Per Curiam.
Today we are called upon to review the conviction and death sentence of appellant. The court of appeals held that appellant’s assignments of error were not well-taken and that the death penalty statutes are constitutional and were constitutionally applied in the instant case. For the reasons set forth below, we affirm the appellate court’s ruling and uphold the death penalty sentence.
Appellant’s first proposition of law urges that he was denied his right to a fair trial by an impartial jury, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and R.C. 2945.25(C), when the trial court excused five jurors for cause. Upon review of the record, we determine that there was reasonable cause for the trial court to excuse a number of jurors on the basis of their own health, or personal problems at home needing their attention. Appellant, in his second proposition of law, argues that these rights were further denied by the so-called death-qualification process, authorized by Witherspoon v. Illinois (1968), 391 U.S. 510 [46 O.O.2d 368], and its progeny, prior to the guilt determination phase of his trial. These constitutional requirements have been embodied in R.C. 2945.25(C) and this court’s decisions in State v. Jenkins (1984), 15 Ohio St. 3d 164, certiorari denied (1985), 473 U.S._, 87 L. Ed. 2d 643, paragraph two of the syllabus, and State v. Maurer (1984), 15 Ohio St. 3d 239, paragraph two of the syllabus. A review of the record demonstrates that the jurors were excused under the constitutional principles embodied in Witherspoon, supra; Adams v. Texas (1980), 448 U.S. 38, 45; and Jenkins, supra; i.e., their beliefs would lead them to ignore the law or violate the judge’s instructions.
In his third proposition of law appellant argues that he was denied his right to confront witnesses by the trial court’s protective order as to two of the state’s witnesses. Confrontational rights are guaranteed .to an accused through the Sixth and Fourteenth Amendments to the United States Constitution, Pointer v. Texas (1965), 380 U.S. 400, and by Section 10, Article I of the Ohio Constitution. Such rights are legitimately constrained by Crim. R. 16(B)(1)(e) which provides the trial court with authority to forbid disclosure of the names and addresses of witnesses “if the prosecuting attorney certifies to the court that to do so may subject the witness or others to physical or substantial economic harm or coercion.” Certification is not satisfied by the prosecutor merely stating his or her conclusion that a witness might be subject to harm, but requires the state’s reasons for requesting witness protection to appear on the record. State v. Owens (1975), 51 Ohio App. 2d 132, 147 [5 0.0.3d 109]. The reasons for withholding the identity of the state’s witnesses who were also incarcerated in the Cuyahoga County Jail at the time, i.e., the high risk of repercussions for producing evidence against a fellow prisoner, do appear on the record. In any event, these witnesses’ identities were not [19] absolutely withheld, as they were present at the trial and subject to cross-examination. Appellant has failed to show the sufficient degree of prejudice to his ability to defend himself required for a conviction reversal (State v. Parson [1983], 6 Ohio St. 3d 442, syllabus), given his failure to exercise the options offered by the trial court of requesting indefinite continuances and using investigators to prepare his cross-examination.
In his fourth proposition of law, appellant contends the trial court committed reversible error in finding him competent to stand trial. Appellant failed to produce any evidence to rebut the presumption, contained in R.C. 2945.37(A), that a criminal defendant is competent. Since the adequacy of the data relied upon by the expert who examined the appellant is a question for the trier of fact, and since there was some reliable, credible evidence supporting the trial court’s conclusion that appellant understood the nature and objective of the proceedings against him, this court will not disturb the finding that appellant was competent to stand trial. See 5 Ohio Jurisprudence 3d (1978) 212, Appellate Review, Section 608.
Appellant next contends, in his fifth proposition of law, that he was denied his right to an impartial jury by admission of prejudicial or otherwise irrelevant evidence, specifically photographs of the scene of the crime and bank envelopes found outside the victim’s home. We have recently held that: “Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact to determine the issues or are illustrative of testimony and other evidence, as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.” State v. Maurer, supra, paragraph seven of the syllabus. In applying that statement of the law to the present case, we find, from an examination of the admitted photographs, no merit to appellant’s contention that the trial court abused its discretion by authorizing their admission.
In his sixth proposition of law, appellant maintains that the trial court impermissibly allowed the state to comment upon, his failure to testify in violation of Griffin v. California (1965), 380 U.S. 609 [32 0.0.2d 437], and that the prosecutor made several comments which inflamed the jury’s passions to a degree justifying reversal. Specifically, appellant takes exception to the following portions of the prosecutor’s closing argument:
“MR. SAMMON: Here they [Anderson and Brooks] come in and testify to you what this man [appellant] told them. And, again, ladies and gentlemen of the Jury, they [appellant] tell you they [Anderson and Brooks] were lying, but they offer no evidence to rebut that. * * * They could have brought somebody through those doors * * * and put them on the stand and say, ‘No, Novarro Brooks and Michael Anderson were lying. It never took place.’ * * * There is absolutely no evidence to contradict what they testified to, ladies and gentlemen.”
