The State of Washington, Respondent, v. Christopher Leon Smith, Petitioner, 177 Wash. 2d 533

Stephens, J. ¶1 When officers ran the names in a motel registry to check for warrants, they found an outstanding arrest warrant for motel guest Christopher Smith. As they apprehended Smith at the threshold of his motel room, they saw Quianna Quabner, bloodied and limping, inside the room. Officers entered the room and learned that Quabner and her 12-year-old daughter, L.S., had been assaulted in the hours preceding the officers’ arrival; L.S. alleged she had been raped. An immediate investigation ensued, resulting in charges against Smith. Before the case went to trial, however, this court invalidated the practice of random motel registry searches under

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section 7. State v. Jorden, 160 Wn.2d 121, 156 P.3d 893 (2007). ¶2 At a suppression hearing, Smith argued that the evidence supporting the charges against him was fruit of the unlawful registry search and must be suppressed. The trial court allowed the evidence under the inevitable discovery doctrine, which we later invalidated in State v. Winterstein, 167 Wn.2d 620, 220 P.3d 1226 (2009). On appeal, the Court of Appeals nonetheless upheld Smith’s convictions, concluding the evidence against him was admissible under the attenuation doctrine and the independent source doctrine.

The court also rejected Smith’s claim that his convictions for first degree rape and second degree rape of a child, arising from his assault against L.S., violate double jeopardy. ¶3 We affirm the conviction, though on different grounds than the Court of Appeals. We hold that the evidence presented against Smith was admissible because the warrantless search that led to its discovery was justified under an exception to the warrant requirement for actions by law enforcement when lives are in danger.

FACTS AND PROCEDURAL HISTORY ¶4 On the morning of October 22,2006, Officer Lee of the Lakewood Police Department stopped by the Golden Lion Motel in Lakewood as part of the “Crime Free Motel Program.” Clerk’s Papers (CP) at 488 (Findings of Fact and Conclusions on Admissibility of Evidence CrR 3.6). A normal practice under the program was to randomly view the guest registry and run the names against the outstanding arrest warrant database. Id. Officer Lee got a hit with motel guest Christopher Smith. Id. at 489. ¶5 Officers went to Smith’s room and knocked on the door.

He answered and was arrested on the outstanding warrant. During the arrest, while the door was still open and police were outside the room, they “observed an adult female present in the motel room.” Id. She was badly injured, sobbing, limping, and bloodied. Id. Officers entered the room to render aid. Id. They observed the room was in disarray, and there were signs of a struggle. They also discovered 12-year-old L.S., Quabner’s daughter, and were told that Smith had sexually assaulted L.S. Id. Quabner alleged that she had been beaten about the head and body by Smith. Id.

L.S. told police that items used in the assaults were in a dumpster in the motel parking lot. Id. at 490. When police later searched the dumpster, they found bags of bloodied clothing and pieces of braided curtain cord consistent with restraints described by the victims. Id. A warrant-less search of the motel room ensued, as well as interviews with the victims at the motel and later at the hospital. ¶6 Smith was charged with rape, assault, harassment, kidnapping, and child rape, with deadly weapon enhancements.

Before trial, this court invalidated the practice of random searches of motel registries, holding it violates privacy rights under

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section 7 of the Washington Constitution. Jorden, 160 Wn.2d 121. Smith moved to suppress evidence gathered following the illegal Jorden search, including evidence recovered from the motel room, officer observations of the victims, victim testimony, and evidence recovered from the dumpster. The State conceded that any evidence recovered from the motel room itself should be excluded because that evidence was recovered without a warrant. II Verbatim Report of Proceedings (VRP) (Oct. 13, 2008) at 152.

The State argued that the evidence Smith continued to challenge (officer observations of the victims, victim testimony, and evidence recovered from the dumpster) was exempt from the exclusionary rule under the inevitable discovery doctrine because it would have eventually been discovered. The trial court agreed. CP at 492.

Smith was tried by a jury and convicted of first degree rape and second degree rape of a child for his assault on L.S. and first degree assault upon Quabner, as well as two counts of first degree kidnapping and two counts of felony harassment. ¶7 Following trial, this court invalidated the inevitable discovery doctrine in Winterstein, 167 Wn.2d 620. Smith appealed his convictions, arguing that the evidence against him should have been excluded. He also argued that his convictions for first degree rape and second degree child rape, arising from the same act, violate double jeopardy.

