dissenting.
I dissent.
While I recognize our standard of review as set forth in detail by the majority, I cannot agree that there is substantial pro*680bative evidence from which a jury could reasonably find that the defendant intended to perform sexual intercourse.
Under the charging instrument, the State was required to prove that the defendant engaged in an overt act which constituted a substantial step toward performing sexual intercourse and that he possessed the requisite culpability: the intent to perform sexual intercourse. See, e. g., Zickefoose v. State, (1979) Ind., 388 N.E.2d 507. I.C. 35-41-1-2 defines sexual intercourse as “an act that includes any penetration of the female sex organ by the male sex organ”. Therefore, to convict the defendant as charged, there must be substantial probative evidence of his specific intent to penetrate. See, e. g., Scott v. State, (1980) Ind., 413 N.E.2d 902.
Briefly stated, the relevant evidence most favorable to the verdict establishes that the defendant attempted to unzip the victim’s zipper, located in the front of her jeans, after knocking her down and preventing her escape by threatening to kill her if she screamed or tried to get away. When he stopped her escape, he pulled her by the waist. Her zipper, waist and shoulders were the only parts of her clothing and body touched. Even though he threatened to kill her if she screamed or tried to get away, he did nothing to indicate that he intended to perform intercourse as opposed to other uncharged criminal deviate sexual acts.1
In determining if the defendant possessed the requisite criminal intent, the majority correctly states that the jury could consider Dixon’s conduct and the natural and usual sequence to which such conduct logically points. Byassee v. State, (1968) 251 Ind. 114, 239 N.E.2d 586. However, the conduct must also be strongly corroborative of the firmness of the defendant’s criminal intent. Zickefoose v. State, (1979) Ind., 388 N.E.2d 507. In this case, Dixon’s conduct was not strongly corroborative of the firmness of an intent to perform intercourse; rather, his conduct was equivocal. While it clearly indicates some criminal intent, I cannot conclude, as the majority has, that a jury could reasonably determine that the natural and usual sequence to which the above conduct logically pointed was sexual intercourse to the exclusion of other offenses.
Unlike the defendants in Byassee v. State, supra and Himes v. State, (1980) Ind., 403 N.E.2d 1377, Dixon said nothing to indicate an intention to have intercourse. In Byassee there was evidence of sexual comments in addition to forceful and damaging blows accompanying demands that the girl disrobe. Similarly, the defendant in Himes, supra indicated his intentions when he responded to the victim’s statement “I’m a decent girl. What do you want?”, with a “smirk” and the comment “You know what I want”. No such comments were made by Dixon to indicate his intentions. Neither were his acts strongly corroborative of an intention to perform intercourse rather than some other uncharged act of child molesting. To be sufficient to sustain a conviction, a reasonable inference of guilt of the crime charged must be based on more than mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla. Reutz v. State, (1978) 268 Ind. 42, 373 N.E.2d 152, 157, cert. denied 439 U.S. 897, 99 S.Ct. 261, 58 L.Ed.2d 245. From the evidence presented, no reasonable person could have concluded beyond a reasonable doubt that Dixon possessed the requisite culpability for the crime charged. Such a finding would have to be based on conjecture or speculation.
The evidence in the record, however, is sufficient to support a conviction for the lesser and included offense of Battery, a Class B misdemeanor. The elements of this offense are knowingly or intentionally touching another person in a rude, insolent or angry manner. I.C. 35-1-54-4. In comparing the elements of the verdict returned by the jury within the allegations of the information and the instructions, the defendant could be convicted of this offense.
*681On appeal, this court may order a modification of the judgment of conviction to that of a lesser included offense because of insufficiency of evidence on a particular element of the crime. Lane v. State, (1978) Ind.App., 372 N.E.2d 1223. See also Ritchie v. State, (1963) 243 Ind. 614, 189 N,E.2d 575. Ind.Rules of Procedure, Appellate Rule 15(N). I would, therefore, remand this cause to the trial court with instructions to modify the judgment and sentence consistent with this opinion.
Additionally, the giving of instruction 4 is harmful error in view of the majority’s decision on the sufficiency question. Their finding of sufficient evidence of Dixon’s intent to perform sexual intercourse is inconsistent with their finding that the record is devoid of evidence to support a charge of attempted deviate sexual conduct.2 The majority contends that, unlike Shelton v. State, (1936) 209 Ind. 534, 199 N.E. 148, no proof was tendered to support the deviate sexual conduct charge set forth in the erroneous instruction and that Dixon admitted that there was no evidence that he committed deviate sexual conduct. However he did not admit that there was no evidence of an attempt at deviate sexual conduct.
If the evidence of Dixon’s conduct is sufficient to support a jury finding of intent to perform intercourse, it is equally supportive of an intent to perform deviate sexual conduct since he did not indicate, through comment or conduct, what criminal sexual act he intended. The majority states that the evidence is not supportive of both and implies that it could not be because proof necessary to establish the commission of sexual intercourse is far different than that needed to establish the commission of deviate sexual conduct. I agree; however, this case deals with an attempt to commit sexual intercourse. Proof of an attempt to commit intercourse should also be different than that of an attempt to commit deviate sexual conduct but under the majority’s decision on sufficiency, I cannot see how the evidence is sufficient to support one and not the other. If the majority would point out the evidence which suggests an intent to perform intercourse and then state why this evidence does not support an intent to perform deviate sexual conduct, I might be convinced.
Under the circumstances, I believe the jury may well have been convinced that Dixon was guilty of attempted child molesting by means of sexual deviate conduct, and, under the instructions of the court, returned its verdict of guilty solely upon this ground. Consequently, it cannot be said that the erroneous instruction did not prejudice Dixon’s right and bring about a verdict of guilty upon a theory for which there is no basis in the Information upon which he was tried. See, e. g., Shelton v. State, supra.
The majority also suggests that the other instructions read as a whole would direct the attention of the jury to the specific charge concerning intercourse and thereby prevent the jury from being misled by instruction 4. The jury was read an instruction setting forth Count I and was advised to consider the instructions as a whole and in harmony with each other. However, these instructions could not prevent the jury from being misled by the erroneous instruction which expressly stated that child molesting as charged in Count I included deviate sexual conduct.
Thus, if the evidence was sufficient to support a verdict of the crime charged, it was also sufficient to support the additional crime as instructed and not charged. The instructions read as a whole could not overcome the misleading nature of the erroneous instruction. Therefore, the giving of this instruction would have to be harmful error.
I would find the error, however, in the initial holding of sufficiency of the evidence on intent and would remand this cause to the trial court with instructions to modify the judgment and sentence consistent with the initial part of this opinion. For these reasons, I dissent.
. Defendant is permitted to rely on the charge and to limit his defense to what is specifically charged. If there is doubt as to what offenses are charged, the doubt should be resolved in favor of the defendant. Belcher v. State, (1974) 162 Ind.App. 411, 319 N.E.2d 658.
. I.C. 35-41-1-2 defines deviate sexual conduct as “an act of sexual gratification involving a sex organ of one person and the mouth or anus of another person”.