[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Philpotts, Slip Opinion No. 2022-Ohio-4362.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2022-OHIO-4362

THE STATE OF OHIO, APPELLEE, v. PHILPOTTS, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Philpotts, Slip Opinion No. 2022-Ohio-4362.]

Court of appeals’ judgment vacated and cause remanded to the court of appeals 

for reconsideration in light of New York State Rifle & Pistol Assn., Inc. v. 

Bruen.

(No. 2019-1215—Submitted September 22, 2022—Decided December 9, 2022.)

APPEAL from the Court of Appeals for Cuyahoga County,

No. 107374, 2019-Ohio-2911.

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{¶ 1} The judgment of the court of appeals is vacated, and the cause is 

remanded to the court of appeals for reconsideration in light of New York State Rifle 

& Pistol Assn., Inc. v. Bruen, ___ U.S. ___, 142 S.Ct. 2111, 213 L.Ed.2d 387 

(2022).

O’CONNOR, C.J., and KENNEDY, FISCHER, and DEWINE, JJ., concur.

DONNELLY, J., dissents, with an opinion.
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STEWART, J., dissents.

BRUNNER, J., dissents, with an opinion.

_________________

DONNELLY, J., dissenting.

{¶ 2} In August 2017, appellant, Delvonte Philpotts, was indicted in the 

Cuyahoga County Common Pleas Court for having a weapon while under disability 

under R.C. 2923.13(A)(2), based on his possession of a handgun while he was 

under indictment for various crimes, which were subsequently dismissed without 

prejudice. Philpotts pleaded no contest to the weapons-under-disability charge and 

was sentenced to three years of community control.

{¶ 3} Philpotts appealed his weapons-under-disability conviction to the 

Eighth District Court of Appeals, asserting that R.C. 2923.13(A)(2) violates his 

constitutional right to bear arms under the Second Amendment to the United States 

Constitution. The court of appeals affirmed, rejecting Philpotts’s Second 

Amendment challenges. 2019-Ohio-2911, 132 N.E.3d 743, ¶ 25-35, 49-50.

{¶ 4} Philpotts appealed the Eighth District’s judgment to this court. We 

accepted the appeal and held the cause for our decision in State v. Weber, 163 Ohio 

St.3d 125, 2020-Ohio-6832, 168 N.E.3d 468. 157 Ohio St.3d 1484, 2019-Ohio4600, 134 N.E.3d 203. Subsequently, we lifted the hold. 160 Ohio St.3d 1514, 

2020-Ohio-6834, 159 N.E.3d 1174. And on September 8, 2022, we ordered the 

parties to submit supplemental briefing addressing “the impact, if any,” on this case 

of the United States Supreme Court’s decision in New York State Rifle & Pistol 

Assn., Inc. v. Bruen, ___ U.S. ___, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). ___ 

Ohio St.3d ___, 2022-Ohio-3155, 194 N.E.3d 371.

{¶ 5} Philpotts made a forceful argument to this court, which has been 

buttressed by the release of Bruen. That case has such significant implications for 

the issue raised by Philpotts that we ordered the parties to submit briefs addressing 

its effect. But now we have determined that we are unable to render a judgment, 
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despite having received compelling guidance from the United States Supreme 

Court (in Bruen) and the parties (in their briefs in this court).

{¶ 6} I would decide this case on the merits. Instead, we will wait for the 

court of appeals or, even more time-consumingly, the trial court (if the court of 

appeals remands to that court) to render a decision. Ultimately, we will likely 

accept jurisdiction of an appeal on the constitutional issue. Only then, perhaps 

years from now, will we determine whether R.C. 2923.13(A)(2) violates the 

constitutional right to bear arms. In the meantime, Philpotts and similarly situated 

individuals will continue to be indicted and punished, possibly even imprisoned, 

for violating R.C. 2923.13(A)(2), which might be unconstitutional. Justice delayed 

is justice denied. I dissent.

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BRUNNER, J., dissenting.

{¶ 7} I respectfully dissent. This case should be remanded to the trial court 

for the reasons I explained in my opinion dissenting from this court’s order for 

supplemental briefing on the effect of the United States Supreme Court’s decision 

in New York State Rifle & Pistol Assn., Inc. v. Bruen, ___ U.S. ___, 142 S.Ct. 2111, 

213 L.Ed.2d 387 (2022). See ___ Ohio St.3d ___, 2022-Ohio-3155, 194 N.E.3d 

371 (Brunner, J., dissenting). I write separately to identify an additional reason 

why a remand to the trial court is the proper approach.

