concurring. Like the majority, I would affirm appellant’s convictions and death sentence. I respectfully disagree, however, with the majority’s conclusion that the aggravating circumstance in R.C. 2929.04(A)(3) requires the state to prove beyond a reasonable doubt that the defendant committed the offense for which he sought to avoid apprehension.
I
The (A)(3) specification requires the state to prove, beyond a reasonable doubt, that the capital offense was committed for a particular purpose — “for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender.” (Emphasis added.) R.C. 2929.04(A)(3). The (A)(3) specification enhances the potential penalty for aggravated murder based on the offender’s mens rea — the offender’s purpose — not the actus reus of a collateral offense. Cf. Apprendi v. New Jersey (2000), 530 U.S. 466, —, 120 S.Ct. 2348, 2364, 147 L.Ed.2d 435, 457 (finding that, under a New Jersey hate crime statute, “it is precisely a particular criminal mens rea that the * * * enhancement statute seeks to target”).
A comparison between the (A)(3) specification and our state’s kidnapping statute illustrates the distinction between a core mens rea requirement (an element) and a collateral offense. The kidnapping statute provides:
“No person * * * shall remove another from the place where the other person is found * * * for any of the following purposes:
*359“(4) To engage in sexual activity * * * with the victim against the victim’s will.” (Emphasis added.) R.C. 2905.01(A)(4).
Like the (A)(3) specification, the kidnapping statute requires the state to prove, beyond a reasonable doubt, that the offender acted with a specific purpose. In State v. Powell (1990), 49 Ohio St.3d 255, 552 N.E.2d 191 (superseded by constitutional amendment on other grounds as noted in State v. Smith [1997], 80 Ohio St.3d 89, 103, 684 N.E.2d 668, 684), the appellant claimed that his conviction for kidnapping under this section was improper because there was insufficient evidence to prove that sexual activity actually occurred. This court unanimously rejected Powell’s contention, deciding that the kidnapping statute “requires only that the restraint or removal occur for the purpose of non-consensual sexual activity — not that sexual activity actually take place.” (Emphasis added.) Id., 49 Ohio St.3d at 262, 552 N.E.2d at 199. The same logic should apply to this court’s analysis of the (A)(3) specification.
The (A)(3) specification has appeared in over forty cases decided by this court since 1976.4 Like the majority, Jones cites none of them in his brief as support for his contention that commission of the collateral offense must be proved beyond a reasonable doubt. Both the majority and Jones simply cite the general rules from Winship and Jackson that the state has the burden to prove all the elements of any charge beyond a reasonable doubt. See In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Because I do not agree with the majority that the modifying phrase “committed by the offender” constitutes an element of the (A)(3) specification, I do not find the constitutional rules of Winship and Jackson offended by Jones’s conviction of the specification absent proof that he committed the underlying offense.
In the present case, the state introduced evidence that Jones had outstanding felony warrants. The state also showed that a week before the killing, Jones told his cousin that he was “facing a lot of time for robbing Isaac Coleman,” and that he “was going to shoot at the police if they ever tried to arrest him.” This is exactly what occurred. When Officer Glover told Jones, “[Y]ou know why I’m here, * * * I’m just doing my job,” Jones fled, eventually shooting and then viciously kicking Officer Glover. The state proved beyond a reasonable doubt that Jones fled and killed Officer Glover to escape apprehension for another offense. It was unnecessary for the state to prove beyond a reasonable doubt *360that Jones actually committed the other offense, and it is therefore unnecessary for this court to decide, as the majority does, that the state met this burden of proof by introducing the single “admission” Jones made to his cousin.5 As one annotation has put it, “[p]roof that a law enforcement officer was killed in the course of an investigation or arrest has been uniformly held sufficient to establish that the murder was committed for the purpose of avoiding or preventing a lawful arrest.” Annotation (1988), 64 A.L.R.4th 755, 763.
