by Douglas Ankney

The Supreme Court of Ohio held that 2018 House Bill 228’s (“H.B. 228”) amendment to R.C. 2901.05 — which shifts the burden of proof on self-defense to the prosecution — apply to all pending and new trials that occur on or after the effective date (March 28, 2019), regardless of when the underlying conduct of the alleged crime took place. The Court also held that such application of the legislation doesn’t violate Ohio’s Retroactivity Clause or the Ex Post Facto Clause of the U.S. Constitution.    

Ladasia Brooks was tried on numerous charges that included aggravated burglary, assault, and domestic violence after a physical altercation she had with the father of her child (her ex-boyfriend Daniel Myers), Myers’ new girlfriend, and Myers’ stepfather inside Myers’ house.

At trial, Brooks claimed self-defense. Before closing arguments, the trial court discussed jury instructions and acknowledged that Ohio’s self-defense statute, R.C. 2901.05, had been amended between the date the alleged offenses occurred and the date of trial. According to the amendment, self-defense is no longer an affirmative defense. H.B. 228 shifted the burden to the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. The trial court decided the pre-amendment version of R.C. 2901.05 was applicable and instructed the jury that Brooks bore the burden of proving self-defense by a preponderance of the evidence.

 The jury convicted Brooks of all counts. She appealed, arguing, inter alia, that she was deprived of a fair trial by the trial court requiring her to bear the burden of proving she acted in self-defense in light of H.B. 228. The Fifth District Court of Appeals disagreed with Brooks, ruling that the trial court properly instructed the jury on the version of R.C. 2901.05 that was in effect at the time of the alleged crimes. Because the decision of the Fifth District was in conflict with a decision of the Twelfth District Court of Appeals, the Ohio Supreme Court granted a discretionary appeal to answer the certified question: “Does legislation that shifts the burden of proof on self-defense to the prosecution … apply to all subsequent trials even when the alleged offenses occurred prior to the effective date of the act?”

The Court observed “[t]he Ohio Constitution provides that the ‘the general assembly shall have no power to pass retroactive laws.’” Ohio Constitution, Article II, Section 28. Further, the Revised Code provides that a “statute is presumed to be prospective in its operation unless expressly made retrospective.” R.C. 1.48.

The Court explained that if the legislature has made a statute expressly retroactive, “the determination whether that statute is unconstitutionally retroactive in violation of the Ohio Constitution depends on whether it’s ‘remedial’ or ‘substantive’ — if the law is ‘remedial,’ then its retroactive application is constitutional; if the law is ‘substantive,’ then its retroactive application is unconstitutional.” Van Fossen v. Babcock & Wilcox Co., 522 N.E.2d 489 (Ohio 1988). The Court added: “Laws relating to procedures — rules of practice, courses of procedure, and methods of review — are ordinarily remedial in nature.” Id. “But laws affecting rights, which may be protected by procedure, are substantive in nature.” Id.

The U.S. Supreme Court has described four categories of laws that violate the Ex Post Facto Clause – Article I, Section 10 of the U.S. Constitution: “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Collins v. Youngblood, 497 U.S. 37 (1990), quoting Calder v. Bull, 3 U.S. 386 (1798). The bar against prohibited ex post facto laws can’t be circumvented by simply labeling it a “procedural” law. Youngblood.

 In the instant case, R.C. 2901.05 on its face does not apply retroactively. The Court observed that the enunciation of the right to self-defense is in the present tense. R.C. 2901.05. And the burden allocating language applies prospectively — to trials occurring only after the effective date of the amendment. Id. The Court stated that it’s clear that the only thing the amendment changes is which party has the burden of proving or disproving a self-defense claim at trial. H.B. 228. The allocation of which party has the burden of proof is generally a procedural matter. Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15 (2000).

The Court observed that “[b]efore R.C. 2901.05 was enacted, the common-law rule regarding insanity as an affirmative defense was that a defendant had the burden of proving by a preponderance of the evidence that he was not sane.” State v. Humphries, 364 N.E.2d 1354 (Ohio 1977). But the version of R.C. 2901.05 enacted on January 1, 1974, stated: “Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused.” That is, R.C. 2901.05 removed the defendant’s common-law burden to prove an affirmative defense but still demanded he provide evidence in support of the defense. Humphries. The burden then shifted to the State to prove beyond a reasonable doubt the defendant was sane. Id. The Humphries Court ruled that the 1974 version of R.C. 2901.05 applies to every criminal trial held on or after its effective date — regardless of when the crimes allegedly occurred.

But in State v. Jones, 423 N.E.2d 447 (Ohio 1981), the Ohio Supreme Court ruled the amendment to R.C. 2901.05 that shifted the preponderance-of-the-evidence burden to the defendant “did not apply retroactively to conduct prior to its effective date but tried after its effective date.” The key difference between Humphries and Jones is that, in the former, the new statute shifted the burden of proof to the State, but in the latter, the amendment shifted the burden of proof to the defendant. The Court likened the present case to Humphries and distinguished it from Jones because the amendment to R.C. 2901.05 shifts the burden of proof to the State like Humphries, not to the defendant like Jones.

The Court explained that retroactive application of a statute that shifts the burden of proof to the defendant is prohibited because “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender” violates ex post facto principles. Calder. That is, applying it retroactively takes away a substantive right of the defendant, namely, the right to have the State disprove the defense beyond a reasonable doubt. But retroactive application of a statute that shifts the burden to the State took away no such right.

In conclusion, the Court answered the certified question in the affirmative, stating that the amendment to R.C. 2901.05 is not retroactive – “it applies prospectively to all trials occurring after its effective date, regardless of when the underlying alleged criminal conduct occurred.”

Accordingly, the Court reversed and remanded to the Fifth District Court of Appeals for a determination of whether Brooks is entitled to a self-defense claim. See: State v. Brooks, 2022 Ohio LEXIS 1466 (2022). 

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