[Cite as State v. Conley, 2013-Ohio-4137.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :   Hon. Sheila G. Farmer, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 2012CA00150
                                               :
SHANNON LYNN CONLEY                            :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2011CR1250



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            September 3, 2013




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

JOHN D. FERRERO, JR.                               EUGENE O’BYRNE
STARK CO. PROSECUTOR                               101 Central Plaza South
KATHLEEN O. TATARSKY                               Canton, OH 44702
110 Central Plz. S., Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00150                                                       2



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
Stark County, Case No. 2012CA00150                                                      3


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
Stark County, Case No. 2012CA00150                                                    4


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
Stark County, Case No. 2012CA00150                                                    5


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 the

woman in the backseat of the cruiser, but he did not want to get involved.

                                       The Investigation

      {¶14} Ptl. Tim Marks was dispatched to C.C.’s residence in reference to a

possible sexual assault. Upon his arrival, he found C.C. in her front yard with her

clothes in her hand, visibly upset. As she spoke with Marks, she seemed nervous; he

could tell she had been crying. C.C. told Marks what happened and described a spot

on her blouse where appellant ejaculated. Marks could see the wet spot. The clothing

was bagged as evidence.

      {¶15} Marks placed C.C. in his patrol car and drove her around the

neighborhood to attempt to determine where the crime occurred. She pointed out an

“alley” that was actually a long driveway between two apartment buildings. Directly in

the middle of the driveway lay a pair of women’s pink flip-flop sandals, with one sandal

broken. C.C. identified the sandals as hers. Police also recovered a blue lighter that

she thought might belong to appellant. C.C. told Marks about the woman who yelled

out the window, so police canvassed the neighborhood for witnesses.
Stark County, Case No. 2012CA00150                                                       6


       {¶16} C.C. provided a physical description of her assailant. She later was not

able to identify him from a photo line-up, however.

       {¶17} Detective Terry Monter investigated the assault by speaking to C.C. and

the other witnesses. He also showed the witnesses photo lineups, and Neighbor 2

identified appellant. Monter submitted C.C.’s clothes to the Canton-Stark County Crime

Lab for DNA analysis; the stain on her blouse tested positive for semen, and a positive

DNA match was made with appellant.

       {¶18} Appellant was arrested and brought in for an interview. He initially denied

any contact with C.C. on July 11, 2011, but when confronted with the DNA evidence,

claimed C.C. was a prostitute who “jacked him off.” He said she wiped her hand on the

front of her shirt afterward.

                                  Appellee’s Evidence at Trial

       {¶19} Appellee called C.C., neighbors, and police to establish the facts of the

attempted rape and kidnapping offenses. In addition to the facts related here, forensic

scientists from the crime lab testified that the semen stain was on the interior lower back

of C.C.’s blouse. No biological material was found elsewhere on the blouse. C.C.’s

leggings were soiled with dirt and contained fragments of dried plant material. The DNA

in the stain on C.C.’s blouse matched a DNA sample obtained from appellant.

                                     Appellant’s Testimony

       {¶20} Appellant testified on his own behalf and claimed C.C. offered to perform

a sexual act for $20. He denied taking his clothes off, stating he only lowered his

zipper, and testified C.C. never took her clothes off at all. He admitted to a criminal

record including felony convictions of arson, burglary, and terroristic threats. Appellant
Stark County, Case No. 2012CA00150                                                     7


stated that he and C.C. lived on the same street and he knew her from around the

neighborhood although he didn’t know her name. He claimed he has a problem with

prostitutes “stalking” him.

                              Indictment, Trial, Conviction, and Sentence

       {¶21} Appellant was charged by amended indictment with one count of

attempted rape pursuant to R.C. 2907.02(A)(2) and 2923.02(A), a felony of the second

degree, and one count of kidnapping pursuant to R.C. 2905.01(A)(4), a felony of the first

degree. Appellant entered pleas of not guilty and the case proceeded to trial by jury.

Appellant moved for judgments of acquittal at the close of appellee’s evidence and at

the close of all of the evidence; the motions were overruled. Appellant was found guilty

as charged. A sentencing hearing was held and the trial court found appellant to be a

repeat violent offender. The parties agreed that the offenses of attempted rape and

kidnapping merged for the purpose of sentencing, and appellee elected to sentence on

the offense of kidnapping. The trial court sentenced appellant to a prison term of ten

years on Count II, kidnapping, consecutive to a term of ten years on the repeat violent

offender specification.

       {¶22} Appellant now appeals from the judgment entries of conviction and

sentence.

