BOEHM, Justice.
Earl Sauerheber was convicted of murder and sentenced to sixty years imprisonment. In this direct appeal, Sauerheber raises six issues for review: (1) whether the trial court erred in admitting his confession, (2) whether the trial court committed reversible error in admitting testimony, without objection, that he was incarcerated on an unrelated charge, (3) whether the trial court erred in admitting a photograph of the victim and her younger brother, (4) whether delay of one year between arrest and trial violated his Sixth Amendment right to a speedy trial, (5) whether the trial court erred in sentencing him to an aggravated sentence, and (6) whether he received ineffective assistance of counsel at trial and at sentencing.
We affirm the conviction and sentence.
Factual and Procedural Background
On June 16, 1986, Mary Kathleen Phillips reported to Richmond Police that her eleven-year-old daughter Katina had been missing since June 15. Eight weeks later, Katina’s badly decomposed body was discovered in a vacant house about one block from her home. She was found nude with a shirt tied around her neck. Her remaining clothing was piled in another room. Underneath the clothing, the police found a light bulb from which they later obtained a latent fingerprint. An autopsy concluded that Katina had died from asphyxia due to ligature strangulation.
Police attempted to question some minors who lived in a group home within a block of the vacant house where Katina’s body had been found. Katina had been known to associate with some of them and even had two of their names written on her shoes. The director of the home refused the police access to the minors. Earl Sauerheber, then fifteen years old, was a resident of that home. Attendance records revealed that Sauerheber was missing from the home between June 14 and June 16.
In 1995 police first obtained Sauerheber’s fingerprint record and determined that the print on the light bulb matched Sauerheber’s right thumb print. In early August, Detective Dunnington of the Richmond Police Department traveled to southern Indiana where Sauerheber was being detained on a Floyd County conviction. After being advised of and waiving his
Miranda
rights, Sauerheber told Detective Dunnington that he did not know Katina, did not recall her murder, was never in the vacant house where her body was discovered, and did not kill her.
The State then secured a search warrant for samples of Sauerheber’s hair, saliva, and blood. The Wayne County Sheriffs Department transported Sauerheber, who was still being held on the Floyd County conviction, to Richmond for the collection of those samples. Detective Dunnington was present prior to and during the collection, which occurred on August 21, 1995. Sauerheber made seyeral
requests for an attorney during this encounter. Dunnington responded that Sauerheber was not entitled to an attorney at that time and did not question Sauerheber regarding the case.
Although there were no charges pending against him in Wayne County, Sauerheber remained in the Wayne County Jail until August 25 when he was transported to the Richmond Police Department. Detective Dunnington had requested that another officer conduct the interview based on his poor relationship with Sauerheber from prior contacts. Captain William Shake began his interview with Sauerheber by reviewing a standard waiver of
Miranda
rights form. Shake informed Sauerheber that he had the right to remain silent and the right have an attorney present before and during questioning. Sauerheber then asked Shake why he had not been provided an attorney when he requested one four days earlier. Shake explained that an attorney would serve no purpose during the execution of a search warrant. As Shake proceeded to the advisement that Sauerheber could request the appointment of an attorney if he could not afford one, Sauerheber asked if the attorney would be appointed “even before I’m arrested or after I’m arrested?” Shake responded, “probably after you’re arrested.” Sauerhe-ber indicated that he understood his rights and that he wished to waive them. He then gave a videotaped statement in which he admitted the killing.
According to that statement, Sauerheber and Katina had initially engaged in consensual touching and kissing in the vacant house. This escalated to the point where she was naked and he was rubbing his penis between her legs. He continued even after she expressed concern about getting pregnant and asked him to stop. Katina then bit his finger, and he grabbed her around the neck to get her to release his finger. He continued to choke Katina until she was either unconscious or dead. Fearing that he had killed her, he tied her shirt around her neck and dragged her to the room where her body was later discovered.
