State v. Brooks, 2020-1189

CourtUnited States State Supreme Court of Ohio
Citation2022 Ohio 2478
Docket Number2020-1189,2020-1250
PartiesThe State of Ohio, Appellee, v. Brooks, Appellant.
Decision Date21 July 2022


The State of Ohio, Appellee,

Brooks, Appellant.

Nos. 2020-1189, 2020-1250

Supreme Court of Ohio

July 21, 2022

Submitted September 21, 2021

Appeal from and Certified by the Court of Appeals for Richland County, No. 2019 CA 0104, 2020-Ohio-4123.


Gary D. Bishop, Richland County Prosecuting Attorney, Jodie Marie Schumacher, First Assistant Prosecuting Attorney, and Olivia Annette Boyer, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, Patrick T. Clark, Managing Counsel, and Marley C. Nelson, Assistant Public Defender, for appellant.

Mathias H. Heck, Montgomery County Prosecuting Attorney, and Heather Noelle Ketter, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.



{¶ 1} This case is before us as a discretionary appeal from a judgment of the Fifth District Court of Appeals and as a certified conflict between that judgment, State v. Brooks, 2020-Ohio-4123, 157 N.E.3d 387 (5th Dist), and a judgment from the Twelfth District Court of Appeals, State v. Gloff, 2020-Ohio-3143, 155 N.E.3d 42 (12th Dist.). The discretionary appeal asks us to consider the following proposition of law:

2018 H.B. 228, which shifted the burden of proof on self-defense to the prosecution, applies to all trials held after the effective date of the act, regardless of when the alleged offenses occurred

We also consider the following certified-conflict question:

Does legislation that shifts the burden of proof on self-defense to the prosecution (2018 H.B. 228, eff March 28, 2019) apply to all subsequent trials even when the alleged offenses occurred prior to the effective date of the act?

5th Dist. Richland No. 19CA104, at 4 (Oct. 8, 2020).

{¶ 2} We answer the certified-conflict question in the affirmative, and we hold that 2018 Am.Sub.H.B. No. 228 ("H.B. 228") must be applied to all pending and new trials that occur on or after its effective date. Further, we hold that this application violates neither Ohio's Retroactivity Clause nor the United States Constitution's Ex Post Facto Clause. Accordingly, H.B. 228 applies to all trials conducted on or after its effective date of March 28, 2019, irrespective of when the underlying alleged criminal conduct occurred.



{¶ 3} On September 20, 2018, appellant, Ladasia Brooks, was indicted for aggravated burglary, burglary, possessing criminal tools, assault, domestic violence, and criminal damaging for allegedly entering her ex-boyfriend's house, attacking him and a woman who was sleeping in his bed, and causing some property damage during the altercation. Brooks proceeded to a jury trial in October 2019.

{¶ 4} Daniel Myers, Brooks's ex-boyfriend (with whom she had a child), testified that on June 5, 2018, he was sleeping in his bed at his mom's house when he woke up to find Brooks standing in his bedroom. Stephanie Price was in bed with Myers. Myers and Price testified that Brooks immediately attacked Price. Brooks struck Price in the head and pulled her hair. When Myers attempted to break up the fight, Brooks attacked him and bit his ear (which resulted in an injury that required medical treatment). Myers's stepfather heard the commotion, entered the room with a baseball bat, and attempted to pull Brooks away from Price. According to Myers and his mother, Brooks had been told that she was not allowed to be in the house.

{¶ 5} Brooks described the altercation somewhat differently. She testified that she had had Myers's permission to be in the house to retrieve money to pay for their daughter's birthday celebration. She testified that when she saw Myers and Price in bed together and said Myers's name, Myers "popped up," jumped out of bed, grabbed her by her arms, and the two of them "tussle[d]." In the struggle, they fell on the bed-Myers was on top of Brooks-and he bit her arm. Because Brooks wanted Myers to get off her and because Myers had Brooks's hands pinned, she bit him on the ear. Brooks also testified that Myers's stepfather "beat" her leg with a baseball bat. Brooks presented pictures of her injuries at trial. Those pictures show some minor bruising and some cuts that possibly constitute a bite mark on her right hand.


