Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, June 20, 2017

Buckeye Terminals LLC v. Franklin County Board of Revision et al., Case no. 2016-0495
Ohio Board of Tax Appeals

Lightning Rod Mutual Insurance Co. v. Robert Southworth, d.b.a. Bob’s Home Service et al., Case no. 2016-1116
Fourth District Court of Appeals (Scioto County)

City of Cleveland Police Department v. Dr. Tobias R. Reid, Ph. D., Case no. 2016-1122
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Tyrone L. Noling, Case no. 2014-1377
Portage County Common Pleas Court

Did Company Provide Sufficient Proof That Property Value Was Mistakenly Reported?

Buckeye Terminals LLC v. Franklin County Board of Revision et al., Case no. 2016-0495
Ohio Board of Tax Appeals

ISSUE: If a property purchaser mistakenly completes a conveyance fee statement, and a school board seeks increased property taxes based on the fee statement, must taxing authorities recognize evidence from the taxpayer that the property value is wrong?

In June 2011, Buckeye Terminals LLC completed a $166 million sale from Standard Oil Company that included properties in 33 states. The transaction allocated one property, a petroleum storage facility and tank farm in Grove City, a sale price of $13,981,000. Buckeye indicated that $8,492,911 of that allocation consisted of tangible personal property and real estate combined. When it filed a conveyance fee statement in Franklin County to reflect the real estate sale, the company claims it mistakenly listed the fee as $8,492,911. The company later corrected the statement to reflect the real estate portion had a value of $1,921,084 and the personal property, which included 14 above-ground storage tanks that could store 13 million gallons of fuel as well as eight other tanks and a vast network of pipelines, was worth $6,571,916.

A conveyance fee is a property transfer tax paid when property is sold. For tax year 2011, the Franklin County Auditor valued the property at $1,825,700. Based on the conveyance fee statement, the South-Western City Schools Board of Education filed a value increase complaint with the Franklin County Board of Revision, arguing the value should be increased to $8,439,000, and apply to tax years 2011, 2012, and 2013. At a 2014 hearing, Buckeye presented a revised conveyance fee statement that it had filed with the county auditor indicating the $1.9 million real estate price. Buckeye’s property manager, Flora Davis, who wasn’t an employee of the company at the time of the sale, testified at the hearing. She explained the error. The company also presented other evidence at the hearing. But the board found nothing Buckeye presented justified not using the $8.4 million purchase price listed in the first filing. It sided with the school district by increasing the tax value to $8.4 million.

Buckeye appealed to the Ohio Board of Tax Appeals (BTA), arguing that South-Western City Schools was trying to take advantage of an obvious mistake that would cost the company hundreds of thousands of dollars in additional tax. At the BTA, the company presented testimony of two Ernst & Young representatives, who provided financial consulting services for the sale, and indicated they valued the land at the $1.9 million figure. The company presented appraiser Bruce Pickering, who valued the land at $1.45 million, and presented expert testimony from Louis Spisak, a retired Ohio Department of Taxation official, who explained that the $8.4 million value included most of the expensive business fixtures on the property used to store and transport fuel.

The BTA ruled the $8.4 million figure in the original conveyance fee was the best indication of the property’s true value and affirmed the board of revision’s position. Buckeye appealed to the Supreme Court, which is required to hear BTA appeals.

BTA Ignores “Acceptable Evidence,” Buckeye Argues
Buckeye argues that the BTA took the position that the law required it to consider the original conveyance fee statement as the controlling evidence in the case unless Buckeye could establish that the sale wasn’t a recent arm’s length transaction. The company maintains the BTA selected the legal standard to use when a company challenges the true value, which isn’t what the company is doing. Instead, Buckeye suggests that the Supreme Court has instructed that in cases where a mistake is raised, the BTA only needs to consider “some additional increment of evidence” beyond the fee statement to change the value.

