Its most famous native son was Cole Porter, the songwriter. He is buried there, but cynical locals like to point out that he had the sense to leave Peru when he was young and didn't return until he was in a pine box.

Peru claims a curious title as America's "Circus City."

It was a key railroad hub in the late 1800s, during the heyday of traveling circuses. Its circus connection began in 1882, when a local businessman and circus buff, Ben Wallace, bought out a bankrupt "railroad" show that had passed through town.

But Wallace wasn't satisfied with a cut-rate circus. He collected exotic animals, ordered ornate new wagons and took his show on the road in 1884, as "Wallace and Co.'s Great World Menagerie, Grand International Mardi Gras, Highway Holiday Hidalgo and Alliance of Novelties."

The Great Wallace Show, as it became known, was one of mid-America's biggest, and Wallace used Peru as winter quarters to tend the animals, repair equipment and prepare for the following season.

Over the years, the Wallace Show merged with many others, and the winter quarters in Peru were in steady use by one circus or another for most of 50 years. Among them were the most storied of America's traveling shows, including Ringling Brothers and Barnum & Bailey. Peru residents were treated to free previews of the acts, and circus legends like Emmett Kelly, the sad-faced clown, became regular habitus of Main Street.

The Great Depression slowed the road show gravy train, and the last circus finally pulled out of Peru winter quarters in the 1940s, destined for warmer environs. Sarasota, Florida, became the nation's circus hub when Ringling moved its winter quarters there.

The circuses forgot Peru, but the city never got the circus out of its blood.

In 1958, Peru began staging an amateur circus that continues today in a weeklong celebration each July. And in 1981, when Sarasota's Circus Hall of Fame went on the auction block, Peru bought it and moved it back to Indiana.

With three marriages, countless affairs, two pregnancies and a child abuse conviction under her belt, Susan Whited joined the parade of clowns headed back to Circus City.

Big Name in Town

Susan had left Peru as a sexually precocious teenager. She returned as a sexually confident woman in her mid-20s. Pregnant or not, she arrived in town as randy as ever. And she knew how to work a room, even in maternity clothes.

Through the local bar scene, Susan met a couple of men who worked in law enforcement. As a practical joke, they thought it would be funny to hook her up on a blind date with their friend Jimmy Grund.

Grund's was a big name in the legal community of Peru and Miami County, Ohio. Law was the family business. His father, James Sr., had been a prominent attorney, prosecutor and judge in the county. A grandfather and uncle also had served as judges.

Jimmy, born two days before Christmas in 1944, was destined to follow in their footsteps. He graduated from Peru High School in 1962, then went on to college and law school at the University of Indiana, two hours downstate in Bloomington. During his second year of undergraduate school, Grund met a pert, pretty coed, a freshman named Jane Snyder. Jimmy and Jane were married a year later, in 1965, when Snyder got pregnant.

Daughter Jama was born in July 1965, and son David arrived in 1970, just after Grund finished law school. The young family returned to Peru, and Jimmy went to work as an assistant to his father, who was then serving as county prosecutor.

Grund worked from 1971 to 1978 as an assistant prosecutor, then served four years, 1978-82, as the county's top prosecutor when his father stepped aside.

Grund had a swashbuckling side. He owned an interest in a bar in Peru, where he was an avid customer. He also had a pilot's license, and he loved to ferry his pals on guys-only fishing trips up north.

Jimmy and Jane's marriage had faltered during Jimmy's years as county attorney, and the couple was divorced in 1980. Curiously, they decided to continue to live togetherin part for the sake of their children, and in part because it was economical.

The arrangement continued until the summer of 1984, when Susan walked into Grund's life.

Meeting Jimmy

Jimmy Grund agreed to a blind date with Susan in the summer of 1984 after his friends convinced him that she was sexy. They didn't mention that she would be wearing a pregnancy smock.

It didn't matter. Grund was enticed.

What did he see in her? Her age, for one thing.

He was pushing toward middle age at 39 and had begun to display the inevitable side effectsa thickening in the middle and a thinning on top. She was 25, and the 14 years between them were enough to inspire any older man's ego.

For her part, she found Grund sophisticated and worldly. It didn't hurt that he had moneyfar more than any other man with whom she had been intimate.

The attraction was practical, as well. She didn't want to face childbirth alone, and her other top prospect for male companionship at that point was an old flame with whom she had cheated on at least two of her husbands.

She opted for Grund. A few months after they met, Grund served as stand-in father during delivery of Susan's daughter, whom she named Tanelle. Days later, the couple and the baby traveled to Florida, where they were married on December 6 in an oceanside rite at Flagler Beach.