       {¶23} Appellant raises three assignments of error:

                                 ASSIGNMENTS OF ERROR

       {¶24} “I. THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT GUILTY

OF THE REPEAT VIOLENT OFFENDER SPECIFICATION.”
Stark County, Case No. 2012CA00150                                                     8


       {¶25} “II. THE TRIAL COURT’S IMPOSITION OF THE MAXIMUM SENTENCE

WAS CLEARLY AN ABUSE OF DISCRETION.”

       {¶26} “III. THE JURY’S FINDING OF GUILTY WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT

EVIDENCE.”

                                        ANALYSIS

                                             I.

       {¶27} In his first assignment of error, appellant argues he was wrongfully

convicted of the repeat violent offender specification because his prior convictions do

not fall within the definition found in R.C. 2929.01(CC).

       {¶28} A “repeat violent offender” is defined in R.C. 2929.01(CC) as a person

about whom both of the following apply:

              (1) The person is being sentenced for committing or for complicity

              in committing any of the following:

              (a) Aggravated murder, murder, any felony of the first or second

              degree that is an offense of violence, or an attempt to commit any

              of these offenses if the attempt is a felony of the first or second

              degree;

              (b) An offense under an existing or former law of this state, another

              state, or the United States that is or was substantially equivalent to

              an offense described in division (CC)(1)(a) of this section.

              (2) The person previously was convicted of or pleaded guilty to an

              offense described in division (CC)(1)(a) or (b) of this section.
Stark County, Case No. 2012CA00150                                                        9


       {¶29} The amended indictment contained a specification that appellant was a

repeat violent offender pursuant to R.C. 2929.01(CC). On June 12, 2012, appellee filed

a Notice of Prior Conviction, attached to which is a certified copy of a judgment entry

dated February 12, 1992, reflecting appellant’s sentence and stating in pertinent part:

             * * * *. [Appellant] appeared in court, having previously entered a

             plea of guilty to the following (specify name of offense, degree, and

             section number): Count 1, Arson, a felony of the third degree, in

             violation of R.C. 2909.03(A)(1); Count 2, Burglary, an aggravated

             felony of the second degree, in violation of R.C. 2911.12; and

             Count 3, Theft, a felony of the fourth degree, in violation of R.C.

             2913.02.* * * *.



       {¶30} Appellant meets the first requirement for sentencing as a repeat violent

offender because he was sentenced in the case sub judice for a felony of the first

degree that is an offense of violence [kidnapping pursuant to R.C. 2905.01(A)(4)]. Both

of these offenses are contained within the definition of “offense of violence” found in

R.C. 2901.01(9)(a):

             “Offense of violence” means any of the following:

             A violation of section 2903.01, 2903.02, 2903.03, 2903.04,

             2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22,

             2905.01, 2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05,

             2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01,

             2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34,
Stark County, Case No. 2012CA00150                                                     10


              or 2923.161, of division (A)(1), (2), or (3) of section 2911.12, or of

              division (B)(1), (2), (3), or (4) of section 2919.22 of the Revised

              Code or felonious sexual penetration in violation of former section

              2907.12 of the Revised Code;

              ***.

       {¶31} Finally, appellant was properly found to be a repeat violent offender

pursuant to R.C. 2929.01(CC)(2) because of his previous conviction for burglary as “an

aggravated felony of the second degree.” While the certified copy of the judgment entry

submitted by appellee does not denote the subsection of appellant’s burglary conviction,

it is demonstrated to be a felony of the second degree, therefore a violation of R.C.

2911.12(A)(1) or R.C. 2911.12(A)(2) and thus an offense of violence pursuant to R.C.

2901.01(9)(a). Where no subsection is identified, a finder of fact may reasonably infer

the subsection, and find the defendant committed an offense of violence, by reasonable

implication based upon the degree of the prior conviction. State v. Craft, 181 Ohio

App.3d 150, 2009-Ohio-675, 908 N.E.2d 476 (12th Dist.), ¶ 37-39; State v. Daniel, 10th

Dist. Franklin Nos. 05AP-564 and 05AP-683, 2006-Ohio-4627, ¶ 57-60.

       {¶32} We therefore find the trial court did not err in finding appellant to be a

repeat violent offender and appellant’s first assignment of error is overruled.

                                                II.

       {¶33} In his second assignment of error, appellant argues the trial court erred in

imposing the maximum sentence. We disagree.

       {¶34} First, we note the parties agreed that Count I, attempted rape, merged

with Count II, kidnapping, for purposes of sentencing, and appellee elected to sentence
Stark County, Case No. 2012CA00150                                                      11


on Count II. Appellant argues the trial court abused its discretion in sentencing him to

maximum terms upon one count of kidnapping and the repeat violent offender

specification. Appellant acknowledges the terms of ten years each are within the

statutory range for these offenses but asserts the trial court failed to “properly consider

the statutory purposes and factors of statutory sentencing.”

