State v. Apanovitch, 112918 OHSC, 2016-0696

Docket Nº2016-0696
Opinion JudgeFischer, J.
Party NameThe State of Ohio, Appellant, v. Apanovitch, Appellee.
AttorneyMichael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder and Katherine E. Mullin, Assistant Prosecuting Attorneys, for appellant. Berkman, Gordon, Murray & DeVan, Mark R. DeVan, and William C. Livingston; and Crowell & Moring, L.L.P., Harry P. Cohen, and Michael K. ...
Judge PanelFrench, DeWine, and DeGenaro, JJ., concur. Kennedy, J., O'Donnell, J., concurring in part and dissenting in part. O'Connor, C.J., concurs in the foregoing opinion.
Case DateNovember 29, 2018
CourtSupreme Court of Ohio


The State of Ohio, Appellant,


Apanovitch, Appellee.

No. 2016-0696

Supreme Court of Ohio

November 29, 2018

Submitted June 26, 2018

Appeal from the Court of Appeals for Cuyahoga County, Nos. 102618 and 102698, 2016-Ohio-2831.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder and Katherine E. Mullin, Assistant Prosecuting Attorneys, for appellant.

Berkman, Gordon, Murray & DeVan, Mark R. DeVan, and William C. Livingston; and Crowell & Moring, L.L.P., Harry P. Cohen, and Michael K. Robles, for appellee.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Samuel C. Peterson, Deputy Solicitor, and Thomas E. Madden, Assistant Attorney General, urging reversal for amicus curiae, Ohio Attorney General.

Fischer, J.

{¶ 1} Appellee, Anthony Apanovitch, was convicted of aggravated murder, aggravated burglary, and two counts of rape, and, in January 1985, he was sentenced to death. The body of the victim, Mary Anne Flynn, was found in a bedroom in her home. She had been strangled and severely beaten, and sperm was found in her mouth and vagina.

{¶ 2} On direct appeal, the Eighth District Court of Appeals and this court affirmed Apanovitch's convictions and death sentence. State v. Apanovitch, 8th Dist. Cuyahoga No. 49772, 1986 Ohio App. LEXIS 8046 (Aug. 28, 1986); State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987). Apanovitch unsuccessfully pursued a number of avenues for relief, including filing three state postconviction petitions, State v. Apanovitch, 70 Ohio App.3d 758, 591 N.E.2d 1374 (8th Dist.1991); State v. Apanovitch, 107 Ohio App.3d 82, 667 N.E.2d 1041 (8th Dist.1995); State v. Apanovitch, 113 Ohio App.3d 591, 681 N.E.2d 961 (8th Dist.1996), and a federal habeas corpus action, see Apanovitch v. Houk, N.D.Ohio No. 1:91CV2221, 2009 U.S. Dist. LEXIS 103985 (Aug. 14, 2009), aff'd sub nom. Apanovitch v. Bobby, 648 F.3d 434 (6th Cir.2011).

{¶ 3} This appeal involves Apanovitch's fourth postconviction petition, in which he asserted claims in the Cuyahoga County Court of Common Pleas based on DNA testing done on specimens taken from Flynn's vagina. After an evidentiary hearing, the court acquitted Apanovitch of vaginal rape. It then dismissed the other, identically worded rape charge and granted Apanovitch a new trial on the remaining aggravated-murder and aggravated-burglary counts. The Eighth District Court of Appeals affirmed. 2016-Ohio-2831, 64 N.E.3d 429.

{¶ 4} We accepted review of three of the state's propositions of law. We do not reach those propositions, however, because the General Assembly has not authorized a court of common pleas to exercise jurisdiction over a petition for postconviction relief in the circumstances presented in this case. As a result, because the trial court lacked subject-matter jurisdiction to grant the petition for postconviction relief, the trial court's judgment (and, in turn, the court of appeals' judgment) must be vacated. We remand this matter for proceedings consistent with this opinion.


A. Investigation, trial, and direct appeals

{¶ 5} Mary Anne Flynn arrived home on August 23, 1984, at about 10:00 p.m. She owned the house-a duplex-and rented out the other unit. The people in the other unit that night heard Flynn's front door slam soon after she arrived, and they heard more noises (a loud thud and a high-pitched sound) from Flynn's unit between 11:30 p.m. and midnight. No witnesses saw or heard anything after that.

{¶ 6} When Flynn, a nurse, failed to report for her shift at a nearby hospital the next afternoon, a concerned coworker called Flynn's brother. They accessed Flynn's unit that evening and discovered Flynn's body in her bedroom. She was lying face down, naked on the bed with her hands tied behind her back. A bedsheet had been rolled up and was tied around her neck and to the headboard. She had been severely beaten, apparently with a piece of wood broken from a basement windowsill. An autopsy revealed sperm in her mouth and vagina. She had died from asphyxia by cervical compression, i.e., strangulation.

