(dissenting)—I agree with the majority's view that the trial court erred in not instructing the jury that all jurors must unanimously agree that the same underlying criminal act has been proved beyond a reasonable doubt. However, I believe that the instructional error was harmless and I, therefore, respectfully dissent from the majority's holding.
In State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), our Supreme Court stated very clearly that an instructional error, such as we have here, is harmless "if a rational trier of fact could have found each incident proved beyond a reasonable doubt." Applying that test to this case, it seems obvious that the instructional error is harmless because a rational trier of fact could have been convinced beyond a reasonable doubt that Kitchen had sexual intercourse with the victim on all of the occasions she testified to.
The majority sidesteps the plain language of Petrich by suggesting that the portion of the opinion in which the harmless error rule is enunciated is dicta. It clearly is not dicta. The court announced the rule and then applied it to the facts of that case. The fact that the court concluded in Petrich that the error was not harmless does not render it any less a part of the holding.
*241The majority next indicates that even if the standard for determining harmless error, as set forth in Petrich, is not dicta, the "standard is inappropriate." It then points out that federal constitutional rights are implicated here and that the test for harmless error, as stated in Petrich, contradicts the harmless error test proclaimed by the United States Supreme Court. Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R. 3d 1065 (1967). While I must concede that there is some merit to the majority view, I also must recognize that our State Supreme Court established a test for determining harmless error that is far different than that set forth by the majority in this case. Our State Supreme Court had to be aware, in Petrich, that Sixth Amendment rights to trial by jury were implicated, just as it must have been aware of the Chapman decision and its own decision in State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980).
This court is not the Supreme Court of Washington. We may feel that the court's reasoning in Petrich was "inappropriate" and not consistent with its prior decisions or prior decisions of the United States Supreme Court. However, at the same time there can be little argument over the fact that the Petrich holding is almost "on all fours" with this case and the harmless error test is stated clearly for us to read. In my judgment, this court is ill advised to move around that clear holding. This decision will almost certainly create confusion and will add to the uncertainty about the state of the law on this subject. If the decision in Petrich is indeed flawed, as the majority suggests, it is for the Supreme Court of this state to change it, not this court.
I would apply the harmless error test as stated in Pet-rich, literally, and would conclude that the instructional error was harmless. In this case, unlike Petrich, the victim did not show uncertainty or confusion as to the prior sexual contact Kitchen had with her. The jury could have been convinced beyond a doubt that he committed all of the acts *242and his conviction should, therefore, be affirmed.
Review granted by Supreme Court March 4,1987.