Concur in Results.
¶ 1 I concur in the decision to remand this case for resentencing. However, I cannot join in the attempt to limit the application of the “avoid arrest or prosecution” aggravating circumstance and to turn the capital sentencing stage of this case into a mini-trial on the existence of this aggravator. The opinion has wrongly focused on whether the defendant’s actions immediately prior to and leading up to the murder constitute a statutorily defined crime for which evidence sufficient to support a criminal conviction must be presented. Such a scenario is covered under another aggravator, that of “prior violent felony.” See 21 O.S.2001, § 701.12(1) (which requires evidence of a prior conviction for a violent felony to make a defendant death eligible). However, in the “avoid arrest or prosecution” aggravating circumstance, the focus is shifted from the legal outcome of the defendant’s acts to the defendant’s motivation and reason for committing the murder at that time. Under 21 O.S.2001, § 701.12(5) the State may allege as an aggravating circumstance that “[t]he murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.” By this language, a person who kills to keep the victim from testifying about acts perceived to be criminal and prosecutable, committed prior to and leading up to the murder is death eligible. It is the motivation and perception of the defendant at the time of the homicide that satisfies the aggravator—not the underlying act itself.1
*714¶ 2 This is clearly seen in Cleary v. State, 1997 OK CR 35, 942 P.2d 736. In finding the evidence sufficient to support the “avoid arrest and prosecution” aggravator, this Court stated in part:
In his video-taped statement Cleary attributed two critical statements to Chandler. These statements are, “If someone sees us we have to pop 'em”, and, immediately before the shooting, “She seen us, she seen us.” These statements show Cleary was aware of the need to eliminate any witnesses. Applying the facts to the standard of proof, we find Cleary murdered the only witness to a burglary he had just committed.
1997 OK CR 35, ¶ 71, 942 P.2d at 751 (emphasis added)
¶ 3 Also, in Lott v. State, 2004 OK CR 27, 98 P.3d 318, we stated:
In the present case, the evidence showed Appellant subdued and raped both victims. While Appellant and the victims did not know one another, there is no indication Appellant attempted to hide his identity during the rape. That the victims could have identified their assailant if left alive is sufficient to support the conclusion that the victims were killed in order to prevent their identification of Appellant and his subsequent arrest and prosecution.
2004 OK CR 27, ¶ 117, 98 P.3d at 348 (emphasis added, internal citations omitted).
¶4 In the present case, Appellant had been released from the Rader juvenile detention center less than 3 weeks when he met Scott at the Pilot Recreation Center. He had been held at the juvenile detention center for the rape of an 11 year old. Appellant committed a sexual assault against Scott. Appellant knew that if she reported the sexual assault to the police and identified him as the perpetrator, he was going back to jail. In Appellant’s mind, the only way to prevent this was to kill Scott. The “avoid arrest” aggravator must be viewed through the eyes of the defendant at the time of the murder to determine the defendant’s reason for the killing. To do more, is to not only disregard the language of the aggravator, but to obviate it.
¶ 5 While this Court has required the commission of a “predicate crime” in order to prove the aggravator, we have not required a criminal conviction for the predicate crime or proof of evidence beyond a reasonable doubt to support a conviction. Rather, the term “predicate crime” reflects that in most cases, the defendant has committed acts which could be prosecuted separate and apart from the murder.
¶ 6 The present ease has an admittedly unusual set of circumstances involving the “predicate crime” used to support the “avoid arrest” aggravator. The opinion states that Cummings compels us to conclude trial court error in allowing the State to argue Appellant killed the victim in order to prevent his arrest or prosecution for having raped her. I agree that the forensic evidence now shows that a completed rape was not committed. Therefore, the State should not have been allowed to argue the aggravator was based upon the crime of rape. However, that does not mean that Appellant’s assault upon the victim prior to her murder is insufficient to support the aggravator.
