[Cite as State v. Pitts,

.]

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

STATE OF OHIO, : APPEAL NO. C-190418 TRIAL NO. 18CRB-24765 Plaintiff-Appellee, :

vs. :

GERRY PITTS, : O P I N I O N.

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 2, 2020

Andrew Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Scott Crowley, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

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

CROUSE, Judge.

{¶1} On September 6, 2018, defendant-appellant Gerry Pitts was charged

with assault in violation of R.C. 2903.13. At his jury trial, he asserted a claim of

defense of another—specifically his little brother “Z.” He was found guilty on April 4,

2019, and subsequently sentenced. He has appealed his conviction, arguing in two

assignments of error that (1) the trial court erred in applying the wrong version of

Ohio’s self-defense law, and (2) his conviction was against the manifest weight of the

evidence.

{¶2} For the reasons discussed below, we sustain the first assignment of

error and remand the cause for a new trial. Our disposition of the first assignment of

error renders the second assignment of error moot.

Factual Background

{¶3} William Turner testified that on September 6, 2018, he was driving

down Thompson Street in Hamilton County, Ohio, when he saw a small child in the

street. A passing driver told Turner that he thought the child lived in the “yellow

house.” Turner put the child in his truck and circled the block looking for a yellow

house, but did not see one. He returned to his house where he told his fiancée,

Cassandra, about the child. He came back outside with Cassandra and called 911 on

his cell phone.

{¶4} While he was on the phone with 911, Turner saw Pitts run out of his

house and into the middle of the street. Pitts yelled “that’s my little brother!” and

ran up to Turner. Turner testified that Pitts chest bumped him twice. The child, who

turned out to be Pitts’s brother, Z, had been sitting in the driver’s seat, but moved to

2 OHIO FIRST DISTRICT COURT OF APPEALS

the passenger seat, away from Turner and Pitts, when Pitts ran toward him. Turner

told Pitts to go get his mother, so Pitts ran down the street, waved down his family,

and they all ran up the street to where Turner was standing next to his truck. Turner

testified that Pitts chest bumped him again, causing him to disconnect the 911 call.

Pitts’s mother, Gwen, pulled Z out of the truck. As Turner was trying to explain to

her what happened, Pitts punched him from behind. Turner called 911 again, and

the police came.

{¶5} Cassandra’s testimony corroborated Turner’s. She testified that

Turner was talking to Gwen when Pitts came around behind Turner and punched

him in the face.

{¶6} Pitts testified that a neighbor came to the house and told his sister that

she saw a man in a pickup truck pick up Z and drive away. Pitts testified that he

overheard the conversation, and, fearing that Z had been kidnapped, ran outside. He

heard Z crying, saw him in a pickup truck up the street, and ran toward where Turner

was standing next to the truck. Pitts testified that he told Turner that Z was his

brother. He stated that he tried to get to Z, but Turner kept pushing him away. Pitts

ran back home and told Gwen that he had found Z. Then, he, Gwen, and his sister

Aaliyah, ran back up the street to Turner’s truck. Pitts testified that Turner pushed

him away once again. Pitts claimed he then punched Turner out of fear for Z’s safety.

Aaliyah testified that as Pitts was trying to pull Z out of the truck, Turner pushed

Pitts, and then Pitts punched him.

{¶7} The state played audio recordings of Turner’s two 911 calls, but the

recordings do not shed much light on how the confrontation occurred.

3 OHIO FIRST DISTRICT COURT OF APPEALS

First Assignment of Error

{¶8} In his first assignment of error, Pitts contends that the trial court

should have applied the newly-enacted version of R.C. 2901.05(B)(1) to his

affirmative defense of defense of another.

{¶9} Whether the trial court erred in failing to apply the new law to Pitts’s

trial is a legal issue we review de novo. See State v. Consilio,

,

,

, ¶ 8.

{¶10} The General Assembly altered Ohio’s self-defense, defense of another,

and defense of residence statute when it enacted 2017 Am.Sub.H.B. No. 228 (“H.B.

228”), which amended R.C. 2901.05(B)(1). Prior to March 28, 2019, those defenses

were affirmative defenses that the defendant had the burden of proving by a

preponderance of the evidence. Effective March 28, 2019, the burden of proof was

realigned. R.C. 2901.05 (B)(1), as amended by H.B. 228, states:

A person is allowed to act in self-defense, defense of another, or defense

of that person’s residence. 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 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.

The General Assembly amended R.C. 2901.05 to shift the burden of persuasion: “the

prosecution [must] disprove at least one of the elements of self-defense beyond a

reasonable doubt.” State v. Williams, 1st Dist. Hamilton No. C-190380, 2020-Ohio-

4 OHIO FIRST DISTRICT COURT OF APPEALS

5245, ¶ 7, quoting State v. Petway,

, ___N.E.3d___, ¶ 38 (11th

Dist.). “However, the amended statute does not affect the burden of production—it

remains with the defendant. Just as before, subsection (A) imposes upon the

defendant ‘[t]he burden of going forward with the evidence of an affirmative

defense.’ ” Williams at ¶ 7, quoting R.C. 2901.05(A).

{¶11} The state argues that because R.C. 2901.05(B)(1) does not expressly

include retroactive language, the new law cannot apply to conduct that occurred

before its effective date. The state contends that absent a clear declaration of

retroactivity, the statute only applies prospectively. See Van Fossen v. Babcock &

Wilcox Co.,

,

(1988); R.C. 1.48.

{¶12} Multiple appellate districts have held that H.B. 228 does not apply in

cases where the commission of the offense and the trial occurred before March 28,

2019. See State v. Brooks, 5th Dist. Richland No. 2019 CA 0104,

(listing cases from other districts).

{¶13} As of the date of this opinion, only the Second, Fifth, Eleventh, and

Twelfth Districts have decided the issue presented in this case: whether the burden-

shifting changes made to R.C. 2901.05 apply to offenses that were committed before

the effective date of the statute, but tried after the effective date. The districts are

split.

{¶14} On June 1, 2020, the Twelfth District held that no retroactivity

analysis is necessary because H.B. 228 is not a retroactive statute—it only “applies

prospectively to trials.” (Emphasis in original.) State v. Gloff,

,

___N.E.3d___, ¶ 23 (12th Dist.). In Gloff, the court found that because the

defendant’s trial lasted from March 26, 2019, to March 29, 2019, he was entitled to a

5 OHIO FIRST DISTRICT COURT OF APPEALS

self-defense jury instruction that complied with H.B. 228. Id. at ¶ 29. The court

determined that H.B. 228 is not a retroactive law because it “focuses on when the

trial is held, not when the offense was committed.” Id. at ¶ 22. The court held, “The

pertinent amendment does not concern the conduct giving rise to the offense but

relates to the applicable burden of proof for the affirmative defense of self-defense.”

Id. at ¶ 23.

{¶15} On July 20, 2020, the Twelfth District reaffirmed its holding in Gloff.

State v. Lewis,

, ___N.E.3d___, ¶ 26 (12th Dist.).

{¶16} On August 18, 2020, the Fifth District disagreed with the Twelfth

District’s holdings in Gloff and Lewis. It found that the “at the trial” language was

not a “directive regarding the applicability of the statute, rather, it is a reference as to

the time and place the affirmative defense evidence must be presented that tends to

support that the accused person used the force in self-defense.” Brooks, 5th Dist.

Richland No. 2019 CA 0104,

. The court determined that

the legislature “has not indicated, expressly or otherwise, that H.B. 228 is to be

retroactively applied.” Id. at ¶ 37. Thus, the court held that the burden-shifting

changes to the self-defense statute could not be applied to offenses that were

committed before the effective date of the statute, but tried after the effective date.

Id. at ¶ 43.

{¶17} On September 21, 2020, the Eleventh District, without citing Gloff or

Brooks, held that “[s]ince the date of the offense preceded the enactment of the

amended statute, [the defendant] would not have been able to take advantage of the

[new law] if the court had delayed her trial.” State v. McEndree,

,

___N.E.3d___, ¶ 46 (11th Dist.). The court further held, “[I]nasmuch as the

6 OHIO FIRST DISTRICT COURT OF APPEALS

amended self-defense statute creates a new burden of proof on the state, we find it

substantive and cannot constitutionally be applied retroactively.” (Emphasis

deleted.) Id. at ¶ 44.

{¶18} The Second District weighed in on October 9, 2020, in a two-to-one

decision, agreeing with the Fifth District’s holding in Brooks. The court held:

The language only reflects that the H.B. 228 changes, whenever effective,

are applicable to trials at which “there is evidence presented that tends to

support that the [defendant] used * * * force in self-defense * * *.” The

language simply does not address whether application of H.B. 228 is

required at a trial involving an offense occurring before March 28, 2019

but coming to trial on or after that date.

(Citation omitted.) State v. Irvin, 2d Dist. Montgomery No. 28495, 2020-Ohio-

4847, ¶ 24, quoting R.C. 2901.05(B)(1). In his dissent in Irvin, Judge Froelich stated

that he agreed with the Twelfth District’s interpretation of the applicability of H.B.

228. Id. at ¶ 56. And for the following reasons, so do we.

{¶19} The plain language of H.B. 228 indicates that the new standard for

self-defense, defense of another, and defense of residence is to be applied

prospectively to trials. The H.B. 228 amendment focuses on when the trial is held, as

opposed to when the offense was committed. Gloff,

,

___N.E.3d___, at ¶ 22-23.

{¶20} Just because the offense may have been committed before the law

changed does not automatically make H.B. 228 a retroactive law. As discussed in

Landgraf v. USI Film Prod.,

,

,

(1994):

7 OHIO FIRST DISTRICT COURT OF APPEALS

A statute does not operate “retrospectively” merely because it is applied

in a case arising from conduct antedating the statute’s enactment, or

upsets expectations based in prior law. Rather, the court must

ask whether the new provision attaches new legal consequences to events

completed before its enactment. The conclusion that a particular rule

operates “retroactively” comes at the end of a process of judgment

concerning the nature and extent of the change in the law and the degree

of connection between the operation of the new rule and a relevant past

event.

(Citations omitted.)

. “[T]he prohibition against retroactive laws ‘is a

bar against the state’s imposing new duties and obligations upon a person’s past

conduct and transactions, and it is a protection for the individual who is assured that

he may rely upon the law as it is written and not later be subject to new obligations

thereby.’ ” E. Ohio Gas Co. v. Limbach

,

(1986), quoting Lakengren, Inc. v. Kosydar,

,

(1975).

{¶21} We must, therefore, examine what it is that H.B. 228 does. Does it

attach new legal consequences to events completed before its enactment or impose

new duties and obligations upon a person’s past conduct and transactions? No, it

does not. H.B. 228 does not create nor dismantle the affirmative defense of defense

of another, nor does it change the elements of proving defense of another. See

(changing the elements would have violated the “familiar

considerations of fair notice, reasonable reliance, and settled expectations”). Rather,

8 OHIO FIRST DISTRICT COURT OF APPEALS

it changes the burden of proof when asserting defense of another. Therefore, it

affects the manner and procedure by which a jury arrives at its verdict.

{¶22} “Laws of a remedial nature providing rules of practice, courses of

procedure, or methods of review are applicable to any proceedings conducted after

the adoption of such laws.” EPI of Cleveland, Inc. v. Limbach,

,

(1989), quoting State ex rel. Holdridge, v. Indus. Comm.

,

(1967) (the court found that where the amendment at

issue affected “only the manner of arriving at a fact conclusion, upon which the

substantive law would operate, it was itself procedural or remedial rather than

substantive.”).

{¶23} As stated by the Court in Landgraf, “Changes in procedural rules may

often be applied in suits arising before their enactment without raising concerns

about retroactivity.” Landgraf,

,

,

.

“Because rules of procedure regulate secondary rather than primary conduct, the fact

that a new procedural rule was instituted after the conduct giving rise to the suit does

not make application of the rule at trial retroactive.” Id.; accord Buckeye Candy &

Tobacco Co. v. Limbach,

,

(1986) (“A

procedural law is generally considered to be applied prospectively when it is applied

to proceedings in which the particular procedural aspect regulated by the law has not

yet occurred”).

{¶24} Recently, the Florida Supreme Court held that a statutory amendment

that shifted the burden of proof to the prosecution at a self-defense immunity

hearing was a procedural change in the law. Love v. State,

(Fla.

2019). Therefore, the court held that the amendment applies to all immunity

9 OHIO FIRST DISTRICT COURT OF APPEALS

hearings that take place after the amendment’s effective date, even if the offense

occurred before the effective date. Id. at 188. The court stated, “The mere

application of a new procedural statute * * * in a pending case is not a retroactive

application.” Id. at 189. The court went on to explain that this “does not mean that a

new procedure applies in all pending cases. Rather the ‘commonsense’ application of

a new procedure generally ‘depends on the posture of the particular case.’ ” Id. at

187-188, quoting

. Thus, in Love, the court found that if the

immunity hearing had taken place before the statute’s effective date, the defendant

would not be entitled to a new immunity hearing under the new law. Id. at 180

(holding that “there is no indication the Legislature intended the statute to undo pre-

effective-date immunity hearings”).

{¶25} H.B. 228 affects only the procedure to be followed in proving defense

of another, and that “particular procedural aspect,” the burden of proof at Pitts’s

trial, had not yet occurred when H.B. 228 became effective. See Buckeye Candy &

Tobacco Co.,

,

;

. Therefore, even

though Pitts punched Turner on September 6, 2018, the new procedure applies to his

case because H.B. 228 went into effect on March 28, 2019, seven days before Pitts’s

jury trial began.

{¶26} For the reasons discussed above, the trial court erred in failing to

instruct the jury in accordance with H.B. 228. The state does not argue that the trial

court’s error was harmless, and we decline to conduct a harmless-error analysis of

our own volition. Accordingly, Pitts’s first assignment of error is sustained.

10 OHIO FIRST DISTRICT COURT OF APPEALS

Conclusion

{¶27} Our disposition of the first assignment of error renders the second

assignment of error moot, and so we decline to address it. The judgment is reversed

and the cause remanded for a new trial.

{¶28} We note that the Second Appellate District in State v. Irvin, 2d Dist.

Montgomery No. 28495,

, recognized the district split on this issue

and sua sponte certified a conflict to the Ohio Supreme Court pursuant to Article IV,

Section 3(B)(4) of the Ohio Constitution. Id. at ¶ 54. We likewise, pursuant to Article

IV, Section 3(B)(4) of the Ohio Constitution, certify the same question:

{¶29} Do the burden-shifting changes made to R.C. 2901.05, through the

passage of H.B. 228, apply to offenses that were committed before the effective date

of the statute but tried after the effective date?

Judgment reversed and cause remanded.

MYERS, P.J., and BERGERON, J., concur.

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

11