A reference by the prosecutor in closing argument to uncontradicted [20] evidence is not a comment on the accused’s failure to testify, where the comment is directed to the strength of the state’s evidence and not to the silence of the accused, and where the jury is instructed, as here, to not consider the accused’s failure to testify. State v. Ferguson (1983), 5 Ohio St. 3d 160. We find that the language used by the prosecutor in this case is not such that the jury would “naturally and necessarily” take it as comment on the failure of the accused to testify, and thus fails the test set forth in State v. Cooper (1977), 52 Ohio St. 2d 163 [6 O.O.3d 377], vacated on other grounds (1978), 438 U.S. 911. The prosecution is not prevented from commenting upon the failure of the defense to offer evidence in support of its case. Lockett v. Ohio (1978), 438 U.S. 586, 595 [9 O.O.3d 26]; State v. Lane (1976), 49 Ohio St. 2d 77, 86 [3 O.O.3d 45], vacated on other grounds (1978), 438 U.S. 911.
Appellant also takes exception to other prosecutorial closing remarks.1 Although a conviction based solely on the inflammation of fears and passions, rather than proof of guilt, requires reversal (State v. Agner [1972], 30 Ohio App. 2d 96 [59 O.O.2d 208]), the statements in the instant case are not so inflammatory as to render the jury’s decision a product solely of passion and prejudice against the appellant. State v. Woodard (1966), 6 Ohio St. 2d 14 [35 O.O.2d 8]. A request that the jury maintain community standards is not equivalent to the exhortation that the jury succumb to public demand as prohibited by the Eighth Appellate District in State v. Cloud (1960), 112 Ohio App. 208, 217 [14 O.O.2d 132], Therefore, appellant was not denied his rights to a fair trial and an impartial jury.
Appellant’s seventh proposition of law centers upon a claim that the evidence was so slight that “a reasonable hypothesis of innocence” must have remained, thereby establishing that the evidence could not demonstrate his guilt beyond a reasonable doubt. See State v. Graven (1978), 54 Ohio St. 2d 114, 118-119 [8 O.O.3d 113]. The evidence here was of a rifled purse, scattered coins, bank envelopes scattered throughout the [21] house and down to the street corner, appellant’s presence in the victim’s house within two hours of her body being discovered and shortly after a dispute with his brother about money, traces of lead particles on appellant’s jacket sleeve cuff, a shoeprint found on decedent’s nightgown matching appellant’s shoe, and two separate admissions of details of the crime to former cellmates. It is well-established that the witnesses’ credibility is for the trier of fact to judge and, if believed, as the jury must have here, the evidence establishes that any reasonable hypothesis of innocence has been eliminated.
Appellant in his eighth proposition of law argues that the trial court, by defining “proof beyond a reasonable doubt” as required by R.C. 2901.05, relieved the state of proving guilt beyond a reasonable doubt and of proving beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances. This argument is similar to the one rejected by this court in State v. Jenkins, supra, at 211.
In his ninth proposition of law, appellant challenges as unconstitutional the sentencing instructions and prosecutor comment that the jury’s recommendation of a death sentence is not binding on the court, and that the final decision as to whether the death penalty shall be imposed rests with the court. We specifically held that this instruction, though not preferred, does not constitute reversible error, Jenkins, supra, at 202-203, and the United States Supreme Court has recently denied certiorari in that case, Jenkins v. Ohio (1985), 473 U.S___ 87 L. Ed. 2d 643. Appellant nevertheless challenges these jury instructions on authority of Caldwell v. Mississippi (1985), 472 U.S. _, 86 L. Ed. 2d 231. The United States Supreme Court there vacated a death sentence upon finding that a prosecutor’s closing argument, urging the jury not to view itself as finally determining whether petitioner would die because a death sentence would be reviewed for correctness by the state supreme court, was inaccurate and misleading. The plurality of the court found that this diminished the jury’s sense of responsibility which is indispensable to the Eighth Amendment’s “ ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’ ” Id. at 236, quoting Woodson v. North Carolina (1976), 428 U.S. 280, 305.
The Caldwell court felt that the state improperly created the impression that the appellate court would be free to reverse the death sentence if it disagreed with the jury’s conclusion that death was appropriate. Id. at 246-247, fn. 7. Justice O’Connor noted that the case distinguished by the plurality, California v. Ramos (1983), 463 U.S. 992, does not “suggest that the Federal Constitution prohibits the giving of accurate instructions regarding postsentencing procedures.” Caldwell, supra, at 248 (O’Connor, J., concurring). That is all that happened here; the judge told the jury that its death penalty recommendation is “just that — a recommendation, and is not binding upon the Court * * * [but that a life sentence] is binding upon the Court and the Judge must impose the specific life sentence which you [22] have recommended.” Under R.C. 2929.03(D)(2) and (3), the jury and the trial court each make an independent finding as to whether the aggravating circumstances outweigh the mitigating factors, thus justifying the death sentence. No Ohio court is bound by the jury’s weighing of the mitigating circumstances, as opposed to the Mississippi scheme reviewed by the Caldwell court. In Mississippi the jury’s verdict of death would not be overturned unless “it ‘was against the overwhelming weight of the evidence,’ or if the evidence of statutory aggravating circumstances is so lacking that a ‘judge should have entered a judgment of acquittal notwithstanding the verdict,’ ” id. at 248, quoting Williams v. State (Miss. 1984), 445 So. 2d 798, 811. We find that the jury instructions in the instant case were an accurate statement of the law and, therefore, were relevant to the valid state interest in educating the jury on the applicable law. However, because of the possible risk of diminishing jury responsibility, “* * * we prefer that in the future no reference be made to the jury regarding the finality of their decision * * Jenkins, supra, at 202.
In his tenth proposition of law appellant contends that, at the conclusion of the penalty phase, the trial court erroneously instructed the jury not to be influenced by considerations of sympathy or prejudice. Even if appellant had followed the correct procedures for having this court review this issue, we specifically rejected this argument in State v. Jenkins, supra, paragraph three of the syllabus.
In his eleventh proposition of law, appellant urges that this court abandon the “beyond a reasonable doubt” standard applicable to all criminal proceedings pursuant to R.C. 2901.05(A). Not only did appellant waive this issue by not complying with Crim. R. 30(A), but we also expressly rejected this argument in Jenkins, supra, at paragraph eight of the syllabus.
In his twelfth proposition, appellant argues that the jury should have been instructed that a life imprisonment sentence does not require a unanimous vote. Not only was this issue not briefed and decided bblow, but this alleged reading of R.C. 2929.03(D)(2) ignores the requirement set forth in Crim. R. 31(A) that all verdicts in criminal proceedings be unanimous. Furthermore, we rejected this argument in Jenkins, supra, at 213-214, and held that: “In returning a sentence of life imprisonment under R.C. 2929.03(D)(2), the jury’s verdict must be unanimous.” Id. at paragraph ten of the syllabus.
In proposition of law thirteen, appellant contends that a capital defendant is entitled to a special verdict on the question of intent to kill. We rejected this argument, which appellant neglected to raise below, in Jenkins, supra, at 212-213, by stating that the General Assembly did not require it when it drafted R.C. 2903.01(D).
Appellant in his fourteenth proposition of law avers that the submission to the jury of the presentence investigative and mental examination reports under R.C. 2929.03(D)(1) denied him confrontational and due process rights, as well as contravened the Ohio Rules of Evidence. The latter [23] argument is without merit due to the fact that the Rules of Evidence do not apply to sentencing proceedings. Evid. R. 101(C)(3).
' The United States Supreme Court has held that confrontational rights do not apply to all types of hearings. Wolff v. McDonnell (1974), 418 U.S. 539 [71 O.O.2d 336]. All that due process requires with respect to post-conviction reports is giving the defendant a chance to rebut any alleged inaccuracies. See Gregg v. Georgia (1976), 428 U.S. 153, 189, fn. 37; United States v. Papajohn (C.A. 8, 1983), 701 F. 2d 760, 763; and Farrow v. United States (C.A. 9, 1978), 580 F. 2d 1339, 1360. Not only does appellant fail to argue that the reports were inaccurate, but he also failed to exercise the opportunity at the mitigation hearing to correct any erroneous information. Due process is not denied a defendant who fails to challenge the accuracy of statements as to which he has been denied an opportunity for cross-examination or confrontation. See Williams v. New York (1949), 337 U.S. 241, rehearing denied (1949), 337 U.S. 961; Williams v. Oklahoma (1959), 358 U.S. 576, rehearing denied (1959), 359 U.S. 956. R.C. 2947.06 authorizes a defendant’s cross-examination, under oath, of the persons who compiled the report of a psychologist or psychiatrist, “as to any matter or thing contained therein.” The appellant failed to exercise this right and cannot now be heard on a complaint that the admission of these reports, prepared at his own request, under R.C. 2929.03(D)(1), prejudiced him.
In his fifteenth proposition of law, appellant contends that the prosecutor’s review, in closing argument, of the mitigating factors specifically set forth by the General Assembly in R.C. 2929.04(B), and argument that appellant failed to adduce evidence satisfying any of these factors, unfairly and prejudicially interfered with the sentencing determination. Not only was this argument not briefed and decided below, but also the trial court corrected any possible harm by correctly instructing the jury, shortly after the prosecutor’s argument, that statutory as well as non-statutory mitigating factors may be proffered and considered in mitigation. In any event, any attorney misconduct is not material since the prosecutor never told the jury that the statutory factors were all that could be considered. Appellant’s argument is without merit.
