dissenting. Because I believe that R.C. 2901.05 unconstitutionally shifts the burden of proof of self-defense to the accused, I must respectfully dissent from Part I of the majority decision.
As was pointed out by Judge Jackson in the appellate court below, the affirmative defense of self-defense is one which serves to negate a fact that is necessary to constitute the crime charged. The “facts” that self-defense serves to negate are voluntariness and unlawfulness.
I believe it is clear that an act committed in self-defense is not unlawful in any event. Self-defense is not a crime; rather, it is an act of justification. The majority opinion fails to recognize the crucial difference between an affirmative defense of mitigation, such as that found in Patterson v. New York (1977), 432 U.S. 197, and an affirmative defense of justification, which is the essential nature of self-defense.
In Patterson, the affirmative defense of “extreme emotional disturbance” gave the accused the opportunity to show that his act of murder was, in reality, one of manslaughter. The affirmative defense of self-defense alleged herein, however, goes to the mens rea of the crime charged, i.e., whether the act committed was indeed a criminal act. While Patterson involved a matter of the degree of the crime, the instant case involved the matter of whether the act committed was a crime ab initio.
*97While I do not quibble with the United States Supreme Court’s analysis and decision in Patterson with respect to the affirmative defense it had before it, I do wish to re-emphasize that the legal efficacy of the Patterson decision with respect to the affirmative defense of self-defense was recently questioned in the case of Engle v. Isaac (1982), 456 U.S. 107, as is pointed out in Justice Clifford Brown’s well-reasoned dissent.
Other jurisdictions have grappled with the issue of due process in this context, and there appears to be a distinct split of authority with regard to this issue. Id. at 122, fns. 23 and 24. Hopefully, the high court will resolve this judicial dilemma by granting certiorari in the cause sub judice.
In my view, R.C. 2901.05 amounts to an unconstitutional deprivation of due process in violation of the Fourteenth Amendment to the United States Constitution, and Section 16, Article I of the Ohio Constitution. This statute, along with the majority opinion herein, places the burden of persuasion on the accused that he or she committed an entirely lawful act — taking the life of another in self-defense. In this manner, the court has relaxed the standard that the state must prove every element of the crime charged beyond a reasonable doubt.
For these reasons, I would reverse the judgment of the court of appeals.
C. Brown, J., concurs in the foregoing opinion.