affirmative defense in Ohio

2026See State v. Poole, 33 Ohio St.2d 18, 19 (1973) (an affirmative defense is not a “denial or contradiction” of the essential elements of the crime charged but is a justification that exempts a defendant from liability); State v. Wilson, 2024-Ohio-776, ¶ 22 (noting an affirmative defense “must be a ‘true’ defense—a justification for the conduct—not a negation of the elements of the underlying charge”).

2026But “an affirmative defense is not an element of a crime.” State v. Messenger, 2022-Ohio-4562, ¶ 24 . {¶22} In Ohio, self-defense is an affirmative defense that justifies “‘admitted conduct.’” State v. Martin, 21 Ohio St.3d 91, 94 (1986), quoting State v. Poole, 33 Ohio St.2d 18, 19 (1973).

2026“If the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.” State v. Miller, 2025-Ohio-1920, ¶ 24 (4th Dist.), quoting State v. Melchior, 56 Ohio St.2d 15, 20 (1978). -7- {¶15} To be entitled to a jury instruction on the use of non-deadly force in self-defense, the Defense must produce evidence that (1) the accused was not at fault in creating the situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide belief that he was in immi

2026However, “‘if the evidence generates only a mere speculation or possible doubt, the evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.’” Id., quoting State v. Melchior, 56 Ohio St.2d 15 (1978).

2026Self-Defense Initially we note that “self-defense is an affirmative defense, and therefore, ‘a defendant claiming self-defense does not seek to negate an element of the [charged] offense but rather seeks to relieve himself from liability.’” State v. Gardner, 2022-Ohio-381, ¶ 21 (8th Dist.), quoting Cleveland v. Williams, 2003- Ohio-31, ¶ 10 (8th Dist.), citing State v. Martin, 21 Ohio St.3d 91 (1986).

2026But “an affirmative defense is not an element of a crime.” State v. Messenger, 2022-Ohio-4562, ¶ 24 . {¶22} In Ohio, self-defense is an affirmative defense that justifies “‘admitted conduct.’” State v. Martin, 21 Ohio St.3d 91, 94 (1986), quoting State v. Poole, 33 Ohio St.2d 18, 19 (1973).

2025This, then, implicates Civ.R. 8(C), which addresses affirmative defenses and states, in relevant part, that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . res judicata . . . .” (Emphasis added.) Given this dictate, the affirmative defense of res judicata is waived “if not raised in the pleadings or an amendment to the pleadings.” Jim’s Steak House, Inc. v. City of Cleveland, 81 Ohio St.3d 18, 20 , (1998), citing Civ.R. 8; Civ.R. 15.

2024See Eulrich at ¶ 16 (concluding that Weaver “waived the affirmative defense” because it failed to assert it “in its answer,” “failed to file an amended responsive pleading[,] and improperly -11- brought its defense for the first time in a motion for summary judgment”); Jim’s Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18, 21 (1998).

2020See also State v. Melchior, 56 Ohio St.2d 15 , 381 N.E.2d 195 (1978), paragraph one of the syllabus (applying this standard to whether a defendant has successfully raised an affirmative defense under R.C. 2901.05). {¶ 18} R.C. 2901.05(B)(1) requires that there be “evidence presented that tends to support that the accused person used the force in self-defense.” “To establish self- defense, a defendant must introduce evidence showing that: (1) [s]he was not at fault in creating the violent situation; (2) [s]he had a bona fide belief that [s]he was in imminent danger of bodily harm; and (3) [s]he

2020See also State v. Melchior, 56 Ohio St.2d 15 , 381 N.E.2d 195 (1978), paragraph one of the syllabus (applying this standard to whether a defendant has successfully raised an affirmative defense under R.C. 2901.05). {¶ 18} R.C. 2901.05(B)(1) requires that there be “evidence presented that tends to support that the accused person used the force in self-defense.” “To establish self- defense, a defendant must introduce evidence showing that: (1) [s]he was not at fault in creating the violent situation; (2) [s]he had a bona fide belief that [s]he was in imminent danger of bodily harm; and (3) [s]he

