concurring in part and dissenting in part.
I fully concur with respect to Issue II. I concur with respect to Issue I insofar as it invalidates the conviction for Deviate Sexual Conduct under Count III and insofar as it concludes that the evidence is sufficient to support the conviction for Attempted Child Molesting.
I dissent with respect to Issue III and with that portion of the discussion under Issue IV which relates to lack of remorse as an aggravating factor in the case before us.
As to Issue III, by reason of double jeopardy considerations, there should be but one conviction upon the substantive charges embraced within Counts I and II. That conviction is amenable to a 80 year enhanced sentence as a result of the habitual offender determination for a total sentence of 50 years.
All of the substantive charges here were alleged to have occurred on the single occasion when J.W. came into the area where defendant was on the couch. The fondling alleged in Count I was an integral and inseparable aspect of the attempted child molesting charged within Count II. Under the prior decisions of our Supreme Court in Bowling v. State (1990) Ind., 560 N.E.2d 658; Wethington v. State (1990) Ind., 560 *1270N.E.2d 496; and Ellis v. State (1988) Ind., 528 N.E.2d 60; and under previous decisions of this court in Ryle v. State (1990) 2d Dist., Ind.App., 549 N.E.2d 81, trans. denied; Owens v. State (1989) 4th Dist., Ind.App., 543 N.E.2d 673; and Lane v. State (1989) 2d Dist., Ind.App., 539 N.E.2d 488, only one of the two convictions may stand.
I would reverse and vacate the conviction upon Count I and would affirm the conviction under Count II and the enhanced sentence imposed for that conviction.
I agree with the majority that the 50 year sentence is not manifestly unreasonable under the circumstances. I do not, however, agree with the majority's characterization of defendant's statements at sentencing as evidencing a lack of remorse.
It is not an aggravating factor for a defendant, in good faith, to consistently maintain his innocence. Dockery v. State (1987) 4th Dist., Ind.App., 504 N.E.2d 291. But see Stewart v. State (1988) Ind., 531 N.E.2d 1146. It is not unconscionable, even after conviction, for the individual to respectfully maintain innocence and to imply that the trier of fact was mistaken in the determination of guilt. This is particularly so when the facts are in genuine dispute and the question of guilt beyond a reasonable doubt presents an extremely close balancing process with regard to the credibility, or lack thereof, of the various witnesses. In the case before us, the jury could have reasonably chosen to disbelieve the testimony of the young boy and the conclusions drawn from his mother as to the events which took place on that occasion. That they chose the alternative course should not place upon the defendant the absolute duty to abdicate his assertion of innocence.
To hold otherwise would lead one to also logically conclude that a person convicted might not take an appeal claiming insufficient evidence without suffering adverse consequences for his unseemly and disrespectful lack of remorse.
Without question, a defendant under circumstances which clearly reflect guilt, such as his own admission of the crime, should not be heard to proclaim gross insensitivity to the harm caused to his victim or to society. If his words or conduct are the equivalent of "I don't care", he has displayed a lack of remorse.
That is not what occurred here. When at his sentencing, Watkins maintained that J.W. and his wife gave inaccurate, if not perjured, testimony, he was doing nothing more than saying: "I did not do it". He was not saying: "If I did it, so what?". Nevertheless, there were other aggravating factors present which justify the sentence imposed.
I would affirm only the conviction upon the attempt count and the enhanced sentence attributable to the habitual offender determination. I would reverse and order vacated the convictions upon Counts I and IIL.