       {¶35} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence. The first step is to “examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If the first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id. We have recognized that “[w]here the record lacks

sufficient data to justify the sentence, the court may well abuse its discretion by

imposing that sentence without a suitable explanation.” State v. Firouzmandi, 5th Dist.

Licking App.No.2006–CA–41, 2006–Ohio–5823, ¶ 52.

       {¶36} We first note that subsequent to the Ohio Supreme Court's Foster

decision, “[t]he decision to impose the maximum sentence is simply part of the trial

court's overall discretion in issuing a felony sentence and is no longer tied to mandatory

fact-finding provisions.” State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–Ohio–

1281, ¶ 14.

       {¶37} Appellant argues the trial court abused its discretion in imposing a

maximum sentence for one count of kidnapping asserting there is no evidence the

victim sustained any physical or psychological harm and there is no evidence appellant
Stark County, Case No. 2012CA00150                                                       12


used a weapon. We disagree with appellant’s characterization of the record; the victim

testified to the terror she experienced and disinterested witnesses testified to the fact

that she was screaming and visibly traumatized by her experience.            Moreover, we

decline to accept appellant’s argument that kidnapping a victim in broad daylight in view

of three witnesses should count favorably on his behalf in sentencing. We find no

abuse of discretion in the trial court’s imposition of a ten-year sentence for kidnapping.

       {¶38} Appellant further argues the trial court did not sufficiently explain its

decision in imposing a ten-year sentence for the repeat violent offender specification.

We have reviewed the record of the sentencing hearing and note the trial court

referenced the testimony at trial, appellant’s prior criminal history, and his purpose in

fashioning a sentence which would protect the public and serve as a deterrent to future

crime. We find the trial court did not abuse its discretion in sentencing appellant to a

ten-year term upon the repeat violent offender specification.

       {¶39} Appellant’s second assignment of error is overruled.

                                                III.

       {¶40} In his third assignment of error, appellant argues his convictions for

attempted rape and kidnapping are not supported by sufficient evidence and are against

the manifest weight of the evidence. We disagree.

       {¶41} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
Stark County, Case No. 2012CA00150                                                    13


the Ohio Supreme Court held, “An appellate court’s function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. The 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.”

      {¶42} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

      {¶43} Appellant was found guilty of one count of attempted rape pursuant to

R.C. 2907.02(A)(2) and R.C. 2923.02(A). To establish appellant’s guilt of this offense,

appellee was required to prove he purposely took a substantial step in a course of

conduct planned to culminate in sexual conduct with C.C., having purposely compelled

C.C. to submit by force or threat of force. State v. Woods, 48 Ohio St.2d 127, 132, 357

N.E.2d 1059 (1976); R.C. 2907.02(A)(2).         “Force” is defined as any violence,

compulsion, or constraint physically exerted by any means upon or against a person or
Stark County, Case No. 2012CA00150                                                      14


thing. R.C. 2901.01(A)(1). Appellant was also found guilty of one count of kidnapping

pursuant to R.C. 2905.01(A)(4), which states in pertinent part, “[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 engage in sexual activity, as

defined in section 2907.01 of the Revised Code, with the victim against the victim's will.”

       {¶44} Appellant argues his contact with C.C. was consensual, but the only

evidence in support of his argument is his own self-serving testimony at trial, which the

jury was free to accept or reject. The weight of the evidence and the credibility of the

witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227,

231, 2002-Ohio-2126, 767 N.E.2d 216.         Appellant’s testimony was contradicted by

C.C.’s account and also by the physical evidence. The semen stain on the interior

lower back of C.C.’s blouse corroborates her version of events and contradicts

appellant’s.

       {¶45} Moreover, this is the rare rape case in which disinterested witnesses

observed key portions of the encounter between appellant and C.C., corroborating

C.C.’s testimony that her contact with appellant was against her will.

       {¶46} Viewing the evidence and inferences reasonably drawn therefrom in the

light most favorable to appellee, we conclude any rational trier of fact could have found

all of the essential elements of attempted rape and kidnapping beyond a reasonable

doubt. The record is devoid of any evidence the jury lost its way in resolving conflicts in

the evidence and appellee’s evidence supports the guilty verdict of the trial court.

       {¶47} Accordingly, appellant’s third assignment of error is overruled.
Stark County, Case No. 2012CA00150                                             15




                                  CONCLUSION

      {¶48} Having overruled appellant’s three assignments of error, we affirm the

judgment of the Stark County Court of Common Pleas.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.



                                     HON. PATRICIA A. DELANEY




                                     HON. WILLIAM B. HOFFMAN



                                     HON. SHEILA G. FARMER