Sauerheber was arrested on August 28, 1995, after signing the transcribed copy of his August 25 statement. Because Sauerhe-ber was fifteen years old at the time of the offense, the State initiated juvenile proceedings against him. Juvenile jurisdiction was waived on May 9, 1996, and the State charged Sauerheber on May 21 with murder, felony murder, and attempted rape as a class A felony. Prior to trial, Sauerheber’s counsel filed a motion to suppress his August 25, 1995 statement on the ground that his waiver of
Miranda
rights was not made knowingly, voluntarily, or intelligently. The trial court denied this motion after a hearing. Sauerhe-ber was convicted of all counts after a three day jury trial. Prior to sentencing, the trial court vacated the felony murder charge because of merger and the attempted rape count because the statute of limitations had run on that charge as reduced to a class B felony. The trial court then imposed the maximum sentence of sixty years for murder.
I. Admissibility of Confession
A.
Invocation of Right to Counsel
Sauerheber first argues that any further police questioning was prohibited after his request for counsel at the August 21 sampling of his blood. Under
Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), any person in custody has the right to have counsel present (or even appointed) prior to and during interrogation. When a defendant has invoked this right to counsel, the police must cease questioning until counsel has been made available or until the accused initiates further communication with the police.
Edwards v. Arizona,
451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
The purpose underlying the
Miranda
warnings is to protect an individual’s Fifth Amendment privilege against self-incrimination by placing reasonable limitations
on police interrogations.
Miranda,
384 U.S. at 478-79, 86 S.Ct. 1602. This privilege does not apply to the taking of blood samples.
Schmerber v. California,
384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). For that reason alone, Sauerheber’s request had no effect at the time it was made on August 21. Nor did the August 21 request prevent the police from initiating contact with Sauerhe-ber on August 25. Unlike the defendants in
Miranda
and
Edwards,
Sauerheber was not being questioned when he requested counsel. The holdings of those cases are explicitly limited to circumstances in which an individual is “subjected to questioning” or “during custodial interrogation[.]”
Miranda,
384 U.S. at 478, 86 S.Ct. 1602;
Edwards,
451 U.S. at 484, 101 S.Ct. 1880. The Indiana cases cited by Sauerheber also dealt with an assertion of the right to counsel at a time when that right exists, i.e., in the context of custodial interrogation.
See Propes v. State,
550 N.E.2d 755 (Ind.1990);
Sleek v. State,
499 N.E.2d 751 (Ind.1986);
Minnick v. State,
467 N.E.2d 754 (Ind.1984).
The rationale of the authorities on which Sauerheber relies is that the combined effect of custody and interrogation is potentially inherently coercive. In the absence of either, these authorities are not controlling. We are dealing here with an issue of federal constitutional law on which the Supreme Court of the United States has the last word. The Supreme Court has stated recently that
Edwards
applies only when the suspect ha[s]
expressed
his wish for the particular sort of lawyerly assistance that is the subject of
Miranda.
It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney
in dealing with custodial interrogation by the police.
McNeil v. Wisconsin,
501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (internal quotation marks and citations omitted, emphasis in original). The Supreme Court further observed, albeit in
dicta:
“We have in fact never held that a person can invoke his
Miranda
rights anticipatorily, in a context other than ‘custodial interrogation’.... Most rights must be asserted when the government seeks to take the action they protect against.”
Id.
at 182 n. 3, 111 S.Ct. 2204. This strongly suggests that the rights under
Miranda
and
Edwards
do not extend to permit anticipatory requests for counsel to preclude waiver at the time interrogation begins. To the contrary, as put by the Seventh Circuit, “there are certain ‘windows of opportunity
in which a defendant must assert his
Miranda
right to counsel.”
United States v. LaGrone,
43 F.3d 332, 338 (7th Cir.1994).
See also United States v. Thompson,
35 F.3d 100 (2d Cir.1994)
(Miranda
rights may not be invoked outside of the context of custodial interrogation);
accord Alston v. Redman,
34 F.3d 1237 (3d Cir.1994);
United States v. Wright,
962 F.2d 953 (9th Cir.1992). The context of interrogation may be found before actual questioning begins. However, Sauer-heber’s August 21 encounter had an explicit purpose—sampling—other than interrogation and there is no indication that the police contemplated questioning Sauerheber at that time.