2024Harson Invests., Ltd. v. City of Troy, Ohio, 2d Dist. Miami No. 2017-CA-22, 2018-Ohio-2748, ¶ 49 , citing Jones v. Chagrin Falls, 77 Ohio -20- St.3d 456, 674 N.E.2d 1388 (1997), syllabus (applying exhaustion doctrine in context of declaratory judgment action); Ensley v. City of Dayton, 2d Dist. Montgomery No. 14487, 1995 WL 491116 , *5 (Aug. 16, 1995) (reversing and vacating injunction granted against a city and remanding to allow the city to present evidence on an affirmative defense it had asserted). {¶ 48} Here, the City properly raised failure to exhaust as an affirmative defense in its an

2022Therefore, they claim appellants are now estopped from challenging the order. {¶50} “The failure to exhaust administrative remedies is an affirmative defense.” Tankersley v. Ohio Fair Plan Underwriting Assn., 12th Dist. Clermont No. CA2018-01- 003, 2018-Ohio-4386 , 116 N.E.3d 157, ¶ 22 , citing Jones v. Chagrin Falls, 77 Ohio St.3d 456, 462 , 674 N.E.2d 1388 (1997). “[I]n order to assert the failure to exhaust administrative remedies as a defense, it must be clearly and expressly pleaded.” Harris v. Ford Motor Co., 166 Ohio App.3d 599 , 2006-Ohio-259 , 852 N.E.2d 750 (2d Dist.), ¶ 22.

2024But “[i]f the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.” Id. {¶ 37} A self-defense claim requires a defendant to produce evidence “(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) that the defendant did not violate

2024But “[i]f the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.” Id. {¶ 37} A self-defense claim requires a defendant to produce evidence “(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) that the defendant did not violate

2020State v. Palmer, 80 Ohio St.3d 543, 563 (1997).2 An affirmative defense does not negate the legal adequacy of the state's proof for purposes of submitting it to the jury.

2013No. 10AP-340, 2011- Ohio-3087, ¶ 34, citing State v. Palmer, 80 Ohio St.3d 543, 563 , 687 N.E.2d 685 (1997).1 In Ohio, the affirmative defense of self-defense has three elements: (1) the defendant was not at fault in creating the violent situation, (2) the defendant had a 1 We note that Purdin had the burden of proving that he acted in self-defense, even though the incident occurred in Purdin’s home.

2025Plain Dealer Publishing Co. v. Cleveland, 75 Ohio St.3d 31, 33 (1996) (“An affirmative defense is not deemed waived when the defendant raises the defense ‘by motion before pleading pursuant to Civ.R. 12(B), affirmatively in a responsive pleading under Civ.R. 8(C), or by amendment under Civ.R. 15.’” [Emphasis deleted.]). {¶ 22} In this case, the city contends that it raised political-subdivision immunity “affirmatively in a responsive pleading under Civ.R. 8(C),” Plain Dealer Publishing at 33—by asserting in its answer that the estate’s complaint “fails to state a cause of action upon which rel

2025Plain Dealer Publishing Co. v. Cleveland, 75 Ohio St.3d 31, 33 (1996) (“An affirmative defense is not deemed waived when the defendant raises the defense ‘by motion before pleading pursuant to Civ.R. 12(B), affirmatively in a responsive pleading under Civ.R. 8(C), or by amendment under Civ.R. 15.’” [Emphasis deleted.]). {¶ 22} In this case, the city contends that it raised political-subdivision immunity “affirmatively in a responsive pleading under Civ.R. 8(C),” Plain Dealer Publishing at 33—by asserting in its answer that the estate’s complaint “fails to state a cause of action upon which rel

2026The affirmative defense of duress “is strictly and extremely limited in application and will probably be effective in very rare occasions.” State v. Cross, 58 Ohio St.2d 482, 488 (1979).

2020“All the conditions must be met, and the court must find as a matter of law that the evidence is sufficient to warrant an instruction on the affirmative defense of necessity or duress.” State v. Cross, 58 Ohio St.2d 482, 488 (1979). “‘If the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.’” Flinders at ¶ 29, quoting State v. Getsy, 84 Ohio St.3d 180, 198-199 (1998).

