[Cite as State v. Catney, 2017-Ohio-90.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104141




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    JARON A. CATNEY
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-594446-A

        BEFORE: E.A. Gallagher, J., Keough, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: January 12, 2017
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 670218
Northfield, Ohio 44067


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Marcus A. Henry
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Jaron Catney appeals his convictions for attempted rape,

kidnapping, gross sexual imposition, aggravated burglary, robbery, attempted burglary

and menacing by stalking in the Cuyahoga County Court of Common Pleas. For the

following reasons, we affirm.

       Factual and Procedural Background

       {¶2} Catney was charged by the Cuyahoga County Grand Jury with attempted

rape, kidnapping with a sexually violent predator specification, two counts of gross sexual

imposition, two counts of aggravated burglary, robbery, attempted burglary and menacing

by stalking.

       {¶3} The case proceeded to a bench trial where A.B. testified that an intruder

entered her home on Wyandotte Avenue in Lakewood, Ohio on July 22, 2013, between

the hours of 1:30 and 3:30 a.m. A.B. described the intruder as an African American

male with long hair in dread locks or braids. He was roughly six feet tall with a deep

voice and a strong odor of alcohol on his breath.     A.B. had never seen the man before

and, because the lighting was dark, she was unable to see his face.

       {¶4} The intruder entered her bedroom where she was sleeping with her 11 year

old daughter, T.J. When A.B. asked the intruder who he was and what he was doing in

her home, he replied, “Shut up. Just roll over.”    Fearful for her daughter’s safety, A.B.

complied.      The man climbed on top of her, pinned her arms above her head and

unsuccessfully attempted to penetrate her anus with his penis.
        {¶5} During this interaction, T.J. snuck out of the bedroom in an attempt to seek

help.   The intruder forced A.B. to call for T.J. to return by threatening to hurt both of

them if she refused to comply.     The intruder also asked A.B. if she had money in the

home and told her that his brother was going to take her microwave and possibly her

television.   Neither were actually taken and A.B. did not see a second intruder.

        {¶6} When the intruder was unable to penetrate her anally, he stood at the side of

the bed and forced her to masturbate his penis under threat of harm.        When he was

finished he said “Okay. I’m done” and left the home.

        {¶7} A.B. contacted the Lakewood police and provided them with the

aforementioned description of the suspect.     A.B. was unable to provide police with a

description of the man’s facial features.   The police attempted to collect a DNA swab

from A.B.’s arm to identify the intruder but the sample was contaminated by the

collecting officer. The point of entry was attributed to A.B.’s unlocked front door.

        {¶8} On October 26, 2014, A.B. was asleep with her daughter in her daughter’s

room when she was awakened by the sound of the floor creaking in her dining room.

She observed an intruder pass through the dining room doorway and enter her bedroom.

Seeking help, she used her cellular phone to call her mother. Finding A.B.’s bedroom

unoccupied, the intruder entered T.J.’s room and asked A.B. if she was awake.          A.B.

believed the intruder to be the same man from the July 2013 incident. When A.B.

confronted him as to why he was in her home again, he replied, “Just roll over and lets get

this over with. You know what to do.” A.B. pushed the man away with her right hand
while holding her cell phone with her left hand.   The intruder attempted to grab the cell

phone away from her and they struggled for five to ten minutes before he left.

      {¶9} A.B. described the intruder as having the same voice as the intruder from the

July 2013 incident. He also had the same hair length and style as the prior intruder and

the same strong smell of alcohol on his breath. A.B. testified at trial that the lighting

during the incident on October 26, 2014, provided her a view of the intruder’s face and

she identified Catney as the intruder.    However, a 911 recording from the incident

revealed that A.B. reported she could not see the intruder’s actual face because it was

“blackened out.”

      {¶10}    Lakewood police identified an open dining room window on the south

side of A.B.’s home as the intruder’s point of entry. A garbage can had been turned

upside down beneath the window that provided the intruder access.     Police swabbed the

window for DNA and found a match to Catney’s DNA on the storm window and window

screen.

      {¶11} Before the DNA testing was complete, a third incident occurred on

December 23, 2014.     A.B. returned to her home to discover the storm windows in her

front window and south dining room window pushed up and tampered with. She had

not given anyone permission to tamper with her storm windows. A.B. reported the

incident to Lakewood police who were unable to obtain fingerprints from the windows.

However, a neighbor, Craig Ziganti, informed the investigating officer that on a prior

night he had observed a black male with long hair attempting to enter A.B.’s home.    The
male circled A.B.’s home, knocking on windows and tried to open the door. The male

went out of Ziganti’s view on the south side of the home that was the same side featuring

the dining room windows that had been identified as the intruder’s point of entry on

October 26, 2014.

