dissenting: I join in C.J. McFarland’s dissent and respectfully dissent from the majority’s reasoning for reversing Spiy’s hard 40 sentence. The majority misconstrues the statute and the existing case law in concluding that the premeditated ax murder of the victim was not committed in an especially heinous, atrocious, or cruel manner.
The murder of Chaffee occurred in August of 1993. The standard for reviewing hard 40 sentences for crimes committed prior to 1994 is whether a rational factfinder reviewing all the evidence, viewed in the light most favorable to the prosecution, could find the existence of the aggravating factor beyond a reasonable doubt. State v. Alford, 257 Kan. 830, 837-38, 896 P.2d 1059 (1995).
One of the considerations for determining whether to sentence to a hard 40 term a defendant who has been convicted of premeditated murder is whether the murder was committed in an especially heinous, atrocious, or cruel manner. K.S.A. 1993 Supp. 21-4625(6). In State v. Willis, 254 Kan. 119, Syl. ¶ 4, 865 P.2d 1198 (1993), we defined the following terms: “heinous” means extremely wicked or shockingly evil; “atrocious” means outrageously wicked and vile; “cruel” means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others. A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. State v. Duke, 256 Kan. 703, 716, 887 P.2d 110 (1994).
Where the evidence shows that the defendant inflicted serious mental anguish or serious physical abuse on the victim, we will uphold a finding that the manner of death was especially heinous, atrocious, or cruel. Post-death mutilation on the corpse of the victim does not support a finding that the manner of death was especially heinous, atrocious, or cruel.
*539The general rule in Kansas is that a premeditated shooting murder is not a crime committed in an especially heinous, atrocious, or cruel manner. To impose the hard 40 sentence for a premeditated shooting murder, there must also be evidence that the victim suffered an awareness of his or her impending death prior to the shooting or some form of torture prior to death. If no such evidence exists, a hard 40 sentence based on the shooting and a finding that the manner in which the crime was committed was especially heinous, atrocious, and cruel must be set aside. See State v. Cook, 259 Kan. 370, 401-03, 913 P.2d 97 (1996).
We have also refused to sustain a finding that the crime was committed in an especially heinous, atrocious, or cruel manner where the defendant exercised care to minimize the physical trauma in causing the victim’s death. See State v. Follin, 263 Kan. 28, 51, 947 P.2d 8 (1997). In Follin, the defendant received a hard 40 sentence for killing his two children. The defendant was a mentally distraught father who inserted a knife three times into the heart of each child. On appeal, the Follín court set aside the hard 40 sentence, finding that the killings could have been done in such a way as to minimize the anguish and physical abuse on the children. 263 Kan. at 51.
In post-death mutilation cases we have rejected the finding that the crime was especially heinous, atrocious, or cruel. Murder is complete with the death of the victim. Subsequent mutilation of the victim’s body does not constitute the manner in which the murder was committed. Cook, 259 Kan. at 400. Therefore, post-death mutilation is not evidence that the premeditated murder was committed in an especially heinous, atrocious, or cruel manner.
Where the manner of death was especially heinous, atrocious, or cruel, and the victim was unaware of his or her impending death, we have affirmed the hard 40 sentence. In State v. Kingsley, 252 Kan. 761, 851 P.2d 370 (1993), there was no evidence that the victim was conscious when the defendant dragged her from room to room, stabbed her, cut her throat, placed matches in her pubic hair, and set the house afire. The jury was instructed that the phrase “heinous, atrocious or cruel is directed to those crimes where the death of the victim was preceded by torture of the victim *540or serious physical abuse.” 252 Kan. at 791-92. The hard 40 sentence was imposed. The defendant appealed, claiming that because the victim had not been aware of the manner of her death, imposition of the hard 40 sentence was error.
The Kingsley court held that serious physical abuse which occurs after the victim is rendered unconscious but before the victim’s death is relevant in determining if the victim was murdered in an especially heinous, atrocious, or cruel manner. “What is relevant to that determination is the manner in which the victim was murdered.” 252 Kan. at 794. Therefore, a finding that the victim was aware of his or her fate or felt the physical trauma that resulted in the victim’s death is not necessary to find that the manner in which the defendant killed the victim was especially heinous, atrocious, or cruel.
Although Chaffee was unaware of the multiple ax blows to the back of her head, she was alive prior to Spry delivering the ax blows. Unlike the physical abuse in the post-death mutilation cases where death occurs and the defendant then commits furthers acts of violence on the corpse of the victim, the act of delivering multiple ax blows to Chaffee’s head was one continuous act of physical violence inflicted by Spry to cause Chaffee’s death. Spry had no intention of mutilating Chaffee’s corpse with subsequent blows to her dead body; his sole intent in delivering each of the blows was to cause the death of Chaffee.
After reviewing all the evidence, viewed in a light most favorable to the prosecution, I am convinced that a rational factfinder could have found beyond a reasonable doubt that the ax murder of the victim was especially heinous, atrocious, and cruel. Under these facts, I would affirm the district court’s imposition of the hard 40 sentence.