[Cite as State v. Jones, 2016-Ohio-5320.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103359



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                   MARTREL D. JONES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-592192-A

        BEFORE: Kilbane, P.J., McCormack, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                    August 11, 2016
ATTORNEY FOR APPELLANT

Thomas A. Rein
820 West Superior Avenue - Suite 800
Cleveland, Ohio 44113



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Daniel A. Cleary
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, Martrel Jones (“Jones”), appeals from his convictions

and sentence for aggravated burglary, aggravated robbery, felonious assault, and assault.

For the reasons set forth below, we affirm.

       {¶2} In January 2015, Jones and codefendant, Ameer D. Edmonds, Jr.

(“Edmonds”), were charged in a nine-count indictment resulting from a home invasion

and attack on W.S. and her father, G.S.1 Counts 1 and 2 charged Edmonds with the rape

of W.S. Count 3 charged Jones with the rape of W.S. Counts 4 and 5 charged them

both with aggravated burglary. Counts 6 and 7 charged both of them with aggravated

robbery. Counts 8 and 9 charged both of them with felonious assault.2

       {¶3} On June 8, 2015, Edmonds entered into a plea agreement with the state of

Ohio, in which he agreed to plead guilty to aggravated burglary and rape. In exchange,

the state dismissed the remaining counts and all of the firearm specifications against him.

As part of the plea agreement, Edmonds agreed to testify truthfully in court. That same

day, the charges against Jones proceeded to a jury trial. The following testimony was

presented at trial.

       {¶4} W.S. testified that on December 15, 2014, she lived with her father G.S. on

East 75th Street in Cleveland. That evening, she was in the kitchen preparing food when


       1As   of the date of this opinion, Edmonds has not filed an appeal.
       2Each   of Counts 1-9 included a one- and three- year firearm specification.
she heard a knock at the door. She went to the door and asked who was there. A voice

on the other side of the door said “your brother.” She knew it was not her brother because

it was approximately 1:00 a.m., so she went into her bedroom to look out the window and

see who was knocking at her door. She observed two men dressed in black. She

immediately knew something was wrong and attempted to call 911, but the men kicked

the front door in and entered the house. She then took her phone and threw it under a

piece of furniture.

       {¶5} Edmonds entered first, and Jones was behind him. Both Edmonds and

Jones were wearing hooded sweatshirts and gloves, and both had guns. W.S. recognized

Jones immediately because she met him approximately one month prior to the incident.

Jones supplied W.S. with $90 worth of marijuana about three weeks earlier and wanted

her to sell it. At the time he gave it to her, she did not pay him for it. Rather than sell it,

W.S. used it herself. Jones then wanted the $90 from W.S. He constantly brought the

issue up with her when they saw each other at Jones’s brother’s house and when he spoke

with her on the telephone. W.S. did not know Edmonds’s identity at first, but was

eventually able to identify him through social media.

       {¶6} W.S. testified that after the two men entered the house, Jones went into her

father’s bedroom and Edmonds took her into her room. She could hear Jones yelling in

the next room. At times, she could hear her father being thrown around his room.

While in her bedroom, Edmonds pointed his gun at her and demanded money. She told

him she did not have any money. Edmonds told her to lift the couch cushions and go
through all of her clothing to look for money. W.S. was afraid for her life and her

father’s life, so she offered sex in exchange for the money she owed Jones. She stated

that she only offered the sex out of fear, to save her and her father. Edmonds told her to

undress and bend over the arm of the couch. Edmonds then had sexual intercourse with

W.S. for approximately ten minutes when Jones came into the room.

       {¶7} Jones entered and told Edmonds to hurry up. In response, Edmonds told

Jones that he was not finished and Jones left the room. At this point, W.S. heard her

father in the kitchen being hit and thrown. Edmonds finished, and Jones reentered the

room. When Jones reentered the room, he began to threaten W.S., asking her about his

money. W.S. testified that she gave him $40 approximately a week earlier, but she

needed more time to get Jones the remaining $50. W.S. pleaded with him as he pressed

his elbow on her neck and held the gun at her face. Jones told her that he should just

shoot her.

       {¶8} W.S. offered to have sex with him to calm him down, but Jones declined.

Jones stated that she could perform oral sex on him instead. While she was performing

oral sex on Jones, Jones threatened W.S. and hit her. At one point, Edmonds entered the

room. Jones told him to leave and go watch G.S. Jones stopped after about 15 minutes,

and he and Edmonds left the house. W.S. estimated that they were in the house for about

40 minutes. After they left, she went to her sister’s house and called 911.

