dissenting in part.
This is a rape case. Everything the defendant did before, during, and after the rape “involved” the rape. The aggravated assault and kidnapping offenses were simply ancillary to rape. They were the means by which the rape could be committed. I thus disagree with the court that the sexual assaults here did not “involve” serious physical injury.1
There is no dispute in this case that there was intentional infliction of serious physical injury. The only question is whether or not the sexual assaults here “involved” that intentional infliction of serious physical injury. The court defines “involving” to mean “closely related to the offense, included as a necessary accompaniment to the offense, though not necessarily a statutory element of the offense, or have an effect on the offense.” Ante, at 581, 898 P.2d at 959.
Applying this definition to the sexual assault offenses leads to the inescapable conclusion that these sexual assaults meet the “involving” test. The defendant battered the victim’s face to subdue and rape her. Thus this serious physical injury was intentionally inflicted as a direct means of preparing for the sexual assault. While the victim was dressing, the defendant kicked her in the face “and told her not to look at him” as a direct means of covering up the offense. Ante, at 578, 898 P.2d at 956. Unless he punched and kicked her at the moment of penetration, how more closely related could these injuries be? But that is not “closely related.” That is “part of,” something the statute does not require, and something the court says it does not require. The court tries to limit the meaning of “closely related” to “more closely related.” Ante, at 581, 898 P.2d at 959. But the statute does not say “more involving,” it just says “involving.” Indeed, if the test is “more closely related,” how does the statute reach the kidnapping offense here? The serious physical injury was “more closely related” to the aggravated assault, not the kidnapping. It is hard to imagine how more “closely related” an intentional serious physical injury must be in order to satisfy the “involving” test.
Nor do I understand how the court can maintain that the serious physical injury did not “have an effect on” the sexual assault. The injuries inflicted took away the victim’s physical and mental ability to resist. The injuries allowed defendant to more easily rape his victim repeatedly. The injuries plainly “had an effect on” the sexual assault. To say otherwise will be shocking news to the victim.
The court agrees that “defendant purposefully inflicted the injury to disable the victim and carry out the kidnapping.” Ante, at 582, 898 P.2d at 960. But the same must be said for the sexual assaults. Adopting the court’s own analysis, and substituting the words “sexual assaults” for the word “kidnapping,” we have as follows: “defendant purposefully inflicted the injury to disable the victim and carry out the [sexual assaults].” Id. It is no answer to say that the serious physical injury was simply the mode of “restraint” chosen by defendant. The court concedes that “involving” need not mean that serious physical injury is an element of the offense. If the kidnapping satisfies the “involving” test, then so too do the sexual assaults.
Then why does the court not reach the conclusion that these sexual assaults involved serious physical injury? The court says that *585the defendant caused serious physical injury “during the kidnapping,” but not “during” the sexual assaults. Ante, at 582, 898 P.2d at 960. Yet the court then says that it does “not suggest that an injury must always occur during the commission of an offense to be related for purposes of sentence enhancement.” Id. But then the court says the answer to my question “is that during the commission of the sexual assaults, there was no intentional infliction of serious physical injury, as required by the statute.” Ante, at 583, 898 P.2d at 961 (emphasis added). But the statute requires no such thing. “During” is not a word used by the statute. “During” is not even a word used in the court’s “delineated factors for the trial court to consider.” Ante, at 583, 898 P.2d at 961.
While claiming to define the word “involving,” the court really requires that “[e]ach felony offense where the statute is sought to be applied must be analyzed to determine whether the serious physical injury which resulted was inflicted by the defendant intentionally and knowingly during the commission of that felony offense.” Ante, at 581, 898 P.2d at 959 (first emphasis added). Thus, under the court’s application of its own test, the words “closely related to,” “have an effect on” and even “involving” are superfluous.
From where does this “during” element come? The court appears to find it in the words “intentionally or knowingly,” saying that those words “more narrowly focus the applicability of the statute on felons who purposefully inflict injury during the commission of a particular offense.” Ante, at 581, 898 P.2d at 959 (emphasis added). But “intentionally” and “knowingly” refer to state of mind, not timing. These words exclude from the application of the statute injuries inflicted “recklessly” or “negligently.” Clearly, defendant intentionally or knowingly beat up the victim. “Involving” is the only word of timing in the statute. “Involving” plus “intentionally or knowingly” does not equal “during.”
In the end, the court defines “involving” to mean “during,” though it claims not to. Yet even that test is met here. This offense was fundamentally a rape from the beginning to the end. Sexual assault requires lack of consent. One way to overcome the victim’s lack of consent is to use force. The defendant’s intent all along was “a little piece for New Year’s,” ante, at 578, 898 P.2d at 956, and he intended to force the victim to give it to him. In using force to overcome lack of consent, defendant inflicted serious physical injury. An element of rape, lack of consent, was present before penetration and the rape itself began before the actual sexual contact. The serious physical injury was the first part of the rape, and was inflicted “during” the rape. What if a policeman intervened before penetration. Would not the facts here have justified a charge of attempted rape? How can facts that would justify a charge of attempted rape not be “closely related” enough to the rápe?
The legislature did not intend to chart physical violence in nanoseconds. The “involving” test is as simple as this. Suppose two people discuss this rape the day after. One says “a woman was raped yesterday.” The other responds, “was she hurt badly?” If the answer, as here, is “yes”, the “involving” test is met. I respectfully dissent.
. I agree with the court that a single physical injury can apply to multiple offenses under A.R.S. § 13-604.02(A), and that the "involving” requirement was met for both the aggravated assault and the kidnapping.