In response, the State acknowledged that inevitable discovery — the trial court’s stated grounds for admitting the evidence tainted by the Jorden search — was no longer good law. The State instead urged the Court of Appeals to uphold the admission of the evidence under either the independent source doctrine or the attenuation doctrine. Smith replied that the State had not timely raised the argument and that in any event these doctrines could not save the evidence, in particular because the attenuation doctrine is inconsistent with

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section 7. ¶8 A majority of the Court of Appeals ruled that the evidence against Smith was not fruit of the poisonous tree because it was both independently gained and sufficiently attenuated from the unlawful registry search. Judge David H. Armstrong dissented on this issue, arguing that the court had misapplied the independent source doctrine and agreeing with Smith that the attenuation doctrine is incompatible with

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section 7 protections. The Court of Appeals rejected Smith’s double jeopardy claim. ¶9 Smith filed a petition for review, which we granted. ANALYSIS ¶10 Smith makes two distinct and unrelated challenges to his convictions. First, he claims that the evidence presented against him at trial was illegally obtained in violation of his

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section 7 protections and should have been suppressed. Next, he argues that his convictions for rape violate his constitutional guaranty against double jeopardy. We address each claim in turn. A.

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Section 7 ¶11 The parties agree that this case is not about Fourth Amendment protections, but about

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section 7 protections. As we have stated many times,

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section 7 is often more protective than the Fourth Amendment, particularly where warrantless searches are concerned. See State v. Morse, 156 Wn.2d 1, 9-10, 123 P.3d 832 (2005). Under our state constitution, warrantless searches are per se unreasonable unless one of the narrow exceptions to the warrant requirement applies. Winterstein, 167 Wn.2d at 628. ¶12 Here, the Court of Appeals relied on the doctrines of attenuation and independent source in affirming the trial court’s decision to deny Smith’s suppression motion.

The Court of Appeals agreed with the State that “the victims’ testimonies were admissible under the independent source exception because the emergency aid and community care-taking exceptions acted as intervening factors.” State v. Smith, 165 Wn. App. 296, 309, 266 P.3d 250 (2011). ¶13 Under the independent source doctrine, an unlawful search does not result in the suppression of evidence ultimately obtained using “a valid warrant or other lawful means independent of the unlawful action.” State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005).

But the lawfully gained information must be genuinely independent of the illegal search. Id. at 721 (citing Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988)). ¶14 A majority of the Court of Appeals reasoned that “the officers’ decision to enter the motel room was based on independent, untainted information because Quabner sought their assistance as community caretakers after the officers had arrested Smith and were preparing to leave.” Smith, 165 Wn. App. at 311.

The need to render aid was a “supervening, intervening factor” triggering the emergency aid exception to the warrant requirement. Id. Stated differently, the search that followed was not at all motivated by the illegal Jorden search. See id. ¶15 Judge Armstrong disagreed that the State could rely on the independent source doctrine, noting that “absent the initial, unlawful search of the motel guest registry, the officers had no independent basis for knocking on Smith’s door....

Their observations stemmed directly from the initial, illegal search.” Id. at 331-32 (Armstrong, J., dissenting). ¶16 The points in Judge Armstrong’s dissent are well taken insofar as the independent source doctrine is concerned. It is impossible to extricate the officers’ presence at the motel room threshold and their observation of Quabner from the illegal search the officers performed just prior to arriving at the threshold. Thus, this search cannot be justified by the independent source doctrine. ¶17 But the State’s argument points to another justification.

The State argued before the trial court that the warrantless entry and resulting search was justified by the officers’ community caretaking duties and the need to render emergency aid. See, e.g., II VRP (Oct. 13, 2008) at 150. “We may sustain a lower court’s judgment upon any theory established by the pleadings and supported by the proof.” Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 344, 883 P.2d 1383 (1994).

Although the State filtered the import of the officers’ emergency aid function through the lens of exceptions to the exclusionary rule, it clearly argued that the officers’ duty to render emergency aid was a central justification for the officers’ actions and built a record supporting that assertion.

We therefore consider this alternative theory. ¶18 The undisputed facts of this case make it clear that a warrantless, limited intrusion into the motel room was justified by the emergency exception to the warrant requirement, also known as the “save life” exception, a subset of the community caretaking exception to the warrant requirement. See State v. Acrey, 148 Wn.2d 738, 748, 64 P.3d 594 (2003) (describing emergency aid and routine checks on health and safety as instances of community caretaking).