The company contends the BTA rejected a significant amount of credible evidence including: property manager Davis’s explanation and company documentation of the inaccuracy; documents and explanation from Ernst & Young’s expert witness testimony; the $1.45 million appraisal by Pickering; and the acceptance by the Franklin County auditor and recorder of the new fee statement. Buckeye also notes that for tax year 2014, the auditor valued the property at $1,825,790, and the school district didn’t challenge the price.

“This exposes the farce happening in this case. South-Western wants to rely upon a mistake. It desperately wants the Court to ignore that mistake. It wants to secure a three-year windfall in revenue from that mistake, a windfall that comes at the expense of a taxpayer,” Buckeye’s reply brief states.

Buckeye Failed to Prove BTA Wrong, School District Asserts
The school district argues that Buckeye failed to submit one key piece of evidence required to change the outcome – testimony from someone with personal knowledge that the June 2011 statement was a mistake.

At the time of the sale, R.C. 5713.03 required taxing authorities to use a recent sale price of an arm’s length transaction as the best evidence of its value, and the school district presented the conveyance statement as evidence. The district notes that it was three years later, and after its complaint for a value increase was filed, before Buckeye filed a new conveyance fee with the $1.9 million value.

The school district argues that before Buckeye can submit evidence on how it arrived at $1.9 million it must first prove the initial allocation was false. It points out that Davis didn’t join the company until after the sale, and the Ernst & Young document was either produced after the sale or was completed for financial reporting purposes and not for tax estimates. Neither accounting firm consultant testified they were involved with the first fee document.

The BTA also considered the Ernst & Young documents unreliable, noting the two documents the firm submitted were a spreadsheet showing the allocation of all the properties involved in the purchase from Standard Oil, and a page from a report about the sale. The BTA noted the value for the Grove City site on the spreadsheet didn’t match the conveyance fee statement, and the value in the report matched neither the statement nor the spreadsheet. Further, none of the three prices on those forms matched the value stated for the Grove City land in the purchase agreement from Standard Oil.

The school district maintains that its decision not to challenge the 2014 auditor valuation isn’t evidence of the property’s price, but merely reflects that the auditor accepted Ernst & Young’s oral opinion that the land as worth about $1.9 million. The district indicates the 2014 figure reveals that the company never presented any evidence to show how it came up with the lower figure, which means it still has yet to prove or present any consistent documentation that shows the 2011 figure was a mistake. The district indicates it objected to the 2014 valuation, but decided not to pursue it, and still contends it is more likely that the 2014 figure is wrong.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Buckeye Terminals LLC: Nicholas Ray, 614.464.5640

Representing South-Western City Schools Board of Education: Kimberly Allison, 614.228.5822

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Does Insurance Policy Apply to Property Damage Caused by Faulty Mobile Home Installation?

Lightning Rod Mutual Insurance Co. v. Robert Southworth, d.b.a. Bob’s Home Service et al., Case no. 2016-1116
Fourth District Court of Appeals (Scioto County)

ISSUE: Does a general liability insurance policy apply to property damage that occurs during the policy period regardless of whether the damage first appeared before the policy period as long as that damage wasn’t known to the insured before the policy’s inception?

Jonathan and Heather Beattie bought a mobile home from CMH Homes in November 2007 to place on their property in West Virginia. The home was manufactured by Skyline Corporation, and CMH contracted with Bob’s Home Service in Lucasville to install it.

Soon after moving in, the Beatties noticed problems, such as cracks in the ceiling at the “marriage line,” the point where the two halves of a double-wide trailer are bolted together, and drywall cracking. CMH and Skyline tried to repair the problems starting in January 2008, but issues continued to arise. Also reported in 2008 were damage to vinyl/linoleum, wall panels, door knobs, and trim; squeaking floors; and an out-of-square front door. In subsequent years, the Beatties and various inspectors identified bubbling kitchen flooring, cabinets pulling away from the ceiling, cracks in the foundation, bowed ceiling trim, more cracked drywall, and other problems. Inspections showed that the concrete foundation wasn’t built properly and that Bob’s used only a small fraction of the recommended number of bolts to construct the home.

