concurring. I concur in the syllabus and. judgment of the majority opinion. The syllabus appropriately allocates the burden of proof to the accused when a defendant on trial for murder or aggravated murder attempts to show the presence of one or both of the mitigating circumstances set forth in the voluntary manslaughter statute, R.C. 2903.03.
*621The majority opinion correctly points out that the court of appeals, in its decision in State v. Muscatello (1977), 57 Ohio App.2d 231, 248, 11 O.O.3d 320, 330, 387 N.E.2d 627, 640, stated that “ * * * the law in Ohio applicable to affirmative defenses is also clearly applicable to the mitigating factor of emotional stress.” In addition, the court of appeals held, in the first syllabus paragraph of its decision in Muscatello: “Emotional stress is not an element of the offense of voluntary manslaughter, R.C. 2903.03, which the state must prove beyond a reasonable doubt. Emotional stress is a mitigating circumstance for which the defendant in a criminal prosecution bears the burden of producing some evidence and does not have the burden of establishing such mitigating circumstance by a preponderance of the evidence or beyond a reasonable doubt.”
At the time that the Supreme Court of Ohio affirmed the decision in Muscatello, 55 Ohio St.2d 201, 9 O.O.3d 148, 378 N.E.2d 738, former R.C. 2901.05(A) placed no burden of proof upon a defendant seeking to show the existence of an affirmative defense. That statute was soon after amended to place the burden of proof, by a preponderance of the evidence, upon a defendant seeking to establish an affirmative defense. In affirming the decision of the court of appeals in Muscatello, the Supreme Court did not refute the statement made by the court of appeals that the law relating to affirmative defenses applies to the mitigating circumstance of emotional stress. This indeed was a correct statement of longstanding Ohio law. See State v. Vargo (1927), 116 Ohio St. 495, 507, 156 N.E. 600, 604 (stating that a defense, even if it functions as an attempt to reduce the degree of the crime, rather than as a complete defense, can still be termed an affirmative defense).6
As the majority notes, the United States Supreme Court, in Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, upheld the constitutionality of New York’s practice of placing the burden of proof, by a preponderance of the evidence, upon a defendant claiming to have acted under the influence of extreme emotional disturbance. The New York manslaughter statute at issue defined extreme emotional disturbance as a “mitigating circumstance,” and New York law treated that mitigating circumstance squarely as an affirmative defense. It is clear that when the Ohio General Assembly amended R.C. 2901.05(A) to place the burden of proof of an *622affirmative defense by a preponderance of the evidence upon a defendant, the revision realistically should have also placed the burden of proof of the mitigating circumstances of sudden passion or a sudden fit of rage on a defendant seeking to establish them. The Supreme Court decision in Muscatello does not mandate otherwise.
Why then has so much confusion been engendered on this issue? It appears that the Supreme Court decision in Muscatello, by holding in paragraph two of the syllabus that “[ejxtreme emotional stress, as described in R.C. 2903.03, is a circumstance, the establishment of which mitigates a defendant’s criminal culpability,” is responsible for much of the confusion. Some courts seem to reason that if sudden passion or a sudden fit of rage (the mitigating circumstances contained in the present R.C. 2903.03) are circumstances, they must necessarily be something totally separate from affirmative defenses. However, neither the Supreme Court decision in Muscatello, nor R.C. 2901.05(C), requires that conclusion.
Rather, R.C. 2901.05(C) provides that an “affirmative defense” is either: “(1) A defense expressly designated as affirmative”; or “(2) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.” An accused who attempts to mitigate murder to voluntary manslaughter must necessarily show that he or she acted under the influence of sudden passion or a sudden fit of rage. Therefore, the accused is raising a defense particularly within his or her own knowledge. Even if a majority of this court is unwilling to define sudden passion or a sudden fit of rage squarely as affirmative defenses, it must be acknowledged that those mitigating circumstances are very much like affirmative defenses. As such, and because a defendant can be “fairly required to adduce supporting evidence” of the mitigating circumstances of voluntary manslaughter, there is nothing prejudicial in placing the burden of proof upon the defendant, by a preponderance of the evidence, to. show the existence of the mitigating circumstance(s).
The Patterson court, quoting with approval from a concurring opinion filed in the decision below (which was being appealed to the United States Supreme Court), succinctly pointed out: “ ‘The placing of the burden of proof on the defense, with a lower threshold, however, is fair because of defendant’s knowledge or access to the evidence * * *. To require the prosecution to negative the “element” of mitigating circumstances is generally unfair, especially since the conclusion that the negative of the circumstances is necessarily a product of definitional and therefore circular reasoning * * *.’ ” Patterson, supra, 432 U.S. at 211, 97 S.Ct. at 2327, 53 L.Ed.2d at 293, fn. 13, quoting *623from People v. Patterson (1976), 39 N.Y.2d 288, 305-306, 383 N.Y.S.2d 573, 584, 347 N.E.2d 898, 909 (Breitel, J., concurring).
Indeed, here the evidence surrounding proof of the mitigating circumstances is singularly within the knowledge of the accused. These mitigating circumstances fall squarely within the definition of an “affirmative defense” contained in R.C. 2901.05(C): “ * * * an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.”
Additionally the Patterson court stated: “It is plain enough that if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances.” 432 U.S. at 206, 97 S.Ct. at 2325, 53 L.Ed.2d at 289. From this it can be seen that the prosecution is still required to prove each and every element of the crime, but that a mitigating circumstance, according to Patterson, conceptually “ * * * constitutes a separate issue on which the defendant is [permissibly] required to carry the burden of persuasion * * *.” 432 U.S. at 207, 97 S.Ct. at 2325, 53 L.Ed.2d at 290. It becomes readily apparent that a defendant’s due process rights are not violated when the burden of proof is placed upon him or her not only as to an affirmative defense but also as to a mitigating circumstance. The state is required to establish the guilt of the defendant beyond a reasonable doubt. However, if the accused wishes to justify or mitigate his or her culpability, then the burden is properly placed upon the accused to prove such facts of “excuse or justification peculiarly within the knowledge of the accused” by a preponderance of the evidence.
It becomes readily apparent that we are dealing with semantics. This court, and properly so, does not wish to designate “sudden passion or a sudden fit of rage” as affirmative defenses. Rather, it would appear that we desire to continue to label them “mitigating circumstances.” But whatever they are termed, they still excuse or justify the conduct of the accused; and pursuant to R.C. 2901.05(C), the accused should bear the burden of proof by a preponderance of the evidence. The General Assembly, if it sees fit, has the opportunity to expressly designate these mitigating circumstances as affirmative defenses, codifying the practice approved in Patterson.
. “ * * * [A]t common law the burden of proving [heat of passion or sudden provocation], as well as other affirmative defenses — indeed, ‘all * * * circumstances of justification, excuse or alleviation’ — rested on the defendant.” Patterson v. New York (1977), 432 U.S. 197, 202, 97 S.Ct. 2319, 2323, 53 L.Ed.2d 281, 287, quoting from 4 Blackstone, Commentaries on the Laws of England (1769) 201. See, also, Commonwealth v. York (1845), 50 Mass. 93.