Ortuno v. State

Decision Date18 April 2016
Docket NumberNo. 0706,0706
PartiesROMER ROLANDO ORTUNO v. STATE OF MARYLAND
CourtCourt of Special Appeals of Maryland

ROMER ROLANDO ORTUNO
v.
STATE OF MARYLAND

No. 0706

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015
April 18, 2016


UNREPORTED

Krauser, C.J., Berger, Reed, JJ.

Opinion by Berger, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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Appellant, Romer Rolando Ortuno, was indicted in the Circuit Court for Worcester County, Maryland, and charged with, inter alia, first-degree rape, first-degree burglary, and third-degree sex offense. After a jury trial, appellant was convicted of second-degree rape, first-degree burglary, and third-degree sex offense. He was sentenced to fifteen years, with all but eleven suspended, for second-degree rape and ten years concurrent for first-degree burglary. Appellant timely appealed and presents the following questions for our review:

1. Did the trial court abuse its discretion in permitting improper closing argument by the prosecutor?

2. Did the trial court abuse its discretion in not excluding a portion of Appellant's conversation with police?

3. Did the trial court abuse its discretion in denying the request for a mistrial?

4. Did the trial court abuse its discretion in denying Appellant's motion for a new trial?

For the following reasons, we shall affirm.

BACKGROUND

Jhoselin U., 22 years old at the time of trial, knew the appellant since she was nine or ten-years-old.1 More recently, Jhoselin and appellant worked together at a restaurant near Springfield, Virginia. However, Jhoselin testified that appellant was primarily friends with her sister, Jenifer Salvador. Jenifer confirmed at trial that she previously had a sexual relationship with appellant.

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On Memorial Day weekend in 2014, Jhoselin went to Ocean City, Maryland, to celebrate her 21st birthday with her sister and with another woman, Shirley Villaroel. They were accompanied by Villaroel's fourteen-year-old sister and four-year-old daughter.

Shortly before midnight, the group rented a single room, with two beds, in the Admiral Hotel. During the day, Jhoselin started drinking shots of Jägermeister, an alcoholic drink. After the children went to bed, the adults left the hotel room and took a bus to Seacrets, a popular Ocean City restaurant and bar, arriving at around 1:30 a.m. They happened to run into appellant and his friend, Daniel Moreno, leaving the bar, and convinced them to go back inside for last call. Jhoselin bought everyone more shots. Jhoselin testified that she then started feeling "very tipsy."

After Seacrets closed, Jhoselin and her friends got a ride from appellant and Daniel back towards their hotel. However, because appellant "was driving crazy," Shirley told him to pull over, and the three women then got out. After returning briefly to their hotel, Jhoselin, Jenifer, Shirley and appellant went to a nearby beach.

Thereafter, because Jhoselin was drunk and had gone into the water with her clothes on, the group returned to the hotel. Jhoselin needed help from Shirley and appellant in order to walk back to the hotel. Jenifer put Jhoselin to bed, removed her wet clothes, except for her shirt, her bra and her underwear, and then helped put on her pajamas. After placing some blankets over her, Jenifer joined Shirley and appellant outside the room, and the trio continued to drink.

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Over the next half hour or so, appellant kept going in and out of the women's hotel room to use the bathroom, claiming that he needed to throw up. Eventually, Shirley announced that she wanted to go the beach to see the sunrise. Shirley left first, and Jenifer and appellant soon followed. Jenifer testified that she locked the hotel room door and made sure the windows were closed when they left, leaving her sister, Jhoselin, and the two children sleeping inside.

As Jenifer and appellant walked towards the beach to meet Shirley, appellant apparently changed his mind and told Jenifer he was going back to his own hotel, which was located less than a city block away. Jenifer watched him leave, then met Shirley on the beach. They remained there only a short while because it was too cold out.

When they returned to their hotel, Jenifer noticed that a window to their room was now open. Jenifer looked inside the room and saw a man's hands on her sister's breasts. And, Shirley saw that the covers were moving. They opened the locked door and found appellant laying under the blanket next to Jhoselin. Both appellant and Jhoselin had their pants and underwear down. However, Jhoselin still was "really drunk," and mostly unconscious at the time.

In response to this discovery, Shirley started hitting and yelling at appellant. Appellant put on his clothes and left the hotel room. As he made his way down the outside steps, Shirley continued to hit appellant with closed fists, demanding to know how appellant got back into the room and what he was doing. Appellant responded, "I didn't do anything."

