State v. Berhane , 2011 Ohio 2390 ( 2011 )

[Cite as State v. Berhane, 2011-Ohio-2390.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95089
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SOLOMON BERHANE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-527719
BEFORE: Sweeney, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: May 19, 2011
ATTORNEYS FOR APPELLANT
Ronald L. Frey, Esq.
Ian M. Friedman, Esq.
Ian Friedman & Associates, L.L.C.
1304 West Sixth Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Katherine Mullin, Esq.
Marc D. Bullard, Esq.
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant Solomon Berhane (“defendant”) appeals his convictions
for aggravated robbery, kidnapping, disrupting public service, and vandalism, with firearm
specifications. After reviewing the facts of the case and pertinent law, we affirm.
{¶ 2} On April 17, 2009, four masked gunmen robbed 12 men who were playing a
private high-stakes poker game in Solon, Ohio. The gunmen took cash, jewelry, and other
personal property.
{¶ 3} On August 31, 2009, seven individuals were indicted for 12 counts of
aggravated robbery, 12 counts of kidnapping, one count of disrupting public services, and one
count of vandalism, all with firearm specifications. The co-defendants include the following:
the four masked gunmen — Dominic Berlingeri, Randall Barnes, Jose Arzola-Torres, and
Andres Arzola; William Masters, who orchestrated the robbery; Wayne Bunkin, who knew
about the poker game and informed Masters of the details; and defendant, who allegedly acted
as a lookout.
{¶ 4} On March 12, 2010, defendant’s case proceeded to a bench trial. The
remaining six co-defendants entered guilty pleas. On March 30, 2010, the court found
defendant guilty of all counts. The court sentenced defendant to an aggregate term of six
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years in prison.
{¶ 5} Defendant appeals and raises two assignments of error for our review.
{¶ 6} “I. The State of Ohio failed to introduce sufficient evidence to sustain a
conviction in violation of appellant’s right to due process of law as guaranteed by Article I,
Section 10 of the Ohio State Constitution and the Fourteenth Amendment to the United States
Constitution.”
{¶ 7} “II. Appellant’s convictions were against the manifest weight of the evidence
and, therefore, his convictions were in violation of the Ohio State Constitution and the Sixth
and Fourteenth Amendments to the United States Constitution.”
The court granted defendant’s Crim.R. 29 motion for acquittal as to the
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furthermore clause in count 26, finding that the state failed to prove the value of
the property vandalized was between $5,000 and $100,000.
{¶ 8} When reviewing sufficiency of the evidence, an appellate court must determine,
“after reviewing the evidence in a light most favorable to the prosecution, whether any
reasonable trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492.
{¶ 9} The proper test for an appellate court reviewing a manifest weight of the
evidence claim is as follows:
{¶ 10} “The appellate court sits as the ‘thirteenth juror’ and, reviewing the entire
record, weighs all the reasonable inferences, considers the credibility of witnesses and
determines whether, in resolving conflicts in 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. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541.
{¶ 11} Defendant was convicted of the following offenses:
{¶ 12} Aggravated robbery in violation of R.C. 2911.01(A)(1), which states that “[n]o
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 * * *”;
{¶ 13} Kidnapping in violation of R.C. 2905.01(A)(2), which states that “[n]o person,
by force, threat, or deception * * * shall remove another from the place where the other person
is found or restrain the liberty of the other person * * * [t]o facilitate the commission of any
felony or flight thereafter * * *”;
{¶ 14} Disrupting public services in violation of R.C. 2909.04(A)(1), which states that
“[n]o person, purposely by any means or knowingly by damaging or tampering with any
property, shall * * * [i]nterrupt or impair * * * telephone * * * service * * *”;
{¶ 15} And vandalism in violation of R.C. 2909.05(B)(1)(a), which states that “[n]o
person shall knowingly cause physical harm to property that is owned or possessed by another,
when * * * [t]he property is used by its owner or possessor in the owner’s or possessor’s
profession, business, trade, or occupation, and the value of the property or the amount of
physical harm involved is five hundred dollars or more * * *.”
