[Cite as State v. Worley, 2016-Ohio-2722.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103105




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                      PEREZ WORLEY
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-587709-B

        BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: April 28, 2016
ATTORNEYS FOR APPELLANT

Michael J. Goldberg
323 Lakeside Avenue West
Suite 450
Cleveland, Ohio 44113

Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brent Kirvel
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1}   Perez Worley appeals his conviction for aggravated murder, with an

associated firearm specification, and his indefinite, aggregate sentence of 28 years to life

in prison. For the following reasons, we affirm.

       {¶2} In June 2014, Worley confronted the victim for allegedly snitching on Worley

in 2009. An argument and then a physical altercation ensued, but the fight was broken

up by others. Sometime after the physical altercation (the time period is not clearly

specified in the record), Worley approached and then shot the victim multiple times.

Worley immediately fled the scene and absconded for four months. No one heard from

Worley during those four months, an abnormal occurrence for his mother, who spoke

with him at least a couple of times a month before the shooting.

       {¶3} Several witnesses circumstantially identified Worley as the shooter, and two

witnesses familiar with Worley saw him actually shoot the victim. Before the shooting,

Worley was also seen at a local gas station looking angry and holding a firearm. There is

disputed evidence whether the codefendant drove Worley away from the scene or they

departed separately. The codefendant’s alleged involvement in the crime was limited to

driving the getaway vehicle. No witness identified the codefendant as the shooter.

       {¶4} After the evidence was presented at trial, the jury found Worley guilty of

aggravated murder. The trial court found him not guilty of retaliation, but guilty of

improperly handling a firearm and having a weapon while under disability.            Those
sentences were imposed to be served concurrently to the aggravated murder and firearm

specification charges. Worley’s aggregate sentence is 28 years to life.

       {¶5} Worley timely appealed, advancing four assignments of error in which he

claims (1) that his conviction is against the sufficiency of the evidence because the state

failed to present evidence that Worley purposely caused the death of the victim or acted

with prior calculation and design; (2) that his conviction is against the manifest weight of

the evidence because of the inconsistencies in the witnesses’ testimony; (3) that Worley’s

trial counsel rendered ineffective assistance — by not waiving Worley’s right to a jury

trial on the retaliation charge or by stipulating to an “overly broad” flight instruction

because it allowed the jury to “consider if Mr. Worley leaving the scene of the crime was

caused by consciousness of guilt”; and (4) that the state violated the trial court’s pretrial

order, which partially granted a motion in limine.

       {¶6} We summarily overrule Worley’s first, third, and fourth assignments of error.

 The entirety of Worley’s sufficiency of the evidence argument is predicated on the

credibility of key witnesses. Credibility is not a factor to consider when reviewing the

sufficiency of the evidence, although those concerns will be addressed in our review of

the weight of the evidence. State v. Herring, 94 Ohio St.3d 246, 253, 2002-Ohio-796,

762 N.E.2d 940.

       {¶7} Further, Worley presented only two arguments in support of his ineffective

assistance of counsel claim: (1) his trial counsel was ineffective for failing to waive

Worley’s right to a jury trial; and (2) he was prejudiced by the “overly broad” flight
instruction because it allowed the jury to consider flight as consciousness of guilt. Only

the defendant, not his counsel, can waive his right to a jury1 (State v. Slaughter, 2d Dist.

Montgomery No. 25215, 2014-Ohio-862, ¶ 56, citing State v. Adams, 12th Dist. Butler

No. CA2006-07-160, 2007-Ohio-2583, ¶ 74) and an offender’s flight is admissible as

evidence of consciousness of guilt (State v. Gales, 8th Dist. Cuyahoga No. 102809,

2016-Ohio-588, ¶ 43). Trial counsel’s performance was not deficient as a matter of law.

       {¶8} Finally, with respect to our summary dispositions, Worley argues that the

state violated the trial court’s order excluding the evidence of the 2009 snitching incident.

 The trial court held, however, that the state was entitled to introduce evidence of the

victim’s alleged snitching, at the least to demonstrate the strained relationship between

the defendant and the victim.          Tr. 29:22-30:6.       Thus, the state did not violate the

exclusionary order, further demonstrated by the fact that the trial court overruled every

objection on that issue at trial.

       {¶9} Having offered nothing more than blanket assertions or ones unsupported by

the record, we must overrule Worley’s first, third, and fourth assignments of error as

being without merit.



