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55 Ohio St. 2d 251

State v. Abner

Ohio Supreme Court

Decided August 2, 1978

Ohio Supreme Court · decided 1978-08-02

Key passage — most relied on by later courts

“The state contends that this statute is only a partial codification of a principle of common law, and that the defendant retains the common law burden of proving self-defense by a preponderance of the evidence. We cannot agree with that contention. The assignment of the burden of going forward with evidence of an affirmative defense has acquired a well-recognized meaning in American jurisprudence, and there can be no substantial doubt that the General Assembly intended to adopt the majority rule. Every party who bears the burden of proof on an issue in the sense of the burden of persuasion, necessarily also bears the burden of going forward with the evidence, for the party will lose on that issue unless evidence is presented. If the General Assembly had wished to impose the burden of persuasion as well as the burden of going forward with the evidence, we may properly assume that they would have used language appropriate to do so. They could simply have provided that the defendant has the same burden of proof of affirmative defenses as the state has of making out a prima facie case, but they did not do so. The obvious meaning of R.C. 2901.05(A) is that the state bears the burden of proof beyond a reasonable doubt through the trial, and that the burden does not shift to the defendant. In order to raise an affirmative defense, which is now statutorily defined as either “a defense expressly designated as affirmative” or “a defense involving an excuse or justification peculiarly w”

quoted by 2 later decisions, including Thomas v. Arn, State v. Calderon, Unpublished Decision (1-30-2007)

“Once the affirmative defense of self-defense has been properly raised, the trier of fact must consider it and all the evidence in the case and if, after so doing, the trier entertains a reasonable doubt of the defendant’s guilt he must be acquitted. On the other hand, if the trier of fact considers all of the evidence in the case, including the properly raised affirmative defense of self-defense, and entertains no reasonable doubt of the defendant’s guilt, he must be convicted. State v. Chase (1978), 55 Ohio St.2d 237 , 378 N.E.2d 1064 . Therefore, where the defendant has gone forward with evidence of a nature and quality sufficient to raise the defense of self-defense, it is not error for a trial court to refuse a jury instruction that the state must prove beyond a reasonable doubt that the defendant did not act in self-defense.”

quoted by 2 later decisions, including Thomas v. Arn, State v. Calderon, Unpublished Decision (1-30-2007)

Relies on Chapman v. State of California · State v. Bayless · State v. Woods

Good law ✅— No negative treatment on recordhow we know

Decided 1978-08-02

How this case has been cited

Cited by 20 later decisions (2 by the Supreme Court) — most recently August 2018

6 federal appellate · 12 state decisions

9019781980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Herbert, J.

¶1Appellant states that in a criminal case wherein the defendant presents evidence of a nature and quality sufficient to raise the issue of self-defense, the trial court must instruct the jury that the prosecution bears the burden of proving, beyond a reasonable doubt, the absence of self-defense. We disagree.

¶2Appellant cites this court’s construction of R. C. 2901.-05(A) in State v. Robinson (1976), 47 Ohio St. 2d 103, 351 N. E. 2d 88. R. C. 2901.05 (A) provides:

¶3“Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused.”

¶4This court held in Robinsonthat in a criminal case involving the affirmative defense of self-defense, the defendant need only go forward with evidence of a nature and quality sufficient to raise this defense and does not have the burden of establishing it by a preponderance of the evidence. As indicated in Robinson, if it has been determined as a matter of law that the issue of self-defense has been properly presented, a trial court should instruct the jurors as to the elements of that defense. In such case, the trial court has no occasion to speak of the burden of proof other than to explain the prosecution’s burden of proving guilt beyond a reasonable doubt. The holding in Robinsondoes not mandate instruction that the prosecution must carry the burden of proving an absence of self-defense.2

¶5Once the affirmative defense of self-defense has been *254properly raised, the trier of fact must consider it and all the evidence in the ease and if, after so doing, the trier entertains a reasonable doubt of the defendant’s guilt he must be acquitted. On the other hand, if the trier of fact considers all of the evidence in the case, including the properly raised affirmative defense of self-defense, and entertains no reasonable doubt of the defendant’s guilt, he must be convicted. State v. Chase (1978), 55 Ohio St. 2d 237, 378 N. E. 2d 1064. Therefore, where the defendant has gone forward with evidence of a nature and quality sufficient to raise the defense of self-defense, it is not error for a trial court to refuse a jury instruction that the state must prove beyond a reasonable doubt that the defendant did not act in self-defense.

¶6Appellant contends also that a jury instruction charging that the defendant had the obligation to go forward with evidence sufficient to “convince” the jury that his defense of self-defense is valid places upon the defendant an impermissible burden and constitutes reversible error.

¶7The instant trial court instruction declared: “… [The defendant] simply has the obligation of raising the [self-defense] issue, and going forward with sufficient evidence to convince you that it was a valid defense.” We agree with the Court of Appeals that the last portion of this instruction was erroneous. This latter passage (“and going forward with sufficient evidence to convince you that it was a valid defense”) relates to a legal issue for determination by the trial judge.

¶8Nevertheless, upon our examination of the record we agree further with the Court of Appeals that this was not reversible error under the facts of the cause at bar. We are not persuaded upon this record, and in light of the court’s complete charge, that the jury was misled to appellant’s prejudice. Chapman v. California (1967), 386 U. S. 18, and State v. Bayless (1976), 48 Ohio St. 2d 73, 106, 357 N. E. 2d 1035. Contrary to appellant’s conclusion, the charge did not require him to bear the burden of producing such convincing proof as to demonstrate his self-defense beyond a reasonable doubt.

¶9*255The judgment of the Court of Appeals is affirmed.

¶10Judgment affirmed.

Celebrezze, P. Brown and Sweeney, JJ., concur.Locher, J., concurs in the judgment only.O’Neill, C. J., and W. Brown, J., concur in the syllabus but dissent from the judgment.

¶11 In addition to State v. Robinson (1976), 47 Ohio St. 2d 103, 351 N. E. 2d 88, appellant relies upon dicta found in State v. Woods (1976), 48 Ohio St. 2d 127, 135, 357 N. E. 2d 1059, and State v. Humphries (1977), 51 Ohio St. 2d 95, 101, 364 N. E. 2d 1354. The holding in none of these cases requires the result sought by appellant.

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