In the early months of the marriage, Susan set a goal to regain custody of her son, Jacob, who was living with his father in Oklahoma City. Jimmy Grund proved to be a useful tool for Susan's endeavor.

Of course, this required Susan to reveal her criminal conviction for child abuse. She presented herself to her new husband as a victim of overzealous prosecutiona scapegoat in a tragic accident.

For 11 years as a prosecutor, Grund had heard a variation on this sort of protest from scores of criminals he'd faced in court. As a sage attorney, he had the wherewithal to reach out to Oklahoma authorities to get a second perspective on the brutal assault on Susan's stepson. He apparently did not do so.

Blindly in love, he used his money and persuasion to get Jacob back into Susan's arms. In Oklahoma City, Gary Campbell, Susan's truck-driving ex, was having financial problems. According to author Clarkson, Jimmy Grund sent several checks to Campbell to help him catch up. Grund then arranged a job for Campbell in Logansport, Ind., near Peru. The father and son moved there, and Susan became caretaker for Jacob.

Soon, Campbell met and married an Indiana woman, and the fledgling couple decided they were better off without the baggage of the boy.

Campbell signed over custody of Jacob, with Grund handling the legal paperwork, and returned to Oklahoma with his new wife. The Grunds also convinced Tom Whited to sign over permanent custody of his daughter Tanelle.

Susan Grund seemed to have everything she wanted, including an affluent lifestyle far removed from her humble childhood.

But it wasn't enough.

Moving Up

In the summer of 1986, the couple moved into a custom-built, contemporary-style home on a wooded lot at the edge of Peru. Grund spent $175,000 on the housean eye-popping price in a region of the country known for its affordable homes. Grund bankrolled a downtown boutique for his wife, Clothes by Susan, and Sue Ann Sanders from the wrong side of the tracks suddenly found herself an arbiter of fashion in her hometown.

The Grunds were a part of Peru society, such as it was. They were guests or hosts of frequent barbecues and cocktail partiesat which, more than a few people noticed, Jimmy Grund often slurped down one too many gin and tonics.

Meanwhile, Susan ascended another step in society in 1989 when she entered the Mrs. Indiana America Pageant in Indianapolis.

As she entered her 30s, Susan had maintained a girlish figure, and she showed it off as often as possible. The decorative centerpiece of the Grunds' bedroom in the new house was a nude painting of Susan that Jimmy had commissioned.

She liked to show it to just about anyone who dropped by.

Susan was a dedicated collector of sensual apparel, and she enjoyed showing that off, too. She shot Polaroid photos of herself in her latest acquisitions from Victoria's Secret or Frederick's of Hollywood. She would slip copies of the images into her husband's briefcase, and she always insisted that he take along a couple of the sexy pictures on fishing trips.

But he wasn't the only man to see her racy knickers up close.

Susan never did lose her wandering eye, and Peru was soon atwitter with gossip about her various assignations. Some joked that her seven-year itch had arrived in seven days.

To be fair, the Grunds were a high-profile couple, and not all stories told by jealous or resentful small-towners are necessarily true. But Susan Grund told many of the stories on herself.

She was forever sharing the graphic details of her sexual encounters with confidantes, including her sisters, her mother and her new clique of women friends whose names popped up in the local newspaper society column.

How many lovers did she have? Only she knew for certain, but Susan certainly got around.

There was the accountant in the next town over. The hunky local cop. The holy-roller from the Baptist church. A couple friends of her husband. The pick-ups at this local bar or that, the one-night stands with strangers at Indianapolis hotels or her sister's apartment in Kokomo, the local gay man she tried to seduce into changing teams.

There were even whispers that Susan had tried to seduce Grund's son, David. An adolescent when the couple married in 1983, David had grown into a strapping young man by the early '90s.

Jimmy heard the gossip. In 1990, his own mother confronted him about Susan's reputation. He shrugged.

But as the embers of the relationship began to fade, he spent more and more time in the company of his fishing pals and his gin and tonicswhich increased Susan's opportunities to cat around.

Abrupt Ending

By the summer of 1992, Jimmy Grund had begun to complain bitterly to friends about the state of his marriage.

The couple argued incessantlyboth in private and in publicnot about Susan's affairs but about her extravagant spending on clothing, jewelry, lingerie and cars.

Grund knew he was stuck with a wife who did not love him. Worse, he had reached the sobering conclusion that he had been inveigled by a seductress who wanted not him but his lifestyle.

Grund wanted out. In mid-July, he visited a fellow lawyer in Peru to ask him to begin the divorce process.

