concurring in result.
For the reasons spelled out in Justice Dickson’s opinion, I agree that sexual battery is not, in the abstract, necessarily a lesser included offense of attempted rape. Wright v. State, 658 N.E.2d 568 (Ind.1995), for purposes of whether an instruction on the lesser offense is necessary, describes this relationship between two crimes as an “inherently” lesser included offense. I also agree wholeheartedly that the Court of Appeals was incorrect in concluding that the statute amounts to a delegation to the federal courts to conform our substantive law to federal constitutional doctrine. Rather, for the reasons set forth in my concurrence in Richardson v. State, 717 N.E.2d 32, 57 (Ind.1999), in my view the statute is a codification of the law as it was understood in 1975. And, as also elaborated in Richardson, that law requires reference to more than the statutory elements to determine whether one “offense” is a “lesser included” offense of another.
Although I agree with Justice Dickson’s analysis of the statute, in my view a determination that sexual battery is not inherently a lesser included offense of attempted rape is not the end of the analysis. Just as in dealing with instructions, to determine whether an offense is lesser included for purposes of the statute, we need to determine whether one crime is, to use Wright’s terminology, “factually” a lesser included offense of the other. As I observed in Richardson, a comparison of the two criminal statutes cannot be the end of the analysis. If it were, a defendant could not be convicted for the murder of victim A on day 1 and also for murder of victim B on day 2. Although the statutory elements of these two offenses are the same, we need to look at the facts to see whether we have one or two crimes. Similarly, the substantial step in the attempted rape may or may not be the touching required for the sexual battery. Without looking to the facts of the case and the charging instruments, this cannot be determined.
When we do look at the facts in this case, we see that Emery committed two separate crimes, albeit in relatively close temporal proximity. He first groped the victim’s breast and then became more violent by pinning her down and pulling her shirt out of her pants, either of which could clearly have been the substantial step in the attempted rape. These events comprise two separate crimes, and so I concur in affirming the convictions. But I believe it is inescapable that a determination of a “lesser included” offense in some cases requires a look at the charging instrument, and sometimes also the instructions and the evidence, depending on how the crime was charged. This is an example of when that is required.
SELBY, J., concurs.