dissenting.
I respectfully dissent. For the reasons stated below, I think there is clear proof of assisting a criminal but insufficient evidence to support the convictions for murder, feticide and conspiracy to murder.
Shane’s murder conviction was based solely on accomplice liability. To sustain a conviction as an accomplice, “there must be evidence of the defendant’s affirmative conduct, either in the form of acts or words, from which an inference of common design or purpose to effect the commission of a crime may be reasonably drawn.” Peterson v. State, 699 N.E.2d 701, 706 (Ind.Ct.App.1998). Mere presence at the scene is not sufficient to prove participation. Wright v. State, 690 N.E.2d 1098, 1106 (Ind.1997).
In this case, the only evidence supporting accomplice liability was (1) Shane’s statement to police that he drove Hicks to Koontz’s mobile home early in the morning on July 28, 1994, so that Hicks could have sexual intercourse with Koontz, (2) statements by Hicks over a period of time that he wanted to kill Koontz, and (3) testimony from Jessica Daniel that two days prior to the murder Shane repeated Hicks’ desire to kill Koontz and to have Shane drive Hicks to her mobile home. As to the first, Shane also stated that he had taken Hicks to Koontz’s trailer for the same purpose on other occasions, and no evidence contradicted this. As to the third, Daniel also testified that at the time Shane reported Hicks’ statement, Shane shook his head as if to say it was a “crazy” idea. Over a period of at least two years, Hicks had frequently repeated but never implemented threats on Koontz’s life. Given the other evidence that Shane had driven Hicks to Koontz’s home on several occasions during that period, I do not believe this record supports a finding beyond a reasonable doubt that Shane had reason to *401know Hicks planned to kill Koontz that night.
The majority also points to testimony of a witness who attested to Shane’s dislike of Koontz, and reported conversations that took place over two years before Koontz’s death. In one of those, Hicks and Shane discussed a “perfect murder” that bore no relationship to Koontz’s killing. In the second, Shane responded “it could be done, we could do that” to Hicks’ expressed desire to kill Koontz. Personal animosity is insufficient to support a murder conviction. The statement regarding the “perfect murder,” made at least two years prior to the murder, was wholly extraneous for the reasons the majority identifies. Finally, the response by Shane to Hicks’ statement that he wanted Koontz dead was also far too remote in time to establish Shane’s intent on the night of the murder, given that Shane had driven Hicks to Koontz’s home several times in the interval. Even drawing all reasonable inferences in favor of the verdict, I think there is insufficient evidence to find beyond a reasonable doubt “an inference of common design or purpose to effect the commission of a crime.” Because the feticide conviction follows from the murder conviction, that, too, should be vacated.
For similar reasons, I also think there is insufficient evidence to support Shane’s conspiracy conviction. The majority states that the evidence to support the conspiracy conviction is largely the same as that used to support the murder conviction. Although a formal agreement is not required to support a conspiracy conviction, in this case I find no evidence from which to draw an inference of an agreement. The conversation between Hicks and Shane two days before the murder may support an inference that Shane knew Hicks wanted to kill Koontz, but certainly does not support an inference of an agreement between the two. Shane’s reported response to Hicks’ expressed desire to kill Koontz and have Shane drive him to her home suggests the opposite inference. The other evidence the majority points to, including the disposal of the weapon and Shane’s changing story to police, supports the conviction for assisting-a criminal, but adds nothing to the conspiracy conviction. Because there is insufficient evidence to support an agreement between Shane and Hicks to kill Koontz, I would vacate the conspiracy conviction.
As a final point, I think the fact that two convictions rest on the same action by Shane is also problematic. The only action Shane took to “participate” in the murder was to drive Hicks to Koontz’s home. The “substantial step” charged in the conspiracy was also driving Hicks to Koontz’s home. This looks like multiple punishment for the same act which is proscribed by our common law. See Thompson v. State, 259 Ind. 587, 592, 290 N.E.2d 724, 727 (Ind.1972) (before the court may enter judgment and impose sentence upon multiple counts, the facts giving rise to the various offenses must be independently supportable, separate and distinct). Accordingly, even if there were sufficient evidence to support both the murder and conspiracy charges, conviction on both would be improper.