(dissenting).
I respectfully dissent. This is a relatively uncomplicated case involving the application of a settled, long-standing doctrine, the so-called “avoidance-of-apprehension doctrine.” Pursuant to that doctrine, if a criminal defendant “substantially contemporaneously” commits one crime in order to avoid apprehension for another crime against the same victim, then under Minn.Stat. § 609.035 (1992) the defendant may be sentenced for only one of the two offenses unless one of the statutory exceptions, referred to by the majority, applies.
State v. Hawkins, 511 N.W.2d 9 (Minn.1994) is illustrative of the doctrine. In that case defendant and an accomplice decided to “rip off’ an undercover narcotics officer who arrived at a predetermined location with $3,000 in cash to buy narcotics from them. The men began beating the officer as part of their plan to take the money from him. In order to alert a surveillance team, the officer shouted that he was a police officer. When the officer reached for his gun, defendant said, “He’s got a gun. There is nothing we can do now, man. Get the gun. We’ve got to do him.” The officer fended off the attempts by defendant and his accomplice to get his gun until the surveillance officers arrived and arrested them. The defendant was convicted of aggravated robbery for taking the money from the officer’s pocket and *298of attempted first-degree murder for attempting to get the gun and kill the officer. The trial court sentenced the defendant to concurrent prison terms of 240 months for the attempted murder (the statutory maximum) and to 216 months for the aggravated robbery. The court of appeals affirmed the sentences, but we vacated the aggravated robbery sentence. We based this both on the fact that the attempted murder was “committed in furtherance” of the aggravated robbery and on the fact that the attempted murder was committed to help the men escape apprehension for the aggravated robbery. As we put it, “[defendant’s] desire to get [the officer’s] gun and ‘do’ him appears to [have been] motivated by the desire to complete the robbery and leave the scene without being harmed or apprehended.” 511 N.W.2d at 14.1
There are two issues in this case relating to the application of the avoidance-of-apprehension doctrine. The first is whether defendant committed the attempted murder to avoid apprehension for the rape. This is partly a factual question, on which the state has the burden of proof. State v. Kemp, 305 N.W.2d 322, 326 (Minn.1981). State v. Zuehlke, 320 N.W.2d 79, 82 (Minn.1982). In view of the way in which this case was tried and submitted to the jury, it is clear both as a factual and as a legal matter that defendant’s attempt to kill the complainant cannot be explained without necessary reference to the fact that he had just raped the complainant. See State v. Banks, 331 N.W.2d 491, 494 (Minn.1983). As the prosecutor’s closing argument and the defendant’s testimony clearly demonstrate and as the majority concedes, this case was tried by both the state and the defendant on the theory that the defendant attempted to kill the complainant in order to avoid apprehension for the rape. To put it another way, the state did not even attempt to prove that the defendant’s attempt to prevent his victim from identifying him was a separate behavioral incident. On the evidence before it and guided by the face the prosecutor put on that evidence, it is clear that when it found the defendant guilty of attempted first-degree murder, the jury found that the defendant tried to kill the complainant in an effort to avoid being identified as the rapist and, thus, to avoid apprehension for the rape.
The second question relating to the application of the avoidance-of-apprehension doctrine to the facts of this case is whether it may be said that defendant committed the rape and the attempted murder “substantially contemporaneously.”
At the one extreme, obviously if defendant had choked the complainant and attempted to kill her while in the act of raping her, it would be easy to conclude that he committed the two crimes “substantially contemporaneously.” State v. Hawkins, supra, clearly supports this conclusion. At the other extreme, it seems obvious that if defendant had released the complainant and then later attempted to kill her in order to silence her, it would be easy to conclude that he did not commit the two crimes “substantially contemporaneously” and that therefore the two crimes were not committed as part of a single behavioral incident.
