Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-624229-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Michael Lisk, Assistant Prosecuting Attorney,
A Miranda, for appellant.
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, JUDGE
1} Defendant-appellant Arnaldo Ortiz-Vega appeals
from his conviction for several counts of rape and two counts
of kidnapping. After a thorough review of the record and the
law, we find Ortiz-Vega's convictions are not against the
manifest weight of the evidence, the trial court did not err
in allowing the state to cross- examine Ortiz-Vega on his
previous marriages or his sexual activity with the victim
while married, and the trial court made the requisite
consecutive-sentence findings and his consecutive sentence is
supported by the record. We therefore affirm.
2} Ortiz-Vega was charged in a multiple-count
indictment concerning several incidents with W.Z.,
Ortiz-Vega's wife, in October 2017. The indictment
charged as follows: Count 1 - rape in violation of R.C.
2907.02(A)(2) (digital penetration); Count 2 - rape in
violation of R.C. 2907.02(A)(2) (vaginal intercourse); Count
3 - kidnapping in violation of R.C. 2905.01(A)(4); Count 4
-rape in violation of RC. 2907.02(A)(2) (vaginal
intercourse); Count 5 - rape in violation of R.C.
2907.02(A)(2) (cunnilingus); Count 6 - rape in violation of
R.C. 2907.02(A)(2) (digital penetration); and Count 7 -
kidnapping in violation of RC. 2905.01(A)(4). Both kidnapping
counts included a sexual motivation specification in
violation of R.C. 2941.147(A).
A jury trial commenced on July 10, 2018. The state's
witnesses included: the victim, W.Z.; the victim's friend
Milcarleny Lizardo; sexual assault nurse examiner
("SANE") Amber Pierce-Smith; and W.Z.'s
treating physician Dr. Joel Escobedo. Ortiz-Vega testified on
his own behalf. After the close of the state's evidence,
the state moved to dismiss the rape charge in Count 4, which
the court granted. The court then renumbered the indictment
to include six counts: Count 1 - rape; Count 2 - rape; Count
3 - kidnapping; Count 4 - rape; Count 5 -rape; and Count 6 -
4} On July 13, 2018, the jury returned a verdict of
guilty on all counts. The court held a sentencing hearing,
during which the court merged Count 3 into Counts 1 and 2 and
Count 6 into Counts 4 and 5. The state requested that the
court sentence on Counts 1, 2, 4, and 5. The court then
imposed a sentence as follows: seven years on Counts 1 and 2,
to be served concurrently, and eight years on Counts 4 and 5,
to be served concurrently. The court ordered the seven-year
sentence to be served consecutively to the eight-year
sentence for a total of 15 years imprisonment.
5} Ortiz-Vega now appeals, assigning three errors
for our review.
Assignments of Error
I. Appellant's convictions are against the manifest
weight of the evidence.
II. The trial court erred when it allowed the use of highly
prejudicial and irrelevant evidence over the objection of
III. The sentence imposed was not supported by the record and
is contrary to law.
and Testimony at Trial
6} W.Z. is from the Dominican Republic. At the time
of the trial, she had lived in the United States for almost
five years. She came to the United States for work, to visit
with family and friends, and to learn the English language.
W.Z. testified that she initially came to the United States
on a visitor's visa, but when she decided to stay and
learn English, she changed her visa to a student visa. She
believed, however, that her student visa had expired because
she eventually stopped attending school.
7} W.Z. was a pharmacist in the Dominican Republic,
and she explained that she came to the United States to
attend a medical exhibition, but she later decided to attend
school. She initially visited her friend, Milcarleny Lizardo
("Leny"), in Cleveland, and she began practicing
Leny's faith, that of the Seventh-day Adventists. W.Z.
then traveled to Tampa, Florida to stay with her sister but
ultimately returned to Leny's home in Cleveland. W.Z.
stated that she was devout in her faith: she attended church
regularly; continued living with Leny in order to practice
her faith; and participated in many church activities,
including teaching the beliefs of the Seventh-day Adventists
to children. According to W.Z., her church teaches that
unmarried people may not engage in sexual relations with one
another or live together.
8} W.Z. testified that while living with Leny in
December 2016, she met Ortiz-Vega through his hairdresser,
who was a friend of Leny's. According to W.Z., when the
hairdresser learned that W.Z. wanted to meet a Christian man,
the hairdresser introduced her to Ortiz-Vega, via text. W.Z.
stated that prior to meeting Ortiz-Vega in person, the two
began texting each other, communicating for approximately one
week. On December 15, 2016, Ortiz-Vega invited W.Z. to
dinner. W.Z. brought her friend, Leny, to dinner.
9} After the initial meeting, W.Z. and Ortiz-Vega
continued talking with each other, he began visiting W.Z. at
Leny's house, and approximately two weeks after they met,
Ortiz-Vega began attending church with W.Z. Ortiz-Vega asked
W.Z. to be his girlfriend. In early 2017, W.Z. traveled to
Tampa again to visit her sister. In February 2017, while in
Tampa, Ortiz-Vega made a surprise visit to Tampa and proposed
marriage to W.Z., which she accepted.
