COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59896 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CHRISTINA BERENDSEN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 20, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-241934 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: TIMOTHY MILLER ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: MICHAEL H. PETERSON 1370 WEST SIXTH STREET SUITE 202 CLEVELAND, OHIO 44113 -2- SPELLACY, J.: Defendant-appellant Christina Berendsen ("appellant") appeals from her conviction for voluntary manslaughter, in violation of R.C. 2903.03. The facts giving rise to this appeal are as follows: On August 7, 1989, appellant was indicted for aggravated murder, in violation of R.C. 2903.01. A bench trial commenced on March 26, 1990. The following pertinent evidence was adduced at trial: On June 7, 1989, at 10:15 P.M., Parma Police were summoned to appellant's apartment. The first officer on the scene, Wayne Schmigel, found the nude body of appellant's forty-seven year old stepfather, Edward Berendsen ("Berendsen"), which had sustained severe trauma to the back of the head, lying face down on a blanket in appellant's living room. A sheet, extending to the nape of the neck, covered Berendsen and his arms were wrapped around a pillow. The coroner testified that Berendsen sustained twelve blows to the back of the head, six to eight of which fractured his skull, a laceration to his right ear and a laceration to his left eyebrow. He also testified that there was no indication that Berendsen raised his arms in an attempt to ward off the blows and that Berendsen appeared to have been lying in a resting position when the blows were inflicted. Blood stains analyzed by the trace evidence department demonstrated that the sheet had been tucked around Berendsen -3- prior to the blows being inflicted and that he had been lying on the floor, not attempting to stand up. In addition, a bath towel found in appellant's bedroom contained blood stains consistent with Berendsen's blood type. At the time of his death, Berendsen lived alone in a boarding house and had been divorced from appellant's mother for five years. Appellant gave varying accounts of the evening to the Parma Police. On the night of the incident, appellant told Officer Schmigel that after she and Berendsen arrived at her apartment at 8:45 P.M. an intruder, who was between five feet eight inches and five feet ten inches tall and wielding a handgun, emerged from the back of the apartment. The intruder made appellant and Berendsen lie down on the living room floor and then either shot Berendsen or hit him with a hammer. Appellant was unsure which had occurred. On June 8, 1989, Lieutenant Edward Frantz took appellant's written statement. Appellant told Lieutenant Frantz that the intruder, who was more than six feet tall, made Berendsen undress in the bedroom and then carry a blanket back into the living room before making them lie down. She also told him that when Berendsen tried to move, the intruder struck him with a hammer. On June 16, 1989, Detective Roger Lisy took a second written statement from appellant. She told Detective Lisy that the intruder was Jody Lewis, an acquaintance. Appellant also told -4- Detective Lisy that after she and Berendsen arrived at her apartment, he undressed in the bedroom and she put on a nightgown. They then put a blanket on the living room floor and started "hugging." At this point Lewis appeared holding a hammer and a handgun. When Berendsen stated that he was appellant's boyfriend, Lewis began hitting Berendsen with a hammer. In every statement appellant gave to the Parma Police, she indicated that the intruder escaped by jumping out of her third story bedroom window. Several police officers testified that they inspected appellant's bedroom window. They all stated that no one could have climbed through the window because there was a layer of dirt on the window sill which had not been disturbed. The police officers also stated that no one could have jumped out of the third story window because there were no deep footprints in the moist ground below the window. Appellant also told Lieutenant Frantz and Detective Lisy that the handgun held by the intruder was one which she had bought that day and placed in the top drawer of her bureau. Officer Schmigel testified that the top drawer of appellant's bureau, located in the bedroom, had been pulled out and was lying on the floor on top of its contents. He stated that this was unusual because burglars usually want to go through a drawer's contents. He also stated that the drawer and its contents were lying on top of Berendsen's blue jeans. On June 8, 1989, in her written statement, appellant told Lieutenant Frantz that she suspected Berendsen was responsible -5- for setting her car on fire the weekend before because he was very jealous of her boyfriends. Appellant