COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72250 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION KENT B. GROVER : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 12, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-343446. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Richard A. Bell Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Kent Grover, pro se #333-682 Lebanon Correctional Institution P.O. Box 56 Lebanon, Ohio 45036 Patricia J. Smith, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- SWEENEY, JAMES D., J.: Defendant-appellant Kent Grover appeals from his conviction, subsequent to a trial to the bench, for murder, in violation of R.C. 2903.02. The appellant was sentenced to a term of fifteen years incarceration. It is uncontested by the appellant that on August 29, 1996, he brutally murdered the victim, Ms. Bella Leybovich. Testimony given at trial reveals that the appellant and the victim began a clandestine relationship in 1992. The appellant left his wife and family and moved into the victim's home in June 1996. The victim's daughter, Anna Leybovich, lived in the home as well, and her conduct was a source of contention between the appellant and the victim. It is also uncontested that the appellant, with the support of Ms. Leybovich, had been attending a program at Laurelwood for treatment of his alcoholism. When the victim returned home from taping a Russian radio program, at approximately 10:30 p.m., she greeted the appellant. Shortly thereafter an argument ensued regarding Anna. Ms. Leybovich accused the appellant of drinking, and asked him to leave her home. The appellant admitted to drinking a bottle of wine that day. The following testimony was elicited from the appellant by his counsel on direct examination: A. She said Bella said, you know I told you if you went back to drinking we were through. It's over. And I said, babe, you've got to be kidding. Come-on. I just had a bottle of wine. I won't do it again. Please. You know, please. -3- And she said, no, pack your bags. Get out. I said, but I don't have anywhere to go. This is my house; this is where I live. We're together for our future. You are all I have. I left my wife and kids for you. You are everything I have. I don't have anything. She said, get out or I'm calling the police. And I was begging her no, no, don't do that. No, don't. And she went to the phone, which is in the T.V. room. It has an answering machine connected to it. And I went over and yanked on a wire. I don't know if it was the wire to the answering machine or the phone, which wire it was, but I yanked it out. She was upset, you are damaging the phone; yelling at me, get out of here. And she was heading passed (sic) the sink. I ran passed (sic) her and grabbed the phone on that cord and yanked it out. I said, you are not calling the police. Sit down. Talk to me. Let me hug you. Relax. Let's talk about this. I said, I'm sorry I had to drink. I just had to ease my pain. And she was no, no, you are out of here. No, get out. And I think she was going to go down she was heading towards the dining room by the sink, and I think she was going to the bedroom where there was another phone, and I grabbed her by the shoulders and turned her around to give her a hug, and she slapped me and knocked my glasses off. And while I was holding her she bit my knuckle. My hand was in her mouth. Q. How were you holding her? A. Her shoulders. I was trying to hug her. She turned and bit my hand. And while I was holding her saying, come on, come on; clam (sic) down, calm down; stop it, stop it, she kneed me in the groin. She hit me in the nose. I think that is where my blood was coming from. I'm not sure. And I was trying to hold her and she was hitting me, and kneeing me, and biting me, and I just lost control. I don't know, I lost control. -4- Q. How did she look at you? A. Like I never seen her look, like she hated me. Never seen her look at me like that before. Q. And what happened? A. I just reacted. I grabbed a knife that was on the counter and I just started lashing at her. (T. 399 - 401). The appellant inflicted 19 stab wounds and various defensive wounds on Ms. Leybovich, deposited her body in the driveway, and fled. The following testimony was heard by the court on cross examination: Q. What started the argument to the point where you decided you went to reach for a knife? A. She was telling me I had to get out or she was going to call the police. Q. You think that would be reason to kill somebody? A. She was all I had in the world. I left everything for her. Q.Is that a reason to kill somebody, sir; yes or no? A. No. My God, no. (T. 442). The appellant sets forth four assignments of error. The first assignment is presented by counsel and the second, third, and