Homeowners and Mobile Home Company File Lawsuits
In 2012, the Beatties sued CMH, Skyline, and the financing company in West Virginia, seeking compensation for the property damage to their home. CMH, in turn, filed a third-party complaint against Bob’s Home Service because it installed the trailer. Bob’s owner, Robert Southworth, testified that the August 2013 lawsuit notice was the first time the company heard of the problems at the Beattie home. CMH argued that the independent contractor agreement with Bob’s required the installer to have general liability insurance and to defend and indemnify CMH for any lawsuits stemming from the work Bob’s or its employees performed. Bob’s was insured by one company until March 2008 and then obtained insurance from Lightning Rod Mutual Insurance Company from November 2008 through November 2012.

CMH’s case was moved to arbitration, where the arbitrator in June 2016 awarded the company more than $1.1 million against Bob’s and Southworth and noted CMH could seek to recover attorney fees, costs, and expenses stemming from the arbitration. The Beatties also won their lawsuit against CMH. According to Lightning Rod’s brief filed with the Ohio Supreme Court, the Beatties were awarded $25,000 in compensatory damages plus attorney fees for the property damage.

Insurer Claims No Duty to Pay on Behalf of Home Installer
Lightning Rod filed a case in Scioto County Common Pleas Court against Southworth, Bob’s, and CMH in 2014, arguing it had no duty to defend Bob’s or to indemnify the company for the attorney fees or damages resulting from the Beattie lawsuit. Lightning Rod asked the trial court for summary judgment, which the court granted. The court determined that only Southworth, not Bob’s Home Service, was insured by Lightning Rod, but Bob’s installed the home. The court also ruled that the damage wasn’t covered because Bob’s set up the home before the Lightning Rod policy began.

CMH appealed to the Fourth District Court of Appeals, which agreed that the damage to the Beattie home occurred before the policy period and affirmed the trial court’s decision.

CMH appealed to the Ohio Supreme Court, which accepted the case for review.

Mobile-Home Company Argues for Continuous Trigger Approach
CMH contends that Lightning Rod’s policy issued to Bob’s states that it will pay amounts arising from property damage for which Bob’s is liable if the property damage is caused by an “occurrence,” the damage occurs during the policy period, and Bob’s didn’t know about the damage before the policy’s start date. The policy defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” According to CMH, this definition clearly covers property damage regardless of whether the damage started, continued, or repeated during the policy period as long as the insured and its employees didn’t know about the damage before the policy started. In this case, CMH notes, damage continued to appear at the Beattie home between November 2008 and November 2012, the Lightning Rod policy period, and Southworth and Bob’s didn’t learn of the damage until 2013.

Ohio law recognizes that continuing property damage or bodily injury can trigger coverage from multiple insurance policies and span different policy periods, CMH argues. The company maintains that the Ohio Supreme Court has decided several cases adopting a “continuous trigger” theory for insurance coverage. In Pennsylvania Gen. Ins. Co. v. Park-Ohio Indus. (2010), the Supreme Court explained that when a loss or damage occurs over time and involves multiple policies, the insurer selected by the policyholder may make claims against other insurers with applicable policies. CMH contends that multiple policy periods issued by many insurers wouldn’t apply to these situations if damage that occurred continuously over time didn’t trigger multiple policies.

CMH also points to decisions involving construction problems from the First, Ninth, and Twelfth district courts of appeals that upheld applying multiple insurance policies to ongoing damage. In addition, the highest courts in California, South Carolina, and Wisconsin, as well as the District of Columbia, have followed the continuous trigger approach in construction-defect cases, CMH maintains.

CMH also draws a distinction between first-party claims – those involving a policyholder who buys insurance to cover property – and third-party liability.

“A third-party policy does not ‘insure against the risk of loss to the insured’s own property,’ but insures ‘against the risk of liability being imposed for property damage,’” CMH wrote in its brief. “Loss occurs immediately when property is damaged; liability does not. So, under third-party policies, even after property damage occurs, there is still an element of fortuity to the coverage, since there remains ‘the full panoply of liability concepts such as duty, breach, and proximate cause’ that still need to be resolved.”

