Culver v. State

Attorneys for Appellant

Matthew R. Effner

Daniel L. Weber
Terre Haute, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Andrew L. Hedges
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

KELLY E. CULVER,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
) Supreme Court No.
) 84S00-9801-CR-18
)
)
)
)
)
)

APPEAL FROM THE VIGO SUPERIOR COURT 1
The Honorable Michael H. Eldred, Judge
Cause No. 84D01-9705-CF-151

ON DIRECT APPEAL

April 10, 2000

SULLIVAN, Justice.

Defendant Kelly Culver was convicted of Murder for stabbing his victim
to death. He claims that the trial court erroneously admitted DNA and
blood evidence and that his counsel was ineffective for failing to object
to its admission. He also contends that the jury should have been given
the opportunity to convict him of the lesser-included offense of voluntary
manslaughter and that the judge sentenced him based on invalid
considerations. We find no error in the admission of the evidence. Nor do
we find that counsel was ineffective, that the jury was incorrectly
instructed, or that the sentence was improperly imposed.

This Court has jurisdiction over this direct appeal because the
longest single sentence exceeds 50 years. Ind. Const. art. 7, ' 4; Ind.
Appellate Rule 4(A)(7).

Background

The facts most favorable to the verdict indicate that in the early
morning hours of May 11, 1997, Defendant left a neighbor=s house
intoxicated and was followed home by his girlfriend, Lori McCullough.
Defendant began arguing with McCullough. When these arguments escalated,
McCullough called her brother, Brad Peters, to come pick up her and her
children.[1] Defendant threatened to fight Peters and then rummaged
through a kitchen drawer where he had previously stored an ice pick.[2]
As they left the apartment arguing, other residents had gathered in
the hallway, including Charles Horton who was standing in his doorway.
According to one witness, Horton was preparing for work which began at 5:00
a.m. By 4:20 a.m., Peters had managed to pick up his sister and her
children without further incident.

Shortly after 5:00 a.m., while driving on Sanford Road just east of
State Road 63, Mark Barrett observed Horton=s car parked in the middle of
the road. Concerned that he would be unable to bypass the car without
hitting it, Barrett slowed down briefly and then stopped his car. He
observed Defendant bent over along the side of the road as if he were
searching for an item. Defendant approached Barrett=s vehicle, then turned
and walked away. At this time, Defendant was wearing a black jacket.
Later that morning, Chris Newhart saw Defendant trying to hitchhike a few
hundred feet north of Sanford Road. Now Defendant was not wearing a shirt
or jacket despite the cold weather.

Around 6:00 a.m., at the intersection of State Road 63 and Sanford
Road, Defendant approached Stephen Gariepy=s truck as Gariepy stopped at a
stop sign. Defendant solicited Gariepy=s help, telling him that he and a
friend had been attacked, that he believed his attackers killed his friend,
and that he needed a ride into Terre Haute to notify police. Because
Defendant was shirtless, Gariepy gave him a plaid shirt to wear. At
approximately 6:15 a.m., Defendant exited Gariepy=s truck at a railroad
crossing in Terre Haute within the proximity of McCullough=s residence.
Defendant and Gariepy parted without ever having notified the police of the
alleged attack.

At 6:50 a.m., while asleep at her residence, McCullough was awakened
by a Anervous and scared@ Defendant. Defendant, who had been wearing black
sweatpants and a black Adidas jacket that morning, was now wearing black
sweatpants and a plaid shirt. He had mud all over his sweatpants and red
stains on his thermal boxer shorts. As Defendant requested, McCullough
gave him a shirt to wear. As he changed clothes, she saw him remove a
bundle of money from his sweatpants. Before leaving, Defendant told
McCullough that he had done something wrong, that he was in trouble, and to
tell people that he never owned a black Adidas jacket.

At 9:30 a.m., Vigo County Police Officer Steve Barnhart discovered
Horton=s abandoned car on Sanford Road just east of State Road 63. Officer
Barnhart observed blood in the car and on the road outside of the car.
Looking in the nearby wooded area, Officer Barnhart found Horton=s body.
Horton had been stabbed twenty-eight times with an ice-pick. Horton
received a final stab wound through his right eye that entered his brain.
Officer Barnhart discovered the body with the ice-pick still in Horton=s
eye.

Three days after discovering Horton=s body, police found Defendant=s
Adidas jacket near the intersection of Sanford Road and State Road 63.
After obtaining a search warrant for Defendant=s apartment, officials
uncovered a pair of black sweatpants and thermal boxer shorts in the
kitchen trash container.

The State charged Defendant with Murder.[3] The jury found Defendant
guilty as charged. The trial court sentenced Defendant to 65 years of
incarceration.

Additional facts will be provided as necessary.

Discussion

I

Defendant contends that the trial court committed reversible error
when it failed to exclude the testimony of Melissa Smrz, the State=s DNA
expert. He asserts that the State violated the trial court=s discovery
order because the expert=s detailed DNA report was not provided until just
prior to trial. He argues that the tardiness of this report compromised
his right to a speedy trial, his right to cross-examine witnesses, his
right to obtain witnesses in his favor, and his right to effective
assistance of counsel as guaranteed by the Sixth Amendment of the United
States Constitution.

A

Notwithstanding the pre-trial hearing on Defendant=s Motion to Exclude
such testimony, Defendant failed to object to the DNA expert=s testimony at
trial. We have consistently held that to preserve an error in the
overruling of a pre-trial motion, the appealing party must have
contemporaneously objected to the admission of the evidence at trial. See
White v. State, 687 N.E.2d 178, 179 (Ind. 1997); Poulton v. State, 666
N.E.2d 390, 393 (Ind. 1996); Conner v. State, 580 N.E.2d 214, 219-20 (Ind.
1991), cert. denied, 503 U.S. 946 (1992). This affords the trial court the
opportunity to make a final ruling on the matter in the context in which
the evidence is introduced. See Vehorn v. State, 717 N.E.2d 869, 872 (Ind.
1999); White, 687 N.E.2d at 179. Consequently, the failure to lodge a
contemporaneous objection at trial now prevents Defendant from raising this
issue on appeal.

B

Defendant concedes that this issue might be waived due to defense
counsel=s failure to object at trial. As alternative grounds for relief,
Defendant asserts that the failure to object to the DNA expert=s testimony
constituted ineffective assistance of counsel.

We evaluate Sixth Amendment claims of ineffective assistance of
counsel by applying the two-part test established in Strickland v.
Washington, 466 U.S. 668 (1984). See, e.g., Canaan v. State, 683 N.E.2d
227, 229 (Ind. 1997), cert. denied, 524 U.S. 906 (1998); Lowery v. State,
640 N.E.2d 1031, 1041 (1994), cert. denied, 516 U.S. 992 (1995). To
prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate that counsel=s performance fell below an objective standard of
reasonableness. See id. The defendant must also show adverse prejudice as
a result of the deficient performance. See Brown v. State, 698 N.E.2d
1132, 1139-40 (Ind. 1998), cert. denied, 119 S. Ct. 1367 (1999). When an
ineffective assistance of counsel claim is based on a failure to object to
the admission of evidence, the defendant must first demonstrate that the
objection would have been sustained had defense counsel objected at trial.
See Lowery v. State, 640 N.E.2d at 1042.

Here, we do not find that an objection to the DNA expert=s testimony
would have been sustained, nor has Defendant made such a showing.
Defendant merely asserts that the trial court should have excluded the DNA
expert=s testimony due to the untimely submission of the DNA detailed
report.

In ruling the evidence admissible, the trial court relied on our
holding in Woodcox v. State, 591 N.E.2d 1019 (Ind. 1992), overruled on
other grounds, Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In Woodcox,
we held that permitting the DNA expert to testify was not an abuse of
discretion. While the DNA report was not available until the day of trial,
the defendant had been notified sixteen days prior to trial of the identity
of the expert who would testify. Id. at 1026. We concluded that the
defendant had had ample time to interview or depose the expert but had made
no attempt to do so. Id. Nor had the defendant sought a continuance to
take additional measures to prepare to meet the DNA evidence presented by
state. Id. As the trial court here pointed out, defense counsel in
Woodcox had less time to prepare than Defendant did in this case.[4]

Considering the adequate amount of preparation available to
Defendant, and applying our holding in Woodcox, we do not find that the
trial court would have sustained defense counsel=s objection had he
objected to the DNA expert=s testimony at trial. Because Defendant failed
to establish that his objection would have been sustained, his ineffective
assistance of counsel claim fails.

II

Defendant also contends that the trial court erroneously admitted DNA
evidence contained in State Exhibit 40. This exhibit contained blood
samples taken from both Defendant and the victim. Defendant objected to
their admission at trial on the grounds that the requisite chain of custody
was not established in several respects.

A

Defendant first challenges the chain of custody within the FBI
laboratory. At trial, he objected to the admission of the evidence because
the State failed to show that the exhibit arrived at the FBI laboratory and
passed through the hands of FBI agents in an undisturbed condition. He
alleges that because the FBI clerk who received the evidence package failed
to testify at trial, there was a fatal gap in the chain of custody.

It is well established in Indiana that an exhibit is admissible if the
evidence regarding its chain of custody strongly suggests the exact
whereabouts of the evidence at all times. See Robinett v. State, 563
N.E.2d 97, 100 (Ind. 1990), reh’g denied; Jones v. State, 425 N.E.2d 128,
132 (Ind. 1981). That is, in substantiating a chain of custody, the State
must give reasonable assurances that the property passed through various
hands in an undisturbed condition. See Cliver v. State, 666 N.E.2d 59, 63
(Ind. 1996), reh’g denied; Kennedy v. State, 578 N.E.2d 633, 639 (Ind.
1991), cert. denied, 503 U.S. 921 (1992). We have also held that the State
need not establish a perfect chain of custody whereby any gaps go to the
weight of the evidence and not to admissibility. See Wrinkles v. State,
690 N.E.2d 1156, 1160 (Ind. 1997) cert. denied, 525 U.S. 861 (1998);
Kennedy, 578 N.E.2d at 639.

FBI agent Melissa Smrz, a forensic DNA and serology examiner,
testified as to the standard protocol employed in the receipt of evidence
within the FBI laboratory. After receiving an evidence package in the FBI
control room, a clerk opens and retrieves corresponding paperwork and
delivers the evidence package to the assigned analysis unit. Should the
evidence package arrive damaged or otherwise compromised, the clerk would
so note; protocol does not require a similar notation for an undamaged
package. Smrz further testified that Allen Justice received the evidence
package into Smrz=s unit and refrigerated it. Later in the day, Smrz
removed the evidence package from the refrigerator and inventoried its
contents. All items of evidence remained separately marked and sealed in
containers with no apparent indication of tampering.

We find that the State established a continuous chain of custody for
the serological evidence within the FBI laboratory without requiring
additional testimony from the receiving clerk. Smrz sufficiently
established the protocol employed by the control room in receiving evidence
packages. We have held that “[t]here is a presumption of regularity in the
handling of exhibits by public officers, and a presumption that public
officers discharge their duties with due care.” Kennedy, 578 N.E.2d at 639
(holding that although the defendant challenged the exchange of evidence
within the FBI laboratory, the FBI=s customary procedures of handling
exhibits sufficiently established a proper chain of custody); Cliver, 666
N.E.2d at 63. Further, Smrz testified that the samples were contained in a
marked and sealed box that was in tact at the time she examined and tested
the evidence. Such a Amarked-sealed procedure@ employed by FBI officials
demonstrates sufficient precaution against tampering. See Hughett v.
State, 557 N.E.2d 1015, 1019 (Ind. 1990) (citing Schlabach v. State, 459
N.E.2d 740 (Ind. Ct. App. 1984)).

We are satisfied that the State provided reasonable assurances that
the exhibit moved through the hands of the FBI officials in an undisturbed
condition.

B

Defendant next contends that the blood samples taken from the victim
should not have been admitted because the State failed to establish a link
between the seizure of the specimen and its whereabouts prior to its
storage at police headquarters. Defendant makes this claim on appeal only.
At trial, Defendant only objected to the handling of the blood samples
within the FBI laboratory. Defendant argues should this Court consider
this issue waived, the trial court committed fundamental error in admitting
the evidence. Combined with Defendant=s contention of fundamental error is
the contention that Defendant=s counsel was ineffective for failing to
object to the admission of the blood evidence.

However, the record does not support Defendant=s claim that the State
failed to establish a continuous chain of custody for the victim=s blood
sample. Detective Steven Lewis testified that he was present when the
blood was drawn from the victim during the autopsy. Detective Lewis then
secured the blood samples and transported them to City Hall where he
refrigerated them. He further testified that the evidence remained in his
possession unaltered until he mailed the sample to the FBI. Detective
Lewis= testimony strongly suggests the whereabouts of the serological
evidence at all times. The record adequately establishes the chain of
custody with respect to this claim. There was no error, fundamental or
otherwise. Similarly, Defendant=s ineffective assistance of counsel claim
fails.[5]

C

Defendant similarly contends that the State failed to establish a
sufficient chain of custody from the time his blood was seized to the time
it was received by police officials. Again, Defendant failed at trial to
object on these grounds, and so again asserts a claim of fundamental error
and ineffective assistance of counsel.

C-1

Here, unlike our previous discussion regarding the extraction of the
victim=s blood, we find the gaps in the chain of custody troubling.
A[F]ungible evidence, such as blood samples, requires a more stringent
foundation. The State bears an enhanced burden of showing the continuous
whereabouts of the evidence.@ Wrinkles, 690 N.E.2d at 1160-61 (citing
Hughett, 557 N.E.2d at 1019). Here, the State failed to sustain this
enhanced burden.

Although Detective Lewis testified that he was present for the
withdrawal of the victim=s blood, no such testimony was elicited to support
a similar chain of custody for Defendant=s blood samples. The record only
supports the transfer of Defendant=s blood samples from Sheriff Gossett to
Detective Lewis. The record is silent as to the presence of an official at
the time Defendant=s blood was drawn.

We have previously held that it is incumbent upon the State to present
evidence of the physician, nurse or someone in authority who was present at
the taking of the blood establishing a chain of custody of the specimen to
the laboratory where the testing is conducted. See Baker v. State, 449
N.E.2d 1085, 1087 (Ind. 1983) (citing Rinard v State, 265 Ind. 56, 351
N.E.2d 20 (1976)). Accord Robinett, 563 N.E.2d at 100. Such a stringent
chain of custody for serological evidence allows a trial court to conclude
that the specimen tested was indeed taken from the defendant. See Baker,
449 N.E.2d at 1087. Because the State failed to present evidence
establishing that this indeed was the blood drawn from Defendant, we find
that had Defendant objected to the admission of this evidence, the
objection would have been sustained. Accord id. at 1085 (holding that the
trial court erroneously admitted serological evidence where the State
attempted to establish its authenticity through hospital records instead of
with the testimony of a person in authority present at the taking of the
serological evidence); cf. Wrinkles, 690 N.E.2d at 1161 (holding that no
break in the chain of custody of serological evidence occurred where an
officer testified as to his presence during acquisition of serological
evidence as well as its location thereafter); Robinett, 563 N.E.2d at 100
(ruling that no gaps in the chain of custody of serological evidence
occurred where an officer was present when the blood was drawn and he
testified as to its whereabouts thereafter).

However, we do not find that the admission of this evidence rises to
the level necessary to satisfy the prejudice prong of Strickland. To meet
this test, the defendant must show that the deficient performance was so
prejudicial as to deny defendant a fair trial. See Brown, 698 N.E.2d at
1139-40. A defendant is denied a fair trial only when a conviction occurs
as the result of a breakdown in the adversarial process rendering the trial
result unreliable. See Cooper v. State, 687 N.E.2d 350, 353 (Ind. 1997);
Marshall v. State, 621 N.E.2d 308, 321 (Ind. 1993).