fourth are presented by the appellant pro se. The first assignment of error: THE TRIAL COURT ERRED WHEN IT FOUND THE APPELLANT GUILTY OF MURDER WHERE THE WEIGHT OF -5- THE EVIDENCE PRESENTED WAS OF A GREATER WEIGHT THAT THE APPELLANT ACTED WHILE UNDER THE INFLUENCE OF SUDDEN FIT OF RAGE WHICH WAS BROUGHT ON BY SERIOUS PROVOCATION OCCASIONED BY THE DECEDENT WHICH WAS REASONABLY SUFFICIENT TO INCITE HIM INTO USING DEADLY FORCE. The appellant asserts that there was sufficient evidence of provocation by the victim such that a conviction for voluntary manslaughter, rather than murder, was warranted. Although the assignment of error as written asserts that the appellant was convicted against the manifest weight of the evidence, the appellant also argues within the body of his brief that his conviction was not supported by sufficient evidence. This court will consider both arguments. When the sufficiency of the State's evidence is challenged, 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 beyond a reasonable doubt. State v. Williams (1995), 73 Ohio St.3d 153 citing to Jackson v. Virginia (1979), 443 U.S. 307 and State v. Waddy (1992), 63 Ohio St.3d 424. The Supreme Court set forth the test for appellate review of the manifest weight of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, 273. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the -6- offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact to determine. Jenks, supra. The appellant contends that he should have been convicted of voluntary manslaughter, and not murder. R.C. 2903.02 prohibits murder by stating that no person shall purposely cause the death of another. R.C. 2903.03 sets forth the elements of voluntary manslaughter as follows: (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 or unlawful termination of another's pregnancy. In State v. Shane (1992), 63 Ohio St.3d 630, the court addressed the issue of How much provocation is `reasonably sufficient' provocation? In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied. Id. at 634. The court held that provocation must be reasonably sufficient to incite the defendant to deadly force, and that for provocation to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary person beyond the power of his or her control. Shane, supra. The court went on to find that words alone will not constitute reasonably sufficient provocation to incite the use of deadly force -7- in most situations. The court held that the trial court must make the determination as to whether or not there has been reasonable provocation as a matter of law, in view of the specific facts of each individual case. The evidence must be viewed in the light most favorable to the defendant, without weighing the persuasiveness of the evidence. Shane, supra. In the case sub judice, the appellant cites to his impending divorce and the resulting financial implications, the loss of closeness with his children, his alcoholism, his dependent personality disorder, and the victim's difficulties with her daughter as the stressors in his life which led to the murder. He contends that when he began a discussion about their problems, Ms. Leybovich was antagonistic, that she argued with him and then accused him of drinking. Once the drinking was admitted, the victim ordered him to pack and leave. The appellant contends that this loss of everything he held dear was occasioned by the victim. Assuming, arguendo, that the appellant's version of the facts is accurate, there is no evidence that the acts of Ms. Leybovich were such that would provoke an ordinary person beyond the power of his or her control. The victim and the appellant were in the midst of a domestic quarrel, the subject of which had been the source of other quarrels between them. Once the victim found the appellant had been drinking, she requested that he leave her house or she would call the police. Since he was not leaving, the victim attempted to call the police. The appellant violently ripped two telephones out of the wall. Given this behavior, any reasonable -8- person would believed that they were in personal danger. Then, as the appellant grabbed the victim, she tried to fight him off by slapping his face, biting his hand, and kneeing his groin. In short, what the appellant is asserting is that his emotional distress was sufficient to reduce murder to voluntary manslaughter. Such is not the law of Ohio. To show that murder should be reduced to the crime of voluntary manslaughter, the perpetrator must show by the preponderance of the evidence that he acted under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite him into using deadly force. State v. Rhodes (1992), 63 Ohio St.3d 613. Here, the conduct of the victim was blameless. This court finds that the trial court did not err in