Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Feb. 8, 2023

State of Ohio v. Malcolm Walker, Case No. 2021-1421
Sixth District Court of Appeals (Lucas County)

In re application of Firelands Wind LLC., Case No. 2022-0055
Ohio Power Siting Board

State of Ohio v. Juba Ali, Case No. 2022-0099
Ninth District Court of Appeals (Summit County)

Did Appeals Court Fail to Properly Review Man’s Self-Defense Claim?

State of Ohio v. Malcolm Walker, Case No. 2021-1421
Sixth District Court of Appeals (Lucas County)


  • Does the rule that a defendant must be acquitted if the prosecutor fails to supply sufficient evidence apply to a claim of self-defense?
  • If a trial court finds sufficient evidence to convict a defendant who raised a claim of self-defense, must an appeals court conduct a sufficiency review before affirming a trial court’s decision?

A Lucas County man convicted of murder claims Ohio courts fail to understand how to implement a 2019 state law that shifts the burden of proof of a claim of self-defense from the defendant to the prosecution. The man argues that a prosecutor must prove beyond a reasonable doubt that self-defense wasn’t justified. The man maintains that any aspect of a criminal charge that requires this level of proof is subject to a challenge that the prosecutor failed to provide sufficient evidence. If there is insufficient evidence, the defendant must be acquitted, the man asserts. Ohio trial courts and appellate courts aren’t conducting the proper sufficiency reviews for those claiming self-defense, he argues to the Supreme Court of Ohio.

In February 2019, Malcolm Walker visited a friend at the Toledo apartment where the  friend’s sister also lived with her three children. The friend and his sister converted one of the apartment’s bedrooms into a recording studio. Walker arrived in the morning, and he and his friend began drinking and recording music. He was later accompanied by two other friends, including a man nicknamed “Tooly.”

While the men were in the recording studio, the sister and her children were in the living room watching television when she heard a disturbance from the studio. The sister asked her brother to get everyone out of the apartment. Walker and Tooly went into the kitchen. When they left the kitchen, Walker shot Tooly, who fell to his hands and knees. The sister said she saw Walker shoot Tooly in the head and flee . He fired another shot from the hallway as he left.

Tooly died from the gunshot wounds the next day. Police found shell casings that were consistent with the sister’s account of the shooting. Others in the apartment didn’t cooperate with police. Police discovered Walker’s cellphone in the apartment, and it contained videos he recorded while in the studio. One video showed him sitting on the floor with two handguns. Another recorded Walker talking to his girlfriend and she told Walker that Tooly was heading to the apartment.

The sister identified Walker from a police photo array as the man who shot Tooly. Walker was arrested at a hotel.

Walker admitted he shot Tooly, but claimed it was in self-defense. He said a friend of Tooly’s robbed him at gunpoint a few days earlier and took $1,400. Walker claimed that Tooly talked to the man who robbed him while they were in the studio and told his friend where Walker was located. Walker feared that man was going to come over to rob or kill him. Walker also said Tooly held a gun to his face while in the kitchen and took one of Walker’s guns out of his pocket. He said the two scuffled and the gun went off. He said Tooly was pointing his gun at him, so he shot Tooly a second time and ran.

Shooter Challenges Charges
Walker was charged with felony murder with a gun specification and other charges. After the prosecution presented its case, and at the close of the trial, Walker’s attorney made a motion under Rule 29 of the Ohio Rules of Criminal Procedure, arguing the trial court should acquit him because the prosecutor failed to provide sufficient evidence to prove beyond a reasonable doubt that Walker was guilty. Specifically, the attorney maintained that under R.C. 2901.05, enacted in 2019, the prosecutor had to prove Walker didn’t act in self-defense, and the prosecutor failed to prove that. The trial court rejected his motion, and Walker was convicted of all charges. He was sentenced to 21 years to life in prison.

Walker appealed to the Sixth District Court of Appeals, arguing that under the change in the self-defense law not only did the trial court have to conduct a “sufficiency review,” but the appeals court must as well. The appellate court rejected his argument and affirmed the trial court’s decision.

Walker appealed to the Supreme Court, which agreed to hear the case.

Court’s Misguided View Prevented Sufficiency Review, Defendant Asserts
Walker notes that the Sixth District didn’t conduct a sufficiency review of his case, finding it unnecessary. Instead, the court conducted a “manifest weight of the evidence” review. Walker explains that under the weight of the evidence review, if he were to prevail, the outcome would be he could receive a new trial. If he prevailed under a sufficiency review, he could be acquitted of the charge.

Walker argues that the lower courts are only reviewing the sufficiency of the evidence used to prove the charged crime — in his case, felony murder. If the court finds that prosecutor proved there was sufficient evidence that Walker committed the crime, then the sufficiency review ends. At that point, his defense of self-defense is reviewed by the manifest weight of the evidence standard, Walker explains.

Regardless of whether the aspect of the criminal charge is part of the crime, or some other aspect of the case, such as where the crime took place, or if the defendant claims self-defense, Crim.R. 29 demands an acquittal if the law requires the prosecutor to prove the aspect, such as self-defense, beyond a reasonable doubt, and the prosecutor fails, Walker maintains. He argues that several challenges of convictions have been raised since the new law shifting the burden has taken effect.  But the arguments in those cases have not asked the Supreme Court to interpret the impact of Crim.R. 29. He argues that because R.C. 2901.05 now requires proof beyond a reasonable doubt of not acting in self-defense, the rule dictates a sufficiency review at the trial and appeal levels. In his case, the state didn’t have enough evidence to show he didn’t act in self-defense, and he should be acquitted of the charges, he concludes.

Court Conducted Review More Favorable to Defendant, Prosecutor Maintains
Contrary to Walker’s assertions, the Sixth District’s “manifest weight of the evidence review” was potentially more beneficial to Walker than a sufficiency review, the Lucas County Prosecutor’s Office argues. And regardless of the type of review, the lower courts correctly found that Walker was guilty of the crimes, the office maintains.

The prosecutor explains that under a sufficiency review, the focus is “whether, after reviewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” The evidence need not be so persuasive that a factfinder “must” find the defendant guilty, but that there only be some arguable evidence of guilt, the office explains. The prosecutor maintains the sufficiency review is less favorable to Walker than a manifest weight of the evidence review, where the evidence isn’t considered in a light most favorable to the prosecution.

Under a manifest weight test, the appeals court sits as a “thirteenth juror” and weighs the evidence to determine if the factfinder clearly lost its way and “created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered,” the prosecutor notes. The manifest weight review provides the appeals court a deeper examination of the case than a sufficiency review, the office explains, noting that while a judgment may be supported by sufficient evidence, an appeals court can find the verdict was nevertheless contrary to the manifest weight of the evidence.

When an appeals court conducts the manifest weight review, it has already concluded there was sufficient evidence to convict the defendant, the prosecutor explains. Walker wasn’t entitled to a separate sufficiency review by the appeals court, the office asserts.

The prosecutor rejects the claim that shifting the burden of proving self-defense requires a sufficiency review. The office states that R.C. 2901.05 still defines self-defense as a defense, and defenses aren’t examined under a sufficiency review, the office maintains. In Walker’s case, the prosecution’s evidence and the witness testimony far outweighed Walker’s claim of self-defense, and his conviction should stand, the prosecutor concludes.

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the Lucas County prosecutor’s position was submitted by the Ohio Prosecuting Attorneys Association.

Dan Trevas

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

Representing the State of Ohio from the Lucas County Prosecutor’s Office: Evy Jarrett, 419.213.2001

Representing Malcolm Walker: Peter Galyardt, 614.466.5394

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Did Power Siting Board Properly Authorize Construction of Northwest Ohio Wind Farm?

In re application of Firelands Wind LLC., Case No. 2022-0055
Ohio Power Siting Board

ISSUE: Did the Ohio Power Siting Board improperly grant a certificate to construct and operate the Emerson Creek Wind Project on 32,000 acres of land in portions of Erie and Huron counties?

In January 2019, Firelands Wind applied to the Ohio Power Siting Board for a certificate to construct an 87-turbine wind farm that would span across portions of 32,000 acres of rural lands roughly between the cities of Bellevue and Norwalk in Erie and Huron counties. The proposal has met with approval by some local farmers and local governments, and is opposed by others, including 19 landowners and the Black Swamp Bird Observatory.

The siting board conducted several hearings on the matter and, in 2021, agreed to grant a certificate to Firelands that allows up to 73 turbines, with a generating capacity of 847,000 to 952,000 megawatt hours of electricity per year. The board subjected Firelands Wind to 44 conditions to meet during construction and after operations begin to assure the project has a minimal adverse impact on the environment.

Opposing landowners and the observatory objected to the certificate. The power siting board denied their objections, and the group appealed to the Supreme Court of Ohio, which is required to consider this type of appeal.

Project Threatens Land, Birds, Human Health, Opponents Assert
The opponents raise seven objections, with two regarding the construction of turbines within the Bellevue-Castalia Karst Plain. “Karsts” are formed when water dissolves underground rock formations, such as limestone and gypsum, creating underground sinkholes, caves, and water drainage channels. The opponents say the wind farm is located in a known karst plain and that construction of the turbines on the unstable land is dangerous. The landowners also oppose plans to shore up the stability of the karst area by adding filling, arguing that it could dangerously alter underground water flows or could contaminate drinking water wells.

The landowners argue the board didn’t properly consider two other human health impacts — the increased noise caused by the turbines and the shadow flicker that may enter neighboring homes during the day. They also assert the board failed to evaluate the negative economic impact the wind farm would have on the area, including a decrease in property value, the threat to the viability of a nearby nuclear power plant, and the loss of bats, which provide value to farmers by eating insects that harm their crops.

The Black Swamp Bird Observatory, which is located in Oak Harbor, was formed in 1992 by biologists studying bird migration in the area. The wind farm would be south of the Magee Marsh Wildlife Area and south of an area designated by the National Audubon Society as a globally important area for bird migration. The observatory argues the certificate was issued without properly assessing the impact on migratory birds and has the potential for killing bald eagles, which nest in the area.

The opponents argue the collective issues they raise indicate the certificate was not properly issued and the construction shouldn’t go forward without more research on the threats the project poses.

Projects Meets All Requirements to Proceed, Siting Board Maintains
The power siting board explains that its charge from the General Assembly is to approve plans after gathering sufficient information to conclude that a project will have a minimum adverse environmental impact on the area. The law doesn’t require that all negative impacts to the area will be eliminated, which would be impossible, the board maintains. The board imposed several conditions to minimize the impacts of the Emerson Creek project, it argues, and its oversight doesn’t end with the granting of the certificate.

The board cites prior Supreme Court of Ohio decisions upholding wind farm approvals, noting that the certification process is “dynamic.” The board grants the wind farms the right to proceed, but that board staff monitors construction and operations, and the right to operate is based on meeting the conditions in the board’s orders.

The board notes it eliminated turbines proposed for areas where there were known karsts and required Firelands Wind to test for karsts in the portion of the project area in the karst plain before constructing a turbine. The board also maintains that noise levels were tested using accepted national standards to assure noise levels weren’t at a level that would present a danger. The conditions also include requirements to minimize shadow flicker in a neighboring property by preventing them from exceeding 30 hours per year.

Firelands was required to complete two studies using the Ohio Department of Natural Resources guidelines for bird and bat monitoring, and the company presented 29 studies of bird and bat migration, which demonstrated the project poses a minimal threat to the animals, the board notes. The board explains that it included conditions for Firelands Wind to conduct bird and bat monitoring after operations begin, and if state or federal wildlife officials determine there is an adverse impact on the animals, then company would have to develop a mitigation plan.

The board maintains that wildlife officials saw no need for further study of the impact of the turbines on migrating birds, particularly songbirds that travel at night. The officials also found the project area wasn’t in a location that was particularly attractive to migrating birds and that nesting bald eagles were also not threatened by the wind farm.

Wind Farm Has Positive Effect on Area, Operator Argues
The Court permitted Firelands Wind to intervene in the case and argue on its own behalf. The company takes issue with several of the opponent’ claims, including its threat to bald eagles and the economic impact of the project. Firelands Wind notes that Ohio has 39 operating wind farms with 419 turbines, and there has been only one reported incident of a bald eagle being killed by a wind turbine. The company notes there are already 11 other wind farms in Ohio that are closer to the Lake Erie shoreline, where bald eagle populations nest, than the Emerson Creek project. The project will have a minimum adverse effect on the eagles, bats, and migrating birds, the company asserts.

The company also echoes the board’s position that the board doesn’t require the applicant to assess the potential negative economic impact of a project, but must report an assessment of simply the “economic impact of the proposed facility on local commercial and industrial activities.” The company’s study indicates it will provide a positive impact. The wind farm will create more than 300 construction jobs and 50 permanent jobs, the company estimates, and will generate $170 million in economic output, which will result in significant tax revenues for local governments. The project will not harm any other generators, but will instead provide additional electrical generation sought by consumers served by the regional electric transmission grid, Firelands Wind concludes.

Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Firelands Wind’s position was submitted by the Ohio Chamber of Commerce. The Ohio Environmental Council and local farmers also filed amicus briefs supporting Firelands Wind.

Dan Trevas

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

Representing Patricia Didion, 18 other landowners, and the Black Swamp Bird Observatory: Jack Van Kley, 614.431.8900

Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Werner Margard, 614.466.4397

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Did Man Receive Fair Trial When Past Victims Testified?

State of Ohio v. Juba Ali, Case No. 2022-0099
Ninth District Court of Appeals (Summit County)


  • Did a man accused of kidnapping and raping a 16-year-old relative receive a fair trial when the trial judge admitted evidence of his prior convictions related to accosting young women?
  • Did the appeals court apply the wrong standard for determining whether thewrongful admission of the “other acts evidence” was a harmless error that didn’t impact the outcome of the trial?

A 16-year-old girl, identified as “S.B.,” and her 15-year-old brother lived with their grandparents.
On Thanksgiving Day 2018, Juba Ali, who was 64 years old and the grand uncle of the two teens, met them for the first time. He visited with them for about 45 minutes. While there, he showed the teens a picture of a “gym” he constructed in a garage.

The next day, Ali took S.B. and her brother, along with S.B.’s boyfriend, to see the gym. After visiting the gym and a few other places in town, Ali took S.B.’s brother home, and then dropped off S.B. and her boyfriend at her boyfriend’s home. S.B. agreed to call Ali later to pick her up from her boyfriend’s home. She called, and Ali picked her up.

He began to drive her home, but then drove a few blocks from the house. He offered to give her a massage and then began groping the girl. S.B. testified that Ali then tied her hands to the car seat and raped her while using a condom. After it was over, he drove her home.

When she arrived back at her grandmother’s house, her brother testified, S.B. was shaking and not behaving as her usual self. Her grandmother testified that S.B. kept silent and would not tell her what was wrong at first. S.B. said she eventually told her grandparents that Ali raped her.

About three days later, S.B. suffered seizures while at school. She told her school counselor about Ali, and she was taken to Children’s Hospital Medical Center after her second seizure. At the hospital, with her grandmother present, S.B. revealed the full details of the incident. The hospital determined that too much time had passed to perform a rape kit examination. DNA samples were taken from her underwear 11 days after the incident, and the results were inconclusive. At the time, S.B. had been in counseling and taking medication for attention-deficit disorder, bipolar disorder, and anxiety.

Ali was indicted on five charges, including kidnapping and rape with a sexually violent predator specification.

Defendant Contests Testimony From Past Victims
In July 2019, the Summit County Prosecutor’s Office issued a notice that it intended to use “other acts evidence” to support its case, and intended to present the testimony of two other young women that Ali was convicted of assaulting more than 20 years ago. Ali objected, but the trial court permitted the testimony of the two women to be admitted for the purposes of “establishing a common scheme, plan, motive, intent, and/or absence of mistake.” The prosecutor told the court both victims were minors at the time they were assaulted by Ali.

At the trial, one woman indicated she was 20 years old when Ali enticed her to model clothing before attempting to have sexual contact with her. Ali was eventually convicted of attempted abduction and sentenced to prison.

After his release from prison, he started a catering business, in which he met a 19-year-old woman who was a friend of his neighbor. Ali eventually convinced the woman to pose for photos for him and then sexually assaulted her. Ali was convicted of raping and kidnapping the woman. At his trial, he claimed they engaged in a consensual act.

At the conclusion of the trial, the judge instructed the jury that the testimony of the two women could be used only for a limited reason and not used to prove those acts showed that Ali acted in the same way toward S.B.

The jury found Ali guilty of all charges, and he was sentenced to 18 years to life in prison.

Ali appealed to the Ninth District Court of Appeals. In a 2-1 decision, the appeals court affirmed his conviction. Ali appealed to the Supreme Court of Ohio, which agreed to hear his case.

Appeals Court Wrongly Affirmed Conviction, Inmate Argues
Ali argues the admission of the other acts evidence from his convictions for crimes that took place in the 1990s so contaminated his trial that the jury couldn’t have possibly been unaffected by it, regardless of the limiting instructions given by the trial judge. The Ninth District clearly indicated the testimony of the two women shouldn’t have been admitted, he notes, but instead of ordering a new trial, the appellate court found the error was harmless. The Supreme Court of Ohio in its 2020 State v. Hartman decision provided guidance on how other acts evidence can be admitted, but the trial court didn’t follow that process, Ali maintains. The Ninth District compounded the error by conducting a “harmless error review” by using a standard that fails to reflect the “serious and infectious nature of such evidence,” Ali’s brief states.

Ali maintains the Ninth District used a standard announced in the Supreme Court’s 2020 State v. Boaston decision, in which the appellate court must first determine if the improper evidence “had an impact on the verdict.” If it did, then the appellate court determines if the remaining evidence when the improper evidence is removed proves the defendant is guilty beyond a reasonable doubt.

Ali argues the standard expressed in Boaston is for general errors, but the Supreme Court imposed a higher standard for other acts evidence in prior cases, including its 2018 State v. Tench decision. In Tench, the Court wrote that when improper other acts evidence is admitted, the appellate court must determine if there is “no reasonable possibility” that the testimony contributed to the conviction. If it did, then the court must determine whether, if the improper testimony is removed, the remaining evidence “overwhelming,” he notes.

Citing the dissenting opinion by the one appellate judge, Ali argues the evidence without the testimony of the two women wasn’t overwhelming, but rather just a contest between his version of the events and that of S.B. He argues he deserves a new trial.

Inmate Mischaracterizes Standard for Reviewing Other Acts Evidence, Prosecutor Asserts
The Summit County prosecutor argues that the term “overwhelming” as interpreted by Ali would require a new elevated standard on top of the existing elevated standard for errors involving other acts evidence. Regardless of word differences in the prior opinions, the prosecutor agues the process for determining if the other acts evidence tainted the trial remains the same. In any case, the reviewing court must determine that once the improper evidence is removed, the remaining evidence proves beyond a reasonable doubt that the defendant committed the crime.

The prosecutor maintains that Ali’s version of the events isn’t plausible: that a 16-year-old girl, with a boyfriend, and who was not sexually active would show sexual interest in her 64-year-old grand uncle whom she had just met. By contrast, the prosecution presented the testimony of the victim, her brother, her grandmother, counselors who S.B spoke with after the event, and police who investigated the incident.

The jury was given a proper limiting instruction that indicated the testimony from the women about the earlier convictions couldn’t be used to demonstrate that because Ali had committed sexual assaults in the past, it was in his character to commit the assault on S.B. The jury considered the remaining evidence and found Ali guilty, the prosecutor argues. The appellate court conducted a proper review of the evidence, and found that a jury could find by beyond a reasonable doubt that Ali committed the crimes, the office concludes.

Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting Ali’s position was submitted by the Ohio Association of Criminal Defense Lawyers.

Dan Trevas

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

Representing Juba Ali: R. Jessica Manungo, 614.466.0702

Representing the State of Ohio from the Summit County Prosecutor’s Office: Jacquenette Corgan, 330.643.2800

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