The company adds that, following a 1995 California Supreme Court case referred to as Montrose, many insurance companies narrowed their commercial general liability policies to provide coverage for bodily injury or property damage only when the injury or damage first takes place during the insurance policy period. However, CMH asserts, Lightning Rod didn’t include that language but instead stated in Bob’s policy that such coverage was barred only if the insured knew of the damage when obtaining insurance, which Bob’s and Southworth did not.

Insurance Company Contends No Coverage Warranted Given Occurrence Date
Lightning Rod responds that its policy provides coverage when the property damage occurs during the policy period, and the insured and its employees didn’t know the damage had happened before the policy period began. Lightning Rod argues that the language means the property damage must have first occurred during the policy period and how long the damages persisted isn’t relevant. Because the damage to the Beattie house was first identified before the November 2008 start of the Lightning Rod policy, the conditions for coverage weren’t met, the insurer maintains.

In Lightning Rod’s view, the Ohio Supreme Court has never adopted the continuous trigger approach in a case involving construction defects. The general view, Lightning Rod asserts, is that the date property damage is discovered is the correct occurrence date.

“The Trial Court and the Appellate Court have both determined that this was a simple contract case and that the clear language of the policy does not cover this loss because it did not ‘occur during the policy period,’” Lightning Rod states in its brief. “CMH is trying to persuade this court to adopt a new theory of law in order to bootstrap its claim for its attorneys’ fees and expenses against Bob’s Homes Services, LLC and his insurers.”

The insurer also argues that, along with the Fourth District’s ruling, decisions from the Fifth, Eighth, Ninth, and Tenth district appeals courts reject the continuous trigger theory and instead support the view that the insurance in place at the time damage first “manifests” applies to the entire loss. The appellate cases cited by CMH all involved damages that, unlike this case, were discovered after the insurance policy was issued, according to Lightning Rod.

The insurer also points to a federal district court decision in an environmental exposure case stating that the continuous trigger rule wouldn’t be appropriate in most property damage cases. In addition, a Pennsylvania court concluded in a case involving a defective plumbing system that the point when a problem first manifests, or becomes apparent, triggers insurance coverage, Lightning Rod maintains.

The problems in the Beattie home were all rooted in the same cause – the failure to properly construct the mobile home, Lightning Rod notes, adding that the Fourth District concluded that a continuation or resumption of the same damages wasn’t sufficient to create a claim covered by the Lightning Rod policy.

Lightning Rod also counters that its liability policy is narrow and based on standard insurance language developed 20 years after the Montrose ruling.

Though the lower courts didn’t reach these issues, the insurer adds that several exclusions in Bob’s policy preclude its coverage of the property damage because it was caused by Bob’s faulty workmanship, which isn’t insurable and doesn’t constitute an occurrence covered by the insurance policy.

Organizations File Briefs Favoring Insurance Company
The Ohio Association of Civil Trial Attorneys and Ohio Insurance Institute each submitted amicus curiae briefs supporting Lightning Rod’s positions.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing CMH Homes Inc.: Clair Dickinson, 330.535.5711

Representing Lighting Rod Mutual Insurance Co.: Ronald Rispo, 216.241.6602

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Must Cleveland Compensate Owner of Vehicle Junked While Criminal Case Pending?

City of Cleveland Police Department v. Dr. Tobias R. Reid, Ph. D., Case no. 2016-1122
Eighth District Court of Appeals (Cuyahoga County)


  • Under the “law of the case” doctrine, is the opinion of the trial judge in the criminal case controlling in a civil action initiated by the criminal defendant?
  • When a vehicle is seized by law enforcement and impounded, does R.C. 4513.61(A)(1) determine how the vehicle is held and disposed of, or does R.C. 2981.11, which governs law enforcement’s safekeeping of property, dictate how the property is held?
  • Is the City of Cleveland’s Division of Police immune from a civil lawsuit because it isn’t a government body that can sue and be sued?

