[Cite as State v. Apanovitch, 2016-Ohio-2831.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 102618 and 102698
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
ANTHONY APANOVITCH
DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-84-194156-ZA
BEFORE: Jones, A.J., Celebrezze, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: May 5, 2016 ATTORNEYS FOR APPELLANT
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Adam M. Chaloupka Katherine Mullin Christopher D. Schroeder Frank Romeo Zeleznikar Assistant Prosecuting Attorneys 1200 Ontario Street, 8th Floor Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Mark R. Devan William Livingston Berkman, Gordon, Murray & Devan 55 Public Square, Suite 2200 Cleveland, Ohio 44113
Harry P. Cohen Elizabeth Figueira Michael K. Robles James K. Stronski Crowell & Morning 590 Madison Avenue New York, NY 10022 LARRY A. JONES, SR., A.J.:
{¶1} This is an appeal by plaintiff-appellant, the state of Ohio, from the trial court’s
February 12, 2015 decision granting defendant-appellee’s, Anthony Apanovitch, fourth
petition for postconviction relief, thereby acquitting Apanovitch of one of two counts of
rape, dismissing the second count of rape, and granting a new trial on the remaining
charges, which consist of aggravated murder and aggravated burglary with specifications.1
We affirm.
Factual Background and Procedural History
{¶2} The incident that gave rise to this death penalty case was the 1984 rape and
murder of Mary Ann Flynn; she was found dead in her Cleveland duplex on August 24,
1984. The investigation revealed that entry into the home had likely been through a
basement window, which appeared to have been forcibly opened. Further, one of the
basement window sills was missing. The day before her body was discovered, August
23, Apanovitch had been working at the house of Flynn’s neighbor, and approached Flynn,
whom he knew, to ask her if she wanted him to paint her basement window sills; she
declined the offer.
{¶3} Flynn’s body was discovered in a second-floor bedroom; she was naked and
battered, lying face down on a mattress, with her hands tied behind her back, with one end
1 The aggravated murder count contained a rape specification, but given the court’s disposition on the two rape counts, that specification was dismissed. of what appeared to be a rolled-up bed sheet tied around her neck and the other end tied to
the headboard. Slivers of wood from a basement window sill were found in the bedroom,
on Flynn’s body, and in a laceration in the back of her neck.
{¶4} As mentioned, Apanovitch knew Flynn — he had done house painting for her
in July 1984. During that time, he had made unwelcome advances toward her and even
asked her out in the presence of his pregnant wife. Shortly after hiring Apanovitch in
July 1984, Flynn terminated the use of Apanovitch’s services prior to his completion of the
painting. Afterward, however, she complained to friends that the “painter” still harassed
her and that she was afraid of him. A copy of the contract for the painting work was
found on Flynn’s kitchen table the day after her body was discovered.
{¶5} Days after Flynn’s body was discovered, Apanovitch became a suspect in her
murder. He voluntarily made himself available for questioning by the police, waiving his
Miranda rights. He denied any involvement in the crimes and voluntarily provided hair,
saliva, and blood samples, along with several articles of clothing for testing. Apanovitch
continued to deny involvement in the crimes throughout the investigation of the case.
{¶6} Apanovitch gave conflicting accounts of his whereabouts at the time it was
surmised that the crimes occurred; however, according to three of the state’s witnesses, he
asked them to lie about his whereabouts. He also had scratches on his face and gave
varying accounts to law enforcement about how he got them. The coroner, who had
observed the scratches on Apanovitch’s face while he was in police custody, testified at
trial that she believed they were consistent with fingernail scratches. {¶7} Little physical evidence of the assailant was found, however — no bodily
material was found under Flynn’s fingernails, the only blood at the scene belonged to
Flynn, and no footprints were revealed. One hair was found on Flynn’s body that was
identified as being inconsistent with both Flynn and Apanovitch’s hair, and although the
police identified a number of latent fingerprints, none of them belonged to Apanovitch.
At trial, only two pieces of scientific physical evidence were presented to the jury: the hair
found on Flynn and evidence relating to the blood-type of Flynn and Apanovitch. As will
be discussed in more detail below, both of these items of scientific physical evidence were
problematic.
{¶8} On October 2, 1984, Apanovitch was indicted by a Cuyahoga County Grand
Jury on two counts of rape, one count each of aggravated murder, with felony murder
specifications, and aggravated burglary, with aggravated felony specifications. The case
proceeded to a jury trial on November 26, 1984. The jury convicted Apanovitch of all
counts and specifications and recommended a death sentence. The trial court adopted the
jury’s recommendation and imposed a death sentence. The court also sentenced
Apanovitch to consecutive 15-25 year prison terms on the aggravated burglary and two
rape convictions, for a total of 45-75 years in prison.
