[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Walker, Slip Opinion No. 2016-Ohio-8295.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-8295
             THE STATE OF OHIO, APPELLANT, v. WALKER, APPELLEE
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Walker, Slip Opinion No. 2016-Ohio-8295.]
Criminal law—Aggravated murder—R.C. 2903.01—Prior calculation and
        design—The elements for purpose and prior calculation and design are
        distinct, and the state must prove both to support a conviction of aggravated
        murder under R.C. 2903.01.
  (No. 2014-0942—Submitted August 30, 2016—Decided December 23, 2016.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                               No. 99998, 2014-Ohio-1827.
                                     _______________
                                SYLLABUS OF THE COURT
The elements of purpose and prior calculation and design are distinct, and the state
        must prove both to support a conviction of aggravated murder under R.C.
        2903.01.
                                   __________________
                             SUPREME COURT OF OHIO




       LANZINGER, J.
       {¶ 1} We accepted this discretionary appeal by the state of Ohio from a
judgment of the Eighth District Court of Appeals that reversed a conviction of
aggravated murder because it was not supported by sufficient evidence of prior
calculation and design. During a bar fight, Dajhon Walker knowingly killed
Antwon Shannon, and for that act Walker was properly convicted of felony murder
under R.C. 2903.02(B). But the evidence did not show that this killing was done
with prior calculation and design as required to sustain a conviction for aggravated
murder. The elements of purpose and of prior calculation and design are distinct,
and the state must prove both to support a conviction of aggravated murder under
R.C. 2903.01.
       {¶ 2} We therefore affirm the judgment of the court of appeals.
                               RELEVANT FACTS
                                   Trial Evidence
       {¶ 3} Antwon Shannon was killed during a bar fight that took place in the
early morning hours of February 19, 2012, at the Tavo Martini Lounge, a Cleveland
night club. Although the state presented witness testimony and the testimony of
detectives and forensic experts at the jury trial, the primary evidence of the
sequence of the events came from video footage recorded by 16 surveillance
cameras located in and around the club.
       {¶ 4} The videos show that the victims, Antwon Shannon and Ivor
Anderson, arrived at the club at approximately 12:27 a.m. and that they then began
to drink and socialize. At 1:56 a.m., they were on the dance floor when Robert
Steel, who also was dancing, began to twirl a glass of champagne in the air. Some
of Steel’s champagne spilled on Anderson, who responded with a remark. After
dancing a bit longer and talking to a friend who was drinking champagne from a
bottle, Steel began to talk to a group of people who were not identified at trial.



                                          2
                               January Term, 2016




       {¶ 5} Meanwhile, Walker, Derrell Shabazz, and Otis Johnson were in a
different area of the club, drinking and intermittently stopping to chat with one
another in an outside hallway. At 2:01, Johnson made his way from the outside
hallway onto the dance floor and over to Steel and the others, followed a minute
later by Walker and Shabazz. The group talked on and off for the next nine minutes,
repeatedly looking in the direction of Anderson and Shannon. The melee began at
2:11 a.m., when Steel ran at Anderson from behind and hit him with a champagne
bottle that glanced off Anderson and hit Eunique Worley in the forehead. Once
Steele started the fight, others became involved.
       {¶ 6} Walker joined in, hitting Shannon and throwing a bottle at him.
Walker then hopped backwards, grabbing at his waistband, hunching over and
moving to the side. Walker slipped and fell on Shannon, and Shabazz slipped and
fell on Walker. All three recovered and stumbled in different directions: Shannon
moved away from the fight, Walker went out of the cameras’ view to the corner of
the room behind a pillar, and Shabazz went over to Johnson, who apparently by
mistake was hitting a member of their own group. A woman who had joined in the
fight shoved Anderson backwards, propelling the group to the corner where Walker
had gone. The video footage shows a gunshot flash a few seconds later with
everyone in the club scattering. Walker appeared from the other side of the pillar
fumbling with his waistband, and he and Shabazz hurried out of the area together.
       {¶ 7} Shannon was shot in the back from a distance of one to two feet by a
.45 caliber bullet, which passed through his chest. Shannon died soon after.
                             Convictions and Appeal
       {¶ 8} A Cuyahoga County Grand Jury indicted Walker and Shabazz for
aggravated murder, felony murder, having weapons while under a disability, and
six counts of felonious assault (three pertaining to Shannon, one to Anderson, and
two to Worley), along with firearm specifications. At a joint trial with Shabazz,
the jury acquitted Walker of the felonious-assault counts against Worley but found