Cf. United States v. Kelsey,
951 F.2d 1196 (10th Cir.1991).
We conclude from these precedents that because Sauerheber’s August 21 request for counsel fell outside one of those windows, the police were not prevented under
Edwards
from questioning him
four days later, after advising him at that time of his
Miranda
rights and receiving no request for an attorney.
B.
Advisement of Miranda Rights
Sauerheber also challenges his confession on the grounds that Captain Shake misadvised him of his
Miranda
rights when he told him that an attorney would be appointed “probably after you’re arrested.” As
Miranda
itself made clear, the specific warnings given to a suspect need not use the precise language of the decision.
Miranda,
384 U.S. at 476, 86 S.Ct. 1602;
see also California v. Prysock,
453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981).
The Supreme Court has previously held that the advisement “[a lawyer] will be appointed for you ... if and when you go to court” satisfies
Miranda,
as it simply anticipates a suspect’s question regarding when counsel will be appointed.
Duckworth v. Eagan,
492 U.S. 195, 198, 204, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). As was true in
Duckworth,
a case arising out of an Indiana state criminal trial, this is a proper statement of the law in Indiana where counsel is appointed at the initial hearing which occurs after arrest and the filing of charges.
Id.
at 204, 109 S.Ct. 2875;
see also
Ind.Code §§ 35-33-7-6 & 35-33-7-3(a) (1998). Captain Shake’s “probably” response is arguably a better statement of Indiana law than the one upheld in
Duckworth,
because it at least anticipates the possible appointment of counsel prior to the time of arrest or initial hearing for a suspect who makes a request during custodial interrogation. Under
Duck-worth,
Sauerheber has not presented a viable constitutional claim.
C.
Voluntariness of Waiver
Sauerheber also challenges the admission of his confession on the grounds that the State failed to prove that he waived his right to counsel knowingly and voluntarily. The State must prove the voluntariness of the waiver of
Miranda
rights and the volun-tariness of a confession by a preponderance of the evidence.
Smith v. State,
689 N.E.2d 1238, 1246 n. 11 (Ind.1997). We look to the totality of the circumstances surrounding the waiver or confession in making this determination.
Carter v. State,
686 N.E.2d 1254, 1257 (Ind.1997). Our focus is whether the waiver or confession was free and voluntary, and not induced by any violence, threats, or other improper influence.
McFarland v. State,
519 N.E.2d 528, 530 (Ind.1988). When considering the admissibility of a confession on appeal, we will uphold the finding of the trial court if there is substantial evidence of probative value to support it.
Snellgrove v. State,
569 N.E.2d 337, 343 (Ind.1991).
Sauerheber does not allege any violence, threats or improper influence; rather, his asserted involuntariness focuses on his disappointment and confusion with not being provided an attorney on August 21 and the four days thereafter while he remained in the Wayne County Jail. Prior to interrogating Sauerheber on August 25, Captain Shake began reviewing a standard
Miranda
waiver form with him. Shake told Sauerheber, “you have a right to have a lawyer present before we ask you any questions and have him with you during questioning. Do you understand that?” Sauerheber then made several statements indicating that he did not understand why he was not able to talk to an attorney during the August 21 search. Sauerheber’s queries concluded with the following exchange:
Shake: We had a court order to bring you up here for these samples.
Sauerheber: Uh ... like I say, I set there, didn’t know, what you know what was going on, nothing like that, and like I say, that’s why I wanted ttf talk to an attorney and see if everything, you know, whatever.
Shake: I understand that.
Sauerheber: Okay, but go ahead.
Shake: Let’s see, where’d I leave off, oh ... you have the right to have a lawyer present before we ask you any questions ....
