dissenting.
{¶ 95} The majority so distinguishes State v. Ashworth (1999), 85 Ohio St.3d 56, 706 N.E.2d 1231, as to render it meaningless. Its opinion essentially says that any testimony that could possibly be construed as mitigating, even if given during the guilt phase, will be construed as if it had been offered in mitigation by the defendant. The syllabus law declares that any testimony that reflects positively on the defendant — even a single, stray statement not elicited by counsel — could be sufficient to deny that defendant an Ashworth hearing. This standard is so restrictive that it ought not to be countenanced. Indeed, Ashworth would not pass this new standard because Ashworth expressed remorse. Id. at 61, 706 N.E.2d 1231.
{¶ 96} In an unsworn statement, Barton told the jury that death is “the only punishment for this crime.” Our country’s most creative writers of fiction would be hard-pressed to spin Barton’s statement as evidence offered in mitigation. Yet a majority of this court unquestioningly accepts that it was. The majority’s conclusion is in sharp contrast to its analysis in State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 77, in which this court stated that Vrabel *419“presented no mitigating evidence,” even though he had offered his unsworn statement.
Rachel Hutzel, Warren County Prosecuting Attorney, Andrew L. Sievers, and Derek B. Faulkner, Assistant Prosecuting Attorneys, for appellee. Christopher J. Pagan and Chris McEvilley, for appellant.{¶ 97} Finally, I do not believe that the facts of this case justify imposing a sentence of death. The murder that Barton committed was heinous, and his guilt is undeniable, but Barton’s crime is not deathworthy. See Crocker, Concepts of Culpability and Deathworthiness: Differentiating Between Guilt and Punishment in Death Penalty Cases (1997), 66 Fordham L.Rev. 21. This case involves a hotblooded domestic killing. Absent evidence that Barton’s previous attempted murder occurred in similar circumstances — evidence not present here — upon independent weighing, I do not believe that the death penalty is appropriate. I dissent.