2025To the extent that Mr. Stafford appears to be arguing the affirmative defense of self-defense, “‘[s]elf-defense requires that a defendant: (1) was not at fault in creating the situation giving rise to the affray; (2) had a bona fide belief that he was in imminent danger of . . . great bodily harm and that his only means of escape . . . was in the use of such force; and (3) did not violate any duty to . . . avoid the danger.’” State v. Zink, 2023-Ohio-1250, ¶ 9 (9th Dist.), quoting State v. Warren, 2020-Ohio-6990, ¶ 12 (9th Dist.), citing State v. Barnes, 94 Ohio St.3d 21, 24 (2002). “‘All thre

2025To the extent that Mr. Stafford appears to be arguing the affirmative defense of self-defense, “‘[s]elf-defense requires that a defendant: (1) was not at fault in creating the situation giving rise to the affray; (2) had a bona fide belief that he was in imminent danger of . . . great bodily harm and that his only means of escape . . . was in the use of such force; and (3) did not violate any duty to . . . avoid the danger.’” State v. Zink, 2023-Ohio-1250, ¶ 9 (9th Dist.), quoting State v. Warren, 2020-Ohio-6990, ¶ 12 (9th Dist.), citing State v. Barnes, 94 Ohio St.3d 21, 24 (2002). “‘All thre

2026Westlake v. Y.O., 2019- Ohio-2432, ¶ 17 (8th Dist.), citing Cleveland v. Mincy, 2018-Ohio-3565, ¶ 24 (8th Dist.), citing State v. Hancock, 2006-Ohio-160 , ¶ 37, quoting Caldwell v. Russell, 181 F.3d 731 (6th Cir. 1999) (“[T]he due process ‘sufficient evidence’ guarantee does not implicate affirmative defenses, because proof supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had committed the requisite elements of the crime.”).

2022As we held in State v. Hancock, 108 Ohio St.3d 57 , 2006-Ohio-160 , 840 N.E.2d 1032 , “ ‘the due process “sufficient evidence” guarantee does not implicate affirmative defenses, because proof supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had committed the requisite elements of the crime.’ ” Id. at ¶ 37, quoting Caldwell v. Russell, 181 F.3d 731, 740 (6th Cir.1999). {¶ 128} Garrett urges us to revisit our decision in Hancock and address the sufficiency of the evidence as it relates to insanity.

2026Nonetheless, the Supreme Court observed that in that context, duress does not operate as an affirmative defense, noting that “if duress is a valid defense to the underlying felony in a felony-murder trial, a defendant can be convicted of murder, but not of aggravated murder.” Id. at 198, citing State v. Woods, 48 Ohio St.2d 127, 135 (1976), vacated on other grounds sub nom.

2020“All the conditions must be met, and the court must find as a matter of law that the evidence is sufficient to warrant an instruction on the affirmative defense of necessity or duress.” State v. Cross, 58 Ohio St.2d 482, 488 (1979). “‘If the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.’” Flinders at ¶ 29, quoting State v. Getsy, 84 Ohio St.3d 180, 198-199 (1998).

2023Instead, he argues only that he was not capable of formulating the required mens rea for the offenses, and thus should have been found not guilty by reason of insanity. 11. {¶ 23} “Insanity is an affirmative defense that must be proven by a preponderance of the evidence.” State v. Reynolds, 2017-Ohio-1478 , 89 N.E.3d 235, ¶ 48 (6th Dist.), citing State v. Hancock, 108 Ohio St.3d 57 , 2006-Ohio-160 , 840 N.E.2d 1032, ¶ 35 ; R.C. 2901.05(A) (“The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative de

2023Instead, he argues only that he was not capable of formulating the required mens rea for the offenses, and thus should have been found not guilty by reason of insanity. 11. {¶ 23} “Insanity is an affirmative defense that must be proven by a preponderance of the evidence.” State v. Reynolds, 2017-Ohio-1478 , 89 N.E.3d 235, ¶ 48 (6th Dist.), citing State v. Hancock, 108 Ohio St.3d 57 , 2006-Ohio-160 , 840 N.E.2d 1032, ¶ 35 ; R.C. 2901.05(A) (“The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative de

2026We note that Smith raised self-defense as a defense to the original assault charge and the Supreme Court of Ohio has held that in, self-defense cases, “‘the state’s rebuttal of a defendant’s claim of self-defense’ is not ‘subject to review under the sufficiency-of-the-evidence standard.’” State v. Knuff, 2024-Ohio-902, ¶ 206 , quoting State v. Messenger, 2022-Ohio-4562, ¶ 1 . {¶22} Here, however, it is unclear whether self-defense could serve as a full affirmative defense to every element of a disorderly-conduct charge.

2026But “an affirmative defense is not an element of a crime.” State v. Messenger, 2022-Ohio-4562, ¶ 24 . {¶22} In Ohio, self-defense is an affirmative defense that justifies “‘admitted conduct.’” State v. Martin, 21 Ohio St.3d 91, 94 (1986), quoting State v. Poole, 33 Ohio St.2d 18, 19 (1973).

