[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Ireland, Slip Opinion No. 2018-Ohio-4494.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2018-OHIO-4494
             THE STATE OF OHIO, APPELLANT, v. IRELAND, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Ireland, Slip Opinion No. 2018-Ohio-4494.]
Criminal law—Affirmative defenses—Trial court did not create unconstitutional
        shift of state’s burden to prove all elements of offense beyond reasonable
        doubt when court required defendant-appellee to prove his blackout defense
        by a preponderance of evidence—Court of appeals’ reversal of appellee’s
        conviction reversed and cause remanded.
    (No. 2017-0344—Submitted April 11, 2018—Decided November 8, 2018.)
     APPEAL from the Court of Appeals for Franklin County, No. 15AP-1134,
                                       2017-Ohio-263.
                                    ________________
        FISCHER, J.
        {¶ 1} In this case, we are presented with the issue whether the defense of
blackout is an affirmative defense that must be proved by the defendant by a
preponderance of the evidence. We conclude that blackout is an affirmative
                              SUPREME COURT OF OHIO




defense pursuant to R.C. 2901.05(D)(1)(b) and that requiring a defendant to prove
this affirmative defense by a preponderance of the evidence does not violate the
defendant’s right to due process. Accordingly, we reverse the judgment of the
Tenth District Court of Appeals and remand the cause to that court for consideration
of the remaining assignments of error.
                          I. PROCEDURAL HISTORY
       {¶ 2} The Franklin County Grand Jury indicted appellee, Darin K. Ireland,
on one count of felonious assault in violation of R.C. 2903.11. Ireland pleaded not
guilty, and the case proceeded to a jury trial.
       {¶ 3} During trial, Ireland called James P. Reardon, Ph.D., a forensic
psychologist, as an expert witness. Prior to trial, but after the incident, Dr. Reardon
had diagnosed Ireland with posttraumatic stress disorder (“PTSD”). Dr. Reardon
opined that Ireland had experienced “a dissociative episode” due to his PTSD and
that Ireland’s “consciousness, his memory, his decision-making capability for those
instants, those moments, [were] compromised.” Dr. Reardon asserted that Ireland
was “acting automatically in a dissociative episode.”
       {¶ 4} Ireland argued that Dr. Reardon’s testimony supported his request for
the following blackout instruction:


               BLACKOUT: Where a person commits an act while
       unconscious as in a blackout due to disease or injury, such an act is
       not a criminal offense even though it would be a crime if such act
       were the product of the person’s volition.
               If you have a reasonable doubt whether the defendant was
       conscious at the time of such act, you must find that he is not guilty.
       If you find that the defendant was conscious, such finding does not
       relieve the state of its burden of establishing by the required weight
       of the testimony that the act was knowingly committed.




                                           2
                                January Term, 2018




(Capitalization and boldface sic.)
       {¶ 5} The state objected to Ireland’s request for the blackout jury
instruction, arguing that the instruction was not warranted. The state asserted that
Ireland may have been voluntarily intoxicated at the time of the incident and that a
blackout defense was therefore precluded. The state argued that if the trial court
did provide the jury with a blackout instruction, the instruction should state that
blackout is an affirmative defense. Ireland objected and argued that it would be
improper to instruct the jury that the defendant had the burden of proving the
blackout defense, because the standard jury instruction on the blackout defense
does not include affirmative-defense language and the blackout defense specifically
addresses the concept of criminal liability under R.C. 2901.21. See Ohio Jury
Instructions, CR Section 417.07 (2008).          Ireland maintained that the two
instructions could not be reconciled.
       {¶ 6} The trial court gave the jury the standard blackout instruction but first
instructed the jury that blackout is an affirmative defense:


               The burden of going forward with the evidence of blackout
       and the burden of proving an affirmative defense is upon the
       defendant. He must establish such a defense by a preponderance of
       the evidence.
               ***
               If the defendant fails to establish the defense of blackout, the
       State still must prove to you beyond a reasonable doubt all the
       elements of the crime charged.
               Where a person commits an act while [unconscious], as in a
       coma, blackout, or convulsion due to heart failure, disease, sleep, or




                                          3
                             SUPREME COURT OF OHIO




       injury, such an act is not a criminal offense even though it would be
       a crime if such act were the product of a person’s will or volition.
               If you have a reasonable doubt whether the defendant was
       conscious at the time of such act, you must find that he is not guilty.
       If you find that the defendant was conscious, such finding does not
       relieve the State of its burden of establishing by the required weight
       of the testimony that the act was knowingly committed.
               ***
               Reflexes,     convulsions,       body   movements       during
       unconsciousness or sleep and body movements that are not
       otherwise a product of the act’s [sic, actor’s] will or volition are
       involuntary acts.


       {¶ 7} After deliberations, the jury found Ireland guilty of felonious assault.
The trial court sentenced Ireland to six years of imprisonment.
       {¶ 8} Ireland appealed, raising five assignments of error. He first asserted
that the trial court committed structural error by instructing the jury that blackout
is an affirmative defense. Addressing Ireland’s structural-error argument, the state
argued that blackout is an affirmative defense and that the trial court properly
instructed the jury that Ireland had the burden of proving his blackout defense by a
preponderance of the evidence.
       {¶ 9} The Tenth District Court of Appeals held that the trial court
committed structural error by instructing the jury that Ireland had the burden of
proving his blackout defense. The appellate court determined that pursuant to the
plain language of R.C. 2901.21(A), voluntariness is an essential element of a
criminal offense. “[H]aving found that the state constitutionally bears the burden
of proving beyond a reasonable doubt that the defendant engaged in a voluntary
act,” the court could not “agree that the defendant must prove by a preponderance




                                            4
                               January Term, 2018




of the evidence that his or her actions were involuntary.” 2017-Ohio-263, __
N.E.3d __, ¶ 39. The appellate court further determined that Ireland’s blackout
defense was not an affirmative defense because the “issue of voluntariness is not
an excuse or justification,” id. at ¶ 40, and “a defense challenging voluntariness
does not involve evidence peculiarly within the knowledge of the accused,” id. at
¶ 41. The appellate court reversed Ireland’s conviction and deemed his remaining
assignments of error moot.
       {¶ 10} The state appealed, and we accepted review of the state’s sole
proposition of law: “The defense of blackout or automatism is an affirmative
defense that must be proven by a defendant by a preponderance of the evidence,
because it involves an excuse or justification peculiarly within the knowledge of
the accused, on which the accused can fairly be required to adduce supporting
evidence.” See 150 Ohio St.3d 1451, 2017-Ohio-8136, 83 N.E.3d 938.
                                 II. ANALYSIS
       {¶ 11} In this case, we are presented with three issues: (1) Under R.C.
2901.05(D)(1)(b), is “blackout” an affirmative defense that the defendant must
prove by a preponderance of the evidence? (2) Pursuant to R.C. 2901.21(A), is
voluntariness an essential element of a criminal offense? And (3) does requiring
the defendant to prove an affirmative defense that also challenges the state’s
evidence that the act was voluntary shift the burden of proof from the state to the
defendant in violation of the defendant’s right to due process? Because these issues
are questions of law, we conduct a de novo review. See State v. Codeluppi, 139
Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 9.
                               A. Defense at Issue
       {¶ 12} As an initial matter, it is helpful to determine which defense is at
issue in this case. The state’s proposition of law uses the term “automatism.”
Ireland first introduced the term “automatism” in his brief to the Tenth District
Court of Appeals. Ireland used the term “automatism” interchangeably with the




                                         5
                             SUPREME COURT OF OHIO




term “unconsciousness” and argues that the two terms are synonymous. The
appellate court appears to have implicitly adopted Ireland’s interchangeable usage.
See 2017-Ohio-263, __ N.E.3d __, at ¶ 27 and fn. 4.
       {¶ 13} Ireland, however, did not assert “automatism” as a defense at the
trial level, and the term does not appear in R.C. 2901.05 or in the jury instruction
provided by the trial court. Regardless of whether “automatism” is synonymous
with “unconsciousness,” the defense of blackout and the instructions relating to
blackout are the only issues before this court. To the extent that an automatism
defense is distinct from the blackout defense, arguments regarding an automatism
defense are not properly before us at this time.
                      1. R.C. 2901.05(D)(1)(b) and blackout
       {¶ 14} Under Ohio law, an affirmative defense is either a “defense
expressly designated as affirmative,” R.C. 2901.05(D)(1)(a), or a “defense
involving an excuse or justification peculiarly within the knowledge of the accused,
on which the accused can fairly be required to adduce supporting evidence,” R.C.
2901.05(D)(1)(b). The General Assembly did not expressly designate blackout as
an affirmative defense; thus, R.C. 2901.05(D)(1)(a) is not at issue in this case.
       {¶ 15} The court of appeals reversed Ireland’s conviction partly because it
determined that blackout does not meet the definition of “affirmative defense”
provided in R.C. 2901.05(D)(1)(b).
       {¶ 16} The state contends that Ireland’s defense is not actually blackout but
the functional equivalent of a “diminished capacity” defense, which Ohio does not
recognize as a valid defense. See State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-
936, 883 N.E.2d 1052, ¶ 66 (“Our jurisprudence definitively states that the partial
defense of diminished capacity is not recognized in Ohio”). However, the state did
not object on this basis in the trial court. The state had “no objection” to Ireland’s
calling Dr. Reardon as an expert witness, affirmatively told the trial court that it
was not requesting that the court strike Dr. Reardon’s testimony, and agreed that




                                          6
                                  January Term, 2018




there was “no objection to anything on the standards.” The state did object to the
defense-proposed blackout instruction, even as an affirmative defense, only
because it argued that there was no evidence that Ireland had blacked out. The state
also did not argue in the court of appeals that Ireland was presenting the equivalent
of a diminished-capacity defense. The state’s actions go beyond a simple forfeiture
of the argument that Ireland raised a diminished-capacity defense. See State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21 (forfeiture is
the failure to timely assert a right or object to an error). The state, at the trial level,
intentionally declined to assert any argument beyond the argument that blackout
was not supported by the evidence; therefore, the state waived the argument that
Ireland’s blackout defense was actually a diminished-capacity defense. See id. at
¶ 20 (waiver is the intentional relinquishment or abandonment of a known right).
Thus, we will not address the state’s argument regarding diminished capacity in
this case. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19
N.E.3d 900, ¶ 15-16; United States. v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770,
123 L.Ed.2d 508 (1993) (“Mere forfeiture, as opposed to waiver, does not
extinguish an ‘error’ * * * ”).
        {¶ 17} The state further argues that the appellate court’s conclusion was in
error because blackout is an excuse or justification that is peculiarly within the
knowledge of the accused in support of which the accused can fairly be required to
adduce evidence. The state supports its argument by citing decisions of several
Ohio appellate courts, e.g., State v. LaFreniere, 85 Ohio App.3d 840, 848-849, 621
N.E.2d 812 (11th Dist.1993); State v. Mobley, 5th Dist. Richland No. 2010-CA-
0018, 2011-Ohio-309, ¶ 40-45, that treated blackout as an affirmative defense.
        {¶ 18} Ireland argues that his blackout defense is a “failure of proof”
defense and supports this argument by citing various out-of-state decisions and
several treatises, e.g., State v. Hinkle, 200 W.Va. 280, 286, 489 S.E.2d 257 (1996);
2 Wayne R. LaFave, Substantive Criminal Law, Section 9.4(b) (3d Ed.2017);




                                            7
                               SUPREME COURT OF OHIO




Joshua Dressler, Understanding Criminal Law 93-94 (7th Ed.2015). Ireland argues
that the standard jury instruction on the blackout defense supports his argument that
blackout is not an affirmative defense; Ireland notes that the jury instruction does
not contain any reference to affirmative defenses. See Ohio Jury Instructions, CR
Section 417.07.
          {¶ 19} While the caselaw from other states, criminal-law treatises, and other
educational sources may help one to understand the various public-policy
arguments regarding why blackout should or should not be considered an
affirmative defense, these authorities are not helpful to our analysis. We are bound
by the language of R.C. 2901.05(D)(1)(b) and must determine whether the defense
of blackout meets the requirements of the statute: (1) an excuse or justification that
is (2) peculiarly within the knowledge of the accused and (3) on which the accused
can fairly be required to adduce supporting evidence.
                2. Application of R.C. 2901.05(D)(1)(b) requirements
          {¶ 20} In analyzing whether blackout constitutes an affirmative defense, we
must first determine whether blackout is an “excuse” or “justification”; we
conclude that blackout is an excuse. The General Assembly did not define “excuse”
or “justification” in the Ohio Revised Code. Thus, those terms are “to be accorded
[their] common, everyday meaning.” State v. Dorso, 4 Ohio St.3d 60, 62, 446
N.E.2d 449 (1983). Black’s Law Dictionary defines “excuse” as a “reason that
justifies an act or omission or that relieves a person of a duty” or a “defense that
arises because the defendant is not blameworthy for having acted in a way that
would otherwise be criminal.” Black’s Law Dictionary 688 (10th Ed.2014).
“[J]ustification” is defined as a “lawful or sufficient reason for one’s acts or
omissions; any fact that prevents an act from being wrongful” or a “showing, in
court, of a sufficient reason why a defendant acted in a way that, in the absence of
the reason, would constitute the offense with which the defendant is charged.” Id.
at 997.




                                            8
                                January Term, 2018




       {¶ 21} The trial court provided the jury with the standard instruction on the
blackout defense: “Where a person commits an act while [unconscious], as in a
coma, blackout, or convulsion due to heart failure, disease, sleep, or injury * * *.”
(Emphasis added.) See Ohio Jury Instructions, CR Section 417.07. A blackout as
a result of any one of the listed causes—heart failure, disease, sleep, or injury—is
a reason used to explain why a defendant acted in certain manner. A blackout is a
defense that arises because the defendant is not blameworthy for having acted in a
way that would otherwise be criminal. Therefore, blackout meets the definition of
“excuse.”
       {¶ 22} A blackout excuse is “peculiarly within the knowledge of the
accused,” satisfying the second requirement of R.C. 2901.05(D)(1)(b), because
only the accused could know or be able to describe his or her feelings and
experiences during the alleged blackout.
       {¶ 23} As for the third and final requirement of R.C. 2901.05(D)(1)(b), a
defendant presenting a blackout defense can fairly be required to adduce evidence
supporting the excuse. The accused will be aware of the circumstances surrounding
his or her blackout and will not be disadvantaged if required to relay his or her
version of events to the fact-finder. See State v. Doran, 5 Ohio St.3d 187, 193, 449
N.E.2d 1295 (1983) (it is not unfair to require the accused to adduce evidence
supporting his alleged lack of predisposition to commit the charged offenses, in
support of his affirmative defense of entrapment). The defendant can fairly be
required to adduce evidence supporting his or her excuse in part because the
defendant can (1) present the testimony of an expert witness, (2) call a lay witness,
or (3) testify on his or her own behalf.
       {¶ 24} Because the blackout defense meets all three requirements of R.C.
2901.05(D)(1)(b), we conclude that blackout is an affirmative defense.
       {¶ 25} In this case, Ireland’s blackout defense met all three requirements
under R.C. 2901.05(D)(1)(b). Ireland’s alleged PTSD dissociative episode fits




