dissenting.
I respectfully dissent from the majority opinion which sets aside the death penalty. By the appellant's own statements, she and William Lewellen intended to rob the victim. She aided Lewellen in this endeavor by, among other things, helping tie up the victim. However, after the victim had been tied up and while the robbery was still in progress, the victim escaped from his bonds and went into his bedroom where he obtained a shotgun and was attempting to load it.
Appellant alerted Lewellen to that fact and he immediately went to the bedroom and attacked the victim before he could get the shotgun loaded. Appellant went to the kitchen and obtained a butcher knife. The victim died of multiple stab wounds. The butcher knife was found at the scene with human blood on it but the technicians were unable to type the blood. Appellant had a cut on her hand at the time of her arrest.
In her testimony at trial, appellant claimed that she went to the kitchen and obtained the butcher knife in order to separate the men from fighting. However, in view of the facts, the jury was entitled to disbelieve this testimony. There is no question from appellant's own testimony as to whose side she was on when the fight erupted. To speculate that she obtained the butcher knife to force Lewellen to cease his attack on the vietim strains eredu-lity.
There is ample evidence in this case from which the jury could determine beyond a reasonable doubt that appellant and Lewel-len were engaged in a joint enterprise of robbery, and when the victim was able to place himself in a threatening position, the robbers joined in an attack upon him resulting in his death. The inference of appellant's intent to kill may be based upon the inference of the guilt beyond a reasonable doubt on the above recited evidence. See Buckner v. State (1969), 252 Ind. 379, 248 *943N.E.2d 348; Shutt v. State (1953), 233 Ind. 169, 117 N.E.2d 892.
The majority opinion cites Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 for the proposition that one who is merely a party to a robbery which results in death but who did not participate in the killing can be convicted but should not suffer the death penalty. There is no question that this is the law today. However, such is not the factual situation we have in the instant case.
In the case at bar, the jury was entitled to deduce from the evidence that appellant not only engaged in the robbery but joined with Lewellen in the attack upon the victim which resulted in his death. They were entitled to believe that she joined the attack with the butcher knife she had obtained from the kitchen. Thus the jury was entitled to find her intent to kill from the use of a deadly weapon in a manner likely to cause death. Concepcion v. State (1991), Ind., 567 N.E.2d 784.
I believe there is ample evidence in the case at bar to support the verdict of the jury. I would affirm the trial court in all respects.