State v. Norris , 2020 Ohio 764 ( 2020 )

[Cite as State v. Norris, 2020-Ohio-764.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
NOBLE COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
IVAN NORRIS, JR.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 NO 0467
Criminal Appeal from the
County Court of Noble County, Ohio
Case No. 18 CR B 194ABCD
BEFORE:
David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Affirmed.
Atty. Kelly A. Riddle, Noble County Prosecutor, and Atty. Jamie Riley Pointer, Assistant
Prosecutor, 150 Courthouse, Caldwell, Ohio 43724, for Plaintiff-Appellee and
Atty. Scott Essad, 721 Boardman-Poland Road, Suite 201, Youngstown, Ohio 44512,
for Defendant-Appellant.
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Dated: February 26, 2020
D’APOLITO, J.
{¶1} Appellant Ivan Norris appeals the terms of his community control imposed
by the County Court of Noble County following his jury conviction for three counts of
animals running at large, in violation of R.C. 951.02, a misdemeanor of the fourth degree;
as well as his conviction for one count of resisting arrest, in violation of R.C. 2921.33, a
misdemeanor of the second degree. In his first assignment of error, Appellant argues
that the trial court did not have the statutory authority to prohibit him from keeping
livestock on property under his ownership or control as a term of his community control.
In his second assignment of error, Appellant challenges both the sufficiency and weight
of the evidence supporting his conviction for resisting arrest. For the following reasons,
the terms of community control imposed by the trial court and Appellant’s conviction for
resisting arrest are affirmed.
FACTS
{¶2} Appellant was charged with three counts of animals running at large as a
consequence of events occurring on June 4, October 18, and November 7, 2018.
Appellant’s elderly and infirm mother, Pearl Norris, resided on the property at issue in this
appeal (“Norris property”).
{¶3} On June 4, 2018, Noble County Sheriff’s Deputy Brandon Stokes received
complaints from two individuals, who resided on neighboring properties, that cattle from
the Norris property were wandering in the neighborhood. Deputy Stokes contacted
Appellant regarding the complaints.
{¶4} On October 18, 2018, Deputy Stokes responded to complaints that the
cattle were on neighboring properties and had, in the recent past, consumed garden
vegetables, left holes in the ground, defecated, and caused structural damage to a brick
bin. One neighbor reported that the path to his basketball court had become impassible.
Another neighbor, who cared for children in her home, reported that the children were
reluctant to play in the yard for fear of the cows.
Case No. 19 NO 0467
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{¶5} On the morning of November 7, 2018, the Noble County Sheriff’s Office
received complaints that cattle from the Norris property were roaming through the
neighborhood. At approximately 9:00 a.m., Noble County Sheriff’s Deputy Sergeant
Robert Pointer arrived at the Norris property, where he discovered that the gate was open,
five cows were outside of the fenced area, and one was in the roadway. During his
investigation of the scene, Sergeant Pointer examined a make-shift portion of the fence
surrounding the Norris property, which was made of pallets.
{¶6} Tina Tucker, a resident of one of the neighboring properties, approached
Sergeant Pointer at the foot of the driveway and informed him that that she regularly
returned cattle to the Norris property by wrangling them with her four-wheeler. She further
explained that Appellant, who resided in Cleveland, Ohio, visited the property roughly
every four days. When no one answered the door, Sergeant Pointer learned through
some investigation that Pearl was no longer residing in the home because she had been
hospitalized in Cleveland, Ohio.
{¶7} At approximately 3:00 p.m. that same day, Sergeant Pointer was informed
that Appellant was present at the Norris property. Sergeant Pointer returned to the
property to serve three criminal complaints on Appellant for permitting animals to roam at
large on June 4, October 18, and November 7, 2018.
{¶8} When he arrived, Sergeant Pointer saw a black sedan in the driveway, and
Appellant walking the fence line. The gate was closed. Noble County Sheriff’s Deputy
Jamie Myers arrived at the scene at approximately 4:00 p.m. The two officers called out
to Appellant as he walked from the fence line to the passenger side of the sedan in the
driveway.
{¶9} After the officers entered the gate, Appellant yelled for them to close the
gate behind them, then turned away in what they perceived to be an effort to avoid
speaking with them. However, the officers confronted Appellant then asked him to
accompany them to the cruiser in order to provide him with copies of the criminal
complaints. Appellant declined. As a consequence, Sergeant Pointer informed Appellant
that he was under arrest.
{¶10} Appellant became angry and announced that he “was not * * * going to jail.”
Appellant was holding several metal clothes hangers that were “kinda flattened out.”
Case No. 19 NO 0467
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Deputy Myers surmised that Appellant had been using the coat hangers to reinforce the
fence, however, both deputies recognized that the coat hangers could be used as a
weapon. (Trial Tr., p. 147-149.)
{¶11} Sergeant Pointer testified that he drew his taser hoping that the show of
force would cause Appellant to submit to the arrest. Instead, Appellant ran toward the
sedan. Pointer yelled “stop,” but Appellant did not comply. As a consequence, Sergeant
Pointer deployed his taser, which struck Appellant’s jacket but did not incapacitate him.
{¶12} When Appellant reached the sedan, roughly twenty feet from where his
confrontation with the officers began, Appellant reached into the window of the driver side
door. (Id., p. 150.) Fearing that Appellant was reaching for a weapon, the officers took
Appellant to the ground. While on the ground, Appellant continued to struggle, refusing to
put his hands behind his back, until the deputies wrestled his hands behind his back and
handcuffed him. (Id., p. 169.)
{¶13} Appellant was tried by a jury and convicted of all three counts of animals
running at large, as well as resisting arrest. The trial court sentenced Appellant to the
maximum sentence and fine – 30 days and $250.00 – on the first two convictions for
animals running at large to run consecutively, then suspended the sentences and placed
Appellant on five years of probation. The terms of Appellant’s probation read, in their
entirety:
(1) That the Defendant shall not own, keep, harbor or permit any cattle, or
any other type of animal(s) that are considered livestock, upon any property
that the Defendant has any ownership or control over, and that includes the
property referred to as “The Norris Property” during the trial herein;
(2) That any livestock currently upon the property referred to as “The Norris
Property” is to be removed within twenty-one (21) days from today’s date;
and
(3) That there are to be no cattle or live stock [sic] running at large that are
presently occupying “The Norris Property.”
(2/26/2019 Sent. Entry, p. 2.)
Case No. 19 NO 0467
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{¶14} Although not germane to this appeal, the trial court imposed no jail term for
the third conviction for animals running at large, only a fine of $250.00 to run consecutively
to the convictions for the first two counts. The trial court imposed a sixty-seven day jail
sentence and a fine of $250.00 for the resisting arrest conviction, but suspended sixty
days based on the condition that Appellant appear at the Noble County Jail on April 1,
2019 at 8 a.m. to serve his sentence. Appellant’s sentence was stayed by the trial court
pending the resolution of this appeal.
ASSIGNMENT OF ERROR NO. 1
TAKING AWAY A PERSON’S LIVESTOCK, OR RIGHT TO OWN
LIVESTOCK IN THE FUTURE, IS NOT ONE OF THE PUNISHMENTS A
COURT CAN IMPOSE FOR A VIOLATION OF ORC § 951.02 – WHICH IS
ONLY A FOURTH DEGREE MISDEMEANOR.
{¶15} R.C. 951.02, captioned “Animals not to be permitted to run at large,” reads,
in its entirety:
No person, who is the owner or keeper of horses, mules, cattle, bison,
sheep, goats, swine, llamas, alpacas, or poultry, shall permit them to run at
large in the public road, highway, street, lane, or alley, or upon unenclosed
land, or cause the animals to be herded, kept, or detained for the purpose
of grazing on premises other than those owned or lawfully occupied by the
owner or keeper of the animals.
{¶16} R.C. 951.99 reads, in its entirety, “Whoever recklessly violates section
951.02 of the Revised Code is guilty of a misdemeanor of the fourth degree.” The
maximum jail sentence for a fourth-degree misdemeanor is thirty days and the maximum
fine is $250.00. See R.C. 2929.24, 2929.28. Unlike Chapter 959 of the Revised Code,
captioned “Cruelty to Animals,” Chapter 951, captioned “Animals Running at Large;
Strays,” contains no forfeiture provision.
{¶17} An appellate court reviews a misdemeanor sentence for abuse of discretion.
State v. Tribble, 7th Dist. Mahoning No. 16 MA 0009, 2017-Ohio-4425, ¶ 24; R.C.
Case No. 19 NO 0467
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2929.22. An abuse of discretion connotes more than an error of law or of judgment; it
implies that the court’s attitude is unreasonable, arbitrary or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶18} In his first assignment of error, Appellant contends that the trial court was
without authority to confiscate the livestock on the Norris property for the commission of
a fourth degree felony. He further contends that the forfeiture of the cattle was without
due process and constitutes cruel and unusual punishment.
{¶19} R.C. 2929.25, captioned “Misdemeanor community control sanctions,”
reads, in relevant part:
The sentencing court shall require as a condition of any community control
sanction that the offender abide by the law and not leave the state without
the permission of the court or the offender’s probation officer. In the
interests of doing justice, rehabilitating the offender, and ensuring the
offender’s good behavior, the court may impose additional requirements on
the offender. The offender's compliance with the additional requirements
also shall be a condition of the community control sanction imposed upon
the offender.
R.C. 2929.25(C)(2) (Emphasis added).
{¶20} R.C. 2929.27, captioned “Nonresidential sanction where jail term not
mandatory,” reads, in relevant part:
In addition to the sanctions authorized under division (A) of this section, the
court imposing a sentence for a misdemeanor, other than a minor
misdemeanor, upon an offender who is not required to serve a mandatory
jail term may impose any other sanction that is intended to discourage the
offender or other persons from committing a similar offense if the sanction
is reasonably related to the overriding purposes and principles of
misdemeanor sentencing.
R.C. 2929.27(C) (Emphasis added).
Case No. 19 NO 0467
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{¶21} In determining whether a condition of probation is related to the interests of
doing justice, rehabilitating the offender, and insuring his good behavior, courts must
consider whether the condition: (1) is reasonably related to rehabilitating the offender, (2)
has some relationship to the crime of which the offender was convicted, and (3) relates
to conduct which is criminal or reasonably related to future criminality and serves the
statutory ends of probation. State v. Jones, 49 Ohio St.3d 51, 53, 550 N.E.2d 469 (1990).
{¶22} In City of Portsmouth v. Pub. Utilities Commission, 108 Ohio St. 272, 140
N.E. 604, 606 (1923), the Ohio Supreme Court observed that “[t]he basic meaning of the
word ‘confiscate,’ as defined by the lexicographers, is property that is seized and
appropriated by the government to the public use.” Id. at 276. The Court further observed
that the term “carries with it the idea of forfeiture to the public treasury or appropriation to
public use.” Id. at 276-77. The terms of Appellant’s community control do not involve an
appropriation of the cattle to public use.
{¶23} We have recognized that the criminal forfeiture of property in Ohio is a form
of punishment and is considered a fine, subject to the excessive fines prohibition in the
Eighth Amendment to the U.S. Constitution and Article 1, Section 9 of the Ohio
Constitution. State v. Wolfe, 7th Dist. Belmont No. 97 BA 37, 2000 WL 875338, *1, citing
State v. Hill, 70 Ohio St.3d 25, 34, 635 N.E.2d 1248 (1994). However, Appellant will not
lose the value of the livestock as a result of the terms of his community control. He may
relocate the livestock to property in Noble County that is not under his ownership or
control, transport the livestock to another county, or sell the livestock, thereby receiving
equivalent value. Moreover, he may lease the Norris property, or otherwise cede control
of the property to another party, which would allow the other party to keep livestock on
the Norris Property.
{¶24} Appellant cites State v. Walker, 164 Ohio App.3d 114, 2005-Ohio-5592, 841
N.E.2d 376 (2005)(“Walker 2005”) for the proposition that the Second District reversed a
trial court decision removing bears from Walker’s property and requiring him to pay for
their maintenance by the state. However, a review of the two appeals preceding Walker
2005 actually supports the conclusion that the terms of community control in this case are
neither contrary to law nor an abuse of discretion.
Case No. 19 NO 0467
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{¶25} Walker was originally convicted of a fourth-degree misdemeanor based on
his failure to confine his co-tenant’s dog. The trial court imposed a jail sentence and fine,
then suspended the sentence on the conditions that the co-tenant’s two dogs be
surrendered to Animal Control, and that Walker incur no further violations for five years.
A third condition, that Walker keep no additional animals at his residence, was stayed
based upon the second condition that he incur no further violations for five years.
{¶26} In his direct appeal, Walker challenged the third condition, but the Second
District held that R.C. 2929.51(A)(2) authorized the trial court to suspend Walker’s
sentence upon any appropriate conditions. The Second District reasoned that
“[r]estricting Walker to the animals he currently kept on the premises was well within the
discretion granted by the statute.” State v. Walker, 2nd Dist. Greene No. 2003 CA 93,
2004-Ohio-7258, ¶ 21.
{¶27} In Walker’s second appeal, he challenged a post-sentence entry adding a
fourth condition of his probation, that is, the removal of bears from his property. The
additional condition was imposed by the trial court after several bears escaped from
Walker’s property. Walker argued that the new condition was an abuse of discretion.
{¶28} The Second District applied the Jones test and affirmed the terms of
probation reasoning:
Walker has demonstrated difficulty keeping the animals on his property
restrained. The removal order ought to impress upon him that keeping his
animals confined is a responsibility he must take seriously. (Prong 1).
Although the escapees this time are bears and not dogs, the problem is the
same. Animals that must be confined are getting loose. The removal order
is certainly related to the failure to confine a dog offense for which Walker
is on probation. (Prong 2). Finally, future criminality is a genuine possibility,
if not a probability, should the bears again leave home. The State suggests
disorderly conduct and failure to report the escape of certain animals as
possible offenses which the order might prevent. We can imagine disorderly
conduct as proscribed by R.C. 2917.11(A)(4)(5) and failure to report as
required by R.C. 2927.21(A) as possibilities should Walker retain the bears.
(Prong 3).
Case No. 19 NO 0467
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State v. Walker, 2nd Dist. Greene No. 2004 CA 16, 2004-Ohio-7252, ¶ 23.
{¶29} Although Walker removed the bears to the property of another individual,
the bears were ultimately seized by Animal Control after they escaped from confinement
a second time. Walker 2005 challenged an entry of the trial court providing that the bears
would not be returned to Walker. Appellant reliance on Walker 2005 is misplaced
because the case stands for the proposition that a trial court has no authority to order
forfeiture under R.C. 955.99, which governs the keeping of dogs. However, in reaching
this conclusion, the Second District specifically recognized the distinction between an
order directing an individual to remove an animal from his property (Walker’s second
appeal) and an order confiscating an animal (Walker 2005). The Second District wrote:
Furthermore, even if forfeiture had been ordered as a condition of probation,
it would not have been appropriate because the penalty statutes for failing
to confine dogs do not even mention forfeiture as a possibility. Forfeiture,
therefore, lacks sufficient relationship to the crime for which the defendant
was convicted. Jones, 49 Ohio St.3d at 53, 550 N.E.2d 469. We are aware
that we previously upheld an order requiring Walker to remove the bears
from his property. However, a removal order is quite different from
confiscating property. In the first situation, an individual retains dominion
over his property, even though he has to move the property from its current
location; in the second situation, the individual is stripped completely of
control. A stronger relationship should be required where the deprivation is
great.
Id. at ¶ 79.
{¶30} Applying the Jones test, we find that Appellant has repeatedly demonstrated
difficulty restraining the cattle on the Norris property. The removal order is directly related
to his failure to confine cattle, the offense for which the trial court imposed community
control. Finally, future criminality is a genuine possibility, if not a probability, based on the
testimony offered by Appellant’s neighbors at trial. Accordingly, we find that the
conditions of Appellant’s community control do not constitute a confiscation or forfeiture
Case No. 19 NO 0467
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of Appellant’s livestock, and, further, the trial court did not abuse its discretion in
fashioning the terms of Appellant’s community control.
ASSIGNMENT OF ERROR NO. 2
THE STATE FAILED TO PROVE THE ELEMENTS OF RESISTING
ARREST. IVAN NORRIS’S ACTIONS WERE NEITHER RECKLESS NOR
CAUSED HARM, AND SO THERE WAS NO RESISTING ARREST. THE
VERDICT WAS BOTH LEGALLY INSUFFICIENT AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶31} R.C. 2921.33, captioned “Resisting Arrest,” provides, in pertinent part, “(A)
No person, recklessly or by force, shall resist or interfere with a lawful arrest of the person
or another.” R.C. 2921.33(A). A violation of subsection (A) is a misdemeanor of the
second degree. R.C. 2921.33(D).
{¶32} Appellant did not move for dismissal of the resisting arrest charge pursuant
to Crim.R. 29 motion at the conclusion of the state’s case-in-chief. However, a defendant
is not required to move for acquittal in order to preserve a sufficiency of the evidence
challenge on appeal. State v. Heckathorn, 7th Dist. Columbiana No. 17 CO 0011, 2019-
Ohio-1086, ¶ 35.
{¶33} “When a court reviews a record for sufficiency, ‘[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. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d
930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus.
{¶34} In determining whether a criminal conviction is against the manifest weight
of the evidence, an appellate court must review the entire record, 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. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio
Case No. 19 NO 0467
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St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. “Although a court of appeals may
determine that a judgment is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the weight of the evidence.”
Thompkins at 387, 678 N.E.2d 541.
{¶35} Appellant succinctly states his argument regarding the resisting arrest
conviction as follows, “running 20 feet to the passenger-side window of a car (especially
when no one else is inside the car) is not resisting arrest.” (Appellant’s Br., p. 14.) It is
important to note that Appellant ran to the driver’s side of the sedan, not the passenger
side.
{¶36} We addressed an analogous fact pattern in State v. Faith, 7th Dist.
Columbiana No. 03 CO 48, 2004-Ohio-3048. In that case, the appellant was involved in
an altercation with her parents. She drove to the police station to file charged against her
father, but, in the meantime, her parents called and reported the altercation to the police.
After taking her statement, and recounting all of the evidence to an assistant prosecutor,
a police officer informed Faith that she was under arrest.
{¶37} Faith responded, “[t]his is bull shit,” then turned and walked toward the exit
door of the police station. The police officer took her by the arm to prevent her from
leaving, and told her again that she was under arrest. She became argumentative and
refused to place her hands behind her back. The office had to forcibly restrain her in
order to place her in handcuffs.
{¶38} At trial, Faith testified that she was never informed that she was under
arrest. However, the police officer’s testimony was corroborated at trial by the testimony
of two dispatchers who witnessed the events leading to Faith’s arrest. On appeal, we
affirmed Faith’s conviction observing that the trial revolved around two different stories
about the same event, “either one of which, if believed, would be sufficient evidence to
prove or disprove the state’s case.” Id. at ¶ 35.
{¶39} The uncontroverted facts in the above-captioned case establish that
Appellant was informed the he was under arrest, he refused to submit, he turned and ran
toward the sedan in the driveway, and he struggled with the officers when they attempted
to subdue and handcuff him. Because the facts here are more egregious than the facts
Case No. 19 NO 0467
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in Faith, supra, we find that there was sufficient evidence in the record and the manifest
weight of the evidence supports Appellant’s conviction for resisting arrest.
CONCLUSION
{¶40} In summary, we find that the terms of Appellant’s community control do not
constitute a confiscation or forfeiture of his livestock. Appellant is free to relocate the
livestock or sell it for equivalent value. The conditions were reasonably related to
rehabilitation, had a direct relationship to the animals running at large convictions, and
were designed to prohibit future criminality and serve the statutory ends of community
control. Further, while the conditions restrict Appellant’s ability to keep livestock on the
Norris Property, it does not restrict the use of the property by others. Finally, the
uncontroverted facts in the record establish the essential elements of resisting arrest.
Therefore, the terms of community control imposed by the trial court and Appellant’s
conviction for resisting arrest are affirmed.
Donofrio, J., concurs.
Waite, P.J., concurs.
Case No. 19 NO 0467
[Cite as State v. Norris, 2020-Ohio-764.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the County Court of Noble County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.