[Cite as State v. Worley, 2011-Ohio-2779.]

 Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA

 JOURNAL ENTRY AND OPINION 

 No. 94590 

STATE OF OHIO

 

PLAINTIFF-APPELLEE

vs.

PEREZ WORLEY

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-526042-A 

BEFORE: Kilbane, A.J., Stewart, J., and Boyle, J. 

RELEASED AND JOURNALIZED: June 9, 2011 
ATTORNEY FOR APPELLANT

Myron P. Watson 

420 Lakeside Place 

323 West Lakeside Avenue 

Cleveland, Ohio 44113-1009 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

Belinda Kyles-Gest 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

MARY EILEEN KILBANE, A.J.: 

{¶ 1} Defendant-appellant, Perez Worley (Worley), appeals his 

convictions. Finding merit to the appeal, we reverse and remand. 

{¶ 2} In July 2009, Worley was charged in a 15-count indictment. 

Counts 1 and 2 charged him with attempted murder, Counts 3-6 charged him 

with aggravated robbery, Counts 7-10 charged him with felonious assault, 

Counts 11-14 charged him with kidnapping, and Count 15 charged him with 
carrying a concealed weapon.1

{¶ 3} The matter proceeded to a jury trial, at which the following 

evidence was adduced. 

{¶ 4} On June 24, 2009, Ernest Wells (Wells) and Demarcus Jones 

(Jones) were approached by Worley, while they were at a gas station on East 

125th and Superior in East Cleveland. Worley parked his minivan at the 

pump, exited his vehicle, and began talking to Jones. He asked Jones if he 

had any crack or marijuana. Jones replied, “no.” Worley then got back into 

his minivan and drove away. Jones and Wells eventually left the gas station 

and began to walk toward East 125th Street. 

{¶ 5} As they were walking, Wells observed Worley and another male, 

later identified as codefendant Jonathan Hansard (Hansard), run up to Jones. 

 Wells testified that Worley told Jones, “give me everything,” while pulling 

out a gun and putting it to Jones’s head. Worley then pointed the gun at 

Wells and shot him in the groin. Jones proceeded to run away after Worley 

shot Wells. Worley and Hansard began to chase after him. Worley shot 

Jones in the chest and leg as he was running away. East Cleveland police 

officers arrived on the scene. Wells told officers that he did not know who 

shot at him and Jones, but that the shooter drove a maroon minivan. Wells 

and Jones were transported to the hospital by ambulance. 

 1Each of Counts 1-14 carried a one- and three-year firearm specification. 
{¶ 6} East Cleveland Police Officer David Perez (Perez) responded to 

the scene. While at the gas station, Perez spoke with Jovan Dawson who is 

known in the neighborhood as “Joe.” Joe was at the gas station when the 

incident occurred. Joe advised Perez that Worley was in the area. 

Subsequently, Perez viewed the surveillance video at the gas station. He 

observed Worley exit a burgundy van. He also observed Wells and Jones on 

the video, walking westbound. Then he observed two males walk through 

the gas station parking lot, heading in the same direction as Wells and Jones. 

 One of the males on the video was wearing a white t-shirt and jeans and 

tugging at his waistband. Perez testified that he was able to identify him as 

Worley because he observed his face on the surveillance video when he first 

exited his van, and he was wearing a white t-shirt and jeans. Perez testified 

that the gas station also had videotape of Worley, who came back later asking 

“if it was caught on tape.” 

{¶ 7} East Cleveland Detective Kyle Cunningham (Cunningham) 

investigated this incident. Cunningham testified that Worley became a 

person of interest when Perez advised him that he interviewed Joe, who 

indicated that Worley was at the gas station, and the surveillance video 

revealed that Worley asked the gas station attendant “if it was caught on 

tape.” Cunningham further testified that he learned from Joe that Hansard 

was with Worley when he shot Wells. Cunningham spoke with Hansard, 
who provided information consistent with what he already learned about the 

shooting. Cunningham also testified that he spoke with Worley about the 

incident. When he began to ask Worley questions, Worley said that “you all 

already know what it is. I am in trouble.” 

