dissenting. The majority holds that a defendant charged with murder or aggravated murder bears the burden of proving by a preponderance of the evidence that he acted under the influence of “sudden passion or in a sudden fit of rage” in order to reduce his culpability from murder to the lesser offense of voluntary manslaughter. To reach this result, the majority must find that (1) acting in “sudden passion or in a sudden fit of rage” is an affirmative defense and (2) shifting the burden to the defendant to *624prove the affirmative defense does not require him to disprove an essential element of the crime with which he is charged. The majority opinion fails to meet either requirement. Because I believe that the majority perpetuates the confused state of the law and reaches the wrong result, I dissent.
I
The majority stops short of stating that voluntary manslaughter, R.C. 2903.03, is an affirmative defense to murder. However, by requiring the defendant to prove, by a preponderance of the evidence, that he acted under the influence of “sudden passion or in a sudden fit of rage” (the mitigating circumstances contained in the voluntary manslaughter statute), the majority in effect holds just that.
R.C. 2901.05(A) sets forth the burdens of proof for a criminal trial and provides the authority to shift the burden to the defendant as follows:
“Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused." (Emphasis added.)
Pursuant to R.C. 2901.05(A), therefore, the state may shift the burden to the defendant to prove an affirmative defense. Affirmative defense is defined by R.C. 2901.05(C), which provides:
“ * * * [A]n ‘affirmative defense’ is either of the following:
“(1) A defense expressly designated as affirmative;
“(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.”
The majority ignores the statutory definition of an affirmative defense, and thus avoids the necessary step of analyzing how acting under the influence of “sudden passion or in a sudden fit of rage” fits within the statutory definition. Since it is not a “defense expressly designated as affirmative,” see R.C. 2903.03, acting in “sudden passion or in a sudden fit of rage” can be an affirmative defense only if it falls under R.C. 2901.05(C)(2) as “involving an excuse or justification.” It does not.
The leading case is State v. Poole (1973), 33 Ohio St.2d 18, 19, 62 O.O.2d 340, 294 N.E.2d 888, 889, in which we stated:
*625“This court has consistently recognized that there are certain ‘justification[s] for admitted conduct’ allowed to a defendant in a criminal case, provable for the most part under the plea of not guilty, which are referred to as ‘affirmative defenses.’ As characterized by one authority, they represent not a mere denial or contradiction of evidence which the prosecution has offered as proof of an essential element of the crime charged, but, rather, they represent a substantive or independent matter ‘which the defendant claims exempts him from liability even if it is conceded that the facts claimed by the prosecution are true.’ * * * ” (Emphasis added and footnotes deleted.)
This court has consistently followed Poole, determining that an affirmative defense is in the nature of a “confession and avoidance,” in which the defendant admits the elements of the crime, but seeks to prove some additional fact that absolves the defendant of guilt. See Walden v. State (1989), 47 Ohio St.3d 47, 50, 547 N.E.2d 962, 965; State v. Curry (1989), 45 Ohio St.3d 109, 111-112, 543 N.E.2d 1228, 1230; State v. Martin (1986), 21 Ohio St.3d 91, 94, 21 OBR 386, 388, 488 N.E.2d 166, 168; State v. Doran (1983), 5 Ohio St.3d 187, 193, 5 OBR 404, 409, 449 N.E.2d 1295, 1300. Affirmative defenses that fit the confession-and-avoidance definition include self-defense, insanity, intoxication, duress, and entrapment. Poole, supra; Doran, supra.
The mitigating circumstances in the voluntary manslaughter statute are not an affirmative defense. When a defendant claims that he acted under the influence of “sudden passion or in a sudden fit of rage,” he does not admit the elements of murder. Specifically, he does not admit that he purposely caused the death of another. Further, the mitigating factors are not an independent matter that excuse or justify the defendant’s conduct in taking the life of another. Instead, these factors mitigate the defendant’s culpability. His emotional state does not absolve him from criminal liability.
The majority ignores the well-established precedent which defines an affirmative defense, and instead relies on State v. Muscatello (1978), 55 Ohio St.2d 201, 9 O.O.3d 148, 378 N.E.2d 738, to shift the burden to the defendant to prove the mitigating circumstances. Reliance on Muscatello, however, is tenuous. Muscatello begs the very question the majority seeks to answer.
Muscatello is not a case about affirmative defenses. In Muscatello, supra, this court analyzed the former voluntary manslaughter statute and determined that “extreme emotional stress” (the predecessor to acting in “sudden passion or in a sudden fit of rage”) was a mitigating circumstance for which the defendant did not bear the burden of proof. Muscatello did not hold that “extreme emotional stress” was an affirmative defense, or even compare the mitigating circumstances to an affirmative defense. In fact, the opinion in *626Muscatello does not discuss affirmative defenses or the defendant’s burden of proof for an affirmative defense.7 While the court of appeals’ decision in Muscatello stated that “extreme emotional stress” was similar to an affirmative defense, State v. Muscatello (1977), 57 Ohio App.2d 231, 248, 11 O.O.3d 320, 330, 387 N.E.2d 627, 640, we did not adopt the court of appeals’ reasoning on this issue. The majority’s assertion that we implicitly did so is improper.
Ironically, our decision in Muscatello supports the view that extreme emotional stress is not an affirmative defense. Although the majority states that it can find no language in support of this view, the majority need look no further than paragraphs two and three of the syllabus, in which we held that “[ejxtreme emotional stress [now ‘sudden passion’ or ‘sudden fit of rage’] * * * is a circumstance, the establishment of which mitigates a defendant’s criminal culpability,” and for which the defendant does not bear the burden of proof (Emphasis added.)
The majority’s reliance on Muscatello is a clumsy attempt to bypass the statutory definition of affirmative defense and our well-established precedent.
II
Even assuming the majority could show that the mitigating circumstances of voluntary manslaughter fit the statutory definition of affirmative defense, shifting the burden to the defendant to prove that he acted under the influence of “sudden passion or in a sudden fit of rage” is a serious violation of the defendant’s due process rights under the United States and the Ohio Constitutions.
Due process requires the prosecution to prove, beyond a reasonable doubt, every element necessary to constitute the crime with which the defendant is charged. In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Similarly, due process prohibits the state from requiring an accused to disprove an element of the crime charged. Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.
In Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, the United States Supreme Court upheld a New York statute which required a defendant charged with second-degree murder to prove the affirmative defense of extreme emotional disturbance by a preponderance of the evidence to reduce the murder charge to manslaughter. Id. at 205, 97 S.Ct. at *6272324, 53 L.Ed.2d at 289. The majority cites Patterson for the proposition that placing the burden of proof on the defendant to prove mitigation is constitutional because the defendant is not required to disprove an element of the offense of murder. Once again the majority leaps to a conclusion without analysis of the case it relies upon.
In Patterson, the United States Supreme Court analyzed the New York statute by (1) determining the essential elements of the crime with which the defendant was charged and (2) determining whether the affirmative defense, which the defendant was required to prove, negated any essential element of the crime. Id. at 205-207, 97 S.Ct. at 2324-2325, 53 L.Ed.2d at 289-290. See, also, White v. Am (C.A.6, 1986), 788 F.2d 338, 343.
The Supreme Court found that the essential elements of the New York murder statute were “(1) ‘Intent to cause the death of another person’; and (2) ‘causing] the death of such person or of a third person.’ ”8 Patterson, supra, 432 U.S. at 198, 97 S.Ct. at 2321, 53 L.Ed.2d at 285. The court then considered whether the affirmative defense — acting under the influence of extreme emotional disturbance for which there was a reasonable explanation — negated any of the elements of murder. The court determined that the affirmative defense did not negate the essential elements of murder, but was instead a separate issue bearing no direct relationship to the elements of murder. Id. at 206-207, 97 S.Ct. at 2325, 53 L.Ed.2d at 289-290. Therefore, the court concluded that shifting the burden of proof to the defendant did not violate the Due Process Clause. Id.
A comparison of the New York murder statute in Patterson and the Ohio murder statute reveals that they contain different elements. Therefore, it is the Supreme Court’s analysis, rather than its conclusion, in Patterson that has relevance to the case we decide today.
The Ohio murder statute, with which the defendant was charged, provides that “[n]o person shall purposely cause the death of another.” R.C. 2903.-02(A). The essential elements of murder, therefore, are (1) purposely (2) *628causing the death of another. These are the elements which, under Winship, the state must prove beyond a reasonable doubt.
The mitigating circumstances — which the majority treats as an affirmative defense — do negate an essential element of murder. When the defendant asserts that he knowingly killed while under the influence of “sudden passion or in a sudden fit of rage,” he necessarily disputes the prosecution’s assertion that he purposely killed. Requiring the defendant to prove mitigation forces him to negate the very element that separates murder from voluntary manslaughter — a purposeful intent. Instead of being a separate issue, the mitigating circumstances bear a direct relationship to the defendant’s purpose to kill. By forcing the defendant to disprove his purpose to kill, the state avoids its burden under Winship to prove every element of the crime beyond a reasonable doubt, and violates the defendant’s due process rights.
Ill
The issue in this case is whether the trial court properly instructed the jury with regard to voluntary manslaughter. The majority concludes that the trial court’s instructions were proper because the defendant bears the burden of proving, by a preponderance of the evidence, that he acted under the influence of “sudden passion or in a sudden fit of rage” in order to mitigate the defendant’s culpability from murder to voluntary manslaughter. The majority’s allocation of the burden of proof, however, creates a confusing and irreconcilable instruction for the jury.
In this case the trial court first instructed the jury to consider the charge of murder. In order to convict the defendant of murder, they were told, the prosecution must prove all the elements of a purposeful killing beyond a reasonable doubt. Next, the jury was instructed that it could consider the lesser offense of voluntary manslaughter. In order to convict the defendant of voluntary manslaughter the jury must find that the defendant proved mitigation by a preponderance of the evidence. Finally the trial court gave the following instruction:
“If you find that the state proved beyond a reasonable doubt that the defendant purposely caused the death of Annette Akins, * * * but you also find that the defendant proved by a preponderance [sic ] that he acted while under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite the defendant into using deadly force, then you must find the defendant guilty of voluntary manslaughter.”
In other words, the final instruction to the jury was to convict the defendant of voluntary manslaughter if the state proved a purposeful killing and if the *629defendant disproved a purposeful killing. With instructions like these, it is no wonder that the jury was confused and requested the trial court to clarify the murder, voluntary manslaughter, and involuntary manslaughter verdicts.
The voluntary manslaughter statute is poorly drafted and creates confusion regarding allocation of the burden of proof. By focusing on the state’s constitutionally mandated burden of proof, Winship, supra, the correct jury instructions emerge.
When a defendant is on trial for murder, but the trial court determines that there is sufficient evidence to warrant an instruction on voluntary manslaughter, the jury should be instructed to first consider the charge of murder. If the state proves a purposeful killing beyond a reasonable doubt, then the jury should convict the defendant of murder. If the jury has a reasonable doubt as to the purposeful killing (which acting under the influence of “sudden passion or in a sudden fit of rage” can provide), then the jury should find the defendant not guilty of murder and consider the lesser offense of voluntary manslaughter. "In considering voluntary manslaughter, the jury should focus on whether the state proved beyond a reasonable doubt that the defendant knowingly killed. R.C. 2903.03. The jury should be instructed that neither the state nor the defendant bears the burden of proving the mitigating circumstances.9 If the jury finds beyond a reasonable doubt that the defendant knowingly killed, the jury should convict the defendant of voluntary manslaughter.
Conclusion
The majority impermissibly shifts the burden to the defendant to disprove an essential element of murder in order to mitigate his culpability to the lesser offense of voluntary manslaughter. The majority reaches a decision that results in a serious violation of the defendant’s due process rights. The majority opinion also creates conflicting and confusing jury instructions. Accordingly, I dissent.
Moyer, C.J., and Douglas, J., concur in the foregoing dissenting opinion.. As the majority correctly states, Muscatello was decided while former R.C. 2901.05(A) was in effect, which placed only the burden of production, not the burden of persuasion, on a defendant asserting an affirmative defense. This fact alone, however, does not change our holding in Muscatello into what the majority would like.
. The New York statute at issue in Patterson provided in relevant part:
“A person is guilty of murder in the second degree when:
“1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:
“(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.” Patterson, supra, 432 U.S. at 198, 97 S.Ct. at 2321, 53 L.Ed.2d at 285, fn. 2.
. The majority correctly states that acting under the influence of “sudden passion or in a sudden fit of rage” is not an element of the crime of voluntary manslaughter that the state must prove. State v. Muscatello (1978), 55 Ohio St.3d 201, 9 O.O.3d 148, 378 N.E.2d 738, at paragraph one of the syllabus. The majority mistakenly concludes, however, that because the state does not prove mitigation, the defendant must prove it.