Washington courts have held on many occasions that law enforcement may make a warrantless search of a residence if (1) it has a reasonable belief that assistance is immediately required to protect life or property, (2) the search is not primarily motivated by an intent to arrest and seize evidence, and (3) there is probable cause to associate the emergency with the place to be searched. 12 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure § 2734, at 649-51 (3d ed. 2004) (collecting cases analyzing warrantless searches under the “save life” exception); State v. Stevenson, 55 Wn.

App. 725, 780 P.2d 873 (1989), review denied, 113 Wn.2d 1040, 785 P.2d 827 (1990). Notably absent from this standard is a requirement that the officer’s initial presence be justified, in contrast to many other exceptions to the warrant requirement, including a plain view search. State v.

Hatchie, 161 Wn.2d 390, 395, 166 P.3d 698 (2007) (explaining that a plain view search occurs when officers have a legitimate reason to be in an otherwise protected area). ¶19 When we bear in mind the relevant standard, it was reasonable for the officers to believe that immediate assistance was required to protect life after they observed the badly injured Quabner inside the motel room.

The search was not motivated by any investigatory purpose, as the trial court made an undisputed finding that the “police entered the motel room to render aid to [Quabner] and to ensure the safety of any other occupants in the motel room and to secure any weapons.” CP at 489. There is no question that probable cause existed to associate the emergency with the place to be searched.

Consequently, on this record, we have no trouble concluding that the emergency aid or “save life” exception applied to this warrantless search. ¶20 As to the scope of such a search, the admissible evidence is limited to that which was in plain view when officers entered to perform their emergency aid function. Stevenson, 55 Wn. App. at 729-30; State v. Lynd, 54 Wn. App. 18, 19-23, 771 P.2d 770 (1989) (evidence plainly observed after officer dispatched to respond to “911 hang-up” and entered home under emergency aid exception not suppressed); State v. Raines, 55 Wn.

App. 459, 461, 464-65, 778 P.2d 538 (1989) (evidence recovered after officers dispatched to respond to report of domestic dispute and entered home under emergency aid exception not suppressed). In Stevenson, officers received information that a murder had been committed at the defendant’s home. Stevenson, 55 Wn. App. at 728. Upon arrival at the home, an officer could see a body through a window. Id. When backup arrived, officers entered the home and discovered a grisly crime scene with multiple murders. Id.

Officers first swept the home to check for victims who might yet need medical aid, noting numerous evidentiary items in plain view such as pools of blood and signs of a struggle. Id. Having confirmed that all the victims were dead and no immediate threat was present, the responding officers waited outside for additional members of their investigative unit to arrive. Id. The team set about collecting evidence over the next several hours without first securing a warrant. Id.

The defendant moved to suppress the recovered evidence, arguing that once the emergency created by the discovery of a crime scene ended, additional evidence should have been secured by warrant. Id. at 729. ¶21 The Court of Appeals in Stevenson disagreed. It held that any fruit of the search that was in plain view need not be excluded. Id. at 729-30. It further held that “[t]he second entry [of the investigative team] followed hard on the heels of the initial sweep and was nothing more than a continuation of the prior lawful search.” Id. at 731.

The Court of Appeals cautioned, however, that the second search could not exceed the scope of the earlier, legitimate intrusion and that any evidence recovered that was not in plain view must be suppressed. Id. at 732. ¶22 Here, the question is whether the evidence used at trial and challenged by Smith — i.e., officer observations of the victims, victim testimony, and evidence recovered from the dumpster — was admissible as a result of the “save life” exception. We hold that it was. Officer observations of the victims were part of the plain view sweep of the motel room following entry to render aid.

Discovery of the victims was also part of the officers’ plain view observations, and hence the testimony at trial of the victims was not tainted by any illegality. ¶23 As to the evidence recovered in the dumpster, the record indicates that L.S. volunteered this information contemporaneously with the officers’ efforts to render aid and ascertain the nature and extent of the victims’ injuries. That is, officers did not learn of the evidence in the dumpster in the course of their investigation into the incident but as part of performing their caretaking function.

