[Cite as State v. Roy,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 13CA010404

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE SOMNATH ROY COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 07CR074732

DECISION AND JOURNAL ENTRY

Dated: November 24, 2014

CARR, Judge.

{¶1} Defendant-Appellant, Somnath Roy, appeals from his convictions in the Lorain

County Court of Common Pleas. This Court affirms in part, reverses in part, and remands this

matter for further proceedings.

I.

{¶2} Prior to the allegations that arose in this matter, Roy was a family physician

practicing out of an independent medical office in the Gates Medical Building. Several of Roy’s

patients as well as two women who responded to a job opening at his medical office came

forward, alleging that Roy had sexually abused them while acting in his capacity as a physician.

A grand jury ultimately indicted Roy on the following counts: (1) abduction, gross sexual

imposition, and sexual imposition, with respect to Jocelyn B.H.; (2) gross sexual imposition and

sexual imposition, with respect to Annette A.; (3) gross sexual imposition and sexual imposition,

with respect to Jolene G.; (4) gross sexual imposition and sexual imposition, with respect to L.S.; 2

(5) gross sexual imposition and sexual imposition, with respect to Jennifer G.; (6) gross sexual

imposition and sexual imposition, with respect to Shelby W.; and (7) sexual imposition, with

respect to A.S. Before trial, the sexual imposition counts pertaining to A.S. and Shelby W. were

dismissed on the basis that the statute of limitations had expired.

{¶3} Roy waived his right to a jury, and the matter proceeded to a bench trial. At the

close of the State’s case-in-chief, the court acquitted Roy of the three sexual imposition counts

pertaining to Jolene G., L.S., and Jennifer G. The defense then presented its case-in-chief. At

the close of trial, the court found Roy not guilty of three counts: the abduction count pertaining

to Jocelyn B.H., the gross sexual imposition count pertaining to Jennifer G., and the gross sexual

imposition count pertaining to Shelby W. The court found Roy guilty of the remaining six

counts. Those counts were (1) gross sexual imposition and sexual imposition, with respect to

Jocelyn B.H.; (2) gross sexual imposition and sexual imposition, with respect to Annette A.; (3)

gross sexual imposition, with respect to Jolene G.; and (4) gross sexual imposition, with respect

to L.S. The court sentenced Roy to community control.

{¶4} Roy now appeals and raises six assignments of error for our review. For ease of

analysis, we rearrange several of the assignments of error.

II.

ASSIGNMENT OF ERROR I

THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTIONS OF GROSS SEXUAL IMPOSITION, R.C. §2907.05.

{¶5} In his first assignment of error, Roy argues that his four convictions for gross

sexual imposition are based on insufficient evidence. Specifically, he argues that the State failed

to produce any evidence on the element of force. 3

{¶6} “Raising the question of whether the evidence is legally sufficient to support the

jury verdict as a matter of law invokes a due process concern.” State v. Diar,

,

, ¶ 113, citing State v. Thompkins,

(1997).

An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks,

(1991), paragraph two of the syllabus. “The test for sufficiency

requires a determination of whether the State has met its burden of production at trial.” State v.

Edwards, 9th Dist. Summit No. 25679,

.

{¶7} R.C. 2907.05(A)(1) provides that “[n]o person shall have sexual contact with

another, not the spouse of the offender[,] * * * when * * * [t]he offender purposely compels the

other person * * * to submit by force or threat of force.” Force encompasses “any violence,

compulsion, or constraint physically exerted by any means upon or against a person * * *.” R.C.

2901.01(A)(1). “One acts with force when he prevents his victim from moving away from him.”

State v. Owen, 9th Dist. Medina No. 3157-M,

, *3 (Nov. 7, 2001). “[A]

victim need not prove that * * * she physically resisted the offender in a prosecution for GSI.”

State v. Antoline, 9th Dist. Lorain No. 02CA008100,

, ¶ 66. Accord R.C.

2907.05(D).

Annette A.

{¶8} Annette testified that she became a medical assistant in January 2007 and applied

for a job at Roy’s office. She was 24 years old at the time and seeking a job where she could use

her new degree. Roy called Annette and scheduled an interview with her. Annette interviewed 4

with Roy on March 28, 2007. At the end of the interview, Roy asked Annette to return the

following day to begin learning her way around the office. According to Annette, Roy never

indicated that she would need a physical exam as a condition of her employment.

{¶9} The following day, Annette worked a full day at Roy’s office. Roy then asked

Annette to return on Saturday, March 31st. Annette worked that Saturday alongside another

female staff member. After they finished seeing patients for the day, however, Roy “suggested *

* * that if [Annette] felt comfortable, [the other staff member] could just go ahead and go home

for the day.” Annette testified that she did not feel that Roy was actually asking her if it was

alright for her fellow employee to leave. Instead, she felt “like he was pretty much saying that

she could leave.”

{¶10} Once Annette was alone with Roy, he called her into his office to speak with her.

Roy then told Annette for the first time that she would need a physical exam if she wished to

work at the office. Annette testified that Roy instructed her to get a new patient form from the

front desk and then walked her back to one of the exam rooms. According to Annette, Roy never

indicated that she could have her own physician complete the exam. Additionally, he never

asked her if she would prefer to have a chaperone present for the exam.

{¶11} Annette testified that Roy checked her height, weight, heart, and lungs before

telling her to lift up her shirt. Annette testified that she assumed Roy intended to listen to her

heart and lungs again, but that he pulled down her bra on the left-hand side and “fondled [her]

breast.” Roy then repeated his actions on the right-hand side and commented that Annette’s

breasts were small. Annette noted that Roy’s exam was different than other breasts exams she

had received in the past. She specified that the exam itself was “more of a squeezing” and that

Roy never explained to her what he was doing or offered her a gown to cover herself. Annette 5

testified that she could feel Roy’s legs against her knee as she sat on the exam table because he

was standing so close to her. She further testified that she never told Roy she was uncomfortable

during the exam because he was a doctor and doctors are “supposed to be trustworthy.”

{¶12} After touching Annette’s breasts, Roy had her lie down on the exam table and

began feeling her stomach. When he was finished, Roy led Annette down the hall for an eye

exam. Annette testified that there was a line on the floor to indicate where she should stand. As

Annette began the eye exam, Roy came up to her, wrapped his left arm around her, and rubbed

her left arm. Annette tried to step away to some degree and finished the exam.

