Stafford, J.
Michael Charles Green petitions this court for reconsideration of our decision in State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979) (Green I) on three major issues: (1) our ruling that a statement made by appellant was not the product of custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966); (2) our ruling that the State did not possess unfettered discretion under RCW [219]*219RCW 9A.32.045(7)1 and .030(l)(c)(2) and (5) to seek varying degrees of punishment for different persons who commit identical crimes thus violating equal protection of the law; and (3) our disposition of the issues raised by an allegation that appellant committed aggravated murder in the first degree in the furtherance of first degree kidnapping (kidnapping) or first degree rape (rape). For the reasons set forth in Green I we adhere to our original disposition of the Miranda and equal protection issues. We depart from Green I, however, after reconsidering the issue of kidnapping as an element of aggravated first degree murder as defined by Initiative 316, § 2. After considering the evidence most favorable to the State, we conclude there is not substantial evidence to support a determination of kidnapping. This conclusion is also compelled by the recent decision of the United States Supreme Court, Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Moreover, the nature of the verdict form in this case makes it impossible for us to know if the jury was unanimous in determining whether aggravated first degree murder was committed in the furtherance of kidnapping or rape. Therefore, the charge of aggravated first degree murder must be remanded, based as it is on the remaining element of first degree rape or attempted first degree rape.
Pursuant to RCW 9A.32.045(7), the charge of aggravated murder in the first degree must be established by proving beyond a reasonable doubt that appellant caused the victim's death in the course of or in the furtherance of rape (RCW 9A.44.040), or kidnapping (RCW 9A.40.020). While rape and kidnapping are elements of aggravated murder in the first degree, each is a separate and distinct major crime having specific elements which also must be proved beyond a reasonable doubt. Thus, the initial question is whether those separate and distinct crimes, or either of them, have [220]*220been established under either the substantial evidence test or the reasonable doubt test of Jackson v. Virginia, supra.
In dealing with the claimed inadequacy of proof to establish the elements of kidnapping, Green I held, at page 442: "[r]eview of the sufficiency of evidence is limited to a determination of whether the State has produced substantial evidence tending to establish circumstances from which a jury could reasonably infer the fact to be proved." (First italics ours.) Then, after citing State v. Randecker, 79 Wn.2d 512, 487 P.2d 1295 (1971), Green I held: "[i]n determining whether the necessary quantum of evidence exists, it is unnecessary for the [reviewing] court to be satisfied of guilt beyond a reasonable doubt. It is only necessary for it [the reviewing court] to be satisfied that there is substantial evidence to support the State's case or the particular element in question." State v. Green, supra at 442-43. (Italics ours.) Thereafter Green I reviewed the evidence and concluded substantial evidence existed from which the jury could have inferred appellant killed the victim in the course of or in furtherance of kidnapping, a conclusion with which we now disagree after more careful reflection.
There is, however, an even more salient reason for departing from our view in Green I. Shortly after the publication of Green I, the United States Supreme Court held in Jackson v. Virginia, supra, that on review the proper test is whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt.2 "After Winship [In re Winship, 397 U.S. 358, 25 L. [221]*221Ed. 2d 368, 90 S. Ct. 1068 (1970)] the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, supra at 318. (Italics ours.) This inquiry does not require the reviewing court to determine whether it believes the evidence at trial established guilt beyond a reasonable doubt. "Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, supra at 319. (Italics ours.) The criterion impinges upon a jury's discretion only to the extent necessary to protect the constitutional standard of reasonable doubt. As pointed out in Jackson at page 320, a lesser standard would fail "to supply a workable or even a predictable standard for determining whether the due process command of Winship has been honored."
Accordingly, the appropriate test for determining the sufficiency of the evidence of kidnapping is not that applied in Green I, i.e., whether, after viewing the evidence most favorable to the State, there is substantial evidence to support kidnapping. The issue, as framed in Jackson v. Virginia, supra, is whether, after viewing the evidence most favorable to the State, any rational trier of fact could have [222]*222found the essential elements of kidnapping beyond a reasonable doubt.
The Green I "substantial evidence" rule of review cannot be equated with Jackson's "reasonable doubt" rule. The clear statement of the rule employed by Green I precludes our holding that the "substantial evidence" rule of review and the "reasonable doubt" rule of review are the same albeit differently stated. Numerous cases following Ran-decker, including Green I, have reiterated and relied upon the obvious difference. Nevertheless, despite the clear difference we hold the evidence is insufficient to meet either rule of review.
In order to determine whether the facts pertaining to kidnapping satisfy either the substantial evidence test or the more rigorous Jackson test, it is necessary to review the facts surrounding the victim's death. The examination must be made in a manner as devoid of subjective reactions, argument or comment as possible.
Shortly before 4 p.m. on September 28, 1976, Kelly Emminger, an 8 1/2-year-old girl, took a younger child for a walk in the Capital Hill area of Seattle. They headed down an alley adjacent to the apartment house where both lived. At approximately 5 p.m., witnesses both within and without the apartment heard screams coming from the alley. At first the sounds were disregarded as the noise of children playing. Within 15 seconds of the first scream, however, Barry Miners, a resident of the apartment, looked from his second story balcony and saw two people almost directly below him. They were huddled on the sidewalk bordering the alley. He recognized one as Kelly, the other was an adult male with shoulder-length brown hair. As Kelly screamed and kicked, the man lifted her from behind and was observed to place his hand over her mouth in an apparent attempt to silence her. At that time Kelly was fully clothed.
Mr. Miners watched the man carry Kelly a short distance to his right, along the sidewalk, before they disappeared [223]*223around the corner toward the back of the apartment. The screams ceased within moments after they passed from view. Mr. Miners went to a window overlooking the sidewalk toward which the man and Kelly had moved but saw and heard nothing further. He returned to the balcony and directly below, where the pair had huddled, he saw a butcher knife lying in one of two adjoining pools of blood.
Mr. Miners left his apartment and ran down the back stairs from the second floor. As he reached the stair landing above the apartment's exterior loading area,3 he observed some blood on the carpet below him. He also saw the man near the bottom of the stairs, holding Kelly. They were about 8 feet away, near the entrance to the exterior loading area. Kelly was quiet and very pale. Although she was clearly unconscious, Mr. Miners was not sure whether she was dead. Her clothing, from the middle part of her body to her ankles, had been ripped away. The man's clothing was covered with blood.
Mr. Miners asked the man whether help was needed and he replied "yes, she's been hurt pretty bad. Call an ambulance." Mr. Miners departed to summon aid and was gone about 1 minute. Upon his return he found the man had moved Kelly to the lawn in back of the apartment building. At that point Miners felt sure she was dead. He later identified the man as appellant Green.
In setting the scene for the foregoing events we also note the incident began on the sidewalk in front of the ground-level apartment occupied by Herman Tower and his parents. Kelly screamed and as Herman looked out the window he saw Green, not more than 10 feet away, lift Kelly off her feet and carry her kicking and screaming toward the corner of the apartment building. She ceased screaming as she and Green disappeared from view around the corner. As [224]*224Herman exited his apartment, he saw the two pools of blood and the butcher knife on the sidewalk near his door.
Within the same time span, Tania Thorkelson, age 8, was in the grass-covered backyard of the apartment. She was playing on a tire swing hung from a tree located near the apartment's exterior loading area where Miners later found Green and Kelly. Tania heard some screams, ran from the swing to the corner of the apartment building, peeked around the corner and saw Kelly struggling with Green on the sidewalk. She also saw Green pick Kelly up. Apparently Tania then ran to some garages across the alley.
While the foregoing recitation of events is lengthy, it must be understood that only 2 to 3 minutes elapsed from the time of the first scream to the time Miners found Kelly in Green's arms in the exterior loading area. It should also be noted that in Green I the court and the prosecuting attorney placed some emphasis on the fact that the victim had been moved a number of feet from the point of initial encounter. Careful review of the exhibits and report of proceedings reveals, however, the extent of the movement was only a short distance.4
I
Failure of Evidence To Prove Essential Elements of First Degree Kidnapping Under Jackson v. Virginia
As indicated above, kidnapping is a specific element of aggravated murder in the first degree. It is, however, a separate and distinct statutory crime having specific elements each of which must be established beyond a reasonable doubt. Unchallenged instruction No. 9 defines the essential elements of statutory kidnapping as follows:
A person commits the crime of kidnapping in the first degree when he intentionally abducts another person [225]*225with intent to facilitate the commission of any felony or flight thereafter.
"Abduct" means to restrain a person by either (a) secreting or holding her in a place where she is not likely to be found, or
(b) using or threatening to use deadly force.