convicting the appellant of murder rather than voluntary manslaughter. Objectively, the actions of the victim could not have provoked the appellant into such a rage or fit of passion as to warrant the use of deadly force. The evidence presented by the State was both sufficient and of such weight as to sustain the appellant's conviction of murder. The appellant's first assignment of error is overruled. The second assignment of error, argued pro se: THE TRIAL COURT ERRED BOTH PROCEDURALLY AND PREJUDICIALLY WHEN IT FAILED TO INDICATE FOR THE RECORD THAT IT WOULD DELIBERATE ON THE LESSER INCLUDED CRIME OF VOLUNTARY MANSLAUGHTER. THIS ERROR WAS INDICATED BY THE FACT THAT IT WAS NOT STATED FOR THE RECORD NOR WAS A PSI CONDUCTED TO OBTAIN INFORMATION RELATING TO MITIGATING FACTORS THAT WOULD HAVE -9- BEEN NEEDED TO ASSIST IN DETERMINING SENTENCING SHOULD VOLUNTARY MANSLAUGHTER HAVE BEEN THE VERDICT. THIS IS CLEARLY INDICATIVE OF PREJUDICE AND PROCEDURAL ERROR INDICATING THAT THE TRIAL COURT HAD FORMED THEIR DECISION PRIOR TO OR AT THE END OF THE TRIAL WITHOUT CONSIDERATION OF LESSER INCLUDED OFFENSES OR DELIBERATION OVER THE FACTS AND CIRCUMSTANCES. IF A TRIAL JUDGE SERVING AS THE TRIER OF FACTS IS NOT REQUIRED TO ADHERE TO THE SAME RULES AND PROCEDURES AS WHEN A JURY IS THE `TRIER OF FACTS (sic) THEN MY SUBSTANTIAL RIGHTS WERE VIOLATED WHEN I WAS NOT INFORMED OF THESE FACTS. IF THIS BE THE CASE THE TRIAL COURT COMMITTED AN ERROR OF VIOLATING MY RIGHTS WHEN IT FAILED TO INFORM OF SUCH WHEN CONFIRMING THAT I CHOSE TO HAVE A JUDGE AS TRIER OF FACTS AS OPPOSED TO A JURY. In this assignment of error, the appellant asserts several arguments. The appellant first argues that the trial court should have considered the mitigating sentencing factors in R.C. 2929.12 prior to finding him guilty of murder rather than voluntary manslaughter, and that the court erred in failing to have a pre- sentence investigation report prior to the verdict. The appellant fails to cite to any statute, case, or rule which requires a court, when rendering a verdict, to take into considerationfactors pertinent to sentencing. A trier of fact is never permitted to consider the sentence when reaching its verdict. A decision as to whether or not each of the elements of a crime has been committed by a defendant is rendered wholly independently of any consideration for the consequences of that decision. Only when the verdict has been reached does any question regarding sentencing arise. Additionally, in the instances where a trial court is required to consider sentencing mitigation factors, this -10- consideration is not given until after a verdict has been handed down. Here, the appellant simply confuses these two widely separate procedures. When considering its verdict, the court was required to, and did, consider the appellant's contention that his acts were occasioned by the victim. The court simply applied the law of the State of Ohio, and properly determined that the appellant committed the crime of murder, not voluntary manslaughter. The appellant also asserts that the court had an obligation to state on the record that it would consider the lesser offense of voluntary manslaughter, and that the absence of such a statement is indicative that the court failed to consider voluntary manslaughter. The appellant seemingly contends that he was prejudiced by the trial court's failure to consider the lesser offense where, by contrast, a jury would have been given an instruction to consider voluntary manslaughter. Trial counsel for the appellant clearly presented the issue of voluntary manslaughter before the trial court in both opening and closing statements (T. 41, 556 - 559). In announcing its decision, and after finding the appellant not guilty of aggravated murder, the trial court set forth the elements of voluntary manslaughter, recited the pertinent facts, outlined the law pertaining to voluntary manslaughter, and found that the appellant failed to prove by a greater weight of the evidence the elements of voluntary manslaughter (T. 578 - 580). The record demonstrates that the court clearly understood that the lesser offense of -11- voluntary manslaughter was at issue in the case before it, and demonstrates quite clearly that it, in fact, considered the offense when rendering its verdict. Finally, to the extent that the appellant in the argument portion of his pro se brief argues that the verdict was against the manifest weight of the evidence, or that the verdict was not supported by the evidence, these arguments are not well taken. See the first assignment of error. The appellant's second assignment of error is not well taken. The third assignment of error, argued pro se: THE TRIAL COURT ERRED WHEN IT ALLOWED PROSECUTORIAL MISCONDUCT TO OCCUR DURING THE CROSS EXAMINATION