State v. Torres

2023 Ohio 1406, 213 N.E.3d 287

• Court: Ohio Court of Appeals
• Decided: April 25, 2023
• Docket: 21CA3951
• Status: Published

Opinion

[Cite as State v. Torres, 2023-Ohio-1406.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 21CA3951

v. :

JUAN SALVADOR GUERRERO TORRES, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. : RELEASED 4/25/2023 ___________________________________________________________________ APPEARANCES:

Samuel H. Shamansky, Donald L. Regensburger, and Ashton C. Gaitanos, Columbus, Ohio, for appellant.

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee. ___________________________________________________________________ HESS, J.

{¶1} Juan Salvador Guerrero Torres appeals his convictions for rape, sexual battery,

and gross sexual imposition. For his first assignment of error, Torres contends that his rape

and gross sexual imposition convictions must be reversed because there was insufficient

evidence that he used “force or threat of force” to compel the victim to engage in sexual

conduct or contact. He argues that there was no evidence that he made threats or applied

any force to her body or clothing in any way. We find that the state failed to present sufficient

evidence of force to sustain Torres’s conviction on rape and gross sexual imposition. We

sustain his first assignment of error and vacate his convictions for rape and gross sexual

imposition. We remand this matter to the trial court to modify Torres’s conviction and to

resentence him accordingly.

{¶2} In his second assignment of error, Torres contends that the trial court erred 2 Scioto App. No. 21CA3951

when it denied his trial counsel’s request for a jury instruction on “mistake of fact.” He argues

that there was sufficient information of equivocal conduct by the victim to give rise to his belief

that she was interested and consented to his sexual advances and all three of his convictions

should be reversed. Because we sustain his first assignment of error, this argument is moot

as to his rape and gross sexual imposition convictions. On his sexual battery conviction, we

find that a jury instruction on mistake of fact was not warranted and the trial court did not err

when it denied Torres’s request for it. Torres presented no evidence that he had an honest

belief based in good faith that the victim was awake, aware, and consented to his conduct.

We overrule his second assignment of error.

{¶3} Finally, Torres contends that his convictions were against the manifest weight

of the evidence and the evidence did not support a finding that he acted with the requisite

degree of mental culpability to commit rape, sexual battery, or gross sexual imposition.

Again, this assignment of error is moot as to his convictions on rape and gross sexual

imposition. We find the state presented substantial evidence upon which the jury could

reasonably conclude, beyond a reasonable doubt, that Torres knew that K.S. was sleeping

and was unaware of his conduct; the judgment of conviction on sexual battery is not against

the manifest weight of the evidence. We overrule his third assignment of error.

{¶4} We remand this matter to the trial court to modify Torres’s convictions and to

I. FACTS AND PROCEDURAL HISTORY

{¶5} In January 2020, a Scioto County Grand Jury returned an indictment that

charged appellant with (1) one count of rape in violation of R.C. 2907.02(A)(2), a first-degree 3 Scioto App. No. 21CA3951

felony, (2) one count of sexual battery in violation of R.C. 2907.03(A)(3), a third-degree

felony, and (3) one count of gross sexual imposition in violation of R.C. 2907.05(A)(1), a

fourth-degree felony. Appellant entered a not guilty plea.

{¶6} The case proceeded to a jury trial which produced the following evidence. The

victim, K.S., is in her mid-twenties, lives in Columbus, and is employed as an engineer at a

manufacturing company. On May 30, 2020, K.S. drove to Portsmouth to stay overnight with

her friend, Lena Harvey, whom she had met when they both attended college together.

Harvey, her boyfriend, Josh Griffith, and K.S. drove to a bar where K.S. visited with several

people she knew from college. They arrived at the bar at approximately 11:00 p.m. and

stayed until the bar closed.

{¶7} During the evening Harvey, Griffith, and K.S. socialized with Torres, whom

Harvey and Griffith knew because he worked at a local restaurant they frequented. K.S. was

wearing jeans, a tank top, and a long sweater. At one point, K.S. removed her sweater and,

when she returned to the table, Torres had it wrapped around his waist and told K.S. he

“didn’t want [her] to lose it.” K.S., Harvey, and Torres exchanged Snapchat information, and,

when the bar closed, all four left the bar together, stopped by Torres’s house to pick up

alcohol and snacks, and then went to Harvey and Griffith’s house. The rest of the evening,

the four talked, ate snacks, drank alcohol, listened to music, and danced.

{¶8} K.S. described the evening:

We were all just hanging out when we first got there and talking. [Torres] had brought some like weird snacks that I tried. We were listening to music. And like as the night progressed he started to get - - or he started to make me more uncomfortable, which I didn’t realize until later on in the night. * * * I went over to my phone to - - to change the music and he came over there * * * and tried 4 Scioto App. No. 21CA3951

to kiss me and he was telling me that there is a restaurant in Columbus that he could move to and work at, and I told him he couldn’t kiss me and that that was not going to work out.

Q. Okay, do you know what prompted all that?

A. I have no clue. * * * I told him I wasn’t interested. [Harvey and Griffith] told I wasn’t interested. * * * I went back into the kitchen where [Harvey and Griffith] were and I started to dance with [Griffith] and I was telling him that - - that [Torres] was making me uncomfortable and he was just being really weird, and [Griffith] told me to be nice to him because like this is his first time being over at the house, and like he just wanted all of us to have a good time.

{¶9} When Torres started to act weird, K.S. “went into the bathroom downstairs so I

could FaceTime my friend, Spencer.” K.S. described Spencer as “the guy who I was talking

to at the time * * *He was pretty much my boyfriend. We hadn’t made it official, but he was

pretty much my boyfriend.” While K.S. was in the bathroom on the phone with Spencer,

Torres sent K.S. a Snapchat that told her to come out of the bathroom. K.S. did not answer

and told “Spencer how weird it was, and - - that I just wanted to go to bed.”

{¶10} Shortly thereafter, Harvey asked K.S. if everything was okay and if K.S. wanted

Torres to leave, and K.S. said, “I don’t care if he leaves, but I just - - I don’t want to be down

here anymore. I just want to go upstairs and go to bed.” Harvey then walked K.S. upstairs

to her room and gave her a phone charger. K.S. removed her jeans and underwear, put on

a pair of baggy shorts, plugged her phone into the only outlet, and placed a pillow and blanket

on the floor near the outlet so she could charge her phone and continue to Facetime Spencer.

According to the phone log, K.S. called Spencer from the bathroom at 3:55 a.m. and that call

lasted 38 minutes. Spencer called back at 4:39 a.m. after K.S. was settled in upstairs. K.S.

fell asleep while still on FaceTime with Spencer. 5 Scioto App. No. 21CA3951

{¶11} When K.S. fell asleep, her door was closed. K.S. testified that she slept “pretty

heavy” because she had a few drinks. When she was on the phone with Spencer the second

time, Torres sent another Snapchat and asked, “Do u want coddling [sic].” K.S. responded,

“I’m sleeping m [sic].” K.S. then told Spencer, “how weird that was, but like I wasn’t around

him anymore. My - - the door was shut. I was going to bed.” Later, K.S. was awakened:

When I was sleeping I thought that I felt something inside of me and it was one of those where it’s like I didn’t know if I was dreaming or I was just kind of in that state of like maybe I’m dreaming or like I think I’m dreaming, and then I - - I don’t know how long that went on for, but I kind of like snapped out of it and I opened up my eyes and I was just staring at the ceiling and I realized that this is real life, like this is really happening. Like, something was really inside of me.

Q. [K.S.], when you say something’s inside of you, where are you talking about?

A. I don’t know what was inside of me. I just felt something.

Q. Inside you where?

A. Inside my vagina.

Q. * * * What did you do when you realized that this is really happening to you?

A. I set up and [Torres] was like towards the end of my feet, maybe like next to my legs, and I pushed him off and I told him to get away before I freak the “F” out is what I said.

Q. Okay.

A. And he like went to lay next to me on the floor, and he was like no, like come - - come cuddle with me, come cuddle with me, and I repeated myself again for him to get away before I freaked the “F” out, and I was yelling at him to get away. And he had gotten up and went to walk out the door and he had told me he was looking for a charger.

{¶12} K.S. terminated the phone call she had fallen asleep on with Spencer and then

tried to call Harvey. She kept trying to call Harvey but Harvey wasn’t answering so she 6 Scioto App. No. 21CA3951

banged on Harvey’s bedroom door. As she was pounding on Harvey’s door, K.S. testified

that Torres “came back up the stairs with the charger and he said I found the charger, and I

was like I don’t care, like just go - - go away.” Harvey’s door was locked with a hook latch so

K.S. went back to her room, retrieved scissors, unhooked the latch with the scissors, and ran

into Harvey’s room where Harvey and Griffith were asleep. K.S. woke Harvey and told her

what had happened. At that point, they woke Griffith and asked him to go downstairs and

make Torres leave. After Griffith returned upstairs, Griffith, Harvey, and K.S. went downstairs

and K.S. told Torres, “you know what you did to me, and his response was that he was drunk

and he doesn’t remember. And I told him drunk or not it doesn’t make it right and that he

needs to go.” K.S. then called her sister, who told her to call the police.