Appellant next challenges, in his sixteenth proposition of law, the constitutionality of R.C. 2929.03 and 2929.04 on the basis that the aggravating circumstances fail to distinguish the murderers who deserve the death penalty from those who do not. According to the appellant, the conduct used to convict him (i.e., murder in the course of a robbery pursuant to R.C. 2903.01[B]) was also used to aggravate the offense to one in which the death penalty could be imposed under R.C. 2929.04(A)(7). This precise argument was rejected in Jenkins, supra, at 178. There we found that, “any duplication is the result of the General Assembly having set forth in detail when a murder in the course of a felony rises to the level of a capital offense, thus, in effect, narrowing the class of homicides in Ohio for which the death penalty becomes available as’a sentencing option.”
[24] In proposition of law number seventeen appellant argues that Ohio’s sentencing framework does not pass constitutional muster by failing to afford juries the opportunity to impose life sentences. The death penalty only becomes a mandatory sentence if the sentencing authority decides that the aggravating circumstances outweigh the evidence given in mitigation. R.C. 2929.04(B)(7) and (C) require “the sentencing authority to consider and weigh against aggravating circumstances any relevant mitigating factors which the defendant presents.” Jenkins, supra, at 179. The statute does not require the jury to impose the death sentence instead of life imprisonment.
Appellant in his eighteenth proposition of law contends that the aggravating circumstances here did not, beyond a reasonable doubt, outweigh the mitigating factors. The aggravating circumstance was commission of a senselessly cruel aggravated murder in the course of an aggravated robbery. The meager evidence in mitigation was that the appellant pursued a life of crime to compensate for a lack of love in his childhood. The appellant failed to produce any evidence of the mitigating factors listed in R.C. 2929.04(B). In fact, the evidence produced at the trial and the mitigation hearing tends to establish that appellant’s circumstances fall outside the diminished responsibility the legislative scheme implies it intends to have the jury take into account in imposing the death sentence. Appellant’s explanation of his “life of crime” falls far short of mandating a holding that reasonable minds could never find, beyond a reasonable doubt, that, in the instant murder, the aggravating circumstances outweigh the mitigating factors. Our conclusion is that the aggravating circumstances do indeed outweigh the mitigating factors beyond a reasonable doubt.
In his nineteenth proposition of law, appellant argues that the death sentence imposed in the subject case is disproportionate to that imposed in similar cases, and is therefore violative of Sections 9, 10 and 16, Article I of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution. Appellant bases his argument on the fact that other capital defendants throughout Ohio, who were charged with only one aggravating circumstance, have received life sentences, rather than the death penalty.
The United States Supreme Court’s concern that the death penalty not be imposed arbitrarily or capriciously, Furman v. Georgia (1972), 408 U.S. 238, upon which appellant’s argument is based, has been held satisfied when death-penalty-authorizing statutes require the sentencing authority to examine specific factors that argue in favor of, or against imposition of, the death penalty. Proffitt v. Florida (1976), 428 U.S. 242. States may constitutionally impose the death sentence if the discretion of the sentencing authority is “ ‘suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action’ in imposing the sentence, Zant v. Stephens (1983), [462 U.S. 862,] 77 L. Ed. 2d 235, at 248.” Jenkins, supra, at 168.
[25] Ohio’s “weighing statute” properly limits the sentencing authority’s discretion to focus “attention upon the circumstances of the capital offense and the individual offender when considering whether to return a verdict imposing the death penalty.” Jenkins, supra, at 173. It follows that “[mjerely counting the number of specifications charged does not demonstrate a disproportionate impact without reference to all aspects of the crimes.” State v. Maurer, supra, at 246. Counting the specifications charged hardly takes into account all the particularized circumstances surrounding each capital offense and each individual offender, required by Jurek v. Texas (1976), 428 U.S. 262, 273-274. The United States Supreme Court has never found that the number of aggravating circumstances is the only factor permitted to be considered in a decision of whether to impose a death sentence.
As to appellant’s final and twentieth proposition of law generally assailing the constitutionality of Ohio’s death penalty statute, we find no merit therein. All of appellant’s other challenges have previously been rejected by this court, in Jenkins, supra.
We reaffirm our holding in Jenkins, supra, paragraph one of the syllabus, that Ohio’s capital punishment statutes are constitutional and affirm the judgment of the court of appeals that they were constitutionally applied in the instant case. Appellant’s convictions and death sentence stand.
Judgment affirmed.
Celebrezze, C.J., Locher, Holmes and Douglas, JJ., concur.
Sweeney, J., dissents.
C. Brown and Wright, JJ., dissent with opinion.