(dissenting) — The majority opinion accents and furthers the confusion that has marked the treatment of the constitutional requirement that a jury unanimously agree upon the elements that compose at least one of the alternative means of committing a criminal offense. The majority's analysis relies upon distinctions which cannot be made between "offenses," "acts," and "crimes," which create an unworkable and confusing rule for determining whether the requirement of unanimity is present in any given case. The majority's reasoning, based on State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976), depends primarily upon language from the code reviser's office which is not a direct expression of the original intent of the drafters of the criminal statutes. At the same time, this reasoning *513does not address the concerns that are presented by the fundamental requirement of a unanimous verdict.
The infirmity of the Arndt analysis is compounded in the instant case by the majority's reliance on inapposite case law. The majority acknowledges that kidnapping and the use or threatened use of a deadly weapon may constitute crimes themselves (majority, at 510-11), and then cites State v. Johnson, 92 Wn.2d 671, 675, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948 (1980) for a discussion of the merger doctrine. The question of whether or not underlying elements may be charged as crimes themselves is irrelevant to the issues presented by the instant case.
At issue here is the requirement of In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) that the prosecution prove beyond a reasonable doubt that a criminal defendant committed every act necessary to constitute the crime charged. Jury instructions must reflect that requirement, as well as the requirement imposed by article 1, section 22 of the Washington State Constitution that defendants be convicted by a unanimous jury verdict. State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980). The Arndt test fails to accommodate the constitutional requirements of Winship.
I would apply the analysis used in my dissenting opinion in State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982). As I stated there, "[t]o say a statute sets forth a single crime capable of commission by alternative means is not to say that the set of elements composing one theory of a means of commission is the same as a set of elements composing another means." State v. Franco, supra at 833 (Utter, J., dissenting). The court must first determine what elements are necessary for the commission of the offense, i.e., "what factors (both mental and physical) must a jury unanimously find established for a constitutional verdict of guilt." Franco, at 833 (Utter, J., dissenting). Once the court has made this determination, it must determine whether the set of elements for each alternative means are the same. If they are, then a finding of guilt by one alternative means is syn*514onymous with a finding of guilt by the other.
Where the prosecutorial evidence required for proof of the alternative means is the same, a unanimous verdict that the defendant is guilty of the crime as charged is constitutionally sound. If, on the other hand, the means involve distinguishable elements, then the jury must unanimously agree on at least one set of elements that comprise a means of committing the offense, or the defendant has been deprived of his or her right to be convicted by a unanimous jury, and the court has no assurance that the prosecution has fulfilled its Winship requirement of proving each of the elements of the crime charged beyond a reasonable doubt.
Washington's first degree rape statute, RCW 9A.44.040, provides, in pertinent part:
(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:
(a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or
(b) Kidnaps the victim; . . .
Applying the foregoing analysis, the first two means of commission of first degree rape have two elements in common: (1) sexual intercourse (2) by forcible compulsion with another person. Under RCW 9A.44.040(l)(a), the third element requires that the perpetrator or an accessory uses or threatens to use a deadly weapon or what appears to be a deadly weapon. Under RCW 9A.44.040(l)(b), the third element requires that the perpetrator or an accessory kidnaps the victim. In each instance, the third element of rape in the first degree differs in the means of commission, and the proof required to show the commission of first degree rape under section (l)(a) differs from the proof required under section (l)(b). Since the essential elements of section (l)(a) are different from those of section (l)(b), the trial court should have required the jury to unanimously agree on at least one of the two alternative theories of committing the offense of rape in the first degree.
*515The case should be remanded to the trial court unless the constitutional error of failure to instruct the jury that it must reach unanimity on at least one set of elements necessary to the commission of the crime can properly be said to be harmless. An error of constitutional magnitude in a criminal prosecution is harmless only if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. The State bears the burden of proving that the error was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). At Whitney's trial, the jury was instructed that in order to convict it must find beyond a reasonable doubt "the defendant used or threatened to use a deadly weapon or kidnapped [the victim]1'. Clerk's Papers, at 12. Given these instructions, it is impossible to determine whether all or only part of the jury agreed on the means of commission of the rape. The error was not harmless, and I would remand for a new trial with a properly instructed jury.
Pearson, C.J., concurs with Utter, J.