State v. Holsey , 2011 Ohio 4506 ( 2011 )

[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