                                           9
                             SUPREME COURT OF OHIO




squarely within the definition of “excuse” as either a disease or an injury that
justifies Ireland’s actions in this case. Ireland’s alleged PTSD dissociative episode
was also “peculiarly within [his] knowledge.” Only Ireland knows whether he was
aware of the actions he took at the time of the incident; Ireland is the only person
who could know the way that he felt and what he experienced during the alleged
PTSD dissociative episode. Despite this, there were numerous ways in which
Ireland could support his blackout defense, none of which are unfair to Ireland.
Ireland used the testimony of an expert witness, Dr. Reardon, to demonstrate that
Ireland had experienced a PTSD dissociative episode during his altercation with the
victim. Therefore, Ireland’s alleged blackout caused by a PTSD dissociative
episode is, pursuant to R.C. 2901.05(D)(1)(b), an affirmative defense because it is
an excuse peculiarly within his knowledge in support of which he could fairly be
required to adduce evidence.
          {¶ 26} Ireland’s blackout defense, therefore, is not a failure-of-proof
challenge—it is an affirmative defense that would allow Ireland to avoid liability
even if the state produced sufficient evidence to support a conviction.
                                 B. Voluntary Act
          {¶ 27} The General Assembly enacted R.C. 2901.21(A), modeled after
Section 2.01(1) of the Model Penal Code (1962), to “codify the fundamental
distinction between criminal misconduct on the one hand, and innocent conduct or
accident on the other—that, generally, a person is not guilty of a criminal offense,
unless he not only did a prohibited act, but had a certain guilty state of mind when
he did it.” Ohio Legislative Service Commission, Proposed Ohio Criminal Code:
Final Report of the Technical Committee to Study Ohio Criminal Law and
Procedures 40 (1971).
          {¶ 28} R.C. 2901.21(A), the criminal-liability-and-culpability statute,
states:




                                         10
                                  January Term, 2018




                 Except as provided in division (B) of this section, a person
          is not guilty of an offense unless both of the following apply:
                 (1) The person’s liability is based on conduct that includes
          either a voluntary act, or an omission to perform an act or duty that
          the person is capable of performing;
                 (2) The person has the requisite degree of culpability for
          each element as to which a culpable mental state is specified by
          the language defining the offense.


(Emphasis added.)
          {¶ 29} The court of appeals, in this case, held that voluntariness is an
element of every criminal offense pursuant to R.C. 2901.21(A). The state argues
that the prosecution should not be required to prove that the defendant was not in a
blackout state, and that the appellate court’s interpretation adds an additional
element, beyond the actus reus and mens rea, for the state to prove. The state adds
that voluntariness is not an element.
          {¶ 30} “When construing a statute, we first examine its plain language and
apply the statute as written when the meaning is clear and unambiguous.”
MedCorp, Inc. v. Dept. of Job & Family Servs., 121 Ohio St.3d 622, 2009-Ohio-
2058, 906 N.E.2d 1125, ¶ 9. We must give effect to the words used, refraining
from inserting or deleting words. Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio
St.3d 50, 53-54, 524 N.E.2d 441 (1988). “ ‘No part [of the statute] should be treated
as superfluous unless that is manifestly required, and the court should avoid that
construction which renders a provision meaningless or inoperative.’ ” (Brackets
sic.) State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio
St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 19, quoting State ex rel. Myers v.
Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516
(1917).




                                            11
                             SUPREME COURT OF OHIO




       {¶ 31} Because R.C. 2901.21(A) is clear and unambiguous, we apply the
statute as written. This court has noted that “every criminal offense is made up of
(1) a voluntary act or a failure to act when there is a duty and (2) a culpable mental
state for each element that specifies a mental state.” (Emphasis added.) State v.
Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, ¶ 16, citing R.C.
2901.21(A); see also State v. Nucklos, 121 Ohio St.3d 332, 2009-Ohio-792, 904
N.E.2d 512, ¶ 6, quoting R.C. 2901.21(A) (“In a criminal case, the state must prove
that the accused engaged in ‘a voluntary act * * *’ with the ‘requisite degree of
culpability’ for each element of the alleged offense in order to obtain a conviction”).
As written, R.C. 2901.21(A) provides that for a person to be found guilty of a
criminal offense, the person must have voluntarily committed a criminal act. We
cannot ignore the fact that the word “voluntary” appears in the criminal-liability-
and-culpability statute.
       {¶ 32} The state argues that interpreting R.C. 2901.21(A) as including
voluntariness as something that the state must prove imposes a new, additional
burden on the state. We disagree.
       {¶ 33} Voluntariness is not an essential element of the offense such that it
must be charged in the indictment or addressed in the trial court’s jury instructions,
even if the need for the act to be voluntarily committed is stated in the statutory
scheme; rather, a challenge to voluntariness is a defense. This conclusion is
supported by the General Assembly’s decision to define “voluntary act” in the
negative: “[r]eflexes, convulsions, body movements during unconsciousness or
sleep, and body movements that are not otherwise a product of the actor’s volition,
are involuntary acts,” R.C. 2901.21(F)(2). Thus, while the state is required to
present evidence that the defendant committed the criminal act voluntarily, and
while the jury can weigh the state’s evidence against the defendant’s counter
evidence, the defendant is nonetheless required to prove excuses that are peculiarly




                                          12
                                January Term, 2018




within his knowledge in support of which he could fairly be required to adduce
evidence by a preponderance of the evidence.
       {¶ 34} Under the plain language of R.C. 2901.21(A)(1), the state must
prove that the defendant acted voluntarily when committing a criminal act, but
proof of the actus reus and mens rea is necessarily also evidence that the defendant
acted voluntarily. Thus, the requirement that the state prove that the defendant
acted voluntarily is not an additional element or burden on the state.
                                  C. Due Process
       {¶ 35} Ireland argues that the trial court requiring him to prove his blackout
defense by a preponderance of the evidence created an unconstitutional shift of the
state’s burden to prove all elements of the offense beyond a reasonable doubt.
Ireland argues that this alleged burden shift violated his right to due process under
the United States and Ohio Constitutions and violated the prohibition against cruel
and unusual punishments contained in the Eighth Amendment to the United States
Constitution. Because Ireland did not assert an Eighth Amendment challenge in
the trial court or in the court of appeals, we do not address that argument. See
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 15.
       {¶ 36} The state argues that the General Assembly, as with the defenses of
insanity and self-defense, may place the burden of persuasion on the defendant to
prove an R.C. 2901.05(D)(1)(b) affirmative defense by a preponderance of the
evidence. Relying on Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d
267 (1987), the state further argues that “it is constitutional to place the burden of
persuasion on a defendant claiming a total mental incapacity to act voluntarily.”
       {¶ 37} In this case, we conduct a single analysis to address Ireland’s due-
process argument under the United States Constitution and the Ohio Constitution.
While the Ohio Constitution is a document of independent force, Arnold v.
Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the syllabus,
the Due Course of Law Clause of Article I, Section 16 of the Ohio Constitution is




                                         13
                             SUPREME COURT OF OHIO




more often than not considered the functional equivalent of the Due Process Clause
of the Fourteenth Amendment to the United States Constitution, State v. Aalim, 150
Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 15. But see Simpkins v. Grace
Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, 75
N.E.3d 122, ¶ 34 (lead opinion) (noting that this court departed from the general
rule in State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶ 23-
24). At this time, we see no reason, and Ireland provides no reason or caselaw to
persuade us, to depart from the general rule that the Due Course of Law Clause of
the Ohio Constitution and the Due Process Clause of the United States Constitution
provide the same degree of protection in this particular case. Therefore, in this
case, we apply the general rule to address Ireland’s due-process argument.
       {¶ 38} The Due Process Clause of the Fourteenth Amendment to the United
States Constitution protects the defendant from conviction except upon proof
beyond a reasonable doubt of “all of the elements included in the definition of the
offense of which the defendant is charged.” Patterson v. New York, 432 U.S. 197,
210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); accord see In re Winship, 397 U.S. 358,
364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Speiser v. Randall, 357 U.S. 513, 526,
78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). The United States Supreme Court has
recognized that the state has the power to “ ‘regulate procedures under which its
laws are carried out, including the burden of producing evidence and the burden of
persuasion,’ and its decision in this regard is not subject to proscription under the
Due Process Clause unless ‘it offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental.’ ”
Patterson at 201-202, quoting Speiser at 523 and Snyder v. Massachusetts, 291 U.S.
97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934), respectively.
       {¶ 39} As we determined above, voluntariness is not an essential element
of felonious assault—the General Assembly defined “voluntary act” in the nature
of a defense and chose not to include voluntariness in R.C. 2903.11(A). Therefore,