¶ 7 Cummings is factually distinguishable from the present case.2 In Cummings, there was no evidence of the commission of any crimes other than those dismissed by the court. But, in reality, for this aggravator all *715that was required was for the defendant to perceive he could have been arrested or prosecuted for the underlying acts he committed, and which led to the homicide. In the present case, the evidence clearly shows that Appellant’s acts before the murder comprised a criminal offense against the victim.
¶ 8 While forensics have caused us to rule out a completed rape, the evidence still indicates some type of sexual assault did occur. The majority opinion in this case makes much of the fact that “sexual assault” is not a specific statutorily enumerated offense. I agree that it is not a statutory offense, but rather a term which refers to and is generally understood to designate a class or category of sex-related crimes. However, I would extend the meaning of the term to a category of sex-related crimes not amounting to first degree rape.
¶ 9 In the present ease, the evidence shows the commission of one of the following sex-related crimes: attempted rape pursuant to 21 O.S.2001, §§ 42, 44, & 1114; sexual battery pursuant to 21 O.S.2001, § 1123(B); or assault with intent to commit a rape pursuant to 21 O.S.2001, §§ 681 & 1114. Assuming arguendo, the “predicate crime” is to be a statutorily enumerated offense, any of those offenses listed above would be sufficient to satisfy the “avoid arrest” aggravator in this case.3 However, I believe that under the statutory language of this aggravator, a defendant needs only to have committed acts at the time which caused him/her to believe could have led to his/her arrest or prosecution. A defendant is not required to be vested with the knowledge of a lawyer and be able to outline the elements of a crime before the aggravator is applicable, only that he/she has committed an act that he/she thinks is criminal in nature and may cause him/her to be arrested or prosecuted. That is sufficient evidence to satisfy this aggravator.
¶ 10 Further, as the focus of the “avoid arrest” aggravator is not the legal outcome of the defendant’s predicate criminal act— that Appellant’s acts leading to Scott’s murder were originally labeled first degree rape, a conclusion subsequently proven by forensic evidence to be incorrect,—does not prevent the use of evidence of those acts from being used to support the “avoid arrest” aggravator. “Aggravating circumstances are not separate penalties or offenses, but are ‘standards to guide the making of [the] choice between the alternative verdicts of death and life imprisonment.’ ” Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123 (1986). To require the jury to make specific findings on the “predicate crime” and its elements would be contrary to the capital jurisprudence established by the United States Supreme Court and this Court. See Brown v. State, 2003 OK CR 7, 67 P.3d 917.
¶ 11 Upon resentencing, I find the State may ask the jury to find the existence of the “avoid arrest” aggravator by alleging and presenting evidence that Appellant killed the victim in order to prevent her from identifying and if necessary testifying against him for the commission of a sexual assault. In addition, I find the aggravator could also be supported by evidence of the armed robbery and potentially the larceny of an automobile, based on evidence that might be available.
¶ 12 Further, I do not find that because the jury did not find the existence of the “continuing threat” aggravator, the jury has effectively acquitted Appellant of that aggra-vator and it cannot be alleged in any future resentencing cases.
¶ 13 Initially, this conclusion is consistent with our holding in Salazar v. State, 1996 OK CR 25, 919 P.2d 1120. Although the sentencing jury in that case did not find the existence of two of the aggravating circumstances alleged, the jury did find Appellant should receive the death penalty. On appeal, this Court found evidence in the record to *716support the statutory aggravating circumstances. Relying on Poland v. Arizona, 476 U.S. at 157, 106 S.Ct. at 1756, we remanded the case for resentencing so an appropriate sentencer could weigh the evidence of aggravating circumstances with any evidence of mitigating circumstances and render an appropriate sentence. “Put simply, when there is evidence of aggravating circumstances in the record and error requires reversal, the slate is wiped clean and a defendant may be subjected to any punishment authorized by law including death.” 919 P.2d at 1127.
