¶1concurring in result.
¶2Unlike the decisions in Cotto v. State, 829 N.E.2d 520 (Ind.2005) and Cox v. State, 780 N.E.2d 1150 (Ind.Ct.App.2002), the matter of prior arrests and investigations of Johnson were not being considered in the context of his "character in terms of the risk that he will commit another crime." Cotto, 829 N.E.2d at 526. In Cox, the court specifically observed that the prior arrests of Cox were not considered by the trial court "as part of his criminal record." 780 N.E.2d at 1157. Those cases are therefore to be distinguished from the case before us.
¶3Here, to the contrary, the jury clearly and explicitly found:
"We the jury find that the State of Indiana has proven beyond a reasonable doubt the charged aggravating cireum-stances of the Defendant's criminal history, including arrests and pending investigations." "Tr. at 460-61 (emphasis supplied).
¶4It was equally clear that it was upon this jury determination that the trial court focused in sentencing Johnson, not that he was likely to commit another crime.
¶5Accordingly, I conclude that the trial court erroneously considered prior arrests and pending investigations as part of Johnson's criminal record and on that basis, at least in part, imposed the enhanced sentence. My conclusion is premised upon the oft-stated principle that mere "arrest[s] [and/or investigations] ... may not be properly considered as evidence of criminal history" so as to justify an enhanced sentence. Cotto, supra,829 N.E.2d at 526; Scheckel v. State, 620 N.E.2d 681 (Ind.1993); see also Asher v. State, 790 N.E.2d 567 (Ind.Ct.App.2003).
¶6Nevertheless, I do not find the error to warrant reversal. The other aggravators found by the jury and used by the court in sentencing are adequate. I therefore concur in the affirmance of Johnson's conviction and sentence.