{¶ 8} The issue before us was litigated through the trial and appellate courts 

based on the law that existed prior to Bruen. Under the law before Bruen, a party 

arguing that a law was unconstitutional bore “the burden of proving that the 

legislation [was] unconstitutional beyond a reasonable doubt,” Harrold v. Collier, 

107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 36. The parties created 

the record in this case based on that allocation of the burden, and the Eighth District 

Court of Appeals expressly relied on that law in reaching its decision. See 2019-

Ohio-2911, 132 N.E.3d 743, ¶ 16. Bruen, however, changed the law with respect 
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to Second Amendment challenges, placing the burden on the government to 

“demonstrate that the regulation is consistent with this Nation’s historical tradition 

of firearm regulation.” Id. at ___, 142 S.Ct. at 2126.

{¶ 9} Bruen’s change to the allocation of the burden of proof requires us to 

remand this case to the trial court, just as we would if the trial and appellate courts 

had incorrectly applied established law on who bears the burden of proof. “ ‘It has 

long been generally recognized that it is reversible error to place the burden of proof 

on the wrong party * * *.’ ” Boles Trucking, Inc. v. United States, 77 F.3d 236, 241 

(8th Cir.1996), quoting Voigt v. Chicago & Northwestern Ry. Co., 380 F.2d 1000, 

1004 (8th Cir.1967). An exception to this rule exists when remanding to the trial 

court would not make a difference to the outcome of the case. See Humphrey v. 

Humphrey, 434 F.3d 243, 248 (4th Cir.2006) (discussing exceptions to the rule); 

see also West Platte R-II School Dist. v. Wilson, 439 F.3d 782, 785 (8th Cir.2006)

(“Placing the burden of proof on the incorrect party is reversible error * * * [u]nless 

the error relates to an immaterial issue”). The majority does not find that exception 

applicable here.

{¶ 10} Yet returning this matter to the appellate court is insufficient, since 

there is now a burden-of-proof issue injected into the analysis, and the question 

whether that burden of proof has been met is squarely in the arena of the trial court. 

In addition, even if the appellate court concludes on remand that R.C. 

2923.13(A)(2) is constitutional based on the existing record, an argument based on 

the change in the burden of proof would still be fair game in any jurisdictional 

appeal to this court.

{¶ 11} For this reason alone, this case should be remanded to the trial court 

for the parties to litigate the Second Amendment issue under the new burden-ofproof allocation set forth in Bruen. Other courts have taken this approach, and it 

makes sense for Ohio’s courts to do so as well. See, e.g., Oakland Tactical Supply, 

L.L.C. v. Howell Twp., 6th Cir. No. 21-1244, 2022 WL 3137711, *2 (Aug. 5, 2022)
January Term, 2022

5

(vacating a district-court judgment and remanding for further proceedings because 

the court of appeals was “unable to apply [Bruen] based on the record and 

arguments * * * before” it and noting that on remand, the government would have 

to produce historical evidence “in the first instance”); Duncan v. Bonta, 49 F.4th 

1228, 1231 (9th Cir.2022) (vacating a trial-court judgment and remanding for 

further proceedings in light of Bruen); Young v. Hawaii, 45 F.4th 1087, 1089 (9th

Cir.2022) (“We vacate the judgment of the district court and remand this case to 

the district court for further proceedings pursuant to the Supreme Court order”); 

Sibley v. Watches, 2d Cir. No. 21-1986-cv, 2022 WL 2824268 (July 20, 2022) (“We 

remand the case to the District Court to consider in the first instance the impact, if 

any, of Bruen on Sibley’s claims”).

{¶ 12} The Tenth District Court of Appeals has considered how a lower 

court’s use of an incorrect burden of proof affects subsequent appellate review. In

Brothers v. Morrone-O’Keefe Dev. Co., L.L.C., 10th Dist. Franklin No. 05AP-161,

2006-Ohio-1160, the Tenth District considered whether the trial court had 

improperly applied a higher burden of proof than the law required for a negligentmisrepresentation claim. Id. at ¶ 21-23. The appellate court agreed with the 

appellants that the trial court had applied the wrong burden of proof, but it refused 

to apply the correct, lesser burden of proof to the facts determined by the trial court, 

as suggested by the appellee. Id. at ¶ 21-22. The court stated, “What [the appellee]

urges this court to do is nothing less than to act as a substitute for the trial court; to

weigh the facts and determine whether they are sufficiently persuasive to prove

liability.” Id. at ¶ 22. It concluded, “This is not our role in the judicial process.” 

Id. The duty of applying a new burden of proof to the facts belongs in the first 

instance to the trial court. See id.; see also In re A.N., 8th Dist. Cuyahoga No.

99744, 2013-Ohio-3816, ¶ 9, 12 (reversing on the ground that the trial court had

placed the burden of proof on the wrong party).
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{¶ 13} Finally, I observe that the majority’s decision does not preclude the

court of appeals from remanding this matter to the trial court. Given the significant

competing interests in this case, the court of appeals should be mindful of the

authorities noted above.

{¶ 14} For these reasons, I respectfully dissent.

_________________

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kevin 

R. Filiatraut and Brandon A. Piteo, Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Robert B. 

McCaleb and Jonathan Sidney, Assistant Public Defenders, for appellant, Delvonte 

Philpotts.

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