concurring in part and dissenting in part. I concur with the majority that a judgment of acquittal in a criminal trial is not to be given preclusive effect in an R.C. 2305.02 proceeding. I also agree that a claimant in such a proceeding bears the burden of proving his or her innocence by a preponderance rather than by clear and convincing evidence. However, I disagree with the majority’s conclusion that a person who is acquitted by reason of self-defense may seek compensation for wrongful imprisonment under R.C. 2305.02 and 2743.48.
While I agree with the majority that “offense” and “crime” generally are synonymous, I do not believe that the. General Assembly intended the wrongful imprisonment statutes to compensate individuals such as Walden and Ellis.
Self-defense in Ohio does not negate the fact that an offense or, if you will, a “crime,” was committed. Instead, it means that the defendant who committed the offense will not be punished where the affirmative de*55fense of self-defense is established by a preponderance of the evidence.
A person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proving each and every element of the offense is upon the prosecution. R.C. 2901.05(A). As the majority notes, the burden of proof regarding affirmative defenses is different in Ohio than in most other jurisdictions. In Ohio, the defendant not only has the burden of going forward with the evidence of an affirmative defense, but also has the burden of proving the defense by a preponderance of the evidence. R.C. 2901.05(A). Ohio is in a very small minority of states which place the burden of proof by a preponderance of the evidence on the defendant regarding the affirmative defense of self-defense. Other states “haye abandoned the common-law rule and require the prosecution to prove the absence of self-defense when it is properly raised by the defendant. * * *” Martin v. Ohio (1987), 480 U.S. 228, 236. Requiring the defendant to prove self-defense has been held to be constitutional. Martin v. Ohio, supra; State v. Martin (1986), 21 Ohio St. 3d 91, 21 OBR 386, 488 N.E. 2d 166.
Self-defense in Ohio does not “seek to negate any of the elements of the offense which the state is required to prove.” State v. Martin, supra, at 94, 21 OBR at 388, 488 N.E. 2d at 168. It is an affirmative defense which involves “* * * an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.” R.C. 2901.05(C)(2). Self-defense is a “ ‘justification for admitted conduct.’ Self-defense represents more than a ‘denial or contradiction of evidence which the prosecution has offered as proof of an essential element of the crime charged * * *.’ * * * Rather, we stated in [State v.] Poole [(1973), 33 Ohio St. 2d 18, 62 O.O. 2d 340, 294 N.E. 2d 888], this defense admits the facts claimed by the prosecution and then relies on independent facts or circumstances which the defendant claims exempt him from liability. * * * The elements of the crime and the existence of self-defense are separate issues. Self-defense seeks to relieve the defendant from culpability rather than to negate an element of the offense charged. * * *” (Emphasis added.) State v. Martin, supra, at 94, 21 OBR at 388, 488 N.E. 2d at 168.
In the case before us, Walden and Ellis committed the acts which constitute the offenses with which they were charged. However, they each successfully established the defense of self-defense. Thus, their successful assertion of self-defense does not turn on the fact that the offense was not committed. Instead, it means that although the offense was committed, the person who committed it will not be criminally punished.
However, it is interesting to note that a state which deems that self-defense, if successfully asserted, negates an element of the offense charged could still find that the offense was indeed not committed. For example, in California, “[s]elf-defense does not excuse murder or manslaughter. Murder and manslaughter are defined as unlawful killings. ([Cal.] Pen. Code, §§ 187, 192.) A person who kills in lawful self-defense does not do the definitional ‘act’ of either crime. A person innocent because of justifiable homicide (Pen. Code, § 197) can demonstrate the crime charged ‘was not committed at all.’ (Pen. Code, § 4900.) For that reason, a person erroneously imprisoned for justifiable homicide is not per se ineligible for compensation pursuant to Penal Code section 4900 et seq.” (Emphasis sic.) *56Diola v. Cal. Bd. of Control (1982), 135 Cal. App. 3d 580, 585, 185 Cal. Rptr. 511, 515-516.3 However, this is not the case in Ohio.
