concurring in part and dissenting in part.
We concur with the majority’s well-reasoned and articulate conclusion that there was insufficient evidence at trial of penetration to sustain a finding of delinquency by reason of first-degree child molestation sexual assault. However, we depart from the majority when it concludes that this case should be remanded to the Family Court for entry of judgment of adjudication of delinquency by reason of second-degree child molestation sexual assault (second-degree child molestation), a lesser-included offense.
It is our opinion that this Court’s ruling is grossly unfair to this respondent because, in the Family Court, this case was tried solely as a case of first-degree child molestation sexual assault. There was no argument by either party that the trial justice should make a finding of second-degree child molestation if she found insufficient evidence of first-degree child molestation. Although the trial justice did mention, almost as an aside, that the element of sexual gratification was present, that was neither necessary for her finding of first-degree child molestation nor was it an essential part of her decision. When the case was appealed to this Court, neither party briefed nor argued that the respondent could be adjudicated as delinquent because he committed an act of second-degree child molestation. Indeed, on appeal, the state’s sole argument was that the evidence was sufficient to prove penile penetration to support an adjudication of delinquency on first-degree child molestation. As a result, the unsuspecting respondent has been waylaid by the sua sponte decision of this Court.
We agree with the majority that second-degree child molestation is a lesser-included offense of first-degree child molestar tion. See State v. Silvia, 798 A.2d 419, 424-25 (R.I.2002); State v. Malouin, 433 A.2d 176, 178 (R.I.1981). However, it is our opinion that that does not provide an adequate basis for allowing this respondent to be subjected to further proceedings. In each case decided by this Court involving the interplay between greater and lesser-included offenses, the controversy has been initiated in the trial court, either because a trial justice refused to charge or decide on a lesser-included offense or because, over the defendant’s objection, the trial justice actually did so. See Silvia, 798 A.2d at 424 (citing G.L.1956 § 11-37-9 on joinder of offenses for the trial court’s authority to enter judgment on lesser-included offenses). We are aware of no case in which this Court, on its own initiative and without argument of the parties or a decision in a trial court, remanded for entry of judgment on a lesser-included offense after vacating a conviction based on insufficient evidence.
The majority cites two statutes, G.L. 1956 § 12-17-14 and § 11-37-9, to support its reasoning that respondent was on notice of all lesser-included offenses. Section 12-17-14 says,
“[wjhenever any person is tried upon an indictment, information, or complaint and the court or jury, as the case may be, shall not be satisfied that he or she is guilty of the whole offense, * * * the court or jury may find him or her guilty of the lower offense or guilty of an attempt to commit the offense, as the case *788may be, and the court shall proceed to sentence the person for the offense $ * $ »
In adopting this language, the General Assembly was clearly referring to the trial court, not this Court. Similarly, § 11-37-9 provides that, “If upon trial the jury shall acquit the person of any of the charges of sexual assault and shall find him or her guilty of any of the other offenses, judgment and sentence may be entered against him or her accordingly.” The wording of this statute, likewise, can lead to no rational conclusion other than that the General Assembly was referring to the trial court and only the trial court. Although we do not disagree with the majority that respondent was on notice when he went to trial that he could be found delinquent on any lesser-included offense, that fact does nothing to support the majority’s disposition in this matter.
Rather, the majority claims to derive authority for directing entry of delinquency on the lesser-included offense from this Court’s decision in State v. Eiseman, 461 A.2d 369, 384 (R.I.1983), abrogated in part on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In Eiseman, the defendant was charged with possession with intent to deliver cocaine. Id. at 372. After a justice of the Superior Court denied his motion in limine to suppress the cocaine, the defendant conceded during a bench trial that the quantity of cocaine found in his possession was wholly consistent with personal use, but argued that it was not sufficient to support a conviction for possession with intent to deliver. Id. Nonetheless, the trial justice found the defendant guilty of the greater offense. Id.