{¶13} After the eye exam, Roy walked Annette towards the exit door. Annette testified

that Roy then stood in front of the door with his arms out, as if he expected a hug from her.

Annette testified that she gave Roy a “quick, weird hug” and left the office. Despite the fact that

Annette was upset by the entire incident, she testified that she decided to return to work and see

if things improved. She returned to the office on April 2, 2007.

{¶14} Annette stated that she worked the entire day on April 2nd without incident, but

that Roy called her into his office at the end of the day. At that point, Roy told Annette that she

would need to wear a padded bra to work so that her breasts would look bigger. Annette then

left for the day. Later that same evening, Annette decided to go to the police station and file a

report.

{¶15} Annette testified that she spoke with Detective Eric Van Kerkhove at the police

station and that he asked her to place a recorded phone call to Roy. Annette complied, and the

State introduced the recording of their phone conversation at trial. During the call, Roy admitted

that he told Annette to wear a padded bra, but downplayed the statement as either a general 6

comment for her benefit or a “slip of the tongue.” Roy also told Annette not to share his

statement with anyone else.

Jocelyn B.H.

{¶16} Jocelyn testified that she applied for a job at Roy’s office in March 2007, while

going to school to become a licensed practical nurse. Jocelyn was 19 years old at the time and

wanted to gain some experience in the medical field. Jocelyn testified that Roy called her on the

evening of March 29, 2007, and asked her to come to the office for an interview. He gave

Jocelyn his cell phone number so that she could call him when she arrived, as it would be after

hours and his office door would be locked. According to Jocelyn, Roy never told her that she

would have to undergo a physical exam as a condition of her employment.

{¶17} Jocelyn testified that her cousin drove her to the interview and remained in the car

while she went inside. Once inside the medical building, she called Roy’s cell phone and he

unlocked the door to his medical office. Jocelyn testified that no one else was around during her

interview with Roy and that Roy relocked the door to his medical office after letting her inside.

He then took Jocelyn to his office and began asking her questions.

{¶18} Although Roy started by asking Jocelyn about her qualifications, she testified that

the interview took a turn when Roy asked about her credit and she mentioned her Victoria

Secret’s credit card. Jocelyn testified that Roy then began asking her what type of items she

would buy from the store and when she would wear them. He also asked her whether she had a

boyfriend, how many men she had been with, and whether she used protection. Jocelyn testified

that she was struck by the improper turn the interview had taken, but that she just kept answering

Roy’s questions because she did not know what else to do. 7

{¶19} Jocelyn testified that, after Roy finished questioning her, he asked her to step into

one of the exam rooms so that he could see whether she knew how to take a patient’s blood

pressure and vital signs. Jocelyn stated that she went to grab her purse before leaving Roy’s

office, but that he told her she would not need it. Once inside the exam room, Jocelyn took

Roy’s blood pressure. He then asked her to sit on the exam table so that he could take her blood

pressure. Jocelyn testified that, as Roy took her blood pressure, he stood in front of her. She

further testified that she could feel that Roy had an erection because “his erection was rubbing on

[her] knee.” Jocelyn stated that Roy told her that her blood pressure was not normal and that she

would need a physical exam. She testified that she did not leave or ask Roy to stop because she

was afraid.

{¶20} Roy asked Jocelyn to lie down on the exam table. He listened to her chest and

then asked her to sit up. Jocelyn testified that Roy listened to her chest once more, but then

unsnapped her bra and told her to lie back down. He then began rubbing her stomach and

“groping [her] boobs.” According to Jocelyn, Roy never told her that he would be unsnapping

her bra and never explained why it would be necessary for him to touch her breasts. She testified

that Roy grabbed and squeezed her breasts and remarked “how beautiful they were.” Jocelyn

noted that, as she lay on the exam table, Roy was positioned between her and the door.

{¶21} Once Roy finished touching Jocelyn’s breasts, he asked to her pull her pants down

to see if she had any moles. Jocelyn testified that she complied, but that she only pulled her

pants down to her knees because she was afraid and wanted to leave. She stated that Roy began

rubbing the inside of her legs with his hands, so she pulled her pants back up and told him she

“really [had] to leave.” Roy, however, responded that he had not finished the physical and that

Jocelyn needed to take an eye exam. 8

{¶22} Jocelyn testified that she stood in the office hallway and began to read the lines on

the eye chart. As she did so, Roy placed his arms around her and began kissing her neck. Again,

Jocelyn testified that she did not know what to do so she finished the eye exam. Even so,

Jocelyn testified that she “kept telling [Roy] that [she] had to go” because her cousin was waiting

for her outside. Roy eventually told Jocelyn that the interview was over. Jocelyn testified that,

as Roy walked her to the door, unlocked it, and let her leave, he told her “that what is business is

business and what’s personal is personal.”

{¶23} Shortly after Jocelyn left Roy’s office, she went to the police station to file a

report. Jocelyn spoke with Detective Van Kerkhove and agreed to place a recorded phone call to

Roy. The State introduced the recording of their phone conversation at trial. During the call,

Roy apologized to Jocelyn for groping and kissing her. He told Jocelyn that she had not been

clear with him at his office, but that the two could have a professional relationship from that

point forward if that was what she desired. Yet, Roy also indicated that, if Jocelyn decided she

wanted to have sex with him, he was open to that possibility.

L.S.

{¶24} L.S. testified that she saw Roy as a patient in February 2006, when she was 15

years old and experiencing a variety of medical issues. L.S. stated that she was “really

exhausted” and had a difficult time getting out of bed when she and her mother went to Roy’s

medical office for an appointment. She testified that she and her mother chose Roy as a

physician because he had treated her sister’s difficult medical condition and they considered him

to be “a miracle worker.”

{¶25} At L.S.’s first appointment with Roy, Roy consulted with L.S.’s mother about

L.S.’s symptoms, took L.S.’s vitals, and checked her lymph nodes. L.S. testified that Roy then 9

reached underneath her clothes and groped her breasts in a painful manner. At the time, L.S. did

not know what a breast exam should feel like, but she testified that she thought something was

wrong and that the breasts exams she received later in life were nothing like Roy’s painful

grabbing. Moreover, she testified that Roy asked her “in depth about [her] sex life” at the

appointment and “kept going on about it.” L.S. testified that she did not report Roy’s behavior to

anyone because, at the appointment, Roy also discussed having her tested for leukemia and the

need to consult with a cancer specialist. L.S. stated that she was scared about the possibility of

having leukemia.

