¶1concurring and dissenting.
¶2Intent to kill, like other states of mind, may be inferred from circumstances which legitimately permit it. Stanley v. State (1969), 252 Ind. 37, 245 N.E.2d 149. There is a substantial question presented here as to whether the evidence proved an intent to kill as well as an intent to rob. Since opinions in death cases are likely to be used *1145for comparison purposes, I set forth here my own view of the evidence supporting the intent to kill.
¶3Appellant took a gun in hand to use in carrying out a plan to go out and steal something. He thus had time to contemplate possible harmful consequences to others. He loaded that gun. While handling it he said "Bang," "Pow", from which it may be inferred that he contemplated its operation and the act of firing it. After observing the victim, he got out of the car; he approached her and seized her, holding her head under one arm while holding the gun against her head with his other hand. According to appellant her body went limp while he so held her. There was no struggle between the two. A very short time expired between the time he left the car and the shot was fired. When appellant returned to the getaway car he held a purse.
¶4The trial judge concluded as trier of fact, beyond a reasonable doubt, that appellant intended to kill his victim. I agree that that determination was warranted. The shot was to a vital part of the body at point blank range. The immediate goal was to force the victim to relinquish control of her property. To accomplish this purpose, while both hands were occupied, appellant deliberately fired. This was a robbery by killing, and satisfies the subjection of appellant as provided by statute, to the next step of weighing the aggravating circumstance against mitigating circumstances. 1.C. 85-50-2-9(e)(2).
¶5With regard to the sentencing process required by 1.0. 85-50-2-9, I find that the trial court applied an irregular legal standard, one not contemplated by the death statute, and that the sentence of death must be vacated. According to the death sentence statute, aggravating cireumstanc-es are restricted to those enumerated in 1.C. 85-50-2-9(b), alleged in a separate count of the charge, and proved to the satisfaction of the judge beyond a reasonable doubt. In this case there is but one single and discrete aggravating circumstance. There are no others. And appellant's death sentence must rest solely upon that aggravating circumstance. One cannot be confident that under the trial court's finding and conclusions that such is the case. In them the court makes two express references to aggravating circumstances outweighing mitigating circumstances, a reference to his awareness through the presentence report of the defendant's criminal history, and a reference to the fact that the defendant "executed a defenseless female victim who was offering no resistance to the robbery." As is clear from the death sentence statute and the charge in this case, there is only one aggravating circumstance and therefore the reference to aggravating circumstances in the plural is wrong and presents the possibility of unfairness. Schiro v. State (1983), Ind., 451 N.E.2d 1047. The references to criminal history and to the very seriousness of the crime by there very nature are elements which tend to weigh in favor of an enhancement of penalty. Yet they are not accorded that weight in the death sentencing statute, and the court has no authority to put them there and to permit the death decision to rest to any degree upon them.
¶6I hasten to point out that this defect in the sentencing process was not presented to the trial court or this court in the briefs. Even without such presentation and complaint, however, I believe it essential to the automatic review process in death cases for this court, on its own, to require strict compliance with each step required by the death sentence statute.