Court of Appeals of Ohio, Eighth District, Cuyahoga
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,
Stanton, Cuyahoga County Public Defender, and Noelle A.
Powell, Assistant Public Defender, for appellant
JOURNAL ENTRY AND OPINION
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.
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. 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.
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.
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
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.
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.
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
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 ...