{¶26} Shortly after L.S.’s first visit with Roy, he had her hospitalized. L.S. testified that

she was ultimately treated for infectious mononucleosis, but that her hospital stay involved

significant testing and blood work. She testified that Roy came to see her in her hospital bed

when she was alone, being medicated intravenously, and feeling “[h]orrible.” According to L.S.,

Roy began telling her about the additional treatment she would need to receive and asked her

again about her sexual history. She testified that, as he was explaining her course of treatment,

Roy reached through the sleeve of her hospital gown and groped her breasts in a rough,

squeezing manner. L.S. stated that Roy did not explain why he was touching her breasts. She

testified that she did not question Roy’s behavior, however, because she was very concerned

about the possibility of having leukemia, confused about all of the treatment information he was

giving her, and afraid to lose him as a physician. She specified that her “sister gave rave reviews

for [Roy], and you’re thinking he’s a miracle worker and he’s going to cure you, and * * * you

don’t want to lose that.”

{¶27} Not long after her release from the hospital, L.S. saw Roy in his medical office.

L.S. was accompanied by her mother. She testified that Roy once again reached under her 10

clothes and grabbed her breasts while examining her. Roy did not warn L.S. that he was going to

touch her breasts or explain to her why it would be necessary to do so. L.S. testified that she

stopped seeing Roy as a doctor after the appointment.

Jolene G.

{¶28} Jolene testified that she was Roy’s patient from the beginning of 2005 until the

summer of 2006. At the time, Jolene was in her late twenties. She sought out Roy to serve

strictly as her family doctor, as she already had an OB/GYN who performed her breast exams as

part of her annual exam. Jolene testified that Roy treated her for several conditions, including

anxiety and depression, and that she was initially satisfied with their relationship. As time went

on, however, Jolene became uncomfortable with Roy.

{¶29} Jolene testified that Roy began asking her invasive questions about her sexual

health, including whether she or her boyfriend initiated sex. According to Jolene, when she told

Roy that her boyfriend was the initiator, Roy told her “that if [she] didn’t give [her boyfriend] the

sex when he wanted it, he would go elsewhere.” Jolene testified that, in all her years of

treatment, her OB/GYN never asked her the type of questions that Roy asked her.

{¶30} Jolene also testified that she became uncomfortable with Roy because, on two

separate occasions, he touched her breasts in a way she had never experienced before. She stated

that Roy had her sit on the exam table to listen to her heart with a stethoscope. Roy stood very

close to Jolene as he touched her and had Jolene leave on her shirt and bra. According to Jolene,

after Roy listened to her heart, he would set down his stethoscope, place his hands under her shirt

and bra, and fondle her. She specified that Roy would squeeze or grab her breasts by reaching

underneath her bra cup and that her shirt would still be covering her breasts as Roy squeezed

them. Jolene stated that Roy never explained why he was touching her breasts and did not 11

perform a breast exam in the manner to which she was accustomed. Although Jolene did not

understand why Roy was touching her breasts, she stated that she remained silent because she

was scared and did not want to accuse a doctor of touching her inappropriately if she was

misinterpreting the situation. Jolene observed, however, that Roy appeared to be enjoying

himself while he was touching her.

{¶31} Jolene testified that she went back to Roy after he touched her breasts the first

time because she was not sure how to interpret what had happened. Her next visit occurred

within a fairly short amount of time. Nevertheless, Jolene testified that Roy once again squeezed

her breasts in the same manner that he had done before. According to Jolene, Roy did not tell

her that he was going to touch her breasts or explain why it would be necessary for him to do so.

Jolene decided not to return to Roy after the second time that he fondled her.

Force or Threat of Force

{¶32} Roy argues that his gross sexual imposition convictions are based on insufficient

evidence because the State failed to prove that he compelled the four women described above “to

submit by force or threat of force.” R.C. 2907.05(A)(1). He argues that each of the women were

over the age of 13, awake, and “in [a] position to refuse the touching in question.” Yet, to secure

GSI convictions against Roy, the State did not need to prove that any of the women physically

resisted. Antoline,

, at ¶ 66; R.C. 2907.05(D). The question is whether, viewing

the evidence in a light most favorable to the State, a rational trier of fact could have found that

the State set forth evidence of any actual or threatened “violence, compulsion, or constraint

physically exerted by any means” by Roy against the women. R.C. 2901.01(A)(1).

{¶33} In State v. Owen, 9th Dist. Medina No. 3157-M,

(Nov. 7,

2001), this Court considered a sufficiency challenge similar to the one at hand. Owen, a 12

chiropractor, was convicted after several women accused him of engaging in improper sexual

contact with them during their chiropractic treatments. On appeal, Owen argued that one of his

gross sexual imposition convictions was based on insufficient evidence because the State failed

to prove that he compelled the victim to submit by force or the threat of force. Owen at *3. We

described the facts relevant to that victim as follows:

[The victim] went to see [Owen] for pain in her upper back and neck, and numbness in her arms. According to [the victim], she was topless during the examination except for the gown given to her by [Owen], and she had unfastened and slightly pulled down her blue jeans. She testified that while she was lying on her stomach on the examination table, [Owen] unnecessarily and without her consent massaged her bare breasts. She also stated that [Owen] massaged her buttocks and vaginal area through her blue jeans, until she wiggled around to make him stop. She further testified that [Owen] told her to turn over, and he again massaged her breasts and attempted to put his hand down the front of her blue jeans until she again wiggled herself to make him stop.

This Court held that the State set forth sufficient evidence of force because the victim

“testified that [Owen] was standing over her as she lay on the examination table and only

stopped touching her erogenous zones when she wiggled away from his touch.” Id. at *4.