In June 2014, two Cleveland Division of Police officers observed Tobias R. Reid inside a construction zone and watched him carrying iron beams to his 2001 Ford sport utility vehicle (SUV). Reid was arrested, and his SUV was seized as a criminal tool and taken to the police impound lot. Weeks later, a Cuyahoga County grand jury indicted Reid on felony breaking-and-entering and theft charges, both with forfeiture specifications regarding the SUV and with possession of criminal tools. In August 2014, the police sent notice by mail to Reid’s Cleveland address informing him that the SUV would be disposed of in late August if he didn’t claim it.

In early September, the Vehicle Custodial Unit of the police received notice from the post office that the letter was unclaimed, and it disposed of the SUV later that month. In December 2014, Reid pleaded guilty to an amended count of petty theft, a first-degree misdemeanor. The remaining charges were dismissed, including the forfeiture specifications. The trial court ordered Reid to pay a $100 fine and required the police department return his vehicle. When Reid was notified that his SUV had been “junked,” he sought to vacate his sentence, arguing his plea bargain was null and void because the police failed to return his vehicle. The trial court didn’t vacate the plea, but noted that if the police scrapped the vehicle without an order from the court, the department violated R.C. 2981.11, and he is entitled to compensation if he can prove ownership of the SUV.

Reid appealed his sentence to the Eighth District Court of Appeals, which affirmed his conviction and the denial of his motion to vacate.

Reid then filed a civil lawsuit seeking $1 million in damages in common pleas court against the Cleveland police; Sgt. Dale Moran, who supervised the two arresting officers; and Sgt. Keith Larson, director of the Cleveland Police Impound Unit. The city, represented by the city law director, asked the court for summary judgment. It argued the two officers weren’t individually involved in Reid’s matter and were immune from civil lawsuit under Ohio law. The city also claimed the department followed R.C. 4513.61(A)(1), which allowed it to seize the SUV and dispose of it when Reid failed to claim it. The city also claimed that the Cleveland Division of Police can’t be sued because it is one of five divisions of the city of Cleveland’s Department of Public Safety, and a segment of city government. It argued that the state, through the Cuyahoga County Prosecuting Attorney’s Office, handled Reid’s criminal prosecution so not only is the police department not an entity that can be sued, but it wasn’t involved in the criminal case that led to the destruction of the vehicle.

The trial court granted summary judgment to the city and police officers. Reid appealed to the Eighth District, which reversed the trial court. The city appealed the decision the Supreme Court, which agreed to hear the case.

Only Civil Trial Court Rulings Apply, City Argues
The city maintains the Eighth District misapplied the “law of the case” doctrine when it used portions of Reid’s criminal case to make determinations regarding his civil action about compensating him for his vehicle. The city argues that when an appellate court reviews a trial court’s grant of summary judgment, the appellate court is bound to review the decision within the record of the trial court and can’t use outside information. The city points out that it wasn’t a party to the criminal case, which involved only Reid and the county prosecutor. And the criminal court lacks the authority to award or make any determination regarding Reid’s entitlement to civil damages. The city concludes that the civil trial court, which involved the city, not the county, and two sergeants who weren’t part of the criminal case, aren’t bound by the opinion of the criminal court. It contends that the civil case trial court considered the facts that the city presented in its defense and sided with the city. The Eighth District violated the “law of the case” doctrine when it reversed the decision because it found Reid could make a claim for damages based on the criminal court’s assessment of the matter.

Additionally, the city argues it didn’t violate the law when it junked the SUV and was entitled to do so under R.C. 4513.61(A)(1), which allows the chief of police to seize and store a vehicle believed to be used in a crime. The chief is required to send notification to the last known address of the vehicle owner and can dispose of the vehicle 10 days after not receiving a response. The city and the officers are immune from liability because they not only followed the law, the city argues, but also because the state’s statutory immunity law, R.C. Chapter 2744, shields them. The city argues that Reid would have to prove the officers acted with “malicious purpose, in bad faith, or in a wanton or reckless manner,” and that the facts don’t support such a claim.

