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State v. Ortiz-Vega

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 18, 2019

STATE OF OHIO, Plaintiff-Appellee,
ARNALDO ORTIZ-VEGA, Defendant-Appellant.

          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, for appellee.

          Myriam A Miranda, for appellant.



         {¶ 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.

         Procedural History

         {¶ 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).

         {¶3} 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 - kidnapping.

         {¶ 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 counsel.
III. The sentence imposed was not supported by the record and is contrary to law.

         Evidence 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 paperwork.

         {¶ 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 her protests.

         {¶ 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," stating:

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 report.

         {¶ 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. seemed sad.

         {¶ 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 conducted.

         {¶ 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 ...

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