The District Attorney’s Office says a Cambria man faces four years in state prison after being found guilty Friday of sexual battery by restraint for throwing himself upon and groping a female companion in 2017.
But the highly unusual case — the first in San Luis Obispo to be personally prosecuted by a sitting District Attorney in 23 years — had a similarly unusual ending.
Herbert George Connor, 73, had been facing up to seven years in prison, having been charged with three felony counts: assault with the intention of committing rape; and two counts of sexual battery by restraint, each for one alleged physical act by Connor.
After a nearly three-week trial, the jury of eight women and four men delivered their verdict after a little more than a day of deliberations.
Though jurors found Connor not guilty of the felony assault with intent to commit rape, they instead found him guilty of a lesser included offense of misdemeanor assault.
On one of the sexual battery by restraint counts, the jury again found Connor not guilty, but instead found him guilty of a lesser included offense of misdemeanor simple battery.
According to Assistant District Attorney Eric Dobroth, both of those lesser misdemeanor counts carry a maximum of six months in jail.
The jury found Connor guilty of the second sexual battery by restraint charge, which Dobroth said is a felony and carries a four-year maximum prison sentence.
But Ilan Funke-Bilu, Connor’s defense attorney, disputes that, telling The Tribune after the hearing that the charge is what’s known as a “wobbler,” which can be tried as either misdemeanor or felony. Even though the District Attorney’s Office charged Connor with a felony, the jury’s verdict forms did not specify the class of the charge, and the court must find Connor guilty of a misdemeanor, Funke-Bilu said.
“The verdict form is sacred,” he said.
In addition, Funke-Bilu said the jury’s two not guilty verdicts amounted to acquittals of the charges “in their entirety.”
“My client was acquitted of two counts of assault and sexual battery by restraint and found guilty of one misdemeanor sexual battery by restraint,” Funke-Bilu said, adding that the verdict was an “unfortunate result.”
“In my opinion, it should have been three acquittals,” he said.
District Attorney Dan Dow, who personally prosecuted the case, told The Tribune that Funke-Bilu is incorrect, stating that Connor was convicted in total of one felony and two misdemeanors and faces a maximum of four years.
The matter may be decided by a judge when Connor is scheduled to be sentenced March 20.
Dow said in a prepared statement following the verdicts that he is “extremely proud of the courage displayed by the victim in coming forward to report the abuse and in telling her story to the jury.”
“These verdicts send a strong message to our community that ‘no’ means ‘no’ when it comes to unwanted sexual contact,” the statement reads. “Unwanted sexual contact, known as sexual battery by restraint, is a serious criminal offense and will be pursued by this office whenever the evidence is sufficient to support prosecution.”
After the jury was dismissed, Deputy District Attorney Michael Frye (sitting in for Dow), argued to have Connor immediately remanded to County Jail until his sentencing, but that request was denied by Sueprior Court Judge Jacquelyn Duffy.
Duffy also lifted a rare gag order she had issued that prevented either party from discussing the case outside court.
The case against Connor appeared near the brink of dismissal several times.
It survived a defense attempt to have the state step in when Dow personally took over prosecution duties after a threat of bad publicity by the woman’s civil attorney before the June election, sparking allegations of conflict of interest.
The case also suffered a two-day setback after Dow made improper statements about his burden of proof to prospective jurors during jury selection.
Late last week, Duffy offered to hear a defense argument for mistrial after the Sheriff’s Office handed over — mid-trial — a DNA test report that possibly showed DNA from someone other than Connor on the alleged victim’s breast.
Connor was accused of assaulting a 67-year-old Cambria woman with whom he had an on-again, off-again friendship in April 2017. According to the woman, after helping her bring in groceries, Connor threw himself upon her and groped her, forcing her onto her bed before she somehow fell and injured her shoulder in a door jam.
“I thought that he was going to rape me,” the woman testified.
In a subsequently recorded phone call between the two that was played for jurors, Connor is heard apologizing for his unspecified behavior and pledging to leave the woman alone forever.
During the trial, the victim testified over several days, contradicting herself several times about the incident, and whether she had hired a civil attorney to seek monetary damages from Connor.
Connor testified in his own defense during the trial.