Our supreme court later clarified, however, that "[n]either Hamman nor Gambill stand for the proposition that the jury's finding of guilty on a lesser included offense precludes the trial judge from examining the facts of the case to determine whether or not he should mitigate, enhance, or impose the presumptive sentence upon appellant." Kirkley v. State, 527 N.E.2d 1116, 1119 (Ind. 1988). If a trial court does not expressly indicate that it considered a jury verdict to be erroneous, it is not an abuse of discretion for the court to merely identify particular circumstances of an offense as aggravating when sentencing the defendant.
In fact, the judge in no way reflects that he considered the jury verdict to be erroneous and stated that he accepted the verdict. In Kirkley v. State (1988), Ind., 527 N.E.2d 1116, 1119 this Court stated: "Neither Hamman nor Gambill stand for the proposition that the jury's finding of guilty on a lesser included offense precludes the trial judge from examining the facts of the case to determine whether or not he should mitigate, enhance, or impose the presumptive sentence upon appellant."
However, Gambill and its line of cases prohibit a trial judge from enhancing a defendant's sentence upon the judge's belief that the jury erred in not returning a verdict for a more serious crime. Kirkley v. State (1988), Ind., 527 N.E.2d 1116; Darby v. State (1987), Ind., 514 N.E.2d 1049; Hamman v. State (1987), Ind., 504 N.E.2d 276; Hammons v. State (1986), Ind., 493 N.E.2d 1250, reh'g denied, 496 N.E.2d 1284; Wilson v. State (1984), Ind., 458 N.E.2d 654; Gambill, 436 N.E.2d 301. The present case involves no such situation. A trial judge may consider uncharged crimes as part of a defendant's criminal history, which is a statutory aggravating circumstance.