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Lawyers testify in mistrial case

ST. CLAIRSVILLE — Belmont County’s prosecutors took the witness stand Wednesday to testify about evidence sharing and communications with the defense in the question of whether a rape case from 2005 should be dismissed or pursued following a mistrial earlier this year.

Fred Hlinovsky, 54, of 42780 Mount Hope Road, Flushing, is facing one count of rape and one count of unlawful sexual conduct with a minor. The offenses allegedly happened at a residence in Holloway where Hlinovsky was visiting on Aug. 13, 2005. The alleged victim — a 14-year-old girl at the time — was also visiting the home. They did not know each other beforehand, and Hlinovsky would have been in his mid-30s at the time.

Hlinovsky was indicted after recent advances in DNA testing resulted in a possible match when DNA was submitted for retesting in 2019.

However, Belmont County Common Pleas Judge John Vavra declared a mistrial in May during the second day of proceedings when it came to light that some information had not been provided to Hlinovsky’s defense. He also recused himself from the case since his son, Assistant Prosecutor Joseph Vavra, might have been involved with the case.

Belmont County Common Pleas Judge Frank Fregiato presided. Defense attorney Zach Mayo represented Hlinovsky.

“There were three items that came up in the trial during the cross (examination) of Det. Allar that we identified there in real time that we felt were not provided to us,” Mayo said after the hearing.

“The first was a police report that was updated at the end with some information. The second item was the rape kit, that’s the forensic evidence they collect when someone goes in to get that assessment done. It was represented to us … we were led to believe it didn’t exist and we made references to that in our discovery demand.”

Another piece of evidence was the sexual assault nurse evaluation (SANE) conducted on the girl, from August 2005. The SANE report was apparently found inside the rape kit.

“We didn’t get that either, and that’s really the most significant item that wasn’t given to us, was the SANE exam,” Mayo said. “We’re asking for a mistrial with prejudice due to the discovery violations. Our contention is it accumulates into being goaded into a mistrial. We spent a lot of time preparing for a different case. These items were available and not provided to us.”

Belmont County Prosecutor Kevin Flanagan and Assistant Prosecutor Chris Gagin took the stand Wednesday to testify about the process of handling and sharing evidence, as did Chief Detective Ryan Allar of the Belmont County Sheriff’s Office. One member of the prosecution would object or cross examine while Mayo questioned the prosecutor giving testimony.

Wednesday’s testimony was lengthy, with Mayo reviewing multiple instances of communications throughout the case as both sides prepared for the trial. During points of testimony, the prosecution objected that the questioning was going down irrelevant paths.

“A big part of this is what was the nature of the lack of disclosure,” Mayo said. “Seeing how the process played out from the time we filed our discovery demand through the trial up until today will paint the court a better picture of the nature of the lack of disclosure.”

Flanagan took the stand and said his office acted appropriately and made every effort to remain in communication with the defense.

“I know you’re picking and choosing emails, but interspersed and intermixed with these emails, there are telephone calls, there are court appearances where we have discussed and hashed out all of this stuff,” Flanagan said.

“We are talking about one particular form from 2005 that was generated by the East Ohio Regional Hospital (in Martins Ferry) and … this entire hearing was based on the difficulty and confusion with trying to gain access to that one document,” Flanagan said afterward.

“Normally we would subpoena the records directly from the hospital. The problem was that the East Ohio Regional Hospital had shuttered operations, and given the length of time between the incident and the indictment, we were not able to secure that document by subpoena. As it turned out, that document existed in another form that wasn’t produced prior to trial, and that’s why we find ourselves in this situation,” Flanagan said.

“The office continues to prepare for a trial in this matter, unless the court rules otherwise,” Flanagan said afterward.

After noon on Wednesday, Fregiato ruled further witnesses would be heard Thursday morning. These included Hlinovsky’s attorney from the original trial, who has since withdrawn due to medical issues. Later that day, prosecution and defense agreed witnesses would instead send their statements via affidavit. Fregiato will consider the testimony and determine if the mistrial would be declared with or without prejudice. In the event of a mistrial without prejudice, a new trial date will be set for Hlinovsky.

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