                                         3
                              SUPREME COURT OF OHIO




him guilty of aggravated murder, felony murder, and four counts of felonious
assault, and the trial court found him guilty of having a weapon while under a
disability. Shabazz was sentenced to 22 years to life in prison, and Walker was
sentenced to 25 years to life.
       {¶ 9} Walker appealed to the Eighth District Court of Appeals, arguing that
his aggravated-murder conviction was not supported by sufficient evidence. The
appellate court agreed and concluded that the state had failed to establish that
Walker acted with prior calculation and design. 2014-Ohio-1827, 10 N.E.3d 200,
¶ 21 (8th Dist.). Relying on the standard set forth in State v. Taylor, 78 Ohio St.3d
15, 676 N.E.2d 82 (1997), the court held that there was no evidence that Walker
and Shannon knew one another, that the shooting occurred from a spontaneous
eruption of events, or that Walker gave no thought to choosing the murder site
beforehand. The court therefore reversed the conviction for aggravated murder but
upheld the convictions for felony murder and the remaining offenses and remanded
the matter to the trial court for resentencing.
       {¶ 10} Shabazz also appealed his convictions and sentence. Relying on its
decision in Walker’s appeal, the Eighth District Court of Appeals vacated
Shabazz’s aggravated-murder conviction. State v. Shabazz, 8th Dist. Cuyahoga No.
100021, 2014-Ohio-1828. The appellate court also vacated Shabazz’s felony-
murder and weapons-disability convictions, which were based on his complicity in
Walker’s use of a firearm, as well as a felonious-assault conviction that was based
on complicity. It affirmed Shabazz’s two remaining felonious-assault convictions,
which were based on the use of champagne bottles. We initially accepted the state’s
appeal, but we later dismissed it as having been improvidently allowed. State v.
Shabazz, 146 Ohio St.3d 404, 2016-Ohio-1055, 57 N.E.3d 1119.
       {¶ 11} We accepted the state’s appeal in Walker’s case on two propositions
of law: one regarding appellate review of sufficiency arguments in general, and one



                                           4
                               January Term, 2016




concerning the evidence required in order to reasonably infer the element of prior
calculation and design.
                                LEGAL ANALYSIS
       {¶ 12} To determine whether a conviction is supported by sufficient
evidence, “[t]he 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 reasonable doubt.” State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The
weight of the evidence and credibility of witnesses, however, are matters primarily
for the finder of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus; see State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, 767 N.E.2d 216, ¶ 79.
                           Count Two: Felony Murder
       {¶ 13} The jury found Walker guilty, and the court of appeals upheld
Walker’s conviction of murder on Count Two. The felony murder statute states
that “[n]o person shall cause the death of another as a proximate result of the
offender's committing or attempting to commit an offense of violence that is a
felony of the first or second degree * * *” R.C. 2903.02(B). And with the
underlying offense of violence being felonious assault, felony murder is supported
by evidence that establishes that the defendant knowingly caused physical harm to
the victim. State v. Miller, 96 Ohio St. 3d 384, 2002-Ohio-4931, 775 N.E.2d 498.
       {¶ 14} The evidence fully supported this count.
                          Count One: Aggravated Murder
       {¶ 15} Under the aggravated-murder statute, the state was required to prove
beyond a reasonable doubt that Walker “purposely, and with prior calculation and
design, cause[d] the death” of Antwon Shannon.           (Emphasis added.)     R.C.
2903.01(A). The question raised by the state is whether sufficient evidence of prior


                                         5
                               SUPREME COURT OF OHIO




calculation and design was presented to support Walker’s conviction of aggravated
murder.
          {¶ 16} When the Revised Code was adopted in 1953, the crime of murder
in the first degree—the precursor to aggravated murder—prohibited purposeful
killing with “deliberate and premeditated malice.” Former R.C. 2901.01. Under
this earlier standard, “a killing could be premeditated even though conceived and
executed on the spur of the moment. The only requirement was that the malicious
purpose be formed before the homicidal act, however short in time.” State v.
Cotton, 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978).
          {¶ 17} When it amended the aggravated-murder statute, R.C. 2903.01(A),
to provide that “[n]o person shall purposely, and with prior calculation and design,
cause the death of another,” the General Assembly explicitly rejected the notion
that brief premeditation prior to a murder could establish prior calculation and
design:


          [R.C. 2903.01(A) employs] the phrase, “prior calculation and
          design,” to indicate an act of studied care in planning or analyzing
          the means of the crime, as well as a scheme compassing the death of
          the victim. Neither the degree of care nor the length of time the
          offender takes to ponder the crime beforehand are critical factors in
          themselves, but they must be sufficient to meet the proposed test of
          “prior calculation and design.”       In this context, momentary
          deliberation is considered insufficient to constitute a studied scheme
          to kill.


(Emphasis added.)        Ohio Legislative Service Commission, Proposed Ohio
Criminal Code: Final Report of the Technical Committee to Study Ohio Criminal
Laws and Procedures, at 71 (1971). See also State v. Taylor, 78 Ohio St.3d 15, 18-


                                            6
                                January Term, 2016




19, 676 N.E.2d 82 (1997). The General Assembly has defined the mens rea of
purpose, stating that “[a] person acts purposely when it is the person’s specific
intention to cause a certain result.” R.C. 2901.22(A). Evidence of purpose,
however, does not automatically mean that the element of prior calculation and
design also exists. State v. Campbell, 90 Ohio St.3d 320, 341, 738 N.E.2d 1178
(2000) (“purpose to kill is not the same thing as prior calculation and design and
does not by itself satisfy the mens rea element of R.C. 2903.01(A)”). A purposeful
killing committed with prior calculation and design is aggravated murder: “No
person shall purposely, and with prior calculation and design, cause the death of
another * * *.” (Emphasis added.) R.C. 2903.01(A).
       {¶ 18} The phrase “prior calculation and design” by its own terms suggests
advance reasoning to formulate the purpose to kill. Evidence of an act committed
on the spur of the moment or after momentary consideration is not evidence of a
premeditated decision or a studied consideration of the method and the means to
cause a death. The General Assembly has determined that it is a greater offense to
premeditate or to plan ahead to purposely kill someone. All prior-calculation-and-
design offenses will necessarily include purposeful homicides; not all purposeful
homicides have an element of prior calculation and design.
       {¶ 19} Since the enactment of R.C. 2903.01 in 1974, we have repeatedly
emphasized that there is no “bright-line test that emphatically distinguishes
between the presence or absence of ‘prior calculation and design.’ Instead, each
case turns on the particular facts and evidence presented at trial.” State v. Taylor,
78 Ohio St.3d 15, 20, 676 N.E.2d 82 (1997); State v. Braden, 98 Ohio St.3d 354,
2003-Ohio-1325, 785 N.E.2d 439, ¶ 61; State v. Maxwell, 139 Ohio St.3d 12, 2014-
Ohio-1019, 9 N.E.3d 930, ¶ 148.
       {¶ 20} We traditionally consider three factors in determining whether a
defendant acted with prior calculation and design: “(1) Did the accused and victim
know each other, and if so, was that relationship strained? (2) Did the accused give


                                         7
                             SUPREME COURT OF OHIO




thought or preparation to choosing the murder weapon or murder site? and (3) Was
the act drawn out or ‘an almost instantaneous eruption of events?’ ” State v. Taylor,
78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997), quoting State v. Jenkins, 48 Ohio
App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976).
       {¶ 21} We have upheld aggravated-murder convictions, holding that prior
calculation and design existed when a defendant threatened to obtain a weapon and
kill his victim and later carried out that plan. State v. Sowell, 39 Ohio St.3d 322,
333, 530 N.E.2d 1294 (1988). See also State v. Toth, 52 Ohio St.2d 206, 213, 371
N.E.2d 831 (1977), and State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772
N.E.2d 81, at ¶ 80-84 (both upholding aggravated-murder convictions when the
defendant had previously threatened to kill the victim).          Shooting a person
execution-style may also establish, at least in part, prior calculation and design.
State v. Palmer, 80 Ohio St.3d 543, 569-570, 687 N.E.2d 685 (1997); Braden, 98
Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 65, citing State v. Campbell,
90 Ohio St.3d 320, 330, 738 N.E.2d 1178 (2000).
                                  The Taylor Case
       {¶ 22} The court of appeals decided Walker’s case by applying the factors
in Taylor at 19. In Taylor, another bar homicide, the circumstances surrounding
the shooting show a scheme designed to implement the calculated decision to kill.
Taylor knew his victim, who had previously dated Taylor’s girlfriend. Id. at 21-22.
And knowing that the victim frequently drank at a certain bar, Taylor chose to take
a gun there. He, the girlfriend, and the victim had all been drinking at the bar for
20 to 30 minutes before he shot the victim after an argument. Id. at 22. As the
victim lay wounded on the floor after several shots, Taylor approached and fired
three or four more shots in the victim’s back. Id. at 22. Pursuing and killing a
fleeing or incapacitated victim after an initial confrontation strongly indicates prior
calculation and design. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842
N.E.2d 996, ¶ 45, citing State v. Robbins, 58 Ohio St.2d 74, 78-79, 388 N.E.2d 755