The difficulty in some cases in making the determination of whether two crimes are committed “substantially contemporaneously” in the context of Minn.Stat. § 609.035 is illustrated by comparing our decision in State v. Stevenson, 286 N.W.2d 719 (Minn.1979), with our decision in State v. Herberg, 324 N.W.2d 346 (Minn.1982). In Stevenson the defendant committed two crimes involving coerced sexual intercourse with the same 15-year-old girl. Both offenses occurred in the same general place and on the same day but the offenses were separated by a period of *299five hours and the two offenses did not bear any essential relationship to each other. We held that under these circumstances section 609.035 did not bar the imposition of two consecutive terms.
On the other hand, in Herberg, the defendant twice raped the same victim but the first rape was separated from the second by an interval during which defendant drove the victim to a different location so that he could accomplish the second offense without detection. We held, inter alia, that under section 609.035 the trial court could sentence the defendant for one rape, not two.
In deciding whether the attempted murder in this case was committed “substantially contemporaneously” with the rape, it must be remembered that we do not decide appeals in a jurisprudential vacuum. What we decide today in a particular context is influenced by prior decisions in different but related contexts and may bear on future decisions in different but related contexts.
Specifically, in deciding whether defendant committed the attempted murder “substantially contemporaneously” with the rape, we must bear in mind that our decision is influenced by (a) our prior decisions dealing with the issue of substantial contemporaneousness in the context of the prosecution of a defendant for attempted first-degree murder or completed first-degree murder in the course of committing the felony offense of rape and (b) the possible effect of our decision on future prosecutions for attempted first-degree murder or completed first-degree murder in the course of committing the offense of rape.
Formerly, in order to obtain a conviction of attempted first-degree murder or completed first-degree murder, the state had to prove premeditation. However, when the legislature adopted the Criminal Code of 1963 it provided that the state need not prove premeditation if it could prove that the defendant attempted to kill or killed the victim “while” raping the victim. See Minn.Stat. Ann. § 609.185 advisory committee cmt. (West.1987).2 This raised the issue of whether a defendant could be convicted of attempted first-degree murder or completed first-degree murder if, after raping the victim, the defendant attempted to kill or killed the victim in order to conceal the rape or in order to avoid apprehension for the rape. Courts in other jurisdictions were split on this general issue. See Annot., What Constitutes Termination of Felony for Purpose of Felony-Murder Rule, 58 A.L.R.3d 851, § 27 (1974). We decided the issue in State v. Murphy, 380 N.W.2d 766 (Minn.1986). There the defendant forced a young woman into an alley at knifepoint late one night, raped her, then decided to kill her. In an opinion by Chief Justice Amdahl, we upheld the defendant’s conviction of first-degree murder in the course of raping her, stating:
In Minnesota, the felony-murder rule is applicable where the ‘felony and the killing * * * are parts of one continuous transaction.’ Kochevar v. State, 281 N.W.2d 680, 686 (Minn.1979). In this case, defendant killed [the victim] immediately following the rape to conceal his crime. This killing falls within the same continuous criminal act as the rape and thus falls within the scope of our felony-murder statute.
380 N.W.2d at 771. In a footnote we added:
Most jurisdictions that recognize the felony-murder doctrine support the view that a killing by one trying to escape from or conceal a felony where there has been no break in the chain of events between the felony and the killing is within the scope of the felony-murder rule. [Citations omitted]. Thus, even though the underlying felony may be complete, the felony-murder rule may still apply. [Citations omitted].
*300Id. at n. 3. Had the state done so, I think it highly unlikely that this court would have reversed that conviction on the ground that the rape and the attempted murder were not parts of a single behavioral incident either because attempted murder requires an intent to kill while rape requires an intent to sexually penetrate or because the rape and the attempted murder were not substantially contemporaneous. That the appellant assured his victim that he would release her when there were no cars around does not, in my opinion, convert his search for a secluded area where defendant could murder her and conceal her body into a behavioral incident separate from the rape. It seems to me that all that occurred after the rape itself, was intended to enable defendant to permanently escape apprehension.
