Defendant appeals from one of three convictions resulting from a single trial — his conviction under Count III of the indictment for first degree kidnapping. Defendant argues the maximum conviction warranted by the evidence was second degree kidnapping, citing State v. Swaggerty, 15 Or App 343, 515 P2d 952 (1973).

The state concedes that Swaggerty is indistinguishable, and that the judgment of the trial court must be modified to reflect conviction for second degree kidnapping.

Affirmed as modified on Count III and remanded for resentencing thereon.