{¶ 8} The jury found Worley guilty of all charges and specifications. 

The trial court sentenced him to seven years in prison on each of Counts 1 

and 2 (attempted murder), three years in prison on each of Counts 3-6 

(aggravated robbery), Counts 7-10 (felonious assault), and Counts 11-14 

(kidnapping), and one year on Count 15 (carrying a concealed weapon). The 

trial court ordered that Counts 1 and 2 be served consecutive to each other, 

Counts 3 and 5 merged, Counts 4 and 6 merged, Count 7 merged with Count 

9, Count 8 merged with Count 10, Count 11 merged with Count 13, and 

Count 12 merged with Count 14. The trial court further ordered that Counts 

3 and 4 be served concurrent to each other and consecutive to Counts 1 and 2, 

Counts 7 and 8 be served concurrent to each other and consecutive to Counts 

1, 2, 3, and 4, Counts 11 and 12 be served concurrent to each other and 

consecutive to Counts 1, 2, 3, 4, 7, and 8, and Count 15 to be served 

concurrent to all other counts. The court also merged the one- and threeyear firearm specifications, for an aggregate of three years, and ordered that 

the three-year firearm specification be served prior to and consecutive to 

Count 1 and 2 for a total of 29 years in prison. 
{¶ 9} Worley now appeals, raising two assignments of error for review. 

ASSIGNMENT OF ERROR ONE 

“The trial court erred when it allowed State witnesses to 

testify to out-of-court statements purportedly made by 

others who did not testify in trial in violation of [Worley’s] 

Sixth Amendment right of confrontation.” 

{¶ 10} Worley argues that the testimony of Perez and Cunningham 

regarding what Joe and Hansard told them, violated his Sixth Amendment 

right to confront the witnesses against him. He claims that the out-of court 

statements made by Joe and Hansard that implicated him as the assailant 

violated his right to confrontation because he had no opportunity to challenge 

the veracity of these statements. 

{¶ 11} “Although we review decisions on the admission of evidence for an 

abuse of discretion, State v. Graham (1979), 58 Ohio St.2d 350, 390 N.E.2d 

805, we apply a de novo standard of review to evidentiary questions raised 

under the Confrontation Clause. See State v. Babb, Cuyahoga App. No. 

86294, 2006-Ohio-2209, ¶17; State v. Simuel, Cuyahoga App. No. 89022, 

2008-Ohio-913, ¶35; State v. Steele, Cuyahoga App. No. 91571, 

2009-Ohio-4704, ¶18. 

{¶ 12} The Sixth Amendment to the United States Constitution 

guarantees that a person accused of committing a crime has the right to 

confront and cross-examine witnesses testifying against him. Pointer v. 
Texas (1965), 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923. In Crawford 

v. Washington (2004), 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177, the 

United States Supreme Court held that the proper analysis for determining 

whether out-of-court statements violate the Confrontation Clause is not 

whether they are reliable but, rather, whether they are testimonial. The 

Court went on to state that the Confrontation Clause does not apply to 

nontestimonial hearsay but that “[w]here testimonial evidence is at issue, 

however, the Sixth Amendment demands what the common law required: 

unavailability and a prior opportunity for cross-examination.” Id. at 68.2 

{¶ 13} The Crawford court did not provide a comprehensive definition of 

“testimonial,” but it did indicate that the term includes, “at a minimum to 

prior testimony at a preliminary hearing, before a grand jury, or at a former 

trial; and to police interrogations.” Id. The Court further recognized that 

statements “made under circumstances which would lead an objective witness 

to reasonably believe that the statements would be available for use at a later 

trial” are testimonial. Id. at 52. 