{¶ 16} Additionally, defendant was convicted of one- and three-year firearm
specifications in violation of R.C. 2941.141(A) and 2941.145(A), which apply when an
offender had and brandished a firearm while committing an offense.
{¶ 17} Defendant’s convictions were based on accomplice liability, which is governed
by R.C. 2923.03, the pertinent parts of which state as follows:
{¶ 18} “(A) No person, acting with the kind of culpability required for the commission
of an offense, shall * * * (2) Aid or abet another in committing the offense * * *. (F)
Whoever violates this section is guilty of complicity in the commission of an offense, and shall
be prosecuted and punished as if he were a principal offender.”
{¶ 19} In weighing the testimony of a co-defendant in a case based on accomplice
liability, the court should take into consideration R.C. 2923.03(D), which states that “the
admitted or claimed complicity of a witness may affect his credibility and make his testimony
subject to grave suspicion * * *.”
{¶ 20} In the instant case, eleven of the 12 victims testified that on April 17, 2009, they
were playing poker at a commercial building in Solon owned by one of the players. At
approximately 11:30 p.m., one of the men went outside to smoke a cigarette. Four armed
and masked men held the player at gunpoint and demanded to be taken into the game. Once
inside, the gunmen yelled at the players to put the contents of their pockets on the poker table
and forced them at gunpoint to get on the ground.
{¶ 21} The gunmen took cash, credit cards, wallets, jewelry, car keys, and cell phones
from the players. The offenders ripped the phones from the office walls and smashed the
computer equipment. The incident took five to ten minutes, and, as the gunmen were
leaving, one said, “Don’t come after us, there is a bomb by the door.” One of the players
managed to keep his cell phone and called 911. At 11:51 p.m., Solon police received a
dispatch of a robbery in progress and went to the scene.
{¶ 22} According to the victims, between $52,000 and $68,000 in cash and over
$20,000 worth of jewelry was stolen. The victims’ car keys were found scattered outside in
the parking lot and some of the victims’ cell phones were found in the toilet.
{¶ 23} Defendant does not challenge that this evidence establishes that the
co-defendants committed the crimes. Rather, he argues that he did not aid or abet the
co-defendants in committing the offenses. In relation to whether defendant was involved in
this robbery, two co-defendants, Masters and Barnes, testified at trial:
{¶ 24} Masters testified that he pled guilty to the indictment as charged, and he agreed
to testify against defendant to possibly mitigate his prison sentence. Masters knew Barnes,
Bunkin, and defendant because they regularly played poker together. Defendant was also
hired to deal cards in the games at times. Bunkin had previously played at a high-stakes
game in Solon and approached Masters with the idea of robbing it. Masters recruited
Berlingeri, who in turn recruited Arzola-Torres and Arzola (collectively, “the Arzola
brothers”) and an unidentified male to act as a driver (“the unidentified driver”). Masters
also recruited Barnes. Masters could not remember if he or Barnes recruited defendant.
{¶ 25} Masters testified that they were not sure if everyone could fit in one car, “[s]o
we spoke about if [defendant] wanted to go out there, he could be one of the guys on the
lookout and just help drive them and that would be kind of his role in what was going on, and
that we would give him some money for it.” According to Masters, this conversation took
place in his apartment prior to the robbery, and defendant agreed to participate.
{¶ 26} On the day of the robbery, Masters sent a text message to defendant’s cell
phone that stated “got cash for U.” Masters testified that this meant the robbery was going
forward. Masters, Barnes, and defendant drove to Solon to scope out the location and choose
the best escape route. Defendant suggested a “cut-through * * * to get back to 271,” which
was an alternate route to avoid the heavily traveled Miles Road and interstate 480.
