[Cite as State v. Parrish,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190379 TRIAL NO. 19CRB-8179 Plaintiff-Appellee, :

vs. : O P I N I O N.

STACY PARRISH, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 7, 2020

Paula Boggs Muething, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Meagan D. Woodall, Assistant Prosecuting Attorney, for Plaintiff- Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, Judge.

{¶1} Defendant-appellant Stacy Parrish was convicted of domestic violence in

violation of R.C. 2919.25. We reverse her conviction and remand for further proceedings

because the trial court failed to apply the new burden-shifting provision of the self-defense

statute at her trial.

Background Facts and Procedure

{¶2} Parrish was charged with domestic violence for hitting her husband

Franklin Howard on April 5, 2019. A bench trial was held in June 2019. Parrish did not

testify, but she presented testimony from Grace Porter, Howard’s neighbor, to support a

self-defense claim involving the justified use of nondeadly force. The trial court found

Parrish guilty of the offense and told Parrish, “[Y]ou prove self-defense, not them. They

don’t have to disprove it.” Parrish now appeals, raising four assignments of error.

Change to Statute Governing Self-Defense Claims

{¶3} In her first assignment of error, Parrish argues her conviction must be

reversed because the trial court did not evaluate her self-defense claim under the amended

version of R.C. 2901.05(B)(1), which changed Ohio’s treatment of self-defense claims.

According to Parrish, the amendment both reduced the defendant’s burden to raise the

issue of self-defense and placed a burden of disproving the defense on the prosecution.

{¶4} The defense of self-defense may exonerate an accused’s admitted use of

force. R.C. 2901.05(B)(1). Under the common law, a defendant was required to meet two

burdens related to this affirmative defense: the burden of proof—establishing justification

by a preponderance of the evidence—and the inherent procedural burden of going forward

with evidence of justification. See State v. Crawford, 1st Dist. Hamilton No. C-790221,

, *3 (July 15, 1981), cited in State v. Gloff,

, ___ N.E.3d

___, ¶ 25 (12th Dist.).

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} Ohio followed the traditional common-law treatment until January 1974,

the effective date of Ohio’s criminal code. Crawford at *3. From 1974 until November

1978, Ohio statutory law separated the “burden of going forward with the evidence of an

affirmative defense” from the burden of proof by a preponderance of the evidence, and

placed only the burden of going forward with evidence on the defendant. See former R.C.

2901.05(A); Crawford at *3.

{¶6} Ohio “re-established” the common-law treatment for affirmative

defenses in 1978, when former R.C. 2901.05(A) was amended. Crawford at *4. Thus, for

all affirmative defenses, including self-defense, the defendant shouldered the “burden of

going forward with the evidence,” and the “burden of proof by a preponderance of the

evidence.” Former R.C. 2901.05(A).

{¶7} R.C. 2901.05 was again modified in late 2018 to change the treatment for

the use of force in self-defense, defense of another, and defense of residence. R.C.

2901.05(A) now contains the italicized portions:

The burden of going forward with the evidence of an affirmative defense,

and the burden of proof, by a preponderance of the evidence, for an

affirmative defense other than self-defense, defense of another, or defense

of the accused’s residence as described in division (B)(1) of this section, is

upon the accused.

R.C. 2901.05(A), 2018 Ohio Laws File 159, 2017 Am.Sub.H.B. No. 228.

{¶8} Additionally, former R.C. 2901.05(B)(1) was renumbered to (B)(2), and

the following language was added in its place:

If, at the trial of a person who is accused of an offense that involved the

person’s use of force against another, there is evidence presented that tends

3 OHIO FIRST DISTRICT COURT OF APPEALS

to support that the accused person used the force in self-defense, defense of

another, or defense of that person’s residence, the prosecution must prove

beyond a reasonable doubt that the accused person did not use the force in

self-defense, defense of another, or defense of that person’s residence, as

the case may be.

R.C. 2901.05(B)(1), 2018 Ohio Laws File 159, 2017 Am.Sub.H.B. No. 228. The effective

date of these amendments is March 28, 2019, after the commission of the domestic

violence charged in this case.

{¶9} The state concedes that the trial court erred by failing to apply the

amended version of R.C. 2901.05(B)(1) in this case. The state argues, however, that the

proper course is to remand the cause to permit the trial court to apply the amended

version of the statute. According to the state, the trial court should determine in the first

instance whether Parrish met her burden of presenting evidence that “tends to support”

her claim of self-defense, and if so, whether the state disproved beyond a reasonable doubt

that Parrish had acted in self-defense.

Harmless-Error Standard

{¶10} This court will not reverse a conviction where the trial court’s error was

harmless. Crim.R. 52(A). Thus, contrary to the state’s position, this court must determine

whether Parrish met her burden of production under the amended statute. If Parrish

failed as a matter of law to meet her burden of production, then there is nothing to send

back to the fact finder. See, e.g., State v. Cross,

,

(1979); State v. Melchior,

,

(1978), paragraph two of the

syllabus.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶11} Parrish contends that the defendant has a reduced burden to place at

issue the use of force in self-defense. She argues the phrase “tends to support” in R.C.

2901.05(B)(1) defining the defendant’s burden implies a lesser burden of production than

under prior law. The state seems to agree with Parrish’s position, but other appellate

districts have held otherwise. See State v. Jacinto,

, ___ N.E.3d ___, ¶

49 (8th Dist.); State v. Petway,

, ___ N.E.3d ___, ¶ 69 (11th Dist.); State

v. Tolle, 4th Dist. Adams No. 19CA1095,

, appeal not accepted,

,

,

.

{¶12} The Petway court noted that “tends to support” is a “legal term of art”

with a qualitative component that “is not substantively different” than the defendant’s

burden “of going forward with evidence” of the defense, the undisputable applicable

standard before the 2018 amendment.

.

{¶13} We agree with the reasoning of the Petway court, and add that division

(B)(1) of R.C. 2901.05 must be read in context with the entire statute, including division

(A). See R.C. 1.42. The General Assembly amended the language of division (A) of R.C.

2901.05 in Am.Sub.H.B. 228 to eliminate the defendant’s burden of proving by a

preponderance of the evidence the substance of self-defense, defense of others, and

defense of residence, but it did not alter a defendant’s procedural burden “of going

forward with the evidence” with regard to those affirmative defenses or affirmative

defenses in general.

{¶14} Thus, the recent changes to R.C. 2901.05, including the addition of the

“tends to support” language in division (B)(1), does not change the accused’s burden of

production with respect to self-defense. The phrase “tends to support” in R.C.

2901.05(B)(1) places a procedural burden on the defendant synonymous with the

5 OHIO FIRST DISTRICT COURT OF APPEALS

defendant’s procedural burden set forth in R.C. 2901.05(A) and defined under prior case

law. The defendant must adduce evidence from whatever source that, when viewed in the

light most favorable to the defendant, is sufficient to cast a reasonable doubt as to guilt.

See State v. Melchior,

,

(1978), paragraph one of the

syllabus. (“The proper standard for determining in a criminal case whether a defendant

has successfully raised an affirmative defense under R.C. 2901.05 is to inquire whether the

defendant has introduced sufficient evidence, which, if believed, would raise a question in

the minds of reasonable [fact finders] concerning the existence of such issue.”); State v.

Robinson,

,

(1976) (“ ‘The trial court must first,

viewing that evidence [from whatever source] in the light most favorable to the defendant,

determine whether or not it is adequate to raise the self-defense issue, and, if believed,

would under the legal tests applied to a claim of self-defense permit a reasonable doubt as

to guilt, stemming from that claim, to arise.’ ”).

{¶15} Here, the record contains evidence that, when considered in the light

most favorable to Parrish, would have raised the question of self-defense in the mind of a

reasonable fact finder. See Melchior; Robinson; see also State v. Salaam, 2015-Ohio-

4552,

, ¶ 15 (1st Dist.) (setting forth the elements of the use of nondeadly

force in self-defense.). It is undisputed that Parrish and her husband were estranged and

did not have a custody order in place when Parrish arrived at her husband’s apartment to

pick up one of their daughters. The husband’s testimony concerning the daughter’s

reaction to Parrish, Parrish’s actions before taking the child, and whether Parrish was the

aggressor conflicted with the testimony of the husband’s neighbor. That neighbor also

testified that Parrish’s husband “always wanna put his hands on her” when Parrish comes

by the apartment. Finally, there is evidence that Parrish did not use more force than

6 OHIO FIRST DISTRICT COURT OF APPEALS

necessary to end the threat of harm. Her husband testified that she left only a red mark on

his face, and the responding police officer did not recall any sign of injury.

{¶16} Thus, Parrish went forward with evidence “of a nature and quality

sufficient to raise the defense” of self-defense. See Melchior, at paragraph two of the

syllabus. The state had the burden of disproving beyond a reasonable doubt that Parrish

had acted in self-defense. Consequently, we hold the error is not harmless and requires a

reversal of Parrish’s conviction. Accordingly, we sustain the first assignment of error. Our

disposition of the first assignment of error renders the remaining assignments of error

moot, and we do not address them. See App.R. 12(A)(1)(c).

Proceedings on Remand

{¶17} The state argues that the proper remedy is not a reversal and remand for

a new trial. It takes the position that the proper remedy is for the trial court to apply the

new standard using the facts already gleaned a trial. The state implicitly takes the position

that the trial court can apply the new standard to the testimony and other evidence

previously presented, using the transcripts from the previous proceeding.

{¶18} Generally, in any criminal case where this court finds error prejudicial to

the appellant not involving the manifest weight of the evidence, but the appellant is not

entitled to judgment as a matter of law, the court of appeals must reverse the judgment of

the trial court and remand the cause for “further proceedings.” See App.R. 12(D); Painter

and Pollis, Ohio Appellate Practice, Section 7:23 (2019-2020). We typically do not specify

the nature of the further proceeding, unless the trial court’s discretion to implement our

mandate is limited.

{¶19} Our practice of a general remand order is consistent with the practice of

other appellate districts. See, e.g., State v. Chaffin, 2d Dist. Montgomery No. 25220,

7 OHIO FIRST DISTRICT COURT OF APPEALS

(7th Dist.); In re Contempt of Scaldini, 8th Dist. Cuyahoga No.

94893,

, ¶ 17; Lorain v. Pendergrass, 9th Dist. Lorain No. 04CA008437,

.

{¶20} The burden of proof is a critical element of factfinding, but in this case,

the trial court has discretion as to the nature of the further proceedings at which it must

apply the burden of proof found in the amended version of R.C. 2901.05(B)(1). A new trial

proceeding would be required to preserve a defendant’s jury trial right, but here Parrish

waived her right to a jury trial. Also, a new trial proceeding would be required to remedy

error at a bench trial when there is a likelihood that the trial court’s application of an

incorrect legal standard prevented the introduction of evidence of an affirmative defense.

See State v. Pepin-McCaffrey,

,

,

(7th Dist.). In this case, there is no likelihood that the trial court’s error had that effect.

Further, a new trial proceeding would necessarily be required if the case were assigned to

a different judge, one that had not been able to evaluate the credibility of the witnesses

during the prior trial proceeding.

{¶21} In State v. Kerrigan, the trial court applied an incorrect legal standard to

evaluate the evidence in a bench trial involving a prosecution for the illegal use of a minor

in nudity-oriented material. State v. Kerrigan,

,

,

(2d Dist.). The appellate court held the error required a reversal of the

conviction, but not necessarily a new trial proceeding, because the error involved the

finding of guilt but not the trial proceedings before the guilty finding. Id. at ¶ 70. The

appellate court instructed the trial court on remand to reconsider whether the defendant

had violated the statute, applying the correct law, and added that “the trial court is not

8 OHIO FIRST DISTRICT COURT OF APPEALS

required to retry this case, although the trial court is permitted to do so if it should find it

necessary or desirable to retry the case.” Id.

{¶22} This case is similar to Kerrigan, in that the error involved the finding of

guilt in a bench trial but not the trial proceedings before the guilty finding. The trial court

must consider the evidence presented at trial under the appropriate standard,

determining whether the state proved beyond a reasonable doubt that Parrish did not use

the admitted force in self-defense. The trial court may find it necessary or desirable to

retry the case for various reasons, including the effect the passage of time has on one’s

memory. Although we approve of the more specific remand language used in Kerrigan,

we prefer to use the general “further proceedings” language of App.R. 12(D), consistent

with our customary practice.

Conclusion

{¶23} We sustain Parrish’s first assignment of error, because the trial court

failed to apply the amended version of the self-defense statute and that error was not

harmless. Parrish’s conviction is reversed, and this cause is remanded to the trial court for

further proceedings consistent with the law and this opinion.

Judgment accordingly.

MOCK, P.J., and BERGERON, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

9