He decided to wait to file the paperwork until he and Susan and her two children returned from a long-planned vacation to Alaska, according to author Clarkson. During that trip, Grund informed Susan that he would file for divorce when they got home.

He didn't get a chance. They returned to Peru on August 1, a Saturday. Scarcely two days later, at not quite midnight Monday, Jimmy Grund was shot through the eye and killed. His murder was one of those cases that leads to head-scratching by those blessed with common sense.

By the time of the slaying, half of the population of Peruincluding cops and prosecutorsknew that the Grunds' marriage was on a fast track to dissolution. The other half had slept with Susan.

Did she not expect to be scrutinized?

The investigation began with klieg lights pointed at the widow. From the beginning, law enforcers believed she was responsible. Yet the probe got off to a balky start, stymied for several months by a lack of definitive evidence.

The break in the case came from the usual place: the suspect's mouth. And it would lead to the undeniable conclusion that Susan Grund may have been sexy, but she wasn't very smart.

Murder Weapon

On July 4, a month before the murder, a 9mm pistol was stolen from the home of David Grund, Jimmy's son.

Coincidentally, Susan had stopped by David's house that same afternoon and questioned her stepson about where he kept his pistol. When David returned from a fireworks show that night, he discovered that someone had broken in and taken nothing but the gun.

It seemed like an odd coincidence when investigators found a 9mm shell casing beside Jimmy Grund's body.

Investigator Brunson spoke with David Grund, who recalled once firing his pistol at a telephone pole. Police retrieved that slug and compared it to the bullet that had killed Jimmy Grund.

It was a match. David Grund's stolen gun had been used to murder his father.

Within days of the slaying, Susan Grund began the process of trying to collect a $250,000 life insurance policy and to have herself declared executrix of her late husband's estate. Grund's children, David and Jama, filed a lawsuit to block Susan from being named executrix. They found allies in the case investigators, including Jimmy Grund's best friend, Sgt. Gary Nichols, who made it his mission to see that she would never get a penny of Jimmy's money.

In the meantime, Susan had a niggling secret problem: the murder weapon was still in the Grund house.

She knew it would be discovered eventually and that she had to get it out of the house, but she was fearful to the point of paranoia that she was being watched. She needed help.

On September. 2, she confided in her sister, Darlene Worden, and mother, Nellie Sanders.

"I killed Jimmy," Susan said.

She said the murder weapon, a 9mm pistol, was hidden inside a Christmas teddy bear stored with holiday ornaments in the laundry closet.

Worden agreed to go into the house and retrieve the heavy teddy bear. The sisters and their mother then placed the gun at the bottom of a metal pot and covered it with 70 pounds of cement.

They stored the object at a nephew's house. Later, Nellie Sanders got nervous and managed to single-handedly lug the entombed murder weapon up to the attic of her house.

Darlene Worden sat on her sister's secret for two months.

On November 2, she bumped into Bob Brinson, the lead investigator on the case for the Indiana State Patrol. Stricken by a guilty conscience, she felt compelled to confess. Within 36 hours, police arrested Susan for murder. The motive, they said, was the insurance policy money.

Police went looking for the concrete-filled pot at the nephew's place, at Darlene's suggestion, but it had vanished. Even without the murder weapon, prosecutor Wil Siders prepared his case for trial in the fall of 1993.

About 10 weeks before jury selection was to begin, Nellie Sanders' conscience provided what seemed to be the final break in the case.

Nellie explained that she had hidden the murder weapon in the attic of her house. Police found it there, just as Nellie said.

Trial and Error

Susan Grund's murder trial, which began on September 27, 1993, was a Freudian psychoanalyst's dream, with family secretsor alleged family secretsas the crucible of the case.

The usual complement of cops and crime-scene experts testified. But the trial's best tabloid TV moments came from relatives of the victim and the accused. Susan Grund had to testify, of course, to try to explain why she had hidden the gun. She came up with a doozy of an explanation.

Susan testified that she arrived home of the night of the murder, found her husband dead and called 911. She said the murder weapon was lying on the floor. She recognized it as David Grund's gun, so she said hid it inside a teddy bear because "I thought he might have had something to do with it."

When questioned further, she blurted out through tears that she was concerned for David "because we'd had an affair." She explained that she had been having sex with her stepson for two years.

She added, "He said he was going to get rid of his dad."

David Grund had finished undergraduate school at Indiana University a few months before the trial began. When he got his turn on the witness stand, Grund treated his stepmother's assertions with steely contempt. The first words he spoke were, "I never had an affair with that woman."

Nellie Sanders and Darlene Worden added their own damning assessments of their kin. Darlene said of sister Susan, "She's a liar. She's always been a liar."

