State v. Bortree
2021 Ohio 2873
Ohio Ct. App.2021Background
- In July 1993 Anita was abducted at gunpoint, driven to a remote area, sexually assaulted (fellatio) and had her throat cut; she survived and clothing/oral swabs were collected.
- Early testing (1990s–2004) failed to yield an identifiable DNA profile; a usable profile was extracted in 2015 and matched an unknown suspect in a 1992 Sidney rape.
- A private forensic genetic-genealogy firm (AdvanceDNA) produced leads that pointed to four brothers, including Ralph E. Bortree; surveillance recovered discarded cigarette butts whose DNA matched the crime-scene DNA.
- Bortree was indicted in 2019 for attempted aggravated murder (rape/kidnapping charges time-barred); he moved to dismiss and to suppress multiple items of evidence.
- The trial court denied dismissal/suppression motions (including challenges to statute of limitations, preindictment delay, cigarette-DNA, search warrants, and AdvanceDNA testimony), admitted evidence of one similar 1992 incident under Evid.R. 404(B), and a jury convicted Bortree; he was sentenced to 11 years.
Issues
| Issue | State's Argument | Bortree's Argument | Held |
|---|---|---|---|
| Whether attempted aggravated murder is time‑barred | R.C. 2901.13’s 1999 amendment references statutory numbers (2903.01) so attempts under that section are untimely‑immune (no SOL) | Attempted aggravated murder is not expressly listed in 2901.13, so the general six‑year felony SOL applies | Held for State: attempt falls within R.C. 2903.01 prosecution; no period of limitation (SOL does not bar prosecution) |
| Preindictment delay (Due Process) | Delay was justified by advances in DNA technology; prosecution acted promptly once leads existed | 26‑year delay caused loss/fading of evidence and witnesses, prejudicing defense | Held for State: defendant failed to show actual substantial prejudice or government tactical delay; dismissal denied |
| Admission of other‑acts (1992 Sheila incident) under Evid.R. 404(B) | Evidence is admissible to show identity/modus operandi given close similarities | Admission is prejudicial and improper propensity evidence | Held for State: Sheila evidence admissible (relevant to identity/modus operandi); two other incidents excluded for lack of connection |
| Admissibility of DNA from discarded cigarettes (Fourth Amendment) | No warrant needed; discarded items carry no reasonable privacy expectation | Cigarette receptacle on employer property gave rise to privacy/right to object | Held for State: no reasonable expectation of privacy in voluntarily discarded cigarettes; DNA admissible |
| Validity of search warrants and affidavits | Affidavits (holistically) supplied probable cause; searches executed in good faith | Affidavits contained inaccuracies/impermissible inferences and lacked probable cause | Held for State: affidavits sufficient; any minor inaccuracies not material; good‑faith reliance on warrants applies |
| Admissibility of AdvanceDNA testimony and genetic genealogy evidence | Genealogy provided investigatory leads; methods were explained and verified; admissible to explain investigation | Methods relied on public family trees and private databases; process unverified and invasive | Held for State: testimony admissible — genealogy produced leads only and law enforcement independently verified leads |
| Sufficiency of evidence for attempted aggravated murder | DNA match plus corroborating circumstantial evidence (vehicle, location, cigarettes, sketch) proves elements beyond a reasonable doubt | Victim did not unequivocally identify Bortree at trial; DNA could predate the assault | Held for State: evidence sufficient when viewed in State’s favor (DNA and corroboration) |
| Manifest weight / cumulative error | No reversible errors; jury verdict reasonable given evidence | Cumulative trial errors denied fair trial | Held for State: conviction not against manifest weight; no cumulative error |
Key Cases Cited
- State v. Brown, 161 Ohio St.3d 276 (Ohio 2020) (statutory interpretation; de novo review)
- State v. Hartman, 161 Ohio St.3d 214 (Ohio 2020) (analysis of other‑acts evidence and modus operandi)
- State v. Williams, 134 Ohio St.3d 521 (Ohio 2012) (three‑step Evid.R. 404(B) framework)
- State v. Adams, 144 Ohio St.3d 429 (Ohio 2015) (preindictment delay and due‑process standards)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency of the evidence standard)
- Abel v. United States, 362 U.S. 217 (U.S. 1960) (abandoned property doctrine; no expectation of privacy)
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (manifest‑weight review)