State v. Robinson

Citation351 N.E.2d 88,47 Ohio St.2d 103
Decision Date21 July 1976
Docket NumberNo. 75-943,75-943
Parties, 1 O.O.3d 61 The STATE of Ohio, Appellant, v. ROBINSON, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

In a criminal case involving the affirmative defense of self-defense, the defendant has only the burden of going forward with evidence of a nature and quality sufficient to raise that defense, and does not have the burden of establishing such defense by a preponderance of the evidence. (R.C. 2901.05(A) construed.)

The defendant, George Robinson, Jr., was charged with aggravated murder in connection with the shooting death of his nephew, Ronald R. Robinson (hereinafter called 'the deceased'), on June 29, 1974. The case was tried to a jury in the Court of Common Pleas on January 27, 1975. There were eight witnesses for the state, eight for the defendant, and three rebuttal witnesses.

The state's first witness, Dr. Emery Van Hamm, testified that the deceased died from a gunshot wound to the head; that the deceased was intoxicated at the time of his death; and that the alcohol's effects were increased by amphetamines. The doctor testified further that the deceased was a large, muscular man about six feet tall, who weighed an estimated 200 pounds. The state's next witness, Detective Dennis Canada, testified concerning his investigation at the scene of the incident, the defendant's home, 227 North Eureka Avenue, Columbus, Ohio. He described state exhibits consisting of pictures of a holster on an upstairs bed, the living room wherein the shooting occurred, and the position of the deceased's body as he found it. Mr. Hermann Motter and his son David were doing cement work on the porch of defendant's house when the shooting occurred. They testified that the deceased drove a Mustang automobile to the front of the house, parked his car, walked into the defendant's house with a beer bottle in his hand, and later came out and sat on the porch. Both workers stated that they did not pay much attention to the situation, as ordinarily they ignored people who were drinking. However, they testified that subsequently they heard someone say, 'If you don't get out of here, I'll shoot you.' Officer David Morris testified that the inventory of the deceased's pockets disclosed no weapons.

Officer Bruce Morgan described the scene as it appeared in his investigation. He volunteered the information that when he arrived the defendant was in the kitchen 'brushing his teeth. I think the purpose of that was maybe to get the odor of alcohol from his breach.' This comment precipitated a motion for a mistrial, which was overruled. The court admonished the officer to answer the questions as asked, and directed the jury to disregard the gratuitious testimony as being totally unresponsive. Officer Morgan then testified that the defendant said he had shot his nephew for fear of his life. Officer Donald Corbin also summarized his part in the investigation. Mrs. Elizabeth Robinson, the deceased's widow, said that her husband did not come home from his night shift at Buckeye Steel on June 29, 1974. She conceded that the deceased took 'nerve pills' and drank alcohol. She also testified that she was aware defendant owned a gun. The state's final witness, Richard C. Fisher, criminologist for the city of Columbus, stated that the weapon used in the shooting would not discharge automatically.

Upon motion of counsel for defendant at the close of the state's case, the trial court reduced the charge against defendant from aggravated murder to murder.

The defendant's case included seven witnesses, in addition to his own testimony. There was evidence that defendant and the deceased had a disagreement some time prior to the shooting. Further, the record indicates the deceased had said he was going to 'get him (the defendant) one way or another.' Charles Siders, a neighbor, testified that just before the shooting he heard a car stop, with tires squealing and gravel flying; and that he saw a man with a beer bottle get out, go to defendant's house, and enter. The defendant, his wife, and Vernon Burnett, stated that they were in the basement when they heard someone upstairs. Mrs. Robinson went up to see who it was. The deceased descended the stairs into the basement, and there was an altercation between him and the defendant. There is some conflict as to what actually happened, but the two men went upstairs. The defendant then went up to the second floor to get his gun and came down the stairs to the ground floor. It was there the shooting occurred. The defendant called the police. Carl Robinson, a cousin of the deceased, testified concerning a time when he and the deceased engaged in a fight and the deceased apparently used a knife on him. Don Vest, who worked for the defendant, testified concerning an incident when he, the defendant, and the deceased were out drinking together, at which time the deceased became angry and pushed him into a brick wall.

The state, as noted above, called three rebuttal witnesses. Two police officers indicated that the information given by Mrs. George Robinson and Mr. Burnett the day of the shooting was somewhat different from their trial testimony. Further, Mrs. Ronald Robinson, the decedent's wife, gave a different version of an incident when she, the defendant, and his wife were allegedly threatened by the deceased with a butcher knife.

At the close of the evidence, the defendant moved for acquittal, and was overruled. Counsel for defendant objected to several parts of the court's charge. After the jury retired, it requested the court to repeat the charge. The court refused to repeat the entire charge, but charged upon voluntary manslaughter and self-defense. Counsel for defendant reiterated his previous objections. Subsequently, the jury returned a verdict of guilty of voluntary manslaughter, and judgment was entered upon the verdict.

Defendant perfected an appeal to the Court of Appeals setting out four assignments of error. The Court of Appeals reversed, and sustained three of the assignments of error, which related to the trial court's instructions to the jury. The court overruled the fourth, which claimed error in the failure to grant a mistrial after the unresponsive answer to Officer Morgan.

The cause is before this court upon the allowance of a motion for leave to appeal.

George C. Smith, Pros. Atty., and Alan C. Travis, Columbus, for appellant.

Folkerth, Calhoun, Webster, Maurer & O'Brien and John P. Bessey, Columbus, for appellee.

STERN, Justice.

The state takes issue with each of the three grounds for reversal sustained by the Court of Appeals. No cross appeal was taken by the defendant from that court's overruling of the fourth assignment of error.


The first issue is whether the trial court committed prejudicial error by instructing the jury that the defendant bore the burden of proving his affirmative defense of self-defense by a preponderance of the evidence.

The problems of assigning the burden of proof of affirmative defenses in criminal cases has been a subject of both scholarly debate and divergent judicial opinions. The traditional rule has been that the defendant has the burden of proving a defense such as self-defense by a preponderance of the evidence or by some other similar standard. 1

This is the same standard generally applied in civil cases, wherein the defendant ordinarily has the burden of proving any affirmative defenses.

Courts and commentators, however, have increasingly recognized that the term 'burden of proof' is ambiguous and confusing. As Thayer first pointed out, 2 the term is used in at least two different senses. One sense is that of the burden of going forward with, or of producing, evidence, these terms being used interchangeably. The party having this burden on any given issue will lose on that issue as a matter of law if evidence sufficient to make out a case for the trier of fact is not produced. Similarly, if a party has the burden of going forward with evidence of a fact and fails to do so, the judge and the jury must assume the non-existence of the alleged fact. In a civil case, the plaintiff normally has the burden of producing evidence to support his case, and the defendant has the burden of producing evidence of any affirmative defenses. The assignment of the burden of producing evidence on a given issue frequently is influenced by presumptions, judicial policies of handicapping disfavored contentions, and practical judgments that the party with superior access to the evidence should have the burden of producing it. The principle is clear enough, even if its application is more problematic.

The other sense of 'burden of proof' is the burden of persuasion. This refers to the risk which is borne by a party if the jury finds that the evidence is in equilibrium. The party with the burden of persuasion will lose if he fails to persuade the trier of fact that the alleged fact is true by such quantum of evidence as the law demands. In a civil case, the burden is to persuade the trier of fact by a preponderance of the evidence, or upon some issues, by clear and convincing evidence. If the trier of fact, whether judge or jury, finds itself in doubt, it must decide the issue against the party having the burden of persuasion.

In civil cases, the burden of persuasion will rarely be decisive, since few cases will involve evidence so evenly balanced that neither side has a preponderance.

In criminal cases, the state has the burden not only to persuade the trier of fact that the defendant more probably than not committed the offense charged, but also to overcome any reasonable doubt of that fact. The state is constitutionally bound to prove beyond a reasonable doubt every fact necessary to constitute any crime for which it prosecutes a defendant. In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.

Traditionally, however, it has been held that the state can impose...

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  • State v. McCullum
    • United States
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    ...233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). State v. Robinson, 48 Ohio App.2d 197, 2 Ohio Ops.3d 171, 356 N.E.2d 725 (1975), aff'd, 47 Ohio St.2d 103, 1 Ohio Ops.3d 61, 351 N.E.2d 88 (1976); Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978); Infantolino v. State, R.I., 414 A.2d 793 (......
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    ...v. Terry, 41 N.J. 1, 194 A.2d 457 (1963); State v. Robinson, 48 Ohio App.2d 197, 2 Ohio Ops.3d 171, 356 N.E.2d 725 (1975), Aff'd, 47 Ohio St.2d 103, 1 Ohio Ops.3d 61, 351 N.E.2d 88 (1976); State v. Barrett, 128 Vt. 458, 266 A.2d 441 The rationale of these cases is rather simple. They reason......
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    • December 23, 1998
    ...N.E.2d 195, 199. In construing the phrase "burden of going forward with the evidence," we stated in State v. Robinson (1976), 47 Ohio St.2d 103, 111-112, 1 O.O.3d 61, 66, 351 N.E.2d 88, 94, that in order for the defendant to successfully raise an affirmative defense, "evidence of a nature a......
  • Smart v. Leeke, 87-7737
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    • May 4, 1989
    ...court finds that a reasonable juror could find that the petitioner killed Myers and Baxley in self-defense."State v. Robinson, 47 Oh.St.2d 103, 112-13, 351 N.E.2d 88, 94-95 (1976) was decided at a time when, in Ohio, the burden of persuasion as to lack of self-defense was, by statute, assig......
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