The Cuyahoga County Prosecutor’s Office is challenging the new trial ordered for a man sentenced to death for the 1984 murder and rape of a Cleveland woman. The Ohio Supreme Court will consider the case at next week’s oral arguments.

House Painter Indicted in Murder
On Aug. 24, 1984, Mary Ann Flynn was found beaten, raped, stabbed, and murdered in her Cleveland home. Police focused their investigation on Anthony Apanovitch, whom Flynn hired that summer to paint her house. Flynn had told friends he had propositioned her and she was afraid of him.

Apanovitch was convicted of aggravated murder, aggravated burglary, and two counts of rape, and the trial court imposed the death penalty. His convictions and sentence were upheld in his first appeals in state courts.

Slides Containing DNA Evidence Discovered
DNA evidence was collected from Flynn’s body in 1984. Apanovitch says he requested DNA testing in 1989, but the state told him the slides containing oral and vaginal evidence had been lost or destroyed. However, a scientist found three slides in 1991 in a locked desk drawer of a former employee. A California laboratory determined that one of the three slides contained enough material to analyze, and awaited further authorization to test it.

In 2000, the Cuyahoga County coroner tested the two slides that the California lab couldn’t test and also concluded there wasn’t enough evidence to analyze. A second set of slides was then discovered, and the coroner tested those samples.

In October 2006, a federal court granted the prosecutor’s request to conduct DNA testing on slides with oral and vaginal samples. The California lab compared Apanovitch’s DNA with the material on the one testable slide from 1992 containing evidence taken from Flynn’s mouth. The court reviewed the DNA results, which found that Apanovitch couldn’t be excluded as the contributor of the evidence from the oral sample.

Evidence on Another Slide Had No Apanovitch DNA
In 2009, an expert for Apanovitch examined the DNA evidence. He found that one slide containing vaginal evidence excluded Apanovitch as a possible contributor. This determination formed the basis for Apanovitch’s request, or petition, for post-conviction relief filed with the Cuyahoga County Common Pleas Court in 2012.

At a 2014 evidentiary hearing related to the petition, the trial court ruled that the author of the California lab report about the oral sample wouldn’t testify and none of the lab’s findings would be admitted in the proceedings. The hearing then centered on the tested slide that contained vaginal evidence. Based on that evidence, the trial court vacated Apanovitch’s convictions for rape. The court ordered a new trial on the murder and burglary charges, but concluded that Apanovitch couldn’t be tried again on the rape counts because doing so would violate the constitutional prohibition against double jeopardy.

The Eighth District Court of Appeals upheld the decision, and the Ohio Supreme Court agreed to hear the prosecutor’s appeal.

Consideration of Oral Sample Debated
The federal appeals court determined it didn’t have to rule on the “highly inculpatory” DNA evidence from the oral slide because Apanovitch at that time had withdrawn his actual innocence claims. The Cuyahoga County prosecutor contends that the conclusions from that evidence are part of the case record and should have been considered with all the evidence during the post-conviction proceeding. The state wasn’t required to prove again in state court what it had already proven in federal court, the prosecutor maintains.

Apanovitch argues, though, that the federal district court made its ruling about that evidence without holding an evidentiary hearing. The California lab’s DNA report implicating him was “unadmitted, untested, and unchallenged” in any court, he asserts. Apanovitch states that the prosecutor agreed to the limited scope of the state court’s evidentiary hearing and contends that it was reasonable for the court to exclude the findings in the California lab’s DNA report.

Dismissal of Rape Counts Disputed
The prosecutor and Apanovitch also disagree about the dismissal of the rape counts. In the indictment, Apanovitch was charged with identical counts – rape by “vaginal intercourse and/or fellatio.” Because the indictment didn’t differentiate between vaginal and oral rape, the state trial court concluded that it had to set aside both rape convictions.

The prosecutor argues that the court had no authority to find the indictment to be defective and that a charge of oral rape should remain because Apanovitch presented no evidence of innocence on that count. Apanovitch counters that the 1984 indictment reflected a “sloppy use of carbon copy counts.” Retrying him on a charge that alleges vaginal rape, of which he’s been acquitted, violates the prohibition against double jeopardy, he states.

Parties Answer Supreme Court’s Questions
After the parties submitted briefs in State v. Apanovitch, the Ohio Supreme Court ordered them to address whether Apanovitch qualified under state law to even file a post-conviction relief petition. A person convicted of a crime can file a post-conviction appeal outside typical filing deadlines if the petitioner shows that discovery of facts was unavoidably prevented or if DNA testing under R.C. 2953.71 to 2953.81 establishes actual innocence.

The prosecutor argues that Apanovitch wasn’t prevented from discovering the DNA evidence because he knew of its existence since 1984 and that he didn’t seek DNA testing under the other statutes. The prosecutor asks the Supreme Court to overturn the trial court’s order in its entirety, which would reverse the order of a new trial.

Apanovitch responds that the state secretly conducted DNA testing in 2000 and 2001 but didn’t disclose the testing or the results to him until 2008. He also maintains that his petition wasn’t limited to only DNA testing conducted under R.C. 2953.71 to 2953.81. He asks the Court to review the merits of the arguments he has presented.

Oral Argument Details
The Court will consider Apanovitch and four other cases at a one-day session on Tuesday, June 26. Oral arguments begin at 9 a.m. at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

Case Previews Published
Along with the descriptions provided in this article, the Supreme Court’s Office of Public Information today released in-depth previews of the central arguments in each case.

Highlights of Other Cases
In the 1950s, the Ohio Power Company (now AEP Ohio) was a joint investor in power plants that supplied the large amounts of electricity required by the federal Atomic Energy Commission for its uranium enrichment facilities near Portsmouth. The Ohio Valley Electric Cooperative (OVEC) plants supplied power entirely to the federal government for decades until the enrichment operations ceased in 2003. OVEC-generated electricity is now available to AEP to sell to retail customers. AEP received state approval to add a “power purchase agreement rider” to customer bills starting in 2015 to cover the cost of OVEC-supplied electricity. Groups representing residential and business consumers in AEP service territory want the rider overturned in two cases, each referred to as In re Application of Ohio Power Co., that the Supreme Court consolidated for oral argument.

A college police dispatcher was indicted for allegedly accessing a statewide law enforcement database illegally. When the state notified prosecutors that the dispatcher’s activities were authorized, the charges were dropped. The dispatcher filed a lawsuit against his employers, accusing them of wrongful prosecution, and he subpoenaed grand jury transcripts from the official court reporter. In Daher v. Cuyahoga Community College District, the court reporter argues the dispatcher can’t subpoena the reporter for the records, and is asking the Supreme Court to uphold a process that requires the dispatcher to “petition” the court that supervised the grand jury to get the secret grand jury transcripts.

In 2012, a Cleveland attorney refiled a client’s lawsuit to try to secure damages owed to the client from a 1984 civil case. After a state appellate court reversed the trial court’s ruling that was in the client’s favor, the attorney accused the judges of “incompetence, corruption, and criminal conduct.” In Disciplinary Counsel v. Oviatt, the state professional conduct board recommends a one-year suspension with six months stayed for the attorney. He objects to the board’s findings and proposed sanction, arguing that the board didn’t address all the facts and that his attack on the judges was part of an ethical obligation to advocate for his client.