{¶13} On cross-examination, counsel asked K.S. if she remembered dancing with

Torres and “backing your rear up to [Torres] and dancing with your rear against him?,” and

K.S. replied, “I remember him pulling my [sic] close - - waist closer to him.” K.S. testified that

Torres was showing them how to salsa dance, that their bodies were close, and that she was

dancing up against Torres later that evening in the kitchen. K.S. also testified on cross-

examination that after she went upstairs to the guest bedroom and took off her jeans and

underwear, she put on baggy shorts that “were like sweat pants that I had cut into shorts.”

She agreed that they were “fairly loose.” A photograph of the shorts was admitted into

evidence.

{¶14} When cross-examined about the rape incident, K.S. testified:

A. I felt something inside of me, yes.

Q. And you saw [Torres] and you told him to leave; right, or stop? 7 Scioto App. No. 21CA3951

A. I sat up and I pushed him off of me and told him to get away before I freak out.

Q. And he did stop; right?

A. He had laid - - he laid next to me and ask [sic] me to come cuddle with him.

Q. The sensation that you felt had stopped when you said stop?

A. I never told him to stop. * * * I had woken up and I still had felt something inside of me and when I realized that it was real life, that I was actually awake and something was inside of me, when I had sat up [Torres] was by my legs.

Q. But you said stop; right?

A. I told him to get away from me before I freaked the “F” out is what I said to him.

Q. Okay. And he did as you told him to do; right?

A. He laid next to me - - * * * - - and I told him again to get away from me before I freaked the “F” out.

{¶15} Lena Harvey and her boyfriend Josh Griffith live at the Franklin Avenue house,

and Harvey testified that she has been friends with K.S. since 2016. On the day in question,

Harvey, Griffith, and K.S. drove to a bar around 11:00 p.m. to meet with friends. While there,

they ran into Torres. Harvey, Griffith, and K.S. sat at Torres’s table and talked and drank

alcohol for about an hour. Harvey and Griffith knew Torres because he worked at a restaurant

they frequented. Harvey, Griffith, Torres, and K.S. left the bar together and stopped by

Torres’s house to get alcohol and snacks on their way back to Harvey and Griffith’s house.

{¶16} At Harvey and Griffith’s house, the group stood in the kitchen and drank, talked,

and listened to music. Around 3:00 or 4:00 a.m., K.S. visited the downstairs bathroom and

was on the phone. K.S. was the first to go to bed, then Harvey and Griffith soon followed.

{¶17} Harvey observed that early in the evening, everything appeared to be “fine” 8 Scioto App. No. 21CA3951

between Torres and K.S. but, “[w]hen she [K.S.] went to the bathroom and was talking with

the guy that she was talking to, she was in there and she * * * had the door shut and [Torres]

kept like trying to like get her to come out, was asking us, like, ‘Hey, go get her. Come out.’

He was trying to open the door and stuff, and she was just uncomfortable with that.”

{¶18} Harvey testified that K.S. went to the upstairs guest bedroom and closed her

door. Harvey and Griffith went to their upstairs bedroom. Torres had the use of the downstairs

couch. After Harvey fell asleep, she awoke when K.S. came into her room crying and got

into bed. K.S. “could like barely breathe * * * she kept like trying to talk and was like not able

to talk. Like, she just couldn’t breathe. She was like gasping for air, crying.”

{¶19} At that point, Harvey told Griffith to go downstairs to speak to Torres.

Eventually, Harvey and K.S. also went downstairs to speak with Torres. Torres denied what

K.S. had said, and Griffith then asked him to leave. Harvey told K.S. to call her older sister,

who advised K.S. to call the police.

{¶20} Josh Griffith testified that he had known K.S. for about three years. On the

evening in question, they went to a bar where they ran into Torres. After the group returned

to Griffith’s house and prepared for bed, Griffith told Torres he could “crash” on his couch

and gave him a blanket. Griffith also told Torres to use the upstairs bathroom because they

kept their dogs in a caged area by the downstairs bathroom, which made that bathroom

inaccessible.

{¶21} Griffith and Harvey slept in their bedroom until K.S. came into their room crying.

Griffith stated he “couldn’t even understand what she was saying.” Griffith confronted Torres,

and Torres told him that he went upstairs to use the bathroom, but denied that he touched 9 Scioto App. No. 21CA3951

K.S. After Griffith talked to K.S. and Harvey, all three confronted Torres. Torres continued to

deny the accusations, and Griffith asked him to leave. Griffith then observed Torres walk

down the street and “grab his hair and throw his hands down.” Later, Torres sent Griffith a

text that said, “Hey, I so sorry idk wha happened…. I never want respect her or u house ….

So drunk I feel like trust.” The text contained three tear-faced emojis and two sad-faced

emojis and went on, “I never want be drunk like last night if she want punch me is fine … idk

what r do …. Alcohol control me …. Call me later.” Griffith did not respond to Torres’s

message.

{¶22} Earlier in the evening before the incident occurred, Griffith also observed that

Torres appeared “probably a little tipsy,” but was not “trashed,” walking and talking fine, and

was able to be understood in the morning before he left. Griffith further stated that when K.S.

went to bed, she was “fine,” “nobody was trashed.” Griffith also testified he did not see K.S.

being flirtatious with Torres, but recalled that Torres expressed his interest in K.S. to Griffith

“multiple times that night.” Griffith, however, told him “she is not interested, because I mean,

I don’t - - you get those vibes, you know, she’s not interested.”

{¶23} Portsmouth Police Officer Tori Galloway testified that she received a call at

6:40 a.m. on May 31, 2020 and spoke to K.S., who stated that Torres had sexually assaulted

her. Galloway arrived at the Franklin Avenue home and found K.S. “noticeably upset, crying

hysterically, very difficult to understand.” Galloway obtained a written statement and

transported K.S. to Southern Ohio Medical Center. After a brief conversation with K.S. at the

hospital, Galloway returned to the Franklin Avenue home to talk with Griffith and Harvey

about the incident. Galloway also visited Torres’s house and he agreed to go to the police 10 Scioto App. No. 21CA3951

station for questioning.

{¶24} Portsmouth Police Detective Steven Timberlake testified that, after he received

a call on May 31, 2020, he drove to the hospital and found K.S. crying, “noticeably distraught,

upset, kind of hard to talk to.” Detective Timberlake then drove to the Franklin Avenue home

and removed a comforter from the floor of the bedroom K.S. had slept in.

{¶25} Detective Timberlake also interviewed Torres and described him as calm. The

state played Timberlake’s interview with Torres for the jury. In it, Torres stated that he drank

with Harvey and Griffith and Harvey’s friend, whose name he did not remember. They then

visited Harvey and Griffith’s house. When asked if he remembered lying beside K.S., he

replied, “I don’t remember. (Inaudible) I told her I don’t know what happened. I don’t

remember nothing.” When asked how much he drank, Torres stated, “I drink like (inaudible)

like three bottles of beer (inaudible) and maybe eight shots (inaudible) at these guys house

and drinking (inaudible) wine, because they stopped by my house and get more beer.”

{¶26} Torres denied that he inserted his penis inside K.S., but when asked if he “put

his fingers inside her,” he replied, “she say my fingers inside, but I like - I don’t remember.”

When asked if he “lay down beside her,” Torres stated, “I don’t remember what happened.

Like, I remember go to bathroom and come and - - the last I know I was in the floor and laid

down.” Torres acknowledged that he sent a text message to Griffith after he had been asked

to leave and he explained that he meant that he never wanted to “disrespect” K.S. or Griffith

but mistakenly typed “respect” and that when he typed “I feel like trust” he meant “I feel like

trash.” When Detective Timberlake noted that he texted, “she [K.S.] could punch you,” Torres

responded, “Yeah (inaudible) she was so angry (inaudible) punch me something I do, so - - 11 Scioto App. No. 21CA3951

so okay (inaudible).” Torres told Detective Timberlake that, after he went to the upstairs

bathroom, he entered K.S.’s room to look for a phone charger because his phone was dying

and he remembered the charger was on the floor. Torres also acknowledged that what K.S.

said could have occurred because he was drunk and does not remember. Detective

Timberlake obtained Torres’s DNA samples.

{¶27} Registered Nurse Emilee Metzler, Sexual Assault Nurse Examiner at the

Southern Ohio Medical Center, examined K.S. on May 31, 2020. Metzler testified that K.S.

had elevated blood pressure and pulse, and was “tearful while speaking,” “fidgety,” “seemed

to have a hard time making eye contact,” “just kind of looked down.” Metzler testified that

K.S. told her that when she positioned herself on the floor in her friend’s spare room to charge

her phone and Facetime her friend, appellant Snapchatted her to ask if she wanted to cuddle,

and K.S. told him no and continued to talk to her friend until she fell asleep. K.S.’s report to

Metzler continued:

And then I thought I was just dreaming, but I felt something inside me, and I don’t know how long it went on for, but when I woke up [Torres] was laying next to me in the floor. I told him once get off of me before I freak the fuck out, and I started pushing him off me, and he said he just wanted to cuddle. Then I told him again to get out. I started to yell and he said - - said he just wanted a charger. He went down the stairs and then I was banging on my friend, Harvey’s door to let me in, and it was like locked with a hook. So, I started to stick anything through to get the hook up.

