Watkins v. State

575 N.E.2d 624 (1991)

Arthur WATKINS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 79S02-9107-CR-568.

Supreme Court of Indiana.

July 24, 1991.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

PER CURIAM.

The State charged appellant Arthur J. Watkins with child molesting, Ind. Code § 35-42-4-3(b), a class C felony (count I); attempted child molesting, Ind. Code § 35-41-5-1, 35-42-4-3(a), a class B felony (count II); and child molesting, Ind. Code § 35-42-4-3(a), a class B felony (count III) (West 1986). He was found guilty by a jury and also determined to be an habitual offender.

The Indiana Court of Appeals affirmed the judgment of the trial court except with respect to the conviction on count III. It held that the evidence was insufficient to sustain the conviction on that count. Watkins v. State (1991), Ind. App., 571 N.E.2d 1262.

All three counts alleged acts occurring during an incident between Watkins and his son J.W. on October 19, 1988. Count I alleged that Watkins fondled and touched J.W. with intent to arouse and satisfy his sexual desires. Count II alleged that Watkins attempted to commit child molesting by lying on top of J.W. while the child was nude and face down and that Watkins placed his penis around and against the anal area of J.W.

*625 Watkins asserts that his convictions for these acts, committed within moments of each other as part of one incident, cannot stand under the rule announced in Bowling v. State (1990), Ind., 560 N.E.2d 658. He is correct.

We grant transfer. We reverse the conviction for child molesting as entered on count I. The decision of the Court of Appeals affirming the conviction and sentence on count II and reversing the conviction on count III is otherwise affirmed. Ind.Appellate Rule 11(B)(3).

SHEPARD, C.J., and DeBRULER, GIVAN, DICKSON and KRAHULIK, JJ., concur.