"Restraint" means to restrict a person's movement without consent and without legal authority in a manner which interferes substantially with her liberty.
Restraint is "without consent" if it is accomplished by (a) physical force, intimidation, or deception, or (b) any means including acquiescence of the victim, if she is a child less than sixteen years old when the parent or other lawful guardian has not acquiesced.
(Italics ours.) RCW 9A.40.010(2) and .020.
From the foregoing, it is clear "abduction" is a critical element in the proof of kidnapping. There are three distinct bases upon which the State may rely to establish "abduction", each of which necessarily involves "restraint": (1) restraint by means of secreting the victim in a place where he or she is not likely to be found; (2) restraint by means of a threat to use deadly force; and (3) restraint by means of deadly force other than the killing itself. The State would add a fourth, i.e., restraint supplied by the killing itself. Each of the four bases is examined more fully below.
In considering kidnapping by any of the four means set forth above it is important to note that each is wholly separate and distinct from the others. RCW 9A.40.010(1), (2)(a), (b); RCW 9A.40.020. While each requires restraint and at least the first three ultimately may support a charge of kidnapping, the specific means comprising restraint in one are not interchangeable with the specific means required to establish any of the others. Each must be independently proved and none can stand upon a combination of the others to fill a critical void.
A. Restraint by means of secreting the victim.
In determining whether there is sufficient evidence of restraint by means of secreting the victim under either the [226]*226substantial evidence or the Jackson test, the setting of events and the physical surroundings must be examined carefully. The area where the State asserts the victim was "secreted", i.e., the apartment's exterior loading area, had no outside doors, was visible from the children's play area and a tire swing located only about 30 feet away, and could be viewed from the rear windows of another apartment only about 40 feet distant. In short, the exterior loading area was plainly visible from the outside. Additionally, the apartment's first floor rear exit, or fire door, opened into one end of the exterior loading area only a few feet from where Mr. Miners observed Green and the victim. This door provided additional public access to the area. Further, the place where Green and the victim were found was near the bottom of the back stairway which led to all of the upstairs apartments. This stairway was used in common by the occupants of and visitors to the apartments. Finally, at best, a total of only 2 to 3 minutes elapsed from the time the victim first screamed to the time Mr. Miners reached the exterior loading area and actually saw Kelly in Green's arms.
Considering the unusually short time involved, the minimal distance the victim was moved (estimated variously, by the prosecuting attorney, as from 20 to 50 feet), the location of the participants when found, the clear visibility of that location from the outside as well as the total lack of any evidence of actual isolation from open public areas, there is no substantial evidence of restraint by means of secreting the victim in a place where she was not likely to be found. Further, under the Jackson test, no rational trier of fact could have found beyond a reasonable doubt, that the victim had been restrained by means of secreting her in a place where she was not likely to be found. Under either test it is clear Green could hardly have chosen a more public place to accost his victim or commit the homicide some 2 to 3 minutes later.
Moreover, although appellant lifted and moved the victim to the apartment's exterior loading area, it is clear [227]*227these events were actually an integral part of and not independent of the underlying homicide. While movement of the victim occurred, the mere incidental restraint and movement of a victim which might occur during the course of a homicide are not, standing alone, indicia of a true kidnapping. See State v. Johnson, 92 Wn.2d 671, 676, 600 P.2d 1249 (1979).
Although we characterize the movement and restraint in this case as incidental, we do not mean to suggest that under every conceivable set of facts a movement of 20 to 50 feet or being found in a stairwell would be incidental. That which constitutes incidental movement is not solely a matter of measuring féet and inches. It is a determination to be made under the facts of each case, in light of the totality of surrounding circumstances. This characterization is as much a consideration of the relation between the restraint and the homicide as it is a measure of the precise distance moved or place held. It involves an evaluation of the nature of the restraint in which distance is but one factor to be considered.
As stated by the Michigan Court of Appeals in People v. Adams, 389 Mich. 222, 236, 205 N.W.2d 415 (1973) in referring to a case of assault:
"We have concluded that under the kidnapping statute a movement of the victim does not constitute an aspor-tation unless it has significance independent of the assault. And, unless the victim is removed from the environment where he is found, the consequences of the movement itself to the victim are not independently significant from the assault — the movement does not manifest the commission of a separate crime — and punishment for injury to the victim must be founded upon crimes other than kidnapping."
