concurring.
I vote to affirm these convictions, and, despite numerous errors in the sentencing process find on review that the lone aggra-vator outweighs the mitigators and that the death sentence is appropriate.
The trial court in its written judgment included the following findings with reference to the aggravating and mitigating circumstances:
1. That the defendant ... did commit the crime of Murder upon the person of . while lying in wait in her dwelling.
3. That the Defendant ... did commit the offense of Criminal Confinement. ...
5. That the defendant ... did intentionally kill ... during the course of committing the burglary, criminally confining and raping ... after lying in wait for her.
7. That the Court has found no mitigating factors that could be considered.
I interpret this order as representing that the court found and weighed four distinct death aggravators, namely intentional killing-burglary, intentional killing-eriminal confinement, intentional killing-rape, and intentional killing-by lying in wait.
In this case the defendant broke into the victim's house at night, removed light bulbs, armed himself with a knife from the kitchen, drank the victim's wine, and secreted himself. Appellant was well ac quainted with the victim and her house, having visited it many times as a social guest. She appeared in the house, and when she sought to leave he jumped out, seized her, tied her hands, led her from the house at knife point to a bridge about a block away where he finished a pint of whiskey, removed articles of her clothing, had sexual intercourse with her, and stabbed and killed her. The length of time between the abduction and the stabbing is not proved in the evidence.
There is real difficulty here with the trial court's interpretation and application of the aggravator stated in 1.0. 85-50-2-9(b)(8), "The defendant committed the murder by lying in wait." The trial court ignores the preposition "by," chosen by the legislature for this formulation, and substitutes "while" and "after" for it. The essential elements of this aggravator are watching, waiting and concealment from the person with the intent to kill, and choosing to act upon that intent with the appearance of the hapless victim. Davis v. State (1985), Ind., 477 N.E.2d 889. Thacker v. State (1990), Ind., 556 N.E.2d 1315. Because this killing by appellant occurred a considerable distance away from the house where the concealment occurred, and because it may have occurred several hours after the abduction, there is an insufficient connection or nexus to show that the murder was by lying in wait. Moreover, the trial court's finding No. 1, that appellant killed while lying in wait in the house, is patently unsupported in the record, as it is uncontro-verted that the killing did not occur at the dwelling but a good distance away on an*1053other street. Also, finding No. 5 is erroneous in that it misinterprets the aggravator to require only that the watching, waiting and concealment precede the act of killing in time. Clearly, more in the way of connection is required. Davis v. State, 477 N.E.2d at 897.
Findings Nos. 8 and 5 are contrary to law in employing as an aggravator the conclusion that appellant intentionally killed during the course of criminally confining. The crime which the jury was given in its sentence recommendation instructions and the crime used by the trial court in sentencing is that of criminal confinement, established by I.C. 85-42-3-8. There is no such death aggravator. An intentional killing while committing kidnapping, I.C. 85-42-8-2, is an aggravator, however, that crime was not charged or included in instructions.
The remaining aggravator, ie., killing intentionally in the course of a rape, I find properly found and supported by the evidence. Appellant was twenty two years of age. The circumstances surrounding this killing include a beating, physical choking, and the use of at least three separate weapons: two different knives and a needle. The weight of this aggravator is in the high range.
The trial court found no mitigating factors. I disagree. Appellant was incessantly drunk at this period of his life. When placed on probation a few months before this murder for a burglary committed while intoxicated, he was determined an alcoholic in need of treatment. All four psychiatrists, while finding no mental illness or disturbance, deemed his history of drinking excessively to be at least credible. I find this condition to be a mitigator having a low range value.
Appellant's conduct following the killing included immediately identifying himself to the police and telling them and others a fanciful and incredible story about having seen the crime. He thusly made himself an immediate major suspect. Upon modest interrogation, he confessed. I- find this conduct to be a mitigator having a low range value.
Appellant has no significant history of prior criminal conduct. His recent felony conviction was for breaking into the other side of the double that the victim occupied, and did not extend further. As a juvenile he had a true finding of delinquency, but was placed on probation and showed a satisfactory adjustment. I find this mitigator to be in the medium range.
The jury was unable to unanimously recommend the death penalty for appellant. I would grant this fact mitigating value in the low range.
Appellant's crime, character, and background is similar to those considered in Woods v. State (1989), Ind., 547 N.E.2d 772, and Johnson v. State (1992), Ind., 584 N.E.2d 1092. Woods was nineteen, Johnson was twenty, and appellant was twenty-two. Woods stabbed an elderly neighbor in his home, killing him and stealing his property. Johnson beat an elderly woman in her home, killing her, stealing her property and burning the house down. Appellant stabbed his victim with three different instruments, choked her, and violated her person sexually, while she was bound and gagged. The weight of the aggravator in this case is greater than in Woods and Johnson.
Woods was suffering from a borderline mental disorder, while Johnson was a longtime abuser of drugs and alcohol. Woods also received the benefit on appeal of mitigation for his lack of an adult criminal record and a turbulent childhood. The Woods and Johnson cases differ in two significant respects in the area of mitigation. In those two cases the jury made recommendations of death, whereas here the jury was unable to make a recommendation of death. In those two cases there was no conduct by Woods or Johnson which rendered them immediate major suspects, whereas here such conduct is present. Despite the presence of the additional weight of these mitigating factors in appellant's case, it is my judgment that the death penalty is not arbitrary or capricious, is not manifestly unreasonable, and is here appropriate as it was in Woods and Johnson. The mitigators here have a greater *1054weight, but so also does the aggravator. The mitigators are outweighed by this lone aggravator.
KRAHULIK, J., concurs.