See CP at 490 (findings of fact suggest that officers learned of the evidence in the dumpster in the course of rendering aid, before calling for medical assistance); IVRP (Oct. 9, 2008) at 57-58, 110, 120 (officer testimony indicating that responding officers, not investigating officers, learned of the dumpster evidence in the minutes before the ambulance arrived). ¶24 The victims’ testimony was also properly admitted at trial. We are dubious of Smith’s claim that Quabner’s and L.S.’s testimony can be characterized as “fruit” of the search.

As the Court of Appeals observed, it is reasonable to assume that as victims of Smith’s acts, these witnesses would be willing to testify. Smith, 165 Wn. App. at 315. And, there is a constitutional dimension to the right of crime victims to participate in criminal proceedings. See Wash. Const, art. I, § 35.

Moreover, there is no indication in the record that the search of the motel room, which we conclude was valid under the “save life” exception to the warrant requirement, had any effect on the victims’ testimony. f 25 In sum, the evidence admitted at Smith’s trial was legally obtained under the “save life” exception to the warrant requirement. We affirm Smith’s conviction. B.

Double Jeopardy ¶26 Smith argues that his convictions violate double jeopardy because he was convicted of both first degree rape and second degree rape of a child arising from the same assault against L.S. ¶27 We review claims of double jeopardy de novo. State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009). Both the federal and state constitutions prohibit a person from being punished twice for the same offense, although “[w]ithin constitutional constraints” the legislature is free to define crimes and punishments as it sees fit. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995).

To analyze a double jeopardy claim, we first examine the statutory language to see if the applicable statutes expressly permit punishment for the same act or transaction. If the statutes do not speak to multiple punishments for the same act, we next apply the “same evidence” analysis. Even if the two statutes pass the same evidence inquiry, multiple convictions may not stand if the legislature has otherwise clearly indicated its intent that the same conduct or transaction will not be punished under both statutes. Hughes, 166 Wn.2d at 681-82 (footnote omitted).

As Hughes notes, this test is variously called the “ ‘same evidence test’ ” or the “ ‘Blockburger test.’ ” Id. at 682 n.6 (citing Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). ¶28 The Court of Appeals held that Smith’s rape convictions do not violate double jeopardy because while the crimes are the same in fact, they are not the same in law. Smith, 165 Wn. App. at 320.

The Court of Appeals reasoned that first degree rape requires proof of forcible compulsion and use of a deadly weapon, while second degree rape of a child requires proof only of the victim’s status based on age and marriage. Id. ¶29 Smith argues that several cases from this court and the Court of Appeals instruct that a force-based sex offense cannot be punished as a separate crime from a status-based sex offense. See Suppl. Br. of Pet’r at 30-32 (citing State v. Birgen, 33 Wn.

App. 1, 2, 651 P.2d 240 (1982) (suggesting that a conviction for third degree rape and statutory rape in the third degree would violate double jeopardy if not for the fact that the defendant was given concurrent sentences, which under the law at the time negated any double jeopardy problem); State v. Elswood, 15 Wash. 453, 454, 46 P. 727 (1896) (accepting without comment a forcible rape and statutory rape charged as a single crime); State v. Roller, 30 Wash. 692, 696-97, 71 P. 718 (1903) (explaining that rape of a child presumes force); State v.

Adams, 41 Wash. 552, 553, 83 P. 1108 (1906) (same as Roller), State v. Dye, 81 Wash. 388, 389-90, 142 P. 873 (1914) (holding that an acquittal on child rape precluded a subsequent prosecution for forcible rape based on the same act)). f 30 Notably, among the cases Smith relies upon is State v. Allen, 128 Wash. 217, 222 P. 502 (1924). Smith describes Allen as holding that an “allegation of forcible rape against [a] 13-year-old charges a single crime.” Suppl. Br. of Pet’r at 32. While this is an accurate

summary of Allen so far as it goes, there is more. While recognizing only a single rape charge, the court in Allen observed: It is at once apparent, of course, that the provisions of the one

section of the statute overlap the provisions of the other — that is to say, a single act may be a rape by force and a rape because of the age of the victim of the offense — but this circumstance does not prohibit a prosecution founded on either

section of the statute. There is no such direct conflict that the one impliedly repeals the other, and in such cases the prosecuting officer has the right of election to proceed under either. 128 Wash, at 219. As we later recognized, the Allen court said nothing about whether the prosecutor could have, alternatively, elected to proceed under both sections. See State v. Powers, 152 Wash. 155, 160, 277 P. 377 (1929) (explaining that the Allen court did not intend to suggest that the prosecutor must elect between the two crimes).