Sauerheber’s statements and questions during this advisement colloquy dealt exclusively with his past request for counsel. Captain Shake responded to those inquiries patiently and thoroughly. As noted above, Sauerheber finally indicated apparent satisfaction with
the explanation and instructed Captain Shake to “go ahead.” In contrast to Sauer-heber’s questions about the August 21 episode, Shake’s advisement of present rights was clear and unequivocal. In plain language, he informed Sauerheber that he did not have a right to counsel during the execution of a search warrant on August 21 but did have that right during questioning on August 25.
In sum, we conclude from a review of the totality of circumstances that Sauerheber was properly advised of his
Miranda
rights and knowingly and voluntarily waived those rights. Any confusion surrounding the August 21 denial of counsel was adequately explained by Captain Shake prior to the August 25 waiver. Sauerheber’s confession was properly admitted into evidence.
II. Evidence of Incarceration on Other Charges
Sauerheber next asserts that it was fundamental error for the State to ask Shake if Sauerheber was “incarcerated for an unrelated matter” at the time of his confession.
Although this evidence arguably would be inadmissible under Indiana Rules of Evidence 408 and 404(b), defense counsel did not object to the question or its affirmative answer. Therefore, appellate review is waived unless the admission of evidence constitutes fundamental error.
Turner v. State,
682 N.E.2d 491, 497 (Ind.1997). In order to qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible.
Barany v. State,
658 N.E.2d 60, 64 (Ind.1995). In light of all the evidence presented at trial, the introduction of evidence of incarceration for a single, undefined offense does not rise to the level of fundamental error.
III. Admission of Photograph
Sauerheber also contends that the trial court erred in admitting a photograph of the victim and her younger brother taken several months prior to the murder. Defense counsel objected on the grounds that the photograph was irrelevant and an attempt to invoke the sympathy of the jury.
We review the admission of photographic evidence under an abuse of discretion standard.
Isaacs v. State,
659 N.E.2d 1036, 1043 (Ind.1995). The focus of our inquiry is whether the photograph is relevant and whether its probative value is substantially outweighed by its prejudicial impact.
Humphrey v. State,
680 N.E.2d 836, 842 (Ind.1997); Ind. Evidence Rules 401, 403. We have previously found a pre-death photograph to be “marginally relevant” in a murder trial.
Humphrey,
680 N.E.2d at 842. More importantly, this particular photograph was a larger version of the same one shown to the defendant when he was first questioned about Katina’s murder. It is therefore relevant to show that Sauerheber’s denial and subsequent confession related to the same murder with which he was charged.
We have previously discouraged the admission of photographs that smack of victim impact evidence because of their possible emotional impact on the jury.
Id.
In this case, however, the trial court did not abuse its discretion by admitting the photograph.
IV. Speedy Trial Right
Sauerheber next argues that he was denied his right to a speedy trial under the Sixth Amendment.
Sixth Amendment claims are examined under a balancing test that focuses on four factors: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant.
Barker v. Wingo,
407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972);
Gilmore v. State,
655 N.E.2d 1225, 1227 (Ind.1995). The length of delay is a “triggering mechanism,” and the other factors need only be considered once the delay is “presumptively prejudicial.”
Barker,
407 U.S. at 530, 92 S.Ct. 2182.
The delay from arrest to trial in this case was only one year. We nonetheless find this delay sufficient to trigger a consideration of the other factors.
See Lahr v. State,
615 N.E.2d 150, 152 n. 3 (Ind.Ct.App.1993) (collecting eases). Of the four factors, however, the only one that weighs in Sauer-heber’s favor is the reason for delay, as most of it was the result of the State’s tardiness in securing his waiver from juvenile court. This is clearly outweighed by the relative brevity of the delay, Sauerheber’s decision not to assert his speedy trial right', and the absence of any prejudice as a result of the delay. Sauerheber was incarcerated on another charge, and the crime was already ten years old. Under these circumstances, neither wrongful incarceration nor any prejudice to the preparation of his case is suggested, much less established. Sauerheber was not denied his Sixth Amendment right to a speedy trial.
V. Sentencing Issues
Sauerheber next alleges several errors relating to his sentencing. Sentencing is within the sound discretion of the trial court, and we will review sentencing only for abuse of discretion.
