[Cite as State v. Norfleet, 2017-Ohio-1189.]


                                        COURT OF APPEALS
                                    COSHOCTON COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :     Hon. Craig R. Baldwin, J.
                                               :     Hon. Earle E. Wise, Jr., J.
-vs-                                           :
                                               :
WILLIE NORFLEET, JR.                           :     Case No. 2016CA0011
                                               :
        Defendant-Appellant                    :     OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 16CR0017




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 30, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JASON W. GIVEN                                       DAN GUINN
318 Chestnut Street                                  P.O. Box 804
Coshocton, OH 43812                                  New Philadelphia, OH 44663
Coshocton County, Case No. 2016CA0011                                                    2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Willie Norfleet, Jr., appeals his July 18, 2016

conviction and sentence of the Court of Common Pleas of Coshocton County, Ohio.

Plaintiff-Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶ 2} On February 29, 2015, the Coshocton County Grand Jury indicted

appellant on one count of aggravated burglary with a firearm specification in violation of

R.C. 2911.11 and 2941.141, four counts of kidnapping in violation of RC. 2905.01, one

count of carrying a concealed weapon in violation of R.C. 2923.12, one count of having

a weapon while under disability in violation of R.C. 2923.13, and one count of tampering

with evidence in violation of R.C. 2921.12.       Said charges arose from an incident

involving appellant and his two brothers, Josh and Jason, and the victims, Linda Murray,

Samantha Crenshaw, Carrie Goff, and Brittany Harris, at the home of Ms. Murray on

February 3, 2016.

       {¶ 3} A jury trial commenced on July 12, 2016. The jury found appellant guilty

of the aggravated burglary count with the firearm specification and the four counts of

kidnapping, and not guilty of the remaining counts. By judgment entry filed July 18,

2016, the trial court sentenced appellant to ten years on the aggravated burglary count

with an additional mandatory three years for the firearm specification, and five years on

each of the kidnapping counts, to be served consecutively, for a total term of thirty-three

years in prison.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
Coshocton County, Case No. 2016CA0011                                                  3


                                            I

      {¶ 5} "APPELLANT'S CONVICTION FOR BURGLARY AND KIDNAPPING

WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                           II

      {¶ 6} "THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE

REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE ONE TO

CONSECUTIVE SENTENCES BY FAILING TO FIND ANY OF THE THREE FACTORS

LISTED IN ORC 2929.14(C)(4)(a)-(c) APPLIED."

                                            I

      {¶ 7} In his first assignment of error, appellant claims his conviction for

aggravated burglary and kidnapping were against the manifest weight of the evidence.

We disagree.

      {¶ 8} On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-

Ohio-52, 678 N.E.2d 541. The granting of a new trial "should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction." Martin

at 175. We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237
Coshocton County, Case No. 2016CA0011                                                  4


N.E.2d 212 (1967). The trier of fact "has the best opportunity to view the demeanor,

attitude, and credibility of each witness, something that does not translate well on the

written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 N.E.2d

1159.

        {¶ 9} Appellant was convicted of aggravated burglary in violation of R.C.

2911.11(A)(2) which states:



               (A) No person, by force, stealth, or deception, shall trespass in an

        occupied structure or in a separately secured or separately occupied

        portion of an occupied structure, when another person other than an

        accomplice of the offender is present, with purpose to commit in the

        structure or in the separately secured or separately occupied portion of the

        structure any criminal offense, if any of the following apply:

               (2) The offender has a deadly weapon or dangerous ordnance on

        or about the offender's person or under the offender's control.



        {¶ 10} Appellant was also convicted of kidnapping in violation of R.C.

2905.01(A)(3) which states:



               (A) No person, by force, threat, or deception, or, in the case of a

        victim under the age of thirteen or mentally incompetent, by any means,

        shall remove another from the place where the other person is found or

        restrain the liberty of the other person, for any of the following purposes:
Coshocton County, Case No. 2016CA0011                                                      5


               (3) To terrorize, or to inflict serious physical harm on the victim or

        another.



        {¶ 11} During the trial, each of the victims testified to the events of February 3,

2016.

        {¶ 12} Brittany Harris testified on the night of the incident, she was staying at the

home of Linda Murphy when there was a knock at the door. T. at 130, 135. She asked

who it was and someone replied, "Josh." T. at 136. Because Ms. Harris knew a Josh,

she unlocked the door and opened it "like four inches." T. at 136-137. She observed

"three black guys" and did not know who they were. T. at 137. The men were later

identified as appellant and his brothers, Josh and Jason Norfleet. T. at 137, 170.

        {¶ 13} Ms. Harris asked the men who they were looking for. T. at 137. They did

not respond, so she started to close the door because, "I didn't know who that they were

there for and, I mean, they weren't supposed to be there." Id. She noticed Josh had a

gun in the front of his pants. T. at 138. The men pushed their way into the house, and

Josh held the gun to her chest and "told me to sit the fuck down and don't move." T. at

138-139. Appellant went over to Samantha Crenshaw and started yelling at her. T. at

140. Ms. Harris identified appellant in the courtroom. T. at 141. Josh was going

through the rooms saying: " 'Where's that nigga at? We know he's in here. Where's he

at?' " Id. She testified appellant had "what I thought was a black object in his hand in

his pants. He didn't pull nothing out." T. at 142. She believed his hand was on the butt

of a gun, but she was not 100 percent sure. T. at 142, 157, 163. She thought it was a
Coshocton County, Case No. 2016CA0011                                                  6


gun because when he was yelling at Ms. Crenshaw, he said, " 'I should just shoot you

right now.' " T. at 163.

       {¶ 14} Ms. Murphy then came out of her bedroom and "points at them and tells

them to get the fuck out of her house." T. at 143. They did not leave. Id. Josh and

Jason followed Ms. Murphy into her bedroom while appellant continued to yell at Ms.

Crenshaw. T. at 144. At some point, Josh and Jason exited Ms. Murphy's bedroom,

and Josh ran over to Ms. Crenshaw, placed the gun to her head, and shot the gun. T.

at 145. The three men then ran out of the house. Id.

       {¶ 15} Ms. Harris explained even though the front door was open, she thought if

she tried to leave the house, her "friends' life would have been taken if I had tried to

leave to save myself." T. at 146. Even though she was not physically restrained, tied-

up or handcuffed, Ms. Harris felt restrained nonetheless because "if I would have tried

to leave, we would have all got shot, or I would have got away and they would have got

shot." T. at 164. Appellant was fifteen feet from her and she believed he had a gun. T.

at 163-164.

       {¶ 16} Linda Murray testified on the evening of the incident, she was in her

bedroom and heard a commotion in the living room. T. at 173. She walked out of her

bedroom and saw the Norfleet brothers in her home.       T. at 172. They had not been

invited. T. at 171, 186. She knew who the Norfleet brothers were, and they had been

to her house before. T. at 170-171. Ms. Murphy identified appellant in court. T. at 178.

She stated she told them "to get the fuck out of my house," but they did not leave. T. at

174, 186. She observed all three men with a gun in their hands, and specifically saw

appellant holding a gun. T. at 174-175, 198, 200. On cross-examination, Ms. Murphy
Coshocton County, Case No. 2016CA0011                                                      7


stated she could not remember whether appellant had a gun. T. at 196-197.                 On

redirect, she explained she was confused on cross-examination, and acknowledged the

whole incident was a traumatic event in her life. T. at 198. On recross, she stated as to

the discrepancy, "[t]his is a stressful trial" and "[i]t's been a long day." T. at 200.

       {¶ 17} Ms. Murphy went back into her bedroom and heard a gunshot. T. at 176.

She testified she was scared to leave her bedroom because "I didn't want to be shot."

T. at 177, 180. She stated she was very scared even after they left, and although she

was not physically restrained, tied-up, or handcuffed, she felt restrained because "they

had guns" and "I didn't want to get shot." T. at 185-186. She felt she did not have any

way to leave the house since she could not walk to the door without passing someone

with a gun. T. at 199.

       {¶ 18} Ms. Murphy stated the incident did not last long. T. at 180. A surveillance

video of Ms. Murphy's home showed the three men approaching the porch to her house

and then stepping off the porch leaving her house. T. at 181, 184; Plaintiff's Exhibit 1.

The front door of the home was not in view. T. at 183.

       {¶ 19} Carrie Goff testified on the night in question, she was in Ms. Murphy's

bedroom when she heard "a bunch of ruckus" in the living room. T. at 207. She

corroborated that Ms. Murphy exited the bedroom and told the three men to leave, and

after Ms. Murphy reentered the bedroom with Josh and Jason, Josh and Jason left the

bedroom and she then heard a gunshot. T. at 207-208. Ms. Goff stated she was

scared because "they had guns," although she did not know if appellant had a gun. T.

at 211, 219-220. Even though she was not physically restrained or tied up, Ms. Goff felt

that she could not move without suffering consequences. T. at 211. She did not "think
Coshocton County, Case No. 2016CA0011                                                8

it was smart to leave with someone with a gun." Id. She thought the whole incident

lasted about fifteen minutes. T. at 214.

      {¶ 20} Samantha Crenshaw stated on the evening of the incident, she was

asleep on an air mattress by the front door. T. at 229. She remembered the three

brothers coming through the door and appellant yelling at her as his two brothers

searched the house for someone. T. at 229-230. Appellant was threatening in a mean

voice to beat her ass and knock her teeth out. T. at 230-231. Although Ms. Crenshaw

did not observe appellant holding a gun, she saw his hand in his pants "[l]ike he was

holding his gun or something."      T. at 231-232.   After Josh and Jason exited Ms.

Murphy's bedroom, Josh pulled the covers off of Ms. Crenshaw and shot the gun a

"couple inches" close to her head. T. at 234. She stated she felt she was not free to

leave the house because "there was three men there" and it was scary. T. at 236, 238-

239. Although she was not physically restrained, tied up, or handcuffed, Ms. Crenshaw

felt restrained because "all them guys there" with guns. T. at 240.

      {¶ 21} Ms. Crenshaw corroborated Ms. Harris's testimony about the men entering

the house and one of them pointing a gun to her chest and ordering her to sit down and

stay there. T. at 236. Ms. Crenshaw thought the whole incident lasted fifteen to twenty

minutes. T. at 238.

      {¶ 22} Coshocton County Sheriff's Deputy Ernie Snyder arrested the three men

at a Circle K after being informed they were "suspects in a home invasion and a

possible shooting." T. at 262, 264. Deputy Snyder did not find any weapons on the

men or in the vehicle. T. at 264-265, 271.
Coshocton County, Case No. 2016CA0011                                                   9


       {¶ 23} Coshocton County Sheriff's Detective Garrison Bryant arrived at Ms.

Murphy's house and found a shell casing in the living room. T. at 275, 281; State's

Exhibit 7. It was the same brand and caliber as a bullet found in the vehicle the men

were in when they were arrested at the Circle K. T. at 291-292; Plaintiff's Exhibits 19

and 20. He also discovered a bullet hole in the pillow and air mattress Ms. Crenshaw

was using, as well as a bullet hole in the floor. T. at 283-286; State's Exhibits 8-13.

Detective Bryant reviewed the surveillance video and noted the time on the video when

the three men were on the porch of Ms. Murphy's home was 9:48 p.m., and 9:50 p.m.

when they were stepping off the porch and leaving the house. T. at 319-320; Plaintiff's

Exhibit 1.

       {¶ 24} Appellant challenges the credibility of the victims because they were

admitted drug users, but they testified they were not under the influence of drugs at the

time of the incident. Appellant's Brief at 12. As for any discrepancies in the various

testimonies, as noted above, the jury, as the trier of fact, was in the best position to

determine the credibility of the witnesses. Dehass; Davis.

       {¶ 25} Upon review, we cannot say that the jury clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be overturned and a new

trial ordered.

       {¶ 26} Assignment of Error I is denied.

                                            II

       {¶ 27} In his second assignment of error, appellant claims the trial court erred in

sentencing him to consecutive sentences in violation of R.C. 2929.14(C)(a)-(c). We

disagree.
Coshocton County, Case No. 2016CA0011                                                    10


       {¶ 28} R.C. 2953.08 governs appeals based on felony sentencing guidelines.

Subsection (G)(2) sets forth this court's standard of review as follows:



              (2) The court hearing an appeal under division (A), (B), or (C) of

       this section shall review the record, including the findings underlying the

       sentence or modification given by the sentencing court.

              The appellate court may increase, reduce, or otherwise modify a

       sentence that is appealed under this section or may vacate the sentence

       and remand the matter to the sentencing court for resentencing. The

       appellate court's standard for review is not whether the sentencing court

       abused its discretion. The appellate court may take any action authorized

       by this division if it clearly and convincingly finds either of the following:

              (a) That the record does not support the sentencing court's findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant;

              (b) That the sentence is otherwise contrary to law.



       {¶ 29} "Clear and convincing evidence is that measure or degree of proof which

is more than a mere 'preponderance of the evidence,' but not to the extent of such

certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
Coshocton County, Case No. 2016CA0011                                                 11

to be established."    Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus.

       {¶ 30} R.C. 2929.14(C)(4) governs consecutive sentences and states the

following:



              (4) If multiple prison terms are imposed on an offender for

       convictions of multiple offenses, the court may require the offender to

       serve the prison terms consecutively if the court finds that the consecutive

       service is necessary to protect the public from future crime or to punish

       the offender and that consecutive sentences are not disproportionate to

       the seriousness of the offender's conduct and to the danger the offender

       poses to the public, and if the court also finds any of the following:

              (a) The offender committed one or more of the multiple offenses

       while the offender was awaiting trial or sentencing, was under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

       Code, or was under post-release control for a prior offense.

              (b) At least two of the multiple offenses were committed as part of

       one or more courses of conduct, and the harm caused by two or more of

       the multiple offenses so committed was so great or unusual that no single

       prison term for any of the offenses committed as part of any of the courses

       of conduct adequately reflects the seriousness of the offender's conduct.
Coshocton County, Case No. 2016CA0011                                                    12


              (c) The offender's history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future

       crime by the offender.



       {¶ 31} In its July 18, 2016 judgment entry on sentencing, the trial court stated the

following:



              In   imposing     consecutive   sentences,   the   Court    finds   that

       consecutive sentences are necessary to protect the public from future

       crime, to punish the offender and that consecutive sentences are not

       disproportionate to the seriousness of the offender's conduct and to the

       danger the offender poses to the public, and the offender's history of

       criminal conduct demonstrates that consecutive sentences are necessary

       to protect the public from future crime by the offender.         In making its

       finding regarding Defendant's history of criminal conduct, the Court notes

       that Defendant had five prior felony convictions including vehicular

       assault, aggravated assault, robbery and 4 PRC violations.



       {¶ 32} During sentencing, the trial court recited these findings, and noted

appellant's lengthy criminal history: receiving stolen property, three counts of corrupting

a minor with drugs, robbery, four postrelease control violations, vehicular assault, and

aggravated assault. T. at 431-433, 436-437. Based on appellant's criminal history, the

trial court stated, "I see a very, very dangerous person." T. at 434.
Coshocton County, Case No. 2016CA0011                                             13


      {¶ 33} Upon review, we find the trial court properly considered the mandates of

R.C. 2929.14(C)(4) and did not err in imposing consecutive sentences.

      {¶ 34} Assignment of Error II is denied.

      {¶ 35} The judgment of the Court of Common Pleas of Coshocton County, Ohio

is hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




EEW/sg 323