       {¶12} A.B. met with Lakewood police detective Raymond Fuerst, Jr. in March

2015 after the results of the DNA testing from the October 26, 2014, incident were

known. Fuerst showed A.B. two photos of Catney— one from the Burea of Motor

Vehicles and another taken at the Cuyahoga County jail. Fuerst testified that his purpose

for showing the photos to A.B. was not to obtain an identification but to learn whether

Catney had any reason to be touching the windows of A.B.’s home where his DNA was

recovered.   A.B. reacted to the photos by crying and identifying Catney as the intruder.

This identification evidence was admitted at trial over the objection of Catney.

       {¶13} The trial court found Catney guilty on all counts.

       {¶14} The case proceeded to a bifurcated trial on the sexually violent predator

specifications attached to the attempted rape and kidnapping counts.        The following

evidence was offered.

       {¶15} P.T. testified that in March or May 2013 she was stalked by Catney while

she lived on West 98th Street in Cleveland. Catney would come to her home three to four

times a week, knock on her windows, pound on her front door, try to push past her air

conditioner to enter her room and masturbating outside. At one point he spoke to P.T.

through her window and stated, “I’m not trying to hurt you, I just want some of your
sweet [buttocks].”     Catney would always disappear after P.T. called the police.

Frustrated that police were not taking her repeated complaints seriously, P.T. installed a

security camera and captured footage of Catney’s activity on film.        Security footage

depicting Catney repeatedly appearing outside P.T.’s home and attempting to peer inside

her window was played at trial.

       {¶16} Catney was identified based on the security footage, arrested and convicted

of menacing by stalking and voyeurism. Leslie Svoboda, Catney’s probation officer,

testified that he was at the Community Based Correctional Facility in Bowling Green,

Ohio from March 27, 2014, until August 29, 2014. Upon release he was ordered to

participate in sex offender treatment programs from October 22, 2014, through January

28, 2015. During this time, the October 26, 2014 incident at A.B.’s home occurred.

       {¶17} The trial court found Catney to be a sexually violent predator.

       {¶18} At sentencing, the trial court merged Catney’s attempted rape and one of his

gross sexual imposition counts into the kidnapping count.         The court also merged

Catney’s menacing by stalking count into his aggravated burglary and attempted burglary

counts. The trial court imposed prison terms of 11 years to life on the kidnapping

charge, 18 months on the remaining gross sexual imposition charge, eight years on each

count of aggravated burglary, three years on the robbery count and three years on the

attempted burglary count.   All counts were ordered to be served concurrently.   The trial

court also found Catney to be a tier 3 sex offender.

       Law and Analysis
       I.   The Trial Court’s Denial of Catney’s Motion to Suppress the
       Identification Testimony was Harmless

       {¶19} In Catney’s first assignment of error he argues that the trial court erred in

denying his motion to suppress the identification testimony due to the unduly suggestive

and unreliable pretrial and in-court identifications.   Catney argues that A.B.’s pretrial

identification was tainted by Detective Fuerst’s unnecessarily suggestive photograph

procedure that failed to conform to R.C. 2933.83, which governs the administration of

photo lineups.

       {¶20} We find Catney’s argument to be moot.              Even accepting Catney’s

proposition that the trial court erred by denying his motion to suppress the identification

testimony, any error was harmless as a matter of law because the trial court specifically

explained that it did not find A.B.’s identification testimony to be credible. The trial

court noted that A.B. had admitted that the intruder’s face was blacked out and she could

not provide a description of his facial features.

       {¶21} Instead, the trial court based its conclusion that Catney was the intruder in

this case on other evidence:

       So let’s look at everything else. What is the strongest evidence for the State

       is the circumstance of each intrusion was middle of the night, in a bedroom,

       with the intruder searching for the person or persons they’re after. It was

       telling to me that on the second intrusion A.B. said that the intruder first

       went to her bedroom, a different bedroom, and then doubled back as if

       remembering where he ought to be able to find her. It is telling that the
intruder used, according to A.B., very similar language each time about

what he wanted her to do, and getting things over with, et cetera. It is very

telling that the victim recognized the hair characteristics and a deep voice

that the intruder had.

So there was a lot of evidence to help the Court conclude that the intruder

on these first two occasions, July 13, October 14, is the same person.

And then we come to the DNA evidence that puts Mr. Catney’s DNA on the

screen window and the storm— the screen of a window and a storm

window in October of 2014 and there is just no evidence that explains what

his DNA would be doing there. And it is interesting to me that this is

exactly like a rape case in the sense that we have the unexplained presence

of some person’s DNA inside somebody’s vagina. It’s the same thing here.

The difference, of course, is that this is a storm window exposed to the

outside world as opposed to a vagina. But we did have evidence that says,

DNA is not going to last very long on exterior surfaces subject to moisture,

subject to aging, and sunlight, and so forth outside. I do not agree with Mr.

DeFranco that the State had the obligation to try to exclude Mr. Catney as a

person who was known to the homeowner of this property * * *, or to

A.B.’s mother, and so forth and so on. The State doesn’t have the burden to

prove the negative.

So it is telling to the Court that there is— there was no evidence presented
by anyone that explains how Mr. Catney’s DNA could be on these
      windows. Now, we do not have any evidence of how the intruder gained
      entrance to the home in July of 2013. We have ample evidence that a
      window was used in October of 2014. We have, of course, the picture of
      that, we have the telltale garbage can turned upside-down, and we have the
      DNA. So at that point the Court is very comfortable concluding that it’s
      been proven beyond a reasonable doubt that Mr. Catney is the intruder in
      both the July and -- ‘13 and the October ‘14 event.

      {¶22} The trial court further concluded that Catney was the perpetrator of the

December 23, 2014 offenses based on the description provided by Mr. Ziganti and the

similar nature of the conduct observed to the conduct in the October 26, 2014, incident.

      {¶23} An error in the admission of evidence is harmless when there is no

reasonable possibility that the testimony contributed to the accused’s conviction. State

v. Lytle, 48 Ohio St. 2d 391, 358 N.E.2d 623 (1976), paragraph three of the syllabus.

“Where constitutional error in the admission of evidence is extant, such error is harmless

beyond a reasonable doubt if the remaining evidence, standing alone, constitutes

overwhelming proof of defendant’s guilt.” State v. Williams, 6 Ohio St.3d 281, 452

N.E.2d 1323 (1983), paragraph six of the syllabus.

      {¶24} Because the trial court did not rely on the challenged testimony but instead

based its identification conclusion on wholly unrelated evidence, we find any error in the

admission of said testimony to be harmless.

      {¶25} Catney’s first assignment of error is overruled.

      II. Sufficiency of the Evidence

      {¶26} In Catney’s second assignment of error he argues that the evidence was

insufficient as a matter of law to support a finding beyond a reasonable doubt that he was
guilty of robbery, attempted burglary and the sexually violent predator specifications

attached to the attempted rape and kidnapping counts.

       {¶27} This court has said that, in evaluating a sufficiency of the evidence

argument, courts are to assess not whether the state’s evidence is to be believed but

whether, if believed, the evidence against a defendant would support a conviction. State v.

Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, ¶ 13, citing State v. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry then 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. Id.

       A. Robbery

       {¶28} Catney argues that the state failed to offer sufficient evidence of an

attempted theft offense to support his conviction for robbery.          Pursuant to R.C.

2911.02(C)(2), a violation of any of the theft statutes enumerated in R.C. 2913.01(K) can

serve as the underlying “theft offense” to a charge of robbery. Here, the applicable theft

statute is R.C. 2913.02(A), which provides:

       No person, with purpose to deprive the owner of property or services, shall

       knowingly obtain or exert control over either the property or services in any

       of the following ways:

       (1) Without the consent of the owner or person authorized to give consent;

R.C. 2913.02(A).
      {¶29} The intent required to commit a theft offense “may be inferred from the

circumstances surrounding the crime.” State v. Fasino, 8th Dist. Cuyahoga No. 101788,

2015-Ohio-2265, ¶ 15, quoting State v. Herring, 94 Ohio St.3d 246, 266, 2002-Ohio-796,

762 N.E.2d 940; State v. McGowan, 8th Dist. Cuyahoga No. 96608, 2011-Ohio-6166, ¶

36. “Because intent dwells in the mind of the accused,” Fasino at ¶ 15, citing State v.

Treesh, 90 Ohio St.3d 460, 484-485, 739 N.E.2d 749 (2001), it is “not susceptible of

objective proof” and must be “gathered” and inferred from the act itself, the manner in

which the act is done, the means used and all of the other surrounding facts and

circumstances. See, e.g., State v. Garner, 74 Ohio St.3d 49, 60, 656 N.E.2d 623 (1995);

State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293 (1990).

      {¶30} A.B. testified that during the October 26, 2014 incident she and Catney

engaged in a five to ten minute struggle wherein Catney attempted to gain possession of

her phone.   We conclude the state offered sufficient evidence of an attempted theft

offense to support Catney’s conviction for robbery.

      B. Attempted Burglary

      {¶31} Catney next argues that the state failed to present sufficient evidence to

support his conviction for attempted burglary relating to the December 23, 2014 incident.

Catney’s challenge to this conviction is limited to the element of identity. Because he

does not contend that the state failed to establish any of the other elements of the crime

for which he was convicted, we limit our analysis to whether the evidence was sufficient

to establish, beyond a reasonable doubt, that Catney was the individual responsible for
tampering with A.B.’s windows and door and attempting to enter her home on December

23, 2014.

      {¶32} We find no merit to Catney’s argument. It is true that the state was unable

to provide DNA or fingerprint evidence linking Catney to the December 23, 2014

offense. However the state introduced the eyewitness testimony of Mr. Ziganti who

observed a male matching Catney’s description attempting entry of A.B.’s home and

tampering with her windows and front door in a manner consistent with the prior

incidents of July 22, 2013, and October 26, 2014. In fact, the same south-facing window

identified as the point of entry for the October 26, 2014 incident was tampered with on

December 23, 2014. Coupled with the DNA evidence physically linking Catney to the

window intrusion of the home on October 26, 2014, we find that the state offered

sufficient evidence identifying Catney as committing the attempted burglary on December

23, 2014.

      C. Sexually Violent Predator Specifications

      {¶33} Finally, Catney argues that the state failed to offer sufficient evidence to

support his conviction under the sexually violent predator specifications attendant to the

attempted rape and kidnapping counts.

      {¶34} If an offender is charged with a violent sex offense, the indictment may

contain a specification that the offender is a sexually violent predator. See R.C.

2941.148(A). Under R.C. 2971.01(H), a “sexually violent predator” means a person who

“commits a sexually violent offense and is likely to engage in the future in one or more
sexually violent offenses.”       Catney argues that the state failed to present sufficient

evidence that he is likely to engage in further sexually violent offenses in the future.

R.C. 2971.01(H)(2) provides a nonexclusive list of factors to be considered as evidence

tending to indicate that there is a likelihood that an individual will engage in sexually

violent offenses in the future:

       (a)   The person has been convicted two or more times, in separate criminal

       actions, of a sexually oriented offense or a child-victim oriented offense.

       For purposes of this division, convictions that result from or are connected

       with the same act or result from offenses committed at the same time are

       one conviction, and a conviction set aside pursuant to law is not a

       conviction.

       ***

       (f)   Any other relevant evidence.

       {¶35} The state correctly argues, and Catney concedes, sufficient evidence was

presented that Catney had previously been convicted of a sexually oriented offense,

to-wit, voyeurism, in a separate criminal action. See R.C. 2950.01(A). Coupled with the

sexually oriented offenses of attempted rape and kidnapping with a sexual motivation in

this case, the state presented sufficient evidence to establish the factor under R.C.

2971.01(H)(2)(a) above.

       {¶36} Furthermore, the state presents a compelling argument under the “other

relevant evidence” factor of R.C. 2971.01(H)(2)(f).      Catney committed the October 26,
2014 and December 23, 2014 offenses while participating in a sex offender treatment

program stemming from his prior convictions.

       {¶37} Under these facts we find that the state presented sufficient evidence that

Catney is likely to engage in further sexually violent offenses in the future.

       {¶38} Catney’s second assignment of error is overruled.

       III. Manifest Weight

       {¶39} In his final assignment of error, Catney argues that all of the convictions in

this case were against the manifest weight of the evidence.

       {¶40} A manifest weight challenge attacks the credibility of the evidence

presented and questions whether the state met its burden of persuasion at trial. State v.

Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v.

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga

No. 92266, 2009-Ohio-3598, ¶ 13. When considering an appellant’s claim that a

conviction is against the manifest weight of the evidence, the court of appeals sits as a

“thirteenth juror” and may disagree        with the factfinder’s resolution of conflicting

testimony. Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211,

72 L.Ed.2d 652 (1982). The reviewing court must examine the entire record, weigh the

evidence and all reasonable inferences, consider the witnesses’ credibility, and determine

whether, in resolving conflicts in the evidence, the trier of fact 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, citing State v. Martin, 20 Ohio App.3d 172, 485
N.E.2d 717 (1st Dist.1983). In conducting such a review, this court remains mindful that

the credibility of witnesses and the weight of the evidence are matters primarily for the

trier of fact to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraphs one and two of the syllabus. Reversal on manifest weight grounds is reserved

for the “exceptional case in which the evidence weighs heavily against the conviction.”

Thompkins at 387, quoting Martin, supra.

        {¶41} Catney reiterates the arguments addressed in the second assignment of error

and again maintains that the trial court lost its way in deciding the issue of identity in this

case.   For the same reasons addressed in the second assignment of error above and

detailed in the trial court’s factual findings regarding identity, we cannot say this is the

exceptional case mandating reversal.

        {¶42} Catney’s third assignment of error is overruled.

        {¶43} The judgment of the trial court 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 convictions 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.
___________________________________
EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
MARY J. BOYLE, J., CONCUR