{¶ 27} On the night of the robbery, the Arzola brothers, Berlingeri, the unidentified
driver, Barnes, defendant, and Masters met at Masters’ apartment in Tremont. Bunkin had
no participation on the night of the robbery because he knew some of the players. Before
they left Masters’ apartment, one of the Arzola brothers loaded a shotgun in the kitchen.
Defendant was in the kitchen at the time and would have been able to see this.
{¶ 28} The plan was to meet at the Crazy Horse strip club, which is approximately one
mile from the location of the poker game. Masters left his apartment with Barnes and
stopped at WalMart to buy latex gloves. The Arzola brothers rode with the unidentified
driver and Berlingeri rode with defendant. The Crazy Horse parking lot was full and, via cell
phones, the group arranged to meet at a gas station across the street. When Masters arrived
at the gas station, defendant was already there in his SUV with Berlingeri. Barnes got out of
Masters’ car and “jumped in” defendant’s SUV. After this, Masters left the scene and went
home.
{¶ 29} According to Masters, the plan was for the Arzola brothers, Berlingeri, and
Barnes to get into the poker game. The unidentified driver was to operate the get away car,
and defendant was to act as a lookout and call the others if he saw or heard the police. After
Masters left, he called defendant, who reported that the Arzola brothers, Berlingeri, and Barnes
got into the unidentified driver’s car, and defendant was “down the street * * * looking out.”
{¶ 30} Barnes, Berlingeri, the Arzola brothers, the unidentified driver, and defendant
returned to Masters’ place after the robbery. Masters was already there and the men began to
count the money. Bunkin was to get 50 percent of what was taken for providing the tip.
Defendant and the unidentified driver were to get $500 apiece, and the rest would be split
between the remaining co-defendants. Masters testified that there was “around $13,000,
$14,000.” However, asked if he remembered there being $23,000, Masters replied,
“Maybe.” Defendant was there when the money was divided, and Masters and Barnes gave
defendant “his cut.” Everyone left after the money was distributed.
{¶ 31} Barnes testified that he gave a written statement to the police on March 5,
2010 and pled guilty to reduced charges. At the time of Barnes’ testimony, he had not been
sentenced. Barnes stated that he, Masters, Berlingeri, the Arzola brothers, defendant, and the
unidentified driver met at Masters’ apartment on the night of April 17, 2009. According to
Barnes, this is when he first learned of the plan to rob a high-stakes poker game in Solon.
Barnes denied driving with Masters and defendant to Solon prior to the robbery.
{¶ 32} Masters drew a diagram of the location, came up with the plan, and told
everyone what to do. Barnes’ role was to go inside, wait until the players were forced to the
ground, and get the cash from the poker chip box. Defendant’s role was “just to be a
lookout.” Barnes rode with Masters and picked up blue surgical gloves on the way to the
designated meeting spot. When they arrived at the gas station, defendant was there in his
SUV. Barnes got out of Masters’ car and got into the unidentified driver’s car. Berlingeri
and the Arzola brothers were already in this vehicle. Defendant drove off in his SUV alone
to act as lookout.
{¶ 33} The unidentified driver took Barnes, the Arzola brothers, and Belingeri to the
poker game and waited in the car. The four men had masks and gloves on. Three of the
men carried guns, but Barnes denied being armed. After waiting for ten to 20 minutes, a
player came outside to smoke a cigarette, and one of the Arzola brothers grabbed him.
Barnes was the last one to enter the building. He made sure the players were on the ground
before taking the cash out of the poker chip box. Barnes went to the car and waited for
Berlingeri and the Arzola brothers. When they left Solon, they drove north on interstate 271.
{¶ 34} Everyone, including defendant, met at Masters’ house after the robbery.
Barnes and Masters counted the money from the box, which, according to Barnes, totaled
$23,000. Barnes received $3,000 or $3,500 and defendant received $500, although Barnes
did not witness this; rather, he learned it from Masters and defendant separately.
