¶18
Sanders, J.(dissenting) — The majority holds Aaron Borrero’s convictions for first degree kidnapping and attempted first degree murder do not violate his constitutional protections against double jeopardy. I disagree. The State used the kidnapping to prove a necessary element of the attempted murder charge. Both charges relied on the same evidence and were the same in fact and in law, and Borrero cannot be punished twice for the same offense. Therefore, both convictions violate double jeopardy.
¶19 The United States Constitution guarantees no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Washington Constitution guarantees “[n]o person shall be . . . twice put in jeopardy for the same offense.” Wash. Const. art. I, § 9. To determine whether two convictions violate double jeopardy, we apply the Blockburger test and ask whether “[e]ach of the offenses . . . requires proof of a different element.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) (“[T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”). An attempt to commit a crime creates a particularly difficult issue because for the State to prove attempted murder it must show Borrero committed a “substantial step” toward the commission of the crime. RCW 9A.28.020(1) (“A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he *542or she does any act which is a substantial step toward the commission of that crime.”). A substantial step must be “ ‘strongly corroborative of the actor’s criminal purpose.’ ” State v. Workman, 90 Wn.2d 443, 451-52, 584 P.2d 382 (1978) (noting also mere preparation is not enough to show a “substantial step” and quoting Model Penal Code § 5.01(2) (Proposed Official Draft 1962)). And most important for our purpose, we define what a substantial step is only in relation to the particular facts and circumstances of each case. Majority at 537 (citing In re Pers. Restraint of Orange, 152 Wn.2d 795, 818, 100 P.3d 291 (2004)). Here, Borrero took a substantial step toward committing murder by kidnapping Leslie Lemieux.
¶20 But the State cannot charge and punish a defendant for a crime when that crime is also used to prove the substantial step of an attempt charge. In In re Orange, 152 Wn.2d at 814, the defendant was charged with attempted murder and assault. Applying the Blockburger test, we held the assault was the substantial step, and therefore Orange could not be punished for both crimes because they “were the same in fact and in law.” Id. at 820. Similarly, the Court of Appeals held in State v. Valentine, 108 Wn. App. 24, 26, 29 P.3d 42 (2001), “[i]t is a double jeopardy violation to punish a stabbing separately as an assault when it is also the substantial step used to prove attempted murder.” See In re Orange, 152 Wn.2d at 817 (citing Valentine’s result with approval). This principle is well established not only by our courts, but by the United States Supreme Court as well. See Harris v. Oklahoma, 433 U.S. 682, 683, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977) (per curiam) (“ ‘[A] person [who] has been tried and convicted for a crime which has various incidents included in it,... cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.’ ” (alterations in original) (quoting In re Nielsen, 131 U.S. 176, 188, 9 S. Ct. 672, 33 L. Ed. 118 (1889))).
¶21 So too it also violates double jeopardy to punish a kidnapping separately when it is the “substantial step” *543used to prove attempted murder. The majority claims, however, the kidnapping did not necessarily constitute the substantial step. Majority at 539. The majority dissects Borrero’s conduct into discrete acts, claiming the jury might have relied on some particular aspect of Borrero’s conduct (but not others) to support the attempted murder charge, and thus the jury did not necessarily rely on the entire kidnapping to find Borrero took a “substantial step” toward murder. Id. But no other conduct could have possibly filled the “substantial step” placeholder. And no other conduct was strongly corroborative of Borrero’s overall purpose. Borrero waited for the victim, Leslie Lemieux, then with his accomplices stuffed Lemieux into a bag, bound and gagged him, and attempted to kill him by throwing the duffel bag into the Yakima River. The kidnapping was clearly the “substantial step” toward attempted murder.
¶22 To suggest the jury engaged in a pick-and-choose analysis, without considering Borrero’s conduct as a whole, is somewhat incredulous. One cannot parse Borrero’s conduct into separate moments, considering only certain aspects of what happened while ignoring others. Rather, the conduct must be viewed as a whole: Borrero kidnapped Lemieux to kill him. Indeed, the attempted murder hinged on the kidnapping. But for the kidnapping, Borrero could not have thrown Lemieux into the river or attempted to kill him. The two crimes were based on the same conduct, and the same evidence was required to support the conviction for first degree attempted murder as well as kidnapping. In other words, the kidnapping charge does not require proof of a fact not required by the attempted murder charge— specifically the “substantial step” element.
¶23 Therefore, it violates double jeopardy to punish Borrero separately for kidnapping when it is also the substantial step used to prove attempted murder.
¶24 I dissent.