{¶28} Metzler testified that she completed her exam, collected oral, vaginal, and

perianal swabs and a swab from a dried stain. Metzler testified that K.S. believed Torres

assaulted her with his fingers. Metzler explained that the electronic form that she completes

that describes the assault asks for specific forms of force used. Because K.S. was not held 12 Scioto App. No. 21CA3951

at gunpoint or knifepoint and not restrained by a rope, the form automatically generates a

response that no force was used. In addition, Metzler testified she did not learn from K.S.

that any other type of force was used:

Q. But you didn’t get any information from the patient that there was any other sort of physical force; is that right?

A. No.

Q. She never told you she was held down?

Q. Or restrained in any way?

{¶29} Ohio Bureau of Criminal Investigation Forensic Scientist Malorie Kulp testified

that she compared DNA from interior and exterior vaginal samples and the interior crotch

area of K.S.’s shorts. The DNA sample taken from the interior crotch of the victim’s shorts

revealed a mixture of DNA profiles consistent with K.S. and Torres, with an estimated

frequency statistic of one in 200,000,000 unrelated individuals.

{¶30} At the close of the state’s case, Torres moved for acquittal as to all counts

pursuant to Crim.R. 29. Torres argued (1) the state failed to prove the element of “force or

threat of force,” (2) the state failed to prove the element of “knowingly” regarding the sexual

battery offense, and (3) insufficient evidence of sexual contact exists to prove the offense

gross sexual imposition. The trial court denied the motion.

{¶31} Torres testified in his defense and stated that he is 35 years old, from Mexico,

has lived in the U.S. for 14 years, and moved here so he could earn money to send to his 13 Scioto App. No. 21CA3951

elderly parents still residing in Mexico. He has spoken English for approximately eight years.

Torres has resided in Portsmouth for approximately four years and was previously married

to a woman with two daughters and considers those children as his own. He currently works

at a restaurant in Portsmouth. Torres testified that he knew Harvey and Griffith from the

restaurant and considered them friends.

{¶32} On May 30, 2020, Torres was at a bar and saw Griffith, Harvey, and K.S. there.

Torres learned that K.S. lived in Columbus and they exchanged Snapchat information.

Torres stated that he thought K.S. had an interest in him because she loaded her Snapchat

information on his phone and sent herself a message to request to add Torres to her

Snapchat, and Harvey did as well.

{¶33} Torres testified that after the bar closed, they all decided to go to Harvey and

Griffith’s house, but they stopped by Torres’s house to pick up beer, wine, and snacks. They

got to Harvey and Griffith’s house at approximately 3:00 a.m. where they ate, drank, talked,

listened to music, and danced. Torres asked Griffith “to ask her [K.S.] if I - - I could have any

hope with her.” Torres thought K.S. was interested in him because “the first time I see her

and she always like next to me or like on top of me.” Torres, however, said Griffith told him

that K.S. had no interest in him.

{¶34} Torres further testified that K.S. danced with him while Harvey and Griffith

danced together in the kitchen, and that K.S. “put the hands on the table and she * * * put

her backside bottom on me” and “put her hands around like that and touched my bottom

side” and “when she’s dancing with me my penis gets hard * * * and she would slide from

where the penis is to the knees, and she would go up and down, and up and down. And [Cite as State v. Torres, 2023-Ohio-1406.]

Harvey and Griffith, they were nearby and they were watching them.”

{¶35} Torres also recalled that he tried to kiss K.S., and K.S. continued to dance

with him after he tried to kiss her. After K.S. went upstairs to bed, Torres said he needed

to use the upstairs bathroom because Griffith told him he could not use the downstairs

bathroom.

And at that time my telephone was going to lose its charge, so I went upstairs and I knocked on the doors. The first door was open. Not all open, but a little bit, and then I went to a second door and I - I yelled for Griffith, and then after nobody answered and I was going back and K.S. there lying on the floor.

{¶36} Torres stated that, while K.S. was on her side with her face toward the wall,

he laid down next to her. “When I got there and I laid down next to her I was still thinking

that she was interested in me * * * so I gently touch her hand.” Torres continued:

I touch her two or three times right here and since she didn’t say anything I touch her neck and it was like she was trying to say, yes, okay, go ahead and do that, because she was like breathing harder. Breathing but not as fast as sounds of sex, but the breathing that - - I don’t know how to describe it. Well, like when two people are touching or kissing and the breathing goes harder and the heart is going faster and I continue because she doesn’t say anything because it felt harder.

{¶37} Torres stated that K.S. “got close next to mine, touching me,” and when he

touched her breast, “she moved her foot on top of my feet.” Torres said he believed she

wanted him to touch her, but K.S. told him to stop and “she said get away from me.”

Torres said he then ceased his activity and walked downstairs.

{¶38} When asked about his understanding of what had occurred, Torres stated,

“Yeah, because she was the one that provoked all that through the night, so I was going

step by step to see how far we would go. So, that’s when she was there I tried and then

if she - - she said no then I stopped at that moment.” When asked if he “put your hand [Cite as State v. Torres, 2023-Ohio-1406.]

down in her pants,” Torres replied, “[s]ee when she put her foot on top of me that’s when

I started feeling that she was breathing harder. I can feel her and that’s when I had

actually started touching her hand, then her neck, and then onward, and that’s when she

says, stop, and then I stopped.” Torres acknowledged that he touched K.S.’s breast, but

said “when my hand was going down I don’t know how far it had gone. I don’t remember.”

Torres acknowledged that his trial testimony differed from what he initially told Detective

Timberlake because he had been confused and nervous.

{¶39} At the close of Torres’s case, the defense renewed, and the trial court

denied, the Crim. R. 29 motion for judgment of acquittal. The trial court also denied

Torres’s request to provide the jury with a “mistake of fact” instruction.

{¶40} The jury found Torres guilty of all charges. When the trial court sentenced

him, the court merged the three charges as allied offenses of similar import, and the state

elected to proceed with the sentence on the rape offense. The court sentenced Torres to:

(1) serve in prison a minimum term of 8 years and an indefinite maximum term of 12

years, (2) pay a $2,500 fine, (3) pay $20 restitution, and (4) pay all costs and fees. The

trial court classified Torres as a Tier III Sex Offender/Child Victim Offender Registrant and

required him to fulfill all requirements of the classification for a lifetime with in-person

verification every 90 days. Torres appealed.

II. ASSIGNMENTS OF ERROR

{¶41} Torres assigns three errors for review1:

1 We take the assignments of error from the main section of Torres’s brief. The assignments of

error section contained on page four of his brief sets out different assignments of error from those set out in the main argument section, assignments of error one and two are identical, and none of them raise the error concerning insufficiency of the evidence on the element of force as to the rape and gross sexual [Cite as State v. Torres, 2023-Ohio-1406.]

I. Appellant was convicted in the absence of evidence sufficient to support findings of guilty in violation of his rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution

II. The trial court erred by refusing to give the jury an instruction on mistake of fact, thereby depriving Appellant of his rights to due process and a fair and impartial jury as guaranteed by the United States and Ohio Constitutions.

III. Appellant’s convictions were against the manifest weight of the evidence in violation of his right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and comparable provisions of the Ohio Constitution.

III. LEGAL ANALYSIS

A. Insufficient Evidence of Force or Threat of Force

{¶42} In his first assignment of error, Torres argues that the jury could not have

found him guilty of rape in violation of R.C. 2907.02(A)(2) and gross sexual imposition

under R.C. 2907.05(A)(1) because there was no evidence that he purposely compelled

K.S. to submit by force or threat of force.

{¶43} Torres asserts that insufficient evidence supports his conviction for rape and

gross sexual imposition because the evidence adduced at trial did not prove that he

purposely compelled K.S. to submit by force or threat of force.

1. Standard of Review

{¶44} “When a court reviews the record for sufficiency, ‘[t]he 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

imposition convictions. [Cite as State v. Torres, 2023-Ohio-1406.]

a reasonable doubt.’” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d

930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus; following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); State v. Bennington, 2019-Ohio-4386, 148 N.E.3d 1, ¶ 11 (4th Dist.).

{¶45} An appellate court must construe the evidence in a “light most favorable to

the prosecution.” State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v.

Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). Further, “[t]he court must defer to

the trier of fact on questions of credibility and the weight assigned to the evidence.” State

v. Dillard, 4th Dist. Meigs No. 13CA9, 2014-Ohio-4974, ¶ 22, citing State v. Kirkland, 140

Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132; State v. Lodwick, 2018-Ohio-3710,

118 N.E.3d 948, ¶ 9 (4th Dist.). Thus, “a reviewing court is not to assess ‘whether the

state’s evidence is to be believed, but whether, if believed, the evidence against a

defendant would support a conviction.’” State v. Davis, 4th Dist. Ross No. 12CA3336,

2013-Ohio-1504, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d

541 (1997) (Cook, J., concurring). Rather, a reviewing court will not overturn a conviction

on a sufficiency of the evidence claim unless reasonable minds could not reach the

conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d

226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).