       1
         Worley based his argument on the faulty presumption that his counsel failed to discuss the
ramifications of a refusal to waive the jury trial on the retaliation charge before that charge was read
to the jury. The only claimed error, therefore, is that Worley lacked sufficient legal advice to make
an informed decision. Whether Worley was adequately informed of his rights by his counsel
presents issues that rely on the contents of conversations between him and his attorney, facts that are
outside the record and unreviewable on a direct appeal. State v. Hoyle, 8th Dist. Cuyahoga No.
102791, 2016-Ohio-586, ¶ 15.
       {¶10} Turning our attention to the second assignment of error, when reviewing a

claim challenging the manifest weight of the evidence, the court, reviewing the entire

record, must weigh the evidence and all reasonable inferences, consider the credibility of

witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541. Reversing a conviction as being against the manifest

weight of the evidence should be reserved for only the exceptional case in which the

evidence weighs heavily against the conviction. Id.

       {¶11} The weight of the testimony must still be considered by the trier of fact with

the ability to view and hear firsthand the witnesses’ testimony. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Although appellate

courts are tasked with sitting as a “thirteenth” juror, “the demeanor of witnesses, the

manner of their responses, and many other factors observable by [a trier of fact] * * *

simply are not available to an appellate court on review.” State v. Bailey, 8th Dist.

Cuyahoga No. 97754, 2012-Ohio-3955, ¶ 12.           It is for this reason that reversing a

conviction as being against the manifest weight of the evidence is only reserved for

instances in which a miscarriage of justice would result. See, e.g., State v. Kozlosky, 195

Ohio App.3d 343, 2011-Ohio-4814, 959 N.E.2d 1097, ¶ 27 (8th Dist.) (the jury clearly

lost its way by not finding the defendant acted in self-defense).
       {¶12} The state’s theory was that Worley and the victim physically fought, the

fight was broken up, and the parties were separated for a short period of time. Worley

then approached the victim from behind to execute him. The victim turned before being

shot. As the state further argued, Worley’s animosity toward the victim was motivated

by his belief that the victim snitched on Worley in 2009. Worley contends that the

witnesses’ credibility issues weighed against the conviction to such a degree that the jury

clearly lost its way and created a miscarriage of justice.

       {¶13} Aggravated murder is defined as purposely causing the death of another

with prior calculation and design. Prior calculation and design, as the jury was instructed

in this case, is further defined as “the purpose to cause the death was reached by a definite

process of reasoning in advance of the homicide, which process of reasoning must have

included a mental plan involving studied consideration of the method and the means

and/or instrument with which to cause the death of another.” State v. Coley, 93 Ohio

St.3d 253, 267, 2001-Ohio-1340, 754 N.E.2d 1129, citing 4 Ohio Jury Instructions,

Section 503.01 (1997 and Supp.2000).

       {¶14} In this case, Worley argues that several of the witnesses inconsistently

testified and that Worley relinquished his grudge against the victim. The state’s evidence

of prior calculation and design was, therefore, not credible. At trial, the state also

argued, based on the presented evidence, that the fight between Worley and the victim

ceased and then a period of time elapsed allowing Worley to formulate his plan of attack.
       {¶15} “Whether a defendant acted with prior calculation and design is determined

on a case-by-case basis, following an analysis of the specific facts and evidence presented

at trial.” State v. Hicks, 8th Dist. Cuyahoga No. 102206, 2015-Ohio-4978, ¶ 41, citing

State v. Orr, 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680, ¶ 77. “Prior calculation

and design” can be proven

       from the circumstances surrounding a murder in several ways, including:
       (1) “evidence of a preconceived plan leading up to the murder”; (2)
       “evidence of the defendant’s encounter with the victim, including evidence
       necessary to infer that the defendant had a preconceived notion to kill
       regardless of how the events unfolded” or (3) “evidence that the murder
       was executed in such a manner that circumstantially proved the defendant
       had a preconceived plan to kill,” such as where the victim is killed in a
       cold-blooded, execution-style manner.

Hicks at ¶ 40, citing Orr at ¶ 75, citing State v. Dunford, 11th Dist. Ashtabula No.

2009-A-0027, 2010-Ohio-1272, ¶ 53; State v. Trewartha, 165 Ohio App.3d 91,

2005-Ohio-5697, 844 N.E.2d 1218 (10th Dist.); State v. Hough, 8th Dist. Cuyahoga No.

91691, 2010-Ohio-2770, ¶ 19.       Some other factors to consider in determining the

existence of “prior calculation and design” include “whether the defendant and the victim

knew each other and, if so, whether the relationship was strained; whether there was

thought or preparation in choosing the murder weapon or murder site; and whether the act

was ‘drawn out’ or ‘an almost instantaneous eruption of events.’” Id. at ¶ 41, citing State

v. Taylor, 78 Ohio St.3d 15, 19, 1997-Ohio-243, 676 N.E.2d 82.