{¶34} With regard to Annette A. and Jocelyn B.H., this Court finds that the State met its

burden on the force element of gross sexual imposition. Both women testified that Roy isolated

them in his medical office such that no one else was present when he touched them. In

particular, Annette testified that Roy invited the only other employee in the office to leave before

he touched her, and Jocelyn testified that Roy locked her inside the office with him when she

arrived late at night for her interview. Both women testified that Roy brought them into one of

the exam rooms and had them sit on the exam table, where Roy was positioned between them

and the door. Roy placed his body up against the legs of both women as he squeezed their

breasts, and Jocelyn testified that Roy rubbed his erection on her knee. Roy also made the

women lie down on the exam table where he stood over them and rubbed their stomachs. 13

Jocelyn testified that Roy instructed her to stay even after she told him that she had to leave and

that he put his arms around her and kissed her neck while she continued to tell him that she had

to go. Annette testified that she tried to step away from Roy to some degree when he placed his

arm around her and that Roy blocked the doorway when she attempted to leave, remaining there

until Annette gave him a hug.

{¶35} “The relationship of the parties is a relevant fact when examining whether the

element of force has been proven.” State v. Pordash, 9th Dist. Lorain No. 04CA008480, 2004-

Ohio-6081, ¶ 12. Both Annette and Jocelyn were young women who approached Roy as a

potential employer. Each woman was interested in a job in the medical profession, and Roy was

an established physician who was in a position to either help or hinder them in their pursuit of

their professional goals. Additionally, by touching each woman under the guise of a physical

examination, Roy ceased to be strictly a potential employer. Instead, he touched each woman in

his capacity as a practicing physician; a position of trust. Viewing the evidence in a light most

favorable to the State, we must conclude that the State set forth evidence from which a rational

trier of fact could have found that Roy employed either compulsion or constraint to compel

Annette and Jocelyn to submit. See Owen,

, at *3-4. See also R.C.

2901.01(A)(1) (force defined). Therefore, with respect to those two women, Roy’s gross sexual

imposition convictions are based on sufficient evidence.

{¶36} With regard to L.S., we likewise conclude that the State met its burden on the

force element of gross sexual imposition. In State v. Eskridge, the Ohio Supreme Court

considered the quantum of evidence necessary to prove force in the context of a father’s rape of

his four-year old daughter. State v. Eskridge,

(1988). The Supreme Court

wrote that “[f]orce need not be overt and physically brutal, but can be subtle and psychological. 14

As long as it can be shown that the rape victim’s will was overcome by fear or duress, the

forcible element of rape can be established.” (Internal quotations omitted.)

, citing

State v. Martin,

(9th Dist. 1946). The Court “recognize[d] the coercion

inherent in parental authority when a father sexually abuse[s] his child” and determined that the

element of force could be proven by evidence that the victim’s will had been overcome.

. But see State v. Schaim,

(1992) (threat of force could not be

inferred from father-daughter relationship where the rape victim was an adult and the State

introduced no evidence that she believed her father might use physical force against her).

{¶37} This Court has applied Eskridge in cases where the victim, while not a child of

tender years, was molested by someone in a unique position of authority. See, e.g., State v. Clay,

9th Dist. Medina No. 04CA0033-M,

; Pordash,

.

In State v. Clay, we relied upon the Fifth District case of State v. Oddi, 5th Dist. Delaware No.

02CAA01005,

. There, the Fifth District approved the application of Eskridge

in a case where the defendant was charged with gross sexual imposition and the victims were

several fifteen-year old girls who had had the defendant as their driving instructor. Oddi at ¶ 47-

58. The Fifth District wrote:

Although not a parent, or in loco parentis, appellant was certainly in a position of authority, and held a certain amount of power over an undoubtedly coveted prize to a child of fifteen-and-a-half of a driver’s license. Each of the girls testified the conduct took place within the car; a closed environment with no easily accessible escape given the circumstances. The girls testified this conduct occurred while they were driving in deserted areas, unfamiliar to them. All of the girls testified they thought of stopping the car and getting out, but ultimately decided against it because of the bad weather, the unfamiliar area or what they believed appellant’s reaction to the situation would be. While an adult might have managed the situation differently, our society does not generally expect a fifteen-year-old to have the emotional or practical experience necessary to face such a situation. Given all of the circumstances surrounding this case, we find no error in the trial court’s force instruction. 15

Id. at ¶ 57. We once again agree with the Fifth District’s rationale, as well as our prior case law

on this matter.

{¶38} Although L.S. was not a child of tender years at the time Roy admitted her to the

hospital, she was only fifteen years old. L.S. came to Roy at the recommendation of her sister

and considered him to be “a miracle worker.” She testified that she was very ill at the time and

did not know what was wrong with her. She expressed the fear that she developed when Roy

began discussing the possibility of her having cancer. After L.S. was admitted to the hospital at

Roy’s direction, L.S. described how Roy came to her hospital bed while she was alone and being

medicated intravenously. She described how Roy began asking her again about her sex life

while also telling her things about her treatment that she did not understand. She also testified

about the pain that Roy caused her when he reached through her hospital gown and forcefully

squeezed her breasts. L.S. testified that she did not want to challenge Roy’s actions because she

was afraid for her health and did not want to lose Roy’s skills as a physician.

{¶39} Under these circumstances and viewing the evidence in a light most favorable to

the State, we must conclude that the State met its burden of production on the element of force.

The State set forth evidence that Roy used his position as a doctor to exert control over L.S., a

fifteen-year old child, such that her will was overcome by fear or duress. See Clay,

; Oddi at ¶ 47-58. See also Eskridge,

. Therefore, with respect to

L.S., Roy’s gross sexual imposition conviction is based on sufficient evidence.

{¶40} With regard to Jolene G., this Court has conducted an exhaustive review of the

record. Even viewing the evidence in a light most favorable to the State, however, we are unable

to conclude that the State met its burden on the force element of gross sexual imposition. Jolene

G. testified that Roy touched her breasts on two occasions, during appointments she had with 16

him at his medical office. Although Jolene said that Roy made her uncomfortable, she did not

testify that she tried to pull away from him or vocalized her discomfort during the exams. The

exams took place during normal business hours at Roy’s medical office when other people were

present in the office. Jolene did not testify regarding any type of compulsion or constraint

beyond the sexual contact itself. Moreover, at the time Jolene went to see Roy, she was in her

late twenties. See Schaim,

(“No matter how reprehensible the defendant’s

alleged conduct, a woman over the age of majority is not compelled to submit to her [assailant]

in the same manner as is a [child of tender years]”).

{¶41} The State argues that Roy employed force against Jolene G. because he took

advantage of a mental condition she possessed to compel her to submit. Specifically, Jolene

acknowledged suffering from anxiety and depression at the time she sought treatment from Roy.

The gross sexual imposition statute, however, specifically criminalizes such conduct under a

separate subsection. See R.C. 2907.05(A)(5) (prohibiting one from engaging in sexual contact

with another when the other’s ability to resist is “substantially impaired because of a mental of

physical condition” and the offender has knowledge of that inability). The State only charged

Roy with violating R.C. 2907.05(A)(1), the subsection that requires proof of actual or threatened

force. This Court cannot rely upon a different subsection of the gross sexual imposition statute

so as to uphold his conviction. See State v. Rohr-George, 9th Dist. Summit No. 23019, 2007-

Ohio-1264, ¶ 11-12. Instead, we must review the record for evidence in support of the crime for

which Roy was indicted: gross sexual imposition under R.C. 2907.05(A)(1). The record reflects

that the State failed to set forth any evidence that Roy employed either actual or threatened force

to compel Jolene G. to submit. As such, with respect to Jolene G., we must conclude that Roy’s

gross sexual imposition convictions are based on insufficient evidence. 17

{¶42} Sexual imposition is a lesser-included offense of gross sexual imposition because

it does not require proof of the additional element of force. State v. Staab, 9th Dist. Lorain No.

04CA008612,

. Generally, “[w]hen the evidence shows that a defendant

was not guilty of the crime for which he was convicted, but was guilty of a * * * lesser-included

offense of that crime, we can modify the verdict accordingly, and remand the case for

resentencing.” State v. Aberegg, 9th Dist. Medina No. 10CA0129-M,

,

quoting State v. Skorvanek,

,

(9th Dist.). Here,

however, the trial court acquitted Roy of sexual imposition with respect to Jolene G. because the

State failed to set forth any evidence to corroborate her testimony. See State v. Economo,

(1996). See also R.C. 2907.06(B) (“No person shall be convicted of [sexual

imposition] solely upon the victim’s testimony unsupported by other evidence.”). This Court,

therefore, cannot modify Roy’s gross sexual imposition conviction so as to disturb the judgment

of acquittal. Instead, we must reverse the conviction related to Jolene G. and remand the matter

for the trial court to enter a judgment of acquittal.

{¶43} While this Court is bound to uphold the law as written, we are compelled to note

the disparity that currently exists in the law when the relationship between an offender and a

victim is one of doctor-patient. If an offender engages in sexual conduct with a victim, rather

than sexual contact, he or she may be charged with sexual battery. See R.C. 2907.03(A). The

sexual battery statute governs “a variety of situations where the offender takes unconscionable

advantage of the victim.” R.C. 2907.03, Legislative Service Commission Note (1973). One

such situation is when the victim “is in custody of law or a patient in a hospital or other

institution, and the offender has supervisory or disciplinary authority over the other person.”

R.C. 2907.03(A)(6). Yet, several districts have interpreted the foregoing language as applicable 18

to custodial-type settings, not as applicable to a typical doctor-patient relationship. See, e.g.,

State v. Arega, 10th Dist. Franklin No. 12AP-263,

, ¶ 17; State v. Bajaj, 7th

Dist. Columbiana No.

,

. While the statute contains a provision

specific to mental health professionals who misrepresent that sexual conduct “is necessary for

mental health treatment purposes,” R.C. 2907.03(A)(10), no such provision exists for general

physicians.

{¶44} If an offender engages in sexual contact with a victim, rather than sexual conduct,

he or she may be charged with gross sexual imposition. See R.C. 2907.05. That statute,

however, does not criminalize sexual contact based on any special position of trust that the

offender may occupy. There must be evidence that the offender used force, created or took

advantage of an impairment caused by an intoxicant, or victimized someone under the age of 13.

See

Absent such evidence, the sexual contact likely constitutes sexual imposition, a

misdemeanor offense that governs all offensive sexual contact, regardless of any special position

the offender may hold. See R.C. 2907.06.

{¶45} Physicians play a critical role in our society. The doctor-patient relationship is

one built on trust, with the patient agreeing to place his or her well-being in the hands of his or

her chosen caregiver. Patients rely on the advice and expertise of their doctors and assume that

their doctors have their best interests at heart. While an inappropriate touch would be cause for

alarm if performed by an ordinary member of society, few would question the same touch if it

occurred during a doctor’s examination. Indeed, several of the women in this case testified that,

even though Roy’s conduct made them uncomfortable and afraid, they did not know whether

they should report it, as he was a doctor and they were worried that they had misinterpreted the

situation. If an offender is a physician, he or she is uniquely situated to abuse the trust placed in 19

him by virtue of his status as such. Consequently, while this Court applies the law as it is

written, we urge the legislature to reexamine the law in this area.

{¶46} In sum, the State presented sufficient evidence to support Roy’s gross sexual

imposition convictions with respect to Annette A., Jocelyn B.H., and L.S., but insufficient

evidence to support his conviction with respect to Jolene G. We reverse Roy’s gross sexual

imposition conviction with respect to Jolene G. and remand the matter for the court to enter a

judgment of acquittal. Roy’s first assignment of error is overruled in part and sustained in part.

ASSIGNMENT OF ERROR II

THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF SEXUAL IMPOSITION, R.C. §2907.06 AGAINST ANNETTE [A].

{¶47} In his second assignment of error, Roy argues that one of his convictions for

sexual imposition is based on insufficient evidence. Specifically, he argues that the State failed

to set forth any evidence to corroborate the testimony of Annette A. We disagree.

{¶48} We incorporate the standard of review for sufficiency set forth in Roy’s first

assignment of error. The sexual imposition statute provides, in relevant part, that “[n]o 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). The statute further provides that a person may not be convicted of

sexual imposition “solely upon the victim’s testimony unsupported by other evidence.” R.C.

2907.06(B). The corroboration requirement is not a “question of proof” for the jury, but “a

threshold inquiry of legal sufficiency to be determined by the trial judge.” Economo,

. “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 20

the crime charged. Slight circumstances or evidence which tends to support the victim’s

testimony is satisfactory.”