                                         14
                                 January Term, 2018




because voluntariness is not an essential element of felonious assault, we reject
Ireland’s argument asserting a due-process violation based on an unconstitutional
burden shift of an essential element of the offense.
       {¶ 40} But assuming arguendo that the trial court did require Ireland to
prove an affirmative defense that tended to negate part of an element of the offense,
Ireland still has not demonstrated a due-process violation. While the Due Process
Clause prohibits states from requiring an accused to disprove an element of the
crime charged, see Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44
L.Ed.2d 508 (1975), a state does not violate the Due Process Clause by requiring
the defendant to prove an affirmative defense by a preponderance of the evidence,
even when the evidence used to prove the affirmative defense might also negate an
element of the offense at issue, see Leland v. Oregon, 343 U.S. 790, 798-800, 72
S.Ct. 1002, 96 L.Ed. 1302 (1952) (Oregon statute that required the accused to
establish an insanity defense beyond a reasonable doubt did not violate the federal
Due Process Clause); Patterson at 205-207 (New York law requiring that the
defendant in a prosecution for second-degree murder prove by a preponderance of
the evidence the affirmative defense of extreme emotional disturbance in order to
reduce the crime to manslaughter did not violate the federal Due Process Clause);
Martin, 480 U.S. at 233, 107 S.Ct. 1098, 94 L.Ed.2d 267 (Ohio law that required
the defendant to prove self-defense by a preponderance of the evidence did not
violate the federal Due Process Clause).
       {¶ 41} The statutes at issue, R.C. 2903.11(A) and 2901.05(A), do not
require the defendant to negate any element of the offense of felonious assault.
Rather, the General Assembly has provided that if the defendant presents a defense
meeting the requirements listed in R.C. 2901.05(D)(1)(b) to be considered an
affirmative defense, the defendant has the burden to prove the defense by a
preponderance of the evidence.




                                           15
                             SUPREME COURT OF OHIO




       {¶ 42} As demonstrated in this case, the trial court correctly assigned the
burdens of the parties and emphasized that the state had the burden to prove all
elements of the offense beyond a reasonable doubt.           The court specifically
instructed the jury that the state had the burden to prove every element beyond a
reasonable doubt: “The defendant must be acquitted of an offense unless the State
produces evidence which convinces you beyond a reasonable doubt of every
essential element of the offense.” The court further instructed, “Before you can
find the defendant guilty of felonious assault, you must find beyond a reasonable
doubt that * * * the defendant knowingly caused serious physical harm to [the
victim].”
       {¶ 43} The trial court also instructed the jury, “If the defendant fails to
establish the defense of blackout, the State still must prove to you beyond a
reasonable doubt all the elements of the crime charged.”
       {¶ 44} The trial court properly instructed the jury that Ireland must prove
his defense by a preponderance of the evidence; the trial court also properly
instructed the jury that even if Ireland did not prove his defense by a preponderance
of the evidence, the jury must determine whether the state proved each of the
elements of felonious assault beyond a reasonable doubt.
       {¶ 45} “The jury is presumed to have followed the court’s instructions.”
State v. Jones, 91 Ohio St.3d 335, 344, 744 N.E.2d 1163 (2001). Hence, the trial
court’s instructions to the jury did not shift to Ireland the state’s burden to prove
each element of felonious assault beyond a reasonable doubt.
       {¶ 46} Furthermore, so long as the state retains the burden to prove every
essential element of the offense beyond a reasonable doubt, the defendant’s due-
process rights are not violated when the defendant is required to prove an
affirmative defense by a preponderance of the evidence and the evidence presented
by the defendant in support of the affirmative defense also attacks the state’s case-
in-chief. See Martin, 480 U.S. at 239, 107 S.Ct. 1098, 94 L.Ed.2d 267 (Powell, J.,




                                         16
                                 January Term, 2018




dissenting) (“The Court * * * seems to conclude that as long as the jury is told that
the state has the burden of proving all elements of the crime, the overlap between
the offense and defense is immaterial”). The trial court instructed the jury that the
“evidence is all the testimony received from the witnesses, the exhibits admitted
during the trial, and the facts agreed to by counsel” and that the jury is “the sole
judge of the facts, the credibility of the witnesses, and the weight of the evidence.”
The jury was not instructed that it could consider Ireland’s evidence only for
Ireland’s defense—the jury was instructed to consider all the evidence, weigh the
evidence, and determine whether the state had met its burden beyond a reasonable
doubt.
         {¶ 47} Under Martin, the trial court’s instructions did not violate Ireland’s
due-process rights because the jury was correctly instructed that the state had the
burden to prove all elements of the offense beyond a reasonable doubt and because
the evidence presented by Ireland that he blacked out went to both challenging the
state’s case-in-chief and supporting Ireland’s affirmative defense.
         {¶ 48} Because voluntariness is not an essential element of felonious assault
and the trial court properly instructed the jury that the state had the burden of
proving each element of the offense beyond a reasonable doubt, the trial court did
not shift to Ireland the state’s burden to prove an essential element of the offense
charged. We conclude that no due-process violation occurred under either the Ohio
Constitution or the United States Constitution and that the trial court did not commit
error.
                                III. CONCLUSION
         {¶ 49} We conclude that blackout constitutes an affirmative defense as
defined in R.C. 2901.05(D)(1)(b). While the evidence used to assert a blackout
affirmative defense pursuant to R.C. 2901.05(D)(1)(b) may overlap with the
evidence used to challenge the state’s case-in-chief, this overlap does not create an
impermissible burden shift and does not violate the defendant’s right to due process.




                                          17
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Therefore, we reverse the judgment of the Tenth District Court of Appeals and
remand the cause to that court for consideration of Ireland’s remaining assignments
of error.
                                                                 Judgment reversed
                                                               and cause remanded.
        O’DONNELL, J., concurs.
        DEGENARO, J., concurs in judgment only, with an opinion joined by
FRENCH, J.
        O’CONNOR, C.J., concurs in judgment only.
        KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
                               _________________
        DEGENARO, J., concurring in judgment only.
        {¶ 50} I concur in the court’s judgment reversing the judgment of the Tenth
District Court of Appeals, which held that the trial court committed structural error
by instructing the jury that “blackout” was an affirmative defense. I would reverse
the Tenth District’s judgment because its holding was premised on the incorrect
notion that the trial court used “blackout” in appellee Darin Ireland’s specific case
to connote an unconscious, involuntary act as contemplated in R.C. 2901.21(A)(1)
and (F)(2). In the actual context of Ireland’s case, the term “blackout” was used as
a placeholder for his insanity-related defense.
        {¶ 51} Because Ireland’s case did not actually involve an unconsciousness
claim under R.C. 2901.21, his argument in the Tenth District regarding the proper
burden of proof for such a claim was hypothetical and solicited an advisory opinion.
We provide no service to trial judges and litigants in Ohio by issuing our own
advisory opinion about the burden of proof that would apply to a defense that was
not substantively part of Ireland’s jury charge. I respectfully disagree with the
premise of both the lead opinion and the dissent that we should reach the question
of what burden of proof would apply to an unconsciousness claim.




