State v. Barker , 2022 Ohio 3756 ( 2022 )

[Cite as State v. Barker, 2022-Ohio-3756.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29227
:
v. : Trial Court Case No. 2019-CR-1747
:
CARSON D. BARKER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 21st day of October, 2022.
...........
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066
Attorney for Defendant-Appellant
.............
EPLEY, J.
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{¶ 1} Carson D. Barker was convicted in the Montgomery County Court of
Common Pleas of murder with a firearm specification, discharge of a firearm on or near
prohibited premises with a firearm specification, and having weapons while under
disability. The trial court imposed an aggregate prison sentence of a minimum term of
29 years to life and a maximum term of 33 years to life, plus restitution.
{¶ 2} Barker appeals from his convictions. He claims that the trial court erred in
its jury instructions related to self-defense, that his convictions were against the manifest
weight of the evidence, that the trial court infringed upon his constitutional rights by
repeatedly admonishing him during his testimony, that trial counsel rendered ineffective
assistance, that cumulative error deprived him of a fair trial, that his sentence under the
Reagan Tokes Act was unconstitutional and contrary to law, and that the record did not
support consecutive sentences. For the following reasons, the trial court’s judgment will
be affirmed in part and reversed in part, and the matter will be remanded for further
proceedings.
I. Facts and Procedural History
{¶ 3} Shortly before 6:00 p.m. on May 26, 2019, Barker walked from a bus stop
toward his mother’s home, which was located on West Second Street just west of the
intersection with North Antioch Street. As he came down the sidewalk on North Antioch
Street, Barker saw Christopher Campbell seated in his red Chevy Tahoe. The Tahoe
was parked on West Second Street near the residence of Barker’s mother. The parties
dispute why Campbell was there. Campbell’s fiancée testified that he went to visit Moses
Goodman, Campbell’s friend and Barker’s step-father.
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{¶ 4} Under Barker’s version of events, Campbell had been following and
menacing Barker for a couple of months, which caused Barker to be fearful that Campbell
would harm him. Campbell had told Barker that he was upset that Barker’s uncle had
“told on him” for selling drugs. (Multiple kinds of illegal drugs were located in Campbell’s
vehicle.) Barker knew that Campbell had killed before, and Campbell previously had
“clutched” his gun when speaking with Barker, which was perceived as a threat.
Following that incident, Barker had purchased a gun for his protection. Barker testified
that, approximately a month prior, he had approached Campbell at a gas station and
asked him why he (Campbell) was following him (Barker); Campbell had denied that he
was following Barker. Barker testified that when he saw Campbell parked by his
mother’s house on May 26, his intention was to ask Campbell to stop.
{¶ 5} Upon seeing the Tahoe, Barker cut across the empty lot at the northwest
intersection of West Second and North Antioch. As he neared Campbell’s vehicle,
Barker fired his gun at the passenger side of the Tahoe. Barker and the State disagreed
as to how close Barker was to Campbell’s vehicle before Barker began shooting.
Campbell exited his Tahoe, Barker circled around the front of the vehicle, and the two
became involved in a shoot-out during which Campbell was shot once. Barker testified
that, before he fired at the Tahoe, he saw Campbell look at him and pull out his gun. No
eyewitness corroborated that Campbell had drawn first, and Barker later said that he did
not think Campbell saw him before he began shooting.
{¶ 6} Barker testified that when he ran out of bullets, he ran backward toward North
Antioch. Barker reloaded, fired an additional shot, and then left the area on foot. Barker
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stated that he did not realize at that time that Campbell had been shot. Campbell re-
entered his Tahoe, drove a short distance away, and crashed at a school playground.
{¶ 7} Barker’s mother, who saw the shooting, told investigating police officers the
identities of the men involved, and another witness, who did not know the men, provided
a physical description of Barker. A third witness testified that she saw the shooter
(Barker) go through a church parking lot to Third Street and head toward downtown
Dayton. Officers located Barker at his downtown residence that evening and arrested
him for felonious assault. An officer found Barker’s loaded 9mm handgun and an
additional magazine during a search incident to Barker’s arrest. The next day, Campbell
died at the hospital from a single gunshot wound to his abdomen.
{¶ 8} During the investigation of the shooting, officers located 12 spent 9mm bullet
casings that had been fired from Barker’s gun: nine were located on West Second Street
to the west of the intersection with North Antioch Street, two were nearby in the grass just
north of the sidewalk on the north side of West Second Street, and one was on North
Antioch more than 45 feet north of the intersection. Broken glass was located near one
of the western-most 9mm casings. Upon processing the Tahoe, an evidence technician
found two bullet holes in the SUV’s windshield and several bullet strikes to the vehicle’s
passenger side, including the front windshield support, rear window, rear cargo window
frame, and taillight area. Several of the bullets had been fired toward the driver’s seat.
A spent 9mm bullet from Barker’s gun was located in a rear door. Another was recovered
from Campbell’s body during his autopsy.