2023“While the rule allows for liberal amendment, motions to amend pleadings pursuant to Civ.R. 15(A) should be refused if there is a showing of bad faith, undue delay, or undue prejudice to the opposing party.” Turner, 85 Ohio St.3d at 99 , citing Hoover v. Sumlin, 12 Ohio St.3d 1, 6 , 465 N.E.2d 377 (1984). {¶15} In this case, the City sought leave to amend its answer to include the affirmative defense of political subdivision immunity.

2023“While the rule allows for liberal amendment, motions to amend pleadings pursuant to Civ.R. 15(A) should be refused if there is a showing of bad faith, undue delay, or undue prejudice to the opposing party.” Turner, 85 Ohio St.3d at 99 , citing Hoover v. Sumlin, 12 Ohio St.3d 1, 6 , 465 N.E.2d 377 (1984). {¶15} In this case, the City sought leave to amend its answer to include the affirmative defense of political subdivision immunity.

2025As previously discussed, in evaluating whether the affirmative defense of statute of 10 January Term, 2025 limitations was preserved, this court preliminarily determined that the defendant “clearly” failed to raise the statute-of-limitations defense in its answer under Civ.R. 8(C) when it raised the defense of failure to state a claim upon which relief can be granted, Mills at 58. {¶ 29} We held that the statute-of-limitations affirmative defense could be preserved in a motion to dismiss under Civ.R. 12(B)(6).

2025See id. (“A clear distinction exists in the Civil Rules between the affirmative defense of the bar of the statute of limitations pursuant to Civ.R. 8(C), and a Civ.R. 12(B)(6) defense.”).

2020See State v. Ireland, 155 Ohio St.3d 287 , 2018-Ohio-4494 , 121 N.E.3d 285, ¶ 40 (lead opinion) (“a state does not violate the Due Process Clause by requiring the defendant to prove an affirmative defense by a preponderance of the evidence”); Patterson v. New York, 432 U.S. 197, 210 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977) (“Proof of the non-existence of all affirmative defenses has 8 January Term, 2020 never been constitutionally required”); see also Martin v. Ohio, 480 U.S. 228 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987) (affirming this court’s decision in State v. Martin, 21 Ohio St.3d 91, 94 ,

2020See State v. Ireland, 155 Ohio St.3d 287 , 2018-Ohio-4494 , 121 N.E.3d 285, ¶ 40 (lead opinion) (“a state does not violate the Due Process Clause by requiring the defendant to prove an affirmative defense by a preponderance of the evidence”); Patterson v. New York, 432 U.S. 197, 210 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977) (“Proof of the non-existence of all affirmative defenses has 8 January Term, 2020 never been constitutionally required”); see also Martin v. Ohio, 480 U.S. 228 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987) (affirming this court’s decision in State v. Martin, 21 Ohio St.3d 91, 94 ,

2022“The degree of force permitted depends upon what is reasonably necessary to protect that individual from the imminent use of unlawful force.” Id., at ¶42, citing State v. Mogul, 11th Dist. Trumbull Nos. 97-T-0018 & 97-T-0067, 1998 WL 258164 , *3 (May 15, 1998). {¶24} “[I]n order for the defendant to successfully raise an affirmative defense, ‘* * * evidence of a nature and quality sufficient to raise the issue must be introduced, from whatever source the evidence may come.’” State v. Melchior, 56 Ohio St.2d 15, 20 , 381 N.E.2d 195 (1978), quoting State v. Robinson, 47 Ohio St.2d 103, 111-112 ,

2022“The degree of force permitted depends upon what is reasonably necessary to protect that individual from the imminent use of unlawful force.” Id., at ¶42, citing State v. Mogul, 11th Dist. Trumbull Nos. 97-T-0018 & 97-T-0067, 1998 WL 258164 , *3 (May 15, 1998). {¶24} “[I]n order for the defendant to successfully raise an affirmative defense, ‘* * * evidence of a nature and quality sufficient to raise the issue must be introduced, from whatever source the evidence may come.’” State v. Melchior, 56 Ohio St.2d 15, 20 , 381 N.E.2d 195 (1978), quoting State v. Robinson, 47 Ohio St.2d 103, 111-112 ,

2024Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). {¶15} Self-defense is an affirmative defense in Ohio.

2023But Borger must overcome “the presumption in favor of the finder of fact,” that “ ‘every reasonable intendment and every reasonable presumption must be in favor of the judgment and findings of fact.’ ” Id., quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 , 461 N.E.2d 1273 (1984), fn. 3. {¶12} Under R.C. 2913.03(A), it is a crime to “knowingly use or operate an aircraft, motor vehicle, motorcycle, motorboat, or other motor-propelled vehicle without the consent of the owner or person authorized to give consent.” Relevant here, an affirmative defense exists when “[a]t the time o

2024See also Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427 (1996), syllabus (noting that the failure to raise an affirmative defense “before or during trial [also] precludes the defendant from raising the defense for the first time in a motion for judgment notwithstanding the verdict”). -61- However, “Civ.R. 8(F) states that the pleadings of the parties are to be ‘construed as to do substantial justice,’ which further supports the notion that pleadings should be construed in order to dispose of cases on their merits rather than technicalities.” Reed at ¶ 42.

2022An affirmative defense is one that 7 SUPREME COURT OF OHIO “assumes establishment of a prima facie case.” Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432 , 659 N.E.2d 1232 (1996), fn. 3. “ ‘It admits that the plaintiff has a claim (the “confession”) but asserts some legal reason why the plaintiff cannot have any recovery on that claim (the “avoidance”).’ ” State ex rel.

2024In considering manifest-weight review, we note that reversal is appropriate “only in the exceptional case in which the evidence weighs heavily against conviction.” State v. Lindsey, 87 Ohio St.3d 479, 483 (2000), citing Thompkins at 387 (additional citation omitted.). 10 {¶ 32} In this case, appellant asserted the affirmative defense of self-defense as to each charge: aggravated murder, murder, and grand theft.

2021When reviewing under manifest weight, a new trial should only be granted in “exceptional case[s] in which the evidence weighs heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 , 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172 , 485 N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus. {¶22} Under manifest weight, Cook argues principally that the affirmative defense of reasonable parental discipline excuses him from liability for both domestic violence and child endangerment. {¶23} The Supreme Court of Ohio has recognized reasonable parental d

2024Accordingly, “the defense of accident was not an affirmative defense.” The State asserts that, because Hoff was not entitled to an accident instruction, counsel was not ineffective in failing to request one, and that even if we were to conclude that he was entitled to such an instruction, the instruction would not have changed the outcome of the trial. -25- {¶ 60} To establish ineffective assistance of counsel, Hoff must prove that his attorney was ineffective under the well-settled two-prong test from Strickland v. Washington, 466 U.S. 668, 687 (1984).

2022The first states: {¶10} Appellant was denied the effective assistance of counsel by failing to offer the testimony of a private psychologist either at trial in support of the affirmative defense of blackout or at sentencing in mitigation. {¶11} “Counsel’s performance will not be deemed ineffective unless and until counsel’s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel’s performance.” State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph 2 of the syllabus. “‘Judicial scrutiny of counsel’s performanc

2025Entrapment is an affirmative defense, established if an offender proves that the criminal design originated “with the officials of the government, and they implant[ed] in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute.” State v. Doran, 5 Ohio St.3d 187 (1983), paragraph one of the syllabus.

2024R.C. 2901.05(A); State v. Doran, 5 Ohio St.3d 187, 193-194 (1983); State v. Marquand, 2014-Ohio-698, ¶ 20 (8th Dist.) (“Because the defense of entrapment is an affirmative defense, the burden of production and the burden of proof, by a preponderance of the evidence, is on the defendant.”).

2019Moreover, to the extent that it would be applicable in this context, “[m]itigation is an affirmative defense in Ohio.” Young v. Frank’s Nursey & Crafts, Inc., 58 Ohio St.3d 242, 244 , 569 N.E.2d 1034 (1991).

2019Moreover, to the extent that it would be applicable in this context, “[m]itigation is an affirmative defense in Ohio.” Young v. Frank’s Nursey & Crafts, Inc., 58 Ohio St.3d 242, 244 , 569 N.E.2d 1034 (1991).

2025Freeman v. Morris, 62 Ohio St.3d 107, 109 (1991) (“Civ.R. 8(C) designates res judicata an affirmative defense.

2025Freeman v. Morris, 62 Ohio St.3d 107, 109 (1991) (“Civ.R. 8(C) designates res judicata an affirmative defense.