                                         18
                                January Term, 2018




       {¶ 52} The factual and procedural context of Ireland’s case reveals the
nature of his defense and the way in which it was able to reach the jury. Ireland
was charged with felonious assault after he severely beat Drew Coen in the parking
lot of a bar. During the discovery process, Ireland provided the state with a
forensic-psychological-examination report prepared by forensic psychologist
James Reardon, Ph.D., who opined that Ireland suffered from posttraumatic stress
disorder (“PTSD”) and dissociative episodes.
       {¶ 53} The state filed three motions in response, arguing that either
Ireland’s evidence should be excluded as unfairly prejudicial pursuant to Evid.R.
403 or else the state should be given the opportunity for rebuttal by conducting its
own psychological evaluation and/or presenting other-acts evidence pursuant to
Evid.R. 404(B) (evidence of other acts may be admitted to prove motive, intent, or
absence of mistake or accident). Although the state pointed out that Ireland’s
defense was akin to an insanity defense, the state did not argue that Ireland was
attempting to present an impermissible diminished-capacity defense. Further, the
state was not successful in its motions.
       {¶ 54} At trial, the state presented evidence that Ireland spent a portion of
the evening leading up to the assault at a local neighborhood bar, where he was a
regular customer. At approximately 1:00 a.m., Ireland was among a group of
people who were smoking and chatting outside the entrance to the bar. Coen was
leaving the bar at that time, when Ireland’s friend, Tyler Thrash, attacked Coen and
put him in a choke hold.
       {¶ 55} Ireland helped to pull Thrash away, admonishing him to get off of
Coen. But after Thrash indicated that Coen had inappropriately touched Ireland’s
wife, Ireland himself began to attack Coen, saying, “Whose woman did you touch?
You touched my woman?” Ireland proceeded to knock Coen unconscious and then
kicked and stomped on Coen’s head over the course of five to ten minutes. Ireland’s
many blows caused serious damage, breaking Coen’s nose, jaw, and orbital bone.




                                           19
                             SUPREME COURT OF OHIO




       {¶ 56} Because of immediate medical attention, Coen survived the assault.
During Coen’s initial hospitalization, surgeons wired his jaw shut and installed
three metal plates, along with brackets and screws, to allow the bones of his skull
to fuse back together. He underwent two additional surgeries over the following
six months. He slowly recovered from blurred vision, vertigo, and damage to his
knee over the year following the assault. The nerve damage to his face, though,
was permanent.
       {¶ 57} The sole witness called by the defense was Dr. Reardon, the forensic
psychologist who had evaluated Ireland in preparation for trial. Reardon opined
that Ireland had PTSD with dissociative symptoms as well as an alcohol-use
disorder with probable alcoholic blackouts. Reardon explained that a dissociative
episode “is an alteration in consciousness, memory, and the ability to make * * *
rational decisions,” during which a person acts “habitually” rather than
“consciously.” Reardon distinguished a dissociative episode from an alcoholic
blackout by explaining that a dissociated person is generally in a state of
“hyperarousal” whereas a person experiencing an alcoholic blackout can range
from apparently functioning to “completely out, literally blacked out, passed out.”
       {¶ 58} The nature of Ireland’s defense and the jury instructions appropriate
for his defense were repeatedly discussed throughout the proceedings. The trial
court expressed concern that Ireland appeared to be presenting an insanity defense,
which would require the court to stop the trial and refer Ireland for an evaluation of
his mental condition at the time of the incident, to explore a possible plea of not
guilty by reason of insanity (“NGRI”). The court ultimately allowed the trial to
proceed and included an instruction regarding blackout in the jury charge, over the
state’s objection.
       {¶ 59} The trial court also determined, however, that Ireland had not
presented sufficient evidence of unconsciousness within the meaning of R.C.
2901.21(F)(2) to support providing a blackout instruction that indicated




                                         20
                               January Term, 2018




unconsciousness as contemplated in that provision. The court explained that
although Ireland’s proposed blackout definition connoted unconsciousness “like
sleepwalking,” his evidence supported only the kind of blackout that would be an
affirmative defense. The court invited the defense to present additional evidence
to attempt to support the type of blackout that Ireland was promoting, but the
defense declined. Accordingly, the trial court altered Ireland’s requested blackout
instruction by adding the explanation that Ireland’s blackout defense was an
affirmative defense.
       {¶ 60} On appeal, Ireland argued that the trial court unconstitutionally put
the burden of proving unconsciousness on Ireland by describing blackout as an
affirmative defense. This argument presumed that the instruction was intended to
be a pure representation of the voluntary-act requirement of R.C. 2901.21(A)(1)
and its negation through proving unconsciousness under R.C. 2901.21(F)(2).
Given that this was not, in fact, the case at trial, Ireland’s argument had a false
premise and should not have been taken at face value by the court of appeals.
       {¶ 61} Ireland’s defense was based on his alleged altered state of
consciousness due to a dissociative episode. Ireland used the defense to argue that
he lacked the capacity to form the mens rea of the offense with which he was
charged. Outside the context of an insanity defense, an attempt to refute the mens
rea of an offense through expert psychiatric testimony constitutes a diminished-
capacity defense, which is not recognized in Ohio. State v. Wilcox, 70 Ohio St.2d
182, 436 N.E.2d 523 (1982), paragraphs one and two of the syllabus. If an NGRI
plea is not involved, “[p]roof that a person’s reason, at the time of the commission
of an offense, was so impaired that the person did not have the ability to refrain
from doing the person’s act or acts, does not constitute a defense.” R.C. 2945.391.
       {¶ 62} Ireland’s claim of being in a temporarily altered state of
consciousness is a typical diminished-capacity defense. State v. Fulmer, 117 Ohio
St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 67-70 (a claim of temporary




                                        21
                             SUPREME COURT OF OHIO




derangement was the functional equivalent of an impermissible diminished-
capacity defense); State v. Pennington, 4th Dist. Pickaway No. 99 CA 26, 2000 WL
670306, *4 (May 16, 2000) (evidence of a dissociative episode may not be
presented for purpose of negating mens rea by a defendant who is not asserting an
insanity defense); State v. Napier, 12th Dist. Clermont No. CA2016-04-022, 2017-
Ohio-246, ¶ 23-28, appeal not accepted, 150 Ohio St.3d 1452, 2017-Ohio-8136, 83
N.E.3d 938 (PTSD is not a stand-alone defense, and PTSD evidence may not be
presented for purpose of negating mens rea by a defendant who is not asserting an
insanity defense).
       {¶ 63} The lead opinion declines to address the nature of Ireland’s
diminished-capacity defense due to the state’s waiver of certain issues at trial. The
state may have waived arguments that (1) Ireland should have been prohibited from
raising a diminished-capacity defense and presenting expert testimony to negate the
required mens rea outside of a plea of NGRI and (2) the jury should not have been
instructed to consider that defense—whether labeled as “blackout” or anything else.
But the state did not waive the meaning of diminished capacity or unconsciousness
as a matter of law.
       {¶ 64} Unconsciousness and diminished capacity are not synonymous.
Diminished capacity, while not a proper insanity defense in itself, is still an
insanity-related defense. Wilcox, 70 Ohio St.2d at 185-186, 436 N.E.2d 523
(diminished capacity is a partial-insanity defense). It is not an unconsciousness
claim. See State v. McDaniel, 9th Dist. Summit No. 18805, 1998 WL 887184, *4-
5 (Dec. 16, 1998) (defendant’s allegation of a delusional episode constituted a
diminished-capacity defense, not an unconsciousness or involuntary-act claim);
Pennington at *7 (approving of the reasoning in McDaniel and holding that the
defendant’s allegation of a dissociative episode constituted a diminished-capacity
defense despite his attempts to characterize the nature of the claim as




                                         22
                                January Term, 2018




unconsciousness); State v. Mobley, 5th Dist. Richland No. 2010-CA-0018, 2011-
Ohio-309, ¶ 45-47.
       {¶ 65} Given that insanity is a statutorily recognized affirmative defense in
Ohio, R.C. 2901.01(A)(14), a partial-insanity or insanity-related defense such as
diminished capacity would be an affirmative defense as well. See Fulmer, 117
Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052, at ¶ 71-72 (describing
diminished capacity as an affirmative defense). It is for this reason that the trial
court appropriately described Ireland’s defense as an affirmative defense. The fact
that the trial court used the concept of blackout as a placeholder for Ireland’s
normally impermissible affirmative defense of diminished capacity does not mean
that diminished capacity constitutes unconsciousness as contemplated in R.C.
2901.21(F)(2), nor does it mean that unconsciousness is necessarily an affirmative
defense. Thus, to the extent that the trial court’s explanation of Ireland’s burden of
proving blackout might have been unfaithful to R.C. 2901.21(A)(1) and (F)(2), it
could not have caused constitutional error, let alone structural error, because it was
faithful to the actual defense Ireland presented.
       {¶ 66} The reality and severity of the psychological and neurological
injuries that disproportionately plague the members of our armed forces long after
they return home from combat calls into question the narrowness of Ohio’s insanity
standard, particularly in light of the medical community’s many advancements in
understanding the effects of physically and psychologically traumatic events on the
brain. However, we must adhere to the current statutory scheme governing insanity
and mental-impairment conditions that fall short of insanity. See R.C. 2945.391
and 2945.40. Whether R.C. 2945.391 should no longer include states of diminished
capacity—such as the psychiatric condition of dissociation—is a question for the
General Assembly alone.
       {¶ 67} It may or may not be true that a claim of unconsciousness constitutes
an affirmative defense. But that is an issue we should wait to consider until we




