ON PETITIONS FOR REHEARING
Judge ROTHENBERGdissenting in part from the denial of the Plaintiff-Appellee’s petition for rehearing.
I would grant the Plaintiff-Appellee’s petition for rehearing on Part II of the majority opinion. I continue to agree, however, with the views expressed in the remainder of that opinion.
In People v. Rael, 199 Colo. 201, 612 P.2d 1095 (1980), the defendant was charged with the same section of the first degree assault statute as is involved here and also was charged with the predicate offense of first degree burglary. After being convicted of both first degree assault and first degree burglary, Rael appealed, claiming that he could not be convicted of both offenses since they had merged.
Our supreme court rejected his contention that there had been a merger. It stated:
[F]irst-degree assault requires proof of serious bodily injury, which first-degree burglary does not, and first-degree burglary as charged requires proof of the intent to cause bodily harm, which the form of first-degree assault charged here does not. Thus, both crimes require proof of an additional fact not necessary in proof of the other. People v. Rael, 199 Colo, at 204, 612 P.2d at 1097.
Similarly, here, first degree assault requires the element of serious bodily injury which is not an element of sexual assault on a child, and sexual assault requires proof of sexual contact with a minor child which is an element not contained in the crime of first degree assault. Thus, I con-*556elude Rael, is dispositive of defendant’s assertion that his two convictions merged.
Nor am I persuaded that People v. Bartowsheski, 661 P.2d 235 (Colo.1983) and Boulies v. People, 770 P.2d 1274 (Colo.1989) have eroded the vitality of Rael and now require a different result.
In Bartowsheski and Boulies, our supreme court held that the lesser crimes of robbery and aggravated robbery merged into the greater crimes of first degree felony murder. However, the felony murder statute reflects a policy judgment by the General Assembly that a person who engages in inherently dangerous conduct which results in the death of another will be punished in accordance with the serious results of that conduct, even if the death was an unintended consequence of the original behavior.
Here, the felony murder statute is not involved. And, in contrast to the circumstances at issue in Bartowsheski and Bou-lies, the defendant here claims that his conviction for sexual assault on a child, a class three felony in violation of § 18 — 3— 405, C.R.S. (1988 Repl. Vol. 8B), is a lesser included offense and therefore merges into his conviction for first degree assault committed under provocation, a class five felony in violation of § 18-3-202, C.R.S. (1988 Repl. Vol. 8B).
Defendant cites to no authority in any jurisdiction that has upheld the anomalous result of allowing a more severe felony to be categorized as an included offense of a less severe felony. By definition, lesser included crimes have always been crimes of lesser seriousness, not merely crimes with fewer included elements. See People v. Skinner, 825 P.2d 1045 (Colo.App.1991). Cf. People v. Henderson, 810 P.2d 1058 (Colo.1991) (sex assault not a lesser included crime of second degree kidnapping).
In summary, given the important factual distinctions between Rael and the Bar-towsheski-Boulies line of cases, I am not persuaded that our supreme court has implicitly overruled Rael. I also cannot see how a class three felony logically can merge into a class five felony as a lesser included offense.
I therefore would hold that, by application of People v. Rael, supra, the defendant’s conviction here for sexual assault on a child is not a lesser included offense of his conviction for first degree assault. Thus, I would not reverse the sexual assault on a child conviction on that basis.