                                          8
                                January Term, 2016




(1979), State v. Claytor, 61 Ohio St.3d 234, 241, 574 N.E.2d 472 (1991), and
Cotton, 56 Ohio St.2d at 9-10, 381 N.E.2d 190. See also Palmer, 80 Ohio St.3d at
569-570, 687 N.E.2d 685 (after victim had fallen to the ground, defendant shot the
victim in the head in an execution-style manner).
       {¶ 23} When examining the facts in Walker’s case in light of the questions
asked in Taylor, it appears from the evidence that Walker and Shannon did not
know each other, that the killing resulted from a spontaneous eruption of events,
and that Walker had not given thought to choosing the murder site. Additionally,
Walker did not give thought or preparation to choosing the murder weapon: from
his approach to the dance floor at approximately 2:02 a.m. until the fight began at
2:11 a.m., Walker did not move from the area, meaning that the weapon was already
on his person before he was even aware of Steel’s interaction with Anderson.
       {¶ 24} There is no evidence that Walker and his friends devised a scheme
to shoot Shannon and then carried it out. The plan that existed among Walker’s
group that evening was a plan to commit felonious assault, not murder. The
prosecutor understood this fact because he so characterized the reason behind the
murder: Shannon “died because the fight got so escalated and the poor guy was so
big that two little half pints couldn’t take him over so what do you need? Your fists
aren’t good enough. You take out a piece of metal * * *.” (Emphasis added.)
       {¶ 25} The video recordings of the incident show nothing that was carefully
planned once the fight began. It quickly turned into a free-for-all with people
outside Walker’s original small group jumping in, two of Walker’s original group
fighting each other, and Shannon, Walker, and Shabazz slipping and falling on top
of one another. In the middle of this fight, a single shot was fired in the presence
of dozens of people.




                                         9
                                 SUPREME COURT OF OHIO




        {¶ 26} Witnesses provided testimony to the jury of speculation as to what
had happened,1 but the videos show an assault that quickly escalated into chaos.
For approximately 20 seconds of that chaos, Walker was obscured from the security
cameras by a pillar. A jury could reasonably infer that during that time, Walker
decided to kill Shannon by shooting him, but it could not reasonably infer that he
planned the murder beforehand with prior calculation and design. The element of
prior calculation and design requires evidence that supports more than the inference
of purpose. Inferring prior calculation and design from an inference of purpose is
mere speculation. Accordingly, Walker’s conviction for aggravated murder was
not supported by sufficient evidence.
                                        CONCLUSION
        {¶ 27} The evidence presented by the state in this case shows that Antwon
Shannon was shot during a bar fight with Dajhon Walker and others. Neither the
security cameras that recorded the fight nor the witnesses to the shooting were able
to see who fired the shot. But the cameras did show that Walker moved away from
the fight, and out of camera range, for approximately 20 seconds before the
gunshot. Thus, there was insufficient evidence of prior calculation and design. We
therefore affirm the judgment of the court of appeals vacating Walker’s aggravated-
murder conviction.
        {¶ 28} Aggravated murder is a purposeful killing that also requires proof of
prior calculation and design: forethought, planning, choice of weapon, choice of
means, and the execution of the plan. In this case, there is no evidence that Walker
planned Shannon’s murder beforehand. Walker knowingly killed Shannon and was


1
  For example, Anderson testified that Steel immediately began conspiring with Walker and Shabazz
after spilling the champagne, but the surveillance video shows that Walker and Shabazz were not
on the dance floor at that time. Anderson also testified he believed it was Shabazz who attacked
him with a champagne bottle, but the surveillance video shows that it was Steel, not Shabazz, who
attacked Anderson.



