*898Green, J.* (dissenting) — I agree with the majority that the State presented no evidence of a rape or attempted rape and therefore the court erred by instructing the jury on that issue. However, in my view, this error does not automatically require a reversal or a new trial. The jury was instructed that it must first unanimously agree as to either or both alternatives — kidnapping or rape — and then unanimously agree Mr. Maupin committed the murder. (Instruction 11.) Here, the evidence of kidnapping is uncontroverted and overwhelming; there is no evidence of rape. In this situation, the error was harmless. Thus, I respectfully disagree with my brethren that a reversal is required by State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980) {Green II), and thus record my dissent.
In State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979) {Green I), the defendant was convicted of aggravated first degree murder of an 8Mi-year-old girl in the course of committing a rape or kidnapping. On appeal, the defendant argued there was insufficient evidence to support a jury conviction based on the alternative predicate crime of kidnapping. This contention was rejected and the murder conviction was affirmed. The court later granted Mr. Green's motion for reconsideration in light of Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) and reversed the conviction. Green II. The court held there was insufficient evidence to support a finding of kidnapping and a new trial was required. The jury had not been instructed to return separate unanimous verdicts as to the alternate predicate crimes — kidnapping and rape. It only reached a general guilty verdict of first degree murder. In this situation, the court in Green II observed that six jurors could have found rape and six could have found kidnapping. The two Green decisions indicate the question of whether a kidnapping occurred was a close one.
*899That is not the situation here. Unlike Green II, the jury was instructed it must unanimously find Mr. Maupin committed a kidnapping or unanimously find he committed a rape, or unanimously find both, and then unanimously find he committed the murder. In light of these instructions, which we must presume the jury followed, State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982), cert, denied, 459 U.S. 1211 (1983), it would be impossible to reach the speculated jury result of six votes for kidnapping and six votes for rape, as the court noted in Green II, at 233, or any other division of votes. Thus, it is self-evident that in the face of overwhelming, uncontroverted evidence of kidnapping and no evidence of rape that a reasonable and rational jury following the court's instructions could only unanimously conclude the murder occurred in the course of a kidnapping. Consequently, as I see it, the court's error in instructing on the issue of rape was harmless beyond a reasonable doubt.
Further, the United States Supreme Court recently reached a similar conclusion in a factually analogous situation in Griffin v. United States, _ U.S. _, 116 L. Ed.
2d 371, 112 S. Ct. 466 (1991). There, the defendant was charged in United States District Court with conspiring to defraud the United States by (1) impairing the efforts of the Internal Revenue Service (IRS) to ascertain income taxes, and (2) impairing the efforts of the Drug Enforcement Administration (DEA) to ascertain forfeitable assets. When the evidence at trial failed to connect the defendant to the DEA, she moved to sever the charge. This was denied and the jury returned a general verdict of guilty. The Supreme Court held that even though there was no evidence of impairing the efforts of the DEA, there was sufficient evidence of impairing the efforts of the IRS. The court affirmed the conviction observing that if the evidence is insufficient to support an alternative legal theory, it is preferable to give an instruction removing the theory from jury consideration. "The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction." Griffin, 112 S. Ct. at 474.
*900Under the unique facts presented in the instant case and for the reasons stated, I would affirm the conviction.
Review denied at 119 Wn.2d 1003 (1992).
Judge Dale M. Green was a member of the Court of Appeals at the time oral argument was heard on this matter. He is now serving as a judge pro tempore of the court pursuant to ROW 2.06.150.