{¶ 9} Five spent .40 caliber bullet casings were found on North Antioch Street near
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the stop sign at the southeast corner of the intersection with West Second Street.
Testing showed that those casings came from Campbell’s gun, which was recovered from
his Tahoe. A spent .40 caliber bullet was found on West Second Street near one of the
spent 9mm casings.
{¶ 10} Three months later, Barker was charged in a nine-count indictment with two
counts of murder, two counts of felonious assault, discharge of a firearm on or near
prohibited premises, two counts of having weapons while under disability, and two counts
of tampering with evidence (clothing and gun). Five of the charges included a firearm
specification.
{¶ 11} Prior to trial, Barker requested a jury instruction on self-defense consistent
with the changes to R.C. 2901.09 enacted in Am.S.B. 175 (the “stand your ground” law),
effective April 6, 2021. Relying on State v. Irvin, 2020-Ohio-4847, 160 N.E.3d 388 (2d
Dist.), the trial court denied the request, reasoning that there was no language in R.C.
2901.09 that expressly indicated that the General Assembly intended the statute to apply
retroactively. Decision (June 7, 2021).
{¶ 12} The State asked the trial court for three specific jury instructions: (1)
consciousness of guilt, (2) a definition of “fault” consistent with State v. Wallace-Lee, 2d
Dist. Greene No. 2019-CA-19, 2020-Ohio-3681, for purposes of self-defense, and (3) the
castle doctrine with respect to Campbell’s (the victim’s) duty to retreat. Defense counsel
opposed the State’s requested instructions on fault and the castle doctrine.
{¶ 13} In June 2021, the matter proceeded to a bench trial on the two counts of
having weapons while under disability and to a jury trial on the remaining charges and
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specifications. At the jury trial, the State presented 14 witnesses and numerous exhibits;
Barker testified in his own defense. After the conclusion of the presentation of evidence,
the trial court provided jury instructions, which included the instructions requested by the
State. The jury found Barker not guilty of both counts of tampering with evidence but
guilty of the remaining charges and specifications before it. The trial court found him
guilty of having weapons while under disability.
{¶ 14} At sentencing, pursuant to the Reagan Tokes Act, the trial court imposed
an indefinite sentence of a minimum of 8 years and a maximum of 12 years for discharge
of firearm on or near prohibited premises (Count 5), plus an additional three years for the
accompanying firearm specification. After merging the felonious assault and murder
counts, the trial court imposed 15 years to life in prison for murder (Count 2), plus an
additional three years for the firearm specification, to be served prior to the sentence on
Count 5. The court merged the two counts of having weapons while under disability and
ordered Barker to serve three years in prison on Count 9, to be served concurrently.
Barker was notified that he would be required to register annually with the violent offender
database for 10 years following his release from prison. The court ordered Barker to pay
$4,508.78 in restitution to the victim’s family, but it waived costs and fees.
{¶ 15} Barker appeals from his convictions, raising seven assignments of error.
We find his first assignment of error to be dispositive and, therefore, overrule his
remaining assignments of error as moot.
II. Jury Instructions
{¶ 16} In his first assignment of error, Barker claims that the trial court abused its
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discretion when it instructed the jury on self-defense.
{¶ 17} Jury instructions “must be given when they are correct, pertinent, and timely
presented.” State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995). A trial court
must fully and completely give jury instructions which are relevant and necessary for the
jury to weigh the evidence and discharge its duty as the fact-finder. State v. Comen, 50
Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus; State v. Portis, 2d
Dist. Montgomery No. 28677, 2021-Ohio-608, ¶ 46.
{¶ 18} We review a trial court’s jury instructions for an abuse of discretion. Portis
at ¶ 47, citing State v. Jones, 2015-Ohio-5029, 52 N.E.3d 263, ¶ 13 (12th Dist.). “An
appellate court may not reverse a conviction in a criminal case based upon jury
instructions unless ‘it is clear that the jury instructions constituted prejudicial error.’ ” Id.We must review the instructions as a whole, and, if taken in their entirety, the instructions
fairly and correctly state the law applicable to the evidence presented at trial, reversible
error will not be found premised upon the possibility that the jury may have been misled.
Id.{¶ 19} A person may act in self-defense, defense of another, or defense of that
person’s home. R.C. 2901.05(B)(1). To warrant an instruction on self-defense, there
must be evidence presented that supports the conclusion that the defendant used force
to defend himself or herself. Id. If the defendant puts forth evidence that he or she
acted in self-defense, the prosecution must prove beyond a reasonable doubt that the
accused person did not use the force in self-defense. R.C. 2901.05(B)(1); State v.
Lovett, 2d Dist. Montgomery No. 29240, 2022-Ohio-1693, ¶ 40.
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{¶ 20} On appeal, Barker claims that the trial court gave “confusing and
inconsistent” jury instructions on self-defense in several ways. First, he claims that the
court provided confusing instructions by including the requirements for self-defense when
non-deadly force is used. Second, he asserts that the trial court should have instructed
the jury that he had no duty to retreat before using deadly force, consistent with the most
recent revisions to R.C. 2901.09. Third, he contends that the jury should not have been
instructed that Campbell had no duty to retreat under the castle doctrine. Finally, he
argues that the court abused its discretion in providing the definition of fault requested by
the State.
A. Non-Deadly v. Deadly Force/ Confusing Instructions
{¶ 21} When self-defense is raised, different standards apply depending on
whether the defendant responded with deadly or non-deadly force. State v. Rothermel,
2d Dist. Montgomery No. 26004, 2014-Ohio-3168, ¶ 12, citing State v. New, 10th Dist.
Franklin No. 92AP-04, 1994 WL 521253, *2 (Sept. 20, 1994). “Deadly force” is defined
as “any force that carries a substantial risk that it will proximately result in the death of
any person.” R.C. 2901.01(A)(2). The use of a gun constitutes deadly force. State v.
Dale, 2d Dist. Champaign No. 2012-CA-20, 2013-Ohio-2229, ¶ 15.
{¶ 22} Self-defense involving the use of deadly force requires the defendant to
produce evidence of three elements: (1) the defendant was not at fault in creating the
violent situation, (2) the defendant had a bona fide belief that he or she was in danger of
death or great bodily harm and that the only way to escape was the use of force, and (3)
the defendant did not violate any duty to retreat. Lovett, 2d Dist. Montgomery No. 29240,
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2022-Ohio-1693, at ¶ 41; State v. Martin, 2d Dist. Montgomery No. 27220, 2017-Ohio-
7431, ¶ 39, citing State v. Williford, 49 Ohio St.3d 247, 551 N.E.2d 1279 (1990).
{¶ 23} Historically, because of the third element, a person generally could not kill
in self-defense if he or she had a reasonable means of retreat from the confrontation.
See State v. Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997), citing Williford at
250. An exception, known as the “castle doctrine,” applied if a confrontation happened
in a person’s home, in which case there was no duty to retreat. Former R.C. 2901.09(B)
(effective Sept. 9, 2008). Former R.C. 2901.09(B) extended that exception to the
person’s or immediate family member’s vehicle.
{¶ 24} In contrast, self-defense involving the use of non-deadly force requires
evidence that: (1) the defendant was not at fault in creating the situation giving rise to the
altercation; (2) the defendant had reasonable grounds to believe and an honest belief,
even if mistaken, that the defendant was in imminent danger of bodily harm; and (3) the
only means of protecting himself or herself from that danger was by the use of force not
likely to cause death or great bodily harm. Koch at ¶ 37, citing State v. Coleman, 2d Dist.
Montgomery No. 27666, 2018-Ohio-1951, ¶ 13. There is no duty to retreat in cases
involving non-deadly force. State v. Brown, 2017-Ohio-7424, 96 N.E.3d 1128, ¶ 25 (2d
Dist.).
{¶ 25} In this case, Barker used deadly force. At trial, the trial court informed the
jury that to prove Barker did not use deadly force in self-defense, the State was required
to prove beyond a reasonable doubt at least one of the following: (1) Barker was at fault
in creating a situation giving rise to the shooting of Christopher Campbell, (2) Barker did
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not have reasonable grounds to believe or did not have an honest belief, even if mistaken,
that he was in imminent or immediate danger of death or great bodily harm, (3) Barker
violated a duty to retreat or escape to avoid the danger, or (4) Barker did not use
reasonable force. The court instructed the jury as to the reasonableness of the use of
force, stating:
A person is allowed to use force that is reasonably necessary under
the circumstances to protect himself from an apparent danger. The state
must prove beyond a reasonable doubt that the defendant used more force
than reasonably necessary and that the force used was greatly
disproportionate to the apparent danger.
In deciding whether the force used was greatly disproportionate to
the apparent danger, you may consider whether the force used shows
revenge or a criminal purpose.
{¶ 26} Barker asserts that the trial court improperly used non-deadly force
language when instructing the jury on what he was required to believe and on the use of
reasonable force. He also argues that the instructions “suggested to the jury that Barker
had a duty to retreat because he was at fault in creating the situation giving rise to the
shooting of Campbell because he was the initial aggressor, or shot first, which was
excessive because it was out of revenge or for a criminal purpose.”
{¶ 27} Barker initially appears to question the use of the phrase “had reasonable
grounds to believe and an honest belief, even if mistaken.” Although courts have used
the phrase “bona fide belief” with respect to deadly force and the phrase “had reasonable
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grounds to believe and an honest belief, even if mistaken” as to non-deadly force, the
principle involved is the same. Self-defense requires evidence that the defendant had
both an objectively reasonable belief and a subjective belief that force was necessary to
protect himself or herself. State v. Blair, 2d Dist. Montgomery No. 28904, 2021-Ohio-
3370, ¶ 11; State v. Kucharski, 2d Dist. Montgomery No. 20815, 2005-Ohio-6541, ¶ 18.
The trial court did not misstate the law or create confusion by using the phrase “did not
have reasonable grounds to believe or did not have an honest belief, even if mistaken” in
this deadly force case.
{¶ 28} Next, Barker challenges the inclusion of an instruction on the use of
reasonable force. We have explained that the second element of self-defense (bona fide
belief) “requires consideration of the force that was used in relation to the danger the
accused believed he was in.” Rothermel at ¶ 14, citing State v. Bayes, 2d Dist. Clark
No. 2000-CA-32, 2000 WL 1879101, *4 (Dec. 29, 2000). It is well established that a
person may only use “that force which is reasonably necessary to repel the attack.” State
v. Paschal, 2d Dist. Montgomery No. 18262, 2001 WL 395354, *2 (Apr. 20, 2001), quoting
Williford, 49 Ohio St.3d at 249, 551 N.E.2d 1279; State v. James, 2d Dist. Montgomery
No. 28892, 2021-Ohio-1112, ¶ 21. If the force used was so disproportionate that it shows
a purpose to injure, self-defense is unavailable. Wallace-Lee, 2d Dist. Greene No. 2019-
CA-19, 2020-Ohio-3681, at ¶ 43, quoting State v. Macklin, 8th Dist. Cuyahoga No. 94482,
2011-Ohio-87, ¶ 27. This principle applies in both deadly and non-deadly force cases.
See Rothermel at ¶ 20. In short, the trial court did not improperly provide instructions
related to the use of non-deadly force in this case.
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{¶ 29} Third, Barker claims that the trial court confused the jury with its instruction
on his duty to retreat. When deadly force is used and a duty to retreat exists (which we
will assume for purposes of our analysis here), the defendant has an initial burden of
showing that he or she had no means of retreat or avoidance was available to him or her
and that the only means of escape or avoidance was the deadly force that was used.
Dale, 2d Dist. Champaign No. 2012-CA-20, 2013-Ohio-2229, at ¶ 15.
{¶ 30} The trial court instructed the jury on Barker’s duty to retreat as follows:
The defendant had a duty to retreat if he was at fault in creating the
situation giving rise to the shooting of Christopher Campbell, or did not have
reasonable grounds to believe and an honest belief that he was in imminent
or immediate danger of death or great bodily harm; or had a reasonable
means of escape from that danger other than by the use of deadly force.
A person has a duty to retreat, if possible, before resorting to deadly force.
This instruction comported with the Ohio Jury Instruction based on former R.C.
2901.09(B).
{¶ 31} We recognize that Barker objected to an instruction that he had a duty to
retreat based on the recent change in the “stand your ground” law. However, after the
trial court concluded that he was not entitled to an instruction under current R.C.
2901.09(B), Barker did not then object to the wording of the trial court’s jury instruction on
his duty to retreat. Accordingly, we review the wording of the trial court’s instruction for
plain error. State v. McShann, 2d Dist. Montgomery No. 27803, 2019-Ohio-4481, ¶ 46.
Plain error arises only when, “but for the error, the outcome of the trial clearly would have
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been otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph
two of the syllabus. “Notice of plain error under Crim.R. 52(B) is to be taken with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” Id. at paragraph three of the syllabus.
{¶ 32} We note that at least one judge of this court has commented that the
instruction in former Ohio Jury Instructions CR Section 421.19 (which previously
addressed self-defense with deadly force) was “wrong, inadequate, and the result of
circular reasoning.” Dale, 2d Dist. Champaign No. 2012-CA-20, 2013-Ohio-2229, at
¶ 41 (Hall, J., concurring). He reasoned:
* * * The standard jury instruction regarding a duty to retreat is found
at O.J.I. 421.19. The trial court’s instruction below mirrored that pattern
instruction. But it is wrong. The three parts of the [self-defense]
instruction are cumulative. A defendant must prove all three. For ease of
discussion, I have shortened the elements. To prove self defense, a
defendant first must prove (a) that he was not at fault and (b) that he
reasonably believed he was in grave danger and deadly force was
reasonable. So far, so good. The final part of the pattern instruction
requires a defendant to prove (c) that he did not violate a duty to retreat.
To find a duty to retreat, however, a jury must find either that a defendant
was at fault or that he was unreasonable. But these inquiries involve
determinations that a jury already will have made under (a) and (b) above.
If a jury had found that a defendant was at fault or was unreasonable, he
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could not rely on self defense anyway. In that situation, the jury never
would reach the duty-to-retreat issue. Conversely, if a jury found that a
defendant was not at fault and was reasonable, it could not logically change
its mind and reach a contrary conclusion on the duty-to-retreat issue.
Thus, as the pattern instruction is worded, there never will be a duty to
retreat. A jury’s findings on parts (a) and (b) of the self-defense instruction
will determine the applicability of the defense. The instruction regarding a
duty to retreat is wrong and is the result of circular reasoning.
The duty-to-retreat instruction should more clearly explain that a
person cannot employ deadly force if he knows he can avoid such force by
using a readily available, completely safe means of retreat or escape. * * *
Id. at ¶ 45 (Hall, J., concurring.) Judge Hall nevertheless concluded that no plain error
occurred, stating, “Because a logical analysis of the inaccurate O.J.I. duty-to-retreat
instruction leads me to the inescapable conclusion that if self defense is applicable there
is never a duty to retreat, the defendant was not prejudiced by the superfluous duty-to-
retreat instruction.” Id. at ¶ 47.
{¶ 33} Upon review, we find no plain error in the trial court’s instruction on Barker’s
duty to retreat (again, assuming for sake of this analysis that it exists). Barker was not
prejudiced by the instruction and we find no basis to conclude that the instruction affected
the outcome of his trial.
B. Barker’s Duty to Retreat
{¶ 34} Barker further claims that the trial court erred in failing to provide an
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instruction on his duty to retreat in accordance with the April 6, 2021 amendments to R.C.
2901.09 (the “stand your ground” law).
{¶ 35} Ohio’s self-defense laws have been in a state of flux over the course of the
last several years. In 2019, S.B. 228 altered R.C. 2901.05, making self-defense no
longer an affirmative defense. Instead, the burden was shifted “from the defendant to
the state to prove beyond a reasonable doubt that the accused did not use force in self-
defense.” State v. Brooks, Ohio Slip Opinion No. 2022-Ohio-2478, __ N.E.3d __, ¶ 6.
Then, in April 2021, S.B. 175 took effect, amending R.C. 2901.09 to eliminate the duty to
retreat whenever a person is anywhere he or she has a right to be.
{¶ 36} The current version of R.C. 2901.09, as amended by S.B. 175, provides, in
relevant part:
(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 * * * if that person is in a place in which the person lawfully has a
right to be.
(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 * * *
reasonably believed that the force was necessary to prevent injury, loss, or
risk to life or safety.
{¶ 37} The trial court denied Barker’s request based on State v. Irvin, 2020-Ohio-
4847, 160 N.E.3d 388 (2d Dist.), which held that the burden-shifting changes to the self-
defense statute, enacted in H.B. No. 228, applied only to offenses committed after the
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effective date of the amendment and did not apply retroactively. Although Irvin, an
appeal of which is pending before the Ohio Supreme Court, has not yet formally been
reversed, it is no longer good law. The Ohio Supreme Court recently held that H.B. No.
228 is not retroactive and applies to all pending and new trials that occur on or after its
effective date (March 28, 2019). Brooks. Nevertheless, due to differences in the
language of the amendments to R.C. 2901.05 and R.C. 2901.09, Brooks is not dispositive
of the issue here.
{¶ 38} “A statute is presumed to be prospective in its operation unless expressly
made retrospective.” R.C. 1.48; Brooks at ¶ 9. See also Hyle v. Porter, 117 Ohio St.3d
165, 2008-Ohio-542, 882 N.E.2d 899, ¶ 9 (a statute cannot be applied retroactively unless
the legislature expressly makes it retroactive). To overcome the presumption that the
statute applies prospectively, it must “clearly proclaim its retroactive application.” Id. at
¶ 10. In this case, we find no language in the amended R.C. 2901.09 that would indicate
the legislature obviously intended the statute to be applied retroactively. State v.
Degahson, 2d Dist. Clark No. 2021-CA-35, 2022-Ohio-2972, ¶ 17; accord State v. Hurt,
8th Dist. Cuyahoga No. 110732, 2022-Ohio-2039, ¶ 58 (“There is no language in
amended R.C. 2901.09 indicating that the General Assembly intended the statute to be
applied retroactively.”).
{¶ 39} Even assuming the legislature clearly intended for the amended R.C.
2901.09 to apply retroactively, the statute would run afoul of the Ohio Constitution, which
provides that the “general assembly shall have no power to pass retroactive laws.” Ohio
Constitution, Article II, Section 28. “Generally, when the legislature has made a statute
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expressly retroactive, the determination whether the statute is unconstitutionally
retroactive * * * depends on whether it is ‘remedial’ or ‘substantive.’ ” Brooks at ¶ 10. If
the law is remedial in nature, then its retroactive application is constitutional; if the law is
substantive, then applying it retroactively is unconstitutional. Id. “Laws relating to
procedures – rules of practice, courses of procedure, and methods of review – are
ordinarily remedial in nature. But laws affecting rights, which may be protected by
procedure, are substantive.” (Citations omitted.) Id.{¶ 40} We have found R.C. 2901.09 to be substantive in nature. Degahson at
¶ 19. Prior to the passage S.B. 175, a person, unless in his or her residence or vehicle,
had a duty to retreat before using force in self-defense. Former R.C. 2901.09(B).
Senate Bill 175 modified the law to read: “a person has no duty to retreat before using
force in self-defense * * * if that person is in a place in which the person lawfully has a
right to be.” R.C. 2901.09(B). The change did more than just alter a procedure; it
expanded the law, creating a new right: the right to stand one’s ground. A person is no
longer limited to their home or vehicle; the use of force in self-defense can now be used
anywhere the person is legally permitted to be. Appellate courts across the country have
similarly held that changes to “stand your ground” laws are substantive in nature and thus
do not allow for retroactive application. Degahson at ¶ 20 (citing cases from Alaska,
Louisiana, Florida, Michigan, and Kentucky).
{¶ 41} Finally, the trial court’s decision not to give Barker’s requested instruction
was consistent with R.C. 1.58. “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
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is guided by R.C. 1.58.” Hurt, 8th Dist. Cuyahoga No. 110732, 2022-Ohio-2039, at ¶ 60,
quoting State v. Stiltner, 4th Dist. Scioto No. 19CA3882, 2021-Ohio-959, ¶ 54. That
statute provides:
(A) The reenactment, amendment, or repeal of a statute does not, except
as provided in division (B) of this section:
(1) Affect any validation, cure, right, privilege, obligation, or liability
previously acquired, accrued, or incurred thereunder;
(2) Affect any violation thereof or penalty, forfeiture, or punishment
incurred in respect thereto, prior to the amendment or repeal;
(3) Affect any investigation, proceeding, or remedy in respect of any
such privilege, obligation, liability, penalty, forfeiture, or punishment,
and the investigation, proceeding, or remedy may be instituted,
continued, or enforced, and the penalty, forfeiture, or punishment
imposed, as if the statute had not been repealed or amended.
(B) If the penalty, forfeiture, or punishment for any offense is reduced by a
reenactment or amendment of a statute, the penalty, forfeiture, or
punishment, if not already imposed, shall be imposed according to the
statute as amended.
{¶ 42} Since the statute was amended while Barker’s case was pending, R.C. 1.58
must be applied. Senate Bill 175 does not set out a penalty, punishment, or forfeiture,
but instead provides substantive law creating a right to “stand your ground.” See
Degahson at ¶ 22. Therefore, R.C. 1.58 dictated that the trial court apply the former
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version of R.C. 2901.09 to Barker’s case. Id.; Stiltner at ¶ 55.
{¶ 43} Because the new “stand your ground” law was not expressly made
retroactive and it constitutes a substantive amendment, the trial court did not err in failing
to give an instruction on Barker’s duty to retreat in accordance with S.B. 175.
C. Fault
{¶ 44} Barker next challenges the trial court’s jury instruction on “fault.” He claims
that the second paragraph was inconsistent with the “stand your ground” law and
inappropriate for the facts of this case.
{¶ 45} At trial, the trial court defined “fault” as follows:
The Defendant did not act in self-defense if the State proved beyond
a reasonable doubt that the Defendant was at fault in creating the situation
that resulted in the death. The Defendant was at fault if the Defendant was
the initial aggressor, and Christopher Campbell did not escalate the
situation to deadly force or the Defendant did not withdraw from the
situation.
"Fault", as used in the definition of self-defense, is as follows. The
Defendant, Carson Barker, was at fault in creating the situation, giving rise
to the shooting of Christopher Campbell if the State proved beyond a
reasonable doubt that he chose to confront Christopher Campbell or chose
to knowingly go to a place where Christopher Campbell was or refused to
move in a direction away from Christopher Campbell, even when the
Defendant, Carson Barker’s, actions were otherwise lawful.
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(Emphasis added.) Although Ohio Jury Instructions are not binding authority, the first
paragraph of the trial court’s instruction is consistent with Ohio Jury Instruction 421.21
(effective April 6, 2021). The State acknowledges that the second paragraph does not
track the Ohio Jury Instruction language.
{¶ 46} The second paragraph was based on the language cited in Wallace-Lee,
2d Dist. Greene No. 2019-CA-19, 2020-Ohio-3681. In that case, Wallace-Lee and the
victim, Tre-Ana Tarver, used Facebook to engage in a series of communications during
which they argued over a man with whom they were both involved. Two other women
participated in the communications. Over seven hours, the online argument escalated,
culminating in an agreement to meet to fight one another. Ultimately, Wallace-Lee
instructed Tarver to come to her residence. At 11:00 p.m., Tarver and the other women
arrived at Wallace-Lee’s home. The State’s evidence showed that while in Wallace-
Lee’s back yard, Tarver threw a punch at Wallace-Lee, who then stabbed Tarver, piercing
her heart; Wallace-Lee also stabbed Tarver in her face and twice in her back. In contrast,
Wallace-Lee presented evidence that she stabbed Tarver after the other two women
joined in the fight against her. Tarver died from her injuries. At Wallace-Lee’s murder
and felonious assault trial, the trial court provided a self-defense instruction without
objection from Wallace-Lee. The jury convicted her of both offenses.
{¶ 47} On appeal, Wallace-Lee claimed the trial court erred in its self-defense
instruction in several ways, including by providing an inappropriate definition of fault
(which mirrored the definition provided by the trial court in this case.) Significantly,
Wallace-Lee did not argue on appeal that the instruction was incorrectly stated. See id.-21-
at ¶ 26. Rather, she asserted that the court should not have given any instruction on
fault because the evidence, in her view, showed she was not at fault. Moreover, because
she did not object to the trial court’s instruction in the trial court, we reviewed the
instruction for plain error. We found no plain error existed because Wallace-Lee could
not show that the “at fault” instruction caused the jury to reject her claim. We further
concluded that the trial court did not err by giving the instruction “because the instruction
tracked the language used in persuasive case law, and because there was a legitimate
question regarding Wallace-Lee’s fault in initiating the fight.” Id.{¶ 48} We have since cited Wallace-Lee for the proposition that “a person cannot
provoke a fight or voluntarily enter combat and then claim self-defense.” See James, 2d
Dist. Montgomery No. 28892, 2021-Ohio-1112, at ¶ 21; Lovett, 2d Dist. Montgomery No.
29240, 2022-Ohio-1693, ¶ 42. However, we have not held that Wallace-Lee’s definition
of fault is appropriate in all self-defense cases, and given our limited, plain-error review
of that jury instruction, Wallace-Lee cannot reasonably be cited for such a broad
proposition.
{¶ 49} The State quotes State v. Ellis, 10th Dist. Franklin No. 11AP-939, 2012-
Ohio-3586, to support its contention that the second paragraph is an accurate statement
of the law regarding fault. Ellis stated that “a multitude of courts have found that a
defendant is at fault in creating the situation giving rise to the affray or violated a duty to
avoid danger or retreat when he chooses to confront the victim, chooses to knowingly go
to a place where the victim will be or refuses to move in a direction away from the victim,
even when the defendant's action was otherwise completely lawful.” Id. at ¶ 15. In
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Wallace-Lee, we noted that the jury instruction at issue appeared to be based on that
case law. Wallace-Lee at ¶ 25, citing Ellis.
{¶ 50} We do not find Ellis, or the cases it cites, to be persuasive here. First, Ellis
is factually distinguishable in that the defendant was engaged in an ongoing argument
with the victim (similar to Wallace-Lee) and continued to follow the victim and his sister,
which ultimately led to an escalation of their argument to a physical confrontation. Some
cases cited by Ellis are similarly distinguishable. Second, some cases cited by Ellis
clearly relate to the duty to retreat, not fault. See State v. Hall, 10th Dist. Franklin No.
04AP-17, 2005-Ohio-335; State v. Sudberry, 12th Dist. Butler No. CA2000-11-218, 2001
WL 1402779 (Nov. 13, 2001). We disagree with State v. Mathews, 3d Dist. Logan No.
8-02-19, 2002-Ohio-6619, cited by Ellis, to the extent that it holds that a person is at fault
merely by choosing to ask a neighbor to turn down their loud music.
{¶ 51} Under the second paragraph of the trial court’s “fault” instruction in this
case, the jury could have found Barker at fault without Barker’s having engaged in any
aggressive or confrontational behavior. Using disjunctive language, Barker could be
found to be at fault if he “chose to knowingly go to a place where Christopher Campbell
was or refused to move in a direction away from Christopher Campbell, even when the
Defendant, Carson Barker’s, actions were otherwise lawful.” Under the facts of this
case, the trial court’s instruction was unreasonably broad.
{¶ 52} Here, the evidence reflects that Barker was headed to his mother’s
residence when he noticed Campbell parked near his mother’s residence. Although
Barker believed Campbell to be following him, Campbell may have been there for an
-23-
independent reason (to visit his friend). There was no evidence that the two men were
present at West Second and North Antioch Streets for the purpose of a confrontation or
to continue an ongoing argument. Barker had previously approached Campbell to ask
him why he (Campbell) was following him (Barker), without violence. Barker testified that
he was “trying to be assertive” when he approached Campbell’s vehicle, but “assertive”
does not necessarily mean confrontational.
{¶ 53} The primary question for the jury was who drew their weapon first. Under
the given instruction, the jury could have concluded that Campbell drew his weapon first,
but Barker nevertheless was at fault simply because he failed to leave the area once he
noticed Campbell’s vehicle. Such a conclusion is not supported by our case law.
Accordingly, the trial court abused its discretion in instructing the jury, as stated in the
second paragraph defining “fault,” that Barker would be at fault merely by continuing to
go to a place where Campbell was or refusing to move in a direction away from Campbell.
D. Campbell’s Duty to Retreat
{¶ 54} Finally, Barker claims that the trial court erred in instructing the jury that
Campbell had no duty to retreat.
{¶ 55} Prior to trial, the State requested a castle doctrine instruction for Campbell.