                                               10
                                January Term, 2016




properly convicted of felony murder, but he did not commit aggravated murder.
We therefore affirm the judgment of the Eighth District Court of Appeals vacating
the aggravated-murder conviction and remanding the cause to the Court of
Common Pleas of Cuyahoga County for resentencing.
                                                                 Judgment affirmed
                                                               and cause remanded.
       O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., concur.
       O’DONNELL, J., dissents, with an opinion joined by KENNEDY and FRENCH,
JJ.
                               _________________
       O’DONNELL, J., dissenting.
       {¶ 29} Respectfully, I dissent.
                           Sufficiency of the Evidence
       {¶ 30} The test for the sufficiency of the evidence involves a question of
law for resolution by the appellate court to determine whether, after construing all
reasonable inferences in favor of the state, any reasonable trier of fact could find
that the state presented evidence to prove each of the material elements of the
offense beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus; State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d
717 (1st Dist.1983), paragraph two of the syllabus.
       {¶ 31} As we explained in Jenks, “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
reasonable doubt.” Jenks at paragraph two of the syllabus, citing Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, “on review
for evidentiary sufficiency we do not second-guess the jury’s credibility
determinations; rather, we ask whether, ‘if believed, [the evidence] would convince


                                         11
                              SUPREME COURT OF OHIO




the average mind of the defendant's guilt beyond a reasonable doubt.’ ” (Emphasis
and brackets sic.) State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),
quoting Jenks at paragraph two of the syllabus.
                                  Manifest Weight
       {¶ 32} A sufficiency analysis is different from that undertaken in
determining whether a conviction is against the manifest weight of the evidence.
Thompkins at paragraph two of the syllabus. In considering a manifest-weight
claim, the appellate court “review[s] 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.” Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
       {¶ 33} Thus, “[w]hen a court of appeals reverses a judgment of a trial court
on the basis that the verdict is against the weight of the evidence, the appellate court
sits as a ‘ “thirteenth juror” ’ and disagrees with the factfinder’s resolution of the
conflicting testimony.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting
Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
       {¶ 34} Notably, the state’s brief cites five recent cases in which the Eighth
District Court of Appeals has misapplied these standards in holding that the state
presented insufficient evidence of prior calculation and design: State v. Hill, 8th
Dist. Cuyahoga No. 98366, 2013-Ohio-578 (the appellate court rejected an
inference of prior calculation and design when the accused and the victim argued
about money over an extended period, the accused fired two shots, and then he fired
a third shot while the victim was down on his knees); State v. Woods, 8th Dist.
Cuyahoga No. 99630, 2014-Ohio-1722 (the appellate court rejected an inference of
prior calculation and design when the accused lured the victim to his room and
strangled her); State v. Shabazz, 8th Dist. Cuyahoga No. 100021, 2014-Ohio-1828
(the appellate court rejected the inference of prior calculation and design to support


                                          12
                                  January Term, 2016




aggravated murder when Shabazz and his co-defendant were seen talking before an
attack on Ivor Anderson and Antwon Shannon); State v. Hicks, 8th Dist. Cuyahoga
No. 102206, 2015-Ohio-4978 (the appellate court rejected an inference that the
accused planned to kill his estranged wife while on a date night after arguing with
her earlier in the evening); State v. Durham, 8th Dist. Cuyahoga No. 102654, 2016-
Ohio-691 (the appellate court rejected the inference that the accused had lured the
victim behind a building before shooting him in the head).
          {¶ 35} The consequences of misapplying the standard of review are
significant. When a reviewing court reverses a conviction as against the manifest
weight of the evidence, a new trial is permitted. Tibbs at 45; C.K. v. State, 145
Ohio St.3d 322, 2015-Ohio-3421, 49 N.E.3d 1218, ¶ 14. However, when an
appellate court reverses a conviction on the basis that it is supported by insufficient
evidence, the Double Jeopardy Clause bars retrial. Burks v. United States, 437 U.S.
1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Brewer, 121 Ohio St.3d 202,
2009-Ohio-593, 903 N.E.2d 284, ¶ 15.
          {¶ 36} In this case, the Eighth District was required to view the evidence in
the light most favorable to the state and to draw all reasonable inferences in the
state’s favor when it reviewed Walker’s conviction for sufficient evidence of prior
calculation and design. It failed in that duty.
                            Prior Calculation and Design
          {¶ 37} Prior to 1974, Ohio law “described ‘deliberate and premeditated
malice’ as constituting first degree murder. * * * [A] killing could be premeditated
even though conceived and executed on the spur of the moment. The only
requirement was that the malicious purpose be formed before the homicidal act,
however short in time.” State v. Cotton, 56 Ohio St.2d 8, 11, 381 N.E.2d 190
(1978).
          {¶ 38} Effective January 1, 1974, however, the General Assembly amended
R.C. 2903.01(A) to define the offense of aggravated murder, providing that “[n]o


