concurring in part and dissenting in part.
{¶ 162} I concur in the majority opinion to the extent that it affirms Hancock’s conviction for aggravated murder. However, unlike the majority, I would overrule all of Hancock’s propositions of law. Like the court of appeals, I would hold that the trial court abused its discretion by excluding the exhibits at issue, that Hancock was therefore not harmed by their inadvertent submission to the jury, and that no proper basis for a mistrial existed. Accordingly, I respectfully dissent from the reversal of the death sentence.
{¶ 163} The guilt-phase exhibits in question are the strips of bedsheet used to tie Wagner down and strangle him; the crime-scene photographs, State’s Exhibits 3 through 12, which document the painstaking and elaborate fashion in which Hancock tied Wagner to the bunk, rendering him helpless; and Wagner’s recorded confessions to Highway Patrol officers investigating the murder.
{¶ 164} These exhibits unquestionably bear upon the nature and circumstances of the offense. They document Hancock’s planning and commission of the aggravated murder. The photographs show how Hancock ran strips of bedsheet under the mattress, wove them through holes in the metal platform on which the mattress rested, then tied the ends around Wagner’s wrists and ankles. They also show the knots in the ligature, and they give the viewer an idea of how tightly Hancock drew the ligature around Wagner’s throat. State’s Exhibits 13 and 15 were the very strips of cloth used to bind and strangle Wagner.
{¶ 165} In his confessions, Hancock freely recounted the thought process he had engaged in before killing Wagner, including his reasons for doing so and the lengthy deliberation, planning, and deceit that went into the murder. Hancock also told how long it took him to kill Wagner and what he was thinking as he did it.
{¶ 166} In support of the trial court’s decision to exclude these exhibits, Hancock argues that the state may reintroduce guilt-phase evidence in the penalty phase only if the evidence either rebuts the defendant’s mitigation evidence or is relevant to the aggravating circumstances, as opposed to the offense itself. He asserts that the exhibits in question were irrelevant and inadmissible in the penalty phase because they neither rebutted his mitigation nor went to the nature and circumstances of the aggravating circumstances.
{¶ 167} To begin with, as the court of appeals pointed out in the original appeal, the exhibits in question were relevant to rebut the mitigating factors of *85“duress, coercion, or strong provocation” contained in R.C. 2929.04(B)(2). State v. Hancock, Warren App. Nos. CA2001-12-115, CA2001-12-116, and CA2002-01004, 2003-Ohio-1616, 2003 WL 1689612, at ¶ 30. Hancock argued at trial that Wagner provoked him into murder by making a sexual advance and by bragging about having molested a child. Because the exhibits illustrate the calculated deliberation with which Hancock acted, they rebut — or at least reduce the mitigating weight of — his provocation claim. Thus, Hancock’s argument fails even on its own terms.
{¶ 168} But more than this, we have never interpreted R.C. 2929.03(D)(1) in the way Hancock suggests — as though it excluded guilt-phase evidence bearing “only” on the nature and circumstances of the offense. In fact, we have expressly rejected that interpretation. It is true that we have said that “the nature and circumstances of the offense may only enter into the statutory weighing process on the side of mitigation.” (Emphasis sic.) State v. Wogenstahl (1996), 75 Ohio St.3d 344, 356, 662 N.E.2d 311. But it does not follow that evidence regarding the nature and circumstances of the offense must be excluded from the penalty phase if it lacks mitigating value.
{¶ 169} To the contrary, “R.C. 2929.04(B) requires the jury, trial court, or three-judge panel to ‘consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense * * *.’ (Emphasis added.) In a particular case, the nature and circumstances of the offense may have a mitigating impact, or they may not. * * * Either way, they must be considered.” State v. Stumpf (1987), 32 Ohio St.3d 95, 99, 512 N.E.2d 598. See, also, Wogenstahl, 75 Ohio St.3d at 355, 662 N.E.2d 311; State v. Davis (1996), 76 Ohio St.3d 107, 120, 666 N.E.2d 1099.
{¶ 170} Moreover, although the nature and circumstances of the offense may not be used as aggravating circumstances, we have held that they may be cited “as reasons supporting [a] finding that the aggravating circumstances were sufficient to outweigh the mitigating factors.” Stumpf, 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph one of the syllabus.
{¶ 171} For these reasons, we have expressly stated that the state may reintroduce guilt-phase evidence that bears on the nature and circumstances of the offense. “[B]ecause the trial court must consider the nature and circumstances of the offense, R.C. 2929.03(D)(1) ‘permit[s] repetition of much or all that occurred during the guilt stage.’ ” State v. Fears (1999), 86 Ohio St.3d 329, 345-346, 715 N.E.2d 136, quoting State v. DePew (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542.
{¶ 172} Not only that, we have held guilt-phase evidence admissible in the penalty phase precisely because it bore on the nature and circumstances of the offense. For example, we said in State v. Jones (2001), 91 Ohio St.3d 335, 744 *86N.E.2d 1163, that “[mjuch of the trial phase evidence was relevant at the sentencing phase because it was related to the aggravating circumstances, the nature and circumstances of the offense, and the asserted mitigating factors.” (Emphasis added.) Id. at 350, 744 N.E.2d 1163. Accord State v. Woodard (1993), 68 Ohio St.3d 70, 78, 623 N.E.2d 75; State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 111.
David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Chief Counsel, Death Penalty Division, and Kelly L. Culshaw, Supervisor, Death Penalty Division, for appellant. Rachel Hutzel, Warren County Prosecuting Attorney, and Andrew L. Sievers and Mary K. Hand, Assistant Prosecuting Attorneys, for appellee.{¶ 173} Doubtless, a trial court should exclude guilt-phase evidence from the penalty phase if that evidence truly is irrelevant to sentencing. See State v. Lindsey (2000), 87 Ohio St.3d 479, 485, 721 N.E.2d 995. But the fact that guilt-phase evidence goes to the nature and circumstance of the offense is grounds for admission, not exclusion. As we said in State v. Hill (1996), 75 Ohio St.3d 195, 201, 661 N.E.2d 1068, “a capital defendant in Ohio is not statutorily or constitutionally entitled to protection during the sentencing process from the facts he himself created in committing his crime.”
{¶ 174} Because I would affirm the imposition of the death sentence recommended by the jury, I dissent in part.
Lundberg Stratton and O’Donnell, JJ., concur in the foregoing opinion.