, ¶ 43. I also
explained that we cannot describe the content of an ill-defined legal
standard (like that at issue here) “without articulating its basis in
law.” Id. And I emphasized, finally, that any decision stating and
applying a standard from our cases is a reinforcement of that
standard. Id. ¶ 54.
    ¶44 These observations are appropriate here. One shortcoming
(of many) of the Finlayson-Lee test is that it does not lend itself to
principled application. See supra ¶¶ 26–30. For that reason we cannot
apply the test here without expanding on it and clarifying it. And in
order to do that we have to consider the legal basis for—and thus the
viability of—the standard we prescribed in these cases.
    ¶45 There is no middle course of avoidance in a case like this
one. We cannot apply the Finlayson-Lee test assuming arguendo that it
is the law. To do so is to reinforce the viability of the test. And that is

_____________________________________________________________
   10 The majority does not in fact follow the path it paints as typical.
It takes a contrary course, identifying a “compelling constellation of
factors” that sustains an exception to the general rule. Supra ¶ 34. For
that reason my disagreement is a narrow one. I agree with the path
the court takes; I just see the court’s exception as more the general
rule, for reasons explained below.

                                    13
                           STATE v. WILDER
                        Lee, A.C.J., concurring

not a matter of restraint or avoidance. See Winward, 2012 UT 85, ¶ 54
(noting that we are not avoiding the question of the viability of a
questionable legal standard when we apply it to the disposition of a
case; asserting that the “application” of a questionable legal principle
“is in no way an act of avoidance”).
    ¶46 In my view these are the reasons for reconsidering the test
set forth in Finlayson and Lee. When we are convinced that a line of
precedent is of dubious viability and difficult to apply without
further clarification, it seems to me that we have a duty to return to
first principles. In such circumstances, our “usual approach,” supra
¶ 34, should not be to reinforce a problematic precedent by assuming
its viability for the sake of argument. We should instead reconsider
the basis for that precedent—as we do here. I concur on the
understanding that the approach we follow here is in line with these
premises.




                                  14