                                           13
                             SUPREME COURT OF OHIO




person shall purposely, and with prior calculation and design, cause the death of
another.” Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866, 1900. The term
“prior calculation and design” is not defined by statute, but we have stated:


       The apparent intention of the General Assembly in employing this
       phrase was to require more than the few moments of deliberation
       permitted in common law interpretations of the former murder
       statute, and to require a scheme designed to implement the
       calculated decision to kill. Thus, instantaneous deliberation is not
       sufficient to constitute “prior calculation and design.”


Cotton at 11.
       {¶ 39} As we more recently explained in State v. Maxwell, 139 Ohio St.3d
12, 2014-Ohio-1019, 9 N.E.3d 930:


                No bright-line test exists that “emphatically distinguishes
       between the presence or absence of ‘prior calculation and design.’
       Instead, each case turns on the particular facts and evidence
       presented at trial.” State v. Taylor, 78 Ohio St.3d 15, 20, 676 N.E.2d
       82 (1997). However, when the evidence presented at trial “reveals
       the presence of sufficient time and opportunity for the planning of
       an act of homicide to constitute prior calculation, and the
       circumstances surrounding the homicide show a scheme designed to
       implement the calculated decision to kill, a finding by the trier of
       fact of prior calculation and design is justified.” State v. Cotton, 56
       Ohio St.2d 8, 381 N.E.2d 190 (1978), paragraph three of the
       syllabus.



                                         14
                                January Term, 2016




Maxwell at ¶ 148.
        {¶ 40} In State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d
26, we reiterated three “pertinent” considerations in determining whether prior
calculation and design existed: “ ‘(1) Did the accused and victim know each other,
and if so, was that relationship strained? (2) Did the accused give thought or
preparation to choosing the murder weapon or murder site? and (3) Was the act
drawn out or “an almost instantaneous eruption of events?” ’ ” Id. at ¶ 56, quoting
Taylor, 78 Ohio St.3d at 19, 676 N.E.2d 82, quoting State v. Jenkins, 48 Ohio
App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976). However “pertinent” they may
be, we have never held that these are the exclusive factors to be applied in
determining whether the accused acted with prior calculation and design.
        {¶ 41} Rather, we have recognized that “prior calculation and design can be
found even when the killer quickly conceived and executed the plan to kill within
a few minutes,” State v. Coley, 93 Ohio St.3d 253, 264, 754 N.E.2d 1129 (2001),
as long as the killer’s actions “went beyond a momentary impulse and show that he
was determined to complete a specific course of action,” State v. Conway, 108
Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 46.
        {¶ 42} In State v. Palmer, 80 Ohio St.3d 543, 567-568, 687 N.E.2d 685
(1997), we explained that sufficient evidence of prior calculation and design existed
when, after being involved in a minor accident with a pickup truck, Donald L.
Palmer Jr. exited the vehicle with a loaded revolver that was cocked and ready to
fire and shot the truck’s driver, Charles Sponhaltz, twice in the head. Id. at 543,
568. Although the killing took only moments, we concluded that “[t]he evidence,
when viewed in a light most favorable to the state, was more than sufficient to show
that [Palmer] had adopted a plan to kill Sponhaltz prior to exiting [the] vehicle and
that, with a level of precision, [Palmer] followed through on his calculated decision
to kill.” Id. at 569.