2. Elements of Rape and Gross Sexual Imposition

{¶46} Rape is defined in R.C. 2907.02(A)(2) as: “No person shall engage in sexual

conduct with another when the offender purposely compels the other person to submit by

force or threat of force.” Gross sexual imposition is defined in R.C. 2907.05(A)(1) as:

(A) No person shall have sexual contact with another, not the spouse of the [Cite as State v. Torres, 2023-Ohio-1406.]

offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force. * * *.

R.C. 2907.01(B) defines sexual contact:

‘Sexual contact’ means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.

R.C. 2907.01(A) defines sexual conduct:

‘Sexual conduct’ means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

{¶47} As set forth above, both R.C. 2907.02(A)(2) rape and R.C. 2907.05(A)(1)

gross sexual imposition require the state to prove that a victim submitted “by force or

threat of force.” “Force” means any violence, compulsion, or constraint physically exerted

by any means upon or against a person or thing. R.C. 2901.01(A)(1). “[T]he use of the

word ‘any’ in the definition recognizes there are different degrees of force.” State v. Clark,

8th Dist. Cuyahoga No. 90148, 2008-Ohio-3358, ¶ 17. “‘[S]ome amount of force must be

proven beyond that force inherent in the crime itself.’” State v. Zimpfer, 2d Dist.

Montgomery No. 26062, 2014-Ohio-4401, ¶ 46, citing State v. Dye, 82 Ohio St.3d 323,

327, 695 N.E.2d 763 (1998). However, “[a]ny amount of physical force or threat, however

slight, is sufficient to support * * * “ a rape conviction under R.C. 2907.02(A)(2). State v. [Cite as State v. Torres, 2023-Ohio-1406.]

Heiney, 2018-Ohio-3408, 117 N.E.3d 1034, ¶ 122 (6th Dist.). “The force element needed

to prove the offense of gross sexual imposition is the same as it is for rape.” State v.

Biggs, 2022-Ohio-2481, 192 N.E.3d 1306, ¶ 16 (5th Dist.).

{¶48} The Supreme Court of Ohio found the amount of force required to meet this

requirement varies depending on the age of the victim and the relationship between the

victim and the defendant. State v. Eskridge, 38 Ohio St.3d 56, 58, 526 N.E.2d 304 (1988).

However, some amount of force must be proven beyond the force inherent in the crime

itself. State v. Dye, 82 Ohio St.3d 323, 327, 695 N.E.2d 763, 766 (1998).

{¶49} In a situation very similar to the one here, the appellate court held that the

state failed to prove “force” beyond a reasonable doubt, reversed the defendant’s gross

sexual imposition convictions, and remanded the matter for the trial court to enter a

conviction on the lesser charge of sexual imposition. State v. Wine, 3d Dist. Auglaize No.

2-12-01, 2012-Ohio-2837. In Wine, the adult female victim was asleep and wearing only

loose fitting flannel pajamas without underwear. The victim testified that the pajamas were

“large * * * [t]hey don’t bind you around the body,” “very loose” and not tight around her

waist or body. Id. at ¶ 10. When she awoke, the defendant was very close to her face,

kneeling down by her bed, and she realized his finger was in her vagina and his right

hand was under her pajamas on her chest. The victim testified, “When I yelled he took

his finger out of my vagina and took his hand out from underneath my pajama top but he

kept his hands under the blankets and he just kept staring at me.” Id. Shortly thereafter

the defendant left the bedroom.

{¶50} The appellate court recognized that a lesser degree of force may be shown

where the victim is a child as in Eskridge and Dye, supra. However, because the victim, [Cite as State v. Torres, 2023-Ohio-1406.]

S.D., was an adult and the defendant, Wine, was not in a position of authority over her,

the state “was required to prove beyond a reasonable doubt that Wine ‘use[ed] physical

force against [S.D.], or create[d] the belief that physical force [would] be used if [S.D.]

[did] not submit’ to establish the element of force.” The court reviewed the evidence and

concluded that the state had failed to prove the element of force:

The evidence presented at trial demonstrated that S.D. was sleeping and unaware of the sexual contact, and, as soon as she awoke, Wine withdrew his hands from her body, ending the sexual contact. Significantly, no sexual contact occurred after S.D. was awake and aware of the sexual contact. S.D.'s will was not overcome by force or threat of force, nor did S.D. “submit” to the sexual contact by force or threat of force. Eskridge, 38 Ohio St.3d at 58–59, 526 N.E.2d 304. The State also failed to produce sufficient evidence that Wine created the belief that physical force would be used if S.D. did not submit to the sexual contact. Schaim, 65 Ohio St.3d at 55, 600 N.E.2d 661. While it is true that S.D. was in a state of fear and duress after she awoke and realized Wine had sexually contacted her, S.D.'s fear and duress did not cause her to submit to the initial sexual contact or any further contact. Aside from that, S.D. did not fear that Wine would continue the sexual contact but that Wine would kill her to conceal his already completed sexual contact. For these reasons, we conclude that the evidence is insufficient to establish that Wine purposely compelled S.D. to submit to the sexual contact by (through the agency or instrumentality of) force or threat of force.

Id. at ¶ 47.

{¶51} The appellate court in Wine acknowledged that the Eighth District Court of

Appeals has held that “any manipulation of a sleeping victim's body or clothing is sufficient

force for purposes of rape in violation of R.C. 2907.02(A)(2),” but the court stated, “we

are not persuaded to follow that line of cases.” Id. at ¶ 48.

We decline to adopt the Eighth District's reduced level of force for sleeping victims for several reasons. To begin with, the reasoning in the Eighth District's line of cases stems from Eskridge where the victim was the offender's four-year-old daughter. The Ohio Supreme Court has limited the application of Eskridge's reduced levels of force to situations where the offender is the victim's parent or holds a similar position of authority over a child-victim. Schaim, 65 Ohio St.3d at 55, 600 N.E.2d 661; Dye, 82 Ohio [Cite as State v. Torres, 2023-Ohio-1406.]

St.3d at 329, 695 N.E.2d 763. Other districts that have applied a reduced level of force for sleeping victims have done so only in cases involving child- victims. State v. Johnson, 2nd Dist. No.2009–CA–38, 2010–Ohio–2920, ¶ 18 (16 year-old); State v. Burton, 4th Dist. No. 05CA3, 2007–Ohio–1660, ¶ 38 (10–13 years old); State v. Green, 5th Dist. No. 01CA–A–12–067, 2002– Ohio–3949, ¶ 61 (16 year-old); State v. H.H., 10th Dist. No. 10AP–1126, 2011–Ohio–6660, ¶ 12 (17 year-old); State v. Rutan, 10th Dist. No. 97APA03–389 (Dec. 16, 1997), *11 (14–15 year-olds). The Eighth District's focus upon “force necessary to facilitate the act” also ignores the fact that “the statute requires that some amount of force must be proven beyond that force inherent in the crime itself.” Clark, 2008–Ohio–3358, at ¶ 17; Dye, 82 Ohio St.3d at 327, 695 N.E.2d 763. The statute requires that the victim submit to the sexual contact by force or threat of force. R.C. 2907.05(A)(1). This requires more than “force necessary to facilitate the act” but force or threat of force sufficient to overcome the will of the victim. Eskridge, 38 Ohio St.3d at 58–59, 526 N.E.2d 304.

Id. at ¶ 49.

{¶52} The Wine court also rejected the Eighth District's interpretation of the

element of force in sleeping-victim cases, because it “fails to recognize the requirement

that the force or threat of force must be sufficient to overcome the will of the victim,” thus

blurring the distinction between sex offenses requiring force and sex offenses not

requiring force. Id. at ¶ 50.

The General Assembly has provided specific criminal offenses to protect victims, like S.D., “whose ability to resist * * * is substantially impaired because of a * * * physical condition” or who submit because they are “unaware that the act is being committed.” See R.C. 2907.02(A)(1)(c); 2907.05(A)(5); 2907.03(A)(3). The Court of Appeals has concluded that sleeping is a ‘physical condition’ that substantially impairs a victim's ability to resist for purposes of rape in violation of R.C. 2907.02(A)(1)(c). For the same reason, an offender may also be convicted of committing gross sexual imposition against a sleeping victim under R.C. 2907.05(A)(5). Similarly, an offender may be convicted of committing sexual battery or sexual imposition against a sleeping victim under R.C. 2907.03(A)(2), (3) or R.C. 2907.06(A)(3). By diminishing R.C. 2907.05(A)(1)' s element of force to mere manipulation of a sleeping victim's body or clothing, the Eighth District usurps the General Assembly's power to define and codify criminal offenses and to treat offenders differently depending upon the nature of their conduct. (Citations omitted.) [Cite as State v. Torres, 2023-Ohio-1406.]

Id. {¶53} Courts have found sufficient evidence of force where the state presents

evidence that the defendant manipulated both the victim’s body and the victim’s clothing

during the sexual contact or conduct; but not where “there is no evidence in the record

Appellant employed 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.”

State v. Biggs, 2022-Ohio-2481, 192 N.E.3d 1306, ¶ 17, appeal not allowed, 168 Ohio

St.3d 1457, 2022-Ohio-4201, 198 N.E.3d 871 (citing cases from the Second, Fifth, Eighth,

and Tenth Districts involving facts where the victims’ bodies and clothing were moved).

In Biggs, Biggs appealed his conviction for gross sexual imposition arguing that the state

failed to prove the element of force. The appellate court agreed, modified his conviction

for gross sexual imposition to the lesser included offense of sexual imposition, and

remanded for resentencing. Biggs and the victim, A.I., were lying on a bed watching a

movie when Biggs slid over, whispered in her ear, licked her ear, and then “stuck his hand

down the front of A.I.’s pajama pants, inside her underwear, and began massaging the

outside of her vagina.” Id. at ¶ 6. The court held that the state failed to prove sufficient

evidence force beyond that necessary to commit the offense.

The instant case involves an adult victim, who was not asleep. There was no evidence Appellant removed A.I.’s clothing or manipulated her clothing beyond reaching inside her pajama pants and underwear. Appellant did not tell the victim to do anything or refrain from doing anything, and did not threaten her in any way if she failed to comply. Appellant did not move or manipulate the victim herself, or any of her limbs. There was no testimony Appellant held her down in order to commit the act of touching her. While A.I. testified she forcibly removed Appellant's hand from inside her pajama pants, there is no evidence he struggled with her to continue touching her; rather, she was able to leave the room without interference from Appellant. Although A.I. was flustered, crying, and scared because she did not expect [Cite as State v. Torres, 2023-Ohio-1406.]

the touching to happen, there is no evidence in the record Appellant employed 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. We find the evidence legally insufficient to convict Appellant of the crime of gross sexual imposition.

Id. at ¶ 22.

{¶54} The appellate court compared the similarities in Biggs with that in another

case it had recently decided, State v. Moore, 5th Dist. Morgan No. 21AA0003, 2022-Ohio-

2349. In Moore, the defendant had reached inside the shorts of his sleeping 16-year-old

niece, Z.M., but had not restrained her, moved her body or limbs, verbally threatened her,

or repositioned her clothing in any way other than which was required to insert his hand

inside her shorts. The appellate court found that the State failed to prove the element of

force required for gross sexual imposition:

Against that background, even if we were to adopt the Eighth District's reduced level of force for initially sleeping victims, we find the facts here are distinguishable from any of the above-mentioned sleeping child-victim cases which appear to require manipulation of clothing plus something more, such as relocation of the victim or repositioning of the victim's limbs. While appellant did manipulate Z.M.’s clothing, as soon as Z.M. became aware of the nature of appellant's conduct, she got up and left the room. Appellant did not tell Z.M. to do or refrain from doing anything, did not restrain her in any way nor reposition or relocate her body in any way, and did not prevent Z.M. from leaving the room. He did not hold Z.M. down in order to commit the act of touching Z.M. While we find appellant's conduct despicable, we nonetheless find the evidence presented by the state insufficient to prove force or threat of force. Additionally, while appellant's conduct would meet the elements of gross sexual imposition under R.C. 2907.05(A)(5) or sexual imposition pursuant to R.C. 2907.06(A)(1), the state did not charge under these code sections nor request to amend the indictment nor request a jury instruction for the lesser-included offense of sexual imposition. (Record citation omitted.)

Biggs at ¶ 20, quoting Moore at ¶ 38.

{¶55} Here the state argues that the situation between Torres and K.S. is [Cite as State v. Torres, 2023-Ohio-1406.]

analogous to that between the defendants and their victims in State v. Burton, 4th Dist.

Gallia No. 05CA3, 2007-Ohio-1660 and State v. Mynes, 4th Dist. Scioto No. 12CA3480,

2013-Ohio-4811. However, both Burton and Mynes involved child victims, ages 12 and

17 respectively, and adult defendants with a special relationship over their victims. We

recognize that in child-victim cases, Eskridge holds that the force need not be overt or

physically brutal and that subtle or psychological pressure can cause a child victim to be

overcome by fear or duress. State v. Eskridge, 38 Ohio St.3d 56, 59; Burton at ¶ 37.

{¶56} In Burton, the defendant manipulated both the child victim’s clothing and the

child victim’s sleeping body into a position to facilitate sexual conduct. Burton at ¶ 42.

We held that “[t]his physical manipulation required force, however minimal, beyond that

inherent in the act of rape itself.” However, we found that additional factors contributed

to the finding of force, including “the victim’s will was also overcome by Burton’s relative

size and age, by the victim’s fear resulting from his lack of understanding of an orgasm

and his high level of intoxication, and by Burton’s position of authority established via his

law enforcement officer training, his ability to drive, his relationship with [the victim], and

his ability to provide the victim with an expensive gift.” Id. Burton also had a uniform,

carried a firearm, and had transported and isolated the victim in a hotel room, which would

constitute additional subtle psychological factors of control and authority that would inflict

fear and duress in the child victim. Id. at ¶ 39.

{¶57} In Mynes, we concluded that the state adduced sufficient evidence to prove

that Mynes purposely compelled the victim, the 17-year-old daughter of the defendant’s

friend, to submit by force or threat of force. Id. at ¶ 17. The victim knew the defendant,

considered him as a brother, and the victim was not at grade level and was described [Cite as State v. Torres, 2023-Ohio-1406.]

intellectually and developmentally as “very childlike.” Id. at ¶ 17. When we viewed the

evidence in a light most favorable to the prosecution, we concluded that a rational trier of

fact could have found that Mynes purposely compelled the victim to submit by force or

threat of force:

Thus viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that Mynes purposely compelled C.J. to submit by force or threat of force. C.J. testified that she did not resist because of Mynes' size and her fear that he might hurt her. C.J.'s father also testified that she is developmentally “slow” and very withdrawn. Both Vestich and Conkel testified that C.J. has a “very childlike” demeanor and Vestich testified that C.J. does not have the maturity level of an average 17–year–old. The evidence also showed that C.J. is in special education classes and has failed both her high school classes and the written portion of the driver's exam. From this evidence the jury could infer that her will was overcome by fear due to Mynes' relative size, age and maturity level.

State v. Mynes, 4th Dist. Scioto No. 12CA3480, 2013-Ohio-4811, ¶ 17.

{¶57} Here, K.S. was not a child, but an adult in her mid-twenties. She testified

that she was wearing very loose shorts that she had made by cutting off sweat pants and

she was not wearing underwear. There was no evidence that Torres moved or

manipulated K.S.’s body and no evidence that he moved or manipulated her clothing. The

state concedes there was no direct evidence that Torres moved K.S.’s clothing, but

argues that this element of the crime could be presumed. In its brief, that state argues,

“Here, the overwhelming credible evidence showed Appellant did not knock or ask to

enter the bedroom where [K.S.] slept. Rather, Appellant pushed the door open and lay

down next to the victim before proceeding to insert his fingers into her vagina after

presumably moving her loose-fitting shorts.” (Emphasis added.) In response to Torres’s

Crim.R. 29 motion, at trial the state argued that circumstantial evidence proved the force

element, “we have a sleeping victim * * * who is clothed fully, * * * so based on that the [Cite as State v. Torres, 2023-Ohio-1406.]

circumstantial evidence would suggest that there had to be some manipulation of clothing

or her body to facilitate this offense.” However, as we explain below, because K.S. wore

loose shorts and no underwear, Torres may not have been required to manipulate the

shorts. And, there was no evidence that Torres was required to manipulate or move K.S.’s

body to facilitate the offense.

{¶58} We find that the analyses in Wine, Biggs, and Moore, supra to be instructive

and relevant here where the victim is not a child and the considerations relevant to child

victims as recognized in Eskridge, and Dye, supra are inapplicable. As the court in Wine

explained, “The Ohio Supreme Court has limited the application of Eskridge 's reduced

levels of force to situations where the offender is the victim's parent or holds a similar

position of authority over a child-victim.” Wine, 2012-Ohio-2837, ¶ 49, citing State v.

Schaim, 65 Ohio St.3d at 55, 600 N.E.2d 661 and Dye, 82 Ohio St.3d at 329, 695 N.E.2d

763. The statute requires that the victim submit to the sexual contact by force or threat of

force. This requires more than “force necessary to facilitate the act” but force or threat of

force sufficient to overcome the will of the victim. Id.

{¶59} The evidence presented at trial demonstrated that K.S. was sleeping and

unaware of the sexual conduct, and, as soon as she awoke, Torres withdrew his finger

from her vagina, ending the sexual conduct. Torres did not tell K.S. to do anything or

refrain from doing anything, and did not threaten her in any way if she failed to comply.

There was no testimony that Torres held her down. There is no evidence he struggled

with her. K.S. testified that was able to leave the room without interference from Torres.

