The opinion
Baker, J.
(concurring)—I concur in the result, but upon different grounds.
First, I adopt the analysis of the burglary antimerger statute, RCW 9A.52.050, as set forth in the majority opinion of State v. Dunbar, 59 Wn. App. 447 , 798 P.2d 306 (1990).
Second, analyzing this case according to the dictates of State v. Dunaway, 109 Wn.2d 207 , 743 P.2d 1237 , 749 P.2d 160 (1987) and State v. Collicott, 112 Wn.2d 399 , 771 P.2d 1137 (1989), I conclude that the convictions in this case for *468 kidnapping in the first degree and burglary in the first degree did not encompass the same criminal conduct.
A careful analysis of Dunaway and Collicott appears in the majority opinion decided by this same panel in State v. Dunbar, 59 Wn. App. 447 , 798 P.2d 306 (1990). That analysis will not be repeated here. Collicott depended to a large extent upon the charging scheme utilized by the State, and the fact that the defendant entered into a plea agreement on the basis of that charging scheme. Emphasis was placed upon the "element sharing" aspect of the charging scheme, by which the degrees of the crimes charged were elevated by specific reliance upon shared elements. As noted by Judge Forrest in his opinion in this case, however, the State did not rely upon shared elements to elevate the degrees of the crimes charged against Lessley. Lessley was charged under RCW 9A.52.020 with first degree burglary in the following language:
That the defendant . . . did enter and remain unlawfully in the dwelling of George and Janette Thomas . . . within intent to commit a crime against a person or property therein, and in entering, and while in such dwelling and in immediate flight therefrom, the defendant was armed with a deadly weapon[.]
Lessley was also charged under RCW 9A.40.020(l)(b) with first degree kidnapping in the following language:
That the defendant . . . did intentionally abduct Dorothy Olson, a human being, with intent to facilitate commission of the felony of assault and flight thereafter[.]
An analysis of the charging documents leads to the conclusion that neither offense depended upon the other to obtain a higher degree. Lessley committed multiple crimes upon his breaking into the Thomas residence. It was not necessary for the prosecutor to rely upon the kidnapping of Dorothy Olson as a basis upon which to charge Lessley with the crime of first degree burglary.
Further, the objective intent of the burglary committed by Lessley was completed when he broke into the Thomas residence while armed with a deadly weapon. Crimes which he objectively intended to commit therein included the property damage caused when he broke in, the *469 assault against Mr. Thomas, and the assaults against Mrs. Thomas and his former girl friend, Dorothy Olson. His subjective intent is irrelevant, and we would only be speculating to assume that that subjective intent was to kidnap and rape his former girl friend. He may initially only have intended to confront her. 19
Further, the crimes of which Lessley was convicted involved multiple victims, and State v. Dunaway, supra, established crimes involving multiple victims as a clear exception to the "same criminal conduct" rule of RCW 9.94A.400(l)(a). Dunaway, at 215.
I would therefore conclude that the trial court's determination that the convictions in this case did not constitute the same criminal conduct for purposes of sentencing under the sentencing reform act was a correct decision, following the analysis previously employed by our Supreme Court in both State v. Dunaway, supra, and State v. Collicott, supra.
Grosse, A.C.J., concurs with Baker, J.
Reconsideration denied November 7,1990.
Review granted at 116 Wn.2d 1018 (1991).
Even if we were to consider the former girl friend as the "central victim" in the two charged crimes, see State u. Collicott, at 409, we would not conclude that the charge of first degree burglary depended upon the fact that Lessley broke into the residence with the intent to kidnap and assault his former girl friend.