{¶49} This Court outlined Annette A.’s testimony in Roy’s first assignment of error.

Roy argues that her testimony was the only evidence that the State produced in support of his

sexual imposition charge, so there was insufficient evidence of corroboration. He notes that

there were no other witnesses to the alleged assault and the State did not produce any forensic

evidence tending to show that the assault occurred.

{¶50} In Economo, the Supreme Court indicated its approval of the case of Fitzgerald v.

United States,

(D.C.App. 1982), in which that court wrote that “reasonably

prompt reporting of [a sexual assault] to one’s family, friends or police” constituted sufficient

evidence of corroboration.

, quoting

. The Economo

court itself found sufficient evidence of corroboration where medical records established that the

defendant had access to the victim, the victim reported the alleged assault within several days of

its occurrence, and the victim’s sister testified that the victim had been afraid to be alone with the

defendant.

. A defendant’s own statements can also serve as corroborative

evidence. See, e.g., State v. Golden, 5th Dist. Stark No. 2008CA00182,

, ¶ 18-

21.

{¶51} Annette testified that she went to the police station on April 2, 2007, five days

after Roy touched her breasts and the same day that he told her she would need to wear a padded

bra to work. She also made a recorded phone call to Roy. On the phone call, Roy admitted that

he told Annette to wear a padded bra to work, but cast his statement as either a suggestion for

Annette’s benefit or a “slip of the tongue.” He also admitted that he told Annette her breasts

were small, calling his statement a “general comment.” When Annette asked Roy why he 21

needed to touch her breasts, he stated that it “was just to see if anything was there.” Likewise,

when Annette asked Roy whether he received pleasure from touching her breasts, he indicated

that it was “not like that.” He, therefore, did not dispute that he touched her breasts. Moreover,

Roy later admitted in a recorded interview with Detective Van Kerkhove that he had touched

Annette’s breasts, but that it was just a quick touch to “see if anything [was] there.”

{¶52} Viewing the evidence in a light most favorable to the State, we must conclude that

the State set forth sufficient evidence of corroboration. As noted above, “[s]light circumstances

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

. The fact that Annette reported the incident relatively quickly in conjunction

with the admissions Roy made on the recorded phone call she placed to him and in his interview

with Detective Van Kerkhove were sufficient to prove corroboration. Accordingly, Roy’s

second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY CONSIDERING UNFAIRLY PREJUDICIAL OTHER ACTS EVIDENCE IN CONTRADICTION OF OHIO RULE OF EVIDENCE 404(B) AND STATE AND FEDERAL DUE PROCESS.

{¶53} In his third assignment of error, Roy argues that the trial court erred by admitting

certain other acts evidence. We disagree.

{¶54} Under Evid.R. 404(B), other acts evidence “is not admissible to prove that the

defendant acted in conformity with the character demonstrated by the other acts, but other acts

evidence may be admissible for different purposes.” State v. Guerra, 9th Dist. Lorain No.

12CA010188,

. The Rule “contains a non-exhaustive list of exceptions

under which other acts evidence may be admitted for a purpose other than to show propensity.”

State v. Calise, 9th Dist. Summit No. 26027,

. It specifies, for example, 22

that other acts evidence may be admitted for purposes “such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R.

404(B).

{¶55} The admission of other acts evidence is a three-step process:

The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.

State v. Williams,

,

. When an appellant challenges the

admission of other acts evidence, we review the trial court’s decision for an abuse of discretion.

State v. Morris,

,

, syllabus. Under this “deferential”

standard, “[i]t is not sufficient for an appellate court to determine that a trial court abused its

discretion simply because the appellate court might not have reached the same conclusion or is,

itself, less persuaded by the trial court’s reasoning process than by the countervailing

arguments.” Id. at ¶ 14. Instead, a reviewing court must consider whether the trial court’s

decision lacked “a sound reasoning process.” Id., quoting AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp.,

(1990).

{¶56} Roy argues that the trial court erred by allowing the State to present other acts

testimony through two different witnesses: Michelle P. and Detective Van Kerkhove. We

address each witness separately. 23

Michelle P.

{¶57} Michelle testified that she worked for Roy as a medical receptionist from

approximately August 2005 to March 2007. In the fall of 2006, Michelle developed an infection

on her left nipple and made an appointment with her gynecologist. Roy, however, would not

permit her to take time off from work for the appointment. Michelle testified that Roy insisted

on treating her himself.

{¶58} Michelle testified that Roy directed her to one of the exam rooms after he had

finished seeing patients for the day. According to Michelle, she unclasped her bra at Roy’s

direction and Roy lifted her shirt. Michelle stated that, although only her left nipple was infected

and the infection was “[v]ery visible,” Roy squeezed both of her breasts. Michelle testified that

Roy never explained why he had to touch her breasts and that his doing so made her

uncomfortable. After Roy touched Michelle, he prescribed her an antibiotic that ultimately cured

the infection.

{¶59} Michelle testified that Roy approached her in the office hallway at a later date and

inquired as to whether the infection had cleared. At the point that Roy approached Michelle, all

of the patients had left for the day. Michelle told Roy that her infection was gone, but he insisted

on seeing her breast. Michelle testified that she ultimately relented and quickly lifted up her shirt

in the hallway to show Roy her breast. Roy then said “okay.” Once again, Michelle testified

that the incident made her uncomfortable. She testified that she ultimately resigned from Roy’s

office because she wanted a higher paying job and did not like the office atmosphere. Michelle

specified that Roy was “always hollering at you.”

{¶60} Roy argues that the testimony outlined above was improper, as it was offered for

the sole purpose of establishing that he “had a proclivity to act in a similar manner.” He notes 24

that identity was never an issue in this case and that the alleged incident with Michelle did not

help to form the background of any of his indicted offenses. Roy argues that he was prejudiced

by the admission of Michelle’s testimony because a great danger existed that the court would

consider it as evidence that he was the type of person who would commit his indicted offenses.

{¶61} Identity is only one exception under which other acts evidence may be admitted.

See Evid.R. 404(B). “[E]vidence of other crimes, wrongs, or acts of an accused may be

admissible to prove intent or plan, even if the identity of an accused or the immediate

background of a crime is not at issue.” Williams,

,

.

In Williams, the defendant was charged with various acts of sexual misconduct in relation to a

teenage boy whom he had mentored. During trial, the court permitted the State to introduce

evidence that the defendant had sexually abused another teenage boy several years before, after

having formed a mentoring relationship with that boy. Although identity was not at issue in the

case, the Ohio Supreme Court upheld the admission of the evidence, noting that it tended to

show the defendant’s motive as well as “the preparation and plan he exhibited of targeting,

mentoring, grooming, and abusing teenage boys.” Id. at ¶ 22.

{¶62} Roy has not addressed Williams in his brief, so he has not offered any argument as

to why, apart from identity, Michelle’s testimony was inadmissible under Evid.R. 404(B). See

App.R. 16(A)(7). The trial court specifically found that Michelle’s testimony was admissible to

prove Roy’s motive, intent, and/or plan. Roy’s defense was that any breast exams he conducted

were legitimate medical procedures that were not performed for the purpose of his sexual arousal

or gratification. See R.C. 2907.01(B) (sexual contact defined). If believed, Michelle’s testimony

tended to show that Roy required her to forego an appointment with her own doctor so that he

could touch her breasts and later look at her breasts, over her objection, in the hallway of his 25

office. It also tended to rebut Roy’s assertion that he only ever conducted legitimate breast

examinations. Therefore, we cannot conclude that the trial court abused its discretion by

determining that the testimony was relevant and offered for a legitimate purpose; to wit: Roy’s

motive, intent, and/or plan to commit the sexual offenses for which he was indicted. See

. See also State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-

5368, ¶ 19.

{¶63} To the extent Roy argues that the admission of Michelle’s testimony was highly

prejudicial, we note that this was a bench trial. “A trial judge in a bench trial is presumed to

know the law and to consider only the relevant, material, and competent evidence in arriving at a

decision.” State v. Diaz, 9th Dist. Lorain No. 02CA008069,

, ¶ 39. See also

State v. Bays,

(1999). The court here specified that it was considering

Michelle’s testimony as evidence of Roy’s motive, intent, and/or plan. Roy has not pointed to

anything in the record to show that the court considered the testimony as evidence of his

character. Moreover, the testimony tended to corroborate multiple claims of sexual abuse, all of

which Roy had denied. We cannot agree, therefore, that Michelle’s testimony was substantially

more prejudicial than probative such that the court erred by admitting it. See

.

{¶64} To the extent Michelle also testified that Roy always hollered at her, we note that

Roy failed to object to that portion of her testimony and has not argued plain error on appeal. As

such, we need not consider whether that portion of Michelle’s testimony was proper other acts

evidence. See State v. Ibn-Ford, 9th Dist. Summit No. 26386,

(declining

to construct a claim of plain error on appellant’s behalf with regard to a forfeited objection). 26

Detective Van Kerkhove

{¶65} Roy argues that the court erred by allowing Detective Van Kerkhove to testify

that, during his police station interview, Roy focused on a female detective’s breasts. The record

reflects that Roy did not object to the Detective’s statement at trial. Roy, therefore, forfeited his

objection to the statement. See State v. Hill, 9th Dist. Summit No. 26519,

.

Although forfeiture does not extinguish a claim of plain error, Roy has failed to argue plain error

on appeal. “[T]his Court will not construct a claim of plain error on behalf of an appellant who

fails to raise such an argument in [his] brief.” State v. White, 9th Dist. Summit Nos. 23955 &

23959,

. Accordingly, we will not consider whether Detective Van

Kerkhove’s statement gave rise to plain error. Roy’s third assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT UNDULY RESTRICTED THE APPELLANT’S RIGHT TO CONFRONTATION BY LIMITING QUESTIONING OF THE LEAD DETECTIVE AS TO IMPROPER CONDUCT OCCURRING SUBSEQUENT TO THE PRESENT CHARGES.

{¶66} In his fifth assignment of error, Roy argues that the trial court erred by not

allowing him to cross-examine Detective Van Kerkhove with respect to certain misconduct that

occurred after the investigation in this matter. Because Roy has forfeited this argument and has

not argued plain error on appeal, we decline to address it.

{¶67} Prior to trial, the State made an oral motion in limine to prevent Roy from asking

Detective Van Kerkhove about certain misconduct that occurred after the investigation in this

matter. The court permitted both parties to present arguments on the motion. The court then

granted the motion in limine on the basis that the line of questioning would not be relevant.

When Detective Van Kerkhove later testified, Roy never sought to revisit the court’s pre-trial

ruling. 27

{¶68} “The trial court’s ruling on a motion in limine is preliminary.” State v. Winston,

9th Dist. Summit No. 24761,

, ¶ 12. “This Court is not required to decide

whether a trial court’s order granting or denying a motion in limine is proper if the claimed error

is not preserved by objection, proffer, or ruling on the record at the pertinent part during the

trial.” State v. Gay, 9th Dist. Summit No. 26487,

. “Where a party fails to

preserve the claimed error * * * at a time when the trial court has the opportunity to resolve the

issue when it arises, he has forfeited the issue on appeal.” Ibn-Ford,

.

The party may argue plain error on appeal, but this Court will not perform a plain error analysis

on his behalf.

{¶69} The record reflects that Roy forfeited the argument he now seeks to raise by not

revisiting the court’s preliminary ruling at trial. Moreover, Roy has not argued plain error on

appeal. Because this Court will not construct a claim of plain error on his behalf, we need not

consider whether the trial court committed plain error by restricting his cross-examination of

Detective Van Kerkhove. See

Roy’s fifth assignment of error is overruled.

ASSIGNMENT OF ERROR VI

THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.

{¶70} In his sixth assignment of error, Roy argues that his convictions are against the

manifest weight of the evidence. We disagree.

{¶71} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. State v. Thompkins,

(1997).

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court 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 the conviction must be reversed and a new trial ordered. 28

State v. Otten,

(9th Dist. 1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.”

, quoting Tibbs v. Florida,

(1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases.

.

