concurring in part and dissenting in part.
I fully concur with the majority as to Issues II and III of the opinion. However, as to Issue I, I would respectfully affirm in part, dissent in part and, accordingly, remand to the trial court.
Referring to Issue I and as to Count I of the charging information, I fully concur with the majority to affirm Curry's convietion for the crime of attempted rape as a class A felony. As to Count II of the charging information, I would also concur with the majority to reduce Curry's convietion for criminal deviate conduct to a class B felony. As to Count III of the information, I would dissent with the majority which ruled to reduce Curry's conviction for burglary as a class A felony to burglary as a class B felony; and, instead, I would dismiss the burglary charge in its entirety. Lastly, as to Count IV of the information, I would dissent from the majority and would rule to vacate defendant's conviction for battery as a class C felony.
My reading of the facts and interpretation thereof differs somewhat from that of the majority. The evidence reveals that while Pounders was asleep on her bed, which consisted of a box spring and a mattress on the floor, Curry jumped on her back and placed his forearm around her neck. The parties struggled on the bed and the more Pounders struggled, the more Curry tightened his grip around her neek. During the struggle and as Pound-ers moved along her bed, she fell off onto the floor. Still in the midst of the struggle, she was pulled back onto the bed and passed out momentarily. She recalls being pushed off the opposite side of the bed onto the floor where she was pinned on her stomach and sexually assaulted.
Her exact testimony regarding the attack was as follows:
I remember waking up to somebody had jumped on my back and had put a forearm around my neck like he was choking © me.... I tried to get up to struggle to try to get loose, but it seemed like every time I struggled, it would get tighter around my neck. ... I was moving along my bed and I had somehow fallen to the right side of my bed and I remember getting pulled back up to my bed and at that time I had passed out....
(R. 172-78).
I passed out and when I woke up, I was getting pushed off of my bed onto the other side of the floor.... The person had laid me on my stomach on the other side of the bed that I was laying on when I was sleeping and he had me pinned-I don't know how-he had me pinned where I couldn't see anything. My hair was flipped to my face where I couldn't see anything. And he pulled my shorts down to my knees or to my *170ankles, I don't remember how far, and he had started to rape me anally....
(R. 174).
He had tried to go into my vagina [the attempted rape], but it didn't go in. And he had gone into my amus and he was in there for a little bit [the criminal deviate sexual conduct], I don't know how long it was, and he had stopped and he had gone back into my vagina for a couple of times [attempted rapel, and then he went out.
(R. 175) (emphasis added).
Additional state's evidence was presented by Suzanne Young, a nurse practitioner, who treated Pounders shortly after the attack and testified to the following:
Question: Okay. And did she give you details of the actual sexual assault?
Young: She stated that there was vaginal penetration and that there was anal penetration.
Question: Okay. And did she say whether or not either of those caused her any pain or any discomfort?
Young: Well, the vaginal, as I recall, was brief. She didn't think that there was ejaculation in the vagina. The anal penetration was painful.
Question: And after she gave you the details of the assault, then did you actually move her into the examining room to actually perform the examination?
Young: Yes.
(R. 364).
Question: And the regults of your examination as far as the pelvic examination, what were those?
Young: The pelvic examination, abdomi-nally she was normal. She was a little tender, but it didn't appear that there was any internal damage. Externally, she had about an eight millimeter hema-toma, which is a little blood-filled soft tissue area, by the anus, which-I don't know if I'm supposed to say that-which would be consistent with blunt force trauma to that area.
Question: Okay. And any other injuries that you noted in her pelvic examination?
Young: The only other interesting finding was that there was fecal debris not only around the anus, but up into the lower area of the vagina.
(R. 866-67).
I believe that the "actual evidence test" as outlined in Richardson v. State, 717 N.E.2d 32 (Ind.1999) provides us with all the guidance needed to resolve this case. When considering a double jeopardy claim under the "actual evidence test," "the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts." Id. at 52. The two challenged offense are the "same offense" when the defendant shows "a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 58.
On the other hand, Curry's convictions for attempted rape, as a class A felony, and criminal deviate conduct, as a class A felony, do not violate Indiana's double jeopardy clause. The actual evidence presented at trial establishes each offense by separate and distinct facts. For example, the essential elements of attempted rape as charged are as follows: (1) Curry; (2) knowingly or intentionally; (8) while using deadly force;11 (4) took a substantial step *171toward having sexual intercourse with Pounders; (5) when Pounders was compelled to submit by foree or imminent threat of force. Inp.Cop®m § 35-41-5-1; 35-35-42-4-1. The essential elements of criminal deviate conduct as charged are: (1) Curry; (2) knowingly or intentionally; (3) while using deadly force; (4) caused Pounders to perform or submit to deviate sexual conduct; (5) when Pounders was compelled by such force or imminent threat of such force. Inp.Cop® § 85-42-4-2.
These offenses are distinguished by the elements requiring "sexual intercourse" and "deviate sexual conduct." " 'Sexual intercourse' means an act that includes any penetration of the female sex organ by the male sex organ." § 35-41-1-26. "'Deviate sexual conduct' means an act involving: (1) a sex organ of one person and the mouth or anus of another person;...." Inp.Cope § 35-41-1-9. The statutes show that attempted rape cannot occur without taking a substantial step towards penetration of the female sex organ by the male sex organ, and criminal deviate conduct cannot occur without the performance of an act involving a sex organ and another's mouth or anus. See Riggs v. State, 508 N.E.2d 1271 (Ind.1987) ("A defendant may be charged with multiple acts of rape and deviate sexual conduct committed upon the same victim when each act requires proof of a specific fact which the others do not.") Pounders testified that Curry attempted both anal and vaginal penetration. However, anal penetration is not "sexual intercourse" under Indiana's rape statute, and vaginal penetration is not "deviate sexual conduct" under the criminal deviate conduct statute. Therefore, other than the use of deadly force, no reasonable possibility exists that the same evidentiary facts used by the jury to establish the essential elements of attempted rape could also have been used to establish the essential elements of erim-inal deviate conduct. Therefore, Curry's conviction for attempted rape as a class A felony should be affirmed and a conviction for criminal deviate sexual conduct as' a class B felony should be imposed.
There is no evidence or serious dispute that the objective of Curry breaking and entering was to commit the sexual attack on Pounders. In Count III of the information, the state charged Curry with committing burglary as a class A felony due to Pounders sustaining bodily injury.12 I ree-ognize that the basis for the enhancement of the burglary charge to a class A felony was based on Curry's infliction of bodily injury and that the enhancements for attempted rape and eriminal deviate conduct were based upon Curry's use of deadly force. However, the actual evidence in this case shows that all the enhancements are based upon the same injurious consequence: the choking of Pounders causing bruising and momentary unconsciousness during the tussle.
I am further puzzled that Curry could commit such a brutal attack upon Pound-ers by the use of deadly force, which cere-ated a substantial risk of serious bodily injury, without also having committed bodily injury. All the injuries sustained by Pounders occurred during the struggle on the bed. There is no evidence of a separate and distinct battery resulting in injury. In essence, and pursuant to Rick-ardson and the application of the "actual evidence test," I believe that the "bodily injury" sustained by Pounders was subsumed into or is a lesser included injury resulting from the same injury inflicted by " Curry's use of "deadly force." Russell v. State, 711 N.E.2d 545 (Ind.Ct.App.1999). Because the enhancement of the crime of burglary to a class A felony was based upon the same injurious consequences that caused the enhancement of the *172crimes of attempted rape as a class A felony and criminal deviate sexual conduct as a class A felony, I would vacate Curry's conviction for burglary. There is a reasonable possibility that the same evi-dentiary facts used by the fact finder to establish the essential elements of the crimes of attempted rape and criminal deviate sexual conduct, both enhanced to class A felonies, may also have been used to establish the essential elements of another challenged offense, i.e., burglary, as a class A felony. Curry was subject to multiple convictions based upon the same injurious behavior as outlined and charged in Counts I, II and III of the information. See also, Campbell v. State, 622 N.E.2d 495 (Ind.1998).
Finally, based upon the facts in this case, I further believe that Curry's convietion for battery as a class C felony as charged in Count IV of the information should be vacated. To convict Curry of battery as a class C felony, the state was required to prove the following: (1) Curry; (2) knowingly or intentionally; (8) touched Pounders in a rude, insolvent or angry manner; (4) which resulted in serious bodily injury13 to Pounders. Ind.Code $ 35-42-2-1,
It is undisputed that Pounders received, by the use of deadly force, multiple injuries to her neck, knees, eyes, ears, and sustained bruising during the attack. Smith v. State, 455 N.E.2d 606 (Ind.1983). However, I am unable to ascertain where in the record the evidence supports more than a single episode of brutality to accomplish the sexual assault upon Pounders. After Pounders was choked and passed out momentarily, she was pinned to the floor and sexually assaulted. There is no evidence of a separate and distinct battery after Pounders regained consciousness. It is obvious to me that the same evidence used in support of the battery causing serious bodily injury is the same deadly force evidence that was used to enhance the charges of burglary, attempted rape, and criminal deviate conduct, all to class A felonies. The actual evidence in this case also demonstrated that there was a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of battery were also used to establish the essential elements of the enhanced charges for burglary, attempted rape, and criminal deviate conduct, all as class A felonies. Therefore, the battery conviction should be vacated.
CONCLUSION
Curry's conviction for attempted rape, as a class A felony, should be affirmed. Curry's conviction for criminal sexual deviate conduct should also be affirmed; however, conviction should be only entered as a class B felony. Both of Curry's convictions for burglary, as a class A felony, and battery, as a class C felony should be vacated. I would hereby remand the case to the trial court for resentencing in accordance with this opinion.
. " 'Deadly force' means force that creates a substantial risk of serious bodily injury." Ind.Code 35-41-1-7. In Smith v. State, 455 N.E.2d 606 (Ind.1983), the victim was thrown down on her back, her assailant put his hand over her mouth and nose, cuiting off her ability to breathe and almost rendered her unconscious before she was sexually attacked. In Calbert v. State, 275 Ind. 595, 418 N.E.2d 1158 (1981), the victim was grabbed, knocked to the floor, sat upon and repeatedly slapped, bitten and threatened by her assailant before being sexually assaulted. In both cases, our supreme court held that the assailants had *171used "deadly force" to effectuate their felonious intent.
. " 'Bodily injury' means any impairment of physical condition, including physical pain." Ind.Code 35-41-1-4.
. " 'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes:
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(2) unconsciousness;
(3) extreme pain; ..." Ind.Code 35-41-1-25.