{¶ 6} At the close of the state's case, it dismissed the possession-of-criminal-tools charge. Before closing arguments, the trial court discussed the jury instructions with counsel. The trial court acknowledged that Ohio's self-defense statute, R.C. 2901.05, had been amended between the date that the alleged offenses occurred and the date of the trial. And according to those amendments, self-defense was no longer an affirmative defense. The General Assembly had shifted the burden from the defendant to the state to prove beyond a reasonable doubt that the accused did not use force in self-defense. After discussing the issue with counsel, the trial court decided to use the version of R.C. 2901.05 that was in effect at the time the alleged offenses occurred. It then instructed the jury that Brooks bore the burden of proving self-defense by a preponderance of the evidence.

{¶ 7} The jury convicted Brooks of all the remaining counts-aggravated burglary, burglary, assault, domestic violence, and criminal damaging. The trial court then sentenced her to an aggregate prison term of seven years.

{¶ 8} On appeal, among other assignments of error that are not relevant here, Brooks argued that she was deprived of a fair trial when the trial court required her to bear the burden of proving that she had acted in self-defense. 2020-Ohio-4123, 157 N.E.3d 387, ¶ 22. The Fifth District Court of Appeals overruled that assignment of error and concluded that the trial court did not err in using the version of R.C. 2901.05 that was in effect at the time that the offenses had occurred. Id. at ¶ 31-43. The Fifth District explained that the trial court had properly instructed the jury because the burden-shifting changes to R.C. 2901.05 did not apply retroactively. Id.


{¶ 9} The Ohio Constitution provides that the "general assembly shall have no power to pass retroactive laws." Ohio Constitution, Article II, Section 28. And the Revised Code provides that a "statute is presumed to be prospective in its operation unless expressly made retrospective." R.C. 1.48.


{¶ 10} A statute may not be applied retroactively unless the General Assembly expressly makes it retroactive. Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 9. Generally, when 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 is "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., 36 Ohio St.3d 100, 106-108, 522 N.E.2d 489 (1988), superseded by statute on other grounds as stated in Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 484, 696 N.E.2d 1044 (1998). Laws relating to procedures-rules of practice, courses of procedure, and methods of review-are ordinarily remedial in nature. Id. at 108, citing Wellston Iron Furnace Co. v. Rinehart, 108 Ohio St. 117, 140 N.E. 623 (1923), paragraph one of the syllabus, and In re Nevius, 174 Ohio St. 560, 564, 191 N.E.2d 166 (1963). But laws affecting rights, which may be protected by procedure, are substantive in nature. Id., citing Weil v. Taxicabs of Cincinnati, Inc., 139 Ohio St. 198, 203, 39 N.E.2d 148 (1942).

{¶ 11} Additionally, the federal Ex Post Facto Clause, Article I, Section 10 of the United States Constitution, prohibits the enactment of ex post facto laws.[1]The United States Supreme Court has described four categories of prohibited ex post facto laws:

"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 a 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."

(Emphasis deleted.) Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), quoting Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798); see also Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 70 L.Ed. 216 (1925) ("any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto").

{¶ 12} In Youngblood, the Supreme Court stated that the categories of prohibited ex post facto laws that were identified in Calder may not be purposefully avoided. "[B]y simply labeling a law 'procedural,' a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause." Youngblood at 46. If a law fits into one of the enumerated categories that were described in Calder, then it may not be applied retroactively, regardless of whether that law is characterized as "procedural" or "remedial" by the legislature.

{¶ 13} H.B. 228 took effect on March 28, 2019. Thus, it was effective after the alleged offenses occurred in this case (June 5, 2018) but before Brooks's trial (October 2019). As relevant here, the amendment modified R.C. 2901.05 in the



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