Likewise, it is not entirely clear that Powers treats forcible rape and statutory rape as the same crime for the purposes of double jeopardy. There we observed that “ [t]he crime of rape by force and the crime of rape because of the age of the victim, are defined, it is true, in separate sections of the statute, but this does not make a single act which is violative of both sections, separate crimes.” Id. We further explained that “[t]he pleader may charge the offense as a rape by force and as a rape because of age, and if he proves either or both, he satisfies the statute and the defendant may be convicted.” Id.

It is not quite clear what we meant by “the statute.” These cases reveal that we have not been entirely consistent in explaining our view of the propriety of convicting a defendant for both a force-based sexual assault and an age-based sexual assault. But, we do not read Allen and Powers as supporting Smith’s view. ¶31 More recently, we considered the imposition of multiple convictions for sex crimes arising from the same act in Calle, 125 Wn.2d 769 and Hughes, 166 Wn.2d 675.

In Calle, the defendant was convicted of first degree incest and second degree rape for the same act of intercourse with his minor stepdaughter. Calle, 125 Wn.2d at 771-72. This court held that the convictions did not violate double jeopardy, reasoning that the crimes were not the same under the Blockburger test because “[i]ncest requires proof of relationship” whereas rape “requires proof of force.” Id. at 778. In Hughes, the defendant sexually assaulted a 12-year-old child with cerebral palsy.

He was convicted of second degree rape based on the subsection dealing with the victim’s inability to consent due to physical helplessness or mental incapacity and second degree child rape. Hughes, 166 Wn.2d at 679. The court reasoned that both crimes “require proof of nonconsent because of the victim’s status.” Id. at 684. Under the Blockburger test, we held that “the two offenses are the same in fact and law” and double jeopardy barred a conviction on separate offense.

Id. at 683-84. ¶32 Distinguishing Hughes, the Court of Appeals here explained that the sex offenses in question were not the same in law because one crime requires proof of force with use of a deadly weapon, while the other requires proof of the victim’s status based on age. Smith, 165 Wn. App. at 320. Likewise, the Court of Appeals reasoned that Calle supported its decision in that it found no double jeopardy violation where the crimes required proof of different elements. Id. at 322. ¶33 The Court of Appeals’ reasoning is sound.

The elements of first degree rape and second degree rape are dissimilar enough to satisfy the Blockburger test. However, we must acknowledge that, as Smith notes, both Hughes and Calle spoke favorably of Birgen. Suppl. Br. of Pet’r at 30-31 (citing Calle, 125 Wn.2d at 775, 779-80 (discussing Birgen) and Hughes, 166 Wn.2d at 685-86 (same)). And, as Smith notes, the Court of Appeals here did not acknowledge Birgen at all. ¶34 Birgen makes categorical statements about double jeopardy and the sex-based offenses at issue here: Birgen, 33 Wn. App. at 14.

Birgen recognized that the Blockburger test resolved the question before it in the State’s favor: We conclude that the Legislature has not authorized multiple rape convictions arising out of a single act of sexual intercourse violating more than one of the statutory sections defining rape and statutory rape. The history of the rape statutes shows legislative intent and judicial recognition that both the rape and the statutory rape statutes define a single crime of rape with the degree of punishment dependent on the underlying circumstances. The State is correct that under the “same evidence” test of State v.

Roybal, 82 Wn.2d 577, 512 P.2d 718 (1973) and Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), rape in the third degree and statutory rape in the third degree would not be the “same offense.” The Blockburger test, however, is merely one means of determining legislative intent. Id. at 7. Because the Blockburger test favored multiple convictions, the Birgen court conducted its own analysis of legislative intent, which it concluded counseled against adherence to the Blockburger test and in favor of finding a double jeopardy violation.

Id. at 8-14. ¶35 We have made it clear on more than one occasion that the Blockburger test is a rule of statutory construction applied to discern legislative intent in the absence of clear indications to treat one act as constituting separate crimes. See Calle, 125 Wn.2d at 778; State v. Kier, 164 Wn.2d 798, 804, 194 P.3d 212 (2008); State v. Kelley, 168 Wn.2d 72, 77, 226 P.3d 773 (2010). The Court of Appeals in Birgen seemingly overlooked this admonition.