New York has taken a similar view of the merging of a technical "kidnapping" when that "kidnapping" is merely incidental to the commission of another crime. People v. Cassidy, 40 N.Y.2d 763, 358 N.E.2d 870, 390 N.Y.S.2d 45 (1976); People v. Levy, 15 N.Y.2d 159, 164, 204 N.E.2d 842, 256 N.Y.S.2d 793, cert. denied, 381 U.S. 938, 14 L. Ed. 2d [228]*228701, 85 S. Ct. 1770 (1965). See also State v. Johnson, supra.
We hold that kidnapping by means of secreting or holding the victim in a place where she was not likely to be found has not been established either by substantial evidence or by the standard of proof required by Jackson v. Virginia, supra.
B. Restraint by means of a threat to use deadly force.
A careful review of the record discloses no evidence that Green employed a threat to use deadly force as required by instruction No. 9 and RCW 9A.40.010(2)(b). Thus, we conclude there is no substantial evidence of that means and also conclude no rational trier of fact could have found beyond a reasonable doubt that the victim had been restrained in that manner, as required by Jackson.
C. Restraint by means of deadly force other than the killing itself.
Our review of the evidence discloses no evidence of restraint by deadly force other than the stabbing of the victim. While the record indicates Green lifted the victim and carried her to the exterior loading area, such conduct, without more, does not amount to the use of deadly force. We are compelled to conclude there is no evidence of restraint by means of deadly force other than that employed in the ultimate killing. Thus kidnapping by means of deadly force other than that employed in the ultimate killing has not been established by substantial evidence or by the standard of proof required by Jackson.
D. Restraint supplied by the killing itself.
Pursuant to instruction No. 9 and RCW 9A.40-.010(2) (b) the State may establish kidnapping if the victim is restrained by the use of deadly force. While it is clear in this case that deadly force was employed (i.e., the killing itself), we conclude that "restraint" by an ultimate killing does not, in and of itself, establish kidnapping. RCW 9A.40.010(2)(b) contemplates employment of a deadly force [229]*229that stops short of actual homicide. When the State establishes a killing it may have proved a homicide or some other crime, but it has not established kidnapping.
In the broadest sense the infliction of a fatal wound is the ultimate form of "restraint" because it obviously "restrict[s] a person's movement ... in a manner which interferes substantially with [the person's] liberty." RCW 9A.40.010(1). If such logic is applied to the law of kidnapping, however, every intentional killing would also be a kidnapping because the killing itself would supply the requisite "restraint" (i.e., the killing being the ultimate form of "restraint"). Moreover, every intentional killing would automatically become murder in the first degree under RCW 9A.32.030(c)(5), which provides that one causing the death of another in the course of any kidnapping is automatically guilty of murder in the first degree. Most importantly, the intentional killing, converted thusly into first degree murder, would in turn automatically be converted into aggravated murder in the first degree under RCW 9A.32.045(7) because it was committed in the course of a kidnapping.
Clearly Initiative 316 was intended to identify those crimes which are particularly outrageous, to enhance the degrees of culpability and to elevate the status of such crimes. There is nothing to indicate, however, that the people of this state intended to employ the kidnapping statute in such a convoluted way as to eliminate all distinction among intentional killings. On the contrary, the initiative carefully set out seven specific circumstances in which a first degree murder could be elevated into a crime punishable by death. It did not, either specifically or by inference, indicate that its purpose was to automatically convert every intentional killing into aggravated murder in the first degree punishable by death. Thus, we are compelled to conclude evidence of the killing itself does not establish the "restraint" necessary to prove kidnapping based on restraint by the use of deadly force under RCW 9A.40-.010(2) (b).
[230]*230It is evident from the foregoing analysis that the State has failed to establish the elements of kidnapping either by the substantial evidence test adopted in Green I or beyond a reasonable doubt as required by Jackson. Accordingly, one of the two critical grounds upon which the charge of aggravated murder in the first degree was based fails. If the charge of aggravated murder in the first degree is to stand, it must be based solely on the charge of first degree rape.
II
Failure of the Trial Court To Instruct on the Subject of a Unanimous Verdict
At trial, the jury was instructed it could find Green guilty of aggravated murder in the first degree if convinced beyond a reasonable doubt that:
defendant caused the death of Kelly Ann Emminger in the course of or in furtherance of rape in the first degree or kidnapping in the first degree[.]