{¶9} This case has been the subject of extensive and convoluted litigation in both
state and federal courts in the years since the 1984 conviction and 1985 death sentence.2
2 Included in the numerous cases on this matter are the following: (1) State v. Apanovitch, 8th Dist. Cuyahoga No. 49772, 1986 Ohio App. LEXIS 8046 (Aug. 28, 1986) (direct appeal — conviction and sentence upheld); (2) State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987) Those cases, and further facts, will be discussed below as necessary.
1984 Autopsy
{¶10} An autopsy of Flynn’s body was conducted the day after her body was
discovered. Sperm was found in Flynn’s mouth and vagina. It was determined that the
perpetrator of the crimes had blood type A. Apanovitch has blood type A, and that
evidence was introduced by the state at trial. Apanovitch was also a secretor, meaning
that he secretes his blood type through other bodily fluids. At trial, the analyst testified
that approximately 44-55% of the population was blood type A and that approximately
80% of the population were secretors. According to the analyst, therefore, there were
approximately 340,000 men in Cuyahoga County who could have emitted the fluids found
in Flynn.
Amended Trace Analyst Report
{¶11} Flynn also had blood type A. The original trace evidence report that was
available at the time of trial did not indicate if Flynn was a secretor, however. On appeal
(conviction and sentence upheld); (3) State v. Apanovitch, 70 Ohio App.3d 758, 591 N.E.2d 1374 (8th Dist.1991) (denial of first postconviction petition affirmed); (4) State v. Apanovitch, 107 Ohio App.3d 82, 667 N.E.2d 1041 (8th Dist.1995) (denial of second postconviction petition affirmed); (5) State v. Apanovitch, 113 Ohio App.3d 591, 681 N.E.2d 961 (8th Dist.1996) (denial of third postconviction petition affirmed); (6) Apanovich [sic] v. Taft, S.D.Ohio No. 2:05-CV-1015, 2006 U.S. Dist. LEXIS 54607 (July 21, 2006) (dismissal of Apanovitch’s civil rights action as an Ohio death-row inmate affirmed); (7) Apanovitch v. Houk, 466 F.3d 460 (6th Cir.2006) (appeal of denial of Apanovitch’s writ of habeas corpus — judgment reversed in part; case remanded to district court for consideration of certain Brady issues and for a hearing on the state’s request that Apanovitch’s DNA be compared to swabs previously believed lost); (8) Apanovitch v. Houk, N.D.Ohio No. 1:91CV2221, 2009 U.S. Dist. LEXIS 103985 (Aug. 14, 2009) (proceeding on remand — habeas writ denied); and (9) Apanovitch v. Bobby, 648 F.3d 434 (6th Cir.2011) (denial of writ of habeas affirmed). to the Ohio Supreme Court, after Apanovitch’s direct appeal to this court, which affirmed
the convictions and sentence, 3 the Ohio Supreme Court upheld the convictions and
sentence in a 4-3 decision. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987).
The dissent objected to the imposition of the death penalty, finding that the “evidence of
guilt in this case, while sufficient to meet the various standards which an appellate court
must use to measure legal error, is far from overwhelming.” Id. at 29 (Brown, J.,
concurring and dissenting).
{¶12} The dissent had two evidentiary areas of concern. The first, raised sua
sponte by the dissent, related to the blood evidence:
If the victim was a secretor, the recovery of a type A antigen from the swab contained from the victim (who herself was a type A) offers no information concerning the blood type of the assailant, because the recovered antigens could have as easily originated from the victim as from the assailant.
(Emphasis sic.) Id. at 30.
{¶13} Flynn, in fact, was a secretor. The police knew this within the first few days
of their investigation, but it was not disclosed to Apanovitch until 1992. After the Ohio
Supreme Court’s decision, the trace evidence report was amended to reflect Flynn’s
secretor status.
{¶14} The dissent’s second concern related to the human hair found on Flynn,
which, as mentioned, was neither Flynn nor Apanovitch’s hair. The state’s position at
trial was that it was not uncommon for law enforcement or crime scene personnel to lose a
State v. Apanovitch, 8th Dist. Cuyahoga No. 49772, 1986 Ohio App. LEXIS 8046 (Aug. 28, 3
1986). hair while doing their work around a body. The dissent stated:
[w]hile this may have been the case, the better approach would have been to have the hair analyzed against all crime scene personnel who could have deposited it. Such elimination procedure is not overly burdensome given the penalty sought to be extracted by the state.
