dissenting. In State v. Maurer (1984), 15 Ohio St.3d 239, 243, 15 OBR 379, 383, 473 N.E.2d 768, 775, this court stated that “prolonged restraint, secretive confinement, or significant movement apart from that involved in the underlying crime [are required] in order to justify the application of the aggravating circumstance of kidnapping under R.C. 2929.04(A)(7).” In this case, the alleged kidnapping was in reality a series of actions that were incidental to the crime of murder. The sad truth is that it is easier to stab someone over one hundred times if the victim can’t evade you. The majority places great weight on the fact that the victim was tied up before she was lolled. The sad truth is that there was no reason to tie up the victim after she was dead.
The record does not contain proof beyond a reasonable doubt that a kidnapping occurred. It is possible to believe that a kidnapping occurred; our system of justice requires more. Without the kidnapping felony-murder specification, this case is a murder case, not a capital murder case. Despite the grisly nature of the crime, that is what it should be. I would reverse the kidnapping conviction and felony-murder conviction and vacate the sentence of death. I dissent.
APPENDIX
“Proposition of Law No. I: The state failed to introduce sufficient evidence to prove all of the elements of kidnapping beyond a reasonable doubt. Appellant Hartman was deprived of his right to due process of law under the Fourteenth Amendment to the United States Constitution.
“Proposition of Law No. II: The trial court committed constitutional, reversible error when it instructed the jury during the penalty phase of the proceedings.
“Proposition of Law No. Ill: The trial court erred when it permitted highly prejudicial, nonprobative and irrelevant evidence and testimony to be introduced at the trial.
“Proposition of Law No. IV: Computer generated digital enhancement of fingerprints is not a reliable technic [sic] for analyzing fingerprints. Admission of testimony at trial regarding computer enhanced fingerprints denied appellant Hartman a fair trial and due process as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
“Proposition of Law No. V: It was error for the trial court to admit the opinion of witnesses who had not first been qualified as an expert.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, Paul M. Marie and Philip D. Bogdanoff, Assistant Prosecuting Attorneys, for appellee.“Proposition of Law No. VI: Persistent and pervasive prosecutorial misconduct prejudicially affected the appellant’s constitutional rights and requires reversal of his conviction and death sentence.
“Proposition of Law No. VTI: Defense counsel’s repeated acts and ommissions [sic] deprived appellant of effective assistance of counsel as guaranteed by the Sixth, Eight [sic], and Fourteenth Amendments to the United States Constitution and Article I, §§ 9,10, and 16 of the Ohio Constitution.
“Proposition of Law No. VIII: Gruesome, prejudicial and cumulative photographs were admitted into evidence even though there [sic] prejudicial effect outweighed there [sic] probative value in violation of the Sixth, Eighth and Fourteenth Amenments [sic] to the United States Constitution.
“Proposition of Law No. IX: The trial court erred when it failed to comply with the requirements of R.C. § 2929.03(F). The trial court’s opinion is constitutionally defective and no independent review can cure tehse [sic] fatal flaws.
“Proposition of Law No. X: The death sentence in this case must be vacated because the aggravating circumstance does not outweigh the mitigating circumstances and the sentence of death is not appropriate.
“Proposition of Law No. XI: The proportionality review that this court must conduct in the present capital case pursuant to Ohio Revised Code Section 2929.05 is fatally flawed and therefore the present death sentence must be vacated pursuant to the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Sections 5 and 10, Article I of the Ohio Constitution and Ohio Revised Code 2929.05.
“Proposition of Law No. XII: The trial court committed prejudicial, reversible error when it failed to instruct the jury of an essential element of the kidnapping specification.
“Proposition of Law No. XIII: 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 Brett Hartman.”
Irving B. Sugerman and Nathan A. Ray, for appellant.