dissenting. As the majority opinion correctly states, in order for the appellant to be guilty of the crime of attempted rape he had to engage in conduct that constituted a substantial step in a course of conduct intended to result in sexual intercourse or deviate sexual activity with another person by forcible compulsion. In my view, except for entering the mobile home without permission, the appellant did not engage in any conduct that constituted a substantial step in a course of conduct to commit rape. Certainly his voiced obscenity while standing by the bathroom window outside the home did not constitute such a substantial step, and after he got inside the home, he did not try to open the bathroom door or take any other substantial step to commit rape. Thus, the only possible conduct shown by the evidence as sufficient to constitute a substantial step to commit rape is the unlawful entry into the mobile home.
The appellant was also convicted of burglary. To be guilty of burglary one must enter or remain unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977).
My first problem is whether the same act of unlawful entry into the home can support a conviction for both attempted rape and burglary. Ark. Stat. Ann. § 41-105 (Repl. 1977) provides:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2):
(2) . . . An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged;
In Sanders v. State, 279 Ark. 32, 648 S.W.2d 451 (1983), it was held that being sentenced for both aggravated robbery and first degree battery was a violation of the constitutional prohibition against double jeopardy and a violation of Ark. Stat. Ann. § 41-105(l)(a) and (2)(a) (Repl. 1977). The court said this was true for two reasons. “First, both convictions grew out of a single act; and secondly, under the felony information in this case the proof required to prove one of the offenses necessarily included proof of the other.” The court explained as follows:
In Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983), wherein the appellant was also charged with aggravated robbery and first degree battery, we held that Ark. Stat. Ann. § 41-105 (Repl. 1977) prohibits multiple sentences when the same act results in more than one offense. We also noted that when a criminal offense cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses under § 41-105. Akins, supra, citing Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). In Akins, a case similar to petitioner’s in which the victim of an armed robbery attempted to use his own pistol to prevent the robbery and was shot by the robber, we set aside the conviction and sentence for battery. We must afford petitioner the same relief. Count I of the felony information on which he was tried charged that he committed aggravated robbery by force. Count II charged that “in the course of and in furtherance of the felony [i.e. the aggravated robbery by force], he . . . caused serious physical injury. . . .” As in Akins, the proof required to prove one offense necessarily included proof of the other. Therefore, in accordance with A.R.Cr.P. Rule 37.1(a) the conviction and sentence for the lesser offense, battery in the first degree, must be set aside since it was imposed in violation of Ark. Stat. Ann. §41-105 (Repl. 1977). The conviction and sentence for aggravated robbery are not disturbed. See also Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982).
My research has not found a case in Arkansas involving burglary and attempted rape where the proof of one crime included proof of the other as does the case at bar. However, Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983), held that Ark. Stat. Ann. § 41-105 prevented the conviction for two counts of aggravated robbery where property was taken from a man that it belonged to, and at the same time property that belonged to his employer was taken from the man. The court said the same proof was required for each of the counts, and set aside one of the convictions. It, therefore, seems clear that the appellant in the present case cannot be convicted of burglary with intent to commit theft and, by using the same act of unlawful entry as a substantial step in the attempt to commit rápe, be convicted of attempted rape. If he had taken a substantial step to commit rape after he entered the home, we would have a different situation. In this case, however, it just so happens that we have to use proof of the same act to establish both the burglary and the attempted rape. I do not think the conviction for both crimes can stand under these circumstances.
My limited research in other jurisdictions has not found a case exactly in point either, but I think State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973), supports the position I take. In that case the court affirmed a conviction for burglary of the Abderholden home and the attempted rape of Mrs. Abderholden. But there was evidence that the defendant broke into the home with the intent to commit a rape and grabbed the lady after he got into the house and attempted to rape her. His attempt failed because she broke away from him. In that case the court said:
The overt act toward perpetration of the rape which was necessary to constitute the crime of attempted rape in this case consisted of seizing Mrs. Abderholden and attempting to restrain her within the residence. The necessary elements of proof of the crime of aggravated burglary in this case are not included in those necessary to prove the crime of attempted rape or vice versa. Therefore the charges are not duplicitous.
I realize that the appellant in this case did not raise this point in the same way I have discussed it. However, in his appeal to this court he admits the evidence was sufficient to support the burglary conviction, but contends the attempted rape conviction should be reversed. If my view is correct, Ark. Stat. Ann. § 41 -105 prohibits a sentence for both burglary and attempted rape in this case. In Walton v. State, 279 Ark. 193, 203, 650 S.W.2d 231 (1983), the court held two sentences were not authorized under this section even though the issue was raised for the first time on appeal. See also Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983), and Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982), where petitions for relief under A.R.Cr.P., Rule 37, were involved. But under those cases the attempted rape conviction in this case should not be reversed. The appellant could properly be prosecuted on both charges but could be sentenced on only one. Therefore, the attempted rape conviction should be affirmed and the burglary conviction should be reversed and dismissed. See Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982); Robinson v. State, supra.
Cooper, J., joins in this dissent.