¶1(concurring in part, dissenting in part).
¶2I respectfully dissent from the reversal of Smith’s conviction of first-degree murder while committing kidnapping. I read our prior caselaw to recognize these principles, that (1) the legislature has the exclusive authority to define crimes; (2) the legislature has defined the crime of kidnapping broadly, to include confinement or removal that is minimal and that may even be completely incidental to another facilitated offense; (3) the concerns of the court with the potential for prosecutorial abuse, by overcharging kidnapping to obtain undue punishment, cannot be addressed by changing the legislature’s definition of the crime but only by exercising the court’s supervisory powers to prevent sentences that “are unreasonable, inappropriate, excessive or unjustifiably disparate”; and (4) a prosecutor is free to prosecute under any statute that a defendant violates so long as the prosecutor’s exercise of discretion is not discriminatory. These principles are necessary to maintain the separation of powers between the legislature, the court and the prosecutor.
¶3*36The process by which I arrive at these conclusions is as follows:
¶41. The legislature has the “exclusive authority to define crimes . and offenses and the range of the sentences or punishments for their violation.” Minn.Stat. § 609.095(a) (2002). In State v. Morris, 281 Minn. 119, 123, 160 N.W.2d 715, 718 (1968), we recognized that the legislature’s definition of kidnapping was deliberately broadened to include “limited confinement and restraint.” In fact, Morns noted that the legislature “omitted any qualification as to time or distance” when it rejected the proposed language contained in the American Law Institute’s Model Penal Code, § 212.1, which defined kidnapping to require removal for “a substantial distance” or confinement for a “substantial period.” Id. at 122,160 N.W.2d at 717. The Moms court specifically rejected the view of the New York court that removal or confinement that was incidental to another crime could not support a conviction for kidnapping. Id. at 123, 160 N.W.2d at 718 (citing People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (N.Y.1965)). Instead, the Morriscourt followed the rule in New Jersey, Arizona and California, that a conviction of kidnapping may be sustained even though the kidnapping was incidental to the other crimes. Id.(citing State v. Johnson, 67 N.J.Super. 414, 170 A.2d 830 (N.J.Super.1961); State v. Jacobs, 93 Ariz. 336, 380 P.2d 998 (1963); People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001 (1952), overruled in part by People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, 238 (1969)).
¶5In reaching this conclusion, the Morriscourt recognized that the court’s concern should be focused on the resulting punishment and the court should act when the punishment is unduly harsh. Id.The court noted that the statute permitted punishment only for the most serious crime resulting from a single behavioral incident (citing Minn.Stat. § 609.035 (1968)) and approved the 20-year sentence that was based solely on the kidnapping conviction, not the indecent assault conviction. Id.
¶62. Between Morrisand State v. Crocker, 409 N.W.2d 840 (Minn.1987), the legislature amended Minn.Stat. § 609.035 to provide that a conviction of the crime of kidnapping is specifically excepted from the prohibition against double punishment for a single behavioral incident. Act of May 12, 1983, ch. 139, § 1, 1983 Minn. Laws 378, 378-79. Thereafter, the court of appeals decided that a conviction of kidnapping was supported even though the removal or confinement was connected with the commission of another crime, in that case, rape. State v. Dooley, 380 N.W.2d 582, 585-86 (Minn.App.1986). In Crocker, we referred to our denial of a petition for review in Dooley, stating: “We saw no need then and see no need now to re-examine Morris.” 409 N.W.2d at 845.
¶7In Crocker, we reversed the holding of the court of appeals that removal and confinement that was completely incidental to a rape could not support a conviction for kidnapping. Id.We reinstated the kidnapping conviction, re-emphasizing that the “legislature chose not to use the language of Model Penal Code § 212.1”; that it was “not necessary under our statute to establish that the defendant confined his victim for a substantial period of time or removed her a substantial distance”; and that we had rejected the contention that it was unfair to sustain convictions of both kidnapping and indecent assault because the restraint “was only incidental to the sexual assault.” Id. at 844.
¶8Crocker, like Morris, suggests that the court’s proper focus should be on the sentencing implications of the multiple convictions. Id. at 844-45. The court acknowl*37edged that although the 1983 amendment to section 609.035, authorizing separate sentences for kidnapping and the related crime, coupled with the Morrisholding, might have allowed “unfair exaggeration of the criminality of a defendant’s conduct in those cases where the confinement was completely incidental to the crime committed during the course of the kidnapping,” that problem was avoided when the Minnesota Sentencing Guidelines were amended to provide that the multiple sentences would be concurrent. Id. at 845.