also told Lieutenant Frantz that Berendsen had molested her when she was between the ages of four and seventeen, and that he still occasionally molested her, most recently in February 1989. Jody Lewis, age twenty-two, who met appellant in April 1989, testified that they dated for about two weeks and that their relationship ended amicably. Lewis stated that appellant told him that Berendsen was forcing her to have sex and that she was trying to hire someone to kill him. Lewis also testified that on June 7, 1989, he drove appellant and her two children to a gun store where appellant bought a handgun. He stated that appellant told him she needed the handgun to protect herself from Berendsen. Lewis further testified that when appellant got out of the car to buy a soda for one of her children, he removed the magazine clip from the handgun, and later he threw it away. Lewis also stated that appellant told him that she was going to shoot Berendsen and claim self-defense. On cross-examination, Lewis stated that he took the magazine clip out of appellant's handgun because one of her children told him that appellant had bought the handgun in order to shoot him. Lewis also stated that he did not mention removing the magazine clip to the police because he did not want to incriminate himself. -6- Lewis further testified that appellant had previously told him that she could not date him because of her stepfather and another boyfriend. In his statement to the police, Lewis stated that on June 7, 1989, his girl friend Angel stopped by his house before dark. During cross-examination, Lewis testified that he could not remember whether Angel stopped by that evening. He also stated that Dana Christ did stop by after ll:00 P.M. and that he did not mention this to the police because they had only asked what had happened prior to 11:00 P.M. Grover and Helen Lewis, Jody Lewis's parents, testified that he was at home until a little after 11:00 P.M. Helen Lewis stated that she did not see Angel that evening, but that her son left with Dana Christ. Tim King, who had known appellant since their childhood, testified that in December 1988 appellant asked him whether he knew anyone who could kill Berendsen. On cross-examination, King admitted that he had probably been smoking marijuana the night he spoke with appellant. Aaron Lemin testified that an individual named Lester introduced him to appellant in May 1989 and that Lewis had been present. Lemin stated that appellant was looking for someone to kill Berendsen because he was raping her and "running off" her boyfriends. He also testified that he towed appellant's car after it had been set on fire and that appellant had told him again that she wanted to have Berendsen killed. -7- Lemin went on to testify that on June 7, 1989, appellant and Lester came to his house and appellant offered him ten thousand dollars to kill Berendsen. Pam Schaffer, who lives in a nearby building, testified that on the night of the incident she was outside babysitting. She stated that at about dusk she heard sirens and saw a man running from the direction of appellant's apartment building. The man then jumped into a waiting car, which had a driver and a passenger, and the car drove away. She admitted that she had told the police that she would be able to recognize the man even though she only saw his back. Although she stated to the police that the man was walking, she stated on cross-examination that she could not remember whether he was walking or running. Schaffer originally told the police that the man was between five feet eight inches and five feet nine inches tall. At trial she testified that he was six feet tall. Police Officer Dennis Suihlik testified that when he initially asked Shaffer whether she had seen a man running away she told him that she had not. Later, Shaffer told Suihlik that she had seen a man running away. Appellant testified that Berendsen had molested her five times between the ages of four and seventeen. When she was seventeen, her mother and Berendsen divorced and she moved in with Berendsen. At this point, she and Berendsen entered into a sexual relationship. Appellant stated the sexual relationship ended for several years while she dated someone else, but it -8- resumed when she was twenty. Appellant testified that she did not initially tell the police why Berendsen was nude because she was embarrassed by her relationship with him. She also did not initially tell the police that Lewis had been the one who killed Berendsen because she was afraid of Lewis. Appellant also testified that she never dated Lewis and that he was always pestering her. Appellant went on to state that Lewis could not have removed the magazine clip because she did not leave the handgun in the car with him. Appellant further testified that she and Berendsen arrived at her apartment at about 9:00 P.M. and that Lewis appeared