Id. at 31.
{¶15} At trial, the state’s representative testified that the hair was found “on the
back portion of [Flynn’s] hand, which would have been the upper surface.” Apanovitch,
648 F.3d 439 (6th Cir.2011). The representative also described the hair as being “in the
area of [Flynn’s] hand.” Id. at 440. The state argued that the hair could have fallen
from the law enforcement officials who were around Flynn’s body after it was discovered
and transported to the coroner’s office. But the state did not disclose to the defense that
the report prepared by the trace evidence department stated that the hair was found “under
[Flynn’s] bound hands.” Id. at 439.
{¶16} The course of the litigation in this case also demonstrated that the state failed
to disclose to the defense a document in which a detective wrote that Apanovitch said
something different than what the detective testified at trial was said. Specifically, the
detective testified at trial that in a pre-arrest conversation with Apanovitch, Apanovitch
asked him to let him know “when” he was going to be arrested so that he could break the
news to his mother, who had a heart condition. Id. at 438. The detective testified that
Apanovitch’s request “stunned” him. Id. The detective’s report, however, stated that
Apanovitch asked the detective to give him warning “if” he was going to be arrested. Id.
The report further states that, even with his request, Apanovitch maintained his innocence, which the jury was also not informed of. Apanovitch did not secure the
Cleveland Police Department’s investigative file until years after his conviction, during his
state postconviction proceedings.
Autopsy Swabs
{¶17} Swabs of bodily fluids from Flynn’s body were collected during the autopsy.
At the time of trial, however, they were unavailable — the state believed they had been
inadvertently lost or destroyed. In 1991, the state found the evidence — two oral slides
and one vaginal slide — in a desk of an employee at the coroner’s office.
Testing after the Previously Believed Lost Evidence was Discovered
{¶18} After the slides were discovered, the prosecutor’s office sent the three slides
to the Forensic Science Laboratory (“FSA”) in California for testing. In May 1992, FSA
issued a report finding that one slide of the oral swab could be tested, but that the second
oral swab and the vaginal slide could not be tested because of the size and deterioration of
the samples. More testing was also conducted by the coroner’s office in 2000 and 2001,
but Apanovitch was not made aware of the testing or results until 2008 during his federal
habeas proceeding.
{¶19} During his federal habeas proceeding, the district court deferred any
consideration of the DNA evidence until chain of custody issues were resolved. After the
chain of custody issues were resolved in favor of the state, the district court declined to
hold a hearing on the DNA issues and instead issued a final decision. On appeal to the Sixth Circuit, the court noted that the DNA evidence had not been “subjected to
appropriate evidentiary challenges,” stating the following:
We suspect that the DNA evidence, should it be introduced and subjected to appropriate evidentiary challenges in court, might help resolve lingering questions of whether Apanovitch suffered actual prejudice when the state withheld the serological evidence, and whether Apanovitch’s innocence claim can be verified. We note that Apanovitch could well benefit from any ambiguity or error in the results that might lessen the exact accuracy of any hypothetical match with his own DNA. But these issues are better suited to the district court.
Apanovitch, 466 F.3d at 489-490 (6th Cir.2006).
{¶20} The district court never held a hearing on the DNA evidence, however, DNA
testing that was not available at the time of trial was conducted on the evidence and Dr.
Edward Blake, of FSA, issued a 2007 report.
{¶21} In 2012, after all of his federal appeals were exhausted,4 Apanovitch filed
his fourth petition for postconviction relief in the common pleas court based on the newly
discovered evidence. The petition was brought under R.C. 2953.21(A)(1), and the parties
also agreed that Crim.R. 33, governing new trials, applied. On October 14 and 15, 2014,
the trial court held a hearing on the petition, and thereafter issued the February 12, 2015
judgment, which is the subject of this appeal.
Dr. Edward Blake of FSA
{¶22} Prior to the hearing on the petition at issue, the parties had much discussion
about Dr. Blake at numerous pretrial conferences with the court. The discussion centered
In 2012, the United States Supreme Court denied Apanovitch’s petition for writ of certiorari. 4
Apanovitch v. Bobby, 132 S.Ct. 1742, 182 L.Ed.2d 535 (2012). around Dr. Blake’s lack of willingness to participate in this case. Apanovitch had
attempted to depose him, but he refused to appear unless he was paid substantial hourly
fees and costs. Discussion regarding various options about how to proceed vis-a-vis Dr.
Blake was had during the course of the pretrial conferences.
