concurring in result.
I agree that Indiana's death penalty statute is not unconstitutional. Therefore I concur in result with the majority opinion. My primary point of departure however with the majority opinion is its conclusion that "[nleither federal constitutional doctrine under Apprendi and Ring nor Indiana state jurisprudence leads to the requirement that weighing be done under a reasonable doubt standard." Op. at 315 (quoting Ritchie v. State, No. 49800-0011-DP-688, 809 N.E.2d 258, 266, 2004 WL 1153062 (Ind.2004)). My view is quite the opposite. The maximum punishment for murder is a term of years. In order for a defendant to. become death eligible after a guilty verdict of murder, two separate and independent factors must be found: (i) the existence beyond a reasonable doubt of at least one of the statutory aggravating cireumstances, and (i) the aggravating circumstances outweigh the mitigating circumstances. See Ind.Code § Brown v. State, 698 N.E.2d 1132, 1144 (Ind.1998). Under Apprendi other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the pre-seribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348. To say that the process of weighing is not a fact but a traditional sentencing factor Br. of Appellant at 9, should provide the State no refuge. As Apprendi makes clear the relevant inquiry is not one of form but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict? Id. at 494, 120 S.Ct. 2348 (emphasis added). Ring is even more explicit: If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt. 536 U.S. at 602, 122 S.Ct. 2428. I continue to believe that perhaps unlike the capital sentencing schemes in some other jurisdictions, it is the structure of Indiana's capital sentencing statute that pulls it in within the embrace of the Ap-prendi and Ring doctrine. Ritchie, 809 N.E.2d at 271, 2004 WL 11583062, (Ruck-er, J., dissenting in part). In my view the plain language of the statute makes death eligibility contingent upon certain findings that must weighed by the jury on proof beyond a reasonable doubt.
Having said that, I would nonetheless not declare the weighing portion of the *320death penalty statute unconstitutional. [I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is 'fairly possible," we are obligated to construe the statute to avoid such problems. Id. (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 LEd.2d 347 (2001)). Rather, I would simply construe I.C. § 35-50-2-9(F ) as implicitly requiring the jury to find beyond a reasonable doubt that any mitigating cireumstances that exist are outweighed by the aggravating circumstance or cireumstances. Thus construed the statute would be consistent with the dictates of Apprendi and Ring.