                                         23
                             SUPREME COURT OF OHIO




have a proper unconscious, involuntary-act scenario before us. Answering the
question in this case results in an advisory opinion at best, and at worst, it sows
confusion regarding the legal meanings of unconsciousness, insanity, and
diminished capacity.
       {¶ 68} Because the trial court determined that Ireland’s partial-insanity
defense did not support a blackout instruction that connoted unconsciousness as
contemplated in R.C. 2901.21(F)(2), the burden of proof associated with R.C.
2901.21(F)(2) was not relevant to Ireland’s case irrespective of the state’s
preservation of arguments at trial. The Tenth District erred in considering R.C.
2901.21(F)(2) to be central to the trial court’s instruction and in finding structural
error as a result. Based on these separate grounds, I would reverse the judgment of
the Tenth District Court of Appeals and remand the case for that court to consider
the remaining assignments of error that were mooted.
       FRENCH, J., concurs in the foregoing opinion.
                               _________________
       KENNEDY, J., dissenting.
       {¶ 69} The lead opinion wants it both ways, arguing that the state bears the
burden to prove beyond a reasonable doubt that the accused committed the offense
of felonious assault with a voluntary act while the accused bears the burden of
proving by a preponderance of the evidence and as an affirmative defense that the
same act was involuntary because the accused lacked consciousness. The proper
analysis, however, begins and ends with the elements of the offense: once it is
determined that voluntariness—and therefore consciousness—is an element of
felonious assault, the state retains the burden of proving it beyond a reasonable
doubt regardless of whether lack of consciousness is characterized—or asserted—
as a “blackout” defense. Because such a defense asserts that the state has failed to
prove an element of the offense, it can never be an affirmative defense.




                                         24
                                January Term, 2018




       {¶ 70} Pursuant to R.C. 2901.21(A), a conscious, voluntary act is an
element of every offense in Ohio; the state bears the burden of proving that element
beyond a reasonable doubt, and the burden of proof remains with the state
throughout the trial. Any contrary evidence presented by the accused relating to a
lack of consciousness or a blackout defense does not assert an affirmative defense
on which the accused bears the burden of proof but rather is presented to persuade
the jury that the state has not carried its burden of proving guilt beyond a reasonable
doubt in the first place. Blackout is a failure-of-proof defense, not an affirmative
defense.
       {¶ 71} Because any contrary analysis runs counter to the plain language of
the statute and confuses established constitutional principles, I dissent.
                   R.C. 2901.21: The Voluntary-Act Element
       {¶ 72} The common-law concept of crime as the “concurrence of an evil-
meaning mind with an evil-doing hand * * * took deep and early root in American
soil.” Morissette v. United States, 342 U.S. 246, 251-252, 72 S.Ct. 240, 96 L.Ed.
288 (1952); see also United States v. Apfelbaum, 445 U.S. 115, 131, 100 S.Ct. 948,
63 L.Ed.2d 250 (1980) (“In the criminal law, both a culpable mens rea and a
criminal actus reus are generally required for an offense to occur”). Although Ohio
has abolished common-law crimes, R.C. 2901.03(A), it nonetheless has codified
this common-law rule that both a culpable mental state and a criminal act are
generally required for an offense to occur, R.C. 2901.21(A).
       {¶ 73} R.C. 2901.21(A) provides:


               Except as provided in division (B) of this section [pertaining
       to strict-liability offenses, for which culpability is not required], a
       person is not guilty of an offense unless both of the following apply:




                                          25
                             SUPREME COURT OF OHIO




                (1) The person’s liability is based on conduct that includes
        either a voluntary act, or an omission to perform an act or duty that
        the person is capable of performing;
                (2) The person has the requisite degree of culpability for
        each element as to which a culpable mental state is specified by the
        language defining the offense.


And R.C. 2901.21(F)(2) clarifies that “[r]eflexes, convulsions, body movements
during unconsciousness or sleep, and body movements that are not otherwise a
product of the actor’s volition, are involuntary acts.” (Emphasis added.)
        {¶ 74} We have explained that “R.C. 2901.21 sets forth the basic
requirements for criminal liability,” so that in Ohio, “an offense [is] defined in
terms of a prohibited act accompanied by a culpable mental state.” State v.
Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, ¶ 8. That is,
“every criminal offense is made up of (1) a voluntary act or failure to act when there
is a duty and (2) a culpable mental state for each element that specifies a mental
state.” Id. at ¶ 16.
        {¶ 75} Accordingly, in State v. Nucklos, we noted that “the state must prove
that the accused engaged in ‘a voluntary act, or an omission to perform an act or
duty that the person is capable of performing,’ with the ‘requisite degree of
culpability’ for each element of the alleged offense in order to obtain a conviction.”
121 Ohio St.3d 332, 2009-Ohio-792, 904 N.E.2d 512, ¶ 6, quoting R.C.
2901.21(A). These “ ‘material elements’ ” of the crime must be proved beyond a
reasonable doubt. Id., quoting State v. Manley, 71 Ohio St.3d 342, 346, 643 N.E.2d
1107 (1994).
        {¶ 76} Accordingly, in this case, appellant, the state of Ohio, had the burden
to prove that appellee, Darin Ireland, committed felonious assault with a voluntary
act. The General Assembly has expressly provided that body movements that are




                                          26
                                January Term, 2018




made during unconsciousness or that are not a product of the actor’s volition are
not voluntary acts. R.C. 2901.21(F)(2).
       {¶ 77} Here, Ireland asserted that the state could not prove the voluntary-
act element, and he presented Dr. James Reardon’s expert testimony that Ireland
suffered from posttraumatic stress disorder resulting from his combat experience in
the Persian Gulf War. Dr. Reardon testified that throughout the hostilities, Ireland
witnessed the carnage of war, including “numerous helicopters crashing and
burning”—and “he could have just as easily been on those helicopters.” Once,
Ireland’s unit came under fire, and when Iraqi soldiers advanced on his position,
Ireland fired a grenade launcher at them and “silenced everything.” In securing his
unit’s position, he found numerous dead Iraqi soldiers but also discovered the
bodies of two Americans who had been taken prisoner and whom he may have
killed with the grenade. While checking the bodies, an Iraqi soldier suddenly
“pulled a knife out and stabbed at [Ireland], nicked him in the ribs. [Ireland] pulled
his bayonet out and stabbed the guy and killed him.” Ireland was awarded the
Bronze Star for heroism, but since then, he has suffered flashbacks, blackouts,
intrusive dreams, and intense psychological distress. For example, in one episode,
Ireland “thought he was in a fight, thought he was in combat, and stabbed a wall”
before regaining consciousness.
       {¶ 78} Dr. Reardon evaluated Ireland and diagnosed him with posttraumatic
stress disorder caused by Ireland’s experiences in the war. According to Dr.
Reardon, when Ireland attacked the victim in this case, Ireland was experiencing a
dissociative episode caused by his disorder. Dissociative phenomena, Dr. Reardon
explained, range from “a full-blown flashback—feeling like they’re back, if it’s a
veteran, in the middle of a combat situation even though they’re in a traffic jam in
downtown Columbus” to professional athletes who “can just blank out everything
else” to a phenomenon called “highway hypnosis, where you’re in the car and
you’re driving and you’re driving, and you realize that you’ve gone from here to




                                          27
                             SUPREME COURT OF OHIO




there, but you don’t remember much of anything in between.” Similarly, Dr.
Reardon opined that Ireland’s attack on the victim was “not a volitional experience”
but, rather, “almost like a knee-jerk reaction,” Ireland was “acting automatically in
a dissociative episode.”    According to Dr. Reardon, the attack was “not a
manifestation of conscious thought or awareness” and Ireland could not control his
behavior when experiencing a “dissociative blackout” because “it’s not a product
of [his] consciousness and decision making”—“[t]here’s no consciousness.”
Rather, Ireland was reacting “in a habitually, conditioned manner.”
       {¶ 79} Ireland’s defense therefore was that the state had not proved that he
committed a conscious, voluntary act. This conclusion is not only required by the
plain language of R.C. 2901.21(A), which makes a conscious, voluntary act an
element of the offense, but also is consistent with the majority rule in this country
that blackout or unconsciousness is a failure-of-proof defense, meaning that it
asserts that the state has not proved the voluntary-act element beyond a reasonable
doubt, 2 LaFave, Substantive Criminal Law, Section 9.1(a)(1) (3d Ed.2018); see,
e.g., Palmer v. State, 379 P.3d 981, 989 (Alaska App.2016); Hale v. State, 191
So.3d 719, ¶ 12 (Miss.2016); United States v. Torres, 74 M.J. 154, 158
(C.A.A.F.2015); State v. Newman, 353 Or. 632, 647, 302 P.3d 435 (2013);
Missoula v. Paffhausen, 2012 MT 265, 367 Mont. 80, 289 P.3d 141, ¶ 37; Smith v.
State, 284 Ga. 33, 34-35, 663 S.E.2d 155 (2008); State v. Kupihea, 98 Hawai’i 196,
202, 46 P.3d 498 (2002), fn. 9; McClain v. State, 678 N.E.2d 104, 107 (Ind.1997);
State v. Hinkle, 200 W.Va. 280, 286, 489 S.E.2d 257 (1996); People v. Babbitt, 45
Cal.3d 660, 696, 248 Cal.Rptr. 69, 755 P.2d 253 (1988); Virgin Islands v. Smith,
278 F.2d 169, 173 (3d Cir.1960). But see, e.g., State v. Deer, 175 Wash.2d 725,
287 P.3d 539, ¶ 10-12, 21 (2012) (holding that consciousness is not an element of
the strict-liability offense of rape of a child and that lack of consciousness is an
affirmative defense).




                                         28
                                 January Term, 2018




       {¶ 80} R.C. 2901.21(A), our caselaw, and the weight of authority show that
a conscious, voluntary act is an element of the felonious-assault offense charged in
this case. The lead opinion itself admits that “the state is required to present
evidence that the defendant committed the criminal act voluntarily,” yet it claims
that a voluntary act is not an “essential element” of the offense. Lead opinion at
¶ 33. However, it fails to explain why labeling an element “essential” means
anything in these circumstances.
       {¶ 81} “ ‘Elements’ are the ‘constituent parts’ of a crime’s legal
definition—the things the ‘prosecution must prove to sustain a conviction.’ ”
Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604
(2016), quoting Black’s Law Dictionary 634 (10th Ed.2014). Elements are “what
the jury must find beyond a reasonable doubt to convict the defendant.” Id. The
lead opinion agrees (1) that the state has the burden to prove that the accused
committed a voluntary act and (2) that body movements during unconsciousness
are involuntary acts. It necessarily follows that a conscious, voluntary act is an
element of the offense.
       {¶ 82} The lead opinion, however, asserts that the General Assembly chose
not to include voluntariness in R.C. 2903.11(A). Lead opinion at ¶ 39. But it did
not include any specific actus reus in that statute either, and it did not have to,
because pursuant to R.C. 2901.21(A)(1), “every criminal offense is made up of
* * * a voluntary act or failure to act when there is a duty,” Johnson, 128 Ohio St.3d
107, 2010-Ohio-6301, 942 N.E.2d 347, at ¶ 8. And although R.C. 2901.21(A)(2)
contemplates that there are strict-liability crimes, so that criminal liability depends
on the accused’s having “the requisite degree of culpability for each element as to
which a culpable mental state is specified by the language defining the offense,”
the plain language of R.C. 2901.21(A)(1) recognizes that Ohio law does not impose
strict liability for involuntary acts. Rather, criminal liability requires “conduct that
includes either a voluntary act, or an omission to perform an act or duty that the




                                          29
                             SUPREME COURT OF OHIO




person is capable of performing.” R.C. 2901.21(A)(1). The lead opinion therefore
disregards the plain language of the statute when it countenances strict liability for
a felonious assault committed by an unconscious, involuntary body movement.
       {¶ 83} The lead opinion states that “a challenge to voluntariness is a
defense.” Lead opinion at ¶ 33. But that is a distinction without a difference,
because challenging the sufficiency of the evidence presented at trial is always a
defense. Presenting an alibi, attacking an eyewitness identification, and disputing
the existence of the applicable mens rea are all defenses, yet the identity of the
accused or the existence of the requisite degree of culpability are nevertheless
elements. The same is true when the accused asserts that the state cannot prove
beyond a reasonable doubt that criminal liability is based on a conscious, voluntary
act.
                    R.C. 2901.05(D)(1): Affirmative Defenses
       {¶ 84} “Affirmative defense” is defined by statute as either a “defense
expressly designated as affirmative,” R.C. 2901.05(D)(1)(a), or a “defense
involving an excuse or justification peculiarly within the knowledge of the accused,
on which the accused can fairly be required to adduce supporting evidence,” R.C.
2901.05(D)(1)(b). The accused has the burden of presenting evidence of an
affirmative defense as well as the burden of proving it by a preponderance of the
evidence. Nucklos, 121 Ohio St.3d 332, 2009-Ohio-792, 904 N.E.2d 512, at ¶ 7,
citing R.C. 2901.05(A).
       {¶ 85} Contrary to the lead opinion’s claim, a blackout defense does not
assert an excuse or justification. The definition of “excuse” relevant to criminal
law is a “defense that arises because the defendant is not blameworthy for having
acted in a way that would otherwise be criminal.” (Emphasis added.) Black’s Law
Dictionary 688 (10th Ed.2014). And the relevant definition of “justification” is a
“showing, in court, of a sufficient reason why a defendant acted in a way that, in
the absence of the reason, would constitute the offense with which the defendant is




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charged.” (Emphasis added.) Id. at 997. As both of these definitions indicate,
excuse and justification defenses “apply in the case of a particular offense even
though all of the elements of that offense are fully established.” 2 LaFave,
Substantive Criminal Law, Section 9.1(a)(4), at 7. Neither type of defense seeks to
negate an element of the crime; rather, both assert that although the state can prove
each element of the offense, criminal liability should not attach because the accused
is not blameworthy. We have therefore recognized that affirmative defenses


       “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 * * * 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.’ ”


(Ellipsis sic.) State v. Humphries, 51 Ohio St.2d 95, 99, 364 N.E.2d 1354 (1977),
quoting State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d 888 (1973), quoting
Anderson, 1 Wharton’s Criminal Evidence, Section 19, at 54 and 55 (12th
Ed.1955).
       {¶ 86} In contrast, a blackout defense attempts to negate the conscious,
voluntary-act element of the offense, and the issue at trial in this case was whether
the state proved that Ireland consciously and voluntarily caused that harm—an
element that Ireland did not concede by asserting his defense.
       {¶ 87} Further, the fact that whether the accused suffered a blackout is
peculiarly within the accused’s knowledge does not, by itself, make blackout an
affirmative defense. Other matters are peculiarly within the knowledge of the
accused—such as the accused’s mental state—but are not affirmative defenses.
See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 702, 95 S.Ct. 1881, 44 L.Ed.2d 508