Grand v. State,
671 N.E.2d 411, 418 (Ind.1996).
Sauerheber first argues that the trial court erred when it referred to the age of the victim as a “statutory” aggravator, because the statutory aggravator that “[t]he victim of the crime was less than twelve (12) years of age” did not exist at the time of the murder.
Sauerheber is correct in this observation, but we find this error to be of little consequence. The statute existing in 1986 provided that the specifically delineated aggravating circumstances “do not limit the matters that the court may consider in determining the sentence.” Ind.Code § 35-38-1-7(d) (Supp.1986). Although this factor was erroneously referred to as a “statutory” aggravating factor, it was nonetheless proper to consider as an aggravating factor.
Sauerheber next asserts that the trial court erred in finding as an aggravating factor that the defendant’s history of criminal activity has been “principally against children.” During the sentencing hearing, defense counsel objected to the trial court’s consideration of an inculpatory statement given by the defendant when he was fourteen
years old in which he admitted molesting a ten year old girl. The objection was grounded in the failure of the police to secure a valid juvenile waiver prior to taking the statement.
A crime admitted by the defendant is properly considered in evaluating prior criminal history.
Tunstill v. State,
568 N.E.2d 539, 544 (Ind.1991). Although a juvenile waiver is a prerequisite for such evidence to be admissible at trial, the statement can nonetheless be considered in a sentencing hearing where the trial court is not confined to evidence that would be admissible at trial.
Madden v. State,
549 N.E.2d 1030, 1034 (Ind.1990). The statement was made after Sauerheber had indicated that he wanted to give a statement and that the statement was of his own free will. The statement contains the necessary “indicia of reliability” for admissibility at sentencing.
See Powell v. State,
644 N.E.2d 82, 83 (Ind.1994).
Moreover, the conclusion that Sauerheber has a history of committing crimes against children is amply supported by other items in the record. The trial court noted that the victim of the defendant’s misdemeanor battery conviction was his two month old child, and the victim of his felony battery conviction was a twelve year old child.
Sauerheber also contends that the trial court erred in considering, as part of his criminal history, that he had witnessed his brother kill a person then helped him dispose of her body. This event was described in the statement given by the defendant on August 25, 1995. Because that confession was properly admitted as discussed in Part I above, the trial court did not err in considering its content at sentencing.
Finally, Sauerheber asserts that the trial court gave improper weight to crimes that occurred after the commission of Katina’s murder. Criminal activity that occurs subsequent to the offense for which one is being sentenced is a proper sentencing consideration.
Hoage v. State,
479 N.E.2d 1362, 1366 (Ind.Ct.App.1985). The defendant’s aggregate history of criminal activity was properly used as an aggravating circumstance; the fact that most of this activity occurred after Katina’s murder does not require the trial court to attach any less significance to it.
In sum, the trial court did not err in sentencing the defendant. Even a single aggravating circumstance may be sufficient to sustain an enhanced sentence.
Brown v. State,
667 N.E.2d 1115, 1117 (Ind.1996). In this case, the trial court properly found more than one aggravating factor, explained each, and performed the requisite weighing process.
Hammons v. State,
493 N.E.2d 1250, 1254 (Ind.1986).
VI. Ineffective Assistance of Counsel
As a final issue, Sauerheber contends that he was denied his Sixth Amendment guarantee of effective representation by counsel. To prevail on such a claim, Sauerheber must show that (1) trial counsel’s performance was deficient under prevailing professional norms and (2) the deficient performance was so prejudicial to his case that he was denied a fair trial.
Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
Taylor v. State,
689 N.E.2d 699, 705 (Ind.1997). There is a strong presumption that counsel’s performance was not deficient, and this presumption must be overcome with strong and convincing evidence.
Taylor,
689 N.E.2d at 705.
Sauerheber first asserts that trial counsel was ineffective in not arguing
Edwards
as a ground for suppressing his confession. As discussed in Part I above, trial counsel was correct in not raising the issue, because it would not have prevailed.
Sauerheber next argues that his trial counsel was deficient because he failed to make a pretrial objection to Count III, attempted rape as a class A felony.
The trial
court vacated the rape count prior to sentencing because the basis for elevating the rape from a class B felony to a class A felony was the murder of which Sauerheber was convicted in Count I. The trial court therefore reduced the conviction to a class B felony, then found that the five year statute of limitations for a class B felony had expired nearly five years prior to the filing of charges. Ind.Code § 35-41-4-2(a)(l) (1998). The propriety of this ruling is not raised on appeal.
When an ineffective assistance of counsel claim is based on trial counsel’s failure to make an objection, the appellant must show that, had a proper objection been made, it would have been sustained.
Lloyd v. State,
669 N.E.2d 980, 985 (Ind.1996). The reduction of the rape count to a class B felony was not required until the jury convicted Sauerheber of both murder and rape as a class A felony. Had the jury convicted Sauerheber of rape and not murder, this reduction would not have been warranted. A pretrial motion to dismiss Count III would not have been sustained; therefore, trial counsel was not ineffective for failing to make one.
Sauerheber also contends that his trial counsel’s performance was deficient in failing to object to evidence that he was incarcerated on an unrelated matter at the time he gave his confession.
See
Part II,
supra.
While an objection to this testimony may have been sustained, any prejudicial effect of the testimony is minimal. To establish prejudice, Sauerheber must show there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland,
466 U.S. at 694, 104 S.Ct. 2052. The mere mentioning of Sauer-heber’s incarceration on another charge during the course of a three day jury trial does not rise to that level. The jury’s decision to convict was likely based, not on Sauerheber’s incarceration for some other undefined crime, but on evidence that his fingerprint was found at the crime scene, that he was absent from his group home at the time of Katina’s disappearance, and that he confessed to killing her.
As a final point, Sauerheber asserts that trial counsel’s performance at his sentencing hearing was deficient. Specifically, he argues that trial counsel should have corrected the State’s assertion that the victim’s age was a statutory aggravating factor. As noted in Part V above, this distinction is of little consequence. Any deficiency in this regard was not prejudicial, as the trial court was well within the law to consider the factor as a non-statutory aggravator.
Sauerheber also contends that his trial counsel was deficient in failing to present mitigating evidence. The Presen-tence Report contained evidence that the defendant had lived a troubled childhood that included abuse by his father, abandonment by his mother, placement in foster homes and ultimately a children’s home, and usage of alcohol and marijuana at a very young age. Although trial counsel drew the court’s attention to this section of the Presentence Report, he did not offer any direct evidence to support or explain Sauerheber’s childhood. Presentation of such evidence would have been, to some extent, cumulative. Failure to explain these factors, which were already before the court, does not fall below prevailing professional norms, especially since the trial court is not required to find the existence of a mitigating factor that has been argued by counsel.
Fugate v. State,
608 N.E.2d 1370, 1374 (Ind.1993).
Sauerheber cites
Averhart v. State,
614 N.E.2d 924, 930 (Ind.1993) for the proposition that trial counsel’s failure to present any evidence at sentencing save a statement by the defendant and his mother constituted
ineffective assistance of counsel meriting reversal. That case is distinguishable, however, in at least two important respects: First,
Averhart
was a death penalty ease in which mitigating evidence assumes much greater importance. This Court observed that counsel’s efforts “might be effective representation at an ordinary felony sentencing hearing. ...”
Id.
Second,
Averhart
was also a postconviction ease in which trial counsel testified that he made no investigation for additional witnesses nor did he even discuss the testimony of Averhart or his mother with them prior to the sentencing hearing.
Id.
In contrast, we do not know the degree of investigation undertaken by Sauerheber’s counsel, save that he was granted a two-week continuance upon his request that “additional time is needed to prepare for sentencing hearing.” We also know that trial counsel brought the potentially mitigating evidence to the attention of the court and noted that it was “not offered to justify what has happened in this case.” Sauerheber’s trial counsel was not ineffective.
Conclusion
Earl Sauerheber’s conviction for murder and sixty year sentence are affirmed.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
SELBY, J., concurs in result.