concurrence">

Concur in Results.

T1 I concur in the results of this opinion but write separately to address certain issues. The Court has improperly embellished and unnecessarily emphasized certain allegations of error in an attempt to create a precedent setting opinion when in reality this opinion adds nothing to our jurisprudence and is easily addressed on settled case law.

{2 Appellant's claim of error regarding the court's response to the jury's question is reviewed for plain error only as there were no objections to the court's response. The record reflects the jury simply asked, "are there guidelines in determining punishment in this case Life in Prison or Life in Prison with no parole". (Court's Exhibit, Tr. 1359). The plain language of the question reveals there was no inquiry regarding the "meaning of Life or parole." In his brief, Appellant argues the "trial court should have instructed the jury in the difference between life and life without parole by telling the jurors that 'life without parole' means the defendant will not be eligible for parole if he is so sentenced". (Appellant's brief, pg. 14). To state, as this opinion does, that this allegation is an attempt to construe the jury's note into a question about the meaning of life is an unwarranted embellishment on Appellant's claim of error.

13 The claim of error raised in the appellate brief is easily answered by settled case law. As the question was basically unanswerable under the law, the trial court properly referred the jury back to their written instructions. See Littlejohn v. State, 2004 OK CR 6, ¶¶ 10-11, 85 P.8d 287, 298-94. Therefore, no plain error occurred. Instead of simply answering the allegation as raised in the brief, the opinion refashions Appellant's arguments in an attempt to address the "merits" of an issue which otherwise would be waived.

T4 This refashioning of the argument raised on appeal continues throughout the first proposition of error. Appellant's claim regarding the absence of an instruction on the 85% Rule is merely one part of the first proposition; it is not the "real focus" of the proposition. Under the principle of stare decisis, I agree that Anderson applies in this case. Any questions regarding the applicability of Anderson have been resolved by our recent decision in Carter v. State, 2006 OK CR 42, 147 P.3d 243.

5 The analysis used in this case to determine whether the Anderson error is harmless utilizes a standard not previously used or adopted by this Court (the failure to instruct on the 85% Rule "may well have resulted in a miscarriage of justice"), and makes assumptions not based on the evidence (that "a sentence of life without parole was not 'inevitable' or even nearly so".) Much of what passes for analysis on this issue is purely filler not necessary to the holding of the case. Or, like 28, an attempt to legislate a sentence rather than enforcing the properly enacted *235sentence established by the Oklahoma Legislature.

T 6 In Proposition III, addressing claims of prosecutorial misconduct, Appellant cites no legal basis nor is any apparent to support his conclusion that the use of properly admitted evidence in closing argument can be improper or potentially prejudicial. In fact, closing argument is the proper place to discuss evidence that has been admitted during the trial and apply that evidence to the instruction of the law given by the trial judge. While a conviction cannot be based upon character evidence alone, see Malone v. State, 2002 OK CR 34, ¶ 8, 58 P.3d 208, 210, properly admitted evidence can be used in the closing argument and relied upon by the jury in determining a verdict.

T7 After a thorough review of the briefs and record, I find certain comments made during the second stage closing argument combined with particular facts of the case warrant remanding the case for resentenc-ing.

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