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(1975) (“And although intent is typically considered a fact peculiarly within the
knowledge of the defendant, this does not, as the Court has long recognized, justify
shifting the burden to him”). This is true even though the accused bears the burden
of going forward with evidence raising an issue that the act was not voluntary. See
Davis v. United States, 160 U.S. 469, 486, 16 S.Ct. 353, 40 L.Ed. 499 (1895).
       {¶ 88} Lastly, even if the blackout defense did fit R.C. 2901.05(D)(1)(b)’s
definition of an affirmative defense, the Due Process Clause of the United States
Constitution nonetheless prohibits the state from shifting the burden of proof to the
accused when an affirmative defense negates an element of the crime. Smith v.
United States, 568 U.S. 106, 110, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013); see
generally 1 LaFave, Substantive Criminal Law, Section 1.8(c). As Justice Scalia
explained in Smith,


       The State is foreclosed from shifting the burden of proof to the
       defendant only “when an affirmative defense does negate an
       element of the crime.” Martin v. Ohio, 480 U.S. 228, 237, 107 S.Ct.
       1098, 94 L.Ed.2d 267 (1987) (Powell, J., dissenting). Where instead
       it “excuse[s] conduct that would otherwise be punishable,” but
       “does not controvert any of the elements of the offense itself,” the
       Government has no constitutional duty to overcome the defense
       beyond a reasonable doubt. Dixon v. United States, 548 U.S. 1, 6,
       126 S.Ct. 2437, 165 L.Ed.2d 299 (2006).


(Emphasis sic.) Smith at 110.
       {¶ 89} The lead opinion, however, asserts that “a state does not violate the
Due Process Clause by requiring the defendant to prove an affirmative defense by
a preponderance of the evidence, even when the evidence used to prove the
affirmative defense might also negate an element of the offense at issue.” Lead




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opinion at ¶ 40. But the decisions cited in support of this proposition are taken out
of context.
       {¶ 90} In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302
(1952), the accused had argued that requiring him to establish an insanity defense
beyond a reasonable doubt violated his right to due process. But importantly,
“Oregon required the prosecutor to prove beyond a reasonable doubt every element
of the offense charged.” Id. at 799. The accused’s sanity was not an element of the
offense, and the state had not required the accused to negate it. (Similarly, Ohio
law provides that sanity is not an element of an offense, which is why insanity is an
affirmative defense. See State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840
N.E.2d 1032, ¶ 35.)
       {¶ 91} When the United States Supreme Court in Patterson v. New York,
432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), held that New York had not
violated the federal Due Process Clause by requiring the accused to prove the
affirmative defense of extreme emotional disturbance to reduce second-degree
murder to manslaughter, the court expressly stated that placing that burden on the
accused “does not serve to negative any facts of the crime which the State is to
prove in order to convict of murder,” id. at 207.
       {¶ 92} And in Martin, 480 U.S. at 233, 107 S.Ct. 1098, 94 L.Ed.2d 267, the
Supreme Court held that the state of Ohio had not shifted the burden of proving the
elements of aggravated murder when it required the accused to prove that she had
acted in self-defense. Again, the state had not defined the crime as a killing without
justification, and the absence of self-defense was not an element of the offense that
the state was required to prove.
       {¶ 93} Here, in contrast to these cases, the General Assembly has decided
that the state bears the burden to prove that the accused committed the offense with
a conscious, voluntary act. Therefore, the lead opinion’s recognition that the state
must prove a voluntary act should end the analysis, and its analysis shifting the




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burden to the accused to prove lack of consciousness as a purported affirmative
defense when the evidence used to prove it “might also negate an element of the
offense at issue,” lead opinion at ¶ 40, shows that the lead opinion confuses the
blackout defense—which does negate the voluntary-act element—with the
persuasiveness of the evidence presented to prove it.
       {¶ 94} Ireland’s blackout defense sought to negate the voluntary-act
element of felonious assault, and if the jury had found that he acted while
unconscious, it would have had to acquit him and he would not have needed to
prove an additional excuse or justification to avoid criminal liability.
       {¶ 95} “Jury instructions that effectively relieve the state of its burden of
persuasion violate a defendant’s due process rights,” State v. Adams, 103 Ohio
St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 97, citing Sandstrom v. Montana,
442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and subvert the presumption of
innocence and the right to have a jury determine the facts of a case, Carella v.
California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989).
       {¶ 96} But here, the jury instructions placed the burden of proving the same
fact—consciousness—on both the state and the accused. Over Ireland’s objection,
the trial court gave the following instructions:


               The burden of going forward with the evidence of blackout
       and the burden of proving an affirmative defense is upon the
       defendant. He must establish such a defense by a preponderance of
       the evidence.
               ***
               If the defendant fails to establish the defense of blackout, the
       State still must prove to you beyond a reasonable doubt all the
       elements of the crime charged.




                                          34
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               Where a person commits an act while [unconscious], as in a
       coma, blackout, or convulsion due to heart failure, disease, sleep, or
       injury, such an act is not a criminal offense even though it would be
       a crime if such act were the product of a person’s will or volition.
               If you have a reasonable doubt whether the defendant was
       conscious at the time of such act, you must find that he is not guilty.
       If you find that the defendant was conscious, such finding does not
       relieve the State of its burden of establishing by the required weight
       of the testimony that the act was knowingly committed.
               ***
               Reflexes,      convulsions,     body     movements       during
       unconsciousness or sleep and body movements that are not
       otherwise a product of the act’s [sic, actor’s] will or volition are
       involuntary acts.


       {¶ 97} These instructions told the jury that “blackout”—i.e., a lack of
consciousness—is an affirmative defense that must be proved by the accused and
that consciousness is an element of the offense that the state has the burden to
establish by proof beyond a reasonable doubt. The instructions not only confused
the jury but also shifted the burden to Ireland to disprove that he acted voluntarily—
in violation of his right to due process. Contrary to the lead opinion’s analysis, the
presumption that jurors follow instructions cannot be applied when the jurors
receive such countervailing, confusing, and internally inconsistent instructions, and
it is telling that the state has not attempted to show that the instructions amount only
to harmless error.
                                     Conclusion
       {¶ 98} The state has authority to regulate procedures in criminal cases,
including the allocation of the burden of producing evidence and the burden of




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persuasion, Medina v. California, 505 U.S. 437, 445, 112 S.Ct. 2572, 120 L.Ed.2d
353 (1992), and “a state rule of criminal procedure not governed by a specific rule
set out in the Bill of Rights violates the Due Process Clause of the Fourteenth
Amendment only if it offends a fundamental and deeply rooted principle of justice,”
Nelson v. Colorado, ___ U.S. ___, 137 S.Ct. 1249, 1258, 197 L.Ed.2d 611 (2017)
(Alito, J., concurring in the judgment).
       {¶ 99} But once the General Assembly has provided that a conscious,
voluntary act is an element of every crime, the prosecution has the burden of
proving it beyond a reasonable doubt. Due process forecloses the state from
shifting the burden to the accused to disprove that he or she committed the offense
consciously and voluntarily. The lead opinion’s determination today that Ireland
bore the burden of persuading the jury that he committed felonious assault while
unconscious and in a state of blackout therefore contravenes due process and the
deeply rooted principle of justice that the accused retains the presumption of
innocence unless and until the state satisfies its burden of proof on all elements of
the charged offense.
       {¶ 100} Accordingly, I would affirm the judgment of the Tenth District
Court of Appeals, hold that a blackout defense is not an affirmative defense but
rather serves to negate the voluntary-act element of an offense pursuant to R.C.
2901.21(A)(1), and remand the matter to the trial court for a new trial.
       DEWINE, J., concurs in the foregoing opinion.
                               _________________
       Ron O’Brien, Franklin County Prosecuting Attorney, and Michael P.
Walton, Assistant Prosecuting Attorney, for appellant.
       Paul Giorgianni, Giorgianni Law, L.L.C., and Shawn Dominy, for appellee.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Michael J. Hendershot, Chief Deputy Solicitor, urging reversal for amicus curiae
Ohio Attorney General Michael DeWine.




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       Timothy Young, Ohio Public Defender, and Patrick T. Clark, Assistant
Public Defender, urging affirmance for amicus curiae Office of the Ohio Public
Defender.
                            _________________




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