The jury had overwhelming evidence to convict Defendant without the
challenged serological evidence. Testimony of four separate witnesses
placed Defendant at the crime scene. One of these witnesses, Stephen
Gariepy gave a bare-chested Defendant a plaid shirt and drove Defendant
from the scene of the crime to Terre Haute. Defendant told him that he and
a Afriend@ had been attacked by hitchhikers and he believed Athey@ killed
his friend, so he needed a ride to the police station. However, once in
the car, Defendant=s pursuit of the nearest police station ceased. Gariepy
had ample opportunity to observe and later positively identify Defendant.

After Gariepy left Defendant at a railroad crossing, Defendant
apparently walked to his girlfriend=s home where he arrived Anervous and
scared.@ (R. at 695.) There he told his girlfriend that he had Adone
something bad@ and for her to forget that he ever owned a black Adidas
jacket. (R. at 696-97.) She also took notice of the large sum of money
Defendant removed from his sweatpants.[6] Additionally, she observed that
Defendant=s sweatpants were covered with mud and that his thermal boxer
shorts had red stains. These items of clothing were later located in
Defendant=s trash can at his apartment while the Adidas jacket was found
near the crime scene. The DNA expert testified that the red stains on
Defendant=s clothing matched the victim=s blood. In fact, the DNA expert
testified that the probability that the victim was the contributor of this
DNA to the exclusion of all others was approximately 37 million to one.

Finally, the ice pick removed from the victim=s right eye was
identified as one belonging to Defendant. Two other witnesses testified
that on several occasions Defendant told them that should he get into
another fight, he would use an ice pick as his weapon of choice making sure
to stab his opponent in the eye.

Considering the overwhelming evidence of Defendant=s guilt,
independent of his blood samples, the harm or potential for harm was not so
prejudicial as to deny Defendant a fair trial. Accordingly, Defendant=s
ineffective assistance of counsel claim fails.

C-2

Alternatively, Defendant seeks to avoid dismissal of this claim by
asserting that admission of this evidence on the basis of a faulty chain of
custody was fundamental error.

Establishing a claim of fundamental error requires a showing of at
least as much prejudice to the defendant as a claim of ineffective
assistance of counsel. As such, a finding that Defendant was not denied
the effective assistance of counsel also establishes that the alleged error
was not so prejudicial as to constitute fundamental error.[7] That is the
case here.

III

Defendant next contends that the trial court erred in denying
Defendant=s tendered voluntary manslaughter instructions.

When a defendant requests a lesser-included offense instruction, a
trial court applies a three-part analysis: (1) determine whether the lesser-
included offense is inherently included in the crime charged; if not, (2)
determine whether the lesser-included offense is factually included in the
crime charged; and, if either, (3) determine whether a serious evidentiary
dispute exists whereby the jury could conclude that the lesser offense was
committed but not the greater. See Wright v. State, 658 N.E.2d 563, 566-67
(Ind. 1995). If the final step is reached and answered affirmatively, then
the requested instruction for a lesser-included offense should be given.
See id. Voluntary manslaughter is simply murder mitigated by evidence of
Asudden heat.@ See Griffin v. State, 644 N.E.2d 561, 562 (Ind. 1994).
Because voluntary manslaughter is inherently included in a murder charge,
we turn to step three of the Wright analysis to determine whether
Defendant=s instruction should have been given B that is, whether there was
a serious evidentiary dispute as to the existence of the mitigating factor
of sudden heat. See Horan v. State, 682 N.E.2d 502, 507 (Ind. 1997)
(ruling that voluntary manslaughter is a lesser-included offense of
murder), reh’g denied. Accord Earl v. State, 715 N.E.2d 1265, 1267 (Ind.
1999).

To establish that a defendant acted in sudden heat, the defendant must
show “sufficient provocation to engender . . . passion.” Johnson v. State,
518 N.E.2d 1073, 1077 (Ind. 1988). Sufficient provocation is demonstrated
by emotions such as “’anger, rage, sudden resentment, or terror that is
sufficient to obscure the reason of an ordinary person, prevent
deliberation and premeditation, and render the defendant incapable of cool
reflection.’” Horan, 682 N.E.2d at 507 (internal quotations and citations
omitted); Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997), cert. denied,
525 U.S. 1021 (1998); Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998),
reh’g denied. Because the trial court made an explicit finding as to the
absence of sudden heat,[8] we review its refusal of the tendered voluntary
manslaughter instructions for an abuse of discretion. See Brown v. State,
703 N.E.2d 1010, 1019 (Ind. 1998); Charlton v. State, 702 N.E.2d 1045, 1048
(Ind. 1998), reh’g denied; Champlain v. State, 681 N.E.2d 696, 700 (Ind.
1997).