{¶23} At one of the conferences regarding Dr. Blake, held on July 31, 2014, the
state represented that, given the problems with securing Dr. Blake, it would not be relying
on him as a witness at the hearing on Apanovitch’s fourth postconviction petition. The
trial court then stated its “position that Blake’s out and I’m not going to allow him to
testify.” The defense confirmed for “clarification, so we’re all on the same page, it’s not
just that he won’t be allowed to testify, it’s that his prior reports and his prior work will not
be allowed in and will not be used and relied on for any purpose.” The trial court stated
that was the understanding, and the state did not object. In an order dated August 1,
2014, the court confirmed that “Dr. Blake will not be presented as a witness and none of
his reports or findings will be admitted.”
{¶24} Prior to the hearing at issue here, the parties agreed on a joint set of hearing
exhibits, which included the trial transcript and many of the original trial exhibits. Two
experts testified at the October 2014 hearings — Dr. Rick Staub for the defense and Dr.
Elizabeth Benzinger for the state. Both experts testified in depth about DNA testing, the
reliability of samples, and interpreting the results.
Dr. Staub {¶25} Dr. Staub, a forensic scientist, testified for the defense.5 He reviewed the
DNA testing on the samples taken from Flynn during her autopsy. He testified about the
one item (item 1.2) that provided informative data for both the female portion of the data
and the male portion of the data; the slide was made from material taken from Flynn’s
vagina that contained sperm. According to Dr. Staub, the female portion was consistent
with Flynn’s profile. The male portion of the DNA had a mixture of at least two
contributors, and Apanovitch was excluded as a contributor to that sample, meaning he
could not have contributed to that DNA.
{¶26} Dr. Staub further testified about how he would account for the possibility of
the slide being contaminated and found in regard to item 1.2 that there was no possibility
of contamination “whatsoever.” Thus, Dr. Staub’s conclusion as to item 1.2 was that
Apanovitch “could not have contributed the DNA that’s found in that sample.”
Dr. Benzinger
{¶27} Dr. Benzinger, from the Ohio Bureau of Criminal Investigations, testified for
the state. She testified that she believed that there are at least three people’s DNA in the
item 1.2 sample. Dr. Benzinger testified that she believed the sample was contaminated,
although she admitted that the two people who had previously worked on it during the
time frame she believed the contamination occurred were females. Dr. Benzinger was
not asked if it was her opinion whether the results of the testing on item 1.2 excluded
5 Dr. Staub owned a consulting business and manages the crime scene investigation unit and evidence room for the Plano, Texas police department. Most of his previous expert testimony had been for the prosecution. Apanovitch.
{¶28} Based on this testimony, the trial court found that Dr. Staub’s testimony was
uncontroverted and, therefore, that Apanovitch presented clear and convincing evidence of
his actual innocence of vaginal rape, and acquitted him of same.
{¶29} The two counts of rape were identically worded. The court further found
that, because the two rape counts were identical and there was no other differentiation
between them (i.e., vaginal and oral rape), the lack of specificity required dismissal of the
other rape count. The court then found that, with the two counts of rape removed, the
“nature and tenor of the case changes greatly.” Thus, under Crim.R. 33, the court found
that subsection 4 — that the verdict is not sustained by sufficient evidence or is contrary to
law — applied and ordered a new trial as to the aggravated murder with specifications and
aggravated burglary with specifications. The state appeals, raising the following five
assignments of error for our review:
I. The trial court abused its discretion by finding that Apanovitch proved by clear and convincing evidence his actual innocence of the vaginal rape.
II. The trial court abused its discretion by refusing to consider the FSA reports confirming Apanovitch’s sperm was present in Flynn’s mouth.
III. The trial court erred by ambushing the State with a new and unbriefed issue in its opinion that it never gave the parties an opportunity to address.
IV. The trial court erred by finding a Valentine error where there were only two counts of rape in the indictment and the evidence at trial delineated a separate factual basis for each count.
V. The trial court abused its discretion by setting a bond of just $100,000 in a death penalty case. Law and Analysis
Standard of Review
{¶30} A trial court’s decision regarding a postconviction petition filed pursuant to
R.C. 2953.21 will be upheld absent an abuse of discretion when the trial court’s finding is
supported by competent and credible evidence. State v. Condor, 112 Ohio St.3d 377,
390, 2006-Ohio-6679, 860 N.E.2d 77. “The term ‘abuse of discretion’ connotes more
than an error of law or of judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980). Thus, we should not overrule the trial court’s finding on Apanovitch’s petition if
the court’s decision is supported by competent and credible evidence.
Trial Court’s Finding of Actual Innocence as to Vaginal Rape without Considering Dr. Blake’s Reports
{¶31} The state’s first assignment of error challenges the trial court’s finding of
actual innocence as to the vaginal rape. The state’s second assignment of error
challenges the trial court’s decision in that it did not consider Dr. Blake’s reports.
{¶32} R.C. 2953.23 governs successive petitions for postconviction relief and,
relative to this case, provides that a court may consider such a petition if
[t]he petitioner was convicted of a felony, the petitioner is an offender for whom DNA testing was performed under sections 2953.71 to 2953.81 of the Revised Code or under former section 2953.82 of the Revised Code and analyzed in the context of and upon consideration of all available admissible evidence related to the inmate’s case as described in division (D) of section 2953.74 of the Revised Code, and the results of the DNA testing establish, by clear and convincing evidence, actual innocence of that felony offense or, if the person was sentenced to death, establish, by clear and convincing evidence, actual innocence of the aggravating circumstance or circumstances the person was found guilty of committing and that is or are the basis of that sentence of death.
R.C. 2953.23(A)(2).
{¶33} Under R.C. 2953.21(A)(1)(b), actual innocence means that
had the results of the DNA testing conducted under sections 2953.71 to 2953.81 of the Revised Code or under former section 2953.82 of the Revised Code been presented at trial, and had those results been analyzed in the context of and upon consideration of all available admissible evidence related to the person’s case as described in division (D) of section 2953.74 of the Revised Code, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted, or, if the person was sentenced to death, no reasonable factfinder would have found the petitioner guilty of the aggravating circumstance or circumstances the petitioner was found guilty of committing and that is or are the basis of that sentence of death.
{¶34} “Clear and convincing evidence requires a degree of proof that produces a
firm belief or conviction regarding the allegations sought to be proven.” State v. Gunner,
9th Dist. Medina No. 05CA0111-M, 2006-Ohio-5808, ¶ 8. “It is intermediate, being
more than a mere preponderance, but not to the extent of such certainty as is required
beyond a reasonable doubt as in criminal cases.” Cross v. Ledford, 161 Ohio St. 469, 477,
120 N.E.2d 118 (1954).
{¶35} In its first assignment of error, the state maintains that, in addition to the
“voluminous circumstantial evidence” against Apanovitch, Dr. Blake’s 2007 testing
demonstrated that Apanovitch was not actually innocent of the vaginal rape. The state
contends that the “trial court, however, disregarded [Dr. Blake’s findings] in favor of other
testing of a weaker DNA sample that yielded multiple male profiles and that had no definitive nexus to the murder.”
{¶36} Thus, the state is now contending in this appeal that the trial court abused its
discretion by failing to consider Dr. Blake’s findings. As previously set forth, Dr. Blake
was the subject of much discussion in the proceedings on this fourth postconviction
petition. In sum, the defense sought to depose him, he was uncooperative because he
wanted to be paid substantial hourly fees and costs, and ultimately the state stipulated that
because of the problems in securing his appearance, the state would not be relying on him
as a witness in these proceedings. To that end, the trial court issued an order stating “Dr.
Blake will not be presented as a witness and none of his prior reports of findings will be
admitted.”
{¶37} The state contends that, its stipulation aside, Dr. Blake’s findings were part
of the record in this proceeding because it was “litigated to finality by the federal district
court,” whose “decisions were binding on the state courts.” The state also maintains that
Dr. Blake’s findings were part of the record because Apanovitch attached them to his
postconviction petition at issue now.
{¶38} The trial court, citing this court’s decision in State v. Larkin, 8th Dist.
Cuyahoga No. 85877, 2006-Ohio-90, declined to follow the law of the case as it related to
the DNA evidence. Rather, the trial court considered the DNA evidence “free from any
restraint which could have been imposed by that doctrine.” We find that the trial court
acted within its discretion in that regard.
{¶39} In Larkin, this court stated that following in regard to the law of the case doctrine:
The United States Supreme Court has stated that “law of the case is an amorphous concept. As most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California (1983), 460 U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318, citing 1B J. Moore & T. Currier (1982), Moore’s Federal Practice, [pg].404. The Ohio Supreme Court has interpreted the law of the case doctrine to provide that the “decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3, 11 Ohio B. 1, 462 N.E.2d 410.
Id. at ¶ 29.
{¶40} This court explained that there are exceptions to the law of the case doctrine,
however, stating:
The law of the case doctrine is discretionary in application, subject to three exceptions: (1) the evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; and (3) the earlier decision is clearly erroneous and would work a manifest injustice.