At end of her testimony, Darlene broke down, glared at her sister and said, "Why'd you do it?"

Everyone in the courtroom seemed convinced of Susan's guiltexcept certain jurors. After 15 hours of deliberation, the jury declared itself deadlocked, with at least two members insisting they could not find Susan guilty.

A Conviction

A second trial was mounted seven months later, in March 1994.

Prosecutor Siders made a key change in his presentation, based upon suggestions from interviews he conducted with jurors from the first trial. He called a procession of five new witnesses, all prominent Indianans who had become acquainted with Susan through Jimmy Grund.

Each gave the same clear message: Susan Grund was a pathological liar.

Meanwhile, defense attorney Charlie Scruggs, from Kokomo, made a momentous decision of his own. He ordered Susan not to delve into her alleged affair with David Grundeven though most courtroom wags agreed that that particularly testimony had swayed the holdout jurors in her favor at the first trial.

Siders' strategy prevailed.

On March 23, 1994, the jury convicted Susan Grund of murder. Prosecutors had not sought capital punishment in the case, and three weeks later, Judge John Surbek ordered Susan to serve 60 years in prison for "calmly, coldly and calculatingly" murdering her husband.

Susan's children, Jacob and Tanelle, were 13 and 8, respectively, at the time of the murder. They were raised by Jimmy Grund's sister, Jane, and her husband, Fred Allen.

By the fall of 2007, Grund had spent 15 years at the Indiana Women's Prison in Indianapolis, housed with some 325 other female inmates. She will turn 50 behind bars in 2008. Her first parole eligibility date will not arrive until 2025, when she would be 67 years old.

At last word, she was still professing her innocence.

When her parole date arrives, Susan likely will face a vigorous legal argument against freedom by a man with a keen interest in the case.

David Grund, her former stepson and the man she alleged was her lover, completed law school a few years after the second trial. In 1997, he joined his grandfather in the family law practice in Peru.

TruTV.com

Supreme Court of Indiana

GRUND v. STATE

671 N.E.2d 411 (1996)

Susan GRUND, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).

No. 52S00-9408-CR-00725.

August 7, 1996.

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

Pamela Carter, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Appellee.

SELBY, Justice.

The defendant, Susan Grund ("Susan"), was convicted of murdering1 her husband, James Grund ("Jim"). The trial court sentenced her to sixty years, the maximum term of years for murder.2 She now appeals from the conviction and the sentence and raises the following three issues: (1) whether the trial court erred by allowing hearsay evidence, (2) whether defendant was denied her Constitutional right to effective assistance of counsel, and (3) whether imposition of the maximum sentence was manifestly unreasonable.

[ 671 N.E.2d 414 ]

We affirm both the conviction and the sentence.

FACTS

In the spring and summer of 1992, Susan and Jim Grund were experiencing marital problems. They were arguing frequently, and they were seeing a marriage counselor. Although there was some talk of divorce, this was not what Susan wanted. Because her husband was a prominent attorney, she feared losing custody of the children, and she feared losing Jim's financial support. Thus, Susan needed an alternative solution.

On the afternoon of July 4, 1992, Susan arrived unexpectedly at the home of David Grund, the victim's son by a previous marriage. She had been at the county fairgrounds, and as she returned home, she stopped in, claiming to have found a new shortcut home from the fairgrounds. Defendant questioned David about a handgun that he had recently purchased. David showed her where he kept his 9 mm semi-automatic weapon, and allowed her to handle it. Before leaving, defendant noticed that the storm door was broken and was secured by a shoestring. Defendant also inquired about where David and his girlfriend, Suzane, kept their rottweiler puppy when no one was at home.

Around 2:00 p.m. that day, David and Suzane attended a barbecue at the home of Suzane's parents. Defendant and her husband, along with their two children, thirteen-year-old Jacob and seven-year-old Tanelle, arrived around 4:00 p.m. and stayed until around 6:00 p.m. Shortly before dark, defendant telephoned Suzane's parents to find out if David and Suzane planned to attend the fireworks display. She was told that David was not feeling well, so they would be staying at Suzane's parents' home for a while longer, then they would return home. When David and Suzane arrived home around 10:30 p.m., they found that their home had been burglarized. Although cash and jewelry were in plain sight, the only thing missing was David's gun. Meanwhile, Susan had taken her two children and several other boys to see the fireworks. Unfortunately, when they got there, Susan was unable to find a place to park. She dropped off the boys and kept Tanelle with her. They rendezvoused at the ice cream stand shortly after the fireworks were over.