Because it seems to me that the defendant could have been prosecuted successfully for attempted first-degree murder in the course of raping his victim, pursuant to Minn.Stat. §§ 609.17 and 609.185(2) (1992), on the theory that the rape and the attempted killing were part of one continuous transaction — an unbroken chain of events — I believe that, by application of the same standard, Minn.Stat. § 609.035 precludes the trial court from imposing two separate sentences on the theory that the two offenses were not committed as part of one continuous transaction or one unbroken chain of events.
In summary, the state, which has the burden of proof on the issue for purposes of section 609.035, not only failed to establish that the two offenses were committed as two separate behavioral incidents, the state tried the case on the theory that defendant’s conduct constituted one continuous behavioral incident — that he attempted murder in order to avoid apprehension for his crimes. Under the circumstances, I believe that, in addition to sentencing defendant for kidnapping, the trial court could sentence defendant for the rape or the attempted murder but not both. The state should not be permitted to have it both ways any more than should the defendant.
Here the maximum sentence that could be imposed for the attempted murder was the statutory maximum of 240 months, whereas the maximum sentence that could be imposed for the rape was 300 months or 25 years.3 The presumptive sentence for the rape, given defendant’s criminal history score of six, was 158 months. Because defendant committed the rape in a particularly serious way, orn-eases support the conclusion that the trial court could have doubled the presumptive sentence up to the statutory maximtim. Here, the statutory maximum is 300 months. Since the trial court clearly wanted to impose a sentence at least that long, I believe that the appropriate disposition in this ease would be to remand to the trial court, with the trial court free on remand to impose a 300-month statutory maximum sentence for the rape. See, among other decisions, Herberg, 324 N.W.2d 346, 350. This would amount to a limited reduction of 26 months, or just ovei* 16 months in actual time the defendant would have to spend in prison, assuming good behavior, from the sentence that remained after the court of appeals’ decision.
It seems to me that the majority, in order to keep this defendant in prison 16 moliths longer, not only has confused the heretofore clear law relating to Minn.Stat. § 609.035, the avoidance-of-apprehension doctrine, and the meaning of “substantially contemporaneous,” but also has made the prosecution of first-degree felony murder in the commission of a rape extremely difficult.
For the foregoing reasons I would reverse with respect to the sentence for attempted murder and rape and remand for resentenc-ing pursuant to Minn.Stat. § 609.035 (1992).
. Relevant decisions recognizing and applying the doctrine include, State v. Gibson, 478 N.W.2d 496 (Minn.1991); Efflnger v. State, 380 N.W.2d 483 (Minn.1986); State v. Beito, 332 N.W.2d 645 (Minn.1983); State v. Banks, 331 N.W.2d 491 (Minn.1983); State v. Gilbertson, 323 N.W.2d 810 (Minn.1982); State v. Zuehlke, 320 N.W.2d 79 (Minn.1982); State v. Boley, 299 N.W.2d 924 (Minn.1980); Matter of Castillo, 293 N.W.2d 839 (Minn.1980); State v. White, 292 N.W.2d 16 (Minn.1980); State v. Armell, 281 N.W.2d 709 (Minn.1979); State v. Finn, 295 Minn. 520, 203 N.W.2d 114 (1972). See also State v. Wipper, 512 N.W.2d 92 (Minn.1994) (vacating a concurrent sentence for arson committed by a defendant to avoid apprehension for the murder of the occupant of a house).
. The current version of Minn.Stat. § 609.185 (1994) provides:
Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life:
* ⅝ * ⅝ t *
(2) causes the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the person or another * * *.
Minn.Stat. § 609.184, subd. 2 (1994) now provides that the trial court shall sentence a person to life imprisonment "without possibility of release” if the person is convicted of first-degree murder under section 609.185(2).
. The 1992 legislation, not applicable to this case, has increased the statutory maximum for the rape to 360 months or 30 years. 1992 Minn. Laws, ch. 571, art. 1, § 14, subd. 2.