about forty-five minutes later. She added that the top drawer of her bureau was still in place when Berendsen undressed. She stated that after Lewis struck Berendsen, he turned the television on and mumbled that he was going to wait until dark. Eight to ten minutes later, Lewis jumped out the bedroom window. Appellant went on to testify that she had lied to the police when she told them she suspected Berendsen of burning her car. She admitted, however, that she had told her boyfriend Joe Vega and others that Berendsen had set her car on fire. At the conclusion of the trial, the trial court found appellant guilty of the lesser included offense of voluntary manslaughter, in violation of R.C. 2903.03, and sentenced her to a term of five to twenty-five years. Appellant appeals and raises the following assignments of error: -9- I. THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUSTAIN A CONVICTION AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN GRACE GRUBER, AARON LEMIN AND KENNETH J. MONTGOMERY WERE PERMITTED TO TES- TIFY EVEN THOUGH THEIR NAMES WERE NOT ON THE WITNESS LIST PROVIDED BY THE PROSECUTOR TO DEFENSE COUNSEL UNDER CRIM. R. 16(B)(1)(e). I. In her first assignment of error, appellant contends that her conviction is not supported by sufficient evidence and that it is against the manifest weight of the evidence. Appellant's contentions lack merit. First, when an appellate court reviews a conviction to determine whether it is supported by sufficient evidence, the court must: "*** examine the evidence admitted at trial to determine whether such evidence, if be- lieved, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reason- able doubt." State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. R.C. 2903.03 provides in pertinent part: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another. -10- After a review of the evidence, we find that, viewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the essential elements of voluntary manslaughter, in violation of R.C. 2903.03, were proven beyond a reasonable doubt. Second, the weight to be given the evidence and the credi- bility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. "A reviewing court may not reverse a judgment of conviction in a criminal case in a trial court, where the record shows that a verdict of guilty was returned by a jury on sufficient evidence and where no prejudicial error occurred in the actual trial of the case ***." Id., paragraph two of the syllabus. When addressing whether a verdict is against the manifest weight of the evidence, the reviewing court reviews: "... the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Martin (1983), 20 Ohio App. 3d 172, 175. After a review of the record, we conclude that the trial court, as trier of fact, could properly find appellant guilty of voluntary manslaughter, in violation of R.C. 2903.03. -11- Accordingly, appellant's first assignment of error is not well taken. II. In her second assignment of error, appellant contends the trial court erred when it allowed Aaron Lemin, Kenneth Montgomery, and Grace Gruber, all of whom were not on the State's witness list, to testify. Appellant's assignment of error lacks merit. Under Crim. R. 16(B)(1)(e), the trial court, upon the motion of the defendant, must order the State to furnish the defendant with a list naming all the witnesses the State intends to call at trial. Crim. R. 16(E) provides the mechanism for regulating discovery under Crim. R. 16 and gives the trial court the authority to "*** order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or *** make such other order as it deems just under the circumstances." Decisions concerning Crim. R. 16 lie within the sound discretion of the trial court. State v. Wiles (1991), 59 Ohio St. 3d 71, 78; State v. Edwards (1976), 49 Ohio St. 2d 31, 42. The defense's only request concerning Lemin's testimony was for a continuance prior to cross-examination, which the trial court granted. With respect to Montgomery, who testified that Lemin towed appellant's car after it had been burned, the defense waived its objection by informing the trial court that he could testify. Finally, when the State called Grace Gruber, who is -12- Paul Gruber's mother, the defense objected and stated that it might need a continuance. Gruber testified that she saw appellant enter her apartment a little before 9:00 P.M. on the night of the incident. After Gruber's direct examination, however, the defense did not make any further requests. As a result, the defense waived its objection. Accordingly, appellant's second assignment of error is not well taken. Judgment affirmed. -13- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., AND JOHN V. CORRIGAN, J.*, CONCUR. (*Judge John V. Corrigan, Retired Judge of the Eighth Appellate District, Sitting LEO M. SPELLACY by Assignment) JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .