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State v. Newton

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
ERIC S. NEWTON, JR., Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-605078-B


          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Ryan J. Bokoch, Assistant Prosecuting Attorney, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant


          RAYMOND C. HEADEN, J.

         {¶ 1} Defendant-appellant Eric Newton, Jr. ("Newton") appeals his convictions and sentence for multiple crimes related to a series of criminal incidents. For the reasons that follow, we affirm.

         Substantive History

         {¶ 2} This case stems from a series of 17 incidents of breaking and entering at businesses across Cleveland's west side that occurred between September 17, 2015, and October 28, 2015.[1] Most of the incidents involved the thieves entering the businesses by using sledgehammers to make holes in the walls so as to not set off door alarms. The thieves stole merchandise, safes, cash registers, and ATMs from the businesses. They wore Halloween masks, and some of their activity was captured on security cameras, but authorities were unable to determine their identities from the footage.

         October 25 Stop

         {¶ 3} On October 25, 2015, at around 2:47 a.m., Officer Justin Setty ("Officer Setty") and his partner responded to an open 911 call from a cellphone in the area around 3351 West 67th Place. Driving northbound on West 67th, Officer Setty observed a white SUV parked on an access road in front of a gate, facing outward towards the street. The vehicle's occupants got out, opened the hood, and began to push on the vehicle's tires. The officers drove up to the vehicle and asked the occupants if they were okay. The individuals responded that their tire light had come on and they were checking on that but were otherwise fine, so the officers kept driving.

         {¶ 4} The officers continued to check the surrounding area to identify anything that would have resulted in a 911 call before turning around and driving back down West 67th. When they reached the driveway where the white SUV had been parked, they observed that vehicle pull out in front of them and begin to drive southbound on West 67th. In light of the open 911 call and the individuals' behavior - specifically, checking on a tire that appeared fully inflated, and opening the hood of a car that allegedly had tire trouble - the officers activated their overhead lights and pulled the vehicle over. Officer Setty approached the driver's side of the vehicle, and his partner approached the passenger's side of the vehicle. Officer Setty observed that one passenger was crouched in the rear cargo area of the SUV, was dripping wet, was not wearing shoes, and his socks appeared to be soiled. Upon seeing this passenger, the officers proceeded to get verbal confirmation from each occupant of the vehicle that everyone was okay and that no one was in the vehicle against their will. The officers also realized that a cell phone inside the vehicle was tuned to the radio channel for the Cleveland Police Department's Second District. While speaking to the occupants of the vehicle, officers also observed two masks, a gorilla mask, and a "Scream" mask.

         {¶ 5} The officers proceeded to identify everyone in the vehicle and confirm that none of the individuals had any outstanding warrants. Officer Setty testified that he was "pretty certain" that these individuals were involved in the ongoing string of break-ins in the Second District, but they had no probable cause to prolong the stop or arrest anyone in the car. Officer Setty documented the results of the stop in an informational memo to distribute to the police department.

         {¶ 6} Later that evening, Rose's Discount Store, located approximately half a block down the road from where this stop occurred, was broken into through the rear wall of the building. When the officers arrived on the scene at Rose's, they observed a stolen U-Haul parked and running at the rear of the store. The individuals in the white SUV - Anthony Palmentera ("Palmentera"), Jose Rivera, Jr. ("Jose"), Jose Rivera, Sr., and Newton - became suspects in that break-in.

         October 28 Stop

         {¶ 7} On October 28, 2015, at around 1:12 a.m., Officer David Gallagher ("Officer Gallagher") and his partner, Officer Ryan Miranda ("Officer Miranda") responded to an alarm at the rear entrance to Dollar Mart located on 3410 Clark Avenue in Cleveland, Ohio. Upon arriving at the rear of the building, Officer Gallagher observed a white Ford Explorer near the rear of the store. Officer Gallagher observed the vehicle start driving, stop driving, and then start driving again. This unusual driving, together with the vehicle's location near the rear of the building where an alarm had recently gone off around 1 a.m., was suspicious to the officers, so they stopped the vehicle.

         {¶ 8} Officer Gallagher approached the driver's side of the vehicle and began speaking with Amanda Rivera ("Amanda"), the driver. He asked her to roll the rear windows down and subsequently observed three males - Palmentera, Jose, and Newton - in the backseat. Upon identifying these three passengers, the officers realized that these were the individuals who had been pulled over several days earlier and were suspects in the neighborhood break-ins. The officers then arrested all four individuals. The officers searched Jose and discovered that he was wearing a harness and straps underneath his clothing. According to Officer Gallagher, both Jose and Newton were extremely wet. The officers also observed gloves, masks, and tools in the backseat of the vehicle.

         {¶ 9} During the arrests, the officers seized two cell phones from the car. One phone belonged to Amanda, and the second phone belonged to Newton. Police subsequently obtained a warrant to search the contents of the phones to obtain evidence related to the break-ins. In the affidavit supporting the warrant, Cleveland Police Detective John Lally ("Detective Lally") stated that the phones were recovered from the white Ford Explorer and that this vehicle had been used in at least two breaking and enterings. The affidavit also described one of the cell phones as belonging to Amanda and the other cell phone as, erroneously, belonging to Jose.

         {¶ 10} Following the arrests, officers went to Dollar Mart and investigated the scene. They discovered tools and rope leading to the roof of the store. The officers contacted the Cleveland Fire Department to go up to the roof and determine if that was how the suspects had entered, or attempted to enter, the store. This investigation revealed that the suspects had entered the store through the roof.

         Other Incidents

         {¶ 11} Other incidents were described by witness testimony at trial. The earliest incident described at trial was a breaking and entering at Ziggy's on September 17, 2015, where the group stole lottery tickets and cash. On September 30, 2015, the group attempted to break in to a Family Dollar store but broke a hole through the rear wall of Xtreme Clothing, a neighboring business in the same shopping plaza. They proceeded to steal merchandise, including clothing, shoes, wallets, and watches, along with two safes, a television, credit cards, and cash from the store.

         {¶ 12} Early in the morning on October 2, 2015, officers responded to a call detailing a break-in in progress at Hanini Subs and a U-Haul truck parked outside the store. The responding officers observed a U-Haul truck swerve and stop before its occupants exited the truck and fled. The officers proceeded to investigate the truck and saw that it contained an ATM, a rack of lottery tickets, and duffel bags full of cigarettes and baby formula. An investigation revealed that the suspects had broken into Hanini Subs by smashing a hole through the rear cinder block wall of the building. The investigation also revealed that the U-Haul was stolen.

         {¶ 13} On October 17, 2015, suspects broke into a Little Caesars pizza and Subway through the rear cinder block wall of both businesses. The suspects broke into the safe in each business and stole cash from the safes and cash registers.

         {¶ 14} On October 22, 2015, a Georgio's Pizza was broken into. The suspects broke into the building by smashing through a cinder block wall and proceeded to smash part of the counter in order to access the safe. Palmentera testified that they took a safe from Georgio's Pizza and that the safe contained a black automatic gun with a wood grip. He explained that he did not open the safe, but Newton and Jose told him about its contents. In addition, the responding officer testified that the owner of Georgio's informed him that a black 9 mm Smith and Wesson semiautomatic pistol had been taken from the safe.

         {¶ 15} All of these crimes were committed by some combination of Newton, Jose, Jose Rivera, Sr., Amanda, and Palmentera. Jose testified that sometimes the targeted businesses were identified by members of the group and the crimes were planned in advance, and other incidents were unplanned. He also testified that the individuals would take turns making holes, entering businesses to take merchandise, acting as a lookout, and driving.

         Procedural History

         {¶ 16} On April 14, 2016, the Cuyahoga County Grand Jury issued a 50-count indictment against Palmentera, Newton, Amanda, and Jose. Newton was charged in 25 of the 50 counts, including one count of engaging in a pattern of corrupt activity with a furthermore clause, one count of possessing criminal tools, and multiple counts of theft, grand theft, breaking and entering, vandalism, safecracking, and receiving stolen property.

         {¶ 17} On January 6, 2017, Newton filed a motion to sever his trial from that of Jose and Amanda because both had made videotaped statements against Newton. On January 12, 2017, Newton filed a pro se motion to dismiss based on an alleged violation of his speedy trial rights.

         {¶ 18} On January 31, 2017, the state placed a plea offer on the record for all defendants. With respect to Newton, the state would accept a guilty plea to an amended count of engaging in a pattern of corrupt activity, two counts of grand theft, six counts of breaking and entering, and one count of possessing criminal tools. Newton rejected this offer. All three of his codefendants accepted plea deals. Jose was charged in 49 of the 50 counts. He pleaded guilty to 17 counts, testified against Newton at trial, and was sentenced to five years in prison. Palmentera was charged in 38 of the 50 counts. He pleaded guilty to nine counts, testified against Newton at trial, and was sentenced to four years. Amanda was charged in 11 of the 50 counts. She pleaded guilty to four counts and was sentenced to one year of community control on each count.

         {¶ 19} Newton filed a grievance against his counsel. In response, his counsel filed a motion to withdraw on March 30, 2017. On April 4, 2017, the court granted the motion to withdraw and appointed new counsel for Newton. On July 7, 2017, the trial court appointed an additional attorney to represent Newton as second chair.

         {¶ 20} On August 15, 2017, the state informed Newton and the court that its original plea offer was still in place, and Newton again rejected the offer.

         {¶ 21} On September 17, 2017, Newton filed a motion to suppress. The state responded to the motion to suppress on October 3, 2017, and a hearing on the motion was held that day. The state called Officer Gallagher, Officer Setty, and Detective Lally as witnesses. Following the hearing, the court denied the motion to suppress.

         {¶ 22} A jury trial began on October 6, 2017. The state called 24 witnesses, including various police officers and detectives involved with the case, numerous victims, Palmentera, and Jose. On October 16, 2017, the state rested its case. On October 17, 2017, the state made several amendments to the indictment. The "furthermore" clause was deleted from Count 10, reducing that theft offense from a felony of the third degree to a ...

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