concurring in part and dissenting in part.
I concur except to section E. to which I respectfully dissent. The elements required to convict Potter of the A felony necessarily include the elements for conviction as a B felony. Conviction for the A felony requires the threat embodied in the B felony and at least one of the three additional components: 1) threatening deadly force; 2) using a deadly weapon while making the threat; or 3) actually causing serious bodily injury. Here, the charging Information for rape states:
Count I: RAPE, Class A Felony
Richard L. Anderson, being duly sworn upon his oath, says that:
On or about the 2nd day of April, 1994, in Noble County, State of Indiana, DANIEL R. POTTER, while armed with a deadly weapon, to-wit: a knife, did knowingly or intentionally have sexual intercourse with Wendy Potter, a member of the opposite sex, the said Wendy Potter being compelled by the imminent threat of force to have sexual intercourse with Daniel R. Potter.
All of which is contrary to the form of the statute in such cases made and provided, to-wit: I.C. 35-42-á-l and against the peace and dignity of the State of Indiana.
The rape statute provides:
A person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when:
(1) the other person is compelled by force or imminent threat of force;
(2) the other person is unaware that the sexual intercourse is occurring; or
(3) the other person is so mentally disabled or deficient that consent to sexual intercourse cannot be given;
commits rape, a Class B felony. However, the offense is a Class A felony if it is committed by using or threatening the use of deadly force, if it is committed while armed with a deadly weapon, or if it re-*105suits in serious bodily injury to a person other than a defendant.
IND.CODE § 35-42-4—1 (1989 Supp.).
Neither the instruction nor the Information refer to subsections (2) and (3) of the statute, which do not apply in the present case. However, both the instruction and the Information specify the elements required for the Class B felony and the additional component required to elevate the charge to a Class A felony. Accordingly, the present ease is unlike the circumstances in Kelly where the two subsections of the confinement statute contained distinct components, i.e., non-eonsensual restraint in place or confinement by removal. In the case of a statute where the alternative components are not dependent upon each other, Kelly would control.
Further, to the extent that the B felony rape is a lesser-included offense of the A felony rape and evidence to convict on the B felony was present, the trial court could have instructed on the B felony, as a lesser included. Our supreme court in Wright v. State, 658 N.E.2d 563, 566-567 (Ind.1995) clarified the appropriate considerations in determining whether an instruction on lesser-included offenses is warranted. The court determined that a lesser-included instruction is warranted when the charging information includes the elements within the lesser offense or the lesser offense is inherently included. Id. Here, the elements of rape, as a B felony, are inherently included in the A felony. See Pennington v. State, 523 N.E.2d 414, 416 (Ind.1988) (rape without threat of deadly force lesser-included offense of rape with threat of deadly force).
For the above-stated reasons, I would find any possible error in the giving of the instruction harmless and would affirm as to the conviction for rape.