{¶ 35} Solon Police Detective Ross Faranda testified that he arrived at the scene
shortly after the robbery took place. He spoke with all 12 victims that night, who gave vague
but similar descriptions of the four suspects: “Masked individuals, Hispanic accents, possible
automatic weapon, pistol, shotgun, no vehicle seen, unknown escape route.”
{¶ 36} The first lead in the investigation came when a sergeant from the Orange
Village Police Department recovered the contents of one of the player’s wallets, which was
found in a driveway approximately one mile from the robbery location. This evidence was
eventually turned over to Det. Faranda, who determined that the suspects most likely fled
north on interstate 271 after the robbery. Later in the investigation, property from another
player’s wallet was found on the “northbound I-271 berm between Cedar and Chagrin, which
[is] consistent with the escape route taken after the robbery.”
{¶ 37} The next break in the investigation came on April 23, 2009, six days after the
robbery, when Berlingeri’s car broke down in Sheffield. The police stopped to assist him
and, after determining that his driver’s license was suspended, placed him under arrest. One
of the Arzola brothers was in Berlingeri’s car at the time, and he began throwing items on the
ground, which the police thought was suspicious. Property belonging to four of the players,
including identification, credit cards, two wallets, a watch, and a key chain, was found in and
underneath the car. The police later learned that Berlingeri purchased the 1999 Buick
Century with $2,200 cash on April 18, 2009.
{¶ 38} The Sheffield Police contacted one of the men whose identification was found
in Berlinger’s car. The man said that he had been robbed in Solon the previous week. The
evidence was turned over to Det. Faranda, who considered Berlingeri and Arzola suspects in
the robbery. Det. Faranda used the records from Berlingeri and Arzola’s confiscated cell
phones to identify Masters, Barnes, and defendant as additional suspects.
{¶ 39} On May 13, 2009, Det. Faranda interviewed Masters, who identified the other
suspects involved in the robbery, including defendant, which was consistent with what Det.
Faranda discovered through the cell phone records. Det. Faranda found items belonging to
some of the players in Masters’ garbage can, including a driver’s license, a social security
card, and multiple credit cards. The police also recovered a temporary vehicle tag with duct
tape stuck to it. The tag was reported stolen from a car in Warrensville Heights on the same
day as the robbery. Subsequent testing showed Berlingeri’s fingerprints on the tag.
{¶ 40} A custodian of records from defendant’s cell phone provider testified that cell
phone records show the time each call was made or received, as well as the location of the
tower or cell site through which each call was transmitted. Using this information,
defendant’s location could be determined, within a two-mile radius, any time his cell phone
was in use.
{¶ 41} The cell phone records from Masters, Barnes, Berlingeri, one of the Arzola
brothers, and defendant showed that they were in almost constant contact with each other
shortly before and after the robbery. The records additionally showed that the calls from all
five cell phones were transmitted through towers located in a clear path from Tremont to
Solon, then back to Tremont, between approximately 10:00 p.m. on April 17, 2009 and 12:30
a.m. on April 18, 2009.
{¶ 42} By 10:00 p.m. on the night of the robbery, the five co-defendants’ calls were
transmitted from the Tremont area, which is where Masters’ apartment is. Just before 10:30
p.m., their location started moving east. By 11:00 p.m., Berlingeri and defendant’s calls were
being transmitted through a tower in Warrensville Heights, near where the temporary tags
were reported stolen. By 11:15 p.m., calls from all five phones were being transmitted
2
through towers located close to either the gas station meeting point or the building where the
robbery took place. Starting at approximately 11:50 p.m., the co-defendants headed north,
then west, which corresponded with Det. Faranda’s suspected escape route. By 12:30 a.m.
on April 18, 2009, the records put the co-defendants back in the Tremont area.