{¶ 7} Soon after the murder, investigators focused on Apanovitch, whom Flynn had hired earlier that summer to paint part of the exterior of her house. Circumstantial evidence suggested that he could be the murderer: There was evidence that Flynn had argued with a man she had hired to paint her house and that Flynn had ended the painting arrangement before the work was finished. Several witnesses testified that Flynn was fearful of a man who had done some painting at her house and one of those witnesses identified Apanovitch as the person Flynn feared. There was evidence that Apanovitch had approached Flynn outside of her home the afternoon before the murder asking to paint her windowsills. Following that interaction, Apanovitch apparently made sexually suggestive comments about Flynn to a coworker. Also, Apanovitch could not satisfactorily account for his whereabouts or for a scratch that he had received on his face the night of the murder. Finally, based on his blood type, Apanovitch could not be excluded as the source of sperm recovered from Flynn's body.

{¶ 8} Apanovitch was charged with aggravated murder, aggravated burglary, and two counts of rape. The rape counts were identical, both alleging that Apanovitch "unlawfully and purposely engaged in sexual conduct with Mary Anne Flynn not his spouse by purposely compeling [sic] her to submit by the use of force or threat of force."

{¶ 9} After a jury found Apanovitch guilty on all counts, it recommended a death sentence, which the trial court imposed. The court of appeals and this court affirmed the convictions and death sentence.

B. DNA evidence and testing

{¶ 10} When conducting Flynn's autopsy, a forensic pathologist with the Cuyahoga County Coroner's office1 created slides that contained specimens obtained from Flynn's mouth and vagina. DNA testing of the specimens was not available at the time of trial in 1984.

{¶ 11} In 1988, one of Apanovitch's attorneys asked the coroner's office for records related to Flynn's death. At that time, the slides could not be located, and it was assumed that they had been lost or destroyed. But in 1991, three slides related to Flynn's case (one vaginal slide and two oral slides) were located.[2]

{¶ 12} In 1991, the coroner's office sent the slides to Forensic Science Associates ("FSA") in California for DNA testing. Due to the condition of the samples, FSA determined that it could not analyze two of the slides (the vaginal slide and one oral slide), but it was able to determine a partial DNA type of the other oral slide (referred to by FSA as "Item 2"). A sample of Apanovitch's DNA was not available to FSA at that time for comparison.

{¶ 13} In 2000, an assistant Cuyahoga County prosecuting attorney asked the Cuyahoga County Coroner to conduct DNA testing on "any trace evidence or samples" related to Flynn's murder. The assistant prosecutor's letter said, "It is the intention of this request that the identity of the donor of sperm found in the victim, Mary Ann [sic] Flynn, be established to the degree of scientific certainty available." By that time, FSA had returned the vaginal and oral slides to the coroner's office. The coroner's office tested the slides in late 2000 but concluded that there was not sufficient material left on them to obtain a clear DNA profile.

{¶ 14} In 2006, for reasons that are not clear from the record, FSA further analyzed DNA from its Item 2, the specimen from Flynn's mouth, which it had retained and stored frozen in its DNA archive. This time, FSA developed a more complete male DNA profile that occurs in about 1 in 285 million Caucasian males. In 2007, the federal district court in Apanovitch's habeas case ordered Apanovitch, a Caucasian male, to provide a sample of his DNA for comparison. After analyzing that sample, FSA concluded that Apanovitch could not be eliminated as the source of the sperm taken from Flynn's mouth. Apanovitch contests that finding, arguing that FSA's report is unreliable.

C. Apanovitch's fourth postconviction petition

{¶ 15} In 2012, Apanovitch filed his fourth postconviction petition, focusing on the coroner's office's 2000 test of a specimen taken from Flynn's vagina. At the postconviction hearing, Dr. Rick Staub, Apanovitch's expert, testified about his review of the results of the testing of that specimen. Unlike the coroner's office, Dr. Staub concluded that a sample from the vaginal slide had provided useful results. In his opinion, the testing showed that Apanovitch's sperm was not on that slide, but the DNA of at least two other unknown males was on the slide; Apanovitch, therefore, was excluded as a contributor of the sperm. The state's expert at the postconviction hearing, Dr. Elizabeth Benzinger, testified that the vaginal sample contained a low level of DNA and could have been contaminated, but she did not testify as to whether Apanovitch was excluded as a contributor of the sperm.

{¶ 16} Because Dr. Benzinger did not contradict Dr. Staub's opinion that Apanovitch was excluded as a contributor to the vaginal sample, the trial court acquitted Apanovitch on the vaginal-rape charge. The trial court also dismissed the other rape charge with prejudice "for its lack of specificity or differentiation from the other count in violation of [Apanovitch's] due process rights." Based on the changes regarding the evidence and to the charges, the trial court granted Apanovitch a new trial on the remaining aggravated-murder and aggravated-burglary counts.

{¶ 17} In reaching its decision, the trial court found that "there was insufficient material to reach any conclusion whether...

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