COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70172 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ISRAEL STOKLEY, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 16, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-324804 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Michael D. Horn Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: John P. Keshock 20800 Center Ridge Road Suite 211 Rocky River, Ohio 44116 -2- NAHRA, J.: Appellant, Israel Stokley ("Stokley"), appeals his conviction for one count of murder, in violation of R.C. 2903.02, with a firearm specification. On June 3, 1995, Ora Lee Smith ("Smith") died of a single gunshot wound to her head. The parties agree that Stokley and a friend went to Smith's house that night for supper. After dinner, the friend left Smith's house. The prosecution maintained that once they were alone, Stokley approached Smith and shot her in the head. Appellant testified that Smith drew a gun on him and that she was shot in an ensuing struggle over the gun. Other than appellant, there were no witnesses to the shooting and the weapon was never found. By all accounts, Stokley left the house immediately after the shooting. Despite the presence of neighbors outside, Stokley did not stop or speak to anyone upon leaving. The state produced evidence that Stokley later confessed to killing Smith. Appellant turned himself into the police within days of Smith's death. The state indicted Stokley on one count of aggravated murder. He entered a plea of not guilty and exercised his right to trial. At trial, appellant testified. The jury convicted Stokley on the lesser included offense of murder. Stokley appealed and asserts two assignments of error for review. -3- I. Appellant's first assignment of error states: THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO IRRELEVANT AND UNFAIRLY PREJUDICIAL TESTIMONY REGARDING VICTIM IMPACT AND WHEN TRIAL COUNSEL FAILED TO REQUEST A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER. Quoting paragraphs one and two of the syllabus from State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, this court in State v. Young (February 22, 1996), Cuyahoga App. Nos. 69010, 69011, unreported, summarized the proper standard of review: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Lytle (1976), 42 Ohio St.2d 391; Strickland v. Washington (1984), 466 U.S. 668, followed. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsels' error, the result of the trial would have been different. A reasonable probability exists where there is a probability sufficient to undermine the reviewing court's confidence in the outcome reached at trial. State v. Houser (May 30, 1996), Cuyahoga App. No. 69639, unreported. A reviewing court may presume that a properly licensed attorney executes his legal duty to competently represent the client. State v. Smith (1985), 17 Ohio St.3d 98, 100, 417 N.E.2d 1128; Houser, supra. -4- Appellant's assignment of error rests on two distinct arguments. First, Stokley contends that his trial counsel performed deficiently by failing to object to a line of questioning involving Smith's severely retarded daughter, e.g., that decedent's 14 year old daughter who had been injured in a car accident had to be cared for as a six month old baby. Appellant characterizes such testimony as "victim impact testimony" and cites cases which demonstrate that such testimony is inadmissible. Assuming arguendo that the testimony constituted "victim impact testimony", trial counsel's failure to object to the line of questioning does not amount to ineffective assistance of counsel. The decision to object to testimony falls within the realm of trial strategy. See State v. Goodwin (June 15, 1995), Cuyahoga App. No. 66951, unreported. The use of a debatable trial tactic is not a proper basis for an ineffective assistance of counsel claim. State v. Croom (Jan. 18, 1996), Cuyahoga App. No. 67135, unreported, quoting, State v. Clayton (1980), 62 Ohio St.2d 45, 49. Furthermore, such testimony was proper to explain why the daughter was not called to testify. Stokley next contends that trial counsel's failure to request a jury instruction on the lesser included offense of voluntary manslaughter constituted ineffective assistance of counsel. We find that the decision to forego instructing the jury on the issue of voluntary manslaughter was a calculated attempt to gain acquittal. Indeed, Stokley's defense counsel objected to instructing the jury on the lesser included offense of murder -5- because he felt that the jury should find guilt on the aggravated murder charge or not at all. The record reveals that trial counsel's decision was strategic and does not support Stokley's claim for ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 47-48, 16 O.O.3d 35, 402 N.E.2d 1189; State v. Harris (June 21, 1990), Cuyahoga App. No. 57148, unreported. Furthermore, defense counsel's decision did not prejudice appellant. Pursuant to R.C. 2745.74, a jury may convict a criminal defendant on a lesser included offense of the indicted charge. State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294. Indeed, an instruction on a lesser included offense is required where the evidence presented at trial would reasonably support a conviction on the lesser included offense. State v. Clark (1995), 101 Ohio App.3d 389, 420, 655 N.E.2d 795. However, there is no evidence in the record suggesting that Stokley acted under the influence of sudden passion or in a sudden fit of rage. There was no evidence presented of a reasonably sufficient provocation to induce such a state of mind. The lack of this evidence negates any possibility of convicting appellant on the lesser offense and renders his argument wholly without merit. Clark, supra. We overrule appellant's first assignment of error. II. Appellant's second assignment of error states: -6- THE VERDICT OF MURDER WAS AGAINST THE WEIGHT OF THE EVIDENCE. In State v. Mann, this court stated the standard of review for addressing a challenge to the weight of the evidence. "The court, reviewing 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. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42 [102 S.Ct. 2211, 2216, 2218, 72 L.Ed.2d 652, 659, 661]." State v. Mann (1993), 93 Ohio App.3d 301, 310, 638 N.E.2d 585, quoting, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720. A reviewing court will not reverse a conviction where there is substantial evidence upon which the trier of fact could conclude reasonably that the elements of the offense were proven beyond a reasonable doubt. Mann, supra. The weight assigned to the evidence and its credibility are primarily for the trier of fact. State v. DeJohn (June 6, 1996), Cuyahoga App. No. 69297, unreported. A reviewing court may consider the following factors when assessing the propriety of a conviction: 1) the credibility, certainty, and reliability of the evidence; 2) whether evidence is contradicted; 3) whether a witness was impeached; 4) what remained unproven; 5) the bias of a witness; and, 6) the extent to which the evidence was vague, uncertain, conflicting, fragmentary or illogical. State v. Mattison (1985), 23 Ohio App.3d 10, 14. -7- In light of the evidence produced at trial, the jury reasonably concluded that appellant committed murder. Appellant admitted that he was in the kitchen when Smith was shot and it was uncontroverted that he was involved in the shooting. The factual issue for the jury was whether she was murdered by Stokley or killed in a struggle over a gun she had drawn. The state produced evidence that appellant left Smith's house and confessed to a long time friend that he had killed her. Smith's father testified that appellant telephoned him the morning of the shooting. During that conversation, appellant allegedly indicated that "something might happen" to Smith if she refused to marry him. This exchange, in light of Smith's death, suggests that Smith did not draw a gun on appellant, but rather, that he brought a gun to Smith's house in order to kill her. The state presented additional evidence which contradicted Stokley's claim that Smith was shot during a struggle over the gun. While appellant claimed that Smith held the gun in her left hand, the coroner indicated that the muzzle-to-target distance was greater than eighteen inches. The evidence demonstrated that the bullet passed by Smith's left ear, entered her skull just behind the ear, fragmented when it hit bone, and generally travelled towards the upper, right, rear portion of her head. These facts demonstrate that it was very unlikely, if not impossible, for Smith to have been shot in the manner suggested by appellant. Further, post-mortem tests, while not conclusive, demonstrated that Smith did not hold a gun in her hand the night she died. The responding -8- police officers stated that the kitchen bore no indicia of a physical struggle. This evidence both refutes appellant's defense and establishes that Smith was murdered. Simply, the jury chose to discredit Stokley's testimony that Smith drew a gun on him and convicted him based on the substantial evidence before them. Such a decision falls within the province of the jury and is amply supported by the evidence. Accordingly, we overrule appellant's second assignment of error. Judgment affirmed. -9- 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. PORTER, P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .