(dissenting) — I concur in Justice Madsen’s opinion that it is far from plain that RCW 9.94A.510 requires multiple sentence enhancements to apply to a single underlying offense. Concurrence/dissent at 423. But I write separately to examine the trial court’s denial of a meaningful opportunity for the defendants to cross-examine the State’s chief witnesses when it admitted the prior testimony of Eduardo Sanchez, Reina Serrano, and Jose Sanchez.
The rules of evidence and the confrontation clause prohibit the admission of witness testimony given at a prior hearing unless “the party against whom the testimony is . . . offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” ER 804(b)(1); California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (“[T]he Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant [was] testifying as a witness and subject to full and effective cross-examination.”).
At the original trial of Armando DeSantiago, Enrique DeSantiago, Victor Diaz, Pedro Carranza, and Elpidio Reyes the defendants were charged with first degree kidnapping.6 The trial resulted in a hung jury.
*428At the second trial the prosecution also charged Enrique DeSantiago, Diaz, Carranza, and Reyes with first degree burglary. However, the State’s principal witnesses, the alleged kidnap victim Eduardo Sanchez, his wife Reina Serrano, and his father Jose Sanchez all fled the state prior to the second trial. So at that trial the prior testimony of these witnesses was read to the jury in their absence. That jury found Diaz, Carranza, and Reyes guilty of first degree kidnapping and burglary. Enrique DeSantiago was convicted only of first degree kidnapping, and Armando DeSantiago was convicted of first degree kidnapping and illegal possession of a firearm.
“ ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination..’ ” Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (quoting 5 John Henry Wigmore, Evidence in Trials at Common Law § 1395, at 123 (3d ed. 1940)). A witness’s former testimony is admissible if the party against whom the testimony is offered previously had an opportunity and similar motive to develop testimony by direct, cross, or redirect examination. ER 804(b)(1). However, a defendant does not have a similar motive to cross-examine witnesses if the testimony was taken before the defendant’s charging document was amended to charge a different or additional offense. United States v. Huei Mei Wang, 964 F.2d 811, 814 (8th Cir. 1992).
In Wang the government initially filed a criminal complaint charging the defendant with conspiracy to harbor illegal aliens; however, it later indicted the defendant for multiple counts of harboring illegal aliens. Id. at 812. The defendant and her attorney were present at the depositions and had an opportunity to cross-examine the witnesses, but the depositions took place before the defendant had been charged with harboring aliens. Id. After a jury returned a guilty verdict for three of the four counts of harboring *429illegal aliens,7 the district court granted the defendant’s motion for a new trial finding that the defendant’s Sixth Amendment right to cross-examination had been violated by the admission of the videotaped testimony of two unavailable witnesses. Id. at 814. The district court reasoned that because the crimes of conspiracy and illegal harboring involved different elements,
the introduction of the depositions, which were taken when Wang was unaware of the ultimate charge for which she would be tried, squarely violated Wang’s Sixth Amendment rights “to be informed of the nature and cause of the accusation [and] to be confronted with the witness[es] against [her].”
Id. (alterations in original) (quoting U.S. Const, amend. VI).
Here the defendants were not charged with burglary until the second trial. To prove kidnapping, the State must prove abduction of a victim through the use or threatened use of deadly force. RCW 9A.40.020, .010(2). To prove burglary, the State must show an illegal entry with the intent to commit a crime, elements not included in kidnapping. RCW 9A.52.020.
During Ms. Serrano’s testimony the defendants did not cross-examine her on allegations that the door to her trailer had been damaged, the phone lines were cut, pictures had fallen from the wall, and there were open soda cans in the kitchen. Report of Proceedings at 439-43. Those allegations went to establishing illegal entry and intent to commit a crime, elements of burglary. Because the defendants did not have a motive to cross-examine Ms. Serrano about allegations supporting these elements, it was error to allow her testimony to be read to the jurors.
The majority cites United States v. Licavoli, 725 F.2d 1040, 1048-49 (6th Cir. 1984) to support the proposition that a new indictment generally does not make former *430testimony inadmissible. Majority at 414. But Licavoli is inapposite. There all six defendants were previously tried for murder in state court and subsequently convicted in federal court on racketeering charges. 725 F.2d at 1044. One of the witnesses at the state trial refused to testify at the federal trial, claiming the government had breached its plea agreement with him. Id. at 1047. The court found he was unavailable for the purposes of Fed. R. Evid. 804(a) and granted the government’s motion to read his testimony. Id. at 1048. On appeal the defendants claimed it was error to allow the admission of this testimony because they did not have an opportunity and similar motive to cross-examine the witness at the state trial. Id. But the court held the defendants’ motives for cross-examination at the state trials and the Racketeer Influenced and Corrupt Organizations (RICO) trial “were nearly identical, since in the state cases the defendants were charged with murder and conspiracy to commit murder, and in the RICO prosecution these two acts constituted the predicate acts for the RICO conviction.” Id.
But here the elements of burglary and kidnapping are substantially different and the defendants had little motive to cross-examine Ms. Serrano when she testified about damage to her home. Thus, the admission of her testimony violated ER 804(b)(1) and the confrontation clause.
Confrontation clause errors are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Id. Ms. Serrano testified about the alleged abduction of Eduardo Sanchez and damage to her home. Majority at 408. Other than her testimony, there was no evidence supporting the charges of burglary. Additionally her testimony supported the defendants’ kidnapping convictions. Under the harmless error analysis, where tainted evidence tends to support one or more charges and *431convictions result, reversal is required even if some of the convictions are also supported by untainted evidence. Wang, 964 F.2d at 814. Because the erroneously admitted evidence tended to support both charges of burglary and kidnapping, I cannot conclude beyond a reasonable doubt these convictions were unaffected by the tainted evidence. Reversal of defendants’ burglary and kidnapping convictions is required.
I therefore dissent.
Alexander, C.J., concurs with Sanders, J.
Armando and Enrique DeSantiago were also charged with leading organized crime. Armando DeSantiago Clerk’s Papers (CP) No. 18759-4-III, at 38; Enrique *428DeSantiago CP at 22. These charges were subsequently dismissed. Armando DeSantiago CP No. 18759-4-111, at 109; Enrique DeSantiago CP at 80.
Each of the four counts charged by the government correlated to a particular illegal alien. Wang, 964 F.2d at 812. Two illegal aliens testified live during the trial, while the testimony of the remaining two individuals was presented via the videotaped depositions. Id.