       {¶16}   The witnesses’ credibility regarding the strained relationship between

Worley and the victim is but one factor to consider in making the “prior calculation and

design” determination. Worley has not addressed the fact that witnesses testified that the
fight between the victims was broken up for a short period of time, at least as much time

as it takes for someone to walk approximately 20 feet by one account, before the shooting

took place. In other words, the shooting was not instantaneous. State v. Conway, 108

Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 38, quoting State v. Cotton, 56 Ohio

St.2d 8, 381 N.E.2d 190 (1978), paragraph one of the syllabus.

       {¶17} A short period of time between the fight and the murder has been deemed a

sufficient period of time that an act can be considered to be done with prior calculation

and design. Taylor. In Taylor, the defendant and his girlfriend were patronizing a bar

one evening when the girlfriend’s “ex,” the victim, entered. Disputed evidence painted

two pictures: either the victim sat quietly in the corner (according to disinterested patrons)

or was loud, boisterous, and attempted to humiliate the defendant (according to the

defendant and his friends). The victim and the defendant verbally fought about a song

on the jukebox. Angered, the defendant immediately walked back to his table and told

his group they were leaving. On his way out, the defendant shot the victim several times.

 The Ohio Supreme Court held that prior calculation and design was based on the

reasonable inference that the defendant consciously planned to murder the victim,

forming the requisite decision in the time that transpired between the verbal altercation

and the murder. Id. The facts of the current case are analogous to those of Taylor.

       {¶18} When considering the totality of the circumstances, we cannot determine

that the jury lost its way or created a miscarriage of justice in finding Worley guilty of

aggravated murder. Worley and the victim had a strained relationship. Although the
witnesses vacillated on the degree of that strain, the evidence when considered as a whole

demonstrated that Worley harbored a grudge at least at some level. Worley was angry

and confronted the victim because Worley believed the victim had snitched in a 2009 case

that resulted in an acquittal. The two men fought, but that fight was broken up and the

parties were able to step away.          The murder was not an instantaneous occurrence.

Further, the evidence demonstrated that Worley approached the victim from behind, and

the victim turned before being executed in a deliberate manner.                   Other testimony

established that Worley was angry and armed himself even before his encounter with the

victim. Thus, it can also be reasonably inferred from the evidence presented that Worley

conceived of a plan to murder the victim before the initial encounter regardless of how

the events unfolded when Worley initiated the encounter. The jury reasonably inferred

prior calculation and design based on the credible evidence presented at trial.

       {¶19} Notwithstanding the prior calculation and design, Worley contends that the

witnesses’ credibility undermined their identification of the shooter.2 There were two

witnesses to the shooting, one of those being the codefendant. Although one of the key

witnesses identified Worley, he indicated upon cross-examination that the victim was shot


       2
          Worley contends that a detective “coached” the key witness into testifying that he witnessed
the shooting because the witness made a contrary statement to the police immediately after the
shooting, at one point indicating he was not present for the shooting and at another he was present.
During the investigation, the detective thought the witness was afraid to make a truthful statement
because others confirmed that the witness saw the shooting, and the detective asked the witness for
further information. The witness’s statement to police contained both statements: that he walked off
only to return after the shooting and that he witnessed the shooting. The detective and the witness
were both cross-examined on this issue at trial.
from behind. The medical examiner explained that the victim had been shot in the side,

and not in the back. Although seemingly contradictory, the discrepancy is minor based

on the totality of the evidence. That witness testified that the victim turned as Worley

approached from behind before being shot. The witness did not actually say that the

victim was shot in the back. When considered as a whole, the statement elicited on

cross-examination does not directly contradict the witness’s other testimony to the point

of undermining the whole of his testimony.

       {¶20} Further, although several witnesses disagreed and presented conflicting

testimony regarding Worley’s clothing that night — some claimed he was wearing a

white T-shirt, others thought Worley wore all white, while another confusingly thought

Worley wore a white T-shirt and black pants — those inconsistencies are less compelling

than the fact that the eyewitnesses to the shooting personally knew Worley. The clothing

identification explained Worley’s actions based on the other witnesses who did not

personally know Worley. All those witnesses universally testified, however, that Worley

wore a white T-shirt. For example, the witness placing Worley at the gas station with the

gun before the encounter only testified that he wore a white T-shirt, wholly consistent

with the other witnesses.

       {¶21} Finally, Worley attacks the credibility of the codefendant, claiming that he

did not see the victim actually get shot and lied about his involvement in the crime.

