concurring.
SEPARATE CONCURRING OPINION
I concur in Judge Sullivan's opinion but - nevertheless feel compelled to write a separate opinion for emphasis. Were it not for Buck, I would conclude the offense of child molesting as a touching with intent to arouse or satisfy sexual desires is an included offense of the child molesting as intercourse charge. I would so conclude because the offense fits within the definition of included offense contained in Ind. Code Ann. § 85-41-1-16(8) (Burns Repl. 1985).
In codifying the concept of included offense, the legislature went beyond the traditional definition of the term, ie., an offense established by proof of the same material elements or less than all the material elements required to establish the charged offense. See Ind.Code Ann. § 35-4Al1-1-16(1). The legislature added subsection (3), which defines as an included offense an offense which "differs from the offense charged only in the respect that a less serious harm or risk of harm to the person ... is required to establish its commission."
In my opinion, a credible argument could be made a fondling or touching with intent to arouse or satisfy, as child molesting under IC § 35-42-4-8(b), is an included offense of the child molesting as intercourse charge under subsection (8) of the statutory definition of included offense. The harm is the same: the violation of the sexual integrity of one's person. Although unquestionably a serious harm, the harm in a fondling or touching situation is never*76theless less serious than the harm in the penetration required for sexual intercourse or the harm involved in deviate sexual conduct.
However, Buck does exist and an intermediate court of appeals is bound by the decision of the State's highest court. Therefore, I must conclude Buck is controlling, especially in view of its facts.
The record reveals Buck was charged in Count I with child molesting as a class B felony based upon a claim of deviate sexual conduct. Count II charged Buck with child molesting as a class C felony based upon a fondling or touching with intent to arouse or to satisfy. The evidence offered by the State to meet its burden of proof consisted of four photographs. One exhibit is a photograph of Buck performing an act of cunnilingus upon the victim; a second photograph shows Buck fondling the victim's genital area; the third photograph shows Buck leaning over the victim's genital area; and the fourth photograph shows Buck performing an act of cunnilingus upon the victim.
In light of these facts, which would have sustained the State's charges and the jury's verdicts on the ground two separate, distinct criminal acts occurred, an act which constituted child molesting as a class B felony and an act which constituted child molesting as a class C felony, the supreme court's decision the class C felony charge is not an included offense of the class B felony is indeed compelling. Therefore, I concur.