[Cite as State v. Norris, 2016-Ohio-1526.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.        27630

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
WENDALL DALE NORRIS, JR.                               COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 2014 08 2562

                                  DECISION AND JOURNAL ENTRY

Dated: April 13, 2016



        CARR, Judge.

        {¶1}     Appellant, Wendell Norris, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms in part, reverses in part, and remands.

                                                  I.

        {¶2}     This matter stems from two incidents that occurred at fraternity houses on the

campus of the University of Akron. On September 5, 2014, the Summit County Grand Jury

indicted Norris on one count of aggravated burglary, one count of aggravated robbery, and one

count of burglary. Norris pleaded not guilty to the charges at arraignment and the matter

proceeded to a bench trial. Norris was convicted of all three counts in the indictment and

sentenced to a total of eight years imprisonment. The trial court ordered the sentence in this case

to run consecutively to a prison term for a community control violation in a separate case.

        {¶3}     On appeal, Norris raises four assignments of error.
                                                2


                                                II.

                                  ASSIGNMENT OF ERROR I

       WENDELL NORRIS’ CONVICTIONS FOR AGGRAVATED BURGLARY,
       AGGRAVATED ROBBERY, AND BURGLARY WERE NOT SUPPORTED
       BY SUFFICIENT EVIDENCE IN VIOLATION OF THE DUE PROCESS
       CLAUSE OF THE 5TH AND 14TH AMENDMENTS TO THE U.S.
       CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO
       CONSTITUTION.

       {¶4}    In his first assignment of error, Norris contends that his convictions for

aggravated burglary, aggravated robbery, and burglary were not supported by sufficient

evidence. This Court disagrees.

       {¶5}    In determining whether the evidence presented before the trial court was

sufficient to sustain a conviction, a reviewing court must view the evidence in the light most

favorable to the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. 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.

State v. Galloway, 9th Dist. Summit No. 19752, 2001 WL 81257 (Jan. 31, 2001), *3, quoting

Jenks, 61 Ohio St.3d 259, at paragraph two of the syllabus.

       {¶6}    The test for sufficiency requires a determination of whether the State has met its

burden of production at trial. State v. Walker, 9th Dist. Summit No. 20559, 2001 WL 1581570

(Dec. 12, 2001); see also State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J.,

concurring).

       {¶7}    Norris was convicted of one count of burglary in violation of R.C. 2911.12(A)(2),

which states, “No person, by force, stealth, or deception, shall * * * [t]respass in an occupied
                                                3


structure * * * that is a permanent or temporary habitation of any person when any person * * *

is present or likely to be present, with purpose to commit in the habitation any criminal

offense[.]”

       {¶8}    Norris was also convicted of one count of aggravated burglary and one count of

aggravated robbery. R.C. 2911.11(A)(2), which defines aggravated burglary, states, “No person,

by force, stealth, or deception, shall trespass in an occupied structure * * * when another person

other than an accomplice of the offender is present, with the purpose to commit in the structure *

* * any criminal offense, if * * * [t]he offender has a deadly weapon or dangerous ordnance on

or about the offender’s person or under the offender’s control.” R.C. 2911.01(A)(1), which

defines aggravated robbery, provides, “No person, in attempting or committing a theft offense *

* * shall * * * [h]ave a deadly weapon on or about the offender’s person or under the offender’s

control and either display the weapon, brandish it, indicate that the offender possesses it, or use

it[.]” For the purposes of both aggravated burglary and aggravated robbery, the term “deadly

weapon” is defined as “any instrument, device, or thing capable of inflicting death, and designed

or specifically adapted for use as a weapon, or possessed, carried, or used as a weapon.” R.C.

2923.11(A).

       {¶9}    On the evening of July 14, 2014, Norris entered the Phi Delta Theta house on the

campus of the University of Akron. M.M., a member of the fraternity, was sitting in the multi-

purpose room when he heard someone enter the house. Norris subsequently emerged and said he

was there to sell Percocet to someone named “Matt.” After hearing the description offered by

Norris, M.M. responded that nobody who resided in the house fit that description. Undeterred,

Norris said he wanted to go upstairs to find “Matt.” M.M. demanded that Norris leave, and

Norris walked toward the exit. Though M.M. heard the door to the house open and shut, he
                                                  4


subsequently heard footsteps going upstairs. M.M. immediately went upstairs and found Norris

“rummaging through things” in the bedroom of T.G., one of M.M.’s fraternity brothers. Norris

insisted it was “Matt’s room” and said that he was looking for something. M.M. again told

Norris to get out of the house. Norris then attempted to walk into another bedroom. M.M. began

to push Norris toward the door and ordered him to leave the house immediately. After some

arguing, Norris eventually left the house. M.M. alerted some of his fraternity brothers about the

intruder. Later that night, T.G. discovered that his iPod was missing. T.G. testified at trial that

he was absolutely sure his iPod was in his room prior to the incident, and he had not seen his

iPod since the date of the incident.

       {¶10} Several weeks later, on the evening of July 31, 2014, Norris entered the

university’s Sigma Alpha Epsilon fraternity house. J.C., a student who lived in the house, was

cooking dinner when Norris walked into the kitchen. Norris stated that he smoked marijuana

with J.C.’s fraternity brothers earlier in the week and he wanted money for the drugs or “some

sort of collateral.” J.C. did not believe Norris but he gave Norris ten dollars in hopes that he

would leave. Norris was not satisfied and he attempted to pull a mounted television off the wall.

J.C. pulled Norris away from the television. Norris then went into a first-floor bedroom and took

a laptop computer. When J.C. attempted to take the laptop away from Norris, Norris picked up a

screwdriver off a table and pointed it directly at J.C.   J.C. backed away because he did not want

to get stabbed. When the screwdriver was introduced as an exhibit at trial, the adjustable head

tool was missing a bit. However, J.C. testified that the screwdriver usually had an attachment on

the end. Though J.C. did not notice the head of the screwdriver during the fervor of the incident,

he testified that the attachment could have come off when Norris threw down the screwdriver as

he excited the house. Prior to leaving the house, Norris told J.C. that he had guys outside in case
                                                 5


J.C. gave him any trouble. Norris proceeded to signal to a man in a vehicle. When Norris turned

his attention toward the man outside, J.C. attempted to push Norris out the front door. J.C. was

unsuccessful and Norris and the second man pushed their way back into the house. The second

man proceeded to use a first-floor bathroom before exiting the house with Norris. As the two

men were leaving, J.C. demanded that Norris give back the laptop or else he would call the

police. After a brief exchange, Norris fled the scene with the laptop.

       {¶11} On appeal, Norris contends that the State failed to demonstrate that he stole the

iPod, and thus committed burglary, during the July 14 incident. Norris further maintains that his

convictions for aggravated robbery and aggravated burglary should be reversed because the State

never proved that the screwdriver utilized during the July 31 incident was a deadly weapon.

       {¶12} Norris’ argument with respect to the iPod is without merit. T.G. testified that he

was absolutely certain that his iPod was in his room on evening of the incident. The State

presented direct evidence that Norris was “rummaging through things” in that room when he was

on the second floor of the Phi Delta Theta house. After Norris rummaged through the room, the

iPod was gone and T.G. never saw it again. Though Norris claims the State never presented

evidence that he was in possession of the iPod, we are mindful that circumstantial evidence

possesses the same probative value as direct evidence. Jenks, 61 Ohio St.3d 259, at paragraph

one of the syllabus. Here, the State presented sufficient evidence, by way of circumstantial

evidence, that Norris stole the iPod during his foray into the Phi Delta Theta house.

       {¶13} Norris’ argument regarding the July 31, 2014 incident is also without merit. Ohio

courts have determined that a screwdriver is considered a deadly weapon. See State v. Brown,

6th Dist. Wood No. WD-09-058, 2010-Ohio-1698, ¶ 14, citing State v. Umphries, 4th Dist. Ross

No. 02CA2662, 2003-Ohio-599, ¶ 8 (“It almost follows without the need to cite legal authority
                                                6


that either a knife or a screwdriver is capable of inflicting a deadly wound.”); see also State v.

Peterson, 9th Dist. Summit No. 10114, 1981 WL 4176, *2 (Sept. 23, 1981) (“the jury could

reasonably conclude defendant had a gun or a knife or a screwdriver, all of which are things

capable of inflicting death.”).    In making this determination, “[t]he manner of use of the

instrument is what is determinative.” State v. Goodwin, 6th Dist. Lucas No. L-12-1341, 2014-

Ohio-2323, ¶ 33, citing State v. Harris, 10th Dist. Franklin No. 89AP-1342, 1990 WL 129256

(Sept. 4, 1990). “A [trier of fact] is permitted to infer the deadly nature of an instrument from

the facts and circumstances of its use.” State v. Vondenberg, 61 Ohio St.2d 285, 289 (1980).

When Norris stole the laptop, he picked up the screwdriver and pointed it at J.C. Norris wielded

the screwdriver so as to deter J.C. from making a play for the laptop. J.C. backed away because

he did not want to get stabbed. J.C. testified that the screwdriver typically had an attachment

with a tip at the end. J.C. further testified that it is possible the attachment became dislodged

when Norris threw it to the ground as he exited the house. This evidence, when construed in the

light most favorable to the State, was sufficient to demonstrate that Norris used a deadly weapon

while burglarizing the Sigma Alpha Epsilon house.

       {¶14} The first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       WENDELL NORRIS’ CONVICTIONS FOR AGGRAVATED ROBBERY,
       AGGRAVATED BURGLARY, AND BURGLARY WERE AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE
       PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS TO THE U.S.
       CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO
       CONSTITUTION.

       {¶15} In his second assignment of error, Norris argues that his convictions were against

the manifest weight of the evidence. This Court disagrees.
                                                   7


        {¶16} When a defendant argues that his convictions were contrary to the weight of the

evidence, this court must review all of the evidence before the trial court.

        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 and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When 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 fact[-]finder’s resolution of the

conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v.

Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a

judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.

        {¶17} Norris asserts that the State presented no credible evidence that he stole the iPod

during the July 14, 2014 incident. Norris points to his conversation with police detectives after

the incident where he admitted to entering the fraternity house but denied taking the iPod. Norris

claims his denial is credible because he admitted to other illegal conduct.

        {¶18} As noted above, the State presented evidence that T.G.’s iPod was in his room

prior to the incident. Norris rummaged through T.G.’s room during his invasion of the Phi Delta

Theta house and the iPod was never seen after the incident. This Court has recognized that

reliance on circumstantial evidence is often critical in proving a theft offense as an element of

burglary. State v. Flowers, 9th Dist. Summit No. 9968, 1981 WL 2922, *1 (July 22, 1981).

Moreover, while Norris emphasizes his own denial of the theft in an interview with police, and

further suggests the State’s evidence was not credible, it is well-settled law that the trier of fact is

in the best position to make credibility determinations when evaluating the evidence presented at
                                                   8


trial. State v. Campanalie, 9th Dist. Summit No. 26383, 2013-Ohio-3509, ¶ 21. As the State

presented evidence that T.G.’s iPod went missing during the timeframe when Norris invaded the

house, we cannot say that the trial court’s conclusion that Norris stole the iPod resulted in a

manifest miscarriage of justice.

        {¶19} Norris argues that his convictions for aggravated burglary and aggravated robbery

were against the weight of the evidence because the State presented no credible evidence that the

screwdriver was used as a deadly weapon.

        {¶20} Norris’ argument is not well taken.          As noted above, J.C. testified that the

screwdriver typically had a tip attached that could have come off when Norris threw it to the

ground.    Norris treated the screwdriver as though it had a sharp tip when he pointed it

threateningly at J.C. in order to deter J.C. from trying to recover the laptop. Moreover, Norris’

argument that J.C. was not in fear is contradicted by the record. J.C. testified that when Norris

picked up the screwdriver, J.C. stepped back because he did not want to be stabbed. Though

Norris correctly notes that J.C. later tried to push Norris out of the house, this occurred during a

moment when Norris turned his attention to the man outside. Under these circumstances, a

reasonable juror could conclude that the screwdriver had a tip at the time of the incident. It

follows that this is not the extraordinary case where the trier of fact clear lost its way.

        {¶21} The second assignment of error is overruled.

                                   ASSIGNMENT OF ERROR III

        THE TRIAL COURT ERRED IN IMPOSING COSTS UPON WENDELL
        NORRIS WITHOUT ALLOWING A REQUEST FOR WAIVER OF COSTS, IN
        VIOLATION OF THE DUE PROCESS CLAUSE OF THE 5TH AND 14TH
        AMENDMENTS OF THE U.S. CONSTITUTION AND ARTICLE I, SECTION
        10 OF THE OHIO CONSTITUTION.
                                                  9


       {¶22} In his third assignment of error, Norris contends that the trial court deprived him

of an opportunity to seek a waiver of the payment of court costs. This Court agrees.

       {¶23} The Supreme Court of Ohio has held that a trial court is required to provide a

defendant with an opportunity to claim indigency and seek a waiver of the payment of court

costs. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 22. A trial court commits reversible

error when it imposes court costs without giving the defendant an opportunity to claim indigency

and seek a waiver. State v. Miller, 9th Dist. Lorain Nos. 10CA009922 & 10CA009915, 2012-

Ohio-1263, ¶ 96, citing Joseph at ¶ 22. The appropriate remedy for such an error is to “remand

the cause to the trial court for the limited purpose of allowing [the offender] to move the court

for a waiver of the payment of court costs.” Joseph at ¶ 23.

       {¶24} The State acknowledges that the trial court did not notify Norris about the

imposition of court costs at the sentencing hearing. Nevertheless, the State urges this Court to

overrule Norris’ assignment of error on the basis of R.C. 2947.23(C), which states that a trial

court “retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution,

including any costs under section 2947.231 of the Revised Code, at the time of sentencing or at

any time thereafter.” The State notes that because the trial court may revisit the issue at any

time, there is no need to reverse the trial court’s judgment.

       {¶25} A review of the transcript from the sentencing hearing confirms that the trial court

did not provide Norris with an opportunity to seek a waiver of the payment of court costs. Yet,

the trial court ordered Norris to pay court costs in its December 3, 2014 sentencing entry. The

State correctly notes that R.C. 2947.23(C) permits a trial court to address issues with court costs

after the time of sentencing. The fact remains, however, that Norris has identified a prejudicial

error in his direct appeal. Norris was harmed when he was “denied the opportunity to claim
                                                  10


indigency and to seek a waiver of the payment of court costs before the trial court.” Joseph at ¶

22. Under these circumstances, it is appropriate to “remand the cause to the trial court for the

limited purpose of allowing [the offender] to move the court for a waiver of the payment of court

costs.” Joseph at ¶ 23.

       {¶26} The third assignment of error is sustained.

                             ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN IMPOSING RESTITUTION UPON
       WENDELL NORRIS WITHOUT INQUIRY INTO HIS ABILITY TO PAY OR
       OPPORTUNITY TO CONTEST THE AMOUNT, IN VIOLATION OF THE
       DUE PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS OF THE
       U.S. CONSTITUTION AND ARTICLE [I], SECTION 10 OF THE OHIO
       CONSTITUTION.

       {¶27} In his final assignment of error, Norris contends that the trial court committed

plain error when it imposed restitution without giving him an opportunity to contest the amount.

This Court agrees.

       {¶28} R.C. 2929.19(B)(5) requires a trial court to consider the offender’s present and

future ability to pay prior to imposing a financial sanction. State v. Williams, 9th Dist. Summit

No. 26014, 2012-Ohio-5873, ¶ 17. “‘[T]here are no express factors that must be taken into

consideration or findings regarding the offender’s ability to pay that must be made on the

record.’” Williams at ¶ 17, quoting State v. Martin, 140 Ohio App.3d 326, 327 (4th Dist.2000).

“Even so, the record must reflect that the court actually considered the defendant’s ability to

pay.” Williams at ¶ 17, see also State v. Lewis, 2d Dist. Greene No. 2011-CA-75, 2012-Ohio-

4858, ¶ 9 (“A hearing on a defendant’s ability to pay is not required. Nor is a court required to

make findings. All that is required is that the trial court ‘consider’ a defendant’s ability to pay.”).

“A trial court commits plain error by ordering a defendant to pay restitution without first
                                                11


considering his ability to pay.” Williams at ¶ 17, citing State v. Andrews, 1st Dist. Hamilton No.

C-110735, 2012-Ohio-4664, ¶ 32.

       {¶29} In this case, the trial court ordered restitution in the amount of $300 to the owner

of the iPod and $700 to the owner of the laptop computer. At the sentencing hearing, the trial

court stated the amount of restitution to be paid to each victim. The trial court also asked Norris

if he could afford an appellate attorney, and when Norris responded in the negative, the trial

court appointed counsel on his behalf. Unfortunately, our review of the record does not reveal

any signal by the trial court that it considered Norris’ ability to pay restitution. Thus, given the

record in this case, the trial court committed plain error and must make a determination regarding

Norris’ ability to pay restitution on remand. Williams at ¶ 19-20.

       {¶30} The fourth assignment of error is sustained.

                                                III.

       {¶31} Norris’ first and second assignments of error are overruled. The third and fourth

assignments of error are sustained. The judgment of the Summit County Court of Common

Pleas is affirmed in part, reversed in part, and the cause remanded to the trial court for further

proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                12


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JEREMY A. VEILLETTE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
