State v. Apanovitch
64 N.E.3d 429
Ohio Ct. App.2016Background
- In 1984 Mary Ann Flynn was raped and murdered; Anthony Apanovitch (neighbor/painter) was arrested, tried, convicted of two rapes, aggravated murder, and aggravated burglary, and sentenced to death; convictions and sentence were the subject of years of appeals and proceedings.
- Physical evidence at trial was limited: one hair (not matching victim or defendant) and serology showing type A secretor material; trial testimony placed ~340,000 possible male donors in county based on population frequencies.
- Autopsy swabs thought lost were rediscovered years later; subsequent DNA testing produced mixed and partly degraded results. New testing on a vaginal slide (item 1.2) produced male DNA that experts differed about; defense expert (Dr. Staub) testified the vaginal sample excluded Apanovitch.
- The state stipulated pre-hearing that it would not present or rely on Dr. Edward Blake or his reports; the trial court excluded Blake’s reports and testimony for the postconviction hearing.
- The trial court found, by clear and convincing evidence under R.C. 2953.23, that the new DNA evidence established Apanovitch’s actual innocence of the vaginal rape, acquitted him of one rape count, dismissed the other (undifferentiated identical counts) on double jeopardy/Vallentine-type grounds, and ordered a new trial on remaining aggravated murder and burglary charges; set bond (later amended) and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new DNA proves actual innocence of vaginal rape | State: Dr. Blake’s 2007 testing shows Apanovitch not innocent; court abused discretion excluding Blake | Apanovitch: defense expert Staub excludes Apanovitch from vaginal sample; state had stipulated not to use Blake | Court: did not abuse discretion — exclusion of Blake honored; Staub’s uncontroverted testimony met clear-and-convincing standard; actual innocence finding affirmed |
| Whether trial court erred by refusing to consider Dr. Blake’s reports | State: Blake’s reports are part of the record (federal proceedings) and must be considered | Defense/Trial court: state stipulated it would not rely on Blake; unfair to reverse course | Court: trial court properly exercised discretion; law-of-the-case not applied because exceptions (new evidence/manifest injustice) justified fresh review |
| Whether identical rape counts require dismissal of remaining count (Valentine/double jeopardy) | State: counts were factually distinct at trial (vaginal vs. oral); court erred in raising the issue sua sponte without briefing | Apanovitch: indictment, jury instructions, and trial record do not differentiate counts; retrial would violate double jeopardy | Court: affirmed dismissal — counts undifferentiated, Valentine analysis applicable; no double jeopardy-safe retrial on remaining identical count |
| Whether bond amount ($100,000 with conditions) was an abuse of discretion | State: bond too low for a capital defendant and court ignored bond schedule | Apanovitch: court considered evidence, prior proceedings, and conditions (house arrest/monitoring) | Court: no abuse of discretion; trial court reconsidered and amended bond appropriately |
Key Cases Cited
- Apanovitch v. State, 33 Ohio St.3d 19 (Ohio 1987) (Ohio Supreme Court decision affirming convictions; dissent noted evidence was "far from overwhelming")
- Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005) (multiple undifferentiated rape counts can violate due process/double jeopardy)
- State v. Condor, 112 Ohio St.3d 377 (Ohio 2006) (standard of appellate review for postconviction relief: abuse of discretion)
- State v. Tate, 140 Ohio St.3d 442 (Ohio 2014) (appellate courts should not decide new, unbriefed issues sua sponte without notice and opportunity to brief)