On August 3, 1992, defendant arranged for Jacob to spend the night with his cousin, Steven, in the newly acquired family camper. She also arranged for Steven's sister, Andrea, to spend the night at her home with Tanelle. At approximately 10:00 p.m., she left the two boys at the campground. Now alone, defendant went to obtain beverages for the boys. About an hour later, she picked up the girls at her mother's house, and the three arrived at the camper around 11:15 p.m. She gave the beverages to the boys and took the girls home.

Just prior to midnight, defendant called the Miami County emergency phone number to request an ambulance. She told the dispatcher that she had found her husband lying on the couch in the bedroom with blood coming out of his eyes and mouth. Jim Grund was already dead when the emergency workers arrived. The cause of death was a single gunshot wound to the head. Although there were no signs of struggle, there were two open suitcases on the floor with women's clothing strewn around them, and several dresser drawers were open with items pulled out. There were no signs of forced entry.

Detectives found a spent shell casing on the floor and recovered a spent bullet from the couch in the area where Jim's head had been. Both appeared to be from a 9 mm semi-automatic handgun. The detectives were aware that a similar weapon recently had been stolen from David's house. The next morning, they asked David for locations where he might have fired the weapon. As a result of this questioning, police recovered a bullet from a telephone pole which was located across the street from David's former residence. This bullet and the one recovered from the murder scene had been fired from the same gun.

[ 671 N.E.2d 415 ]

Approximately two weeks after the murder, Susan, Jacob, Tanelle, and Susan's mother moved from Peru to Vincennes. On September 3, a former neighbor informed Susan that police were searching her home in Peru. That night, she met her sister, Darlene Worden, at a McDonald's near Indianapolis. As the two women drove to Peru, Susan confessed that she had killed her husband. According to defendant, it was supposed to be a double suicide, but she had been unable to kill herself. She claimed that instead of shooting himself, Jim made her shoot him so that his will would remain effective.

When Susan and her sister arrived at Susan's Peru home, defendant went directly to the laundry room, and told Darlene that "it" was still there. When they left the house, Susan was carrying two teddy bears, one of which had been ripped open across the back. She later admitted that she removed the gun from the house by hiding it in one of the bears. Susan then returned to Vincennes. Sometime later, Darlene's husband brought a bag of cement to her in Vincennes.

Around the beginning of November, Darlene happened to see the detective who was investigating the murder. Darlene believed that her mother was aware of Susan's actions, and she feared repercussions, both for herself and for her mother. She also believed that the gun was in Susan's home, and she was concerned for the children's safety. As a result, Darlene told the detective about Susan's confession. Susan was arrested on November 4, 1992.

The next summer, when Susan's mother was planning to move back to Peru, she found a family heirloom, a large copper kettle, in the attic. It was filled with cement. She took it back to Peru and gave it to the police. When police broke the cement, they found a 9 mm semi-automatic weapon, the same gun which had been stolen from David's house and used to kill Jim Grund.

I. Hearsay Testimony

Defendant argues that the trial court erred in admitting various hearsay testimony. Not surprisingly, the testimony of these witnesses does not fit the defendant's version of events. Defendant's arguments in this regard evoke the words of Sir Walter Scott:

O, what a tangled web we weave when first we practise to deceive.3

At trial, defendant's sister, Darlene, testified about a discussion she had with Susan, Tanelle, and Jacob, which involved the events on the Fourth of July. According to Darlene, Tanelle told the others that after the boys were dropped off to see the fireworks, she and her mother did not go straight to the ice cream parlor as her mother claimed, but instead went for a drive in the country. Susan then repeatedly insisted that Tanelle's story was not correct. Defense counsel objected to Darlene's testimony on the basis of hearsay. The State argued that Tanelle's statements were not offered for the truth of the matter asserted, but rather to show that they were contradicted by Susan. The trial judge overruled the objection and allowed the testimony. Defendant now appeals, arguing that the only possible relevance of Tanelle's statements is for the truth of the matter asserted; if Tanelle's statements are correct then defendant would have had an opportunity to steal David's gun.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. IND.EVIDENCE RULE 801(c); Hughes v. State,546 N.E.2d 1203 (Ind.1989). The same statement offered for another purpose is not hearsay. Blue v. Brooks, 261 Ind. 338, 303 N.E.2d 269 (1973). Tanelle's statements were not offered to prove that the defendant and Tanelle took a drive in the country, but rather to prove that Susan was trying to coerce Tanelle into changing her memory. Such action is relevant to show defendant's consciousness of guilt. Grimes v. State,450 N.E.2d 512, 521 (Ind.1983). The State also introduced evidence that the defendant tried to coerce other family members into changing their stories about the night of the murder. (R. at 988 (Darlene discussing the hour time gap in Susan's whereabouts and getting "these stories straight" to account for Susan's time); R. at 1291-92 (Jacob discussing the same time gap and how his

[ 671 N.E.2d 416 ]

mother would "correct us, so it wouldn't sound as bad")). The contradiction of Tanelle's statements shows that defendant acted similarly regarding both important time periods in this case, thus ensnaring her entire family in the tangled web of her deceit.