10} They married in August 2017. W.Z. testified that
they did not live together prior to their marriage, nor did
they engage in sexual relations prior to their wedding night.
W.Z. testified regarding sexual relations with her husband
during the initial time of her marriage. They had sex
approximately once or twice per week, and the sex was
consensual and enjoyable. They engaged in oral and vaginal
sex as well as digital penetration.
11} W.Z. stated that shortly after they married,
Ortiz-Vega became argumentative and aggressive, and he would
often become angry and yell and scream at her. After one
particular fight, she suggested they divorce because she
"did [not] expect that being married was going to be
[like] this." Ortiz-Vega responded by saying that he
could not accept a divorce. After apologizing for his
behavior, according to W.Z., Ortiz-Vega suggested that they
begin the immigration paperwork so that they could visit
W.Z.'s home country, the Dominican Republic, to celebrate
their marriage, as well as visit with his family in Puerto
Rico. W.Z. stated that they in fact began her immigration
paperwork in September. She further testified that although
she knew that Ortiz-Vega had been married previously, she did
not learn of his other wives until they filed the immigration
12} W.Z. testified, however, that after two
incidents where Ortiz-Vega "became very, very
furious," she went to Tampa to visit with her sister.
Initially, he did not want her to go to Tampa, but he
eventually relented. W.Z. stated that Ortiz- Vega agreed to
allow her to go to Tampa on the condition that he would pick
her up from Tampa and drive her home when it was time. On
October 6, 2017, Ortiz-Vega picked W.Z. up in Tampa and drove
her back home to Cleveland.
13} According to W.Z., on the night/early morning
they returned to Cleveland after the long drive home,
Ortiz-Vega began attempting sexual activity with her, but she
told him that she did not feel well and did not want to have
sex. Despite telling him she did not want to have sex, he
began to "suck on [her] breasts brusquely" and
perform oral sex on her. She testified that she told him to
stop but he did not stop. He ignored her, and after
performing oral sex for 15 minutes, he proceeded to have
vaginal intercourse with her. W.Z. testified that he
continued this behavior early the next morning, doing
"the same thing he had done before" and
"proceed[ing] to have sex" with her again, despite
14} She further testified that Ortiz-Vega's
unwanted sex "continu[ed] every single day [thereafter].
This would happen all the time. It was nighttime, during the
day, in the mornings, at night, * * * all the time. It became
more time, oral sex * * * was [for] even longer. * * * It was
just constant sex." She testified that he had sex with
her against her will every morning before he left for work.
W.Z. testified that he performed oral sex on her for 30
minutes to one-hour intervals, he had vaginal intercourse
with her, and he digitally penetrated her. She explained that
he performed all of these acts despite the fact that she
repeatedly told him to stop. According to W.Z., at one point,
Ortiz-Vega began to "push all of his weight on top of me
to such an extent that * * * he was suffocating me."
W.Z. testified that "[e]very time he finished, he would
* * * whisper in my ear that he was the only person that
loved me and not to forget that [and] that everything that
happened there in the house was something that had to stay
there amongst ourselves and not to [tell] anyone because we
were a couple."
15} W.Z. testified that she began experiencing
severe pain and irritation in and around her vagina from the
repeated sex. She explained that her clitoris was swollen and
"peeling." She would tell Ortiz-Vega to stop and
that she was in pain, but he did not listen to her. W.Z.
began to seek medical attention on multiple occasions,
including a visit to MetroHealth Hospital's urgent care
center on October 11, 2017. W.Z. stated that she was told
there were no doctors there to assist her, so she purchased
on her own a type of cream to apply to her clitoris. She told
Ortiz-Vega that the doctor prescribed it for her and that he
needed to stop having sex with her while she was using the
cream. W.Z. stated that the cream prevented the sex for only
two days, after which he continued to have "prolonged,
long" oral sex with her and "using his
fingers" to penetrate her.
16} W.Z. testified that she saw her gynecologist
around October 18 or 19, 2017. She explained to the doctor
that she had pain in her breast and in her nipples, her lower
stomach was swollen, and her clitoris was irritated. W.Z.
stated that her doctor diagnosed her with a bacterial
infection, prescribed some medicine, and gave her a letter
that explained her symptoms and advised her to refrain from
any sexual activity for two weeks in order to heal properly.
According to W.Z., Ortiz-Vega honored the doctor's letter
for two days; however, after that time period, his aggression
returned and he began to "touch [her] vagina strongly, *
* * touch [her] vagina and clitoris again very strongly [and]
he started to lift up my blouse and suck strongly on my
breasts and [then] on my vagina."
17} W.Z. stated that the next day, she called a
social worker, but W.Z. was afraid to "do what [the
social worker] told [her]" because she did not know
where to go and she felt trapped. She testified that she did
not call the police because Ortiz-Vega had previously told
her that the reason she married him was for her immigration
status. W.Z. explained to him that she married him because
she loved him, she cared for him, and she wanted a companion.