Eighth District Ruled Correctly, Reid Argues
Reid, who is representing himself pro se, notes that the SUV was destroyed while a criminal case with forfeiture specifications was pending. He argues the Eighth District didn’t abuse its discretion when it rejected the arguments of the city and the sergeants. He urges the Supreme Court to affirm the Eighth District’s finding.

The Eighth District decision indicated that when the police impound lot mailed the letter to Reid, it was unclear whether he was in jail at the time and able to receive it. The appellate court rejected the city’s claim that Reid’s lawsuit must fail because he named the police department as a defendant. The Eighth District found that when Reid named the police department, the “real party of interest” was the city of Cleveland, which can be sued.

The Eighth District ruled that in order for the trial court to grant summary judgment for the city, it must find “reasonable minds can come to but one conclusion” that the city is not liable. The appellate court noted the criminal court’s opinion that Reid might be entitled to compensation, and it found that ‘reasonable minds” could conclude that the city might have to compensate him for the SUV. That made granting the city summary judgment inappropriate, the appellate court found. It noted the criminal trial court cited the city’s responsibility under R.C. 2981.11, which requires that seized property “shall be kept safely by the agency, pending the time it no longer is needed as evidence or for another lawful purpose.”

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the City of Cleveland: William Menzalora, 216.664.2800

Tobias Reid, pro se, 518.870.2003

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Court Reviews Appeal of Denied DNA Test Requests in 1990 Portage County Double Murder

State of Ohio v. Tyrone L. Noling, Case no. 2014-1377
Portage County Common Pleas Court


  • In post-conviction DNA testing, does the required disclosure of test results in R.C. 2953.81(C) include all documentation of the testing performed, including the DNA profile itself, and not solely the testing authority’s conclusions?
  • May a trial court provide access to post-conviction forensic testing and databases in the absence of a statute?
  • Did the trial court accept an eligible offender’s application for DNA testing, requiring the court to rescind and deny the application because the offender objected to the use of the selected testing authority, based on R.C. 2953.78(B)?
  • Does R.C. 2953.76 require the DNA testing authority to use scientific testing methods and review the chain of custody to make the required statutory determinations in R.C. 2953.76(A)-(C)?
  • When a trial court selects a DNA testing authority pursuant to R.C. 2953.78(A), must the court articulate reasons for the selection, including whether the testing authority provides the appropriate DNA technology and its experience in testing the type of evidence at issue?

Bearnhardt and Cora Hartig were found shot to death in their Atwater home on April 7, 1990. Near that time, police arrested five individuals, including Tyrone Noling, for robberies in Alliance, about 10 miles away from Atwater. Noling and Gary St. Clair pled guilty to the Alliance robberies and were sentenced to prison.

In 1992, investigators questioned those involved in the Alliance robberies about the Hartig murders. St. Clair, Butch Wolcott, and Joseph Dalesandro implicated Noling in the crimes. St. Clair then recanted his statement before and at Noling’s trial in 1996. Noling was convicted and sentenced to death. Wolcott and Dalesandro later provided statements that they had been pressured by police to incriminate Noling.

Noling’s Various Appeals After Conviction
In December 2002, the Ohio Supreme Court upheld Noling’s conviction and death sentence in his direct appeal. Since his conviction, Noling also has filed applications for further DNA testing of evidence from the crime scene. The evidence includes a cigarette butt found in the Hartigs’ driveway, shell casings found in their house, and ring boxes from a bedroom drawer. The gun used in the murders never has been located, and the original DNA test results from the cigarette butt didn’t match Noling or his codefendants.

Given advances in DNA technology, the legislature changed the law to allow additional DNA tests in certain circumstances. In December 2010, Noling filed his second application for post-conviction DNA testing, pointing to evidence of other suspects in the murders. The trial court denied the application in March 2011.

On appeal, the Ohio Supreme Court returned the case to the trial court to decide whether earlier DNA testing barred his new request and, if not, whether more DNA testing would be “outcome determinative.” The Court explained in its May 2013 ruling that the relevant DNA statutes allow testing to try to positively identify the source of DNA evidence.

