State v. Marques, 011019 OHCA10, 17AP-849

Docket Nº:17AP-849
Opinion Judge:KLATT, P.J.
Party Name:State of Ohio, Plaintiff-Appellee, v. Omar F. Marques, Defendant-Appellant.
Attorney:Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee. Todd W. Barstow, for appellant. Steven L. Taylor. Todd W. Barstow.
Judge Panel:TYACK and BRUNNER, JJ., concur.
Case Date:January 10, 2019
Court:Court of Appeals of Ohio
 
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2019-Ohio-42

State of Ohio, Plaintiff-Appellee,

v.

Omar F. Marques, Defendant-Appellant.

No. 17AP-849

Court of Appeals of Ohio, Tenth District

January 10, 2019

APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 16CR-1934)

On brief:

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.

Todd W. Barstow, for appellant.

Argued:

Steven L. Taylor.

Todd W. Barstow.

DECISION

KLATT, P.J.

{¶ 1} Defendant-appellant, Omar F. Marques, appeals from a judgment of the Franklin County Court of Common Pleas convicting appellant of kidnapping with sexual motivation specification in violation of R.C. 2905.01, and two counts of rape in violation of R.C. 2907.02. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} On April 8, 2016, a Franklin County Grand Jury indicted appellant with one count of kidnapping in violation of R.C. 2905.01 with specification (restraint for the purpose of engaging in sexual activity as defined in R.C. 2907.01), one count of rape in violation of R.C. 2907.02 (vaginal intercourse compelled by force or threat of force), and one count of rape in violation of R.C. 2907.02 (vaginal intercourse when defendant knew or had reasonable cause to believe that the victim's ability to resist or consent was substantially impaired because of a mental or physical condition or because of advanced age). The charges arose out of an incident with T.D.P. Appellant entered a not guilty plea and proceeded to a jury trial.

{¶ 3} The testimony at trial indicates that on Saturday, November 7, 2015, at about 1:00 p.m., T.D.P. went to a gas station near her home with her dog and purchased a bottle of wine. Prior to the purchase, she had consumed a couple glasses of wine, but she testified she was not intoxicated. Next door to the gas station was a house. On previous walks with her dog over the past few months, T.D.P. had frequently waived a greeting at one or two men if they were out on the porch of the house. On this day, as T.D.P. walked by the house with her dog, appellant came off the porch and came to the fence in front of the lot and asked her how she was doing. T.D.P. had not met appellant before. As a friendly gesture to get to know a neighbor, T.D.P. asked appellant if he wanted to share a glass of wine with her on appellant's porch. Appellant agreed.

{¶ 4} Appellant stated there was a problem with the front door, so they went into the kitchen through the back door to open the wine bottle. Appellant produced a large knife that he stuck into the top of the wine bottle. T.D.P. did not see anyone else in the house. T.D.P. began to feel uncomfortable and went to get her dog. At that moment, appellant knocked her to the floor. T.D.P. got up and appellant knocked her down again. They began to struggle. The struggle went from the kitchen into an adjacent room. Ultimately, appellant held T.D.P. down with one arm and tried to pull her pants down with his other arm. T.D.P. believed that appellant was attempting to forcibly have sex with her and she repeatedly told him no. Appellant was struggling to get T.D.P.'s pants down with one hand, so he took his other arm off T.D.P. to use both hands. T.D.P was then able to grab her cell phone from the pocket of a blue jean jacket she was wearing and called 911. She heard the dispatcher answer, but appellant immediately took the phone from her and apparently ended the call because T.D.P. heard the phone ring back shortly thereafter but she could not answer it. T.D.P. then blacked out.

{¶ 5} When she came to, T.D.P. was in the backyard of the house trying to open a latch on a gate. Although she had her dog, she was disoriented. Her pants were on but not fastened and her underwear was down around her thighs. T.D.P knew she had been assaulted but did not know if she had been raped. She was scared and did not know what to do. When she got out through the gate, she called a friend. The time log on her phone indicated that there was a three-minute timeframe between the call to 911 and the first call to a friend. She then ran home.

{¶ 6} After she was home, T.D.P. made numerous calls to friends and to her son. She was in shock and did not know what to do. Friends encouraged her to report the incident to the police and not to change her clothes. When she went to the bathroom, she could smell what she believed was sperm. That further prompted her to want to call the police. Nevertheless, it took her until the next day to get brave enough to report the attack to the police. During her testimony, T.D.P., identified appellant as the person who attacked her.

{¶ 7} Columbus Police Officer Jennifer Mancini testified that on November 8, 2015, she responded to a report of a sexual assault. Mancini met T.D.P. at her home. Mancini stated that T.D.P. appeared to be in shock. T.D.P. told Mancini that she believed she was sexually assaulted the day before and...

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