II
I would also resolve Jones’s tenth proposition of law somewhat differently from the majority. In his tenth proposition, Jones contends that the’trial court erred when it failed to merge the R.C. 2929.04(A)(3) and (A)(6) death penalty specifications. Death specifications are duplicative and should be merged when they arise from the same act or indivisible course of conduct. State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph five of the syllabus. Merger is not required when the specifications are not duplicative or arise from divisible courses of conduct. See State v. Robb (2000), 88 Ohio St.3d 59, 85, 723 N.E.2d 1019, 1047 (declining to merge [A][4], [A][5], and [A][7] specifications). A trial court’s failure to merge duplicative aggravating circumstances does not always result in reversible error. State v. Gamer (1995), 74 Ohio St.3d 49, 53-55, 656 N.E.2d 623, 630-631, citing Jenkins, at paragraph five of the syllabus. Rather, the reviewing court must determine “whether the jury’s penalty-phase consideration of those duplicative aggravating circumstances affected its verdict, *361and [must] independently determine whether the merged aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.” Id. at 53, 656 N.E.2d at 630.
Here, Jones was convicted of three capital specifications — one (A)(3) specification and two (A)(6) specifications. The trial court did merge the two (A)(6) specifications, and thus presented one (A)(3) specification and one (A)(6) specification to the jury in the penalty phase. The majority decides that merger of the (A)(3) and (A)(6) specifications was not required, but I find it unnecessary to resolve this issue here. Assuming, arguendo, that specifications (A)(3) and (A)(6) arose from an indivisible course of conduct, and that the trial court should have merged them, I would nevertheless conclude that the failure to do so “did not influence the jury to recommend death [where] it would otherwise have recommended life.” Garner, 74 Ohio St.3d at 54, 656 N.E.2d at 631. As in Garner, merger of the specifications “would not have significantly changed the nature of the evidence the jury was statutorily required to consider in making its recommendation as to a possible sentence of death.” Id. Accordingly, I would overrule appellant’s tenth proposition of law without deciding the merger question.
Ill
Assessing appellant’s thirteenth proposition of law, the majority concludes that because the state proved each element of the (A)(3) specification beyond a reasonable doubt, “there was no basis for moving to dismiss this specification.” I agree that Jones’s claim of ineffective assistance of counsel must fail, but not because I share the majority’s view that the state proved each element of the (A)(3) specification beyond a reasonable doubt. See fn. 5, supra. Because the trial court was not required to dismiss the (A)(3) specification, counsel’s failure to request dismissal cannot be the basis for a claim of ineffective assistance of counsel.
Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing concurring opinion.APPENDIX
“Proposition of Law No. I: A capital defendant’s right to a reliable death sentence under the Eighth Amendment as well as his right to a fair and impartial jury under the Due Process and Equal Protection Clauses of the Fourteenth Amendment are violated when the defendant is prohibited, or unduly restricted from asking questions during voir dire about the prospective jurors’ ability to consider mitigating factors. U.S. Const. Amends. VIII and XIV.
*362“Proposition of Law No. II: The death sentence must be vacated where mitigating factors are not outweighed by the aggravating circumstances.
“Proposition of Law No. Ill: Retrial is required where errors that occurred during voir dire denied a capital appellant a fair and impartial jury. U.S. Const. Amends. VI, VIII and XIV.
“Proposition of Law No. IV: Denial of a change of venue based upon racial imbalance of the jury deprived the appellant of a fair trial. U.S. Const. Amends. VI and XIV.
“Proposition of Law No. V: When a trial court denies a capital defendant his counsel of choice, the trial court deprives that defendant of his rights to counsel and to due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and §§10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. VI: The admission of irrelevant evidence about the extraordinary efforts made to save the victim’s life denied appellant due process and constituted plain error at both phases of this capital trial. U.S. Const. Amends. VIII and XIV.
“Proposition of Law No. VII: Where multiple evidentiary errors in the trial phase prejudice the defendant, the conviction must be reversed. U.S. Const. Amend. XIV.
“Proposition of Law No. VIII: The state must present evidence of a deliberate plan to kill in order to sustain a conviction for a killing with prior calculation and design under Ohio Rev.Code Ann. § 2903.01(A). The state must also present evidence on all essential elements of the charged specifications. U.S. Const. Amends. VI, VIII and XIV.