Id. at ¶ 30, citing United States v. Bezerra, 155 F.3d 740, 752-753 (5th Cir. 1998).
{¶41} In this case, the trial court found that the first and third exceptions applied.
Specifically, the court found that “[a]s a result of the evidence presented at [the] hearing
there has been a material change in the nature of the evidence from what was presented at
trial,” and the “new evidence shows that, at least, some portion of the prior decision was
clearly erroneous and to apply the law of the case would work a manifest injustice.”
{¶42} As mentioned, the law of the case doctrine is discretionary; it is considered a
“rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results.” Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404, 659
N.E.2d 781 (1996). On the record before us, we find that the trial court acted within its
discretion in not applying the law of the case doctrine as it related to the DNA evidence.
{¶43} In regard to the state’s contention that Dr. Blake’s findings should have been
considered by the trial court because Apanovitch attached them to his fourth petition, we
reiterate the extensive discussion that was had by the parties regarding Dr. Blake and the
state’s ultimate stipulation that it was not going to rely on any of Dr. Blake’s findings.
After such a stipulation, it would be unjust to now allow the state to reverse course.
{¶44} Thus, the trial court was left with the opinion of Dr. Staub, who
unequivocally opined that the results of the DNA testing of the vaginal slide materials
excluded Apanovitch. Dr. Benzinger did not controvert that finding.
{¶45} Moreover, contrary to the state’s position, there was not “voluminous
circumstantial evidence” against Apanovitch. As the dissent in Apanovitch’s appeal to
the Ohio Supreme Court noted, the “evidence of guilt in this case * * * is far from
overwhelming.” Apanovitch, 33 Ohio St.3d at 29, 514 N.E.2d 394 (Brown, J., concurring
and dissenting).
{¶46} On this record, therefore, the trial court did not abuse its discretion in finding
that Apanovitch presented clear and convincing evidence of actual innocence relative to
vaginal rape.
{¶47} In light of the above, the state’s first and second assignments of error are
overruled. Valentine Issue
{¶48} In its third assignment of error, the state challenges the trial court’s dismissal
of the second count of rape under Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005). In
its fourth assignment of error, the state contends that the trial court erred in finding a
Valentine violation because the trial evidence delineated a separate factual basis for each
of the two counts of rape.
{¶49} Counts 3 and 4 of the indictment against Apanovitch identically charged
rape. After the trial court found that Apanovitch had presented clear and convincing
evidence of actual innocence relative to the vaginal rape, the trial court was left with the
query of which count should be dismissed. No bill of particulars was filed in this case, so
there was no clarification in that regard. The trial court then considered the jury
instructions for guidance. The instructions referred to “vaginal intercourse and/or
fellatio,” but did not distinguish which allegation of rape went with which count. Thus,
the jury instructions did not provide any guidance. Because the court could not
differentiate either of the rape counts, it acquitted Apanovitch of one count as relief under
his postconviction petition, and dismissed the other for its “lack of specificity or
differentiation from the other count in violation of [Apanovitch’s] due process rights.”
The court cited Valentine in support of its decision.
{¶50} The state contends that the trial court erred by raising the issue sua sponte,
without giving the parties the opportunity to brief it, and cites State v. Tate, 140 Ohio St.3d
442, 2014-Ohio-3667, 19 N.E.3d 888, in support of its contention. In Tate, the defendant appealed his gross sexual imposition and kidnapping convictions on sufficiency grounds.
Specifically, he contended that the state had failed to produce evidence that he forced,
threatened, or deceived the victim to go with him or that he used force or threat of force to
obtain sexual contact. He never contended that he was not the perpetrator and, in fact,
testified at trial that he had approached the victim, walked with her, and asked for oral sex.
According to the defendant, he had not initially approached the victim with sexual
motives and ended the encounter when he learned that she was underage.
{¶51} This court, sua sponte, raised the issue of identity, finding that the “record
before the court is devoid of any testimony from the victim or either of her two friends
identifying the appellant as the perpetrator,” and that there was “not sufficient evidence,
circumstantial or otherwise, that the appellant was ‘the man’ repeatedly referenced in the
testimony of the victim and her two friends.” State v. Tate, 8th Dist. Cuyahoga No.
97804, 2013-Ohio-570, ¶ 10, 13.