{¶ 14} “Thereafter, the Court distinguished different statements to 

law-enforcement officers or agents thereof based upon the purpose of the 

 2 “If the statement is nontestimonial, it is merely subject to the regular 

admissibility requirements of the hearsay rules. [State v. Siler, 116 Ohio St.3d 39, 

2007-Ohio-5637, 876 N.E.2d 534, ¶21].” Garfield Hts. v. Winbush, 187 Ohio 

App.3d 302, 2010-Ohio-1658, 931 N.E.2d 1148, ¶17. 
interrogation. ‘Specifically, statements are nontestimonial if made during a 

police interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable the police to meet an 

ongoing emergency.’ On the other hand, statements are testimonial if they 

are made under circumstances objectively indicating that there is no ongoing 

emergency as the primary purpose of the interrogation is to establish past 

events relevant to a later criminal case.” (Citations omitted.) Winbush at 

¶18-19. 

{¶ 15} In the instant case, Cunningham testified that sometime after the 

shooting, Joe came to the police station wanting to “clear his name.” 

Cunningham testified that Joe “had information that he related to 

[Cunningham] through another party that the person who shot our two 

victims was Perez Worley[,] and Jonathan Hansard was there.” 

Cunningham also testified that Hansard was brought to the station as a 

person of interest based upon his conversation with Joe. Cunningham 

testified that the details Hansard provided to him were consistent with 

information Cunningham already learned regarding what happened at the 

gas station the night of the shooting. 

{¶ 16} The testimony at trial established that Joe came to the station 

days after the shooting and told Cunningham that Worley was the shooter. 

Since Cunningham was no longer responding to an ongoing emergency, the 
circumstances objectively indicate that the statements obtained were 

primarily for the purposes of establishing past events relevant to a later 

prosecution. In addition, Cunningham’s testimony regarding Hansard 

bolstered Joe’s statement implicating Worley. However, neither Joe nor 

Hansard testified at trial and were not subject to cross-examination. 

{¶ 17} In Winbush, this court found that the admission of police officers’ 

testimony regarding statements of the vehicle’s owner that she had loaned 

the vehicle to defendant violated the defendant’s rights under the 

Confrontation Clause. We found that: 

“[The vehicle owner’s] statements to [the officers], as well 

as her subsequent written statement, which was admitted 

into evidence, were clearly testimonial. The testimony at 

trial established that [the vehicle owner] was contacted 

approximately two hours after [the officer] abandoned the 

chase of the fleeing vehicle. Therefore, [the officer] was 

no longer responding to an ongoing emergency; thus, the 

circumstances objectively indicate that the statements 

obtained were primarily for the purposes of establishing 

past events relevant to a later prosecution.” Id. at ¶20. 

{¶ 18} In State v. Farris, Cuyahoga App. No. 84795, 2005-Ohio-1749, 

this court found that the use of an out-of-court statement of a codefendant 

that implicated the defendant violated the defendant’s right to confrontation. 

We stated: 

“Here, the detective testified as to what was told to him by 

[the appellant’s] alleged accomplice, Tolbert, during an 

interview in police custody. Tolbert’s statements 

implicated [the appellant] in a string of burglaries, as well 
as other criminal activity. Although this hearsay may be 

used to obtain a search warrant, if properly corroborated, 

it may not be used in trial unless the declarant is subject 

to cross-examination. Therefore, the trial court erred 

when it allowed this testimony.” Id. at ¶17. 

{¶ 19} Based on the foregoing, we find that Cunningham’s testimony 

regarding Joe’s and Hansard’s statements violated the Sixth Amendment’s 

Confrontation Clause and should not have been admitted. 

{¶ 20} Accordingly, the first assignment of error is sustained. 

{¶ 21} In the second assignment of error, Worley argues that the trial 

court erred when it denied his motion for a mistrial based on irregularities 

during jury deliberations.3 However, based on our disposition of the first 

assignment of error, the second assignment of error is overruled as moot. 

See App.R. 12(A)(1)(c). 

Accordingly, judgment is reversed and the matter is remanded for a 

new trial. 

It is ordered that appellant recover from appellee 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. 

A certified copy of this entry shall constitute the mandate pursuant to 

 3Worley’s second assignment of error states: “The trial court erred when it 

denied [Worley’s] motion for a mistrial in light of all the irregularities and jury 

misconduct during deliberations.” 
Rule 27 of the Rules of Appellate Procedure. 

 

 

MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE 

MELODY J. STEWART, J., and 

MARY J. BOYLE, J., CONCUR