                                         15
                             SUPREME COURT OF OHIO




       {¶ 43} Similarly, in Taylor, we explained that only a short time is needed to
form prior calculation and design. In that case, Michael N. Taylor objected when
Marion Alexander asked Taylor’s girlfriend to play a song for him on the jukebox.
78 Ohio St.3d at 16, 676 N.E.2d 82. Taylor told his girlfriend they were leaving
and then walked up to Alexander and shot him multiple times, killing him. Id. at
16-17. We noted there that by bringing a firearm to a bar that he knew the victim
frequented, the jury could infer that the accused intended to use it, id. at 22, and we
concluded that “[e]ven though most of the evidence indicates that the time between
the jukebox incident and the shooting was only two or three minutes, there was
more than sufficient evidence for the jury to reasonably have found that [Taylor],
with prior calculation and design, decided to shoot Alexander in that space of time,”
id.
                     The State Presented Sufficient Evidence
                         of Prior Calculation and Design
       {¶ 44} Viewing the evidence in a light most favorable to the state, it is
manifest that sufficient evidence of prior calculation and design exists to support
Walker’s conviction. Anderson testified that after he spoke to Steel, he suspected
he might be attacked by Steel and his group, and the camera footage shows the
group gesturing and looking toward him over an extended period of time. The
video also reveals their preparations for the attack. Steel concealed an empty
champagne bottle, Shabazz removed his glasses, and an unidentified accomplice
zipped up his coat. Johnson also concealed a champagne bottle behind his forearm
and walked across the dance floor, putting Anderson between himself and Steel.
Steel then pointed toward Anderson as he danced, and the unidentified member of
Steel’s group stood close by.
       {¶ 45} Shabazz and Walker were watching Shannon when the fight started.
Walker specifically targeted Shannon—circling the fight to reach him, punching
him, and attempting to hit him with a champagne bottle. Based on this evidence,


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the jury could reasonably infer that the attack on Anderson and Shannon was
preplanned and coordinated and it could also infer from the use of champagne
bottles in the attack that there was an intent to cause serious injury or death.
       {¶ 46} Most importantly, the video reveals that Walker reached for his
waistband and withdrew from the fight for approximately 20 seconds. From this
evidence, the jury could reasonably infer that he was holding a firearm for that
entire time, which gave him sufficient time and opportunity to reflect on whether
to use it, and the jury could also reasonably conclude that within that 20 seconds
Walker conceived a plan to kill either Shannon or Anderson, strategically placing
himself behind the pillar and waiting for a clear shot. He then shot Shannon in the
back at close range, and when the shot sounded, Shabazz showed no noticeable
reaction, from which the jury could reasonably infer that Shabazz was not surprised
by the shooting. And, after Walker emerged from behind the pillar, Shabazz is seen
on the video tapping him on the chest in what the jury could reasonably view as a
celebratory gesture.
       {¶ 47} Walker does not dispute that the evidence established that he
murdered Shannon. And, based upon the evidence presented at trial, the jury
reasonably concluded that he acted with prior calculation and design.
                                     Conclusion
       {¶ 48} In this case, the court of appeals failed to view the evidence in a light
most favorable to the state and further failed to draw all reasonable inferences in
favor of the state; it therefore substituted its judgment for that of the jury in ruling
that the state failed to present sufficient evidence that Walker murdered Shannon
with prior calculation and design.        The jury reasonably concluded that by
participating in a coordinated and preplanned attack against Shannon and Anderson
and by drawing a firearm, withdrawing from the attack, and waiting behind a pillar
for 20 seconds before shooting Shannon in the back, Walker committed aggravated
murder with prior calculation and design.


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                             SUPREME COURT OF OHIO




       {¶ 49} The pattern exhibited by the appellate court in failing to draw all
reasonable inferences in favor of the state when considering a sufficiency challenge
demonstrates a lack of understanding of the applicable legal standards and in my
view results in a miscarriage of justice.
       {¶ 50} For these reasons, I would reverse the judgment of the court of
appeals, reinstate the judgment of the trial court, and instruct the appellate court to
adhere to the proper sufficiency analysis in all future cases.
       KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
                                _________________
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and
Christopher D. Schroeder and Anna M. Faraglia, Assistant Prosecuting Attorneys,
for appellant.
       Leif B. Christman; Russell S. Bensing; and Dinn, Hochman, & Potter,
L.L.C., and Justin Withrow, for appellee.
       Robert L. Tobik, Cuyahoga County Public Defender, and Erika B. Cunliffe,
Cullen Sweeney, and Jeffrey Gamso, Assistant Public Defenders, urging
affirmance for amici curiae Cuyahoga County Public Defender and Cuyahoga
Criminal Defense Lawyers Association.
                                _________________




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