After reviewing the codefendant’s statements, we find he testified to seeing Worley shoot

the victim. The codefendant merely clarified that he could not see what happened to the
victim after the shooting, i.e., he could not see the victim lying on the ground. That

statement does not contradict his earlier claim to have witnessed the shooting. Further,

the codefendant allegedly attempted to talk other witnesses into downplaying his

involvement in Worley’s actions because several witnesses identified the codefendant as

Worley’s getaway driver. The codefendant claimed to have left in a separate vehicle and

had voluntarily made himself available to the police immediately after the shooting,

hearing talk of his being implicated in the murder.       The fact that the codefendant

attempted to downplay his involvement to avoid conspiracy charges is not sufficient to

discredit the whole of his testimony. The jury was free to consider the codefendant’s

actions in weighing his testimony, which did not materially differ from other accounts,

and no other basis to discredit the codefendant’s testimony has been provided.

      {¶22} As a result, we cannot find that the discrepancies between, and individually

in, the testimony of the witnesses rise to the level of creating a manifest miscarriage of

justice. See, e.g., State v. Hill, 8th Dist. Cuyahoga No. 99819, 2014-Ohio-387, ¶ 32

(although there was conflicting testimony regarding the shooter, all the eyewitnesses

identified the defendant). The jury is free to weigh the credibility of a witness, and as a

whole, nothing demonstrates that the jury lost its way in convicting Worley of aggravated

murder. In addition to all the evidence presented at trial, including the discrepancies

identified on appeal, the jury was also free to infer consciousness of guilt from Worley’s

act of absconding for four months, immediately after the shooting and until apprehended
by law enforcement. Considering the totality of the evidence, we do not find that the

aggravated murder conviction is against the manifest weight of the evidence.

      {¶23} Worley also independently argues that the counts for which he was found

guilty, but that merged with the aggravated murder count, were against the weight of the

evidence. We need not address those claims because of the merger. For the purposes of

R.C. 2941.25, a “‘conviction’ consists of a guilty verdict and the imposition of a sentence

or penalty.” (Emphasis sic.) State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922

N.E.2d 182, ¶ 12, citing State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819

N.E.2d 1047, ¶ 135. The counts that merged with the aggravated murder conviction are

not convictions, and therefore, we cannot individually review the evidence supporting

those findings of guilt. See, e.g., State v. Williams, 4th Dist. Scioto No. 11CA3408,

2012-Ohio-4693, ¶ 54; State v. McKinney, 10th Dist. Franklin No. 08AP-23,

2008-Ohio-6522, ¶ 39 (only reviewing the sufficiency of the evidence for the crime for

which the sentence was imposed and not the counts merged into that crime). Further, our

conclusion that Worley’s aggravated murder conviction was not against the manifest

weight of the evidence necessarily renders any issues with the merged offenses to be

harmless error because his final sentence would not be affected by any review of the

evidence underlying the merged counts. State v. Powell, 49 Ohio St.3d 255, 263, 552

N.E.2d 191 (1990) (even if evidence of kidnapping by restraint was insufficient to

support conviction, the fact that the kidnapping by removal was based on sufficient
evidence and merged with the kidnapping by restraint count means any error with the

conviction was harmless beyond a reasonable doubt).

       {¶24} Worley’s only remaining argument is that his convictions for having a

weapon while under disability and improperly handling a firearm are against the manifest

weight of the evidence in light of the credibility of the witnesses. Having found the

aggravated murder conviction is not against the manifest weight of the evidence because

of those same identified incongruities, we also overrule his arguments against the other

convictions. Multiple witnesses saw Worley carrying or using a firearm, and multiple

witnesses saw him enter the car with that weapon.3 Further, even without that testimony,

it could be reasonably inferred that Worley improperly possessed the weapon from the

fact that he had just shot the victim and had not disposed of the firearm before

effectuating his vehicular flight.

       {¶25} Worley’s second assignment of error is overruled.                 The conviction is

affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.                The

court finds there were reasonable grounds for this appeal.




       3
        Worley presents no arguments, as required pursuant to App.R. 16(A)(7), challenging each
individual element of R.C. 2923.16(B). His sole argument is that no one witnessed him in the car
and in possession of “a firearm.” The state limited its appellate response to Worley’s framing of the
argument. As such, we cannot reach any conclusions with respect to the sufficiency of the evidence
demonstrating whether the firearm was loaded, the second element of the crime. For us to reach any
conclusion on that issue, we would deprive the state of any opportunity to respond.
      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.



SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