Barker opposed the motion, arguing that the castle doctrine removes the duty to retreat
as an element of a self-defense claim by a person accused of criminal charges. Barker
noted that Campbell had not been accused of a criminal offense involving the use of force
and, thus, whether he had a duty to retreat was irrelevant. The trial court granted the
State’s request and told the jury:
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A person who was lawfully in his own vehicle has no duty to retreat before
using force in self-defense. If one is assaulted in his own vehicle, he may
use such means as are necessary to repel the assailant from the vehicle.
This means that Christopher Campbell did not have a duty to retreat before
using force to repel the Defendant.
{¶ 56} Barker repeats his prior argument on appeal. He further states that, by
providing the instruction, the court suggested that Campbell acted in self-defense and
was permitted to draw his weapon because he was in his vehicle, which undermined
Barker’s self-defense claim. The State responds that the court’s instruction was an
accurate statement of the law which was pertinent to the evidence at trial.
{¶ 57} The State relies upon State v. Johnston, 2d Dist. Montgomery No. 19019,
2002-Ohio-3295, which concerned whether the victim’s act of swinging a golf club at the
defendant in his (the victim’s) own home could provide the “serious provocation” to reduce
the defendant’s conduct from aggravated murder to manslaughter. Because the victim
was within his rights in using reasonable force to repel the defendant from his home, we
concluded that it could not. Id. at * 3. Johnston articulated the castle doctrine, but the
case did not involve a claim of self-defense, and we find it inapposite to whether a castle
doctrine instruction should be given for a victim where self-defense is at issue.
{¶ 58} In State v. Ramey, 2d Dist. Montgomery No. 27636, 2018-Ohio-3072, we
addressed whether the trial court abused its discretion in giving a castle doctrine
instruction regarding the victim’s duty to retreat. At issue there was an instruction that
stated: “A person who lawfully is in his residence has no duty to retreat before using force
-25-
in self-defense. Where one is assaulted in his home, he may use such means as are
necessary to repel the assailant from the home.”
{¶ 59} Initially, we noted that the castle doctrine instruction generally is given when
a defendant who claims self-defense has used force in his or her own home. Id. at ¶ 29.
We had not found, nor had the State cited, any case in which the instruction was given
when the victim was in his or her own home and the defendant claimed self-defense. Id.
On review, however, we concluded that the trial court did not abuse its discretion in
providing the castle doctrine instruction. We reasoned that the instruction was an
accurate statement of law, was arguably applicable given that the defendant claimed that
the victim had started the altercation, and the trial court had given the instruction – without
mentioning the victim’s name in connection with it – due to the State’s concern that the
jury might think that the victim should have left his home to retreat from the conflict. Id.
at ¶ 30-31.
{¶ 60} As in Ramey, the trial court’s castle doctrine instruction in this case was a
correct statement of the law – when a person is in his or her own vehicle, the person has
no duty to retreat before using force in self-defense. Unlike in Ramey, however, the trial
court here tied the castle doctrine instruction to the victim, stating “This means that
Christopher Campbell did not have a duty to retreat before using force to repel the
Defendant.”
{¶ 61} This additional sentence is potentially problematic. On one hand, the jury
could have read the instruction as whole to mean that, if Campbell was acting in self-
defense, he had no duty to retreat. However, the jury also could have reasonably
-26-
interpreted the instruction to mean that Campbell had no duty to retreat because he was,
as a matter of law, acting in self-defense when he engaged in the shoot-out with Barker.
By negative implication, Barker therefore was not acting in self-defense.
{¶ 62} We must review the trial court’s jury instructions as a whole, and, if taken in
their entirety, the instructions fairly and correctly state the law applicable to the evidence
presented at trial, reversible error will not be found premised upon the possibility that the
jury may have been misled. Upon review of the castle doctrine instruction regarding
Campbell, we are hard-pressed to conclude that this instruction creates reversible error.
{¶ 63} Nevertheless, we question of appropriateness of providing a castle doctrine
instruction regarding a victim. The question before the jury is whether the defendant
acted in self-defense. Although a superfluous jury instruction that correctly states the
law may be harmless, we caution against including such instructions as a matter of
course.
{¶ 64} Barker’s first assignment of error is overruled in part and sustained in part.
{¶ 65} In light of our disposition of this assignment of error, Barker’s convictions
for murder with a firearm specification and discharge of a firearm on or near prohibited
premises with a firearm specification must be reversed, and the matter remanded for
further proceedings on those charges. However, Barker’s conviction for having weapons
while under disability is not affected by the error in the jury instructions, and none of his
remaining assignments of error challenge that conviction. Accordingly, Barker’s
conviction for having weapons while under disability will be affirmed.
III. Conclusion
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{¶ 66} The trial court’s judgment will be affirmed in part and reversed in part, and
the matter will be remanded for further proceedings.
.............
TUCKER, P.J., and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Johnna M. Shia
Hon. Mary Katherine Huffman