“Proposition of Law No. IX: A defendant’s conviction must be reversed when multiple errors in the trial phase instructions denied him a fair trial and due process of law. U.S. Const. Amend. XIV.
“Proposition of Law No. X: Where it is alleged that a defendant killed a police officer to prevent the defendant’s arrest for another offense, the § 2929.04(A)(3) and (A)(6) aggravating circumstances are duplicative and must be merged because they arise from the same act or indivisible course of conduct. U.S. Const. Amends. VIII and XIV.
“Proposition of Law No. XI: Misconduct by the prosecutor at Odraye Jones’s capital trial denied him due process of law and undermines confidence in the trial and the sentencing verdict. U.S. Const. [Amends.] VIII and XIV.
“Proposition of Law No. XII: Where penalty phase instructions allow the jury to decide what evidence is admissible concerning the aggravating circumstances *363and where the instructions do not conform to Ohio and federal law, reversal is required. U.S. Const. Amend[s]. VIII and XIV.
Thomas L. Sartini, Ashtabula County Prosecuting Attorney, and Ariana E. Tarighati, Chief Assistant Prosecuting Attorney, for appellee. David H. Bodiker, State Public Defender, and Stephen A. Ferrell, Assistant Public Defender; and Robert A. Dixon, for appellant.“Proposition of Law No. XIII: Counsel’s performance will be deemed ineffective if it falls below an objective standard of reasonable representation and prejudice arises therefrom. U.S. Const. Amends. Vi and XIV.
“Proposition of Law No. XIV: Resentencing is required where the trial court fails to accord weight to (B)(7) mitigating evidence because it does not qualify as (B)(3) and the court weighs the (A)(6) as a super aggravating circumstance. U.S. Const. Amends. VIII and XIV.
“Proposition of Law No. XV: Ohio’s death penalty law is unconstitutional. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. Ohio Rev.Code Ann. §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05 (Anderson 1996), do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Odraye Jones.”
. See, e.g., State v. Filiaggi (1999), 86 Ohio St.3d 230, 714 N.E.2d 867; State v. Chinn (1999), 85 Ohio St.3d 548, 709 N.E.2d 1166; State v. Lawson (1992), 64 Ohio St.3d 336, 595 N.E.2d 902; State v. Hancock (1976), 48 Ohio St.2d 147, 2 O.O.3d 333, 358 N.E.2d 273.
. The majority decides that the state proved beyond a reasonable doubt that Jones actually committed the prior offense of aggravated robbery. The majority states that Jones’s “admission” to his cousin that he was “facing a lot of time for robbing Isaac Coleman” was all the evidence that the state needed to introduce in order to prove beyond a reasonable doubt that Jones actually committed the aggravated robbery. Under the majority’s analysis, if the state charges someone with aggravated robbery, the state may discharge its burden of proof in the case solely by introducing the testimony of a witness (not necessarily an eyewitness), who merely testifies that the accused said that he was “facing a lot of time” for robbery —an offense that differs significantly from aggravated robbery. Compare R.C. 2911.01 and R.C. 2911.02. Though I deem it unnecessary to resolve this issue in the first place, see supra, I feel compelled to disagree with the majority’s conclusion that Jones’s statement to his cousin sufficed, in and of itself, to prove beyond a reasonable doubt that Jones committed aggravated robbery. In this state, to convict someone of aggravated robbery, the state must prove, inter alia, either (1) that the offender had a deadly weapon or dangerous ordnance on or about his person, R.C. 2911.01(A)(1) and (2), or (2) that the offender inflicted or attempted to inflict serious physical harm. R.C. 2911.01(A)(3). Jones’s “admission” to his cousin did not contain any information tending to prove these elements of aggravated robbery. Accordingly, even if I agreed with the majority’s threshold determination that the defendant’s commission of the prior offense constitutes an essential element of the (A)(3) specification, which I do not, I could not join its analysis of the sufficiency of the evidence.