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At trial, Jhoselin testified that she awoke on her right side, like she was in a "dream" or a "nightmare," and felt "pressure" inside her vagina, and "hands all over my breasts." She knew that there was a person behind her, but she could "barely open my eyes," and "couldn't even talk." She agreed the pressure inside her was appellant's penis.

Looking around, Jhoselin saw that her pants and underwear were down. She heard a lot of yelling and then saw her sister, sitting on the bed, in "shock." Jhoselin felt scared, and started crying, "I didn't want that. I didn't want that." She did not give permission for appellant to enter the hotel room and did not consent to having sex with him. Jenifer also testified, without objection, that the contact between Jhoselin and the appellant did not appear consensual.

After reporting the incident to police, Jhoselin spoke to Officer Erika Specht and Detective David Whitmer, both with the Ocean City Police Department. Jhoselin told both officers that she woke up to find appellant's penis inside her vagina.

Based on further investigation, and after learning that the appellant left his cellphone in the women's hotel room when he fled, Detective Whitmer contacted appellant's friend, Daniel Moreno, via text message, asking Moreno to have appellant contact him. Detective Whitmer eventually spoke to appellant two days after the incident, and told him he was investigating and wanted "to get his side of the story." Appellant relayed that he was intoxicated at the time and did not remember much. Appellant also denied having "intimate relations" or raping Jhoselin. And, in response to Detective Whitmer's question, analyzed

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in more detail in the discussion that follows, appellant told the detective that he did not believe his DNA would be inside Jhoselin.

At trial, the parties stipulated as follows:

The State and the defense have agreed that on July 28th of 2014, Molly Rollo, a forensic scientist with the Maryland State Police, performed a DNA analysis on a cheek swab obtained from Romer Ortuno and sperm recovered from [Jhoselin's] vaginal swab. The results of the analysis show that the DNA profile of Romer Ortuno matches the minor contributor of the DNA profile obtained from the vaginal swab. A DNA profile of [Jhoselin] matches the major contributor of the DNA profile obtained from her own vaginal swab.

Molly Rollo, if called upon to testify as an expert in the field of DNA analysis, would opine that to a reasonable degree of medical certainty Romer Ortuno is the source of the minor contributor DNA profile obtained from the vaginal swab of [Jhoselin].

The defense called Daniel Moreno who confirmed he was with appellant on the night in question. Moreno also knew Jhoselin and Jenifer, from high school. Moreno confirmed that appellant and Jenifer had a boyfriend/girlfriend relationship in high school and, again, more recently. To his knowledge, Moreno testified that their relationship was sexual in nature.

Moreno further testified that he had seen Jhoselin working at a restaurant in Springfield, Virginia from time to time. Appellant was with Moreno on those occasions. Moreno claimed that appellant and Jhoselin "were always flirting" at that restaurant.

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Moreno also testified that appellant was flirting with both Jhoselin and Jenifer at Seacrets on the night in question.

We shall include additional detail in the discussion that follows.

DISCUSSION
I.

Appellant first contends that the trial court abused its discretion by permitting improper closing argument regarding the DNA stipulation. Specifically, appellant argues the State relied on facts not in evidence when it suggested that the stipulation proved that appellant raped Jhoselin. The State responds that appellant's reading of the remarks is "unreasonable," because the prosecutor was not suggesting that the parties agreed by stipulation that appellant raped Jhoselin. Instead, the State replies that "the prosecutor argued that the jury should find the ultimate fact of guilt for rape based on a number of factors, only one of which was the DNA stipulation." (emphasis in original). We agree.

During its initial instructions to the jury, the trial court reread the stipulation concerning the DNA evidence to the jury, as set forth above. In brief, the parties agreed by that stipulation that the results of Molly Rollo's forensic DNA examination was that "the DNA of Romer Ortuno matches the minor contributor of the DNA profile obtained through

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the vaginal swab" of the victim. The court also instructed the jury, "[t]hese facts are not now in dispute and should be considered as proven."2

Thereafter, the State closed by explaining its theory of the evidence, including "[w]hat did actually fit and what makes more sense" through the witness testimony and the physical evidence admitted at trial. The State first asked the jury to consider whether appellant saw that...

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