dissenting:

I dissent for reasons stated in my dissenting opinion in People v. Henderson, 810 P.2d 1058 (Colo. 1991). I therefore would affirm the judgment of the court of appeals and would hold that the defendant’s conviction for the crime of first degree sexual assault, § 18-3-402, 8B C.R.S. (1986), merged with his conviction for second degree kidnapping involving sexual assault, § 18-3-302(3)(a), 8B C.R.S. (1986).

LOHR and KIRSHBAUM, JJ., join in this dissent.

delivered the Opinion of the Court.

We granted certiorari to determine whether the court of appeals erred in concluding that sexual assault is a lesser-included offense of the class-two felony, second-degree kidnapping, necessitating a merger of the two convictions. People v. McKnight, No. 88CA1066 (Colo.App. July 26, 1990) (not selected for official publication).

The court of appeals relied upon People v. Henderson, 794 P.2d 1050 (Colo.App. 1989), for its holding and for vacating McKnight’s conviction and sentence for first-degree sexual assault. We reversed the court of appeals and held that sexual assault did not merge into second-degree kidnapping involving sexual assault. People v. Henderson, 810 P.2d 1058 (Colo. 1991).

Accordingly, we reverse the court of appeals and remand with directions to reinstate the judgment of conviction and the sentence imposed on Paul Delano McKnight for first-degree sexual assault.