Instruction No. 5. The jury subsequently returned a unanimous general verdict of guilty. The verdict form failed to provide, however, for a separate jury determination of whether the death occurred in the course of or in the furtherance of either rape or kidnapping, the critical elements of aggravated murder in the first degree.
Green contends that absent separate unanimous verdicts on each of the two possible elements of aggravated murder in the first degree it is impossible to determine whether the jury found unanimously that he committed either rape or kidnapping or both. He argues that such a determination is particularly critical if the element of kidnapping is ultimately rejected. He asserts that in such event there is no way to know whether the jury based its verdict upon a unanimous determination that he committed rape. That being the case, he contends the cause must be remanded for new trial on the issue of rape.
A. Standing of appellant to raise the issue of "failure to instruct" for the first time on appeal.
[231]*231At trial, Green failed to request an instruction requiring the jury to return unanimous verdicts on rape and kidnapping. Further, he did not assign as error the trial court's failure to give such an instruction or to provide the necessary verdict forms. The State contends the failure to give an instruction cannot be challenged as error on appeal where, as here, there was no timely request. State v. Rhinehart, 92 Wn.2d 923, 602 P.2d 1188 (1979); State v. Fagalde, 85 Wn.2d 730, 539 P.2d 86 (1975); State v. Perry, 24 Wn.2d 764, 167 P.2d 173 (1946). While the State has properly expressed the general rule, this case falls within an equally well established exception. An appellate court will consider error raised for the first time on appeal when the giving or failure to give an instruction invades a fundamental constitutional right of the accused, such as the right to a jury trial. Const, art. 1, § 21; State v. McHenry, 88 Wn.2d 211, 213, 558 P.2d 188 (1977); State v. Carothers, 84 Wn.2d 256, 262, 525 P.2d 731 (1974). See also State v. McDonald, 74 Wn.2d 474, 480-81, 445 P.2d 345 (1968); State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968).
Green has standing to raise the issue of a failure to give the instruction and verdict in question.
B. Whether jury unanimity is required on the elements of kidnapping and rape.
Green was charged with aggravated murder in the first degree, a specific statutory crime provided in Initiative 316, § 1. Insofar as important here, unchallenged instruction No. 5 informed the jury that to convict one of aggravated murder in the first degree the jury must be convinced beyond a reasonable doubt that:
defendant caused the death of Kelly Ann Emminger in the course of or in furtherance of rape in the first degree or kidnapping in the first degree.
(Italics ours.)
The jury returned a unanimous general verdict finding Green "guilty of the crime of aggravated murder in the first [232]*232degree ..." The verdict form did not provide for a separate jury determination on either of the two critical elements underlying the charge of aggravated first degree murder (i.e., rape or kidnapping).
We agree with Green's contention that absent a separate unanimous verdict on each of the two critical elements of aggravated murder in the first degree, it is impossible to determine whether the jury found unanimously that he committed either rape or kidnapping or both.
In Green I, we mistakenly held it was not error to have instructed the jury in the alternative, requiring no unanimity as to the rape or kidnapping elements, citing State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976). We stated:
The statute involved in this case clearly describes a single offense. It is, however, one which can be committed in one or more ways, neither of which is repugnant to the other. This being so, the jury verdict was required to be unanimous as to the guilt of appellant for aggravated murder, so long as substantial evidence was presented to support each of the alternative circumstances or methods of committing it.
State v. Green, supra at 442. Our reliance on Arndt was largely dependent upon our conclusion that both the rape and kidnapping elements were supported by substantial evidence, a position we now reject insofar as the kidnapping issue is concerned. Our rejection of kidnapping leaves only rape as the remaining element. It is not possible to know whether the jury deemed that element established in the absence of some indication of jury unanimity on that critical issue. Clearly, Arndt is inapposite.
We Eire also precluded from relying on Arndt for a more fundamental reason. In Arndt, we considered a statute which provided that a person could be convicted of grand larceny if he or she committed welfare fraud by any one of several overlapping and often indistinguishable methods. State v. Arndt, supra at 375. The methods were "closely related, connected acts which constitute^] the single offense of fraudulently obtaining public assistance ..." [233]*233State v. Arndt, supra at 382. In the instant case, however, the alternative ways of committing aggravated murder in the first degree are themselves separate and distinct criminal offenses. In order to convict a defendant of either kidnapping or rape, the State must prove every statutory element of that crime beyond a reasonable doubt to a unanimous jury. Where, as here, the commission of a specific underlying crime is necessary to sustain a conviction for a more serious statutory criminal offense, jury unanimity as to the underlying crime is imperative.