Furthermore, even if Tanelle's statements had amounted to hearsay, such an erroneous admission would not warrant reversal in this case because Darlene's testimony was merely cumulative. Hicks v. State,536 N.E.2d 496, 499 (Ind.1989); Rhoton v. State,483 N.E.2d 51, 54 (Ind.1985). Jacob also testified to the substance of Tanelle's out-of-court statements, and he did so without objection by defense counsel.

We find that Tanelle's statements were not admitted for the truth of the matter asserted, and are not hearsay. Furthermore, had the statements been hearsay, we would find no reversible error as Darlene's testimony regarding these statements was merely cumulative.

II. Ineffective Assistance of Counsel

Susan contends that she was denied her Constitutional right to effective assistance of counsel. Review of ineffective assistance of counsel claims involves a two-step process. The "appellant must make a preliminary showing that the performance of his trial counsel was deficient; he must then show that he suffered prejudice as a result." Pemberton v. State,560 N.E.2d 524, 526 (Ind.1990) (discussing Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel is presumed to be competent; "[i]solated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel." Id.

Defendant first argues that defense counsel's performance was deficient when he failed to object to Jacob's testimony concerning Tanelle's Fourth of July statements. Defendant argues that this could not have been a strategy decision, since defense counsel already had objected to Darlene's testimony on the same topic. However, since the objection to Darlene's testimony already had been overruled, we cannot say that failure to object once again was deficient performance. See Drake v. State,563 N.E.2d 1286, 1290 (Ind.1990) (holding that failure to make repeated objections is not ineffective when such objections would not have been sustained). Even assuming that this behavior was deficient, we cannot find prejudice. As discussed above, Tanelle's statements were not offered for the truth of the matter asserted and were properly admissible when Darlene testified about them. The same is true for Jacob's testimony concerning Tanelle's statements.

Related to the above argument, defendant claims that her counsel should have requested a limiting instruction for Darlene's and Jacob's testimony concerning Tanelle's statements. While defendant would have been entitled to a limiting instruction had defense counsel requested it, EVID.R. 105, defendant has failed to demonstrate prejudice as a result. Contrary to defendant's assertions, there is other evidence which is sufficient to demonstrate that she had an opportunity to steal David's gun on the Fourth of July. Although defendant testified that she parked across the street from the ice cream parlor and waited with Tanelle for the boys, Jacob testified that his mother and Tanelle were not at the ice cream stand when he and the other boys arrived, but she arrived there after a while. (R. at 1296). Jacob's testimony contradicted Susan's account, and provided Susan with the opportunity to steal David's gun. Thus, defendant has failed to demonstrate prejudice.

Defendant's next argument involves testimony about a 1990 burglary at defendant's Peru home. Indiana State Police Detective Robert Brinson testified that he had investigated this prior burglary. He also testified that he had interrogated defendant the morning following the murder. During this interrogation, defendant stated that she believed that some jewelry was missing from the dresser. Curiously, many of the same jewelry items which Susan believed to be missing at the time of the murder had also been reported missing in the 1990 burglary. Detective Brinson further testified that he did not believe a "true" burglary had taken place the night of the murder. Defense counsel did not object to this line of questioning until the prosecutor questioned Detective

[ 671 N.E.2d 417 ]

Brinson regarding Susan's whereabouts when the 1990 burglary occurred. Following the objection, defense counsel filed a Motion in Limine and a Motion to Strike. The Motion in Limine requested an order to prohibit the State from introducing any further evidence or making further mention of the 1990 burglary. The Motion to Strike requested the trial court to strike all testimony concerning the 1990 burglary, and to admonish the jury to disregard it. (R. at 190). Both motions were denied.4

It is true that evidence of extrinsic crimes of a defendant is not admissible solely to prove a defendant's criminal propensity or that the defendant acted in conformity with that propensity. EVID.R. 404(b); Hardin v. State,611 N.E.2d 123, 129 (Ind.1993). However, the evidence presented prior to the objection did not involve extrinsic crimes of the defendant. Defendant admits that the State "made no meaningful attempt, whatsoever, to establish that Susan Grund had anything to do with the commission of the 1990 burglary." (Appellant's Brief at 49). Rather, evidence that the two burglaries were "mirror images" raises the inference that Susan copied the earlier one to make it look like a burglar killed her husband. Because the prosecutor did not link defendant with the earlier burglary, admission of the evidence did not violate EVID.R. 404(b). Thus, counsel's performance was not deficient when he failed to object.