According to W.Z., Ortiz-Vega told her that was not the way
he saw it and "he could go to Immigration" and
people would believe him because he was a United States
citizen. She stated that Ortiz-Vega ensured that he opened
all correspondence from the immigration office.
18} W.Z. further testified that the following
morning before Ortiz-Vega went to work, his "sexual
aggression" returned and was "the strongest,"
He started to touch me hard. So hard with his hand, he
touched my clitoris. But I grabbed his hand with my hand
and he grabbed my hand and held it down so that I
wouldn't grab his hand. And I felt that he wanted to
stick his fist, his whole fist into my vagina and to * * *
grab [me] by my lower stomach. * * * And he started to grab
my lower stomach and he had me immobilized. * * * [At this
point] I felt like I didn't have any strength.
19} W.Z. testified that during this incident,
Ortiz-Vega performed oral sex on her and digitally penetrated
her, and she never consented to any of these acts. She
explained that after this particular assault, Ortiz-Vega went
to work and she stayed in bed because she was in so much
"intense" pain that she could not walk. When she
finally made it to the bathroom, she attempted to put water
on herself but she could not put water on her "private
parts" or in her vagina because "the pain was so
huge." According to W.Z., she then "cried so
much" and made the decision to call her friend Leny to
take her to the hospital. One day later, W.Z. filed a police
20} After filing the police report, W.Z. moved back
into Leny's home and eventually filed for a divorce from
Ortiz-Vega, which she received in April 2018. W.Z. also
applied for "protected status" with the U.S.
Citizenship and Immigration Services ("USCIS")
under the Violence Against Women Act in order to become a
lawful resident of the United States. W.Z. explained that
although she and Ortiz-Vega had already begun the paperwork
regarding her immigration status, after having gone to the
emergency room for treatment in October due to the assaults,
she no longer had any interest in attending the
"couple's interview" with USCIS that was
scheduled for November, and she cancelled the appointment. At
the time of trial, W.Z. was awaiting approval from the USCIS
regarding her application for protected status.
21} W.Z.'s friend Leny testified that she became
friends with W.Z. in the Dominican Republic where they both
previously lived. W.Z. was Leny's chemistry professor at
the university, and she has known W.Z. for ten years. When
Leny learned that W.Z. was staying in the United States, she
invited W.Z. to visit her in Cleveland. Leny stated that W.Z.
became baptized in her church while staying with her.
22} Leny stated that W.Z. met Ortiz-Vega through a
mutual friend, Ortiz-Vega's hairdresser. Leny testified
that she thought W.Z. and Ortiz-Vega had a good relationship
in the beginning, but after approximately two weeks into
their marriage, W.Z. began to "separate" from Leny
and they spoke less frequently. Leny stated that W.Z. was a
very private person and did not share much information about
her relationship with Ortiz-Vega, but Leny observed that W.Z.
23} Leny testified that she accompanied W.Z. to a
visit to the urgent care center, a doctor's appointment,
and the emergency room, all in the same month. Leny stated
that after the emergency room visit, she became aware of the
reason for W.Z.'s medical treatment and "what was
really going on," and Leny cried.
24} SANE nurse Amber Pierce Smith testified that she
was the SANE nurse on call at MetroHealth Hospital on the
morning of October 26, 2017, and she examined W.Z. Smith
stated that W.Z. reported her husband had been forcing her to
have sex with him from October 9 through October 26, by
placing his hand and penis in her vagina, even when she had
told him to stop. Smith testified that W.Z. was anxious,
tearful, and appeared to be in pain. Smith stated that during
her internal examination of W.Z., she observed "redness
and irritation" unlike any other examination she has
25} Dr. Joel Escobedo, an obstetrician/gynecologist,
testified concerning his examination of W.Z. on October 18,
2017. He stated that W.Z. presented with complaints of
bilateral breast pain and vaginal pain and she reported that
she was being sexually abused by her husband. During the
exam, Dr. Escobedo observed bilateral breast tenderness
beyond ordinary menstrual pain and a red and irritated
clitoris. He also observed that W.Z. was "in a
significant amount of distress." He diagnosed W.Z. with
bacterial vaginosis, which is a change in the vaginal flora;
vaginal cuff cellulitis, which was evidenced by the redness
on the top of the vagina, hairline fissures, tenderness
during the pelvic exam, and the presence of a large amount of
white blood cells in the vaginal secretions; clitoral
irritation; and bilateral breast pain.
26} Dr. Escobedo explained that his exam revealed
"significant clitoral and vulva irritation" that
was "likely because of prolonged and frequent oral
stimulation, probably rough stimulation." He further
explained that the vagina appeared to be "traumatized by
frequent rough sexual intercourse." The doctor testified
that he wrote a letter for W.Z. in which he "strongly
recommended" that W.Z. not have sexual intercourse or