{¶52} On appeal to the Ohio Supreme Court, the court held that there was “no
conflicting evidence on the issue of identity — Tate agreed that he was the man with [the
victim].” Tate, 140 Ohio St.3d at 446, 2014-Ohio-3667, 19 N.E.3d 888. The court
reversed, “not only because the evidence of Tate’s identity was overwhelming, but also
because neither party argued otherwise.” Id. The court stated that “appellate courts
should not decide cases on the basis of a new, unbriefed issue without ‘giv[ing] the parties
notice of its intention and an opportunity to brief the issue.” Id., citing State v. 1981
Dodge Ram Van, 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988). {¶53} In light of the above, Tate presents a scenario distinguishable from the one
presented here. We do recognize that, in some instances, a court’s raising of an issue sua
sponte without allowing the parties to brief the issue can be a violation of the parties’ due
process rights. But we also recognize that
‘trial courts are on the front lines of administration of justice in our judicial system, dealing with the realities and practicalities of managing a caseload and responding to the rights and interests of the prosecution, the accused, and victims. A court has the ‘inherent power to regulate the practice before it and protect the integrity of its proceedings.’
State v. Busch, 76 Ohio St.3d 613, 615, 669 N.E.2d 1125 (1996), quoting Royal Indemn.
Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 33-34, 501 N.E.2d 617 (1986). Thus, in
Busch, the Ohio Supreme Court upheld the trial court’s sua sponte dismissal of an
indictment in the interest of justice. Further, the Ohio Supreme Court has sua sponte
addressed the issue of whether a defendant’s double jeopardy rights would be violated by
requiring a second trial after a dismissal of a defective indictment. State v. Broughton, 62
Ohio St.3d 253, 263, 581 N.E.2d 541 (1991).
{¶54} We are also not persuaded by the state’s contention that Apanovitch had to
raise this issue during the trial proceedings. In State v. Wilson, 8th Dist. Cuyahoga No.
93772, 2010-Ohio-6015, this court recognized that the “only way a double jeopardy issue
will arise is if appellant’s conviction on count three is reversed and the state wishes to
retry him.” Id. at ¶ 17.
{¶55} In light of the above, we find that the trial court properly considered the
double jeopardy issue and we now consider the merits of the court’s decision. {¶56} In Valentine, 395 F.3d 626 (6th Cir.2005), the Sixth Circuit Court of Appeals
affirmed the district court’s decision granting habeas corpus relief to the defendant on all
but one of his rape convictions, holding that the multiple, undifferentiated charges of rape
violated the defendant’s constitutional rights. Id. at 634. The state contends, citing this
court, that
Valentine has no binding effect on Ohio courts. It has been criticized for applying law that does not apply to Ohio grand juries, misapplying and misrepresenting case authority, and being “distinguished in every subsequent Sixth Circuit decision that cites it on this issue.”
State v. Schwarzman, 8th Dist. Cuyahoga No. 100337, 2014-Ohio-2393, ¶ 11, quoting
State v. Billman, 7th Dist. Monroe Nos. 12 MO 3 and 12 MO 5, 2013-Ohio-5774.
{¶57} We recognize that Valentine was not binding on the trial court, but find that
its discussion is helpful to the issue at hand. Specifically, in Valentine, the Sixth Circuit
discussed two sections of the Fifth Amendment. First, the court discussed the due
process portion of the Fifth Amendment which, under Russell v. United States, 369 U.S.
749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), requires that a criminal defendant be given
adequate notice of the charges in order to enable him or her to mount a defense.
{¶58} Second, the court discussed the double jeopardy portion of the Fifth
Amendment, which requires enough specificity of facts in an indictment to prevent a
re-indictment or retrial on charges that have already been decided by a trier of fact. The
Sixth Circuit held that an indictment was constitutionally sufficient only if it “(1) contains
the elements of the charged offense, (2) gives the defendant adequate notice of the
charges, and (3) protects the defendant against double jeopardy.” Valentine at 631. “The vast majority of cases from our district that have applied Valentine have been
resolved under a double jeopardy analysis.” State v. Freeman, 8th Dist. Cuyahoga No.
92809, 2010-Ohio-3714, ¶ 35.
{¶59} For example, in State v. Ogle, 8th Dist. Cuyahoga No. 87695,
2007-Ohio-5066, the defendant was charged, in part, with three identically worded counts
of rape, which the state contended consisted of two instances of digital rape and one
instance of oral rape. After deliberating, the jury informed the trial court that it was
deadlocked on one of the three counts of rape. The court accepted the jury’s verdict,
which included not guilty on two of the rape counts; the court declared a mistrial on the
third count of rape. The defendant filed a motion to dismiss the third rape count, and the
trial court denied his motion.
