¶29 (concurring) — The majority concludes that “[State v.] Green[, 94 Wn.2d 216, 616 P.2d 628 (1980) (Green II)] did not alter the analysis of what evidence is sufficient to prove kidnapping.” Majority at 867. It does so by characterizing Green II as an application of the merger doctrine instead of a sufficiency of the evidence case. Id. at 870-72.
Gordon McCloud, J.¶30 In fact, neither the majority nor the concurring opinions in Green II discussed the merger doctrine at all. Green II, 94 Wn.2d at 218-35, 235-40 (Utter, C.J., concurring), 240-41 (Dolliver, J., concurring in result). Instead, *874they agreed that when the evidence shows that a kidnapping was “actually an integral part of” another crime, that evidence is insufficient to establish kidnapping beyond a reasonable doubt. Id. at 226-27. The court reached this conclusion under the heading “Failure of Evidence To Prove Essential Elements of First Degree Kidnapping Under Jackson v. Virginia.” Id. at 224 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
¶31 Indeed, Green II was a reconsideration,4 which this court granted so that it could apply the United States Supreme Court’s then-recent decision in Jackson.5 Jackson held that a conviction violates Fourteenth Amendment due process clause protections if it is based on evidence that is insufficient to lead a rational trier of fact to find guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; U.S. Const, amend. XTV, § 1.
f 32 Applying the holding in Jackson, the Green II court held that where a defendant was convicted of kidnapping, that conviction would be overturned if the kidnapping was “merely incidental to the commission of another crime.” Green II, 94 Wn.2d at 227 (citing People v. Cassidy, 40 N.Y.2d 763, 767, 358 N.E.2d 870, 390 N.Y.S.2d 45 (1976)). The court explained that this due process standard required a fact-specific inquiry into the “nature” of the abduction at issue:
Although we characterize the movement and restraint in this case as incidental, we do not mean to suggest that under every conceivable set of facts a movement of 20 to 50 feet or being found in a stairwell would be incidental. That which constitutes incidental movement is not solely a matter of measuring feet and inches. It is a determination to be made *875under the facts of each case, in light of the totality of surrounding circumstances. This characterization is as much a consideration of the relation between the restraint and the homicide as it is a measure of the precise distance moved or place held. It involves an evaluation of the nature of the restraint in which distance is but one factor to be considered.
Id. at 227. In short, Green II held that for purposes of Fourteenth Amendment due process protections, an “incidental” kidnapping was no kidnapping at all. Id. Its use of the word “incidental” may have suggested merger, but the Green II court was really inquiring about whether defendant’s movement of the victim was really de minimis.
¶33 The majority rejects that holding, but it purports to distinguish Green II as a merger case that did not involve a robbery charge.6 That distinction is untenable. Instead of reinterpreting Green II as a merger case, the majority should acknowledge that it is really overruling Green II.
¶34 But we do not overrule our own prior precedent unless it is “incorrect and harmful.” State v. Berlin, 133 Wn.2d 541, 547, 947 P.2d 700 (1997). If Green II were a merger case, then it would probably be incorrect because it would have conflated the double jeopardy principles underlying the merger doctrine with the due process protections at issue in Green II. And some of the citations in Green II do suggest that that decision relied on merger principles. 94 Wn.2d at 227 (citing State v. Johnson, 92 Wn.2d 671, 676, 600 P.2d 1249 (1979); Cassidy, 40 N.Y.2d at 767). But other citations suggest that Green II relied on sufficiency-of-evidence principles. E.g., id. at 227-28 (applying Jackson).
¶35 The reliance on Jackson is not incorrect. Indeed, other courts have held that minimal or de minimis movements of a victim are insufficient to prove a true kidnap*876ping (or kidnapping sentence enhancement). E.g., United States v. Marx, 485 F.2d 1179, 1186 (10th Cir. 1973) (insufficient evidence to support forced “ ‘accompaniment]’ ” aggravating factor, and drawing from common law meaning of “kidnap”); United States v. Strobehn, 421 F.3d 1017, 1020 n.1 (9th Cir. 2005) (sufficient evidence despite minimal movement), Strobehn, 421 F.3d at 1022-27 (Fletcher, J., dissenting) (insufficient evidence). And if there is any question about whether the statute was intended to reach de minimis movements, the answer must be based on the rule of lenity.
f 36 It is certainly true that, as the majority states, Green II has generated conflict in the Court of Appeals.7 Majority at 870-72. It is also true that Green II’s “merely incidental” analysis, 94 Wn.2d at 227, has led to arguably inconsistent results based on individual judges’ feelings about whether the State has overcharged.8
¶37 But the solution is not to recharacterize Green II as a merger case rather than a due process case and then overrule it without saying so. The solution is to acknowledge that Green II was based on Jackson, to recognize that Green II’s “incidental” language was essentially a de minimis inquiry, and to apply that de minimis inquiry to this case.
¶38 The 30-minute forced detention of the victim in this case, by physical restraint and the threat of death with a gun to the victim’s head, is certainly not de minimis— regardless of whether it is “incidental” to another crime. It is lengthy, major, culpable, and terrifying. I therefore concur *877in the majority’s decision to affirm. But I respectfully disagree with what I see as its decision to silently overturn controlling precedent on the insufficiency of evidence issue.
Fairhurst and Gonzalez, JJ., concur with Gordon McCloud, J.
State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979) (Green I).
Green II, 94 Wn.2d at 220 (“There is, however, an even more salient reason for departing from our view in Green I. Shortly after the publication of Green I, the United States Supreme Court held in Jaekson[, 443 U.S. 307], that on review the proper test is whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt”).
Majority at 872 (“This court has never held that evidence of kidnapping is insufficient where the kidnapping conduct is incidental to another crime as a matter of due process. Instead, kidnapping conduct incidental to another crime has been addressed as an issue of merger and we have held that kidnapping and robbery never merge.”).
Compare State v. Rattana Keo Phuong, 174 Wn. App. 494, 519-20, 299 P.3d 37 (2013) (explaining that Green II is really a merger case), with State v. Grant, 172 Wn. App. 496, 503, 301 P.3d 459 (2012) (explaining that Green II is not a merger case).
Compare State v. Lindsay, 171 Wn. App. 808, 840-44, 288 P.3d 641 (2012) (kidnapping merely incidental under Green II, where defendants first took unconscious victim’s property, then tied the victim up and proceeded to “demean, humiliate, and assault” him), with State v. Whitney, 44 Wn. App. 17, 21, 720 P.2d 853 (1986) (under Green II, kidnapping was not merely incidental to rape where defendant forced victim into his car at knifepoint).