{¶ 43} In particular to defendant, the phone records showed that on April 17, 2009,
defendant called Masters around noon and again at 7:35 p.m. Defendant received a call from
Masters at 7:47 p.m. Defendant called Barnes at 8:38 p.m. Fourteen phone calls took place
between defendant and Masters from 10:26 p.m. to 12:18 a.m. on April 18, 2009. Barnes
called defendant at 11:49 p.m. and defendant called Barnes at 11:57 and 11:58 p.m. on April
17, 2009.
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The state’s theory was that Berlingeri and defendant were assigned the task
of getting a temporary tag to use on the unidentified driver’s vehicle during the
robbery.
{¶ 44} Furthermore, according to the cell tower locations from defendant’s phone
records, he was in Tremont at 9:23 p.m. and began heading east by 10:26 p.m. Defendant
was near where the temporary tags were stolen around 11:00 p.m. From 11:14 to 11:49 p.m.
he was near the gas station and scene of the robbery, and by 11:55 p.m., he was heading north
along interstate 271. By 12:22 a.m. on April 18, 2009, a call indicated defendant was back in
the Tremont area. A 1:03 a.m. call indicated defendant was still in Tremont, and by 1:07
a.m., the call was being transmitted by a nearby tower in Cleveland.
{¶ 45} Additionally, on April 18, 2009, defendant placed a call to Barnes at 4:12 a.m.,
called Masters at 11:58 a.m., called Barnes at 1:34 p.m. and 2:28 p.m., and called Masters
again at 4:38 p.m.
{¶ 46} On June 30, 2009, Det. Faranda interviewed defendant, who denied being
involved in the robbery. Defendant’s SUV was searched and police recovered a partially
used roll of duct tape and one “bluish-purple” latex glove. Subsequent forensic testing
showed that the duct tape from defendant’s SUV and the duct tape found on the temporary tag
in Masters’ trash “may have originated from the same source.”
{¶ 47} Defendant testified on his own behalf, and stated that, for the past year or two,
he had been dealing cards at poker games, some of which Masters hosted. It was common
for defendant to do other things for Masters, such as recruiting poker players, picking up food,
or providing transportation for people. Masters frequently owed defendant money, and
oftentimes, getting paid from Masters was like “a game.” According to defendant, it would
not be unusual to drive a friend of Masters to a strip club to pick up money.
{¶ 48} On April 17, 2009, defendant was dealing cards at a poker game on the west
side of Cleveland, when he received a text message from Masters indicating that Masters had
cash for defendant. At the time, Masters owed defendant close to $800, and defendant took
this to mean that Masters had the money. Defendant went to Masters’ apartment. Masters
told defendant they were going to the Crazy Horse to pick up the money and Berlingeri would
ride with defendant. Defendant denied seeing any guns and denied hearing any conversation
about a robbery.
{¶ 49} Defendant drove Berlingeri to the Crazy Horse, and both men talked on their
cell phones during the ride. After arriving at the Crazy Horse, they waited for Masters and
the others. Berlingeri had another conversation on his cell phone, then defendant and
Berlingeri went “to the gas station to get something.” Masters and the other co-defendants
arrived at the gas station, and Berlingeri got into another car.
{¶ 50} Defendant called Masters because defendant was confused and “couldn’t
understand what was going on.” Defendant’s main purpose was to pick up his money.
Defendant thought if he did not get the money from Masters at the time, the opportunity would
be lost and he would have to wait to get paid. Defendant testified that the high volume of
calls between him, Masters, and Barnes after everyone met at the gas station was to sort out
whether Masters got the money at the Crazy Horse, but that nothing was mentioned about a
robbery.
{¶ 51} Eventually, defendant left the area without getting paid, and there is no
testimony that anyone went inside the Crazy Horse.
{¶ 52} Defendant denied going back to Masters’ apartment later that night and
receiving “a cut of the money.” Defendant testified that he got the money the following
Monday, but he did not recall how much Masters gave him.
