State v. Franco

[Cite as State v. Franco, 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 112669
                 v.                                :

ALEX JOEL FRANCO,                                  :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED IN PART, MODIFIED IN PART,
                           AND REMANDED
                 RELEASED AND JOURNALIZED: December 21, 2023


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-22-668857-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kerry A. Sowul and Glen Ramdhan,
                 Assistant Prosecuting Attorney, for appellee.

                 Susan J. Moran, for appellant.


KATHLEEN ANN KEOUGH, J.:

                   Defendant-appellant, Alex Joel Franco, appeals his convictions for

gross sexual imposition, abduction, domestic violence, and endangering children.
Finding some merit to the appeal, this court affirms in part, modifies in part, and

remands the matter to the trial court for resentencing.

              In March 2022, Franco was named in an eight-count indictment

charging him with two counts of rape, in violation of R.C. 2907.02(A)(2) (Counts 1

and 2); one count of attempted rape, in violation of R.C. 2923.02/2907.02(A)(2)

(Count 3); one count of kidnapping, in violation of R.C. 2905.01(A)(4) (Count 4);

two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(1) (Counts 5

and 6); one count of domestic violence, in violation of R.C. 2919.25(A) (Count 7);

and one count of endangering children, in violation of R.C. 2919.22(A) (Count 8).

Franco waived his right to a jury trial, and the case was tried to the bench where the

following relevant evidence was presented.

              On the night of March 19, 2022, the victim placed a call for help to her

father requesting that he call the police because she believed that Franco, the father

of her four children, was going to rape her. Multiple police officers responded, and

the state played body camera videos from four of those officers for the court.

              The videos showed the officers at the residence with a few of them

standing on the front porch and knocking on Franco’s front door, announcing their

presence. Other officers walked around the sides of the house. Once the front door

opened, the victim, who was naked, emerged and Franco stood next to her with a

towel around his waist. The victim excitedly told the officers to come inside the

house, but Franco attempted to move the victim out of the door way claiming that

she needed to cover herself, and tried to close the door. The officers commanded
Franco to stop, and the victim exited the house onto the porch, pleading with Franco

to let the officers inside the house because the children were scared and crying.

               Officer Michael Fragapane testified that the victim appeared frantic

when the door opened. He stated that Franco was noncompliant with questioning,

and after a physical struggle, he and other officers were able to handcuff Franco, put

pants on him, and remove him from the residence.

               The victim testified that she and Franco co-parent four children but

had not been romantically involved for over two years. She testified to the following

events. Around 8 p.m. on March 19, 2022, the victim drove over to Franco’s house

with their four children, ages two to eight, for the purpose of picking up a cat. She

waited in the car, parked in the driveway with the engine running, but Franco called

her on his cell phone telling her that he was having trouble getting the cat. She asked

Franco to come outside and sit with the children while she went inside to find the

cat. As she approached the door to the residence, Franco walked by her and smacked

her buttocks. She immediately told him, “Come on. I told you not to touch me like

that.” (Tr. 111.) According to the victim, Franco “went from * * * being calm and

fine to angry and menacing.” She attempted to leave the house, but Franco blocked

and locked the front door. She then ran out the back door, but Franco chased her,

grabbed her, and brought her back inside. Once he had her inside the house, Franco

physically assaulted her, held her down, and pulled off her pants.

               The victim testified that she was nervous and feared for the safety of

the children because they were alone outside in the car with the engine running in a
“bad neighborhood.” (Tr. 120.) Even though she repeatedly expressed to Franco

her concern about their children, he discounted the concerns, assuring that “the kids

are fine” (tr. 116), and continued to struggle with her. She told him that she would

do whatever he wanted if he brought the children inside the house — “I was just

trying to do anything to get him off of me.” (Tr. 118-119.) When Franco went outside

to retrieve the children, the victim sent an audio message to her father pleading for

help and for him to call the police.

               Franco came back into the house with their children and forced the

victim into the bathroom. The victim stated she begged him to stop, but he pinned

her against the bathroom door, removed her sweatshirt, and attempted to perform

oral sex on her. According to the victim, Franco then forced her into the bathtub

where he digitally raped her. The attack on the victim ceased when their eight-year-

old son told them that someone was at the front door.

