concurring and dissenting: I agree that the defendant’s convictions should be affirmed. I also agree with the trial court’s finding that the defendant committed the murder in an especially heinous, atrocious, and cruel manner. I disagree with the finding that the defendant killed Mr. Barnett to avoid arrest and prosecution for initially assaulting him.
*122The present case is distinguishable from Reed. Here, the only evidence to support the aggravating circumstance is McKinney’s admission to Special Agent Williams. However, McKinney disputes he ever made the statement, and it is not on the tape.
We must review all of the evidence to determine the existence of an aggravating circumstance. Thus, even if we accept that McKinney made the statement, the problem is that he did not make the statement when initially describing how he killed Barnett, which is on the taped statement. In considering all the evidence, I do not find the evidence sufficient to support existence of this aggravating circumstance.
It is clear that McKinney intended to kill Barnett and not to just assault him. He continued to assault and batter Barnett until he was dead. McKinney initially got Barnett in a headlock for “fifteen, twenty minutes and finally he quit breathing.” McKinney thought he was dead at that point and, when Barnett called his name, McKinney got him down again, choked him, and stabbed him repeatedly in the throat with scissors, and still Barnett did not die. McKinney then grabbed a steak knife and cut Barnett’s throat. He still was not dead, so McKinney put “something over his face.” Although we do not adopt defendant’s suggestion that the killing to avoid arrest or prosecution must be the motivating force to commit the murder, it should be clear that it was not an afterthought or an incidental factor.
The evidence indicates that McKinney killed Barnett out of anger, rage, and emotional instability. Further, the crime for which the State contends he was avoiding arrest was the initial assault. This was a continuous offense of intentional murder, and the assault and battery were part of and merged with the murder. This court has long held that where the aggravated assault or battery results in the death of the victim, the defendant can only be charged with felony murder. The basis for our holding is that the initial aggravated assault or battery is not distinct from the homicide and merges with the homicide to constitute only one offense. It seems disingenuous to me to hold that the merger doctrine does not likewise apply in determining the existence of an aggravating circumstance. Since, in my view, there is only one aggravating cir*123cumstance, I would vacate the sentence and remand for the trial court to weigh the one aggravating circumstance against any mitigating circumstances and to resentence the defendant.
Six and Larson, JJ., join in the foregoing concurring and dissenting opinion.