We affirm the trial court=s ruling. Defendant points to evidence that
he was angry with his girlfriend and her brother. We have consistently
held that simply establishing that the defendant was “angry” does not,
standing alone, show sudden heat; there must be evidence that someone
provoked the defendant. See Wilson, 697 N.E.2d at 473; Champlain, 681
N.E.2d at 702 (citing Matheney v. State, 583 N.E.2d 1202, 1205 (Ind.),
cert. denied, 504 U.S. 962 (1992)). Defendant presented no evidence that
he was angry with the victim nor did he present evidence that he was in
some way provoked by the victim. The evidence Defendant singled out only
described his state of mind and not provocation. See Barker v. State, 695
N.E.2d 925, 933 (Ind. 1998) (holding that the evidence that the defendant
slept very little in the days prior to the murders and was on Aspeed@
immediately before the murders described defendant=s state of mind and not
provocation), reh’g denied.

Given the lack of evidence suggesting that Defendant acted in sudden
heat, the trial court did not abuse its discretion by denying Defendant=s
tendered voluntary manslaughter instructions.
IV

Defendant next contends that the trial court=s sentencing statement
was insufficient to justify an enhanced sentence.

In general, the legislature has prescribed standard sentences for each
crime, allowing the sentencing court limited discretion to enhance each
sentence to reflect aggravating circumstances or reduce the sentence to
reflect mitigating circumstances. When the trial court imposes a sentence
other than the presumptive sentence, this Court will examine the record to
insure that the court explained its reasons for selecting the sentence it
imposed. See Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing
Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986), reh’g denied.), reh’g
denied. The trial court=s statement of reasons must include the following
components: (1) identification of all significant aggravating and
mitigating circumstances; (2) the specific facts and reasons that lead
the court to find the existence of each such circumstance; and (3) an
articulation demonstrating that the mitigating and aggravating
circumstances have been evaluated and balanced in determining the sentence.
See Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997) (citing Jones v.
State, 675 N.E.2d 1084, 1086 (Ind. 1996)).

With respect to aggravating circumstances, the trial court explicitly
identified Defendant=s criminal history and his need for correctional
treatment that could best be provided by his commitment to a penal
facility as aggravating circumstances.[9] Although not explicitly
identified as an aggravating circumstance in the sentencing statement, the
trial court also emphasized the particularly disturbing facts concerning
the nature of the crime: “Not only did you stab this man twenty-eight
times, but according to your own theory, you made sure he died by stabbing
him in the eye. I can=t imagine a more intentional murder, or a more
brutal.” (R. at 1352-53.) This demonstrates that the trial court also
relied on the nature and circumstances of the crime as an aggravating
circumstance to justify the enhanced sentence. See Ind. Code ' 35-38-1-
7.1(a)(2) (Supp. 1996) (The nature and circumstances of a crime shall be
considered in determining what sentence to impose.); see also Miller v.
State, 720 N.E.2d 696, 706 (Ind. 1999) (holding that the nature and
circumstances of crime are used to justify enhanced sentence even though
they are not neatly packaged in the sentencing statement); Taylor v. State,
695 N.E.2d 117, 120 (Ind. 1998) (recognizing that a court considers the
nature and circumstances of a crime to determine what sentence to impose);
Scheckel v. State, 620 N.E.2d 681, 684 (Ind. 1993) (considering particular
heinous nature and circumstances of the crime as aggravating
circumstances). The trial court identified no mitigating circumstances.
Although we find that the trial court=s application of one aggravating
factor was improper, the remaining aggravating circumstances serve to
justify an enhanced sentence.