               The victim did not seek medical attention, but officers took

photographs of the victim’s injuries, including bumps, bruises, scratches, and a

broken fingernail. The state also introduced photographs taken of Franco that

showed scratches to his shoulder and chest area.

               Detective Sabrina Choat met with the victim following the incident.

She admitted that she did not recommend to the victim to submit to a SANE

evaluation because the victim had showered multiple times. She further admitted

that she did not collect any of the victim’s clothing because she considered the items

contaminated because the victim had mixed the clothing with other laundry.
               Franco’s eight-year-old son testified that he was seated outside in the

vehicle with his siblings when he heard screaming and yelling and became scared.

He stated that while his mom was inside the house, his younger two-year-old

brother attempted to wriggle out of his car seat, so he undid his brother’s seatbelt.

He stated that his father then came outside and brought him and his siblings into

the house. According to the child, when the police arrived, he believed they were

“robbers,” and he went to the bathroom door to tell his parents that someone was at

the door. He testified that he had heard his parents yelling at each other before, but

this time the police arrived.

               Following the state’s case-in-chief, Franco moved for a Crim.R. 29

judgment of acquittal. The trial court agreed with Franco on Count 6, dismissing

the gross sexual imposition charge where the state alleged that Franco touched the

victim’s breasts. According to the court, the victim did not express enough certainty

that Franco touched her breasts. (Tr. 377.)

               After the admission of exhibits, the state rested, and Franco did not

put forth any defense. The trial court announced its verdict the following day,

providing its rationale to the parties, and found Franco not guilty of Counts 1 and 2,

both charging rape, and Count 3, charging attempted rape. The court also found

Franco not guilty of kidnapping as charged in Count 4, but guilty of the lesser-

included offense of abduction, in violation of R.C. 2905.02, and finding that Franco

committed the offense with a sexual motivation. The court also found Franco guilty

as charged in Count 5 (gross sexual imposition for touching the victim’s buttocks),
Count 7 (domestic violence), and Count 8 (endangering children). The trial court

sentenced Franco to a total prison term of 18 months.

               Franco now appeals, raising three assignments of error that will be

addressed together where appropriate.

I.   Sufficiency of the Evidence

               In his first and third assignments of error, Franco contends that the

state presented insufficient evidence to support his convictions for gross sexual

imposition and endangering children.

               The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Cottingham, 8th Dist.

Cuyahoga No. 109100, 

. 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. State v. Thompkins, 

, 

(1997). 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. 

               The state charged Franco in Count 5 of the indictment with gross

sexual imposition in violation of R.C. 2907.05(A)(1). The indictment provided that

on or about March 19, 2022, Franco
      did have sexual contact, to wit: touched buttocks, with [the victim], not
      his spouse, by purposely compelling [the victim] to submit by force or
      threat of force.

                 R.C. 2907.01(B) defines “sexual contact” as “any touching of an

erogenous zone of another, including without limitation the * * * buttock * * * for

the purpose of sexually arousing or gratifying either person.” In addition to proving

sexual contact as defined, the state must present some evidence that the defendant

compelled the victim to submit by force. “Force” is an element of gross sexual

imposition and means “any violence, compulsion, or constraint physically exerted

by any means upon or against a person or thing.” R.C. 2901.01(A)(1).

                 Franco contends that the state presented insufficient evidence to

support his conviction for gross sexual imposition because no evidence was

presented that Franco smacked the victim on the buttocks for purpose of sexual

gratification.

                 The state asserts that there was evidence presented that Franco

committed other conduct, in addition to smacking the victim’s buttocks, which could

support a conviction for gross sexual imposition. While this may be true, Count 5

charged Franco with gross sexual imposition for touching the victim’s buttocks. The

state could have asked the court during trial to amend Count 5 pursuant to Crim.R.

7(D) to conform with the evidence if it believed that the evidence did not support the

specific type of sexual contact charged in the indictment. In response to Franco’s

Crim.R. 29 motion for judgment of acquittal, the state argued that viewing the

evidence in favor of the state, it presented sufficient evidence to support the offense
of gross sexual imposition as charged in Count 5 because the victim “testified to

[Franco] smacking her on the butt when she came in; that was not welcomed.” (Tr.

