dissenting. I disagree with the majority’s resolution of each issue in this appeal, so I respectfully dissent.
First, in my opinion, the General Assembly’s intent in enacting R.C. 2901.02(B) was to define capital offenses as those for which the death penalty could be imposed. This is what distinguished capital from other offenses at common law, and R.C. 2901.02(B) does not evidence sufficient legislative intent to vary this well-established rule. At the time of this trial, Ohio did not have a death penalty provision by virtue of Furman v. Georgia (1972), 408 U.S. 238, and Lockett v. Ohio (1978), 438 U.S. 586. Therefore, the majority incorrectly holds that, in this case, aggravated murder was a capital offense in the application of R.C. 2901.02(B).
Second, I disagree with the holding that appellant’s closing argument contained prejudicial error. Since the trial court gave a correct definition of the law, I find it hard to consider this minor discretion even error. Additionally, even considering it error, in light of the overwhelming evidence of appellees’ guilt, it is, in my opinion, harmless error.
Therefore, I would reverse the judgment of the court of appeals.