On appeal, this Court agreed with the defendant. Eiseman, 461 A.2d at 383. Having arrived at that conclusion, the Court then found itself in a quandary about how to resolve the case. Id. at 383— 84. We observed that, “in a jury trial of a charge of possession with intent to deliver, the trial justice would instruct the jury on the elements of the lesser offense,” and that it could find him guilty of that lesser charge. Id. at 384. This Court further noted that “[cjlearly, this alternative was available to the trial justice in this case if he had determined, as he should have, that the state had failed to prove intent to deliver * * Id. This Court then acknowledged that “[sjtate and federal appellate courts have long exercised the power to reverse a conviction while at the same time ordering the entry of judgment on a lesser-included offense.” Id. (quoting Dickenson v. Israel, 482 F.Supp. 1223, 1226 (E.D.Wis.1980)). But, noting that our Court had “never availed itself of the opportunity to adopt this practice,” it nonetheless determined that it would employ it in Eiseman because the evidence of guilt was overwhelming, because the defendant had conceded at trial and on appeal that the state had proven beyond a reasonable doubt that he indeed possessed cocaine, and that, as a result, there would be no prejudice to the defendant if this Court simply ordered the Superior Court to enter judgment on the lesser-included offense. Id. Therefore, the Court concluded “that a reduction of [the] defendant’s conviction to the lesser-included offense * * * would serve the interests of justice and would not prejudice [the] defendant since the sufficiency of evidence on this charge is uncontroverted on appeal.” Id.
The rationale employed in Eiseman is singular in our jurisprudential history and it simply is not appropriate for the case before us at present. Here, respondent has not conceded culpability, the evidence is not uncontroverted on appeal, and respondent would be manifestly prejudiced on remand. The majority here is signifi*789cantly departing from our well-settled law and embracing what it maintains is the rationale of Eiseman in ordering the entry of judgment on a lesser-included offense. It has done this despite the fact that the Eiseman Court specifically explained that the Court had never before adopted such a practice. We have been unable to find any other case in which we employed that approach after doing so in Eiseman. Furthermore, it is significant that, in each of the cases cited in Eiseman as examples of appellate courts exercising the power to modify a judgment, none of those courts wielded that power sua sponte, as the majority does here. See United States v. Swiderski, 548 F.2d 445, 452 (2nd Cir.1977) (case had been tried twice and government argued that the appellate court should enter judgment on lesser-included offense); Austin v. United States, 382 F.2d 129, 140, 142-43 (D.C.Cir.1967) (federal statute conferred power to modify judgments only where no prejudice results to the defendant; court found that the defendant had a full and fair adjudication on all elements of the lesser-included offense and based his defense on insanity, which the jury clearly rejected); State v. Grant, 177 Conn. 140, 411 A.2d 917, 920 n. 6 (1979) (noting that the jury was instructed on both burglary in the first degree and the lesser-included offense of burglary in the third degree); Miller v. State, 426 A.2d 842, 844 (Del.1981) (the defendant specifically requested instruction on lesser-included offense of second-degree arson and was denied by the trial judge); State v. Smith, 4 Kan.App.2d 149, 603 P.2d 638, 642 (1979) (lesser-included offense of possession is not contested); People v. Monaco, 14 N.Y.2d 43, 248 N.Y.S.2d 41, 197 N.E.2d 532, 534 (1964) (the defendant argued on appeal that the most the facts could support was the lesser-included offense of manslaughter in the first degree).
Thus, by remanding for entry of judgment, the majority’s decision greatly expands the holding enunciated by this Court in Eiseman. As a result, it is our firm opinion that a remand to the trial court for entry of judgment on second-degree child molestation unfairly prejudices the respondent.
For these reasons, we respectfully dissent from the opinion of the majority. We would simply remand the case to the Family Court with instruction to dismiss the petition for delinquency because the prosecution failed to prove the charge that was brought against the respondent.