concurring in result in part and dissenting in part:
I concur with the majority's conclusion that the trial court's imposition of the presumptive sentence was appropriate. I further concur with the result reached by the majority as it pertains to the trial court's consideration and balancing of aggravating and mitigating cireumstances. I do not agree, however, that the trial court erred in determining that the limitation on the victim's future is a valid aggravator. The trial court could have utilized its discretion to determine that the vietim did not understand the impact that Fitzgerald's behavior was going to have upon her future. A trial court should be able to use its discretion to evaluate this impact from the viewpoint of a mature individual.
I respectfully dissent to the majority's interpretation of Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). In Griffin, where the United States Supreme Court emphasized that searches of a probationer's home must be made on "reasonable grounds," it was doing so in reference to the use of the confiscated evidence in the subsequent conviction of the parolee on a separate criminal charge. I do not believe that Griffin applies in this case where the search condition is designed to insure compliance with conditions of probation, not to serve as the vehicle by which a separate criminal charge will be made.
In order to avail himself of the privilege of serving his time on probation rather than in prison, a probationer agrees to waive a number of rights that a law-abiding citizen may enjoy. For example, when a probationer agrees to be subjected to random blood tests, he is waiving a privacy right. The waiver of the right to be free from unreasonable searches is no more onerous than the aforementioned waiver. I believe that the majority is unreasonably tying the hands of the trial court and the probation department as they attempt to administer the important sentencing alternative of probation.
I also respectfully dissent to the majority's determination that probation provision #5 is overbroad. The provision gives Fitzgerald guidance pertaining to the type of media that might depict the prohibited "pornographic or sexually explicit" content, including "material which depicts partial and complete nudity or sexually explicit language or any other materials related to illegal or deviant interests or behaviors...." The goal of this provision is to prevent Fitzgerald from becoming so sexually aroused that he will repeat the deviate behaviors he engaged in with the victim. With this in mind, it is clear to me that the materials prohibited because they depict "partial and complete nudity" are not the Indianapolis Star, swimsuit or underwear advertisements, or the Sears catalog, but are materials that are intended to titillate and arouse by revealing those portions of a female's body that are normally covered. In addition, I believe that the phrase "illegal or deviant interests or behaviors" is not overbroad. These interests and behaviors are defined in Indiana statutes and are understood by any reasonable person.
I further respectfully dissent to the majority's conclusion that probation provision #14 is overbroad. The provision states that Fitzgerald may not be present at parks, schools, playgrounds, or day care *870centers and then provides a blank for the inclusion of "other specific locations where children are known to congregate in your community." (emphasis supplied). For the blank to include "other" specific locations where children are known to congregate in your community, there must have already been such locations listed. These locations where children are known to congregate are the aforementioned parks, schools, playgrounds, and day care centers. The provision is not overbroad.
The majority notes that Fitzgerald has suggested that state parks may be parks where children are not known to congregate. In leu of living in confinement provided by a prison, Fitzgerald will be allowed at some point to live in society. In living outside the confines of the prison, Fitzgerald will have to exercise some caution. I do not believe that the State is required to conduct a statewide survey of parks to assist Fitzgerald in his newfound freedom.
I would affirm the trial court in all respects.