¶1concurring in part and dissenting in part. I concur in upholding appellant’s conviction, but would remand for another sentencing proceeding.
¶2The majority correctly cites State v. Davis (1988), 38 Ohio St. 3d 361, 367-373, 528 N.E. 2d 925, 931-936, for the proposition that “only the aggravating circumstances enumerated in R.C. 2929.04(A)(1) through (7) may be weighed against mitigating factors,” in determining whether the penalty of death is an appropriate sanction. (Emphasis added.) The majority also accurately cites the trial court’s sentencing opinion, by way of a footnote, in which the three-judge panel improperly weighed and “considered] as relevant to the aggravating circumstances the testimony and evidence relating to the brutal and depraved manner in which the Defendant strangled or attempted to strangle his victims, the frequency of his attacks, his seeming indifference and lack of remorse for the trail of death and broken lives he left behind, simply to satisfy his sexual gratification and to avoid apprehension.”
¶3There is no way I can square the result achieved today with Davis. Further, there is no way that we can apply the doctrine of harmless error here. Given the facts in this case, if I were the trier of the fact I would most probably impose the death penalty on Benner; however, that is not our function.
¶4Indeed, what we have done today is to ensure that one day Benner will obtain a reversal. At that point, the now existing panel will probably not exist, which will ensure a definite term of incarceration rather than the death penalty for Benner.
¶5For the reasons aforesaid, I respectfully dissent in part.