Trial Court Orders Tests
On remand, the trial court in December 2013 ordered the Ohio Bureau of Criminal Investigation (BCI) to test the cigarette butt and evaluate whether there was enough biological material on the shell casings and the ring boxes to enable DNA testing.

The DNA on the cigarette butt didn’t match anyone in the FBI’s national database, BCI reported, and that finding eliminated one of the alternative suspects Noling had identified. BCI also determined the shell casings and ring boxes weren’t suitable for DNA testing.

Noling Questions Constitutionality of DNA Testing Law
Noling appealed the trial court’s determination to the Ohio Supreme Court, which agreed to review only his argument that R.C. 2953.73(E)(1), the state law governing post-conviction appeals of DNA testing, was unconstitutional. On Dec. 21, 2016, the Court ruled that the statute violated the right to equal protection because it instituted different appellate processes for capital and noncapital offenders by giving offenders sentenced to death only the possibility, rather than the right, to have their appeal heard.

The Court severed the unconstitutional provision, and the law now gives eligible capital offenders an appeal of right to the Ohio Supreme Court when challenging a trial court’s denial of a request for post-conviction DNA testing. The Court stated that Noling now could file a brief arguing the merits of his case.

Noling Argues Test Results Means Full Report
R.C. 2953.81, which describes how an eligible offender’s DNA test results are handled, states in division (C), “The court or the testing authority shall provide a copy of the results of the testing to the prosecuting attorney, the Attorney General, and the subject offender.”  

Noling argues that he received only a one-page summary of BCI’s DNA testing of the cigarette, but he is entitled to the complete test results. He distinguishes between the summary of those results as described by the BCI lab technician and the objective, quantitative results derived from the scientific testing. To bolster his position that the statute’s language requires more than a summary of the results, he points to R.C. 2953.74(E), which allows a trial court to order BCI to compare the “results of DNA testing” to the combined DNA index system (CODIS) to try to identify a DNA contributor’s identity. Noling stresses that the BCI summary, which the state argues are the “test results,” would be useless in a comparison with CODIS, so that law and R.C. 2953.81(C) require the complete, actual test results to be provided.

Describing a concept called “anchoring,” he explains that actual results are critical to figuring out whether the same DNA profile shows up on multiple pieces of evidence. When the same DNA profile appears across different items of evidence, such as the cigarette butt, shell casings, and ring boxes, it’s more likely to have been put there by the perpetrator than to have been caused by contamination, Noling maintains.

The full test results must be provided to comply with R.C. 2953.81(C), to identify potential results that would be “outcome determinative,” to address the state’s concerns about contamination of the sample, and to adhere to the Supreme Court’s order in its 2013 remand to the trial court, Noling argues.

Prosecutor Responds That ‘Results of Testing’ Were Provided
The Portage County Prosecutor’s Office protests Noling’s arguments on this issue, asserting that the claim isn’t permitted by the post-conviction DNA testing statute. On the issue, though, the prosecutor contends that Noling was given a “copy of the results of the testing” as required by the statute. That information contained a March 2014 letter from the BCI DNA technical leader and the February 2014 one-page BCI lab report, the prosecutor notes.

“The unfavorable results from a DNA test do not allow Noling to scrutinize, review, or analyze BCI’s data for purposes of challenge or independent analysis,” the prosecutor’s brief states. “No collateral attack of BCI’s February 10, 2014, test results is permitted by the statute.”

Noling isn’t entitled to anything more based on the statute, the prosecutor contends. Though Noling’s lawyer identifies other DNA testing cases in which additional material was disclosed, the prosecutor asserts that the voluntary disclosure in those cases doesn’t compel the release of more information than the statute mandates in other cases.

Parties Dispute Whether Shell Casings Can Be Sent to Federal Database
The trial court denied Noling’s request to send the shell casings to a federal network that collects information about recovered shell casings and links them to specific weapons because the organization wasn’t specifically listed in Ohio’s DNA testing statute.