       {¶9} Cleveland Police Officer Michael Harper (“Officer Harper”) testified that

he responded to a call at East 75th Street in Cleveland for a break-in with a possible rape
and pistol whipping. When he arrived, he noticed that the door was kicked in and both

W.S. and G.S. were visibly shaken. He spoke with G.S., who had visible injuries to his

face, while his partner spoke with W.S.       Both G.S. and W.S. were transported to

MetroHealth Hospital. At the hospital, W.S. went through a sexual assault exam with a

Sexual Assault Nurse Examiner (“SANE”).

       {¶10} G.S. testified that on the night of the incident, he was awakened by someone

ruffling him. He was then hit in the head with a gun and kicked twice in the torso. His

assailant, later identified as Jones, dragged him through the doorway and dropped him to

the floor. Jones told G.S. that he was upset with him for ignoring his phone calls. At

that point G.S. recognized that his assailant was Jones, who was one of W.S.’s friends.

G.S. testified that Jones had been to their house before, and he had spoken to Jones on the

phone when he has called for W.S.

       {¶11} Thereafter, G.S. observed W.S.’s bedroom door open and another male,

later identified as Edmonds, exit the room. Edmonds was wearing gloves and holding a

gun. Edmonds then stayed with G.S. as Jones went into W.S.’s room. Edmonds asked

G.S. if he had any money. G.S. replied “no,” but removed some change from his pocket

and let it fall on the floor. Edmonds did not take the money. G.S. sat with Edmonds

until he went into W.S.’s room and got Jones. The two men then left the house. W.S.

exited the room and told G.S. that she was raped.

       {¶12} Edmonds testified for the state of Ohio. He explained that he had been

charged as a codefendant in this case and described his plea agreement with the state.
Edmonds further testified that he met Jones approximately two or three years prior to this

incident. On the night of the incident, he accompanied Jones as Jones was driving

around in his car. Jones asked Edmonds to come with him to East 75th Street. They

went to G.S.’s house.     While at the door, Edmonds heard Jones say, “this is your

brother.” The door was open and both men walked inside. Edmonds was not sure how

the door opened because he was behind Jones. When they entered the house, Jones

began asking for money. Edmonds testified that Jones started with G.S., asking him

“where’s the money at?” Edmonds thought that both people in the house owed Jones

money by what was being said to each of them. As he was asking for money, Jones had

a gun in his hand. Edmonds watched as Jones hit G.S. with the gun and kick him.

      {¶13} Edmonds stated that W.S. was pleading with them to stop because they did

not have any money. She then offered to perform oral sex to get them to stop. W.S.

preformed oral sex on Edmonds in a bedroom. Edmonds testified that he did not have

vaginal sex with W.S. He stopped W.S. before he ejaculated because he could tell that

W.S. did not want to perform oral sex, and she seemed afraid. He stated that when they

stopped, he left the room and Jones entered the room. W.S. then performed oral sex on

Jones. Edmonds was in the kitchen with G.S. as Jones was in the room with W.S. After

a few minutes, he went into the bedroom and got Jones. At that moment, Jones grabbed

W.S. and threatened to put her in the trunk of his car. Edmonds talked him out of that,

and then they left the home.
       {¶14} Hristina Lekova (“Lekova”), a Forensic DNA Analyst for the Cuyahoga

County Regional Forensic Science Laboratory, testified that she tested the contents of the

sexual assault kit collected by the SANE nurse. She found seminal fluid, but was unable

to make any scientific conclusions as to whose DNA was present, other than W.S.’s.

Lekova further testified that she could neither include or exclude Jones or Edmonds from

the DNA analysis.

       {¶15} At the conclusion of trial, the jury found Jones not guilty of Count 3 (rape),

guilty of Counts 4 and 5 (aggravated burglary), guilty of Counts 6 and 7 (aggravated

robbery), and guilty of Count 9 (felonious assault of G.S.). The jury found Jones not

guilty of felonious assault as charged in Count 8, but guilty of the lesser included offense

— assault.     The jury also found Jones guilty of each of the one-year firearm

specifications and not guilty of each of three-year firearm specifications.

       {¶16} At sentencing, the state conceded that Counts 4 and 5 (both aggravated

burglary) merge for purposes of sentencing and elected to proceed on Count 4. The court

also merged the firearm specification in Count 9 with Count 7. The court then sentenced

Jones to one year in prison on each of the firearm specifications in Counts 4, 6, and 7, to

be served prior and consecutive to the base charges, for a total of three years in prison.

The court ordered eight years in prison on each of Counts 4, 6, and 7, to be served

concurrently, for a total of eight years in prison. The court sentenced Jones to six months

in prison on Count 8 to be served concurrently to the other counts, for an aggregate

sentence of 11 years in prison.
      {¶17} Jones now appeals, raising the following five assignments of error for

review.

                                Assignment of Error One

      The state failed to present sufficient evidence to sustain a conviction against
      [Jones].

                                Assignment of Error Two

      [Jones’s] conviction is against the manifest weight of the evidence.

                               Assignment of Error Three

      The trial court committed reversible error when it failed to give the jury the
      accomplice testimony instruction.

                                Assignment of Error Four

      [Jones] was denied effective assistance of counsel as guaranteed by Section
      10, Article I, of the Ohio Constitution and the Sixth and Fourteenth
      Amendments.

                                Assignment of Error Five

      The trial court erred in violation of [Jones’s] statutory and constitutional
      rights by imposing a harsher sentence for [Jones] who exercised his right to
      a jury trial compared with a co-defendant who entered a plea.

                               Sufficiency of the Evidence

      {¶18} In the first assignment of error, Jones argues the state failed to establish that

he was guilty of the crimes for which he was convicted. Specifically, he challenges the

aggravated robbery conviction involving G.S.

      {¶19} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the
evidence as follows:

      Raising the question of whether the evidence is legally sufficient to support

      the jury verdict as a matter of law invokes a due process concern. State v.

      Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

          In reviewing such a challenge, “[t]he relevant inquiry is whether, after

      viewing the evidence in a light most favorable to the prosecution, any

      rational 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, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v.

      Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

      {¶20} We are mindful that, in considering the sufficiency of evidence, a certain

perspective is required. State v. Eley, 56 Ohio St.2d 169, 172, 383 N.E.2d 132 (1978).

“This court’s examination of the record at trial is limited to a determination of whether

there was evidence presented, ‘which, if believed, would convince the average mind of

the defendant’s guilt beyond a reasonable doubt.’” Id., quoting Atkins v. State, 115 Ohio

St. 542, 546, 155 N.E. 189 (1926). It is the minds of the jurors, rather than a reviewing

court, that must be convinced. State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356

(1982).

      {¶21} In the instant case, Jones was convicted of aggravated robbery in violation

of R.C. 2911.01(A)(1), which provides 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[.]”

       {¶22} Jones argues that there was no evidence that he ever demanded any money

from G.S. As a result, he contends that he cannot be convicted of aggravated robbery.

Jones’s argument, however, ignores Edmonds’s testimony that he heard Jones demand

money from G.S. and hit G.S. in the head with a gun. Jones asked G.S. “where’s the

money at?” When viewing this evidence in a light most favorable to the state, any

rational trier of fact could have found the essential elements of aggravated robbery proven

beyond a reasonable doubt.

       {¶23} Therefore, the first assignment of error is overruled.

                              Manifest Weight of the Evidence

       {¶24} In the second assignment of error, Jones claims that his aggravated robbery

conviction involving G.S. is against the manifest weight of the evidence. In contrast to a

sufficiency argument, a manifest weight challenge questions whether the state met its

burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598,

¶ 13, citing Thompkins, 78 Ohio St.3d at 390, 1997-Ohio-52, 678 N.E.2d 541. The Ohio

Supreme Court in State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, ¶ 25, stated:

       [T]he reviewing court asks whose evidence is more persuasive — the
       state’s or the defendants? * * * “When a court of appeals reverses a
       judgment of a trial court on the basis that the verdict is against the weight of
       the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
       with the factfinder’s resolution of the conflicting testimony.” [Thompkins
       at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
       L.Ed.2d 652.

       {¶25} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Martin.

       {¶26} We note that when considering a manifest weight challenge, the trier of fact

is in the best position to take into account inconsistencies, along with the witnesses’s

manner, demeanor, gestures, and voice inflections, in determining whether the proffered

testimony is credible. State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶

26; see also State v. Lilliard, 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385,

2013-Ohio-4906, ¶ 93 (in considering the credibility of witnesses on a manifest weight

challenge, an appellate court is “guided by the presumption” that the jury, or the trial

court in a bench trial, is “‘best able to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in weighing the credibility of

the proffered testimony.’” Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984)). Therefore, we afford great deference to the factfinder’s

determination of witness credibility.      State v. Ball, 8th Dist. Cuyahoga No. 99990,

2014-Ohio-1060, ¶ 36.
       {¶27} Here, Jones claims the “jury lost its way” because the jury wanted to convict

someone besides Edmonds. He further claims there is no credible evidence that Jones

committed aggravated robbery as it relates to G.S.

       {¶28} While Edmonds may have had an ulterior motive when testifying, the jury

observed his appearance and demeanor, heard the testimony about the plea deal he

received, and found his testimony to be credible. Moreover, G.S. and W.S. knew Jones

and recognized him as the individual who committed the crimes. Thus, we find that the

conviction is not against the manifest weight of the evidence. We cannot say that the

jury lost its way and created a manifest injustice in convicting Jones.

       {¶29} Accordingly, the second assignment of error is overruled.

                                      Jury Instructions

       {¶30} In the third assignment of error, Jones argues the trial court failed to instruct

the jury on accomplice liability. A review of the record, however, reveals that the trial

court did, in fact, instruct the jury on accomplice testimony. The trial court stated:

       Now, I have two additional short matters and you’re going to be done
       hearing my voice for a little bit. First, the testimony of an accomplice.
       Ameer Edmonds testified claiming to be the accomplice of the defendant,
       Martrel D. Jones. The testimony of an accomplice does not become
       inadmissible because of his complicity, moral turpitude or self-interest, but
       the admitted or claimed complicity of a witness may affect his credibility
       and make his testimony subject to grave suspicion and require that it be
       weighed with great caution.

       It is for you, as jurors, in light of all the facts presented to you from the
       witness stand to evaluate such testimony and to determine its quality and
       worth or its lack of quality and worth. This is an instruction Ohio law
       gives any time a witness testifies claiming to be an accomplice.
       {¶31} The trial court’s instruction was a verbatim recitation of the requirements of

R.C. 2929.03(D) as it pertains to accomplice testimony. Moreover, at appellate oral

argument, appellant’s counsel acknowledged that the trial court gave the proper

instruction on accomplice testimony.

       {¶32} Accordingly, Jones’s argument is unpersuasive, and the third assignment of

error is overruled.

                            Ineffective Assistance of Counsel

       {¶33} In the fourth assignment of error, Jones argues defense counsel was

ineffective for failing to request a jury instruction on accomplice testimony. However, as

discussed in the previous assignment of error, the trial court did instruct the jury as

required by R.C. 2929.03(D).

       {¶34} Therefore, we find Jones’s argument unpersuasive, and overrule the fourth

assignment of error.

                                        Sentence

       {¶35} In the fifth assignment of error, Jones argues the trial court erred when it

sentenced him to a greater sentence (11 years in prison) for exercising his right to trial

when compared with Edmonds’s five-year sentence after entering into a plea.

       {¶36} In State v. Marcum, Slip Opinion No. 2016-Ohio-1002, the Ohio Supreme

Court, in recently “address[ing] the standard of review that appellate courts must apply

when reviewing felony sentences,” stated that when “[a]pplying the plain language of

R.C. 2953.08(G)(2), * * * an appellate court may vacate or modify a felony sentence on
appeal only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.” Id. at ¶ 1.

       {¶37} Here, Jones’s 11-year sentence is within the statutory range for the offenses

he committed. Moreover, while R.C. 2929.11(B) requires consistency in sentencing, this

“consistency” does not require that codefendants receive equal sentences. State v. Pruitt,

8th Dist. Cuyahoga No. 98080, 2012-Ohio-5418, ¶ 26, citing State v. Nelson, 11th Dist.

Lake No. 2008-L-072, 2008-Ohio-5535. Instead, an appellate court must examine the

record to determine “whether the sentence is so unusual as to be outside the mainstream

of local judicial practice. Although the offense may be similar, distinguishing factors

may justify dissimilar treatment.” State v. Dawson, 8th Dist. Cuyahoga No. 86417,

2006-Ohio-1083, ¶ 31, quoting State v. Turner, 8th Dist. Cuyahoga No. 81449,

2003-Ohio-4933.

       {¶38} In reviewing the record, we note that Jones has not provided any evidence

that his sentence was a result of him invoking his constitutional right to a jury trial.

Jones was convicted of two counts of aggravated burglary, two counts of aggravated

robbery, felonious assault, and assault.    He was also convicted of several one-year

firearm specifications.   Whereas, Edmonds pled guilty to one count of aggravated

burglary and one count of rape.        The evidence demonstrated that Jones was the

mastermind behind the home invasion and was sentenced accordingly.

       {¶39} Therefore, the fifth assignment of error is overruled.
      {¶40} Judgment is 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

TIM McCORMACK, J., and
ANITA LASTER MAYS, J., CONCUR
