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Affirmative Defenses in General

Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office
R.C. 2901.05(A) -- On an affirmative defense the defendant bears both the burden of going forward with the evidence and the burden of proof by a preponderance of the evidence.
R.C. 2901.05(C) -- An affirmative defense is either: (1) designated by statute as such; 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."
  • Basics
  • Specific Defenses
State v. Pepin-McCaffrey, 186 Ohio App. 3d 548, 2010-Ohio-617 -- Intoxicated wife punched husband in the groin after he kicked their dog. At a bench trial the judge agreed with the prosecutor that self-defense required the filing of advance notice the defense will be raised. The judge blundered through self-defense in other ways. A dog may not be “another”, but it is personal property, and Ohio law recognizes defense of property. The judge also expressed the view the defense would ultimately be unable to meet its burden of proof on the defense and erroneously excluded evidence during the state's case.
Dixon v. United States (2006), 126 S.Ct. 2437 -- Jury instructions requiring the defendant to establish an affirmative defense by a preponderance of the evidence do not run afoul of the Due Process Clause of the Fourteenth Amendment. Federal defendant claiming duress was denied an instruction placing a burden to disprove on the government.
State v. Rose (2001), 144 Ohio App. 3d 58 -- Court was not obligated to instruct on the affirmative defense of personal use because the defendant denied possession of the drug. Chemist 's testimony that crack was in a form usually sold for personal use was not sufficient for the instruction.
Dayton v. Clark, Montgomery App. No. 19672, 2004-Ohio-162 -- An undercover officer approached the defendant who was in his car, on a cell phone, with the windows up. Ultimately the defendant said he would go home and return with the stated fee for oral sex, but instead went to another location where he was arrested. Majority finds the judge at a bench trial could reject the defendant 's claims of entrapment and that he was only joking. Dissenting judge notes entrapment as an affirmative defense only had to be proven by a preponderance of the evidence, and would reverse.
State v. Holmes, Franklin App. No. 03AP-787 -- Defendant 's unrebutted evidence in support of the affirmative defense of inability to pay the full support order leads to reversal on manifest weight claim, though the state 's evidence is deemed legally sufficient.
State v. V.F.W. Post 431, Montgomery App. No. 19892, 2004-Ohio-3566 -- A no contest plea waives the right to present an affirmative defense. Court had already rejected claim the affirmative defense had been established.
State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160, ¶33-38 -- Appellate review with respect to affirmative defenses is limited to manifest weight. Sufficiency review is based on due process. Proof supportive of an affirmative defense, here insanity, does not detract from proof beyond a reasonable doubt of acts constituting the charged offense, here capital murder. Also see State v. Roberts (2000), 139 Ohio App. 3d 757; State v. Cooper, 170 Ohio App. 3d 418, 2007-Ohio-1186 (self-defense).
Patterson v. New York (1977), 432 U.S. 197 -- If an affirmative defense does not negate any of the elements of an offense the state must prove in order to obtain a conviction, but only serves to excuse or reduce the degree of the offense, the Due Process Clause of the Fourteenth Amendment does not prevent the states requiring that the defendant prove the affirmative defense by a preponderance of the evidence. Also see Mullaney v. Wilbur (1975) 421 U.S. 684; Krzeminski v. Perini (6th Cir. 1980), 614 F. 2d 121.
Martin v. Ohio (1987), 480 U.S. 228 -- It is not a violation of due process for Ohio to place the burden of proving self defense, by a preponderance of the evidence, upon the accused.
State ex rel. Stern v. Mascio (1996), 75 Ohio St. 3d 422 -- Writ of prohibition granted to prevent judge from conducting a hearing on an affirmative defense asserted in conjunction with a no contest plea. At p. 424: "Although the trial court retains discretion to consider a defendant 's contention that the admitted facts do not constitute the charged offense, the defendant who pleads no contest waives the right to present additional affirmative factual allegations to prove that he is not guilty of the charged offense." Also see State v. Gilbo (1994), 96 Ohio App. 3d 332, 337.
State v. Melchior (1978), 56 Ohio St. 2d 15 -- Paragraph one of the syllabus: "The proper standard for determining in a criminal case whether a defendant has successfully raised an affirmative defense ... is whether the defendant has introduced sufficient evidence, which if believed, would raise a question in the minds of reasonable men concerning the existence of such issue."
Bucyrus v. Frawley (1988), 50 Ohio App. 3d 25 -- An instruction on an affirmative defense is required only if warranted by the evidence, when viewed in the manner most favorable to the defense.
State v. Osburn (1976), 52 Ohio App. 2d 146 -- The mere assertion of an affirmative defense does not preclude consideration of a lesser-included offense.
State v. Beasley (1983), 4 Ohio St. 3d 24, 26 -- "Affirmative defenses are never in point unless all the points of the state 's case are first shown."
Matthews v. United States (1988), 485 U.S. 58 -- The defendant in a federal criminal case may raise the defense of entrapment even though at the same time contesting proof of some of the elements of the offense charged. Though the rules of criminal procedure do not specifically authorize inconsistent pleading as do the civil rules, the intention was not to restrict criminal defendants as the plea of not guilty is sufficient to put the prosecution to it proof as to all elements and to raise the defense of entrapment.
State v. Frost (1979), 57 Ohio St. 2d 121 -- A statutory provision shifting the burden of proof to a defendant claiming an exemption under the securities laws does not violate the Due Process Clause of the Fourteenth Amendment.
State v. Rich (1982), 4 Ohio App. 3d 77 -- In a prosecution for sale to a minor, good faith reliance on spurious identification presented at time of sale ( R.C. 4301.639) is an affirmative defense on which the defendant both bears the burden of going forward with evidence and a burden of proof by a preponderance of the evidence.
Cincinnati v. Flannery, 176 Ohio App. 3d 181, 2008-Ohio-1437 – Iraq War protestors were arrested for criminal trespass hours after Congressman Chabot‘s office had closed. He was in D.C. They insisted he sign a document expressing support for a speedy end to the war. Necessity doesn‘t fly as a defense. ¶7: The harm the protestors sought to avoid was not a 'legal ' harm because the war was not shown to be illegal."
State v. Miller (1999), 134 Ohio App. 3d 649 -- Eighteen is the threshold at which the affirmative defense of reasonable parental discipline ceases to apply. Dissent would make defense coextensive with the duty to provide support.
State v. Holzwart, 151 Ohio App. 3d 417, 2003-Ohio-345 -- Father 's angry outburst and throwing a phone in reaction to disagreement among daughters and stepdaughters fell within reasonable parental discipline.
State v. LaFreniere (1993), 85 Ohio App. 3d 840, 848-850 -- Blackout is an affirmative defense on which the defendant bears the burden of proof by a preponderance of the evidence. While the term is usually synonymous with unconsciousness, it may also reach a state in which the individual cannot recall actions he did while he was conscious and functioning. When the issue is raised, an instruction is required, notwithstanding the court 's assessment of the defendant 's credibility. Also see 4 OJI 409.05; State v. Griffin (January 19, 1988) Franklin Co. App. No. 86AP-759, unreported (1988 Opinions 39).
State v. Hicks (1993), 88 Ohio App. 3d 515 -- Proper and reasonable parental discipline is an affirmative defense to domestic violence. A proper instruction is as follows: "The defendant has asserted an affirmative defense that she (he) was engaged in properly disciplining her (his) child at the time alleged. Nothing in the domestic violence statute prevents a parent from properly disciplining her (his) child. If you find by a preponderance of the evidence that the defendant was engaged in proper and reasonable parental discipline at the time, then you shall find the defendant not guilty. 'Proper, ' for purposes of this defense, means suitable or appropriate. 'Reasonable, ' for purposes of this defense, means not extreme or excessive."
State v. Hauenstein (1997), 121 Ohio App. 3d 511 -- Altercation between father and seventeen year old daughter was a part of argument over her use of a car. Court discusses parental discipline as an affirmative defense and finds it was established by the facts presented.
State v. Pecora (1993), 87 Ohio App. 3d 687, 690 -- "Ignorance or mistake of fact is a defense if it negates a mental state required to establish an element of a crime, except that if the defendant would be guilty of a crime under the facts as he believed them, then he may be convicted of that offense." Also see State v. Baker (1996), 111 Ohio App. 3d 313.
State v. Snowden (1982), 7 Ohio App. 3d 358 -- Headnote 3: "Mistake of fact can, in an appropriate circumstance, negate either the 'knowingly ' or 'purposely ' elements of specific intent crimes such as theft." Also see Farrell v. State (1877), 32 Ohio St. 456.
State v. Brumback (1996), 109 Ohio App. 3d 65, 74-75 -- Court did not err by refusing to give proposed instructions on the defense of mistake of fact (negating a specific intent crime) as instructions actually covered mistake of law, which is not recognized as a defense under Ohio law.
United States v. Moore (7th Cir. 1980), 627 F. 2d 830, 833 -- "The mistake of law defense is extremely limited and the mistake must be objectively reasonable." See United States v. Barker (C.A.D.C. 1976), 546 F. 2d 940, 948; United States v. Moore (4th Cir. 1986), 586 F. 2d 1029 1033.
State v. Apanovitch (1995), 107 Ohio App. 3d 82, 89 -- "Res judicata is an affirmative defense which must be raised in a responsive pleading or it is waived."
State v. Bonn (1995), 101 Ohio App. 3d 69 -- Defendant bore the burden of proof on the affirmative defense that, though her license was under suspension, she was returning from work within the exercise of her occupational driving privileges.
State v. Rogers (1975), 43 Ohio St. 2d 28 -- Syllabus: "The defense of using reasonable force to effect a citizen arrest is an affirmative defense and involves an allegation of excuse or justification which places the burden of going forward with the evidence upon the accused. ( R.C. 2901.05 construed.)"
State v. Young (1988), 37 Ohio St. 3d 249 -- The proper purposes exception set forth in the statute prohibiting pandering child pornography is an affirmative defense within the meaning of R.C. 2901.05(C)(2).
State v. Rhodes (1992), 63 Ohio St. 3d 613 -- Syllabus: "A defendant on trial for murder or aggravated murder bears the burden of persuading the fact finder, by a preponderance of the evidence, that he or she acted 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, R.C. 2903.03(A), in order for the defendant to be convicted of voluntary manslaughter rather than murder or aggravated murder. ( State v. Muscatello [1978], 55 Ohio St. 2d 201...construed and modified.)"
State v. Childs (May 31, 1984), Franklin Co. App. No. 83AP-1169, unreported (1984 Opinions 1398) -- For a defendant charged with having a weapon under a disability, proof of relief from that disability is an affirmative defense and not a matter for the state to disprove.