Defendant next argues that trial counsel was ineffective because he failed to raise objections to hearsay evidence presented during the testimony of Indiana State Police Officer Gary Boyles. Boyles was allowed to testify about statements made to him by David Grund regarding David's whereabouts the night of the murder and where David may have fired his gun prior to it being stolen. However, David's statements were not admitted for the truth of the matter asserted, but rather to show the course of the investigator's conduct. Long v. State,582 N.E.2d 361, 362 (Ind.1991).

In Craig v. State,630 N.E.2d 207 (Ind. 1994), we set out a three-step analysis to be used when examining such a hearsay objection, which requires analysis of the following questions:

1. Does the testimony or written evidence describe an out-of-court statement asserting a fact susceptible of being true or false?

. . . . . .

2. What is the evidentiary purpose of the proffered statement?

. . . . . .

3. Is the fact to be proved under the suggested purpose for the statement relevant to some issue in the case, and does any danger of prejudice outweigh its probative value?

Id. at 211. Clearly, the testimony did contain statements asserting facts susceptible of being true or false. The evidentiary purpose of the statements was to demonstrate the source of the bullets which proved to be a ballistic match to the one recovered from the murder scene. Thus, the purpose was not for the truth of the matter asserted. Such evidence is relevant as foundation for the bullets. Finally, since David's statements do not incriminate anyone, we do not think that the danger of prejudice outweighs its probative value. Furthermore, David testified at trial and was available for cross-examination. Since a hearsay objection would not have been sustained, counsel was not ineffective for failing to object.

Officer Boyles was also allowed to read a search warrant and probable cause affidavit for Susan's Vincennes home, and defendant now contends that trial counsel should have objected to this reading due to the presence of hearsay in the affidavit. Search warrants and probable cause affidavits, although potentially admissible, should

[ 671 N.E.2d 418 ]

be presented only to the court and not to the jury. Guajardo v. State,496 N.E.2d 1300 (Ind.1986). However, presentation to the jury is not reversible error per se. Id. In the present case, we agree that defense counsel should have objected to the State's reading of the affidavit to the jury, but, as in Guajardo, no prejudice resulted. The hearsay contained in the affidavit consisted of statements of Darlene Worden and David Grund. At trial, both of these individuals testified and were available for cross-examination, and both testified consistently with their statements to police. Thus, the jury learned nothing from the affidavit that they did not learn from other sources. Since the comments in the search warrant and probable cause affidavit were merely cumulative, any error was harmless. See, e.g., Tynes v. State,650 N.E.2d 685, 688 (Ind.1995).

Finally, defendant argues that the trial counsel failed to object to evidence that Susan and Jim Grund were having marital problems, particularly to evidence that Susan had hit her husband. However, defense counsel did object when the subject was first raised, during the testimony of Pam Oglesby, a neighbor of the Grunds. (R. at 1243-53). At a hearing outside the presence of the jury, the State argued that evidence concerning the state of the marriage was relevant to show motive. The trial court overruled the objection, but limited any inquiry to within one year of the murder. See Heck v. State,552 N.E.2d 446 (Ind.1990), cert. denied, 507 U.S. 929, 113 S.Ct. 1308, 122 L.Ed.2d 696 (1993) (although hearsay, evidence of a prior assault on the victim can be admissible in a murder case to prove motive or identity). When questioning resumed, defense counsel again objected. When this objection was overruled, he requested "the record to show my continuing objection to this line of questioning." (R. at 1253). Although it is true that the defendant objected only sporadically when other witnesses testified on the same subject, given the continuing objection and the result of prior objections, we do not find trial counsel's performance to be deficient in this regard.

Thus, defendant has failed to demonstrate a single instance where trial counsel's performance was deficient and caused prejudice pursuant to the Strickland standard. Accordingly, we reject defendant's claim of ineffective assistance of counsel.

III. Sentencing

Defendant argues that the trial court erred by considering improper aggravators and failing to consider mitigators. Defendant also argues that a maximum sentence of sixty years is manifestly unreasonable in this case. Thus, defendant requests this Court to revise the sentence.

The trial court found the following aggravating circumstances:

1. Defendant's prior criminal history.

2. Defendant's need for correction.

3. A lesser sentence would depreciate the seriousness of the offense.

(R. at 242, 2005-06), and found no mitigating circumstances. (R. at 242, 2005). The court then imposed the maximum sentence of sixty years.

Sentencing is within the sound discretion of the trial court, and this Court will review sentencing only for abuse of discretion. Sims v. State,585 N.E.2d 271 (Ind. 1992). A sentence authorized by statute will not be revised except where manifestly unreasonable. A sentence is manifestly unreasonable only if no reasonable person could find such sentence appropriate to the particular offender and offense for which it was imposed. Id.; IND.APPELLATE RULE 17(B). When a trial court increases a sentence due to aggravating circumstances, the factors in making that determination must be listed in the record. Sylvester v. State,549 N.E.2d 37, 43 (Ind.1990). The finding of mitigating factors is not mandatory and rests within the sound discretion of the trial court. Finally, it is for the trial judge to determine the sentencing weight to be given any aggravating or mitigating factors. Id.

Defendant does not challenge the first aggravator, prior criminal history. Defendant has a prior conviction in a case involving the beating of a young child. This child, the son of a former husband, suffered various injuries, and is now severely handicapped. Although the defendant entered a nolo contendere

[ 671 N.E.2d 419 ]

plea, the conviction is sufficient to support this aggravator.

Defendant does challenge the other two aggravators. She argues that the second aggravator, defendant's need for correction, is a mere recitation of the language of an aggravating circumstance listed in I.C. § 35-38-1-7.1(b). Defendant claims that the trial court made no attempt to set out facts to support this aggravator, nor did that court indicate why additional punishment is needed in this case. Defendant's argument is in error. The trial court specifically related this aggravator to defendant's criminal history, finding that there is a need for correction. This prior criminal history represents "a refusal of the defendant to conform to societal rules." (R. at 2005). As we find this to be more than a mere recital of the statutory language, we find no error with this aggravator. See Penick v. State,659 N.E.2d 484, 487 (Ind.1995).

Next, defendant argues that the third aggravator, a lesser sentence would depreciate the seriousness of the offense, is improper because this aggravator is applicable only when the trial court is considering a reduced sentence. Defendant is correct that this statutory aggravator is appropriate only when considering the imposition of a sentence which is shorter than the presumptive. Walton v. State,650 N.E.2d 1134, 1136-37 (Ind.1995). Thus, the trial court improperly applied this aggravator.

Defendant also argues that the court erred in failing to find mitigating circumstances which are clearly supported by the record. The finding of mitigating circumstances is within the sound discretion of the trial court. Aguirre v. State,552 N.E.2d 473, 476 (Ind.1990). However, when there is substantial evidence in the record of the existence of significant mitigating circumstances and the trial court fails to find mitigating circumstances, this Court will conclude that they were overlooked or not properly considered. Scheckel v. State,620 N.E.2d 681, 686 (Ind.1993). Defendant claims that the trial court overlooked several such mitigators, including: imprisonment of their mother would impose a substantial hardship on defendant's children, defendant's activity in civic affairs, and that a number of people in the community found defendant to be of good character and they requested mercy on her behalf.

First, incarceration is not the cause of the hardship on defendant's children. Defendant murdered the children's father, thus removing him from their lives. Therefore, we cannot find error in the trial court's failure to find hardship to be a mitigating factor. Similarly, although the defendant may have been involved in community activity, her husband had been a civic leader. Thus, although she may have given to the community, her actions also took much away from the community. See Brooks v. State,560 N.E.2d 49, 61 (Ind.1990) (sentencing order not defective for failing to recognize community service work with children as a mitigating factor where defendant was convicted of child molestation). Finally, it is within the sound discretion of the trial court to find no mitigator although a number of people found defendant to be of good character. See Magers v. State,621 N.E.2d 323 (Ind.1993) (sentencing court not obligated to accept defendant's version of what constitutes mitigating circumstances). This is especially true given that others requested the trial court to impose the maximum sentence. (R. at 199, 1941, 1947, 1948, 1950). As there are no mitigators which are clearly and uncontrovertedly supported by the record, we find no error with the trial court in failing to find mitigating circumstances.

Only one aggravator is necessary in order for the trial court to impose an enhanced sentence. Reaves v. State,586 N.E.2d 847, 852 (Ind.1992); Fugate v. State,608 N.E.2d 1370, 1374 (Ind.1993). Thus, defendant's prior criminal history and her need for correction are sufficient to support the enhanced sentence. With two valid aggravators and no mitigators, we cannot find that an enhanced sentence is manifestly unreasonable.

CONCLUSION

The conviction and sentence are affirmed.

[ 671 N.E.2d 420 ]

SHEPARD, C.J., and DeBRULER and DICKSON, JJ., concur.
SULLIVAN, J., concurs in the result.