Appeal from the Stark County Court of Common Pleas, Case No. 2011CR1250.
For Plaintiff-Appellee: JOHN D. FERRERO, JR. STARK CO. PROSECUTOR KATHLEEN O. TATARSKY.
For Defendant-Appellant: EUGENE O’BYRNE.
Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.
(¶1} Appellant Shannon Lynn Conley appeals from the July 24, 2012 judgment entries of the Stark County Court of Common Pleas convicting him upon one count of attempted rape and one count of kidnapping and sentencing him to an aggregate prison term of 20 years. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
The Assault from C.C.'s Perspective
(¶2} C.C. is a 22-year-old female who did not graduate from high school and who described herself as requiring special education classes. On July 11, 2011, around 2:00 p.m., C.C. was on her way home on foot from Goodwill parenting classes held in the city of Canton at the corner of 9th Street and McKinley Avenue S.W.
(¶3} As C.C. walked in the area of the 800 block of 5th Street N.W., Canton, she noticed appellant across the street, a man whom she did not know. Appellant said "hi" to her and she said "hi" back, "to be polite." C.C. kept walking and appellant started walking in the same direction with her; he asked her where she was coming from and she told him. C.C. felt uncomfortable because she described appellant as "acting funny, " sticking his hands in and out of his pockets. At one point, appellant stopped to speak to someone on his cell phone and C.C. kept walking. Appellant then said, "Come here, " and she said, "No, I'm going home." C.C. told police and later testified appellant then grabbed her from behind, picked her up, and carried her into an area she described as an alley near an apartment building.
(¶4} C.C. said she tried to get away from appellant but she was wearing flip-flop sandals and a sandal broke during the struggle. C.C. remembered a tree stump and a shed near the alley where appellant brought her. Appellant told her to pull down her pants. C.C. kept telling him, "Stop, don't kill me, I have kids." Appellant pulled her pants down and told C.C. to be quiet or he would stab her.
(¶5} A woman stuck her head out of the apartment building and said "Stop that or I'm going to call the police." Appellant led C.C. to the other side of the apartment building, walking right behind her and telling her that he would stab her if she wasn't quiet. On the other side of the apartments, appellant told C.C. to get down, got on top of her, and pulled down her pants. Appellant attempted to penetrate C.C. but was not able to. He put his hands over her mouth and she pushed them away. He ejaculated onto her back; she could feel a wet spot on her blouse.
(¶6} Afterward, appellant pulled up his pants and ran away. C.C. got up and ran home, barefoot, upset, and crying. She didn't know what to do, so she called her mother, who told her to call the police. An officer came to her house and C.C. told him what happened. She turned over the clothing and underwear she had been wearing, and rode with officers to show them where the assault occurred.
The Neighbors' Perspectives
(¶7} This assault occurred in broad daylight, in view of an apartment building and homes. A number of people saw portions of the interaction between C.C. and appellant and later spoke to police.
(¶8} Neighbor 1 lives in an apartment in the 800 block of 5th Street N.W., Canton. He was in his kitchen fixing dinner when he heard a woman yell outside. He sat down to eat, and heard the woman yell again. This time, Neighbor 1 went to his window and looked out to see a man standing over a woman bent over the stump of a tree; both parties had their pants down around their ankles. Neighbor 1 could not see the parties' faces but described the male as black, "bigger, " bald, and wearing blue shorts. The female was white and "smaller." Neighbor 1 heard the woman yell and say she wasn't going to run anymore; he thought she appeared to be crying.
(¶9} Neighbor 1 testified at trial he believed he was witnessing a rape. He ran outside and met another neighbor; they both looked around but the man and woman were gone. Neighbor 1 did not call the police.
(¶10} Neighbor 2 was inside her home when she heard what she thought was a child screaming outside. She eventually got up to look outside, and saw a black male and a white female; the female had her pants down and the male was standing behind her. Neighbor 2 yelled out the window, "You all better get out of here before I call the cops." She watched the female walk away with her pants still down; the male walked behind her. Neighbor 2 saw the male's face. She saw the pair go into the alley behind her house and went outside to look. She saw a pair of women's flip-flop sandals in the alley.
(¶11} Neighbor 2 did not call the police but spoke with them later when they canvassed the neighborhood. She gave a statement and recognized the female in the back of the patrol car as the one she saw earlier. Neighbor 2 viewed a photo lineup about a week after the incident and identified appellant as the male she observed. She identified appellant at trial as the man she observed on July 11, 2011.
(¶12} Neighbor 3 was sitting in a parked car outside the apartment building, waiting for the rain to stop and talking to his sister. He noticed a man come around the corner with a girl, holding her from behind, pushing her along up the driveway of the apartment building. Neighbor 3 thought the pair must be boyfriend and girlfriend because the man had one hand on the woman's stomach and the other around her neck. The pair went up the driveway and out of Neighbor 3's sight.
(¶13} Neighbor 3 next saw the man running and pulling his pants up. The woman came back around the front of the building, too. Neighbor 3 testified the woman "looked him dead in the face, terrified, " and took off running, barefoot, almost getting struck by a car. Neighbor 3 was outside later when the police came by with ...