¶1concurring in part and dissenting in part. While I concur in the reasoning of Parts I through XV of the majority opinion, I am constrained to dissent from the majority’s independent review of the death penalty sentence. In my view, whether the aggravating circumstance outweighs the mitigating factor of defendant’s psychological problems is such a close call that I cannot subscribe to the majority’s conclusion that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. Psychologist David Chiappone submitted compelling evidence that the burns and scars endured by defendant as a child are largely responsible for his antisocial behavior and drug/alcohol abuse problems. Thus, I believe that defendant’s antisocial behavior is in part “attributable to … emotional and mental problems,” making him “less culpable than defendants who have no such excuse.” California v. Brown (1987), 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934, 942 (O’Connor, J., concurring).
¶2Accordingly, I would hold that the aggravating circumstance does not outweigh mitigation beyond a reasonable doubt, and therefore reverse the death penalty and remand for resentencing under State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744.