[Cite as State v. Holsey, 2011-Ohio-4506.]




               Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 96094



                                         STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       ROBERT HOLSEY

                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-539402
       BEFORE:      Stewart, P.J., Cooney, J., and Rocco, J.

    RELEASED AND JOURNALIZED: September 8, 2011
ATTORNEY FOR APPELLANT

Patrick E. Talty
20325 Center Ridge Road, Suite 512
Rocky River, OH 44116-4386


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Scott Zarzycki
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

       {¶ 1} The court tried and convicted defendant-appellant, Robert Holsey,

on two counts of rape, one count of kidnapping, and two counts of sexual

battery in connection with an incident in which he engaged in sexual conduct

with his highly-intoxicated half-sister.            The court merged the counts for

sentencing and imposed a single five-year prison term. In this appeal, he

argues that the court’s judgment of conviction is supported by neither the
sufficiency nor the weight of the evidence. Having conceded that he engaged

in sexual intercourse with the victim, he maintains that what transpired

between them was consensual in all respects and that the state’s evidence

failed to prove otherwise.

                                       I

      {¶ 2} When reviewing a claim that there is insufficient evidence to

support a conviction, we view the evidence in a light most favorable to the

prosecution to determine whether any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt. State

v. Jenks (1981), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus.

                                       A

      {¶ 3} The indictment charged Holsey with kidnapping under R.C.

2905.01(A)(4).   That section states that no person, by force, threat, or

deception, shall restrain the liberty of another person for purposes of engaging

in sexual activity against the victim’s will. To “restrain the liberty of the

other person” means “to limit one’s freedom of movement in any fashion for

any period of time.” State v. Wright, 8th Dist. No. 92344, 2009-Ohio-5229,

¶23, citing State v. Wingfield (Mar. 7, 1996), 8th Dist. No. 69229.

      {¶ 4} The evidence showed that Holsey and his two half-sisters were

drinking at a bar and during the course of the evening, the victim consumed at
least six double-shots of vodka. Being intoxicated, she became belligerent

and started arguing with her sister. In order to separate the two sisters,

Holsey and two others walked the victim out to their car and placed her in the

back seat. Holsey entered the back seat of the car with the victim, and the

other two men went back into the bar. The victim recalled seeing Holsey’s

penis before she lost consciousness. When she regained consciousness, she

felt severe pain in her genital area, but could recall nothing of what transpired

in the back seat of the car.

      {¶ 5} Holsey testified and confirmed that the victim became so

intoxicated that he and two others had to walk her out of the bar and to their

car. The victim tried to leave, so Holsey put her in the back seat of the car

and sat next to her. Holsey said at that point, the victim began “coming on to

me” by touching and grabbing him in an aggressive manner.                Despite

misgivings over the morality of having sex with his half-sister, Holsey said

they engaged in consensual sexual intercourse.

      {¶ 6} In finding Holsey guilty, the court noted that Holsey “admitted he

was trying to keep the victim in the car although that wouldn’t have been for

sexual motivation. His apparent reason for trying to keep the victim in the

car was to keep her from going back into the bar and getting into another

altercation with her sister ***.” By the court’s own reasoning, Holsey’s act of
locking the car doors was not done with a sexual motivation, so these facts

cannot support the kidnapping count.

      {¶ 7} The court also noted that a sexual assault nurse examiner who

examined the victim on the evening of the rape noted that the victim told her

“the defendant did put his arm across her trachea and held [her] down.” The

transcript does not reflect the gestures made by the nurse in her testimony,

but the nurse’s notes were admitted into evidence and show that the victim

told the nurse that Holsey had his arm across the victim’s trachea. The nurse

found no physical evidence to corroborate the victim’s assertion that Holsey

held her down.

      {¶ 8} Viewing this evidence most favorably to the state, we find that the

court could rationally rely on the nurse’s testimony as evidence of force. Even

though the victim could not recall anything that happened in the car after

seeing Holsey’s penis, statements she made to the nurse were admissible to

demonstrate the element of physical restraint. The element of restraint of

liberty can be established with evidence showing the defendant limited

another’s freedom of movement “in any fashion for any period of time.”

Wingfield. Holsey’s act of placing his arm against the victim’s neck was a

display of physical force and sufficed as a restraint upon the victim’s liberty for

purposes of proving the essential elements of kidnapping.

                                        B
      {¶ 9} The indictment charged Holsey with two counts of rape under R.C.

2907.02(A)(1)(c) and (A)(2).

                                       1

      {¶ 10} R.C. 2907.02(A)(1)(c) states that no person shall engage in sexual

conduct with another when the other person’s “ability to resist or consent is

substantially impaired because of a mental or physical condition.”

“Voluntary intoxication or impairment is included in the terms ‘mental or

physical condition’ as used in R.C. 2907.02(A)(1)(c).” State v. Freeman, 8th

Dist. No. 95511, 2011-Ohio-2663, ¶15, citing State v. Doss, 8th Dist. No. 88443,

2008-Ohio-449,    ¶15.     What   constitutes   “substantial   impairment”    is

undefined, but it is more than that which lowers inhibitions and certainly

lessens the complete mental impairment.         Id. at ¶16.    The question of

whether a victim is substantially impaired is one of fact and may be proven by

lay testimony given the ordinary experiences of others. State v. Brady, 8th

Dist. No. 87854, 2007-Ohio-1453, at ¶78.