¶9As to the concern that this result “gives prosecutors too much discretion,” the Crockercourt concluded that, under the constitution, a “state legislature is free to punish separately each step leading to the completion of a transaction and punish also the completed transaction” and that a prosecutor is “free to prosecute under any statute that a defendant violates provided that the prosecutor’s exercise of his discretion does not violate the intent of the legislature and is not based on a discriminatory motive relating to race, religion or other arbitrary classification.” Id.(citations omitted).
¶103.After Crocker, this court again addressed the argument that kidnapping cannot be supported by removal or confinement that is “an integral part” of another crime, in that case, robbery and murder. Dunn v. State, 486 N.W.2d 428, 432 (Minn.1992). In Dunn, the removal and confinement were minimal and completely incidental to a robbery and murder; essentially, the evidence was that the appellant pinned the victim to the floor to accomplish the other crimes. We said:
In this case, appellant was convicted of confining the victim to facilitate commission of aggravated robbery. That conviction is supported by the evidence. It does not matter that the confinement was an integral part of the robbery or the murder. This court has found it “significant” that the legislature included no time or distance factors in the kidnapping statute and has upheld convictions based on only small degrees of confinement or movement. Based on the evidence in this case, the jury heard and saw ample evidence that appellant held down [the victim] during the commission of an aggravated robbery. That act would be sufficient to sustain a kidnapping conviction.
¶11486 N.W.2d at 432 (citations omitted).
¶124. The evidence in the present case shows that the confinement of Holder was at least as extensive as the confinement of the victim in Dunn. Unless we are to overrule Dunn, we cannot fairly conclude that the evidence is insufficient to support the elements of kidnapping, as we have previously interpreted them. Appellant’s role in the confinement was definitely “criminally significant in the sense of being more than incidental to the underlying crime.” A fight, coupled with an assault with a flashlight, does not automatically cause a person to commit murder by shooting his gun twice. Appellant had to chase the victim around the room as the victim attempted to flee the dangerous situation and Chaka Smith physically blocked the victim’s escape after the assaults, confining the victim by standing in the doorway and putting his hands on the walls. It was when this confinement occurred, and the victim was trapped, that the assault turned into a murder, and appellant had the time and the opportunity to shoot the victim at close range.
¶135. The legislature was on notice of our interpretation of its definition of the statutory elements of kidnapping in Morris, Crocker and Dunnand did not change the definition of those elements. This court does not have the authority to change the definition. The legislature’s increase in *38the maximum sentence for murder while committing kidnapping does not imply an intent to change the definition of the elements and likewise does not provide a logical basis to change our previous interpretation of the legislature’s definition of those elements.
¶146. The decisions in Morris, Crocker and Dunnarose in situations where kidnapping was charged as a separate offense and the court was concerned with the possibility of multiple sentences arising from the same behavioral incident. That situation presents greater potential for abuse of prosecutorial discretion than in the present case, where kidnapping is only charged as an element of first-degree murder. In Morris, Crocker and Dunn, we were satisfied that we could address the potential of abuse by supervising the sentences. That remedy is also available in the present case, where the implication of including kidnapping as an element of the murder charge is to enhance the sentence for first-degree murder from one of life imprisonment with the possibility of release to one of life imprisonment without the possibility of release. We have the statutory authority to review a sentence “to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.” Minn. Stat. § 244.11, subd. 2(b) (2002). Smith does not argue that this sentence unduly exaggerates the criminality of his conduct or is otherwise unreasonable or excessive.
¶15Having come to this conclusion, I would not address the sentence of Smith’s conviction of first-degree premeditated murder because Smith can only be sentenced on one of the murder convictions and the conviction for murder while committing kidnapping provides a complete legal basis for that sentence. See, e.g., MinmStat. § 609.035 (2002) (providing that a defendant can be sentenced for only one of the multiple offenses arising out of a single behavioral incident and providing an exception for kidnapping but not for murder while committing kidnapping).
¶16(concurring in part, dissenting in part).
¶17I join in the concurrence and dissent of Justice Hanson.