¶2Because I believe the jury must find beyond a reasonable doubt that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances I respectfully dissent from Part VI of the majority opinion.
¶3The majority cites Bivins for the proposition that "[t]he determination of the weight to be accorded the aggravating and mitigating circumstances is not a `fact' which must be proved beyond a reasonable doubt but is a balancing process." Slip op. at 8 (quoting Bivins, 642 N.E.2d at 946). Whatever validity this proposition may have had previously, it can no longer pass constitutional muster under the doctrine expressed in Apprendi and Ring.
¶4In the abstract it does appear sound to say that "[o]nce a statutory aggravator is found by a jury beyond a reasonable doubt, the Sixth Amendment as interpreted in Ring and Apprendi is satisfied. . . . The outcome of weighing does not increase eligibility. Rather, it fixes the punishment within the eligible range." Slip op. at 10-11. Indeed the Apprendi/Ring doctrines do not dictate which factors a State may require for imposition of capital punishment. Rather, States are free to determine these factors for themselves. However, once the factors are determined, the Sixth Amendment as interpreted by Apprendi and Ring require that they be submitted to the jury and proved beyond a reasonable doubt. Unlike the capital sentencing schemes in some other jurisdictions,1 our *272 statute unequivocally requires the existence of two distinct factors before death can be imposed. The statute reads in pertinent part:
¶5 (e) For a defendant sentenced after June 30, 2002. . . . [t]he jury may recommend:
¶6 (1) the death penalty; or
¶7 (2) life imprisonment without parole;
¶8only if it makes the findings described in subsection (l).
¶9Subsection (l) reads:
¶10 Before a sentence [of death or life without parole may be imposed] the jury . . . must find that:
¶11 (1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and
¶12 (2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.
¶13I.C. § 35-50-2-9(e), (l) (emphasis added). Consistent with legislative mandate this Court also has recognized that both factors must be established before a capital sentence may be imposed. See, e.g., Brown v. State, 698 N.E.2d 1132, 1144 (Ind. 1998) (Before a sentence of death may be imposed "[o]ur death penalty statute requires the sentencer to find at least one aggravating circumstance beyond a reasonable doubt, to consider and evaluate any mitigating factor it may find to exist, and to weigh the aggravators and mitigators. . . ." (emphasis added)); Judy v. State, 275 Ind. 145, 416 N.E.2d 95, 106 (1981) (" The jury may recommend the death penalty only if it unanimously finds beyond a reasonable doubt that at least one of the aggravating circumstances exists, and that the mitigating circumstances, if any, do not outweigh the aggravating circumstances." (emphasis added)).
¶14In essence our Legislature has chosen to make death eligibility contingent upon the finding of two separate and independent factors. The majority parses these factors by characterizing one as an "eligibility factor" and the other an "e xercise in judgment." See slip op. at 8, 11. However, regardless of the labeling, the Supreme Court has made clear that "the relevant inquiry is one not of form but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Apprendi, 530 U.S. at 494. "If a State makes an increase in a defendant's authorized punishment *273 contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt." Ring, 536 U.S. at 602. In this jurisdiction, the increase of a defendant's punishment from a term of years to a sentence of death is contingent not only upon the existence of one or more aggravating factors, but also upon a finding that the aggravating factor(s) outweigh(s) any mitigating factor(s). See I.C. § 35-50-2-9(e), (l). This statutory "finding" is a necessary predicate to the imposition of a death sentence. "[A]ll facts essential to imposition of the level of punishment that the defendant receives — whether the statute calls them elements of the offense, sentencing factors, or Mary Jane — must be found by the jury beyond a reasonable doubt." Ring, 536 U.S. at 610 (Scalia, J., concurring). Simply put, it is the structure of Indiana's capital sentencing statute that pulls it within the embrace of the Apprendi and Ring doctrine. The plain language of Indiana's capital sentencing scheme makes death eligibility contingent upon certain findings that must be weighed by the jury. I agree with the majority that these findings require an "exercise in judgment." See slip op. at 11. Nonetheless they are at a minimum the type of findings anticipated by Apprendi and Ring and thus require proof beyond a reasonable doubt.
¶15This does not mean however that I would declare unconstitutional the weighing portion of Indiana's death penalty statute. "Every statute stands before us clothed with the presumption of constitutionality until clearly overcome by a contrary showing." Eukers v. State, 728 N.E.2d 219, 221 (Ind. Ct. App. 2000). "[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is `fairly possible,' we are obligated to construe the statute to avoid such problems." I.N.S. v. St. Cyr, 533 U.S. 289, 299-300 (2001) (citation omitted); Price v. State,622 N.E.2d 954, 963 (Ind. 1993). "[C]onstitutionally doubtful constructions should be avoided where fairly possible." Miller v. French, 530 U.S. 327, 336 (2000) (internal quotation omitted); Bennett v. State, 801 N.E.2d 170, 174 (Ind. Ct. App. 2003), trans. not sought. I would therefore construe section 35-50-2-9(l) of the Indiana Code as implicitly requiring the jury to find beyond a reasonable doubt that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances. As thus interpreted the statute passes constitutional muster.
¶16The question then is what is the effect in this case of the trial court's failure to instruct the jury that it must apply a reasonable doubt standard in the weighing process? The record shows the trial court gave several preliminary as well as final jury i nstructions concerning the weighing of aggravating and mitigating circumstances. None required a reasonable doubt standard. However, the record shows that Ritchie did not object at trial to the jury instructions given by the trial court nor did he submit instructions of his own. Thus, this issue is waived for review unless fundamental error occurred. Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996). Fundamental error is error that represents a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process. Borders v. State, 688 N.E.2d 874, 882 (Ind. 1997). The error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Id. In determining whether a claimed error denies the defendant a fair trial, we consider whether the resulting harm or potential for harm is substantial. Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994). The element *274 of harm is not shown by the fact that a defendant was ultimately convicted. Id. Rather, it depends upon whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled. Id.
¶17Here, Ritchie makes no claim of fundamental error nor does the record support such a claim. As aggravating circumstances the State alleged in the penalty phase of trial that the victim of Ritchie's murder was a law enforcement officer acting in the course of duty when murdered, see I.C. § 35-50-2-9(b)(6)(A); and that Ritchie committed the murder while on probation. See I.C. § 35-50-2-9(b)(9)(C). The State incorporated evidence introduced in the guilt phase of trial to support its allegation. In mitigation Ritchie, who was twenty-two years of age at the time of the murder, introduced evidence of his difficult childhood that included his lack of bonding before the age of two. During closing argument Ritchie highlighted his mitigation evidence and argued passionately for a term of years or at least no more than a sentence of life without parole. Tr. at 2839-54. The jury rejected Ritchie's argument, found that the State had proved beyond a reasonable doubt the existence of both aggravating circumstances, found that the aggravating circumstances were not outweighed by the mitigating circumstances, and recommended the death penalty. Under the circumstances Ritchie has failed to demonstrate that he was denied a fair trial. In sum no fundamental error occurred on this issue.
¶18For the reasons expressed, I dissent from part VI of the majority opinion. In all other respects I concur.