See People v. Roark, 643 P.2d 756, 768 (Colo. 1982); People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980) (merger did not bar separate convictions for first-degree kidnapping and first-degree sexual assault, although kidnapping conviction reversed on other grounds); Vaughn v. People, 175 Colo. 124, 485 P.2d 878 (1971); Johnson v. People, 174 Colo. 413, 484 P.2d 110 (1971) (adopting the test under Blockburger v. United States, 284 U.S. 299, 403 (1932), to determine that assault with a deadly weapon and kidnapping do not merge). Merger and double jeopardy doctrines seek the same end: protecting against punishing one criminal act twice. Boulies v. People, 770 P.2d 1274, 1282 (Colo. 1989); People v. Hancock, 186 Colo. 30, 34, 525 P.2d 435, 437 (1974). Analysis of whether convictions should be merged must, therefore, be based on double jeopardy principles.

Id. at ¶¶ 24–25. ¶23 Judge Furman specially concurred, expressing his view that the version of the strict elements test set forth in Boulies v. People , 770 P.2d 1274, 1278–81 (Colo. 1989), was more appropriate for cases like the present one, which involve a greater offense statute that provides alternative bases for prosecution. Id. at ¶ 26 (Furman, J., specially concurring).

Id. at ¶¶ 24-25. ¶23 Judge Furman specially concurred, expressing his view that the version of the strict elements test set forth in Boulies v. People, 770 P.2d 1274, 1278-81 (Colo. 1989), was more appropriate for cases like the present one, which involve a greater offense statute that provides alternative bases for prosecution. Id. at ¶ 26 (Furman, J., specially concurring).

We have, however, traditionally resolved claims similar to the one Harlan presents here on exclusively statutory grounds. See, e.g., Boulies v. People, 770 P.2d 1274, 1281 (Colo. 1989); Bartowsheski, 661 P.2d at 245. To determine whether section 18-1-408(5) is satisfied, we consistently apply the "strict elements" test.

However, in the absence of legislative authorization, a defendant may not be convicted of more than one offense if one offense is a lesser included offense of the other. A court is prohibited from imposing multiple punishments for a greater and lesser included offense by the Double Jeopardy Clauses of the federal and state constitutions, see Blockburger v. United States, 284 U.S. 299, 304 (1932); Boulies v. People, 770 P.2d 1274, 1278 (Colo. 1989), by statute, § 18-1-408(1)(a), 8B C.R.S. (1986), and by the judicially-created rule of merger. E.g., People v. Bartowsheski, 661 P.2d 235, 245 (Colo.

Henderson, 810 P.2d at 1060. Although we at times referred to “judicial merger,” or the “judicial rule of merger,” id. at 1061 (quoting Boulies v. People, 770 P.2d 1274, 1278 (Colo.1989)) , and relied on reasoning from pre-statute case law, we left no doubt that the requirement of merger, whatever its source, had consistently been analyzed in this jurisdiction under double jeopardy principles and that second degree kidnapping involving sexual assault was not an offense separate and apart from second degree kidnapping, according to either statute or case law, id. at 1064, 1060 n. 6 (expressly construing § 18–1–408). While Boulies's postconviction motion was not finally resolved by this court until 1989, the offenses of which he was convicted occurred in 1971, before the July 1, 1972 effective date of the Colorado Criminal Code.

Henderson, 810 P.2d at 1060. Although we at times referred to "judicial merger," or the "judicial rule of merger," id. at 1061 (quoting Boulies v. People, 770 P.2d 1274, 1278 (Colo. 1989)), and relied on reasoning from pre-statute case law, we left no doubt that the requirement of merger, whatever its source, had consistently been analyzed in this jurisdiction under double jeopardy principles and that second degree kidnapping involving sexual assault was not an offense separate and apart from second degree kidnapping, according to either statute or case law, id. at 1064, 1060 n.6 (expressly construing § 18-1-408).

While the double jeopardy clauses of both the federal and state constitutions protect an accused from (among other things) multiple punishments for the same offense, this aspect of the constitutional limitation actually embodies a concern for the separation of governmental powers and manifests more as a rule of construction than a limitation on the authority of the legislature. See Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Boulies v. People, 770 P.2d 1274, 1278-79 (Colo. 1989). As long as the general assembly makes clear its intent to punish the same offense with more than one conviction and sentence, it is not constitutionally prohibited from doing so.

Rather, upon a clear showing of legislative intent, the General Assembly is free to authorize multiple punishments based upon the same criminal conduct without offending the Double Jeopardy Clause. Patton, 35 P.3d at 129;Leske, 957 P.2d at 1035; Boulies v. People, 770 P.2d 1274, 1278-1279 (Colo. 1989). However, in the absence of express legislative authorization, the court must ascertain whether the offenses are sufficiently distinguishable to permit the imposition of multiple punishments.

This protection specifically includes guarantees that the accused will not be subject to multiple punishments imposed in the same criminal prosecution for statutory offenses proscribing the same conduct. Boulies v. People, 770 P.2d 1274, 1278 (Colo. 1989). For the purpose of determining whether double jeopardy principles bar multiple punishments for the same criminal conduct, we read the state and federal Double Jeopardy Clauses to be coextensive.