dissenting. I must respectfully dissent from the majority’s affirmance of the judgment of the court of appeals in this case.
I agree with the partial dissent below that R.C. 2901.05 is unconstitutional insofar as it places the burden of proving self-defense by a preponderance of the evidence on the accused. For more than a century, self-defense has been considered to negate the element of unlawfulness which must be present in order to convict a defendant of aggravated murder. See Silvus v. State (1871), 22 Ohio St. 90. Thus, R.C. 2901.05 permits the state to convict a defendant without proving every element of the crime charged, contrary to the principles of Patterson v. New York (1977), 432 U.S. 197.
I note that in the case of Engle v. Isaac (1982), 456 U.S. 107, 121-123, the Supreme Court of the United States, in dictum, interpreting Ohio law, recognized that the placement on the accused of the burden of proof of affirmative defenses such as self-defense raised a “colorable constitutional claim.” There, the issue remained unresolved as not properly before the court. When the issue is properly before the court, I believe my position will be vindicated. Based on the foregoing, I would hold that R.C. 2901.05 impermissibly lessens the state’s burden of proof and is thus unconstitutional as to the affirmative defense of self-defense.
Accordingly, I would reverse the judgment of the court of appeals.