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State v. Allen1/8/1999
The defendants, Jeffrey R. Allen and Jennings Michael Coen, appeal as of right their convictions of attempted rape by an Anderson County jury. Allen was sentenced to ten (10) years as a Range III, persistent offender. Coen was sentenced to four (4) years as a Range I, standard offender. On appeal, the appellants raise the following issues for review:
"(1) whether the proof adduced at trial was sufficient to sustain the attempted rape convictions;"
"(2) whether the defendants were denied exculpatory evidence;"
"(3) whether the trial court erred in denying a new trial based on newly discovered evidence;"
"(4) whether the trial court properly instructed the jury on the lesser offense of attempted rape;"
"(5) whether the trial court erred instructing the jury as to the release eligibility date for Allen;"
"(6) whether Allen was properly classified as a persistent offender; and"
"(7) whether facsimiles of certified judgments were properly admitted in Allen's sentencing hearing."
Upon an extensive review of the record, we REVERSE the judgment of the trial court and REMAND for a new trial.
I.
The victim lived in a duplex apartment. Her neighbor, Jerry Wilcox, invited co-workers from a local restaurant to his apartment for a party on August 23, 1994. One of the defendants, Jennings Michael "Mike" Coen, was a co-worker of Wilcox and attended the party with his friend Jeffrey Allen, the other defendant. The victim arrived at the party at approximately 1:00 a.m.
The party was noisy, and neighbors called the police several times to complain. After several visits by officers, the party ended. Everyone left the apartment except for Wilcox, the victim, and a friend of Wilcox's, Brian Fisher. Wilcox and Fisher decided to buy more beer. They left the victim alone in the apartment. As he was leaving, Wilcox noticed the defendants standing by Coen's car.
According to the victim, the defendants then re-entered the apartment and accosted the victim. They forced her into Wilcox's bedroom, and while Allen held her down, Coen removed her shorts and underwear. The victim informed the defendants that she was menstruating, and Coen responded by pulling out the victim's tampon and throwing it across the room. Allen placed his hand over the victim's mouth in order to quiet her cries for help. The victim testified she bit Allen's hand in an attempt to free herself. The victim further testified that both of the defendants attempted to force her to perform oral sex, and that both penetrated her vagina and anus with their fingers.
When Wilcox returned, he noticed the door to his bedroom was closed. Initially thinking the defendants and the victim were engaged in a voluntary sexual encounter, Wilcox did nothing. However, shortly thereafter, Wilcox heard the victim scream. He forced open the door to his bedroom and found Allen sitting on the floor, holding his hand over the victim's mouth. Coen, who had been blocking the door, stated to Wilcox, "We're going to teach the whore a lesson."
Wilcox retreated to the kitchen to enlist the aid of Fisher. Wilcox returned to the bedroom with Fisher, again having to force it open. Wilcox told the defendants to leave, which they did. On their way out, the defendants instructed Wilcox to remain quiet about the incident.
A neighbor had heard the earlier screaming and called the police. Shortly after the defendants left, police officers arrived at the apartment.
The medical evidence offered by the state established the presence of bruising on the victim's inner thigh. The bruising w
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