[Cite as State v. Martemus, 2018-Ohio-3277.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 106327




                                           STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                      RAYLAND MARTEMUS

                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-17-618173-A

        BEFORE: Stewart, J., E.A. Gallagher, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: August 16, 2018
ATTORNEY FOR APPELLANT

Mary Catherine Corrigan
4403 St. Clair Avenue
Cleveland, OH 44103


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Carson Strang
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Following a bench trial, the court found defendant-appellant Rayland Martemus

guilty of several crimes related to a home invasion that left a victim seriously injured. On

appeal, Martemus raises two assignments of error. He claims ineffective assistance of counsel

and challenges his convictions as being against the manifest weight of the evidence. We affirm.

       {¶2} At trial, the victim testified that one evening his dog began barking unusually. The

victim went to the common stairwell of the three-family home in which he lived to investigate

the reason for the dog’s barking. As he approached the landing just inside of the side door of the

house, he saw the door open and a man armed with a pistol enter. The assailant pointed his gun

at the victim and demanded his safe. The victim lunged at the man and a struggle ensued. A

second assailant, armed with a crowbar, entered the house and joined the fray. The victim

managed to throw the assailant with the gun down the stairs and into the basement before the

other man struck him about the head and body with the crowbar.                The victim, bleeding

profusely, was able to escape up the stairs towards his living space, yelling for help.

       {¶3} The victim’s sister-in-law, who lived above the victim, testified that she heard the

commotion and came downstairs. She witnessed the end of the altercation. She stated that she

saw the man with the gun on the landing, attempting to flee. He pointed his gun at her, giving

her a chance to see his face. She did not see the face of the assailant with the crowbar.
       {¶4} The sister-in-law ran upstairs to call the police but her phone was not working. By

the time she came back downstairs the assailants had fled. She ran across the street and called

police from a neighbor’s phone. When the police arrived at the house, they discovered a pair of

in-ear headphones, or “earbuds.” The earbuds were blood-stained and laying on the landing by

the side door where the struggle ensued. The victim testified that he had never seen the earbuds

before the altercation and that he uses hearing aids that prevent him from using those kind of

earbuds. The sister-in-law also testified that she had not seen the earbuds before and had been

on the landing previously that day.

A forensic analysis of the earbuds revealed DNA profiles consistent with both the victim and

Martemus. The analysis also revealed a minor profile that was insufficient for comparison.

       {¶5} The victim was not able to describe either assailant to the police and he did not

identify Martemus as a perpetrator during trial. The sister-in-law described the man with the

gun to police as being a light-skinned male with a thin mustache, wearing a gray-hooded

sweatshirt, baseball hat, and dark pants. At trial, she identified Martemus as that man.

       {¶6} Martemus was convicted of three counts of aggravated burglary, one count of

burglary, three counts of aggravated robbery, four counts of robbery, two counts of felonious

assault, and one count of having weapons while under disability. Each of his convictions, aside

from a robbery and his weapons while under disability convictions, contained notices of prior

conviction and repeat violent offender specifications. The court also convicted Martemus of

one- and three-year firearm specifications for two aggravated burglary counts, two aggravated

robbery counts, three robbery counts, one felonious assault count, and the burglary count. After

merger, Martemus’s total sentence was ten years in prison.

                               I. Ineffective Assistance of Counsel
          {¶7} Martemus argues that he suffered ineffective assistance of counsel because trial

counsel did not move to suppress the sister-in-law’s in-court identification. He evaluates the

in-court identification as if it were a “cold stand” identification,1 but regardless, his claim lacks

merit.

          {¶8} To prove ineffective assistance of counsel, a defendant is required to show (1)

counsel’s representation was deficient, falling “below an objective standard of reasonableness,”

and (2) a reasonable probability that absent this deficient performance the outcome would have

been different. Strickland v. Washington, 466 U.S. 668, 671, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).

          {¶9} During the sister-in-law’s direct examination, she identified Martemus as the

perpetrator with the gun. On cross-examination, when pressed about her identification, she

stated she “got a good look at him because he pointed [the gun] in [her] face.”

          {¶10} Counsel attempted to discredit the sister-in-law, challenging what she remembered

and her ability to remember it. He asked her about what the assailant was wearing — she

confirmed it was a gray-hooded sweatshirt, dark pants, and a cap. He inquired whether the hood

was up and if it obscured his face. He asked her too about what she remembered of the

assailant’s appearance — she confirmed he was a light-skinned male with a thin mustache.

          {¶11} Counsel also called into question the sister-in-law’s ability to observe the scene in

light of her testimony that the assailant was pointing a gun at her. Counsel asked if she was

focused on looking at the handgun pointed at her face and preoccupied with thoughts that she


          1
            Martemus incorrectly refers to the in-court identification as a “cold stand” identification. A “cold stand”
is a type of pretrial identification that occurs out of court. See, e.g., State v. Patton, 8th Dist. Cuyahoga No. 88119,
2007-Ohio-990, ¶ 9 (police apprehended defendant and immediately brought him to victim’s house where she
identified him as perpetrator). An in-court identification, on the other hand, is made during trial by a witness who is
under oath and subject to cross-examination.
might be shot to the detriment of her ability to see the assailant’s face. He asked her pointedly

whether her identification was based on her memory of that night, or the fact that Martemus was

the defendant at trial. After these challenges, the sister-in-law maintained that Martemus was

the assailant: “[t]hat’s the person I remember seeing in the hallway * * * [a]nd I remember his

face, and I remember the gun being pointed at my face.”

        {¶12} Contrary to Martemus’s assertion, this was not deficient performance. Counsel

clearly attempted to discredit the sister-in-law’s testimony. It was then up to the trial court to

determine whether the identification was credible.

        {¶13} Nevertheless, even assuming that counsel’s performance was deficient, Martemus

fails to establish the second aspect of an ineffective assistance of counsel claim: prejudice, the

absence of which would have likely led to a different outcome. Martemus asserts that had

counsel moved to suppress the identification, the court would have granted the motion, and

Martemus would have likely been acquitted. We reject these claims. The trial court clearly

indicated that it did not take issue with the sister-in-law’s identification.

        {¶14} Martemus challenged the identification in his Crim.R. 29 motion after the close of

the state’s case-in-chief and renewed the challenge after the close of his own case-in-chief. The

court rejected the argument both times.           Further, prior to trial Martemus moved for a

continuance so that the sister-in-law could be shown a photo array because she did not previously

identify him. The court denied the motion stating “[i]n every case witnesses come in and

identify alleged or accused people * * * this is going to be great cross-examination material for

you if they come in and identify [Martemus].” Counsel’s attempts to challenge the identification

were not deficient and Martemus fails to show prejudice. We overrule this assignment of error.

                                II. Manifest Weight of the Evidence
       {¶15} Martemus argues that his convictions are against the manifest weight of the

evidence because they rely solely on two pieces of evidence: the sister-in-law’s testimony

identifying him and the fact that his DNA was found on the earbuds at the crime scene. He

claims that the evidence, independently or together, fails to demonstrate his guilt. We disagree.

       {¶16} Challenge to the manifest weight of the evidence concerns “‘the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the issue rather than

the other.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting

Black’s Law Dictionary 1594 (6th Ed.1990). Assessing a challenge to the manifest weight of

the evidence requires the reviewing court to review the record, weigh the evidence and

reasonable inferences drawn from it, and consider witness credibility. Thompkins. The court

must determine whether, if in resolving conflicting evidence, the factfinder “clearly lost its way

and created such a manifest miscarriage of justice” that the court must reverse the conviction and

order a new trial. Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). In conducting such a review, we recognize that “the weight to be given to the

evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v.

DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).

       {¶17} In support of this assignment, Martemus attacks the credibility of the

sister-in-law’s identification. He challenges it as being unduly suggestive because Martemus

was the only person in court that she could have identified as the assailant. He also challenges

the identification as being unreliable in light of the fact that the victim, who was closer to the

assailants, could not identify Martemus, and that the sister-in-law’s description of the assailant as

having a mustache was inconsistent with Martemus’s claim that he has always worn a beard.
       {¶18} The court was aware that the sister-in-law had made no prior identification when

she testified that Martemus was the assailant. Moreover, she was cross-examined with regard to

the reliability of her identification. Regarding the victim’s inability to identify Martemus, the

court heard testimony that the victim had consumed alcohol and prescription pain medication

earlier that evening. He was also struck in the head with a crowbar and lost a significant amount

of blood. The trial court apparently found that it was not surprising that he was unable to

identify either assailant.   Finally, as to any potential conflict between the sister-in-law’s

statement to police that the assailant had a thin mustache and Martemus’s claim that he has

always worn a beard, the sister-in-law was examined and cross-examined extensively on this

point, and was adamant that Martemus was the assailant.

       {¶19} Martemus does not challenge the DNA evidence on the earbuds and he concedes

that he once owned the earbuds, but claims that he lost them at some point in time, and suggests

that the assailant or someone else who had access to the landing, found them. Martemus

supports this theory by noting that there was no other DNA evidence or latent fingerprints found

in the home that linked him to the crime. Martemus’s arguments do not create any conflict with

the state’s evidence, however.

       {¶20} This is not the “‘exceptional case in which the evidence weighs heavily’” against

conviction and requires us to grant Martemus a new trial. Thompkins, 78 Ohio St.3d at 387, 678

N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.             We overrule this

assignment of error.

       {¶21} Judgment affirmed.

       It is ordered that appellee recover of 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR
