[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