In the instant case, the jury instructions and verdict form did not require the jury to unanimously find appellant committed or attempted to commit either first degree kidnapping or rape or both. As instructed, it was possible for the jury to have convicted Green with six jurors resting their belief of guilt upon kidnapping and the other six resting their belief upon rape. Thus, it is impossible to know whether the jury unanimously decided that the element of rape had been established beyond a reasonable doubt.
It should also be observed that our reliance on Arndt was largely dependent upon our conclusion that both rape and kidnapping were supported by substantial evidence and thus were supportive of the combined verdict. As noted previously, in light of Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) and Leonard v. California, 443 U.S. 914, 61 L. Ed. 2d 878, 99 S. Ct. 3105 (1979) we applied an incorrect standard for the review of both elements. This severely undercuts any reliance upon Arndt. Having determined there is not sufficient evidence to support the kidnapping element, the cause must be remanded for new trial on the charge of aggravated murder in the first degree based on the element of first degree rape or attempted first degree rape.
C. Ultimate disposition of the cause.
In Green I we noted there was substantial evidence of rape and observed that even Green did not challenge the sufficiency of that evidence. Thus, the State suggests, that [234]*234since sufficient evidence exists to support the element of rape, there is no need to remand the cause for trial on aggravated murder in the first degree based solely on the element of rape. We do not agree.
Our unanimous observation in Green I was based on a standard of review since rejected by the United States Supreme Court in Jackson v. Virginia, supra; Moore v. Duckworth, 443 U.S. 713, 61 L. Ed. 2d 865, 99 S. Ct. 3088 (1979); and Leonard v. California, supra. Having employed an incorrect standard in Green I, our observation concerning sufficiency of the evidence of rape was, of course, faulty. Whether the element of rape or attempted rape may be proved beyond a reasonable doubt to establish aggravated first degree murder is first and foremost a jury question rather than one to be resolved by an appellate court.
In answer to appellant's motion for reconsideration, the State asserts, without supporting authority, the cause should not be remanded for new trial. It argues that the cause should be remanded for sentence on "the lesser included offense of murder in the first degree under RCW 9A.32.020 which offense was necessarily included in the charge, the instruction to the jury and the verdict in the instant case." We do not agree.
In the case at hand the jury was not instructed on the subject of a "lesser included offense". In general, a remand for simple resentencing on a "lesser included offense" is only permissible when the jury has been explicitly instructed thereon. Based upon the giving of such an instruction it has been held that the jury necessarily had to have disposed of the elements of the lesser included offense to have reached the verdict on the greater offense. See State v. Jones, 22 Wn. App. 447, 454, 591 P.2d 796 (1979); State v. Martell, 22 Wn. App. 415, 419, 591 P.2d 789 (1979); State v. Liles, 11 Wn. App. 166, 171-73, 521 P.2d 973 (1974); see also People v. Codding, 191 Colo. 168, 551 P.2d 192 (1976); United States v. Thweatt, 433 F.2d 1226, 1234 (D.C. Cir. 1970); Austin v. United States, 382 F.2d 129, 142 (D.C. Cir. 1967). In addition, it is clear a case may [235]*235be remanded for resentencing on a "lesser included offense" only if the record discloses that the trier of fact expressly found each of the elements of the lesser offense. See State v. Jones, supra; see also State v. Jackson, 40 Ore. App. 759, 596 P.2d 600, 602 (1979). Obviously, there is no such clear disclosure in this record. We have previously determined there was insufficient evidence to support the kidnapping element and that it is impossible to know whether the jury determined unanimously that the element of rape had been established beyond a reasonable doubt. Accordingly, we cannot say the jury found all the elements of the lesser included offense of first degree murder which is dependent upon proof of the crime of rape. Consequently, the cause cannot be remanded for sentencing on the lesser included offense of first degree murder.
The cause is remanded for new trial on the charge of aggravated murder in the first degree as it is impacted by the element of first degree rape or attempted first degree rape.5
Horowitz, Hicks, and Williams, JJ., concur.