{¶ 53} Asked to explain why his cell phone records put him back in the Tremont area
after the robbery, defendant testified that he returned to continue dealing the poker game on
the west side of Cleveland, and he usually passes by Tremont on his way to this game.
However, defendant later added that he had to pick up his friend downtown on the way back
to the west side poker game.
{¶ 54} Defendant testified that he had duct tape in his car because he had used it on
boxes when he moved, but he did not have an explanation for why a blue surgical glove was
found in his vehicle.
{¶ 55} On cross-examination, defendant testified that he did not remember whether he
went inside Masters’ apartment on the night of April 17, 2009. “I might have went up and
came down, but I know I was in a hurry. * * * I probably — I would have went up. But as
soon as I got there, I probably went up or not. I’m not sure.”
{¶ 56} Defendant testified that he knew Masters was driving himself and Barnes to the
Crazy Horse, defendant was driving Berlingeri, and “the other car was going to be going
there.” Subsequently, defendant was asked if he “understood everybody would be going to
the same location, three different vehicles, correct?” Defendant responded, “I didn’t know.
No, I didn’t know that.”
{¶ 57} To be found guilty of these crimes for aiding and abetting the principle
offenders, defendant must have supported, assisted, encouraged, cooperated with, advised, or
incited his co-defendants, and he must have shared their criminal intent. State v. Johnson
(2001), 93 Ohio St.3d 240, 754 N.E.2d 796. “Such intent may be inferred from the
circumstances surrounding the crime.” Id. at 246. For example, “participation may be
inferred from presence, companionship, and conduct before and after the offense is committed.
Aiding and abetting may also be established by overt acts of assistance such as driving a
getaway car or serving as a lookout.” State v. Lett, Cuyahoga App. No. 84696,
2008-Ohio-1308, ¶29 (internal citations omitted).
{¶ 58} In looking at this evidence in a light most favorable to the prosecution, as we
must, a reasonable trier of fact could have found sufficient evidence to convict defendant as an
accomplice to the robbery and other associated offenses. Masters and Barnes testified that
defendant was at Masters’ apartment with the others when the plan was formulated.
Defendant knew what was happening when he drove Berlingeri to the meeting place and
defendant agreed to act as a lookout. Defendant was paid $500 for his role in the robbery.
Defendant admitted traveling with the offenders from Tremont to the Solon area immediately
prior to the robbery. The cell phone records showed that defendant was in almost constant
communication with Masters and Barnes before and after the robbery. The records also
showed that defendant traveled back to Tremont after the robbery was committed.
{¶ 59} In finding defendant guilty of aiding and abetting the robbers, the court noted
minor differences between Masters’ and Barnes’ testimony. However, the court stated that
“these are attributable to each man trying to couch his testimony in a light most favorable to
[himself].” The court opined that if Masters and Barnes had lied about defendant’s
participation in the robbery “to curry favor with the State to get a better deal, the defendant’s
participation is so minimal that bringing him into the mix with defendants would not
significantly help them.”
{¶ 60} The court did not find defendant’s explanation of events to be credible.
“[W]hile on break, [defendant] goes to Masters to get his money and then doesn’t get it.
Instead, he gets suckered into an aggravated robbery. He transports Berlingeri to the staging
area. * * * [A]ll of this happens while he’s still on break from the card game. * * * [H]e
lingers in the area and returns to the west side of Cleveland by the longest route possible.
{¶ 61} “By the time he was back in the Cleveland area, the cell phone records indicate
that he has been gone at least from the card game a minimum of two and a half hours. All
this, on what was anticipated to be a one-hour break, and he claims he never got money that
night from Masters. He further testified that he did get money from Masters on the following
Monday. So his errand from a — in leaving a paying job to collect monies owed him from a
previous job was a total failure.”
{¶ 62} Accordingly, we cannot say that the court lost its way in convicting defendant
of these offenses as an accomplice. Defendant’s first and second assignments of error are
overruled and his convictions are affirmed.
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 issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR