[Cite as State v. Wagner,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NO. 2021-L-101

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

MARK R. WAGNER, JR., Trial Court No. 2020 CR 001117 Defendant-Appellant.

OPINION

Decided: November 14, 2022 Judgment: Affirmed in part and reversed and remanded in part

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Brandon J. Henderson, Justin M. Weatherly, and Calvin Freas, Henderson, Mokhtari & Weatherly Co., LPA, 1231 Superior Avenue, East, Cleveland, OH 44114 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Mark R. Wagner, Jr., appeals from his convictions for

Felonious Assault, Discharge of a Firearm on or Near Prohibited Premises, Improperly

Handling Firearms in a Motor Vehicle, and Falsification in the Lake County Court of

Common Pleas. For the following reasons, we affirm in part and reverse in part the

judgment of the lower court and remand for further proceedings consistent with this

opinion. {¶2} On January 29, 2021, the Lake County Grand Jury issued an Indictment,

charging Wagner with Felonious Assault (Count One), a felony of the second degree, in

violation of R.C. 2903.11(A)(2); Discharge of a Firearm on or Near Prohibited Premises

(Count Two), a felony of the third degree, in violation of R.C. 2923.162(A)(3); Improperly

Handling Firearms in a Motor Vehicle (Count Three), a felony of the fourth degree, in

violation of R.C. 2923.16(A); and Falsification (Count Four), a misdemeanor of the first

degree, in violation of R.C. 2921.13(A)(3). Counts One and Two also had firearm

specifications pursuant to R.C. 2941.145 and .146.

{¶3} A jury trial was held on July 20-22, 2021. The following pertinent testimony

and evidence were presented:

{¶4} On September 22, 2020, Solomon Ford was driving on I-271 North and

encountered another vehicle in front of him, a Chevy Silverado, later determined to have

been driven by Wagner. According to Ford’s testimony, Wagner was driving aggressively

and slamming on his brakes. Ford testified that after the two travelled onto I-90 West,

Wagner moved into the right lane while Ford remained in the fast lane. When Ford looked

to the right, he observed Wagner with a gun and then saw and heard two gun shots. Ford

followed Wagner to obtain his license plate number and gave a statement at the Wickliffe

Police Department. Ford allowed police to access his vehicle, which had two bullet holes

in it, and officers subsequently swabbed the inside of his vehicle for gunshot residue. At

this point in the testimony, defense counsel indicated to the court that he was unaware a

swab had been taken of Ford’s car. The State indicated a reference to the kit had been

included on the index of discovery provided to the defense.

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Case No. 2021-L-101 {¶5} Patrolman David Cook of the Wickliffe Police Department spoke with

Wagner, who described the shooting, observed two bullet holes in his passenger side

and found a bullet inside the vehicle on the rear passenger floorboard. Around the same

time, Officer Salvatore Continenza of the Willoughby Hills Police Department spoke with

Wagner, who came to the department after the shooting. According to Continenza,

Wagner identified that Ford fired at him first but Wagner did “not remember if he [Wagner]

fired or not.” Continenza turned over the statement to the Wickliffe Police Department as

it was determined the incident occurred within their jurisdiction.

{¶6} Lieutenant Manus McCaffery of the Wickliffe Police Department searched

Wagner’s vehicle, wherein two shell casings were recovered. He observed no signs of a

shooting within Ford’s vehicle, which he inspected the day after the incident. He swabbed

the interior of Ford’s vehicle for gunshot residue on July 28. He testified that this was not

sent to a laboratory because “there is no laboratory in the State of Ohio that will test them

for gunshot residue” and labs would only test gunshot residue found on a person.

{¶7} As to his supplemental report that discussed swabbing Ford’s vehicle for

gunshot residue, McCaffery testified that he personally gave a copy to the prosecutor for

the first time on the day preceding his testimony, the first day of trial. He was unaware of

when the prosecutor first received the report but provided a copy because it had been

indicated to him they did not have his supplement.

{¶8} Detective Don Dondrea of the Wickliffe Police Department examined

Wagner’s vehicle and did not observe bullet holes. He swabbed the vehicle for gunshot

residue but after speaking with Ohio BCI, he was informed that they would only test

residue from hands. He did not discover any evidence that showed Ford shot at Wagner

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Case No. 2021-L-101 other than Wagner’s statement.

{¶9} Wagner testified that Ford tried to merge his vehicle into him while driving

on I-271, which resulted in Wagner “brake checking” him. After Ford tailgated him and

followed him in traffic, Wagner separated from him and drove in the right lane while Ford

remained in the far left lane. Subsequently, Wagner observed Ford holding a gun.

Wagner reached for a firearm in his vehicle while crouching down, heard a shot and saw

a flash, and then fired his gun twice. He observed no damage to his vehicle and told

Continenza that he “wasn’t sure if I shot him. But I fired.” He testified that he fired the

shots in self-defense.

{¶10} The jury found Wagner guilty of all counts as charged in the indictment. Its

verdict was memorialized in a July 28, 2021 Judgment Entry.

{¶11} A sentencing hearing was held on August 30, 2021. The court found that

Counts Two and Three merged into Count One. It ordered Wagner to serve a minimum

prison term of three years and a maximum term of four and a half years on Count One,

with a term of three years for the first firearm specification and five years on the second,

all to be served consecutively. Wagner was ordered to serve a concurrent term of 180

days for Count Four.

{¶12} Wagner timely appeals and raises the following assignments of error:

{¶13} “[1.] The trial court committed prejudicial error when it instructed the jury to

consider whether Mr. Wagner had a duty to retreat as a factor of his self-defense claim

because the plain language of the statute in effect at the time of trial and jury deliberations

prohibited such an instruction: ‘the trier of fact shall not consider the possibility of retreat’

in determining whether the self-defender ‘reasonably believed that the force was

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Case No. 2021-L-101 necessary . . .’ R.C. 2901.09(C).

{¶14} “[2.] The Defendant was reversibly prejudiced when crucial evidence that

was directly related to the cross-examination of the State’s primary witness—and whose

cross-examination had already been completed—was not given to his defense until one

day into the three-day trial even though the Defendant had triggered Crim.R. 16 by

demanding discovery months previously.”

{¶15} In his first assignment of error, Wagner argues that, after the offense

occurred but prior to trial, a “Stand Your Ground” law came into effect, removing the duty

to retreat for the purposes of self-defense and, thus, the trial court erred by denying his

request not to give a duty to retreat instruction.

{¶16} Generally, “[a]n appellate court reviews a trial court’s decision to give a

particular set of jury instructions under an abuse of discretion standard.” (Citation

omitted.) State v. Settle,

,

, ¶ 37 (11th Dist.). However,

“[w]hether the jury instructions correctly state the law is a question that is reviewed de

novo.” State v. Dean,

,

,

.

{¶17} R.C. 2901.09 was amended effective April 6, 2021, and provides the

following:

(B) For purposes of any section of the Revised Code that sets forth

a criminal offense, a person has no duty to retreat before using force

in self-defense, defense of another, or defense of that person’s

residence if that person is in a place in which the person lawfully has

a right to be.

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Case No. 2021-L-101 (C) A trier of fact shall not consider the possibility of retreat as a factor

in determining whether or not a person who used force in self-

defense, defense of another, or defense of that person’s residence

reasonably believed that the force was necessary to prevent injury,

loss, or risk to life or safety.

The version of the statute in effect prior to that date, known as the Castle Doctrine,

provided that a person lawfully in that person’s residence has no duty to retreat before

using force in self-defense, defense of another, or defense of a residence and a person

in their vehicle had no duty to retreat before using force in self-defense or defense of

another. Section (C) was not part of the prior version.

{¶18} “The Supreme Court of Ohio has articulated a two-part test” for “determining

whether a statute is impermissibly retroactive under Section 28, Article II.” State v.

McEndree,

,

(11th Dist.). “Because R.C. 1.48

establishes a presumption that statutes operate prospectively only, ‘[t]he issue of whether

a statute may constitutionally be applied retrospectively does not arise unless there has

been a prior determination that the General Assembly specified that the statute so apply.’”

(Citation omitted.) State v. Walls,

,

,

,

¶ 10. “If there is no ‘clear indication of retroactive application, then the statute may only

apply to cases which arise subsequent to its enactment.’ * * * If we can find, however, a

‘clearly expressed legislative intent’ that a statute apply retroactively, we proceed to the

second step, which entails an analysis of whether the challenged statute is substantive

or remedial.” (Citations omitted.)

If the law is substantive, it cannot be applied

retroactively. Bielat v. Bielat,

,

(2000).

6

Case No. 2021-L-101 {¶19} It has been held, however, that “if a statute is amended and becomes

effective while the defendant’s case is pending in the trial court, then its applicability to

the defendant’s case is guided by R.C. 1.58.” State v. Stiltner, 4th Dist. Scioto No.

19CA3882,

, vacated, State v. Stiltner, __ Ohio St.3d __, 2022-Ohio-

3589, __ N.E.3d __, ¶ 1, citing State v. Kaplowitz,

,

,

, ¶ 8 (“R.C. 1.58(B) identifies which law to apply when a statute is

amended after the commission of a crime but before sentence is imposed”). R.C. 1.58

provides that an amendment of a statute does not, inter alia, affect any right accrued

under the statute or affect a violation thereof prior to the amendment but that “[i]f the

penalty, forfeiture, or punishment for any offense is reduced by * * * amendment of a

statute” such penalty or punishment “shall be imposed according to the statute as

amended.” R.C. 1.58(A) and (B).

{¶20} The State argues that this law cannot be applied retroactively because it is

substantive in nature. Wagner argues that it is unnecessary to conduct a retroactivity

analysis because the statute was in effect at the time his trial began and, thus, the

application relating to the jury instruction was prospective.

{¶21} We initially observe that there is limited authority on the prospective or

retroactive application of the specific statute at issue in the present case. Two courts

have addressed this issue in relation to R.C. 2901.09. In State v. Degahson, 2d Dist.

Clark No. 2021-CA-35,

, the court found that retroactive application of the

statute would be unconstitutional since the change in law relating to the duty to retreat is

substantive. In State v. Hurt, 8th Dist. Cuyahoga No. 110732,

, the

Eighth District found that former R.C. 2901.09 applied during the trial since substantive

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Case No. 2021-L-101 provisions of the former law apply to pending prosecutions under R.C. 1.58. In support

of its conclusion, it cited Stiltner,

. In Stiltner, the appellate court held that

the trial court did not err in instructing the jury on a former version of the self-defense law,

R.C. 2901.05, because the new version of the statute became effective while the

defendant’s case was pending and the legislature did not indicate it intended to apply the

statute retroactively. It rejected the argument that inclusion of the words “at trial” in the

statute was an express intent to apply the statute to pending cases. Id. at ¶ 56.

Degahson also cites Stiltner for the proposition that substantive provisions of the former

law should not apply to pending prosecutions. Degahson at ¶ 22.

{¶22} The issue addressed in Stiltner, whether the prior version of the self-

defense statute applied at trial when the offense had been committed prior to the

amendment of the statute, is instructive in this case. In both instances, relating to self-

defense and the issue of duty to retreat, the courts are asked to consider how to instruct

a jury at trial for an offense that was committed under the former version of this statute.

Courts in this state have been split on the resolution of this matter as to the self-defense

statute. In support of his position, Wagner cites to State v. Gloff,

,

(12th Dist.), which addresses the foregoing. In Gloff, while the trial was taking

place, the amended self-defense statute went into effect, which provides: “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, * * * the prosecution must prove * * * that the accused person

did not use force in self-defense.” Id. at ¶ 3, citing R.C. 2901.05(B)(1). The lower court’s

determination that this statute applied only to offenses committed after its effective date

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Case No. 2021-L-101 was rejected. The appellate court determined that a retroactivity analysis was not

required since the amended statute applied prospectively to trials and “focuses on when

the trial is held, as opposed to when the offense was committed.” Id. at ¶ 22. Some other

appellate districts reached similar conclusions. State v. Smith, 6th Dist. Wood No. WD-

19-070,

(where defendant’s conduct occurred before amendment

and trial occurred after, the amended statute applied at trial and the jury should have been

instructed as to the new burden of proof); State v. Pitts,

,

(1st Dist.). In contrast, other districts held that where the offense was

committed before the effective date of the amendment, an instruction under the amended

version should not be given at trial. Stiltner,

. See also State v.

Williams, 3d Dist. Allen No. 1-19-39,

(“[w]e apply the version

of R.C. 2901.05 in effect at the time the defendant committed the offense”); State v. Irvin,

,

(2d Dist.), vacated, State v. Irvin, __ Ohio St.3d

__,

, __ N.E.3d __, ¶ 1. This court reached the same conclusion and

determined that, “inasmuch as the amended self-defense statute creates a new burden

of proof on the state, we find that it is substantive and cannot be applied retroactively.”

McEndree,

.

{¶23} The Ohio Supreme Court recently resolved the foregoing conflict in State v.

Brooks, ___ Ohio St.3d ___,

, ___ N.E.3d ___. The court evaluated the

issue of whether “legislation that shifts the burden of proof on self-defense to the

prosecution * * * appl[ies] to all subsequent trials even when the alleged offenses occurred

prior to the effective date of the act.” Id. at ¶ 1. The Supreme Court held that amended

R.C. 2901.05 applies “to all trials conducted on or after its effective date” regardless of

9

Case No. 2021-L-101 when the underlying criminal conduct occurred. Id. at ¶ 2. In its analysis, the court found

this was not an ex post facto law since it did not create a new crime or increase the burden

or punishment for a past crime. Id. at ¶ 13.

{¶24} The court also held that, as amended, the statute did not apply retroactively

but prospectively to all trials occurring after its effective date, emphasizing the right to

self-defense was stated in the present tense (“[a] person is allowed to act in self-defense”

and “at the trial of a person * * * the prosecution must prove” self-defense). Id. at ¶ 14. It

concluded that since “[t]he amendment here applies prospectively and, because it does

not increase the burden on a criminal defendant, there is no danger of its violating Ohio’s

Retroactivity Clause or the United States Constitution’s Ex Post Facto Clause.” Id. at ¶

19.

{¶25} Similar to the argument presented by Wagner, the Supreme Court in Brooks

did not perform an analysis as to whether the statute was properly applied retroactively,

including whether the change is substantive, because it found that, as written, it has a

prospective application. See

(“if we can find, however, a ‘clearly

expressed legislative intent’ that a statute apply retroactively, we proceed to the second

step, which entails an analysis of whether the challenged statute is substantive or

remedial”). In relation to self-defense, R.C. 2901.05(B)(1) states “at the trial of a person

* * * the prosecution must prove” self-defense. In other words, the amended statute

should apply since the language related to the date of the trial rather than the date the

offense was committed. Likewise, in the present matter, the duty to retreat statute, R.C.

2901.09(C) states, in part: “A trier of fact shall not consider the possibility of retreat as a

factor in determining whether or not a person who used force in self-defense, defense of

10

Case No. 2021-L-101 another, or defense of that person’s residence reasonably believed that the force was

necessary to prevent injury, loss, or risk to life or safety.” It also has a prospective

application and sets forth how the jury should be instructed as of the date of the trial. Also

similar to Brooks, there are no concerns about the application of the amended statute

negatively impacting the defendant since it does not deprive him of any rights or subject

him to a harsher penalty.

{¶26} This sentiment was echoed by the dissenting opinion in Hurt, 2022-Ohio-

2039. The opinion addressed the similarities between R.C. 2109.05 and .09, citing Gloff

in support, which the Supreme Court upheld as “correctly decided” in Brooks. Hurt at ¶

99;

. As the dissenting opinion explained, “Gloff held that the 2019

amendment to R.C. 2109.05 applies prospectively to trials held after the effective date of

the statute per the statutory language that prescribes the actions ‘at the trial.’ * * *

Likewise, the plain language of R.C. 2105.09(C) provides that ‘a trier of fact [at trial] shall

not consider the possibility of retreat as a factor.’” Hurt at ¶ 99 (Mays, P.J., concurring in

part and dissenting in part). We agree with this conclusion and do not find the majority

opinion in Hurt to be persuasive given its reliance on Stiltner which is no longer valid law

following the holding in Brooks. As to Degahson, we observe that, while it recognized the

Brooks opinion, it did not address its applicability in relation to this matter. It also utilized

Stiltner’s interpretation that, under R.C. 1.58(B), the court could not apply the self-defense

law as amended due to its substantive nature, which is inconsistent with Brooks.

Degahson also fails to consider the fact that the provision requiring a jury instruction

appears to have prospective application on its face, as discussed above. As such, we

decline to apply its holding.

11

Case No. 2021-L-101 {¶27} We recognize the State’s argument that this case differs slightly from the

self-defense issue addressed in Brooks and addresses a more substantive matter as it

relates to the right to defend oneself without retreating rather than a change in burden for

a self-defense instruction. However, given the similarities in the prospective application

and the fact that the duty to retreat statute proscribes the actions to be taken at trial, we

find the Brooks analysis to be applicable in the present matter.

{¶28} Since we conclude the jury instruction should have been given under the

amended version of the statute, we remand for a retrial on the counts relating to the

shooting of the vehicle: Felonious Assault (Count One), Discharge of a Firearm on or

Near Prohibited Premises (Count Two), and Improperly Handling Firearms in a Motor

Vehicle (Count Three). The Falsification conviction, relating to statements Wagner made

to police about the incident that were unrelated to the duty to retreat, was not impacted

by the jury instruction issue and is affirmed.

{¶29} The first assignment of error is with merit.

{¶30} In his second assignment of error, Wagner argues that a violation of Crim.R.

16 occurred when the prosecution failed to disclose a report from a detective showing

that he performed a gunshot residue swab of Ford’s vehicle, which caused prejudice and

warrants a new trial. Given the disposition of the first assignment of error, and since this

error does not relate to or impact the Falsification conviction, we decline to address this

issue as it is moot.

{¶31} The second assignment of error is moot.

{¶32} For the foregoing reasons, Wagner’s conviction for Falsification is affirmed

and his convictions for Felonious Assault, Discharge of a Firearm on or Near Prohibited

12

Case No. 2021-L-101 Premises, and Improperly Handling Firearms in a Motor Vehicle are reversed and this

matter is remanded for a new trial on those charges. Costs to be taxed against appellee.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

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Case No. 2021-L-101