{¶60} On appeal, this court reversed, finding that subjecting the defendant to a
retrial on the third rape count would violate his double jeopardy rights. This court
reasoned that it is
well established that the Double Jeopardy Clause protects against successive prosecutions for the same offense. * * * Once a tribunal has decided an issue of ultimate fact in the defendant’s favor, the double jeopardy doctrine also precludes a second jury from ever considering that same or identical issue in a later trial.
(Citations omitted.) Id. at ¶ 17, 19.
{¶61} Likewise, here, at issue is whether the indictment against Apanovitch
contains enough specificity as to the two rape counts that a retrial on the remaining rape
count will not violate his double jeopardy protections. It does not. We have carefully reviewed the record, as did the trial court, and find that there is nothing differentiating
which count of rape was for which conduct — the indictment itself did not differentiate,
there was no bill of particulars, the jury instructions did not differentiate, and neither the
state’s opening or closing statements made the distinction.
{¶62} In light of the above, and on this record, we overrule the state’s third and
fourth assignments of error.
Bond
{¶63} For its final assignment of error, the state contends that the trial court abused
its discretion by setting a $100,000 bond in this case.6 According to the state, the court
failed to consider the bond schedule of the Cuyahoga County Court of Common Pleas and
the Ohio Constitution.
{¶64} After reading its decision on this postconviction petition, the trial court
addressed the issue of bond and set a $100,000 personal bond with house arrest and
electronic monitoring. The state filed a motion for reconsideration, which the trial court
granted. In granting the state’s motion, the trial court stated that it had “acted
prematurely and did not show a wise decision,” and amended the bail to $100,000 cash,
surety or property, with house arrest, electronic monitoring, and court-supervised release.
The state maintains that the bond is “inadequate to protect the safety of the public” from
Apanovitch, and that the trial court “disregarded the facts of this case and chose to
6 A trial court’s bond determination is within its discretion. In re De Fronzo, 49 Ohio St.2d 271, 274, 361 N.E.2d 448 (1977). presume that the indictment was false.”
{¶65} We disagree with the state’s contention that the trial court disregarded the
facts of the case and acted as if the indictment was false. The trial court set Apanovitch’s
bond after it had conducted a two-day evidentiary hearing, had reviewed volumes of
evidence, not only from the two-day hearing, but also from past proceedings, and had
reviewed the numerous prior cases relating to this matter. The trial court acknowledged
that it had initially “acted prematurely” and did not make a “wise decision” in setting the
bond. Therefore, the court reconsidered its initial bond determination, specifically stating
this is “still a capital case and while I did * * * make some decisions with regard to two
counts in this case, it still leaves two very major and valid counts.”
{¶66} We also note, as cited by Apanovitch, a similar case in this district in which a
“low bond” was set after postconviction proceedings. Namely, in State v. Keenan,
Cuyahoga C.P. No. CR-88-232189, the defendants were convicted of murder, sentenced to
death, and granted postconviction relief after years of litigation. The trial court ordered
their release on a $5,000 personal bond for one defendant and a $50,000 surety bond with
house arrest and electronic monitoring for the other defendant.
{¶67} On the record before us, we do not find that the trial court abused its
discretion in setting Apanovitch’s bond. The fifth assignment of error is therefore
overruled.
Conclusion
{¶68} The trial court’s February 12, 2015 judgment is affirmed. The issue for determination in Apanovitch’s fourth postconviction petition was whether newly
discovered DNA evidence demonstrated his actual innocence. The state stipulated that
Dr. Blake and his reports would not be part of the proceedings. The defense presented
the expert testimony of Dr. Staub, who testified that it was his opinion that the results of
the DNA testing of the vaginal slide materials excluded Apanovitch. The state did not
elicit testimony from its expert, Dr. Benzinger, that contradicted that Dr. Staub’s finding
on that point. The trial court therefore did not abuse its discretion in finding that the
evidence presented by Apanovitch met the standard of clear and convincing evidence of
actual innocence as it related to the vaginal rape.
{¶69} Further, because the two counts of rape were identically worded in the
indictment, and there was no differentiation of them elsewhere in the record, it was
impossible for the court to discern which count of rape it should acquit on. To retry
Apanovitch on the remaining count would violate his double jeopardy rights. Thus, the
trial court properly acquitted on one count and dismissed on the other count.
{¶70} Finally, there was no abuse of discretion in the trial court’s bond
determination. The court properly considered the facts of the case and the nature of the
remaining charges.
{¶71} Judgment affirmed; case remanded to the trial court for further proceedings
consistent with this opinion.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., P.J., and ANITA LASTER MAYS, J., CONCUR