375-376.) Accordingly, because the state did not move to amend the indictment, it

was required to prove beyond a reasonable doubt the allegations and elements of

the offense as charged in the indictment. See State v. Crosky, 10th Dist. Franklin

No. 06AP-655, 

 (state failed to amend indictment to conform

with the evidence in a child-rape case; thus it was required to prove sexual conduct

as charged in the indictment).

               Upon review of the evidence, we find that the state did not establish

the essential elements of gross sexual imposition as charged in Count 5 beyond a

reasonable doubt because, at a minimum, the state presented insufficient evidence

that Franco purposely compelled the victim to submit to the touch of her buttocks

by force.

               The victim testified that Franco smacked her buttocks after she

entered Franco’s home and walked by him. When asked whether the smack was

hard, the victim responded:

      Yeah. Kind — it was kind of playful, like. Like as if we were together or
      something like that. Just like a pat on the back, hey, you know, just
      swatting me on my butt. It wasn’t like he was hitting me maliciously.
      It was, I guess, trying to be flirtatious or something like that, to that
      effect. But it was not welcomed and I asked him not to do that.

(Tr. 111.) The victim did not testify that this single slap was anything but playful or

flirtatious, or that Franco compelled her to submit to the offensive touching.
               This court finds that no evidence exists in the record that Franco used

any force or threat of force beyond the force of the act itself, which is legally

insufficient to meet the “force” element of the crime of gross sexual imposition. See

In re J.W., 8th Dist. Cuyahoga No. 109031, 

 (evidence sufficient for

gross sexual imposition when defendant placed victim’s hand on defendant’s penis

over top of his pants, but evidence insufficient for gross sexual imposition where the

defendant placed his own hand over top of the victim’s clothing to touch her thigh

and vagina); see also State v. Biggs, 

, 

 (5th Dist.)

(insufficient evidence for gross sexual imposition where no evidence of force was

presented beyond the act itself).

               In State v. Dunn, 8th Dist. Cuyahoga Nos. 112301 and 112916, 2023-

Ohio-4413, this court recently considered a case involving a defendant who was

convicted of two counts of gross sexual imposition for his conduct of grabbing his

neighborhood mail carrier’s breast and his neighbor’s buttocks. Regarding the

count involving the mail carrier, this court found the evidence insufficient to support

the offense of gross sexual imposition, but sufficient for sexual imposition, because

the defendant did not use any force beyond the act itself, which was grabbing the

victim’s breast. Id. at ¶25. This court reasoned that the state did not prove the

element of “force” because the defendant did not manipulate the victim’s clothing,

did not tell her to do anything or prevent her from doing anything, and did not

threaten the victim; the only force used was the act itself. Id. at ¶ 27-28.
              Regarding the count naming the defendant’s neighbor as the victim,

this court upheld the defendant’s conviction for gross sexual imposition because

even though the defendant only felt the victim’s buttocks, sufficient evidence was

presented to support an inference of force based on the circumstances surrounding

the sexual contact. Id. at ¶ 30. This court reasoned that the state proved the element

of force because the defendant had previously touched the neighbor in an

inappropriate sexual manner in the past by feeling her buttocks while she did yard

work. Based on this prior experience, force was inferred when the defendant entered

the neighbor’s yard this time, talked in a sexual manner toward her, returned to her

yard after being guided away by a neighbor, pursued the victim as she tried to escape

from him, and upon reaching the victim, touched her buttocks. Id. at ¶ 31.

              Much like the mail carrier victim in Dunn, the victim in this case

testified that Franco’s slap to her buttocks was an unwanted touching. Nevertheless,

gross sexual imposition pursuant to R.C. 2907.05(A)(1) requires that the victim’s

submission to sexual contact be obtained by force or threat of force, and the state

did not present any evidence that Franco used any force other than the act itself to

cause this unwarranted touching. And unlike the neighbor victim in Dunn, the

victim in this case did not testify that she tried to retreat prior to Franco slapping

her buttocks or that he pursued her to engage in that conduct, to allow this court to

make an inference of force based on the circumstances surrounding the sexual

contact. Accordingly, even viewing the evidence in a light most favorable to the
state, we find that insufficient evidence was presented to support Franco’s

conviction for gross sexual imposition.

               We find that the evidence is sufficient, however, to support the lesser-

included offense of sexual imposition pursuant to R.C. 2907.06(A)(1). “‘Sexual

imposition is a lesser-included offense of gross sexual imposition because it does not

require proof of the additional element of force.’” J.W. at ¶ 17, quoting State v. Roy,

, 

, ¶ 42 (9th Dist.).          R.C. 2907.06, the sexual

imposition statute, provides in relevant part: “No person shall have sexual contact

with another, not the spouse of the offender * * * when * * * [t]he offender knows

that the sexual contact is offensive to the other person * * * or is reckless in that

regard.” R.C. 2907.06(A)(1). See, e.g., State v. Gesell, 12th Dist. Butler No. CA2005-

08-367, 

 (sufficient evidence presented to support sexual

imposition conviction where the defendant, a stranger to the victim, grabbed the

victim’s buttocks in a bar).

               The victim testified that as she approached the door to Franco’s

residence, Franco walked by her and smacked her buttocks. She immediately told

him, “Come on. I told you not to touch me like that.” Accordingly, the evidence

suggests that Franco knew that this contact would be unwelcomed and offensive to

the victim. Additionally, the evidence supports that Franco committed the act with

the purpose of sexual arousal or gratification. The victim testified that in the days

prior to the incident, Franco sent her sexually explicit video- and picture-messages

of women’s backsides or women “twerking.” (Tr. 151.) In the messages, Franco
disregards the victim’s expressed lack of interest in these messages and with him.

Franco’s prior messages coupled with his subsequent conduct of chasing the victim

and attempting to engage in further sexual activity suggests that his purpose or

motivation for his “flirtatious” slap to the victim’s buttocks was for sexual arousal or

gratification. Accordingly, viewing the evidence in a light most favorable to the state,

sufficient evidence was presented to support the elements of sexual imposition

pursuant to R.C. 2907.06(A)(1).

               Merely satisfying the elements of sexual imposition through the

victim’s testimony, however, is not enough for a conviction. R.C. 2907.06(B)

requires the state to present evidence corroborating the victim’s testimony. The

corroboration requirement, however, “does not mandate proof of the facts which are

the very substance of the crime charged.” State v. Economo, 

,

 (1996). “The corroborating evidence necessary to satisfy R.C.

2907.06(B) need not be independently sufficient to convict the accused, and it need

not go to every essential element of the crime charged. Slight circumstances or

evidence which tends to support the victim’s testimony is satisfactory.” 

.

Courts have traditionally found that the corroboration element is an “easily met

burden.” State v. Manolakas, 8th Dist. Cuyahoga No. 86815, 

(corroborating evidence supplements existing evidence that tends to strengthen or

confirm); see also State v. Cole-Walker, 1st Dist. Hamilton No. C-200038, 2021-

Ohio-1507, ¶ 10 (recognizing that “Ohio law sets a low bar for R.C. 2907.06(B)

corroboration.”).
              In this case, the police were called to Franco’s home based on a frantic

call the victim placed to her father. When the police arrived and Franco opened the

door, the victim was naked in the doorway and Franco had a towel around his waist.

The victim begged the police to come inside the home and pleaded with Franco to

let the police inside. Once the officers separated the parties and secured the scene,

the victim told the officers that Franco slapped her buttocks as she walked by him,

and when she told him that he was being disrespectful by doing so, his demeanor

changed, causing him to chase her around the house; grab, drag, and carry her back

inside the house when she tried to flee; and remove her clothing. The officers

testified about their interactions with the victim, and body camera video was

admitted into evidence. Based on the foregoing, the state presented sufficient

evidence corroborating the victim’s testimony that Franco slapped the victim’s

buttocks and this unwelcomed and offensive touching was the catalyst that caused

Franco’s subsequent conduct.       Accordingly, we find merit to Franco’s first

assignment of error, but modify his conviction in Count 5, as this court is permitted

to do under R.C. 2945.79(D), to sexual imposition as defined in R.C. 2907.06(A)(1).

              In his third assignment of error, Franco contends that insufficient

evidence was presented to support his conviction for endangering children because

his conduct did not create a substantial risk to the health and safety of his minor

children. We disagree.

              Count 8 charged Franco with endangering children, in violation of

R.C. 2919.22(A). The indictment accused Franco of recklessly creating a substantial
risk to the health or safety of his minor children by violating a duty of care,

protection, or support.

               In this case, the victim testified that the four children, ranging in ages

from two to eight, were inside her car with the engine running when Franco agreed

to wait outside with the children as she tried to retrieve a cat from inside the house.

Instead, he decided to chase the victim throughout the house, grabbing at her, and

then dragging her back into the house as she attempted to escape through the back

door. The victim testified that she pleaded with him to let her go because their

children were outside in the car with the keys in the ignition and the engine running.

According to the victim, the neighborhood was not safe for their children to be left

alone at night in a running vehicle. Despite the victim’s concern and fear that their

children were unattended outside, Franco reassured her that their children were

“fine.”

               The parties’ eight-year-old child testified that his youngest brother,

age two, was seated in his car seat when they arrived at Franco’s house. He stated

that his brother attempted to wriggle out of the car seat by sliding under the seat

belt, so he undid his brother’s seatbelt. He stated that he heard screaming and

yelling when he and his siblings were alone in the car. (Tr. 320.) He stated that his

father eventually came out to the car and told them to come inside. The child

testified that when they entered the house, he did not see his mom, but when his

parents were in the bathroom, he heard his mom crying. (Tr. 326.)
               Viewing all of the evidence in favor of the state, we find that a

reasonable fact finder could find Franco guilty of endangering children. His third

assignment of error is overruled.

II. Abduction

               In his second assignment of error, Franco contends that his due

process rights were denied when the trial court found him guilty of abduction

committed with sexual motivation after it found him not guilty of kidnapping for the

purpose of engaging in sexual activity. Franco contends that he is not raising a

sufficiency-of-the-evidence challenge or arguing that the verdicts are inconsistent;

rather, he asks this court “to find that procedurally * * * [the trial court] violated due

process to convict him” of abduction when it acquitted him of kidnapping.

(Appellant’s brief, page 11-12). Franco has not offered any legal support for this

argument.

               App.R. 12(B) requires an appellate court to decide an appeal “on its

merits on the assignments of error set forth in the briefs under App.R. 16.” In turn,

App.R. 16 requires appellants to include in their briefs “[a]n argument containing

the contentions of the appellant with respect to each assignment of error presented

for review and the reasons in support of the contentions, with citations to the

authorities, statutes, and parts of the record on which appellant relies.” App.R.

16(A)(3) and (7). The law is well settled that appellate courts will not address

underdeveloped arguments because “‘[i]t is not this Court’s job to search the record

in an effort to ferret out the basis for Appellant’s claims.’” Halliday v. Halliday, 8th
Dist. Cuyahoga No. 92116, 

, ¶ 17, quoting State v. Lewis, 7th Dist.

Mahoning No. 01-CA-59, 

, ¶ 79. For this reason alone, this court

could summarily overrule the assignment of error.

              This court could also decline to consider the assignment of error

because defense counsel arguably invited any error when the trial court found

Franco guilty of abduction under R.C. 2905.02(A) and (B). Invited error occurs

“when a party has asked the court to take some action later claimed to be erroneous.”

State v. Campbell, 

, 

 (2000).

              During his Crim.R. 29 motion, defense counsel posited that the state

did not prove kidnapping as charged in Count 4, but that the evidence could support

a charge of abduction. “Finally, your Honor, I would ask you to take a look at Count

4, the kidnapping, and if the Court is going to consider that in terms of guilt or the

failure to prove guilt beyond a reasonable doubt, that that could go through as an

abduction and not as a kidnapping.”        (Tr. 373-374.)    In response, the court

“appreciate[d] sort of generally the idea that maybe this seems more like abduction,”

but when it reviewed the elements of kidnapping, the court stated:

      We’ve heard that she tried to leave and he wouldn’t let her out. He
      threw her over his shoulder and carried her back into the house, and he
      did so with purpose of engaging in sexual activity. By all accounts, her
      allegation is that his purpose was to force her to have sexual conduct
      with her, sexual activity with her.

(Tr. 375-375.) Accordingly, the trial court denied counsel’s motion for acquittal on

the kidnapping offense under the Crim.R. 29 legal standard. (Tr. 377.)
               This court concludes that although the state satisfied its burden under

a Crim.R. 29 standard and the trial court found that sufficient evidence was

presented when viewing the evidence in favor of the state to prove the kidnapping

charge, the trial court believed that the state did not satisfy its burden of proving

beyond a reasonable doubt that Franco committed the act of kidnapping. Instead,

and as initially requested by defense counsel, the court found Franco guilty of the

lesser-included offense of abduction. See State v. Jeffries, 

,

, 

 (11th Dist.) (conviction of lesser-included offense

based on defense-requested jury instruction on the lesser-included offense is

deemed invited error). Accordingly, the defense received what it asked for.

               Nevertheless, when looking at the evidence and the elements of both

kidnapping under R.C. 2905.01(A)(4) and abduction under R.C. 2905.02(A) and

(B), and considering the trial court’s lengthy rationale in rendering its verdict and

the verdict itself, this court can only reconcile the court’s verdict by finding that the

court did not find the victim’s testimony, alone, sufficient to support the element of

“sexual activity.” “Sexual activity” is defined as “sexual conduct, sexual contact, or

both.” R.C. 2907.01(C).

               The court in rendering its verdict was troubled by the lack of

corroborating evidence to support the victim’s testimony that Franco engaged or

attempted to engage in sexual activity with her. (Tr. 458-461) (trial court finding

Franco not guilty of both counts of rape, and single count of attempted rape (which

both require proof of sexual activity) based on lack of corroborating evidence).
               For Franco to be found guilty of kidnapping as indicted, the state had

to prove that Franco “did, by force, threat, or deception, purposely remove [the

victim] from the place where she was found or restrain [her liberty] for the purpose

of engaging in sexual activity * * * with [the victim] against her will.” (Emphasis

added.) R.C. 2905.01(A)(4). In finding Franco not guilty of rape and attempted

rape, the trial court necessarily found that the state did not satisfy its burden of

proving beyond a reasonable doubt that sexual activity occurred or was attempted;

therefore it is not surprising that the trial court found Franco not guilty of

kidnapping.

               The trial court found, however, that the state proved the lesser-

included offense of abduction. R.C. 2905.02(A) provides, in relevant part, that “no

person * * * shall knowingly * * * (1) by force or threat, remove another from the

place where the other is found; or (2) by force or threat, restrain the liberty of

another under circumstances that create a risk of physical harm to the victim or

place the other person in fear.” Additionally, subsection (B) provides that “no

person, with a sexual motivation, shall violate division (A) of this section.” The trial

court did not specify which subsection — (A)(1) or (A)(2) — upon which it found

Franco guilty, but concluded that Franco acted with sexual motivation when he

committed the act of abduction. “‘Sexual motivation’ means with a purpose to

gratify the sexual needs or desires of the offender.” R.C. 2971.01(J).

               “Sexual activity” is not “sexual motivation” because both have been

specifically defined by the legislature, and neither includes the other. A person can
engage in conduct with a purpose to gratify their sexual needs or desires without

engaging in sexual activity as defined under the law. Proof of a sexual gratification

purpose does not require direct evidence of arousal or gratification. A “trier of fact

may infer that a defendant was motivated by a desire for sexual arousal or

gratification from the totality of the circumstances.” State v. Edwards, 8th Dist.

Cuyahoga No. 81351, 

, ¶ 22, citing State v. Oddi, 5th Dist. Delaware

No. 02CAA01005, 

.

               In relation to this case, although the court found that the state did not

prove beyond a reasonable doubt that Franco engaged in sexual activity with the

victim, or that his purpose was to engage in sexual activity, the court believed beyond

a reasonable doubt that he acted with a sexual motivation. Based on the general

arguments made by Franco, the likelihood that counsel invited the trial court to find

him guilty of abduction, and our conclusion that the trial court’s verdict does not

present a due process violation, we overrule Franco’s second assignment of error.

               Judgment affirmed in part, modified in part, and remanded for

resentencing on Count 5, as modified to sexual imposition under R.C.

2907.06(A)(1), a third-degree misdemeanor.

      It is ordered that the parties share equally the 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

conviction having been affirmed, in part, any bail pending appeal is terminated.
Case remanded to the trial court for resentencing on Count 5 and execution of

sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, A.J., and
MICHAEL JOHN RYAN, J., CONCUR