No sexual conduct or contact occurred after K.S. was awake and aware of Torres’s

presence. K.S.'s will was not overcome by force or threat of force, nor did K.S. “submit” [Cite as State v. Torres, 2023-Ohio-1406.]

to the sexual conduct by force or threat of force. We find the evidence legally insufficient

to convict Torres of the crime of rape and gross sexual imposition.

{¶60} Even if we were to adopt the Eighth District's reduced level of force for

initially sleeping victims as discussed and criticized by Wine, Biggs and Moore, the facts

here are distinguishable from the sleeping-child victim cases which require manipulation

of clothing and something more, such as moving the victim or repositioning the victim's

limbs. There was no evidence Torres removed K.S.’s clothing or manipulated her clothing.

We know that Torres reached into her sweat shorts, but the record does not establish

whether Torres reached up into the loose leg of her shorts or down into the waist of her

shorts. Thus, it is not known whether any clothing manipulation was required for Torres

to commit the act. Even if we presume Torres moved her shorts slightly, the reduced level

of force adopted by the Eighth District also requires the manipulation or movement of the

victim’s body. Here, there was no evidence Torres moved or manipulated K.S. or any of

her limbs. When K.S. awoke, sat up, and confronted Torres, he immediately removed his

finger. Although K.S. was crying and had difficulty speaking, there is no evidence that

Torres employed 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 rape and gross sexual

imposition under R.C. 2907.02(A)(2) and R.C. 2907.05(A)(1). Thus, even under the

reduced standard adopted by the Eighth District, we find the evidence legally insufficient

to convict Torres of the crime of rape and gross sexual imposition.

{¶61} Similarly, to the extent the jury based its conviction of gross sexual

imposition on Torres’s touching of K.S.’s breast, it is not supported by the evidence

because there is no evidence that Torres used force to cause K.S. to submit to this [Cite as State v. Torres, 2023-Ohio-1406.]

touching. Again, K.S. testified that she was asleep and there was no evidence that she

was awake or aware that Torres had touched her breast. She did not testify that her breast

had been touched. Torres admitted that he touched K.S.’s breast, but he did not testify

that he used force or that he manipulated or moved K.S.’s body and clothing to do so.

The record contains no evidence concerning whether Torres touched K.S.’s breast by

inserting his hand under her shirt or if he touched it over the outside of her clothing. Thus,

there is no evidence that Torres moved her clothing, even minimally, to touch her breast.

{¶62} We find Torres’s conduct reprehensible, but the evidence presented by the

state, viewed in a light most favorable to the prosecution, is insufficient to prove force or

threat of force. Furthermore, “ ‘sleep’ is a mental or physical condition, which is sufficient

to substantially impair a victim's ability to consent to or resist sexual conduct or contact.”

State v. Hines, 2018-Ohio-1780, 112 N.E.3d 10, ¶ 20 (12th Dist.) (citing cases from the

Third, Fifth, Eighth, Ninth, and Tenth Districts). Therefore, Torres's conduct would meet

the elements of rape under R.C. 2907.02(A)(1)(c) and gross sexual imposition under R.C.

2907.05(A)(5), but the state did not charge under these code sections, request to amend

the indictment, or request a jury instruction for the lesser-included offense of sexual

imposition.

{¶63} We sustain Torres’s first assignment of error. We reverse and vacate his

convictions for rape and gross sexual imposition and we remand to the trial court for a

modification of his convictions and resentencing.

B. Jury Instruction on “Mistake of Fact”

{¶64} For his second assignment of error, Torres argues that the trial court should

have given a “mistake of fact” jury instruction because there was evidence that he acted [Cite as State v. Torres, 2023-Ohio-1406.]

under mistake of fact as to whether K.S. consented to and was aware of his sexual

advances. He contends that K.S. had been equivocal in her actions, leading Torres to the

erroneous belief that she was interested in him and consented to his sexual advances.

{¶65} Because we sustained his first assignment of error and vacated his rape

and gross sexual imposition convictions, this assignment of error is moot as to jury

instructions concerning those crimes. However, Torres was also convicted of sexual

battery in violation of R.C. 2907.03(A)(3). Therefore, we will analyze his second

assignment of error in the context of his sexual battery conviction.

{¶66} “A trial court is obligated to provide jury instructions that correctly and

completely state the law. The jury instructions must also be warranted by the evidence

presented in a case. The question of whether a jury instruction is legally correct and

factually warranted is subject to de novo review.” (Citations omitted.) Cromer v.

Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921,

¶ 22; State v. Moore, 4th, 2020-Ohio-4321, 158 N.E.3d 111, ¶ 16 (4th Dist.). An appellate

court will not reverse a conviction due to an erroneous jury instruction unless the error

was so prejudicial that it might have induced an erroneous verdict. State v. Wilks, 154

Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092 , ¶ 115. (“In examining errors in a jury

instruction, a reviewing court must consider the jury charge as a whole and ‘must

determine whether the jury charge probably misled the jury in a matter materially affecting

the complaining party's substantial rights.’ ”).

2. Legal Analysis of Mistake of Fact [Cite as State v. Torres, 2023-Ohio-1406.]

{¶67} A “criminal defendant has the right to expect that the trial court will give

complete jury instructions on all issues raised by the evidence.” State v. Williford, 49 Ohio

St.3d 247, 251, 551 N.E.2d 1279 (1990); State v. Mullins, 2d Dist. Montgomery No.

22301, 2008-Ohio-2892, ¶ 9. However, a court should not give an instruction unless it

specifically applies to the case’s facts. State v. McCary, 2d Dist. Montgomery No. 28250,

2019-Ohio-4596, ¶ 37.

{¶68} “Generally, mistake of fact is a defense if it negates a mental state required

to establish an element of a crime, except that if the defendant would be guilty of

a crime under facts as he believed them, then he may be convicted of that offense.” State

v. Hubbard, 10th Dist. Franklin No. 11AP-945, 2013-Ohio-2735, ¶ 64. “Mistake of fact is

widely recognized as a defense to specific intent crimes such as theft since, when the

defendant has an honest purpose, such a purpose provides an excuse for an act that

would otherwise be deemed criminal.” Id; State v. Zhu, 10th Dist. Franklin No. 21AP-10,

2021-Ohio-4577, ¶ 48.

{¶69} Torres was charged with sexual battery under R.C. 2907.03(A)(3). The

relevant section of that statute states: “(A) No person shall engage in sexual conduct with

another, not the spouse of the offender, when any of the following apply: * * * (3) The

offender knows that the other person submits because the other person is unaware that

the act is being committed.” The element of sexual battery required the state to prove that

Torres knew or had knowledge that K.S. was unaware of his actions. The proposed jury

instruction Torres submitted for sexual battery are from 2 OJI-CR 417.05 and state:

1. Unless the defendant had the required knowledge he is not guilty of the crime of Sexual Battery. [Cite as State v. Torres, 2023-Ohio-1406.]

2. In determining whether the defendant had the required knowledge you will consider whether he acted under a mistake of fact regarding whether [K.S.] was aware of the act that was being committed.

3. If the defendant had an honest belief arrived at in good faith in the existence of such facts and acted in accordance with the facts as he believed them to be, he is not guilty of Sexual Battery as knowledge that [K.S.] submitted because she was not aware the act was being committed is an essential element of that offense.

{¶70} The trial court considered the proposed jury instruction and concluded that

a mistake of fact instruction would duplicate instructions already given, was not a correct

statement of the law, and would tend to confuse and mislead the jury. Furthermore, the

court believed that (1) it had already incorporated the essence of the defense of mistake

of fact into the court’s jury instructions, and (2) the evidence submitted at trial was

insufficient to raise the legal issue for a more particular instruction on mistake of fact.

{¶71} The jury instructions the trial court gave on sexual battery included the

requirement that the state prove beyond a reasonable doubt that Torres knew that K.S.

submitted because she was unaware that the act was being committed. The trial court

gave the following instruction regarding the knowledge element of sexual battery:

A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result. A person has knowledge of circumstances when he is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning that fact.

Since you cannot look into the mind of another, knowledge is determined from all of the facts of the circumstances in evidence. You will determine from these facts and circumstances whether there existed at the time in the mind of the Defendant, an awareness of the probability that his conduct would cause this result.

The trial court’s jury instruction on knowledge is the instruction provided in 2 OJI-CR [Cite as State v. Torres, 2023-Ohio-1406.]

417.11 and is the statutory definition provided in R.C. 2901.22(B) concerning culpable

mental states.

{¶72} The trial court’s jury instruction on knowledge was the legally correct

statement of that mental state and provided the jury with the proper instruction. Torres’s

mistake of fact jury instruction is a legally correct statement of mistake of fact. However,

the trial court correctly determined that Torres’s request for a mistake of fact jury

instruction was not proper as a matter of law because mistake of fact as to whether K.S.

was unaware of Torres’s conduct was not raised by the evidence. A court should not give

an instruction unless it specifically applies to the facts of the case.

{¶73} Torres claimed that he acted under mistake of fact because he believed

K.S. was not sleeping, was aware of his sexual advances, and consented to them.

However, Torres failed to present any evidence of “an honest belief arrived at in good

faith.” Instead, the facts and circumstances in evidence prove beyond a reasonable doubt

that Torres believed there was a high probability that K.S. was asleep, he failed to make

an inquiry, and he acted with conscious purpose to avoid learning whether she was

asleep.

{¶74} K.S. went upstairs to go to bed at approximately 4:30 a.m. after a night of

drinking. When Torres sent her a message asking to cuddle, she rejected him and told

him “I’m sleeping.” K.S. was the first to go upstairs to bed, Harvey went to bed later, and

then Griffith went to bed even later. When Torres went upstairs after Griffith had gone to

bed, he “knocked on doors” and “yelled for Josh [Griffith]” yet nobody – not Griffith, not

K.S., not Harvey – responded to him or opened up their doors. Torres indicated that K.S.’s

bedroom door was open about 8 to 10 inches and she was laying facing the wall. Torres [Cite as State v. Torres, 2023-Ohio-1406.]

did not knock on her door, he did not ask if he could come in, and he did not announce

his presence in any way. Instead, he quietly, stealthily entered her bedroom and laid down

next to her. Torres testified that K.S. did not respond with any awareness to his presence

in her room nor did she respond with any awareness when he laid down next to her. Her

back was to him meaning that he was facing the back of her head when he went into the

room and laid down next to her. He did not speak to her to ask her if she was awake. He

silently began to touch her hand, “and since she didn’t say anything I touch her neck.”

Torres explained that his progression along K.S.’s body was based on her complete lack

of response each step of the way, “First, I touch her hand, there was nothing, then I touch

her neck, and there was nothing, and then I touch her breast * * *.” At that point, Torres

testified that he sensed that K.S. breathing had changed and she moved one of her feet

on top of his. Based on this, Torres stated that he believed she was aware of what was

happening. However, he did not speak to her to determine if she was awake, nor did he

ask her if she was aware of what he was doing to her or if she consented. The facts and

circumstances here show that Torres knew with a high probability that K.S. was asleep

and he failed to make inquiry – he avoided learning whether she was actually awake and

aware of his actions. Torres presented no evidence that he took any good faith actions to

establish an honest belief that she was awake, aware of his actions, and consented to

them. It strains credulity to the breaking point that he would think otherwise. He was not

entitled to a jury instruction on mistake of fact – it does not apply to the facts of this case.

The trial court gave careful, thorough consideration of this issue and correctly analyzed

and applied the law.

{¶75} We overrule his second assignment of error. [Cite as State v. Torres, 2023-Ohio-1406.]

C. Manifest Weight of the Evidence

{¶76} For his final assignment of error, Torres argues that his convictions were

against the manifest weight of the evidence. Again, we limit our analysis of this

assignment of error to his sexual battery conviction as this argument is moot as to his

rape and gross sexual imposition convictions.

{¶77} In determining whether a criminal conviction is against

the manifest weight of the evidence, we must review the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses, and

determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its

way and created such a manifest miscarriage of justice that reversal of the conviction is

necessary. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. To satisfy this test,

the state must introduce substantial evidence on all the elements of an offense, so that

the jury can find guilt beyond a reasonable doubt. See State v. Eskridge, 38 Ohio St.3d

56, 526 N.E.2d 304, syllabus; State v. Harvey, 4th Dist. Washington No. 21CA3, 2022-

Ohio-2319, ¶ 24. Because a trier of fact sees and hears the witnesses, appellate courts

court will also afford substantial deference to a trier of fact's credibility determinations.

State v. Schroeder, 2019-Ohio-4136, 147 N.E.3d 1, ¶ 61 (4th Dist.).

2. Sexual Battery Conviction

{¶78} Torres argues that the greater weight of the credible evidence adduced at

trial demonstrates that he did not act with the requisite mental culpability on the sexual

battery count, i.e., that he knew K.S. submitted to sexual conduct because she was [Cite as State v. Torres, 2023-Ohio-1406.]

unaware the act was being committed. In particular, he contends K.S. responded when

he touch her arm and neck by changing her breathing pattern and moving her foot, “which

he interpreted as signs of consent and that she was cognizant of what was happening.”

{¶79} When we addressed his second assignment of error, we identified the

elements of sexual battery and found that Torres presented no evidence that he had an

honest belief based on good faith that K.S. was awake, aware, and consenting to his

conduct. The entire weight of the evidence proved beyond a reasonable doubt that K.S.

was sleeping and Torres made no inquiries to determine otherwise. His belief that she

was awake was based on her unresponsiveness to his conduct – a sign of sleep, a subtle

change in her breathing pattern, and a foot movement.

{¶80} After our review of the record, and after we consider the evidence and

testimony adduced at trial and all reasonable inferences therefrom, witness credibility,

and the conflicts in the evidence, we do not believe that the jury clearly lost its way so as

to create a manifest miscarriage of justice that Torres’s sexual battery conviction must be

reversed and a new trial ordered. Instead, we believe that the state adduced substantial

evidence at trial to prove all of the elements of this offense beyond a reasonable doubt.

Thus, we overrule appellant’s third assignment of error.

IV. CONCLUSION

{¶81} Accordingly, based upon the foregoing reasons, we hereby reverse in part,

and affirm in part, the trial court’s judgment. We vacate his convictions on rape and gross

sexual imposition and affirm his conviction on sexual battery and remand to the trial court

for sentencing on his sexual battery conviction.

JUDGMENT REVERSED IN [Cite as State v. Torres, 2023-Ohio-1406.]

PART, AFFIRMED IN PART, CAUSE REMANDED.

Abele, J., dissenting

{¶82} I respectfully dissent.

{¶83} I acknowledge that a division of authority exists among Ohio appellate

courts on the issue of what acts may constitute the element of force in a prosecution for

rape in violation of R.C. 2907.02. In the case at bar, appellee asserts that with “sleeping

victims,” the element of force need not be overt and physically brutal. I agree. Here, I

believe that we should follow the line of cases that would result in an affirmance of

appellant’s judgment of conviction and sentence.

{¶84} Appellant, however, cites two Third District cases to support his argument Scioto App. No. 21CA3951 37

concerning the element of force. In State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-

2837, the defendant argued that the state failed to prove “force” when the adult victim slept

during an act of sexual contact.2 Id. at ¶ 37. The court concluded:

‘subtle and psychological’ force found sufficient in Eskridge and Dye are insufficient here, because S.D. was an adult and Wine was not in a position of authority over S.D. Schaim, 65 Ohio St.3d at 54-55, 600 N.E.2d 661. Rather, the State was required to prove beyond a reasonable doubt that Wine ‘use[d] physical force against [S.D.], or create[d] the belief that physical force [would] be used if [S.D.] [did] not submit’ to establish the element of force.

The Third District noted that when the victim, asleep and unaware, awoke, the defendant

withdrew his hands and ended the sexual contact. “Significantly, no sexual contact occurred

after S.D. was awake and aware of the sexual contact. S.D.’s will was not overcome by force

or threat of force, nor did S.D. ‘submit’ to the sexual contact by force or threat of force.” Id.

Further, the court held that the state failed to produce evidence that the

defendant created the belief that physical force would be used if the victim did not submit to

sexual contact. Id. The court emphasized that, although it “is true that S.D. was in a state

of fear and duress after she awoke and realized Wine had sexually contacted her, S.D.’s fear

and duress did not cause her to submit to the initial sexual contact or any further contact.”

{¶85} Appellant also points to another Third District case, State v. Henry, 3d Dist.

Seneca No. 13-08-10, 2009-Ohio-3535, that involved a sleeping victim who awoke when she

felt a hand under her shorts. Initially, the victim believed the offender to be her boyfriend and

2 The use of the term sexual contact rather than sexual conduct stems from the arguable lack of evidence adduced in Wine as to whether the defendant actually penetrated the victim’s vagina. Scioto App. No. 21CA3951 38

several times removed the hand. However, after the defendant touched the victim’s vagina

multiple times and attempted to penetrate her, the victim “woke completely up,” realized the

man was not her boyfriend, pushed the man off the bed and ran screaming from the room.

Id. at ¶ 5. The Third District observed that the defendant made no comments or threats to

the victim and the state adduced no evidence that the defendant applied force to the victim’s

body or clothing. As soon as the victim did become aware and pushed the defendant, he left

the room. Also, the state adduced no evidence that the defendant attempted to restrain the

victim. Based upon those facts, the Henry court’s plurality opinion concluded that the

defendant’s actions did not constitute force sufficient to overcome the victim’s will. Id. at ¶

31.

{¶86} In the case sub judice, the trial court overruled appellant’s Crim.R. 29 motion

for judgment of acquittal and referred to three Fourth District cases - - State v. Burton, 4th

Dist. Gallia No. 05CA3, 2007-Ohio-1660, State v. Umphries, 4th Dist. Ross No. 11CA3301,

2012-Ohio-4711, and State v. Mynes, 4th Dist. Scioto No. 12CA3480, 2013-Ohio-4811. In

Burton, the defendant manipulated the child victim’s clothing and sleeping body into a

position to facilitate sexual conduct. Id. at ¶ 42. This court held that “[t]his physical

manipulation required force, however minimal, beyond that inherent in the act of rape itself,”

and also concluded that additional factors contributed to the finding of force, including “the

victim’s will was also overcome by Burton’s relative size and age, by the victim’s fear resulting

from his lack of understanding of an orgasm and his high level of intoxication, and by Burton’s

position of authority established via his law enforcement officer training, his ability to drive,

his relationship with [the victim], and his ability to provide the victim with an expensive gift.” Scioto App. No. 21CA3951 39

Id.

{¶87} In Umphries, the victim awoke to discover her uncle on top of her with his hands

down her pants. Id. at ¶ 5. After Umphries removed the victim’s pants and underwear, he

placed his penis inside the victim while she “begged him to stop.” Id. This court concluded

that sufficient evidence existed to support the view that appellant compelled the victim to

submit by force or threat of force. Id. at 19.

{¶88} In Mynes, this court concluded that the state adduced sufficient evidence to

prove that Mynes purposely compelled the victim, a 17-year-old, to submit by force or threat

of force. Id. at ¶ 17. The victim knew the defendant, and considered him as a brother. Id.

at ¶ 17. When viewed in a light most favorable to the prosecution, this court concluded that

a rational trier of fact could have found that Mynes purposely compelled the victim to submit

by force or threat of force. Id.

{¶89} Appellant argues that the case at bar is analogous to Henry. However, as

appellee points out, this court in Mynes rejected the Henry plurality opinion and determined

“there was no majority in Henry and as the dissent recognized, ‘having been concerned with

in judgment only, the lead opinion sets no precedent or binding rule of law beyond the impact

upon the parties in this case.’ Henry at ¶ 42 (Shaw, J., dissenting).” Id. at ¶ 19. Moreover,

in Mynes this court found the Henry dissent more persuasive. Id. at ¶ 19.

{¶90} Other Ohio courts have held that the manipulation of a sleeping victim’s

clothing, in order to facilitate sexual conduct, may constitute sufficient force under the statute.

Force is defined as any violence, compulsion, or constraint physically exerted by any means

upon or against a person or thing. R.C.2907.01(A)(1) (emphasis added). Furthermore, force Scioto App. No. 21CA3951 40

need not be overt or physically brutal. State v. Burton, citing State v. Eskridge (1988), 38

Ohio St.3d 56, 59, 526 N.E.3d 304 and State v. Milam, 8th Dist. No. 86268, 2006-Ohio-4742.

For a sleeping victim, only minimal force is required to manipulate a victim’s clothing or body

to facilitate an assault. Burton, citing State v. Lillard, 8th Dist. Cuyahoga No. 69242, 1996

WL 273781 (May 23, 1996).

{¶91} For example, in State v. Clark, 8th Dist. No. 90148, 2008-Ohio-3358, the 19-

year-old victim lived with her sister, the defendant’s girlfriend. The victim, in a deep sleep,

awakened with a finger in her vagina and observed the defendant on her bed. The victim

told the defendant it was wrong to touch her and, when asked what he was doing, the

defendant exited the room. The evidence showed that the defendant had to move clothing

to commit the sexual act. Id. at ¶ 6. A month later, the victim, again in a deep sleep, felt her

pajama bottoms tighten and twist, and a finger inserted inside her vagina. When she awoke,

the defendant sat on her bed with his hand on her vagina. When asked why he was doing

this, the defendant walked out. Id. at ¶ 7. The Eighth District observed that, on the two

occasions when Clark inserted his finger inside the victim’s vagina, he manipulated clothing

to engage in the act and the court had previously held that “the manipulation of a sleeping

victim’s clothing in order to facilitate sexual conduct constitutes force.” Id. at ¶ 17. Further,

“[i]n the situation where the victim is sleeping and thus not aware of the defendant’s

intentions, only minimal force is necessary to facilitate the act.” Id. Thus, the court concluded

that, when the victim awakened to find her clothing manipulated and the defendant’s finger

inside her vagina, the state sufficiently established the element of force. Id. at ¶ 19.

{¶92} In State v. Fortson, 8th Dist. Cuyahoga No. 92337, 2010-Ohio-2337, the victim, Scioto App. No. 21CA3951 41

a female inmate, testified that on multiple occasions she awoke to find the defendant, a male

corrections officer, penetrate her vagina with his fingers, perform oral sex, and put his

exposed penis near her face and mouth. Id. at ¶ 73. The court found that “[a]lthough there

was no evidence in the instant case that the defendant removed or manipulated the rape

victim’s clothing while she was sleeping, we find that a rational trier of fact could have inferred

that the defendant must have used minimal force to facilitate sexual conduct with a sleeping

[person].” Id. at ¶ 75. See also, State v. Johnson, 2d Dist. Green No. 2009-CA-38, 2010-

Ohio-2920, ¶ 18, (defendant pushed aside victim’s shorts and underwear) quoting Clark,

supra, at ¶ 17 (defendant pushed aside victim’s nightgown and underwear and placed finger

inside victim’s vagina); State v. H.H., 10th Dist. Franklin No. 10AP-1126, 2011-Ohio-6660, ¶

12 (defendant removed victim’s pants and underwear); State v. Graves, 8th Dist. Cuyahoga

No. 88845, 2007-Ohio-5430, (victim awoke to find pants and underwear pulled to knees and

wet substance on her thighs, shirt, and seat); State v. Simpson, 8th Dist. Cuyahoga No.

88301, 2007-Ohio-4301, ¶ 50 (defendant manipulated sleeping victim’s clothing and body to

make victim accessible for assault); State v. Lillard, 8th Dist. Cuyahoga No. 69242, 1996 WL

273781 (May 23, 1996) (victim awoke to find covers removed, robe and legs opened, and

defendant looking at and feeling her vagina); State v. Sullivan, 8th Dist. Cuyahoga No. 63818,

1993 WL 398551 (Oct. 7, 1993)(victim awoke to find underwear pulled down and defendant’s

mouth on her vagina).

{¶93} “It is well settled that the testimony of a rape victim, if believed, is sufficient to

support each element of rape.” State v. Carpenter, 2d Dist. Clark No. 2016-CA-66, 2017-

Ohio-8905, ¶ 28; Dyer at ¶ 20. Further, the Ohio Supreme Court has held that “force can be Scioto App. No. 21CA3951 42

inferred from the circumstances surrounding sexual conduct * * *.” Schaim, 65 Ohio St.3d at

55; State v. Hartman, 8th Dist. Cuyahoga No. 105159, 2018-Ohio-2641, ¶ 23. Moreover, as

noted above, “[i]n the situation where the victim is sleeping and thus not aware of the

defendant's intentions, only minimal force is necessary to facilitate the act.” Clark, supra, at

¶ 17.

{¶94} In the case sub judice, throughout the evening the appellant on multiple

occasions expressed his desire to engage in sexual relations with the victim. However, the

victim repelled his advances and the other witnesses explicitly told appellant that the victim

had no reciprocal interest. Nevertheless, the appellant relentlessly pursued the victim and,

in the early morning hours the victim testified she awoke to find appellant’s finger inserted

into her vagina. At that point, she pushed appellant, yelled twice at appellant and he

responded, “no, come cuddle with me.” After my review, I believe that the victim’s testimony,

if believed, constitutes sufficient evidence for a rational trier of fact to find beyond a

reasonable doubt that appellant engaged in sexual conduct with the victim by purposefully

compelling her through force. Although I concede that the testimony adduced at trial

suggests appellant may not have used a great amount of force, “[t]he word “any” specified in

the definition of “force” recognizes that various crimes upon various victims require different

degrees and manners of force.’” Umphries, ¶ 17, quoting Sullivan, 8th Dist. Cuyahoga No.

63818, 1993 WL 398551, *4(Oct. 7, 1993). I also believe that any rational trier of fact could

have inferred that appellant used at least minimal force to manipulate the sleeping victim’s

clothing to facilitate sexual conduct. Fortson at ¶ 75. The victim testified that she wore cut-

off sweatpant shorts to sleep. In my view, it strains credulity and the laws of gravity to suggest Scioto App. No. 21CA3951 43

that the victim slept with her vagina exposed. Here, the trial court also determined that the

following factors indicated that sufficient evidence of force exists: 1) the victim had to push

the defendant off of her, 2) the defendant continued to try to lie down next to the victim and

wanted to “cuddle,” and 3) the victim had to yell at appellant and use profanity. After my

review of the record, and in the light most favorable to the state, I agree with the trial court’s

conclusion and I believe that sufficient evidence exists to establish the element of force for

the commission of rape and gross sexual imposition.

{¶95} Therefore, based upon the foregoing reasons, I would overrule appellant’s

assignments of error concerning his convictions for violations of R.C. 2907.02(A)(2) and

2907.05(A)(1). Scioto App. No. 21CA3951 44

JUDGMENT ENTRY

It is ordered that the judgment be reversed in part, affirmed in part, and the cause remanded for a modification of conviction and resentencing. Appellee to pay 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 Scioto County Common Pleas Court to carry this judgment into execution.

If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Wilkin, J.: Concurs in Judgment and Opinion. Abele, J.: Dissents with Dissenting Opinion.

For the Court

BY:_____________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.