Retired, dissenting:
In my opinion, the record in this case shows that the trial court committed no error whatsoever in imposing the challenged sentence. Accordingly, the appeal should be disposed of by affirmance.
In reaching this conclusion, I accept the majority view that the recidivist statute, D.C.Code § 22-104(a) (1981), authorizing stiffer sentences for repeaters, can be invoked only if the most recent conviction was based on the same offense or an offense “necessarily included” in the prior conviction. I also agree that the crime of sodomy, as defined in D.C.Code § 22-3502 (1981), does not require any showing of force or violence on the part of the accused, for we have affirmed convictions for that offense, notwithstanding evidence that the persons participating in such conduct did so by mutual consent. Stewart v. United States, 364 A.2d 1205 (D.C.1976). Thus, if the victim of the offense in the case before us had been an adult, I would be inclined to concur in the premise of the majority, viz., that an assault with intent to commit sodomy is not an offense necessarily included in the evidence needed for a consensual sodomy conviction, despite a footnote to the standard jury instructions {see Criminal Jury Instructions for the District of Columbia, No. 4.79 (3d ed. 1978)) to the effect that such assault, D.C.Code § 22-503 (1981), is a lesser-included offense of § 22-3502.
Quite a different question is presented, however, when the complainant in a sodomy assault case is a person under the age of 16. The Code provision defining sodomy, § 22-3502, treats the commission of that act with such a minor as a more serious offense — one punishable by a prison sentence for as long as 20 years — than sodomy with an adult. Moreover, the preceding section, forbidding indecent acts with children, provides that the consent of a child to such conduct shall not be a defense, § 22-3501(c) (1981).
In a recent case, Hall v. United States, 400 A.2d 1063 (D.C.1979), where an appellant was convicted both of a violation of that section (indecent liberties with a minor child) and assault, we described the latter as a “lesser-included offense of sodomy.” Id. at 1064.1 In reviewing a challenge in Hall to consecutive sentences on each conviction, after observing that the consent of *652the child to the indecent liberties charge was no defense, we held the assault a lesser-included offense, saying: “It defies the imagination that anyone could commit an indecent act without also committing an assault, especially given that by law the victim cannot consent to the indecent act.” Id. at 1066. Accord, semble, Whittaker v. United States, 108 U.S.App.D.C. 268, 281 F.2d 631 (1960) (where accused was charged with carnal knowledge of a child, a jury instruction that an assault with intent to commit carnal knowledge was a lesser-included offense, was upheld).
If the perpetration of “any lewd or lascivious act,” § 22-3501(a), upon the body of a minor child amounts to an assault, irrespective of whether force or violence is used, it necessarily follows that the commission of an act of even graver indecency, viz., sodomy, upon the person of a child under 16, also amounts to an assault. It is true that in the ease before us there was some evidence of violence,2 but it is also clear from the Hall rationale, that such testimony was superfluous. In short, the use of threats, force or violence is not an element of the crime of assault to commit sodomy with a person under 16.
If my analysis is correct, the majority decision to remand the case rests on an erroneous premise. Even if the transcript of the earlier trial divulges the interposing of a defense predicated upon the consent of the complainant, the enhanced sentence should be allowed to stand.
Since an assault need not be proved in a case dealing with the attempted sodomy of a child, how can it possibly follow that § 22-503, the statutory provision defining the offense in the instant case, “requires proof of an additional fact which the other [§ 22-3502] does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (emphasis supplied).
. The indictment contained a sodomy count.
. According to the prosecution witnesses, appellant, in calling upon a female friend one evening, was admitted to her home by her 10 year old daughter — the mother having gone out. He then took the little girl into a bedroom, placed one hand over her mouth to muffle screams, and attempted sodomy with her. He might well have succeeded in his objective had not the girl's grandmother entered the bedroom and surprised him.
Had he succeeded, he of course could have been convicted of sodomy. It is somewhat ironic to note that in those circumstances, the propriety of the enhanced sentence could not be questioned — both convictions being based on the same offense, irrespective of whether force was employed — as I am sure my colleagues would concede.