The trial court did improperly invoke the correctional and
rehabilitative treatment aggravating circumstance. See Ind. Code ' 35-38-1-
7.1(b)(3) (Supp.1996). We have consistently held that “for this
aggravating circumstance to justify in part an enhanced sentence, it must
be understood to mean that the defendant is in need of correctional and
rehabilitative treatment that can best be provided by a period of
incarceration in a penal facility in excess of the presumptive sentence
term.” Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996), reh’g denied;
Taylor, 695 N.E.2d at 122. Here, however, the trial court did not
articulate how such rehabilitation could be achieved through imposition of
an enhanced sentence rather than the presumptive sentence. As such, we
conclude that the trial court improperly applied this aggravating
circumstance.

This discrepancy notwithstanding, the propriety of Defendant=s
sentence remains intact. Defendant incorrectly states that a trial court
cannot rely solely on a defendant=s criminal history when determining what
sentence to impose. We have consistently held that a defendant=s history
of criminal activity is sufficient to support an enhanced sentence. See
Ind. Code ' 35-38-1-7.1(b)(2) (Supp. 1996) (A person=s criminal history may
be used to support the finding of an aggravating circumstance to enhance a
sentence.); Porter v. State, 715 N.E.2d 868, 872 (Ind. 1999); Ellis
v.State, 707 N.E.2d 797, 804 (Ind. 1999). Additionally, we find that the
court considered the nature and circumstances of the crime as an
aggravating circumstance to justify the imposition of an enhanced sentence.

The trial court sufficiently demonstrated that it had engaged in an
evaluative process of the sort necessary for meaningful appellate review.
Accordingly, we affirm the trial court=s imposition of the enhanced
sentence.

Conclusion

We affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Neither McCullough or Defendant owned a vehicle.

[2] McCullough also testified that this ice pick had been on the floor
the week before May 11th next to Defendant=s bed. Defendant placed the ice
pick in the kitchen drawer when McCullough brought her children to his
apartment.
[3] Ind. Code ' 35-42-1-1(1) (1993).
[4] The trial court found that Defendant had ample time to prepare for
a DNA defense and/or cross-examination of the DNA expert. It further found
that because Defendant was aware that the State might use DNA evidence at
trial as early as May, Defendant should have initiated the search for a DNA
expert then. Further, Defendant knew nineteen days in advance of trial
that Smrz was to testify yet failed to make an attempt to interview or
depose her. Additionally, the State readily informed Defendant of the DNA
expert=s conclusions and test results as soon as they were received C
eleven days before trial.

[5] As we noted in our discussion supra, to maintain a claim of ineffective
assistance of counsel, a defendant must demonstrate that the trial court
would have sustained the objection had defense counsel objected at trial.
See Lowery, 640 N.E.2d at 1042. Because we find that the record does not
support Defendant=s claim, we see no reason why the trial court would have
sustained this objection.
[6] Horton=s girlfriend testified that he had cashed his paycheck the
day before.
[7] We have previously addressed this issue in Rouster v. State, 705
N.E.2d 999 (Ind. 1999), reh’g denied. In Rouster, we first analyzed the
defendant=s alleged errors under the Strickland prejudice prong. We
concluded that if the defendant was unable to satisfy this prejudice prong,
he would similarly fail to satisfy the fundamental error standard.
Rouster, 705 N.E.2d at 1008 n.8.
[8] The trial court concluded, A[V]oluntary manslaughter is warranted
if there is an appreciable evidence of sudden heat. Here there is no
evidence of it at all . . . . I=m assuming [Defendant=s] defense was, that
wasn=t him, he wasn=t there. There is just no evidence of sudden heat
here, whatsoever, I don=t think that under this particular situation, that
voluntary manslaughter is an appropriate . . . lesser included
[instruction] . . . .@ (R. at 1327-28.) We further note, as did the trial
court, that a voluntary manslaughter instruction would have been
inconsistent with the defense theory that Defendant was simply not present.

[9] Defendant contends that the trial court used the absence of
mitigating circumstances as an aggravating circumstance. (Br. of
Appellant, at 32-33.) We find no support for this argument in the record.