The legislative history identified by the Court of Appeals in Birgen is insufficient to negate the Blockburger test and compel its conclusion that the legislature clearly intended to treat crimes of rape based on use of deadly force and crimes of rape involving status as the same crime for the purpose of double jeopardy. For this reason, we must now disapprove of Birgen. ¶36 As for the other cases cited by Smith (and, for that matter, Birgen), all can be distinguished.

Assuming that Roller and Adams are correct that rape of a child presupposes force, child rape laws do not require force by deadly weapon, as does the first degree rape charge here. And these cases, as well as Dye, 81 Wash. 388, predate Block-burger by several years. ¶37 In sum, while the case law has not been entirely consistent, Calle is a close analogue here. Adopting the Court of Appeals’ analysis of double jeopardy under the Blockburger test, we conclude Smith suffered no double jeopardy when he was convicted of first degree rape and second degree rape of a child.

CONCLUSION ¶38 The evidence admitted at Smith’s trial was lawfully obtained under the “emergency aid” or “save life” exception to the search warrant requirement. Smith was not placed in double jeopardy when he was convicted of first degree rape and second degree rape of a child. Accordingly, we affirm his convictions. C. Johnson, Owens, and Wiggins, JJ., concur. An additional note about chronology: The attacks in question began late in the night on October 21 and stretched into the early hours of October 22. By Quabner’s account, she was exhausted and drained when the attacks ended.

She and L.S. fell asleep and were awakened by the officers’ arrival. See VII Verbatim Report of Proceedings (Oct. 22, 2008) at 395-96. Justice Chambers’ dissent complains that under this rule, the search here fails under the first element because “the officers were not reviewing the motel registry or knocking on that motel door because they believed someone likely needed assistance.” Dissent at 557. We do not apply the emergency aid exception to a point in time preceding the knowledge that emergency aid was necessary.

Certainly, the officers here knocked on the door as a result of an illegal search, motivated by an intent to arrest. But once the door was open, they entered the motel room in order to render emergency aid to Quabner and the evidence gathered thereafter was a consequence of that justified entry. The dissent also appears to take issue with our use of the phrase “save life exception.” Dissent at 557-58. We use this phrasing in the context of our already-recognized emergency aid doctrine to highlight the factual predicate of this very narrow exception.

The “save life” exception to the warrant requirement in this context does not function much differently from the Court of Appeals’ independent source rule analysis. But for the sake of analytical clarity, we think it better to ground the justification for this search in a warrant exception, rather than in a nullification of the exclusionary rule.

Because the “save life” exception to the warrant requirement does not require that an officer’s initial presence be legitimate, when the officers here crossed the motel door threshold to render emergency aid, their actions were not tainted by the illegality stemming from the Jorden search. The Court of Appeals was correct insofar as it described the observations of Quabner as “intervening circumstances” justifying the entry and a limited search of the motel room, Smith, 165 Wn.

App. at 311, but tying such a justification to the independent source rule is problematic for the reasons Judge Armstrong identified in his dissent. Such an expansive view of the independent source rule could readily lead to mischief where, for example, a plain view observation of drugs following an illegal search becomes an independent source justifying an exception to the exclusionary rule.

Our decision today, however, acknowledges that an independent justification for the warrantless search exists under the “save life” exception, a very limited and specific exception that recognizes law enforcement must be able to respond to crimes against persons and prosecute those crimes. Having affirmed the conviction for the reasons articulated here, we need not consider the State’s attenuation doctrine argument, including the State’s request that we reconsider State v. Afana, 169 Wn.2d 169, 233 P.3d 879 (2010).

While the court in Hughes spoke favorably of Birgen’s recitation of the legislative history, Hughes, 166 Wn.2d at 685-86, Hughes’ reliance on Birgen was dicta because Hughes, using the Blockburger test, found a double jeopardy violation. It was therefore unnecessary to search the legislative history for indications that the legislature intended the crimes be punished separately. Id. at 681-82. Moreover, the entire discussion of force seems arcane. Certainly, consent is sometimes relevant and the law presumes a child to be incapable of consent.

But, in modern jurisprudence regarding sex crimes, force is no longer the touchstone for evaluating a claim of sexual assault. See, e.g., RCW 9A.44.060(l)(a) (rape in the third degree) (criminalizing sexual intercourse under circumstances not involving force (i.e., first and second degree rape) but where the victim did not consent). In this regard, Roller and Adams may represent an antiquated view of our understanding of sexual assault.