Citing R.C. 2953.84 and a 2005 Ohio attorney general opinion, Noling argues that the methods listed in state law aren’t the only ways an offender can obtain post-conviction DNA testing. Trial courts can release evidence for testing, even to a facility not listed in statute, because trial courts have the inherent power to ensure the judicial process and justice, Noling indicates. It was within the trial court’s authority to send the shell casings to the federal database, because the results could alter the outcome of his case, he asserts.

The prosecutor counters that this request seeks to create new evidence for the trial court to consider. The DNA testing statutes don’t require the trial court to create new evidence beyond the DNA testing and don’t allow evidence to be submitted to this federal database, the prosecutor maintains. Because the trial court was within its discretion when it denied Noling’s request, its decision isn’t properly reviewable by or appealable to the Supreme Court, the prosecutor states.

Noling Objects to Testing Facility Chosen by Court
The third set of arguments involves R.C. 2953.78(B), which states, “If a court selects a testing authority pursuant to division (A) of this section and the eligible offender for whom the test is to be performed objects to the use of the selected testing authority, the court shall rescind its prior acceptance of the application for DNA testing for the offender and deny the application.”

In a hearing about DNA testing, Noling argued there might be only one opportunity to obtain important DNA test results from the shell casings and the ring boxes because of limited biological material on the items. He asked the trial court to send the samples to an out-of-state lab with advanced technology. However, the trial court selected BCI as the test site, stating it hadn’t “accepted” Noling’s DNA application, as required by R.C. 2953.78(A). Noling objected.

He contends that post-conviction DNA testing can’t be ordered under the statute until the trial court has accepted the DNA testing application. Otherwise the statute is meaningless, he adds. Once the court accepts the application, it selects the testing authority and, if the eligible offender objects to that testing facility as provided in R.C. 2953.78(B), the court must rescind and deny the application for DNA testing, Noling asserts.

The prosecutor responds that the trial court first had to issue a written judgment and order to reflect approval of Noling’s DNA testing application. Noling’s objection based on R.C. 2953.78(B) was made too soon, the prosecutor maintains. Later, in June 2014, the court reviewed a BCI report that determined the cigarette butt, shell casings, and ring boxes weren’t scientifically suitable for DNA testing, and the court rejected Noling’s DNA testing application, the prosecutor asserts.

Views Differ on BCI’s Method to Determine Suitability
Noling also argues that BCI only did a visual observation of the evidence and didn’t do any of the analyses necessary to reliably assess the quantity and quality of the DNA in the items. Scientific testing is essential to determining whether a sample has been contaminated, but BCI did no testing, he notes. Noling asks the Supreme Court to return the case to the trial court to select an appropriate testing authority to conduct DNA tests originally ordered by the trial court.

The prosecutor counters not only that Noling isn’t permitted by law to appeal the selection of a testing authority, but also that BCI first had to determine whether the samples were scientifically suitable for testing before the trial court could decide whether to accept Noling’s application. How this step is completed isn’t spelled out in the statute, the prosecutor maintains. Instead, the testing authority simply makes the determination, the prosecutor contends, adding that sterile procedures investigators now follow weren’t yet in place at the time of the Hartig murders so contamination was a fair concern.

Noling Insists Court Had to Describe Reasons for Facility Choice
Noling maintains that the trial court could send items for testing to facilities not included on the attorney general’s list, citing five appellate court cases in which BCI sent samples to an outside testing facility with more advanced technologies. The trial court also was required to explain in its order why it selected BCI, which it didn’t, Noling argues.

The prosecutor again responds that Noling can’t challenge the court’s selection of a testing facility. Even so, no evidence is left for DNA testing, the prosecutor maintains, adding that the Ohio Supreme Court affirmed Noling’s conviction and death sentence 15 years ago.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Tyrone L. Noling from the Ohio Innocence Project: Brian Howe, 513.556.4276

Representing the State of Ohio from the Portage County Prosecutor’s Office: Pamela Holder, 330.297.3850

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