concurring and dissenting.
As accurately pointed out by the majority, the aggravating circumstance upon which the claim for the sentence of death was based is I.C. 35-50-2-9(b), as applicable at the time of this offense, which provided:
The defendant committed the murder by intentionally killing the victim while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery.
A premise behind this provision is that all who may intentionally kill are not deserving of the death penalty. The purpose of the provision is to guide the process of selecting the sub-class of those who de*1060serve the death penalty from the entire class of those who have killed another intentionally. The main characteristic of this sub-class is the contemporaneous presence in the perpetrator’s mind of the intent to kill and the intent to commit one of the other enumerated felonies, together with conduct toward the dual felonious ends which is motivated by both intents. It is reasonable to conclude that the legislature, in enacting this aggravator, was thinking about the burglar who, having been discovered in the home by the occupant, pulls his weapon and kills. It was thinking about the mugger who, having accosted a citizen on the street and demanded and received money, shoots and kills. It was thinking about the man who, having abducted and raped a woman, shoots and kills her. It appears much less certain to me that it was thinking about the person who intentionally kills while in the process of only aiding, inducing, or causing another person to commit a crime.
The statute on aiding and abetting provides:
A person who knowingly or intentionally, aids, induces, or causes another person to commit an offense commits that offense. ...
I.C. 35-41-2-4. The purpose of this statute is to expand the scope of initial, basic criminal liability to those who do not actually commit a crime, but whose misconduct is limited to inducing and facilitating the commission of crimes by others. It opens up a larger number of people to potential criminal liability, namely, family, friends, and associates, who find themselves in close relationship with one intent upon committing a crime. Such persons commonly facilitate, but do not personally participate in the commission of any element of the crime. They do not necessarily have that form of pristine criminal intent which accompanies criminal conduct, but are deemed instead to be criminally liable for the probable and natural consequences of the plan in which they have played a part. Harris v. State (1981), Ind., 425 N.E.2d 154. It is often said that the aider and abettor is liable criminaliter for that which another did in furtherance of an unlawful common object. White v. State (1941), 219 Ind. 290, 37 N.E.2d 937. This can be a form of vicarious criminal liability, having only tenuous connection in time and place and manner with the conduct constituting the actual offense. In Section 8 of the majority opinion, where the applicability of the aiding and abetting statute to the aggravator is discussed, the majority senses the artificiality in this construct of the law when it refers to an offense as being “deemed committed” by one who only aids or induces another human being to commit an offense. Therefore, because the aiding and abetting statute casts its net so broadly and includes so much conduct which is remote and tangential to the actual commission of crimes, I would construe I.C. 35-50-2-9(b), the aggravator in this case, to be limited to those who intentionally kill while engaged in the actual commission of one of the enumerated felonies, or while engaged in conduct constituting a substantial step toward the commission of one of the enumerated felonies.
In making the final determination of the sentence under the death sentence statute, I.C. 35-50-2-9(e), the judge must find that the State has proved beyond a reasonable doubt that at least one of the enumerated aggravating circumstances exists. In fulfillment of this requirement, the sentencing judge wrote in his sentencing order:
The testimony ... proved beyond a reasonable doubt that the defendant, Terry Lee Lowery, committed the murder by intentionally killing the victim while committing or attempting to commit rape, child molesting or criminal deviate conduct.
The court utilized the disjunctive twice in this finding. As I read this finding, it reported that the trial judge was convinced that the contemporaneous felony which accompanied the intentional killing of the victim was either an outright crime or an attempted crime, but was unable to make up his mind which it was. It also reported that the trial judge was convinced that the said contemporaneous felony was either rape, child molesting or criminal deviate conduct, but was unable to make up his *1061mind which it was. In my view of the law governing death sentences, this finding was insufficiently specific to satisfy the requirement that the court find one of the enumerated felonies in I.C. 35-50-2-9(b)(l) and give weight to the aggravator. The indefinite finding likewise frustrated the review by this Court mandated by I.C. 35-50-2-9(h) since we cannot know which of the crimes formed the basis for the death decision.
The sentencing order also stated:
In conclusion, the Court finds that the State of Indiana has met its burden of proving beyond a reasonable doubt the existence of at least an aggravating circumstance and, further, that the aggravating circumstances outweigh any mitigating circumstances.
It is apparent from the use of the plural noun “circumstances” that the court found more than one aggravator and determined that the weight of these multiple aggrava-tors outweighed any mitigating circumstances. Since the court did not expressly find the existence of multiple aggravators, it was error for more than one to be used in the weighing process. See Davis v. State (1985), Ind., 477 N.E.2d 889.
I also believe that the sentence and the jury recommendation of death rested upon unlawful bases. Count V of the pleading called for the sentence of death. The jury received an instruction upon the existence of aggravating circumstances which quoted Count Y verbatim.
That ... Lowery, while committing or attempting to commit rape, child molesting or criminal deviate conduct, did then and there intentionally kill Tricia L. Woods, a human being, by striking at and against the body of said Tricia L. Woods with his hands and a certain deadly weapon, to-wit: a piece of wood, and did thereby inflict a mortal wound in and upon the body of Tricia L. Woods, causing her to die.
The verdict of the jury read simply:
We, the Jury, recommend the death sentence be imposed upon the Defendant, Terry Lee Lowery.
The trial judge also used the offense of child molesting in his determination of the sentence, yet child molesting was added to Count V simply by inserting the words “child molesting,” and there never was an allegation of what conduct constituted child molesting, nor which of the several forms of child molesting defined by I.C. 35-42-4-3 were charged. The jury received no instruction regarding the elements of the crime of child molesting either at the trial on guilt or innocence or at the sentencing phase. In these circumstances, it may be that the jury based its death recommendation upon the weight of an aggravator identified only as “child molesting.”
Beyond the above defects in the sentencing process, there is the question of the sufficiency of the evidence to warrant the trial judge’s-conclusion, if it be one, that appellant committed or attempted to commit criminal deviate conduct by inserting a stick into the victim. The evidence was that a stick was found between the legs of the victim when her body was discovered some thirty days after her death. Appellant stated to the police that his companion, Winner, performed this atrocity. I cannot regard this evidence as sufficient to warrant a rational trier of fact in concluding to a moral certainty beyond a reasonable doubt that appellant did this. For this reason also, I would set aside the sentence of death, as the sentence may rest upon the sentencing court’s belief that appellant committed or attempted to commit criminal deviate conduct when killing the victim.
Indiana law does not provide the death penalty for the entire class of those who intentionally kill without excuse or justification. Death is appropriate for those within that class when the killing is accompanied by an enumerated aggravator found to exist beyond a reasonable doubt and when the weight of that aggravator is determined to be greater than the weight of all mitigators. The judicial process of determining the existence of one of the enumerated aggravators should be carried out with the same precision and care as the judicial process of determining guilt or innocence of criminal charges. I judge that the process utilized here fell short of that *1062standard, and I would remand with instructions to set aside the penalty of death and impose an appropriate prison term for murder.