OF THE DEFENDANT. THE PROSECUTOR BADGERED AND VICIOUSLY ATTACKED THE DEFENDANT AS A LIAR , AND HABITUAL LIAR , EXPRESSING HIS PERSONAL OPINION, NOT RELATED TO FACTS PRESENTED OR RELEVANT TO THE CASE IN AN ATTEMPT TO DISCREDIT THE DEFENDANT'S PREVIOUSLY SWORN TO UNDER OATH TESTIMONY. The appellant, by arguing that the prosecutor improperly attempted to impugn his credibility, fundamentally misunderstands the nature of cross-examination. One permissible purpose of cross- examination is to assail the credibility of the witness. Upon review of the record, this court finds that the prosecutor's cross- examination was conducted within permissible bounds. The appellant also asserts the prosecutor committed prejudicial error when he classified the appellant as a liar. While it is impermissible for the State's attorney to express an -12- opinion as to the witness's credibility1, State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this lone instance of prosecutorial misconduct is not sufficient to have denied the appellant a fair trial. See generally, State v. Keenan (1993), 66 Ohio St.3d 402. The appellant's third assignment of error is overruled. The fourth assignment of error, argued pro se: THE TRIAL COURT ERRED WHEN IT FAILED TO DISQUALIFY ITSELF AND RECOMMEND A CHANGE OF VENUE FOR THE DEFENDANT'S TRIAL BASED ON THE HIGH PROFILE CHARACTERISTICS AND MULTI-DAY FRONT PAGE NEWSPAPER COVERAGE AND HIGH INTENSITY MULTI-CLANNED TELEVISION PRETRIAL PUBLICITY. The appellant asserts that the court should have ordered a change in venue. A motion for a change in venue was neither made to the court nor discussed in the record. The appellant has failed to point out in the record any demonstration of pretrial publicity, let alone pretrial publicity which would rise to the level of a denial of a fair trial. Nonetheless, it is an established principle that the decision on changing venue rests largely in the discretion of the trial court. Sta te v. Gumm (1995), 73 Ohio St.3d 413, 430. Absent a clear showing of abuse of discretion, the trial court's decision controls. Id.In State v. Fox (1994), 69 Ohio St.3d 183, 188, the Supreme Court found no prejudice from pretrial publicity accrued to a defendant where the trial was held before a panel of judges. 1While we agree that ordinarily a prosecutor may not opine that the defendant is a liar, in regards to the appellant herein, an average citizen would consider this simply a statement of fact considering that the appellant conducted a four year clandestine adulterous affair. -13- Trial judges are presumed in a bench trial to rely only upon relevant, material, and competent evidence. Id. The appellant's fourth assignment of error is overruled. In his pro se reply brief the appellant, without asserting additional assignments of error, raises issues this court, while not required to do so, chooses to address for the sake of judicial economy. The appellant asserts that he was denied effective assistance of counsel by counsel's failure to object to the prosecutorial misconduct committed while the prosecutor cross-examined the appellant and by counsel's failure to request a change of venue. The appellant also variously asserts that he was not present in the courtroom for pre-trials; that he was not privy to the motions filed by the parties; that he had no opportunity to review the report of Dr. Kaplan, his own witness; and that his counsel failed to obtain the victim's medical record which would have indicated that she was receiving treatment for depression. To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish -14- prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. The appellant herein is unable to demonstrate that any error by counsel was so egregious that he was denied due process. As stated in the third assignment of error, supra, the prosecutor's impermissible reference to the appellant as a liar was not sufficient to have denied the appellant a fair trial. Where the result of the trial would not have changed had counsel raised an objection, it cannot be deemed ineffective assistance of counsel to have failed to object. Likewise, as discussed in the fourth assignment of error, supra counsel's failure to request a change in venue was not prejudicial to the appellant. This decision may be deemed a trial tactic, and absent some prejudice to the appellant, counsel's conduct was not deficient. Finally, the appellant's other allegations of counsel's ineffectiveness occurred, if at all, outside the record, and thus are overruled. The appellant's assertion that he was denied effective assistance of counsel is without merit. Judgment affirmed. -15- 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. LEO M. SPELLACY, P.J., and KENNETH A. ROCCO, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .