[Cite as State v. Newton, 2019-Ohio-3653.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 107200 v. :
ERIC S. NEWTON, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 12, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-620243-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carl Sullivan, Assistant Prosecuting Attorney, for appellee.
Patricia J. Smith, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Eric S. Newton, Jr. (“Newton”) appeals the
denial of a motion to suppress as well as his convictions for pandering sexually
oriented matter involving a minor, illegal use of a minor, and possessing criminal tools. Upon review, we find the trial court’s denial of the motion to suppress was
proper, and Newton’s convictions were not against the manifest weight of the
evidence. We therefore affirm Newton’s convictions.
I. Procedural History
On October 28, 2015, following a traffic stop, Newton was arrested in
connection with a series of several incidents of breaking and entering.
Subsequently, he was charged in a 47-count indictment relating to these crimes, in
Cuyahoga C.P. No. CR-16-605078-B. During a search of the vehicle in which
Newton was riding, the police seized evidence pertaining to the offenses charged in
Case No. CR-16-605078, including a cell phone belonging to Newton. After
obtaining a search warrant to search the contents of the phone, additional charges
were filed against Newton.
On August 8, 2017, Newton was charged in a 31-count indictment in
Cuyahoga C.P. No. CR-17-620243-A as follows: Counts 1-17, pandering sexually
oriented matter involving a minor, in violation of R.C. 2907.322(A)(2);
Counts 18-20, 24, and 25, pandering sexually oriented matter involving a minor, in
violation of R.C. 2907.322(A)(1); Counts 21-23, illegal use of minor in nudity-
oriented material or performance, in violation of R.C. 2907.323(A)(1); Counts 26-
30, illegal use of minor in nudity-oriented material or performance, in violation of
R.C. 2907.323(A)(3); and Count 31, possessing criminal tools, in violation of
R.C. 2923.24(A), with a forfeiture specification. On September 17, 2017, Newton filed a motion to suppress the
evidence obtained from the October 2015 search in Case No. CR-16-605078-B but
incorporated the motion into the lower case of this appeal as well. The trial court
denied the motion to suppress, and on October 18, 2017, Newton was convicted of
multiple counts in Case No. CR-16-605078-B and sentenced to 22-years
incarceration.
Approximately four months after his conviction in Case
No. CR-16-605078-B, on February 21, 2018, a jury returned a verdict of guilty on all
charges in Case No. CR-17-620243-A. Thereafter, the court sentenced Newton to 34
years in prison, to run consecutively to his sentence in Case No. CR-16-605078-B.
Newton appealed both cases, and this court ordered the cases to be treated as
companion appeals, with each appeal briefed, argued, and disposed of separately by
the same panel.
In this appeal, Newton assigned the following errors for our review:
I. The trial court erred when it overruled the defendant-appellant’s motion to suppress where the arresting officer lacked probable cause and specific, articulable facts to justify an investigatory stop.
II. Where the quality of the evidence did not support the trier of facts verdict of guilt, as there was not sufficient evidence to link the defendant to the acts in question, the defendant[-appellant’s] convictions were against the manifest weight of the evidence.
II. Evidence at Trial
The state presented the following witnesses at trial: Cleveland Police
Officer David Gallagher; Cleveland Police Sergeant John Lally; FBI Special Agent Andrew Burke; FBI Special Agent Kevin Matthews; FBI Forensics Examiner Daniel
Richard; Ohio Internet Crimes Against Children (“OICAC”) Task Force Investigator
Jason Howell; Cuyahoga County Sheriff’s Department Corrections Officer Philip
Christopher; and appellant’s uncles, Anderson Newton (“Anderson”) and Noland
Newton (“Noland”).
On October 28, 2015, at approximately 1:12 a.m., Officer Gallagher
and his partner conducted a traffic stop involving Newton, Amanda Rivera, Anthony
Palmentara, and Jose Rivera. Officer Gallagher was wearing a body camera while
conducting the stop. As the officer testified, the camera footage showed Newton in
the back seat of the vehicle. During the stop, Officer Gallagher asked Newton to step
out of the vehicle. When Newton stepped out of the vehicle, he initially had a black
smart phone in his hands. On the body camera, Officer Gallagher told Newton that
he could not have his phone “right now.”
Sergeant Lally conducted a follow-up investigation on the traffic stop.
He testified that another investigating officer recovered two cell phones from the
stopped vehicle — one pink phone located in the front console and one black cell
phone located in the rear seat of the vehicle. The evidence envelope containing the
black cell phone was marked with the name “Jose Rivera” as “Defendant,” and the
owner was listed as “unknown.” Sergeant Lally testified that the officers obtained a
search warrant to retrieve information from the phone. The phones were forwarded
to the FBI for a complete forensics examination. FBI Special Agent Burke, of the Cleveland Violent Crime and Child
Exploitation Task Force, assisted local law enforcement in the investigation of this
case. Special Agent Burke, using equipment called “Cellebrite” that extracts data in
its complete and unedited form, extracted forensics data from the black cell phone
recovered from the back seat of the vehicle in which Newton was riding. Special
Agent Burke testified that in the course of extracting the cell phone’s data, a
Cellebrite extraction report (state’s exhibit No. 3) was generated. Special Agent
Burke forwarded this report to the investigating officers.
Sergeant Lally testified that he reviewed the Cellebrite extraction
report he received from Special Agent Burke. The report identified numerous
computer searches associated with child pornography, such as the following:
“young gay boys, gay boy porn videos,” “man masturbating boy,” “more nude boys,”
“best young nude boys,” “horny nude young boys,” “abused teens-extreme-amateur-
teen-hardcore-movies-porn,” “boy rape boys,” and “man f*** young gay boy.” The
searches were conducted between August 29, 2015, and October 2, 2015.
The report also included text messages from Jose Rivera to an
individual using the black cell phone, dated September 13, 2015. In seven separate
messages received within approximately one minute, the text states, “Call me right
now. Hurry. Hurry. Bro what the f***. Call ke. Chris. Me.” Sergeant Lally testified
that he learned through his investigation that Newton also goes by the name “Chris.”
Sergeant Lally further testified regarding emails obtained from the
phone. The sergeant identified several email addresses associated with the phone: Ericnelson19005@gmail.com; Ericnewtonjr@gmail.com; Ericjr1981@gmail.com; and
Ericjr19005@yahoo.com. In the email section of the phone, the report obtained five
email messages that were sent from the “ericjr19005@yahoo” address. On August
20, 2013, “Eric Jr.” from “ericjr19005@yahoo” emailed “Mr. Cock” a message
stating,
I like boys. so if you send me some good ones ill send you some. Hopefully we can build a trusting relationship. i am not a cop or any law enforcement. That pic u have use to be one of my fav on the web site imgsrc.boy. but they cleaned most of it up especially the good stuff, you can call me Chris. i like 10-13. hope to here from you.
And on August 21, 2013, Eric Jr. also sent a message to “Mr. Cock,” stating, “i like
the ones you sent! seen one of the[m] before. send me some more good ones ill send
you some more too.” Later that same day, Eric Jr. emailed a message stating, “ill
send more you send me some.” All of these emails contained attachments.
Finally, Sergeant Lally testified regarding documents obtained in the
“Documents” section of the phone. This section included a document titled, “Eric
Newton, Jr. Resume Draft.” The resume, which was created on May 3, 2013, and
modified on October 21, 2014, included Newton’s home address on Grimsby Avenue
and the email address of “ericnewtonjr@gmail.com.” The report also identified
certain photographs that were on the phone, which included photos of Newton as
well as photos of unidentified children. Sergeant Lally testified that upon reviewing
all of the information contained in the Cellebrite report, he determined the black cell
phone belonged to Newton. He conceded, however, that he had no knowledge
whether anyone else used Newton’s phone. At some point during Sergeant Lally’s investigation of Newton, the sergeant learned that the FBI had been conducting a
“parallel” investigation of Newton, and the organizations shared information.
Special Agent Kevin Matthews, of the FBI’s Innocent Images Squad,
investigates crimes against children, including online possession, distribution, and
receipt of child pornography. Special Agent Burke testified that in investigating
online child pornography, he assumes the online identity of an established
pornographer. Assuming this individual’s identity allows the special agent access to
other individuals who are sharing online child pornography, specifically through
“peer-to-peer” sharing programs such as Ares and Gigatribe.
Special Agent Matthews testified that in November 2014, he
discovered a Gigatribe user named “Chris19005,” with a profile picture of a young
black boy, and in December 2014, he discovered four password-protected folders
associated with this user, entitled, “all black boys,” “mix Ricans china,” “white boys,”
and “young black thugs.” The special agent requested the user’s password to his
password-protected files. The user provided the special agent with his password,
which was “boy1.” Using the password, Special Agent Burke learned there were 485
files containing images or videos with titles indicative of child pornography in “all
black boys” folder, 429 files in “mix Ricans china,” 434 files in “white boys,” and 67
files in “young black thugs” folder.
The special agent testified that these files were all associated with
“Chris19005” through Gigatribe, and they were all associated with the same internet
protocol address (“IP” address) identifying the computer and its location. Of these files contained in the password-protected folders, the special agent viewed and
downloaded approximately 47 images and 24 videos (state’s exhibit No. 28). He
testified that the images contained child pornography. A representative sample of
the titles of the images depicted within the password protected folders that
correspond to each count of the indictment include: “New 2010 Boy is Blown 10YO,”
“New 2012 11 and 12YR Pillow Penis Boy Lick 2 P10800,” “A Little Pussy Videos
Young Boy,” “Little Thai Boys,” “P101 African 11YO Boy FMN (“F * * * Man”),” and
“Young Boy Getting F***.” All of the images depicted young children, sometimes
teenagers and sometimes prepubescents, engaging in sexual activity of some kind.
Special Agent Burke also testified regarding the “blog” section of
Gigatribe, where users can post comments, words, or files. On “1/11/14,”
“Chris19005” posted the following message, “i pay money for the best young black
boys pics or videos ages 10-13.”1
In his investigation, Special Agent Burke learned that the IP address
was linked to 12*** Grimsby Avenue, Cleveland, Ohio. The account holder at this
address was Louise Newton. Law enforcement then executed a search warrant of
the Grimsby Avenue residence.
The FBI’s Daniel Richard testified that in “early 2015,” he received
from his colleague information on 12*** Grimsby Avenue regarding a child
pornography investigation. Agent Richard continued the investigation, including
1 According to Special Agent Burke, it is not clear if the date is January 11, 2014, or November 1, 2014, because Gigatribe is a French company and the French write dates using the sequence: day/month/year. conducting surveillance and executing a search warrant to search the premises. In
executing the search warrant, the law enforcement officers interviewed residents of
the house and determined that Newton was the suspect.
The officers also conducted an onsite forensics examination of all
electronic devices found in the home, and they confiscated only items that contained
evidence of child pornography, which included a jump drive and an Acer laptop
discovered in the bedroom identified as Newton’s. The officers also confiscated
photographs found in Newton’s bedroom. The photographs contained images of
Newton with shirtless boys and a photo of a shirtless young boy on satin sheets with
money around him. The officers also discovered a notebook in Newton’s dresser
that included Newton’s email account addresses: esnewtjr2000@yahoo.com,
Ericnewtonjr@gmail.com, and Ericjr1981@gmail.com.
Upon conducting an initial forensics examination of the seized
computer, Agent Richard discovered approximately 900 images that depicted
mostly prepubescent boys and girls in a state of nudity or engaging in some sexual
activity. Agent Richard then turned the seized computer over to OICAC investigator,
Jason Howell, for further investigation. In conducting a full forensics examination
of the Acer laptop, Howell discovered 23,012 images of “child abuse” and 172 “child
abuse” videos. The videos totaled more than 27 hours in length. The examination
also revealed 26 images and two videos of children under the age of five. All of the
images depicted children engaging in sexual activity. In addition to the child abuse
materials, Howell discovered computer searches such as “boy porn,” “boys sex,” “boys naked,” “boys kissing,” “pics of shirtless sagging young black kids,” “pics of
dead kids hit by cars,” and “pics of dead body kids.” Howell testified that the user
searched “belly and boxers” just 13 days before the search warrant was executed.
Additionally, Howell testified that the forensics examination also revealed that
another Gigatribe user had messaged the user of this computer, stating, “Sorry you
are sharing too young kids. Please go away. You are sharing underage.”
Finally, Howell testified concerning other documents discovered on
the Acer laptop, including Newton’s resume, which listed his address as “12***
Grimsby Avenue” and his email address as “ericnewtonjr@gmail.com.” The
examination also revealed that the user emailed files to alternative emails. Howell
stated that “ericnewtonjr@gmail.com” sent photos and videos, including one titled
“13YO, dark skinned boy.mp4,” to “esnewtonjr2000@yahoo.com.” According to
Howell, Newton’s Google account included auto-saved information such as a credit
card under the name “Eric Newton Jr.,” his account was saved as “Eric Newton,” and
his Windows user name was “Eric.” “Eric” last logged in on April 1, 2015, which was
six days before law enforcement officers executed the search warrant.
Anderson, Newton’s uncle, also lived at 12*** Grimsby Avenue, with
Newton; Anderson’s father, Jerome; and previously his mother, Louise. Anderson
stated that his mother passed away approximately one week before law enforcement
executed the search warrant at his house. Anderson works in internet design and
“electrical” and “mechanical work.” He maintains a computer station in the basement of the house. The basement computer was not confiscated during
execution of the search warrant.
Anderson testified that his father is 86 years old, has dementia, and
is not technically proficient. Anderson stated that his brother, Noland, was staying
at his house for only a few days when the search was conducted. Anderson identified
Newton’s bedroom for the authorities, which is the bedroom in which Newton
stayed until Noland arrived in town for Louise’s memorial service. Anderson also
identified the Acer laptop as belong to Newton, although he admitted that on
occasion he would play computer games with his children using Newton’s laptop.
Anderson stated that he never downloaded child pornography or a peer-to-peer
software for purposes of sharing child pornography.
Noland, Newton’s other uncle, testified that he resides in Atlanta but
came to Cleveland for his mother’s memorial service a few days before April 7, 2015,
when the search warrant was executed. Noland is an electrical engineer and
programs computer software. Noland testified that he stayed in Newton’s bedroom
while visiting. He stated that he had never downloaded child pornography or a peer-
to-peer software for purposes of sharing child pornography. He identified one
desktop computer and two Dell laptops belonging to him that were discovered in the
residence by law enforcement. These computers were not confiscated during the
search.
III. Motion to Suppress Newton contends in his first assignment of error that the trial court
erred when it denied his motion to suppress the evidence obtained as a result of the
police officers’ search of the vehicle in which he was riding. In support, he argues
that the record does not show that the police officers had reasonable suspicion that
“criminal activity was afoot,” and therefore, all evidence obtained as a result of the
search must be suppressed.
In the companion appeal, State v. Newton, 8th Dist. Cuyahoga No.
107195, 2019-Ohio-3566 (lower court No. CR-16-605078), Newton also assigned as
error the trial court’s denial of his motion to suppress. In that appeal, this panel
affirmed the trial court’s decision on the motion to suppress, finding that the officers
had reasonable suspicion, supported by articulable facts, that the individuals in the
vehicle in which Newton was a passenger were engaged in criminal activity, and
therefore, the stop was justified. Newton at ¶ 30. We also concluded that Newton’s
argument regarding a purportedly “false statement” made in the search warrant
regarding ownership of the cell phone seized in the vehicle had no merit, thus
finding that “[b]ecause of the circumstances in which the phones were obtained,
probable cause existed to search the phones, regardless of which [individuals]
owned the phones.” Id. at ¶ 35. We found, therefore, that the motion to suppress
was proper. Id. at ¶ 36.
For purposes of this appeal, we adopt the analysis and conclusion
made in the companion appeal regarding Newton’s motion to suppress and
incorporate the same in this appeal. Accordingly, Newton’s first assignment of error is overruled. For a more complete recitation of the court’s analysis on Newton’s
motion to suppress, see Newton at ¶ 25-36.
IV. Manifest Weight
In his second assignment of error, Newton contends that his
conviction is against the manifest weight of the evidence. In support, he essentially
argues that there was insufficient evidence connecting him to the child pornography,
stating that three other adults lived in the home with Newton where the computer
was located, all having access to the computer, and Newton was rarely home.
Newton also argues that the state’s witness could not identify who put the child
pornography on Newton’s phone.
A manifest weight challenge questions whether the state has met its
burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541
(1997). This challenge raises a factual issue:
“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. 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.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). A finding that a conviction was supported by the manifest weight of the
evidence necessarily includes a finding of sufficiency. Thompkins at 388. It is well established that the elements of an offense may be proven by
direct evidence, circumstantial evidence, or both. See State v. Durr, 58 Ohio St.3d
86, 568 N.E.2d 674 (1991). Direct evidence exists when “a witness testifies about a
matter within the witness’s personal knowledge such that the trier of fact is not
required to draw an inference from the evidence to the proposition that it is offered
to establish.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶
13. Circumstantial evidence, on the other hand, is evidence that requires “the
drawing of inferences that are reasonably permitted by the evidence.” Id. See also
State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37
(“[c]ircumstantial evidence is the proof of facts by direct evidence from which the
trier of fact may infer or derive by reasoning other facts in accordance with the
common experience of mankind”).
Circumstantial and direct evidence are of equal evidentiary value.
State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12. “Although
there are obvious differences between direct and circumstantial evidence, those
differences are irrelevant to the probative value of the evidence.” Cassano at ¶ 13,
citing State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). In some
cases, circumstantial evidence may be “‘more certain, satisfying and persuasive than
direct evidence.’” State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990),
quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d
20 (1960). Newton was convicted of pandering sexually oriented matter
involving a minor in violation of R.C. 2907.322(A)(1) and (2):
(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following: (1) Create, record, photograph, film, develop, reproduce, or publish any material that shows a minor or impaired person participating or engaging in sexual activity, masturbation, or bestiality; (2) Advertise for sale or dissemination, sell, distribute, transport, disseminate, exhibit, or display any material that shows a minor or impaired person participating or engaging in sexual activity, masturbation, or bestiality.
Newton was also convicted of illegal use of minor in nudity-oriented
material or performance in violation of R.C. 2907.323(A)(1) and (3):
(A) No person shall do any of the following: (1) Photograph any minor or impaired person who is not the person’s child or ward in a state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor or impaired person in a state of nudity * * *. *** (3) Possess or view any material or performance that shows a minor or impaired person who is not the person’s child or ward in a state of nudity * * *.
Newton was further convicted of possessing criminal tools in
violation of R.C. 2923.24(A), namely a cell phone and an Acer laptop computer.
Here, Newton does not dispute that the materials discovered on the
Acer laptop and the black cell phone are evidence of child pornography. Rather, he
contends that the state failed to provide enough evidence linking him to the child
pornography. In support, he argues that he lived in a home where two other
individuals with computer experience had access to Newton’s computer and his computer passwords and someone else could have placed the child pornography on
Newton’s phone. We find Newton’s argument unpersuasive.
Though it is true that the state did not present any eyewitness who
testified that he or she saw Newton viewing, downloading, or sharing any of the child
pornography found on the devices, the evidence linking Newton to the child
pornography is overwhelming. The evidence demonstrates that law enforcement
officers seized only the computers that contained child pornography. The only
device containing child pornography at Newton’s residence was the Acer laptop
discovered in Newton’s bedroom. The laptop was identified as belonging to Newton.
The forensics examination of the laptop revealed Newton’s resume, which contained
his home address, 12*** Grimsby Avenue, and his email address of
“ericnewtonjr@gmail.com.” Also discovered in the bedroom was a notebook
containing various email addresses linked to Newton.
The forensics examination of the computer also revealed that Newton
had emailed files containing child pornography from one of his email addresses to
another of his email addresses. The evidence showed that Newton’s profile name
was “Chris,” and his username was “Chris19005.” As “Chris19005,” Newton was
conducting searches arguably containing child pornography and he was
downloading and sharing thousands of files containing child pornography.
Additionally, “Chris 19005” posted a message on a Gigatribe blog stating that he
“pay[s] money for the best young black boy pics or videos ages 10-13.” The
examination further showed that “Eric Newton, Jr.’s” credit card information was saved in a Google account and the account name was saved as “Eric Newton.” And
the Windows user name was “Eric.”
Additionally, the evidence showed several email addresses connected
to the phone, including Ericnelson19005@gmail.com; Ericnewtonjr@gmail.com;
Ericjr1981@gmail.com; and Ericjr19005@yahoo.com. In the emails section of the
phone, the examination revealed that “ericjr19005@yahoo” emailed “Mr. Cock” a
message soliciting child pornography. Newton also sent a message to this same
person indicating that Newton had viewed the pornography sent by Mr. Cock, that
he desired more, and he promised to likewise “send more.” The documents section
of the phone contained Newton’s resume, which included his home address and the
email address “ericnewtonjr@gmail.com.” The resume was created on May 3, 2013,
and modified on October 21, 2014. Other documents discovered on the phone
included several photos of Newton and unidentified children.
Finally, in the messages section of the phone, law enforcement
officers discovered text messages from Newton’s codefendant in a companion case,
Jose Rivera. The messages ask “Chris” to “hurry” and “call me.” And the evidence
shows that during the initial traffic stop that led to the search warrant of the contents
of the phone and ultimately the search of Newton’s residence, Newton asked the
officers if he could have his cell phone back.
We find the jury could reasonably infer from the foregoing evidence
that Newton was in fact the perpetrator of the crimes charged. Newton claims that others had access to the Acer laptop, including his
uncles, who stayed at the same home and had extensive computer knowledge.
Newton’s uncles, however, denied ever having downloaded or shared child
pornography, and there was no evidence that the uncles’ computers contained child
pornography. Furthermore, Newton’s uncle, Noland, who used Newton’s bedroom
when he came to town in April 2015, testified that he had only arrived days before
the search warrant was executed, and the forensics examination had discovered
child pornography on the Acer laptop dating as far back as 2014. Newton presented
no evidence of other individuals who may have shared his cell phone. The jury
evidently found the state’s witnesses to be credible and it rejected the possibility that
someone else used Newton’s computer or cell phone to create, download, view,
share, or offer for sale child pornography, which it was free to do.
In light of all the evidence presented, we find the jury did not lose its
way in finding Newton guilty of pandering sexually oriented matter involving a
minor, illegal use of a minor, and possessing criminal tools. His convictions are
therefore not against the manifest weight of the evidence.
Newton’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and RAYMOND C. HEADEN, J., CONCUR