{¶72} Initially, we note that Roy’s manifest weight argument encompasses the

conviction for gross sexual imposition that this Court reversed on the basis of insufficient

evidence. That conviction pertained to Jolene G. Because we are reversing that conviction, we

need not consider whether it is against the manifest weight of the evidence. Our review is

limited to Roy’s convictions for (1) gross sexual imposition and sexual imposition with respect

to Annette A., (2) gross sexual imposition and sexual imposition with respect to Jocelyn B.H.,

and (3) gross sexual imposition with respect to L.S.

{¶73} Roy argues that the trial court lost its way when it chose to believe the testimony

of the alleged victims in this matter. He avers that the State failed to introduce any physical

evidence in support of the charges against him and that several of the alleged victims engaged in

behavior that was inconsistent with their claims of sexual assault. With respect to Annette A., he

notes that she returned to the office to work after she claimed the assault took place and never

testified that she told Roy to stop during the exam. With respect to Jocelyn B.H., Roy notes that

she failed to mention his erection in her original police statement and had a financial motive to

lie, as she admitted that she had filed a civil suit against him. With respect to L.S., Roy notes

that she never sought help from any of the staff members at the hospital after the alleged assault

and that she returned to him for treatment on more than one occasion after her release from the 29

hospital. Further, he notes that L.S. only came forward after the release of a newspaper article,

detailing the allegations of sexual abuse that other women had made about him.

{¶74} Multiple women in this case, who were strangers to one another, testified that Roy

squeezed and fondled their breasts without warning and in a manner inconsistent with standard

breast examinations. Dr. Leonard Kanterman testified as a board certified doctor in internal

medicine and chairman of the medical ethics committee at Trumbull Memorial Hospital.

According to Dr. Kanterman, the Ohio State Medical Board adopted a standard of care in

November 2006, requiring doctors to offer the presence of a chaperone to patients in need of

breast exams. Dr. Kanterman testified that a doctor who fails to at least offer a chaperone to his

patient before conducting a breast exam has violated the standard of care. He also testified that

proper breast exams involve palpitations with the fingers and cannot be performed while a

patient’s bra is in place. While Dr. Kanterman agreed that a doctor can require potential

employees to undergo a physical, he testified that a potential employee must be allowed their

choice of provider. He also opined that a breast examination would not be a proper part of a pre-

employment physical.

{¶75} Several of Roy’s former patients testified in his defense and noted their

satisfaction with his level of care. Several of those same patients, however, testified that Roy

would never perform their breast examinations because he would always refer them to their

OB/GYNs. Additionally, three of Roy’s former employees testified that Roy never required

them to undergo a physical exam as a condition of their employment.

{¶76} Both Annette and Jocelyn testified that Roy touched their breasts when they

interviewed with him. Both women testified that they were alone with Roy in his medical office

when he touched them and that Roy squeezed their breasts instead of palpitating them. Annette, 30

in particular, testified that she was still wearing her bra when Roy touched her breasts. Roy

admitted both in the recorded phone calls that were introduced and his recorded police interview

that he touched the breasts of both women, but claimed that he did so as part of their pre-

employment interview.

{¶77} L.S. admitted that she never told anyone that Roy had touched her

inappropriately, but explained that she was afraid to do so because she did not want to lose him

as a doctor at a time when she might have cancer. L.S. testified that she was very sick and

believed Roy to be “a miracle worker.” As for not telling the police what Roy had done after she

recovered from her illness, L.S. testified that she was initially hesitant to come forward because

she thought it was her fault that she had not objected when Roy touched her. After seeing that

other woman were accusing Roy of the same thing, however, L.S. testified that she knew she had

to come forward to prevent Roy from continuing to abuse other women in his practice.

{¶78} To the extent that the testimony of the alleged victims contained minor

inconsistencies, the court was in the best position to evaluate their credibility. See State v. Ross,

9th Dist. Wayne No. 12CA0007,

. “[T]his Court will not overturn the trial

court’s verdict on a manifest weight of the evidence challenge simply because the trial court

chose to believe certain witnesses’ testimony over the testimony of others.”

Having

reviewed the record, we cannot conclude that this is the exceptional case where the trier of fact

lost its way by convicting Roy. See Otten,

. Roy’s argument that his

convictions are against the manifest weight of the argument lacks merit. As such, his sixth

assignment of error is overruled.

ASSIGNMENT OF ERROR IV

GROSS SEXUAL IMPOSITION, R.C. §2907.05 AND SEXUAL IMPOSITION, R.C. §2907.06 ARE ALLIED OFFENSES PURSUANT TO R.C. §2945.21. 31

{¶79} In his fourth assignment of error, Roy argues that the trial court erred by

sentencing him to allied offenses of similar import. Specifically, he argues that he only should

have been sentenced on two counts of gross sexual imposition because his sexual imposition

convictions should have merged with those counts. The State concedes the error and asks this

Court to remand the matter so that it may elect which offenses it will pursue against Roy.

{¶80} Pursuant to R.C. 2941.25(A), “[w]here the same conduct by defendant can be

construed to constitute two or more allied offenses of similar import * * * the defendant may be

convicted of only one.” The record reflects that Roy only engaged in sexual contact with each

Annette A. and Jocelyn B.H. on one occasion and that, with respect to those two victims, his

gross sexual imposition and sexual imposition counts were alternative theories, pertaining to the

same conduct. Because the State concedes that the offenses pertaining to each victim were allied

and our review of the record supports that conclusion, we agree that it is appropriate to remand

the matter for resentencing, “at which point the State can elect which allied offense it will pursue

against [Roy], consistent with the Supreme Court’s directive in State v. Whitfield,

,

.” State v. Washington, 9th Dist. Lorain Nos. 10CA009767 & 10CA009768,

, ¶ 22. Thus, on remand, the State may elect to pursue (1) either the gross sexual

imposition count or sexual imposition count with respect to Annette, and (2) either the gross

sexual imposition count or sexual imposition count with respect to Jocelyn, for a total of two

convictions. Roy’s fourth assignment of error is sustained.

III.

{¶81} Roy’s fourth assignment of error is sustained and his first assignment of error is

sustained in part and overruled in part. His remaining assignments of error are overruled. The 32

judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and

remanded for further proceedings consistent with the foregoing opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

DONNA J. CARR FOR THE COURT

HENSAL, P. J. WHITMORE, J. CONCUR 33

APPEARANCES:

DAVID L. DOUGHTEN and KIMBERLY KENDALL, Attorneys at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.