[Cite as State v. Gloff, 2020-Ohio-3143.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




 STATE OF OHIO,                                    :

        Appellee,                                  :        CASE NO. CA2019-06-047

                                                   :               OPINION
     - vs -                                                         6/1/2020
                                                   :

 MICHAEL W. GLOFF,                                 :

        Appellant.                                 :




    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                        Case No. 2018 CR 000870


D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, Ohio 45103, for appellant



        RINGLAND, J.

        {¶1}     Appellant, Michael Gloff, appeals from his conviction for assault in the

Clermont County Court of Common Pleas. For the reasons detailed below, we reverse and

remand this matter.

        {¶2}     Gloff was indicted for assault of a peace officer in violation of R.C. 2903.13(A)

and felonious assault in violation of R.C. 2903.11(A)(1) following a September 9, 2018
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incident at the Clermont County Jail. Gloff pled not guilty and the matter proceeded to a

jury trial.

        {¶3}   Gloff's trial commenced on March 26, 2019 and ended March 29, 2019. This

timeline is important because of a change in the law that took effect during trial. On March

28, 2019, 2017 Am. Sub. H.B. No. 228 became effective, which altered the burden of proof

for self-defense. Prior to March 28, 2019, "[t]he 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, is upon the accused." Former R.C. 2901.05(A). However, on March

28, 2019, the burden realigned for an accused asserting self-defense:

               (B)(1) 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.

R.C. 2901.05 (Effective March 28, 2019) (Emphasis added). In other words, the state must

prove that the accused person did not use force in self-defense beyond a reasonable doubt

if there is evidence that the accused used force in self-defense.

        {¶4}   Prior to trial, Gloff filed a "Request for Specific Jury Instruction." In that

pleading, Gloff requested a self-defense jury instruction consistent with the changes to R.C.

2901.05 relating to the burden of proof in a criminal matter. The trial court denied Gloff's

instruction, concluding that the amendment only had prospective application for offenses

committed after the effective date of the amendments.

        {¶5}   During trial, the state presented evidence that Gloff was an inmate at the

Clermont County Jail on September 9, 2018. On that date, there was a disturbance


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between a corrections officer and another inmate that resulted in a Code 1 where all

corrections officers not performing essential functions were ordered to respond to the cell

block. Officer Shaun Thompson responded to the Code 1 and entered the cell block where

Gloff was housed.

       {¶6}   By the time Officer Thompson responded, the disturbance had largely been

contained. The inmate who caused the initial disturbance was removed from his cell and

placed in handcuffs.

       {¶7}   Officer Thompson remained in the cell block for a short period of time due to

unruly behavior by some of the inmates. At that point, Gloff directed derogatory comments

at Officer Thompson about "getting fat" and began exhibiting loud and unruly behavior.

Officer Thompson then went to Gloff's cell and called for Gloff's cell door to be opened. The

next events were disputed at trial.

       {¶8}   Officer Thompson testified that he tried to talk to Gloff about his behavior, but

Gloff refused to listen and laughed hysterically. Initially, Officer Thompson explained that

Gloff was seated on his bunk, but later stood up. Officer Thompson instructed Gloff to sit

back down, but Gloff then charged him, punched him, and knocked him to the floor. Officer

Thompson and Gloff then wrestled while another Code was called to assist Officer

Thompson. Eventually, Gloff was brought under control and removed from his cell. As

Gloff was being removed, he stated "I got Officer Thompson good" and "I have been waiting

to get Officer Thompson."

       {¶9}   Gloff had a different version of the incident and testified on his own behalf.

Gloff admitted to taunting Officer Thompson by telling him "look at you out of breath" and

"you're getting fat." Gloff describes the scene as one involving mockery and general

unruliness in the unit. However, Gloff then alleged that he was singled out by Officer

Thompson. According to Gloff, Officer Thompson came up the steps to his cell and told

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Gloff "I got something for you." Officer Thompson then directed another officer to open

Gloff's cell door. While Officer Thompson was in Gloff's cell, Gloff claims he was sitting on

his bunk with his hands behind his back "trying to talk [Officer Thompson] down." Gloff then

claimed that Officer Thompson began pushing and poking him, which later escalated to

Officer Thompson smacking him. Gloff testified that he was scared of Officer Thompson

and hit him out of worry that Officer Thompson was "going to continue to hit me, hold me

down, get on top of me because at that point in time, as I said * * * I had my hands behind

my back."

      {¶10} Gloff also presented the testimony of another inmate, Davis Evans, who

testified that Officer Thompson had been the aggressor in this altercation. According to

Evans, when Officer Thompson entered Gloff's cell, Gloff was seated on the bed with both

of his hands interlocked. From there, Evans testified that he observed Officer Thompson

pushing Gloff on his chest "for about a minute." Evans then stated that he observed Officer

Thompson escalate the incident when he pushed Gloff's face "and then open hand

smacked" Gloff with "some pretty good force."        This led, according to Evans, to the

altercation between Officer Thomspon and Gloff.

      {¶11} The jury deliberated and found Gloff guilty of assault on a corrections officer

but not guilty of felonious assault. The trial court sentenced Gloff to a prison term of 12

months. Gloff now appeals, raising two assignments of error for review.

      {¶12} Assignment of Error No. 1:

      {¶13} THE TRIAL COURT ERRED IN CONCLUDING THAT PROSEPCTIVE [sic]

APPLICATION OF R.C. 2901.05 (EFF. 03/28/19) DID NOT APPLY TO APPELLANT'S

CASE.

      {¶14} Assignment of Error No. 2:

      {¶15} THE TRIAL COURT ERRED IN CONCLUDING THAT R.C. 2901.05(B)(1)

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WAS NOT EXPRESSLY RETROACTIVE TO INCLUDE OFFENSES OCCURRING

BEFORE MARCH 28, 2019.

       {¶16} Gloff's two assignments of error are interrelated and will be addressed

together. Gloff alleges the trial court erred by failing to find the shift in the burden of proof

for self-defense contained in R.C. 2901.05 applied to his case.             We sustain Gloff's

assignments of error.

       {¶17} The state argues that we should review the trial court's pre-H.B. 228 jury

instruction for an abuse of discretion. This would be appropriate if the issue before the court

was whether the jury was properly instructed. However, the precise issue before this court

is whether the trial court erred in failing to apply the H.B. 228 amendment to R.C. 2901.05,

which is a strict legal issue that we review de novo. State v. Kormos, 12th Dist. Clermont

No. CA2011-08-059, 2012-Ohio-3128, ¶ 13.

       {¶18} It is well settled that a statute is presumed to apply prospectively unless

expressly declared to be retroactive. R.C. 1.48. Additionally, Section 28, Article II of the

Ohio Constitution, prohibits the General Assembly from passing retroactive laws. Applying

these two provisions, the Supreme Court of Ohio has established a two-part test to

determine whether a statute may be applied retroactively. State v. Gregoire, 12th Dist.

Butler No. CA2019-04-066, 2020-Ohio-415, ¶ 9, citing State v. Consilio, 114 Ohio St.3d

295, 2007-Ohio-4163, ¶ 10.

       {¶19} Under this test, a court must first determine as a threshold matter whether the

General Assembly expressly intended the statute to apply retroactively. State v. Hubbard,

12th Dist. Butler No. CA2019-05-086, 2020-Ohio-856, ¶ 22. If not, the statute may not be

applied retroactively. Id. However, if the General Assembly expressly indicated its intention

that the statute apply retroactively, a court must move to the second step of the analysis

and "determine whether the statute is remedial, in which case retroactive application is

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permitted, or substantive, in which case retroactive application is forbidden." State v. White,

132 Ohio St.3d 344, 2012-Ohio-2583, ¶ 27.

       {¶20} The statutory amendment at issue states:

              (A) Every person accused of an offense is presumed innocent
              until proven guilty beyond a reasonable doubt, and the burden
              of proof for all elements of the offense is upon the prosecution.
              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.

              ***

              (B)(1) 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.

R.C. 2901.05 (Effective March 28, 2019).

       {¶21} The trial court found that the H.B. 228 amendment applied only to offenses

committed after the effective date of the amendment. In reaching this decision, the trial

court engaged in a retroactivity analysis and determined that the General Assembly had not

expressly provided for retroactivity and therefore the amendment only applied to offenses

committed after the effective date. The trial court further determined that the amendment

was substantive in nature, as the amendment altered the burden of proof, placing the

burden upon the state to disprove self-defense.

       {¶22} To the contrary, Gloff argues that the retroactivity analysis is unnecessary

because the language of the amended statute refers to application "at the trial of a person."

Thus, Gloff argues that the H.B. 228 amendment focuses on when the trial is held, as

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opposed to when the offense was committed. As previously noted, the trial began two days

before the effective date of the amendment and concluded one day after the effective date

of the amendment.

       {¶23} Following review, we agree with Gloff's position. The H.B. 228 amendment

applies prospectively to trials. 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. Under the new amendment, if self-defense evidence is presented

at trial, the prosecution must then prove, beyond a reasonable doubt, that the defendant

did not use the force in self-defense. R.C. 2901.05(B).

       {¶24} In this case, the parties presented conflicting testimony as to whether Gloff

acted in self-defense. We acknowledge that this matter is complicated by the fact that

Officer Thompson is a corrections officer and may use necessary force to control inmates

or respond to resistance. See Ohio Adm.Code 5120-9-01; State v. Williams, 3d Dist. Allen

No. 1-19-39, 2019-Ohio-5381, ¶ 14 (the standard for establishing self-defense is

heightened when a police officer is the victim); State v. Shepherd, 11th Dist. Ashtabula No.

2003-A-0028, 2006-Ohio-4315, ¶ 31 (heightened standard for non-deadly force self-

defense applies to correctional staff performing their duties in an institution when attempting

to control an inmate). However, this court is not a trier of fact and resolution of the factual

issues is a matter for the jury to decide. State v. Johnson, 12th Dist. Fayette No. CA2018-

06-013, 2019-Ohio-754, ¶ 24. This court cannot assume the jury would reach the same

verdict beyond a reasonable doubt when it was instructed that self-defense was Gloff's

burden alone.

       {¶25} This is not the first time that amendments to R.C. 2901.05 have been applied

prospectively to trials. Previous decisions have described Ohio's treatment of affirmative

defenses in criminal cases to divisions of chronological periods. State v. Crawford, 1st Dist.

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Hamilton No. C-790221, 1981 Ohio App. LEXIS 12173, at *6-7 (July 15, 1981). Prior to

1974, Ohio followed the traditional common law rule that a defendant had the burden to

prove his affirmative defense by a preponderance of the evidence. Id. at *7.

      {¶26} The second period began with the effective date of the new criminal code and

ended November 1, 1978, when R.C. 2901.05(A) was amended. As it pertains to this

matter, the Supreme Court held that the "General Assembly enacted R. C. 2901.05 to be

effective January 1, 1974. Every criminal trial held on and after that date is required to be

conducted in accordance with the provisions of that section." State v. Humphries, 51 Ohio

St.2d 95 (1977), paragraph four of the syllabus.

      {¶27} The third period began November 1, 1978, when R.C. 2901.05(A) was

amended so as clearly to impose on a defendant the burden of proving an affirmative

defense by a preponderance of the evidence. Thus, the old common law treatment was re-

established in Ohio. Crawford at *9.

      {¶28} Now, with the H.B. 228 amendment to R.C. 2901.05, we begin a new period.

Pursuant to R.C. 2901.05(B), if evidence is presented that "tends to support that the

accused person used the force in self-defense" then "the prosecution must prove beyond a

reasonable doubt that the accused person did not use the force in self-defense." Id. Just

as the Supreme Court held in Humphries, the General Assembly enacted H.B. 228 to be

effective March 28, 2019 and therefore criminal trials held on or after that date must be

conducted in accordance with the provisions of that section.

      {¶29} When the state began its case-in-chief on March 26, 2019, the H.B. 228

amendment was not yet in effect. However, the state was still presenting its case-in-chief

on March 28, 2019 when H.B. 228 became effective. That same day, Gloff began his case-

in-chief whereby he asserted a self-defense claim. Gloff rested his case the following day.

Despite the fact that H.B. 228 was effective, the trial court provided pre-H.B. 228

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instructions. Since the trial court did not apply the applicable law at the time concerning the

state's burden of proof, we find we must reverse and remand this matter for further

proceedings. As a result, we sustain Gloff's two assignments of error.

       {¶30} Judgment reversed and remanded.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




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