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State v. Kinnane6/15/1995
t 90, 762 P.2d at 167.
Inasmuch as the requisite state of mind of attempted sexual assault in the second degree is a combination of intent and knowledge, see section II.D.1 of this opinion, and the requisite state of mind of sexual assault in the fourth degree is knowledge, see id., it follows that sexual assault in the fourth degree entails "a different state of mind indicating lesser degree of culpability" than attempted sexual assault in the second degree "to establish its commission." See State v. Feliciano, 62 Haw. 637, 639, 618 P.2d 306, 308 (1980); commentary on HRS § 702-208 (1985) ("Intent, knowledge, recklessness, and negligence are in a descendinq order of culpability[.]").
Likewise, "sexual contact" (i.e., "any touching of the sexual or other intimate parts of a person," see supra note 3) is "less serious" than the risk of "sexual penetration" (i.e., "any intrusion of any part of a person's body . . . into the genital . . . opening of another person's body," see supra note 2). Thus, sexual assault in the fourth degree envisions a less serious injury or risk of injury than attempted sexual assault in the second degree to establish its commission. See Woicek, 63 Haw. at 552, 632 P.2d at 657 (ruling that seriousness of injury or risk of injury is generally measured by relative grade or degree of offenses involved).
Finally, the end results of attempted sexual assault in the second degree and sexual assault in the fourth degree are the same. "In both instances the victim . . . is placed in jeopardy of being injured or is being injured by [the defendant's) conduct." Feliciano, 62 Haw. at 639, 618 P.2d at 308. See also Alston, 75 Haw. at 535, 865 P.2d at 166-67 (observing that legislative classification of offenses proscribing "personal injury " creates a distinct end result).
Thus, sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a), satisfies the prerequisites of HRS § 701-109(4)(c) regarding lesser seriousness of injury or risk of injury, lesser degree of culpability, and identity of end results so as to qualify it as an included offense of attempted sexual assault in the second degree, in violation of HRS §§ 705-500 and 707-731(1)(a). That being the case, and attempted sexual assault in the fourth degree being an included offense of sexual assault in the fourth degree pursuant to HRS § 701-109(4)(b), we therefore hold that sexual assault in the fourth degree and attempted sexual assault in the fourth degree are included offenses of attempted sexual assault in the second degree, within the meaning of HRS § 701-109(4)(c).
III. Conclusion
Because sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a), and attempted sexual assault in the fourth degree, in violation of HRS §§ 705-500 and 707-733(1)(a), are included offenses of the charged offense of attempted sexual assault in the second degree, in violation of HRS §§ 705-500 and 707-731(1)(a), we hold that the circuit court erred in refusing, over Kinnane's objection, to instruct the jury with respect to them. We therefore vacate Kinnane's conviction in Count I and remand the matter to the circuit court for further proceedings consistent with this opinion. In all other respects, we affirm the ICA'S decisio
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