[Cite as State v. Norris, 2018-Ohio-610.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                        MIAMI COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 2017-CA-7
                                                  :
 v.                                               :   Trial Court Case No. 16-CRB-4263
                                                  :
 MATTHEW A. NORRIS                                :   (Criminal Appeal from
                                                  :    Municipal Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 16th day of February, 2018.

                                             ...........

STACY M. WALL, Atty. Reg. No. 0070114, 201 W. Water Street, Piqua, Ohio 45356
    Attorney for Plaintiff-Appellee

SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 W. Monument Avenue, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                            .............
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HALL, J.

       {¶ 1} Matthew Norris appeals his conviction for unauthorized use of a vehicle.

Finding no error, we affirm.

                                       I. Background

       {¶ 2} Norris was charged with unauthorized use of a vehicle under R.C.

2913.03(A), which prohibits a person from using or operating a vehicle “without the

consent of the owner or person authorized to give consent.” He had been caught using a

van belonging to his employer, Hemm’s Glass, after he drove home to Miami County one

evening from a jobsite in the Cincinnati area and then took his son to school the next

morning,1 both of which violate the employer’s written vehicle-use policy. At a bench trial,

Norris did not dispute either use. Nor did he dispute that he had received a copy of the

vehicle-use policy, which does not allow an employee to drive a company vehicle home

and does not allow non-employees to ride in a company vehicle. Rather, Norris sought to

establish that he “reasonably believed” he was allowed to use the van for personal

matters, an affirmative defense under R.C. 2913.03(C)(1).

       {¶ 3} The trial court concluded that Norris failed to establish the affirmative defense

and found him guilty. The court imposed a 180-day suspended jail sentence and a fine.

       {¶ 4} Norris appealed.

                                        II. Analysis

       {¶ 5} In his sole assignment of error, Norris argues that his conviction is against

the manifest weight of the evidence.



1After dropping off his son, Norris hit a child on a bicycle. The police were called, and
Norris was charged.
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       {¶ 6} “A manifest-weight challenge requires us to consider the entire record,

including the credibility of the witnesses, the weight of the evidence, and any reasonable

inferences and determine whether ‘ “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. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180,

¶ 75, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “ ‘The

discretionary power to grant a new trial should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting

Martin at 175.

       {¶ 7} At trial, Norris and several other company employees testified. The testimony

shows that Hemm’s Glass is based in Piqua, which is also where Norris lived. In October

2016, the company had a job in Cincinnati and Norris was on the work crew. The job was

expected to last several months, and the crew would meet in Piqua on Monday mornings

and then drive to the jobsite. They would spend the week down there, sleeping in a hotel.

Norris was authorized to drive a company van for this job. Randy Kidder was the jobsite

foreman, which meant that he ran the work crew and generally oversaw the job. He was

Norris’s immediate supervisor.

       {¶ 8} After work on Monday October 17, Kidder called the crew at the hotel and

told them that they would not be needed on the jobsite the next day. He told them that

they could either go back to Piqua and work in the shop or stay in the hotel and take the

day off. Norris asked Kidder if he could go home for the day. Norris testified that Kidder

told him that he could go home but not to do anything stupid and not to get caught. Kidder
                                                                                         -4-


denied giving Norris permission to drive home. Kidder testified that he did not have

authority to allow an employee to use a company vehicle for personal matters. And he

said he told the crew that if they stayed, they were not allowed to use the company

vehicles for personal matters. Kidder admitted, though, that he also told Norris especially

not to use the company vehicle if he was going to drink.

       {¶ 9} Corey Kemp, another crew member, testified that he was in the hotel room

when Kidder called and heard Norris ask Kidder if they could go home. Kemp said that

Kidder responded, “don’t get caught.” (Tr. 53). Kemp said that he understood Kidder’s

response to mean that they had permission to use the company van to drive home on the

day off. Kemp also testified that Kidder never told them that they were not allowed to drive

the company van outside of work time.

       {¶ 10} Norris testified that the crew had used the company vehicles after work

before for personal matters. He said that the first time occurred when he first started the

job and forgot to bring clothes. So they drove to Goodwill to buy some. Norris said that

they drove to Dollar General to buy eating utensils and then to the grocery store to buy

food. On another occasion, said Norris, he drove home to Piqua to pick up batteries for

his tools, which had been delivered to his house. Kemp testified about personal trips home

too. He said that Kidder knew about them because they would tell Kidder that they were

going home and would be back for work the next morning. Kemp also said that they

sometimes drove the van after work to meet Kidder for dinner or drinks. Kidder testified

that the crew was allowed to use the company vehicles for things like getting dinner. This

history of using the company vehicles for personal matters, Norris testified, gave him

further reason to believe that he had permission to drive the van home.
                                                                                         -5-


       {¶ 11} The parties stipulated to Hemm’s Glass’s vehicle-use policy and it was

admitted into evidence. Eric Swingle, the Director of Operations at the company, testified

that Norris was not authorized to use the company van in Piqua. Swingle said that the

van should have been at the job site in Cincinnati. And he testified that, based on his

investigation, there was no reason that Norris would have been permitted to drive the

company van to his home. Swingle also testified that only company employees are

permitted to ride in company vehicles. He said that there is no exception for employees’

children.

       {¶ 12} The vehicle-use policy and the testimony establish that Norris violated the

unauthorized-use-of-a-vehicle statute by driving the company van home “without the

consent of the owner or person authorized to give consent.” The question is whether the

evidence establishes the affirmative defense that Norris “reasonably believed” that he

was authorized to drive the van home and to give his son a ride to school. Norris argues

that the evidence shows that he had such a reasonable belief, citing the previous uses of

company vehicles for personal matters, that Kidder knew about these personal uses, and

that Kidder told him he could drive the company van home.

       {¶ 13} The trial court found that there was a “wink and a nod” policy about using

company vehicles for reasons outside the company’s vehicle-use policy. But the court

said that it is unclear whether the person who gave the “wink and nod” had the authority

to do so. Although Kidder was the jobsite supervisor, said the court, the testimony does

not establish that he was responsible for enforcing the vehicle-use policy, though the court

acknowledged that he does appear to have been the person in control of the vehicles that

were used on the Cincinnati job. The court evidently did not give Kidder’s testimony much
                                                                                           -6-


weight, calling it “suspect and self-serving.” The trial court said that when Kidder told

Norris to “go ahead but don’t get caught” using the van, he was not giving him permission

but was rather warning Norris that using the vehicle was contrary to company policy. The

court pointed out that even though the past personal uses of company vehicles about

which Norris testified violated a strict reading of the vehicle-use policy, the uses were at

least tangentially related to work. Which, said the court, cannot be said of Norris’s use

here. His use of the company van to drive his son to school, said the court, is a clear

violation. The policy expressly prohibits transporting an unauthorized person in a

company vehicle.

       {¶ 14} “[T]he burden of proof, by a preponderance of the evidence, for an

affirmative defense, is upon the accused.” R.C. 2901.05(A). The evidence here regarding

authorization for use of the vehicle was in dispute. We cannot say that the trial court

“clearly lost its way” by failing to accept Norris’ contention that he had a reasonable belief

that he was authorized to drive the company van to his home. Moreover, we conclude the

trial court did not lose its way by finding that Norris did not prove that he had a reasonable

belief that he was authorized to use the van to drive his son to school. This is not one of

those “exceptional case[s] in which the evidence weighs heavily against conviction.”

                                      III. Conclusion

       {¶ 15} The sole assignment of error is overruled. The trial court’s judgment is

affirmed.

                                      .............



FROELICH, J. and TUCKER, J., concur.
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Copies mailed to:

Stacy M. Wall
Sean Brinkman
Hon. Gary A. Nasal
