(concurring in part and dissenting in part). I find that the instructional error was harmless under both Justice Brickley’s and Justice Levin’s harmless-error standards. I endorse Justice Levin’s harmless-error standard as the proper one to be applied to the type of error that occurred in this case. I also contend that the defendant’s double convictions violate the constitutional principle of double jeopardy.
Specifically, I concur with Justice Brickley that, under the standard that he applies for harmless error, the error in this case may be deemed harmless. However, I dissent from Justice Brickley’s opinion because I believe that he applies the wrong mode of analysis for assessing the particular error that occurred here. I prefer the analytical framework that Justice Levin advocates—a framework that I interpret as a distinctive harmless-error standard to be applied in cases in which the trial court has failed to properly instruct the jury on an essential element of a crime.
While I endorse the harmless-error standard that Justice Levin champions, I disagree with the conclusion that Justice Levin makes when he *257applies that standard to the error in the instant case, i.e., Justice Levin’s finding that the deficient instruction was not a harmless error. If an appellate court focuses on what this jury actually found, as Justice Scalia directs it to do in Sullivan v Louisiana, 508 US —; 113 S Ct 2078; 124 L Ed 2d 182 (1993), I believe that the appellate court could properly conclude that, on the basis of the special circumstances of this case, the jury necessarily found the uninstructed element of asportation in furtherance of the kidnapping and not merely incidental to the criminal sexual conduct. See also Pope v Illinois, 481 US 497, 504; 107 S Ct 1918; 95 L Ed 2d 439 (1987) (Scalia, J., concurring).
The trial judge instructed the jury that it had to find that the defendant " 'must have forcibly moved or caused the victim to be moved from one place to another for the purpose of abduction and kidnapping.’ ” Ante at 230-231. The undisputed asportation evidence that was actually argued to the jury pertained to movement that was clearly incidental exclusively to the kidnapping. In light of the guilty verdict, the jury had to have found that asportation transpired. Applying Justice Scalia’s harmless-error framework, as it was explicitly explained by the United States Court of Appeals for the Ninth Circuit in Martinez v Borg, 937 F2d 422, 425 (CA 9, 1991), I find that "no rational jury could have made those findings [the ones that we know the jury made on the basis of the instructions that were actually given] without also finding [the element of independent asportation].”
To arrive at this conclusion does not require speculation on the part of the appellate court. Certainly, it is possible that the jury’s asportation finding was based on the movement from the car to the motel room, or from the floor to the bed, as Justice Levin hypothesizes in his dissent at 274. *258However, in view of the particular nature of the asportation evidence that in fact was argued to the jury, I consider such a scenario to be highly unlikely and assert that the jury necessarily found asportation unique to the commission of the kidnapping. Accordingly, an appellate court could accurately rule that "[t]he [instructional] error is harmless because it is 'beyond a reasonable doubt,’ Chapman v California, 386 US 18, 24 [87 S Ct 824; 17 L Ed 2d 705] (1967), that the jury found the facts necessary to support the conviction.” Carella v California, 491 US 263, 271; 109 S Ct 2419; 105 L Ed 2d 218 (1989) (Scalia, J., concurring).
As a final point, and one that I acknowledge neither the majority nor the dissent directly addresses, I write to object to the fact that the defendant in this case has been convicted of both first-degree criminal sexual conduct by penetration under circumstances involving the commission of another felony, and kidnapping—where kidnapping serves as the other felony. As I have indicated on prior occasions, I regard the imposition of separate punishments under these circumstances to be a violation of the constitutional prohibition against double jeopardy, specifically the prohibition against multiple punishments for the same offense. See People v Sturgis, 427 Mich 392, 413; 397 NW2d 783 (1986) (Cavanagh, J., dissenting); People v Robideau, 419 Mich 458, 504-513; 355 NW2d 592 (1984) (Cavanagh, J., dissenting). I find it necessary to expressly reiterate my view that a legislature’s authorization of successive punishments for the same offense does not dispose of the question whether a double jeopardy violation has occurred " '[s]ince the Double Jeopardy Clause limits the power of all branches of government, including the legislature ....’” Robideau at 510, quoting Missouri v Hunter, 459 US 359; 103 S Ct *259673; 74 L Ed 2d 535 (1983) (Marshall, J., dissenting) (emphasis added). Moreover, as I also pointed out in Robideau, I find that "the [Michigan] Legislature has not clearly and unequivocally authorized punishment for both first-degree criminal sexual conduct based on sexual penetration under circumstances involving any 'other felony’ and the 'other felony.’ ” Id. at 511.
In conclusion, I concur in the result reached in Justice Brickley’s opinion, and the analyses set forth in parts n and hi of that opinion; and I join the analyses set forth in parts i, ii, and hi of Justice Levin’s dissent.