The man convicted for the 1990 murders of an Atwater couple is asking the Ohio Supreme Court to grant a number of requests related to DNA testing of evidence from the crime scene in an effort to overturn his convictions and death sentence.

Tyrone Noling will have his post-conviction appeal considered next week before the Supreme Court following a December Court ruling that eligible offenders on death row must have the same right as non-capital offenders to have their post-conviction DNA testing appeals considered.

Elderly Couple Murdered in Their Kitchen
On April 7, 1990, Bearnhardt and Cora Hartig were found shot to death in their Atwater home. Two years later, police questioned five men who had been arrested for robberies in the nearby city of Alliance about the Hartig murders. Three of the men implicated Tyrone Noling, who had been sentenced to prison for the robberies. Noling was convicted and sentenced to death for the Hartig murders. Before and during Noling’s 1996 trial for the Hartig murders, one of the men recanted his statement. The two other men later provided statements that they had been pressured by police to incriminate Noling.

Noling Pursues DNA Tests of Evidence
Noling filed a direct appeal to the Ohio Supreme Court, which upheld his convictions and death sentence. Noling also filed applications for further DNA testing of crime scene evidence, including 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.

The trial court denied Noling’s second application for DNA testing in March 2011. The Ohio Supreme Court returned the case to the trial court in March 2013, where the trial court ordered further testing of the cigarette butt and an evaluation whether there was enough biological material on the shell casings and ring boxes to allow for DNA testing. The Ohio Bureau of Criminal Investigation (BCI) found that the DNA found on the cigarette butt didn’t match anyone in the FBI’s national database, and the shell casings and ring boxes weren’t suitable for DNA testing.

Since the Supreme Court’s December 2016 ruling in the constitutional challenge filed by Noling that he and all capital offenders have the right to have their appeals of denied post-conviction DNA testing requests considered, Noling has submitted arguments about the DNA testing of evidence in his case to the Court.

Noling Wants Further Testing Conducted
Noting that he received only a one-page summary of BCI’s DNA testing of the cigarette butt, Noling, who is represented by the Ohio Innocence Project, contends he is entitled to the complete quantitative results of the scientific tests. He also argues that the trial court had to explain in its order reasons for choosing BCI and that the court was required by law to rescind his DNA application when he objected to BCI as the DNA testing authority. Noling wanted to send the items to an out-of-state testing facility with more advanced DNA technology. Also, BCI performed only a visual observation, rather than actual testing, to decide whether the shell casings and ring boxes had been contaminated and were unsuitable for DNA testing, he argues. He further contests the trial court’s refusal to send the shell casings to a federal network that analyzes shell casings, arguing this testing is allowed because the results could alter the outcome of his case.

Prosecutor Argues More Tests Improper
The Portage County prosecutor counters that Noling was given a “copy of the results of the testing,” as required by the statute. Noling isn’t permitted to independently scrutinize BCI’s analysis anyway, the prosecutor asserts. Nor did the trial court issue a written judgment approving Noling’s DNA testing application, so Noling made his objection to BCI too soon. How BCI determines whether samples such as the shell casings and ring boxes are suitable for testing is up to BCI, the prosecutor maintains, adding that no evidence is left for testing in this case. In addition, Noling is asking to create new evidence from a method that isn’t DNA testing by asking for the shell casings to be sent to the federal network, the prosecutor contends.

Oral Arguments Set
State v. Noling is scheduled as the first of four cases before the Court on Tuesday, June 20. The Court will consider four cases on Wednesday, June 21. The Court’s session begins at 9 a.m. each day at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live on The Ohio Channel.

Case Previews Available
Along with the brief descriptions below, the Office of Public Information today released previews of the central arguments in the cases.

Tuesday, June 20
In 2011, a fuel supply company acquired property in 33 states for $166 million, including a petroleum tank farm in Grove City. The sale documents attributed $8.4 million of the sale to a combination of the real estate and extensive storage tanks and pipelines on the Grove City property. However, a document filed with Franklin County listed the real estate value alone as $8.4 million, rather than the $1.9 million the company intended. In Buckeye Terminals v. Franklin County Board of Revision, the company argues that the $8.4 million property tax valuation was mistaken and asks that it be rejected.

A couple sued a mobile home retailer after a Lucasville company installed the home incorrectly, resulting in substantial, ongoing damage to the property. The retailer required the installation company to carry general liability insurance, but the company acquired the insurance policy at issue in this case a year after installing the home. The retailer in Lightning Rod Mutual Insurance Company v. Southworth argues the insurer must cover the damage because an “occurrence” under the policy includes property damage that starts, continues, or repeats during the policy period as long as the installer didn’t know of the problems.

Cleveland police arrested a man in 2014 for stealing iron beams from a construction site and impounded his vehicle. The man was indicted for three felonies that included specifications allowing his 2001 sport utility vehicle to be forfeited. He entered a plea bargain that required he pay a fine and the police return his car. However, the police had junked his car after trying to notify him. He sued the city and two police sergeants for $1 million. In Cleveland Police Department v. Reid, the Court will consider whether the city and the officers are immune from liability or the civil case can go forward.

Wednesday, June 21
An Ohio electric company charged customers $43.4 million for the purchase of renewable energy credits in 2011, and the state’s public utilities commission found the money charged had to be returned. In re Review of Alternative Energy Rider Contained in Tariffs of Ohio Edison Company is the electric company’s appeal, which asserts that the company had limited options for meeting the state-mandated percentages for electricity from renewable energy resources, that the money collected by a utility through rates approved by the commission can’t be refunded, and that the commission’s order was impermissible retroactive ratemaking. Two other groups involved in the case maintain that the renewable energy supplier, the bids, and the methods for calculating the amount to be returned to customers are public record.

Cleveland Board of Review v. MacDonald is the second time the Court will hear an attempt to tax $9.1 million in supplemental executive retirement plan (SERP) benefits paid to a retired bank executive in 2006. The man’s company reported the SERP on his tax returns, but didn’t pay local income tax. Both Shaker Heights, where the man lived, and Cleveland, where the bank is located, sought to tax the SERP. The Court previously affirmed a ruling that SERP constituted a “pension” under Shaker Heights’ law and was exempt from taxation. The Court will consider if Cleveland’s city ordinances are different from Shaker Heights’ and exclude the SERP from the definition of a pension.

A Richland County man was sentenced to 11 years in prison for cocaine-related crimes. At a sentencing hearing, a trial judge also placed him on three years of postrelease control, and as required by law, informed the man that a violation of postrelease control rules could send him back prison. The trial court didn’t inform him that another law mandates that if an offender commits a felony while on postrelease control, he could receive two new prison terms – one for the felony and another for the postrelease control violation – that would have to be served consecutively. The Court will consider in State v. Brown if a sentencing court must provide the notification about the potential additional prison time an offender might face for committing a felony while on postrelease control.

At the center of In re Adoption of P.L.H. is a young child who was placed for adoption with a couple after the November 2015 birth. The child’s parents were friends when the mother became pregnant, and they didn’t marry. By law, a putative father’s consent to an adoption isn’t required if the father willfully abandons the mother during pregnancy. The father, who wishes to have custody of the child, argues he stayed in contact with the mother during her pregnancy and told her he wanted to raise the child. The adopting couple and the mother contend that his contact with the mother was sporadic and minimal, and he provided no financial support during the pregnancy.