concurring in result.
As to Issue I, I concur but would advance a somewhat different or expanded rationale for affirming the refusal of the instruction on the Class B misdemeanor battery as an included offense of rape.
As tendered, Angle’s instruction was confined to simple battery as a Class B misdemeanor. In this regard it would have been misleading to the jury in implying that the jury must find him guilty of rape, or of a Class B misdemeanor battery, or acquit. Under the facts of this case, it would have been possible for the jury to find Angle not guilty of rape but guilty of a battery of a higher degree than merely the Class B misdemeanor battery. Therefore it was not error to refuse the instruction.
In this regard, I would emphasize that the battery instruction issue relates solely to the question of whether the offense of battery is included in the rape charge and would disagree with the majority that “[njeither party’s account of the incident suggests that a battery without a rape occurred”, if such statement is construed to mean that the only battery which took place was that which was an integral part of the rape. Were such the true state of the facts, there could not be a rape conviction and a separate battery conviction. Quite obviously there were several separate batteries of the victim on this occasion: (1) In the bedroom he knocked her to the floor and kicked her; (2) In the baby’s room he repeatedly hit her in the face. Only thereafter, after going downstairs, did the rape occur during which Angle held the victim’s hands above her head. It is apparent that the separate battery charge as a Class A misdemeanor, upon which there was a separate conviction, was premised upon the allegation that Angle hit, kicked and grabbed the victim by the throat, causing bodily injury.
With respect to Issue II, I respectfully disagree that Indiana law restricts double jeopardy analysis to a comparison of the statutorily-defined elements of the two respective offenses. It does not do so. The manner in which the offenses are charged may often implicate double jeopardy prohibitions against multiple convictions. Moore v. State, (1998) Ind.App., 691 N.E.2d 1232.
The majority treatment, in its element matching analysis, implies that if the only confinement were that which was included within and necessary to accomplish the rape, the two convictions could co-exist. Such implication, if intended, would be in error. Multiple convictions could no more co-exist in that setting than could multiple convictions be validated for battery and rape where the only battery was the “rude, or insolent touching” which was also the forcible penetration necessary to establish the rape. Webster v. State (1994) Ind., 628 N.E.2d 1212; Taylor v. State, (1998) Ind.App., 699 N.E.2d 270.
Here, however, as noted by the majority in footnote 6, there was a separate and independent confinement of the victim in the baby’s room prior to the rape. For this reason, I agree that the conviction for confinement and the conviction for rape do not violate double jeopardy considerations.
With regard to the sentencing issue under III, Angle is correct in his assertion that “the need [for] correctional or rehabilitative treatment that can best be provided by commitment to a penal facility” and “imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime” are inadequate aggravators. I do not believe that the record adequately demonstrates the trial court’s reason for using those overly-broad statutory enhancing factors.
I would further note that case precedent exists in Indiana which permits use of the “depreciate the seriousness of the crime” factor not only when a sentence lesser than the presumptive is contemplated, but also if the court specifically states that a sentence of any less than the enhanced sentence being imposed would “depreciate the seriousness of the crime”. In the latter situation thé factor is not deemed to be a recitation of the specific statutory factor, but is rather an independent sentencing factor not precluded by the statutory list of aggravators because that list is not exclusive. Ector v. State (1994) Ind., 639 N.E.2d 1014, reh’g denied.
*363Be that as it may, there are adequate aggravators other than the two which are inadequate bases for the enhanced sentences, Angle’s prior criminal record and the fact that he was on probation at the time he committed these offenses are adequate bases, albeit minimally so, for the sentences imposed.8
. If there were only one valid aggravating circumstance set forth, I would question the fact that not only were three of the four convictions enhanced, but all four were ordered to be served consecutive to each other. See Walton v. State (1995) Ind., 650 N.E.2d 1134. As noted in Staton v. State (1994) Ind.App., 640 N.E.2d 741, 743, trans. denied, "ordinarily, a single aggravating factor should not be used to both impose an enhanced sentence and consecutive sentences.”