¶ 14 Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), is further authority for this principle even though it is distinguishable from the facts in this ease. In Sattazahn the jury deadlocked on punishment and state law provided that in such a circumstance, a life sentence was mandatory. The plurality holding of Sattazahn found the jury’s inability to reach a decision in the penalty phase of a capital trial resulting in the imposition of a statutorily mandated life sentence did not bar the prosecution from seeking the death penalty again on retrial. 537 U.S. at 112-13, 123 S.Ct. at 740. The Supreme Court found that because the jury had deadlocked on sentencing, the appellant could not show he had been “acquitted.”
¶ 15 While the jury in the present case did not find the existence of the particular aggra-vator, we do not have a unanimous finding that the aggravator did not exist at all. Some jurors may have found the aggravator while others did not. We simply do not know from the record. However, we do know the jury recommended Appellant be sentenced to death. Under these circumstances, Appellant has not shown that he has been “acquitted.” This application of the law is consistent with our recent decision in Hogan v. State, 2006 OK CR 19, ¶¶ 52-59, 139 P.3d 907.
¶ 16 Regarding the allegations of prosecu-torial misconduct, I agree that prosecutors should not express personal opinions regarding the evidence or the defendant’s guilt, and that they should act in a respectful and professional manner. However, I am concerned that in its attempt to set boundaries for argument, the Court has done nothing more than seek to stymie the art of advocacy. The jury is clearly instructed on the distinction between evidence and argument, and the weight to be given each. The trial judge has a continuing duty and responsibility to supervise and control the conduct of counsel in the courtroom and to assure absolute professionalism at all times. This Court’s repeated attempts to constrain argument are contrary to our well established rule allowing for liberal freedom of speech in closing argument. Under this type of trial micro-management great advocates such as William Jennings Bryant and Clarence Darrow would not have been able to utilize their oratory skills in an Oklahoma court.
¶ 17 In Proposition XV, I find Appellant has waived appellate review as he has not provided any argument or authority as to why this Court should reconsider it prior rulings on eight different issues. See Rule 3.5C, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001). See also Romano v. State, 1995 OK CR 74, ¶ 65, 909 P.2d 92, 117.
¶ 18 I am authorized to state that Judge Steven Taylor joins in this separate vote and writing.
. [1] While I do not require the defendant to necessarily know or understand that his predicate act is a criminal offense, certainly the language of the statute providing for "lawful arrest or prosecution" requires the predicate crime to be an illegal act for which the defendant could be arrested and/or prosecuted.
. Cummings also causes me to reconsider how we analyzed the "avoid arrest” aggravator in that case. That opinion illustrates how easy it is for this Court to lose its focus where this aggra-vator is concerned. On appeal, this Court agreed with the defendant that evidence that he had abused and raped Moody could not be relied upon by the State to support the "avoid arrest” aggravator as the evidence supporting those criminal charges was found insufficient and the criminal charges were dismissed. Based upon the dismissal of those charges, this Court found the supporting evidence could not be used in support of the "avoid arrest” aggravator. I concurred in that finding based upon the dismissal of the charges. However, instead of focusing on that legal determination, the focus should have been on the appellant's perceptions, motivations, and acts leading up to and preceding the murder. As I stated in my separate writing, "a 'verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.' United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554. 519 U.S. 148, 117 S.Ct. 633, 638, 136 L.Ed.2d 554 (1997).” 968 P.2d at 839. Upon review of Cummings, I would now find the acts underlying the child abuse/rape *715charge, regardless of the outcome of any legal proceedings against the defendant for the murder of Mayo, could be used to support the "avoid arrest” aggravator as they show Moody's murder was committed by the defendant in order to prevent Moody from identifying him in any investigation concerning Mayo's disappearance/death.
. Alleging in the Bill of Particulars, the commission of a sexual assault upon the victim as evidence supporting the "avoid arrest” aggravator is sufficient to put Appellant on notice and enable him to defend against the aggravator.