Under R.C. 2743.48(A)(5), a claim for wrongful imprisonment does not exist unless “* * * it was determined by a court of common pleas that the offense of which he [the claimant] was found guilty, including all lesser-included offenses, either was not committed by him or was not committed by any person." (Emphasis added.) .
In Ohio, the establishment of self-defense will never qualify a person for an action under this statute since a court could not find that the offense was not committed by the actor. Rather, the actor in such a case admits that he committed the offense but contends that his behavior is excused because he did it in self-defense. In other words, an offense was committed but the actor will not be held accountable.
I do not believe, therefore, that the General Assembly intended to compensate individuals such as Walden and Ellis. The General Assembly is presumed to know the common law when enacting legislation. See Davis v. Justice (1877), 31 Ohio St. 359, 364. Thus, the statutes at issue should be construed with the common law in mind. Both R.C. 2305.02 and R.C. 2743.48 provide that the party must show that the offense of which he was found guilty “* * * either was not committed by him or was not committed by any person.” In view of Ohio’s longstanding law that self-defense does not mean that the offense was not committed but instead justifies or excuses it, I cannot agree with the majority that the General Assembly intended to compensate individuals who admit committing the offense for which they were charged but successfully raise the issue of self-defense.
A review of “moral claims” bills passed by the General Assembly prior to the enactment of R.C. 2305.02 and 2743.48 shows that compensation could be awarded to individuals who were found not to have committed the offense either because another person confessed to the crime or because new evidence established that they did not commit the crime.4 The bills generally did not compensate individuals who admitted committing the offense but who nevertheless successfully established self-defense.
The purpose of “moral claims” legislation regarding wrongful imprisonment is to compensate individuals who were erroneously imprisoned either for a crime another person committed or for a crime which was not committed at all. Awards under this statute should be made because “* * * our system of laws recognizes that our citizens deserve redress not only for claims legally enforceable but also for moral obligations. * * *” Hoffner v. New York (Ct. of Claims 1955), 207 Misc. 1070, 1072, 142 N.Y. Supp. 2d 630, 631. Such an award, in those circumstances, should be readily made. “The most serious and best known cases of erroneous confinement result from the conviction *57of the innocent. Some of the more common factors known to have been responsible for persuading the finder of fact of the guilt of an innocent man include misidentification, circumstantial evidence, frame-ups, overzealous police or prosecutors, prior convictions or unsavory records, community opinion demanding a conviction, and unreliability of expert evidence. In addition, erroneous convictions result from guilty pleas and confessions by innocent persons, or from the use of a false alibi by an innocent accused.” Note, Compensation of Persons Erroneously Confined by the State (1970), 118 U. Pa. L. Rev. 1091, 1094.
In cases which may involve the affirmative defense of self-defense, the state has little choice but to prosecute after the grand jury returns an indictment. Although in the instant case it is presumed that the state knew that self-defense would be raised by each defendant, as noted above, the defendant has the burden of proving this affirmative defense. I do not believe that the state should now have to pay damages for pursuing convictions which were obtained pursuant to an indictment and in good faith.
Therefore, for the foregoing reasons, I must respectfully dissent from Part I of the majority opinion to the extent that it permits compensation for persons acquitted by reason of self-defense.
Holmes and Douglas, JJ., concur in the foregoing opinion.Compare Diola, supra, with Ebberts v. Cal. Bd. of Control (1978), 84 Cal. App. 3d 329, 335, 148 Cal. Rptr. 543, 546, where a California court of appeals held that a plea of insanity does not mean that the acts characterizing the crime were not committed at all, but instead is a plea of confession and avoidance.
See, e.g., Am. Sub. H.B. No. 123 (139 Ohio Laws, Part I, 1896, 1897); Am. Sub. H.B. No. 124 (140 Ohio Laws, Part I, 2031-2032); Am. H.B. No. 832 (140 Ohio Laws, Part II, 4931-4932); Am. H.B. No. 539 (141 Ohio Laws, Part III, 4878).