      {¶ 11} We need not dwell on the quantum of evidence supporting the

victim’s intoxication because Holsey’s testimony proved the point.           He

conceded that the victim was so intoxicated that he and two others had to

remove her from the bar. Security video confirms Holsey’s description of the

victim — she was so intoxicated that she had difficulty walking and, at one

point, fell to the ground while being escorted to the car. Holsey also testified
that at the conclusion of sexual intercourse, the victim became incontinent in

the back seat of the car. This indicates that the victim was so intoxicated that

she had lost control over her bodily functions. Nearly every witness who saw

the victim that evening noted her extreme intoxication, including Holsey’s

mother, who testified that the victim was more intoxicated than she had ever

seen. These witnesses collectively testified that the victim was slurring her

words and had difficulty due to her intoxication. Evidence of the victim’s

impairment by intoxication was overwhelming.

                                        2

      {¶ 12} R.C. 2907.02(A)(2) states:      “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.”

      {¶ 13} The evidence of restraint used to prove the kidnapping charge was

relevant to prove the rape element of force — by putting his arm against the

victim’s throat, Holsey forced the victim into submission. Corroboration of

force came in the form of the victim’s statement to the nurse that “I didn’t

know if he was going to kill me or what.” In addition, the victim testified that

she experienced a great deal of vaginal pain following the rape, a fact

confirmed by a physical examination that revealed a small, vaginal laceration

on the victim’s posterior fourchette.       Finally, the nurse’s note quoted the

victim as stating, “my vagina feels heavy. I can’t even sit.”
      {¶ 14} Apart from direct evidence that Holsey used force to compel the

victim’s submission, the court could rationally have considered the victim’s

internal injuries were an indication that force had been used.       While an

internal laceration may not always be indicative that force had been used to

compel a victim’s submission to sexual intercourse, in this case the injury fit

within the overall profile of a forced sexual encounter.

                                       C

      {¶ 15} The indictment charged Holsey with sexual battery under R.C.

2907.03(A)(2) and (A)(3).

                                       1

      {¶ 16} R.C. 2907.03(A)(2) states:    “No person shall engage in sexual

conduct with another, not the spouse of the offender, when the offender knows

that the other person’s ability to appraise the nature of or control the other

person’s own conduct is substantially impaired.” In State v. Tollivar (July 31,

1997), 8th Dist. No. 71349, we held that where “the state presented evidence

that [the defendant and the victim] *** engaged in sexual intercourse, that at

the time [the victim] was in a state of deep sleep and/or drunkenness, and that

she had not consented to intercourse with [the defendant], *** the jury could

infer her condition substantially impaired her ability to control her conduct,”

and that such evidence was sufficient to support a jury verdict finding the

defendant guilty of sexual battery. Id. at 7.
      {¶ 17} Holsey was well-aware of the victim’s impaired ability to function

when he escorted the literally falling-down-drunk victim from the bar to the

car. By his own admission, she was so intoxicated that after the rape, she

urinated inside the car, literally spraying the interior as he watched. As we

earlier stated, evidence that the victim was so drunk that she had trouble

standing and that she lacked the ability to control her bodily functions was

overwhelming proof of her intoxication.

                                        2

      {¶ 18} R.C. 2907.03(A)(3) states:     “No person shall engage in sexual

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

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

the act is being committed.”

      {¶ 19} In the usual case, prosecutions under R.C. 2907.03(A)(3) apply

when “the victim is typically either asleep or unconscious, and then awakes to

discover the offender engaging in sexual conduct with him or her.” In re

J.A.S., 12th Dist. No. CA2007004-046, ¶20, citing State v. Antoline, Lorain

App. No. 02CA008100, 2003-Ohio-1130, ¶55. However, consciousness is not

the touchstone of an R.C. 2907.03(A)(3) violation — the statute only requires

that the victim be “unaware” that sexual conduct is occurring, so testimony

that a victim was conscious but “out of it” is sufficient to establish a violation.

See State v. Macht (June 11, 1999), 1st Dist. No. C-980676.
      {¶ 20} The court found that the victim had been “unaware” that she was

engaging in sexual intercourse, relying on her testimony that after seeing

Holsey’s penis, she had no recollection of having sexual intercourse with him.

Other evidence supported this finding. The nurse commented on the victim’s

hysterical state shortly after the rape and recounted the victim’s statement

that, “he’s my own blood. You don’t do this to your own blood.” The court

could rationally have found this reaction to be consistent with the victim’s

claim that she had been unaware that Holsey had engaged in sexual

intercourse with her.   Other witnesses recalled that the victim was in a

hysterical state, thus lending credibility to her claim that she had been

unaware that Holsey had sexual intercourse with her. Indeed, one witness

recalled that the victim entered a diner where he was seated, squatted behind

the counter and cried, “Help me, help me, don’t let him get me.” Again, these

statements were broadly consistent with the reaction one might expect from a

person who had been unaware that another was having sexual intercourse

with her.

                                       II

      {¶ 21} Holsey next argues that the court’s verdict is against the manifest

weight of the evidence, but apart from citing the relevant standard of review,

Holsey makes no independent argument in support of this assignment of error.

We thus decline to address it because it fails to comport with the App.R.
16(A)(7) obligation to give “reasons in support of the contentions, with

citations to the authorities, statutes, and parts of the record on which

appellant relies” and the App.R. 12(A)(2) obligation to separately argue each

assignment of error. See State v. Judd, 8th Dist. No. 89278, 2007-Ohio-6811,

¶46.

       {¶ 22} Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution.                The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.           Case remanded to

the trial court for execution of sentence.

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

Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
KENNETH A. ROCCO, J., CONCUR
